2. Maintenance Agreement - Pedestrian TunnelCharles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, IVIT 59903-1997
TO: Doug Russell, City Manager YI
FROM: Charles Harball, City Attorney
Tel 406.758.7709
Fax 406.758.7771
charball@katispell.com
SUBJECT: Approval of Maintenance Agreement with MDOT for North 93
Pedestrian Tunnel
BACKGROUND: The Montana Department of Transportation constructed a pedestrian
tunnel underneath Highway 93 North connecting a pedestrian/bicycle trail between
FVCC and Kidsports. Shortly after the tunnel was completed vandalism occurred that
involved graffiti and the destruction of lighting within the tunnel. Thereafter city staff
and MDOT staff met and discussed various solutions and maintenance direction for the
future. MDOT agreed to pay for the cost of retrofitting the lighting to make it more
vandal proof and the City agreed to enter into an agreement specifically addressing the
maintenance of the tunnel. The existing agreement only addresses the maintenance of
the trail in general.
RECOMMEENDATION: It is recommended that the City Council approve the attached
agreement and give the City Manager the authority to execute the agreement on behalf
of the City.
FISCAL IMPACTS: Maintenance costs for the tunnel path surface should be similar to
the trail surfaces the City is maintaining on either end of the tunnel. Although this will
not involve snow removal, the crews may have to contend with ice. The City will bear the
costs of vandalism but will also pursue the detection, arrest and prosecution of the
perpetrators for any cost recovery.
Respectfully submitted,
Charles Harball, City Attorn/ey
MAINTENANCE AGREEMENT
BETWEEN THE CITY OF KALISPELL AND
TRA HS"A
U.S. HIGHWAY 93 PEDESTRIAN TUNNEL
KALISPELL, MONTANA
THIS MAINTENANCE AGREEMENT (Agreement) is made and entered into by
and between the State of Montana Department of Transportation (MDT or the State),
and the City of Kalispell, a Montana municipal corporation (the City).
WITNESSETH THAT:
—TVHEREAS, MDT constructed a pedestrian tunnel, including asphalt sidewalk
paths, lighting and drainage features, commonly referred to as U.S. Highway 93
Pedestrian Tunnel (Pedestrian Tunnel or sidewalk/pathway). Said Pedestrian Tunnel is
located in and through portions of the City, on property owned by the City and MDT and
the Department of Natural Resources & Conservation and Flathead Community
College, and more specifically under and upon U.S Highway 93 in the City of Kalispell,
at approximately RP 114.9; and
ru" ji'm uggswel am I M gmeam nj it's] Mwe 4 JEM,AL QUIRIARAS "
NOW THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties agree as follows:
THE CITY AGREES:
To perform all general maintenance and preservation responsibilities
associated with the use of the Pedestrian Tunnel by the general public in a
hazard -free and safe manner. For purposes of this Agreement, maintenance
includes all things ordinarily associated with sidewalk maintenance, but is not
limited to the following:
a) asphalt preservation and rehabilitation;
b) removal of any sidewalk/pathway obstacles or impediments;
c) surface repair/replacement of chipped, fractured, broken, or sinking
sidewalk or curb from any cause, including but not limited to frost,
landscaping (tree roots), or permitted encroachments;
d) snow and ice removal;
e) sweeping, cleaning, and washing;
f) debris removal;
g) drainage/culvert maintenance;
h) luminaires repair and maintenance, including but not limited to
replacements or additions, payment for all utility costs, pole and fixture
replacement, and routine maintenance;
i) graffiti removal;
j) weed control; and
k) all other incidental maintenance activities necessary for the safe and
efficient use of the Pedestrian Tunnel by the general public.
2. To assume full responsibility from MDT for and control of any activities on,
operation or maintenance of the sidewalk/pathway, including traffic/pedestrian
control during maintenance of the sidewalk/pathway.
3. That any changes or upgrades to the lighting system will be borne by the City,
except as provided herein.
5. To maintain and install all signs • to enforce City ordinances relating to
the use of the Pedestrian Tunnel by the general •
6. To control and enforce/remove or modify encroachments or other activiti
within the Pedestrian Tunnel. I
7. That the City may, in its discretion, enforce state laws and its local
ordinances, if any, to recover costs associated with its sidewalk/pathway
maintenance activities from persons or entities who own property adjacent to
the sidewalk/pathway and/or who receive the benefit of the maintenance
performed.
8. To inspect the Pedestrian Tunnel at regular and reasonable intervals, in its
discretion to be adequate, to determine what, if any maintenance needs to be
performed.
1. To be responsible for maintaining and preserving the structural integrity of the
Pedestrian Tunnel so that it will continue to safely and effectively serve the
purpose for which it was intended.
2. To pay directly to the City one time under this Agreement up to $1 000 (Orz-,
Thousand Dollars) to assist with the replacement and upgrading • the
lighting system to vandal -proof fixtures. I
in - wam
Indemnification. The City shall protect, indemnify, defend and save harmless the
State against and • all claims, liabilities, demands, causes • action, judgments, and
losses (including costs and attorney's fees incurred by the State in the defense thereof)
to the State arising in favor • or asserted by any person • entity (including, • not
limited to, the City) on account of personal injury, death or damage to property arising,
in whole • in part, • of, • in connection with, the maintenance • the subject
0
The City assumes all responsibility for ensuring and enforcing safe working
conditions and compliance with all safety -related rules and regulations for the benefit of
the City's own employees and the public. That responsibility includes all •u relating
to safety, regardless of whether • such • are, or are alleged to •^
11 nondelegable" (e.g., the Montana Safe Place to Work Statute, etc.).
The State shall protect, indemnify, defend and save harmless the City against
and from all claims, liabilities, demands, causes of action, judgments, and losses
(including costs and attorney's fees • by the City in the defense thereof) to the
City arising in favor of or asserted by any person or entity (including, but not limited to,
the State) on account of personal injury, death or a• to property arising, in whole
or in part, out of, or in connection with, the duty of the State to maintain and preserve
the structural integrity of the Pedestrian Tunnel.
IV. During the performance of this • 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 State, 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 the State or the 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 State 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, the State may impose sanctions as it
0
(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.
(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 State 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 State 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 ADA-
(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
(1) Each Agreement the State 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.
N
In witness whereof, duly authorized representatives of MDT and the City have
executed this Agreement on the dates indicated.
in
Gary Engman, Kalispell Maintenance Chief
Dated:
in
MDT Legal Division
Dated:
CITY LISPELL
By:
Doug Russell, City Manager
Dated:
Attest
By:
Dated:
Legal Review
By:
Charles A. Harball, City Attorney
Dated:
6i