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.
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Mareger's Comments:
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Associated! Information: - - --
Budget Approve: of d
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Legal Approval:
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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