B3. Construction Agreements201 1 s'Avenue East, P.O. Box 1997, Kalispell, MT 59903-Plwne (406)758-7720
www.kalispell.coni
To: Douglas Russell, City Manager .�
From: Susie Turner, P.E., Public Works Director
Re: Construction Agreement —11' Ave W and I" Ave E, Federal Aid Project No. UPP 6799(34)
Date: February 27, 2015
Council Meeting Date: March 16, 2015
The Montana Department of Transportation plans to construct the Kalispell By -Pass and Four Mile Drive
projects designated as sections:
• NH -MT 15 (108), KBP-US 2 to Three Mile, UPN 2038017
• NH -MT 15 (109), KBP- Three Mile to Reserve Loop, UPN 2038018
• STPU 6735(5), Four Mile Drive -West Section, UPN 8166001
• STPU 6735(6), Four Mile Drive -East Section, UPN 8166002
The construction projects are funded through State and Federal programs and do not require expenditure of
City funds.
As some of the construction improvements will be within the City limits or have the potential to be annexed
into the City, 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 and Pedestrian/Bicycle Path
maintenance, signage requirement and enforcement, and the operation and maintenance of luminaire
lighting.
Public Works and the City Attorney have reviewed the agreement and have found it to be satisfactory.
ACTION REQUESTED: Motion to approve the Construction Agreements for Federal Aid Projects:
• NH -MT 15 (108), KBP-US 2 to Three Mile
• NH -MT 15 (109), KBP- Three Mile to Reserve Loop
• STPU 6735(5), Four Mile Drive -West Section
• STPU 6735(6), Four Mile Drive -East Section
FISCAL EFFECTS: There are no construction costs to the City of Kalispell. All construction costs are
funded through the Montana Department of Transportation State and Federal Programs.
ALTERNATIVES: As suggested by City Council
Attachment: 3 Agreements and Copies (please note the KBP projects are included in one Agreement)
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" or
"Department", and the City of Kalispell, a Montana Municipality, hereinafter called the
"City".
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 TH21
CITY OF Kalispell, MONTANA.
I. WHEREAS, the State 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. STPU 6735(5), also known as
Four Mile Drive -West Section, and
WHEREAS, the construction will be over and upon Route U-6735 (Four Mile
Drive) in the City of Kalispell, beginning at approximately RP 0.8 and extending
westerly approximately 0.196 mi to RP 1.0 (Intersection of Four Mile Drive/Stillwater
Road) and also including a part of Stillwater Road, beginning at the intersection and
extending approximately 500 feet north, and
WHEREAS, the State desires to receive Federal funds to construct the highway,
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 60-2-1101 MCA, and
WHEREAS. the City desires to have the construction done, the City deeming it to
be a valuable and beneficial consideration,
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PERFORMAT STATE EXPENSE, THE STATE AGREES TO DESIGN THE PROJECT, LET IT TO
CONTRACT AND ADMINISTER THE CONTRACT FOR CONSTRUCTION AND WILL
ALL THE REMAINING FUNCTIONSAND 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 PARTHIS AGREEMENT ARE LIMITED TO THE PROJECT AREA NOTED IN THE
TY
- - • :•
(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
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modifications in the traffic control devices as may be in the public interest from a safety
and convenience standpoint.
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(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,
City.
(H) All signs required to enforce City ordinances shall be maintained by the
(1) Sidewalk Maintenance.
(1) Upon completion of and in consideration for the project, and at no
additional cost to the State, the City agrees to assume full responsibility for and control
of maintenance of the sidewalks bordering the project, except that the State is
responsible for the maintenance of sidewalks and pedestrian/bike facilities on bridges,
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overpasses and related facilities. All sidewalks being constructed by this project fall
under the Department's maintenance responsibility, except for the segments of sidewalk
being constructed adjacent to Four Mile Drive west of the bypass interchange up to
Stillwater Road (specifically approximately Station 2+40 to Station 3+80 along Four Mile
Drive). The Department will be responsible for the maintenance of this specified section
of side walk as well, unless and until the City agrees to take over maintenance of this
specific sidewalk. If/when that occurs, the City will become responsible to maintain or
cause to be maintained the sidewalks noted above. The City may, in its discretion,
enforce state laws and its 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.
(a) For purposes of this agreement, "Maintenance " means:
removal of and/or surface repair of any obstacles or impediment to the safe and efficient
use of the sidewalk by pedestrians, including removal of snow and ice, repair of
chipped, fractured, or broken walk or curb from any cause including but not limited to
frost, landscaping (tree roots), or permitted encroachments.
