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HomeMy WebLinkAbout20- Memorandum of Agreement - Montana Department of Transportation - Springhill Road U-1219 Bozeman Shared Use Path, Les Schwab Development CITY/STATE MEMORANDUM OF AGREEMENT Springhill Road/U-1219, Bozeman Shared Use Path, Les Schwab .Development April 2020 This Memorandum of Agreement (Agreement) is made and entered into by and between the City of Bozeman,(City),a municipal corporation organized and existing under the laws of the State of Montana,P.Q. Box 1230, Bozeman,MT 59771,and the State of Montana Department of Transportation C MDT"or"the State'),whose address is 2701 Prospect Ave., P.O. Box 201001,Helena,MT 59620-100.1,together referred to as"the Parties". The Purpose of this Agreement is to set forth the respective responsibilities and duties of the Parties associated with the placement of a shared use path within the Springhill Road/U-1219 right-of-way,per the.approved plans (Attachment B)in the City of Bozeman. WHEREAS,MDT is.responsible for planning,designing,constructing and maintaining State highway and roadway associated transportation facilities,including associated pull=offs, parking areas,and rest areas for the use and benefit of the traveling public,in a safe and efficient manner in accordance with Title 23 United States Code (U.S.C.) and Title 60 Montana Code Annotated.(MCA)and maintains and has jurisdiction for Springhill Road/U- 1219; and WHEREAS, the"Project"includes installation of a shared use path within the Springhill Road/U-1219 right-of-way,per the approved.plans (Attachment B),and this Agreement sets forth terms regarding the Citys maintenance responsibilities for the shared use path shown in Attachment B that the City must meet for MDT to provide the Developer the necessary Encroachment.Permit to construct the shared use path proposed for the Les Schwab Store property along Springhill.Road/U-1219 shown in Attachment B. Any Encroachment Permit granted to the Developer by this Agreement is explicitly subject and subordinate to the rights and title of MDT and the State of Montana;and WHEREAS,The City has agreed to maintain the shared use path within MDT right-of-way, and WHEREAS,This Agreement must be fully executed before initiation of construction of the. Project within MDT right-of-way; and NOW,THEREFORE,The Parties.set forth the fundamental duties and responsibilities necessary for the encroachment of the Project into MDT right-of-way. Page 11 ARTICLE I. OBLIGATIONS OF THE CITY: 1. The City agrees any maintenance within MDT.right-of-way that requires lane closure or equipment must be reviewed and approved by MDT Bozeman Area maintenance staff prior to initiation of the maintenance. 2. The City,at the City's sole expense,agrees to maintain,or cause to be maintained, within MDT right-o€way the shared.use path and shared use path signs (if any) in. satisfactory condition,as follows: a. Upon.completion of the Project,the City agrees that it is responsible,at no cost to.MDT,to service,maintain,repair,and pay the cost of operating the. path within the project limits,such that it does not negatively impact the. operation of the path or the safety of the traveling public. If all or part of the shared use path becomes unsafe for use,the City agrees to restrict access to the affected area until the condition has been remedied. b. For the purposes of this Agreement,"maintenance of a shared-use path"is defined as: grinding or milling down displacements;surface patching;crack sealing; sweeping; cleaning;washing; replacing portions of damaged path; removal of snow and ice; repair of chipped,fractured,or broken surface from any cause,including but not.limited to frost heaving,landscaping;tree roots, or encroachments; removal of debris and other obstructions or impediments to the safe travel of pedestrians or other path users; maintenance of all associated drainage features;maintenance of path-related signs; and any and all other normally accepted maintenance practices. c. For the purposes of this Agreement,"maintenance of shared-use path signs," is defined as:the inspection,cleaning,repair and replacement of signs damaged through weathering,vandalism,wind,and other means. 