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3. Construction Agreement Approval for MACI Sidewalk Project�t"ty of Kalispell Pubfic Works Department �.-1997p-20, Fax (406)758-7831 Postdice d 1997, Kalispell, cut 599fl tc17 F REPORT TO: Mayor and City Council FROM: James C. Hansz, P.E., Director of Public Worms SUBJECT. Construction Agreement for MACI Sidewalk Project. MEETING DATE: January 5, 2004 BACKGROUND: Several years ago the City was successful in receiving a Federal grant for construction of a sidewalk network in the NW area of Kalispell west of US 93, north of US 2 and generally east of the County fair grounds. Over time a project was developed and in the fall of 2003 construction was authorized. Normally the start of construction is preceded by the completion of a construction agreement between the City and MDT. In this case it was mutually agreed that construction should begin as soon as possible so as to maximize work progress in the limited time that remained of the 2003 construction season. The construction agreement has been fully reviewed by the City and MDT. A few changes were made from the typical agreement format to reflect the additional work being performed by the City as a cost saving measure for this project. In addition, the agreement reflects supplemental cost sharing that was necessitated by the higher than anticipated construction bid. 'Total City cost sharing for this project is $87,973.00, an increase of $6,422.00 from the amount originally planned. The cost increase is covered by savings in other project line items, no additional budget authority is required. Attached is a copy of the proposed construction agreement. RECOMMENDATION: Approve Construction Agreement for Project CM 6799 (24) Sidewalks - Kalispell. ACTION REQUESTED: AT CITY COUNCIL MEETING OF DECEMBER 15 — MOTION TO APPROVE CONSTR UCTION A GREEMENT FOR SIDEWALK PROTECT, CM 6799 (24). FISCAL EFFECTS: Expenditure of project matching funds totaling $87,973.00. ALTERNATIVES: As suggested by the City Council Chris A. Kukulski City Manager Report compiled December 22, 2003 Attachment: Agreement January 5, 2004 MAGI Sidewalk Construction Agreernent.doc CM 6799 (24) SIDEWALKS — KALISPELL CONSTRUCTION ADMINISTRATION AGREEMENT This Agreement is made and entered into by and between the Montana Department of Transportation (STATE), and the City of Kalispell, a Montana municipal corporation, (CITY). WITNESSETH WHEREAS, the STATE and CITY propose to construct and/or reconstruct sidewalks, ADA ramps and pedestrian crosswalks (described hereinafter as sidewalks) throughout the northwest section of Kalispell, the construction being known as Federal Aid Project No. CM 6799(24); WHEREAS, the construction is bounded on the, west by the Flathead County fairgrounds, on the south by West Idaho Street; on the east by North Main Street (US 93) and on the north by Colorado Street; WHEREAS, the STATE and CITY desire to receive Federal funds to construct the sidewalks; WHEREAS, the STATE and Federal Highway Administration of the U.S. Department of Transportation (FHWA) will not participate in the construction until and unless the CITY agrees to certain conditions, hereinafter set forth; 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 desires to have the construction completed, the CITY deeming it to be a valuable and beneficial consideration; NOW, THEREFORE, in consideration of the terms and conditions contained herein, the parties agree as follows: Section 1: General Provisions 1.1 The STATE, CITY and/or consultant of CITY (Consultant) will utilize the "Community Transportation Enhancement Program Guidelines (CTEP)" as its reference and guide for performing work under this Agreement. The CTEP Guidelines are attached hereto, and incorporated herein by the reference, as Attachment A. The CITY and/or its consultant shall obtain prior approval from the STATE and FHWA in order to deviate from the guidance set forth in the CTEP or in this Agreement. 1.2 The STATE and/or its.consultant have prepared plans and specifications for the project. The CITY has reviewed and approved these plans and specifications prepared by the STATE and/or its consultant. The applicable NMT 1995 Standard Specifications (as amended) will be enforced for the work performed under this Agreement, and is incorporated by reference. - 1 - 1.3 The CITY agrees to require compliance from any contractor with all State and Federal laws and requirements, including workers compensation and civil rights, in the construction agreement. 