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FY2008-34 North Star Student Safety Access Project - State Project No. 58159TITLE: Contract No. FY2008 -34 Approving a Memorandum of Agreement With the State of Alaska Department of Transportation and Public Facilities for Construction of a Portion of the North Star Elementary School Pedestrian Path. SUMMARY: The Kodiak Island borough and the State of Alaska will be entering into a memorandum of agreement (MOA) to allow the state to design and construct a portion of the pedestrian trail to North Star Elementary school. Approval of this contract will give the manager the authority to sign and start this important improvement. The state will add this project to an existing contract they have with one of the construction firms they are working with. The section of the trail that will be constructed has been identified by the North Star PTA and the School District as the most dangerous stretch along the proposed trail. The project will be paid for by the federal earmark received for this project and the local match. Unfortunately, this may be all that is done with the Federal Earmark. The program that the earmark is tied to no longer exists, so any remaining money will go back to D.C. FISCAL NOTES: Account No.: 410 527 452 -150 -6 Amount Budgeted: $110,331 Expenditure Required: APPROVAL FOR AGENDA: KODIAK ISLAND BOROUGH AGENDA STATEMENT April 24, 2008 Special Meeting ITEM NO. 3.D RECOMMENDED MOTION: Move to authorize the manager to execute Contract No. FY2008- 34 with the State of Alaska, Department of Transportation and Public Facilities in the amount not to exceed $110,331. STATE OF ALASKA DEPARTMENT of TRANSPORTATION PUBLIC FACILITIES CENTRAL REGION 1. SCOPE OF WORK 2. RIGHT OF WAY and UTILITIES MEMORANDUM OF AGREEMENT eeakezd fpoey Federal Project No: TBD State Project No: 58159 Project: Kodiak Island Roads (North Star Student Safety Access Project) This AGREEMENT, is made and entered into this 2- day of 44; 2008 between the State of Alaska, acting by and through the Department of Transportation and Public Facilities, hereinafter called the DEPARTMENT, and the Kodiak Island Borough, hereinafter called the BOROUGH. The DEPARTMENT and the BOROUGH, in the interest of the public, propose to construct a short segment of new pathway behind the guardrail on the curve where Lilly Drive crosses Island Lake Creek, hereafter referred to as the PROJECT. The DEPARTMENT and the BOROUGH do hereby agree to the following: This PROJECT will construct a short segment of new pathway behind the guardrail on the curve where Lilly Drive crosses Island Lake Creek. The preliminary engineering design of the subject project will be accomplished by the DEPARTMENT in conformance with FEDERAL HIGHWAY ADMINISTRATION requirements as well as accepted standards of the State of Alaska and the DEPARTMENT. The PROJECT is located within BOROUGH -owned right -of -way, and will be maintained by the BOROUGH per Section 5. PROJECT MAINTENANCE below. The BOROUGH believes that adequate public right -of -way exists to contain the PROJECT and its construction. The DEPARTMENT will map the existing right -of -way and certify that the PROJECT is contained within the existing right -of -way. Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 1 Utility facilities are known to exist within the proposed PROJECT right -of -way corridor. The DEPARTMENT will coordinate with the appropriate utility companies and prepare utility agreements covering the disposition of utility facilities. The design and construction of utility relocations, if required by the project, will be accomplished by the appropriate utility company on a reimbursable basis. Any utility companies performing relocation activities as a result of this project will be reimbursed by the DEPARTMENT for all actual costs up to an agreed upon budget. 3. DESIGN CONSTRUCTION FUNDING A. Federal Funding: Funding for the PROJECT design and construction is from a FFY 2005 National Corridor Planning and Border Development Program earmark in the amount of $1,300,000. This program is no longer active and the funds will be pulled back unless obligated by September 30, 2008. After accounting for federal overhead costs, the federal participation in the PROJECT will be a maximum of $1,111,500 of the total budget. At a federal participation rate of 90.97 the total maximum budget is $1,221,831 ($1,221,831 x 0.9097 $1,111,500). The remaining funds, $110,331 ($1,221,831 $1,111,500 $110,331) must be provided through local match. B. Local Match The BOROUGH agrees to provide $110,331, as discussed in 3a. above, to the DEPARTMENT to fulfill its local match obligation upon execution of this agreement. The total available federal aid funds to this project are fixed and are anticipated to be fully expended to complete the PROJECT, therefore this amount does not include a contingency for balancing potential cost over