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HomeMy WebLinkAboutResolution No. 2021-53KENAI CITY OF KENAI RESOLUTION NO. 2021-53 Sponsored by: Administration A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AUTHORIZING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF AGREEMENT WITH THE STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES FOR DESIGN, CONSTRUCTION AND MAINTENANCE OF THE KENAI BRIDGE ACCESS ROAD PATHWAY PROJECT. WHEREAS, an Alaska Transportation Alternatives Program grant in the amount of $2,971,354 has been allocated for the construction of 1.2 miles of pedestrian path beginning at the intersection of the Kenai Spur Highway and Bridge Access Road and terminating at the intersection of Beaver Loop and Bridge Access Road; and, WHEREAS, the grant requires a local match which was originally estimated to be $216,560, but has increased to $294,947 as the project progresses and the total cost of the project is estimated to be $3,266,301; and, WHEREAS, Ordinance 3137-2020, appropriated $216,560 for the Bridge Access Road bike path utilizing proceeds from the Daubenspeck family donation to meet the City's initial estimated match and authorized the City Manager to execute an agreement with the Alaska Department of Transportation and Public Facilities (AKDOT&PF) to plan, design, and construct the path; and, WHEREAS, the Fiscal Year 2022 Annual Budget included Supplemental Funding for the Bridge Access Bike Path in the amount of $78,387 to meet the non-federal match of no more than 9.03%, $294,947, of the current project cost estimate, which may increase or decrease as the project is developed and bid; and, WHEREAS, a Memorandum of Agreement (MOU) provides the authority for the AKDOT&PF to plan, design, and construct the pathway using Federal funds and the City's match and the City agrees to maintain the project once constructed; and, WHEREAS, the MOU allows work to begin on the project and is in the best interests of the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. That the City Manager is authorized to execute a Memorandum of Agreement with the Alaska Department of Transportation and Public Facilities for plan, design, and construction of improvements to create a paved bicycle and pedestrian pathway from Beaver Loop Road at Bridge Access Road towards the City of Kenai. Section 2. That this resolution takes effect immediately upon passage. Resolution No. 2021-53 Page 2 of 2 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 4th day of August, 2021. ATTEST: Clerk j _ Approved by Finance: rk O. BRIAN GABRIEL, SR., O. KENq� Memorandum of Agreement r Between State of Alaska and The City of Kenai Project Name: Kenai Bridge Access Road Pathway Federal Project No.: [tba] State Project No.: CFHWY00689 The parties to this agreement are the State of Alaska acting through its Department of Transportation and Public Facilities (hereafter AKDOT&PF) and The City of Kenai, an incorporated city established under Alaska law (hereafter the City). WHEREAS, the City agrees to maintain the project once constructed; WHEREAS, AKDOT&PF has the authority to plan, design, and construct improvements to Create a paved bicycle and pedestrian pathway from Beaver Loop Road at Bridge Access Road towards the city of Kenai, (hereafter the project); WHEREAS, the City by resolution desires that Federal funds be used, therefore DOT&PF will plan, design and construct the project; and WHEREAS, the City by resolution agreed to maintain the project to local standards upon its completion; and WHEREAS, Alaska Statute 19.05.040 provides that AKDOT&PF may enter into agreement with Municipalities relating to highways. THEREFORE, the parties, in consideration of the mutual promises contained in this agreement, agree to the following: 1. FINANCIAL PARTICIPATION The City hereby agrees to provide non-federal matching funds for the project including matching funds required for project contingencies. The City's matching fund contributions shall be lump sum payments due prior to initiation of each phase authorization from the Federal Highway Administration. Contingency will be: o an additional 50% of the cost estimate for all phases prior to Construction phase and Utilities Relocation phase. o Contingency shall be revised downward from 50% to 15% of the, then current, cost estimate after completion of the final design and prior to Construction phase and Utilities Relocation phase. Payment of Design Phase total matching funds in the amount of $46,861 is due from the City by September 30, 2021. The schedule for all subsequent payments shall be based on the project development schedule developed by the AKDOT&PF Project Manager. Failure to provide matching funds consistent with the current project development schedule may be deemed a breach of this agreement and will result in project cessation and the City shall repay all r-� expenditures incurred by AKDOT&PF that are not