6. Resolution 5402 - Construction Agreement - Corporate Drive & Appleway DriveREPORT TO: Mayor and City Council
FROM: James C. Hansz, P.E., Director of Public Works
SUBJECT: Construction Agreement —Federal Aid Project ARRA 15(92) Kalispell Bypass
MEETING DATE: 19 October 2009
BACKGROUND: MDT plans to construct improvements for the first phase of the Kalispell Bypass
beginning late this year. This project will be bid later this month. This project will involve roadway
improvements to Corporate Way and Appleway Drive which will be maintained by the City. In order to
move forward with the overall project a standard construction agreement must be entered into between
the City and MDT, a copy of which is attached.
Public Works and the City Attorney have reviewed the agreement and found it to be satisfactory
in all respects.
RECOMMENDATION: Approve MDT/City Construction Agreement for Federal Aid Project No.
ARRA 15(92).
ACTION REQUESTED: AT CITY COUNCIL MEETING OF OCTOBER 19TH — MOTION TO
APPROVE CONSTRUCTION AGREEMENT FOR FEDERAL AID PROJECT No. ARRA
15(92).
FISCAL EFFECTS: None
ALTERNATIVES: As suggested by the City Council
Respectfully submitted,
4ame!�"C. Hansz, P.E.
Director of Public Works / ity Engineer
Attachment: Agreement
Jane Howington
City Manager
201 Is' Avenue East, P.O. Box 1997, Kalispell, MT 59903 Plione (406)758-7720 — Fax (406)758-7831
www.kalispelLcom
I;-1&XIIR 11�1 Ci7 if Ci +
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WHEREAS, the State of Montana proposes to construct and/or reconstruct certain highway
improvements in and through the City, the construction being known as Federal
Aid Project No. ARRA 15(92); and
WHEREAS, the construction will consist of realigning Corporate Drive and Appleway Drive
to provide a better access point and intersection with Highway 2, in connection
with construction of the Kalispell Bypass, and
WHEREAS, the State of Montana desires to receive Federal funds to construct the highway
improvements; and
WHEREAS, the Federal Highway Administration of the U.S. Department of Transportation
will not participate in the construction until and unless the City agrees to certain
conditions.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. It is hereby resolved by the City Council of the City of Kalispell that the
Construction Agreement of Federal Aid Project No. ARRA 15(92) with
the State of Montana, acting by and through the Department of
Transportation, is adopted by this Council; and the Mayor of Kalispell is
hereby empowered and authorized to execute said Agreement.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL THIS
19TH DAY OF OCTOBER, 2009.
Pamela B. Kennedy
Mayor
Theresa White
City Clerk
To: Jim Hansz, P.E.
Public Works Director/City Engineer
From: Frank Castles, P.E.
Deputy Public Works Director
Date: October 9, 2009
Re: U.S. Highway 93 Bypass — Appleway/Corporate Drive Realignment
and Flathead Beverage Utility Extension
Attached is the Construction Agreement for the referenced locations. Staff has
examined Paragraph (1) and Paragraph (2) and has determined that they meet
the intent of this Department's requirements.
The Agreement must be approved via Resolution by the City Council. Please
forward to the City Council for their approval.
201]'Avenue East, P.O. Box 1997, Kalispell MT 59903 Phone (406) 758-7720 — Fax (406) 758-7831
mrmkalisnelLcoin
Montana Department of Transportation
•.rrviny you with pri fe 2701 Prospect Avenue
PO Box 201001
Helena MT 59620-1001
October 8, 2009
Frank Castles, P.E.
Deputy Public Works Director
201 First Avenue East
Kalispell, MT 59901
Subject: Kalispell Bypass Project
ARRA 15(92) Construction Project
Kalispell City Resolution
Jim Lynch, Director
Brian Schweitzer, Governor
We are enclosing two (2) copies of a City Resolution and request that you sign them at
your earliest possible opportunity, but no later than October 26, if possible. We ask that
you be certain the City Clerk and Recorder subscribe their name to the resolutions, and
place the City Seal thereon for each Resolution.