runs in the final project cost. C. Additional BOROUGH Contribution Upon PROJECT completion and final PROJECT closeout, actual Construction Phase cost will be compared to the total construction funding available to the PROJECT through this Agreement. The BOROUGH agrees to provide additional project funding to the DEPARTMENT, in the event that there are any cost overruns. Payment will be made by amendment to this agreement. D. Summary All funds designated in part 3b. shall be appropriated to the DEPARTMENT prior to funding obligation. Total payments are summarized as follows: Federal Funding Local Match Additional Contribution Total: $1,111,500 110,331 (TBD if required) $1,221,831 Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 2 4. PROJECT MANAGEMENT The construction contract will be between the DEPARTMENT and the construction contractor. The DEPARTMENT's Construction Project Manager is in responsible charge, and will monitor the contractor's work and progress through their on -site Project Engineer for the duration of the PROJECT through final records approval. The BOROUGH's Project Manager shall also designate a BOROUGH PROJECT person to act as their On -site Coordinator (OSC) and to represent the BOROUGH. S /he shall be the single point -of- contact between the Project Engineer and the BOROUGH. This person shall be responsible for keeping all branches of the BOROUGH informed of any increased bid quantities or potential contract changes that could adversely affect the contract price or the functionality of the facility after final acceptance by the BOROUGH. After the OSC has briefed the BOROUGH, their Project Manager will prepare a Letter of Non objection to be appended to the contract change document. 5. PROJECT MAINTENANCE WHEREAS, A.S.19.20.060 authorizes the DEPARTMENT and the BOROUGH to enter into agreements for construction, maintenance, and ownership of public ways within their respective jurisdictions, and WHEREAS, the DEPARTMENT has the authority to plan, design, and construct the PROJECT, located within the boundaries of the BOROUGH, including but not limited to planning, design and construction of pathway improvements; and WHEREAS, the BOROUGH has reviewed and concurs in the location of the PROJECT, and WHEREAS, Federal transportation funds will be used in the design and construction of the PROJECT, and WHEREAS, the Federal Highway Administration holds the DEPARTMENT responsible to maintain, or cause to be maintained, any project constructed with Federal aid transportation funding. IT IS THEREFORE AGREED by the parties, in consideration of the mutual promises contained in this Agreement, as set forth below, regarding the planning, design, construction, maintenance, and operation of the PROJECT. Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 3 The BOROUGH, agrees to assume full and complete ownership of, and responsibility for, the operation, maintenance, and administration of the PROJECT, upon completion of construction. A. Property Management The BOROUGH agrees that its management of the right of way is subject to the provisions of 23 CFR §1.23 for the PROJECT's life, which is 20 years, commencing upon the substantial completion of the construction of the PROJECT. The BOROUGH may not allow any encroachment within the right of way of the PROJECT without the prior consent of the DEPARTMENT and the Federal Highway Administration. The BOROUGH may not sell any portion of the right of way without the prior consent from the DEPARTMENT and the Federal Highway Administration. In the event that the DEPARTMENT and the Federal Highway Administration give their consent to the disposal of any portion of the right of way for the PROJECT, the BOROUGH shall pay proceeds of the sale to the DEPARTMENT, which the DEPARTMENT will credit to the appropriate federal aid accounts. B. Maintenance and Operations a) The BOROUGH agrees to maintain and operate the PROJECT for the PROJECT's design life, which is 20 years, commencing upon the substantial completion of the construction of the PROJECT. b) The BOROUGH agrees to maintain and operate the PROJECT consistent with 23 CFR §1.27 and the DEPARTMENT's Alaska Highway Maintenance and Operations Manual (AHMOM). c) The BOROUGH shall perform its activities under this Agreement at its sole cost and expense and without reimbursement from the DEPARTMENT. These maintenance activities include, but are not limited to: 1) Planning, scheduling, administration, and logistics of maintenance activities; 2) Traffic control and safety; 3) Preservation of drainage in an as -built condition, including maintenance of all culverts, ditches, storm sewers, gutters, dry wells, and under drains; 4) Embankment protection, including erosion control, to as -built conditions; 5) Roadside management; 6) Snow and ice removal; 7) Snow and ice control, including all plowing, sanding, snow hauling, ice scraping, drift control, snow slide