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FY2008-17 Memorandum of Agreement Between the State of Alaska and the Kodiak Island Borough for the Otmeloi Way Rehabilitation Reconnaissance Engineering StudyMEMORANDUM OF AGREEMENT BETWEEN THE STATE OF ALASKA AND THE KODIAK ISLAND BOROUGH Project: Otmeloi Way Rehabilitation Project Number: 59216 Reconnaissance Engineering Study The parties to this Agreement are the State of Alaska acting through its Department of Transportation and Public Facilities (hereinafter DOT&PF) and the Kodiak Island Borough, a Borough established under Alaska law (hereinafter the BOROUGH). WHEREAS, the BOROUGH requests to be allowed to own and maintain Otmeloi Way and to assume all responsibility for the planning, design and construction of the Otmeloi Way Rehabilitation project (hereinafter the PROJECT); WHEREAS, $3,300,000 was appropriated in SFY2006 Capital Budget by the Legislature to DOT&PF for the project; WHEREAS, the BOROUGH does not have funds available if the project exceeds the appropriated budget; WHEREAS, the BOROUGH has requested a direct transfer to them of $200,000 to conduct the reconnaissance engineering study required to determine if the available funding is adequate for the project (hereinafter the STUDY); WHEREAS, the BOROUGH has exercised its authority under State law or local charter to assume the power to plan, design, construct, and maintain, finance, hold title to, or otherwise control highways, streets, roads, and transportation facilities within its boundaries; WHEREAS, Alaska Statute 19.05.040 provides that DOT&PF may enter into agreements with local agencies relating to highways; and WHEREAS, the undersigned parties have been authorized to enter into this Agreement to cooperatively complete the project under the terms and conditions identified below. THEREFORE, the parties, in consideration of the mutual promises contained in the Agreement, agree to the following: 1. COMPLIANCE WITH LAWS AND REGULA71 IONS The BOROUGH agrees to comply, and shall require compliance by any contractors, with all applicable local, State, and federal laws and regulations. Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 1 2. PROJECT SCOPE Otmeloi Way, currently a state owned and maintained facility, primarily serves local residents and accesses an elementary school. The proposed rehabilitation project provides an opportunity to transfer the ownership of the roadway to the BOROUGH and allow local development and construction of the project. However, the BOROUGH does not have funding available if the project budget exceeds the amount of the appropriation. Since it is in the best interest of both the DOT&PF and the BOROUGH to refine the scope of the project and determine if the budget is adequate, the BOROUGH shall prepare a Reconnaissance Engineering Study for the Otmeloi Way Rehabilitation project in accordance with the DOT&PF's Preconstruction Manual, Section 430.3 Reconnaissance Engineering Study, (See Attachment A), to evaluate the project. 3. DELEGATION OF DUTIES a. The DOT&PF will support the BOROUGH in the preparation of the STUDY through the participation of DOT&PF staff generally described as follows: 1) Serve as technical advisor to the BOROUGH, and 2) Coordinate review and approval of the STUDY by DOT&PF staff. 4. FUNDING a. The STUDY estimate is Figure 1. b. Funds required to complete the STUDY in excess of the estimate, including dispute resolution will be secured by the BOROUGH unless the Agreement is amended and approved by both parties. c. DOT&PF indirect costs, at the rate of 4.88%, are deducted from the project account. DOT&PF indirect costs are those authorized by the OMB circular A-87. d. Technical services provided by DOT&PF staff, as listed under 3a of this Agreement, will be directly charged to the project. 5. BILLING a. Project costs eligible as expenses include in-house or contracted project management, engineering, and surveying services. b. There will be one lump sum payment for the STUDY, in the amount of $200,000, made upon the execution of this Agreement. 6. PROJECT PHASING The BOROUGH shall not incur any costs intended to be reimbursed on any phase of work until the phase has been authorized in writing by DOT&PF. The phase of work authorized by Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 2 this Agreement is: (1) Reconnaissance Engineering Study. Work includes surveying, preliminary engineering, and public involvement. If the STUDY determines that the PROJECT budget is adequate, future PROJECT phases may include design, right-of-way acquisition, utility relocation, and construction. Any future phases of the PROJECT may be authorized by amendment to this Agreement. 7. CONTRACT PROCUREMENT If the BOROUGH contracts with third -party contractors, the BOROUGH shall select the contractors using the competitive procurement principles consistent with the State Procurement Code, AS 36.30. 8. PROJECT SUBMITTALS AND REVIEWS a. The BOROUGH shall submit five (5) copies of the draft STUDY for review by DOT&PF staff within one year of the execution of this Agreement. b. The DOT&PF shall have sixty (60) days to review the draft STUDY and submit any comments to the BOROUGH. c. The BOROUGH will adjudicate all DOT&PF comments and submit five (5) copies and one unbound original of the final STUDY. d. Acceptance of the final STUDY shall constitute completion of this phase of the PROJECT. e. Within six (6) months after acceptance by DOT&PF that the BOROUGH has met the requirements of this Agreement, the BOROUGH will return the full amount of the grant, less legitimate project expenses, as detailed in a final certified expenditure report, to the State of Alaska. 9. AUDIT OF PROJECT The BOROUGH will retain for a period of three years after final billing, all contracts, invoices, payrolls, personnel records, conditions of employment, and other data relating to the matters of this Agreement. DOT&PF reserves the right to perform a final project audit. 