HomeMy WebLinkAbout2023-06-26 23-201 OrderCITY COUNCIL ACTION
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23-201
JUNE 26, 2023
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MaineDOT PROGRAM: Multimodal Program
MAINE DEPARTMENT OF TRANSPORTATION
Agreement for a Federally Funded Locally Administered Project
With the
City of Bangor
Regarding
Resurfacing of a Portion of Union Street
Total Amount: $2,027,000.00
Federal Share: $1,621,600.00
State Share: $202,700.00
Local Match: $202,700.00
Agreement Begin:
Agreement End: 12/31/2028
Locally Administered Project — Federal Funds (Payable)
MaineDOT WIN: 026930.00
Federal Project #: 2693000
State Vendor ID: VC1000007010
SAM Unique Entity ID: MLLMBKS2LVQ5
Federal Assistance Listing #: 20.205
This subaward agreement for a federal -aid project (the Agreement) is between the Maine Department of
Transportation (MaineDOT), an agency of state government with its headquarters at 24 Child Street in
Augusta, Maine, and a mailing address of 16 SHS, Augusta, ME 04333-0016; and the City of Bangor
(the City), a municipal corporation organized and existing under the laws of the State of Maine, with its
principal administrative offices at 40 Harlow St., in Bangor, Maine, and a mailing address of the same.
(MaineDOT and the City are referred to collectively as the Parties and individually as a Party.)
RECITALS
A. SCOPE OF WORK. This Agreement shall apply to preservation paving of 1.5 miles of Union Street,
consisting of a mill -and -fill starting Davis Road and continuing to Griffin Road (the Project); and
B. ROLE OF THE MPO. The Bangor Area Comprehensive Transportation System, the metropolitan
planning organization for the Bangor Urbanized Area (the MPO), programmed the Project for
inclusion in the MaineDOT Work Plan for calendar years 2023 through 2025 with the City's support
as a member of the MPO; and
C. ROLE OF THE CITY. The City shall carry out the work as a Locally Administered Project (LAP)
subject to MaineDOT's oversight under Title 23 USC §106(g)(4) and Title 23 CFR Part 635.105 to
ensure that all requirements of this Agreement are met.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing statements, the Parties agree to the following:
1. APPENDIX
® Federal Title VI Assurances.
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2. PROJECT MANAGEMENT
2.1 The City shall place in responsible charge of the Project a full-time employee with Local Project
Administration (LPA) certification and appropriate qualifications, as set out in Chapter 1 of the
MaineDOT LPA Manual. The Local Project Administrator shall abide by the provisions of this
Agreement and the policies and procedures in the LPA Manual. The City shall notify MaineDOT
if this person ceases to oversee the Project. The Local Project Administrator is the following:
❑ Ted Trembley, Project Engineer
Email: ted.trembley@bangormaine. 7ov; Phone: 207-992-4251
2.2 MaineDOT will assign a Project Manager to carry out MaineDOT's responsibilities under this
Agreement. The Project Manager or a designee will have the authority to request design changes
to meet applicable laws, regulations and design standards; accept and reject invoices; inspect
construction activities; and take all other action necessary to assure the proper performance of this
Agreement. MaineDOT's Project Manager is the following:
❑ Dan Loring, Multimodal Program
Email: Daniel.M.Loring@maine. 7ov; Phone: 207-624-3451
3. FINANCIAL OBLIGATIONS
3.1 AUTHORIZATION. MaineDOT's financial participation in the Project will begin upon the full
execution of this Agreement (the Effective Date).
3.2 COST -SHARING. The MPO programmed for the Project a total of $2,027,000.00, which the
Parties shall share as set out below. Costs eligible for federal/state participation shall not exceed
this amount without written approval from the MPO. Upon receiving such approval, the Parties
shall modify this Agreement.
a. MAINEDOT SHARE. MaineDOT, using federal and state funds programmed by the MPO
from its allocation, will share in cost of the Project at the rate of 90 percent, up to
$1,824,300.00.
b. LOCAL MATCH. The City shall share in the cost of the Project at the rate of 10 percent, for
an estimated contribution of $202,700.00 that is not from other federally assisted programs.
Additionally, the City shall be fully responsible for:
i. All costs exceeding $2,027,000.00, unless otherwise approved by the MPO in writing;
ii. All costs incurred before the effective date of this Agreement; and
iii. All costs determined to be federally non -participating.
3.3 FINANCIAL UPDATES. The Parties shall review the estimated cost of the Project at the
milestones of Preliminary Design Report (PDR) and final Plans, Specifications & Estimate
(PS&E). After each review, each Party shall work with the MPO to appropriate the funds needed
to meet the latest estimate.
