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HomeMy WebLinkAbout1994-09-26 94-423 ORDERDate September 26, 1994 Item No. 94-423 Authorizing the City Manager to Execute Municipal/State Item/Subjasc Agreements with MOT for Street Rehabilitation and Heavy Resurfacing Projects on State Street and Ha®oM Street Responsible papmtmmT Engineering Commentary: This Council Order authorizes the City Manger to execute routine Municipal/State Agreements regarding heavy resurfacing projects o a portion of State Street and Outer fle®ond Street. These standard Agreements include a provision for 15% local share of projects coats and define Municipal and State responsibilities that pertain to the projects. These two projects have been developed by the City with approval from MOT, and have been advertised for bid under one contract. A conclusion Council Order is included in the agenda for award of bid for construction. Attached are copies of the Municipal/State Agreement for the projects. l k� partnuw(Hev6 Mareger's Comments: • Caa Her _ Associated! Information: - - -- Budget Approve: of d ->��e pircttor Legal Approval: EL cay sM Introduced For CP Passage _ ❑ First Reading Page_of ❑Referral _ 94-423 designed to Counedor Stone September 26, 1994 CITY OF BANGOR (TITLE.) @T$CTa Authorizing. the city Ma ger to loc t n nicipel/state Agreements with MOT for Street Rehabilitation and Heavy Resurfacing Projects on State Street and RBmmond Street BY the City Caused! of W CUM of9eapor ORDERED, TMT the City Reneger, on behalf of the City of Bangor is hereby authorized and directed to execute Municipal/State Agreements with the State of Haine Department of Transportation for street rehabili- tation and heavy resurfacing projects on State Street (MOT PIN 5846.00) and Remand Street MOT PIN 5849.00). IN CITY COUNCIL 94-423R D E R 4 423RUER September 26: 1994 Pa O PaseedTitle, / 1�Authorizing lCithety Manager CO Execute UR� municipal/stateAgreements with MEICTfor Street tr Rehabilitation and Heavy Resurfacing Projects an Sae enL *Xa®ond 69[tee1 ........ ...................................... Aeugned ro r'R Councilman PY21-1994 07:1rfln Fain lO 99 5 9 , P.02 - 94-423 AGREEMENT BETWEEN THE STATE OF MAINE DEPARTMENT OF TRANSPORTATION AND THE CITY OF BANGOR REGARDING PROPOSED RESURFACING OF STATE STREET/U.S. ROUTE 2 FEDERAL AID PROJECT M. STP-1401-5846(00)/PIN 5846.00 This AOREENENT is entered into on this day of 1994 by and between the STATE OF MAINE DEPARTMENT OF TRANSPORTATION (hereafter DEPARTNENT) and the CITY OF BANOOR, a body Corporate and Politic, located in the County of Penobscot (hereafter CITY) regarding the proposed resurfacing of State Street/U.S. Route 2 in Bangor from Forest Avenue to Broadway (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. B. .The CITY snail not perform or authorize any services or work under this Agreement without first r ceiving the express approval to do so in writing from the DEPARTMENT. I. Such approval shall be contingent upon the DEEMTHAHN receiving authorisation from the Federal Highway Administration (hereafter MR) for federal participation in the project costa hereinbefore described under Paragraph A above. The DEPARTMENT shall not unreasonably withhold such approval. 2. All coats incurred by the CITY prior to receiving such Approval from the DEPARTMENT shall be ineligible for federal participation and therefore not reinburseable by the DEPARTMENT under the provisions of Article 11. C. The CITY shall develop and prepare all of the necessary design plans, specifications, estimates, bid documents And contracts for the project as directed by the DSPARTMENT in ecordance with the DEEARTNENT's current standards and procedures for federal -aid projects. The CITY shall submit All such plans, specifications, estimates, documents and contracts to the DEPARTMENT for review and approval. 1. All design features shall conform to AASHTD standards or equivalent. 94-423 Form Ed. 9/21/94 Page 2 of 11 Pages 2. All plans shall adhere to the DEPARTMENT's utility accommodation policy as set forth in its "Policy On Above Ground Utility Locations" 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 be submitted to the DEPARTMENT from time to time for review, comment and acceptance. E. The DEPARTMENT shall prepare and submit to PEVA for concurrence all environmental documentation required for the project under Che provisions of the National Environmental Policy 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 furnish all right of way necessary to construct and maintain the project. 1. All such right of way shall be acquired in accordance with Me Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended by the United States Congress in 1987, pursuant to the provisions set forth under 49 CER Part 24- 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 Met all such right of way has been acquired prior to being allowed to advertise for bids or begin any construction activities as hereinafter provided under Paragraph I below. 3. Me CITY shall furnish to the DEPARTMENT a right of way map or similar plan prepared in accordance with the DEPARTMENY's specifications detailing all right of way so acquired for the project. I. Upon approval by the DEPARTMENT, the CITY shall advertise and award C contract to construct the project as directed by Me 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. 