10. INDEMNIFICATION a. The BOROUGH shall indemnify, defend, and hold harmless DOT&PF, its officers, agents, and employees from all liability, including costs and attorney's fees, for all actions or claims resulting from injuries or damages sustained by any person or property as a result of the BOROUGH's, its contractors', or its employees' performance of this Agreement. Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 3 b. Responsibility for all actions or claims, including costs and attorney's fees, resulting from injuries or damages sustained by any person or property arising directly or indirectly from the BOROUGH'S performance of the Agreement, which result from the joint negligence of DOT&PF and the BOROUGH, shall be apportioned on the basis of comparative fault. 11. WAIVER OF PROVISIONS The failure of DOT&PF to insist upon strict performance of the BOROUGH of any provision in this Agreement is not a waiver or relinquishment of the provision for the future. The waiver by the DOT&PF of any provision in this Agreement cannot be enforced or relied upon unless the waiver is in writing and signed on behalf of the DOT&PF. 12. LOBBYING The BOROUGH shall ensure that none of the funds under this Agreement will be used for the purposes of lobbying the Alaska State Legislature or the United State Congress. 13. CONTACTS Required notices of this Agreement must be sent to the following contract administrators: DOT&PF: Cynthia Ferguson, PE DOT&PF, Project Manager 4111 Aviation Avenue Anchorage, AK 99519 BOROUGH: Rick Gifford Kodiak Island Borough, Borough Manager 710 Mill Bay Road Kodiak, AK 99615 Each party agrees to notify the other party in writing of any change in the administrator. 14. TERMINATION FOR CAUSE a. If the BOROUGH is in substantial violation of the agreement, or if the BOROUGH has failed to fulfill its responsibilities under the agreement in a proper and timely manner, DOT&PF may, in its discretion, notify the BOROUGH of the violation or failure. If the BOROUGH fails to correct the violation within a reasonable time, or to offer assurance satisfactory to DOT&PF that the violation or failure will be remedied or the work defects cured, DOT&PF will, in its discretion, terminate the agreement and assume control of the project. DOT&PF will give written notice to the BOROUGH at least fifteen (15) days before the effective date of termination, and will state the reasons for the termination. The BOROUGH may appeal DOT&PF's decision to the Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 4 Commissioner within ten (10) days. Pending the Commissioner's decision, no work may proceed on the project. The Commissioner's decision is final. b. If an agreement is terminated for cause under this section, DOT&PF will compensate the BOROUGH for satisfactory work on the project to the extent that the BOROUGH has not been compensated. However, the BOROUGH is not relieved of any liability to DOT&PF, or any third party, for damages caused by the contract breach, and DOT&PF will, in its discretion, withhold compensation due under this subsection until the amount of damages owed to DOT&PF can be determined and deducted against DOT&PF's obligations. 15. TERMINATION FOR CONVENIENCE a. DOT&PF may, in its discretion, at any time terminate the agreement if DOT&PF determines that termination is in the best interests of the State. DOT&PF will give written notice to the BOROUGH of its decision to terminate the agreement not less than fifteen (15) days before the effective date of termination. The written notice will include a statement of why the decision to terminate was made. b. If an agreement is terminated for the convenience of the State under this section, DOT&PF will reimburse the BOROUGH for that portion of its expenses which was not otherwise reimbursed under the agreement, and which is directly attributable to performance under the agreement. DOT&PF will also reimburse the BOROUGH for any costs properly incurred by the BOROUGH in honoring convenience termination clauses in its agreements with its contractors, as long as those clauses conform to the standard convenience termination clause used by the State for similar type contracts. 16. TERMINATION BY MUTUAL CONSENT a. If the DOT&PF or the BOROUGH whishes to terminate this Agreement prior to its completion, the initiating party shall notify the other party in writing of its reasons for requesting the early termination. This request must be made at least fifteen (15) days prior to the proposed termination date. If both parties agree that it is in their mutual best interests to terminate this Agreement early, all finished or unfinished documents and other materials shall become the property of the BOROUGH. b. If the Agreement is terminated as provided herein, the BOROUGH shall be reimbursed for those actual expenses not otherwise reimbursed under this Agreement, which were incurred by the BOROUGH during the Agreement period and which are directly attributable to the BOROUGH's performance of the Agreement. The DOT&PF shall also reimburse the BOROUGH in honoring convenience termination clauses in the Agreement with its contractors as long as these clauses conform to the standard convenience termination clause used by the State for similar type contracts. 17. AMENDMENT OF AGREEMENT Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 5 This Agreement may only be modified or amended by written agreement signed by the original signatories or their successors in office. 18. TERM OF THE AGREEMENT In the event the BOROUGH has not delivered a final Reconnaissance Engineering Study prior to September 30, 2009, and after consultation with the BOROUGH, the DOT&PF may grant a time extension or terminate for cause at its discretion. 