Agmt/2024/Mountain View Sidewalk and Lighting Encroachment MaintenanceDocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
STATE OF TANA MAINTENANCE AGREEMENT
Departmentt of of Transportation
Project Name
Mountain View Subdivision Sidewalk &
Lighting Encroachment
Project Address
964 Foy's Lake Road
Kalispell, MT 59901
MDT Maintained Route Route
Fo 's Lake Road U-6713A
Reference Post
1.09-1.26
Project Developer/Encroachment
Gary Schnell - Mountain View Subdivision
Applicant
Developer
Name of City or Municipality (City)
Kalispell, MT
Address of City or Municipality
City of Kalispell
201 1st Avenue East
Kalispell, MT 59901
Current IDC Rate for Fiscal Year
Year: 2024
Current year MDT Nondiscrimination and
Revised (Month/Year): 01/2022
Disability Accommodation Notice
Attachment A
This Agreement by and between City and the Montana Department of Transportation (MDT,
Department, or State), establishes the responsibilities and duties of the parties in respect to
Project activities on a portion of Route located within City.
The purpose of this Agreement is to set forth the respective responsibilities and duties of the
Parties associated with the installation and maintenance of the Project Specific Features within
the above referenced MDT right-of-way, a commission -designated highway system, per the
approved plans (Attachment B) received from the Developer. This Agreement sets forth terms
regarding the City's maintenance responsibilities for the Project that the City must meet for
MDT to provide the Developer the necessary Encroachment Permit to install the Project
Specific Features. Any Encroachment Permit granted to the Developer by this Agreement is
explicitly subject and subordinate to the rights and title of MDT and the State of Montana and
the attached General Terms and Conditions.
Project Features
Select the checkbox next to every feature listed below that your project includes and that you
intend to address in the current agreement. Standard language is provided in the template for
these features. (See Article III Project Specific Features)
❑ 1. Landscaping and/or Irrigation ❑ 4. Shared -Use Path*
® 2. Sidewalks* ® 5. Lighting
❑ 3. Sidewalk Benches/Bike Racks/Other
Sidewalk Amenities*
*Submit preliminary plans to MDT external ADA coordinator in Helena for compliance review.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representative effective as of the date of final signature.
Have the Following General Terms and Conditions of this agreement been modified?
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
Yes ❑ No
MDT
City
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Copy: MDT Office of Civil Rights (DocuSign Notification)
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
General Terms and Conditions AGREEMENT
ARTICLE I. GENERAL OBLIGATIONS OF MDT
1. If the City does not fulfill their maintenance requirements as stated herein, MDT may complete the required
maintenance and seek compensation from the City. In doing so, MDT must first provide notice to the City
allowing 60 days to complete any such maintenance. If MDT performs such maintenance under this section, it
must provide detailed invoices of such costs to the City.
2. MDT may complete any maintenance required due to public emergency and seek compensation from the City
for any costs incurred. In doing so, MDT may first provide notice to the City when possible, allowing time to
complete any such maintenance. If MDT performs maintenance under this section, it must provide detailed
invoices of such costs to the City.
ARTICLE II. GENERAL OBLIGATIONS OF THE CITY
1. The City agrees that no fixture, building, structure, or other permanent installation will be constructed or
placed within commission designated right-of-way without prior written approval from MDT.
2. The City agrees any maintenance within MDT right-of-way that requires lane closure or equipment must be
reviewed and approved by MDT maintenance staff prior to initiation of the maintenance.
3. The City shall complete the necessary environmental processes for modification to the state highways and
roadways and demonstrate that all, if any, environmental issues associated with the proposed project have
been identified and mitigated. The City agrees it will prepare and file any required environmental documents
and apply for and obtain any permits required by other governmental agencies at no expense to MDT prior to
maintenance taking place within commission designated right-of-way.
4. The City agrees to be responsible for any and all damages to facilities within commission designated right-of-
way caused by the City, the City's staff or contractors, or resulting from the City's operations. The City must
repair any and all damages, at its sole expense, after notification of damage by MDT and approval of repair
work needed, method of repair, and schedule for repair.
S. If the City fails to perform or cause to be performed, the maintenance obligations as required by this
agreement within 60 days of written notification from MDT, MDT may complete the required maintenance
and the City shall be required to compensate MDT for its performance of said maintenance.