94-423 Form Ed. 9/21/94 Page 3 of 11 Pages 2. The CITY shall not award a contract to construct the project without the express approval of the DEPARTMENT. 3. Prior to the beginning of construction, the CITY shall arrange for a preconstruction meeting to coordinate the construction of the project with the DEPARTMENT, any and all contractors, utilities and any other parties directly involved in the construction of the project. 4. The CITY may use force account procedures as approved by the DEPARTMENT to construct any portion of the project. 5. The project shall be constructed in accordance with the approved plane and specifications. All conatructicn shall be in compliance with the DEPARTM M's Standard Specifications for Highways and Bridges as revised October 1990 (hereafter Standard Specifications). S. The DEPARTMENT Shall test the materials to be used in the construction of the project and inspect construction activities as necessary to a compliance with the approved plans and including its Standard Specifications. The DEPARTMENT may reject any materials or work it deems unsatisfactory. 7.. Traffic shall be controlled throughout all work areas of the project in accordance with the provisions Of Part OF of the Manual onUnifosm Iraffic Control Devices for Streets and Highways. 8. No changes shall be made in the project without approval of the DEPARTMENT. J. The CITY shall secure that all work undertaken pursuant to this Agreement conforms to all applicable federal and State laws. Specific federal laws and regulations covering such work are contained under Title 23 in the United States Code (hereafter USC) for applicable statutory law aM 23 CPR for applicable administrative lay. General administrative requirements relative to federally funded activities are also contained under 49 CPR Part 18 entitled "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments". Allowability for participating costs is contained in the Executive Office of the President of the United States' Office of Management and Budget (hereafter OMB) Circular A-87 entitled "Cost Principles for State and Local Governments". II. COST SHARING d REIMBURSEMENT PROCEDURES A. The DEPARTMENT shall be responsible for a portion of the coat to develop, deal= and construct the project (hereafter project costs) as follows: 94-423 Porro Ed. 9/21/94 Page 4 of 11 Pages 1. The Department shall provide federal funds administered by PENA under the provisions of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 (herea£tor federal share) at the rate of eighty and twenty-eight hundredths (60.28%) percent of all project costs deemed eligible for federal participation in accordance with all applicable federal laws and regulations am heraiMefore referenced under Article I, Paragraph J above. 2. The DEPARTMENT shall also provide all of the non-federal or matching share of all project costs remaining ning after deducting the CM's share of such costs as hereinafter provided under Paragraph B below. B. The CITY shall be responsible for fifteen (15%) percent of all project coats, including all costs incurred by the DEPARTMENT to develop, inspect and administer the project. The CITY shall also be responsible for any project costs deemed ineligible for federal participation as hereinbefore provided under Article I, Paragraph B.2 above and as hereinafter provided under Paragraph 0.5 below. C. The DEPARTMENT shall reimburse the CITY for eighty-five (85%) percent of all project costs incurred by it as follows: 1. The CITY shall bill the DEPARTMENT no less than monthly for all claims for all allowable direct and actualproject costs incurred under the provisions of this Agreement. Coats are incurred whenever work is performed, goods and services are received or a cash disbursement is made. All claims for such costs shall be submitted on the CITY's billhead or invoice and be itemized in at least the same detail as itemized in the approved project budget. Each claim so submitted shall include an accumulative total for all costs incurred by cost category or budget line item. 2. In the event that less than One Thousand ($3000). Dollars in such reimburseable coats are incurred in any one month period of regularly scheduled billing period of at least one month duration, the CITY shall defer any such claim therefor until the next month or regularly scheduled billing period in which at least One Thousand ($1000) Dollars in such reimburseable costs have been incurred or until the last or final claim is submitted for reimbursement. 3. The DEPARTMENT shall deduct all of the CITY'a share of such costs as heraiMefore described under Paragraph B above prior to making any such reimbursement. 