3. Any damage must be repaired within 60 calendar days of written notification being sent to the City. 4: The City agrees that no fixture,building,structure,or other permanent installation other than as allowed.in this Agreement will be constructed or placed within MDT right-of-way without prior written approval from MDT. S. The City shall,complete the necessary environmental processes for modification to the state highways and.roadways.and demonstrate that all,if any,environmental issues. associated with the proposed project have been identified and mitigated. The City agrees it will prepare and file any required environmental documents and apply for and obtain any permits required by other governmental agencies at no expense to MDT prior to maintenance taking place within MDT right-of-way. 6. The City agrees to be responsible for any and all damages to MDT's facilities caused by the City,the City's staff or contractors, or resulting from the City's operations. The City Page 12 must repair any and all damages,at its sole expense,after notification of damage by MDT and approval of repair work needed, method ofrepair,and schedule for repair. 7. If the City fails to perform or cause to be performed,the maintenance:obligations as required by this agreement within 60 days of written.notification from MDT,MDT may complete the required maintenance and the City shall be required to compensate MDT for its performance of said maintenance. 8. MDT may complete any maintenance required due to a public emergencywithout prior notice to the City. The City agrees to be responsible for and to reimburse MDT for said maintenance,including Indirect Costs. ARTICLE III- GENERAL TERMS AND CONDITIONS 1. Term-The term of this Agreement shall be ten(10)years. After the initial ten (10) year term,this Agreement will renew automatically,for successive one (1)year terms, unless superseded by a new Agreement between the parties. 2 Termination-This Agreement may be terminated by MDT.if the.City has violated or breached any term,condition or article of this Agreement and the City has failed to correct the same within 60 days ofreceiving notice in writing addressed to the City at the addresses shown above,from MDT of such violation or breach.of any term condition or article of this Agreement. If this Agreement is terminated,the improvements become the property of MDT,without reimbursement. MDT will maintain the Project as it sees fit and may remove it without City approval. MDT may seek compensation for removal of the Project from the City. 3. Hold Harmless&Indemnification The City agrees to protect,defend,indemnify;and hold MDT,its elected and appointed officials,agents,and employees,while acting within their duties as such,harmless from. and against all claims,liabilities,demands,causes of action,and judgments (including the cost of defense and reasonable attorney fees) arising in favor of or asserted.bythe City's employees or third.parties on account of personal or bodily.injury,death or damage to property,arising out of the acts or omissions of the City,its agents,or sub- contractors,under this Agreement,except the negligence of MDT. The State and Department of Transportation agrees to protect,defend,indemnify,and hold the City,its elected and appointed officials,agents,and employees,while acting within their duties as such,harmless from and against all claims,liabilities,demands, causes of action,and judgments (including the cost of defense and reasonable attorney fees) arising in favor of or asserted by the MDT's employees or third parties on account of personal or bodily injury,death or damage to property,arising out of the acts or omissions of MDT,its agents,or sub-contractors,under this Agreement,except the negligence of the City. 4. Insurance PagePage 13 a. General Requirements: Each party shall maintain for the duration of this Agreement, at its own cost and expense,insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the duties and obligations in this Agreement by each party,its agents, employees, representatives,assigns,or sub-contractors.This insurance shall cover such claims as may be caused by any negligent act or omission. b. General Liability Insurance: Each party shall purchase and maintain occurrence coverage with combined single.limits for bodily injury,personal injury,and property damage of$1 million per occurrence and$2 million aggregate per year to cover such claims as maybe caused by or arising out of any negligent acts or omissions in work or services performed under this Agreement,or as established by statutory tort limits as provided by a public entity self-insurance program either individually or on a pool basis as provided by Mont. Code.Ann.Title 2,Chapter 9. c. General Provisions:All.insurance coverage must be with a carrier licensed to do business in the.State of Montana or by a public entity self-insured program either individually or on,a pool basis. Each party must notify the other immediately of any material change in insurance coverage,such as changes in limits,coverage,change in status of policy,etc. Each party reserves the right to request complete copies of the other party`s insurance policy or self-insured memorandum of coverage at any time. d. Workers'Compensation Insurance: The City must maintain workers'compensation insurance and require its contractors and its contractor's sub-contractors to carry their own workers compensation coverage while performing work.within MDT right-of-way in accordance with Mont.Code Ann.