HomeMy WebLinkAbout09- Treasure State Endowment Program Contract # MT-TSEP-CG-10-471a..l L
~ w ~
Montana's
Ratnvattment Vrohtts
~ ~ 1~1~
!y ~
~ Ifs M / ~
( f .
_.
Department of Commerce
TREASURE STATE ENDOWMENT PROGRAM
CONTRACT #MT-TSEP-CG- I 0-471
FOR CITY OF BOZEMAN, MONTANA, WASTEWATER PROJECT
This Contract is entered into by the City of Bozeman, Montana (the Grantee) and the
Montana Department of Commerce, Helena, Montana (the Department).
The Grantee and the Department hereby agree to the following terms:
Section I. PURPOSE
The purpose of this Contract is to provide funding for project activities approved by the 61st
Montana Legislature through House Bill I I under the Montana Treasure State Endowment
Program (TSEP) for Fiscal Years 2010 and 201 I .
Section 2. AUTHORITY
This contract is issued under authority of Title 90, Chapter 6, Part 7, Montana Code Annotated,
and the Administrative Rules of Montana, Title 8, Chapter 94, Subchapter 38.
Section 3. APPLICATION INCORPORATED BY REFERENCE
The Grantee's application for Treasure State Endowment Program (TSEP) assistance, including any
written modifications resulting from the review of the applications by the Department
(collectively, the "Project"), is incorporated into this Contract by this reference and the
representations made therein are binding upon the Grantee.
Section 4. ACCEPTANCE OF TSEP PROGRAM REQUIREMENTS
(a) The Grantee will comply with all applicable local, state, and federal laws, regulations,
ordinances, and resolutions, including the American Recovery & Reinvestment Act of 2009;
I
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
. i
the "Implementing Guidance for the American Recovery and Reinvestment Act of 2009," as
now in effect or as may be amended during the term of this Contract; and all administrative
directives and procedures established by the Department, including the TSEP Project
Administration Manual (May, 2009).
(b) Grantee understands and agrees that the work to be performed under this project will
potentially be funded in total or in part by federal and state recovery and reinvestment
funds ("Recovery funds"), and that Grantee must report information as required by
applicable federal and state law for itself and all contractors, subcontractors and
subrecipient entities.
(c) If any of TSEP's portion of the Recovery funds are utilized for the Project, the Grantee
understands and agrees that the Project must be identit=led by both temporary and
permanent signs, designed and provided by the Department and installed at the Project site
by the Grantee as directed and approved by the Department. Temporary project signs that
are typically used to provide information about the project and its funding must also have
both Recovery funds logos placed on the sign. The logos will be provided by the
Department.
(d) The Grantee acknowledges that it is subject to the conditions on grant award,
disbursement of funds, and other TSEP policies as established by the 61st Legislature in
House Bill I I.
(e) The Grantee agrees that the Project will adhere to all applicable design standards required
by the Department of Environmental Quality (DEQ). If no DEQ standards are applicable to
the Project, the Grantee agrees that the Project will adhere to generally accepted industry
standards, such as Recommended Standards for Wastewater Facilities or Recommended
Standards for Water Works, published by the Great Lakes-Upper Mississippi River Board of
State and Provincial Public Health and Environmental Managers, latest edition.
(f) The Grantee agrees that all contracts and subcontracts entered into for the completion of
the activities described in Section 6 SCOPE OF WORK will indicate that the contract is
being made under the Montana Reinvestment Act of 2009, and require such contractors,
subcontractors, and subrecipient entities to also comply with all applicable local, state, and
federal laws, regulations, administrative directives, procedures, ordinances, resolutions; all
applicable DEQ design standards, or, if not applicable, generally accepted industry standards
as set forth in this Section; and all administrative directives and procedures established by
the Department, including the TSEP Project Administration Manual (May, 2009)
2
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
(g) The Grantee expressly agrees to repay to the Department any funds advanced under this
Contract that the Grantee, its contractors, subcontractors, or subrecipient entities, or any
public or private agent or agency to which it delegates authority to carry out portions of
this Contract, expends in violation of the terms of this Contract, the statutes and
regulations governing the TSEP Program, or any applicable local, state, or federal
requirements.
Section 5. EFFECTIVE DATE AND TIME OF PERFORMANCE
This Contract shall take effect upon execution by the parties and will terminate upon completion of
the final Project closeout by the Department, unless terminated earlier in accordance with the
terms of this Contract. The activities to be performed by the Grantee will be completed according
to the implementation schedule attached hereto as Attachment A and specifically incorporated
herein by this reference. The Grantee may modify the implementation schedule set forth in
Attachment A at any time, so long as it submits the modification to the Department and receives
written acknowledgement of such adjustment from the Department.
