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Parkline MDT Construction and Maintenance Agreement
CITY/STATE MEMORANDUM OF AGREEMENT KALISPELL RAIL TRAIL CONSTRUCTION AND MAINTENANCE AGREEMENT May2021 This Memorandum of Agreement ("Agreement") is made and entered into by and between of City of Kalispell ("the City"), whose address is P.O. Box 1997, Kalispell, MT 59903 and the State of Montana Department of Transportation ("MDT" or "the State"), whose address is 2701 Prospect Ave. P.O. Box 201001, Helena MT 59620-1001, together referred to as "the Parties". The Purpose of this Agreement is to set forth the respective design, construction and maintenance responsibilities and duties of the Parties associated with the shared use path encroachments within MDT right-of-way on S Meridian Road (U-6713), 51h Ave WN (U- 6721), US 93/S. Main St (N-5), 1St Ave EN (U-6723), 3rd Ave EN (U-6724), 41h Ave EN (U- 6715) and US 2/E. Idaho St (N-1). This Agreement sets forth terms necessary for the City to provide long term maintenance of the shared use path, pedestrian bridge, landscaping, lighting, and path connections shown in Attachment B within the MDT right-of-way. WHEREAS, MDT is responsible for planning, designing, constructing, and maintaining the State highway and roadway associated transportation facilities, including associated pull - off, parking areas, and rest areas for the use and benefit of the traveling public, in a safe and efficient manner in accordance with Title 23 United State Code (U.S.C.) and Title 60 Montana Code Annotated (MCA) including S Meridian Road, 51h Ave WN, US 93/S. Main St, 1St Ave NE, 3rd Ave NE, 41h Ave EN and US 2/E. Idaho St.; and WHEREAS, S Meridian Road (U-6713), 51h Ave WN (U-6721), 15Y Ave EN(U-6723), 3rd Ave EN(U-6724), and 41h Ave EN(U-6715) are on the Urban Highway System and US 93/S. Main St (N-5) and US 2/E. Idaho St (N-1) are on the National Highway System within the State of Montana and is eligible to receive Federal Highway Funds; and WHEREAS, the City has agreed to be responsible for the maintenance of the shared use path, pedestrian bridge, landscaping, lighting, and path connections herein after referred to as "the Project" within MDT right-of-way; and WHEREAS, in accordance with the State's agreement with the Federal Highway Administration (FHWA) of the U.S. Department of Transportation, MDT must ensure that certain requirements are met in order for MDT to fulfill its obligations to the FHWA and for S Meridian Road (U-6713), 51h Ave WN (U-6721), US 93/S. Main St (N-5), 1St Ave EN (U- 6723), 3rd Ave EN (U-6724), 41h Ave EN (U-6715) and US 2/E. Idaho St (N-1) to be eligible for federal funds; and WHEREAS, the Project includes the installation of a shared use path and path connections along the old railroad grade within MDT right-of-way on S Meridian Road (U-6713), 51h Ave Page 1 1 WN (U-6721), US 93/S. Main St (N-5), 1St Ave EN (U-6723), 3rd Ave EN (U-6724), 41h Ave EN(U-6715) and US 2/E. Idaho St (N-1) within the Kalispell City limits, per approved plans (Attachment B); and WHEREAS, the City has agreed be to maintain, or cause to be maintained the shared use path, pedestrian bridge, landscaping, lighting, and path connections within the S Meridian Road (U-6713), 51h Ave WN (U-6721), US 93/S. Main St (N-5), 1St Ave EN (U-6723), 3rd Ave EN (U-6724), 41h Ave EN (U-6715) and US 2/E. Idaho St (N-1) right of -way within the Kalispell City limits subject to this agreement; and WHEREAS, this Agreement must be fully executed before the facilities may be installed within MDT right-of-way; and NOW, THEREFORE, the Parties set forth the fundamental duties and responsibilities necessary for the City to maintain the facilities proposed by the Project within MDT right- of-way. ARTICLE 1. OBLIGATIONS OF THE CITY: 1. The Parties acknowledge the City has agreed to, and MDT has approved the general design of the Project including shared use path, pedestrian bridge, landscaping, lighting, and path connections planned for installation within MDT right-of-way. The documents are identified as Attachment B attached and made part of this agreement. 