Please return both copies of the Resolution to the Department's Consultant Design
Bureau. We will then sign both copies and return one fully executed copy of the
Resolution to your office.
If any changes are contemplated to the proposed resolution, please contact Fred Bente
in the Consultant Design Bureau at (406) 444-7634 before any changes are made. If
changes are made to the proposed resolution without the Department's prior written
approval, it will likely result in the Department's non -concurrence to the changes and the
project being withdrawn from the advertisement for bidding.
Tim Conway, P.E.
Consultant Design Engineer
TJC:FWB:CD
Attachments
cc: Doug Moeller, District Administrator (w/Res.)
Consultant Design Project File
Consultant Design Bureau An Equal Opportunity Employer Engineering Division
Phone: (406) 444-6209 TTY: (800) 335-7592
Fax: (406) 444-6253 Web P3_0e: WWW n7dt.mt.g0v
Q:CP-STD:120.DOC
Rev. 9/25/08
KALISPELL CITY
CONSTRUCTION AGREEMENT
STATE -MAINTAINED ROUTE
THIS AGREEMENT is made and entered into by and between the State of Montana, acting by
and through its Department of Transportation, hereinafter called the State, and the City of
Kalispell, a Montana municipal corporation, hereinafter called the City.
WITNESSETH THAT:
WHEREAS, the State proposes to construct and/or reconstruct a certain highway
(known as the Kalispell Bypass) in and through the City, the construction of part of this highway
being known as Federal Aid Project No. ARRA 15(92), and
WHEREAS, the construction will be over and upon sections of streets under the
jurisdiction, authority and control of the City, specifically, Corporate Drive and Appleway Drive,
and
WHEREAS, the State desires to receive and use Federal funds to construct the highway
project, and
WHEREAS, in accordance with the State's agreement with the Federal Highway
Administration (FHWA) of the U. S. Department of Transportation, the State must ensure that
certain requirements are met in order for the State to fulfill its obligations to the FHWA and for
the project to be eligible for federal funds. Accordingly, the State includes federal requirements,
which are among those hereinafter set forth, for this project, and the City agrees to them, and
WHEREAS, this agreement must be duly executed and on record with the State and
FHWA before the work contemplated for the project can be awarded to contract, and
WHEREAS, the City hereby concurs in the designation of the highway by the
Transportation Commission which was designated under Section 60-2-110, MCA, and
WHEREAS, the City desires to have the construction of the project done, the City
deeming it to be a valuable and beneficial consideration,
NOW, THEREFORE, for and in consideration of the mutual promises and covenants of
the agreement herein contained, the parties agree as follows:
(1) As an integral part of the construction of the Kalispell Bypass project, the
connections of the existing city streets known as Corporate Drive and Appleway Drive will be re-
aligned to provide a better access point/intersection with US Highway 2. The existing
connections to US Highway 2 will be obliterated and new connections will be constructed (see
Exhibit "B"). The new connection to Corporate Drive will be from Station 0+12.33 to Station
1+80 (see Exhibit "C"). The new connection to Appleway Drive will be from Station 0+12.09 to
Station 1+71.20 (see Exhibit "D").
Upon completion of the project, and at no cost to the State, the City agrees to
assume ownership of the acquired right of way for the reconstructed city streets and full
responsibility for and control of maintenance of the noted connections to Corporate Drive and
Appleway Drive.
Q:CP-STD:120.DOC
Rev. 9/25/08
(2) As part of the right-of-way considerations for the Kalispell Bypass, it was
determined necessary to provide city water and sanitary services to Parcel 38. This requires the
extension of the existing city water main and sanitary sewer under the Kalispell Bypass facility
at Bypass Station 63+66 (see Exhibit "E"). The City agrees to prepare the design and provide a
stamped and signed construction plans package for this water main and sanitary sewer
extension to the Department. The Department agrees to include the water and sewer plans in
the Department's plans package for Project No. ARRA 15(92). The Department agrees to fund
the construction of the noted water and sewer extension at 100%, including incidentals and
indirect costs.
Upon completion of the project, and at no cost to the State, the City agrees to
assume ownership of and full responsibility for and control of maintenance of the noted water
main and sanitary sewer.