§§39-71-401 and 39-71-405. .Neither the contractor.nor its employees are employees of MDT. This. insurance/exemption must be valid for the entire.Agreement period. 2. Public Safety: a. If any repairs to the Project must be done to prevent a public hazard,the City will immediately protect the area from public access,contact MDT Bozeman Area Maintenance,and take corrective action to repair the.hazard. b. If MDT incurs any costs as a result of a public emergency that necessitates action on MDT's part concerning the maintenance or repair of the Project,MDT shall be compensated for such costs by the City,and the City shall pay the same:within thirty (30) days of its receipt of such invoices. 6. Section 17-1-106,MCA,requires any state agency;including MDT,which receives non- general funds to identify and recover its indirect costs (IDC).These costs are in addition to direct project costs. MDT's IDC rate is determined annually as a percentage of the project's direct costs to cover the project's share of.MDT's IDC as defined by 2 CFR.Part 200,Appendix VII. MDT's current IDC rate is 10.49% for fiscal year 2019 (July 1, 2018 to June 30, 2019). If the work occurs or extends into fiscal year 2020 or beyond the IDC Page ( 4 rate will be charged at the rate agreed to by MDT and the Federal Highway Administration (FHWA). 7. Invoice will be sent to the appropriate party according to the Agreement: City of Bozeman P.O. Box 1230 Bozeman,MT 59771 8. Payments shall.be made to:. Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena,MT 59620-1001 9. Choice of Law-This Agreement,shall be governed by the laws of Montana 10.Venue,-The parties agree that any litigation concerning this Agreement must be brought in the First Judicial District Court,in and for the County of Lewis and Clark, State of Montana,and each party shall pay its own costs and attorney fees,except as otherwise noted in this Agreement on Indemnification. In case of conflict between the terms and conditions of this Agreement and the laws of the State of Montana,the laws of the State of Montana shall control. 11.Binding Effect-The benefits and obligations set forth,in this Agreement shall be binding upon,and inure to the benefit of,:their respective successors,administrators and.assigns of the Parties. 12.Relationship of Parties-Nothing contained in this Agreement shall be deemed or construed (either by the Parties hereto or by any third party) to.create the relationship of principal and agent or create any partnership joint venture or other association between the Parties. 13.Non-Discrimination-The City will require that during the performance of any work arising out of this Agreement the City,for itself,assignees,and successors shall comply with all applicable non-discrimination regulation set forth in Attachment"A attached hereto and made part of this Agreement. MDT requires that any construction or maintenance resulting from this Agreement must include appropriate pedestrian facilities that meet or exceed current MDT standards for accessibility as set forth by the United States Department of Justice 2010 ADA Standards for Accessible Design,United States Access Board Proposed Guidelines Page 15 for Pedestrian Facilities in the Public Right-of-Way(2011 PROWAG),and MDT's Detailed Drawings,608 series. 14.Audit-The Legislative Auditor and the Legislative Fiscal Analyst may,without prior notice and during normal business hours,audit,at their own cost and expense,all records,reports,and other documents the.City maintain in connection with this Agreement. IS.Access and Retention of Records The City agrees to provide the State,Legislative Auditor,or their authorized agents access to any records necessary to determine compliance with this MOA(Mont. Code Ann.§18-1-118). The City agrees to create and retain records supporting this Agreement for a period of three years after the completion date of this Agreement or the conclusion of any claim,.litigation or exception. relating to the Agreement taken by the State of Montana or a third party. 16.Highway Modifications -If MDT modifies or improves the Springhill Road/U-1219 or roadway facilities,the City will modify, upon reasonable notice at no expense to MDT, the Project,accordingly. 17.Revocation. This Agreement is revocable by MDT in the event that the Project facilities within the right-of-way cease to be used by the City for a period of one year or abandoned otherwise. Upon revocation or abandonment,the system facilities must be removed in compliance with this Agreement. 