3.4 REIMBURSEMENT. The City shall pay Project costs as they occur and request periodic
reimbursement from MaineDOT for the federal and state shares. Invoices shall be submitted not
less than every six months in the format of Letter 4 from the LPA Manual, as follows:
a. Each invoice shall include a progress report for the service period of the invoice;
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b. Each invoice shall include enough backup to satisfy the MaineDOT Project Manager;
c. Each invoice shall show MaineDOT's and the City's portions of Project costs, including a
running total of costs invoiced to date;
d. The City must certify that amounts claimed are correct and not claimed previously;
e. Upon completion of the Project and payment in full of all contracted parties, the City shall
submit to MaineDOT a final invoice modeled after Letter 20 from the LPA Manual. Payment
shall be contingent on a passing inspection of the Project by MaineDOT and receipt by
MaineDOT of a completed consultant evaluation, contractor evaluation and as -built plans (if
applicable) from the City.
3.5 MAINEDOT COSTS. MaineDOT will charge to the Project its costs for services performed on the
Project. The City shall share in these costs commensurate with its share percentage of the Project.
MaineDOT, at a minimum, will reconcile these costs upon completion of the Project and deduct
the City's share percentage from the final invoice payment under 3.4(e) above.
3.6 REMAINING FUNDS. MaineDOT will transfer into the holding WIN assigned to the MPO any
federal/state funds remaining in the Project once MaineDOT has paid the final invoice from the
City under 3.4(e) above. Any federal/state funds repaid to MaineDOT by the City also shall be
placed in the MPO holding WIN, which is 014272.40.
4. PROJECT DEVELOPMENT
4.1 KICKOFF. The Parties shall hold a Project Kickoff meeting to go over the scope of work, budget,
schedule and legal requirements for the Project before reimbursable work may begin.
4.2 PROGRESS UPDATES. The City shall provide MaineDOT with written progress updates upon
request. If the City fails to respond to repeated requests for such updates, MaineDOT reserves the
right to declare the City to be in default of this Agreement.
4.3 ENGINEERING SERVICES. A professional engineer licensed in Maine shall supervise all design
work on the Project. If the City intends to hire a consultant to serve as the required engineer of
record, the City shall use a qualifications -based selection in accordance with 23 CFR part 172 and
with Chapter 2 of the LPA Manual (Hiring Consultants), as follows.
a. Using price as a ranking factor shall make consultant work ineligible for reimbursement.
b. The City shall obtain MaineDOT's written approval of any contract or contract modification.
Work performed without such approval shall be ineligible for reimbursement.
c. The City shall incorporate by reference the terms and conditions of MaineDOT's Consultant
General Conditions into its contracts for consultant services.
d. The City shall fill out a consultant evaluation upon completion of its contract with any
consultant. A copy of the completed form shall be provided to MaineDOT.
4.4 SURVEY. Unless MaineDOT approves otherwise, MaineDOT shall be responsible for all survey
work on the state highway system. The City shall be responsible for all such survey work off the
state system.
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4.5 DESIGN WORK. The City, in coordination with its contracted consultant (if applicable), shall
prepare all design plans, specifications, estimates and contract documents for the Project. The
design of the Project shall comply with the Americans with Disabilities Act (ADA), as well as all
other applicable engineering standards, laws and regulatory requirements.
a. The City shall submit the following to MaineDOT for review and comment:
i. Preliminary design report;
ii. Design plan impacts (if right-of-way mapping will be required); and
iii. Final plans, specifications and estimate package (PS&E).
b. The bid documents shall reference MaineDOT's Standard Specifications and contain all
applicable special provisions and federal requirements — including Davis -Bacon wage rates
and Form FHWA-1273— as set out in Chapter 7 of the LPA Manual (Final PS&E Package).
c. Electronic design files provided for the use of MaineDOT staff in the right-of-way process
shall conform to MaineDOT's policy on Electronic Exchange of CADD Data, found online:
http://www.maine.gov/mdot/caddsupport/.
d. MaineDOT will enforce all applicable engineering standards, laws and regulatory
requirements and will require changes if they are not met.
e. MaineDOT will give the City written construction authorization once MaineDOT accepts the
final PS&E package as complete. Receipt of such authorization shall not relieve the City and
its consultant (if applicable) of responsibility for meeting all engineering standards and
regulatory requirements that apply to the Project.
4.6 PUBLIC PARTICIPATION. During preliminary design, the City shall conduct a public process
appropriate for the scope of work and acceptable to MaineDOT's Project Manager. The City shall
provide MaineDOT with a signed public process certification modeled after Letter 10 from the
LPA Manual, as part of the Project's environmental package.
