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HomeMy WebLinkAbout2013-05-13 13-170 ORDERCOUNCIL ACTION Item No. 13-170 Date: May 13, 2013 Item/Subject: Order, Authorizing the City Manager to Execute an Agreement with the Maine Department of Transportation — Kittredge Road Realignment Project, MDOT #18435.00 Responsible Department: Engineering Commentary: The attached Order would authorize the City Manager to execute a Local Project Agreement with Maine Department of Transportation for the realignment of Kittredge Road, MDOT PIN #18435.00. The scope of work consists of design and construction of a realignment of a portion of Kittredge Road to direct traffic away from the intersection of Hogan Road and Stillwater Avenue. The total approved funding for the project is $326,500, with 80% or $261,200 of the funds coming from Maine DOT and 20% or $65,300 coming from the City. The Infrastructure Committee reviewed and recommended this for approval on April 23, 2013. Manager's Comments: Arthur B. Morgan Department Head City Manage Associated Information Agreement Budget Approval: Finance Director Legal Approval: ity olicitor Introduced for X Passage First Reading Page _ of _ Referral Assigned to Councilor Civiello CITY OF BANGOR 13-170 MAY 139 2013 (TITLE.) Order, Authorizing the City Manager to Execute an Agreement with the Maine Department of Transportation — Kittredge Road Realignment Project, MDOT *18435.00 By the City COundl of the Oty ofBangor. THAT the City Manager is hereby authorized and directed to execute an agreement with the Maine Department of Transportation to realign a portion of Kittredge Road to direct traffic away from the intersection of Hogan Road and Stillwater Avenue, MDOT #18435.00. A copy of the Agreement is attached. IN CITY COUNCIL May 13, 2013 Motion made and seconded for Passage Passed DEPUTY CITY CL RK a WA MaineDOT 13-170 MAY 13, 2013 State AMS ID #. TEDOCS #.- Local Public Agency Agreement Between the Maine Department of Transportation And the Municipality of Bangor, Maine (DUNS® Number 07-173-9692) Kittredge Road Realignment: Federal Project STP -1843(500)X; MaineDOT WIN 018435.00 This Agreement for the above -referenced locally administered Federal -aid Project is made between the Maine Department of Transportation, a Maine State Government agency with its headquarters on Child Street in Augusta, Maine ("MaineDOT,") and the Municipality of Bangor, a municipal corporation and body politic with its principal administrative offices at 73 Harlow Street in Bangor, Maine ("the Municipality.") WHEREAS, the Municipality was awarded congressionally designated federal -aid transportation funding for the Project described herein (Demo ID ME -081, U.S. CFDA number 20.205); and WHEREAS, this Agreement sets out requirements for the Project and terms and conditions of MaineDOT's funding to the Municipality. NOW, in consideration of the foregoing, MaineDOT and the Municipality agree as follows: ARTICLE I. PROJECT OVERVIEW A. SCOPE OF WORK. The scope of work consists of design and construction of a realignment of a portion of Kittredge Road to direct traffic away from the intersection of Hogan Road and Stillwater Avenue ("the Project.") The work shall be performed by or for the Municipality and accepted by MaineDOT. Any change to this scope of work shall be approved by MaineDOT. B. FUNDING. Total approved funding for the Project is Three Hundred Twenty -Six Thousand Five Hundred Dollars ($326,500), consisting of eighty percent (80%) from MaineDOT and twenty percent (20%) from the Municipality, as shown in Article III. Project costs eligible for federal and/or state funding shall not exceed this total amount without approval of MaineDOT. C. ROLE OF MUNICIPALITY. The Municipality shall take the lead in developing the Project and shall assign a Local Project Administrator to oversee all local responsibilities. This person shall be in responsible charge of the Project at all times and shall follow the procedures described in the most recent version of MaineDOT's Local Project Administration Manual. D. ROLE OF MAINEDOT. MaineDOT will assign a Project Manager to advise, review and approve on behalf of the State. This person — or his or her designee — shall have the authority to approve or deny payment of reimbursement requests; review and require revision of plans and specifications; inspect, reject and stop work; and take all other action necessary to ensure proper performance of this Agreement. Municipality of Bangor - Project Agreement Page I of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 ARTICLE 11. PROJECT DEVELOPMENT A. AUTHORIZATIONS. The Municipality shall receive "Notice to Proceed" from MaineDOT before starting any work on the Project. Any municipal costs incurred before such approval shall be neither eligible for reimbursement nor credited toward the Municipality's match. B. BUDGET AND SCHEDULE. Upon receiving "Notice to Proceed," the Municipality's Local Project Administrator shall review with the MaineDOT Project Manager the proposed scope of work, budget, schedule, and requirements for the Project. Within sixty (60) days of receiving such Notice, the Municipality shall provide MaineDOT with the following: 1. Milestones and dates to set a baseline schedule and measure the Municipality's progress. 