1.4 The CITY will continue to enforce the ordinances, laws and/or regulations necessary and essential for the operation of the roads and streets covered by this Agreement, including all facilities built hereunder. Section 2: Compliance with Applicable Laws During performance of this Agreement the CITY, for itself, its agents, assignees, and successors in interest, agrees all work shall be performed in accordance with all applicable federal, state and local laws, statutes, rules, and ordinances (hereinafter referred to as the Regulations) as is more fully explained in the attached "Notice", which -is incorporated herein by reference. The 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 the Regulations. Where any information required of the CITY is in the exclusive possession of another party that fails or refuses to furnish this information, the CITY shall so certify to the STATE or the FHWA, setting forth what efforts it has made to obtain the information. Section 3: Roles and Responsibilities of the Parties 3.1 Roles and Responsibilities of the STATE 3.1.1 The STATE shall assign a Project Monitor to assist the CITY and/or its consultant with administration of this Agreement. The role and responsibility of the Project Monitor shall be to: act as the STATE's liaison with the CITY and/or its consultant; monitor the CITY's compliance with this agreement; assist the CITY with the correct testing, inspection, recordkeeping and documentation procedures; act as the STATE's representative for all changes in design or specifications, additions of work, change orders, and contractor claims; and act as the STATE's contracting officer for the processing of progress estimates and consultant payments. The STATE's Project Monitor Cost is anticipated to be one person for period of 2 - 3 months. Roles and Responsibility of Project Monitor are detailed in Attachment B, incorporated herein by this reference. 3.1.2 The STATE's Project Monitor and CITY's Project Development Coordinator shall process consultant payments through the MDT Consultant Design Section. 3.1.3 The STATE and CITY shall be responsible for their respective costs as described in Amendment 1 to Construction Agreement. CM 678R24) dated March 1, 2001 The STATE shall be responsible for all construction engineering costs associated with the project monitor, as set forth in said Amendment 1. -2- 3.1.4 This Agreement shall not affect the existing maintenance responsibilities of the STATE and CITY over the roads and streets affected by this Agreement. 3.1.5 The STATE shall make direct monthly payments to the CITY based on the monthly progress estimates submitted to and approved by the Project Monitor. 3.2 Roles and Responsibilities of the CITY 3.2.1 The CITY shall reimburse the STATE for those costs as described in Amendment 1 to Construction Agreement. CM 6788(24) dated March 1, 2001. The CITY shall be responsible for all construction engineering expenses other than those costs associated with the STATE project monitor. 3.2.2 The CITY shall administer the -construction contract in accordance with the STATE's specifications, as amended. The CITY's Project Development Coordinator will be contracting officer for this project and the liaison with the STATE. The CITY's Project Development Coordinator role and responsibilities are outlined in Attachment C. 3.2.3 The CITY, in accordance with STATE Consultant Design procedures may contract with an engineering firm (hereinafter referred to as Consultant) to perform the construction contract administration. The CITY further agrees that it shall submit the draft Consultant contract to the STATE for review and approval. The CITY shall ensure the work meets all applicable specifications. The CITY shall submit the Consultant's staffing plan and qualifications to the STATE for approval. 3.2.4 The CITY shall review and approve subcontractors selected by the Contractor. 3.2.5 The CITY shall review and approve shop drawings in accordance with the specifications. 3.2.6 The CITY shall approve Mix Designs submitted by the Contractor. 3.2.7 The CITY shall submit to the STATE, prior to advertising for bids, a letter certifying that it has possession of all rights -of -way and easements necessary for the project. 3.2.8 The CITY shall have inspectors measure and document all pay items and quantities in a format provided by the STATE. 3.2.9 The CITY shall have STATE -approved inspectors present to sample and test all materials incorporated into the project to ensure they meet specifications. Labs must be certified by the AASHTO Materials Reference Laboratory or an approved equal agency. -3- 3.2.10 The CITY shall ensure compliance with the Federal Davis -Bacon Act and shall keep the necessary records to document compliance. 