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CITY OF MUSKEGON
CITY COMMISSION MEETING
MAY 9, 2006
CITY COMMISSION CHAMBERS @ 5:30 P.M.
AGENDA
o CALL TO ORDER:
o PRAYER:
o PLEDGE OF ALLEGIANCE:
o ROLL CALL:
o HONORS AND AWARDS:
o INTRODUCTIONS/PRESENTATION:
o CONSENT AGENDA:
A. Approval of Minutes. CITY CLERK
B. Contract Renewal with Digital Spectrum Enterprises {DSE). ASSISTANT
CITY MANAGER
C. 2006 Water Treatment Chemical Bids. WATER FILTRATION
D. Approval of Contractor for Demolition of Structure at 280 lona.
COMMUNITY & NEIGHBORHOOD SERVICES
E. Lead Based Paint Abatement at 867 Williams. COMMUNITY &
NEIGHBORHOOD SERVICES
F. Approval of Contractor for Completion of Rehabilitation of Structure at
867 Williams. COMMUNITY & NEIGHBORHOOD SERVICES
G. Consideration of Bids - Benton Street & Williams Street. Chestnut Street
to Catawba Avenue {H1584). ENGINEERING
H. Agreement with Harbor Unitarian Universalist Congregation to Operate
at the Farmers Market. ASSISTANT CITY MANAGER
o PUBLIC HEARINGS:
A. Request to Establish an Obsolete Property District - 1133 W. Western.
PLANNING & ECONOMIC DEVELOPMENT
B. Request to Issue an Obsolete Property Certificate - 1133 W. Western.
PLANNING & ECONOMIC DEVELOPMENT
o COMMUNICATIONS:
o CITY MANAGER'S REPORT:
o UNFINISHED BUSINESS:
o NEW BUSINESS:
A. Change Order- Hartshorn Marina Renovation Phase Ill. ASSISTANT CITY
MANAGER
B. Intake Inspection. WATER FILTRATION
C. Resolution to Sell 247 E. Walton. COMMUNITY & NEIGHBORHOOD
SERVICES
D. Consideration of Proposal to Construct 200' of 8" Main at Sherman and
Beach. ENGINEERING
o ANY OTHER BUSINESS:
o PUBLIC PARTICIPATION:
> Reminder: Individuals who would like to address the City Commission shall do the following:
> Fill out a request to speak form attached to the agenda or located in the back of the room.
J> Submit the form to the City Clerk.
> Be recognized by the Chair.
> Step forward to the microphone.
> State name and address.
> limit of 3 minutes to address the Commission.
> (Speaker representing a group may be allowed 10 minutes if previously registered with City Clerk.)
o ADJOURNMENT:
ADA POLICY: THE CITY OF MUSKEGON WILL PROVIDE NECESSARY AUXILIARY AIDS AND SERVICES TO INDIVIDUALS WHO
WANT TO ATTEND THE MEETING UPON TWENTY FOUR HOUR NOTICE TO THE CITY OF MUSKEGON. PLEASE CONTACT GAIL A.
KUNDINGER, CiTY CLERK, 933 TERRACE STREET, MUSKEGON, Ml49440 OR BY CALLING (231) 7246705 OR TOO: (231)
724-4172.
Date: May9, 2006
To: Honorable Mayor and City Commissioners
From: Gail A. Kundinger, City Clerk
RE: Approval of Minutes
SUMMARY OF REQUEST: To approve the minutes of the Regular
Commission Meeting that was held on Tuesday,April25, 2006.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the minutes.
CITY OF MUSKEGON
CITY COMMISSION MEETING
MAY 9, 2006
CITY COMMISSION CHAMBERS@ 5:30P.M.
MINUTES
The Regular Commission Meeting of the City of Muskegon was held at City
Hall, 933 Terrace Street, Muskegon, Michigan at 5:30p.m., Tuesday, May 9, 2006.
Mayor Warmington opened the meeting with a prayer from Reverend
Gerald Wahr from the McGraft Memorial Congregational Church after which
the Commission and public recited the Pledge of Allegiance to the Flag.
ROLL CALL FOR THE REGULAR COMMISSION MEETING:
Present: Mayor Stephen Warmington, Vice Mayor Stephen Gawron,
Commissioner Sue Wierenga, Chris Carter, Kevin Davis, Clara Shepherd, and
Lawrence Spataro, City Manager Bryon Mazade, City Attorney John Schrier, and
Deputy City Clerk Linda Potter.
2006-41 CONSENT AGENDA:
A. Approval of Minutes. CITY CLERK
SUMMARY OF REQUEST: To approve the minutes of the Regular Commission
Meeting that was held on Tuesday, April 25, 2006.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Approval of the minutes.
B. Contract Renewal with Digital Spectrum Enterprises CDSE). ASSIST ANT
CITY MANAGER
SUMMARY OF REQUEST: To authorize the Mayor to sign a two-year contract (with
the option to renew for a third) with Digital Spectrum Enterprise. Necessary
discussion and follow-up has been pursued with the City Commission regarding
this issue. The contract has been updated accordingly.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: This issue was discussed at the Commission
Worksession on April 10, 2006, and the Commission concurred with staff
recommendation as outlined.
C. 2006 Water Treatment Chemical Bids. WATER FILTRATION
SUMMARY OF REQUEST: Recommend endorsement of lowest responsible
bidders to supply aluminum sulfate, sodium hypochlorite, and fluoride for the
water filtration plant.
FINANCIAL IMPACT: Annual cost of $88,483 (based on average annual water
pumped to mains).
BUDGET ACTION REQUIRED: None at this time. These chemicals are budgeted
annually.
STAFF RECOMMENDATION: Staff recommends the Mayor and City Commission
endorse the low bids received and the contract renewal and enter into
contracts with US Aluminate, Rowell Chemical, and Lucier Chemical for
aluminum sulfate, sodium hypochlorite, and fluoride respectively.
E. Lead Based Paint Abatement at 867 Williams. COMMUNITY &
NEIGHBORHOOD SERVICES
SUMMARY OF REQUEST: To approve the bid with Statewide Abatement, 1720 N.
Creston, North Muskegon, Michigan for the lead base paint abatement of the
City-owned home at 867 Williams for $25,845. The only other bid received was
from Specialty Builders PB Abatement Co. LLC, 2434 Annette, Muskegon,
Michigan for $34,400.
After the lead base paint abatement is complete, the structure will be totally
rehabilitated and then sold to a qualified low to moderate-income homebuyer.
FINANCIAL IMPACT: Cost of the abatement will be allocated from the 2004
HOME budget and from program income produced by the Community and
Neighborhood Services office.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To approve the bid and authorize staff to contract
the work with Statewide Abatement.
COMMIITEE RECOMMENDATION: The Commission approved Community and
Neighborhood Services office to purchase this home from the private market in
2004.
F. Approval of Contractor for Completion of Rehabilitation of Structure at
867 Williams. COMMUNITY & NEIGHBORHOOD SERVICES
SUMMARY OF REQUEST: To approve the contract with Specialty Builders PB
Abatement Co., LLC Construction, 2434 Annette, Muskegon, Michigan for the
completion of the rehabilitation of 867 Williams for $50,689. The structure was
obtained by the City of Muskegon through the private market, in an effort to
continue the neighborhood revitalization in the Angel neighborhood. After the
final rehabilitation is completed, the property will be sold to a qualified family in
accordance with the Community and Neighborhood Services offices
established guidelines, continuing the City's aggressive neighborhood
revitalization efforts.
The Community and Neighborhood Services office received three other
proposals for this project:
Noble/Baldwin, Inc., 210 E. Broadway, Muskegon Heights- $61,558
Lewis Johnson Construction, 16076 Bonita, Grand Haven- $57,900
J2 Development & Construction Co., 109 E. Laketon, Muskegon- $55,217.96
FINANCIAL IMPACT: The funding for this project will be taken from the City's
HOME funds from fiscal year 2004 and program income produced by the
Community and Neighborhood Services office.
BUDGET ACTION REQUIRED: None required
STAFF RECOMMENDATION: To approve the Community and Neighborhood
Services request.
COMMITTEE RECOMMENDATION: The Commission approved Community and
Neighborhood Services office to obtain this home through the open market;
and it was stated, at that time, that the home would be totally rehabilitated at a
later date.
G. Consideration of Bids - Benton Street & Williams Street, Chestnut Street
to Catawba Avenue CH-1584). ENGINEERING
SUMMARY OF REQUEST: Award the paving, using asphalt material, contract (H-
1584) for Benton Street & Williams Street. Chestnut Street to Catawba A venue to
Jackson-Merkey Contractors, Inc. since they were the lowest bidder with a bid
price of $102,956.78.
FINANCIAL IMPACT: The construction cost $102,956.78 plus engineering cost
which is estimated at an additional 20%.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Award the contract to Jackson-Merkey Contractors,
Inc.
H. Agreement with Harbor Unitarian Universalist Congregation to Operate
at the Farmers Market. ASSISTANT CITY MANAGER
SUMMARY OF REQUEST: To authorize the Mayor to sign a one-year agreement
between the City of Muskegon and Harbor Unitarian Universalist Congregation
to sell Fair Trade Coffee, baked goods, tea, soft drinks and bottle water at the
Muskegon Farmers Market. The Church is a member of the Friends of the Market
group that was recently organized to enhance the aesthetic appeal of the
Market.
FINANCIAL IMPACT: None. Harbor Unitarian Universalist Congregation will pay
the City 10% of sale.
BUDGET ACTION REQUIRED: None
STAFF/COMMITTEE RECOMMENDATION: The Leisure Services Board is scheduled
to meet in July. In between meetings, the Director of Leisure Services
Department is authorized to take action on such request and advise the body
later. It is therefore, staff's recommendation that the Commission approves this
request.
I. Changes to Industrial Facility Tax Abatement Contract. AFFIRMATIVE
ACTION/COMMUNITY & ECONOMIC DEVELOPMENT
SUMMARY OF REQUEST: To approve changes to the Industrial Facility Tax
abatement contract. The only change is in Section 1.3 with the addition of the
number of 14% for minority employment.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To approve the changes to the contract.
COMMITIEE RECOMMENDATION: The Equal Opportunity Committee has
recommended the changes.
J. City - Michigan Department of Transportation Agreement for Western
Avenue. Third to Terrace Streetscape. ENGINEERING
SUMMARY OF REQUEST: To approve the contract with Michigan Department of
Transportation for streetscape (decorative concrete & street lights) work along
Western Avenue from Third Street to Terrace Street (including all necessary
related work) and to approve the resolution authorizing the Mayor and City
Clerk to sign the contract.
FINANCIAL IMPACT: Michigan Department of Transportation's participation of
federal money is capped at $960,000 but not to exceed 80% of eligible cost.
The estimated total construction cost (with engineering) of the project, is
$1,195,000.
BUDGET ACTION REQUIRED: None at this time.
STAFF RECOMMENDATION: Approve the agreement and resolution.
K. Commission Computer Access. CITY MANAGER
Motion by Commissioner Spataro, second by Commissioner Carter to approve
the Consent Agenda with the exception of item D.