94-423 Form Ed. 9/21/94 Page 5 of 11 Pages 4. The DEPARTMENT shall reimburse the CITY for all project costa incurred by it after deducting the CITY's share of such costs as hereiMe£ore provided under subparagraph 3 above until fifty (sox) percent of all such costa have been reimbursed, following which, five (5%) percent of all subsequent reimbursements shall be withheld and retained by the DEPARTMENT until all work undertaken by the CITY pursuant to this Agreement is completed satisfactorily. a. All of that portion of such reimbursement so retained shall be withheld and retained by the DEPARTMENT to the extent and in the same manner set forth under the provisions of 23 M.R.S.A. Section 52-A. b. Upon satisfactory completion of all work undertaken by the CITY pursuant to this Agreement, the DEPARTMENT may release up to sixty (60%) percent of such reimbursement so retained. The balance of such reimbursement so retained shall be withheld and retained until such time as all things required of the CITY under this Agreement are received, completed or otherwise satisfied to the satisfaction of the DEPARTMENT. The DEPARTMENT, at its option, may retain temporarily or permanently, from time to time, any portion of such balance which it demo equitable. 5. In the event that the CITY withdraws from the project, suspends or delays work on the project or takes some other action, including any acts of commission or omission, without concurrence of the DEPARTMENT which results in the loss of federal participation in any of the reimbursable coats as provided herein, the CITY shall be responsible for all of the federal share of such coats and, if necessary, shall refund to the DEPARTMENT all of the federal share of any reimbursements received which subsequently become ineligible for federal participation. III. RECORD, RETENTION, ACCESS REQUIREMENTS & 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 coats in accordance with the provisions of 49 CER 18.42(b), except as otherwise provided under subparagraph 1 below. 1. In the event that any litigation, claim, negotiation, audit or other action involving such records has begun prior to the expiration of such period, then all records shall be retained until all action and resolution of all issues arising therefrom are complete if such action or resolution extends beyond the three year period hereiMeivre described. 94-423 Yom Ed. 9/21/94 Page 6 of 11 Pages 2. The CITY shall assure that in accordance with the provisions of 49 CPR 18.42(e), the DEPARTMENT and PUNA, and if necessary, the Comptroller General of the United States, or any of their authorized representatives, shall have full access at any and all reasonable times to all cords of the project for all purposes necessary to make audits, examinations, excerpts or transcripts. B. The CITY shall assure that all applicable audit requirements are met in accordance with the provisions of OMB Circular A-128. IV. GENERAL PROVISIONS A. INDEPENDENT CAPACITY. The CITY, its employees, agents, representatives, consultants or contractors, shall in performance of the work under this Agreement act in an independent capacity from and not as officers, employees or agents of the DEPARTMENT. E. CONTRACT ADMINISIRATOR. Following execution of this Agreement, the DEPARTMENT shall assign a Project Leader to act as the Contract Administrator 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 shall be sent 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 against 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 ensure that all such applicants are employed and all such employees are treated during any Period of employment under this Agreement without regard to their race, color, religion, sex, age or national origin. Such action shall include, but not be necessarily limited to: employment, upgrading, demotions, transfers, recruitment or advertising for recruitment, layoffs or terminations, rates of pay or other forms of compensation and selection for all forma of training and apprenticeships. The CITY shall prominently poet in conspicuous places readily available to all employees and applicants for such employment hereunder, notices setting forth the provisions of this paragraph. 94-423 Form Ed. 9/21/94 Page 7 of 11 Pages 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 shall state that all qualified applicants shall receive consideration for employment without regard to race, color, religious creed, sex, national origin, ancestry, age or physical handicap. 3. The CITY shall send to each labor unionor 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 furnished towards the project under the terms of this Agreement, a notice advising all such labor unions or representatives of the CITY's commitment under this Article and shall prominently post copies of such notice in conspicuous places readily available to all such employees and applicants for employment. 4. The CITY Shall cause all of the foregoing equal employment opportunity provisions under these paragraphs to be included in any contracts for services or work undertaken pursuant to this Agreement in such a manner 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 furnishing 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 Maine Job Service under the Maine Department of Labor's Bureau of Employment Security. This provision Shall not apply to employment openings which the CITY or any such Consultant or contractor proposes to fill within its own organisation. The listing of such openings with the Maine Job Service shall involve only the normal obligation which pertain thereto. 