2. The City will submit and receive approval from MDT Kalispell Area Office for a traffic control plan prior to allowing work within MDT right-of-way. 3. The City shall schedule a preconstruction meeting with MDT Kalispell Area staff to discuss construction -related activities and coordination prior to initiating any work within MDT right-of-way. MDT Kalispell Area Maintenance staff must be notified, and an approval received a minimum of four (4) calendar days prior to commencing any construction and/or maintenance work within MDT right-of-way. 4. The City agrees that no fixture, building, structure, or other permanent installation other than those shown in Attachment B shall be constructed or placed within MDT right -or -way without prior approval from MDT. S. The City, at its sole expense, agrees to repair, or cause to be repaired, any damages to S Meridian Road (U-6713), 51h Ave WN (U-6721), US 93/S. Main St (N-5), 15Y Ave EN (U-6723), 3rd Ave EN (U-6724), 41h Ave EN (U-6715) and US 2/E. Idaho St (N-1) right-of-way attributable to the City's construction or maintenance of the Project. The City agrees it will repair S Meridian Road (U-6713), 51h Ave WN (U-6721), US 93/S. Main St (N-5), 1St Ave EN (U-6723), 3rd Ave EN (U-6724), 41h Ave EN (U-6715) and US 2/E. Idaho St (N-1) right-of-way, attributable to the City's construction or maintenance of the Project, to approved standards determined by MDT. Any Page 1 2 damage identified by the City must be repaired within 60 calendars days of malfunction or damage. Any damage identified by MDT must be repaired by the City within 60 calendar days of notice by MDT, as solely determined by MDT. 6. The City agrees any maintenance within MDT right-of-way, attributable to the City's construction or maintenance of the Project, that requires lane closure or equipment must be reviewed and approved by MDT District/Area maintenance staff prior to initiation of the maintenance. 7. The City shall complete the necessary environmental processes for modification to the state highways and roadways and demonstrate that all, if any, environmental issues associated with the proposed project have been identified and mitigated. The City agrees it will prepare and file any required environmental documents and apply for and obtain any permits required by other governmental agencies at no expense to MDT prior to maintenance taking place within Transportation Commission designated right-of-way. 8. If the City fails to perform or cause to be performed, the maintenance obligations as required by this agreement within 60 days of written notification from MDT, MDT may complete the required maintenance and the City shall be required to compensate MDT for its performance of said maintenance. 9. MDT may complete any maintenance required due to a public emergency without prior notice to the City. The City agrees to be responsible for and to reimburse MDT for said maintenance, including Indirect Costs. 10. The City must provide for contract performance security for future maintenance work if MDT Missoula District determines a security is required. The bond amount and term will be determined by the MDT Kalispell Area Maintenance Chief based on maintenance work scope and impact to MDT facilities. The requirements for the security will be based on the State of Montana standards for contract performance bonds. ARTICLE II. GENERAL OBLIGATIONS OF MDT 1. Notify the City and grant permission to partially close and /or initiate work on US 93/S. Main St (N-5) and US 2/E. Idaho St (N-1). 2. Assign staff to provide construction oversight during the City's construction or maintenance work as determined necessary. The MDT Missoula District staff will determine when construction oversight is required. If question arise during construction contact the MDT Kalispell Area Maintenance Chief. Page 13 3. Establish MDT's Point of Contact for construction as well as fee assessment related issues for this project is the Kalispell Area Maintenance Chief, Justun Juelfs, jjuelfs@mt.gov, (406)751-2010 or cell phone (406)250-0601. 4. Require all traffic control plans to be approved by Kalispell Area Traffic Engineer, James Freyholtz, jfreyholtzOmt.gov (406)494-9611. S. Report any fees assessed monthly to MDT Fiscal Operation - Tracy Davis, by the Kalispell Area Maintenance Chief. 6. Notify the City within five (5) days prior to the initiation of any penalties. 7. MDT, at MDT's sole expense agrees it will maintain the roadway infrastructure on US 93/S. Main St (N-5) and US 2/E. Idaho St (N-1) associated with the Project in a satisfactory condition. 8. MDT agrees to review any encroachments within the Project area on MDT right -of way for compliance with state and federal laws and rules. If encroachment is allowed within MDT right-of-way, MDT will issue the appropriate permits 9. If the City is not able to complete the maintenance requirements in Article I, MDT may complete the required maintenance due to public emergency or safety concerns and may seek compensation from the City. ARTICLE III. PROJECT SPECIFIC PROVISIONS: Construction Storm Water General Permit a. The City will follow the DEQ and City Storm Water Pollution Prevention Plan (SWPPP) requirements. b. The City will pay annual fees associated with permit coverage until termination. 