federally reimbursable. As the project design develops, cost estimates, and schedule for all project phases will be refined. Cost estimate and contingencies will be updated via project amendment as project progresses, but initial cost estimate and required matching funds are calculated as follows: • Cost estimate non-federal match — City shall pay no more than 9.03% of the current cost estimate by phase as negotiated, plus the contingency match. • Contingency match — In the event that the project cost is greater than the initial cost estimate AKDOT&PF shall provide federal funds for the additional costs up to an additional 50% above the initial cost estimate and the City shall pay the minimum 9.03% required non-federal match for cost estimate contingencies. Design match $46,860 Construction match $237,209 Utility match $10,878 Total match $294,947 If the City ceases to fund match, the City hereby agrees to reimburse AKDOT&PF for all project costs incurred that are not Federally reimbursable. Upon project completion and final project closeout, if the final cost is less than the Agreement cost, the local contribution will be recalculated and excess contribution will be refunded to the City. 2. PROJECT RANKING DOT&PF shall, while ranking this project with other projects during the preparation of the Statewide Transportation Improvement Program (STIP) and capital budgeting process, recognize that the City has agreed to provide local matching funds and maintain the project. 3. PLANNING, DESIGN, AND CONSTRUCTION DOT&PF shall plan, design, and construct the project within the approved scope and funding. 4. MAINTENANCE AND OPERATIONS a. The City agrees to maintain the project at its own expense consistent with 23 CFR 1.27 and DOT&PF's Alaska Highway Maintenance and Operations Manual (AHMOM). In the event of conflict between 23 CFR 1.27 and AHMOM, the more stringent provisions set the minimum standards. b. The City shall perform its activities under this agreement at its sole cost and expense and without reimbursement from DOT&PF. These maintenance activities include, but are not limited to: (1) planning, scheduling, administration, and logistics of maintenance activities, snow and ice control, including all plowing, sanding, culvert and storm sewer thawing, drift control, snow slide removal, and associated tasks as may be required for the safe and timely passage of the public consistent with Municipal standards; (2) removal of debris, rubbish, and dead animals V c. Maintenance staff may be employees of the City, another unit of government, or a contractor under agreement r, with the City. All maintenance will be performed for efficient operation of the complete project improvements The City's maintenance responsibilities commence the date of project substantiated completion. d. City agrees to perform property management and maintain and operate the project for the lifespan of the project, a period of not less than twenty years. 5. INDEMNIFICATION The City shall hold the DOT&PF, its officers, employees, and agents harmless from and defend and indemnify the DOT&PF for liability, claims, or causes of action arising out of this Agreement. Notwithstanding the foregoing, the City shall have no obligation to hold harmless and indemnify the DOT&PF to the extent the DOT&PF is determined to be liable for its own act or omissions, except that: A. To the maximum extent allowed by law, the City shall hold the DOT&PF harmless from and indemnify the DOT&PF 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 Agreement or constructed or improved pursuant to this Agreement, regardless of negligence or other fault, if such liability, claim, or cause of action arises out of an incident that occurs more than six years after the City assumes maintenance duties. B. The City's duty to defend shall apply regardless of whether it is also alleged that the DOT&PF's acts or omissions contributed to the injury (including injury to personal property, real property or persons, including fatal injury). C. 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 AS 46.03.822 shall be governed by the paragraph. 6. DISPUTE RESOLUTION a. If a dispute arises under this agreement between the City and DOT&PF, and the parties cannot resolve the matter between them within 45 days after the notice is given by the aggrieved party to the other party, the aggrieved party may request that the matter be resolved by arbitration. b. Each party shall appoint an arbitrator to hear the dispute. The two arbitrators acting together shall select a third arbitrator with all appointments to occur in accordance with State Procurement code, AS 36.50. The three arbitrators shall hear the matter under such rules and procedures, as they deem necessary to conduct the proceedings. c. Each party shall pay the expenses of the arbitrator it appoints and shall pay half of the cost of the proceedings and the third arbitrator. d. Except