4.7 ENVIRONMENTAL REQUIREMENTS. MaineDOT will carry out the National Environmental
Policy Act (NEPA) process. The City shall provide MaineDOT with signed Letter 11 from the
LPA Manual and the completed NEPA Documentation Checklist. Additionally:
a. The City shall be responsible for obtaining all environmental approvals, permits and licenses
for the Project — outside of the NEPA process; and
b. The City shall provide MaineDOT with a signed environmental certification modeled after
Letter 12 from the LPA Manual, as part of the final PS&E package for the Project.
4.8 UTILITY COORDINATION. The City shall identify all utilities and any railroad affected by the
Project and shall coordinate any facility relocations in accordance with Chapter 5 of the LPA
Manual (Utility Coordination). The City shall provide MaineDOT with a signed certification
modeled after Letter 13 from the LPA Manual, as part of the final PS&E package.
4.9 RIGHT-OF-WAY. The Parties will coordinate the right-of-way process, if necessary, as follows:
a. MaineDOT will carry out the right-of-way process for any section of the Project located on the
state highway system (the state system).
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b. The City, at the discretion of MaineDOT, may be required to participate in the right-of-way
process, including acquisition, for any section of the Project located off the state system.
c. The Parties shall comply with the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 as amended (the Uniform Act) and abide by the policies and
procedures set out in the MaineDOT Right of Way Manual.
d. One certified appraiser shall perform the appraisals for all parcels, and a second certified
appraiser shall carry out the required appraisal reviews.
e. MaineDOT will participate financially in right-of-way settlements up to 110 percent of the
Determination of Just Compensation for each parcel. MaineDOT's participation in any
settlement exceeding this amount shall require MaineDOT's approval.
f. The City shall dedicate to the Project for public use into perpetuity any municipal property
needed for the Project.
4.10 ADVERTISING FORBIDS. Unless MaineDOT approves otherwise in writing, the City shall use
competitive bidding to hire a construction contractor upon receiving MaineDOT's written
authorization to do so. The City shall abide by Section 102 of MaineDOT's Standard
Specifications (Bidding) and Chapter 8 of the LPA Manual (Advertise & Award). Advertising
without authorization shall result in the loss of all federal funds for the Project.
4.11 AWARDING A CONTRACT. Upon receiving written approval from MaineDOT, the City shall
award a contract to the lowest responsive/responsible bidder in accordance with Section 103 of
MaineDOT's Standard Specifications (Award and Contracting), as follows:
a. Negotiation with any bidder, after bids are opened and before a contract is awarded, is
prohibited by the federal regulations found in 23 CFR §635.113. Any such negotiation shall
give MaineDOT just cause to find the City to be in default of this Agreement.
b. The City shall administer the construction contract for the duration of the Project.
4.12 CONSTRUCTION OVERSIGHT. During construction of the Project, the City shall be
responsible for carrying out the following tasks:
a. Provide a resident inspector who is either a municipal employee with the appropriate
qualifications or a consultant hired through a qualifications -based selection.
b. Hold a pre -construction meeting and, if applicable, a separate pre -pave meeting.
c. Provide a paving inspector and a concrete technician with required professional certifications
to be on site for paving and concrete work. (One person may perform both roles, if certified.)
d. Coordinate materials testing as necessary to comply with the Minimum Testing Requirements
that MaineDOT will establish for the Project, as follows:
i. An independent, accredited laboratory shall be used to test all aggregates, if applicable;
ii. Pavement and concrete samples shall be taken MaineDOT's lab in Bangor for testing.
e. Submit proposed contract modifications (change orders) to MaineDOT for review and
concurrence. MaineDOT may deny reimbursement to the City for work performed under a
modification executed without MaineDOT's concurrence.
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f. Obtain MaineDOT's approval of changes to the approved PS&E design plans proposed during
construction. If a change made in the field without MaineDOT's prior approval is found to be
non -compliant with the ADA or any applicable design standard, MaineDOT will require the
City to make corrections at its own expense, without reimbursement for the work.
4.13 FINAL INSPECTION. MaineDOT will inspect the completed Project for compliance with the
design plans, specifications and provisions of the construction contract. MaineDOT reserves the
right not to reimburse the City for work determined to be out of compliance.
5. MAINTENANCE RESPONSIBILITY
If applicable, the City shall have maintenance responsibility for any portion of the completed Project
inside an Urban Compact Area, in accordance with Maine law: Title 23 MRSA, §754, "Town
maintenance in compact areas." This Section 5 shall survive the expiration of this Agreement.
6. RECORDS AND AUDITS
6.1 Project Records, whether printed or electronic, shall include all plans, specifications, contracts,
reports, notes, or other documents prepared by or for the City. The City shall retain all Project
Records for at least 3 years from the date of MaineDOT's acceptance of the final invoice for the
Project or the termination of this Agreement, whichever is sooner. If any litigation, claim,
negotiation or audit has begun before the end of this retention period, all Project Records shall be
kept for at least 3 years after the litigation, claim, negotiation or audit is resolved.