(3) The City agrees to conform in all regards to Chapter 8 of Title 61, MCA, and will
not take any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in
Chapter 8 of Title 61, MCA, with specific reference, but not limited to, the following matters:
(a) Installing any signs, signals, or markings not in conformance with the
Standards approved by the FHWA pursuant to 23 USC §109(d).
(b) Establishing a speed limit less than twenty-five (25) miles per hour in any
urban district on the highway.
(c) Establishing a speed limit of less than thirty-five (35) miles per hour
outside an urban district on the highway. The City will modify or alter such established speed
limits on the highway after a traffic and engineering investigation is made at the request of the
State.
(d) Erecting any markings, sign, signal or traffic control device that will give
preference to local routes which intersect with the highway and no sign, signal or traffic control
device will be erected or constructed, nor shall the establishment or modification of any speed
zone, parking regulation or traffic marking which will affect traffic on the highway be made
without express written permission of the State, and then only after proper traffic and
engineering study indicates that such markings, sign, signal or traffic control device is required.
(e) Erecting any lighting on the highway without express written permission of
the State, and then only after proper traffic and engineering study indicates that such lighting
devices are required. The plans for such lighting installation shall be approved by the State
before erection.
(f) Not requiring the stopping of all traffic at all intersecting streets, alleys and
driveways before entering the highway. Where the City considers that such traffic control
creates a hazardous situation, it will request a traffic and engineering study by the State. The
State, after the study, may authorize express written modifications in the traffic control devices
as may be in the public interest from a safety and convenience standpoint.
(g) Prohibiting parallel parking on the highway; and
(h) Allowing stopping, standing or parking of a vehicle in a place prohibited
by §61-8-354, MCA.
E
Q:CP-STD:120.DOC
Rev. 9/25/08
(i) For lighting projects inside of incorporated municipalities, the cost of
operation and maintenance of the lighting shall be paid by the State; however, where an existing
lighting district, which is paid for by a city, town or special improvement district, is replaced or
upgraded, the city, town or special improvement district shall continue paying the amount of the
previous payments toward the cost of operation and maintenance of the new or revised lighting
system. If and when the cost of energy or maintenance is raised by the utility company, the city,
town or special improvement district shall pay their proportionate share of the rate increase.
(4) The State, after a traffic and engineering investigation of any speed zone,
parking regulation or traffic control device, may require the City to modify or remove any existing
speed zone, parking regulation or traffic control device upon the completed Kalispell Bypass
highway.
(5) In addition to the specific signs, signals and traffic control devices which may be
shown on the plans, further restrictions as to parking, stopping and speed limits are set forth in
the attached drawing labeled "Exhibit A," that exhibit being part of this agreement.
(6) The State will retain the authority and responsibility for issuing approach and
encroachment permits onto, upon or over right-of-way of the highway under the jurisdiction of
the State.
(7) Should the City incorporate beyond the present city limits, and such newly
annexed area include portions of this Federal Aid Project not now within the city limits, then this
agreement, by reference herein, will also apply to the newly annexed area.
(8) The City has reviewed and approved the plans for the construction of the entire
Kalispell Bypass project.
(9) The City will continue to enforce the ordinances, laws and/or regulations
necessary and essential for the operation of the improvements as planned and constructed.
(10) All signs required to enforce City ordinances shall be maintained by the City.
(11) Sidewalk Maintenance.
a. Upon completion of the project, and at no cost to the State, the City agrees to
assume full responsibility for and control of maintenance of the sidewalks bordering the project.