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 construction 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 DEPARTISENT shall promptly notify the CITY if any potential claim arises under the provisions of this Article. The CITY shall be afforded full opportunity for a defense against any such claim. I£ it is subsequently determined that any much reduction in any reimbursement due the CITY by the DEPARTMENT was either arbitrary, capricious or fraudulent, then any amount so reduced shall be paid promptly. 94-423 Form Ed. 9/21/94 Page 8 of 11 Pages E. FAMILIARITY WITH LAWS AND INDEMNIFICATION. The CITY is assumed to be familiar with -and at all times shall observe and comply with all federal and State laws as hereifdcefore prescribed and all local laws, ordinances and regulations which in any manner 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 hold harmless the DEPARTMENT and its officers, agents and employees from any and all claims, suite, actions, damages and coats of every kind of nature arising out of or from any negligent, intentional, malicious or criminal act, error or omission occurring as the result of any performance or nonperformance of the work undertaken by the CITY pursuant to this Agreement. F. INSURANCE. The CITY shall require any and all consultants,. contractors or subcontractors performing any of the services or work undertaken pursuant 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 plane, reports, notes, papers or other tangible work produced by or on behalf of the CITY under the terms of this Agreement shall be the property of the DEPARTMENT and shall be turned over to the DEPARTMENT upon request following completion or termination of the project. The CITY shall be allowed an interest therein commensurate with its share of the project cost. H. SUBLETTING, ASSIGNMENT OR TRANSFER. The CITY shall not sublet, sell, transfer, assign or otherwise dispose of this Agreement or any portion thereof or any right, title or interest therein without the express written consent of the DEPARTMENT. No contract, agreement or transfer of this Agreement shall in any case release or relieve the CITY from any liability under this Agreement. I. INTERPRETATION AND PERFORMANCE. This Agreement shall be governed by the laws of the State of Maine as to its Interpretation and performance. J. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties hereto relative to all matters of noprojectand neither party shall be bound by any statement, correspondence, agreement or representation made previous hereto which is not expressly contained herein. 94-423. Form Ed. 9/21/94 Page 9 0£ 11 Pages E. TERMINATION The DEPARTMENT may postpone, suspend, abandon or otherwise terminate this Agreement Upon written notice 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 rho CITY a written thirty (30) day notice of termination. Postponement, suspension, abandonment Or termination may be taken for any reason by the DEPARTMENT or specifically as the result of any 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 Agreement 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 to such termination, except any work required to protect public health and safety, and Shall assemble all material that has been prepared, developed, furnished, purchased or obtained under the terms of this Agreement and transmit or turn over the control of the same to the DEPARTMENT within thirty (30) days following the effective date of Such termination. Such material shall include all documents, plans, computations, drawings, notes, records, and correspondence and all construction materials in place or purchased for the project pursuant to this Agreement. Upon receipt of such material, the DEPARTMENT Shall reimburse or, arrange a settlement with the CITY In one of the following mennera. a. If the Postponement, suspension, abandonment o termination is for any reason other than that set forth under subparagraph b below, the CITY shall be reimbursed for all work or Services accomplished up until the date of such termination. b. If the postponement, suspension, abandonment or termination is the result of any failure by the CITY or any contractor thereunder to Correct any unsatisfactory performance after receiving fifteen (15) days written notice from the DEPARTMENT setting forth the basis of such dissatisfaction, the CITY 'a reimbureement shall be limited to payment for acceptable work or services accomplished up until the date of such termination. 94-423 Form Ed. 9/21/94 Page 30 of 11 Pages 2. The CITY may accept the DEPARTMENT's evaluation of the work performed as hereinbefore provided or submit to arbitration as hereinafter provided under Paragraph L below. In any event, the DEPARTMENT shall not consider any further reimbursement of any kind or nature pending the outcome Of any such arbitration. L. ARBITRATION 1. Any and all claims, disputes or matters in question arising out of or relating to this Agreement or any breach thereof, which cannot he disposed of by mutual agreement Of the parties hereto, may be submitted to arbitration conducted and governed by the rules Of the American Arbitration Association applicable to the construction industry in effect at the time of the execution of thin 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 party to this Agreement, both parties shall have full right of discovery to all books, documents or other tangible things to the extent permitted by the Maine Rules of Civil Procedures. V. TERMS