ROLL VOTE: Ayes: Wierengo, Carter, Davis, Gawron, Shepherd, Spataro, and
Warmington
Nays: None
MOTION PASSES
2006-42 ITEM REMOVED FROM THE CONSENT AGENDA:
D. Approval of Contractor for Demolition of Structure at 280 lona.
COMMUNITY & NEIGHBORHOOD SERVICES
SUMMARY OF REQUEST: To approve the contract with Press's LLC, 8081 Holton
Duck Lake Road, Holton, Michigan for the demolition of the City-owned home
at 280 lona for $3,730. Press's was the only contractor that submitted a bid for
the project. After the demolition is completed, the Community and
Neighborhood Services office will solicit bids from qualified builders to construct
a new home on the site, in an effort to continue the City's assertive
neighborhood revival efforts.
FINANCIAL IMPACT: The funding for the demolition will be taken from the City's
HOME funds from fiscal year 2005 and program income.
BUDGET ACTION REQUIRED: None required.
STAFF RECOMMENDATION: To approve the Community and Neighborhood
Services request.
COMMITIEE RECOMMENDATION: The Commission approved Community and
Neighborhood Services office to obtain 280 lona from the State of Michigan for
the original goal of rehabilitating the structure. But, after further study, it has
been determined that it will be in the City's best interest to demolish the
structure and rebuild.
Motion by Commissioner Shepherd, second by Commissioner Carter to approve
the contract with Press's for the demolition of 280 lona.
ROLL VOTE: Ayes: Carter, Davis, Gawron, Shepherd, Spataro, Warmington,
Wierengo
Nays: None
MOTION PASSES
2006-43 PUBLIC HEARINGS:
A. Request to Establish an Obsolete Property District - 1133 W. Western.
PLANNING & ECONOMIC DEVELOPMENT
SUMMARY OF REQUEST: Pursuant to Public Act 146 of the Michigan Public Acts
of 2000, Kirksey Investment Corporation, 1204 W. Western, Muskegon, Ml 49441,
has requested the establishment of an Obsolete Property District. The district
would be located at 1133 W. Western Avenue, Muskegon, MI. This project will
consist of rehabbing this building into a warehousing facility. Total capital
investment for this project is $500,000.
FINANCIAL IMPACT: If an Obsolete Property Certificate is issued, the property
taxes would be frozen for the duration of the certificate.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: None
The Public Hearing opened at 5:43 p.m. to hear and consider any comments
from the public. Joel Fitzpatrick and Dennis Kirksey explained the item and
answered Commissioner's questions. No comments were heard from the public.
Motion by Commissioner Carter, second by Commissioner Spataro to close the
Public Hearing at 6:16 p.m. and establish an Obsolete Property District at 1133 W.
Western.
ROLL VOTE: Ayes: Gawron, Spataro, Warmington, Wierengo, and Carter
Nays: Davis and Shepherd
MOTION PASSES
B. Request to Issue an Obsolete Property Certificate - 1133 W. Western.
PLANNING & ECONOMIC DEVELOPMENT
SUMMARY OF REQUEST: Pursuant to Public Act 146 of the Michigan Public Acts
of 2000, Kirksey Investment Corporation, 1204 W. Western, Muskegon, 49441 has
requested the issuance of an Obsolete Property Certificate for the property
located at 1133 W. Western, Muskegon, MI. Total capital investment for this
project is $500,000. The project consists of converting the building into a
warehousing facility. Because of the amount of investment, the applicant is
eligible for a 12-year certificate.
FINANCIAL IMPACT: If an Obsolete Property Certificate is issued, the properly
taxes would be frozen for the duration of the certificate.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: None
The Public Hearing opened at 6:17 p.m. to hear and consider any comments
from the public. No public comments were heard.
Motion by Commissioner Spataro, second by Commissioner Carter to close the
Public Hearing at 6:18 p.m. and approve the request for an Obsolete Property
Certificate for 1133 W. Western.
ROLL VOTE: Ayes: Gawron, Spataro, Warmington, Wierengo, Carter, and Davis
Nays: Shepherd
MOTION PASSES
2006-44 NEW BUSINESS:
A. Change Order- Hartshorn Marina Renovation Phase Ill. ASSISTANT CITY
MANAGER
SUMMARY OF REQUEST: To post authorize staff's approval (as provided for in the
City Purchasing Policy) of Change Order #3 with Great Lakes Docks and Marina,
the Project Contractor, in the amount of $52,475.70 as payment for the
repair/rebuilding of the head pier at the east end of the marina docks. While
we rarely exercise the authority to pre-approve Change Orders, when we do, it
is often due to the timing of the work required to be done - as indeed was the
reason for this pre-approval by staff. Completion of this portion of the project
will be by the end of May 2006. Payment will also have to be made to
Abonmarche Group, the Consulting firm overseeing the project, for necessary
drawing and drafting tasks associated with this work.
FINANCIAL IMPACT: $52,475.70
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To authorize staff to approve Change Order #3 with
Great Lakes Docks and Marina.
Motion by Commissioner Spataro, second by Vice Mayor Gawron to authorize
staff to approve Change Order #3 with Great Lakes Docks and Marina.
ROLL VOTE: Ayes: Shepherd, Spataro, Warmington, Wierengo, Carter, Davis,
and Gawron
Nays: None
MOTION PASSES
B. Intake Inspection. WATER FILTRATION
SUMMARY OF REQUEST: To contract with an underwater contractor to inspect
the intake conduit, chemical application piping, intake crib, and replace the
wooden louvers on the crib structure.
FINANCIAL IMPACT: Project cost of $48,676.
BUDGET ACTION REQUIRED: Project budgeted at $32,000. Additional cost will
be addressed by the Water Fund Capitol Improvements budget and identified
in the next budget reforecast.
STAFF RECOMMENDATION: Staff recommends the Mayor and City
Commissioners approve entering into a contract with Onyx Underwater Services,
Inc., with consideration of the bidding irregularity for additional material
removal, at a cost of $48,67 6.
Motion by Vice Mayor Gawron, second by Commissioner Spataro to approve
entering into a contract with Onyx Underwater Services, Inc., with consideration
of the bidding irregularity for additional material removal, at a cost of $48,676.
ROLL VOTE: Ayes: Spataro, Warmington, Wierengo, Carter, Davis, Gawron, and
Shepherd
Nays: None
MOTION PASSES
C. Resolution to Sell 247 E. Walton. COMMUNITY & NEIGHBORHOOD
SERVICES
SUMMARY OF REQUEST: To approve the resolution to sell the City-owned house
at 247 E. Walton to Ms. Doris Harris, of 1259 Mclaughlin, Muskegon, for the
expected appraised value of $145,000 minus the $49,000 subsidy.
The house at 247 E. Walton is a part of the second phase of the Walton Street
Renaissance AKA Hilltop View, which was started last summer and will be totally
completed in the next 30 days. The Hilltop View project was the first time that
the Community and Neighborhood Services office had attempted a
development. which consisted of more than one property. With the sale of this
property at 247 E. Walton five of the six homes in the development will have
been purchased.
The Walton Street project is a partnership between the City of Muskegon, Fifth
Third Bank and Neighborhood Investment Corporation. It is the hope of all those
involved in the Walton Street Renaissance project that it will be an anchor for
additional redevelopment in the adjacent area as we continue to prepare and
cultivate our community for 21st Century living.
FINANCIAL IMPACT: The program income derived from this transaction will be
deposited in the City's HOME account minus the funds owed Fifth Third Bank
that was used to construct the new street in the area.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To approve the resolution and the sale of 247 Walton
to Ms. Doris Harris.
COMMITIEE RECOMMENDATION: The Walton Street Project was approved by
both the City Commission and the Land Reutilization Committee.
Motion by Commissioner Shepherd, second by Commissioner Carter to approve
the resolution to sell 247 E. Walton to Ms. Doris Harris
ROLL VOTE: Ayes: Warmington, Wierengo, Carter, Davis, Gawron, Shepherd,
and Spataro
Nays: None
MOTION PASSES
D. Consideration of Proposal to Construct 200' of 8" Main at Sherman and
Beach. ENGINEERING
SUMMARY OF REQUEST: Authorize staff to accept Jackson Merkey's proposal to
place approximately 200' of 8" water main section along w ith other necessary
items to connect the existing 6" dead-end main on Sherman to that being
constructed to serve the Idlew ild area. The proposed section of main w ill
provide a direct connection to the 30" main on the east side of Beach and in
the process improve the flow in the mains within the area west of Beach and
north of Sherman. Jackson Merkey is being recommended for two main
reasons:
1. The proposed cost of $21,726 is very reasonab le for the amount of work
involved
2. Jackson Merkey is already on site for the Idlewild project and therefore
eliminating a possible additional cost for mobilization
FINANCIAL IMPACT: The construction cost of $21,726.
BUDGET ACTION REQUIRED: None, the cost will be covered by the $100,000
budgeted for "Water Main Replacement Projects".
STAFF RECOMMENDATION: Authorize staff to accept Jackson Merkey's proposal
for the work to be done in May of 2006.
Motion by Commissioner Spataro, second by Commissioner Shepherd to
approve the construction.
ROLL VOTE: Ayes: Wierengo, Carter, Davis, Gawron, Shepherd, Spataro, and
Warmington
Nays: None
MOTION PASSES
ANY OTHER BUSINESS: Commission commented on various items.
PUBLIC PARTICIPATION: Various comments were heard from the public.
ADJOURNMENT: The City Commission Meeting adjourned at 7:08p.m.
Respectfully submitted,
Linda Potter, CMC
Deputy City Clerk
CITY COMMISSION MEETING May 9, 2006
Agenda Item# _ __
COVER PAGE
To: Mayor and City Commissioners
From: Lee J. Slaughter, Assistant City Manager
Date: May 1, 2006
Re: Contract Renewal with Digital Spectrum Enterprises (DSE)
SUMMARY OF REVIEW
To authorize the Mayor to sign a two-year contract (with the option to renew for a third)
with Digital Spectrum Enterprise. Necessary discussion and follow-up has been pursued
with the City Commission regarding this issue. The attached Contract has been updated
accordingly.
FINANCIAL IMPACT:
None.
BUDGET ACTION REQUIRED:
None.
STAFF/COMMITTEE ACTION:
This issue was discussed at the Commission Work session on April!O, 2006 and the
Commission concurred with staff recommendation as outlined.
MEMORANDUM
To: Mayor Warmington and City Commissioners
From: Lee J. Slaughter, Acting City Manager
Date: April 4, 2006
Re: Digital Spectrum Enterprises (DSE) Annual Report
Attached please find DSE's Annual Report to the City as required by the contract. The
contract with DSE is a one-year contract which expires May 31,2006. The one year trial
period was successful and without insurmountable challenges. I am supportive of DSE' s
request to renew the contract for a more extended period of time. This item is on your
April 10, 2006 work session agenda for discussion and further direction.
Summary Review and Comments -- DSE Annual Report
Contract Duration: Ms. Bradsburg is requesting a three-year contract. Staff recommends
entering into a two-year contract with the option to renew for another year.
Possible Challenge from Comcast: staff does not share Ms. Bradsburg assertion that
threats fi·om Comcast towards DSE might be non-existence.