19. THE WHOLE AGREEMENT This Agreement constitutes the entire agreement between the parties. There are no other understandings or agreements between the parties, either oral or memorialized in writing regarding the matters addressed in this Agreement. This Agreement may not be amended by the parties unless agreed to in writing with both parties signing through their authorized representatives. SIGNATURES a . Z' 0_ P qf;� Signatyx564or BOROUGH Borough Manager r Date rized Signature for State Director, Construction and Operations Central Region Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 6 Figure 1. Project Budget Estimate of Funding Type of Work (1) (2) (3) Estimated Total Estimated Estimated State Project Funds Borough Funds Funds Reconnaissance Engineering Study a. Borough Work $ 200,000 $ - $ 200,000 b. Other $ - $ - $ - C. State Services $ 18,775 $ - $ 18,775 d. Indirect Cost Allocation Plan (ICAP) $ 11,2251$ - $ 11,225 e. Total Recon. Cost Estimate (a+b+c+d) 1 $ 230,0001$ - $ 230,000 Project Number: AKSAS 59216 Otmeloi Way Rehabilitation Page 7 ATTACHMENT A 430.3. Reconnaissance Engineering Study Some projects are authorized only for preliminary engineering through a reconnaissance engineering study. A reconnaissance study involves describing the problems to be solved, identifying and analyzing alternative solutions, and providing comparisons of the alternatives. Project development is similar to those projects with ATP for PE through environmental document, except that there is no formal environmental process, and public involvement may be limited. An environmental analysis is usually completed to determine the environmental impacts and issues that would need to be addressed if the project goes beyond the reconnaissance stage. A reconnaissance engineering study is typically performed as follows: • Identify and review the problem or deficiency to be resolved, and formulate a purpose and need statement. • Obtain support group input on the problem, and their data needs. • Research and acquire existing data, and make an initial site visit. • Identify preliminary alternatives, then discuss with each support group. Provide each support group a sketch map and data for each alternative to initiate their studies and evaluation. • Begin public involvement activities as outlined in the Public Involvement Plan. • Request needed air photos and mapping, and request traffic projections and design designations. • Sufficiently develop those alternatives that appear feasible so that they can be compared according to alignment, grade, width, length, cost, level of service, access control, soils conditions, erosion and sediment control, drainage, availability of construction materials, maintenance, snow and icing problems, right-of-way and utilities considerations, services to existing communities, development and potential development areas within communities, location of hazardous waste sites, wetlands, cultural and historical sites, and other environmental issues. • Prepare schematic plans as necessary to convey information to support groups, agencies, and the public. The discussion of alternatives should consider the "no build" action, Transportation Systems Management (TSM), alternative transportation options (such as transit) where appropriate, and all reasonable "build" alternatives. Obtain additional surveys, mapping, and traffic projections as needed. Coordinate public involvement, local government input, and project development with support groups. The result of the Reconnaissance Engineering Study is a written report containing a description of the project's purpose and need, and a discussion of all technically feasible alternative solutions, including comparison of their engineering characteristics, environmental impacts and cost. This report should target a general audience, so it is easily incorporated later into the project's environmental document. The Reconnaissance Engineering Study Report may conclude with a recommendation to proceed, not proceed, or proceed later with further project development. The formal report is signed by the preparer and the engineering manager and approved by the regional preconstruction engineer. KODIAK ISLAND BOROUGH AGENDA STATEMENT DECEMBER 6, 2007 REGULAR MEETING ITEM NO. 13.A.1 TITLE: Contract No. FY2008-17 Memorandum of Agreement Between the State of Alaska and the Kodiak Island Borough for the Otmeloi Way Rehabilitation Reconnaissance Engineering Study. SUMMARY: Otmeloi Way is a major access route to North Star Elementary School. This facility is not only a school, but it also serves as a mass sheltering facility for the community during times of a disaster. Access to the school along Otmeloi Way is unsafe. This is especially the case for children walking to school on dark winter mornings. This issue was brought to the attention of the Alaska Legislature by the North Star PTA and the Borough Assembly. The legislature acted favorably to fund the project in an amount of $3.3 million dollars. This money is to be administered by the Alaska Department of Transportation (DOT). DOT guidelines and state statute for project development is also to be followed. A Reconnaissance Engineering Study is required by DOT to determine the scope of the project, but also to determine the cost of the project. This study will tell us if the money allocated by the legislature is sufficient to complete the project. Should it not be more money will have to be pursued. This agreement will free up $200,000 for the Borough to contract with an engineering firm to perform the reconnaissance study. Typically this study will perform the following: • Identify the problem to be resolved • Coordinate public involvement provide input on the problem • Gather data such as traffic projections, survey info, utility information etc • Develop feasible alternatives • Prepare schematic plan • Finalize a written report with recommendations • Recommendations should be to: • Proceed • Not Proceed • Proceed later with further project development • Final report is to be approved by DOT APPROVAL FOR AGENDA: d RECOMMENDED MOTION: Move to authorize the manager to execute Contract No. FY2008- 17 with the State of Alaska acting through the Department of Transportation and Public Facilities.