Specifically, the City will maintain or cause to be maintained the sidewalks adjacent to the north
side of Corporate Drive from Station 0+38.60 to Station 1+44.35, the south side of Corporate Drive
between Stations 0+20.21 to 0+25.02, Stations 0+65.17 and 0+70.96, and Stations 1+53.66 to
1+56.50, and the sidewalks adjacent to both sides of Appleway Drive from Station 0+25.96 to
Station 1+60.00. The City may, in its discretion, utilize authority under state laws and its local
ordinances, if any, to recover all costs associated with its sidewalk maintenance activities from
persons or entities who own property adjacent to the sidewalks and/or who receive the benefit
of the maintenance performed.
b. The City will maintain or cause the maintenance of these sidewalks in good,
safe and substantial condition and repair for the useful life of the sidewalks and may require the
abutting property owner to see that all breaks and unsoundness of any character resulting from
natural deterioration or from any cause whatever, are repaired. The City will be responsible for
issuing any encroachment permits for any party or person wishing to install or place
encroachments on the sidewalks including installing signs, benches, landscaping etc, provided
3
Q:CP-STD:120. DOC
Rev. 9/25/08
that the City agrees any such permit will not allow for any encroachment that interferes with the
pedestrian use of the sidewalk nor will in any manner impede or encroach on the travel way of
the highway. The City agrees that the maintenance responsibility is in effect until the sidewalks
are reconstructed as provided in paragraph c. unless otherwise agreed to by the parties.
c. If at any time, the City believes that the useful life of any of these sidewalks
has come to an end - i.e., that reconstruction is the most reasonable economic alternative - it
shall promptly notify the State in writing of its determination and the engineering basis therefore.
Upon receipt of the written notice, the State shall respond in writing within thirty
(30) calendar days to the City's determination that reconstruction is the most reasonable
economic alternative for continued maintenance or repair of a sidewalk. If, after notification, the
State agrees that reconstruction of all or any portion of the sidewalk is the most reasonable
economic alternative, the City's duty to maintain the sidewalk shall terminate. If, after
notification, the State disagrees that reconstruction is the most reasonable economic alternative,
the State may, within an additional thirty (30) calendar days, obtain another opinion from an
independent engineer at State expense. If that engineer determines that reconstruction is the
most reasonable economic alternative, the City's duty to maintain the sidewalks shall terminate
until the reconstruction is completed or as otherwise agreed to by the parties.
d. The State agrees to protect, indemnify, defend and save harmless the City
against and from all claims, liabilities, demands, causes of action, judgments (with any costs
and fees that might be awarded), and losses to them arising in favor of or asserted by any
person or entity on account of personal injury, death or damage to property arising out of, in
connection with, or incidental to a defect in the State's original design or original construction of
the project (including, but not limited to, a defect in the State's original construction or original
design of the sidewalks bordering the project as described above).
The City agrees to protect, indemnify, defend and save harmless the State
against and from all claims, liabilities, demands, causes of action, judgments (with'any costs
and fees that might be awarded), and losses arising in favor of or asserted by any person or
entity on account of personal injury, death or damage to property arising out of, in connection
with, or incidental to a defect in the City's original design for the water and sewer extension
noted in Section 2 above.
Regardless of any insurance coverage, or any stated position of its insurance
carrier, the City agrees to protect, indemnify, defend and save harmless the State and
Department of Transportation against and from all claims, liabilities, demands, causes of action,
judgments (with any costs and fees that might be awarded), and losses to them arising in favor
of or asserted by any person or entity on account of personal injury, death or damage to
property arising out of, in connection with, or incidental to the maintenance or failure to maintain
the subject sidewalks constructed with the project.
e. This section does not supersede, discharge, or extinguish any prior agreement
between the parties, nor will any future agreement between the parties supersede, discharge, or
extinguish this agreement, unless by specific reference and in clear terms.
(12) The City will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
M
Q:CP-STD:120.DOC
Rev. 9/25/08
III. During the performance of this Agreement, the City, for itself, its assignees and
successors in interest, agrees as follows:
A) COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR
FEDERAL -AID CONTRACTS
(1) Compliance with Regulations: The City shall comply with all Regulations
relative to nondiscrimination in Federally -assisted programs of the Department of
Transportation, 49 Code of Federal Regulations, Part 21, as they may be amended (hereafter
referred to as the Regulations), which are incorporated by reference and made a part of this
Agreement, even if only state funding is here involved.
(2) Nondiscrimination: The City, with regard to the work performed by it
during the Agreement, shall not discriminate on the grounds of sex, race, color, or national
origin in the selection and retention of subcontractors, including procurement of materials and
leases of equipment. The City shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5.
