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06. Utilities Agreement for US Hwy 93 Southy of &alispell Public Works Department Post office Box 1997- Kalispell, Montana 59903-1997 - Telephone ( 06)758,-7720, Fa_N (406)758-7831 REPORT TO: Mayor and City Council FROM: Janes C. Hansz, P.E., Director of .Public Works SUBJECT: Utility Agreement for US 93 South - City Utility Construction. MEETING DATE: December 15, 2003 BACKGROUND: For many years, MDT has been acquiring right of way and designing improvements to US 93 south of Kalispell from Ashley Creek into town at Twelfth Street. This project has finally reached the point where a construction contract will be let in January of 2004. Prior to this, there needs to be in place three agreements between. the City and MDT. One of these necessary agreements is the utility Agreement for construction of new City utilities and relocation of existing utilities in conjunction with the highway project. Attached is a copy of the US 93 South Utility Agreement. This agreement specifies the costs and establishes the means of payment for water and sewer improvements that are referred to but not defined in the Cooperative Agreement. It supplements but does not duplicate any of the terms of the other agreements. City water and sewer utility extensions and replacements are delineated, and their construction costs are estimated to be $1,855,263.00_ In addition to this cost, current MDT policy requires the City to pay an additional 8% for mobilization and 8% for Traffic Control. Public Works and the City Attorney have reviewed the agreement. In addition to this agreement, the Cooperative Agreement and the Construction Agreement will be dealt with separately. RECOMMENDATION: Approve MDT / City Utility Agreement for the US 93 South Project. ACTION REQUESTED: AT CITY COUNCIL MEETING OF DECEMBER 15 — MOTION TO APPROVE UTILITYAGREEMENT AW 5-3(71)103F[l0121, FISCAL EFFECTS: Depending on the final result of the MDT bid letting process, expenditures of water and sewer funds totaling approximately $2,152,105.00. Additional expenditures will be made for storm drainage improvements and associated cost for an estimated total cost of $2,896,490.00. December I % 2003 MDT - City US 93 South Utility Agreement.doc ALTERNATIVES: As suggested by the City Council Respectfully submitted, C. Hansz, P_E, Chris A. Kukulski 3r of Public Wor s I )- y Engineer City Manager Report compiled December 11, 2003 Attachment: Utiltiy Agreement Deeember 15, 2003 MDT - City US 93 South Utility Agreetnent.doc STATE OF MONTANA DEPARTMENT OF TRANSPORTATION UTILITIES AGREEMENT This Agreement, entered into this day of , 20� between the STATE OF MONTANA, acting through its Department of Transportation, hereinafter called the "STATE", and the City of Kalispell, owner of the utility, hereinafter called the "OWNER". WITNESSETH: WHEREAS, the STATE proposes to construct a public highway to be known as NH 5-3(71)103 F [1012] in Flathead County, State of Montana and designated as Highway Project, Somers — Kalispell (Ashley Creek — Kalispell) portion), as shown on plans submitted to OWNER, and WHEREAS, said public highway is to be constructed over and near the present highway right-of-way known as Somers -Kalispell (Ashley Creek - Kalispell) portion, where certain water and sewer facilities under the jurisdiction of OWNER are in conflict with the construction of the public highway, as shown by "Exhibit A" and WHEREAS, STATE AND OWNER agree that it is necessary and in the public interest of all parties that some of the existing facilities be adjusted, repaired, replaced and relocated, and WHEREAS, STATE AND OWNER agree that the construction of the public highway and all of the work, including adjustment, replacement, repair and relocation of certain existing and betterment water and sewer facilities be included in the contract entered into by STATE and a private highway contractor, and that the manner of performing the construction referred to in this Agreement is in the best interest of the STATE and OWNER. NOW THEREFORE, in consideration of the mutual obligations contained herein, STATE and OWNER AGREE that: 1. STATE will let a project for the construction of said public highway including the work covered in this Agreement as shown by "Exhibit A." 2. Pursuant to the authority granted to OWNER by the laws of Montana, OWNER grants to STATE the authority to adjust, replace, repair and relocate those facilities under the jurisdiction of OWNER which presently occupy part of the proposed right-of-way. 3. All construction performed pursuant to this Agreement shall be done in accordance with the then current Standard Specifications for Road and Bridge Construction, Montana Public Works Standard Specifications and the Plans, Specifications and Special Provisions of said construction or improvements for the project prepared by OWNER, all of which are by this reference incorporated and made a part of this Agreement. 4. The adjustments to the facilities referred to in this Agreement cover only that segment of the water and sewer system of OWNER directly affected by the construction and betterments of said public highway and STATE and OWNER will determine which adjustments to facilities of OWNER are necessary, and the STATE shall construct the most economical type of facilities in the new location that will meet the same service requirements of the old facilities in the old location. S. The STATE will perform construction staking for the water and sewer extension and replacements. The STATE'S contractor will chlorinate and pressure test the new water line as per the special provisions. The OWNER will provide for adequate inspection of the water and sewer installations, either by providing qualified personnel to inspect the work and maintain adequate records in accordance with STATE procedures, or to pay for the cost of such 11 inspection work and record keeping if provided by the STATE as part of this contract. OWNER will pay the STATE for the actual cost of work accomplished on the OWNER'S water and sewer lines based on contract bid prices. An additional 8% will be applied to the OWNER'S share to cover the cost of Traffic Control and an additional 8% will be applied to the OWNER'S share to cover the cost of Mobilization to the billing of construction costs 6. The total estimated cost of the adjustments at this time is $1,884,317.00. Proportionate participation is: STATE $29,054.00 and OWNER $1,855,263.00 and an additional $148,421.00 (8%) charge for Traffic Control and an additional $148,421.00 (8%) for Mobilization. The total estimated cost to OWNER including traffic control and mobilization is $ 2,152,105.00. A copy of a cost estimate and plans indicating facility adjustments are hereby attached as "Exhibit A" and made a part of this Agreement. The STATE'S obligation under this Agreement shall be in accordance with all applicable State and Federal laws in existence on the date of execution of this Agreement. 