HomeMy WebLinkAbout22- Modification 1 to the Construction Agreement - Montana Department of Transportation - North 7th and Griffin Drive IntersectionFunding, Construction, and Maintenance Agreement
MODIFICATION #1
CMDP-TA-STPP 118-1(3)1
N 7TH & GRIFFIN DRIVE-BOZ UPN 9312000 A. The City of Bozeman (City) and the Montana Department of Transportation (MDT, Department, State) entered into the attached Funding, Construction, and Maintenance Agreement on September 16, 2022 to develop the N 7th & Griffin Drive-Boz project in Bozeman (Agreement). B. The parties acknowledge and agree that a change to the funding table, as set forth in Article V of the Agreement, is necessary. The original funding table is hereby revised with the following funding table:
The above costs are estimates and include inflation, current IDC, and materials test rate, which is included in the CN phase. *STPP, TA, and City Matching funds are capped at the subtotal amounts shown above, IDC rates will be billed at the current IDC rate at time of billing.
C. Except as expressly amended herein, the Agreement remains unmodified and in full force and effect. In the event of any inconsistency between the terms of the Agreement and the terms of this Modification, the terms of this Modification shall control.
Project Phase Total Cost of Phase Federal CMAQ Funds Federal STPP Funds Federal TA Funds
State Matching Funds
City Matching Funds Preliminary Engineering (PE) $966,636 $805,535 $0 $31,384 $124,853 $4,864 Construction (CN) $4,003,164 $2,935,664 $400,000 $130,276 $517,031 $20,193 Construction Engineering (CE) $400,316 $346,594 $0 $0 $53,722 $0 Right-of-Way (RW) $82,072 $71,058 $0 $0 $11,014 $0 Incidental Construction (Utility Relocation) (IC) $275,000 $238,095 $0 $0 $36,905 $0
Subtotal $5,727,188 $4,396,946 $400,000* $161,660* $743,525 $25,057*
IDC $613,382 $470,913 $42,840 $17,314 $79,632 $2,605
Grand Total $6,340,570 $4,867,859 $442,840 $178,974 $823,157 $27,662
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STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
By Montana Department of Transportation Date
Approved for Legal Content
Approved for Civil Rights
CITY OF BOZEMAN
Jeff Mihelich City Manager
Attest:
Mike Maas City Clerk
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10/28/2022
MDT-ENG-011 V 1.2 – Rev 12/19/19 Page 1 of 11
Funding, Construction, and Maintenance Agreement
CMDP-TA-STPP 118-1(3)1
N 7TH & GRIFFIN DRIVE-BOZ
UPN 9312000
This Agreement by and between the City of Bozeman (City), and the Montana Department of
Transportation (MDT, Department, or State), establishes the responsibilities and duties of the parties in
respect to project activities which include roadway reconstruction on a portion of North 7th Avenue,
Griffin Drive, and Mandeville Lane located within the City of Bozeman, Montana.
Whereas, the construction will be accomplished through Uniform Project Number 9312000, Federal-Aid
Project Number CMDP-TA-STPP 118-1(3)1, titled N 7TH & GRIFFIN DRIVE-BOZ (Project) located on
North 7th Avenue (P-118) between RP 1.359 and 1.539; on Griffin Drive (U-1217) between RP 0.0 and
0.125; and on Mandeville Lane (L-16-2358) between RP 0.0 and 0.038; and,
Whereas, State and/or Federal Highway Administration (FHWA) funds will be used to pay for the
construction, the City and State must ensure that federal and state requirements are met in fulfilling its
obligations to the FHWA and for the project to remain eligible for state and/or federal funding; and,
Whereas, a portion of the Project lies on the designated Primary and Urban Highway System (on-system)
(North 7th Avenue and Griffin Drive) under the jurisdiction of the Montana Transportation Commission
and MDT as per Mont. Code Ann. 60-2-110, and a portion of the project is not on the designated State and
Federal Highway System (off-system) (Mandeville Lane); and,
Whereas, Congestion Mitigation and Air Quality funds (CMAQ), Surface Transportation Program Primary
(STPP), and Federal Transportation Alternatives (TA) funds will be used for the construction of the
project; and
Whereas, the State and City recognize the need to construct the Project, and are willing to share in its
costs in accordance with Article V, Funding; and,
Whereas, the City and MDT recognize the need to construct the Project and to duly execute this
Agreement in advance of construction phase programming; and,
Whereas, the City desires to have the Project constructed, the City deeming it to be a valuable and
beneficial consideration, and it will perform the functions, duties and responsibilities as set forth in
Agreement;
Now, therefore, the parties agree as follows:
ARTICLE I. GENERAL OBLIGATIONS OF MDT
1. MDT will design and award a Contract to construct the Project.
2. MDT will provide the City opportunities to participate in the Project’s development, including
invitation to the final inspection of the project.
