4. Resolution 5505 - Construction Agreement - US Highway 2 Between First Avenue West and Meridian RoadAvenue East, P.O. Box 1997, Kalispell, 1
www.kali
Bill Shaw, Public works Director
For: Mayor and City Council
From: Paul E. Burnham, P.E., City Engineer
Re: Construction Agreement — Montana Department of Transportation, Federal Aid Project No.
NH 1 W2(158)120, US 2 whitetop Project
Bate: June 20, 2011
Council Meeting Date: July 5, 2011
The Montana Department of Transportation intends to install a new surface on US Highway 2
between First Avenue west and Meridian Road. The project includes sidewalk replacement on
the north and south sides of US Highway 2. The proposed improvements will be funded by the
State and do not require expenditure of City funds. As these proposed improvements are within
the City limits, the State is required to develop an agreement delineating the operation and
maintenance responsibilities of the State and the City. The Montana Department of
Transportation proposes to construct these improvements during summer and fall 2011.
The City Attorney and the City Engineer have both reviewed the agreement and have found it to
be satisfactory.
RECOMMENDATION: Approve the construction agreement for the Montana Department of
Transportation Federal Aid Project No. NH 1-2(158)120, US 2 Whitetop Project.
ACTION REQUESTED: At City Council Meeting of July 5, 2011 -- Motion to approve the
construction agreement for the Montana Department of Transportation Federal Aid Project No.
NH 1-2(15 8 )120, US 2 whitetop Project.
FISCAL EFFECTS: There are no construction costs to the City of Kalispell. All funding is
provided by the Montana Department of Transportation.
ALTERNATIVES: As suggested by City Council
Attachment: two copies of agreement
MAYORA RESOLUTION AUTHORIZING THE f
EXECUTE THE CONSTRUCTION AGREEMENT OF FEDERAL AID PROJECT NO.
NH 1-2(158)120, ALSO KNOWN AS U,S. 2 WHITETOP PROJECT, WITH THE STATE
J/ THROUGH THE DEPARTMENT
WHEREAS, the State of Montana proposes to construct and/or reconstruct a certain highway
and adjacent pedestrian facilities (sidewalks) in and through the City, the
construction being known as Federal Aid Project No. NI i 1-2(158)120, also
known as U.S. 2 whitetop Project; and
WHEREAS, the construction will be over and upon parts of U.S. Highway 2 west between
First Avenue Nest and Meridian Road, within the City of Kalispell; 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
and the State of Montana Department of Transportation seek to have the City
agree with the terms of the subject construction agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALIS PELL AS FOLLOWS:
SECTION 1. It is hereby resolved by the City Council of the City of Kalispell that the
Construction Agreement of Federal Aid Project No. NH 1-2(158)120, also
.down as U.S. 2 whitetop Project, with the State of Montana, acting by
and through the Department of Transportation, is adopted by this Council;
and the Mayor of Kalispell or designee i .s hereby empowered and
authorized to execute said Agreement.
PASSED AND .APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL THIS
5TH DAY OF JULY, 2011.
Tam i Fisher
Mayor
ATTEST:
Theresa white
City Clerk
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Rev. 06120/11 KAL
6898
CONSTRUCTION AGREEMENT
STAT'--
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.
1
THE PURPOSE OF THIS AGREEME0,T IS TO SET FORTH THE RESPORSIBILITIES
AND DUTIES OF THE STATE AND THE CITY WITH RESPECT
<....,... fir'-... A FEDERAL
.RA AID
HIGHWAY AND ADJACENT PEDESTRIAN
OF ':
1, WHEREAS, the state proposes to construct and/or reconstruct a certain highway AND
ADJACENT PEDESTRIAN FACILITIES (SIDEWALKS) in and through the City, the
construction being known as Federal Aid Project No. NH 1-2(158)120, and
WHEREAS, the construction will be over and upon US 2 (N-1) Idaho Street between
Meridian Road (RP 120.2) and 1St Ave. West (RP 120.8), and
WHEREAS, the state desires to receive Federal funds to construct the highway, and
WHEREAS, in accordance with the states agreement with the Federal Highway
Administration (FHWA) of the L . 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 document must be duly executed and on record with the State and
FHWA before the work contemplated can be awarded to contract, and
WHEREAS, the city hereby concurs in the designation of the highway which was
designated under section 80-2-1101 MCA, and
WHEREAS, the city desires to have the construction done, the city deeming it to be a
valuable and beneficial consideration,
iI. Now, THEREFORE, for and in consideration of the premises and of the agreement
herein contained, the parties agree as follows:
DESIGNAT STATE EXPENSE, THE STATE AGREES TO
CONTRACT f ADMINISTER THE CONTRACT FOR CONSTRUCTION AND WILL
RESPONSIBILITIESPERFORM ALL THE REMAINING FUNCTIONS AND DUTIES AND
.
