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HomeMy WebLinkAbout2013-10-16 13-331 ORDERCOUNCIL ACTION Item No. 13-331 Date: October 16, 2013 Item/Subject: ORDER, Authorizing Execution of Agreement for Maine Department of Transportation Local Project — WIN 18448.00, Main Street Safety Improvements Responsible Department: Engineering Commentary: This order would authorize the City Manager to execute a Local Project Agreement with the Maine Department of Transportation for preliminary engineering, construction, and construction engineering for construction of a center island along a portion of Main Street (Route 202), from Dutton Street to Cedar Street, and sidewalk improvements from Dutton to Railroad Street. The Maine Department of Transportation has approved federal and state funds in an amount not to exceed $1,200,000 which includes a State share of $960,000 or 80% of construction costs and a City share of funding of $240,000 or 20% of construction costs. As part of that project, the City would need to enter into a local project agreement with the Maine Department of Transportation which have been reviewed and recommended for approval by the Infrastructure Committee at its October 7, 2013 meeting. Arthur B. Morgan, P.E. Department Head Manager's Comments: %� _ � / _^ n�� LILY C 1U U1 City Manager Associated Information: Councilor Order and Agreement Budget Approval: Finance Director Legal Approval: ity olicitor Introduced for _ Passage CONSENT First Reading Page _ of _ _ Referral Assigned to Councilor Gallant CITY OF BANGOR 13-331 OCTOBER 16, 2013 (TITLE.) ORDER, Authorizing the Execution of Agreement for Maine Department of Transportation Local Project — WIN #018448.00, Main Street Safety Improvements ORDERED, THAT: the City Manager is hereby authorized and directed to execute an agreement with the Maine Department of Transportation for the following: An Agreement with the Maine Department of Transportation — Main Street Center Island from Dutton Street to Cedar Street and Sidewalk, Project, WIN 018448.00. Copy of the agreement is attached. IN CITY COUNCIL October 16, 2013 13-331 OCTOBER 16, 2013 C. ROLE OF MUNICIPALITY. The Municipality shall take the lead in developing the Project and shall assign a certified Local Project Administrator to oversee all local responsibilities. This person shall be responsible for the Project at all times and shall follow the procedures described in the latest 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 — will have the authority to approve or deny 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. ARTICLE II. PROJECT DEVELOPMENT A. AUTHORIZATION. The Municipality shall receive Notice to Proceed from MaineDOT before starting any work on the Project. Any municipal costs incurred before such Notice shall be ineligible for reimbursement. Such ineligible costs shall not be credited toward the Municipality's match. B. BUDGET AND SCHEDULE. Upon receiving Notice to Proceed, the Local Project Administrator shall review with the MaineDOT Project Manager the 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. C. PROGRESS REPORTS. The Municipality shall provide the MaineDOT Project Manager with monthly progress updates, in accordance with MaineDOT's Consultant General Conditions. D. CONSULTANT SERVICES. The Municipality may contract for engineering services as necessary to develop and oversee the Project, as follows: 1. Qualifications -based selection shall be used, pursuant to federal regulation 23 CFR, Part 172. Price shall not be a factor in the evaluation or ranking of any consultant. 2. The Municipality shall develop an independent estimate, in accordance with 23 CFR, Part 172.7(v). Said estimate shall be the basis for negotiations with the highest qualified consultant toward a fair and reasonable price. 3. The Municipality shall incorporate the terms and conditions from the latest version of MaineDOT's Consultant General Conditions — including FHWA Form 1273 — when executing all contracts for consultants who will be performing work pursuant to this Agreement. 4. No contract shall be awarded without the approval of MaineDOT. Upon such approval, the Municipality shall monitor all work performed under any such contract. 5. Contract modifications shall be approved by MaineDOT before execution. MaineDOT reserves the right not to participate in any modification executed without prior approval. E. DESIGN. The Municipality or its consultant shall prepare all design plans, specifications, estimates and contract documents for the Project — in accordance with MaineDOT's standards and procedures. The Municipality shall obtain MaineDOT's approval of all design plans, specifications, estimates and contract documents before requesting authorization to advertise for construction bids. LAP Agreement. Bangor Main Street HPP, WIN 018448.00 Page 2 of 10 -9 Wk MaineDOT TEDOCS #: CT #: CSN.