2. An updated line -item budget of itemized costs. C. PROGRESS REPORTS. The Municipality shall provide the MaineDOT Project Manager with monthly progress updates for the duration of the Project, in accordance with MaineDOT's Consultant General Conditions. D. CONSULTANT SERVICES. The Municipality may contract for consultant engineering services as necessary to develop the Project, provided that: 1. A qualifications -based selection process shall be used, pursuant to federal regulation 23 CFR, Part 172, "Administration of Engineering and Design Related Service Contracts." 2. Before beginning negotiations with the most highly qualified consultant, the Municipality shall develop an independent cost estimate, in accordance with 23 CFR, Part 172.7(v). The independent estimate shall be the basis for negotiations toward a fair and reasonable cost. 3. No contract shall be awarded without the approval of MaineDOT. Upon such approval, the Municipality shall monitor all work performed under any such contract. 4. MaineDOT's Consultant General Conditions shall govern all non -construction work. E. DESIGN. The Municipality or its consultant shall prepare all design plans, specifications, estimates and contract documents for the Project, in accordance MaineDOT's standards and procedures as described in the most recent version of the Local Project Administration Manual. Design features shall conform to applicable sections of the most recent versions of MaineDOT's Highway Design Guide, Standard Specifications, and Standard Details. MaineDOT will approve all plans, specifications, estimates and contract documents before the Municipality requests authorization to advertise the Project for construction. F. PUBLIC PARTICIPATION. The Municipality shall encourage and provide opportunity for public participation in the development of the Project. G. UTILITIES. Plans and specifications shall conform to MaineDOT's Utility Accommodation Policy. The Municipality or its consultant shall coordinate all matters regarding utilities, prepare all documentation, and submit such documentation to MaineDOT for review before requesting authorization to advertise the Project for construction. Municipality of Bangor - Project Agreement Page 2 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13. 2013 H. ENVIRONMENTAL PROCESS. The Municipality or its consultant shall prepare and submit to MaineDOT for review all required environmental documents. MaineDOT will prepare and submit to the Federal Highway Administration all documentation required under the National Environmental Policy Act. I. PERMITS. The Municipality or its consultant shall obtain all approvals, permits and licenses necessary to construct the Project. Copies shall be provided to MaineDOT. J. PROPERTY ACQUISITION. If applicable, acquisition of all property necessary to construct and maintain the Project — whether permanent or temporary — shall be handled as follows: 1. MaineDOT will be responsible for acquiring all necessary property rights if the Project calls for improvements to a state or state -aid road. 2. The Municipality shall be responsible for acquiring all necessary property rights off of the state system, in consultation with MaineDOT, as follows: a.) The Municipality shall follow the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (49 CFR, Part 24). b.) The Municipality shall certify in writing to MaineDOT that it has acquired all property rights before requesting authorization to advertise the Project for construction. K. ADVERTISE AND AWARD. The Municipality shall obtain authorization from MaineDOT before advertising for construction bids for the Project. Upon receiving such authorization, the Municipality shall follow the process outlined below: 1. Bids shall be solicited in accordance with the plans and specifications that MaineDOT has approved. 2. The Municipality shall follow federal and state procurement policies and procedures, as applicable, unless otherwise approved by MaineDOT. 3. The Municipality and MaineDOT may accept or reject all bids. 4. The Municipality shall not award a contract without MaineDOT's approval. 5: The contract must specify that the Project comply with MaineDOT's Standard Specifications (December 2002) and applicable special provisions. 