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1. Resolution 5284 - Construction Agreement2y..v ,l IM : Cl*tyof Kal . ......... - --------- - -------------------- u Post Office Box 1997 Kalispell, Montana 59903-1997 - Telephone 406 758-7720, Fax 406 758-78' 1 REPORT TO: Mayor and City Council FROM: James C. Hansz, P.E., Director of Public Works SUBJECT: Construction Agreement — Federal Aid Project No. HSIP 6715(4) MEETING DATE: June 30, 2005 BACKGROUND: During 2008 MDT plans to complete highway safety improvements to the intersection of Woodland Avenue and Second Street East consisting of pavement markings and signage changes. These changes Will improve safety for motorists passing through this intersection. 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. HS1P 6715(4) ACTION REQUESTED: AT CITY COUNCIL SPECIAL MEETING JUNE 30 — APPROVE RESOLUTION 5254. FISCAL EFFECTS: None ALTERNATIVES: As suggested by the City Council Respectfully submitted s (Y. Hansz, P.E. Director of Public Works 1 City ngineer Attachment: Agreement June 262008 Woodland and Second Construction Agreement.doc ames .Patrick City Manager RESOLUTION NO. 5284 A RESOLUTION AUTHORIZING THE MAYOR OF KALISPELL TO EXECUTE THE CONSTRUCTION AGREEMENT OF FEDERAL AID PROJECT NO, HSIP 6715 (4) WITH THE STATE OF MONTANA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION. WHEREAS, the State of Montana proposes to construct and/or reconstruct a certain highway in and through the City, the construction being known as Federal Aid Project No. HSIP 6715 (4); and WHEREAS, the construction will be over and upon Urban Route 6715 (2nd St. E./Conrad Drive); and WHEREAS, the State and City desire to receive Federal funds for said construction; 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 the certain conditions set forth in the subject Construction Agreement. 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. HSIP 6715 (4) 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 26TH DAY OF JUNE, 2008. Pamela B. Kennedy Mayor ATTEST: Theresa white City Clerk 1BU:TRAFFIC:UPN 6075:6075 CP-STD-final: 40 DDC HSIP 6715(4), SF 069 —PAVE MARK — 2ND ST E — KAL CONSTRUCTION AGREEMENT CITY -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. 11'U'TN ESSETH THAT: I. WHEREAS the State and the City propose to construct certain improvements on a specific highway in and through the City, the construction being known as Federal Aid Project No. HSI P 6715(4), more specifically described as follows: Proposed improvements consist of revising pavement markings at the intersection so that northbound traffic is positioned to have an improved view of eastbound and westbound traffic. All signing will be upgraded at the intersection, and WHEREAS, the construction will be over and upon Urban Route 6715 (2nd St. E./Conrad Dr.), and WHEREAS, the State and City desire to receive Federal funds to construct the highway, 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 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 60-2-110, 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: (1) The City agrees to conform in all manner and respects 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) Installation of 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 above -mentioned street (avenue); 1 [BU:TRAFF(C: U PN 6075:6075 CP-STD-final: 40. Doc (c) Establishing a speed limit of less than thirty-five (35) miles per hour outside an urban district on the highway. (d) Erecting any markings, sign, signal or traffic control device that will give preference to. local routes which intersect with the highway; and no markings, 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 proper traffic and engineering study indicating that such markings, sign, signal or traffic control device is required. (e) Not requiring the stopping of all traffic at all intersecting streets, alleys and driveways before entering the highway, and where the city considers that the traffic control creates a hazardous situation, they may modify the traffic control devices as may be in the public interest from a safety and convenience standpoint. M Prohibiting parallel parking on the highway; and (g) Allowing stopping, standing or parking of a vehicle in a place prohibited by §61-8-354, MCA. (h) (1) The city will service, maintain and pay the cost of operating all improvements embraced by this agreement. As further consideration, the City agrees to accept any and all maintenance and other responsibilities pursuant to any applicable SWPPP and Nol administered by the Montana Department of Environmental Quality. These responsibilities will be accepted by the City at the time of final inspection. At that time the SWPPP will be transferred to the City, and City agrees to execute any necessary documents or take any other steps necessary for the transfer of responsibility for the SWPPP and the Nol at the appropriate time. The city agrees to indemnify and hold harmless the State, including the Department, for any claim, damage, loss or cause of action arising from, due to or allegedly due to the negligence of the City or its employees or the failure of the city to perform the maintenance activities described herein. (2) If during the construction of any sections of the above -mentioned street (avenue), should the State and/or the FHWA, on account of unfavorable weather or other conditions not the fault of the contractor, authorize a suspension of construction operations thereafter and until the State and/or the FHWA issue an order for the resumption of construction operations, the maintenance of the sections under construction will be by and at the expense of the City. (2) 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. (3) The City has reviewed and approved the plans. (4) The City will maintain the constructed facility and enforce the ordinances and/or regulations necessary and essential for the operations of the improvements as planned. (5) (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 intersection of 2nd St. E./Conrad Dr. The city may, in its discretion, enforce state laws and its 2 IBU:TRAFFIC:UPN 6075:6075 CP-STD-final:140.DOC 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. 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 therefor. 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). 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 there 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 of the subject sidewalks. (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. (6) The City will maintain adequate traffic engineering capabilities to ensure that a continuing traffic engineering function is carried out on the project. (7) The City will remove or cause to be removed or modified any existing encroachments encountered as may be directed by the State and at any future time will not permit nor suffer any encroachments on the right-of-way of the road except upon the execution of the IBU:TRAFFIC:UPN 6075:6075 CP-STD-finai:140.DOC encroachment application and permit as issued by the State. (8) The City agrees to regulate utility occupancy on the right-of-way of this completed project in conformance with occupancy regulations that will comply with or be more restrictive than the requirements of ADMINISTRATIVE RULES OF MONTANA 18.7.201 thru 18.7.241 governing "RIGHT OF WAY OCCUPANCY BY UTILITIES." 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 (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, (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 Department or the FHWA may direct to enforce such provisions including sanctions for noncompliance: Provided, however, that in the N i BU:TRAFFIC: UPN 6075:6075 CP-STD-final:140. DOC 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 tali 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. I I BU:TRAFF#C: U PN 6075:6075 CP-STD-final: 140. DoC IN WITNESS WHEREOF, the Director of Transportation'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 M Administrator-neering�Division ATTEST: City Clerk CITY OF KALISPELL M Mayor 11: , Clerk of the City of Kalispell, certify that the above agreement Was regularly adopted by the City Council at a meeting held on the day of on behalf of the Council. , 2008; and that the Council authorized the Mayor to sign this agreement (Signature) " EXHIBIT A" CROSSWALK *INDICATES NO PARKING. STOPPING -,OR STANDING ZONES, * 201ON THE APPROACH TO A CROSSWALK. 4 3O' ON THE APPROACH TO A STOP SIGN OR SIGNALIZED INTERSECTIO N . CROSSWALK (MARKED OR UNMARKED) NO PARKING ZONES As Defined by MONTANA VEHICLE CODE Prepared by Department of Transportation