HomeMy WebLinkAbout13- State of Montana Department of Transportation and the City Construction Agreement CITY
CONSTRUCTION AGREEMENT
THIS AGREEMENT is made and entered into by and between the State of Montana,
acting by and through its Department of Transportation, hereinafter called the State, and
the City of Bozeman, a Montana City, hereinafter called the City.
WITNESSETH THAT:
THE PURPOSE OF THIS AGREEMENT IS TO SET FORTH THE RESPONSIBILITIES
AND DUTIES OF THE STATE AND THE CITY WITH RESPECT TO A FEDERAL AID
HIGHWAY AND ADJACENT PEDESTRIAN FACILITIES PROJECT WITHIN THE
CITY OF Bozeman, MONTANA.
I. WHEREAS, the State proposes to construct and/or reconstruct a certain highway
AND ADJACENT PEDESTRIAN FACILITIES (SIDEWALKS) in and through the City,
the construction being known as Federal Aid, Project No. STPP 50-2(68)$8, also known
as MAIN ST-19ra/GRAND AVE-BOZEMAN
and
WHEREAS, the construction will be over and upon Route N-50 in the City of
Bozeman, beginning at approximately RP 88,2 and extending easterly approximately
0.9 mi to RP 89.1 and
WHEREAS, the State desires to receive Federal funds to construct the highway,
and
WHEREAS, in accordance with the State's agreement with the Federal Highway
Administration (FHWA) of the U. S. Department of Transportation, the State must
ensure that certain requirements are met in order for the State to fulfill its obligations to
the FHWA and for the project to be eligible for federal funds. Accordingly, the State
includes federal requirements, which are among those hereinafter set forth, for this
project, and the City agrees to them, and
WHEREAS, this document must be duly executed and on record with the State
and FHWA before the work contemplated can be awarded to contract, and
WHEREAS, the City hereby concurs in the designation of the highway which was
designated under Section 60-2-110, MCA, and
WHEREAS, the City desires to have the construction done, the City deeming it to
be a valuable and beneficial consideration,
If. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
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AT STATE EXPENSE, THE STATE AGREES TO DESIGN THE PROJECT, LET IT TO
CONTRACT AND ADMINISTER THE CONTRACT FOR CONSTRUCTION AND WILL
PERFORM ALL THE REMAINING FUNCTIONS AND DUTIES AND
RESPONSIBILITIES SET FORTH HEREIN IN EXCHANGE FOR WHICH THE CITY
AGREES THAT UPON COMPLETION OF THE PROJECT, DEEMING THE
CONSTRUCTION A GOOD AND VALUABLE CONSIDERATION, IT WILL PERFORM
ALL OF THE FUNCTIONS AND DUTIES AND RESPONSIBILITIES SET FORTH IN
THIS AGREEMENT. THE DUTIES AND RESPONSIBILITIES OF EACH PARTY TO
THIS AGREEMENT ARE LIMITED TO THE PROJECT AREA AS SHOWN IN 'THE
APPROVED PLANS.
(A) The City agrees to conform in all regards to Chapter 8 of Title 61, MCA,
and will not take any action, by enacting an ordinance or otherwise, in contradiction of
the traffic laws in Chapter 8 of Title 61, MCA, with specific reference, but not limited to,
the following matters:
(1) Installing any signs, signals, or markings not in conformance with
the Standards approved by the FHWA pursuant to 23 USC 109(d).
(2) Establishing a speed limit less than twenty--five (25) miles per hour
in any urban district on the highway.
(3) Establishing a speed limit of less than thirty-five (35) miles per hour
outside an urban district on the highway. The City will modify or alter such established
speed limits on the highway after a traffic and engineering investigation is made at the
request of the State.
(4) Erecting any markings, sign, signal or traffic control device that will
give preference to local routes which intersect with the highway and no sign, signal or
traffic control device will be erected or constructed, nor shall the establishment or
modification of any speed zone, parking regulation or traffic marking which will affect
traffic on the highway be made without express written permission of the State, and
then only after proper traffic and engineering study indicates that such markings, sign,
signal or traffic control device is required.
(5) Erecting any fighting on the highway without express written
permission of the State, and then only after proper traffic and engineering study
indicates that such lighting devices are required. The plans for such lighting installation
shall be approved by the State before erection.
(6) Not requiring the stopping of all traffic at all intersecting streets,
alleys and driveways before entering the highway. Where the City considers that such
traffic control creates a hazardous situation, it will request a traffic and engineering
study by the State. The State, after the study, may authorize express written.
modifications in the traffic control devices as may be in the public interest from a safety
and convenience standpoint.
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(7) Prohibiting parallel parking on the highway; and
(8) Allowing stopping, standing or parking of a vehicle in a place
prohibited by §61-8-354, MCA.
