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CITY/STATE MEMORANDUM OF AGREEMENT
Rouse Avenue/P-86
Bozeman
March 2022
This Memorandum of Agreement (Agreement) is made and entered into by and between the City of Bozeman (“the City”), a self-governing municipality operating pursuant to its Charter and the laws of the State of Montana, P.O. Box 1230, Bozeman MT 59771 and the Montana Department of Transportation (“MDT”), a department of the State of Montana, P.O. Box 201001, Helena MT 59620-1001 together referred to as “the Parties”. The Purpose of this Agreement is to set forth the respective responsibilities and duties of the City and MDT associated with the installation and maintenance of landscaping and irrigation equipment within the Rouse Avenue/P-86 right-of-way (the Project), per the approved plans (Attachment B) by the City. This Agreement sets forth terms regarding the City’s maintenance responsibilities for the Project that the City must meet for MDT to provide the City the necessary Encroachment Permit to install the Project. Any Encroachment Permit granted to the City by this Agreement is explicitly subject and subordinate to the rights and title of MDT and the State of Montana; and WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State Highways and roadways, and 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 and in accordance with Title 23 United States Code (U.S.C) and Title 60 Montana Code Annotated (MCA) including Rouse Avenue/P-86, a commission-designated highway system; and
WHEREAS, Rouse Avenue/P-86 is an MDT maintained/permitted route on the Primary Highway System within the State of Montana and is eligible to receive Federal Highway Funds; and
WHEREAS, in accordance with the State’s agreement with the Federal Highway Administration (FHWA) of the U.S. Department of Transportation, MDT must ensure that certain requirements are met in order for MDT to fulfill its obligations to the FHWA and for Rouse Avenue/P-86 be eligible for federal funds;
WHEREAS, The City has agreed to maintain, or cause to be maintained, the Project; and WHEREAS, This Agreement must be fully executed before initiation of construction of the Project within commission-designated right-of-way; and
NOW, THEREFORE, The Parties set forth the fundamental duties and responsibilities necessary for the maintenance of Rouse Avenue/P-86 associated with the construction of the Project, within public right-of-way.
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ARTICLE I. GENERAL OBLIGATIONS OF MDT
1. If the City does not fulfill their maintenance requirements as stated herein, MDT may complete the required maintenance and seek compensation from the City. In doing so, MDT must first provide notice to the City allowing 60 days to complete any such maintenance. If MDT performs such maintenance under this section, it must provide detailed invoices of such costs to the City. 2. MDT may complete any maintenance required due to public emergency and seek compensation from the City for any costs incurred. In doing so, MDT may first provide notice to the City, when possible, allowing time to complete any such maintenance. If MDT performs maintenance under this section, it must provide detailed invoices of such costs to the City.
ARTICLE II. OBLIGATIONS OF THE CITY: 1. The City agrees that no fixture, building, structure, or other permanent installation will be constructed or placed within Transportation Commission designated right-of-way without prior written approval from MDT. 2. 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 Transportation Commission designated right-of-way. 3. The City agrees to be responsible for any and all damages to facilities within Transportation Commission designated right-of-way caused by the City, the City’s staff or contractors, or resulting from the City’s operations. The City must repair any and all damages, at its sole expense, after notification of damage by MDT and approval of repair work needed, method of repair, and schedule for repair. 4. 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. 5. MDT may complete any maintenance required due to a public emergency without prior notice to the City. The City agrees to be responsible for and to reimburse MDT for said maintenance, including Indirect Costs.
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ARTICLE III – PROJECT-SPECIFIC FEATURES
1. Landscaping/Irrigation Equipment a. Upon Completion of the Project by the developer and its contractor, the City agrees that it is responsible, at no cost to MDT, to service, maintain and repair the landscaping and irrigation equipment installed as part of this project. b. For the purposes of this Agreement, “maintenance of landscaping and irrigation system,” is defined as: mowing, watering, debris removal, weed control, fertilizing, tree/shrub trimming including removal, replacement and maintenance of sight triangles, the repair and replacement of fences, and maintenance of all features in compliance with ADA/PROWAG. The irrigation system shall be fully operational, free of leaks, with heads selected and adjusted to reduce water waste. c. If the City is not able to complete maintenance on the landscaping and irrigation system as per this Agreement, the improvements may become the property of MDT, without reimbursement. If landscaping or irrigation become MDT property, MDT will maintain the property as it sees fit and may remove the landscaping and irrigation system without the City’s approval. MDT may seek compensation for the maintenance or removal of the landscaping and irrigation system form the City.