3. The City will maintain all items within the roadway right of way for the off-system and Urban
routes (Mandeville Lane and Griffin Drive) including the roadway surface (pavement repair,
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pavement preservation, and snowplowing), and will maintain all features, including signals (if
present) and non-decorative roadway lighting, unless otherwise noted herein.
4. MDT will maintain the roadway surface for the on-system route (North 7th Avenue), including
pavement repair, pavement preservation, and snowplowing, and will maintain all features,
including signals (if present) and non-decorative roadway lighting, within the roadway prism
unless otherwise noted herein, except for storm drain.
5. The City will maintain all storm drain features on the entire project (both on- and off-system
sections).
6. If the City does not fulfill any maintenance requirements stated herein, MDT may complete the
required maintenance and seek compensation from the City. In doing so, MDT must first provide
thirty (30) days’ notice to the City allowing time to complete any such maintenance. If MDT
performs such maintenance under this section, it must provide detailed invoices of such costs to
the City.
7. MDT may complete any maintenance required due to a 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.
8. For any maintenance requirements that are the obligation of the City, as stated herein, MDT may
complete any maintenance required due to a 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.
9. The City is responsible for issuing all future encroachment and approach permits for the off-
system and Urban routes (Mandeville Lane and Griffin Drive) and ensuring the resulting actions
do not interfere with roadway or pedestrian travel or decrease safety.
10. The State is responsible for issuing all future encroachment and approach permits for the on-
system routes (North 7th Avenue) and ensuring the resulting actions do not interfere with
roadway or pedestrian travel or decrease safety.
ARTICLE II. GENERAL OBLIGATIONS OF THE CITY
1. The City agrees to conform in all regards to Mont. Code Ann. Title 61, Chapter 8, and will not take
any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in Mont.
Code Ann. Title 61, Chapter 8.
2. The City will provide appropriate and timely input during the Project’s development.
3. The City will continue to enforce the ordinances, laws and/or regulations necessary and essential
for the operations of the project.
4. The City, at its sole expense, will maintain the City signs installed as part of this project. For the
purposes of this Agreement, “maintenance of signs”, is defined as: the inspection, cleaning, repair
and replacement of signs damaged through weathering, vandalism, the wind, or other means.
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5. The City, at its sole expense, must obtain and maintain all federal, state and local building permits
or other permits of any type or nature required by a governing authority, except as noted in this
Agreement.
6. The City agrees that no new permanent feature shall be permitted within the roadway right-of-
way.
7. Unless specified otherwise herein, the City agrees it will fund any additional costs MDT may incur
on future MDT projects due to any amenities the City places in the MDT right-of-way.
8. The City agrees that any City-performed maintenance that occurs within MDT right-of-way must
be reviewed and approved by the appropriate MDT District Maintenance Office prior to initiation
of the maintenance.
9. The City agrees to regulate utility occupancy on the right-of-way of Griffin Drive and Mandeville
Lane in conformance with occupancy regulations that comply with or are more restrictive than the
requirements of the Administrative Rule of Montana, 18.7.201 thru 18.7.241, governing "Right of
Way Occupancy by Utilities."
ARTICLE III. PROJECT-SPECIFIC PROVISIONS
1. Construction Storm Water General Permit
a. Upon completion of all physical work associated with construction activity, the parties will
inspect the temporary erosion and sediment control measures and devices as part of MDT’s
final inspection with MDT’s Contractor. MDT will provide the City with the Storm Water
Pollution Prevention Plan (SWPPP) package for City review. Within ten (10) days of
receiving the package, the City will provide MDT with an itemized list of any outstanding
records or deficiencies associated with the SWPPP. Upon MDT’s and the City’s approval of
site conditions and Contractor records, MDT will provide the City a Permit Transfer
Notification (PTN) form. The City must return the signed PTN form to MDT within ten (10)
business days. MDT will forward the completed PTN form and transfer fees to the Montana
Department of Environmental Quality (DEQ).
b. Once DEQ transfers the Construction Storm Water General Permit Authorization, the City
will inspect, maintain, and revise the Best Management Practice devices (BMPs) in
accordance with DEQ permit requirements until final stabilization is met and permit
coverage is terminated.
c. MDT agrees to pay annual fees associated with permit coverage until termination. To
assure payment, the City must forward invoices to the MDT’s Environmental Services
Bureau for payment.
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2. Small Municipal Separate Storm Sewer System (MS4) Permit
a. MDT concludes, and the City agrees, the project work is designed in compliance with
applicable Small MS4 Permit requirements.
b. The City agrees to operate, monitor and maintain storm water management features in
compliance with applicable MS4 requirements.