6. MDT may complete any maintenance required due to a public emergency without prior notice to the City.
The City agrees to be responsible for and to reimburse MDT for said maintenance.
ARTICLE III - PROJECT SPECIFIC FEATURES
1. Sidewalks
a. Sidewalk Maintenance: Upon completion of the Project the City agrees, through the enforcement of
local ordinance(s) or otherwise, to maintain the sidewalks within the Project limits and ensure they
are safe and functional for the traveling public. Maintenance includes removing snow and ice,
removing debris and other obstructions or impediments to safe pedestrian travel, and any and all
other normally accepted maintenance practices.
b. Sidewalk Repair: In the event either the City or MDT identifies any portion of the sidewalk within
the Project limits requiring repair, the City agrees to make a good faith effort to enforce any local
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
ordinances requiring adjacent landowners to make the necessary repairs. If the City is unable to
cause the necessary repairs to be completed the City shall notify MDT. MDT will collaborate with the
City to determine whether State or local funding is available to complete the necessary repairs and
facilitate project nomination. Repairs include grinding or milling down displacements; surface
patching; crack sealing; replacing portions of damaged sidewalk; repairing chipped, fractured, or
broken surfaces from any cause, including but not limited to frost heaving, landscaping, tree roots or
encroachments, and any and all other normally accepted repair practices.
C. Sidewalk requiring closure: If any portion of the sidewalk within the Project limits becomes
hazardous for use, the City agrees to notify MDT and restrict access to the affected area until the
condition has been remedied. MDT agrees to work with the City to expedite the necessary repairs.
2. Lighting
a. Upon completion of the project, the City agrees that it is responsible, at no cost to MDT, to service,
maintain, repair and pay the costs of operating (including utility costs) the decorative and/or
pedestrian lighting installed as part of this project.
b. For the purposes of this Agreement, "maintenance of street lighting', is defined as: the inspection of
the lighting system for operation, cleaning lamps, lenses and reflectors, stocking of replacement
parts, bulb replacement, and repairs to and replacement of damaged fixtures.
c. Any major repair costs for lighting damage not recoverable from third parties shall be the
responsibility of the City.
d. If the cost of energy is raised by the utility company, the City, town or special improvement district
shall pay their proportionate share of the rate increase.
ARTICLE IV - GENERAL TERMS AND CONDITIONS
1. Term -The term of this Agreement shall be ten (10) years. After the initial ten (10) year term, this Agreement
will renew automatically, for successive one (1) year terms, unless superseded by a new Agreement between
the parties.
Termination - This Agreement may be terminated by MDT if the City has violated or breached any term,
condition or article of this Agreement and the City has failed to correct the same within 60 days of receiving
notice in writing addressed to the C City at the addresses shown above, from MDT of such violation or breach
of any term condition or article of this Agreement. If this Agreement is terminated, the improvements
become the property of MDT, without reimbursement. MDT will maintain the Project as it sees fit and may
remove it without City approval. MDT may seek compensation for maintenance or removal of the Project
from the City.
Hold Harmless & Indemnification
The City agrees to protect, defend, indemnify, and hold MDT, its elected and appointed officials, agents, and
employees, while acting within their duties as such, harmless from and against all claims, liabilities, demands,
causes of action, and judgments ( including the cost of defense and reasonable attorney fees) arising in favor
of or asserted by the City's employees or third parties on account of personal or bodily injury, death or
damage to property, arising out of the acts or omissions of the City, its agents, or sub -contractors, under this
Agreement, except the negligence of MDT.
MDT agrees to protect, defend, indemnify, and hold the City, its elected and appointed officials, agents, and
employees, while acting within their duties as such, harmless from and against all claims, liabilities, demands,
causes of action, and judgments ( including the cost of defense and reasonable attorney fees) arising in favor
of or asserted by the MDT's employees or third parties on account of personal or bodily injury, death or
damage to property, arising out of the acts or omissions of MDT, its agents, or sub -contractors, under this
Agreement, except the negligence of the City.