Current Franchise Agreement with Comcast: The Agreement is for 25-year. It was
signed 12/8/87 and the License issued 8/2/88. Technically, the Agreement expires in
2012 and not 2014 as indicated in the report.
Commercial Advertising: Ms. Bradsburg is requesting permission from the City for DSE
to carry Commercial Advertising. Staff does not recommend granting this request. We
are confident that DSE can continue to fimction effectively with the use of non-
commercial advertising.
Financial Reporting: The current contract calls for DSE to provide an armual report prior
to April 15. Ms. Bradsburg would like for the date to be set at June 15. Staff
recommends April 301h as the new due date. Due to this recommended change, it is
further recommended that the contract is effective July 1 --this will allow for the
recommended 60-day contract renewal period as advised by the City Attorney and
supported by other PEG Channel agreements.
Please feel free to call if you have questions.
Thank you.
C: Bryon Mazade
Ann Bradsburg
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City of Muskegon, 933 Terrace Street, P.O. Box 536, Muskegon, MI 49443-0536
AGREEMENT BETWEEN CITY OF MUSKEGON
AND
DIGITAL SPECTRUM ENTERPRISES OF WEST MICHIGAN, INC.
This Agreement is made this J.!!'_ day of !//
C1jl , 2006, by and between the City
of Muskegon, a Michigan municipal corporation ("City") and Digital Spectrum
Enterprises of West Michigan, Inc., a Michigan nonprofit corporation ("DSE"), who
agree as follows:
RECITALS
I. The City desires to provide support for the use of cable television, public,
educational, and government ("PEG") access channels provided pursuant to federal law.
2. The City has granted a franchise to Comcast, as successor of Taft Cable Partners
and Robert Fulk, Ltd. ("Cable Company") to operate a cable television system in the City
of Muskegon ("Franchise Agreement").
3. The Franchise Agreement with Cable Company provides that certain channel
capacity be provided for PEG access, including a government access channel for use by
area municipal governments served by Cable Company (currently cable channel 77)
("Government Access Channel").
4. DSE, as the access management entity designated by the City, has indicated its
interest in serving the community by providing PEG access programming and services on
the Government Access Channel.
5. In exchange for broadcasting City events free of charge (as explained in Section
l.B below), the City agrees to allow DSE to use the Government Access Channel to
broadcast programming consistent with PEG channel purposes.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
SECTION I. SCOPE OF SERVICES: Pursuant to this Agreement, DSE shall provide
the following services:
A. OPERATE THE GOVERNMENT ACCESS CHANNEL. Operate the
Government Access Channel for local government and community access
programming purposes in a manner consistent with the principles set forth
in this Agreement and the Franchise Agreement between the City and
Cable Company, with the primary purpose being to administer, coordinate
and assist the City of Muskegon in providing local government
programming.
B. BROADCASTING LOCAL GOVERNMENT PROGRAMMING. Produce
and broadcast, at no expense to the City, City Commission meetings and
the meetings of other committees, boards, and commissions that the City
might require, and other reasonable programs or issues that the City
Commission may deem necessary.
C. DEVELOP OPERATING POLICIES AND PROCEDURES Develop
policies and procedures for use and operation of the PEG access
equipment, facilities, and channel and file such policies and procedures
with the City.
D. COMPLIANCE WITH LAWS, RULES, AND REGULATIONS Administer
the Government Access Channel and facilities in compliance with
applicable laws, rules, regulation, and in compliance with the Franchise
Agreement between the City and Cable Company.
E. TRAINING. Train City residents, and when requested, City and school or
college employees in the techniques of video production, and provide
technical advice in the execution of productions.
F. SPECIAL NEEDS GROUPS. Support special needs groups, including but
not limited to the hearing impaired, in program production through
training and other means.
G. OTHER ACTIVITIES Undertake other PEG access programming
activities and services as deemed appropriate by DSE and consistent with
the obligation to facilitate and promote PEG access progrannning and
provide non discriminatory access.
SECTION 2. CHANNELS OPEN TO PUBLIC: DSE agrees to keep the Government
Access Channel open to all potential users regardless of their viewpoint, subject to FCC
regulations and other relevant laws. Neither the City, nor the Cable Company, nor DSE
shall have the authority to control the content of progrannning placed on the Government
Access Channel so long as such progrannning is lawful. Provided that, nothing herein
shall prevent DSE, the City, or Cable Company from producing or sponsoring
progrannning, prevent the City or the Cable Company from underwriting programming,
or prevent DSE, the City or Cable Company from engaging in activities designed to
promote production of certain types of progrannning or use by targeted groups as
consistent with applicable laws and rules for use of PEG channels. DSE may develop
and enforce policies and procedures which are designed to promote local use of the
channel and make programming accessible to the viewing public, consistent with such
time, manner, and place regulations as are appropriate to provide for and promote use of
PEG access channels, equipment and facilities.
SECTION 3. INDEMNIFICATION: DSE shall indemnify, defend, and hold harmless
the City, its officers, agents, employees and volunteers from and against any and all
claims, suits, actions, causes of action, losses, damage, or liabilities of any kind, nature or
description, including payment of litigation costs and attorneys' fees, brought by any
person or persons for or on account of any loss, damage or injury to person, property or
any other interest, tangible or intangible, sustained by or accruing to any person or
persons, however the same may be caused, whether directly or indirectly arising or
resulting from any alleged acts or omission of DSE, its officers, employees, agents or
subcontractors arising out of or resulting from the performance of this Agreement.
DSE shall indemnify and hold harmless the City, its officers, agents, employees and
volunteers from and against any and all claims or other injury, including costs of
litigation and attorneys' fees, arising from or in connection with claims or loss or damage
to person or property arising out of the failure to comply with any applicable Jaws, rules,
regulations or other requirements of local, state or federal authorities, for claims of libel,
slander, invasions of privacy, or infringement of common law or statutory copyright, for
breach of contract of other injury or damage in Jaw or at equity which claims, directly or
indirectly, result from DSE use of channels, funds, equipment, facilities or staff granted
under this Agreement or the Franchise Agreement.
SECTION 4. COPYRIGHT.
A. CLEARANCE. Before cablecasting video transmissions, DSE shall
require all users to agree in writing that they shall make all appropriate
arrangements to obtain 1) all rights to all material cablecast and 2)
clearance from broadcast stations, networks, sponsors, music licensing
organizations' representatives, and any and all other persons as may be
necessary to transmit their program material over the Government Access
Channel. DSE shall maintain, for the applicable statute of limitations
period, copies of all such user agreements for the City's inspection, upon
reasonable notice by City.
B. OWNERSHIP. The City shall own the copyright of any programs that the
City requests DSE to produce. Copyright of all other programming shall
be held by the person(s) who produces the program.
SECTION 5. INSURANCE: DSE shall maintain in full force and effect at all times
during the term of this Agreement insurance as required by this Section. The cost of such
insurance shall be borne by DSE.
A. COMPREHENSIVE LIABILITY INSURANCE. Comprehensive liability
insurance, including protective, completed operations and broad form
contractual liability, property damage and personal injury coverage, and
comprehensive automobile liability including owned, hired, and non-
owned automobile coverage. The limits of such coverage shall be: (I)
bodily injury including death, $1,000,000 for each person, each
occurrence and aggregate; (2) property damage, $1,000,000 for each
occurrence and aggregate.
B. EQUIPMENT INSURANCE. Insurance shall be maintained on all
equipment and facilities, including fixtures, to replacement cost. The
insurance shall include, at a minimum, insurance against loss or damage
beyond the user's control, theft, fire, or natural catastrophe. The City shall
be shown as lien holder on all policies.
C. WORKER'S COMPENSATION Full Worker's Compensation Insurance
and Employer's Liability with limits as required by Michigan law,
provided through an insurance carrier satisfactory to the City.
D. CABLECASTER 'S ERRORS AND OMMISION INSURANCE. Insurance
shall be maintained to cover the content of productions which are
cablecast on the Government Access Channel in at least the following
areas: libel and slander; copyright or trademark infringement; infliction of
emotional distress, invasion of privacy; plagiarism; misuse of musical or
literary materials. This policy shall not be required to cover individual
access producers.
E. CITY AS CO-INSURED OR ADDITIONAL INSURED. The City shall be
named as a co-insured or additional insured on all aforementioned
insurance coverages. The policies shall provide that no cancellation,
major change in coverage or expiration may be affected by the insurance
company or DSE without first giving the City thirty (30) days written
notice prior to the effective date of such cancellation or change in
coverage. Any insurance or self-insurance maintained by the City, its
officers, agents, employees, or volunteers shall be in excess of the DSE
insurance and shall not contribute to it.
F. NOTIFICATION OF COVERAGE. DSE shall file with the City proof of
insurance coverage as follows: (I) Comprehensive Liability and Workers'
Compensation; (2) equipment insurance upon the acquisition of any
equipment; (3) cablecaster's error and omission insurance within thirty
(30) days of the cablecasting of programming on the Government Access
Channel.
SECTION 6. NON-DISCRIMINATION IN EMPLOYMENT AND SERVICE.
A. DSE shall not discriminate against any person, employee or applicant for
employment or contract work on the basis of race, color, creed, religion,
sex, sexual preference, marital status, ancestry, national origin or physical
or mental handicap.
B. DSE shall not discriminate in the delivery of services on the basis of race,
color, creed, religion, sex, sexual preference, marital status, ancestry,
national origin or physical or mental handicap.
SECTION 7. INDEPENDENT CONTRACTOR: It is understood and agreed that DSE
is an independent contractor and that no relationship of principal/agent or
employer/employee exists between the City and DSE. If in the performance of this
Agreement any third persons are employed by DSE, such persons shall be entirely and
exclusively under the control, direction and supervision ofDSE. All terms of
employment, including hours, wages, working conditions, discipline, hiring and
discharging, or any other term of employment, shall be determined by DSE and the City
shall have no right or authority over such persons or terms of employment.
SECTION 8. ASSIGNMENT AND SUBLETTING: Neither this Agreement nor any
interest herein shall be assigned or transferred by DSE, except as expressly authorized in
writing by the City.
SECTION 9. ANNUAL REPORTS: April 30 of each year, DSE shall submit to the City
an annual report for the preceding fiscal year (January 1 -December 31 ). This report
shall contain, at a minimum, the following information:
A. Statistics on programming and services provided;
B. Current and complete listing ofDSE's Board of Directors;
C. Year-end financial statements audited by an independent certified public
accountant.
SECTION 10. RECORDS, FISCAL AUDIT:
A. DSE shall maintain all necessary books and records, in accordance with
generally accepted accounting principles.
B. Upon reasonable request from the City, DSE shall, at any time during
normal business hours, make available all of its records with respect to all
matters covered by this Agreement.