ARTICLE IV. PROJECT-SPECIFIC FEATURES
1. Sidewalks
a. Upon completion of the Project by the State and its Contractor, the City agrees that it is
responsible, at no cost to MDT, to service, maintain, repair, and pay the cost of operating
the sidewalk within the project limits, such that it does not negatively impact the operation
of the sidewalk or the safety of the traveling public. If all or part of the Project 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 sidewalk” is defined as: grinding or
milling down displacements; surface patching; crack sealing; sweeping; cleaning; washing;
replacing portions of damaged sidewalk; 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 safe pedestrian travel; and any and all other normally accepted
maintenance practices.
2. Shared-Use Path
a. Upon completion of the Project by the State and its Contractor, 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.
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3. Lighting
a. Upon completion of the Project by the State and its Contractor, the City agrees that it is
responsible, at no cost to MDT, to service, maintain, repair and pay the costs of operating
(including utility costs) the decorative and/or pedestrian lighting installed as part of this
project.
b. For the purposes of this Agreement, “maintenance of street lighting”, is defined as: the
inspection of the lighting system for operation, cleaning lamps, lenses and reflectors,
stocking of replacement parts, bulb replacement, and repairs to and replacement of
damaged fixtures.
c. Any major repair costs for lighting damage not recoverable from third parties shall be the
responsibility of the City.
d. If the cost of energy is raised by the utility company, the City, town or special improvement
district shall pay their proportionate share of the rate increase.
4. City of Bozeman Signage
a. Upon completion of the Project by the State and its Contractor, the City agrees that it is
responsible, at no cost to MDT, to maintain the City signs within the Project.
b. For the purposes of this Agreement, “maintenance of signs,” is defined as: the inspection,
cleaning, repair and replacement of signs damaged through weathering, vandalism, wind,
or other means.
ARTICLE V. FUNDING
1. The City agrees to pay the requisite 13.42% non-federal matching funds associated with the TA
funding of the project and associated indirect costs.
2. The City is responsible for 100% of non-federal aid eligible costs and for the payback of state and
federal funds expended on non-federal aid eligible elements of the Project, if required.
3. It is understood and agreed between the parties that Section 17-1-106, MCA, requires any state
agency that receives non-general funds, including MDT, to identify and recover its indirect costs.
These costs are in addition to the direct Project costs.
4. The City will be billed in advance for its local funds, including indirect costs and materials test
rate. The billing for the Project’s preliminary engineering (PE phase) has already occurred. The
billing for the Project’s construction (CN & CE phases) will be sent no fewer than sixty (60) days
prior to the Project’s anticipated advertisement for letting.
5. The City will submit payment to the State within thirty (30) days of billing. Payments to this
Project will be provided to the State in the form of a check to be credited to the Project. The
payment(s) should be sent to MDT's Administration Division at:
Montana Department of Transportation
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Attention: Collections
2701 Prospect Avenue
P.O. Box 201001
Helena, MT 59620-1001
6. MDT will not submit programming requests to FHWA for individual project phases until the
required local funds have been transferred to MDT. The Project will not advance past the
Preliminary Engineering (PE) phase until a funding package (CN & CE) for all improvements,
including contingencies and overruns, is in place to MDT’s satisfaction.
7. If payment is not made by the City within the thirty (30) day period, interest on the unpaid
amount will accrue at the rate of 10% per year and continue to accrue until paid in full.
8. MDT will not participate in any future funding Agreement with the City until full payment,
including any interest, is received from the City.
9. City agrees that, if the City terminates project development at any time, it will reimburse MDT for
all costs incurred by MDT up to the date of the stoppage, including any required payback of
Federal funds already expended on the Project.
10. If, after initial payment is made for the Project’s construction (CN & CE phases), the bid opening or
award by the State is delayed or postponed by thirty (30) days or more or canceled for any reason,
the State agrees to refund the City initial payment within thirty (30) days, upon the City written
request.
11. The current Project cost estimate, including IDC, materials test rate, and inflation, is shown in
Table 1. This estimate will be updated, until Project closeout, at Project milestones and/or as more
refined estimates become available. Any such revisions will be incorporated into this Agreement
via Amendment, in accordance with the General Terms and Conditions.
12. The State's Project Manager will inform the City point of contact as soon as possible of anything
that it appears will result in a cost increase and will discuss with the City the need for any possible
additional funds, alternative designs, and/or reduction of the Project’s scope and will consider the
City comments and concerns about the additional costs and/or alteration in scope or design. None
of this will prevent, delay, or excuse the City from paying for any additional costs deemed
necessary by State.
13. The State agrees to award the Project using Federal, State, and City matching funds, provided that
the lowest responsive bid does not exceed the allowable overrun percentage shown in Table 2.
