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HomeMy WebLinkAbout1996-04-08 96-185 ORDERCOUNCH. ACTION Date: 06-08-1996 It mNo.:96- 8�5J 1teMSubjee: Authorizing City Manager to Execute Agreement whh MDOT Regarding Pedestrlan/Ricycle Facility- STP- 617KOOYM 6179.00 Responsible Department: Engineering Commentary'. The matched Order authorizes execution of an Agreement with MDOT which would allow the City to design and centrum a mufti -use pedestrianibicycle facility in the Bangor MaWStilluater Ave./Hogam Road area. This was requested through BACTS and requires a 2W6 local match, which would be funded wide the Capital Budget. Design will likely commence tts year with construction in 199]. lanarMen(Nead Mavage's Comments: CYrvManaeer A9amels\ed Iflforma6tinv:� Budget Approval: e-er. &4P 7Pao a Finame lNnuor Izgm Approval: an to Introduced For ❑ Passage ❑ First Reeding ❑ Referral Page of Ir I 96-185 Aoignedto CounNor lyley April 8, 1996 CITY OF BANGOR (TITLE.) Order, Authorizing City Manager to Execute_ Agreement with MD0TRegerNig9 PedestrlamMicycle Facility - STP - 6109(W)/PM 6119.00 BY the Caq Ummusil o(Qe City 0/Banpn: ORDERFDr TMT the City Manager is hereby authorized and directed to execute an agreement with the 'Maine Department of Transportation for the design and construction of a muni -use pechabiav@icycle way in the Bangor Mall Area - Federal Aid Project No. STP - 6179(00)iPIN 6179.00. A copy of the Agremrem is attached. IR CITY COUNCIL' April 8, 19k6 Passed F CITY CL 96-185 ORDER litl , Authorizing City BAnager to Execute Agreement with MOT Regarding Pedestrian/Bicycle Facility - STP Wfv(udjlssei'6ii4:dd... ...................................... ` 6- ...... Aaugnedw ....... � �CowcilmAn - W1 AGREEMENT BETWEEN THE STATE OF MAINE DEPARTMENT OF TRANSPORTATION AND THE CITY OF BANGOR REGARDING PROPOSED BANGOR MALL AREA PEDESTRIAN/BICYCLE FAC BANGOR MULTI -USE BRIE AND PEDESTRIAN WAY FEDERAL AID PROJECT NO. STP-6179(00)MN 6179.00 This AGREEMENT is entered into on this day of 1996 by and between the STATE OF MAINE DEPARTMENT OF TRANSPORTATION (hereafter DEPARTMENT) and the CITY OF BANGOR, a body corporate and politic located in the County of Penobscot (hereafter CITY) regarding ted development, design and construction of a multi -use bicycle and pedestrian pathway system as heretofore proposed along Stillwater Avenue and Hogan Road in the vicinity of the Reaper Mall in Roper (hereafter project) as follows: I. PROJECT DEVELOPMENT A. The CITY shall submit an acceptable line item budget to the DEPARTMENT for approval which contains an itemization of project costs as directed by the DEPARTMENT. Once such a budget is approved, expenditures may exceed any single cost category or budget line item amount by up to ten (10%) percent without modification provided that the total of all such expenditures dues not exceed dw mw amount allowable for the project as hereinafter provided under Paragraph M.1 below. B. The CITY shall not perform or authorize any services or work under this Agreement without first receiving the express approval to do so in writing from the DEPARTMENT. 1. Such approval shall be contingcnt upon the DEPARTMENT receiving authorization from the Federal Highway Administration (hereafter FH WA) for federal participation in me project costs hereinbefore described under Paragraph A above. The DEPARTMENT shall. amt unreasonably withhold such approval. 2. All costs incurred by the CITY prior to receiving such approval from the DEPARTMENT shall be ineligible for federal participation real therefore not reimburseable by the - DEPARTMENT under the provisions of Article 11. 96 -les PIN 6179.00 Form Ed. 3/1/96 Page 2 of Il Pages C. The CITY shall develop and prepare all of the necessary design plans, specifications, estimates, bid documents and contracts for me project as directed by the DEPARTMENT in accordance with the DEPARTMENT's current standards and procedures for [Neral -aid projects. The CITY shall submit all such plars, specifications, estimates, documents and contracts to du: DEPARTMENT mr review and approval. 1. Ali design features shall conform m AASHTO standards or equivalent. 2. All plans shall adhere m the DEPARTMENT's utility accommodation policy as set forth in its "Policy On Above Ground Utility I.acatkdv' as revised November 1987. D. The CITY shall develop and prepare all environmental studies and reports necessary for the Project as directed by the DEPARTMENT. All such studies and reports shall he submitted to the DEPARTMENT from time to time for review, comment add acceptance. E. The DEPARTMENT shall prepare and submit to FHWA for concurrence all environmental documentation required for the project under the provisions of the National Environmental Polity Act (NEPA). F. The CITY shall obtain all permits necessary to construct the project. G. The CITY shall provide for adequate public participation as directed by the DEPARTMENT during the development of the project. H. The CITY shall acquire and fordim all right of way necessary to construct and maintain the project. 