Loading...
HomeMy WebLinkAbout11- TSEP Preliminary Engineering Grant for storm water system study from MT. Dept. of Commerce MONTANA DEPARTMENT OF COMMERCE TREASURE STATE ENDOWMENT PROGRAM CONTRACT#MT-TSEP-PE-12-683 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 1. PURPOSE The purpose of this Contract is to provide funding to the Grantee for infrastructure planning activities approved by the Department under the Treasure State Endowment Program (hereinafter "TSEP") authorized by HB 3S I, passed by the 62nd Legislature and signed into law by Governor Schweitzer on May 12, 2011, (Chapter 389, Laws 2011), Section 2. AUTHORITY The Contract is issued under the authority of Title 90, Chapter 6, Part 7 of the Montana Code Annotated;Administrative Rules of Montana, Title 8, Chapter 94, Subchapter 38; and the terms of Chapter 389, Laws 2011. Section 3. APPLICATION INCORPORATED BY REFERENCE The Grantee's application for TSEP assistance, including any written modifications resulting from the review of the application by the Department (collectively, the "Project"), is specifically incorporated into this Contract by this reference and the representations made therein are binding upon the Grantee. Section 4. ACCEPTANCE OF PROGRAM REQUIREMENTS (a) The Grantee will comply with all applicable local, state, and federal laws, regulations, ordinances, and resolutions, as now in effect or as may be amended during the term of this Contract, and all administrative directives and procedures that may be established by the Page I of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman Department for the Program, including the TSEP Project Administration Manual (latest edition). (b) The Grantee agrees that all contracts and subcontracts entered into for the completion of the activities described in Section 6 SCOPE OF WORK will require such contractors, subcontractors, and subrecipient entities to also comply with all applicable local,state, and federal laws, regulations,administrative directives, procedures, ordinances, resolutions, and all applicable design standards, including the TSEP Project Administration Manual (latest edition). (c) The Grantee expressly agrees to repay to the Department any funds advanced under this Contract that the Grantee, or 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 TSEP, or any applicable local, state, or federal requirements. (d) The Grantee acknowledges and agrees that neither the funding of the Project under this Contract nor any review of the final deliverables by the Department constitutes the Department's approval or endorsement of the contents of such, and that such funding and/or review will have no influence on the Department's ranking of a subsequent application from the Grantee for a TSEP infrastructure project grant. Section S. EFFECTIVE DATE AND TIME OF PERFORMANCE (a) This Contract shall take effect upon execution by the parties and will terminate upon approval of Grantee's final Request for Reimbursement by the Department, unless terminated earlier in accordance with the terms of this Contract. (b) All authorized expenses must be incurred by the Grantee between May 12, 2011 and December 1, 2012. All requests for reimbursement must be submitted to the Department within 60 days of final Project close-out. (c) The Grantee will procure an engineer within six (6) months of the execution of this Contract or the Contract will terminate, unless the Department determines, in its sole Page 2 of 15 Treasure State Endowment Program Contract#t`MT-TSEP-PE-I2-683 Montana Department of Commerce City of Bozeman discretion, that Grantee has demonstrated substantial progress towards procuring an engineer. (d) The Department may grant a Contract extension upon request by the Grantee if the Department determines, in its sole discretion, that the Grantee has demonstrated progress toward completion of the Project; has engaged in a good faith effort to comply with the duties, terms, and conditions of this Contract, and that the failure to comply with any of those services, duties, terms, or conditions resulted from circumstances beyond the Grantee's control. A written request for an extension must be submitted at least 30 days prior to the termination date of the Contract. Section 6. SCOPE OF WORK The Grantee will complete the Project and administer this Contract, using TSEP Grant funds for the following components of the Project: • Preliminary Engineering Report that meets the requirements and follows the format of the most recent edition of the Uniform PER Outline, to study the storm system; and • the administration of this Contract. Section 7, BUDGET (a) The total amount to be awarded to the Grantee under this Contract will not exceed $15,000. The Project budget is set forth in Exhibit A. (b) The Grantee has estimated that the project will cost$30,000 and Grantee will contribute a minimum of$15,000 towards the cost of the project. (c) For budget adjustments of $5,000 or less between line items of the Treasure State Endowment Program (TSEP) portion of Exhibit A, Department approval