6.2 The City and any contracted party working on its behalf shall allow representatives of the Federal
Government and the State of Maine to inspect and audit Project Records at any time, at no cost.
6.3 Audits shall be conducted in accordance with Title 2 in the Code of Federal regulations (2 CFR),
subpart F, §200.500 through §200.512, "Audit Requirements."
Section 6 shall survive the termination or expiration of this Agreement.
7. DEBARMENT
7.1 By signing this Agreement, the City certifies that, for the term of the Project, it shall not permit
any consultant, contractor, subcontractor or any other third party to work on any aspect of the
Project if that entity or its principals has been debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in covered transactions by any
federal department or agency. If the City cannot certify to this statement, it shall attach an
explanation to this Agreement.
7.2 If the City contracts with any third party pursuant to this Agreement, the City shall require that
party and its principals to certify that they:
a. Have not within a 3-year period preceding the date of any contract for the Project been
convicted of a crime or had a civil judgment rendered against them for any of the following:
i. Obtaining, attempting to obtain, or performing a federal, state or, local public
transaction or contract under a public transaction;
ii. Violating federal or state antitrust statutes;
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iii. Committing embezzlement, theft, forgery, bribery, falsification, or destruction of
records, making false statements, or receiving stolen property.
b. Are not under indictment for or otherwise criminally or civilly charged by a federal, state, or
local agency with commission of any offense enumerated above; and
c. Have not within a 3-year period preceding this Agreement had one or more federal, state, or
local public transactions terminated for cause or default.
8. CONFLICT OF INTEREST
8.1 No municipal official or employee with a direct or indirect financial or other personal interest in
any contract or subcontract for the Project shall negotiate, make, accept or approve any such
contract or subcontract.
8.2 No professional performing services for the City on the Project shall have a direct or indirect
financial or other personal interest in any contract or subcontract for the Project, other than the
person's employment or retention by the City. No officer or employee of any professional retained
by the City to work on the Project shall have a direct or indirect financial or other personal interest
in real property acquired for the Project unless the interest is disclosed in the public record and
such officer or employee has not participated in such acquisition for and on behalf of the City.
8.3 No person or entity entering into a contract for services for the Project shall have a direct or
indirect financial or other personal interest in the Project or in its outcome, other than the
performance of the contract. This prohibition covers the following:
a. Any agreement with, or other interest involving, third parties having an interest in the outcome
of the Project that is the subject to the contract; and
b. Any agreement providing incentives or guarantees of future work; and
c. Any interest in real property acquired for the Project unless such real property interest is
openly disclosed before the person or entity enters into the contract.
9. GENERAL PROVISIONS
9.1 LEGAL COMPLIANCE. This Agreement shall be construed under the laws of the State of Maine.
During the performance of this Agreement, the Parties agree to comply with and abide by all
applicable federal, state and local laws, statutes, rules, regulations, standards and guidelines; avoid
hindering each other's performance; fulfill all obligations diligently; and cooperate in achieving
the intent of this Agreement.
9.2 INDEMNIFICATION. To the extent permitted by law, the City shall indemnify and hold harmless
the State of Maine, its agents, employees and contractors from all claims, suits or liabilities arising
from any negligent or wrongful act, error or omission by the City and its consultants or
contractors. Nothing herein shall waive any defense, immunity or limitation of liability that may
be available under the Maine Tort Claims Act (14 M.R.S., §8101 et seq.) or any other privileges or
immunities provided by law. This section shall survive the termination or expiration of this
Agreement.
9.3 CONFIDENTIALITY. Information pertaining to detailed construction cost estimates shall be kept
confidential pursuant to state law: 23 M.R.S.A., §63.
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9.4 STATE OF MAINE'S RIGHTS OF SET-OFF. MaineDOT shall have all of its common law,
equitable and statutory rights of set-off. These rights shall include, but not be limited to, the
State's option to withhold for purposes of set-off monies due the City under a specific project
contract up to any amounts due and owed to MaineDOT with regard to this Agreement, and any
other agreement/contract with any State of Maine department or agency, including any
agreement/contract for a term commencing prior to the term of this Agreement, plus any amounts
due and owed to the State for any reason. MaineDOT shall exercise its set-off rights in accordance
with standard state practices including, in cases of set-off pursuant to an audit, the finalization of
the audit. MaineDOT reserves the right to withhold or reduce future Local Road Assistance
payments to the City for purposes of set-off to recover the amount owed.
9.5 NON -APPROPRIATION. Notwithstanding anything herein to the contrary, the City
acknowledges and agrees that although the execution of this Agreement manifests MaineDOT's
intent to honor its terms and to seek funding to fulfill any obligations arising hereunder, any such
obligations by law are subject to available budgetary appropriations by the Federal Government
and the Maine Legislature. This Agreement creates no obligation on behalf of MaineDOT
exceeding such appropriations.