(b) The City has the authority and responsibility to issue
encroachment permits to private parties to allow for the placement or installation of
encroachments on the sidewalk within the right of way according to the terms and
conditions established by the City by ordinance or rule subject only to insuring that any
permit issued does not in any way interfere with the use of the vehicle travel lanes nor
with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the
responsibility is the authority and duty to remove any unpermitted encroachment.
(c) The City may by ordinance or resolution establish parking
rules and regulations, including installation of metered parking,
(d) The City may by ordinance or regulation impose landscaping
and/or sidewalk construction responsibilities on property owners whose property abuts
the state facility provided that any new sidewalk construction completed under the City
authority on the highway right of way meets or exceeds the specifications and standards
of the State including compliance with any state or federal handicapped access laws
and regulations.
(e) For purposes of this agreement, "Maintenance" does not
mean repair or replacement of any sidewalk segment six feet or more in continuous
length which cannot be repaired without complete removal and replacement of the
existing walk and subsurface base. Upon notice that a segment of sidewalk must be
replaced, the State will take whatever steps necessary to complete the replacement
within 120 days, (weather permitting), subject only to the temporary fix referred to in..
1(2) below.
(f) In the event of a disagreement as to whether a sidewalk
segment can be repaired or must be replaced, the parties agree that the issue will be
resolved by agreement by the Public Works Director or her designee and the
S
Department of Transportation Maintenance Administrator or his designee. If necessary
the Director of the Department of Transportation and the City Manager may be asked to
resolve the issue.
(2) The parties agree that they have a joint and mutual interest to build
and maintain the sidewalks in a safe manner. To that end there is a joint responsibility
to inspect the sidewalks on a periodic basis, at least annually to discover any potential
sections that require repair or replacement. Regardless of who identifies an area of
potential harm, they shall immediately notify the other party to the agreement and shall
jointly take whatever steps necessary to warn the users of the walk until such time as
repair or replacement can be completed. In the event replacement is deemed
necessary, temporary repairs may be performed until such time as reconstruction can
be programmed and completed. In the event replacement or reconstruction is required,
the State shall use any eligible state or federal funding to perform the work and upon
completion notify the City after which the City once again is responsible for future
maintenance.
(3) City agrees that the maintenance responsibility is in effect until the
sidewalks are reconstructed as provided in paragraph (e), unless otherwise agreed to
by the parties.
(4) If at any time, the City believes that the useful life of any of these
sidewalks has come to an end - i.e., that complete reconstruction of these sidewalks 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 complete 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 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. In the event of a disagreement as to whether complete reconstruction is the
most reasonable economic alternative for continued maintenance or repair of a sidewalk
the parties agree that the issue will be resolved by agreement by the Public Works
Director or her designee and the Department of Transportation Maintenance
Administrator or his designee. If necessary, the Director of the Department of
Transportation and the City Manager may be asked to resolve the issue.
(5) If, during its inspections, the City encounters a condition on the
sidewalk that it believes is caused by a design or construction defect or by the negligent
act or omission of a State agent or employee, the City will immediately notify the State
of the existence and location of the defect and provide the State with a detailed
explanation of the engineering basis for its belief that the condition is caused by a
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design or construction defect or the negligent act or omission of a State agent or
employee.
(6) The State agrees to 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 incurred by the City in the defense
thereof) to them arising in favor of or asserted by any person or entity on account of
personal injury, death or damage to property arising solely out of, or in connection with,
a defect in the State's design or construction of the project (including, but not limited to,
a defect in the State's construction or design of the sidewalks bordering the project as
described above) or from the negligent or intentional act of Department employees that
in any way interfere with or damage the maintenance work of the City.
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, and losses (including costs and attorney's fees incurred by the
State in the defense thereof) to them arising in favor of or asserted by any person or
entity (including, but not limited to, the City) on account of personal injury, death or
damage to property arising, in whole or in part, out of, or in connection with, the
maintenance of the subject sidewalks.
(7) 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.
(J) The City will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
_11. DURING THE PERFORMANCE OF THIS AGREEMENT, THE CITY, FOR
.-TSELF, ITS ASSIGNEES AND SUCCESSORS IN INTEREST, AGREES AS
._OLLOWS:
(1) Compliance with Regulations- The City (hereinafter includes consultant) will
comply with all Acts and Regulations of the United States and the State of
Montana relative to Non -Discrimination in Federally and State -assisted programs
of the U.S. Department of Transportation and the State of Montana, as they may
be amended from time to time, which are herein incorporated by reference and
made a part of this contract.
(2) Non-discrimination:
a, The City, with regard to the work performed by it during the contract, will
not discriminate, directly or indirectly, on the grounds of any of the
protected classes in the selection and retention of subcontractors,
including procurements of materials and leases of equipment,
employment, and all other activities being performed under this
contract/agreement.
