MOU/MDOT, City and SD 5_ Montana e prt e t of Tran Jim Lynch, Director
2701 Prospect Avenue Brian Schweitzer, Governor
PO Box 201001
Helena MT 59620-1001
March 23, 2007
Mr. James Patrick
Kalispell City Manager
312 1 st Avenue East
P.O. Box 1997
Kalispell, MT 59903
Subject: Completed Glacier High School MOU
Mr. Patrick,
Attached is an original executed Memorandum of Understanding between the
Montana Department of Transportation, the City of Kalispell and School
District #5 concerning secondary access for Glacier High School. Please keep
this in your files.
If you have any questions or comments, please don't hesitate to call me at 444-
6126.
Sinc rely,
Stephanie Hilger, Planner
Program and Policy Analysis Bureau
Rail, Transit and Planning Division
Attachment
copies: Sandra Straehl, Rail, Transit and Planning Division Administrator
Dwane Kailey, P.E., Missoula District Administrator
Dave Jensen, Fiscal Programming Section Supervisor
Fred Bente, Consultant Project Supevisor
Gary Larson, Project Analysis Bureau Chief
Jim Skinner, Program & Policy Analysis Manager
File
An Equal Opportunity Employer
If,
February 2007
This Memorandum of Understanding (MOU) by and between MONTANA DEPARTMENT OF
TRANSPORTATION (STATE OR MDT), the CITY OF KALISPELL (CITY), and GLACIER
HIGH SCHOOL — KALISPELL, SCHOOL DISTRICT #5 (SCHOOL) concerning the proposed
direct access to West Reserve Drive, specifically known as Secondary 548, or secondary access
to the future West Reserve Loop.
WHEREAS, School District #5 of Flathead County has plamled and is in the process of
constructing a new high school which is located in the northwestern area of the City of Kalispell;
and
WHEREAS, the CITY must approve the construction of the SCHOOL under the local
subdivision approval process which requires that there be a primary and secondary roadway
access for ingress and egress to the SCHOOL before occupancy can be permitted; and
WHEREAS, the required SCHOOL access points include either a secondary access from
secondary Highway 548, commonly referred to as the West Reserve Loop and as planned, or a
second access point on West Reserve Loop; and
WHEREAS, West Reserve Loop is not yet in place but is a part of a planned construction project
under the authority and jurisdiction of MDT as is West Reserve Drive; and
WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State
Highways and roadways associated transportation facilities, including associated pull -offs,
parking areas, access locations for ingress and egress to the state routes, and rest areas for the use
and benefit of the traveling public, in a safe and efficient manner in accordance with Title 23
United States Code (U.S.C.) and Title 60 Montana Code Annotated (MCA); and,
WHEREAS, MDT, by agreement, maintains and has jurisdiction and authority over West
Reserve. Drive and will maintain and have jurisdiction for the planned West Reserve Loop; and
WHEREAS, the CITY'S subdivision approval process requires the SCHOOL to have a
secondary access prior to occupancy; and
WHEREAS the SCHOOL has proposed secondary access to either West Reserve Drive or the
future West Reserve Loop Road; and
WHEREAS, construction of MDT's future West Reserve Loop project will coincide with the
opening of the SCHOOL and secondary access to the SCHOOL will be coordinated with MDT's
construction schedule.
NOW, THEREFORE, the parties set forth the fundamental duties and responsibilities necessary
to accommodate the safety of the traveling public due to increased traffic flow on the affected
MDT roadway.
1. THE CITY WILL:
Upon execution of this agreement, not withhold an occupancy permit based on secondary
access issues, allowing the SCHOOL to be operational and open on August 27, 2007.
2. THE SCHOOL ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR THE COSTS
ASSOCIATED WITH THE CONSTRUCTION OF THE REQUIRED SECONDARY ACCESS
TO MITIGATE THE IMPACTS TO THE STATE HIGHWAYS AND THUS WILL:
A. Provide MDT with funding associated with the design and construction of either an
approach onto West Reserve Drive or an approach from Wolfpack Way onto West
Reserve Loop.