of the Request for Reimbursement form will constitute approval of the budget adjustment. The Grantee shall describe the rationale for a budget adjustment and note the adjustments in the Requestfor Reimbursement submitted to the Department. Budget adjustments in excess of $5,000 between any line item of Exhibit A must be approved in advance by the Department. Page 3 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman (d) Any authorized funds under this grant not obligated on or before December I, 2012 will revert to the Department and be used, at the Department's discretion,to fund other TSEP grants. Section 8. METHOD OF REIMBURSEMENT (a) The Department will use funds appropriated in HB 351 to fund infrastructure planning awards to eligible entities that have received a Notice of Award letter from the Department. The Grantee acknowledges that its access to such funds is subject to their availability. (b) The Department agrees that, if and when the funds described in paragraph (a) of this Section are available, and 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 Exhibit A, the Department will authorize the Grantee to request reimbursement from funding awarded for the Grantee's Project by the Department. (c) The Department agrees to reimburse the Grantee as set forth in this Section for successfully completing the activities set forth in Section b SCOPE OF WORK, as eligible Project costs are incurred on or after May 12, 2011, supported by adequate documentation submitted by the Grantee, and upon the Department's approval of the Grantee's Request for Reimbursement. In requesting reimbursement,the Grantee will follow the instructions supplied by the Department. (d) Payment to the Grantee for approved Project activities under the Contract will generally be in accordance with the disbursement schedule listed below: (i) Payment #1 — 50% of the grant award amount will be available after the Department receives of a draft of the Project deliverables, documenting that the Grantee is adequately proceeding toward the preparation of a complete and acceptable final product; and (ii) Payment#2--The remaining 50% of the grant award amount will be available after the Department receives a final copy of all required deliverables to be completed under the Contract, a Project Completion Report, and Grantee's final Request for Reimbursement. Page 4 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman (e) The Department will not reimburse the Grantee for any costs incurred prior to May 12, 2011 or after December I, 2012; for any expenses not included in Exhibit A or an approved adjustment thereto; for any ineligible expenses as set forth in the TSEP Administration Manual; or for any expenses not clearly and adequately supported by the Contractor's records. (f) As further set forth in Section 22 TERMINATION OF CONTRACT, if the Grantee fails to or is unable to comply with the terms and conditions of this Contract, any costs incurred will be the Grantee's sole responsibility. (g) The Department is allowed 30 working days to process a Request for Reimbursement once adequate supporting documentation has been received by the Department. The Grantee shall provide banking information at the time of Contract execution in order to facilitate electronic funds transfer payments. (h) If actual Project expenses are less than projected in the budget (Exhibit A), the Department, at its sole discretion, may reduce the amount of TSEP grant funds to be provided to the Grantee accordingly. (i) At the request of the Department, Requests for Reimbursement for contracted or subcontracted services must attach appropriate documentation demonstrating compliance with contract requirements. (j) The Grantee may not use monies provided through this Contract as payment for Project costs that are reimbursed from other sources. (k) If the Department determines that the Grantee has failed to satisfactorily carry out its responsibilities under this Contract or has breached the terms of this Contract, the Department may withhold reimbursement to the Grantee until such time as the Department and the Grantee agree on a plan to remedy the deficiency. (1) The Department may allow the Grantee to amend the Project SCOPE OF WORK if the Department determines, in its sole discretion, that the Grantee is not likely to expend all grant funds by December 1, 2012; has demonstrated progress toward completion of the Project; has engaged in a good faith effort to comply with the duties,terms,and conditions Page 5 of 15 Treasure State Endowment Program Contract##MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman of this Contract, and that the failure to comply with any of those services, duties,terms, or conditions resulted from circumstances beyond the Grantee's control. A written request for an amendment to the SCOPE OF WORK must be submitted at least 60 days prior to the termination date of the Contract. Section 9. 