6. Upon contract award, the Municipality shall hold a preconstruction meeting involving MaineDOT Project Manager, the contractor, and all utilities and other parties involved in the construction process. L. FORCE ACCOUNT. If the Municipality intends to construct the Project with its municipal work force rather than hiring a contractor through competitive bidding — or if the Municipality intends to furnish any materials to be used on the Project — the Municipality shall provide MaineDOT with a Public Interest Findiniz and obtain approval from MaineDOT before proceeding. If approved to use a "Force Account" process, the Municipality shall comply with applicable federal regulations: 23 CFR, Parts 635.201 to 635.205. Municipality of Bangor - Project Agreement Page 3 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 M. CONSTRUCTION. The Municipality shall administer any construction contract and provide the supervision, inspection and documentation needed to ensure that the Project is completed to MaineDOT's satisfaction in accordance with the plans, specifications and provisions of the contract, as follows: 1. The Municipality shall use procedures acceptable to MaineDOT to document the quantity and quality of all construction -related work. The Municipality shall provide monthly progress reports and shall retain all documentation as provided under Article VI.A. 2. The Municipality shall provide for all materials testing necessary to comply with federal regulation 23 CFR, Part 637, "Quality Assurance Procedures for Construction." 3. Traffic in work zones shall be controlled in accordance with Part VI of the Federal Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). 4. Within 90 days of completion of construction, the Municipality shall provide MaineDOT with "as -built" plans on Mylar or other acceptable archival -quality material. 5. Upon completion of the Project, the Municipality shall provide compliance certification that the Project was constructed, quantities were measured and documented, and materials were tested in accordance with the plans, specifications and provisions of the construction contract, and in accordance with the policies and procedures approved by MaineDOT. N. INSPECTION. MaineDOT may inspect construction activities and documentation — and test any materials used — to ensure compliance with the construction contract. MaineDOT may reject any work or materials not in such compliance. O. MAINTENANCE. The Municipality shall maintain and operate the completed facility for its intended public purpose for twenty (20) years or its useful design life, whichever is longer. Maintenance shall consist at a minimum of general upkeep and repairs necessitated by weather, age and public use, in order to preserve the use and function of the completed facility as intended in this Agreement. ARTICLE III. COST-SHARING & REIMBURSEMENT A. MAINEDOT SHARE. MaineDOT — using federal funds — will be responsible for eighty percent (80%) of Project -related costs eligible for such funding, not to exceed Two Hundred Sixty -One Thousand Two Hundred Dollars ($261,200, or 80% of $326,500.) B. MUNICIPALITY SHARE. The Municipality shall be responsible for a non-federal match of twenty percent (20%) of Project -related costs eligible for federal funding, including such costs incurred by MaineDOT as described in Paragraph C below. Accordingly, the Municipality's share is approximately Sixty -Five Thousand Three Hundred Dollars ($65,300, or 20% of $326,500.) 1. Additionally, the Municipality shall be responsible for all costs deemed ineligible for federal funding and all costs exceeding Three Hundred Twenty -Six Thousand Five Hundred Dollars ($326,500), unless otherwise approved by MaineDOT through a Modification to this Agreement. Municipality of Bangor - Project Agreement Page 4 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 C. MAINEDOT COSTS. All costs incurred by MaineDOT staff in the development and oversight of the Project shall be accounted for with Project funds. Such costs may include — without being limited to — design reviews, environmental support, right-of-way support, and construction engineering. These costs will be reconciled upon completion of the Project and deducted from the final billing from the Municipality. D. REIMBURSEMENT. MaineDOT will reimburse the Municipality for the federal share of eligible costs described in Article IIIA above. The Municipality shall bill MaineDOT no more frequently than monthly for such costs, which are incurred whenever work is performed, goods and services are received, or a cash payment is made. All bills are subject to the following conditions: 1. Claims shall be submitted on the Municipality billhead and reference WIN 018435.00. 2. Each invoice must be accompanied by a progress report, as described in Article II.C. Each invoice shall contain an itemized account of expenditures consistent with the approved Project budget. Backup documentation and proof of payment made must accompany each invoice. 4. Each invoice must have an accumulative total by budget line item and a breakdown of MaineDOT's and Municipality's shares of total costs. 