2. Small Municipal Separate Storm Sewer System (MS4) Permit a. MDT concludes, and the City agrees, the project work is designed in compliance with applicable Small MS4 Permit requirements. Page 14 b. The City Agrees to operate, monitor, and maintain storm water management features in compliance with applicable City MS4 requirements. ARTICLE IV. PROJECT SPECIFIC FEATURES: 1. Shared -Use Path a. Upon completion of the Project, the City agrees that it is responsible, at no cost to MDT, to service, maintain, repair, and pay the cost of operating the path within the project limits, such that it does not negatively impact the operation of the path or the safety of the traveling public. If all or part of the shared use path becomes unsafe for use, the City agrees to restrict access to the affected area until the condition has been remedied. b. For the purposes of this Agreement, "maintenance of a shared -use path" is defined as: grinding or milling down displacements; surface patching; crack sealing; pavement sealing, sweeping; cleaning; washing; replacing portions of damaged path; removal of snow and ice; repair of chipped, fractured, or broken surface from any cause, including but not limited to frost heaving, landscaping, tree roots, or encroachments; removal of debris and other obstructions or impediments to the safe travel of pedestrians or other path users; maintenance of all associated drainage features; maintenance of path - related signs; and any and all other normally accepted maintenance practices. c. For the purposes of this Agreement, "maintenance of shared -use path signs," is defined as: the inspection, cleaning, repair and replacement of signs damaged through weathering, vandalism, wind, and other means. 2. Lighting a. Upon completion of the Project, the City agrees that it is responsible, at no cost to MDT, to service, maintain, repair and pay the costs of operating (including utility costs) the decorative and/or pedestrian lighting installed as part of this project. b. For the purposes of this Agreement, "maintenance of street lighting", is defined as: the inspection of the lighting system for operation, cleaning lamps, lenses and reflectors, stocking of replacement parts, bulb replacement, and repairs to and replacement of damaged fixtures. c. Any major repair costs for lighting damage not recoverable from third parties shall be the responsibility of the City. d. If the cost of energy is raised by the utility company, the City, town or special improvement district shall pay their proportionate share of the rate increase. 3. Landscaping/Irrigation Equipment a. Upon completion of the Project, the City agrees that it is responsible, at no cost to MDT, to service, maintain and repair the landscaping and irrigation equipment installed as part of this project. Page 15 b. For the purposes of this Agreement, "maintenance of landscaping and irrigation system," is defined as: mowing, watering, debris removal, weed control, fertilizing, tree/shrub trimming including removal, replacement and maintenance of sight triangles, the repair and replacement of fences, and maintenance of all features in compliance with ADA/PROWAG. The irrigation system shall be fully operational, free of leaks, with heads selected and adjusted to reduce water waste. c. If the City is not able to complete the maintenance on the landscaping and irrigation system as per this Agreement, the improvements may become the property of MDT, without reimbursement. If landscaping or irrigation become MDT property, MDT will maintain the property as it sees fit and may remove the landscaping and irrigation system without City approval. MDT may seek compensation for the maintenance or removal of the landscaping and irrigation system from the City. d. The City will complete revegetation of MDT right-of-way and maintain any revegetated areas until vegetation is established including weed spraying. MDT Kalispell area staff will determine when vegetation is established. 