SECTION 11. ANNUAL PLAN AND BUDGET:
A. On or before July 30 of each year in which this Agreement is in effect,
DSE shall provide to the City an Annual Plan and Budget outlining
activities and programs planned for the following fiscal year. Such plan
shall contain:
I. A statement of anticipated number of hours oflocal original PEG
access programming;
2. Training classes to be offered and frequency of classes; and
3. Other access activities planned by DSE.
SECTION 12. FUNDING FROM OTHER SOURCES: DSE may, during the course of
this Agreement, receive funds from other sources, including, but not limited to,
fundraising activities. DSE may generate funding for programming through program
underwriting and sponsorship in a manner consistent with federal, state, or local non-
commercial PEG channel rules and regulations.
SECTION 13. TERM OF AGREEMENT.
A. This Agreement shall be for a period of two years commencing July I, 2006
and ending June 30, 2008, unless terminated earlier, as provided in this
Agreement. The Agreement also provides the option to renew for another
year (a third year), per city review.
B. At the option of the City, this Agreement will be renewed for one additional
year. Notice of intent to extend the Agreement must be given by either party,
City or DSE, no less than sixty (60) days prior to the expiration of the
Agreement.
SECTION 14. TERMINATION OF AGREEMENT/TRANSFER OF ASSETS:
A. The City shall have the right upon sixty (60) days written notice to DSE to
terminate this Agreement for:
I. Breach of any provision of this Agreement by DSE;
2. Malfeasance, misfeasance, and/or misappropriation of public
funds;
3. Notice from Cable Company (and City verification) that DSE is
engaging in commercial advertising and/or fundraising in a manner
inconsistent with PEG channels; or
3. Loss of50l(c)(3) status by DSE.
B. DSE may avoid termination by curing any such breach to the satisfaction
of the City within thirty (30) days of notification or within a time frame
agreed to by the City and DSE. The City may also terminate this
Agreement at the expiration of its term, or any extension thereof.
SECTION 15. TIME: Time is of the essence in this Agreement and for the performance
of all covenants and conditions of this Agreement.
SECTION 16. COOPERATION: Each party agrees to execute all documents and do all
things necessary and appropriate to carry out the provisions of this Agreement.
SECTION 17. APPLICABLE LAW: This Agreement shall be interpreted and enforced
under the laws of the State of Michigan.
SECTION 18. NOTICES: All notices and other communications to be given by either
party may be given in writing, depositing the same in the United States mail, postage
prepaid and addressed to the appropriate party as follows:
TO: CITY OF MUSKEGON
Attn: Lee Slaughter
Assistant City Manager
933 Terrace Street
Muskegon,MI49442
TO: DIGITAL SPECTRUM ENTERPRISES
Attn:
I 05 w·-:-=sh;-e-rm-an-,B::-I:-v-:-d-
Muskegon,MI49444
Any party. may change its address for notice by written notice to the other party at any
time.
SECTION 19. ENTIRE AGREEMENT: This Agreement is the entire agreement of the
parties and supersedes all prior negotiations and agreements whether written or oral. This
Agreement may be amended only by written agreement and no purported oral
amendment to this Agreement shall be valid.
[signatures appear on following page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written above.
CITY OF MUSKEGON, a Michigan municipal
And: __-F~~~~~~~~~~-
Gail A. Kundinger, MMC
Its Clerk
DIGITAL SPECTRUM ENTERPRISES OF
WEST MICHIGAN, INC., a Michigan nonprofit
corporation.
Contract Revised 5/8/06
by Lee Slaughter, Asst. City Mgr.
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MEMORANDUM
To: Mayor and City Commissioners
From: Lee J. Slaughter, Assistant City Manager
Date: May 3, 2006
Re: Agreement with Harbor Unitarian Universalist Congregation to Operate at the
Farmers Market.
Attached is a slightly revised version of the document in your agenda packet. No major changes
have been made. The church asked to add a few other items to the goods they are permitted to
sell and also for the contract to reflect that they will be using Propane to heat water to make
coffee and tea. Staff supports their requests.
Thank you.
O:\MANAGER\SlAUGHTER\WORO\LSFMarketFriendsOfMarketAgreeWithUniversaiChurch5306.doc
CITY OF MUSKEGON
BUSINESS REGISTRATION APPLICATION
$30.00 REGISTRATION FEE
Enclose the Fire Safety Audit Worksheet with the application. If you are non-profit, please enclose a copy of your Non-Profit
Status.
PLEASE TYPE OR PRINT (FOR QUESTIONS CALL; (231) 724-6705)
BUSINESS NAME (or DBA if used): Check one box only:
NA~ho~L ~n1WM~ ~iJIVp~,A/J;I Cmdrrl
FEIN# or SSN# *(both if Single HOURS OF OPERATION: NUMBER OF EMPLOYEES:
Member LLC):
or oo'if!..~o fltU{~ l(lrvt 1/2e;1 Thuf'j, S'11 r. ,f)- 11/l uo!wt furc. frofn I!rpp~oK 30)
BUSINESS PHONE: START -UP-DATE:
?55' J.o/'JJ-.
MAILING ADDRESS (for renewal and correspondence):
Number and Street: /21;'L /1ofl{fDI!ifRJ.{
City, State, Zip: /1111/<.fc;on f-i,
if.ql/1/1
PHYSICAL ADDRESS OF BUSINESS IN MUSKEGON:
Number and Street:
City, State, Zip: -~
O%NER/MANr,~ER:
1Jil~1V F. !ii/.. Til~~:'V""'"·J, Aewffltf-
RESIDENCE ADDRESS: HOME TELEPHONE:
n:~:J?t1
Number and Street: 110 !J,v!slo!J Sf-. BUSINESS TELEPHONE: C. ,
City, State, Zip: 1tehll/A}h II /11 L/q 4-(11 775'2132
DRIVER LICENSE NUMBER:
EMERGENCY CONTACT: (j) AIJM\EI\) FIN~, (Ai'>Go/li IVrO)
tDName: /JANA KiWTIWVIl, RC!.I910q9 l£A/)ER
Address: 1{,'/l ln1w6roN AV~ ~q~41 Phone: 15q 'V5!J,J.
I certify that the above information is correct to the best of my lmowledge,
Signature of Applicant Date
Commission Meeting Date: May 9, 2006
Date: May 9, 2006
To: Honorable Mayor & City Commission
From: Affirmative Action/ Community and Economic
Development
RE: Changes to Industrial Facility Tax Abatement
Contract
SUMMARY OF REQUEST: To approve changes to the attached
Industrial Facility Tax abatement contract. The only change is in
Section 1.3 with the addition of the number of 14% for minority
employment.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the changes to the
contract.
COMMITTEE RECOMMENDATION: The Equal Opportunity
Committee has recommended the changes.
CITY OF MUSKEGON
CONTRACT FOR TAX ABATEMENT
Act 198 Public Acts of 1974
AGREEMENT between CITY OF MUSKEGON, a municipal corporation of933
Terrace Street, Muskegon, Michigan 49441, ("City") and ("Company").
Recitals:
A. The Company has applied to City for the establishment of an industrial
development district or industrial rehabilitation district pursuant to the provisions of Act
198 of the Public Acts of 1974, as amended, which act requires a contract between the
City and the Company to be agreed and submitted with the Company's subsequent
anticipated application for an industrial facilities exemption certificate.
B. That in addition to the statutory requirement, the City has determined that it is in
the best interests of the taxpayers, property owners and residents of the City that this
Agreement be approved and executed prior to the establishment of the requested district,
and the City deems this Contract, together with the conditions set forth in the said Act to
constitute a necessary element in the City's determination whether or not to create the
district.
C. The Company intends to install the project set forth in its application ("project")
which it believes qualifies for the process of establishing the district and the application
for industrial facilities exemption certificate.
D. The City, provided this Agreement is executed, will determine whether to create
the district based upon the potential for the production of permanent jobs, the
continuation, stabilization or increase of economic activity, planning and zoning
considerations and the City's general plan and intentions regarding economic
development. In addition to the City policy considerations and predictions that the
Company's proposed district and certificate benefit the community in those ways, the
City has further determined that the contractual commitments made by the Company to
thereby assist, the community shall be binding on the Company and necessary to continue
the tax exemption made possible by the certificate.
E. This contmct shall become effective upon the issuance of an Industrial
Facilities Tax Exemption Certificate.
NOW THEREFORE THE PARTIES AGREE:
1. COMPANY AGREEMENT. The Company irrevocably commits to the
investment, job retention and job creation promises made in its application, a copy of
which is attached hereto and incorporated herein. In particular the Company agrees:
Page I
1.1 That percent of the promised new jobs shall be in place with
full-time employees on or before 20 and
_ _ _ _ _ percent ofthe said jobs shall be in place with full time
employees on or before , 20_ _ Finally, 100% of the jobs shall be
filled and in existence with full-time employees by a date no later than two
(2) years from the date of the granting of the certificate by the State Tax
Commission, subject to the provisions of section 3.4 of this aga·eement.
1.2 That the amount of jobs listed on the application, whether new or retained,
will be maintained through the life of the abatement, subject to the
pi'Ovisions of section 3.4 of this agreement.
1.3 The Company shall meet the affirmative action goal included in the
application or in any documents supplied by the City and utilized by the
Company, including any additional representations made to the City
Commission on or before the date two (2) years after the granting of the
certificate by the State Tax Commission. It shall maintain the said levels of
14% employment diversity during the period of the certificate, subject to the
provisions of section 3.4 of this agreement.
1. 4 The Company, by the end of two (2) years from the date of the grant of the
certificate by the State Tax Commission shall have completed the investment
of$ in the equipment and improvements as shown in the
application, subject to the provisions of section 3.4 of this agreement.
1. 5 That the improvements and equipment to receive the tax abatement treatment
shall be completed on or before the date two (2) years from the date of
granting of the certificate by the State Tax Commission.
1.6 The Company shall pay its specific taxes required by the act in a timely
manner, and shall not delay payments so as to incur any penalties or interest.
1.7 The Company shall fully cooperate with the City representatives in
supplying all requested and required documentation regarding jobs,
investment, the meeting of all goals and the timely installation and utilization
of equipment and improvements. The City shall be entitled to inspect at
reasonable hours the Company's premises where the said improvements and
equipment have been installed and where the said jobs are performed.
1. 8 The Company shall maintain, during the entire period for which the tax
abatement is granted, the level of jobs, affirmative action goals, production
and utilization of the improvements and equipment at the site where the
district has been created and for which the tax exemption has been granted.
Page2
1. 9 The Company shall not cause or fail to cure the release of any hazardous
substance, or the violation of any environmental law on its premises in the
City. It shall report any releases to the appropriate governmental authority in
a timely and complete manner, and provide copies of said report
documentation to the City. It shall comply with all orders and actions of any
governmental agency having authority.
1.10 The Company shall maintain the equipment and improvements so as to
minimize physical or functional obsolescence.
1.11 The Company shall continue to operate its business location in the City,
containing the same number of and type of jobs, for the term of the
certificate.
2. AGREEMENT BY THE CITY. Provided this contract has been executed and
further provided all applications to create the district and achieve the industrial facility
exemption certificate have been properly filed, the City shall, in a timely manner,
determine in a public meeting to whether to create the district and whether to receive,
process, and approve thereafter the Company's application for an industrial facilities
exemption certificate. The City may consider this contract in a meeting separate from
and prior to the meeting in which the City considers the creation of the district and/or
approval of the application for certificate. Further, the City shall require the submission
of this contract signed by the Company together with its applications, before creating the
district.