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b. City will provide notice to its employees and the members of the public
that it serves that will include the following:
i. Statement that City does not discriminate of the grounds of any
protected classes.
ii. Statement that City will provide employees and members of the
public that it serves with reasonable accommodations for any
known disability, upon request, pursuant to the Americans with
Disabilities Act as Amended (ADA).
iii. Contact information for City's representative tasked with handling
non-discrimination complaints and providing reasonable
accommodations under the ADA.
iv. Information on how to request information in alternative accessible
formats.
c. In accordance with Mont. Code Ann. § 49-3-207, City will include a
provision, in all of its hiring/subcontracting notices, that all
hiring/subcontracting will be on the basis of merit and qualifications and
that City does not discriminate on the grounds of any protected class.
(3) Participation by Disadvantaged Business Enterprises (DBEs)-.
a. If the City receives federal financial assistance as part of this
contract/agreement, the City will make all reasonable efforts to utilize DBE
firms certified by the Department for its subcontracting services. The list of
all currently certified DBE firms is located on the Department website at
mdt.mt.gov/business/contracting/civil/dbe.shtml
b. By signing this agreement the City assures that:
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. Failure by the
contractor 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.
c. City must include the above assurance in each contract/agreement the
City enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment:
In all solicitations, either by competitive bidding, or negotiation, made by the City
for work to be performed under a subcontract, including procurements of
materials, or leases of equipment, each potential subcontractor or supplier will be
notified by the City of the City's obligation under this contract/agreement and all
Acts and Regulations of the United States and the State of Montana related to
Non -Discrimination.
(5) information and Reports: The City will provide all information and reports
required by the Acts, Regulations, and directives issued pursuant thereto and will
permit access to its books, records, accounts, other sources of information and
its facilities as may be determined by the Department or relevant US DOT
Administration to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of a contractor is
in the exclusive possession of another who fails or refuses to furnish the
information, the City will so certify to the Department or relevant US DOT
Administration, as appropriate, and will set forth what efforts it has made to
obtain the information.
(6) Sanctions for Noncompliance: In the event of a City's noncompliance with the
Non-discrimination provisions of this contract/agreement, the Department will
impose such sanctions as it or the relevant US DOT Administration may
determine to be appropriate, including, but not limited to:
a. Withholding payments to the City under the contract/agreement until the
City complies; and/or
b. Cancelling, terminating, or suspending the contract/agreement, in whole or
in part.
(7) Pertinent Non -Discrimination Authorities°
During the performance of this contract/agreement, the City, for itself, its assignees,
and successor in interest, agrees to comply with the following non-discrimination
statues and authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C, § 200d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR
Part 21 J
- The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaces or
whose property has been acquired because of Federal or Federal -aid programs
and projects);
- Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits
discrimination on the basis of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as
amended, (prohibits discrimination on the basis of disability); and 49 CFR Part
2 7 ;
- The Age Discrimination Act of 1975, as amended, (42 U.S.G. § 6101 et seq.),
(prohibits discrimination on the basis of age);
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- Airport and Airways Improvement Act of 1982, (49 U.S.C. § 471, Section 47123),
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origin, or sex);
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coverage, and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients, and
contractors, whether such programs or activities are Federally funded or not);
- Titles 11 and III of the Americas with Disabilities Act, which prohibits discrimination
on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing
entities (42 U.S.C. §§ 12131-12189) as implemented by Department of
Transportation regulations at 49 CFR parts 37 and 38;
- The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. §
47123) (prohibits discrimination on the basis of race, color, national origin, and
sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-income Populations, which prevents discrimination
against minority populations by discouraging programs, policies, and activities
with disproportionately high and adverse human health or environmental effects
on minority and low-income populations-,
Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of Limited English Proficiency (LEP). To ensure
compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to
74100);
- Title IX of the Education Amendments of 1972, as amended, which prohibits you
from discriminating because of sex in education programs or activities (20 U.S.C.
§ 1681 et seq.).
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State
- Mont. Code Ann. § 49-3-205 Governmental services;
- Mont. Code Ann. § 49-3-206 Distribution of governmental funds,
- Mont. Code Ann, § 49-3-207 Nondiscrimination provision in all public contracts.
(8) Incorporation of Provisions: The City will include the provisions of paragraph one
through seven in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Acts, the Regulations and directives
issued pursuant thereto. The City will take action with respect to any subcontract
or procurement as the Department or the relevant US DOT Administration may
direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, that if the City becomes involved in, or is threatened
with litigation by a subcontractor, or supplier because of such direction, the City
may request the Department to enter into any litigation to protect the interests of
the Department. In addition, the City may request the United States to enter into
the litigation to protect the interests of the United States.