4. Pedestrian Bridge a. Upon completion of the Project, the City agrees that it is responsible, at no cost to MDT, to service, maintain, repair, and pay the cost of operating the pedestrian bridge within the project limits, such that it does not negatively impact the operation of the pedestrian bridge, shared use path or the safety of the traveling public. If all or part of the pedestrian bridge or shared use path becomes unsafe for use, the City agrees to restrict access to the affected area until the condition has been remedied. b. For the purposes of this Agreement, "maintenance of the pedestrian bridge" includes annual inspection of the structure and any necessary repairs including the barriers are functioning in good working order. Annual inspection report must be submitted to the MDT Area Maintenance Chief and the MDT State Bridge Engineer. S. Pedestrian Hybrid Beacon (PHB) a. Upon completion of the Project, the City agrees that it is responsible, at no cost to MDT, to service, maintain, repair, and pay the cost of operating the Pedestrian Hybrid Beacon (PHB) within the project limits, such that it does not negatively impact the operation of the PHB, shared use path or the safety of the traveling public. If all or part of the PHB or shared use path becomes unsafe for use, the City agrees to restrict access to the affected area until the condition has been remedied. b. For the purposes of this Agreement, "maintenance of the PHB" includes the inspection of the PHB for operation, cleaning lamps, lenses and reflectors, stocking of replacement parts, bulb replacement, and repairs to and replacement of damaged fixtures. 6. MDT Lease Property Northwest Corner of US 2 (N-2)/Flathead Drive Page 16 a. Prior to completion of the Project, the City agrees to enter into a Landscaping and Parking Lease with MDT Real Estate Services Section. The Landscaping and Parking Lease includes all requirements for the operation and maintenance of the property. ARTICLE V. GENERAL TERMS AND CONDITIONS: Term - The term of this Agreement shall be ten (10) years. After the initial ten (10) year term, this Agreement will renew automatically, for successive one (1) year terms, unless superseded by a new Agreement between the parties. 2. Termination - This Agreement may be terminated by MDT if the City violated or breaches any term, condition, or article of this Agreement and the City has failed to correct (or reasonably initiate correction) within 60 days of receiving notice in writing addressed to the City's representative, or such violation or breach of any term, condition, or article of the Agreement. If this Agreement is terminated, the improvements become the property of MDT, without reimbursement MDT will maintain the property as it sees fit and may remove the improvements without the City's or landowner approval. MDT may seek compensation for maintenance or removal of the improvements from the City. 3. Other Agreements -Other Agreements pertaining to the Project area remain in full force and effect. In case of a conflict between this Agreement and a previously executed Agreement, the terms of this Agreement apply. 4. Hold Harmless & Indemnification a. The City agrees to protect, defend, indemnify, and hold MDT, its elected and appointed officials, agents, and employees, while acting within their duties as such, harmless from and against all claims, liabilities, demands, causes of action, and judgments (including the cost of defense and reasonable attorney fees) arising in favor of or asserted by the City's employees or third parties on account of personal or bodily injury, death or damage to property, arising out of the actions or omissions of the City, its agents or sub -contractors, under this Agreement, except the negligence of MDT. b. The State and MDT agrees to protect, defend, indemnify, and hold the City, its elected and appointed officials, agents, and employees while acting within their duties as such, harmless from and against all claims, liabilities, demands, causes of action, and judgements (including the cost of defense and reasonable attorney fees) arising in favor of or asserted by the MDT's employees or third parties on account of personal or bodily injury, death or damage to property, arising out of the acts or omissions of MDT, its agents, or sub -contractors, under this Agreement, except the negligence of the City. S. Insurance Page 17 a. General Requirements: Each Party shall maintain for the duration of this Agreement, at its own cost and expense, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of duties and obligations in this Agreement by each Party, its agents, employees, representatives, assigns, or sub -contractors. This insurance shall cover such claims as may be caused by any negligent act or omission. b. General Liability Insurance: Each Party shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage of $1 million per occurrence and $2 million aggregate per year to cover such claims as may be caused by or arising out of any negligent acts or omissions in work or services performed under this Agreement, or as established by statutory tort limits as provided under this Agreement or as established by statutory tort limits as provided by a public entity self-insurance program either individually or on a pool basis as provided by Montana Code Annotated Title 2, Chapter 9. c. General Provisions: All