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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