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Agenda Item Review Form
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Muskegon City Commission
Commission Meeting Date: June 14, 2022 Title: MOOT Agreement for Terrace Street
Submitted By: Leo Evans Department: Public Works
Brief Summary: Staff is requesting approval of the contract with MOOT for the reconstruction of
Terrace Street from Apple Avenue to Shoreline Drive, and approval of the resolution authorizing
the Mayor and Clerk to sign the contract.
Detailed Summary: This is the standard contract governing projects that are constructed using
federal funds through MOOT. The estimated cost for the project construction is $1,509,000 with
$764,904 of that being federal surface transportation funding, $88,593 being federal highway
infrastructure program COVID funds, and the remainder being funded through the City's Major
Street Budget in the FY23 Budget year,_
Work is expected to begin in August and take approximately 15 weeks to complete.
Amount Requested: $744,503 (FY23) Amount Budgeted: $946,503 (FY23)
Fund(s) or Account(s): 202 (Major Streets) Fund(s) or Account(s): 202 (Major Streets)
Recommended Motion:
Approve the attached contract and resolution and authorize the mayor and clerk to sign.
Check if the following Departments need to approve the item first:
Police Dept. D
Fire Dept. D
IT Dept. □
For City Clerk Use Only:
Commission Action :
RESOLUTION 2022-55(E)
RESOLUTION FOR APPROVAL OF A CONTRACT AGREEMENT BElWEEN THE
MICHIGAN DEPARTMENT OF TRANSPORTATION AND THE CITY OF
MUSKEGON FOR HOT MIX ASPHALT ROAD RECONSTRUCTION OF TERRACE
STREET FROM APPLE AVENUE (M-46) TO SHORELINE DRIVE (US-31 BR).
Moved by Vice Mayor German and supported by Commissioner Gorman the
following Resolution be adopted:
WHEREAS, entry by the City of Muskegon into Contract no. 22-5194 between the
Michigan Department of Transportation and the City of Muskegon for the
reconstruction of Terrace Street from Apple Avenue (M-46) to Shoreline Drive
(US-31 BR) within the City is in the best interests of the City of Muskegon.
RESOLVED, that entry by the City into Contract Agreement Number 22-5194 be and
the same is hereby authorized and approved and the Mayor and Clerk are
authorized to execute said contract for and on behalf of the City of Muskegon.
Adopted this 14th day of June, 2022.
BY <)i_Zi/1)~
Kenneth D. Johnson, Mayor
~
1
ATTEST " ' .
"')J~ ~ \-AJ:::--
Ann Meisch, City Clerk
CERTIFICATION
This resolution was adopted at a meeting of the City Commission, held on
June 14th , 2022. The meeting was properly held and noticed pursuant to the
Open Meetings Act of the State of Michigan, Act 267 of the Public Acts of 1976.
~ MUSKE~ON
By ~Ntvz,,h
Ann Meisch, City Clerk
DocuSign Envelope ID: 2135EDBB-6320-4044-9D6B-0AA4D0329C1 C
STP DA
Control Section STUL 61000
Job Number 205376CON
Project 22A0518
CFDANo. 20.205 (Highway Research
Planning & Construction)
Contract No. 22-5194
PART I
THIS CONTRACT, consisting of PART I and PART II (Standard Agreement
Provisions), is made by and between the MICHIGAN DEPARTMENT OF
TRANSPORTATION, hereinafter referred to as the "DEPARTMENT"; and the CITY OF
MUSKEGON, a Michigan municipal corporation, hereinafter referred to as the "REQUESTING
PARTY"; for the purpose of fixing the rights and obligations of the parties in agreeing to the
following improvements, in Muskegon, Michigan, hereinafter referred to as the "PROJECT" and
estimated in detail on EXHIBIT "I", dated May 2, 2022, attached hereto and made a pati hereof:
PART A-FEDERAL PARTICIPATION
Hot mix asphalt reconstruction and traffic signal work along Terrace Street from Apple
Avenue (M-46) to Shoreline Drive (Business Route US-31), including pavement
removal, grading, paving, storm sewer, concrete curb and gutter, sidewalk and curb
ramps, permanent signing and pavement markings; and all together with necessary
related work.
PART B-NO FEDERAL PARTICIPATION
Concrete sidewalk, electrical conduit, water main stub and water service along the limits
as described in PART A; and all together with necessary related work.
WITNESS ETH:
WHEREAS, pursuant to Federal law, monies have been provided for the performance of
certain improvements on public roads; and
WHEREAS, the reference "FHWA" in PART I and PART II refers to the United States
Department of Transportation, Federal Highway Administration; and
WHEREAS, the PROJECT, or portions of the PROJECT, at the request of the
REQUESTING PARTY, are being programmed with the FHWA, for implementation with the
use of Federal Funds under the following Federal program(s) or funding:
HIGHWAY INFRASTRUCTURE PROGRAM COVID
SURFACE TRANSPORTATION PROGRAM
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WHEREAS, the parties hereto have reached an understanding with each other regarding
the performance of the PROJECT work and desire to set forth this understanding in the form of a
written contract.
NOW, THEREFORE, in consideration of the premises and of the mutual undertakings of
the patties and in conformity with applicable law, it is agreed:
1. The parties hereto shall undertake and complete the PROJECT in accordance with
the terms of this contract.
2. The term "PROJECT COST", as herein used, is hereby defined as the cost of the
physical construction necessary for the completion of the PROJECT, including any other costs
incurred by the D EP AR TMENT as a result of this contract, except construction engineering and
inspection.
No charges will be made by the DEPARTMENT to the PROJECT for any inspection
work or construction engineering.
The costs incurred by the REQUESTING PARTY for preliminary engineering,
construction engineering, construction materials testing, inspection, and right-of-way are
excluded from the PROJECT COST as defined by this contract.
The Michigan Department of Environment, Great Lakes, and Energy has informed the
DEPARTMENT that it adopted new administrative rules (R 325.10101, et. seq.) which prohibit
any governmental agency from connecting and/or reconnecting lead and/or galvanized service
lines to existing and/or new water main. Questions regarding these administrative rules should
be directed to Michigan Department of Environment, Great Lakes, and Energy. The cost
associated with replacement of any lead and/or galvanized service lines, including but not limited
to contractor claims, will be the sole responsibility of the REQUESTING PARTY.
3. The DEPARTMENT is authorized by the REQUESTING PARTY to administer
on behalf of the REQUESTING PARTY all phases of the PROJECT, including advertising and
awarding the construction contract for the PROJECT or portions of the PROJECT. Such
administration shall be in accordance with PART II, Section II of this contract.
Any items of the PROJECT COST incurred by the DEPARTMENT may be charged to
the PROJECT.