7. By State Statute, STATE will not reimburse OWNER for engineering costs for designing, locating, staking, inspecting or any other incidental costs for engineering. 8. The adjustments agreed to in Item No. 6 above are based on the STATE paying 75% of relocation costs, excepting betterments, if any, where facilities occupy public road or street rights -of -way. OWNER'S share to be billed by the STATE and paid by the OWNER in accordance with the STATE'S Accounting Bureau billing procedure. The billing by the STATES Accounting Bureau will be for the OWNER'S share of actual construction cost based on actual bills as furnished by the contractor for all water and sewer line project work including the 8% charge for Traffic Control and 8% charge for Mobilization. Progress billing by the STATE will be applied for all contractor work performed on water and sanitary sewer facilities and paid by OWNER on this proj ect. 9. The award of the contract including the highway construction and OWNER water and sewer line relocation will be based on the successful bidder of the combined contract, as determined and accepted by STATE. 10. OWNER agrees to cooperate fully with the STATE in all aspects of the work contemplated by this Agreement. It. OWNER acknowledges that it has reviewed the plans for the proposed construction of the facilities covered by this Agreement. 12. STATE and OWNER agree that when the construction encompassed by this Agreement is completed and accepted by STATE and concurred in by OWNER all responsibility of STATE ceases. 13. Records of the OWNER pertaining to this project will be subject to inspection at any time by representatives of the STATE, including the legislative auditor and fiscal analyst, and the Federal Highway Administration. Such records must be retained for a period of not less than three years from the date of final payment. 14. Inspection for all phases of work on OWNER'S facility will be provided by OWNER or OWNER will pay for the cost of such inspection and record keeping if provided by the STATE. Contact, questions, or discussions about contractor work will be directed to the STATE Project Manager. No direct contact shall occur between OWNER and Contractor. 15, This Agreement is subject to the terms and provisions of Volume 23 Code of Federal Regulations, Part 645, Subpart A and B, and subsequent amendments, Title 48 Code of Federal Regulations in existence on the date of execution of this Agreement, and said Code of Federal Regulations are hereby incorporated in and made a part of this Agreement by reference to the extent that is applicable to this Agreement and not inconsistent therewith. 1 6. NONDISCRIMINATION If the OWNER enters into a contract or agreement with a contractor to perform any of the work which the OWNER is required to perform under the terms of this agreement, the OWNER, for itself, its assigns, and successors in interest, agrees that it will not discriminate in the choice of contractors and will include all the nondiscrimination provisions set forth in Exhibit "B" attached hereto and made a part hereof, in any such contract or agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. CITY OF KALISPELL STATE OF MONTANA DEPARTMENT OF TRANSPORTATION Authorized signature ATTEST: By: Date: APPROVED AS T AND CONTENT By: City Attorney Date: ? Approved MDT Legal Counsel And Civil Rights Bureau WFS:kap Authorized Signature EXHIBIT "B" NOTICE TO CONTRACTOR During the performance of this Agreement, the Contractor, for itself, its assignees and successors in interest, agrees as follows: A) COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1.964 FOR FEDERAL, -AID CONTRACTS (1) : The contractor 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 part of this Agreement, even though only State funding is here involved. (2) Nondiscrimination: The Contractor, 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 Contractor shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5. (3) Solicitations fbi Subcontracts, IDcluding-Procurements, of Materials, and Equipment: In all solicitations, whether by competitive bidding or negotiation by the Contractor 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 Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination. (4) Information and Reports: The Contractor 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 Department or the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with Regulations or directives. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the Department of the FHWA as requested, setting forth what efforts it has made to obtain the information. (5) Sanctions for Noncomnliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the Department may impose sanctions as it or the FHWA determines appropriate, including, but not limited to; (a) withholding payments to the Contractor under the Agreement until the contractor complies, and/or (b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incomoration of Provisions: The Contractor 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 Contractor 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 the Contractor is sued or is threatened with litigation by a subcontractor or supplier as a result of such direction, the Contractor may request the Department to enter into the litigation to protect the interests of the State, and, in addition, the Contractor 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, 49-2-207, MCA In accordance with 49-3-207, MCA, the Contractor 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 THE AMERICANS WITH DISABILITIES ACT (ADA) (1) The Contractor will comply with all regulations relative to implementation of the AMERICANS WITH DISABILITIES ACT (ADA). (2) The Contractor will incorporate or communicate the intent of the following statement in all publications, announcements, video recordings, course offerings or other program outputs: "The Contractor will provide reasonable accommodations for any known disability that may interfere with a person participating in any service, program or activity offered by the Contractor. In the case of documents, recordings, or verbal presentations, alternative accessible formats will be provided. For further information call the Contractor." (3) All video recordings produced and/or created under this 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 Contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: "The Contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT -assisted contracts. 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