OF AGREEMENT A. All of the provisions set forth under Article, I and II shall expire upon satisfactory completion of the terms set forth therein or three (3) years from the date hereof, whichever occurs first, unless otherwise terminated sooner or extended later by virtue of any other provisions set forth elsewhere in this Agreement. B. All of the provisions set forth under Articles III and IV, except Article IV, Paragraph S, shall expire upon satisfactory completion of the terms set forth under Article III unless otherwise terminated sooner orextended later by virtue Of any other provisions set forthelsewhere in thin Agreement. C. The provision set Earth under Article IV, Paragraph E shall remain in full force and effect indefinitely or until terminated, modified or amended In writing by the parties hereto or by any operation of law. 94-423 FOM Ed. 9/21/94 Page 13 of 11 Pages VI. APPROVAL This Agreement bac been approved and signed in duplicate by the Parties below and becomes effective on the day and date first above written. STATE OF MAINE DEPARTMENT OF TRANSPORTATION witness — Ey ChiefoEn N. Narasopoulos Chief Engineer CITY OF BANGOR Witness Ey Edward A. Barrett City Manager 94-423 AGREEMENT BETNEEN THE STATE OF MAINE DEPARTMENT OF TRANSPORTATION AND THE CITY OF BANGOR REGARDING PROPOSED RESURFACING OF OUTER HA[RIOND STREET/V.S. ROUTE 2 FEDERAL AID PROJECT NO. STP-1590-5849(00)/PIN 5849.00 This AGREEMENT is entered into on this day of 1994 by and between the STATE OF MAINE DEPARTMENT OF TRANSPORTATION (hereafter DEPARTMENT) and the CITY OF BANGOR, a body corporate an politic, located in the County of Penobscot (hereafter CITY) regarding the proposed resurfacing Of Outer Hammon Street/V.S. Route 2 in Bangor from Hermon town line easterly approximately 2000 feet (hereafter project) as follows: I. PROJECT DEVEWPMENT A. The CITY shall submit an acceptable line item budget to the DEPARTMENT' for approval which contains an itemization of project costa as directed by the DEPARTMENT. B. The CITY shall not perform or authorize any services or work under this Agreement without first receiving the express approval to d0 so in writing from the DEPARTMENT. 1. Such approval shall be contingent upon the DEPARTMENT receiving authorization from the Federal Highway Administration (hereafter PURA) for federal participation in the project costs hereinbefore described under Paragraph A above. The DEPARTMENT shall not 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 and therefore not reimburseable by the DEPARTMENT under the provisions of Article II. C. The CITY shall develop and prepare all of the necessary design plans, specifications, estimates, bid documents and contracts for the project as directed by the DEPARTNENT in accordance with the DEPARTNEW's current Standards and procedures for federal -aid projects. The CITY shall submit all such plane, specifications, estimates, documents and contracts to the DEPARTMENT for review and approval. 1. All design features shall conform to AASHTO standards or equivalent. 6.3-21-1934 07:22 Fhp1 TO 9N 9 P.14 94-423 Form Ed. 9/21/94 Page 2 0£ 11 Pages 2. All plans shall adhere to the DEPARTMENT's utility accommodation policy as eat forth in its -Policy or Above Cround Utility Locations" am revised November 1960. 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 be submitted to the DEPARTMENT from time to time for review, comment and acceptance. E. The DEPARTMENT shall prepare and submit to PHNA for concurrence all environmental documentation required for the Project under the provisions of the National Environmental Policy 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 furnish 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, pursuant to the provisions set forth under 49 CER Part 24. 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 Met all such right of way has been acquired prior to being allowed to advertise for bids or begin any construction activities as hereinafter provided under Paragraph I below. 3, The CITY shall furnish to the DEPARTMENT a right of way map or similar plan prepared in Accordance with the DEPARTMENT's specifications detailing all right of way so acquired for the project. I. Upon approval by the DEPARTMENT, the CITY shall advertise and award a contract to construct the project as directed by the DEPARTPENT. 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. 94-423 Form Ed. 9/21/94 Page 3 of 11 Pages 2. The CITY shall not award a contract to construct the Project without the express approval of the DEPARTMENT. 3. Prior to the beginning of construction, the CITY Shall mange for a preconstruction meeting to coordinate the construction of the project with the DEPARTMENT, any and all contractors, utilities and any other parties directly involved in the construction of the project. 4. The CITY may use force account procedures as approved by the DEPARTMENT to construct any portion of the project. 5. The project shall be constructed in accordance with the approved plans and specifications. All construction shell be in compliance with the DEPARTMENT'S Standard Specifications for Highways and Bridges as revised October 1990 (hereafter Standard Specifications). 