AGREES THAT UPON COMPLETION OF THE PROJECT, DEEMING THE
CONSTRUCTION A GOOD AND VALUABLE CONSIDERATION,
Q:CP-STD:120.DOC
Rev. 06/20/11 KAL
THIS AGREEMENT. THE DUTIES r
D RESPONSIBILITIES OF EACH PARTY T
THIS AGREEMENT ARE LIMITED !' THE PROJECT x.:
(IDAHO STREET) IN KALISPELL BETWEEN MERIDIAN ROAD AND FIRS
is `
(1) The City agrees to conform in all regards to chapter 8 of Title 5 , MICA, and will
not take any action, by enacting an ordinance or otherwise, in contradiction of the traffic laws in
Chapter 8 of Title 61, MICA, 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 an 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, MICA.
(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.
Q:CP-STD;120. DOC
Rev. 06/20/11 KAL
(2) 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 such
existing speed zone, parking regulation or traffic control device upon the highway.
(3) 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.
(4) The state will retain the authority and responsibility for issuing approach and
encroachment permits onto, upon or over right-of-way of the highway by anyone.
(5) 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.
(6) The City has reviewed and approved the plans.
(7) The city will continue to enforce the ordinances, laws and/or regulations
necessary and essential for the operation of the improvements as planned.
(8) All signs required to enforce City ordinances shall be maintained by the City.
(9) 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 both
sides of Us 2 (N-1) Idaho street from 120.2 to 120.8. The City may, in its discretion, enforce
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. For purposes of this agreement, "Maintenance" means: removal of
and/or surface repair of any obstacles or impediment to the safe and efficient use of the
sidewalk by pedestrians, including removal of snow and ice, repair of chipped, fractured,
or broken walk or curb from any cause including but not limited to frost, landscaping
(tree roots), or permitted encroachments.
C. The city has the authority and responsibility to issue encroachment
permits to private parties to allow for the placement or installation of encroachments on
the sidewalk within the right of way according to the terms and conditions established by
the City by ordinance or rule subject only to insuring that any permit issued does not in
any way interfere with the use of the vehicle travel lanes nor with the safe and efficient
use of the sidewalk by pedestrians. As an integral part of the responsibility is the
authority and duty to remove any unpermitted encroachment.
d. The city may by ordinance or resolution establish parking rules and
regulations, including installation of metered parking.
e. The city may by ordinance or regulation impose landscaping and/or
0 u
Q:CP-STD:20.DQc
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sidewalk construction responsibilities on property owners whose property abuts the
state facility provided that any new sidewalk construction completed under the City
authority on the highway right of way meets or exceeds the specifications and standards
of the department including compliance with any state or federal handicapped access
laws and regulations.
f. For purposes of this agreement, "Maintenance" does not mean
repair or replacement of any sidewalk segment six feet or more in continuous length
which cannot be repaired without complete removal and replacement of the existing
walk and subsurface base. upon notice that a segment of sidewalk must be replaced,
the department will take whatever steps necessary to complete the replacement within
120 days, (weather permitting), subject only to the temporary fix referred to in: 1(2)
below.