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
4. Insurance
a. General Requirements: Each party shall maintain for the duration of this Agreement, at its own cost
and expense, insurance against claims for injuries to persons or damages to property that may arise
from or in connection with the performance of the duties and obligations in this Agreement by each
party, its agents, employees, representatives, assigns, or sub -contractors. This insurance shall cover
such claims as may be caused by any negligent act or omission.
b. General Liability Insurance: Each party shall purchase and maintain occurrence coverage with
combined single limits for bodily injury, personal injury, and property damage of $1 million per
occurrence and $2 million aggregate per year to cover such claims as may be caused by or arising
out of any negligent acts or omissions in work or services performed under this Agreement, or as
established by statutory tort limits as provided by a public entity self-insurance program either
individually or on a pool basis as provided by Mont. Code Ann. Title 2, Chapter 9.
c. General Provisions: All insurance coverage must be with a carrier licensed to do business in the
State of Montana or by a public entity self -insured program either individually or on a pool basis.
Each party must notify the other immediately of any material change in insurance coverage, such as
changes in limits, coverage, change in status of policy, etc. Each party reserves the right to request
complete copies of the other party's insurance policy or self -insured memorandum of coverage at
any time.
d. Workers' Compensation Insurance: The City must maintain workers' compensation insurance and
require its contractors and its contractor's sub -contractors to carry their own workers
compensation coverage while performing work within MDT right-of-way in accordance with Mont
Code Ann. §§39-71-401 and 39-71-405. Neither the contractor nor its employees are employees of
MDT. This insurance/exemption must be valid for the entire Agreement period.
S. Public Safety
If any repairs to the elements of the Project must be performed to address or prevent a public hazard, the City
will immediately protect the area from public access, and make reasonable and timely effort to correct or
repair the hazard.
6. Invoicing and Indirect Cost (IDCI
Section 17-1-106, MCA, requires any state agency, including MDT, which receives non -general funds to
identify and recover its indirect costs (IDC). These costs are in addition to direct project costs. MDT's IDC rate
is determined annually as a percentage of the project's direct costs to cover the project's share of MDT's IDC
as defined by 2 CFR Part 200, Appendix VII.
7. Choice of Law and Venue
This Agreement shall be governed by the laws of Montana. The parties agree that any litigation concerning
this Agreement must be brought in the First Judicial District Court, in and for the County of Lewis and Clark,
State of Montana, and each party shall pay its own costs and attorney fees, except as otherwise noted in this
Agreement on Indemnification.
8. BindingEffect ffect - The benefits and obligations set forth in this Agreement shall be binding upon, and inure to
the benefit of, their respective successors, administrators and assigns of the Parties.
9. Relationship of Parties - Nothing contained in this Agreement shall be deemed or construed (either by the
Parties hereto or by any third party) to create the relationship of principal and agent or create any
partnership joint venture or other association between the Parties.
10. Non -Discrimination - The City will require that during the performance of any work arising out of this
Agreement the City, for itself, assignees, and successors shall comply with all applicable non-discrimination
regulation set forth in Attachment "A" attached hereto and made part of this Agreement.
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
11. ADA - MDT requires that any construction or maintenance resulting from this Agreement must include
appropriate pedestrian facilities that meet or exceed current MDT standards for accessibility as set forth by
the United States Department of Justice 2010 ADA Standards for Accessible Design, United States Accessibility
Guidelines for Pedestrian Facilities in the Public Right -of -Way, and MDT's Detailed Drawings, 608 series.
12. Audit - The Legislative Auditor and the Legislative Fiscal Analyst may, without prior notice and during
normal business hours, audit, at their own cost and expense, all records, reports, and other documents the
City maintain in connection with this Agreement.
13. Access and Retention of Records - The City agrees to provide the State, Legislative Auditor, or their
authorized agents access to any records necessary to determine compliance with this MOA (Mont. Code Ann.
§18-1-118). The City agrees to create and retain records supporting this Agreement for a period of three
years after the completion date of this Agreement or the conclusion of any claim, litigation or exception
relating to the Agreement taken by the State of Montana or a third party.
14. Highway Modifications - If MDT modifies or improves the highway or roadway facilities, the City will modify,
upon reasonable notice at no expense to MDT, the Project accordingly.
15. Revocation - This Agreement is revocable by MDT in the event that the Project facilities within the right-of-
way cease to be used by the City for a period of one year or abandoned otherwise. Upon revocation or
abandonment, the Project facilities must be removed in compliance with this Agreement.