4. The REQUESTING PARTY, at no cost to the PROJECT or to the
DEPARTMENT, shall:
A. Design or cause to be designed the plans for the PROJECT.
B. Appoint a project engineer who shall be in responsible charge of the
PROJECT and ensure that the plans and specifications are followed.
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C. Perform or cause to be performed the construction engineering,
construction materials testing, and inspection services necessary for the
completion of the PROJECT.
The REQUESTING PARTY will furnish the DEPARTMENT proposed timing
sequences for trunkline signals that, if any, are being made part of the improvement. No timing
adjustments shall be made by the REQUESTING PARTY at any trunkline intersection, without
prior issuances by the DEPARTMENT of Standard Traffic Signal Timing Permits.
5. The PROJECT COST shall be met in accordance with the following:
PART A
Federal Surface Transportation Funds in combination with Federal Surface
Transportation Flex Funds and Federal Highway Infrastructure Program COVID
Funds shall be applied to the eligible items of the PART A portion of the
PROJECT COST. Federal Highway Infrastructure Program COVID Funds shall
be applied to the eligible items of the PART A portion of the PROJECT COST up
to the lesser of: (1) $88,593, or (2) an amount such that 100 percent, the
established Federal participation ratio for such funds, for the PROJECT is not
exceeded. Federal Surface Transpotiation Funds and Federal Surface
Transportation Flex Funds shall then be applied to the eligible items of the PART
A po1iion of the PROJECT COST up to the lesser of: (1) $764,904, or (2) an
amount such that 81.85 percent, the normal Federal participation ratio for such
funds, for the PART A portion of the PROJECT is not exceeded at the time of the
award of the construction contract with Federal Surface Transportation Funds
limited to $560,276, and used first.. The balance of the PART A portion of the
PROJECT COST, after deduction of Federal Funds, shall be charged to and paid
by the REQUESTING PARTY in the manner and at the times hereinafter set
forth.
PARTB
The PART B portion of the PROJECT COST is not eligible for Federal
participation and shall be charged to and paid 100 percent by the REQUESTING
PARTY in the manner and at the times hereinafter set forth.
Any items of PROJECT COST not reimbursed by Federal Funds will be the sole
responsibility of the REQUESTING PARTY.
6. No working capital deposit will be required for this PROJECT.
In order to fulfill the obligations assumed by the REQUESTING PARTY under the
provisions of this contract, the REQUESTING PARTY shall make prompt payments of its share
of the PROJECT COST upon receipt of progress billings from the DEPARTMENT as herein
provided. All payments will be made within 30 days of receipt of billings from the
DEPARTMENT. Billings to the REQUESTING PARTY will be based upon the REQUESTING
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PARTY'S share of the actual costs incurred less Federal Funds earned as the PROJECT
progresses.
7. At such time as traffic volumes and safety requirements warrant, the
REQUESTING PARTY will cause to be enacted and enforced such ordinances as may be
necessary to prohibit parking in the traveled roadway throughout the limits of the PROJECT.
8. The performance of the entire PROJECT under this contract, whether Federally
funded or not, will be subject to the provisions and requirements of PART II that are applicable
to a Federally funded project.
In the event of any discrepancies between PART I and PART II of this contract, the
provisions of PART I shall prevail.
Buy America Requirements (23 CFR 635.410) shall apply to the PROJECT and will be
adhered to, as applicable, by the parties hereto.
9. The REQUESTING PARTY certifies that it is not aware if and has no reason to
believe that the property on which the work is to be performed under this agreement is a facility,
as defined by the Michigan Natural Resources and Environmental Protection Act [(NREPA), PA
451, 1994, as amended 2012]; MCL 324.20101(1)(s). The REQUESTING PARTY also
certifies that it is not a liable party pursuant to either Part 201 or Part 213 of NREPA, MCL
324.20126 et seq. and MCL 324.21323a et seq. The REQUESTING PARTY is a local unit of
government that has acquired or will acquire prope1iy for the use of either a transportation
corridor or public right-of-way and was not responsible for any activities causing a release or
threat of release of any hazardous materials at or on the property. The REQUESTING PARTY
is not a person who is liable for response activity costs, pursuant to MCL 324.20101 (vv) and
(ww).
I 0. If, subsequent to execution of this contract, previously unknown hazardous
substances are discovered within the PROJECT limits, which require environmental remediation
pursuant to either state or federal law, the REQUESTING PARTY, in addition to reporting that
fact to the Michigan Depa1iment of Environment, Great Lakes, and Energy, shall immediately
notify the DEPARTMENT, both orally and in writing of such discovery. The DEPARTMENT
shall consult with the REQUESTING PARTY to determine if it is willing to pay for the cost of
remediation and, with the FHWA, to determine the eligibility, for reimbursement, of the
remediation costs. The REQUESTING PARTY shall be charged for and shall pay all costs
associated with such remediation, including all delay costs of the contractor for the PROJECT, in
the event that remediation and delay costs are not deemed eligible by the FHWA. If the
REQUESTING PARTY refuses to participate in the cost of remediation, the DEPARTMENT
shall terminate the PROJECT. The parties agree that any costs or damages that the
DEPARTMENT incurs as a result of such termination shall be considered a PROJECT COST.
11. If federal and/or state funds administered by the DEPARTMENT are used to pay
the cost of remediating any hazardous substances discovered after the execution of this contract
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and if there is a reasonable likelihood of recovery, the REQUESTING PARTY, in cooperation
with the Michigan Department of Environment, Great Lakes, and Energy and the
DEPARTMENT, shall make a diligent effort to recover such costs from all other possible
entities. If recovery is made, the DEPARTMENT shall be reimbursed from such recovery for
the proportionate share of the amount paid by the FHWA and/or the DEPARTMENT and the
DEPARTMENT shall credit such sums to the appropriate funding source.
12. The DEPARTMENT'S sole reason for entering into this contract is to enable the
REQUESTING PARTY to obtain and use funds provided by the Federal Highway
Administration pursuant to Title 23 of the United States Code.
Any and all approvals of, reviews of, and recommendations regarding contracts,
agreements, permits, plans, specifications, or documents, of any nature, or any inspections of
work by the DEPARTMENT or its agents pursuant to the terms of this contract are done to assist
the REQUESTING PARTY in meeting program guidelines in order to qualify for available
funds. Such approvals, reviews, inspections and recommendations by the DEPARTMENT or its
agents shall not relieve the REQUESTING PARTY and the local agencies, as applicable, of their
ultimate control and shall not be construed as a warranty of their propriety or that the
DEPARTMENT or its agents is assuming any liability, control or jurisdiction.
The providing of recommendations or advice by the DEPARTMENT or its agents does
not relieve the REQUESTING PARTY and the local agencies, as applicable of their exclusive
jurisdiction of the highway and responsibility under MCL 691.1402 et seq., as amended.