5. Each claim shall include a certification from the Municipality's Local Project Administrator that all amounts claimed are correct, due and not claimed previously, and that all applicable work was performed in accordance with the terms of this Agreement. 6. Any claim for less than one thousand dollars ($1,000) shall be deferred until the next regular billing period in which at least one thousand dollars ($1,000) is incurred or until a final invoice is submitted for reimbursement. E. REPAYMENT. MaineDOT reserves the right to require repayment of reimbursements to the Municipality of Bangor, if the Municipality takes action without approval from MaineDOT resulting in the loss of eligibility for federal funding — including but not limited to withdrawing from the Project, suspending or delaying work, or making acts of commission or omission. 1. Additionally, the MaineDOT reserves the right to require repayment of all reimbursements for preliminary engineering and right-of-way costs, if construction has not started by the close of the tenth fiscal year after federal funds for the Project were authorized. F. SET-OFF. MaineDOT shall have all of its common law, equitable and statutory rights of set-off in order to recover any payment to the Municipality for any action or activity subsequently deemed ineligible for federal or state funding. MaineDOT shall exercise its set-off rights in accordance with normal state practices. These rights shall include without limitation MaineDOT's option to withhold for the purposes of set-off any money owed to the Municipality under this Agreement and any other agreement with MaineDOT or any other state agency, including any contract for a term commencing before the term of this Agreement. Municipality of Bangor - Project Agreement Page 5 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 ARTICLE IV. NON -APPROPRIATION A. Notwithstanding any other provision of this Agreement, MaineDOT shall be released from its obligation to make payment toward the Project — and will terminate this Agreement upon thirty (30) days' written notice to Municipality — if any of the following occurs: 1. MaineDOT does not receive adequate funds to support the Project; or 2. Funds otherwise programmed for the Project are de -appropriated; or 3. MaineDOT does not receive the authority to expend funds programmed for the Project. ARTICLE V. DEFAULT AND TERMINATION A. TERMINATION FOR CAUSE. MaineDOT reserves the right to terminate the payment provisions of Article III in the event of substantial default by the Municipality, which is defined as one or more of the following: Failure to show satisfactory progress — as determined by the MaineDOT Project Manager — within 18 months of being given notice to proceed. 2. Use of Project funds for a purpose other than what is authorized by this Agreement; 3. Misrepresentation or falsification of any claim submitted for reimbursement; 4. Failure to monitor adequately the quality of materials used and work performed by any consultant or contractor, resulting in significant errors, omissions or negligence; 5. Breach of any material provision(s) of this Agreement. B. SUBSTANTIAL DEFAULT. MaineDOT will notify the Municipality in writing within five (5) days of learning of an event leading to a claim of substantial default. If the Municipality fails to take corrective action within fifteen (15) days of receiving notification of MaineDOT's dissatisfaction, MaineDOT may terminate this Agreement upon written notice to the Municipality. 1. Upon receiving notification, the Municipality and all consultants and contractors associated with the Project shall immediately cease work — except for any work required to protect public health and safety — and turn over to MaineDOT all Project records and documentation within thirty (30) days of the effective date of such termination. 2. In the event of termination for default by the Municipality, the Municipality's reimbursement shall be limited to payment for acceptable work or service accomplished under this Agreement until the effective date of such termination. 3. If default occurs, MaineDOT reserves the right to recover from the Municipality all federal and/or state funds reimbursed for Project -related work, as set forth in Article III.E and III.F. The Municipality shall forfeit all remaining federal and/or state funds in the Project. Municipality of Bangor - Project Agreement Page 6 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 C. TERMINATION FOR CONVENIENCE. MaineDOT may terminate this Agreement upon written notice to the Municipality, and in no event shall such action be deemed a breach of contract. If the reason for termination is other than for failure by the Municipality as described in Paragraph A of this Article V, the Municipality shall receive a written thirty (30) day notice. 