(9) For lighting projects inside of incorporated municipalities, the cost
of operation and maintenance of the lighting shall be paid by the State; however, where
an existing lighting district, which is paid for by a city, town or special improvement
district, is replaced or upgraded, the city, town or special improvement district shall
continue paying the amount of the previous payments toward the cost of operation and
maintenance of the new or revised lighting system. If and when the cost of energy or
maintenance is raised by the utility company, the city, town or special improvement
district shall pay their proportionate share of the rate increase.
(B) The State, after a traffic and engineering investigation of any speed zone,
parking regulation or traffic control device, may require the City to modify or remove
such existing speed zone, parking regulation or traffic control device upon the highway.
(C) In addition to the specific signs, signals and traffic control devices which
may be shown on the plans, further restrictions as to parking, stopping and speed limits
are set forth in the attached drawing labeled "Exhibit A," that exhibit being part of this
agreement.
(D) The State will retain the authority and responsibility for issuing approach
and encroachment permits onto, upon or over right-of-way of the highway by anyone.
(E) Should the City incorporate beyond the present City limits, and such newly
annexed area include portions of this Federal Aid Project not now within the City limits,
then this agreement, by reference herein, will also apply to the newly annexed area,
(F) The City has reviewed and approved the plans.
(G) The City will continue to enforce the ordinances, laws and/or regulations
necessary and essential for the operation of the improvements as planned.
(H) All signs required to enforce City ordinances shall be maintained by the
City,
(1) Sidewalk Maintenance.
(1) Upon completion of and in consideration for the project, and at no
additional cost to the State, the City agrees to assume full responsibility for and control
of maintenance of the sidewalks bordering the project, except that the department is
responsible for the maintenance of sidewalks and pedestrian/bike facilities on bridges,
overpasses and related facillities. Specifically, the City will maintain or cause to be
maintained the sidewalks adjacent to both sides of Main Street. The City may, in its
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discretion, enforce state laws and its local ordinances, if any, to recover all costs
associated with its sidewalk maintenance activities from persons or entities who own
property adjacent to the sidewalks and/or who receive the benefit of the maintenance
performed.
(a) For purposes of this agreement, "Maintenance " means:
removal of and/or surface repair of any obstacles or impediment to the safe and efficient
use of the sidewalk by pedestrians, including removal of snow and ice, repair of
chipped, fractured, or broken walk or curb from any cause including but not limited to
frost, landscaping (tree roots), or permitted encroachments,
(b) The City has the authority and responsibility to issue
encroachment permits to private parties to allow for the placement or installation of
encroachments on the sidewalk within the right of way according to the terms and
conditions established by the City by ordinance or rule subject only to insuring that any
permit issued does not in any way interfere with the use of the vehicle travel lanes nor
with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the
responsibility is the authority and duty to remove any unpermitted encroachment.
(c) The City may by ordinance or resolution establish parking
rules and regulations, including installation of metered parking.
(d) The City may by ordinance or regulation impose landscaping
and/or sidewalk construction responsibilities on property owners whose property abuts
the state facility provided that any new sidewalk construction completed under the City
authority on the highway right of way meets or exceeds the specifications and standards
of the department including compliance with any state or federal handicapped access
laws and regulations.
(e) For purposes of this agreement, "Maintenance" does not
mean repair or replacement of any sidewalk segment six feet or more in continuous
length which cannot be repaired without complete removal and replacement of the
existing walk and subsurface base. Upon notice that a segment of sidewalk must be
replaced, the department will take whatever steps necessary to complete the
replacement within 120 days, (weather permitting), subject only to the temporary fix
referred to in: 1(2) below.
(f) In the event of a disagreement as to whether a sidewalk
segment can be repaired or must be replaced, the parties agree that the issue will be
resolved by agreement by the City Director of Public Service or his designee and the
Department Maintenance Administrator or his designee. If necessary the Department
and Director and the City Manager may be asked to resolve the issue.
(2) The parties agree that they have a joint and mutual interest to build
and maintain the sidewalks in a safe manner. To that end there is a joint responsibility
to inspect the sidewalks on a periodic basis, at least annually to discover any potential
sections that require repair or replacement. Regardless of who identifies an area of
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potential harm, they shall immediately notify the other party to the agreement and shall
jointly take whatever steps necessary to warn the users of the walk until such time as
repair or replacement can be completed. In the event replacement is deemed
necessary, temporary repairs may be performed until such time as reconstruction can
be programmed and completed. In the event replacement or reconstruction is required,
the department shall use any eligible state or federal funding to perform the work and
upon completion notify the City after which the City once again is responsible for future
maintenance.
(3) City agrees that the maintenance responsibility is in effect until the
sidewalks are reconstructed as provided in paragraph (e), unless otherwise agreed to
by the parties.