3. EVENTS OF DEFAULT. The following actions or failures to comply shall be
considered events of default by the Company:
3.1 Failure to meet any of the commitments set forth above.
3.2 The closing of the Company's facilities in the City. Closing shall mean for
purpose of this Agreement, the removal, without transfer to another site within the
City of substantially all of the production facilities, and the elimination of
substantially all the jobs created or retained thereby, which are set forth in the
Company's application.
3.3 Failure to afford to the City the documentation and reporting required.
3.4 The failure to create or retain jobs, meet affirmative action goals or expend
the funds on equipment and improvements as represented in the application
within the times required hereby, unless the company can show that there bas
been a loss of revenue and employment due to circumstances beyond the
control of the company. In order to make that showing the company shall
have the burden of supplying, to the City's satisfaction, complete and
Page 3
convincing documentation supporting and justizying reductions in
investment, failures to attain affirmative action goals or job losses, such as,
without limitation, written evidence of lost contracts, accounting information
showing reduced revenues due to the loss of business, (not dne to diversion of
production to affiliate companies or divisions of the company), production
records showing reduced quantities over significant periods of time, and such
other information required by the City to support the Company's claim that
the failure to invest, failure to achieve affirmative action goals, or loss of jobs
should not form the basis for a finding of default.
3.5 The bankruptcy or insolvency of the Company.
3.6 The fuilure to pay any and all taxes and assessments levied on the
Company's property or any other taxes, local, state or federal, including but not
limited to City income taxes and the withholding of said City income taxes from
employees as required by the City Income Tax Ordinance.
3. 7 The performance or omission of any act which would lead to revocation
under MCLA 207.565, being §15 of the Act.
3.8 The violation of any provisions, promises, commitments, considerations or
covenants of this Agreement.
4. REMEDIES ON DEFAULT. In the event of any of the above defaults the City
shall have the following remedies which it may invoke without notice, except as may be
reasonably required by the Company's rights to due process:
4.1 In the event of closing as determined after investigation of the facts and a
public hearing, the Company shall be inunediately liable for penalties to be paid
f01thwith to the city as determined as follows:
4.1.1 The Company shall pay to the City for prorata distribution to the
taxing units experiencing the abatement, an amount equal to the difference
between the industrial facilities tax which it has paid, and the total
property taxes to the relevant taxing units which it would have paid, given
its installations of improvements and equipment, during the years for
which the certificate was in effect.
4.1.2 Immediate Revocation. The Company hereby consents to
revocation to the IFT certificate before the State Tax Commission, without
hearing, and the City shall submit a copy of this Agreement to the State
Tax Commission in counection with its revocation procedure, giving
notice that the default has occurred and inunediate revocation should
occur.
Page4
4.2 In the event the improvements and equipment have not been installed before
the two (2) year period, in addition to the revocation procedures before the State
Tax Commission, the abatement should immediately be reduced by the City
proportionately, and any installations which have not been fmished at the end of
said two (2) year period shall not be eligible for the abatement thereafter and shall
be placed on the regular tax roll.
4.3 Failure to Expend the Funds Represented. In the event, (whether or not the
installations have been completed), the Company has not expended the funds it
has represented on its application that it would invest for the installation of
equipment, the abatement shall be reduced prorata, and any remaining value of
equipment shall be placed on the regular tax roll, unless the company can show,
through receipts, etc. that the cost of the eqnipment was actually less than the
amount estimated by the company (i.e., the same equipment was purchased
as listed in the IFT application, but the bids came in less then expected).
4.4 Job Creation and Retention. In the event the promised number of jobs have
not been created or retained at the end of the two (2) years after the grant of the
certificate by the State Tax Commission, the abatement shall be proportionately
reduced, unless the company can show that the loss of jobs, or inability to hire
as many people as expected, is due to circumstances beyond the control of the
company (such as an economic downturn).
4.5 Affirmative Action Goals. In the event, after one (1) year from the grant of
the certificate by the State Tax Commission, the affrrmative action goals of the
City for additional jobs have not been met on a prorata basis, the abatement shall
be revoked.
4.6 For other violations of this Agreement or for actions or omissions by the
Company amounting to grounds for revocation by statue, the City shall
recommend to the State Tax Commission immediate revocation of the certificate.
4. 7 Special Assessment. For any amount due to be paid to the City, under this
Section 4, the Company consents that the City shall have a personal action against
the Company for the said amount, and in addition, cumulatively, and not by
election, the City shall have a special assessment lien on all the property of the
Company personal and real, located in the City, for the collection of the amounts
due as and in the marmer of property taxes and in such case the collection of the
said special assessment shall be accomplished by addition by the City to the
Company's property tax statement regularly rendered.
5. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Michigan applicable to contracts made and to be
performed within the State of Michigan.
Page 5
6. Countet:parts. This Agreement may be executed in one or more counterparts.
Notwithstanding such execution all such counterparts shall constitute one and the same
Agreement.
7. Benefit. This Agreement shall be binding upon and inure to the benefit of the
respective parties, their successors and personal representatives.
8. Effective Date. This Agreement shall be effective on the date the State of
Michigan Tax Commission grants the company at Industrial Facilities Exemption
Certificate.
CITY OF MUSKEGON
By~~~~--~--~~-
Stephen J. Warmington, Mayor
and.__~~--~~----~~---
Gail A. Kundinger, Clerk
By____________________
Its________________
and._____________________
Its______________
Page6
Date: May9, 2006
To: Honorable Mayor and City Commissioners
From: Engineering
RE: City- Michigan Department of Transportation
Agreement for:
Western Ave., Third St. to Terrace St. Streetscape
SUMMARY OF REQUEST:
To approve the attached contract With Michigan Department of Transportation for
streetscape (decorative concrete & street lights) work along Western Avenue from
Third Street to Terrace Street (including all necessary related work) and to approve
the attached resolution authorizing the Mayor and City Clerk to sign the contract.
FINANCIAL IMPACT:
Michigan Department of Transportation's participation of federal money is capped at
$960,000 but not to exceed 80% of eligible cost. The estimated total construction
cost (with engineering) of the project, is $1,195,000.
BUDGET ACTION REQUIRED:
None at this time.
STAFF RECOMMENDATION:
That the attached agreement and resolution be approved.
COMMITTEE RECOMMENDATION:
RESOLUTION #2006-41 (j)
RESOLUTION FOR APPROVAL OF A CONTRACT AGREEMENT BElWEEN THE
MICHIGAN DEPARTMENT OF TRANSPORTATION AND THE CITY OF
MUSKEGON FOR THE STREETSCAPING (decorative concrete & street lights)
WORK ALONG WESTERN AVENUE FROM THIRD STREET TO TERRACE
STREET (INCLUDING ALL NECESSARY RELATED WORK) AND
AUTHORIZATION FOR MAYOR STEPHEN J. WARMINGTON AND CITY CLERK
GAIL A KUNDINGER TO EXECUTE SAID CONTRACT
Moved by Commissioner Spataro and supported by Commissioner Carter that the
following Resolution be adopted:
WHEREAS, entry by the City of Muskegon into Contract no. 06-5195 between the
Michigan Department of Transportation and the City of Muskegon for the
streetscaping work along Western Ave. from Third Street to Terrace Street
within the City is in the best interests of the City of Muskegon.
RESOLVED, that entry by the City into Contract Agreement Number 06-5195 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 gth day of May, 2006.
ATTEST ~Gd Q.sL~
Gail A. Kundinger, City Cl
CERTIFICATION
This resolution was adopted at a meeting of the City Commission, held on May 9, 2006.
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.
STATE OF MICHIGAN
JENNIFER M. GRANHOLM DEPARTMENT OF TRANSPORTATION KIRK T. STEUDLE
GOVERNOR DIRECTOR
LANSING
June 7, 2006
Ms. Gail Kundinger
Clerk
City of Muskegon
933 Terrace Street
P.O. Box 536
Muskegon,MI 49443-0536
Dear Ms. Kundinger:
RE: MDOT Contract Number: 06-5195
Control Section: HPSL61407
Job Number: 87289
Enclosed is a fully executed copy of the above noted agreement.
Sincerely,
~ ~----
Jackie Burch
Contract Processing Specialist
Design Support Area
Enclosure
Cc: C. Youngs, Design Support Area
Project Accounting, Financial Operations Division
Grand Region Engineer
MURRAY D. VAN WAGONER BUILDING • P.O. BOX 30050 • LANSING, MICHIGAN 48909
www.michigan.gov • (517) 373-2090
LH-LAN-0 (01/03)
(ADVANCE CONSTRUCTION CONTRACT) CAB
HPSL Control Section HPSL61407
CONSTRUCTION BY Job Number 87289
LOCAL AGENCY Project HPSL 0661(016)
Federal Item No. RR 5086
CFDANo. 20.205 (Highway
Research Planning &
Construction)
Contract No. 06-5195
PART I
THIS CONTRACT, consisting of PART I and PARS II (Standard Agreement
Provisions), is made and entered into this date of JUN 0 G 200 , 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 the City of Muskegon,
Michigan, hereinafter referred to as the "PROJECT":
Streetscaping work along Western Avenue from Third Street to Terrace Street; and all
together with necessary related work.
WITNESSETH:
WHEREAS, pursuant to Federal law, monies have been provided for the performance of
certain improvements on public roads; and
WHEREAS, the PROJECT will be performed partially as an advance construction
project; 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:
HIGH PRIORITY PROJECTS PROGRAM- SAFETEA LU
12/01/05 HPSL.FOR 4/28/06 1
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 ofthe premises and of the mutual undertakings of
the parties 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.
The part of the PROJECT work that shall be performed as an advance construction
PROJECT shall meet applicable Federal requirements set forth on 23 CFR Section 630.701
through 630.711; 23 U.S.C. 115.
It is understood that authorization to undertake the performance of the work under this
contract as an advance construction PROJECT does not constitute any commitment of
DEPARTMENT or Federal Funds on this PROJECT.
Expenditures incurred on the portions of the PROJECT as advance construction will not
be subject to reimbursement with Federal Funds until the PROJECT is converted to a regular
Federal-aid project as provided under 23 CFR 630.705(2); CFR 630.709.
Request for PROJECT conversion to a regular Federal-Aid project shall be submitted to
the DEPARTMENT by the REQUESTING PARTY as early as possible in the fiscal year that
the advance construction PROJECT is anticipated to be reimbursed.
2. The term "PROJECT COST", as herein used, is hereby defined as the cost of the
physical construction necessary for the completion ofthe PROJECT.
Costs for construction engineering, construction materials testing, and inspection as may
be incurred by the DEPARTMENT and the REQUESTING PARTY, including any other costs
incurred by the DEPARTMENT as a result of this contract, will be at PROJECT COST. Costs
for construction engineering, construction materials testing, and inspection incurred by the
REQUESTING PARTY for the PROJECT shall be limited to the lesser of:(!) 100 percent of the
aetna! costs for construction engineering, construction materials testing, and inspection, or (2) 15
percent of the actual contracted physical construction costs.