9.6 LOBBYING. By signing this Agreement, the undersigned municipal representative certifies that
no appropriated federal funds have been paid or will be paid, by or on behalf of the City, to any
person for influencing or attempting to influence an officer or employee of any federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress, in connection with the awarding of any federal contract, the making of any federal
grant, the making of any federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan,
or cooperative agreement.
9.7 EQUAL EMPLOYMENT OPPORTUNITY. During the performance of this Agreement:
a. The City shall not discriminate against any employee or applicant for employment relating to
this Agreement because of race, color, religious creed, sex, national origin, ancestry, age,
physical or mental disability, or sexual orientation, unless related to an actual occupational
qualification. The City shall take affirmative action to assure that applicants are employed, and
that employees are treated during their employment, without regard to their race, color,
religion, sex, age, national origin, physical or mental disability, or sexual orientation. The City
agrees to post in conspicuous places available to employees and applicants for employment
notices setting forth the provisions of this section.
b. The City — in all solicitations or advertising for employees placed by or on behalf of the City
relating to this Agreement — shall state that all qualified applicants shall receive consideration
for employment without regard to race, color, religious creed, sex, national origin, ancestry,
age, physical or mental disability, or sexual orientation.
c. The City shall cause the foregoing provisions to be inserted into any contract for work covered
by this Agreement so that such provisions shall be binding upon each contractor, except for
contracts or subcontracts for standard commercial supplies or raw materials.
9.8 FLOW DOWN. Contracts between the City and all third parties shall contain or incorporate by
reference applicable provisions of this Agreement.
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9.9 ASSIGNMENT. No assignment of this Agreement is contemplated, and in no event shall any
assignment be made without MaineDOT's express written permission.
9.10 AMENDMENT AND MODIFICATION. This Agreement may only be modified or amended in
writing and signed by duly authorized representatives of both Parties.
9.11 BINDING EFFECT. The Parties shall be bound by the terms of this Agreement. This requirement
shall apply to its executors, their successors, administrators and legal representatives.
9.12 INDEPENDENT CAPACITY. The City, its employees, agents, representatives, consultants and
contractors shall not act as officers, employees or agents of MaineDOT.
9.13 ENTIRE AGREEMENT. This document represents the entire Agreement between the Parties.
Neither MaineDOT nor the City shall be bound by any statement, correspondence, agreement or
representation not expressly contained in this Agreement.
9.14 ELECTRONIC SIGNATURES. Each Party agrees that this Agreement may be signed
electronically and that all electronic signatures on this Agreement are the same as handwritten
signatures for the purposes of validity, enforceability and admissibility.
9.15 NOTICE. Any communications, requests or notices required or appropriate to be given under this
Agreement shall be made in writing and may be sent by email, which shall satisfy the delivery
requirements of this section through express acknowledgement of receipt by the receiving Party.
Communications also may be sent by U.S. Mail — certified or registered, return receipt requested —
or by a recognized commercial carrier that requires a return receipt to be delivered to the sending
party. Such communications, requests or notices shall be sent to the City's Local Project
Administrator and MaineDOT's Project Manager.
10. DEFAULT AND TERMINATION
10.1 MaineDOT shall have just cause to terminate this Agreement upon or after the occurrence of one
or more of the events below, which shall constitute default of this Agreement by the City:
a. The City withdraws from the Project, resulting in cancellation of the Project;
b. The City fails to make a good -faith effort to advertise the Project within 3 years of the
execution date of this Agreement;
c. The City makes no effort to respond to requests for progress updates;
d. The City takes any action, without approval from MaineDOT, that results in federal non -
participation in the Project;
e. The City misrepresents or falsifies any claim for reimbursement;
f. The City uses Project funds for a purpose not authorized by this Agreement; and
g. The City fails to meet the standards of performance set out in this Agreement.
10.2 In the event of a default, MaineDOT will afford the City a cure period of 14 calendar days,
effective on the City's receipt of Notice of Default. If the City fails to address all grounds for
default within this cure period or any longer period as MaineDOT may authorize, MaineDOT may
terminate this Agreement for cause, with the following conditions:
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a. MaineDOT, at its discretion, may require the City to return all payments from MaineDOT
toward the Project and to reimburse MaineDOT for its internal costs associated with the
Project — if the default results in federal non -participation; and
b. All funds recovered from the City shall be put in the MPO's holding WIN: 014272.40.
10.3 The Parties may terminate this Agreement for convenience by mutual consent for any reason not
defined as default. MaineDOT may reimburse the City for eligible work performed under this
Agreement until the effective date of termination for convenience, in accordance with section 3.4
above, "Reimbursement."