(4) If at any time, the City believes that the useful life of any of these
sidewalks has come to an end - i.e., that complete reconstruction of these sidewalks is
the most reasonable economic alternative - it shall promptly notify the State in writing of
its determination and the engineering basis therefor. Upon receipt of the written notice,
the State shall respond in writing within thirty (30) calendar days to the City's
determination that complete reconstruction is the most reasonable economic alternative
for continued maintenance or repair of a sidewalk. If, after notification, the State agrees
that reconstruction of all of the sidewalk is the most reasonable economic alternative,
the City's duty to maintain the sidewalk shall terminate. If, after notification, the State
disagrees that reconstruction is the most reasonable economic alternative, the State
may, within an additional thirty (30) calendar days, obtain another opinion from an
independent engineer at State expense. If that engineer determines that reconstruction
is the most reasonable economic alternative, the City's duty to maintain the sidewalks
shall terminate until the reconstruction is completed or as otherwise agreed to by the
parties. In the event of a disagreement as to whether complete reconstruction is the
most reasonable economic alternative for continued maintenance or repair of a sidewalk
the parties agree that the issue will be resolved by agreement by the City Director of
Public Service or his designee and the Department Maintenance Administrator or his
designee. If necessary, the Department and Director and City Manager may be asked to
resolve the issue.
(5) If, during its inspections, the City encounters a condition on the
sidewalk that it believes is caused by a design or construction defect or by the negligent
act or omission of a State agent or employee, the City will immediately notify the State
of the existence and location of the defect and provide the State with a detailed
explanation of the engineering basis for its belief that the condition is caused by a
design or construction defect or the negligent act or omission of a State agent or
employee.
(6) The State agrees to protect, indemnify, defend and save harmless
the City against and from all claims, liabilities, demands, causes of action, judgments,
and losses (including costs and attorney's fees incurred by the City in the defense
thereof) to them arising in favor of or asserted by any person or entity on account of
personal injury, death or damage to property arising solely out of, or in connection with,
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a defect in the State's design or construction of the project (including, but not limited to,
a defect in the State's construction or design of the sidewalks bordering the project as
described above) or from the negligent or intentional act of department employees that
in any way interfere with or damage the maintenance work of the City.
The City agrees to protect, indemnify, defend and save harmless the State and
Department of Transportation against and from all claims, liabilities, demands, causes
of action, judgments, and losses (including costs and attorney's fees incurred by the
State in the defense thereof) to them arising in favor of or asserted by any person or
entity (including, but not limited to, the City) on account of personal injury, death or
damage to property arising, in whole or in part, out of, or in connection with, the
maintenance of the subject sidewalks.
(7) This section does not supersede, discharge, or extinguish any prior
agreement between the parties, nor will any future agreement between the parties
supersede, discharge, or extinguish this agreement, unless by specific reference and in
clear terms.
(J) The City will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
Ill. DURING THE PERFORMANCE OF THIS AGREEMENT, THE CITY, FOR
ITSELF, ITS ASSIGNEES AND SUCCESSORS IN INTEREST, AGREES AS
FOLLOWS:
A) Compliance With Title VI Of The Civil Rights Act Of 1964 For Federal-Aid
Contracts
(1) Compliance with Regulations: The City shall comply with all
Regulations relative to nondiscrimination in Federally-assisted programs of the
Department of Transportation, 49 Code of Federal Regulations, Part 21, as they may be
amended (hereafter referred to as the Regulations), which are incorporated by
reference and made a part of this Agreement, even if only state funding is here
involved,
(2) Nondiscrimination: The City, with regard to the work performed by
it during the Agreement, shall not discriminate on the grounds of sex, race, color, or
national origin in the selection and retention of subcontractors, including procurement of
materials and leases of equipment. The City shall not participate either directly or
indirectly in the discrimination prohibited by 49 CFR §21.5.
(3) Solicitations for Subcontracts, Including Procurements of Materials
and Equipment: In all solicitations, whether by competitive bidding or negotiation by the
City for work to be performed under a subcontract, including procurements of materials
or leases of equipment, any potential subcontractor or supplier shall be notified by the
City of the City's obligations under this Agreement and the Regulations relative to
nondiscrimination.
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(4) Information and Reports: City will provide all reports and
information required by the Regulations, or directives issued pursuant thereto, and
permit access to its books, records, accounts, other sources of information and its
facilities as may be determined by Department or the Federal Highway Administration
(FHWA) to be pertinent to ascertain compliance with Regulations or directives. Where
any information required of the City is in the exclusive possession of another who fails
or refuses to furnish this information, the City shall so certify to the Department or the
FHWA as requested, setting forth what efforts it has made to obtain the information.