1. All such right of way shall be acquired in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended by the United States Congress in 1987, museum to the provisions set forth under 49 CFR Pan U. 2. All such right of way shall be acquired prior to advertising for bids and shall be held inviolate from all encroachments. The CITY shall certify to the DEPARTMENT that a0 such right of way has been acquired Prior to being allowed In advertise for bids as hereinafter provided under Paragraph I below. 3. The CITY shall furmsh to the DEPARTMENT a right of way map or similar plan prepared in accordance with the DEPARTMENT's specifratiovs detailing all right of way so acquired for the project. 1. Upon approval by the DEPARTMENT, the CITY shall advertise and award a contract to construct the project as directed by the DEPARTMENT. 1. Both the CITY and the DEPARTMENT shall have the right to accept or reject any and all bids received as a result of such advertisement. 96-185 PIN 6179.00 Form Ed. 3/1/96 Puge 3 of 11 Pages 2. The CITY shall non award ami contract to construct the project without the express approval of the DEPARTMENT. 3. The construction coathsnt shall prescribe that the project shall be constructed in accordance with the plans and specifications approved by the DEPARTMENT act in compliance with the DEPARTMENT'S current Standard Specifications for Highways and Bridges (hereafter Standard Specifications). 4. Prior to the beginning of construction, the CITY shall arrange for a preconstruction steering to coordinate the construction of the project with the DEPARTMENT, any and all contractors, utilities and any other parties directly involved in Ne construction of the project. S. Traffic throughout all work areas of the project shall be controlled in accordance with the Provisions of Part VI of the Manual on Uviform Traffic Control Devices for Streets and Highways. 6. Any work involving force account procedures shall require the express approval of the DEPARTMENT prior to doing so. I. The CITY shall provide all of the necessary supervision, inspection and documentation to ensure that the project is completed satisfactorily and constructed in accordance with the provisions and specifications of the construction counsel. 1. The CITY shall provide a Poll -time qualified employe to be in responsible charge of the project. 2. The CITY shall use procedures acceptable to the DEPARTMENT m document the quantity and quality of all weak performed under "a Agreement in an accurate and uniform manner. All such documentation including all source documents used as the basis of payment for such weak shall become a counter of record coal released as bereinafter provided uMer Article III, Paragraph A. 3. The CITY shall provide all testing as directed by the DEPARTMENT. 4. Upon completion of the project, the CITY shall provide a compliance certification that the project was cumuucted, quantities measured and documented, and materials tested in attendances with the specification requiremerus of the construction contract as well as fie policies and procedures approved by the DEPARTMENT. PIN 6179.00 96-185 Form Ed. 3/1/96 Page 4 of 11 Pages K. The DEPARTMENT may inspect construction activities and all documentation perminivg thereto at any time during ted period of combustion and shay teat any of she materials used therein to ensure compliance with the provisions and specifications of the construction contract. The DEPARTMENT may reject any work or =Wrists not m such compliance. Upon completion of construction, the DEPARTMENT may inspect the project to determine the acceptability thereof prior to paying any final claim for reimbursement of project costs as hereinafter provided under Article H, Paragraph C.2. L. Upon completion of contraction, the CITY shall provide the DEPARTMENT with a sin of reproducible as -built plans of the project on mylar or equivalent archival quality material acceptable to the DEPARTMENT suitable for permanent filing. M. The CITY shall make no changes in the project, except as hereiunder provided, without the express wriven approval of the DEPARTMENT. 1. An approved change shall be required in increase the cost of the project whenever expenditures are expected to exceN any approved single cost category or budget line item annum by ren (10%) percent or whenever the total of all participating project costs as hereinafter defined under Ankle H, Paragraph A is expected to exceed the sum of Two Hundred Thirty -Five Thousand ($235,000) Dollars. In on event stall the total of all such participating project costs exceed the sum of Two Hundred Thirty -Five ThousaM ($235,000) Dollars without the express written approval of the DEPARTMENT. 