When providing approvals, reviews and recommendations under this contract, the
DEPARTMENT or its agents is performing a governmental function, as that term is defined in
MCL 691.1401 et seq., as amended, which is incidental to the completion of the PROJECT.
Upon completion of the PROJECT, the REQUESTING PARTY shall accept the facilities
constructed as built to specifications within the contract documents. It is understood that the
REQUESTING PARTY shall own the facilities and shall operate and maintain the facilities in
accordance with all applicable Federal and State laws and regulations, including, but not limited
to, Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., and its
associated regulations and standards, and DEPARTMENT Road and Bridge Standard Plans and
the Standard Specifications for Construction.
13. The DEPARTMENT, by executing this contract, and rendering services pursuant
to this contract, has not and does not assume jurisdiction of the highway, described as the
PROJECT for purposes of MCL 691.1402 et seq., as amended. Exclusive jurisdiction of such
highway for the purposes of MCL 691.1402 et seq., as amended, rests with the REQUESTING
PARTY and other local agencies having respective jurisdiction.
14. The REQUESTING PARTY shall approve all of the plans and specifications to
be used on the PROJECT and shall be deemed to have approved all changes to the plans and
specifications when put into effect. It is agreed that ultimate responsibility and control over the
PROJECT rests with the REQUESTING PARTY and local agencies, as applicable.
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15. The REQUESTING PARTY agrees that the costs reported to the DEPARTMENT
for this contract will represent only those items that are properly chargeable in accordance with
this contract. The REQUESTING PARTY also certifies that it has read the contract terms and
has made itself aware of the applicable laws, regulations, and terms of this contract that apply to
the reporting of costs incurred under the terms of this contract.
16. Each party to this contract will remain responsible for any and all claims arising
out of its own acts and/or omissions during the performance of the contract, as provided by this
contract or by law. In addition, this is not intended to increase or decrease either party's liability
for or immunity from tort claims. This contract is also not intended to nor will it be interpreted
as giving either party a right of indemnification, either by contract or by law, for claims arising
out of the performance of this contract.
17. The parties shall promptly provide comprehensive assistance and cooperation in
defending and resolving any claims brought against the DEPARTMENT by the contractor,
vendors or suppliers as a result of the DEPARTMENT'S award of the construction contract for
the PROJECT. Costs incurred by the DEPARTMENT in defending or resolving such claims
shall be considered PROJECT COSTS.
18. The DEPARTMENT shall require the contractor who is awarded the contract for
the construction of the PROJECT to provide insurance in the amounts specified and in
accordance with the DEPARTMENT'S current Standard Specifications for Construction and to:
A. Maintain bodily injury and property damage insurance for the duration of
the PROJECT.
B. Provide owner's protective liability insurance naming as insureds the State
of Michigan, the Michigan State Transportation Commission, the
DEPARTMENT and its officials, agents and employees, the
REQUESTING PARTY and any other county, county road commission,
or municipality in whose jurisdiction the PROJECT is located, and their
employees, for the duration of the PROJECT and to provide, upon request,
copies of certificates of insurance to the insureds. It is understood that the
DEPARTMENT does not assume jurisdiction of the highway described as
the PROJECT as a result of being named as an insured on the owner's
protective liability insurance policy.
C. Comply with the requirements of notice of cancellation and reduction of
insurance set forth in the current standard specifications for construction
and to provide, upon request, copies of notices and reports prepared to
those insured.
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19. This contract shall become binding on the parties hereto and of full force and
effect upon the signing thereof by the duly authorized officials for the parties hereto and upon the
adoption of the necessary resolutions approving said contract and authorizing the signatures
thereto of the respective officials of the REQUESTING PARTY, a certified copy of which
resolution shall be attached to this contract.
IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed as
written below.
CITY OF MUSK.EGON MICHIGAN DEPARTMENT
OF TRANSPORTATION
Bradlo/ C. Wiefti·ich Bradley C. Wieferich
Fm·: MOOT Dirtctor Jun 28 2022 2:02 PM
By_ _ _ _ _ _ _ _ _ _ __ By_ _ _ _ _ _ _ _ __
Title: Department Director MDOT
By eo;:~.~ck~---~-----
Title:
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DocuSign Envelope ID: 2135EDBB-6320-4044-9D6B-0AA4D0329C1 C
May 2, 2022
EXHIBIT I
CONTROL SECTION STUL 61000
JOB NUMBER 205376CON
PROJECT 22A0518
ESTIMATED COST
CONTRACTED WORK
PART A PARTB TOTAL
Estimated Cost $1,509,000 $ 89,000 $1,598,000
COST PARTICIPATION
GRAND TOTAL ESTIMATED COST $1,509,000 $ 89,000 $1,598,000
Less Federal Funds* $ 853 497 $ 0 $ 853 497
BALANCE (REQUESTING PARTY'S SHARE) $ 655,503 $ 89,000 $ 744,503
*Federal Funds for the PROJECT are limited to an amount as described in Section 5.
NO DEPOSIT
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DOT TYPEB
BUREAU OF HIGHWAYS
03-15-93
PART II
STANDARD AGREEMENT PROVISIONS
SECTION I COMPLIANCE WITH REGULATIONS AND DIRECTIVES
SECTION II PROJECT ADMINISTRATION AND SUPERVISION
SECTION III ACCOUNTING AND BILLING
SECTION IV MAINTENANCE AND OPERATION
SECTION V SPECIAL PROGRAM AND PROJECT CONDITIONS
03-15-93
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SECTION I
COMPLIANCE WITH REGULATIONS AND DIRECTIVES
A. To qualify for eligible cost, all work shall be documented in accordance with the
requirements and procedures of the DEPARTMENT.
B. All work on projects for which reimbursement with Federal funds is requested shall be
performed in accordance with the requirements and guidelines set forth in the following
Directives of the Federal-Aid Policy Guide (FAPG) of the FHWA, as applicable, and as
referenced in pertinent sections of Title 23 and Title 49 of the Code of Federal
Regulations (CFR), and all supplements and amendments thereto.
