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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 + i i i' i i � i i, 1 •. 1 •'i i , �. , 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" YID -CLOCK CROSSWALK gwu *INDICATES NO PARKING _ * STOP►ING.OR STANDING ZONES. ~ w * 20'ON THE APPROACH TO A CROSSWALK. 30'ON THE APPROACH TO A STOP SIGN OR SIGNALIZED INTERSECTION. .CROSSWALK (MARKED OR UN YARKEO) SIDEWALK 21. 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