16. Utilities - The right of any private or public utility now lawfully occupying the right-of-way to operate and
maintain utility facilities supersedes any right granted by this Agreement to the City. Copies of existing utility
permits may be obtained from the MDT District Utility Agent.
17. Amendment and Modification - The Parties may modify or amend this Agreement only by a written
Amendment signed by the Parties. In addition to the terms and conditions contained herein, the provisions of
any Amendment may be incorporated and made a part hereof by this reference in the terms of the
amendment so provided. In the event of any conflict between the terms and conditions hereof and the
provision of any Amendment, the provision of the Amendment shall control, unless the provisions thereof are
prohibited by law.
18. Representatives
a. City's Representative: The City's Representative for this Agreement shall be the City Manager or
designee or such other individual as City shall designate in writing. Whenever approval or
authorization from or communication or submission to City is required by this Agreement, such
communication or submission shall be directed to the City's Representative and approvals or
authorizations shall be issued only by such Representative; provided, however, that in exigent
circumstances when City's Representative is not available, MDT may direct its communication or
submission to other designated City personnel or agents.
b. MDT's Representative: The MDT Representative for this Agreement shall be the District
Administrator or Maintenance Chief or such other individual as MDT shall designate in writing.
Whenever direction to or communication with MDT is required by this Agreement, such
direction or communication shall be directed to MDT's Representative; provided, however, that
in exigent circumstances when MDT's Representative is not available, City may direct its
direction or communication or submission to other designated MDT personnel or agents.
19. Counterpart Execution - This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same Agreement. The counterparts
of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the
parties to any other party and the receiving party may rely on the receipt of such document so executed and
delivered by facsimile or other electronic means as if the original had been received.
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
/.IVWIF.9101UID1►Yf.1
MDT Nondiscrimination and Disability Accommodation Notice
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
Rev. 01 /2022
MDT NONDISCRIMINATION AND
DISABILITY ACCOMMODATION NOTICE
Montana Department of Transportation ("MDT") is committed to conducting all of its business in an
environment free from discrimination, harassment, and retaliation. In accordance with State and
Federal law MDT prohibits any and all discrimination and protections are all inclusive (hereafter
"protected classes") by its employees or anyone with whom MDT does business:
Federal protected classes State protected classes
Race, color, national origin, Race, color, national origin, parental/marital status,
sex, sexual orientation, gender identity, pregnancy, childbirth, or medical conditions related to
age, disability, income -level & Limited pregnancy or childbirth, religion/creed, social origin or
English Proficiency condition, genetic information, sex, sexual orientation,
gender identification or expression, ancestry, age,
disability mental or physical, political or religious
affiliations or ideas, military service or veteran status,
vaccination status or possession of immunity passport
For the duration of this contract/agreement, the PARTY agrees as follows:
(1) Compliance with Regulations: The PARTY (hereinafter includes consultant) will comply with all
Acts and Regulations of the United States and the State of Montana relative to Non -
Discrimination in Federally and State -assisted programs of the U.S. Department of
Transportation and the State of Montana, as they may be amended from time to time, which are
herein incorporated by reference and made a part of this contract.
(2) Non-discrimination:
a. The PARTY, with regard to the work performed by it during the contract, will not
discriminate, directly or indirectly, on the grounds of any of the protected classes in the
selection and retention of subcontractors, including procurements of materials and
leases of equipment, employment, and all other activities being performed under this
contract/agreement.
b. The PARTY will provide notice to its employees and the members of the public that it
serves that will include the following:
i. A statement that the PARTY does not discriminate on the grounds of any
protected classes.
ii. A statement that the PARTY will provide employees and members of the public
that it serves with reasonable accommodations for any known disability, upon
request, pursuant to the Americans with Disabilities Act as Amended (ADA).
iii. Contact information for the PARTY's representative tasked with handling non-
discrimination complaints and providing reasonable accommodations under the
ADA.
iv. Information on how to request information in alternative accessible formats.
Pagel of 4
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
Rev. 01/2
c. In accordance with Mont. Code Ann. § 49-3-207, the PARTY will include a provision, in all
of its hiring/subcontracting notices, that all hiring/subcontracting will be on the basis of
merit and qualifications and that the PARTY does not discriminate on the grounds of any
protected class.