- MAINE SN: 13-331 UG I UbtK l b. ZU13 iLfaineDOT use only Multimodal MAINE DEPARTMENT OF TRANSPORTATION Locally Administered Project Agreement With the Municipality of Bangor Regarding Main Street Safety Improvements Total Amount: $1,200,000.00 Federal Share: $960,000.00 State Share: N/A Municipal Share: $240,000.00 Agreement Begin Date: Agreement End Date: (MaineDOT Use Only - Revised 09/2013) State WIN: 018448.00 Federal Project #: HPP-1844(800) Type of Project: Locally Administered Project Vendor Customer #: VC1000007010 DUNS® Number: 07-173-9692 U.S. CFDA #: 20.205 Highway Planning & Construction This Agreement for a locally administered federal -aid project is made between the Maine Department of Transportation, a Maine State Government agency headquartered at 24 Child Street in Augusta, Maine ("MaineDOT,") and the Municipality of Bangor, a municipal corporation and body politic with its administrative offices at 73 Harlow Street in Bangor, Maine ("the Municipality.") • The following attachments are incorporated into this Agreement: 0 Appendix A: Federal Funding Accountability and Transparency Act Form WHEREAS, the Municipality was awarded congressionally designated federal -aid transportation funding, through MaineDOT, for the Project described herein; and WHEREAS, this Agreement sets out the requirements for the Project and the terms and conditions of the 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. Preliminary engineering, construction and construction engineering work for a center island along a portion of Main Street (Route 202), from Dutton Street to Cedar Street, and sidewalk improvements from Dutton Street to Railroad Street ("the Project.") The work shall be performed by or for the Municipality and accepted by MaineDOT. Any change shall require written approval from MaineDOT. B. FUNDING. MaineDOT and the Municipality will share in the funding of the Project at the rates described in Article III, Paragraphs A and B, up to One Million Two Hundred Thousand Dollars ($1,200,000.) Project costs eligible for federal funding shall not exceed this amount without written approval from MaineDOT. LAP Agreement. Bangor Main Street RPP, WIN 018448.00 Page 1 of 10 13-331 OCTOBER 16, 2013 F. PUBLIC PARTICIPATION. The Municipality shall provide opportunity for public participation in the development of the project. A Public Process Certification (Letter 16) shall be provided to MaineDOT before the Municipality may request authorization to advertise for construction bids. G. UTILITIES. The Municipality or its consultant shall coordinate all matters regarding utilities, prepare all related documentation, and submit such documentation to MaineDOT with a Utility Certification (Letter 13) before requesting authorization to advertise for construction bids. Such work shall be done in accordance with MaineDOT's Utility Accommodation Policy. H. ENVIRONMENTAL PROCESS. The Municipality or its consultant shall prepare and submit to MaineDOT all required environmental documents, including but not limited to Letter 11 and the National Environmental Policy Act (NEPA) checklist. MaineDOT will prepare and submit to the Federal Highway Administration all documentation required under NEPA. I. PERMITS. The Municipality or its consultant shall obtain all approvals, permits and licenses needed for the Project. Copies shall be provided to MaineDOT with an Environmental Certification (Letter 12) before the Municipality requests authorization to advertise for construction bids. J. RIGHT OF WAY. If applicable, MaineDOT will acquire all property or property rights necessary to construct and maintain the Project. In such an event, the Parties will determine at kickoff whether MaineDOT or the Municipality will coordinate the development of final right-of-way plans. MaineDOT will be fully responsible for title examinations, appraisal services, appraisal reviews, negotiations with property owners, acquisition/condemnation, and certification that all necessary rights have been acquired. K. ADVERTISE AND AWARD. The Municipality shall obtain MaineDOT's authorization before advertising for construction bids. Upon receiving such authorization, the Municipality shall follow the process outlined below: 1. The Municipality shall solicit bids 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 construction contract must specify that the Project comply with MaineDOT's Standard Specifications (December 2002) and applicable special provisions. 6. Form FHWA-1273 shall be physically incorporated into the construction contract. 7. Upon award, the Municipality shall hold a preconstruction meeting with MaineDOT, 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 or to furnish materials to be used on the Project, the Municipality shall provide MaineDOT with a Public Interest Finding and obtain MaineDOT's authorization before starting work. If so authorized to use a "Force Account" process, the Municipality shall comply with the applicable regulations — 23 CFR, Parts 635.201 to 635.205. LAP Agreement. Bangor Main Street HPP, WIN 018448.00 Page 3 of 15 13-331 OCTOBER 16, 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: 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. Any contract modification (change order) shall be approved by MaineDOT before it is executed. MaineDOT reserves the right not to participate in any modification executed without such approval. 4. 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). 5. Within 90 days of completion of construction, the Municipality shall provide MaineDOT with "as -built" plans on Mylar or other acceptable archival -quality material. 