Section 6. SCOPE OF WORK
(a) The Grantee will engage in activities as set forth in the Grantee's application for TSEP
assistance, including any written modifications resulting from the review of the applications by
the Department. The major components of the Project include: construct a new headworks
building, construct a new primary effluent lift station, construct a new biological nutrient
reactor (BNR) bioreactor basins with advanced nutrient removal capacity, modify the existing
aeration basins and add aeration system capacity including modifications to the blower building,
construct two new 85-foot diameter clarifiers and a new sludge pump station, install a new
ultraviolet light (UV)disinfection and standby power system, install a new chlorine feed system,
install a new 42-inch outfall pipeline, construct new anaerobic digester and digester control
building, construct new dewatering and solids storage facility, construct a new fermentation
unit, and the administration of this Contract in compliance with the Project Management Plan
approved by the Department and as may be amended from time to time by mutual agreement
of the parties.
(b) The Project will be constructed as described in engineering plans and specifications
submitted by the Grantee and approved by the Montana Department of Environmental
Quality.
3
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
~~ +
(c) In order to meet the expectation that the average residential combined water and
wastewater user rates will be at or above the Grantee's target rate as proposed in theTSEP
application submitted by the Grantee, the Grantee will maintain average residential
combined water and wastewater user rates upon the completion of the Project that are no
lower than $61.63/month for residential users.
Section 7. BUDGET
(a) The total amount to be awarded to the Grantee under this Contract will not exceed
$500,000.
(b) A copy of the preliminary Project budget is attached hereto as Attachment B and
specifically incorporated herein by this reference. After construction bids are awarded or
other major Project activity cost elements are determined, the Grantee shall provide the
Department with a final Project budget, which, upon receipt and approval by the
Department, will supersede the preliminary budget in Attachment B and thereby be
incorporated as part of this Contract.
(c) For budget adjustments of $5,000 or less between tine items of the TSEP portion of
Attachment B, Department approval of the Request for Payment form will constitute
approval of the budget adjustment. The Grantee shalt describe the rationale for a budget
adjustment in the Project Progress Report and note the adjustments in the Request for
Payment and Status of Funds Report submitted with draws against the grant funding
reserve. Budget adjustments in excess of $5,000 must be approved in advance by the
Department.
(d) Any authorized funds not expended under this grant upon Project closeout will revert to
the Department and will be used to finance other authorized TSEP projects.
Section 8. AMOUNT OF GRANT AND METHOD OF PAYMENT
(a) The Department will use the funds deposited in or interest earned on the Treasure State
Endowment Special Revenue Account as authorized by 17-5-703 and 90-6-70 I through 90-
6-710, MCA, and other funds appropriated to the TSEP program in the Montana
Reinvestment Act of 2009 ("Recovery funds") to fund TSEP grant awards authorized by the
61st Legislature in House Bill I I that meet all the PROJECT START-UP REQUIREMENTS
set forth in Section 9 by December 31, 2012. Only the interest earned during the 201 I
biennium on the Treasure State Endowment Fund and other funds appropriated to the
Treasure State Endowment Program
Montana Department of Commerce
4
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
TSEP program in the Montana Reinvestment Act of 2009 will be available to fund projects
authorized by HB I I. If such funds are insufficient to fund all projects that complete the
PROJECT START-UP REQUIREMENTS by June 30, 201 I, the Department will borrow
funds from the Board of .Investments to provide grants to those Grantees that completed
PROJECT START-UP REQUIREMENTS by June 30, 201 I . The Grantee acknowledges that
its access to TSEP and Recovery funds is subject to their availability.
(b) The Grantee agrees that if it has not completed the PROJECT START-UP REQUIREMENTS
set forth in Section 9 by the end of the biennium on June 30, 201 I, the Grantee loses any
guarantee of receiving the authorized grant, and will be provided funds only if there are
sufficient funds available that have not been obligated to other authorized projects. The
Grantee understands that the Department will not borrow any funds from the Board of
Investments to provide grants to Grantees that meet the PROJECT START-UP
REQUIREMENTS after the biennium ends on June 30, 201 I.
(c) The Department agrees that, if and when the funds described in paragraph (a) of this
Section are available, the Department will authorize the Grantee to draw up to $500,000
against the TSEP funding appropriated for the Grantee's Project by the 6 I st Legislature. In
drawing against the reserved amount, the Grantee will follow the instructions supplied by
the Department.
(d) The Department agrees to reimburse the Grantee as set forth in this Section for
successfully completing the activities set forth in Section 6 SCOPE OF WORK as eligible
Project costs are incurred on or after execution of this Contract, supported by adequate
documentation submitted by the Grantee, and upon approval by the Department of the
Grantee's Request for Payment.
(e) The Department will not reimburse the Grantee for any expenses not included in the
budget (Attachment B) or an approved adjustment thereto, or for any expenses not clearly
and adequately supported by the Grantee's records.
(f) The reimbursement of eligible Project costs incurred is contingent upon the Grantee's
completion of Section 9 PROJECT START-UP REQUIREMENTS.