6. The DEPARTMEMT shall test the Materials to be used in the construction of the project and inspect construction activities as necessary to assure compliance with the approved plans and specifications, including its Standard Specifications. The DEPARTMENT may reject any materials or work it deems unsatisfactory. 7. Traffic shall be controlled throughout all work areas of the project in accordance with the provisions of Part VI of the Manual on Uniform Traffic Control Devices for Streets and Highways. S. No changes Shall be made in the project without approval Of the DEPARTMENT. The CITY shall assure that all work undertaken pursuant to this Agreement conforms to all applicable federal and State laws. Specific federal laws and regulations covering such work are contained under Title 23 in the United States Code (hereafter USC) for applicable statutory law and 23 CPR for applicable administrative law. General administrative requirements relative to federally funded activities are also contained under 49 CPR Pert 1S entitled "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments-. Allowability for participating costa is contained in the Executive Office of the President of the United States' office of Management and Budget (hereafter OMB) Circular A-67 entitled "Cost Principles for State and Local Governments". II. COST SHARING 6 REIMSURSEMENT PROCEDURES A. The DEPARTMENT shall be responsible for a portion of the cost to develop, design and construct the project (hereafter project costa) as follows: 96-623 Tom Ed. 9/21/94 Page 4 of 11 Pages I. The Department shall provide federal funds administered by PHWA under the provisions of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 (hereafter federal share) at the rate of eighty and twenty-eight hundredths (80.28%) percent of all project coats deemed eligible for federal participation in accordance with all applicable federal laws and regulations as hereinbefore referenced under Article I, Paragraph 1 above. 2. The DEPARTMENT shall also provide all Of the non-federal or matching share of all project costs remaining after deducting the CITY's share of such coats as hereinafter provided under Paragraph a below. B. The CITY shall be responsible for fifteen (15%) percent of all project costs, including all costs incurred by the DEPARTMENT to develop, inspect and administer the project. The CITY shall also be responsible for any project costs deemed ineligible for federal participation as hereinbefore Provided under Article 1, Paragraph B.2 above and as hereinafter provided under Paragraph C.5 below. C. The DEPARTMENT shall reimburse the CITY for eighty-five (85%) percent of all project costa incurred by it as follows: 1. The CITY Shall bill the DEPARTMENT no less than monthly for all claims for all allowable direct and actual project costs incurred under the provisions of this Agreement. Coats are incurred whenever work is performed, goods and services are received or a cash disbursement is made. All Claims for such costs shall be submitted on the CITY's billbead or invoice and be itemized in at least the same detail as itemised in the approved project budget. Each claim so submitted shall include an cmulative total for all costs incurred by cost category or budget line item. 2. In the event that less than One Thousand ($1000)Dollars in such raimburseable 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 until the next month Or regularly scheduled billing period in which at least one Thousand ($1000) Dollars in such reimburseable costs have been incurred or until the last or final claim is submitted for reimbursement. 3. The DEPARTMENT shall deduct all of the CITY's share of such costs as beroinbefore described under Paragraph B above prior to making any such reimbursement. F. 17 94-423 Pore Ed. 9/21/94 Page 5 of 11 Pages 4. The DEPARTMENT shall reimburse the CITY for all project costs incurred by it after deducting the CITY'S share of such costs as hereinbefore provided under subparagraph 3 above until 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 widertaken by the CITY pursuant to this Agreement is completed satisfactorily. a. All of that portion of such reimbursement so retained Shall be withheld and retained by the DEPARTPOEI to the extent and in the same manner sot forth under the provisions of 23 M.R.S.A. Section 52-A. b. Upon satisfactory completion of all work undertaken by the CITY pursuant to this Agreement, the DEPARTMENT my release up to sixty (60%) percent of such reimbursement so retained. The balance of such reimbursement so retained Shall be withheld and retained until such time as all things required of the CITY under this Agreement are received, completed or otherwise satisfied to the Satisfaction of the DEPARTMENI. The DEPARTMENT, at its option, may retain temporarily or permanently, from time to time, any portion of such balance which it deems equitable. S. In the event that the CITY withdraws from the project, suspends or delays work on the project or takes some other action, including any acts of commission or omission, without concurrence of the DEPARTMENT which results in the lose of federal participation in any of the reimbursable costs as provided herein, 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. 111. RECORD, RETENTION, ACCESS REQUIREMENTS & 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 CER 16.42(b), except as otherwise provided wider Subparagraph 1 below. 