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IN WITNESS WHEREOF, the State'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,
By
Administrator - Engineering Division
By
Approved fir Legal Content
F-11111119�115
I A,
APPROVED AS To FORW-
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1, Aimee Brunckhorst, 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
2015; and that the City Council authorized the City
Manager to sign this agreement on behalf of the City.
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* 20*ON THE APPROACH
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-M 50'ON THE APPROACH TO
A STOP SIGN OR SIGNALIZED
INTERSECTION,
CROSSWALK
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As Defined by
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CITY
CONSTRUCTION AGTEEMENT
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" or
"Department", and the City of Kalispell, a Montana Municipality, hereinafter called the
"City"
n
PURPOSETHE OF - O SET FORTH THE RESPONSIBILITIES
AND DUTIES OF . RESPECT TO A FEDERALr
PROJECTHIGHWAY AND ADJACENT PEDESTRIAN FACILITIES
CITY OF .- •
I. WHEREAS, the State proposes to construct and/or reconstruct a certain highway
AND ADJACENT PEDESTRIAN FACILITIES (Shared Use Path) in and through the
City, the construction being known as Federal Aid Project No. STPU 6735(6), also
known as Four Mile Drive -East Section, and
WHEREAS, the construction will be over and upon Route U-6735 (Four Mlle
Drive) in the City of Kalispell, beginning at approximately RP 0.5 and extending
westerly approximately 0.3 mi to RP 0.8, and
WHEREAS, the State desires to receive Federal funds to construct the highway,
TIN
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,
#. •
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(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.
2
(7) Prohibiting parallel parking on the highway; and
(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.
City.
(H) All signs required to enforce City ordinances shall be maintained by the
(1) Pedestrian/Bicycle (Shared Use Path) Maintenance
(1) Upon completion of and in consideration for the project, and at no
additional cost to the State, the City agrees to assume full responsibility for and control
of maintenance of the shared use path bordering the project. Specifically, the City will
maintain or cause to be maintained the shared use path adjacent to the north side of
Four Mile Drive from Station 5+80 to Station 9+90. The City may, in its discretion,
enforce state laws and its local ordinances, if any, to recover all costs associated with
its maintenance activities from persons or entities who own property adjacent to the
3
shared use path and/or who receive the benefit of the maintenance performed.
(a) For purposes of this agreement, "Maintenance " means:
removal of and/or surface repair of any obstacles or impediment to the safe and efficient
use of the shared use path by pedestrians, including removal of snow and ice, repair of
the facility from any cause including but not limited to frost, landscaping (tree roots), or
permitted encroachments.
(6) The State agrees to 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 incurred by the City in the defense
thereof) to them arising in favor of or asserted by any person or entity on account of
personal injury, death or damage to property arising solely out of, or in connection with,
a defect in the State's design or construction of the project or from the negligent or
intentional act of Department employees that in any way interfere with or damage the
maintenance work of the City.
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, and losses (including costs and attorney's fees incurred by the
State in the defense thereof) to them arising in favor of or asserted by any person or
entity (including, but not limited to, the City) on account of personal injury, death or
damage to property arising, in whole or in part, out of, or in connection with, the
maintenance of the subject shared use path
(7) 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.
(J) The City will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
DURING PERFORMANCE AGREEMENT, • i
SUCCESSORSITSELF, ITS ASSIGNEES AND rAGREES
FOLLOWS:
(1) Compliance with Regulations: The City (hereinafter includes consultant) will
comply with all Acts and Regulations of the United States and the State of
Montana relative to Non -Discrimination in Federally and State -assisted programs
of the U.S. Department of Transportation and the State of Montana, as they may
be amended from time to time, which are herein incorporated by reference and
made a part of this contract.
(2) Non-discrimination:
a. The City, with regard to the work performed by it during the contract, will
not discriminate, directly or indirectly, on the grounds of any of the
protected classes in the selection and retention of subcontractors,
including procurements of materials and leases of equipment,
employment, and all other activities being performed under this
contract/agreement.
b. City will provide notice to its employees and the members of the public
that it serves that will include the following:
i. Statement that City does not discriminate of the grounds of any
protected classes.
ii. Statement that City will provide employees and members of the
public that it serves with reasonable accommodations for any
known disability, upon request, pursuant to the Americans with
Disabilities Act as Amended (ADA).
iii. Contact information for City's representative tasked with handling
non-discrimination complaints and providing reasonable
accommodations under the ADA.
iv. Information on how to request information in alternative accessible
formats.
c. In accordance with Mont. Code Ann. § 49-3-207, City will include a
provision, in all of its hiring/subcontracting notices, that all
hiring/subcontracting will be on the basis of merit and qualifications and
that City does not discriminate on the grounds of any protected class.