(g) As further set forth in Section 24 TERMINATION OF CONTRACT, if the Grantee fails to
or is unable to comply with any of the terms and conditions of this Contract, any costs
incurred will be the Grantee's sole responsibility.
5
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
(h) The Grantee may, at its discretion, incur eligible costs in furtherance of the Project before
the Department has issued a "Notice to Proceed," which notifies the Grantee that TSEP
funding is available. In no event will any expenses incurred prior to May 6, 2009 be
reimbursed; however, if the Grantee fails to or is unable to comply with the terms and
conditions of this Contract, any costs incurred before the "Notice to Proceed" is issued will
be the Grantee's sole responsibility.
(i) If, after the Notice to Proceed has been issued, the Grantee changes one of its sources of
funding, or if the cost of the Project increases after the Grantee has obtained the firm
commitment of non-TSEP funds, requiring additional funding from existing or new sources,
the Department may, at its discretion, withdraw the "Notice to Proceed," thereby
suspending distribution of TSEP funds until the Grantee obtains a firm commitment of funds
for the full Project budget.
(j) The Grantee understands and acknowledges that the Department reports to the
Legislature on the status of all projects that have not received conditional project closeout
as of the date of the opening of the next regular biennial legislative session. At that time, if
the Department determines that the Grantee has failed to commence or complete its
Project in a timely manner, the Department may, at its sole discretion, recommend to the
Legislature that any remaining Project funds should be re-allocated to other TSEP projects.
(k) Unless otherwise stated herein, the Department is allowed 15 working days to process a
Request for Payment once adequate supporting documentation has been received by the
Department. The Grantee may be required to provide banking information at the time
of Contract execution in order to facilitate electronic funds transfer payments.
(I) The Department will withhold two percent (2%) of the total authorized grant amount until
all tasks outlined in Section 6 SCOPE OF WORK are completed and approved and a
project completion report is submitted and approved. Within 90 days after the Certificate
of Substantial Completion is issued by the project engineer, the Grantee will prepare and
submit to the Department a Project Completion Report in the form prescribed by the
Department. The Department will disburse this withholding upon receipt and approval of
the Grantee's Project Completion Report. Prior to receipt of the Project Completion
Report, the Department liaison may authorize release of part or all of the withholding
when situations occur that would result in an undue financial hardship on the Grantee, as
determined at the sole discretion of the Department, taking into consideration whether the
Grantee has demonstrated effective overall management of the Project. If the Grantee fails
to submit a Project Completion Report within the 90 days, the Department may, at its sole
Treasure State Endowment Program
Montana Department of Commerce
6
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
discretion, recommend to the next biennial Legislature that any remaining Project funds
should be re-allocated to other TSEP projects.
(m) If actual Project expenses are less than projected by the Grantee in the budget (Attachment
B), the Department, at its discretion, may reduce the amount of TSEP grant funds to be
provided to the Grantee under this Contract in proportion to all other project funding
sources. If actual construction bids are less than the estimates included in the budget in
Attachment B, the construction portion of the budget will be automatically adjusted to
reflect the bid price. Any savings resulting therefrom will be added to the amount
budgeted for contingencies under the contingency line item.
(n) If actual Project expenses are lower than the projected expense of the Project as presented
in the Project application, or the Grantee obtains a greater amount of grant funds than
presented in the Project application, the Department may, at its discretion, reduce the
amount of TSEP grant funds to be provided to the Grantee so that the Grantee's projected
average residential user rates do not fall lower than the target rate, as determined by the
Department. The difference between actual Project costs and the original grant award, or
any reduction in the funds provided for any reason, may, at the Department's discretion, be
used to fund additional construction activities not originally proposed in the Grantee's TSEP
Application that are directly related to the Project and will further enhance the overall
system.
(o) If the grant recipient obtains a greater amount of grant funds than was contained in the
treasure state endowment program application, the department may reduce the amount of
the treasure state endowment program grant funds to be provided to ensure that the grant
recipient continues to meet the threshold requirements contained in program guidelines
for receiving the larger treasure state endowment program grant.
Section 9. PROJECT START-UP REQUIREMENTS
The Department will not reimburse the Grantee for any activities provided for by this Contract
until:
(a) The Grantee submits to the Department evidence of the firm commitment of the other
funds required for the completion of the Project within the budget set forth in Attachment
B.
Treasure State Endowment Program
Montana Department of Commerce
7
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
(b) The Grantee submits to the Department and the Department approves an acceptable
Project Management Plan.
(c) The Department confirms that the Grantee:
(i) has established a financial accounting system that conforms to generally accepted
accounting principles (GAAP), and
(ii) is in compliance with the auditing and reporting requirements provided for in
Section 2-7-503, MCA.
(d) The Grantee complies with any special conditions recommended by the Department and
approved by the 6 I st Legislature.
(e) The Department issues a Notice to Proceed.
Section 10. REPORTING REQUIREMENTS
(a) Project Progress Reports. During the term of this Contract, the Grantee will submit
project progress reports to the Department in conjunction with each Request for Payment.