removal, and associated tasks as may be required for the safe and timely passage of the public; Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 4 C. Dispute Resolution a) Except for disputes for third party claims related to the property management, in the event of a dispute under this agreement that the parties cannot resolve within 45 days, the DEPARTMENT and the BOROUGH each agree that they shall each appoint an arbitrator, who between, them shall agree to the appointment of a third arbitrator. b) The arbitrators may conduct such proceedings, as they believe are necessary to resolve the matter before them. They may, in the exercise of their discretion, proceed on the record. c) Each party shall bear the expenses of any arbitrator they appoint. The party against whom a decision is rendered shall pay the costs of the third arbitrator, as well as all expenses incurred in the conduct of any hearing on the dispute. 6. INDEMNIFICATION 8) Maintaining signs and delineators in an as -built condition and their replacement, including posts and foundations, when damaged, unreadable, or worn out; 9) Removal of debris, rubbish, and dead animals; 10) Annual crack sealing; 11) Repairs of minor rutting, waves, sags, humps, corrugations, raveling, alligator cracks, pitting, and bleeding on a regular basis; and 12) Minor bridge repairs, which includes painting of localized rust areas, re- decking, and repair of guardrail and railing sections. d) The arbitrators' decision of a matter before them is final and may only be changed or modified under the provisions of AS 9.43.120 and AS 9.43.130. e) Except when the provisions of this paragraph provide otherwise, any arbitration under this paragraph is subject to AS 09.43.010 through 09.43.180, the Uniform Arbitration Act. f) A decision by the Federal Government denying, or limiting, federal participation in project costs may not be arbitrated under this Agreement. The BOROUGH may only pursue such claims under federal law and procedure. The BOROUGH shall hold the DEPARTMENT, its officers, employees, and agents (collectively "the DEPARTMENT harmless from and defend and indemnify the DEPARMENT for liability, claims, or causes of action arising out of this AGREEMENT Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 5 or relating to the property and facilities being deeded and the obligations being assigned. Notwithstanding the foregoing, the BOROUGH shall have no obligation to hold harmless and indemnify the DEPARTMENT to the extent the DEPARTMENT is determined to be liable for its own acts or omissions, except that: To the maximum extent allowed by law, the BOROUGH shall hold the DEPARTMENT harmless from and indemnify the DEPARTMENT for liability, claims, or causes of action arising from an alleged defect in the design or construction of facilities existing on the premises at the date of this grant, regardless of negligence or other fault, if such liability, claim, or cause of action arises out of an incident that occurs more than two years after the BOROUGH assumes maintenance responsibilities for the facilities. The BOROUGH's duty to defend shall apply regardless of whether it is also alleged that the DEPARTMENT's acts or omissions contributed to the injury (including injury to personal property, real property or persons, including fatal injury). Neither liability, claims or causes of action arising from injuries which occurred prior to the date of this transfer nor liabilities imposed by, or claims or causes of action arising from or asserted under AS46.03.822 shall be governed by this paragraph. 7. TERMINATION If due to changed circumstances, the DEPARTMENT or the BOROUGH wishes to terminate this Agreement prior to its completion, the initiating party shall notify the other party in writing of its reasons for requesting 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 interest to terminate this Agreement early, all finished or unfinished documents and other materials shall, at the option of the DEPARTMENT, become the DEPARTMENT's property. If the Agreement is terminated as provided herein, the BOROUGH shall be reimbursed for these 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 this Agreement. If the Agreement is terminated as provided herein, the DEPARTMENT 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 clauses used by the DEPARTMENT for similar type contracts. Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 6 AGREED and SIGNED BY: KODIAK ISLAND BOROUGH Approved: Borough Mana Or Authorize esignee Nat -k c �,w., Fund Certification: V Date 7 c a/A 1 Y r Karleton Short Date Borough Finance Director DEPARTMENT OF TRANSPORTATION PUBLIC FACILITIES Recommend: Cy thia Ferguson, Project Manager Central Region Approved: ;p2 1/92166 Steven R. Horn, P. Date Director, Construction and Operations Central Region Kodiak Island Road (North Star Student Safety Access Project) Memorandum of Agreement Page 7