1. In the event that any litigation, claim, negotiation, audit or other action involving such r cords has begun prior to the expiration of such period, then all records shall be retained until all action and resolution of all issues arising therefrom are complete if such action or resolution extends beyond the three year period hereinbefore described. 94-423 Form Ed. 9/21/94 Page 6 of 11 Pages 2. the CITY shall assure that in accordance with the provisions of 49 CER 18.42(e ), the DEPARTMENT and ENNA, and if necessary, the Comptroller General of the United States, or any of their authorized representatives, shall 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 that all applicable audit requirements Ar1met in accordance with the provisions of ONE Circular 28. IV. GENERAL PROVISIONS A. INDEPENDENT CAPACITY. The CITY, its employees, agents, representatives, consultants or contractors, shall in performance of the work under this Agreement act in an independent capacity from and not as officers, employees or agents of the DEPARTMENT. S. CONTRACT ADMINISTRATOR. Following execution of this Agreement, the DEPARTMENT shall assign a Project Leader to act as the Contract Administrator on behalf of the DEPARTMENT during the develo?ment 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 cs for payment, progress reports, claims, correspondence and all project related submissions from the CITY shall he sent 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 against 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 ensure that all such applicants are employed and all such employees are treated during any period of employment under this Agreement without regard to their race, color, religion, sex, age or national origin. Such action shall include, but not be necessarily limited to: employment, upgrading, demotions, transfers, recruitment or advertising for recruitment, layoffs o terminations, rates of pay or other forms of compensation and selection for all forma of training and apprenticeships. The CITY shall prominently post in conspicuous places readily available to all employees and applicants for such employment hereunder, notices setting forth the provisions of this paragraph. _ 94-423 Form Ed. 9/21/94 Page ] of 11 Pages 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 shall state that all qualified applicants shall receive consideration for employment without regard to race, color, religious creed, vex, national origin, ancestry, age or physical handicap. 3. The CITY shall send to 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 furnished towards the project under the terms of this Agreement, a notice advising all such labor unions or representatives of the CITY's commitment under this Article and shall prominently post copies of such notice in conspicuous places readily available to all such employees and applicants for employment. 4. The CITY shall cause all of the foregoing equal employment opportunity provisions under these paragraphs to be included in any contracts for services or work undertaken pursuant to this Agreement in such a manner 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 furnishing 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 Maine Job Service under the Maine Department of Labor's Bureau of Employment Security. This provision shall not apply to employment openings which the CITY or any such consultant or contractor proposes to fill within its own organisation. The listing of such openings with the Maine Job Service shall involve only the normal obligation which pertain thereto. D. LIABILITY. Any amount paid out by the DEPARTMRTP arising out of or from any error*, omissions or failures on the part of the CITY to meet professional standards of construction 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 any potential claim arises under the provisions of this Article. The CITY shall be afforded full opportunity for a defense against any such claim. I£ it is subsequently determined that arty such reduction in any reimbursement due the CITY by the DEPARTMENT was either arbitrary, capricious or fraudulent, then any amount so reduced shall be paid promptly. 03-21-1`A4 E'/�25uM FR0.M TO A456G49 P.R 94-423 Form Ed. 9/21/94 Page E of 11 Pages E. FAMILIARITY WITH LAWS AND INDENNIFICATION. The CITY is assumed to be familiar with and at all times shall observe and comply with all federal and State laws as hereinbefore prescribed and all local laws, ordinances and regulations which in any manner 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 hold harmless the DEPARTMENT and its officers, agents and employees from any and all claims, suite, actions, damages and costa of every kind of nature arising out of or from any negligent, intentional, malicious or criminal act, error or omission occurring as the result of any performance or nonperformance of the work undertaken by the CITY pursuant to this Agreement. F. INSURANCE. The CITY shall require any and all consultants, contractors or subcontractors performing any of the services or work undertaken pursuant to this Agreement to be Insured in cordance with the provisions set forth under Section 103.08 of the DEFARTNEW 'a Standard