1. Engineering
a. FAPG (6012.1): Preliminary Engineering
b. FAPO (23 CFR 172): Admi11istration of Engineering and Design Related
Service Contracts
c, FAPO (23 CFR 635A): Contract Procedures
d. FAPG (49 CFR 18.22): Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and -Local Governments-Allowable
Costs
2. Construction
a. FAPG (23 CFR 140E): Administrative Settlement Costs-Contract Claims
b. FAPG (23 CFR 140B): Constrnction Engineering Costs
C, FAPO (23 CFR 17): Recordkeeping and Retention Requirements for
Federal-Aid Highway Records of State Highway Agencies
d. FAPG (23 CFR 635A): Contract Procedures
e. F APG·(23 CFR 635B): Force Account Constrnction
f, FAPG (23 CFR 645A): Utility Relocations, Adjustments and
Reimbursement
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g. FAPG (23 CFR 645B): Accommodation of Utilities (PPM 30-4.1)
h. FAPG (23 CFR 655F): Traffic Control Devices on Federal-Aid and other
Streets and Highways
i. FAPG (49 CFR 18.22): Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments-Allowable
Costs
3, Modification Or Construction Of Railroad Facilities
a, FAPG (23 CFR 1401): Reimbursement for Railroad Work
b. FAPG (23 CFR 646B): Railroad Highway Projects
C. In conf01mance with FAPG (23 CFR 630C) Project Agreements, the political
subdivisions party to this contract> on those Federally funded projects which exceed a
total cost of $100>000.00 stipulate the following with respect to their specific
jurisdictions:
1, That any facility to be utilized in perf01mance under or to benefit from this
contract is not listed on the Environmental Protection Agency (EPA) List of
Violating Facilities issued pursuant to the ·requirements of the Federal Clean Air
Act, as amended, and the Federal Water Pollution Control Act, as amended.
2. That they each agree to comply with all of the requirements of Section 114 of the
Federal Clean Air Act and Section 308 of the Federal Water Pollution Control
Act, and all regulations and guidelines issued thereunder.
3. That as a condition of Federal aid pursuant to this contract they shall notify the
DEPARTMENT of the receipt of any advice indicating that a facility to be
utilized in performance under or to benefit from this conh·act is under
consideration to be listed on the EPA List of Violating Facilities.
D. Ensure that the PROJECT is constructed in accordance with and incorporates all
committed environmental impact mitigation measures listed in approved environmental
documents unless modified or deleted by approval of the FHWA.
E. All the requirements, guidelines, conditions and restrictions noted in all other pertinent
Directives and Instructional Memoranda of the FHWA will apply to this contract and will
be adhered to, as applicable, by the patiies hereto.
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SECTION II
PROJECT ADMINISTRATION AND SUPERVISION
A. The DEPARTMENT shall provide such administrative guidance as it determines is
required by the PROJECT in order to facilitate the obtaining of available federal and/or
state funds.
B. The DEPARTMENT will advertise and award all contracted portions of the PROJECT
work. Prior to advertising of the PROJECT for receipt of bids, the REQUESTING
PARTY may delete any po1iion or all of the PROJECT work. After receipt of bids for
the PROJECT, the REQUESTING PARTY shall have the right to rejectthe amount bid
for the PROJECT prior to the award of the contract for the PROJECT only if such
amount exceeds by ten percent (10%) the final engineer's estimate therefor. If such
rejection of the bids is not received in writing within two (2) weeks after letting, the
DEPARTMENT will assume concunence. The DEPARTMENT may, upon request,
readve1iise the PROJECT. Should the REQUESTING PARTY so request in writing
within the aforesaid two (2) week period after letting, the PROJECT will be cancelled
and the DEPARTMENT will refund the tmused balance of the deposit less all costs
incuned by the DEPARTMENT.
C. The DEPARTMENT will perfo11n such inspection services on PROJECT work
perfo1111ed by the REQUESTING PARTY with its own forces as is required to ensure
compliance ,vith the approved plans & specifications.
D. On those projects funded with Federal monies, the DEPARTMENT shall as may be
required secure from the FHWA approval of plans and specifications, and such cost
estimates for FHWA patiicipation in the PROJECT COST.
E. All work in connection with the PROJECT shall be performed in confo1mance with the
Michigan Department of Transportation Standard Specifications for Construction, and the
stipplemental specifications, Special Provisions and plans pe1iaining to the PROJECT
and all materials furnished and used in the construction of the PROJECT shall conform to
the aforesaid specifications. No extra work shall be perfonned nor changes in plans and
specifications made until said work or changes are approved by the project engineer and
at1thorized by the DEPARTMENT.
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F. Should it be necessary or desirable that portions of the work covered by this contract be
accomplished by a consulting firm, a railway company, or governmental agency, firm,
person, or corporation, under a subcontract with the REQUESTING PARTY at
PROJECT expense, such subcontracted arrangements will be covered by formal written
agreement between the REQUESTING PARTY and that patty.
This fonnal written agreement shall: include a reference to the specific prime contract to
which it pe11ains; include provisions which clearly set forth the maximum reimbursable
and the basis of payment; provide for the maintenance of accounting records in
accordance with generally accepted accounting principles, which clearly document the
actual cost of the services provided; provide that costs eligible for reimbursement shall be
. in accordance with clearly defined cost criteria such as 49 CFR Pait 18, 48 CFR Part 31,
23 CFR Part 140, 0MB Circular A-87, etc. as applicable; provide for access to the
department or its representatives to inspect and audit all data and records related to the
agreement for a minimum of three years after the department's final payment to the local
unit.
All such agreements will be submitted for approval by the DEPARTMENT and, if
applicable, by the FHWA prior to execution thereof, except for agreements for amounts
less than $100,000 for preliminary engineering and testing services executed under and in
accordance with the provisions of the "Small Purchase Procedures" FAPG (23 CFR 172),
which do not require prior approval of the DEPARTMENT or the FHWA.
Any such approval by the DEPARTMENT shall in no way be construed as a warranty of
the subcontractor's qualifications, financial integrity, or ability to perform the work being
subcontracted.
G. The REQUESTING PARTY, at no cost to the PROJECT or the DEPARTMENT, shall
make such arrangements with railway companies, utilities, etc., as may be necessary for
the perfonnance of work required for the PROJECT but for which Federal or other
reimbursement will not be requested.
H. The REQUESTING PARTY, at no cost to the PROJECT, or the DEPARTMENT, shall
secure, as necessary, all agreements and approvals of the PROJECT with railway
companies, the Railroad Safety & Tariffs Division of the DEPARTMENT and other
concerned governmental agencies other than the FHWA, and will forward same to the
DEPARTMENT for such reviews and approvals as may be required.
I. No PROJECT work for which reimbursement will be requested by the REQUESTING
PARTY is to be subcontracted or performed until the DEPARTMENT gives written
notification that such work may commence.
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J. The REQUESTING PARTY shall be responsible for the payment of all costs and
expenses incurred in the performance of the work it agrees to undertake and perform.
K. The REQUESTING PARTY shall pay directly to the party perfonning the work all
billings for the sei·vices perfmmed on the PROJECT which are authorized by or through
the REQUESTING PARTY.
L. The REQUESTING PARTY shall submit to the DEPARTMENT all paid billings for
which reimbursement is desired in accordance with DEPARTMENT procedures.
M. All work by a consulting firm will be performed in compliance with the applicable
provisions of 1980 PA 299, Subsection 2001, MCL 339.2001; MSA 18.425(2001),.as
well as in accordance with the provisions of all previously cited Directives of the FHWA.