These reports will describe the status of the activities set forth in Section 6 SCOPE OF
WORK, including, at a minimum, the percentage complete, costs incurred, funds remaining,
and projected completion date. The report must also describe any significant problems
encountered in carrying out the Project and the scope of any necessary modifications the
Grantee is requesting in the SCOPE OF WORK, BUDGET, or Project implementation
schedule. The Department, at its discretion, may decline to honor any Request for
Payment if the required quarterly report has not been submitted to or approved by the
Department.
(b) Recovery Funds Reports. If any of TSEP's portion of the Recovery funds are utilized for the
Project, upon the submittal of each Request for Payment, the Grantee must report, at a
minimum, for itself and all contractors, subcontractors and subrecipient entities, the
following information:
(i) The dollar amount of all contractor invoices;
(ii) The supplies delivered and the services performed;
(iii) An assessment of the completion status of the work;
(iv) An estimate of the number of jobs created and the number of jobs retained as a result
of the Recovery funds:
8
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
(I) "Jobs created" means the cumulative new positions created and filled, or
previously existing unfilled positions that are filled, for each project, as a running
total over the life of the project, expressed as "full time equivalent" (FTE),
calculated cumulatively as all hours worked (jobs created cumulative work
hours) divided by the total number of hours in a full time schedule, as defined by
the Grantee.
(2) "Jobs retained" means the cumulative previously existing filled positions that are
saved/retained for each project, as a running total over the life of the project,
expressed as FTE, calculated cumulatively as all hours worked (jobs saved
cumulative work hours) divided by the total number of hours in a full time
schedule, as defined by the Grantee.
(3) The Grantee must report the FTE (job counts should be converted to full-time
equivalents), cumulative work hours, and total number of hours in a full time
schedule, as defined by the Grantee, for both jobs created and retained.
(4) Temporary construction jobs should also be converted to annualized full-time
equivalents. For example, 20 full-time jobs on a three-month project count as 5
full-time equivalent annualized jobs; and
(v) Name and physical location of all contractors, subcontractors, and subrecipient entities
completing any of the activities described in Section 6 SCOPE OF WORK.
(c) Ouarterl~Progress Reports. The Grantee will submit a quarterly progress report meeting
the requirements for a project progress report to the Department within fifteen (I 5) days
of the close of each calendar quarter. Project progress reports submitted at any time
during a quarter, in conjunction with a Request for Payment, will satisfy the quarterly
progress reporting requirement.
(d) Project Completion Report. Upon completion of the Project, the Grantee will submit a
conditional and/or final Project Completion Report to the Department as described in
Chapter I I of the TSEP Project Administration Manual. If any of TSEP's portion of the
Recovery funds are utilized for the Project, ,the Grantee will provide the final Recovery
Funds information for each item set forth in paragraph (b) in this Section.
Section I I. LIAISONS
The contact persons for this Contract are:
For the Department:
Richard Knatterud (or successor)
Treasure State Endowment Program
Montana Department of Commerce
9
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
TSEP Program Specialist, MDOC
301 S. Park Ave.
P.O. Box 200523
Helena, MT 59620-0523
406-84 I -2784
For the Grantee:
Rick Hixon
City Engineer
PO Box 1230
Bozeman, MT 59771- 1230
406-582-2280
Section 12. ACCESS TO AND RETENTION OF RECORDS
The Grantee agrees to provide the Department, Montana Legislative Auditor, or their
authorized agents access to any records necessary to determine contract compliance. (Mont.
Code Ann. § 18- I - 118.) The Grantee agrees to create and retain records supporting the
services rendered or supplies delivered for a period of three (3) years after either the
completion date of the Contract or the conclusion of any claim, litigation, or exception relating
to the Contract taken by the State of Montana or third party, whichever is later. These records
will be kept in the Grantee's offices in Bozeman, Montana.
Section 13. PROJECT MONITORING
(a) The Department or any of its authorized agents may monitor and inspect all phases and
aspects of the Grantee's performance to determine compliance with the SCOPE OF
WORK, the proper use of Recovery funds, and other technical and administrative
requirements of this Contract, including the adequacy of the Grantee's records and
accounts. The Department will advise the Grantee of any specific areas of concern and
provide the Grantee opportunity to propose corrective actions acceptable to the
Department.
(b) Failure by the Grantee to proceed with reasonable promptness to take necessary
corrective actions shall be a default. If the Grantee's corrective actions remain
unacceptable, the Department may terminate this Contract in whole or in part, or
reduce the contract price or award to reflect the reduced value of services received.
Treasure State Endowment Program
Montana Department of Commerce
10
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
Section 14. COMPLIANCE WITH LAWS
(a) The Grantee must, in performance of work under this Contract, fully comply with all
applicable federal, state, or local laws, rules and regulations, including the Montana Human
Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans
with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Any
subletting or subcontracting by the Grantee subjects subcontractors to the same provision.