3.2.11 The CITY shall notify the STATE before work is started. CITY recognizes that all work is subject to FHWA and STATE inspection and approval at any time. 3.2.12 The costs of any loss or withholding of Federal -Aid participation caused by improper documentation or inspection those costs shall be the sole responsibility of the CITY. 3.2.13 The CITY shall obtain prior written approval from. the STATE for all changes in specifications, addition of work, changes in design and significant changes in quantities. The CITY shall obtain written approval from the STATE for all change orders. 3.2.14 The CITY and Project Monitor will be responsible for approving all payments to the Contractor. 3.2.15 The CITY shall submit to the STATE monthly progress estimates no later than the 25th of every month. The progress estimates shall include the actual bid item quantities and shall be broken down by funding source. 3.2.16 The CITY shall coordinate with the STATE to establish an "accounts receivable" within the MDT Accounting Services Bureau in order for the STATE to bill the CITY its proportion of costs associated with this Agreement. 3.2.17 The CITY, with FHWA and STATE concurrence, reserves the right to initiate cost containment controls by reducing the "Scope of Work." 3.2.18 The CITY shall submit to the STATE monthly bills from its consultant for its allowable construction engineering services. The CITY shall track these bills until the maximum identified in this Agreement is reached. The STATE shall withhold 5% of the total Consultant's fee until the final project documentation is submitted and accepted. 3.2.19 The CITY shall submit to the STATE within 60 days of final project acceptance a final estimate and all final project documentation. 3.2.20 The CITY shall furnish the STATE with a set of As -Built plans at the conclusion of the project. 3.2.21 The CITY shall maintain or cause to maintain all sidewalks constructed as a part of the project. Section 4: Indemnification and Hold Harmless -4- The CITY shall defend, indemnify and hold harmless the STATE, its employees and its agents, from and against any and all claims, liabilities, demands, causes of action, and judgments, including the costs of defense and reasonable attorney fees, arising in favor of or asserted by third parties on account of damage to property, personal injury or death, or damage, as the result, in whole or in part, of the negligent acts or omissions or willful misconduct of the CITY, its employees, agents, contractors or subcontractors in the construction or maintenance of this project, or arising out of or resulting from goods or rights to intellectual property provided or omissions of services or in any way resulting from the acts or omissions of the CITY and/or its agents, employees, contractors, subcontractors or other representatives under this or a subsequent contract. Section 5: Records and Audits The CITY agrees to maintain records of the activities, including financial records, covered by this Agreement for a period of three (3) years; -and to allow access to them by STATE and the Legislative Auditor as may be necessary for legislative audit and analysis purposes in determining compliance with the terms of this Agreement, as required by §5-13-304, Montana Code Annotated. This Agreement may be terminated by STATE upon any refusal of CITY to allow access to records referred to above. The STATE may, at any reasonable time, audit all records, reports, and other documents that the CITY maintains under or in the course of this Agreement to ensure compliance with its terms and conditions. Section 6: Project Monitoring and Access for .Inspection and Monitoring The STATE or its agents may monitor and inspect all phases and aspects of the CITY's performance to determine compliance with this Agreement, and other technical and administrative requirements in this Agreement, including the adequacy of records and accounts. The STATE may present specific areas of concern to the CITY providing the CITY the opportunity to better accomplish the goals and objectives of the Agreement and its conditions. Section 7: Failure to Comply If the CITY fails to comply with the terms and conditions of this Agreement, or reasonable directives from the STATE, or the CITY's performance under this contract fails to conform to the specifications, the STATE may terminate the Agreement, refuse disbursement of further funds under the Agreement, and seek reimbursement of funds already disbursed to CITY. Section 8: Montana Law and Venue Any action or judicial proceeding for enforcement of the terms of this Agreement shall be instituted in the courts of Montana and shall be governed by the laws of Montana. The only venue will be in the First Judicial District, Lewis and Clark County, Montana. Section 9: Effective Date -5- The effective date of this contract is the date of the last signature of the parties. IN WITNESS WHEREOF, the Director of Transportation or his authorized representative has signed on behalf of the state of Montana and the Mayor of the City of Kalispell on behalf of the City of Kalispell has signed and affixed hereto the seal of the City. STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION t t By ti 2003 �el Marshik Date Engineer— Pightxfa1re and Fnoina.