1. Upon receipt of such notification, the Municipality or any consultant there under shall immediately cease all work or services subject to such termination — except for any work required to protect the public health and safety — and turn over to the MaineDOT within thirty (30) days following the effective date of such termination all Project records and documentation pursuant to this Agreement. 2. If the termination is for any reason other than that set forth under Article V.A, the Municipality shall be reimbursed for all acceptable work or services accomplished under this Agreement up until the effective date of such termination. ARTICLE VI. RECORDS RETENTION, ACCESS & AUDIT A. Retention. Records are plans, reports, notes, papers or other tangible work arising from this Agreement. All such printed and electronic records prepared by or for the Municipality shall be retained for seven (7) years from the date of MaineDOT's acceptance of the Municipality's final claim for reimbursement, except as otherwise provided below: 1. If any litigation, claim, negotiation, audit or other action involving such records has begun before the expiration of seven (7) year period, then all records shall be retained at least until all action and resolution of all issues arising from it are complete. B. Access. The Municipality and any consultant or contractor working on its behalf shall allow authorized representatives of the State of Maine and the Federal Government to inspect and audit Project documents. Copies of requested documents shall be furnished at no cost. C. Audit. Audits shall meet the "Generally Accepted Government Auditing Standards." The Municipality shall assure that all applicable audit requirements are met in accordance with federal Office of Management and Budget (OMB) Circular A-133, "Audits of States, Local Governments and Non -Profit Organizations." ARTICLE VII. GENERAL PROVISIONS A. Observance of Law. All activities conducted pursuant to this Agreement shall comply with applicable laws and regulations, including without limitation the following: Title 23 in the United States Code (USC) for statutory law and Title 23 in the Code of Federal Regulations (CFR) for administrative law. General administrative requirements relative to federally funded activities also are contained under 49 CFR Part 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments." B. Independent Capacity. When carrying out the provisions of this Agreement, the Municipality, its employees, agents, representatives, consultants or contractors shall act in an independent capacity from MaineDOT and not as officers, employees or agents of MaineDOT. Municipality of Bangor - Project Agreement Page 7 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 C. Indemnification. To the extent permitted by law, the Municipality shall indemnify and hold harmless MaineDOT and its officers, agents and employees from all claims, suits or liabilities arising from any negligent or wrongful act, error or omission by the Municipality or any of its consultants or contractors. Nothing herein shall waive any defense immunity or limitation of liability that may be available to the Municipality or MaineDOT, their officers, agents or employees, under the Maine Tort Claims Act (14 M.R.S. Section 8101 et seq.), the Eleventh Amendment to the U.S. Constitution, or any other privileges or immunities as may be provided by law. This provision shall survive any termination or expiration of this Agreement. D. Confidentiality. Information pertaining to right-of-way matters and detailed cost estimates shall be kept confidential pursuant to Maine State law (23 MRSA Section 63.) E. Changes. Any change(s) to the terms of this Agreement shall be approved by MaineDOT, through a Modification to this Agreement. F. Flow Down. All contracts between the Municipality and any consultant, contractor or other third party shall contain or incorporate by reference all applicable provisions of this Agreement. G. No Assignment Without Approval. The Municipality shall not sublet, sell, transfer, assign or otherwise dispose of this Agreement or any portion of it without the consent of MaineDOT. In no case shall any such action release the Municipality from liability under this Agreement. H. Equal Employment Opportunity. The Municipality shall comply with applicable EEO requirements: During the performance of any work undertaken pursuant to this Agreement, the Municipality shall not discriminate against any employee or applicant for employment because of race, color, religious creed, gender, national origin, ancestry, age, sexual orientation, or disability unless related to a bona fide occupational qualification. The Municipality shall take affirmative action to ensure that all such qualified applicants are employed and that all such employees are treated without regard to their race, color, religious creed, gender, national origin, ancestry, age, sexual orientation, or disability during any period of employment under this Agreement. Such action shall include, without limitation: employment, upgrading, demotions, transfers, recruitment, layoffs or terminations, rates of pay or other forms of compensation, and selection for training and apprenticeships. The Municipality shall post — or cause to be posted — prominently in places readily accessible to all employees and applicants for such employment notices setting forth the provisions of this paragraph. 