In accordance with section 49-3-207, MCA, the Grantee agrees that the hiring of persons
to perform the Contract will be made on the basis of merit and qualifications and there will
be no discrimination based upon race, color, religion, creed, political ideas, sex, age, marital
status, physical or mental disability, or national origin by the persons performing the
contract.
(b) The Grantee shall promptly refer to the Department any credible evidence that a principal,
employee, agent, contractor, sub-grantee, subcontractor, or other person has submitted
any false claim or has committed any criminal or civil violation of laws pertaining to fraud,
conflict of interest, bribery, gratuity, or similar misconduct involving funds provided under
this Contract.
Section 15. ACCOUNTING, COST PRINCIPLES, AND AUDITING
(a) The Grantee, in accordance with Section 18-4-31 I, MCA and other authorities, must
maintain for the purposes of this Contract an accounting system of procedures and
practices that conforms to Generally Accepted Accounting Principles (GAAP).
(b) The Department or any other legally authorized governmental entity or their authorized
agents may, at any time during or after the term of this Contract, conduct, in accordance
with Sections 2-7-503, 5- 13-304, and 18- I - 118, MCA and other authorities, audits for the
purposes of ensuring the appropriate administration and expenditure of the monies
provided through this Contract and to ensure the appropriate administration and delivery
of services provided through this Contract.
(c) The Grantee, for purposes of audit and other administrative activities, in accordance with
18- I - 118, MCA and other authorities, must provide and the Department any other legally
authorized governmental entity or their authorized agents access at any time to all of their
respective records, materials and information, including any and all audit reports with
supporting materials and work documents, pertinent to the services provided under this
Contract until the expiration of three (3) years from the completion date of this Contract.
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
The Department and any other legally authorized governmental entity or their authorized
agents may record any information and make copies of any materials necessary for the
conduct of an audit or other necessary administrative activity.
Section I6. AVOIDANCE OF CONFLICT OF INTEREST
(a) The Grantee will comply with sections 2-2- 121, 2-2-201,7-3-4256, 7-3-4367, 7-5-2106, and
7-5-4109, MCA, and 24 C.F.R. Section 84.42, (as applicable) regarding the avoidance of
conflict of interest.
(b) In addition, the Grantee agrees that none of its officers, employees, or agents will solicitor
accept gratuities, favors, or anything of monetary value from contractors, subcontractors,
or potential contractors and subcontractors, who provide or propose to provide services
relating to the project funded under this Contract.
Section 17. PROPERTY MANAGEMENT AND EQUIPMENT
Title to real property or equipment acquired under a grant or subgrant will vest upon acquisition in
the Grantee or subgrantee respectively.
Section 18. OWNERSHIP AND PUBLICATION OF MATERIALS
All reports, information, data, and other materials prepared by the Grantee, or any of its
contractors or subcontractors, in furtherance of this Contract are the property of the Grantee and
the Department, which both have the royalty-free, nonexclusive, and irrevocable right to
reproduce, publish or otherwise use, and to authorize others to use, in whole or part, such
property and any information relating thereto. No material produced in whole or part under this
Contract may be copyrighted or patented in the United States or in any other country without the
prior written approval of the Department and the Grantee.
Section 19. ASSIGNMENT, TRANSFER AND SUBCONTRACTING
The Contractor shall not assign, transfer, or subcontract any portion of this Contract without the
express written consent of the Department. If the Department consents to such assignment,
transfer, or subcontract, the Contractor accepts responsibility for the adherence to the terms of
this Contract by such assignees, transferees, or subcontractors to which it delegates authority to
carry out any portion(s) of this Contract.
12
Treasure State Endowment Program Contract # MT-TSEP-CG- I 0-471
Montana Department of Commerce CITY OF BOZEMAN
Section 20. HOLD HARMLESS AND INDEMNIFICATION
The Grantee agrees to protect, defend, and save the State, its elected and appointed officials,
agents, and employees, while acting within the scope of their duties as such, harmless from and
against all claims, demands, causes of action of any kind or character, including the cost of
defense thereof, arising in favor of the Grantee's employees or third parties on account of bodily
or personal injuries, death, or damage to property arising out of services performed or
omissions of services or in any way resulting from the acts or omissions of the Grantee and/or
its agents, employees, representatives, assigns, subcontractors under the Contract.
Section 21. INSURANCE
(a) General Requirements. Grantee shall maintain and shall assure that its representatives,
assigns, and subcontractors maintain for the duration of the Contract, at their own cost and
expense, primary liability insurance against claims for injuries to persons or damages to
property, including contractual liability, which may arise from or in connection with the
performance of the duties and obligations in the Contract by Grantee, its agents,
employees, representatives, assigns, or subcontractors. This insurance shall cover such
claims as may be caused by any negligent act or omission. The State, its officers, officials,
employees, and volunteers are to be covered as additional insured's for all claims arising
out of the use of grant proceeds provided by the State of Montana.