B. Proceed with the donation of the needed right of way in accordance with 49 CFR, Part
24, Uniform Relocation Assistance and Real Property Acquisition Regulations for
Federally Assisted Programs and the guidelines and procedures contained in MDT's
Right of Way Manual, and will provide to MDT legal possession (in the name of the
State of Montana) of all required right of way. This service will entail the actual
definition of property to be acquired, development and submittal of official MDT right of
way plans, preparation of legal descriptions, preparation of deeds and the actual appraisal
for the right of way provided by each individual property owner.
C. Acknowledge that MDT approved appraised value of the right of way donation shall be
considered an in -kind contribution used to offset the cost of mitigation that the SCHOOL
is responsible for.
D. The SCHOOL will be billed for its portion of project cost sixty (60) days before project
contract letting. The MDT engineer's estimate will be used for the construction and
construction engineering costs. The SCHOOL will submit payment to the MDT within
forty-five (45) days of billing.
Six (6) months after the project has been closed out (final costs submitted), the MDT will
submit a final statement to the SCHOOL. The final statement will be in the form of an
invoice, billing the SCHOOL for cost overruns, or it will be a check, for overpayment by
the SCHOOL. The SCHOOL will submit payment to the MDT within sixty (60) days of
billing.
Payments to this project will be coordinated through the MDT's Administration Division
(to be directed to the MDT's Accounts Receivable account # 27088). Payments to this
project will be provided to MDT staff in the form of a check to be deposited and credited
to this project. Please make the check payable to the Montana Department of
Transportation and send your payment to:
Montana Department of Transportation
Attention: Collections
2701 Prospect Avenue
PO Box 201001
Helena, MT 59620-1001
N4DT WTT.T.-
A. Design and construct either an approach onto West Reserve Drive or an approach from
Wolfpack Way onto West Reserve Loop within a reasonable time frame of the SCHOOL
opening on August 27, 2007.
B. Accept right of way contributions from the SCHOOL.
C. Acknowledge that any right of way donated toward the project will be considered an in -
kind contribution used to offset the cost of mitigation that the SCHOOL is responsible
for.
D. Be responsible for establishing the final determination of appraised values for donated
right of way.
4. MODIFICATION AND AMENDMENT
This MOU may be modified or amended, in writing, by the mutual agreement of the parties
involved up until award of the contract for the associated roadway project. After that time it
may not be modified. This MOU is assignable by the CITY and the SCHOOL only upon the
written acceptance of the assignee by MDT.
TERMINATION
MDT, the CITY, and the SCHOOL agree to move in an efficient and expeditious manner
towards development of these proposals under the conditions specified within this document.
Upon showing of good cause, any party may terminate this agreement, and all obligations of
all Parties hereunder, with 30-day notice in writing to the other Parties of the intention to do
so.
6. GOVERNING LAW
This agreement shall be governed by the laws of the State of Montana. Venue for any
litigation will be in Lewis and Clark County, State of Montana. In case of conflict between
the obligation imposed by this MOU and Montana law then Montana law will control.
7. BINDING EFFECT
The obligations set forth in this Memorandum shall be binding upon, and the benefit of this
Memorandum shall inure to the benefit of, their respective successors and assigns.
4
RELATIONSHIP OF THE PARTIES
Nothing contained in this Memorandum 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 MDT, the SCHOOL and the CITY.
9. SUPPLEMENTATION OF AGREEMENT
A. The parties agree that it may be desirable to provide individual or more specific
provisions, which may be accomplished through the execution of supplements to this
agreement as needed. Such supplements must be in writing and signed by all parties, and
may not modify, amend, or terminate this MOU once the contract or contracts have been
awarded for construction of the associated roadway projects.
B. No amendment or modification of this Memorandum shall be effective unless in writing
and signed by the parties hereto.