-rina nivicinn APPROVED FOR LEGAI APPROVED FOR CIVIL MDT Civil Rights Bureau Local Agency Official 2003 Mayor, City of Kalispell Date I, Clerk of the CITY of KALISPELL, do hereby certify that the above -mentioned agreement was regularly adopted by the CITY COUNCIL at a meeting thereof held on the day of , 2003, and that the COUNCIL authorized the MAYOR to sign this agreement on behalf of said COUNCIL. [Official Seal] CITY Clerk NOTICE 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 26, as they may be amended (hereafter referred to as the Regulations), which are incorporated by reference and made a part of this Agreement, even though 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 26.5. (3) Solicitations for SubcontractsIncludin Procurement 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 procurement 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: The 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 State 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, State 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: The 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. The 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 the 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, The 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) The City will comply with all regulations relative to implementation of the AMERICANS WITH DISABILITIES ACT. (2) The City will incorporate or communicate the intent of the following statement in all publications, announcements, video recordings, course offerings or other program outputs: "The 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 §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. AMENDMENT NUMBER 1 to CM 6799(24) — SIDEWALKS - KALISPELL BETWEEN THE MONTANA DEPARTMENT OF TRANSPORTATION F. V 0111 THE CITY OF KALISPELL The undersigned parties, the City of Kalispell (Local Agency) and the Montana Department of Transportation (MDT), hereby agree and acknowledge that the Sidewalks — Kalispell Agreement, entered into March 1, 2001, is amended as follows: 1) Third Whereas, Page 1 of the original agreement is replaced with the following: WHEREAS, this project is eligible for up to $605,314 of federal and necessary matching funds under the Montana Air & Congestion Initiative (MACI) — Guaranteed Program; and, 2) Sixth Whereas, Page I of the original agreement is replaced with the following: WHEREAS, the financial participation will be 86.58% federal and 13.42% Local AbencylState for the project development, plan review, construction bid package development, construction and construction engineering (when applicable); and 3) Seventh Whereas, Page 1 of the original agreement is replaced with the following: WHEREAS, the State has estimated the total monetary cost of this project to be $699,138 which includes all project development, plan review, construction bid package development, construction and construction engineering costs. The state will provide up to a maximum of $605,314 (86.58%o) in MACI-Discretionary Program funds; and 4) Item G.2, Page 3, first sentence of the original agreement is replaced with: In the event that costs exceed the maximum $605,314 federal funds available for this project, the state will bill the Local Agency, at most monthly, for the additional costs required to complete the project. 5) Add Item J, Project Funding, Page 4, which is: The project costs broken out by phase are: Preliminary Engineering $ 83,034 Construction $ 614,104 Construction Engineering $ 2,000* Total Federal funds State funds Local funds $699,138.00 $605,314.00 $5,851.00 $87,973.00** * The Local Agency will perform all/most of the Construction Engineering activities. This amount will. be provided for MDT charges associated with providing a Project Monitor to oversee the Local Agency's Construction Engineering activities. **This amount is 13.42%© of $607,682, (original amount of funds available for this project) plus $6,422 (difference between the States' Engineers Estimate and the awarded low bid for constructing the project). The agreement between the City of Kalispell and MDT executed March 1, 2001, as amended herein, constitute the entire