The costs incun·ed by the REQUESTING PARTY for preliminary engineering and
right-of-way are excluded from the PROJECT COST as defined by this contract.
3. The DEPARTMENT is authorized by the REQUESTING PARTY to perform
such administration of the PROJECT as is necessary to assist the REQUESTING PARTY to
qualify the PROJECT for Federal Aid. Such administration shall include programming the
12/01/05 HPSL.FOR 4/19/06 2
available Federal funds for the PROJECT with the FHWA and performing such review and
oversight activities as are necessary to assist the REQUESTING PARTY in meeting applicable
Federal and State requirements.
The DEPARTMENT shall authorize the REQUESTING PARTY to proceed with the
PROJECT work being placed under contract in the following phases:
PHASE!: ADVERTISING OF CONSTRUCTION CONTRACT
PHASE II: AWARD OF CONSTRUCTION CONTRACT
The DEPARTMENT shall authorize the REQUESTING PARTY to proceed with the
PROJECT work being done on a force account basis.
The REQUESTING PARTY shall not advertise the construction contract, award the
construction contract, or perform the force account work for the PROJECT prior to receipt of
written authorization from the DEPARTMENT to proceed.
The DEPARTMENT shall make a final acceptance inspection of the PROJECT as
necessary to meet Federal Aid requirements.
4. The REQUESTING PARTY shall perform or cause to be performed all the
PROJECT work. It is understood that portions or all of the PROJECT work will be placed under
contract by the REQUESTING PARTY. The performance of the PROJECT work will be
subject to the "General Agreement Provisions for Federal Aid Projects", attached hereto as
"EXHIBIT I", pages 1 through 5, and made a part hereof, and the following conditions:
A. The REQUESTING PARTY, at PROJECT COST and on a force account
basis, shall purchase the decorative street lighting necessary for the
completion of the PROJECT.
B. The REQUESTING PARTY will, at no cost to the DEPARTMENT or the
PROJECT, design or cause to be designed the PROJECT and shall accept
full responsibility for that design. Any review undertaken by the
DEPARTMENT are for its own purposes and are not to nor do they
relieve the REQUESTING PARTY of liability for any claims, causes of
action, or judgments arising out of the design of the PROJECT.
C. The REQUESTING PARTY, prior to receiving authorization from the
DEPARTMENT to advertise the construction contract, shall certify to the
DEPARTMENT that the plans, specifications, and estimates for the
PROJECT have been prepared in compliance with applicable State and
Federal standards and regulations.
12/01/05 HPSL.FOR 4/19/06 3
D. The REQUESTING PARTY shall secure the DEPARTMENT'S approval
of the contracting procedures to be followed by the REQUESTING
PARTY in connection with the administration of the construction contract
for the PROJECT. It is understood that the construction contract(s) for the
PROJECT shall be publicly advertised and awarded on the basis of the
lowest responsive bid in accordance with current FHWA and
DEPARTMENT procedures.
E. The REQUESTING PARTY, prior to receipt of authorization from the
DEPARTMENT to award the construction contract, shall certify to the
DEPARTMENT that the selection of the contractor was made in
accordance with the terms of this contract and applicable Federal, State
and local statutes, regulations, and ordinances.
F. The REQUESTING PARTY will comply with all applicable State,
Federal and local statutes, ordinances and regulations, including, but not
limited to those specifically relating to construction contract
administration, and obtain all permits, approvals, and give appropriate
notifications that are required for the performance of the PROJECT work.
The REQUESTING PARTY agrees to comply with all applicable
requirements of Part 91, Soil Erosion and Sedimentation Control of the
Natural Resources and Environmental Protection Act, 1994 PA 451 as
amended by 1995 PA 60, MCL 324.9101 et. seq., for all PROJECT work
performed under this contract, and the REQUESTING PARTY shall
require its contractors and subcontractors to comply with the same.
G. All work in connection with the PROJECT shall be performed in
conformance with the Michigan Department of Transportation Standard
Specifications for Construction, special provisions, and the supplemental
specifications and plans pertaining ·to the PROJECT and all materials
furnished and used in the construction of the PROJECT shall conform to
the aforesaid specifications. The REQUESTING PARTY shall neither
seek nor receive reimbursement for any extra work.
H. The REQUESTING PARTY, at PROJECT COST, shall appoint a project
engineer who shall be in responsible charge of the PROJECT and ensure
that the plans and specifications are followed, and shall perform or cause
to be performed the construction engineering and inspection services
necessary for the completion of the PROJECT.
12/01105 HPSL.FOR 4/19/06 4
Should the REQUESTING PARTY elect to use consultants for
construction engineering and inspection, the REQUESTING PARTY shall
provide a full-time project manager employed by the REQUESTING
PARTY who shall ensure that the plans and specifications are followed.
I. The REQUESTING PARTY, at no cost to the PROJECT or the
DEPARTMENT, shall make such arrangements or secure any and all
necessary permits with railway companies, utilities, concerned state,
federal, and local agencies etc., as may be necessary for the performance
of work required for the PROJECT, and will forward same to the
DEPARTMENT for such reviews and approvals as may be required.
J. The REQUESTING PARTY shall require the contractor who is awarded
the contract for the construction of the PROJECT to provide, as a
minimum, insurance in the amounts specified in and in accordance with
the DEPARTMENT'S current Standard Specifications for Construction,
and to:
(1) Maintain bodily injury and property damage insurance for the
duration ofthe PROJECT.
(2) 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 party with
jurisdiction for the roadway being constructed as the PROJECT,
and their employees, for the duration of the PROJECT and to
provide copies of certificates of insurance to the insureds. It is
understood that the DEPARTMENT does not assume either
ownership of any portion of the PROJECT or jurisdiction of any
REQUESTING PARTY highway as a result of being named as an
insured on the owner's protective liability insurance policy.
(3) Comply with the requirements of notice of cancellation and
reduction of insurance set forth in the current Standard
Specifications for Construction and to provide copies of notices
and reports prepared to those insured.
K. Upon completion of all PROJECT work, the REQUESTING PARTY shall
so notify the DEPARTMENT and shall request a final acceptance
inspection thereof. In the event that there is disagreement between the
parties with respect to final acceptance, the DEPARTMENT'S decision
shall be final and binding .
. 12/01/05 HPSL.FOR 4/19/06 5
5. The PROJECT COST shall be met in part by contributions from the Federal High
Priority Project Program- SAFETEA LU.
The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users (SAFETEA-LU), Subtitle G - High Priority Projects, authorizes High Priority Project
funding and establishes the maximum amount of funding for the PROJECT and associated
phases under SAFETEA-LU Number 320 to be $2,320,000. It is understood that this amount
may be subject to obligational authority limitation and after applying that limitation only an
estimated $1,983,600 may be available for the PROJECT and associated phases. It is further
understood that according to SAFETEA-LU, funds for the PROJECT and associated phases are
to be allocated over a period of 5 years.
In the course of the first four years of this program, the DEPARTMENT may make 100
percent of the annual allocation available to the PROJECT with the understanding that in the
final year adjustments will have to be made for obligational authority limitations which may
reduce the amount of funding available for the PROJECT and associated phases.
Federal High Priority Project- SAFETEA LU Funds shall be applied to the eligible items
of the PROJECT COST at the established Federal participation ratio equal to 80 percent up to an
amount not to exceed $960,000. In accordance with the above, the current available Federal
High Priority Project- SAFETEA LU Funds for this PROJECT are established to be $796,803,
consisting of allocations for fiscal years 2005 and 2006. The balance 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. The PROJECT COST and the cost
participation are estimated to be as follows:
Federal High Priority Project REQUESTING
Federal High Priority Project -SAFETEALUFunds PARTY'S
ESTIMATED - SAFETEA LU Funds (Advance Construction) SHARE
COST (Current Fiscal Year) Future Fiscal Year (Future Fiscal Year)
Contracted Work $ 930,000 $744,000 $ -0- $186,000
Force Account Work $ 170,000 $ 52,803 $ 83,197 $ 34,000
Construction Eng &
Inspection $ 95,000 $ -0- $ 76,000 $ 19,000
Total $1,195,000 $796,803 $159,197 $239,000
Contingent upon availability of Federal Funds and Federal approval, Federal High
Priority Project - SAFETEA LU Funds, for future fiscal years, may be applied to the cost
incurred as advance construction, in an amount such that the Federal Funds equal a participation
ratio of 80 percent, subject to the obligational authority limit for the Federal High Priority Project
- SAFETEA LU Funds for this PROJECT.
Upon completion and final accounting of this PROJECT and associated phases under
SAFETEA - LU Number 320, Federal High Priority Project - SAFETEA LU Funds may be
12/01105 HPSL.FOR 4/19/06 6
adjusted among all phases such that the total Federal High Priority- SAFETEA LU Funds does
not exceed $2,230,000 subject to the obligational authority limit.
Any items of PROJECT COST not reimbursed by Federal Funds shall be the sole
responsibility of the REQUESTING PARTY.
6. A working capital deposit by the REQUESTING PARTY will not be required for
this project.
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 REQUESTING PARTY shall be responsible for the payment of all costs and
expenses incurred in the performance of PROJECT work. Billings for costs incurred by the
REQUESTING PARTY under the terms of this contract shall be prepared and submitted to the
DEPARTMENT by the REQUESTING PARTY for reimbursement with Federal Funds in
accordance with the procedures of the DEPARTMENT. Progress billings may be submitted bi-
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 or end of fiscal year billing. All
billings shall be labeled either "Progress Bill Number " or "Final Billing". 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. The REQUESTING PARTY shall make prompt payments for
construction engineering and inspection costs, if any, incurred by the DEPARTMENT for the
PROJECT upon receipt of progress billings from the DEPARTMENT.
The REQUESTING PARTY shall not request final reimbursement for eligible costs until
final acceptance of the PROJECT. The REQUESTING PARTY shall request a final acceptance
inspection of the PROJECT in accordance with the provisions of Section 4 of this contract.
Should the REQUESTING PARTY fail to secure final acceptance of the PROJECT within six
(6) months after completion of the work, the REQUESTING PARTY shall repay all Federal
funds reimbursed for the PROJECT. Upon final acceptance of the PROJECT by the
DEPARTMENT in accordance with the provisions of Section 4 of this contract and
DEPARTMENT procedures, the REQUESTING PARTY may request final reimbursement.
9. The REQUESTING PARTY shall maintain accurate records and accounts relative
to the cost of the PROJECT. Said accounts shall be retained for a period of three (3) years after
final payment by the DEPARTMENT and shall be available for audit by the DEPARTMENT
and the FHWA.
The REQUESTING PARTY, upon completion of the PROJECT and payment of all
items of PROJECT COST related thereto, shall make a final accounting to the DEPARTMENT.
12/01105 HPSL.FOR 4/19/06 7
Reimbursement of any cost pursuant to this contract shall not constitute a final
determination by the DEPARTMENT of the allowability of such cost and shall not constitute a
waiver by DEPARTMENT of any violation of the terms of this contract committed by the
REQUESTING PARTY. Final settlement of costs shall be made upon completion of all
PROJECT work and the DEPARTMENT'S acceptance of an audit performed by a certified
public accountant in accordance with 49 CFR Part 18.26, and OMB Circular A-128, and/or final
audit by the DEPARTMENT. The REQUESTING PARTY promises to promptly repay the
DEPARTMENT for any disallowed items of cost 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 by the DEPARTMENT, the DEPARTMENT is hereby
authorized to withhold an equal amount from the REQUESTING PARTY'S share of any future
distribution of Michigan Transportation Fund in settlement of said claim.