2. Approved changes shall also be required to revise, modify or change de scope or objectives of the project or any of this cost sharing or reimbursement provisions set fort herein, on extend or shorten the parent of this Agreement or to contract out or otherwise obtain the services of a third party to perform any of the services incidental b the project, except as otherwise approved or provided for berem. N. The CITY shall assure that all work unnertaken pursuant to this Agreement conforms to au applicable federal and State laws, Specific federal laws and regulations covering such work anx com o med under Title 23 in the United States Code (hereafter US(Z) for applicable summary mw and 23 CFR for applicable administrative law. General administrative requirements relative m federally funded activities are also contained under 49 CFR Par[ 18 entitled "Uviform Administrative Requ'mementa for Grants and Cooperative Agreements to State and Local Governments". Allowability for participating costs is contained in the Executive Office of Oe President of Ne United States' Office of Management and Budget (hereafter OMB) Circular A-87 entitled 'Cost Principles for State and Local Governments". 0. The CITY shall develop and implement a maimenvee plan acceptable to the DEPARTMENT which assures an appropriate level of maintenance necessary in maintain the improvements maintained under the project in order to preserve the use art function thereof as inserted by the project. 96-185 PIN 6179.110 Form Ed. 3/1/96 Page 5 of 11 Pages D. COST SHARING & REIMBURSEMENT PROCEDURES A. A portion of the cos(to develop, design and construct the project (hereafter project costs) shall be provided by the DEPARTMENT using federal funds administered by FHWA under the Provisions of the ImermWal Surface Transportation Efficiency Act I STEA) of 1991. Federal funds (hereafter federal share) shall be provided at the one of eighty (80%) percent of all project costs deemed eligible for fderal participation (hereafter participating project costs) in accordance with all applicable federal laws and regulations as hereinbefore referenced under Article I, Paragraph N above. B. The CITY shall be responsible for At of the non-federal or matching share of all participating project costs. The CITY shall also be responsible for all project costs deemed ineligible for federal participation, including those as hereinbefore provided under Article I, Paragraph B.2 above and as hereinafter provided under Paragraph C.5 below, unless otherwise agreed to in writing as hereinbefore provided under Article I, Paragraph M.2 above. C. The DEPARTMENT shall reimburse the CITY for all of the federal share of all participating project costs hereinbefore described under paragraph A above as follows: 1. The CITY shall bill the DEPARTMENT an less than monthly for all claims for all allowable direct and actual project costs incurtd under the provisions of this Agreement. Costs are incurred whenever work is perform, gods and services are received or a cash disburs ada nt is made. All claims for such costs shall be submitted on the CITY's billhead or invoice and be bemiud in at least the same detail as itemized in the approved project budget. Each claim so submitted shall include an accumulative total for all casts incurred by cost category or budget line item. Each claim shall also include a certification from a qualified employee in responsible charge of the project that all amounts so claimed for reimbursement are correct, due add not claim previously and that At work for which such reimbursement is being claimed was Performed in accordance with the terms of this Agreement or any specific contract applicable Neuro approved by Ne DEPARTMENT under the terms of this Agreement. 2. In Ne event that less than One Thousand ($IWO) Milan in such reimburseable costs are incurred in any one month Period or regularly scheduled billing period of at least one month duration, the CITY shall defer any such claim therefor unfit the next month or regularly scheduled billing Period in which at least One Thousand ($1000) Dollars in such reimburseable costs have been incurred or =it the last or final claim is submitted for uimbarsemem. Payment of any such that claim may be subject to a final inspection of the Project by the DEPARTMENT to determine the acceptability thereof as hereinbefore Provided under Article I, Paragraph K. 3. The DEPARTMENT shall deduct all of the CITY's share of such costs as beremuffore described under Paragraph B above prior to making nary such reimbursement. The CITY shall show such Anne on all bills so submitted. 