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 of receiving 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 maintenance or 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
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the cost of defense and reasonable attorney fees) arising in favor of or asserted by the 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 1. 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. 2. 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 may be 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. 3. 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. 4. 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. 5. Public Safety If any repairs to the elements of the Project must be performed to address or prevent a public hazard, the City will immediately protect the area from public access, and make reasonable and timely effort to correct or repair the hazard.
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6. Invoicing and Indirect Cost (IDC) 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 back to its original state, 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. 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 9.66% for fiscal year 2022 (July 1, 2021 to June 30, 2022). If the work occurs or extends into fiscal year 2023 or beyond the IDC rate will be charged at the rate agreed to by MDT and the Federal Highway Administration (FHWA). 1. Invoice will be sent to: City of Bozeman Attn: Town Clerk/Treasurer P.O. Box 1230 Bozeman, MT 59771 2. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena, MT 59620-1001 7. Choice of Law and Venue This Agreement shall be governed by the laws of Montana. 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. 8. 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.
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9. 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. 10. 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. 11. ADA - 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 for Pedestrian Facilities in the Public Right-of-Way (2011 PROWAG), and MDT’s Detailed Drawings, 608 series. 12. 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. 13. 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. 14. Highway Modifications – If MDT modifies or improves the highway or roadway facilities, the City will modify, upon reasonable notice at no expense to MDT, the Project accordingly. 15. 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. 16. Utilities – The right of any private or public utility now lawfully occupying the right-of-way to 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 District Utility Agent. 17. Amendment and Modification – The Parties may modify or amend this Agreement only by a written Addendum signed by the Parties. In addition to the terms and conditions contained herein, the provisions of any Addendum may be incorporated and made a
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part hereof by this reference in the terms of the amendment so provided. In the event of any conflict between the terms and conditions hereof and the provision of any Addendum, the provision of the Addendum shall control, unless the provisions thereof are prohibited by law. 18. Representatives a. City’s Representative: The City’s Representative for this Agreement shall be the City Manager or designee or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, MDT may direct its communication or submission to other designated City personnel or agents. b. MDT’s Representative: The MDT Representative for this Agreement shall be the District Administrator or Maintenance Chief or such other individual as MDT shall designate in writing. Whenever direction to or communication with MDT is required by this Agreement, such direction or communication shall be directed to MDT’s Representative; provided, however, that in exigent circumstances when MDT’s Representative is not available, City may direct its direction or communication or submission to other designated MDT personnel or agents. 19. 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)
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IN WITNESS WHEREOF, the Department’s authorized representative has hereunto signed on behalf of the State of Montana, and the City Manager of the City of Bozeman, on behalf of the City, has signed and affixed hereto the seal of the City.
SIGNATURES:
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION By ______________________________________________ Date: ___________________________ Montana Department of Transportation ________________________________ Approved for Legal Content ________________________________ Approved for Civil Rights CITY OF BOZEMAN By: _______________________________________________ Date: ____________________________ City Manager Jeff Mihelich
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ATTACHMENT A
MDT Nondiscrimination and Disability Accommodation Notice
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ATTACHMENT B
PLANS
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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,
sex, sexual orientation, gender identity,
age, disability, income-level & Limited
English Proficiency
Race, color, national origin, parental/marital status,
pregnancy, childbirth, or medical conditions related to
pregnancy or childbirth, religion/creed, social origin or
condition, genetic information, sex, sexual orientation,
gender identification or expression, ancestry, age,
disability mental or physical, political or religious
affiliations or ideas, military service or veteran status,
vaccination status or possession of immunity passport
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. The PARTY will provide notice to its employees and the members of the public that it
serves that will include the following:
i. A statement that the PARTY does not discriminate on the grounds of any
protected classes.
ii. A statement that the 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 the PARTY’s representative tasked with handling non-
discrimination complaints and providing reasonable accommodations under the
ADA.
iv. Information on how to request information in alternative accessible formats.
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c. In accordance with Mont. Code Ann. § 49-3-207, the 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 the 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.shtml
b. By signing this agreement, the PARTY assures MDT 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. The 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.
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(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 statutes and authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 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;
- 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);
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- 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 et seq.).
- 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.
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