11. TERM AND EXPIRATION
All provisions of this Agreement — except for those that by their very nature are intended to survive —
shall expire upon payment by MaineDOT of the final invoice from the City under section 3.4(e) above
or December 31, 2028 (Expiration Date), whichever occurs first. The City shall submit any request for a
time extension to MaineDOT in writing before the Expiration Date.
12. MUNICIPAL APPROVAL
The City's undersigned representative assures that the City's legislative body has approved the City's
entry into this Agreement, has appropriated or authorized the use of any required matching funds, and
has authorized the representative to sign this Agreement.
IN WITNESS, WHEREOF, the duly authorized representatives of the Parties have executed this
Agreement effective on the date last signed below.
City of Bangor
Debbie Laurie, City Manager *
Date:
Maine Department of Transportation
531
Todd Pelletier, P.E., Director
Bureau of Project Development
Date:
* Pursuant to IO M.R.S.A. §9502, et seq., I certify that the foregoing electronic signature: (a) is intended to have the same
force as my manual signature, (b) is unique to me, (c) is capable of verification, (d) is under my control, and (e) is linked
to data in such a manner that it is invalidated if the data are changed.
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U.S. Department of Transportation (USDOT)
Federal Hi2hwav Administration — Standard Title VI / Nondiscrimination Assurances
DOT Order No. 1050.2A
The City of Bangor AGREES THAT, as a condition of receiving Federal financial assistance from
the U.S. Department of Transportation (USDOT) through the Federal Highway Administration
(FHWA), it is subject to and will comply with the following:
Statutory/Regulatory Authorities
Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq., 78 stat. 252), which
prohibits discrimination based on race, color, national origin;
0 49 C.F.R. Part 21 (entitled Nondiscrimination in Federally -Assisted Programs of the
Department of Transportation — Effectuation of Title VI of The Civil Rights Act of 1964);
0 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of
the Civil Rights Act of 1964);
The preceding statutory and regulatory citations are referred to hereinafter as the "Acts" and the
"Regulations" respectively.
General Assurances
In accordance with the Acts, the Regulations and other pertinent directives, circulars, policy memoranda
or guidance, the City of Bangor gives assurance that it promptly will take measures necessary to assure
that:
"No person in the United States shall, on the grounds of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any
program or activity, "for which the City of Bangor receives Federal financial assistance from the
USDOT, including the FHWA. "
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress regarding Title VI and
other nondiscrimination requirements (the Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973) by restoring the broad, institutional -wide scope and coverage of these
nondiscrimination statutes and requirements to include all programs and activities of the City of Bangor,
so long as any portion of the program is federally assisted.
Specific Assurances
More specifically, and without limiting the above general Assurance, the City of Bangor agrees with
and gives the following Assurances with respect to its federally assisted highway projects:
1. The City of Bangor agrees that each "activity", "facility" or "program" —as defined in §§ 21.23
(b) and 21.23 (e) of 49 C.F.R. §21 — will be (regarding an "activity" facilitated), or will be
(regarding a "facility" operated), or will be (regarding a "program" conducted) in compliance
with all requirements imposed by, or pursuant to, the Acts and the Regulations.
2. The City of Bangor will insert the following notification in all solicitations for bids, requests for
proposals for work, or material subject to the Acts and the Regulations made regarding all
federal -aid highway programs and, in adapted form, in all proposals for negotiated agreements
regardless of funding source:
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"The City of Bangor, in accordance with the provisions of Title VI of the Civil Rights Act
of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies
all bidders that it will affirmatively assure that in any contract entered into pursuant to this
advertisement, disadvantaged business enterprises will be afforded full opportunity to
submit bids in response to this invitation and will not be discriminated against on the
grounds of race, color, or national origin in consideration for an award."
3. The City of Bangor will insert the clauses of Appendix A and E of this Assurance in every
contract or agreement subject to the Acts and the Regulations.
4. If applicable, the City of Bangor will insert the clauses of Appendix B of this Assurance, as a
covenant running with the land, in any deed from the United States effecting or recording a
transfer of real property, structures, use, or improvements thereon or interest therein.
5. That where the City of Bangor receives Federal financial assistance to construct a facility, or
part of a facility, the Assurance will extend to the entire facility and facilities operated in
connection therewith.
6. That where the City of Bangor receives Federal financial assistance in the form, or for the
acquisition of real property or an interest in real property, the Assurance will extend to rights to
space on, over, or under such property.
7. If applicable, the City of Bangor will include the clauses in Appendix C and Appendix D of
this Assurance, as a covenant running with the land, in any future deeds, leases, licenses,
permits, or similar instruments entered into by the City of Bangor with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable
activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property
acquired or improved under the applicable activity, project, or program.