(3) Participation by Disadvantaged Business Enterprises (DBEs):
a. If the City receives federal financial assistance as part of this
contract/agreement, the City will make all reasonable efforts to utilize DBE
firms certified by the Department for its subcontracting services. The list of
all currently certified DBE firms is located on the Department website at
mdt.mt.gov/business/contracting/civil/dbe.shtml
b. By signing this agreement the City assures that:
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. Failure by the
contractor 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.
c. City must include the above assurance in each contract/agreement the
City enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment:
In all solicitations, either by competitive bidding, or negotiation, made by the City
for work to be performed under a subcontract, including procurements of
materials, or leases of equipment, each potential subcontractor or supplier will be
notified by the City of the City's obligation under this contract/agreement and all
A
Acts and Regulations of the United States and the State of Montana related to
Non -Discrimination.
(5) Information and Reports: The City will provide all information and reports
required by the Acts, Regulations, and directives issued pursuant thereto and will
permit access to its books, records, accounts, other sources of information and
its facilities as may be determined by the Department or relevant US DOT
Administration to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of a contractor is
in the exclusive possession of another who fails or refuses to furnish the
information, the City will so certify to the Department or relevant US DOT
Administration, as appropriate, and will set forth what efforts it has made to
obtain the information.
(6) Sanctions for Noncompliance: In the event of a City's noncompliance with the
Non-discrimination provisions of this contract/agreement, the Department will
impose such sanctions as it or the relevant US DOT Administration may
determine to be appropriate, including, but not limited to:
a. Withholding payments to the City under the contract/agreement until the
City complies; and/or
b. Cancelling, terminating, or suspending the contract/agreement, in whole or
in part.
(7) Pertinent Non -Discrimination Authorities:
During the performance of this contract/agreement, the City, for itself, its assignees,
and successor in interest, agrees to comply with the following non-discrimination
statues and authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 200d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR
Part 21,
- The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaces or
whose property has been acquired because of Federal or Federal -aid programs
and projects);
- Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits
discrimination on the basis of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as
amended, (prohibits discrimination on the basis of disability); and 49 CFR Part
27;
L
- The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.),
(prohibits discrimination on the basis of age);
- Airport and Airways Improvement Act of 1982, (49 U.S.C. § 471, Section 47123),
as amended, (prohibits discrimination based on race, creed, color, national
origin, or sex);
- The Civil Rights Restoration Act of 1987, (PL 100-209), (broadened the scope,
coverage, and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients, and
contractors, whether such programs or activities are Federally funded or not),
- Titles II and III of the Americas with Disabilities Act, which prohibits discrimination
on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing
entities (42 U.S.C. §§ 12131-12189) as implemented by Department of
Transportation regulations at 49 CFR parts 37 and 38;
- The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. §
47123) (prohibits discrimination on the basis of race, color, national origin, and
sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low -Income Populations, which prevents discrimination
against minority populations by discouraging programs, policies, and activities
with disproportionately high and adverse human health or environmental effects
on minority and low-income populations,
Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of Limited English Proficiency (LEP). To ensure
compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to
74100);
7
- Title IX of the Education Amendments of 1972, as amended, which prohibits you
from discriminating because of sex in education programs or activities (20 U.S.C.
§ 1681 et seq.).
State
- Mont. Code Ann. § 49-3-205 Governmental services,
- Mont. Code Ann. § 49-3-206 Distribution of governmental funds;
- Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts.
(8) Incorporation of Provisions: The City will include the provisions of paragraph one
through seven in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Acts, the Regulations and directives
issued pursuant thereto. The City will take action with respect to any subcontract
or procurement as the Department or the relevant US DOT Administration may
direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, that if the City becomes involved in, or is threatened
with litigation by a subcontractor, or supplier because of such direction, the City
may request the Department to enter into any litigation to protect the interests of
the Department. In addition, the City may request the United States to enter into
the litigation to protect the interests of the United States.
.A A- •
_ r - • •,
-
E3
IN WITNESS WHEREOF, the State'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.
M
Administrator - Engineering Division
6.y
4 4-"
Approved f Legal Content
M
RNO =-1
Charley -Harball FCli"Attorney
,2015
Date
IQ•
1, Aimee Brunckhorst, 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 1 2015; and that the City Council authorized the City Manager to
sign this agreement on behalf of the City.
Aimee Brunckhorst, City Clerk
EO
I
20'
3 0'
SIDEWALK
MID -BLOCK CROSSWALK
X INDICATES NO PARKING.