2. All of the foregoing equal employment opportunity provisions shall be included in any contract for services or work under this Agreement so that the. provisions are binding upon each consultant and/or contractor — except for any contract for the purchase or supply of standard commercial supplies or raw materials. 3. The Municipality, its contractors and consultants shall list all employment opportunities arising out of or attributable to the Project with the Maine Job Service, except for openings to be filled with personnel already employed within those organizations before the effective date hereof and not hired in anticipation hereof. Municipality of Bangor - Project Agreement Page 8 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 I. Other Considerations. MaineDOT and the Municipality ("the Parties") further agree that: 1. Neither the Municipality nor MaineDOT will be bound by any previous statement, correspondence, agreement or representation not expressly contained herein. 2. This Agreement is made and shall be construed under the laws of the State of Maine. 3. If any clause, section or provision is held to be invalid or unenforceable, that shall not affect the entire agreement. In such an event, the Parties shall negotiate'a new clause, section or provision. ARTICLE VIII. EXPIRATION A. All provisions of this Agreement — except for Article II.O (maintenance), Article VI.A (records), and Article VII.0 (indemnification) — shall expire not more than four (4) years from the final day of the month in which the undersigned MaineDOT representative signed and dated this Agreement, unless otherwise modified in writing by the Parties. ARTICLE IX. APPROVAL A. Debarment. By signing this Agreement, the Municipality certifies — to the best of its knowledge and belief — that it and its employees, agents and/or representatives associated with the Project: 1. Are not now debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this transaction by any federal or state agency; 2. Have not within the previous three (3) years been criminally convicted or had a civil judgment rendered against them — and are not now criminally or civilly charged — in connection with any of the following: • Obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; or • Violating federal or state antitrust statutes or committing embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. 3. Have not within a 3 -year period preceding this agreement had one or more public transactions (federal, state or local) terminated for cause or default. B. If the Municipality is unable to certify to any of the preceding statements in this Article IX, the Municipality shall attach an explanation to this Agreement. C. The Municipality agrees that it will not hire a consultant or contractor who is now debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state agency. Municipality of Bangor - Project Agreement Page 9 of 10 Kittredge Road Realignment - WIN 018435.00 13-170 MAY 13, 2013 D. Municipal authorization. The undersigned municipal representative assures that the City Council of Bangor, Maine, has approved the Project and the Municipality's entry into this Agreement, has appropriated or authorized the use of any necessary funds, and has authorized the representative to sign this Agreement. IN WITNESS WHEREOF, MaineDOT and the Municipality have executed this Agreement effective on the date last signed. Municipality of Bangor, Maine (DUNS® Number 07-173-9692) Catherine M. Conlow, City Manager Date: Maine Department of Transportation Lo Joyce Noel Taylor, Director, Bureau of Project Development Date: FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT The Municipality of Bangor, Maine and its contractors may be subject to the provisions of the Federal Funding Accountability and Transparency Act ("FFATA") of 2006 as amended and any regulations, policies, procedures and guidance documents adopted pursuant thereto or in connection therewith. Because the Federal portion of the Project exceeds $25,000, an authorized representative from the Municipality shall sign this document below. Municipality of Bangor, Maine 07-173-9692 Sign and Print Legal CCR Name DUNS Number Authorized Representative: Catherine M. Conlow, City Manager Municipality of Bangor - Project Agreement Page 10 of 10 Kittredge Road Realignment - WIN 018435.00