(b) Primary Insurance. Grantee's insurance coverage shall be primary insurance with respect
to the State of Montana, its elected or appointed officers, officials, employees, or volunteers
and the state's insurance shall not contribute with it.
(c) General Liability Insurance. At its sole cost and expense, the Grantee shall purchase
occurrence coverage with minimum combined single limits of $ I million per occurrence
and $2 million aggregate per year, or as established by statutory Tort limits of $750,000 per
claim and $ I ,500,000 per occurrence as provided by aself-insurance pool insuring counties,
cities, or towns, as authorized under Section 2-9-21 I, MCA.
(d) Professional Liability Insurance. Grantee shall assure that any representatives, assigns, and
subcontractors performing professional services under this Contract purchase occurrence
coverage with combined single limits for each wrongful act of $1,000,000 per occurrence
and $2,000,000 aggregate per year. Note: if "occurrence" coverage is unavailable or cost
prohibitive, the Contractor may provide "claims made" coverage provided the following
conditions are met: (I) the commencement date of the contract must not fall outside the
Treasure State Endowment Program
Montana Department of Commerce
13
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
effective date of insurance coverage and it will be the retroactive date for insurance
coverage in future years; and (2) the claims made policy must have a three (3) year tail for
claims that are made (filed) after the cancellation or expiration date of the policy.
(e) Property Insurance. At its sole cost and expense, the Grantee shall maintain property and
hazard insurance, including course of construction coverage, and earthquake insurance in
areas where there is a shaking level above IOg
(http://rmtd.mt.gov/aboutus/publications/files/NEHRP pdf), for loss or damage for any
building and all related improvements and contents therein on the premises on a
replacement cost basis throughout the term of the contract.
(f) General Provisions. All insurance coverage shall be placed with a carrier licensed to do
business in the State of Montana or by a domiciliary state and with a Best's rating of at least
A-, or by a public entity self-insured program either individually or on a pool basis as
provided by Title 2, MCA. All certificates and endorsements are to be received by the
Department prior to beginning any activity provided for under the Contract. Grantee shall
notify the Department immediately of any material change in insurance coverage, such as
changes in limits, coverage, change in status of policy, etc. The Department reserves the
right to request complete copies of Grantee's insurance policy at any time, including
endorsements.
Section 22. DEBARMENT
The Grantee certifies and agrees to ensure during the term of this Contract that neither it nor its
principals, contractors, subcontractors, or subrecipient entities are debarred, suspended, proposed
for debarment, declared ineligible, or voluntarily excluded from participation in this Contract by
any governmental department or agency. If the Grantee cannot certify this statement, it has
attached a written explanation for review by the Department.
Section 23. CONTRACT AMENDMENT
(a) Except as otherwise set forth herein, this Contract may not be enlarged, modified, or
altered except upon written agreement by all parties to the Contract.
(b) Any amendments to the SCOPE OF WORK and BUDGET for the Project as set forth in
the Grantee's application for TSEP grant assistance, including any written modifications
resulting from the review of the applications by the Department, must be consistent with
Treasure State Endowment Program
Montana Department of Commerce
14
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
the intent and circumstances under which the application was originally ranked by the
Department and approved by the 6 I st Legislature.
(c) The Department of Commerce will consider requests to reduce the scope of a project
under the following circumstances:
(i) When the grant recipient is not able to obtain all of the grants that were proposed
in the original TSEP application to the Department; or
(ii) When projects costs have increased beyond what was proposed in the original
TSEP application to the Department.
(d) Any proposal to reduce the scope of a project will be evaluated by the Department, and
the Department may, in its sole discretion, agree to a reduction in the scope of a project.
The Department must agree in writing to any proposed changes before such changes may
be implemented by the grant recipient. In order for the Department to consider a
reduction in the scope of a project, the grant recipient must demonstrate that all of the
following requirements will be adhered to:
(i) The grant recipient will continue to contribute toward the project the same amount
or more in local funds as what was stated in the application. Local funds include the
proposed use of loans, reserves, in-kind, and any other non-grant sources of funds.
(ii) The grant recipient will continue to provide adollar-for-dollar match to the TSEP
grant, unless a hardship grant was approved, in which case the same proportion of
match will be provided. The TSEP grant will be reduced, if necessary, in order to
maintain the dollar-for-dollar match.
(iii) The revised project to be constructed will be a stand-alone project, which is not
dependent upon further funding, and be fully operable upon completion of the
project.
(iv) After taking into consideration the amount of funds that will be available in the
reduced budget, the revised project will resolve the most serious public health and
safety problems described in the original TSEP application to the Department
before other, less serious, problems are addressed. When appropriate, the grant
recipient will provide the Department with the technical justification for its
Treasure State Endowment Program
Montana Department of Commerce
15
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
proposed revised project, to ensure that the most critical problems will be
resolved.