when the provisions of this paragraph provide otherwise, an arbitration under this paragraph is subject to AS 09.43.010 — 09.43.180, the Uniform Arbitration Act. 7. PENALTY FOR BREACH a. Any withdrawal of the City's promise to maintain and operate the project upon completion, including a withdrawal at any time after construction is completed, shall be considered a breach. If, prior to advertising for construction, the City withdraws its promise to maintain and operate the project upon completion, DOT&PF will reevaluate each project nominated by the City without consideration of Municipal maintenance. If the City withdraws its promise after the advertisement of a project for bid, the DOT&PF may proceed with construction of the project and seek recovery of maintenance costs from the City. In the evaluation of other projects in the City in the succeeding six years after the breach, DOT&PF will not include consideration of Municipal contribution until the City has cured the breach to DOT&PF's satisfaction. b. If notified by DOT&PF in writing that it is in violation of any of the terms, conditions, or provisions of this Agreement, and a default has occurred, the City shall have thirty (30) days from the date of such notification to remedy the default or, if the remedy will take in excess of thirty (30) days to complete, the City shall have thirty (30) days to satisfactorily commence a remedy of the causes preventing its compliance and curing the default situation. Expiration of the thirty (30) days and failure by the City to remedy, or to satisfactorily commence the remedy of, the default shall result in the termination of this Agreement by DOT&PF. c. If the City makes a written request for the cancellation of a federal -aid project, City shall bear 100 percent of all costs as of the date of cancellation. If DOT&PF was the sole cause of the cancellation, DOT&PF shall bear 100% of all costs incurred. After settlement of payments, DOT&PF shall deliver surveys, maps, field notes, and all other data to City. 8. CONTACTS The DOT&PF's contact is Alex Read, Design Project Manager. The City's contact is Paul Ostrander, or as may be redesignated in writing from time to time. 9. TERM OF THE AGREEMENT The agreement start date is the date of final signature executing this agreement. This agreement will remain in force until such a time that AKDOT&PF and the CITY provide notice of termination. Notice will be given at least thirty (30) days in advance of the termination date. Termination of the agreement may result in project cessation and may require the CITY repay all expenditures incurred by AKDOT&PF that are not federally reimbursable if termination is the fault of the CITY. 10. AMENDMENT OF AGREEMENT This agreement may only be modified or amended by written agreement signed by the original signatories or their successors in office. 11. 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 Dated: State of Alaska Department of Transportation and Public Facilities Wolfgang Junge, P.E. Regional Director Dated: City of Kenai Paul Ostrander City Manager KENAI - -1 _.. ,enai 1 210 Fidalgo Ave, Kenai. AK 99611-7794 1907 283 7535 1 wwwkenai.city MEMORANDUM TO: Mayor Gabriel and Council Members FROM: Paul Ostrander, City Manager DATE: July 26, 2021 SUBJECT: Resolution No. 2021-53 — Kenai Bridge Access Road Pathway Project On June 17, 2021, the City Council passed Ordinance 3137-2020, which appropriated matching funds needed for an Alaska Transportation Alternatives Program (ATAP) grant in the amount of $2,971,354 that had been allocated for the construction of 1.2 miles of pedestrian path beginning at the intersection of the Kenai Spur Highway and Bridge Access Road and terminating at the intersection of Beaver Loop and Bridge Access Road. The proposed pathway will be constructed by the Alaska Department of Transportation and Public Facilities (AKDOT&PF), and once complete, the City will be responsible for its maintenance. The source of City funding for the initial estimated $216,560 match are proceeds the City has received from land and subsurface mineral rights donated to the City by the Daubenspeck family. Last fall, AKDOT&PF provided an updated total current project cost estimate for plan, design, and construction of improvements to be $3,266,301, with the City match of 9.03% being $294,947. The additional $78,387 of City funding was included in the FY22 Annual Budget Supplemental Funding to meet the remaining non-federal match of no more than 9.03% of the current project cost estimate, and an additional appropriation is not necessary at this time. The construction of a pedestrian pathway will provide enhanced recreational opportunities for the citizens and visitors of Kenai. Resolution 2021-53 authorizes the City Manager to enter into a Memorandum of Agreement that provides the authority for the AKDOT&PF to begin work on the project. Your consideration is appreciated L'