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5. Resolution 5626 - Construction Agreement - Three Mile DrivePublic Works Department Post Office Box 1997 - Kalispell, Montana 59903 Telephone: (406) 758-7720 TO: Douglas Russell, City Manager Z FROM: Susie Turner, P.E., Public Works Director SUBJECT: Construction Agreement — Kalispell Bypass Project (KBP) -Three Mile Drive, Federal Aid Project No. NH 15(111) MEETING DATE: June 17, 2013 The Montana Department of Transportation plans to construct and/or reconstruct Three Mile Drive as a separate phased portion of the Kalispell Bypass Project. This project includes construction over and upon parts of Three Mile Drive (Route U-6706), at the location interchange with the KBP. The proposed road construction will be funded by the State and do not require expenditure of City funds. As a portion of these proposed improvements have the potential to be within the City limits, the State is required to develop an agreement delineating the operation and maintenance responsibilities of the State and the City. Generally, this entails the sidewalk maintenance, and the operation and maintenance of luminary lighting. At this time there is no maintenance obligations associated with this project. Public Works and the City Attorney have reviewed the agreement and have found it to be satisfactory. RECOMMENDATION: Pass the resolution approving the construction agreement for Federal Aid Project No. NH 15 (111). FISCAL EFFECTS: There are no road construction costs to the City of Kalispell. All road construction funding is provided by the Montana Department of Transportation. The City will have fiscal responsibility for utility relocations associated with this project. The fiscal utility relocation responsibility and MDT construction agreement will be provided to Council at a later date. ALTERNATIVES: As suggested by City Council Res tively submitted, sie Turner Public Works Director Attachment: Agreement RESOLUTION NO.5626 A RESOLUTION AUTHORIZING THE CITY MANAGER OF KALISPELL OR DESIGNEE TO EXECUTE THE CONSTRUCTION AGREEMENT OF FEDERAL AID PROJECT NO. NH 15(111), ALSO KNOWN AS KBP-THREE MILE DRIVE PROJECT, 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 and adjacent pedestrian facilities (sidewalks) in and through the City, the construction being known as Federal Aid Project No. NH 15(111), also known as KBP-Three Mile Drive Project; and WHEREAS, the construction will be over and upon U-6706 (Three Mile Drive) in the City of Kalispell, beginning at approximately RP 0.5 and extending easterly approximately 0.4 mi to RP 0.9; 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 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. NH 15(111), also known as KBP-Three Mile Drive Project, with the State of Montana, acting by and through the Department of Transportation, is adopted by this Council; and the City Manager of Kalispell or designee is hereby empowered and authorized to execute said Agreement. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL THIS 17TH DAY OF JUNE, 2013. Tammi Fisher Mayor ATTEST: Theresa White City Clerk KALISPELL CITY CONSTRUCTION AGREEMENT 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: THE PURPOSE OF THIS AGREEMENT IS TO SET FORTH THE RESPONSIBILITIES AND DUTIES OF THE STATE AND THE CITY WITH RESPECT TO A FEDERAL AID HIGHWAY AND ADJACENT PEDESTRIAN FACILITIES PROJECT WITHIN THE CITY OF KALISPELL, MONTANA. I. WHEREAS, the State proposes to construct and/or reconstruct a certain highway AND ADJACENT PEDESTRIAN FACILITIES in and through the City, the construction being known as Federal Aid Project No. NH 15(111), also known as KBP-Three Mile Drive, and WHEREAS, the construction will be over and upon Route U-6706 in the City of Kalispell, beginning at approximately RP 0.5 and extending easterly approximately 0.4 mi to RP 0.9 and WHEREAS, the State desires 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, THE PARTIES AGREE AS FOLLOWS: AT STATE EXPENSE, THE STATE AGREES TO DESIGN THE PROJECT, LET IT TO CONTRACT AND ADMINISTER THE CONTRACT FOR CONSTRUCTION AND WILL PERFORM ALL THE REMAINING FUNCTIONS AND DUTIES AND RESPONSIBILITIES SET FORTH HEREIN IN EXCHANGE FOR WHICH THE CITY AGREES THAT UPON COMPLETION OF THE PROJECT, DEEMING THE CONSTRUCTION A GOOD AND VALUABLE CONSIDERATION, IT WILL PERFORM ALL OF THE FUNCTIONS AND DUTIES AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT. THE DUTIES AND RESPONSIBILITIES OF EACH PARTY TO THIS AGREEMENT ARE LIMITED TO THE PROJECT AREA. (A) 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: (1) Installing any signs, signals, or markings not in conformance with the Standards approved by the FHWA pursuant to 23 USC §109(d). (2) Establishing a speed limit less than twenty-five (25) miles per hour in any urban district on the highway. (3) 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. (4) 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. (5) 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. (6) 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. (7) Prohibiting parallel parking on the highway; and 2 (8) Allowing stopping, standing or parking of a vehicle in a place prohibited by §61-8-354, MCA. (9) 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. (B) 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. (C) 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. (D) 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. (E) 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. (F) The City has reviewed and approved the plans. (G) The City will continue to enforce the ordinances, laws and/or regulations necessary and essential for the operation of the improvements as planned. (H) All signs required to enforce City ordinances shall be maintained by the City. (1) The City will continue adequate engineering capabilities to ensure that a continuing traffic engineering function is carried out on the project. 3 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, (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. CI (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 §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 0 remedy as the recipient deems appropriate. THE PARTIES UNDERSTAND AND AGREE THAT THE FAILURE OF EITHER PARTY TO PERFORM THE DUTIES AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT MAY BE DEEMED A MATERIAL BREACH OF THE CONTRACT FOR WHICH ANY AVAILABLE REMEDY PROVIDED BY LAW MAY BE ASSERTED IN THE DISTRICT COURT. IN ANY LEGAL PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS AND ATTORNEY'S FEES. IN WITNESS WHEREOF, the Department's authorized representative has signed on behalf of the State of Montana, and the City Manager 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 By Administrator - Engineering Division By p ed for Legal Content ATTEST: ail M Theresa White, City Clerk APPROVED AS TO FORM: ail City Attorney , 2013 CITY OF KALISPELL Doug Russell, City Manager I, Theresa White, City 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 , 2013; and that the Council authorized the City Manager to sign this agreement on behalf of the City. Theresa White, City Clerk A STATE I PROJECT NUMBER KBP - THREE MILE DRIVE PONTANAl NH -MT 15011> LOCATION MAP SCALE: 1:4 000 "EXHIBIT A" 0 N M1D-BLOCK CROSSWALK *INDICATES NO PARKING STOPPING, OR STANDING * ZONES. N 20' ON THE APPROACH v Yr TO A CROSSWALK. ati�i! 30'ON THE APPROACH TO A STOP SIGN OR SIGNALIZED INTERSECTION. W v-i a ! h a fie" � x CROSSWALK Oft UNMARKED) k (MARKED AAA mho, I SIDEWALK 20, ! I 1 30' SIDEWALK I i t FF �nl r �r s �(� s � 1 1��`,✓V r ' ' C t p '.._ . FIRE HYDRANT NO PARKING ZONES As Defined by MONTANA VEHICLE CODE Preparers by Department of Transportation 10