N. The project engineer shall be subject to such administrative guidance as may be deemed
necessary to ensure compliance with program requirement and, in those instances where
a consultant firm is retained to provide engineering and inspection services, the personnel
performing those services shall be subject to the same conditions.
0. The DEPARTMENT, in administering the PROJECT in accordance with applicable
Feperal and State requirements and regulations, neither assumes nor becomes liable for
any obligations undertaken or arising between the REQUESTING PARTY and any other
party with respect to the PROJECT.
P. In the event it is determined by the DEPARTMENT that there will be either insufficient
Federal funds or insufficient time to properly administer such funds for the entire
PROJECT or portions thereof, the DEPARTMENT, prior to advertising or issuing
authorization for work perfo1mance, may cancel the PROJECT, or any portion thereof,
and upon written notice to the patties this contract shall be void and of no effect with
respect to that cancelled portion of the PROJECT. Any PROJECT deposits previously
made by the paities on the cancelled portions of the PROJECT will be promptly
refunded.
Q. Those projects funded with Federal monies will be subject to inspection at all times by
the DEPARTMENT and the FHWA.
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SECTION III
ACCOUNTING AND BILLING
A. Procedures for billing for work undertaken by the REQUESTING PARTY:
1. The REQUESTING PARTY shall establish and maintain accurate records, in
accordance with generally accepted accounting principles, of all expenses
incurred for which payment is sought or made under this contract, said records to
be hereinafter referred to as the "RECORDS". Separate accounts shall be
established and maintained for all costs incurred under this contract.
The REQUESTING PARTY shall maintain the RECORDS for at least three (3)
years from the date of final payment of Federal Aid made by the DEPARTMENT
under this contract. In the event of a dispute with regard to the allowable
expenses or any other issue under this contract, the REQUESTING PARTY shall
thereafter continue to maintain the RECORDS at least until that dispute has been
fmally decided and the time for all available challenges· or appeals of that decision
has expired.
The DEPARTMENT, or its representative, may inspect, copy, or audit the
RECORDS at any reasonable time after giving reasonable notice.
If any part of the work is subcontracted, the REQUESTING PARTY shall assure
compliance with the above for all subcontracted work.
In the event that an audit perfo1med by or on behalf of the DEPARTMENT
indicates an adjustment to the costs repo1ied under this contract, or questions the
allowability of an item of expense, the DEPARTMENT shall promptly submit to
the REQUESTING PARTY, a Notice of Audit Results and a copy of the audit
report which may supplement or modify any tentative findings verbally
communicated to the REQUESTING PARTY at the completion of an audit.
Within sixty (60) days after the date of the Notice of Audit Results, the
REQUESTING PARTY shall: (a) respond in writing to the responsible Bureau or
the DEPARTMENT indicating whether or not it concurs with the audit report, (b)
clearly explain the nature and basis for any disagreement as to a disallowed item
of expense and, (c) submit to the DEPARTMENT a written explanation as to any
questioned or no opinion expressed item of expense, hereinafter refe1Ted to as the
"RESPONSE". The RESPONSE shall be clearly stated and provide any
supporting documentation necessary to resolve any disagreement or questioned or
no opinion expressed item of expense. Where the documentation is voluminous,
the REQUESTING PARTY may supply appropriate excerpts and make alternate
03-15-93 7
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anangements to conveniently and reasonably make that documentation available
for review by the DEPARTMENT. The RESPONSE shall refer to and apply the
language of the contract. The REQUESTING PARTY agrees that failure to
submit a RESPONSE within the sixty (60) day period constitutes agreement with
any disallowance of an item of expense and authorizes the DEPARTMENT to
finally disallow any items of questioned or no opinion expressed cost.
The DEPARTMENT shall make its decision with regard to any Notice of Audit
Results and RESPONSE within one hundred twenty (120) days after the date of
the Notice of Audit Results. If the DEPARTMENT determines that an
overpayment has been made to the REQUESTING PARTY, the REQUESTING
PARTY shall repay that amount to the DEPARTMENT or reach agreement with
the DEPARTMENT on a repayment schedule within thirty (30) days after the
date ofan invoice from the DEPARTMENT. If the REQUESTING PARTY fails
to repay the overpayment or reach agreement with the DEPARTMENT on a
repayment schedule within the thirty (30) day period, the REQUESTING PARTY
agrees that the DEPARTMENT shall deduct all or a portion of the overpayment
from any. funds then or thereafter payable by the DEPARTMENT to the
REQUESTING PARTY under this contract.or any other agreement, or payable to
the REQUESTING PARTY under the tenns of 1951 PA 51, as applicable.
Interest will be assessed on any paitial payments or repayment schedules based on
the unpaid balance at the end of each month until the balance is paid in full. The
assessment of interest will begin thirty (30) days from the date of the invoice.
The rate of interest will be based on the Michigan Department of Tref!sury
common cash funds interest earnings. The rate of interest will be reviewed
annually by the DEPARTMENT and adjusted as necessary based on the Michigan
Department of Treasmy common cash funds interest earnings. The
REQUESTING PARTY expressly consents to this withholding or offsetting of
funds under those circumstances, reserving the right to file a lawsuit in the Court
of Claims to contest the DEPARTMENT'S decision only as to any item of
expense the disallowance of which was disputed by the REQUESTING PARTY
in a timely filed RESPONSE.
The REQUESTING PARTY shall comply with the Single Audit Act of 1984, as
amended, including, but not limited to, the Single Audit Amendments of 1996 (31
USC 7501-7507).
The REQUESTING PARTY shall adhere to the following requirements
associated with audits of accounts and records:
a. Agencies expending a total of $500,000 or more in federal funds, from one or
more funding sources in its fiscal year, shall comply with the requirements of the
federal Office of Management and Budget (0MB) Circular A-133, as revised or
amended.
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The agency shall submit two copies of:
The Reporting Package
The Data Collection Form
The management letter to the agency, if one issued by the audit firm
The 0MB Circular A-133 audit must be submitted to the address below in
accordance with the· time frame established in the circular, as revised or amended.
b. Agencies expending less than $500,000 in federal funds must submit a letter to
the Deparhnent advising that a circular audit was not required. The letter shall
indicate the applicable fiscal year, the amount of federal funds spent, the name(s)
of the Department federal programs, and the CFDA grant number(s). This
info1mation must also be submitted to the address below.
c. Address: Michigan Department of Education
Accounting Service Center
Hannah Building
608 Allegan Street
Lansing, MI 48909
d. Agencies must also comply with applicable State laws and regulations relative
to audit requirements.
e. Agencies shall not charge audit costs to Department's federal programs which
are not in accordance with the 0MB Circular A-133 requirements.
f. All agencies are subject to the federally required monitoring activities, which
may include limited scope reviews and other on-site monitoring.