10. 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 ofP ART I shall prevail.
11. In addition to any protection afforded by a policy of insurance, the
REQUESTING PARTY agrees to indemnify and save harmless the State of Michigan, the
Michigan State Transportation Commission, the DEPARTMENT and all officers, agents, and
employees thereof:
A. From any and all claims by persons, firms, or corporations for labor,
materials, supplies or services provided to the REQUESTING PARTY in
connection with the contract which the REQUESTING PARTY shall
perfonn under the terms ofthis contract; and
B. From any and all claims for injuries to, or death of, any and all persons,
for loss of or damage to property, environmental damage, degradation,
response and cleanup costs, and attorney fees or other related costs, arising
out of, under, or by reason of this Agreement, including the design of the
PROJECT, except claims resulting from the sole negligence or willful acts
or omissions of said indemnitee, its agents or employees.
The DEPARTMENT shall not be subject to any obligations or liabilities by contractors of
the REQUESTING PARTY or their subcontractors or any other person not a party to this
contract without its specific consent and notwithstanding its concurrence in or approval of the
award of any contract or subcontract or the solicitation thereof.
12/01/05 HPSL.FOR 4/19/06 8
It is expressly understood and agreed that the REQUESTING PARTY shall take no
action or conduct which arises either directly or indirectly out of its obligations, responsibilities,
and duties under this contract, which results in claims being asserted against or judgments being
imposed against the State of Michigan, the DEPARTMENT, and/or the Michigan State
Transportation Commission.
In the event that the same occurs, for the purpose of this contract it will be considered as
a breach of this contract thereby giving the State of Michigan, the DEPARTMENT, and/or the
Michigan State Transportation Commission a right to seek and obtain any necessary relief or
remedy, including but not by way oflimitation, a judgment for money damages.
12. The REQUESTING PARTY certifies that a) it is a person under 1995 PA 71 and
is not aware of and has no reason to believe that the property is a facility as defined in MSA
13A.20101(1)(1); b) the REQUESTING PARTY further certifies that it has completed the tasks
required by MCL 324.20126 (3)(h); MSA 13A.20126(3)(h); c) it conducted a visual inspection
of property within the existing right of way on which construction is to be performed to
determine if any hazardous substances were present; and at sites on which historically were
located businesses that involved hazardous substances, it performed a reasonable investigation to
determine whether hazardous substances exist. This reasonable investigation should include, at a
minimum, contact with local, state and federal environmental agencies to determine if the site
has been identified as, or potentially as, a site containing hazardous substances; d) it did not
cause or contribute to the release or threat of release of any hazardous substance found within the
PROJECT limits.
The REQUESTING PARTY also certifies that, in addition to reporting the presence of
any hazardous substances to the Department of Enviromnental Quality, it has advised the
DEPARTMENT of the presence of any and all hazardous substances which the REQUESTING
PARTY found within the PROJECT limits, as a result of performing the investigation and visual
inspection required herein. The REQUESTING PARTY also certifies that it has been unable to
identify any entity who may be liable for the cost of remediation. As a result, the
REQUESTING PARTY has included all estimated costs of remediation of such hazardous
substances in its estimated cost of construction of the PROJECT.
13. 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 Department of Environmental Quality, 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
12/01105 HPSL.FOR 4/19/06 9
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.
14. 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
and if there is a reasonable likelihood of recovery, the REQUESTING PARTY, in cooperation
with the Department of Environmental Quality 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.
15. 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 and 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 and
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 and its agents is assuming any liability, control or jurisdiction.
The providing of recommendations or advice by the DEPARTMENT and 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, MSA 3.996(102).
When providing approvals, reviews and recommendations under this contract, the
DEPARTMENT and its agents is performing a goverrunental function, as that term is defined in
MCL 691.1401; MSA 3.996(101), which is incidental to the completion ofthe PROJECT.
16. The DEPARTMENT, by executing this contract, and rendering services pursuant
to tllis contract, has not and does not assume jurisdiction of the highway, described as the
PROJECT for purposes of MCL 691.1402; MSA 3.996(102). Exclusive jurisdiction of such
highway for the purposes of MCL 691.1402; MSA 3.996(102) rests with the REQUESTING
PARTY and other local agencies having respective jurisdiction.
17. 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.
12/01/05 HPSL.FOR 4/19/06 10
18. 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 resolution 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 the
day and year first above written.
CITY OF MUSKEGON MICHIGAN DEPARTMENT
::J:lZVftJ
Department Director MDOT
12/01/05 HPSL.FOR 4/19/06 11
EXIDBITI
GENERAL AGREEMENT PROVISIONS FOR FEDERAL AID PROJECTS
1. General Provisions:
A. The REQUESTING PARTY will comply with all FHWA requirements concerning
special requirements of law, program requirements and other administrative
requirements.
B. To qualify for eligible cost, all work shall be documented in accordance with the
requirements ll!ld procedures of the DEPARTMENT.
C. Those projects funded with Federal monies will be subject to inspection: at all times
by the DEPARTMENT and the FHWA.
2. Federal Clean Air Act of 1970: The political subdivisions which are a 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:
A. That any facility to be utilized in performance 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.
B. 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.
C. 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 contract is under considef~tion to be
listed on the EPA List of Violating Facilities.
3, Other Regulatory Requirements:
A. The REQUESTING PARTY hereby assures and certifies that it will comply with the
_regulations, policies, guidelines and requirements of 49 CFR Part 18 (U.S. DOT
Implementation of the Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments or "Common Rule") as
they relate to the application, acceptance and use ofFederal Funds for this federally-
. assisted project.
TE.EXH 07/14/0 1
B. The REQUESTING PARTY shall be responsible for the accurate and detailed
accounting of the costs and expenses incurred in the performance of any part of the
PROJECT work it agrees to undertake as provided within this contract. Said
accounts shall be maintained in accordance with generally accepted government
accounting principles and 49 CFR Part 18. Said accounts shall be made available for
review and audit by the DEPARTMENT and, as required, by the FHWA and
appropriate U.S. governmental agencies and shall be retained on file for a period of
not less than three years from the date of the fmal payment for work conducted under
this contract.
C. The REQUESTING PARTY shall comply with the Single Audit Act of 1984, P.L.
98-502, and OMB Circular A-133. All such audits are subject to the review and
approval ofthe DEPARTMENT, the FHWA, and the Office ofthe Inspector General.
(1) Agencies expending a total of $300,000 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 (OMB) Circular A-133, as revised or
amended.
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 OMB 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.
(2) Agencies expending less than $300,000 in federal funds must submit a letter to
the Department 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 numbers(s). This information
must also be submitted to the address below.
(3) Address: Michigan Department of Transportation
Bureau of Highways Technical Services
425 W. Ottawa, P.O. Box 30050
Lansing, MI 48909
(4) Agencies must also comply with applicable State laws and regulations relative
to audit requirements.
TE.EXH 07/14/0 2
(5) Agencies shall not charge audit costs to Department's federal programs which
are not in accordance with the OMB Circular A-133 reqirements.
(6) All agencies are subject to the federally required monitoring activities, which
may include limited scope reviews and other on-site monitoring.
4. Retention and Custodial Requirements for Records:
A Financial records, supporting documents, statistical records and all other records
pertinent to this instrument shall be retained for a period of 3 years, with the
following exception:
(1) If any litigation, claim or audit is started before the expiration of the 3-year
period, the records shall be retained until all litigation claims, or audit
findings involving the records have been resolved.
(2) Records for nonexpendable property, if any, required with Federal Funds
shall be retained for 3 years after its final disposition.
(3) When records are transferred to or maintained by FHWA, the 3-yearretention
requirement is not applicable to the recipient.
B. The retention period starts from the date of the submission of the final expenditure
report.
C. The Secretary pfTransportation and the Comptroller General of the United States,
or any of their duly authorized representatives, shall have access to any pertinent
books, documents, papers and records of the recipient, and its contractors and
subcontractors, to make audits, examinations, excerpts and transcripts.
5. Equal Employment Opportunity:
A The REQUESTING PARTY agrees to incorporate in all contracts having'il value of
over $10,000, the provisions requiring compliance with Executive Order 11246, as
amended, and implementing regulations of the United States Department of Labor
at 41 CFR 60, the provisions of which, other than the standard EEO clause and
applicable goals for employment of minorities and women, may be incorporated by
reference.
B. The REQUESTING PARTY agrees to ensure that its contractors and subcontractors,
regardless of tier, awarding contractors and/or issuing purchase orders for material,
supplies, or equipment over $10,000 in value will incorporate the required EEO
. provisions in such contracts and purchase orders.
TE.EXH 07/14/0 3
C. The REQUESTING PARTY further agrees that its own employment policies and
practices will be without discrimination based on race, color, religion, sex, national
origin, handicap, or age; and that it has an affirmative action plan consistent with the
Uniform Guidelines on Employee Selection Procedures, 29 CFR 1607, and the
Affirmative Action Guidelines, 29 CFR 1608,
6. Copeland Act: All contracts in excess of $2,000 for construction or repair awarded by the
REQUESTING PARTY and its contractors or subcontractors shall include a provision for
compliance with the Copeland "Anti-Kick Back" Act (18 U.S. C. 874) as supplemented in
Department of Labor regulations (29 CFR, Part 3). This Act provides that each contractor
or subcontractor shall be prohibited from inducing, by any means, any person employed in
the construction, completion, or repair of public work, or give up any part of the
compensation to which he is otherwise entitled. The REQUESTING PARTY shall report
all suspected or reported violations to the DEPARTMENT.
7. Davis-Bacon Act: When required by the Federal program legislation, all construction
contracts awarded by the REQUESTING PARTY and its contractors or subcontractors of
more than $2,000 shall include a provision for compliance with the Davis-Bacon Act (40
U.S.C. 276a to a-7) and as supplemented by Department ofLaborregulations (29 CFR, Part
5). Under this Act, contractors shall be required to pay wages to laborers and mechanics at
a rate -not less than the minimum wages specified in a wage determination made by the
Secretary ofLabor. In addition, contractors shall be required to pay wages not less than once
a week. The REQUESTING PARTY shall place a copy of the current prevailing wage
determination issued by the Department of Labor in each solicitation and the award of a
contract shall be conditioned upon the acceptance of the wage determination. The
REQUESTING PARTY shall report all suspected or reported violations to the
DEPARTMENT. .