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 Reimbursement. These reports will describe the status of the activities set forth in Section 6 SCOPE OF WORK, including, at a minimum, the percentage completed, costs incurred, funds remaining, and projected completion date. The report must also provide documentation supporting each claim for expenses to be reimbursed, describe any significant problems encountered in carrying out the Project and the scope of any necessary modifications the Grantee is requesting in the Project scope of work, budget, or implementation schedule. The Department, at its sole discretion, may decline to honor any Request for Reimbursement if the required project progress report has not been submitted to or approved by the Department. (b) Project Completion Report. Upon completion of the final Project deliverables,the Grantee will submit a final Project Completion Report for approval by the Department. The Project Completion Reports will describe the total costs incurred for the Project, identify the final completion date, and summarize any significant problems encountered in carrying out the Project. Within 30 days of approving the Project Completion Report,the Department will issue the Notice of Project Close-out. Section 10. LIAISONS All project management and coordination on behalf of the Department shall be through a single point of contact designated as the Department's liaison. Grantee shall designate a liaison that will provide the single point of contact for management and coordination of Grantee's work.All work performed pursuant to this contract shall be coordinated between the Department's liaison and the Grantee's liaison. The liaisons for this Contract are; Page 6 of I5 Treasure State Endowment Program Contract#MT-TSEP-PE-I2-683 Montana Department of Commerce City of Bozeman For the Department: Richard Knatterud, Division Engineer (or successor) Treasure State Endowment Program, MDOC 301 S. Park Ave. P.O. Box 200523 Helena, MT 59620-0523 406-841-2784 For the Grantee: Dustin Johnson, Professional Engineer (or successor) City of Bozeman P.O. Box 1230 Bozeman, MT 59771-1230 406-582-2288 Section 11. ACCESS TO AND RETENTION OF RECORDS (a) The Grantee agrees to create and retain records supporting the services covered by this Contract, including but not limited to financial records, supporting documents, and such other records as are required by law or other authority, 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. (b) The Grantee shall provide the Department, Montana Legislative Auditor, or their authorized agents access to any records necessary to determine contract compliance. Section 12. PROJECT MONITORING 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 TSEP funds, and other technical and administrative requirements of this Contract, including the adequacy of Grantee's records and accounts. The Department will advise the Grantee of any Page 7 of 15 Treasure State E=ndowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman specific areas of concern and provide the Grantee opportunity to propose corrective actions acceptable to the Department. Section 13. COMPLIANCE WITH NON-DISCRIMINATION LAWS 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. Section 14. ACCOUNTING, COST PRINCIPLES, AND AUDITING (a) The Grantee, in accordance with Sections 2-7-503 and 18-4-311 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 Montana statutes and other authorities, audits for the purposes of ensuring the appropriate administration, expenditure of monies, and delivery of services provided through this Contract. Section 15. 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 any other applicable local, state, or federal law regarding the avoidance of conflict of interest. (b) The Grantee agrees that none of its officers, employees, or agents will solicit or accept gratuities, favors, or anything of monetary value from contractors, subcontractors, or Page 8 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman potential contractors and subcontractors, who provide or propose to provide services relating to the project funded under this Contract. (c) 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 16. 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 17. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING (a) The Grantee may subcontract any portion of this Contract to accomplish the completion of the Project. However, Grantee accepts responsibility for the adherence to the terms of this Contract by such contractors, subcontractors, or subrecipient entities and by any public or private agents or agencies to which it delegates authority to carry out any portion(s) of this Contract. The Grantee shall not otherwise assignor transfer any portion of this Contract without the express written consent of the Department. (b) The Grantee's assignment,transfer, or subcontract of this Contract or any portion thereof neither makes the Department a party to that agreement nor creates any right, claim, or interest in favor of any party to that agreement against the Department. No contractual relationships exist between any subcontractor,assignee, or transferee and the Department. (c) The Grantee must immediately notify the Department of any litigation concerning any assignment, transfer, or subcontract of this Contract or any portion thereof. Page 9 of IS Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman Section 18. 