STOPPING,OR STANDI"
ZONES.
* 20'ON THE APPROACH
TO A CROSSWALK.
-X 50'ON THE APPROACH TO
A STOP SIGN OR SIGNALIZED
IVTERSECTION.
CROSSWALK
(MARKED OR UNMARKED)
SIDEWALK
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ul
FIRE HYDRANT
NO PARKING
ZONES
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9
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" or
"Department", and the City of Kalispell, a Montana Municipality, hereinafter called the
"city"
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.
1. WHEREAS, the State 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 -MT 15(108), also known
as KBP-US 2 to Three Mile Drive, and NH 15(109), also known as KBP-Three Mile to
Reserve Loop, and
WHEREAS, the construction will be over and upon Routes N-109 and X-15997,
parts of which are in the City of Kalispell, beginning at approximately RP 3.5
(intersection of Foys Lake Road/Bypass (N-109)) and extending northerly
approximately 3.5 mi to RP 7.0 (intersection of Reserve Loop/Bypass (currently X-
15997, will become part of N-109 when constructed) ), and
WHEREAS, the State desires to receive Federal funds to construct the highway,
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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 60-2-11 O, MCA, and
WHEREAS, the City desires to have the construction done, the City deeming it to
be a valuable and beneficial consideration,
AT 'AGREES DESIGN PROJECT, •
CONTRACT AND ADMINISTER • ' ` •'` CONSTRUCTION AND WILL
PERFORM FUNCTIONS A • DUTIES AND
RESPONSIBILITIESFORTH • .: WHICH THE CITY
AGREES THAT UPON COMPLETION OF THE PROJECT, DEEMING THE
CONSTRUCTION A GOOD AND VALUABLE CONSIDERATION, IT WILL PERFORM
ALL OF THE FUNCTIONSAND DUTIES AND RESPONSIBILITIES SET FORTH
THIS AGREEMENT. THE DUTIES AND RESPONSIBILITIES OF EACH PARTY TO
THIS AGREEMENT ARE LIMITED TO THE PROJECT AREA NOTED IN THE
DESCRIPTION `:•.
(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
1
modifications in the traffic control devices as may be in the public interest from a safety
and convenience standpoint,
(I) Prohibiting parallel parking on the highway; and
(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.
1119�-d ..•• s _• M
(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
(1) Sidewalk Maintenance.
(1) Upon completion of and in consideration for the project, and at no
additional cost to the State, the City agrees to assume full responsibility for and control
of maintenance of the sidewalks bordering the project, except that the State is
responsible for the maintenance of sidewalks and pedestrian/bike facilities on bridges,
IN
overpasses and related facilities. All sidewalks being constructed by this project fall
under the Department's maintenance responsibility, except for the segments of sidewalk
being constructed adjacent to Two Mile Drive past the bypass overpass bridge
(specifically Station 45+80 to Station 47+ 60 west of the bypass and Station 48+20 to
station 50+33 east of the bypass structure). The Department will be responsible for the
maintenance of this specified section of side walk as well, unless and until the City
annexes the adjacent land into the City limits, If/when that occurs, the City will become
responsible to maintain or cause to be maintained the sidewalks noted above. The City
may, in its discretion, enforce state laws and its 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.
(a) For purposes of this agreement, "Maintenance " means'.
removal of and/or surface repair of any obstacles or impediment to the safe and efficient
use of the sidewalk by pedestrians, including removal of snow and ice, repair of
chipped, fractured, or broken walk or curb from any cause including but not limited to
frost, landscaping (tree roots), or permitted encroachments.
(b) The City has the authority and responsibility to issue
encroachment permits to private parties to allow for the placement or installation of
encroachments on the sidewalk within the right of way according to the terms and
conditions established by the City by ordinance or rule subject only to insuring that any
permit issued does not in any way interfere with the use of the vehicle travel lanes nor
with the safe and efficient use of the sidewalk by pedestrians. As an integral part of the
responsibility is the authority and duty to remove any unpermitted encroachment.
(c) The City may by ordinance or resolution establish parking
rules and regulations, including installation of metered parking.
(d) The City may by ordinance or regulation impose landscaping
and/or sidewalk construction responsibilities on property owners whose property abuts
the state facility provided that any new sidewalk construction completed under the City
authority on the highway right of way meets or exceeds the specifications and standards
of the State including compliance with any state or federal handicapped access laws
and regulations.
(e) For purposes of this agreement, "Maintenance" does not
mean repair or replacement of any sidewalk segment six feet or more in continuous
length which cannot be repaired without complete removal and replacement of the
existing walk and subsurface base. Upon notice that a segment of sidewalk must be
replaced, the State will take whatever steps necessary to complete the replacement
within 120 days, (weather permitting), subject only to the temporary fix referred to in:
1(2) below.