2. Agreed Unit Prices Work - All billings for work undertaken by the
REQUESTING PARTY on an agreed unit price basis will be submitted in
accordance with the Michigan Depaiiment of Transportation Standard
Specifications for Construction and pertinent FAPG Directives and Guidelines of
the FHWA.
3. Force Account Work and Subcontracted Work - All billings submitted to the
DEPARTMENT for Federal reimbursement for items of work performed on a
force account basis or by any subcontract with a consulting finn, railway
company> governmental agency or other patty, under the terms of this contract,
shall be prepared in accordanqe with the provisions of the pe11inent FHPM
Directives and the procedures of the DEPARTMENT. Progress billings may be
submitted monthly during the time work is being performed provided, however,
that no bill of a lesser amount than $1,000.00 shall be submitted unless it is a final
03-15-93 9
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or end of fiscal year billing. All billings shall be labeled either "Progress Bill
Number _ _ _ ", or "Final Billing".
4. Final billing under this contract shall be submitted in a timely manner but not later
than six months after completion of the work. Billings for work submitted later
than six months after completion of the work will not be paid.
5. Upon receipt of billings for reimbursement for work undertaken by the
REQUESTING PARTY on projects funded with Federal monies, the
DEPARTMENT will act as billing agent for the REQUESTING PARTY,
consolidating said billings with those for its own force account work and
presenting these consolidated billings to the FHWA for payment. Upon receipt of
reimbursement from the FHWA, the DEPARTMENT will promptly forward to
the REQUESTING PARTY its share of said reimbursement.
6. Upon receipt of billings for reimbursement for work undertaken by the
REQUESTING PARTY on projects funded with non-Federal monies, the
DEPARTMENT will promptly forward to the REQUESTING PARTY
reimbursement of eligible costs.
B. Payment of Contracted and DEPARTMENT Costs:
1. As work on the PROJECT commences, the initial payments for contracted work
and/or costs incurred by the DEPARTMENT will be made from the working
capital deposit. Receipt of progress payments of Federal funds, and where
applicable, State Critical Bridge funds, will be used to replenish the working
capital deposit. The REQUESTING PARTY shall make prompt payments of its
share of the contracted and/or DEPARTMENT incun·ed portion of the PROJECT
COST upon receipt of progress billings from the DEPARTMENT. Progress
billings will be based upon the REQUESTING PARTY 1S share of the actual costs
incurred as work on the PROJECT progresses and will be submitted, as required,
until it is determined by the DEPARTMENT that there is sufficient available
working capital to meet the remaining anticipated PROJECT COSTS. All
progress payments will be made within thhty (30) days of receipt of billings. No
monthly billing of a lesser amount than $1,000.00 will be made unless it is a final
or end of fiscal year billing. Should the DEPARTMENT detennine that the
available working capital exceeds the remaining anticipated PROJECT COSTS,
the DEPARTMENT may reimburse the REQUESTING PARTY such excess.
Upon completion of the PROJECT, payment of all PROJECT COSTS, receipt of
all applicable monies from the FHWA, and completion of necessary audits, the
REQUESTING PARTY will be reimbursed the balance of its deposit.
03-15-93 10
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2. In the event that the bid, plus contingencies, for the contracted, and/or the
DEPARTMENT incurred portion of the PROJECT work exceeds the estimated
cost therefor as established by this contract, the REQUESTING PARTY may be
advised and billed for the additional amount of its share.
C. General Conditions:
I. The DEPARTMENT, in accordance with its procedures in existence and covering
the time pedod involved, shall make payment for interest earned on the balance of
working capital deposits for all projects on account with the DEPARTMENT.
The REQUESTING PARTY in accordance with DEPARTMENT procedures in
existence and covering the time period involved, shall make payment for interest
owed on any deficit balance of working capital deposits for all projects on
account with the DEPARTMENT. This payment or billing is processed on an
annual basis corresponding to the State of Michigan fiscal year. Upon receipt of
billing for interest inctmed, the REQUESTING PARTY promises and shall
promptly pay the DEPARTMENT said amount.
2, Pursuant to the authority granted by law, the REQUESTING PARTY hereby
irrevocably pledges a sufficient amount of funds received by it from the Michigan
Transpo1iation Fund to meet its obligations as specified in PART I and PART IL
If the REQUESTING PARTY shall fail to make any of its required payments
when due, as specified herein, the DEPARTMENT shall immediately notify the
REQUESTING PARTY and the State Treasurer of the State of Michigan or such
other state officer or agency having charge and control over disbursement of the
Michigan Transportation Fund, pursuant to law, of the fact of such default and the
amount thereof, and, if such default is not cured by payment within ten ( 10) days,
said State Treasurer or other state officer or agency is then authorized and
directed to withhold from the first of such monies thereafter allocated by law to
the REQUESTING PARTY from the Michigan Transpo1tation Fund sufficient
monies to remove the default, and to credit the REQUESTING PARTY with
payment thereof, and to notify the REQUESTING PARTY in writing of such fact.
3. Upon completion of all work under this contract and final audit by the
DEPARTMENT or the FHWA, the REQUESTING PARTY promises to
promptly repay the DEPARTMENT for any disallowed 'items of costs previously
disbursed by the DEPARTMENT. The REQUESTING PARTY pledges its
future receipts from the Michigan Transportation Fund for repayment of all
disallowed items and, upon failure to make repayment for any disallowed items
within ninety (90) days of demand made by the DEPARTMENT, the
DEPARTMENT is hereby authorized to withhold an equal amount from the
REQUESTING PARTY'S share of any fhture distribution of Michigan
Transportation Funds in settlement of said claim.
03-15-93 11
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4. The DEPARTMENT shall maintain and keep accurate records and accounts
relative to the cost of the PROJECT and upon completion of the PROJECT,
payment of all items of PROJECT COST, receipt of all Federal Aid, if any, and
completion of final audit by the DEPARTMENT and if applicable, by the FHWA,
shall make final accounting to the REQUESTING PARTY. The final PROJECT
accounting will not include interest earned or charged on working capital
deposited for the PROJECT which will be accounted for separately at the close of
the State of Michigan fiscal year and as set forth in Section C(l).
5. The costs of engineering and other services perfonned on those projects involving
specific program funds and one hundred percent (100%) local funds will be
apportioned to the respective portions of that project in the same ratio as the
actual direct construction costs unless otherwise specified in PART I.
03-15-93 12
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SECTION IV
MAINTENANCE AND OPERATION
A. Upon completion of constrnction of each part of the PROJECT, at no cost to the
DEPARTMENT or the PROJECT, each of the parties hereto, within their respective
jurisdictions, will make the following provisions for the maintenance and operation of the
completed PROJECT:
1. All Projects:
Properly maintain and operate each pa1t of the project, making ample provisions
each year for the performance of such maintenance work as may be required,
except as qualified in paragraph 2b of this section.
