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Home My WebLink AboutOrd.5478.12-06-2021 BILL NO. 21-182 ORDINANCE NO. -g AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A MODOT PARTNERSHIP DEVELOPMENT COST SHARE PROGRAM AGREEMENT WITH THE MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, FOR IMPROVEMENTS AT ROUTE 74/SHAWNEE PARKWAY AND MINNESOTA AVENUE, :N THE CITY OF CAPE GIRARDEAU, MISSOURI BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: Article 1 . The City Manager is hereby authorized and directed to execute, on behalf of the City of Cape Girardeau, Missouri, a MoDOT Partnership Development Cost Share Program Agreement with the Missouri Highways and Transportation Commission, for Intersection, Improvements at Route 74/Shawnee Parkway and Minnesota Avenue (FAF-74-1 (21) ) , and the City Engineer is authorized to execute all necessary project documents. The City Clerk is hereby authorized and directed to attest, and to affix the seal of the City thereto.. The Agreement shall be in substantially the form attached hereto, which document is hereby appro7ed by the City Council, with such changes therein as shall b,e approved by the officers of the City executing the same. Article 2 . This Ordinance shall be in full force and effect ten days after its passage and approval. PASSED AND APPROVED THIS (12day of OeltalWil , 2021 . Bob Fox, Mayor _---� 7/1 APE s QC ;4 ' 1V ATTEST: fgvi/& 4 7,144 -7-7 4, kr • truce Ta /sr, Deputy City Clerk `�,V''Ao, 1 I DocuSign Envelope ID: A60580FA-6F90-4793-8052-1414A8EE624A CCO Form: FS08 Route 74, Cape Girardeau County Approved: 03/04 (BDG) Project No. J9P3862/FAF-74-1(21) Revised: 03/17 (MWH) City of Cape Girardeau Modified: 10/21 (MWH) MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION COST SHARE AGREEMENT' THIS AGREEMENT is entered into by the Missouri Highways and Transportation Commission (hereinafter, "Commission") and City of Cape Girardeau (hereinafter, "Entity"). WITNESSETH: WHEREAS, the Entity applied to the Commission's Cost Share Committee for participation in the Commission's Cost Share Program; and WHEREAS, on June 17, 2021, the Cost Share Committee approved the Entity's application to the Cost Share Program subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises and representations in this Agreement, the parties agree as follows: (1) PURPOSE: The purpose of this Agreement is to co-ordinate the participation by the Entity of City of Cape Girardeau in the cost of the Commission's Project J9P3862. The project will provide a new right-in/right-out access to and from westbound Route 74 to Minnesota Avenue north of Route 74. (2) LOCATION: The transportation improvement that is the subject of this Agreement is contemplated at the following location: Within the City of Cape Girardeau's corporate limits just East and West along Route 74 (Shawnee Parkway) adjacent to the Minnesota Avenue and Brink Avenue merger on the North side of Route 74 (Shawnee Parkway). The general location of the project is shown on attachment marked "Exhibit A" and incorporated herein by reference. (3) AMENDMENTS: Any change in this Agreement, whether by modification or supplementation, must be accomplished by a formal contract amendment signed and approved by the duly authorized representatives of the Entity and the Commission. (4) COMMISSION REPRESENTATIVE: The Commission's Southeast District -1- DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A Engineer is designated as the Commission's representative for the purpose of administering the provisions of this Agreement. The Commission's representative may designate by written notice other persons having the authority to act on behalf of the Commission in furtherance of the performance of this Agreement. (5) ASSIGNMENT: The Entity shall not assign, transfer or delegate any interest in this Agreement without the prior written consent of the Commission. (6) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed according to the laws of the State of Missouri. The Entity shall comply with all local, state and federal laws and regulations relating to the performance of this Agreement. (7) CANCELLATION: The Commission may cancel this Agreement at any time for a material breach of contractual obligations or for convenience by providing the Entity with written notice of cancellation. Should the Commission exercise its right to cancel this Agreement for such reasons, cancellation will become effective upon the date specified in the notice of cancellation sent to the Entity. (8) PLANS AND CONSTRUCTION: With regard to project responsibilities under this Agreement, the parties agree to contribute as follows: (A) The Entity shall follow the Local