(f) In the event of a disagreement as to whether a sidewalk
segment can be repaired or must be replaced, the parties agree that the issue will be
M
resolved by agreement by the Public Works Director or her designee and the
Department of Transportation Maintenance Administrator or his designee. If necessary
the Director of the Department of Transportation and the City Manager may be asked to
resolve the issue.
(2) The parties agree that they have a joint and mutual interest to build
and maintain the sidewalks in a safe manner. To that end there is a joint responsibility
to inspect the sidewalks on a periodic basis, at least annually to discover any potential
sections that require repair or replacement. Regardless of who identifies an area of
potential harm, they shall immediately notify the other party to the agreement and shall
jointly take whatever steps necessary to warn the users of the walk until such time as
repair or replacement can be completed. In the event replacement is deemed
necessary, temporary repairs may be performed until such time as reconstruction can
be programmed and completed. In the event replacement or reconstruction is required,
the State shall use any eligible state or federal funding to perform the work and upon
completion notify the City after which the City once again is responsible for future
maintenance.
(3) City agrees that the maintenance responsibility is in effect until the
sidewalks are reconstructed as provided in paragraph (e), unless otherwise agreed to
by the parties.
(4) If at any time, the City believes that the useful life of any of these
sidewalks has come to an end - i.e., that complete reconstruction of these sidewalks 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 complete 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 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. In the event of a disagreement as to whether complete reconstruction is the
most reasonable economic alternative for continued maintenance or repair of a sidewalk
the parties agree that the issue will be resolved by agreement by the Public Works
Director his designee and the Department of Transportation Maintenance Administrator
or her designee. If necessary, the Director of the Department of Transportation and City
Manager may be asked to resolve the issue.
(5) If, during its inspections, the City encounters a condition on the
sidewalk that it believes is caused by a design or construction defect or by the negligent
act or omission of a State agent or employee, the City will immediately notify the State
of the existence and location of the defect and provide the State with a detailed
R
explanation of the engineering basis for its belief that the condition is caused by a
design or construction defect or the negligent act or omission of a State agent or
employee.
(6) The State agrees to 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 incurred by the City in the defense
thereof) to them arising in favor of or asserted by any person or entity on account of
personal injury, death or damage to property arising solely out of, or in connection with,
a defect in the State's design or construction of the project (including, but not limited to,
a defect in the State's construction or design of the sidewalks bordering the project as
described above) or from the negligent or intentional act of Department employees that
in any way interfere with or damage the maintenance work of the City.
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, and losses (including costs and attorney's fees incurred by the
State in the defense thereof) to them arising in favor of or asserted by any person or
entity (including, but not limited to, the City) on account of personal injury, death or
damage to property arising, in whole or in part, out of, or in connection with, the
maintenance of the subject sidewalks.
(7) 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.
(J) The City will continue adequate engineering capabilities to ensure that a
continuing traffic engineering function is carried out on the project.
111. DURING THE PERFORMANCE OF THIS AGREEMENT, THE CITY, FOR
ITSELF, ITS ASSIGNEES AND SUCCESSORS IN INTEREST, AGREES AS
FOLLOWS:
(1) Compliance with Regulations: The City (hereinafter includes consultant) will
comply with all Acts and Regulations of the United States and the State of
Montana relative to Non -Discrimination in Federally and State -assisted programs
of the U.S. Department of Transportation and the State of Montana, as they may
be amended from time to time, which are herein incorporated by reference and
made a part of this contract.
(2) Non-discrimination:
a. The City, with regard to the work performed by it during the contract, will
not discriminate, directly or indirectly, on the grounds of any of the
protected classes in the selection and retention of subcontractors,
including procurements of materials and leases of equipment,
A
employment, and all other activities being performed under this
contract/agreement,
b. City will provide notice to its employees and the members of the public
that it serves that will include the following:
i. Statement that City does not discriminate of the grounds of any
protected classes.
ii. Statement that City will provide employees and members of the
public that it serves with reasonable accommodations for any
known disability, upon request, pursuant to the Americans with
Disabilities Act as Amended (ADA).
iii. Contact information for City's representative tasked with handling
non-discrimination complaints and providing reasonable
accommodations under the ADA.
iv. Information on how to request information in alternative accessible
formats.
c. In accordance with Mont. Code Ann. § 49-3-207, City will include a
provision, in all of its hiring/subcontracting notices, that all
hiring/subcontracting will be on the basis of merit and qualifications and
that City does not discriminate on the grounds of any protected class.