Section 24. TERMINATION OF CONTRACT
This Contract may only be terminated in whole or in part as follows:
(a) Availability of Funding. This Contract is automatically canceled if federal funds under the
American Recovery and Reinvestment Act of 2009, Public Law I I I -5, are not appropriated
or otherwise made available to support the Contract's commencement or continuation of
performance.
(b) Termination Due to Loss or Reduction of Other Funding. The Department, at its sole
discretion, may terminate or reduce the scope of this Contract if any other funding sources
are eliminated or reduced for any reason. If a termination or modification is so required,
the Department may, if sufficient TSEP funds are available, compensate the Grantee for
eligible services rendered and actual, necessary, and eligible expenses incurred as of the
revised termination date. The Department will notify the Grantee of the effective date of
the termination or modification of this Contract and, if a reduction in funding is required,
will provide the Grantee with a modified Project budget.
(c) Termination Due to Failure to Meet Start-up Requirements.
(i) The Grantee understands that if it has not completed the PROJECT START-UP
REQUIREMENTS set forth in Section 9 by December 31, 2012, the grant will
automatically terminate in accordance with HB I I passed by the 61St Legislature.
(ii) The Grantee further understands that the Department will not borrow any funds
from the Board of Investments to provide grants to the Grantee if it has not met all
PROJECT START-UP REQUIREMENTS set forth in Section 9 by June 30, 201 I, that
the Grantee will lose any guarantee of receiving its authorized grant, and that the
Grantee will be provided funds only if:
(I) it meets all PROJECT START-UP REQUIREMENTS set forth in Section 9 by
December 3 I , 20 12; and
(2) there are interest earnings and other funds appropriated by the 61St
Legislature available that have not been obligated to other authorized
projects.
Treasure State Endowment Program
Montana Department of Commerce
16
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
(d) Termination for Cause with Notice to Cure Requirement. The Department may terminate
this Contract for failure of the Grantee, its contractors, subcontractors, or subrecipient
entities to perform or comply with any of the services, duties, terms, or conditions
contained in this Contract after giving the Contractor written notice of the stated failure.
The written notice will demand performance of the stated failure within a specified period
of time of not less than 30 days. If the demanded performance is not completed within the
specified period, the termination is effective at the end of the specified period.
(e) Effect of Termination. In the event of termination due to the Grantee's, its contractors',
subcontractors', or subrecipient entities' failure to perform or comply with any of the
services, duties, terms, or conditions of this Contract, any costs incurred will be the
responsibility of the Grantee. However, at its sole discretion, the Department may
approve requests by the Grantee for reimbursement of expenses incurred. The
Department's decision to authorize payment of any costs incurred or to recover expended
TSEP funds will be based on a consideration of the extent to which the expenditure of
those funds represented a good faith effort of the Grantee to comply with the any of those
services, duties, terms, or conditions of this Contract, and on whether the failure to comply
with any of those services, duties, terms, or conditions resulted from circumstances beyond
the Grantee's control.
Section 25. DEFAULT
Failure on the part of either party to perform the provisions of the Contract constitutes default.
Default may result in the pursuit of remedies for breach of contract as set forth herein or as
otherwise legally available, including but not limited to damages and specific performance.
Section 26. COMPLIANCE WITH WORKERS' COMPENSATION ACT
Grantees are required to comply with the provisions of the Montana Workers' Compensation Act
while performing work for the State of Montana in accordance with Sections 39-71-40 I , 39-71-405,
and 39-4 I -4 17, MCA. Proof of compliance must be in the form of workers' compensation
insurance, an independent contractor's exemption, or documentation of corporate officer status.
Neither the Grantee nor its employees are employees of the State. This insurance/exemption
must be valid for the entire term of the Contract. Proof of compliance and renewal documents
must be sent to the Department.
Section 27. FORCE MAJEURE
Treasure State Endowment Program
Montana Department of Commerce
17
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
Neither party shall be responsible for failure to fulfill its obligations due to causes beyond its
reasonable control, including without limitation, acts or omissions of government or military
authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances,
riots, wars, terrorist acts, or any other causes, directly or indirectly beyond the reasonable control
of the non-performing party, so long as such party is using its best efforts to remedy such failure or
delays.
Section 28. SEPARABILITY
A declaration by any court, or any other binding legal forum, that any provision of the Contract is
illegal and void shall not affect the legality and enforceability of any other provision of the Contract,
unless the provisions are mutually dependent.
Section 29. NOTICE
All notices required under the provisions of the Contract must be in writing and delivered to the
parties' liaisons identified herein either by first class mail or personal service.
Section 30. NO ARBITRATION
Unless otherwise agreed to in writing or provided for by law, arbitration is not available to the
parties as a method of resolving disputes that would arise under the Contract.
Section 31. REFERENCE TO CONTRACT
The Contract number must appear on all invoices, reports, and correspondence pertaining to the
Contract.