2. Projects Financed in Part with Federal Monies:
a. Sign and mark each pait of the PROJECT, in accordance with the current
Michigan Manual of Unifonn Traffic control Devices, and will not install,
or permit to be installed, any signs, signals or markings not in
conformance with the standards approved by the FHWA, pursuant to 23
USC 109(d).
b. Remove, prior to completion of the PROJECT, all encroachments from the
roadway right-of-way within the limits of each part of the PROJECT.
With respect to new or existing utility installations within the right-of-way
of Federal Aid projects and pursuant to FAPG (23 CFR 645B):
Occupancy of non-limited access right-of-way may be allowed based on
consideration for traffic safety and necessary preservation of roadside
space and aesthetic quality. Longitudinal occupancy of non-limited access
right-of-way by plivate lines will require a finding of significant economic
hardship, the unavailability of practicable alternatives or other extenuating
circumstances.
c. Cause to be enacted, maintained and enforced, ordinances and regulations
for proper traffic operations in accordance with the plans of the
PROJECT.
d. Make no changes to ordinances or regulations enacted, or traffic controls
installed in co1~unction with the PROJECT work without prior review by
the DEPARTMENT and approval of the FHWA, if required.
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B. On projects for the removal of roadside obstacles, the parties, upon completion of
construction of each pait of the PROJECT, at no cost to the PROJECT or the
DEPARTMENT, will, within their respective jurisdictions, take such action as is
necessary to assure that the roadway right-of-way, cleared as the PROJECT, will be
maintained free of such obstacles.
C. On projects for the constrnction of bikeways, the parties will enact no ordinances or
regulations prohibiting the use of bicycles on the facility hereinbefore described as the
PROJECT, and will amend any existing restrictive ordinances in this regard so as to
allow use of this facility by bicycles. No motorized vehicles shall be pennitted on such
bikeways or walkways constructed as the PROJECT except those for maintenance
purposes.
D. Failure of the parties hereto to fulfill their respective responsibilities as outlined herein
may disqualify that party from fhture Federal-aid participation in projects on roads or
streets for ,vhich it has maintenance responsibility. Federal Aid may be withheld until
such time as deficiencies in regulations have been corrected, and the improvements
constructed as the PROJECT are brought to a satisfactory condition of maintenance.
03-15-93 14
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SECTIONV
SPECIAL PROGRAM AND PROJECT CONDITIONS
A. Those projects for which the REQUESTING PARTY has been reimbursed with Federal
. monies for the acquisition of right-of-way must be under construction by the close of the
twentieth (20th) fiscal year following the fiscal year in which the FHWA and the
DEPARTMENT projects agreement covering that work is executed, or the
REQUESTING PARTY may be required to repay to the DEPARTMENT, for fo1warding
to the FHWA, all monies disttibuted as the FHWA'S contribution to that right-of-way,
B. Those projects for which the REQUESTING PARTY has been reimbursed with Federal
monies for the performance of preliminary engineering must be under constrnction by the
close of the tenth (10th) fiscal year following the fiscal year in which the FHWA and the
DEPARTMENT projects agreement covering that work is executed, or the
REQUESTING PARTY may be required to repay to the DEPARTMENT, for forwarding
to the FHWA, all monies distributed as the FHWA'S contribution to that preliminary
engineering.
C. On those projects funded with Federal monies, the REQUESTING PARTY, at no cost to
the PROJECT or the DEPARTMENT, will provide such accident infonnation as is
av~ilable and such other infonnation as may be required under the program in order to
make the proper assessment of the safety benefits derived from the work performed as the
PROJECT. The REQUESTING PARTY will cooperate with the DEPARTMENT in the
development ofreports and such analysis as may be required and will, when requested by
the DEPARTMENT, forward to the DEPARTMENT, in such form as is necessary> the
required information.
D. In connection with the perfonnance of PROJECT work under this contract the pai1ies
hereto (hereinafter in Appendix "A" referred to as the "contractor") agree to comply with
the State of Michigan provisions for "Prohibition of Discrimination in State Contracts",
as set forth in Appendix A> attached hereto and made a part hereof. The parties further
covenant that they will comply with the Civil Rights Acts of 1964, being P.L. 88-352, 78
Stat. 241, as amended, being Title 42 U.S.C. Sections 1971, 1975a-1975d, and 2000a-
2000h-6 and the Regulations of the United States Department of Transportation (49
C.F.R. Part 21) issued pursuant to said Act, including Appendix "B", attached hereto and
made a part hereof, and will require similar covenants on the part of any contractor or
subcontractor employed in the perfonnance of this contract.
E. The pai1ies will carry out the applicable requirements of the DEPARTMENT'S
Disadvantaged Business Enterprise (DBE) program and 49 CFR> Part 26> including, but
not limited to, those requirements set forth in Appendix C,
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APPENDIX A
PROHIBITION OF DISCRIMINATION IN STATE CONTRACTS
In connection with the performance of work under this contract; the contractor agrees as follows:
1. In accordance with Public Act 453 of 1976 (Elliott~Larsen Civil Rights Act), the
conh·actor shall not discriminate against an employee or applicant for employment with
respect to hire, tenure, treatment, terms, conditions, or privileges of employment or a
matter directly or indirectly related to employment because of race, color, religion,
national origin, age, sex, height, weight, or marital statt1s. A breach of this covenant will
be regarded as a matelial breach of this contract. Further, in accordance with Public Act
220 of 1976 (Persons with Disabilities Civil Rights Act), as amended by Public Act 478
of 1980, the contractor shall not discriminate against any employee or applicant for
employment with respect to hire, tenure, terms, conditions, or privileges of employment
or a matter directly or indirectly related to employment because of a disability that is
umelated to the individual's ability to perform the duties of a particular job or position. A
breach of the above covenants will be regarded as a material breach of this contract.
2. The contractor hereby agrees that any and all subconh·acts to this contract, whereby a
po1tion of the work set forth in this contract is to be performed, shall contain a covenant
the same as hereinabove set fotih in Section 1 of this Appe1idix.
3. The contractor will take affirmative action to ensure that _applicants for employment and
employees are treated without regard to their race, color, religion, national origin, age,
sex, height, weight, marital status, or any disability that is umelated to the individual's
ability to perform the duties of a particular job or position. Such action shall include, but
not be limited to, the following: employment; treatment; upgrading; demotion or transfer;
recruitment; advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
4, The conh·actor shall, in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive ~onsideration for
employment without regard to race, color, religion, national origin, age, sex, height,
weight, marital status, or disability that is umelated to the individual's ability to perform
the duties of a patiicular job or position.