insurance coverage must be with a carrier licensed to do business in the State of Montana or by a public entity self -insured program either individually or on a pool basis. Each Party must notify the other immediately of any material change in insurance coverage, such as changes in limits, coverage, change in status of policy, etc. Each Party reserves the right to request complete copies of the other Party's insurance policy or self -insured memorandum of coverage at any time. d. Workers' Compensation Insurance: The City must maintain workers' compensation insurance and require its contractors and its contractor's sub- contractors to carry their own workers' compensation coverage while performing work within MDT right-of-way in accordance with Montana Code Annotated §§39-71-401 and 39-71-405. Neither the contractor nor its employees are employees of MDT. This insurance/exemption must be valid for the entire Agreement period. 6. Public Safety It is agreed, if any repairs to the elements of the Project must be performed to address or prevent a public hazard, the City will immediately protect the area from public access, contact the appropriate MDT District Maintenance Office, and make reasonable and timely effort to correct or repair the hazard. 7. Invoicing and Indirect Costs (IDC) Page 18 a. If MDT incurs any costs resulting from this Agreement, MDT shall be entitled to be compensated for such costs by the City and the City shall pay the same within thirty (30) days of its receipt of such invoices. Montana Code Annotated §17-1-106, requires any state agency, including MDT, which received non -general funds to identify and recover its indirect costs (IDC). These costs are in addition to direct Project costs. MDT's IDC rate is determined annually as a percentage of the Project's direct costs to cover the Project's share of MDT's IDC as defined by 2 CFR Part 200, Appendix VIL MDT's current IDC rate is 10.99% for fiscal year 2021 (July 1, 2020 to June 30, 2021). If the work occurs or extends into fiscal year 2022 or beyond the IDC rate will be charged at the rate agreed to by MDT and the Federal Highway Administration (FHWA). i. Invoice will be sent to: City of Kalispell Attn: Jarod Nygren P.O. Box 1997 Kalispell, MT 59903 ii. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 Helena MT 59620-1001 8. Choice of Law and Venue - This Agreement shall be governed by the laws of Montana. The Parties agree that any litigation concerning this Agreement must be brought in the First Judicial District Court, in and for the County of Lewis and Clark, State of Montana, and each Party shall pay its own costs and attorney fees except as otherwise noted in this Agreement. In case of conflict between the terms and conditions of this Agreement the laws of the State of Montana, the laws of the State of Montana Shall control. 9. Binding Effect - The benefits and obligations set forth in this Agreement shall be binding upon, and inure to the benefit of, their respective successors, administrators and assigns of the parties. 10. Relationship of Parties - Nothing contained in this Agreement shall be deemed or construed (either by the parties hereto or by any third party) to create the relationship of principal and agent or create any partnership joint venture or other association between the Parties. 11. Non -Discrimination - The City will require that during the performance of any work arising out of this Agreement the City, for itself, assignees, and successors shall Page 19 comply with all applicable non-discrimination regulation set forth in Attachment A attached hereto and made a part of this Agreement. 12. ADA - MDT requires that any construction resulting from this Agreement must include appropriate pedestrian facilities that meet or exceed current MDT standards for accessibility as set forth by the Untied State Department of Justice 2010 ADA Standards for Accessibility Design, United States Access Board Proposed Guidelines for Pedestrian Facilities in the Public Right -or -Way (2011 PROWAG), and MDT's detained drawings, 608 series. 13. Audit - The City grants to the Legislative Auditor and the Legislative Fiscal Analysts the right, without prior notice and during normal business hours, to audit, at their own costs and expense all records, reports, and other documents, the City maintains in connection with this Agreement. 14. Utilities - This Agreement is subject to the right of any private or public utility entity now lawfully occupying the right-of-way to continue to operate and maintain utility facilities thereupon. Copies of existing utility permits may be obtained from the MDT District Utility Agent. 