8. Contract Work Hours and Safety Standards Act: Where applicable, all contracts awarded
by the REQUESTING PARTY in excess of $2,500 that involve the employment of
mechanics or laborers, shall include a provision for compliance with sections -~ 03 and 107
of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented
by Department of Labor regulations (29 CFR, Part 5). Under section 103 of til~;Act, each
contractor shall be required to compute the wages of every mechanic and laborer on the
basis of a standard workday of 8 hours and a standard workweek of 40 hours. Work in
excess of the standard workday or workweek is permissible provided that the worker is
compensated at a rate of not less than 1 Y. times the basic rate of pay for all hours worked in
excess of 8 hours ·in any calendar day or 40 hours in the workweek. Section I 07 of the Act,
if applicable to construction work, provides that no laborer or mechanic shall be required to
work in surroundings or under working conditions which are unsanitary, hazardous, or
dangerous to his health and safety as determined under construction safety and health
standards promulgated by the Secretary of Labor. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available on the open market, or
TE.EXH 07/14/0 4
contracts for transportation or transmission of intelligence.
9. Access to Records: All negotiated contracts (except those of$25,000 or Jess) awarded by
the REQUESTING PARTY shall include a provision to the effect that the recipient, FHWA,
the Comptroller General ofthe United States, or any oftheir duly authorized representatives,
shall have access to any books, documents, papers, and records of the contractor which are
directly pertinent to a specific program for the purpose of making audits, examinations,
excerpts and transcriptions.
10. Civil Rights Act: The REQUESTING PARTY shallcomplywith Title VIoftheCivi!Rights
Act of 1964 (P.L. 88-352), and in accordance with Title VI of that Act, no person in the
United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or otherwise be subjected to discrimination under
anyprogram or activity for which the recipient received Federal financial assistance and shall
immediately take anymeasuresnecessaryto effectuate this Agreement. It shall comply with
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) prohibiting employment
discrimination where:
A The primary purpose of and instrument is to provide employment, or
B. · Discriminatory employment practices will result in unequal treatment ofpersons who
are or should be benefiting from the grant-aided activity.
11. Nondiscrimination: The REQUESTING PARTY hereby agrees that, as a condition to
receiving any Federal financial assistance from the Department of Transportation, it will
complywith Title VI of the Civil Rights Act of1964 (78 Stat. 252,42 U.S. C. 2000d), related
nondiscrimination statutes, and applicable regulatory requirements to the end that no person
in the United States shall, on the ground of race, color, national origin, sex, handicap, or age,
be excluded from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity for which the REQUESTING PARTY receives
Federal financial assistance. The specific requirements of the United States Department of
Transportation standard Civil Rights assurances with regard to the States' highway safety
programs (required by 49 CFR21.7 and on file with the U.S. DOT) are incorpd'rttled in this
grant agreement.
12. Rehabilitation Act: The REQUESTING PARTY shall comply with Section 504 of the
Rehabilitation Act of 1973, as amended, (29 U.S.C. 794, P.L. 93-112), and all requirements
imposed by or pursuant to the regulations of the Department of Health, Education and
Welfare (45 CFR, Parts 80, 81 and 84), promulgated under the foregoing statute. It agrees
that, in accordance with the foregoing requirements, no otherwise qualified handicapped
person, by reason ofhandicap, shall be excluded from participation in, be denied the benefit
of, or be subject to discrimination under any program or activity receiving Federal financial
assistance, and that it shall take any measures necessary to effectuate this Agreement.
TE.EXH 07/14/0 5
DOT TYPEB
BUREAU OF HIGHWAYS
03-I5-93
PART II
STANDARD AGREEMENT PROVISIONS
SECTION I COMPLIANCE WITH REGULA TJONS 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- I 5-93 I
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.
I. Engineering
a. FAPG (6012.1): Preliminary Engineering
b. FAPG (23 CFR 172): Administration of Engineering and Design Related
Service Contracts
c. FAPG (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): Construction Engineering Costs
c. FAPG (23 CFR 17): Recordkeeping and Retention Requirements for
Federal-Aid Highway Records of State Highway Agencies
d. FAPG (23 CFR 635A): Contract Procedures
e. FAPG (23 CFR 635B): Force Account Construction
f. FAPG (23 CFR 645A): Utility Relocations, Adjustments and
Reimbursement
03-15-93 2
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
1. 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 140I): Reimbursement for Railroad Work
b. FAPG (23 CFR 646B): Railroad Highway Projects
C. In conformance 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:
I. That any facility to be utilized in performance 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 contract 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 FHW A.
E. All the requirements, guidelines, conditions and restrictions noted in all other pertinent
Directives and Instructional Memoranda of the FHW A will apply to this contract and will
be adhered to, as applicable, by the parties hereto.
03-15-93 3
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 portion or all of the PROJECT work. After receipt of bids for
the PROJECT, the REQUESTING PARTY shall have the right to reject the amount bid
for the PROJECT prior to the award of the contract for the PROJECT only if such
amount exceeds by twenty percent (20%) the final engineer's estimate therefor. If snch
rejection of the bids is not received in writing within two (2) weeks after letting, the
DEPARTMENT will assume concurrence. The DEPARTMENT may, upon request,
readvertise 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 unused balance of the deposit less all costs
incurred by the DEPARTMENT.
C. The DEPARTMENT will perform such inspection services on PROJECT work
performed by the REQUESTING PARTY with its own forces as is required to ensure
compliance with 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 participation in the PROJECT COST.
E. All work in connection with the PROJECT shall be performed in conformance with the
Michigan Department of Transportation Standard Specifications for Construction, and the
supplemental specifications, Special Provisions and plans pertaining 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 performed nor changes in plans and
specifications made until said work or changes are approved by the project engineer and
authorized by the DEPARTMENT.
03-15-93 4
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 party.
This formal written agreement shall: include a reference to the specific prime contract to
which it pertains; 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 Part 18, 48 CFR Part 31,
23 CFR Part 140, OMB 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
Jess 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 performance 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.
03-15-93 5
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 performing the work all
billings for the services performed 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
Federal 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 performance, may cancel the PROJECT, or any portion thereof,
and upon written notice to the parties 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 parties 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.
03-15-93 6
SECTION III
ACCOUNTING AND BILLING
A. Procedures for billing for work undertaken by the REQUESTING PARTY:
I. 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
finally 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 performed by or on behalf of the DEPARTMENT
indicates an adjustment to the costs repmied under this contract, or questions the
allowability of an item of expense, the DEPARTMENT shall promptly submit to
the REQUESTING PARTY, a Notice ofAudit 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 referred 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
arrangements 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 of an 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 terms of 1951 PA 51, as applicable.
Interest will be assessed on any partial 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 Treasury
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 Treasury 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,
p .L. 98-502.
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 (OMB) Circular A-133, as revised or
amended.
03-15-93 8
The agency shalJ submit two copies of:
The Reporting Package
The Data ColJection Form
The management Jetter to the agency, if one issued by the audit firm
The OMB Circular A-133 audit must be submitted to the address below m
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 Department advising that a circular audit was not required. The Jetter shalJ
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
information must also be submitted to the address below.
c. Address: Michigan Department of Transportation
Bureau of Highways Technical Services
425 W. Ottawa, P.O. Box 30050
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 OMB 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 - AIJ bilJings for work undertaken by the
REQUESTING PARTY on an agreed unit price basis will be submitted in
accordance with the Michigan Department of Transportation Standard
Specifications for Construction and pertinent FAPG Directives and Guidelines of
theFHWA.
3. Force Account Work and Subcontracted Work - AU 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 firm, railway
company, governmental agency or other party, under the terms of this contract,
shalJ be prepared in accordance with the provisions of the pertinent 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 Jesser amount than $1,000.00 shall be submitted unless it is a final
03-15-93 9
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:
I. 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 incurred portion of the PROJECT
COST upon receipt of progress billings from the DEPARTMENT. Progress
billings will be based upon the REQUESTING PARTY'S 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 thirty (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 determine 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
2. In the event that the bid, plus contingencies, for the contracted, and/or the
DEPARTMENT incurred p01tion 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 period 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 incurred, 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
Transportation Fund to meet its obligations as specified in PART I and PART II.
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 (I 0) 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 Transportation 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 future distribution of Michigan
Transportation Funds in settlement of said claim.
03-15-93 II
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( 1).
5. The costs of engineering and other services performed 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
SECTION IV
MAINTENANCE AND OPERATION
A. Upon completion of construction 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:
I. All Projects:
Properly maintain and operate each part 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 part of the PROJECT, in accordance with the current
Michigan Manual of Uniform 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 private 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 conjunction with the PROJECT work without prior review by
the DEPARTMENT and approval of the FHWA, if required.
03-15-93 13
B. On projects for the removal of roadside obstacles, the parties, upon completion of
construction of each part 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 construction 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 permitted 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 future Federal-aid participation in projects on roads or
streets for which 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
SECTION V
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 Fl-IWA 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 Fl-IWA, all monies distributed as the Fl-IWA'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 construction by the
close of the tenth (I Oth) fiscal year following the fiscal year in which the Fl-IWA 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 Fl-IWA, all monies distributed as the Fl-IW A'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 information as is
available and such other information 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 of reports 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 performance of PROJECT work under this contract the parties
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 performance of this contract.
E. The parties 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.
03-15-93 15
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 Act No. 453, Public Acts of 1976, the contractor hereby agrees not to discriminate against an
employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or
as a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex,
height, weight, or marital status. Further, in accordance with Act No. 220, Public Acts of 1976 as amended by Act No.
478, Public Acts of 1980 the contractor hereby agrees not to discriminate against an employee or applicant for
employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a 11atter directly or
indirectly related to employment, because of a disability that is unrelated to the individual's ability to perform the
duties of a particular job or position. A breach of the above covenants shall be regarded as a material breach of this
contract.
2. The contractor hereby agrees that any and all subcontracts to this contract, whereby a portion of the work set forth in
this contract is to be performed, shall contain a covenant the same as hereinabove set forth in Section 1 of this
Appendix.
3. The contractor will take affirmative action to insure that applicants for employment and employees are treated
without regard to their race, color, religion, national origin, age, sex, height, weight, marital status or a disability that
is unrelated 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, 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 contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state
that all qualified applicants will receive consideration for employment without regard to race, c91or, religion, national
origin, age, sex, height, weight, marital status or disability that is unrelated to the individual's ability to perform the
duties of a particular job or position.
5. The contractor or his collective bargaining representative will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or understanding, a notice advising the said
labor union or workers' representative of the contractor's commitments under this appendix.
6. The contractor will comply with all relevant published rules, regulations, directives, and orders of the Michigan Civil
Rights Commission which may be in effect prior to the taking of bids for any individual state project.
7. The contractor will furnish and file compliance reports 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 subcontractor as well as the contractor himself, and said contractor will permit access to
his books, records, and accounts by the Michigan Civil Rights Commission and/or its agent, for purposes of
investigation to ascertain compliance with this contract and relevant with rules, regulations, and orders of the
Michigan Civil Rights Commission.
8. In the event that the Civil Rights Commission finds, after a hearing held pursuant to its rulow and valve
• Testing of watcnna1n per City standatds
• Street rtmoval
• Street repta<>emcn~, 8" 22A gravel and 2 lift5 1.5" Bituminous Paving
• T~c Cotdrol
• Misc ..restoration
NOT INCLYDED:
• Materials te$1ing
• City tap fee
• Water sample tests
• Pavement Markings
WaiCitnainmateriaiS imtallcd and tested per llb