6. Upon completion, 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 all sidewalks improved as part of the Project for their useful design life or twenty (20) years, whichever is longer. Maintenance shall consist of general upkeep and repairs necessitated by weather, age and public use. ARTICLE III. COST-SHARING & REIMBURSEMENT A. MAINEDOT SHARE. MaineDOT, using funding from the Federal Highway Administration, will reimburse the Municipality for eighty percent (80%) of actual Project costs eligible for federal funding, not to exceed Nine Hundred Sixty Thousand Dollars ($960,000, or 80% of $1,200,000.) B. LOCAL SHARE. The Municipality, using resources other than from the U.S. Department of Transportation, shall be responsible for twenty percent (20%) of actual Project costs eligible for federal funding, including its share of costs incurred by MaineDOT as described in Paragraph C of this Article III. Accordingly, the Municipality's share is approximately Two Hundred Forty Thousand Dollars ($240,000, or 20% of $1,200,000.) Furthermore: 1. The Municipality shall be responsible for all costs deemed ineligible for federal -aid funding and all Project costs exceeding the maximum amount reimbursable to the Municipality, as stated in Article III.A. LAP Agreement. Bangor Main Street HPP, WIN 018448.00 Page 4 of 10 13-331 OCTOBER 16, 2013 C. MAINEDOT COSTS. All costs incurred by MaineDOT staff in the development and oversight of the Project shall be paid for with Project funds, including but not limited to design reviews, environmental support, right-of-way support, and construction engineering. These costs will be reconciled upon Project completion and deducted from the Municipality's final billing. D. REIMBURSEMENT. MaineDOT will reimburse the Municipality for the federal portion of eligible Project costs, as described in Paragraph A. The Municipality shall bill MaineDOT no more frequently than monthly for such costs, which are incurred when work is performed, goods and services are received, or a cash payment is made. Bills are subject to these conditions: 1. Claims shall be submitted on the Municipality's billhead and reference WIN 018448.00. 2. Each invoice must be accompanied by a progress ss report, as described in Article H.C. 3. Each invoice shall contain an itemized account of expenditures consistent with the approved budget. Backup documentation and proof of payment made must accompany each invoice. 4. Each invoice must have an accumulative total and a breakdown of MaineDOT's and the 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, 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. Furthermore: 1. MaineDOT shall have all of its common law, equitable and statutory rights of set-off to recover any payment to the Municipality for any activity that is subsequently deemed ineligible for federal funding, including but not limited to withholding any money owed to the Municipality under this Agreement and any other agreement with MaineDOT or other State agency. 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 with a thirty (30) day written notice to the Municipality — if any of the following occurs: 1. MaineDOT does not receive adequate funds to support this Project; or 2. Funds otherwise programmed for this Project are de -appropriated; or 3. MaineDOT does not receive the authority to expend funds programmed for this Project. LAP Agreement. Bangor Main Street HPP, WIN 018448.00 Page 5 of 10 13-331 OCTOBER 16, 2013 ARTICLE V. TERMINATION A. FOR CAUSE. MaineDOT reserves the right to terminate the payment provisions of Article III in the event of substantial default by the Municipality, defined as one or more of the following: 1. Failure to show satisfactory progress — as determined by the MaineDOT Project Manager — within twelve (12) 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. MaineDOT will notify the Municipality 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 written notice of termination, the Municipality and all consultants and contractors associated with the Project shall cease work immediately — 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 substantial default occurs, MaineDOT reserves the right to recover from the Municipality all funds reimbursed for Project -related work, in accordance with the provisions of Article III.E. 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 four (4) 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 four (4) 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. LAP Agreement: Bangor Main Street MPP, WIN 018448.00 Page 6 of 10 13-331 OCTOBER 16, 2013 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 TERMS AND CONDITIONS A. Observance of Law. All activities conducted pursuant to this Agreement shall comply with applicable laws and regulations, including but not limited to the following: Title 23 in the United States Code (USC); Title 23 in the U.S. Code of Federal Regulations (CFR); and 49 CFR Part 18, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments." B. Indemnification. To the extent permitted by law, the Municipality shall indemnify, defend and hold harmless MaineDOT, its officers, agents and employees from all claims, suits or liabilities arising from any negligent or wrongful act, error or omission by the Municipality, its officials, employees, agents, 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. Section 8101 et. seq.) or any other privileges or immunities provided by law. This provision shall survive any termination or expiration of this Agreement. C. Confidentiality. Information pertaining to right-of-way negotiations, property appraisals and engineering estimates of construction costs shall be kept confidential in accordance with the provisions