8. That this Assurance obligates the City of Bangor for the period during which Federal financial
assistance is extended to the program, except where the Federal financial assistance is to
provide, or is in the form of, personal property, or real property, or interest therein, or structures
or improvements thereon, in which case the Assurance obligates the City of Bangor, or any
transferee for the longer of the following periods:
the period during which the property is used for a purpose for which the Federal
financial assistance is extended, or for another purpose involving the provision of
similar services or benefits; or
b. the period during which the City of Bangor retains ownership or possession of the
property.
9. The City of Bangor will provide for such methods of administration for the program as are
found by the Secretary of Transportation or the official to whom he/she delegates specific
authority to give reasonable guarantee that it, other recipients, sub -recipients, sub -grantees,
contractors, subcontractors, consultants, transferees, successors in interest, and other
participants of Federal financial assistance under such program will comply with all
requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
10. The City of Bangor agrees that the United States has a right to seek judicial enforcement
regarding any matter arising under the Acts, the Regulations, and this Assurance.
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By signing this ASSURANCE, the City of Bangor agrees to comply with (and to require consultants,
contractors, successors, transferees, and/or assignees to comply with) applicable provisions governing
the FHWA and USDOT access to records, accounts, documents, information, facilities and staff. The
City of Bangor also recognizes that it must comply with any program or compliance reviews, and/or
complaint investigations conducted by the FHWA and USDOT. The City of Bangor must keep
records, reports, and submit the material for review upon request to the FHWA and USDOT, or their
designees, in a timely, complete and accurate way. Additionally, the City of Bangor must comply
with all other reporting, data collection and evaluation requirements, as prescribed by law or detailed
in program guidance.
The City of Bangor gives this ASSURANCE in consideration of and for obtaining any Federal grants,
loans, contracts, agreements, property, and/or discounts, or other Federal and Federal financial
assistance extended after the date hereof by the USDOT under the Federal -Aid Highway Program.
This ASSURANCE is binding on the City of Bangor, sub -grantees, contractors, subcontractors and
their subcontractors, transferees, successors in interest, and any other participants in the Federal -Aid
Highway Program.
The person signing below is authorized to sign this ASSURANCE on behalf of the City of Bangor.
City of Bangor
Debbie Laurie, City Manager
DATED:
Encl.: Appendix A through Appendix E
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APPENDIX A
PERFORMANCE REQUIREMENTS
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the
Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S.
Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from
time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will
not discriminate on the grounds of race, color, or national origin in the selection and retention of
subcontractors, including procurements of materials and leases of equipment. The contractor will not
participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set
forth in Appendix E, including employment practices when the contract covers any activity, project, or
program set forth in Appendix B of 49 CFR Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation made by the contractor for work to be
performed under a subcontract, including procurements of materials, or leases of equipment, each
potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under
this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race,
color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts,
the Regulations and directives issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information, and its facilities as may be determined by the City of Bangor or
the FHWA, to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where
any information required of a contractor is in the exclusive possession of another who fails or refuses to
furnish the information, the contractor will so certify to the City of Bangor or the FHWA, as appropriate,
and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the nondiscrimination
provisions of this contract, the City of Bangor will impose such contract sanctions as it or the FHWA
may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor complies; and/or
b. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six
in every subcontract, including procurements of materials and leases of equipment, unless exempt by the
Acts, the Regulations and directives issued pursuant thereto. The contractor will act with respect to any
subcontract or procurement as the City of Bangor or the FHWA may direct as a means of enforcing such
provisions, including sanctions for noncompliance. Provided, that if the contractor becomes involved in,
or is threatened with litigation by a subcontractor or supplier because of such direction, the contractor
may request the City of Bangor to enter into any litigation to protect the interests of the City of Bangor.
In addition, the contractor may request the United States to enter into the litigation to protect the interests
of the United States.
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APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
If applicable, the following clauses will be included in deeds effecting or recording the transfer of real
property, structures, or improvements thereon, or granting interest therein from the United States pursuant
to the provisions of Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation (USDOT) as authorized by law and upon
the condition that the City of Bangor will accept title to the lands and maintain the project constructed
thereon in accordance with 49 U.S. Code §5334, the Regulations for the Administration of the Federal
Aid Highway Program, and the policies and procedures prescribed by the Federal Highway
Administration (FHWA) of the USDOT in accordance and in compliance with all requirements imposed
by Title 49, Code of Federal Regulations, USDOT, Subtitle A, Office of the Secretary, Part 21, non-
discrimination in federally assisted programs of the USDOT pertaining to and effectuating the provisions
of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby
remise, release, quitclaim and convey unto the City of Bangor all the right, title and interest of the
USDOT in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the City of Bangor and its successors
forever, subject to the covenants, conditions, restrictions and reservations herein contained as follows,
which will remain in effect for the period during which the real property or structures are used for a
purpose for which Federal financial assistance is extended or for another purpose involving the provision
of similar services or benefits and will be binding on the City of Bangor, its successors and assigns.