Specifications. C. ONNERSHIP. All plana, reports, notes, papers or other tangible work produced by or on behalf of the CITY under the terms of this Agreement shall be the property of the DEPARTMENT and shall be turned over to the DEPARTMENT upon request following completion or termination of the project. The CITY shall be allowed an interest therein Commensurate with its share of the project cost. H. SUBLETTING, ASSIGNMENT OR TRANSFER. The CITY shall not sublet, sell, transfer, assign or otherwise dispose of this Agreement or any portion thereof or any right, title or interest therein without the express written consent of the DEPARTMENT. No contract, agreement or transfer of this Agreement shall in any case release or relieve the CITY from any liability under this Agreement. I. INTERPRETATION AND PERFORMANCE. This Agreement shall be governed by the laws of the State of Maine as to its interpretation and performance. J. ENTIRE AGREEMENT. Thin Agreement contains the entire agreement between the parties hereto relative to all matters 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. 94-423 Form Ed. 9/21/94 Page 9 of 11 Pages E. TERMINATION 1. The DEPARTMENT may postpone, suspend, abandon or otherwise terminate this Agreement upon written notice to the CITY and in n event shall any such action be deemed a breach of contracIn 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 termination may be taken for any reason by the DEPARTMENT or specifically as no result of any 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 Agreement is to be postponed, suspended, abandoned or terminated for any of tha foregoing reasons, the CITY or any contractor thereunder shall immediately cease all work or services subject to. such termination, except any work required to protect public health and safety, and shall assemble all material that has been prepared, developed, furnished, purchased or obtained under the terms of this Agreement and transmit or turn over the control of the same to the D£PART!ffiNT within thirty (30) days following the effective date of such termination. Such material shall include all documents, plans, computations, drawings, notes, records, avW correspondence and all construction materials in place or purchased for the project pursuant to this Agreement. Upon receipt of such material, the DEPARTMENT shall reimburse or arrange a settlement with the CITY in one of the following manners: a. If the postponement, suspension, abandonment or termination is for any reason other than that set forth under subparagraph b below, the CITY shall be reimbursed for all work or services accomplished up until the date of such termination. b. If the postponement, suspension, abandonment or termination is the result of any failure by the CITY or any contractor thereunder to correct any unsatisfactory performance after receiving fifteen (1S) days written notice from the DEPARTMENT setting forth the basis of such dissatisfaction, the CITY's reimbursement shall be limited to payment for acceptable work or services accomplished up until the date of such termination. 94-423 Form Ed. 9/21/94 Page 10 of 11 Pages 2. The CITY may accept the DEFARTMENT's evaluation of the work performed as hereinbefore provided or submit to arbitration as hereinafter provided under Paragraph L below. In any event, the DEPARTMENT shall not consider any further reimbursement of any kind or nature pending the outcome of any such arbitration. L. ARBITRATION 1. My and all claims, disputes or matters in question arising out of or relating to this Agreement or any breach thereof, which cannot be disposed of by mutual agreement of the parties hereto, may be submitted to arbitration conducted and governed by the rules of the American Arbitration Association applicable to the construction industry in effect at the time of the 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 party to this Agreement, both parties shall have full right of discovery to all books, documents or other tangible things to the extent permitted by the Maine Rules of Civil Procedures. V. TERMS OF ACREENENT A. All of the provisions set forth under Articles I and II shall expire upon satisfactory completion of the terms set forth therein or three (3) years from the date hereof, whichever occurs first, unless otherwise terminated sooner or extended later by virtue of any other provisions set forth elsewhere in this Agreement. E. All of the provisions set forth under Articles III and IV, except Article IV, Paragraph E, shall expire upon satisfactory completion of the terms set forth under Article III unless otherwise terminated sooner or extended later by virtue of any other provisions set forth elsewhere in this Agreement. C. The provision set forth under Article IV, Paragraph E shall remain in full force and effect indefinitely or until terminated, modified or amended in writing by the parties hereto or by any operation of law. 94-423 Form Ed. 9/21/94 Page 11 of 11 Pages VI. APPROVAL This Agreement has been approved and signed in duplicate by the parties below and becomes effective on the day and date first above written. STATE OF MAINE DEPARTMENT OF TRANSPORTATION ._..... By: — Witness Theodore H. Rarasopoulos Chief Engineer CITY 0£ BANGOR Witness Edward A. Bassett City Manager