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I2. Recission of DNRC Stillwater Roundabout MOUCity of Kalispell Charles A. Harball Office of City Attorney City Attorney 201 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 TO: FROM: MEMORANDUM Doug Russell, City Manager Charles Harball, City Attorney Tel 406.758.7709 Fax 406.758.7758 charball@kalispell.com SUBJECT: Agreement to Rescind Memorandum of Understanding with the State of Montana DNRC Regarding Funding of Roundabout at Stillwater Road and Farmstead Parkway MEETING DATE: July 6, 2021 — Regular Council Meeting BACKGROUND: On September 29, 2008, the City of Kalispell entered into a Memorandum of Understanding with the State of Montana Department of Natural Resources and Conservation [DNRC] regarding transportation improvements that would be necessitated at the intersection of Stillwater Road and the future Farmstead Parkway to be constructed in the anticipated development in Section 35 which had just then been annexed into the City by petition of that landowner as well as the development of property by DNRC in Section 36. The DNRC, as a condition of the final plat approval for its Timberwolf Phase I -A Subdivision entered into the MOU, anticipating the imminent development of Section 35, on the other side of Stillwater Road, and considering that development would also be financially contributing to the intersection improvements. The DNRC therefore agreed to contribute approximately $500,000 toward the project conceived to be a roundabout intersection and further waived, within its plat, the right to protest the creation of any special improvement district for the financing of the project. Previous to this, the DNRC, upon annexing Section 36 into the City, and recognizing its role as a developer of property within the City, waived its statutory right to agency exemption from City regulation. To this date, Section 35 has not yet been developed or generated traffic upon Stillwater Road so as to warrant any intersection improvements, nor has the development by DNRC to Section 36 created such traffic at this intersection to warrant the intersection improvements. The MOU has required the DNRC to include the $500,000 pledged amount in its budget for the past 13 years creating an unanticipated burden for the agency. Further, the amount that was pledged would likely be insufficient today to construct DNRC's share of the future improvements. The owner of the property within Section 35 is just now planning the phased development of that property which includes the construction of Farmstead Parkway. The design of the required improvements to the intersection will be determined by means of traffic studies as the development within both Section 35 and Section 36 builds out and the usage patterns of the intersection are ascertained. A Motion to Rescind MOU With DNRC Regarding the Financing of the Stillwater Road Roundabout Page - 2 With these facts in mind, the DNRC requested that the City of Kalispell agree to rescind the referenced 2008 MOU and to establish the financing of the intersection at a later date when the need becomes more current, and the parties are in a position to discuss the timing of the necessary financing. RECOMMENDATION: It is recommended that the Council approve the rescission of the September 29, 2008, Memorandum of Understanding with the State of Montana DNRC regarding the funding for the construction of a roundabout on Stillwater Road at Farmstead Parkway. ALTERNATIVES: The Council may discuss other alternatives with city staff regarding this agreement with the State of Montana. Office of City Attorney City of Kalispell RECISSION OF AGREEMENT 2008 STILLWATER ROAD ROUNDABOUT MEMORANDUM OF UNDERSTANDING This Termination of Agreement is dated the of July, 2021 by and between the State of Montana DNRC, (State), whose address and phone number are 655 Timberwolf Parkway, Kalispell, MT 59901, (406) 751-2242 and the City of Kalispell, (City), whose address and phone number are 201 1st Ave East, Kalispell, MT 59901 and (406) 758-7703. 1. Background. The State and City, entered into a Memorandum of Understanding (MOU) dated September 29, 2008. The parties wish to terminate this MOU due to lack of activity to construct the roundabout for over ten years and an apparent lack of need at the current time. 2. Termination. The State and City agree to terminate the Contract effective July , 2021. 3. Effect of Termination. The parties agree that the effect of the termination shall be to void all duties and liabilities of the parties toward one another that were created by means of the MOU. This recission shall have no effect on any other rights, obligations, duties, or responsibilities of the parties toward one another that may otherwise exist under law. 4. Binding Effect. This termination is binding on the parties and their successors and assigns. It is the entire agreement of the parties regarding termination and supersedes all prior understandings, agreements, and representations regarding termination. 5. Authority. The undersigned represent that they are authorized to bind their respective parties. STATE OF MONTANA DNRC CITY OF KALISPELL 655 Timberwolf Parkway P.O. Box 1997 Kalispell, MT 59901 Kalispell, MT 59901 am Greg Poncin Area Manager LE Doug Russell City Manager MEMORANDUM OF UNDERSTANDING between: State of Montana, Department of Natural Resources and Conservation and The City of Kalispell, Montana concerning: Providing Financial Security for the construction of a Roundabout on Stillwater Road I. Pose. The City of Kalispell, Public Works Department and the State of Montana, DNRC, agree that, as a condition of final plat approval for the Timberwolf Phase I -A Subdivision, they should enter into an agreement to secure the financial requirements of constructing a roundabout traffic structure on Stillwater Road which is to be constructed when Farmstead Parkway is fully constructed. The parties agree that DNRC should be obligated to pay for one half of the roundabout structure and that it currently has sufficient funds for such obligation. However, it does not possess sufficient funds to provide for both construction of its portion of the roundabout and to post a performance bond for the construction of the roundabout traffic structure. Consequently, the City of Kalispell and the Montana DNRC seek by this MOU to come to an understanding whereby financial guarantees may be given to ensure that the roundabout traffic structure is constructed. II. Objective. The purpose of this Memorandum of Understanding (MOU) is to establish an agreement between the Montana DNRC and the City of Kalispell to financially guarantee the construction of DNRC's portion of the Stillwater Road roundabout traffic structure, and to address any responsibility that DNRC may have for the construction of the roundabout traffic structure. III. Authority. This memorandum is entered into under the following authorities: The funds referred to in this MOU were appropriated in the 2007 May Special Session, House Bill 4, 76-3-501 MCA, and 28-08-06 KMC. DNRC, through the Department of Administration under Section 17-7-211(b), MCA, has obtained spending authority for these funds through a budget amendment for $499,696.88 within fund 02450. IV. Procedure. A. Montana DNRC Responsibilities 1. DNRC agrees that a roundabout traffic structure will need to be constructed if Farmstead Parkway is fully constructed. DNRC hereby agrees that it is responsible for the payment of one half of the total costs of construction of the roundabout traffic structure. DNRC shall therefore convey its project budget appropriations in the amount of $499,696.88, as set forth in the Final Cost Estimate set forth in Exhibit "A", to the City of Kalispell upon receiving written notice from the City that the Farmstead Parkway/Stillwater Road intersection project has been committed. 2. DNRC further agrees that it hereby waives all right to protest the creation of a Special Improvement District as authorized by Title 7, Chapter 12, Part 41 MCA, or any right it may have to an agency exemption from the obligations of a Special Improvement District to the extent that the District is created to pay the costs of constructing one half of the above described roundabout traffic structure not otherwise secured in Paragraph IV(1) above. B. City of Kalispell Responsibilities 1. Upon receipt of the appropriation funds described above from the Montana DNRC, the City of Kalispell shall complete Montana DNRC's construction responsibilities for the roundabout traffic within one year of receipt of the funding and DNRC shall be excused from any further responsibility for its construction. V. Administration. Modifications to this MOU may be proposed by either party and shall become effective upon the written approval by both parties. Changes to this MOU must be initialed and dated on each replacement page by an authorized agent of each party. This MOU will become effective upon signature of all of its participants. DATED thi day of September, 2008. CITY OF KALISPELL By: ' J es H. Patrick City Manager MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION By:_ Mary Sex on Director 2