(3) Participation by Disadvantaged Business Enterprises (DBEs):
a. If the PARTY receives federal financial assistance as part of this contract/agreement, the
PARTY will make all reasonable efforts to utilize DBE firms certified by MDT for its
subcontracting services. The list of all currently certified DBE firms is located on the MDT
website at mdt.mt.gov/business/contracting/civil/dbe.shtml
b. By signing this agreement, the PARTY assures MDT that:
The contractor, sub recipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor
shall carry out applicable requirements of 49 CFR part 26 in the award and
administration of DOT -assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the termination
of this contract or such other remedy as the recipient deems appropriate.
c. The PARTY must include the above assurance in each contract/agreement the PARTY
enters.
(4) Solicitation for Subcontracts, Including Procurement of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation, made by the PARTY for work to be
performed under a subcontract, including procurements of materials, or leases of equipment,
each potential subcontractor or supplier will be notified by the PARTY of the PARTY's obligation
under this contract/agreement and all Acts and Regulations of the United States and the State of
Montana related to Non -Discrimination.
(5) Information and Reports: The PARTY will provide all information and reports required by the
Acts, Regulations, and directives issued pursuant thereto and will permit access to its books,
records, accounts, other sources of information and its facilities as may be determined by MDT or
relevant US DOT Administration to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of a contractor is in the exclusive
possession of another who fails or refuses to furnish the information, the PARTY will so certify to
MDT or relevant US DOT Administration, as appropriate, and will set forth what efforts it has
made to obtain the information.
(6) Sanctions for Noncompliance: In the event of a PARTY's noncompliance with the Non- discrimination
provisions of this contract/agreement, MDT will impose such sanctions as it or the relevant US DOT
Administration may determine to be appropriate, including, but not limited to:
a. Withholding payments to the PARTY under the contract/agreement until the PARTY
complies; and/or
b. Cancelling, terminating, or suspending the contract/agreement, in whole or in part.
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Rev. 01/2022
(7) Pertinent Non -Discrimination Authorities: During the performance of this contract/agreement,
the PARTY, for itself, its assignees, and successor in interest, agrees to comply with the following
non-discrimination statutes and authorities; including but not limited to:
Federal
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race, color, national origin); and 49 CFR Part 21;
- The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C.
§ 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired
because of Federal or Federal -aid programs and projects);
- Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 etseq.), (prohibits discrimination on the basis
of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 etseq.), as amended, (prohibits
discrimination on the basis of disability); and 49 CFR Part 27;
- The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 etseq.), (prohibits
discrimination on the basis of age);
- Airport and Airways Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended,
(prohibits discrimination based on race, creed, color, national origin, or sex);
- The Civil Rights Restoration Act of 1987, (PL 100-209), (broadened the scope, coverage, and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975, and
Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms
"programs or activities" to include all of the programs or activities of the Federal -aid recipients,
sub -recipients, and contractors, whether such programs or activities are Federally funded or
not);
- Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis
of disability in the operation of public entities, public and private transportation systems, places
of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as
implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
- The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
- Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which prevents discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-income populations;
- Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes
discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI,
you must take reasonable steps to ensure that LEP persons have meaningful access to your
programs (70 Fed. Reg. at 74087 to 74100);
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Rev. 01/2022
- Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. § 1681 etseq.).
- Executive Order 13672 prohibits discrimination in the civilian federal workforce on the basis of
gender identity and in hiring by federal contractors on the basis of both sexual orientation and
gender identity.
State
Mont. Code Ann. § 49-3-205 Governmental services;
Mont. Code Ann. § 49-3-206 Distribution of governmental funds;
Mont. Code Ann. § 49-3-207 Nondiscrimination provision in all public contracts.
(8) Incorporation of Provisions: The PARTY will include the provisions of paragraph one through
seven in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Acts, the Regulations and/or directives issued pursuant thereto. The
PARTY will take action with respect to any subcontract or procurement as MDT or the relevant
US DOT Administration may direct as a means of enforcing such provisions including sanctions
for noncompliance. Provided, that if the PARTY becomes involved in, or is threatened with
litigation by a subcontractor, or supplier because of such direction, the PARTY may request MDT
to enter into any litigation to protect the interests of MDT. In addition, the PARTY may request
the United States to enter into the litigation to protect the interests of the United States.
Page 4 of 4
DocuSign Envelope ID: 4BA337EE-CAB5-4D01-9EOB-FFBEECF92A49
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