The City of Bangor, in consideration of the conveyance of said lands and interests in lands, does hereby
covenant and agree as a covenant running with the land for itself, its successors and assigns, that
(1) no person will on the grounds of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be otherwise subjected to discrimination regarding any facility located
wholly or in part on, over, or under such lands hereby conveyed [,] [and]*
(2) that the City of Bangor will use the lands and interests in lands and interests in lands so conveyed,
in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
USDOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -assisted
programs of the USDOT, Effectuation of Title VI of the Civil Rights Act of 1964, and as said
Regulations and Acts may be amended [i and
(3) that in the event of breach of any of the above -mentioned non-discrimination conditions, the
USDOT will have a right to enter or re-enter said lands and facilities on said land, and that above
described land and facilities will thereon revert to and vest in and become the absolute property of the
USDOT and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is
necessary in order to make clear the purpose of Title VI.)
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APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED
UNDER THE ACTIVITY, FACILITY OR PROGRAM
If applicable, the following clauses will be included in deeds, licenses, leases, permits, or similar
instruments entered into by the City of Bangor pursuant to the provisions of Assurance 7(a):
A. The City of Bangor, for itself, its assignees, and successors in interest, as a part of the
consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a
covenant running with the land"] that:
In the event facilities are constructed, maintained, or otherwise operated on the property
described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation activity, facility, or program is extended or for another
purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee,
permittee, etc.) will maintain and operate such facilities and services in compliance with all
requirements imposed by the Acts and Regulations (as may be amended) such that no person
on the grounds of race, color, or national origin, will be excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above non-
discrimination covenants, the City of Bangor will have the right to terminate the (lease, license,
permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the
same as if the (lease, license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above non-discrimination covenants,
the City of Bangor will have the right to enter or re-enter the lands and facilities thereon, and the
above described lands and facilities will there upon revert to and vest in and become the absolute
property of the City of Bangor and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is
necessary to make clear the purpose of Title VI.)
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APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED
UNDER THE ACTIVITY, FACILITY OR PROGRAM
If applicable, the following clauses will be included in deeds, licenses, permits, or similar
instruments/agreements entered into by the City of Bangor pursuant to the provisions of Assurance 7(b):
A. The City of Bangor, for itself, its assignees, and successors in interest, as a part of the
consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, "as a
covenant running with the land") that (1) no person on the ground of race, color, or national
origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities, (2) that in the construction of any improvements on,
over, or under such land, and the furnishing of services thereon, no person on the ground of race,
color, or national origin, will be excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.)
will use the premises in compliance with all other requirements imposed by or pursuant to the
Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above non-
discrimination covenants, the City of Bangor will have the right to terminate the (license, permit,
etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and
hold the same as if said (license, permit, etc., as appropriate) had never been made or issued. *
C. With respect to deeds, in the event of breach of any of the above non-discrimination covenants,
the City of Bangor will thereupon revert to and vest in and become the absolute property of the
City of Bangor and its assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause IS
necessary to make clear the purpose of Title VI.)
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APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination
statutes and authorities, including but not limited to:
Pertinent Non -Discrimination Authorities:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq., 78 stat. 252), (prohibits
discrimination based on race, color, national origin); and 49 CFR Part 21.
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. §4601), (prohibits unfair treatment of persons displaced or whose property has been
acquired because of Federal or Federal programs and projects);
• Federal Highway Act of 1973, (23 U.S.C. §324 et seq.), (prohibits discrimination based on sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. §794 et seq.), as amended, (prohibits
discrimination based on disability); and 49 CFR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. §6101 et seq.), (prohibits
discrimination based on age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. §471, Section 47123), as amended,
(prohibits discrimination based on race, creed, color, national origin, or sex);
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and
Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs
or activities" to include all of the programs or activities of the Federal recipients, sub -recipients
and contractors, whether such programs or activities are Federally funded or not);
Titles II and III of the Americans with Disabilities Act, which prohibit discrimination based on
disability in the operation of public entities, public and private transportation systems, places of
public accommodation, and certain testing entities (42 U.S.C. §§12131-12189) as implemented by
Department of Transportation regulations at 49 C.F.R. Parts 37 and 38;
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. §47123) (prohibits
discrimination based on race, color, national origin and sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which ensures non-discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-income populations;
Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes discrimination
because of limited English proficiency (LEP). To assure compliance with Title VI, you must take
reasonable steps to assure that LEP persons have meaningful access to your programs (70 Fed.
Reg. at 74087 to 74100);
Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating of sex in education programs or activities (20 U.S.C. 1681 et seq.).
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IN CITY COUNCIL
JUNE 26, 2023
CO 23-201
Passed
CITY CLERK