of Maine State law (23 MRSA, Section 63.) D. Equal Employment Opportunity. The Municipality shall meet applicable equal employment opportunity requirements as follows: 1. The Municipality shall not discriminate against any employee or applicant for employment relating specifically to work under this Agreement because of race, color, religious creed, sex, national origin, ancestry, age or physical handicap unless related to a bona fide occupational qualification. The Municipality shall take affirmative action to ensure that all such applicants are employed and that all such employees are treated regardless of their race, color, religious creed, sex, national origin, ancestry, age or physical handicap during any period of employment under this Agreement. Such action shall include, but not be limited to: employment, upgrading, demotions, transfers, recruitment, layoffs or terminations, rates of pay or other forms of compensation and selection for all forms of training and apprenticeships. The Municipality shall post prominently in places readily available to all employees and applicants for such employment under this Agreement notices setting forth the provisions of this paragraph. 2. In all solicitations or advertising for employees relating to work done under this Agreement, the Municipality shall state that all qualified applicants shall receive consideration for employment regardless of race, color, religious creed, sex, national origin, ancestry, age or physical handicap. 3. The Municipality shall send to each representative of any of its employees covered by a collective-bargaining agreement — or any other contract or understanding under which labor or services are to be furnished under this Agreement — a notice advising of the Municipality's commitment under this Article and shall post copies prominently in places readily available to all such employees and applicants for employment. LAP Agreement: Bangor Main Street HPP, WIN 018448.00 Page 7 of 10 13-331 OCTOBER 16, 2013 4. The Municipality shall include all of the foregoing equal employment opportunity provisions under this Article in any contract for services or work for the Project so that such provisions are binding upon each consultant — with the exception of any contract for the purchase of standard commercial supplies or raw materials. To the maximum extent feasible, the Municipality or any of its consultants shall list all suitable employment openings with the Maine Job Service. This provision shall not apply to employment openings that the Municipality or any of its consultants propose to fill from within their own organization. E. Independent Capacity. The Municipality, its employees, agents, representatives, consultants or contractors shall not act as officers, employees or agents of MaineDOT. 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 all such action release the Municipality from liability under this Agreement. H. Other Considerations. The Municipality and MaineDOT ("the Parties") further agree that: 1. Neither the Municipality nor MaineDOT shall 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. 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), Article VII.B (indemnification) and Article VII.0 (confidentiality) — shall expire not later than four (4) years from the final day of the month in which the undersigned MaineDOT representative executed this Agreement, unless otherwise modified in writing by the Parties to this Agreement. Articles VII.B-C shall remain effective indefinitely or until specifically terminated in writing by the Parties to this Agreement or negated by law. ARTICLE IX. APPROVAL A. Debarment. By signing this Agreement, the Municipality certifies — to the best of its knowledge and belief — that it and its officers, employees, agents 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: LAP Agreement. Bangor Main Street HPP, WIN 018448.00 Page 8 of 10 13-331 OCTOBER 16, 2013 • 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 commission of 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 participating in this transaction by any federal or state agency. The Municipality shall provide documentation that it has verified the debarment status of each consultant and contactor hired to work on the Project under this Agreement. 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 Catherine M. Conlow, City Manager Date: Maine Department of Transportation Lo William A. Pulver, P.E., Director, Bureau of Project Development Date: I certify that the signature above is true and accurate. I further certify that the signature, if electronic: (a) is intended to have the same force as a manual signature; (b) is unique to myself; (c) is capable of verification; and (d) is under the sole of myself. NOTE: ANADDITIONAL MUNICIPAL SIGNATURE IS REQUIRED ONAPPENDIX A 4 LAP Agreement: Bangor Main Street RPP, WIN 018448.00 Page 9 of 10 13-331 OCTOBER 16, 2013 APPENDIX A TO A LOCALLY ADMINISTERED PROJECT AGREEMENT: 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. Since the Federal portion of the Project exceeds $25,000, an authorized representative from the Municipality shall sign this document below and return it with the Project Agreement. Municipality of Bangor, Maine 07-173-9692 Sign and Print Legal CCR Name DLTNS Number Authorized Representative: Catherine M. Conlow, City Manager LAP Agreement: Bangor Main Street MPP, WIN 018448.00 Page 10 of 10