Section 32. NO WAIVER OF BREACH
No failure by the Department to enforce any provisions hereof after any event of breach shall be
deemed a waiver of its rights with regard to that event, or any subsequent event. No express
failure of any event of breach shall be deemed a waiver of any provision hereof. No such failure or
waiver shall be deemed a waiver of the right of the Department to enforce each and all of the
provisions hereof upon any further or other breach on the part of the Grantee.
Section 33. JURISDICTION AND VENUE
Treasure State Endowment Program
Montana Department of Commerce
18
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
This Contract is governed by the laws of Montana. The parties agree that any litigation concerning
this Contract must be brought in the First Judicial District in and for the County of Lewis and
Clark, State of Montana, and each party shall pay its own costs and attorney fees.
Section 34. INTEGRATION
The Contract contains the entire agreement between the parties, and no statements, promises, or
inducements of any kind made by either party, or the agents of either party, not contained herein
or in a properly executed amendment hereto are valid or binding.
IN WITNESS OF THE TERMS SET OUT ABOVE, the parties hereto have caused this
Contract to be executed.
(CITY of BOZEMAN~
Kaaren Jacobson, Mayor Date
ATTEST-:
~ ~ ~..
APPROVED S TO FORM:
Re~rl-ir~re; City Attorney
MONTANA DEPARTMENT OF COMMERCE:
~~ zJ~Y
Q.~, n P,,.k, -- ~S a~ o
Anthony J. Preite, Director
Montana Department of Commerce
Treasure State Endowment Program
Montana Department of Commerce
19
Date
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
ATTACHMENT A
BOZEMAN WASTEWATER SYSTEM IMPROVEMENTS
QUARTERLY PROJECT IMPLEMENATION SCHEDULE
QU ARTERS 20 09 QU ARTERS 20 10 QU ARTERS 20 1 I
I 2 3 4 I 2 3 4 I 2 3 4
TASK
PROJECT STARTUP
Attend Grant Admin WS X
Sign TSEP Contract X
Prepare Mgmt. Plan X
Establish Proj. Files X
Submit Sig. & Dep. Forms X
Submit Budgetary Resolution X
PROJECT DESIGN
Advertise & Select Engineer 2007
Begin Final Design 2008
Complete Proj. Design 2008
Submit Plans 2008
Prepare Bid Documents 2008
Finalize Acquisition 2008
ADVERTISE CONST. BID
Review Contract Req'ments 2008
Public Bid Advertisement 2008
Open Bids & Examine 2008
Request Debarment Review 2008
Select Contractor & Award 2008
Conduct Precon. Conf. 2008
Issue NTP to Contractor 2008
PROD. CONSTRUCTION
Begin Construction X X X X X X X X X X X X
Monitor Engr. & Contractor X X X X X X X X X X X X
Conduct Labor Comp. Revs. X X X X X X X X X X X X
Hold Progress Mtgs. X X X X X X X X X X X X
Final Inspection X
PROJECT CLOSEOUT
Submit Final Drawdown X
Determine Audit Rgmts. X
Project Completion Report X
Submit Conditional Certif. X
Submit Final Certification X
Treasure State Endowment Program
Montana Department of Commerce
20
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN
ATTACHMENT B
BUDGET FORM for MONTANA PUBLIC FACILITY PROJECTS
City of Bozeman Date: April 2008
SRF LOAN STAG TSEP CITY TOTAL
ADMINISTRATION:
PERSONNEL COSTS $76,000 $76,000
OFFICE COSTS $ 12,000 $ 12,000
PROFESSIONAL SERVICES $ 16,000 $ 16,000
LEGAL COSTS $3,000 $3,000
AUDIT FEES $ 12,000 $ 12,000
TRAVEL & TRAINING $3,000 $3,000
LOAN ORIGINATION FEES $O $O
LOAN RESERVES $1,373,000 $0 $1,373,000
INTERIM INTEREST $O $O
BOND COUNSEL $ 12,000 $ 12,000
TOTAL ADMINISTRATION $1,373,000 $134,000 $1,507,000
CONSTRUCTION
RELATED ACTIVITIES:
LAND ACQUISITION $O $O
PRELIMINARY ENGINEERING $ 123,000 $ 123,000
ENGINEERING DESIGN $3,674,000 $3,674,000
CONSTRUCTION
ENGINEERING /INSPECTION $2,603,000 $2,603,000
CONSTRUCTION $ 17,700,000 $500,000 $750,000 $2 I , 128,000 $40,078,000
CONTINGENCY $5,730,000 $5,730,000
TOTAL CONSTRUCTION
ACTIVITY
$ 17,700,000 $500,000 $750,000 $33,258,000 $52,208,000
TOTAL PROJECT
BUDGET $ 19,073,000 $500,000 $750,000 $33,392,000 $53,7 15,000
Treasure State Endowment Program
Montana Department of Commerce
21
Contract # MT-TSEP-CG- I 0-471
CITY OF BOZEMAN