(3) Participation by Disadvantaged Business Enterprises (DBEs)..
a. If the City receives federal financial assistance as part of this
contract/agreement, the City will make all reasonable efforts to utilize DBE
firms certified by the Department for its subcontracting services. The list of
all currently certified DBE firms is located on the Department website at
mdt.mt.gov/business/contracting/civil/dbe.shtmi
b. By signing this agreement the City assures that. -
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. Failure by the
contractor 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.
c. City must include the above assurance in each contract/agreement the
City enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipmen
In all solicitations, either by competitive bidding, or negotiation, made by the Cit
for work to be performed under a subcontract, including procurements of
materials, or leases of equipment, each potential subcontractor or supplier will
notified by the City of the City's obligation under this contract/agreement and al I
Acts I
and Regulations of the United States and the State of Montana related to
No n-Discrim i nation.
0
(5) Information and Reports: The City will provide all information and reports
required by the Acts, Regulations, and directives issued pursuant thereto and will
permit access to its books, records, accounts, other sources of information and
its facilities as may be determined by the Department or relevant US DOT
Administration to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of a contractor is
in the exclusive possession of another who fails or refuses to furnish the
information, the City will so certify to the Department or relevant US DOT
Administration, as appropriate, and will set forth what efforts it has made to
obtain the information.
(6) Sanctions for Noncompliance: In the event of a City's noncompliance with the
Non-discrimination provisions of this contract/agreement, the Department will
impose such sanctions as it or the relevant US DOT Administration may
determine to be appropriate, including, but not limited to:
a. Withholding payments to the City under the contract/agreement until the
City complies; and/or
b. Cancelling, terminating, or suspending the contract/agreement, in whole or
in part.
(7) Pertinent Non -Discrimination Authorities:
During the performance of this contract/agreement, the City, for itself, its assignees,
and successor in interest, agrees to comply with the following non-discrimination
statues and authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 200d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR
and projects);
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- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as
amended, (prohibits discrimination on the basis of disability); and 49 CFR Part
27;
0
- The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 of seq.),
(prohibits discrimination on the basis of age);
- Airport and Airways Improvement Act of 1982, (49 U.S.C. § 471, Section 47123),
as amended, (prohibits discrimination based an race, creed, color, national
origin, or sex);
- The Civil Rights Restoration Act of 1987, (PL 100-209), (broadened the scope,
coverage, and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients, and
contractors, whether such programs or activities are Federally funded or not),
- Titles 11 and III of the Americas with Disabilities Act, which prohibits discrimination
on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing
entities (42 U.S.C. §§ 12131-12189) as implemented by Department of
Transportation regulations at 49 CFR parts 37 and 38;
- The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. §
47123) (prohibits discrimination on the basis of race, color, national origin, and
sex);
IN I I
11111111111 lull 111111111111
Minority Populations and Low-income Populations, which prevents discrimination
against minority populations by discouraging programs, policies, and activities
with disproportionately high and adverse human health or environmental effects
on minority and low-income populations;
Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of Limited English Proficiency (LEP). To ensure
compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to
74100);
X
- Title IX of the Education Amendments of 1972, as amended, which prohibits you
from discriminating because of sex in education programs or activities 120 U.S.C..
§ 1681 et seq.).
State
- Mont. Code Ann. § 49-3-205 Governmental services;
- Mont. Code Ann. § 49-3-206 Distribution of governmental funds;
- Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts.
(8) Incorporation of Provisions: The City will include the provisions of paragraph one
through seven in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Acts, the Regulations and directives
issued pursuant thereto. The City will take action with respect to any subcontract
or procurement as the Department or the relevant US DOT Administration may
direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, that if the City becomes involved in, or is threatened
with litigation by a subcontractor, or supplier because of such direction, the City
may request the Department to enter into any litigation to protect the interests of
the Department. In addition, the City may request the United States to enter into
the litigation to protect the interests of the United States.
i0
IN WITNESS WHEREOF, the State'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.
By
Administrator - Engineering Division
By
APPROVED AS • FORM:
'.e
By
Charlle`s'-Ha� •. City Attorn
•
B
Doug Russell, City Manager
1, Aimee Brunckhorst, 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 —, 2015, and that the City Council authorized the City
ff�
11
11 EXHIBIT A"
" INDICATES NO PARKING,
STOPPING,OR STANDI"
ZONES.
* 20'ON THE APPROACH
TO A CROSSWALK.
-�-' 50'ON THE APPROACH TO
A STOP SIGN OR SIGNALIZEIF,,
111TERSECTION.
CROSSWALK
(MARKED OR UNMARKED)
SIDEWALK
20'
30,
SIDEWALK
FIRE HYDRANT
NO PARKING
ZONES
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9