(5) Sanctions for Noncompliance. In the event of the City's
noncompliance with the nondiscrimination provisions of this Agreement, Department
may impose sanctions as it or the FHWA determines appropriate, including, but not
limited to,
(a) withholding payments to the City under the Agreement until
the City complies, and/or
(b) cancellation, termination or suspension of the Agreement, in
whole or in part.
(6) Incorporation of Provisions: City will include the provisions
of paragraphs (1) through (6) in every subcontract, including procurement of materials
and leases of equipment, unless exempt by the Regulations or directives issued
pursuant thereto. City will take such action with respect to any subcontract or
procurement as the Department or the FHWA may direct to enforce such provisions
including sanctions for noncompliance: Provided, however, that in the event City is sued
or is threatened with litigation by a subcontractor or supplier as a result of such
direction, the City may request the Department to enter into the litigation to protect the
interests of the State, and, in addition, the City or the State may request the United
States to enter into such litigation to protect the interests of the United States.
B) Compliance With The Montana Governmental Code Of Fair Practices,
§49-3-207, MCA
In accordance with §49-3-207, MCA, City agrees that for this Agreement all hiring
will be made on the basis of merit and qualifications and that there will be no
discrimination on the basis of race, color, religion, creed, political ideas, sex, age,
marital status, physical or mental disability, or national origin by the persons performing
the Agreement.
C) Compliance With Americans With Disabilities Act (ADA)
(1) City will comply with all regulations relative to implementation of the
Americans With Disabilities Act.
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(2) City will incorporate or communicate the intent of the following
statement in all publications, announcements, video recordings, course offerings or
other program outputs: "City will provide reasonable accommodations for any known
disability that may interfere with a person in participating in any service, program or
activity offered by the City. In the case of documents, recordings or verbal
presentations, alternative accessible formats will be provided. For further information
call the City."
(3) All video recordings produced and created under contract and/or
agreement will be closed-captioned.
D) Compliance With Participation By Disadvantaged Business Enterprises In
Department Of Transportation Financial Assistance Programs, 49 CFR PART 26
Each Agreement the Department signs with a City (and each subcontract the
prime contractor signs with a subcontractor) must include the following assurance:
"The City, subrecipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The City shall
carry out applicable requirements of 49 CFR Part 26 in the award and administration of
DOT-assisted contracts. Failure by the City 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.
MDT and the CITY agree not to discriminate in the fulfillment of this agreement on
the basis of race, color, religion, creed, sex, age, marital status, national origin or
actual or perceived sexual orientation, gender identity or disability. Both parties
agree this requirement shall apply to the hiring and treatment of employees,
contractors, and sub-contractors
THE PARTIES UNDERSTAND AND AGREE THAT THE FAILURE OF EITHER
PARTY TO PERFORM THE DUTIES AND RESPONSIBILITIES SET FORTH IN THIS
AGREEMENT MAY BE DEEMED A MATERIAL BREACH OF THE CONTRACT FOR
WHICH ANY AVAILABLE REMEDY PROVIDED BY LAW MAY BE ASSERTED IN
THE DISTRICT COURT. IN ANY LEGAL PROCEEDING TO ENFORCE ANY
PROVISION OF THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS AND
ATTORNEY'S FEES.
IN WITNESS WHEREOF, the Department's authorized representative has signed on
behalf of the State of Montana, and the Clerk of the City of Bozeman, on behalf of the
City, has signed and affixed hereto the seal of the City.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
By ? e r 32013
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Administrator- Engineering Division
By
Appiovedlor Legal Content
ATTEST: a C a CITY OF 'BOZEMAN
By � I nM " M NFw� kh y Y� � , B � � °/fir✓�✓
by I rk
APPR V AS TO FORM:
a ,
By
„ City Attorney
I, City Clerk of the City of Bozeman, hereby certify that this
agreement was regularly adopted by the City Commission at a meeting held on the
day of W 2013; and that the City Commission authorized
the City Manager to sign this agreement on behalf of the City.
Cij6 Irk
EXHIBIT A"
0
N
MID-BLOCK CROSSWALK
VINDICATES NO PARKING..
STOPPING,OR STANDING
ZONES.
V 20'ON THE APPROACH
TO A CROSSWALK.
ryri ��O r x 30`ON THE APPROACH TO
-� A STOP SIGN OR SIGNALIZED
$ INTERSECTIOM,
vs cv CROSSWALK
(MARKED OR UNMARKED)
I SIDEWALK
21._ 0 �E _ I 20 V
I I
30,* I
I
SIDEWALK L
,,
i
a
d FIRE HYDRANT
ak
in
-L
NO PARKING ZONES
As Defined by
MONTANA VEHICLE CODE
Prepared by Department of Transportation
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