18.Utilities-The right of any private or public utility now lawfully occupying the right-of wayto operate and.maintain utility facilities supersedes any right granted.by this Agreement to the City. Copies of existing utility permits may be obtained from the MDT Bozeman Area Utility Agent. 19.Amendment and Modification-The Parties may modify or amend this Agreement only by a written Addendum signed by the Parties. The Addendum will control.any conflict. between the Agreement and Addendum shall control,unless prohibited by law. 20.Counterpart Execution This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement.The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received.. (Signature Pages to Follow) Page ( 6 IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly authorized representative effective as of the date of final signature. SIGNATURES: MONTANA DEPARTMENT OF TRANSPORTATION Date: By: Montana Department of Transportation Printed name Title Approved for Legal Content: By: Approved for Civil Rights Content: By: CITY OF BOZEMAN Date: �\? +. 10�ao By: ity of Bozeman yy Printed name Page 17 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative effective as of the date of final signature. SIGNATURES: MONTANA DEPARTMENT OF TRANSPORTATION Date: By: Montana Department of Transportation Printed name Title Approved for Legal Content: By:1 A-Mll 2Qp �z i-t t ao Approved for Civil Rights Content: By: 1 'uA Ao-Zrj CITY OF BOZEMAN Date: V+nQ `; a--) By: ity of Bozeman ,A� 11 lvl� �lC� Printed name Page 17 IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly authorized representative effective as of the date of final signature. SIGNATURES: MONTANA DEPARTMENT OF TRANSPORTATION Date: 6/22/2020 By: PVW/aw C. -fqqal ty Montana Department of Transportation William C. Fogarty Printed name Administrator Title Approved for Legal Content: By: A&e— Approved for Civil Rights Content: By: i/; 111 b )l.( j','t, `(�•�(; CITY OF BOZEMAN Date: �J V�' 11-b e'3-o By: ity of Bozeman Printed name Page 17 ATTACHMENT A MDT Nondiscrimination and Disability Accommodation Notice Rev.01/2020 MDT NONDISCRIMINATION AND DISABILITY ACCOMMODATION NOTICE Montana Department of Transportation ("MDT") is committed to conducting all of its business in an environment free from discrimination, harassment, and retaliation. In accordance with State and Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter "protected classes") by its employees or anyone with whom MDT does business: Federal protected classes State protected classes Race, color, national origin, Race, color, national origin, parental/marital sex, sexual orientation,gender identity, status, pregnancy, childbirth,or medical age, disability, & Limited English Proficiency conditions related to pregnancy or childbirth, religion/creed, social origin or condition, genetic information, sex,sexual orientation, gender identification or expression, national origin, ancestry, age, disability mental or physical, political or religious affiliations or ideas, military service or veteran status For the duration of this contract/agreement, the PARTY agrees as follows: (1) Compliance with Regulations:The PARTY(hereinafter includes consultant)will comply with all Acts and Regulations of the United States and the State of Montana relative to Non- Discrimination in Federally and State-assisted programs of the U.S. Department of Transportation and the State of Montana, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. (2) Non-discrimination: a. The PARTY, with regard to the work performed by it during the contract, will not discriminate, directly or indirectly, on the grounds of any of the protected classes in the selection and retention of subcontractors, including procurements of materials and leases of equipment, employment, and all other activities being performed under this contract/agreement. b. PARTY will provide notice to its employees and the members of the public that it serves that will include the following: i. Statement that PARTY does not discriminate on the grounds of any protected classes. ii. Statement that PARTY will provide employees and members of the public that it serves with reasonable accommodations for any known disability, upon request, pursuant to the Americans with Disabilities Act as Amended (ADA). iii. Contact information for PARTY's representative tasked with handling non- discrimination complaints and providing reasonable accommodations under the ADA. Page 1 of 4 Rev. 01/2020 iv. Information on how to request information in alternative accessible formats. c. In accordance with Mont. Code Ann. §49-3-207, PARTY will include a provision, in all of its hiring/subcontracting notices, that all hiring/subcontracting will be on the basis of merit and qualifications and that PARTY does not discriminate on the grounds of any protected class. (3) Participation by Disadvantaged Business Enterprises(DBEs): a. If