5. The contractor or its collective bargaining representative shall send to each labor union or
representative of workers with which the contractor has a collective bargaining
agreement or other contract or understanding a notice advising such labor union or
workers' representative of the contractor's commitments under this Appendix,
6. The contractor shall comply with all relevant published rnles, regulations, directives, and
orders of the Michigan Civil Rights Commission that may be in effect prior to the taking
of bids for any individual state project.
DocuSign Envelope ID: 2135EDBB-6320-4044-9D6B-0AA4D0329C1C
7. The contractor shall furnish and file compliance rep01ts within such time and upon such
forms as provided by the Michigan Civil Rights Commission; said forms may also elicit
information as to the practices, policies, program, and employment statistics of each
st1bcontractor, as well as the contractor itself, and said contractor shall permit access to
the contractor's books, records, and accounts by the Michigan Civil Rights Commission
and/or its agent for the purposes of investigation to ascertain compliance under this
contract and relevant rules, regulations, and orders of the Michigan Civil Rights
Commission.
8. In the event that the Michigan Civil Rights Commission finds, after a hearing held
pursuant to its rules, that a contractor has not complied with the contractual obligations
under this contract, the Michigan Civil Rights Commission may, as a part of its order
based upon such findings, certify said findings to the State Administrative Board of the
State of Michigan, which State Administrative Board may order the cancellation of the
contract found to have been violated and/or declare the contractor ineligible for future
contracts with the state and its political and civil subdivisions, departments, and officers,
including the governing boards of institutions of higher education, until the contractor
complies with said order of the Michigan Civil Rights Commission. Notice of said
declaration of future ineligibility may be given to any or all of the persons with whom the
contractor is declared ineligible to contract as a contracting party in future contracts. In
any case before the Michigan Civil Rights Commission in which cancellation of an
existing contract is· a possibility, the contracting agency shall be notified of such possible
remedy and shall be given the option by the Michigan Civil Rights Commission to
participate in such proceedings.
9, The contractor shall include or incorporate by reference, the provisions of the.foregoing
paragraphs (1) through (8) in every subcontract or purchase order unless exempted by
rnles, regulations, or orders of the Michigan Civil Rights Commission; all subcontracts
and purchase orders will also state that said provisions will be binding upon each
subcontractor or supplier.
Revised June 2011
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APPENDIXB
TITLE VI ASSURANCE
During the performance of this contract, the contractor, for itself, its assignees, and its successors
in interest (hereinafter refened to as the "contractor"), agrees as follows:
1. Compliance with Regulations: For all federally assisted programs, the contractor shall
comply with the nondiscrimination regulations set fo1th in 49 CFR Part 21, as may be
amended from time to time (hereinafter referred to as the Regulations). Such Regulations
are incorporated herein by reference and made a part of this contract.
2. Nondiscrimination: The contractor, with regard to the work performed under the
contract, shall not discriminate on the grounds of race, color, sex, or national origin in the
selection, retention, and treatment of subcontractors, including procurements of materials
and leases of equipment. The contractor shall not participate either directly or indirectly
in the discrimination prohibited by Section 21.5 of the Regulations, including
employment practices, when the contractor covers a program set forth in Appendix B of
the Regulations.
3. Solicitation for Subcontracts, Including Procurements of Matel'ials and Equipment:
All solicitations made by the contractor, either by competitive bidding or by negotiation
for subcontract work, including procurement of materials or leases of equipment, must
include a notification to each potential subcontractor or supplier of the contractor's
obligations under the contract and the Regulations relative to nondiscrimination on the
grounds of race, color, or national origin.
4. Information and Reports: The conh·actor shall provide all information and reports
required by the Regulations or directives issued pursuant thereto and shall permit access
to its books, records, accounts, other sources of information, and facilities as may be
determined to be pertinent by the Department or the United States Department of
Transportation (USDOT) in order to asce1iain compliance with such Regulations or
directives. If required information concerning the contractor is in the exclusive
possession of another who fails or refuses to furnish the required information, the
contractor shall certify to the Depmiment or the USDOT, as appropriate, and shall set
forth the efforts that it made to obtain the information.
5. Sanctions for Noncompliance: In the event of the contractor's noncompliance with the
nondiscrimination provisions of this contract, the Depa1tment shall impose such contract
sanctions as it or the USDOT may determine to be appropdate, including, but not limited
to, the following:
a. Withholding payments to the contractor until the contractor complies; and/or
b. Canceling, terminating, or suspending the contract, in whole or in part.
DocuSign Envelope ID: 2135EDBB-6320-4044-9D6B-0AA4D0329C1C
6. Incorporntion of Provisions: The contractor shall include the provisions of Sections (1)
through (6) in every subcontract, including procurement of material and leases of
equipment, unless exempt by the Regulations or directives issued pursuant thereto. The
contractor shall take such action with respect to any subcontract or procurement as the
Department or the USDOT may direct as a means of enforcing such provisions, including
sanctions for non-compliance, provided, however, that in the event a contractor becomes
involved in or is threatened with litigation from a subcontractor or supplier as a result of
such direction, the contractor may request the Depaiiment to enter into such litigation to
protect the interests of the state. In addition, the contractor may request the United States
to enter into such litigation to protect the interests of the United States.
Revised June 2011
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APPENDIXC
TO BE INCLUDED IN ALL FINANCIAL ASSISTANCE
AGREEMENTS WITH LOCAL AGENCIES
Assurance that Recipients and Contractors Must Make
(Excerpts from US DOT Regulation 49 CFR 26,13)
A. Each financial assistance agreement signed with a DOT operating administration
(or a primary recipient) must include the following assurance:
The recipient shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of any US
DOT-assisted contract or in the administration of its DBE
program 01· the requirements of 49 CFR Part 26. The recipient
shall take all necessary and reasonable steps under 49 CFR
Part 26 to ensure nondiscrimination in the award and
administration of US DOT-assisted contracts. The recipient's
DBE program, as required by 49 CFR Part 26 and as
approved by US DOT, is incorporated by reference in this
agreement. Implementation of this prog1·am is a legal
obligation ancl failure to carry out its terms shall be treated as
a violation of this agreement. Upon notification to the
recipient of its failm·e to carry out its approved program, the
department may impose sanctions as provided for under Part
26 and may, in app1·opriate cases, refer the matter for
enforcement under 18 U.S.C. 1001 and/or the Program Fraud
Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
B. Each contract MDOT signs with a contractor (and each subcontract the prime
contractor signs with a subcontractor) must include the following assurance:
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 cany
out applicable requirements of 49 CFR Part 26 in the award
and administration of US DOT"assistecl contracts. Failure by
the contractor to carry out these requirements is a matedal
breach of this contract, which may result in the termination of
this contract or such other 1·emedy as the recipient deems
appropriate.
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