96-185 PW 6179.00 Form Ed. 3/1/96 Page 6 of 11 Pages 4. Tice DEPARTMENT small reimburse the CITY for all participating project costs after deducting the CITY's share of such costs as hereinbefore provided under subparagraph 3 above will fifty (50%) percent of all such costs have been reimbursed, following which, five (5%) percent of all subsequent reimbursements shall be withheld and retained by the DEPARTMENT until all work undenaisn by flue CITY pursuant to this Agreement is completed satisfactorily. a. All of that porton of such reimbursement so retained shall be withheld and retained by the DEPARTMENT to the extent and in the same manner set fond under the provisions of 23 M.R.S.A. Section 52A. b. Upon satisfactory completion of all work undertaken by the CITY unsound to this Agreement, the DEPARTMENT may release a portion of such rembursemeut so retained. The remaining balance of such reimbursemva so retained shall be withheld and remord until such time as all things required of the CITY under this Agreement are received, completed or accomplished to the satisfaction of the DEPARTMENT. The DEPARTMENT, at its option, may retain temporarily or pemauendy, from time to time, any portion of such remaining balance which it deems equitable. 5. In the event that the CITY withdraws from the project, suspends or delays work on the project or takes some other actiom including any act of commission or omission, without concurrence of the DEPARTMENT which results in the loss of federal participation N any of the reimbursable costs as provided bream, the CITY shall be responsible for all of the federal share of such costs and, if necessary, shall refund to the DEPARTMENT all of the federal share of any reimbursements received which subsequently become ineligible for federal participation. ID. RECORD RETENTION, ACCBSS REQUDtEMENTS & AUDIT A. The CITY shall maintain all project records for a period of three (3) years from the date of the last or final submission of claim for reimbursement for project costs in accordance with the provisions of 49 CFR 18.42(6), except as ohhmwise provided under subparagraph I below. 1. in the event that any litigation, claim, negotiation, audit or other action involving such records has begun prior to to exp ration of such period, than all records shall be retainni unfit all action and resolution of all issues arising therefrom are complete if such action or resolution extends beyond the tone year period hereinbefore described. 2. The CITY shall assure that in accordance with the provisions of 49 CFR 18.42(e), the DEPARTMENT and FHWA, and if necessary, the Comptroller Geoerel of the United States, or any of their authorized representatives, shalt have full access at any and all reasonable times to all records of the project for all purposes necessary to make audits, examinations, excerpts or transcripts. B. The CITY shall assure But all applicable audit requirements are met in accurdanee with the provisions of OMB Circular A-128. PIN 6179.00 96-185 Form EA. 3/1/96 Page 7 of 11 Pages W. GENERAL PROVISIONS A. INDEPENDENT CAPACITY. The CITY, its employees, agents, representatives, consultants or contractors, shall m performance of the work under this Agreement am in an independent capacity from and not as officers, employees or agents of the DEPARTMENT. B. CONTRACT ADMINISTRATOR. Following execution of this Agreement, the DEPARTMENT shall assign a Project Leader to act as the Contract Adminlstrator on behalf of the DEPARTMENT during the development of the project under this Agreement. As the DEPARTMENT's representative, the Contract Administrator shall have authority to stop the work if necessary to ensure proper execution thereof in accordance with terms of this Agreement. All bills or invoices for Payment, progress reports, claims, correspondence and all project related submissions from the CITY sball be sem directly to the Contract Administrator. C. EQUAL EMPLOYMENT OPPORTUNITY 1. During the performance of any work undertaken pursuant to this Agreement, the CITY shall not discriminate againd any employee or applicant for employment relating specifically to any work under this Agreement because of race, color, religious creed, sex, national origin, ancestry, age or physical handicap unless related to a bonafide occupational qualification. The CITY shall take affirmative action to-crame that all such applicants are employed and all such employees me treated during any Period of employment under this Agreement without regard to their race, color, religion, a", age or national origin. Such action shall include, but not be necessarily limited to: employment, upgrading, demotions, counters, recruitment or advertising for recruitment, layoffs or termiemons, mass of pay or other fonds of compensation and selection for all forms of Mining and apprenticeships. The CITY shall prominently post in conspicuous places readily available to all employees and applicants for such employment hemnder, ounces selling forth the provisions of this paragraph. 