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 this Contract. Section 19. INSURANCE (a) General Requirements. Grantee shall maintain and assure that its representatives, assigns, and subcontractors maintain for the duration of the Contract, at their own cost and expense, liability insurance against claims for injuries to persons or damages to property 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) General Liability Insurance. At its sole cost and expense, the Grantee shall purchase occurrence coverage with minimum combined single limits of $1 million per occurrence and $2 million aggregate per year, or as established by statutory Tort limits of$750,000 per claim and $1,500,000 per occurrence as provided by a self-insurance pool insuring counties, cities, or towns, as authorized under Section 2-9-211, MCA. (c) Professional Liability Insurance. Grantee shall assure that any representative, assign, and subcontractor 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 to cover such claims as may be caused by any act, omission, negligence of such representative, assignee, or subcontractor. Note: if "occurrence" coverage is unavailable or cost prohibitive, the representative, assignee, or subcontractor may provide"claims made" coverage provided the following conditions are met: (1)the commencement date of the contract must not fall outside the effective date of Page 10 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman 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. (d) 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 20. 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. Section 21. CONTRACT AMENDMENT Except as otherwise set forth herein, this Contract may not be enlarged, modified, amended, or altered except upon written agreement signed by all parties to the Contract. Section 22. TERMINATION OF CONTRACT This Contract may only be terminated in whole or in part as follows: (a) Termination Due to Loss or Reduction of Fundin . The Department, at its sole discretion, may terminate or reduce the scope of this Contract if available funding sources are eliminated or reduced for any reason. If a termination or modification is so required, the Department may, if sufficient 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 Page I I of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman termination or modification of this Contract and, if a reduction in funding is required, will provide the Grantee with a modified Project budget. (b) 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 must demand performance of the stated failure within a specified period of time of not less than thirty (30) days. If the demanded performance is not completed within the specified period, the termination is effective at the end of the specified period. (c) Effect of Termination. In the event of termination due to the Grantee's, or 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 perform or comply with 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 23. 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 24. 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 39-7I-401, 39-71-405, and 39-41-417, 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 insurancelexemption Page 12 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman must be valid for the entire term of the Contract. Proof of compliance and renewal documents must be sent to the Department. Section 25. FORCE MAJEURE 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 26. 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 27. 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 28. 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 29. REFERENCE TO CONTRACT The Contract number must appear on all invoices, reports, and correspondence pertaining to the Contract. Section 30. 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 Page 13 of 15 Treasure State Endowment Program Contract#MT-TSEP-PP-12-683 Montana Department of Commerce City of Bozeman 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 31. JURISDICTION AND VENUE 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 32. INTEGRATION This 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: Ley-' i Z j Jeff Krauss, May Ur Date ATTEST: aurae Clark Treasurer APPROVED AS TO FORM: 4Gre uliivan, City of Bozeman, Attorney 777 ENT OF COMMERCE tz tct l Kel A. Casillas, 6ilistrator Date Community Development Division Page 14 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE-12-683 Montana Department of Commerce City of Bozeman Exhibit A Project Budget #MT-TSEP-PE-12-683 City of Bozeman Proposed Budget: SOURCE: SOURCE: TOTAL TSEP Grant Local Match Engineering $1 5,000 $ 1 5,000 $30,000 Services Page 15 of 15 Treasure State Endowment Program Contract#MT-TSEP-PE.-12-683 Montana Department of Commerce City of Bozeman