the PARTY receives federal financial assistance as part of this contract/agreement,the PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its subcontracting services.The list of all currently certified DBE firms is located on the MDT website at mdt.mt.gov/business/contracting/civil/dbe.shtmi b. By signing this agreement, the PARTY assures that: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. c. PARTY must include the above assurance in each contract/agreement the PARTY enters. (4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation, made by the PARTY for work to be performed under a subcontract, including procurements of materials,or leases of equipment, each potential subcontractor or supplier will be notified by the PARTY of the PARTY's obligation under this contract/agreement and all Acts and Regulations of the United States and the State of Montana related to Non-Discrimination. (5) Information and Reports:The PARTY will provide all information and reports required by the Acts, Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by MDT or relevant US DOT Administration to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information,the PARTY will so certify to MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has made to obtain the information. (6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non- discrimination provisions of this contract/agreement, MDT will impose such sanctions as it or the relevant US DOT Administration may determine to be appropriate, including, but not limited to: a. Withholding payments to the PARTY under the contract/agreement until the PARTY complies; and/or b. Cancelling,terminating,or suspending the contract/agreement, in whole or in part. Page 2 of 4 Rev. 01/2020 (7) Pertinent Non-Discrimination Authorities: During the performance of this contract/agreement, the PARTY, for itself, its assignees, and successor in interest, agrees to comply with the following non-discrimination statues and authorities; including but not limited to: Federal - Title VI of the Civil Rights Act of 1964(42 U.S.C. § 2000d etseq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21; - The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,(42 U.S.C. §4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); - Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); - Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; - The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); - Airport and Airways Improvement Act of 1982, (49 U.S.C. §471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); - The Civil Rights Restoration Act of 1987, (PL 100-209), (broadened the scope, coverage, and applicability of Title VI of the Civil Rights Act of 1964,The Age Discrimination Act of 1975,and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities"to include all of the programs or activities of the Federal-aid recipients, sub-recipients, and contractors, whether such programs or activities are Federally funded or not); Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189)as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38; The Federal Aviation Administration's Non-Discrimination statute (49 U.S.C. §47123) (prohibits discrimination on the basis of race, color, national origin, and sex); Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which prevents discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; Page 3 of 4 Rev. 01/2020 - Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency(LEP).To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); - Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. § 1681 etseq.). Executive Order 13672 prohibits discrimination in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity. State - Mont. Code Ann. § 49-3-205 Governmental services; - Mont. Code Ann. § 49-3-206 Distribution of governmental funds; - Mont. Code Ann. §49-3-207 Nondiscrimination provision in all public contracts. (8) Incorporation of Provisions:The PARTY will include the provisions of paragraph one through seven in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and/or directives issued pursuant thereto. The PARTY will take action with respect to any subcontract or procurement as MDT or the relevant US DOT Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the PARTY becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the PARTY may request MDT to enter into any litigation to protect the interests of MDT. In addition,the PARTY may request the United States to enter into the litigation to protect the interests of the United States. Page 4 of 4 ATTACHMENT B Plans ' 1W `NVW3ZOS-U31N33 Mall SVMHOS Sal - � BLL69IW'NVW3Z09 aasanaaaiSWOOLL _. ' � 10 RIME e „s as U W3� am" ?pw a � w g 3, z w � 3 r zliv �F§amg3�ggz? 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