(3) Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations, whether by competitive bidding or negotiation by the City for
work to be performed under a subcontract, including procurements of materials or leases of
equipment, any potential subcontractor or supplier shall be notified by the City of the City's
obligations under this Agreement and the Regulations relative to nondiscrimination.
(4) Information and Reports: City will provide all reports and information
required by the Regulations, or directives issued pursuant thereto, and permit access to its
books, records, accounts, other sources of information and its facilities as may be determined
by Department or the Federal Highway Administration (FHWA) to be pertinent to ascertain
compliance with Regulations or directives. Where any information required of the City is in the
exclusive possession of another who fails or refuses to furnish this information, the City shall so
certify to the Department or the FHWA as requested, setting forth what efforts it has made to
obtain the information.
(5) Sanctions for Noncompliance: In the event of the City's noncompliance
with the nondiscrimination provisions of this Agreement, Department may impose sanctions as it
or the FHWA determines appropriate, including, but not limited to,
City complies, and/or
whole or in part.
(a) withholding payments to the City under the Agreement until the
(b) cancellation, termination or suspension of the Agreement, in
5
Q:CP-STD:120.DOC
Rev. 9/25/08
(6) Incorporation of Provisions: City will include the provisions of paragraphs
(1) through (6) in every subcontract, including procurement of materials and leases of
equipment, unless exempt by the Regulations or directives issued pursuant thereto. City will
take such action with respect to any subcontract or procurement as the Department or the
FHWA may direct to enforce such provisions including sanctions for noncompliance: Provided,
however, that in the event City is sued or is threatened with litigation by a subcontractor or
supplier as a result of such direction, the City may request the Department to enter into the
litigation to protect the interests of the State, and, in addition, the City or the State may request
the United States to enter into such litigation to protect the interests of the United States.
B) COMPLIANCE WITH THE MONTANA GOVERNMENTAL CODE OF FAIR
PRACTICES, §49-3-207, MCA
In accordance with Section 49-3-207, MCA, City agrees that for this Agreement all hiring will be
made on the basis of merit and qualifications and that there will be no discrimination on the
basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental
disability, or national origin by the persons performing the Agreement.
C) COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT (ADA)
(1) City will comply with all regulations relative to implementation of the
AMERICANS WITH DISABILITIES ACT.
(2) City will incorporate or communicate the intent of the following statement
in all publications, announcements, video recordings, course offerings or other program outputs:
"City will provide reasonable accommodations for any known disability that may interfere with a
person in participating in any service, program or activity offered by the City. In the case of
documents, recordings or verbal presentations, alternative accessible formats will be provided.
For further information call the City."
(3) All video recordings produced and created under contract and/or
agreement will be closed -captioned.
D) COMPLIANCE WITH PARTICIPATION BY DISADVANTAGED BUSINESS
ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE
PROGRAMS, 49 CFR PART 26
Each Agreement the Department signs with a City (and each subcontract the prime contractor
signs with a subcontractor) must include the following assurance:
"The City, subrecipient or subcontractor shall not discriminate on the basis of race, color,
national origin, or sex in the performance of this contract. The City shall carry out
applicable requirements of 49 CFR Part 26 in the award and administration of DOT -
assisted contracts. Failure by the City to carry out these requirements is a material
breach of this contract, which may result in the termination of this contract or such other
remedy as the recipient deems appropriate.
no
Q:CP-STD:120.DOC
Rev. 9/25/08
IN WITNESS WHEREOF, the Department's authorized representative has signed on behalf of
the State of Montana, and the Mayor of the City of Kalispell, on behalf of the City, has signed
and affixed hereto the seal of the City.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
Administrator - Engineering Division
Appr v or Le al Itenf
ATTEST:
City Clerk
CITY OF Kalispell
2009
Mayor
I, , Clerk of the City of Kalispell, hereby certify that this
agreement was regularly adopted by the City Council at a meeting held on the day of
on behalf of the Council.
2009; and that the Council authorized the Mayor to sign this agreement
(Signature)
7
"EXHIBIT A"
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