2. In all solicitations or advertising for employees placed by or on behalf of the CITY relating specifically to any work undertaken pursuant to this Agreement, the CITY shat some that all qualified applicants sluil receive consideration for employment without regard to race, color, religious creed, sex, national origin, ancestry, age or physical handicap. 3. The CITY shall send m each labor union or representative of any of its employees covered by a collective bargaining agreement or any other contract or understanding under which any labor, work or services are to be founded towards the project under the terms of this Agreement, a notice advising all such labor unions or representatives of the CITY's commionem under this Article and shall prominently post copies of such notice in conspicuous places readily available to all such employees and applicants for employment. 96-185 PIN 6179.00 Fo rn Ed. 3/1/96 Page 8 of 11 Pages 4. The CITY shall cause all of the foregoing equal employment opportunity ity provisions under these paragraphs to be included in any contracts for services or work undertaken parsuam W this Agreement in such a mamwr that such provisions shall be binding upon each consultant or contractor except that the foregoing provisions shall not apply to any contracts for purchasing or famishing standard commercial supplies or raw materials. To the maximum extent feasible, the CITY or any such consultant or contractor shall list all suitable employment openings with the Maim lob Service under the Maim Department of Labor's Bureau of Employment Security. This provision shall net apply to employment openings which the CITY or any such consultant or contractor proposes TO fill Within its own organization. The listing of such openings with the Maine lob Service shall involve only the normal obligation which pertain thereto. D. LIABILITY. Any amount paid out by the DEPARTMENT arising out of or from any errors, omissions or failures on the part of the CITY to meet professional standards of consnactiom engineering and inspection shall be recovered from the CITY by reductions in any reimbursements due it under the terms of this Agreement or by any other legal means. The DEPARTMENT shall promptly notify the CITY if airy potential claim arises under the provisions of this Article. The CITY shall be affonled full opportunity for a defense against any such claim. If it is subsequently del maned thatany such rMmtion in any reimbursement due the CITY by the DEPARTMENT was either arbitrary, capricious or fraudulent, than any amount so reduced shall be paid promptly. E. FAMILIARITY WITH LAWS AND INDEMNIFICATION. The CITY is mooned to be familiar with and at all does shall observe and comply with all federal and Score laws as hereinbefore prescribed and all local laws, ordinances and regulations which in any manor affect the services or work undertaken by the CITY or any of its consultants or contractors pursuant to this Agreement. The CITY shall indemnify and bold harralm the DEPARTMENT and its officers, agents and employees from any ant all claims, suits, actions, damages and costs of every kind or nature arising out of or from any negligent, intentional, makclous or criminal act, error or omission occurring as the result of any performance or mnperNrmaace of the work umdettaken by the CITY pursuant to this Agreement It is expressly agreed and understood by the parties harem that neither the DEPARTMENT nor the CITY hereby waive any immunities or rights they may have under the Maim Tort Claims Act. F. INSURANCE. The CITY shall require any and all consultants, contractors or subeontra fors performing airy of the services or work undertaken pummot to this Agreement to be insured in accordance with the provisions set forth under Section 103.08 of the DEPARTMENT's Standard Specifications. G. OWNERSHIP. All plans, reports, acres, papers or other tangible work produced by or on behalf of the CITY under Ne terms of this Agreement shall be tie property of the DEPARTMENT and shall be turned over to the DEPARTMENT upon request following completion or tourmaline of the project. The CITY shall be allowed an interest therein commensurate with its share of the project cost. 96-185 PIN 6179.00 Fewer Ed. 3/1/% Page 9 of 1l Pages H. SUBLETTING, ASSIGNMENT OR TRANSFER. The CITY shall not sublet, sell, transfer, assign or otherwise dispose of this Agreement or any ponied thereof or any right, title or interest therein without the express written consent of the DEPARTMENT. No contact, agreement or counter of this Agreement shall in any case release or relieve the CITY from any liability under this Agreement. 1. INTERPRETATION AND PERFORMANCE. This Agreement shall be governed by the laws of the State of Maine as m its interpretation and performance. J. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties bereto relative to all mattes of the project and neither party shall be bound by any statement, correspondence, agreement or representation made previous hereto which is not expressly contained herein. K. TERMINATION The DEPARTMENT may postpone, suspend, abandon or otherwise terminate this Agreement upon written nice to the CITY and in no event shall any such action be deemed a breach of contract. In the event that the reason for termination is other than for any failure by the CITY, the DEPARTMENT shall give the CITY a written thirty (30) day notice of termination. Postponement, suspension, abandonment or termimtion may be taken for any reason by the DEPARTMENT or specifically as the result of arty failure by the CITY or any contractor thereunder to perform any of the services required under this Agreement to the satisfaction of the DEPARTMENT. Upon receipt of written notification from the DEPARTMENT that this Agmernent is to be postponed, suspended, abandoned or terminated for any of the foregoing reasons, the CITY or any contractor thereunder shall immediately cease all work or services subject an such tenmiation, except any work required to protect public health and safety, and shall assemble all material that has been prepared, developed, famished, purchased or obtained under the terms of this Agreement and represent or run over the control of the same to the DEPARTMENT within thirty (30) days following the effective date of such termination. Such mmetld shall include all documents, plans, computations, drawings, notes, records, and correspondence and all construction materials in place or purchased for the project pursuant or this Agreement. Upon receipt of such material, the DEPARTMENT shall reimburse or arrange a settlement with the CITY in one of the following masers: a. If the postponement, suspension, abandonment or termination is for airy reason other than that set forth under subparagraph b below, the CITY shall be reimbursed for all work or services accomplished up until the dam of such termination. b. If the pstponcment, suspension, abandonment or termination is the result of any failure by the CITY or any contactor thareander m correct ay unsatisfactory performance after receiving fifteen (15) days written notice from the DEPARTMENT selling forth the basis of such dissatisfaction, the MY's rehdbursement shall be limited to payment for acceptable work or services accomplished up and the date of such lamination. 96-185 PIN 6179.00 Form Ed. 3/1/96 Page 10 of 11 Pages 2. The CITY may accept the DEPARTMENT's evaluation of the work performed as bereinbefore provided or submit to arbitration as hereinafter provided under Paragraph L below. In any event, me DEPARTMENT shall not coreider airy former reimbursement of any kind or suture pending the outcome of my such arbitration. L. ARBITRATION 1. Any and all claims, disputes or matters in question arising out of or relating in this Agreement or any breach thereof, which cannot be disposed of by named agreement of the parties hereto, may be submitted to arbitration conducted and governed by the rules of the Amemom Arbitration Association applicable to the coamvction industry in effect at the fine of me execution of this Agreement. The provisions of this Article shall be specifically enforceable under the prevailing arbitration law. 2. Should a demand for arbitration be submitted by either petty to this Agreement, both parties shall have full right of discovery to all books, documents or other tangible things to the extent pemutred by the Maine Rules of Civil Procedures, V. TERMS OF AGREEMENT A. All of the provisions set forth under Ankles I and B shall expire upon saisfactory completion of the terve so form therein or three (3) years from the dam bered, whichever occurs fust, unless otherwise terminated scone or extended later by virtue of any oma provisions set forth elsewhere in this Agreement. B. All of the provisions set forth under Ankles BI and IV, except Article IV, Paragraph E, shall expire upon satisfactory completion of me terms set form author Article IB unless otherwise terminated sooner or exceeded later by virtue of any other provisions set fords elsewhere in this Agro nem. C. The prevision act form under Article IV, Paragraph E shall remain in bill force and effect indefietitely or until nominated, modified or amended in writing by the patties hereto or by any operation of law. PIN 61]9.0 Form Ed. 3/11% Page Il of 11 Pages VI. APPROVAL 96-185 This Agreement bas been approved and sign in duplicate by the parties below and becomes effective on Ne day and date fust above written. STATE OF MAINE DEPARTMENT OF TRANSPORTATION CITY OF BANGOR BY: Witness Edward A. Barrett City Manager