Public Agency (LPA) process. (B) The Entity shall be responsible for the preparation of detailed right- of-way and construction plans and project specifications. This includes design, acquisition of right of way, relocation of utilities, letting of the project, and inspection of the project. The plans shall be prepared in accordance with and conform to the Commission's requirements, standards, and specifications. Said plans shall not be changed in concept or scope without prior written approval of the Commission. (C) The Entity shall acquire any additional necessary right of way required for the project at the Entity's sole cost and in doing so agrees that it will comply with all applicable federal laws, rules and regulations, including 42 U.S.C. 4601-4655, the Uniform Relocation Assistance and Real Property Acquisition Act, as amended and any regulations promulgated in connection with the Act. (D) The Commission will review and approve the legal descriptions, which are required prior to the deeds being executed by property owners. Commission review of the parcels being acquired is required to ensure the Uniform Act was followed. (E) The Commission will provide preliminary engineering review, right of way review and construction engineering review. (F) The Entity shall be responsible for letting the work for the herein improvement, which includes advertising the project for bids and awarding the construction contract. The Entity shall solicit bids for the herein improvement in -2- DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A accordance with plans developed by the Entity, or as the plans may from time to time be modified in order to carry out the work as contemplated. The Entity shall not award the construction contract without obtaining Commission's written concurrence in the award. The Entity shall submit all required bid concurrence documentation to the Commission at least two (2) weeks prior to the Commission Meeting in which the Entity seeks to request award. If the Entity does not comply with this provision, the Commission is under no obligation to continue with this project. (G) The Entity shall secure all required federal, state, and local permits as required for design and construction of the improvements prior to entering onto the Commission right of way to perform any obligation under this Agreement, obtain any applicable permit from the Commission, unless the performance of such obligations under this Agreement would not ordinarily require a permit from the Commission. (H) The Entity shall be responsible for construction of the herein improvements, which includes administration of the construction contract and inspection of the project work. The project shall be constructed in accordance with and conform to the current criteria, specifications and requirements established and adopted by the Commission and in accordance with the current applicable manuals and policies of the Commission and the Federal Highway Administration (FHWA), if applicable, which shall be furnished by the Commission upon request, and, absent the foregoing, with manuals and policies of the American Association of State Highway and Transportation Officials("AASHTO"). (9) FINANCIAL RESPONSIBILITIES: With regard to work under this Agreement, the Entity agrees as follows: (A) The total project cost will include preliminary engineering, construction and inspection. The details of the estimated cost breakdown are listed below and in "Exhibit B", which is attached hereto and made part hereof. The current estimate of the total project cost is Six Hundred Twelve Thousand dollars ($612,000). (B) The Entity shall be responsible for fifty percent (50%) of the total project cost, currently estimated at Three Hundred and Six Thousand dollars ($306,000). (C) The Commission will pay for fifty percent (50%) of the total project cost, currently estimated at and not to exceed Three Hundred and Six Thousand dollars ($306,000). Of this amount, the Commission will provide Two Hundred Ninety -Six Thousand dollars ($296,000) from the Commision's Cost Share program, available in State Fiscal Year 2024, and Engineering services by it's Southeast District personnel estimated to total Ten Thousand dollars ($10,000). Commission Cost Share Program funds shall only be used on the State Highway System. The Entity shall be responsible for all right of way and utility costs. Right of way and utility costs are not eligible to receive Commission Cost Share Program funds. The Entity shall be responsible for all cost overruns on this project. Underruns will be based on the pro rata share. -3- DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A (D) Because the Entity has chosen to