g. In the event of a disagreement as to whether a sidewalk segment
can be repaired or must be replaced, the parties agree that the issue will be resolved by
agreement by the city Public Works Director or his designee and the Department
Maintenance Administrator or his designee. If necessary the Department and Director
and the city Manager may be asked to resolve the issue.
h. The parties agree that they have a joint and mutual interest to build
and maintain the sidewalks in a safe manner. To that end there is a joint responsibility
to inspect the sidewalks on a periodic basis, at least annually to discover any potential
sections that require repair or replacement. Regardless of who identifies an area of
potential harm, they shall immediately notify the other party to the agreement and shall
jointly take whatever steps necessary to warn the users of the walk until such time as
repair or replacement can be completed. In the event replacement is deemed
necessary, temporary repairs may be performed until such time as reconstruction can
be programmed and completed. In the event replacement or reconstruction is required,
the department shall use any eligible state or federal funding to perform the work and
upon completion notify the city after which the city once again is responsible for future
maintenance.
i. city agrees that the maintenance responsibility is in effect until the
sidewalks are reconstructed as provided in paragraph (e), unless otherwise agreed to
by the parties.
j. If at any time, the city believes that the useful life of any of these
sidewalks has come to an end - i.e., that complete reconstruction of these sidewalks is
the most reasonable economic alternative - it shall promptly notify the state in writing of
its determination and the engineering basis therefor. upon receipt of the written notice,
the state shall respond in writing within thirty (30) calendar days to the City's
determination that complete 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 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
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Q:CP-STD:120.DOC
Rev. 06/20/ 1 KAL
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. In the event of a disagreement as to whether complete reconstruction is the
most reasonable economic alternative for continued maintenance or repair of a sidewalk
the parties agree that the issue will be resolved by agreement by the city Public Works
Director or his designee and the Department Maintenance Administrator or his
designee. If necessary, the Department and Director and city Manager may be asked
to resolve the issue.
k. If, during its inspections, the city encounters a condition on the
sidewalk that it believes is caused by a design or construction defect or by the negligent
act or omission of a state agent or employee, the city will immediately notify the state
of the existence and location of the defect and provide the state with a detailed
explanation of the engineering basis for its belief that the condition is caused by a
design or construction defect or the negligent act or omission of a State agent or
employee,
I. The State agrees to protect, indemnify, defend and sage harmless
the city against and from all claims, liabilities, demands, causes of action, judgments,
and losses (including costs and attorney's fees incurred by the city in the defense
thereof) to there arising in favor of or asserted by any person or entity on account of
personal injury, death or damage to property arising solely out of, or in connection with,
a defect in the State's design or construction of the project (including, but not limited to,
a defect in the State's construction or design of the sidewalks bordering the project as
described above) or from the negligent or intentional act of department employees that
in any way interfere with or damage the maintenance work of the city.
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, and losses (including costs and attorney's fees incurred by the
State in the defense thereof) to there arising in favor of or asserted by any person or
entity (including, but not limited to, the city) on account of personal injury, death or
damage to property arising, in whole or in part, out of, or in connection with, the
maintenance of the subject sidewalks.
M. 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.
(10) The city will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
0
Q:CP-STD: 20.DOc
Rev. 06/20/11 KAL
ill. 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
0) 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 Reorts: 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 ghat 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,
(a) withholding payments to the city under the Agreement until
the City complies, and/or
(b) cancellation, termination or suspension of the Agreement, in
whole or in part.
Q.CP-STD: 20.DOC
Rev. 06/20/11 KAL
(6) Inc or oration 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 MORITANA GOVERNMENTAL CODE OF
FAIR PRACTICES, §49-3-207, MCP,
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 CFI. Part 26 in the award and
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o:CP-STD:120.DOC
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administration of DDT -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.
Q:CP-STDA20.D0C
Rev. 06/20/ 1 KAL
IN WITNESS WHEREOF, the Department's authorized representative has signed on behalf o
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,
:01
Administrator - Engineering Division
Approved for Legal Content
ATTEST:
City Clerk
am.
2011
Mayor
, 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
201 ; and that the Council authorized the Mayor to sign this agreement
on behalf of the Council.
(Signature)
X,
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11