14. If the lowest responsive bid exceeds the allowable overrun percentage, as listed in Table 2, the
State will contact the City to determine a funding solution agreeable to both Parties.
15. The Parties understand that it is possible that the estimated cost of the Project’s construction may
be exceeded once the Project has begun.
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Project Phase
Total Cost
of Phase
Federal
CMAQ Funds
Federal
STPP Funds
Federal TA
Funds
State
Matching
Funds
City
Matching
Funds
Preliminary
Engineering (PE) $966,636 $805,535 $0 $31,384 $124,853 $4,864
Construction (CN) $4,003,164 $2,961,326 $400,000 $104,614 $521,009 $16,215
Construction
Engineering (CE) $400,316 $325,670 $0 $20,924 $50,479 $3,243
Right-of-Way (RW) $82,072 $71,058 $0 $0 $11,014 $0
Incidental
Construction (Utility
Relocation) (IC) $275,000 $238,095 $0 $0 $36,905 $0
Subtotal $5,727,188 $4,401,684 $400,000* $156,922* $744,260 $24,322*
IDC $613,382 $471,420 $42,840 $16,806 $79,410 $2,605
Grand Total $6,340,570 $4,873,104 $442,840 $173,728 $823,670 $26,927
The above costs are estimates and include inflation, current IDC, and materials test rate, which is included in the CN phase.
*STPP, TA, and City Matching funds are capped at the subtotal amounts shown above, IDC rates will be billed at the current
IDC rate at time of billing.
Table 2 - MDT Guidelines for Awarding Construction Agreements
(Used to determine allowable overrun cost participation based on construction bid award amount)
LOWEST RESPONSIVE BID ALLOWABLE OVERRUN %
UNDER $50,000 30%
$50,000 - $200,000 25%
$200,000 - $500,000 20%
$500,000 - $2,000,000 15%
OVER $2,000,000 10%
ARTICLE VI. 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 violates or breaches any
term, condition, or article of this Agreement and the City has failed to correct (or reasonably
initiate correction) within 60 days of receiving notice in writing addressed to the City’s
representative, 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 property as it sees fit and may remove the improvements
without City or landowner approval. MDT may seek compensation for maintenance or removal of
the improvements from the City.
3. Other Agreements – Other Agreements pertaining to the project area remain in full force and
effect. In the case of a conflict between this Agreement and a previously executed Agreement, the
terms of this Agreement apply.
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4. Hold Harmless & Indemnification
a. 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 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.
b. 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.
5. Insurance
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 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.
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.
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6. Public Safety
It is agreed, 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, contact the appropriate
MDT District Maintenance Office, and make reasonable and timely effort to correct or repair the
hazard.
7. Invoicing and Indirect Cost (IDC)
a. If MDT incurs any costs resulting from this Agreement, MDT shall be entitled to 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.
Mont. Code Ann. §17-1-106, 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 10.71% for fiscal year 2022 (July 1, 2022 to June 30, 2023). 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).
i. Invoice will be sent to:
City of Bozeman
Attn: Nicholas Ross, Director of Transportation and Engineering
PO Box 1203
Bozeman, MT 59771
nross@bozeman.net
(406) 582-2280
ii. Payments shall be made to:
Montana Department of Transportation
Attention: Collections
2701 Prospect Avenue
PO Box 201001
Helena, MT 59620-1001
8. 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. 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.
9. 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.
10. 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.
11. 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-
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discrimination regulation set forth in Attachment “A” attached hereto and made part of this
Agreement.
12. ADA - MDT requires that any construction 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 Accessibility 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.
13. Audit – The City grants to the Legislative Auditor and the Legislative Fiscal Analysts the right,
without prior notice and during normal business hours, to audit, at their own costs and expense,
all records, reports, and other documents, the City maintains in connection with this Agreement.
14. Utilities -- This Agreement is subject to the right of any private or public utility entity now lawfully
occupying the right-of-way to continue to operate and maintain utility facilities thereupon. Copies
of existing utility permits may be obtained from the MDT District Utility Agent.
15. Amendment and Modification -- This Agreement may be modified or amended only by 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 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 provisions of any Addendum, the provision of the Addendum shall
control, unless the provisions thereof are prohibited by law.
16. 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.
17. 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.
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MDT-ENG-011 V 1.2 – Rev 12/19/19 Page 11 of 11
IN WITNESS WHEREOF, MDT’s authorized representative has hereunto signed on behalf of the State of
Montana, and the City’s authorized representative on behalf of the City, has signed and affixed hereto the
seal of the City.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
By
Montana Department of Transportation Date
Approved for Legal Content
Approved for Civil Rights
CITY OF BOZEMAN
Attest:
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ATTACHMENT A: MDT
NONDISCRIMINATION AND
DISABILITY ACCOMMODATION
NOTICE
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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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