accelerate the Cost Share funds, the Entity may invoice the Commission monthly after the costs are incurred beginning August 1, 2023 or after the project is complete. (10) COMMISSION RIGHT OF WAY: All improvements made within the state- owned right-of-way shall become the Commission's property, and all future alterations, modifications, or maintenance thereof, will be the responsibility of the Commission. (11) VENUE: It is agreed by the parties that any action at law, suit in equity, or other judicial proceeding to enforce or construe this Agreement, or regarding its alleged breach, shall be instituted only in the Circuit Court of Cole County, Missouri. (12) SOLE BENEFICIARY: This Agreement is made for the sole benefit of the parties hereto and nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the Commission and the Entity. (13) NO INTEREST: By contributing to the cost of this project or improvement, the Entity gains no interest in the constructed roadway or improvements whatsoever. The Commission shall not be obligated to keep the constructed improvements or roadway in place if the Commission, in its sole discretion, determines removal or modification of the roadway or improvements, is in the best interests of the state highway system. In the event the Commission decides to remove the landscaping, roadway, or improvements, the Entity shall not be entitled to a refund of the funds contributed by the Entity pursuant to this Agreement. (14) AUTHORITY TO EXECUTE: The signers of this Agreement warrant that they are acting officially and properly on behalf of their respective institutions and have been duly authorized, directed and empowered to execute this Agreement. (15) SECTION HEADINGS: All section headings contained in this Agreement are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. (16) ADDITIONAL FUNDING: In the event the Commission obtains additional federal, state, local, private or other funds to construct the improvement being constructed pursuant to this Agreement that are not obligated at the time of execution of this Agreement, the Commission, in its sole discretion, may consider any request by the Entity for an off -set for the deposited funds, a reduction in obligation, or a return of, a refund of, or a release of any funds deposited by the Entity with the Commission pursuant to this Agreement. In the event the Commission agrees to grant the Entity's request for a refund, the Commission, in its sole discretion, shall determine the amount and the timing of the refund. Any and all changes in the parties' financial responsibilities resulting from the Commission's determination of the Entity's request for a refund pursuant to this provision must be accomplished by a formal contract amendment signed and approved by the duly authorized representative of the Entity and the Commission. -4- DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A (17) NO ADVERSE INFERENCE: This Agreement shall not be construed more strongly against one party or the other. The parties to this Agreement had equal access to, input with respect to, and influence over the provisions of this Agreement. Accordingly, no rule of construction which requires that any allegedly ambiguous provision be interpreted more strongly against one party than the other shall be used in interpreting this Agreement. (18) ENTIRE AGREEMENT: This Agreement represents the entire understanding between the parties regarding this subject and supersedes all prior written or oral communications between the parties regarding this subject. (19) VOLUNTARY NATURE OF AGREEMENT: Each party to this Agreement warrants and certifies that it enters into this transaction and executes this Agreement freely and voluntarily and without being in a state of duress or under threats or coercion. (20) NOTICES: Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be deemed given three (3) days after delivery by United States mail, regular mail postage prepaid, or immediately after delivery in person, or by facsimile or electronic mail addressed as follows: Commission to: Missouri Department of Transportation Attn: Mark Croarkin Southeast District 2675 North Main Sikeston, MO 63801 Facsimile No.: 573-472-5296 Email: mark.croarkin@modot.mo.gov Entity to: City of Cape Girardeau Attn: Scott Meyer 401 Independeance Street Cape Girardeau MO 63701 Facsimile No.: 573-339-6303 Email: smeyer@cityofcapegirardeau.org or to such other place as the parties may designate in accordance with this Agreement. (21) AUDIT OF RECORDS: The Entity must maintain all records relating to this Agreement, including but not limited to invoices, payrolls, etc. These records must be available at all reasonable times at no charge