agreement between the parties and no statement, promises or inducements made by either party, or agents of either party, which are not contained in written agreement shall be binding or valid. This amendment is necessary to reflect the $91,456 shortfall in MACI — Discretionary Program funds being available to implement the project. All other terms, conditions, requirements, and specifications remain as stated in the original agreement. IN WITNESS WHEREOF, the Director of Transportation or his authorized representative has hereunto subscribed his name on behalf of the State of Montana and the CITY MANAGER on behalf of the Local Agency, has subscribed his/her name and affixed hereto the seal of said Local Agency. DATED this / day of C� , 2003 STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION Dave Gait of Transportation BY 7 ATTEST M. Marshik, P.E. i f Engineer, Engineering Division Theresa White City Clerk Local Agency Official i BY Chris Kukulski APPROVED FOR/LEGAL CONTENT Glen Neier, Kalispell City Attorney City Manager G6'r Project Monitor Roles and Responsibilities 1. EPM, Tech 5, or CE III Level individual 2. Assigned to function as liaison and to monitor the City/Consultant activities. 3. To ensure MDT's policies and procedures are being followed and the plans and specification are being adhered to. 4. Will be available to assist the City/Consultant in times of need. 5. Provide City/Consultant with all necessary or helpful MDT references (Construction Manual, Materials Manual, Office Manual, etc.) 6. Assist City/Consultant in Establishing guidelines and channels for timely paper flow of all project information. 7. Participate in Preconstruction conference. 8. Will not direct the contractor, but will ensure contract compliance by both the City/Consultant and the contractor. 9. Review and recommend approval of all Consultant payments and Consultant contract changes. 10. Provide and review the use of all MDT forms used in construction administration. 11. Provide guidance with the proper and acceptable reporting and record keeping of all individual contract items. 12. All contractor claims will be submitted directly to the City and PM. They will decide the City/Consultant's role in responding. PM will discuss all claims with the District Construction Engineer. 13. Will determine when a design error or omission has been made and working with the City to determine validity, responsibility and response. 1.4. Will review the City/Consultant final estimate in detail ensuring all changes and costs are justified and documented. 15. Will observe the City/Consultant's administration of the contract throughout the proj ect. 16. Provide guidance to the City/Consultant for all inspection and random checks of Contractor's staking and layout. 17. Will provide oversight of the City/Consultant's materials, sampling, testing, and reporting to ensure compliance with required procedures: QA/QC is followed Sampling Frequency i Sampling procedure Testing procedure Materials certification 18. Shall ensure mix designs are submitted and approved by MDT. 19. During on -site inspections, the PM must remember it is the City/Consultant's responsibility to administer the contract and should not deal directly with the contractor. 20. Will provide City/Consultant with assistance in interpretation of MDT policies and procedures. 21. Will review the City/Consultant's work and voice and concerns and issues discovered. 22. Will provide direction and support to the City/Consultant to ensure proper and adequate documentation. 23. Will review and approve and submit Contractor progress estimates submitted by the City/Consultant. r-rRcf-r City Project Development Coordinator Roles and Responsibilities 1. Be employed by the City Public Works Department. 2. Keep accurate records of all direct costs associated with the project. 3. Provide monthly cost estimates for all project related items, including the final. 4. Ensure the City and its consultants, in accordance with State and Federal laws and regulations governing Federal -aid highway projects, will perform all project activities. S. Follow the State project development processes and procedures. 6. Keep the State informed and involved as the project is developed. 7. Ensure compliance with all State and Federal nondiscrimination statutes, including provisions of Americans with Disabilities Act (ADA) and ADA Accessibilities Guidelines, 8. Provide a copy of its workers' compensation coverage certificate and liability insurance, to be attached to the contract. 9. Responsible for contract compliance by the contractor, inspections of contractor's work, material testing & compliance and pay item documentation.