15. Amendment and Modification - This Agreement may be modified or amended only by written Addendum signed by the parties. In addition to the terms and conditions contained herein, the provisions of any Addendum may be incorporated and made a part hereof by this reference in the terms of the amendment so provided. In the event of any conflict between the terms and conditions hereof and the provisions of any Addendum, the provision of the Addendum shall control, unless the provisions thereof are prohibited by law. 16. Representatives a. Ci , 's Representative: The City's Representative for this Agreement shall be the Chief Administrative Officer or designee or such individual as the City shall designate in writing. Whenever approval or authorization form or communication or submission to the City is required by this Agreement, such communication or submission shall be directed to the City's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when the City's Representative is not available, MDT may direct its communication or submission to other designated City personnel or agents. b. MDT's Representative: The MDT Representative for this Agreement shall be the District Administrator or Maintenance Chief or such other individual as MDT shall designate in writing. Whenever direction to or communication with MDT is required by this Agreement, such direction or communication Page 1 10 shall be directed to MDT's Representative; provided, however, that the exigent circumstances when MDT's Representative is not available, the City may direct its directions or communication or submission to other designated MDT personnel or agents. 17. Counterpart Execution - This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the Parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. Page 1 11 DocuSign Envelope ID 420EF7ED-0555-43BF-BF4F-98032555105A IN WITNESS WHEREOF, the Department's authorized representative has hereunto signed on behalf of the State of Montana, and the City Manager of the City of Kalispell, on behalf of the City, has signed and affixed hereto the seal of the City. STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION 17�4� c L)--- Montana Department of Transportation OocuSigned by: (Ark amU AuMs Approved for Legal Content DocuSigned by Lfalvici& S(,6416jt w Approved for Civil Rights CITY OF KALISPELL 6/18 .2021 t 'D By 2021 Dou-g—Russidi,kalispell City Manager ATTEST: APPROVED AS TO FORM AND CONTENT: Ainr ee Brunckhorst City Clerk `%% O�•�,YORA7, (SEAL) 1 Page 1 12 EiccuSigned by: a. " 2718AS4CA535486 Charles A. Harball City Attorney ATTACHMENT A MDT Nondiscrimination and Disability Accommodation Notice Rev. 01/2021 MDT NONDISCRIMINATION AND DISABILITY ACCOMMODATION NOTICE Montana Department of Transportation ("MDT") is committed to conducting all of its business in an environment free from discrimination, harassment, and retaliation. In accordance with State and Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter "protected classes") by its employees or anyone with whom MDT does business: Federal protected classes Race, color, national origin, sex, sexual orientation, gender identity, age, disability, & Limited English Proficiency State protected classes Race, color, national origin, parental/marital status, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, religion/ creed, social origin or condition, genetic information, sex, sexual orientation, gender identification or expression, national origin, ancestry, age, disability mental or physical, political or religious affiliations or ideas, military service or veteran status For the duration of this contract/agreement, the PARTY agrees as follows: (1) Compliance with Regulations: The PARTY (hereinafter includes consultant) will comply with all Acts and Regulations of the United States and the State of Montana relative to Non - Discrimination in Federally and State -assisted programs of the U.S. Department of Transportation and the State of Montana, 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: a. The PARTY, with regard to the work performed by it during the contract, will not discriminate, directly or indirectly, on the grounds of any of the protected classes in the selection and retention of subcontractors, including procurements of materials and leases of equipment, employment, and all other activities being performed under this contract/agreement. b. PARTY will provide notice to its employees and the members of the public that it serves that will include the following: i. Statement that PARTY does not discriminate on the grounds of any protected classes. ii. Statement that PARTY will provide employees and members of the public that it serves with reasonable accommodations for any known disability, upon