to the Commission and/or its designees or representatives during the period of this Agreement and any extension thereof, and for three (3) years from the date of final payment made under this Agreement. (22) INDEMNIFICATION: (A) To the extent allowed or imposed by law, the Entity shall defend, -5- DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A indemnify and hold harmless the Commission, including its members and department employees, from any claim or liability whether based on a claim for damages to real or personal property or to a person for any matter relating to or arising out of the Entity's wrongful or negligent performance of its obligations under this Agreement. (B) The Entity will require any contractor procured by the Entity to work under this Agreement: (1) To obtain a no cost permit from the Commission's District Engineer prior to working on the Commission's right-of-way, which shall be signed by an authorized contractor representative (a permit from the Commission's District Engineer will not be required for work outside of the Commission's right-of-way); and (2) To carry commercial general liability insurance and commercial automobile liability insurance from a company authorized to issue insurance in Missouri, and to name the Commission, and the Missouri Department of Transportation and its employees, as additional named insureds in amounts sufficient to cover the sovereign immunity limits for Missouri public entities ($500,000 per claimant and $3,000,000 per occurrence) as calculated by the Missouri Department of Insurance, Financial Institutions and Professional Registration, and published annually in the Missouri Register pursuant to Section 537.610, RSMo. (C) In no event shall the language of this Agreement constitute or be construed as a waiver or limitation for either party's rights or defenses with regard to each party's applicable sovereign, governmental, or official immunities and protections as provided by federal and state constitution or law. Remainder of Page Intentionally Left Blank; Signatures and Execution Appear on Following Page DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last written below. Executed by the Entity this 2021-12-08 1 3:37 PM CST (DATE) Executed by the Commission this 2021-12-30 1 9:58 AM CST (DATE). MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION DocuSigned by: -I VIG f. SGuy6t,&r Title Assistant Chief Engineer ATTEST: iDocuSigned by: ce( v�'lJw�, aaaFarn�aoF�aoa Secretary to the Commission Approved as to Form: DocuSigned by: Commission Counsel -7- City of Cape Girardeau DocuSigned by: 1111 13 FV.r�t,v�vu,�u, t a#&ivu Y9 Title city Manager ATTEST: DocuSigned by:/ By �uio/�' Title Deputy City Clerk Approved as to Form: DocuSigned by: ;6 Title: city Attorney Ordinance No DocuSign Envelope ID: A60580FA-6F90-4793-8052-1414A8EE624A Exhibit A 0 1716 o1714 0 1708 0 01721 01717 1713 0 803 0 0 07 I I 813 I 1708 0 0 01704 0825 �S' R 01& M 's 's 120 OEG��N� 00 50 0 100 Feet EXHIBIT NO. 2: M074 & Minnesota Ave. Intersection Concept KEY: Low Profile Concrete Median Island Cul-de-sac to dead-end Brink St. 0 New Concrete Traffic Barrier Private Driveway Extensions Proposed Right of Way Donation to MoDOT ® Existing Street Lights O ME DocuSign Envelope ID: A60580FA-6F90-4793-B052-1414A8EE624A Exhibit B Project Name: Route 74 MoDOT Job Number: J9P3862 / FAF-74-1(21) Provide a new right-in/right-out access to and from westbound Route Description: 74 to Minnesota Avenue North of Route 74 Definition of "Total Pro'ect" for Cost Apportionment Includes: Preliminary Engineering Entity Current Estimate and Inflation Cost Apportionment Construction and Non-Contractuals I Construction Engineering Definition of "Total Project" for Cost Apportionment Excludes: Cost to Accelerate Project ROW Incidentals Utilities ROW Project Estimate Project Responsibilities Preliminary Engineering Entity Current Estimate and Inflation Cost Apportionment Eligible Preliminary Engineering $ 59,000 $ 59,000 Right-of-way $ - $ - Right-of-way Incidentals $ - $ - Utilities $ - $ - Construction w/ Contingency $ 476,000 $ 476,000 Non-contractuals $ - $ - Inspection and Letting $ 77,000 $ 77,000 Total $ 612,000 $ 612,000 Project Responsibilities Preliminary Engineering Entity ROW Acquisition Entity Letting Entity Inspection Entity Financial Responsibilities Entity $ 306,000 Total Local Share 0 $ - $ 306,000 0 $ - 50.0% 0 $ - 0 $ - 0 $ - MoDot District Staff $ 10,000 Total MoDOT Share MoDot Cost Share $ 296,000 $ 306,000 0 $ - 50.0% 0 $ - How are overruns and underruns handled? The Entity, City of Cape Girardeau, shall be responsible for cost overruns on the project. Underruns will be based on the pro rata share. 1001