request, pursuant to the Americans with Disabilities Act as Amended (ADA). iii. Contact information for PARTY's representative tasked with handling non- discrimination complaints and providing reasonable accommodations under the ADA. Page 1 of 4 Rev. 01/2021 iv. Information on how to request information in alternative accessible formats. In accordance with Mont. Code Ann. § 49-3-207, PARTY will include a provision, in all of its hiring/subcontracting notices, that all hiring/subcontracting will be on the basis of merit and qualifications and that PARTY does not discriminate on the grounds of any protected class. (3) Participation by Disadvantaged Business Enterprises (DBEs): a. If the PARTY receives federal financial assistance as part of this contract/agreement, the PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its subcontracting services. The list of all currently certified DBE firms is located on the MDT website at mdt.mt.gov/business/contracting/civil/dbe.shtml b. By signing this agreement, the PARTY assures that: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. c. PARTY must include the above assurance in each contract/agreement the PARTY enters. (4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation, made by the PARTY 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 PARTY of the PARTY's obligation under this contract/agreement and all Acts and Regulations of the United States and the State of Montana related to Non -Discrimination. (5) Information and Reports: The PARTY will provide all information and reports required by the Acts, 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 MDT or relevant US DOT Administration 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 PARTY will so certify to MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has made to obtain the information. (6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non- discrimination provisions of this contract/agreement, MDT will impose such sanctions as it or the relevant US DOT Administration may determine to be appropriate, including, but not limited to: a. Withholding payments to the PARTY under the contract/agreement until the PARTY complies; and/or b. Cancelling, terminating, or suspending the contract/agreement, in whole or in part. Page 2 of 4 Rev. 01/2021 (7) Pertinent Non -Discrimination Authorities: During the performance of this contract/agreement, the PARTY, for itself, its assignees, and successor in interest, agrees to comply with the following non-discrimination statues and authorities; including but not limited to: Federal Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of 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 -aid programs and projects); Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 etseq.), (prohibits discrimination on the basis of sex); Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 etseq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 etseq.), (prohibits discrimination on the basis of age); - Airport and Airways 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 -aid 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 prohibits discrimination on the basis of 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 CFR parts 37 and 38; - The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); - Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which prevents 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; Page 3 of 4 Rev. 01/2021 - 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 ensure compliance with Title VI, you must take reasonable steps to ensure 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 because of sex in education programs or activities (20 U.S.C. § 1681 etseq.). - Executive Order 13672 prohibits discrimination in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity. State Mont. Code Ann. § 49-3-205 Governmental services; Mont. Code Ann. § 49-3-206 Distribution of governmental funds; Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts. (8) Incorporation of Provisions: The PARTY will include the provisions of paragraph one through seven in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and/or directives issued pursuant thereto. The PARTY will take action with respect to any subcontract or procurement as MDT or the relevant US DOT Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the PARTY becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the PARTY may request MDT to enter into any litigation to protect the interests of MDT. In addition, the PARTY may request the United States to enter into the litigation to protect the interests of the United States. 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