10. NON-DISCRIMINATION
A. The parties will require during the performance of any work arising out of this agreement
that the CITY and the SCHOOL, for themselves, assignees and successors shall comply
with all applicable non-discrimination regulations shown on Attachment A.
B. Additionally, the Department requires that any construction resulting from this agreement
must include appropriate pedestrian facilities that meet or exceed current MDT standards
for accessibility as set fort in the U.S. Architectural & Transportation Barriers Board,
American with Disabilities Act Accessibility Guidelines (ADAAG) and MDT Detailed
Drawings, 608 Series.
Date: %ZO`�
Date:
11 /Of7
Date: ,
Date: - --�`-
Date: )-- l a & 1 ��
By: — -:�i"l e�3�
Montana Departm of Transportation
Civil Rights
By:
Jim
Department of Transportation
James atrick
City Manager
City of Kalispell
Chuck Cassidy
Facilities & Transportation Director
School District #5
Attachment A
NON-DISCRIMINATION NOTICE
During the performance of this Agreement, the CITY OF KALISPELL, MONTANA and
SCHOOL DISTRICT #5 (hereafter in this Section "the Parties"), for themselves, its
assignees and successors in interest, agrees as follows:
A) COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR
FEDERAL -AID CONTRACTS
(1) Compliance with Regulations: The Parties shall comply with all Regulations
relative to nondiscrimination in Federally -assisted programs of the Department of
Transportation, 49 Code of Federal Regulations (CFR), Part 21, as they may be
amended (hereafter referred to as the Regulations), which are incorporated by
reference and made a part of this Agreement, even if only state funding is here
involved.
(2) Nondiscrimination: The Parties, with regard to the work performed by it during
the Agreement, shall not discriminate on the grounds of sex, race, color, or
national origin in the selection and retention of subcontractors, including
procurement of materials and leases of equipment. The Parties shall not
participate either directly or indirectly in the discrimination prohibited by 49 CFR
Sec. 21.5.
(3) Solicitations for Subcontracts, Including Procurement of Materials and
Equipment: In all solicitations, whether by competitive bidding or negotiation by
the Parties for work to be performed under a subcontract, including procurement
of materials or leases of equipment, any potential subcontractor or supplier shall
be notified by the Parties of the Parties' obligations under this Agreement and the
Regulations relative to nondiscrimination.
(4) Information and Reports: The Parties will provide all reports and information
required by the Regulations, or directives issued pursuant thereto, and permit
access to its books, records, accounts, other sources of information and its
facilities as may be determined by State or the Federal Highway Administration
(FHWA) to be pertinent to ascertain compliance with Regulations or directives.
Where any information required of the Parties is in the exclusive possession of
another who fails or refuses to furnish this information, the Parties shall so certify
to the Department or the FHWA as requested, setting forth what efforts they have
made to obtain the information.
(5) Sanctions for Noncompliance: In the event of the Parties' noncompliance with the
nondiscrimination provisions of this Agreement, State may impose sanctions as it
or the FHWA determines appropriate, including, but not limited to,
(a) Withholding payments to the Parties under the Agreement until the Parties
comply, and/or
(b) Cancellation, termination or suspension of the Agreement, in whole or in
part.
(6) Incorporation of Provisions: The Parties will include the provisions of paragraphs
(1) through (6) in every subcontract, including procurement of materials and
leases of equipment, unless exempt by the Regulations or directives issued
pursuant thereto. The Parties will take such action with respect to any subcontract
or procurement as the State or the FHWA may direct to enforce such provisions
including sanctions for noncompliance: Provided, however, that in the event the
Parties are sued or are threatened with litigation by a subcontractor or supplier as
a result of such direction, the Parties may request the State to enter into the
litigation to protect the interests of the State, and, in addition, the Parties or the
State may request the United States to enter into such litigation to protect the
interests of the United States.
B) COMPLIANCE WITH THE MONTANA GOVERNMENTAL CODE OF FAIR
PRACTICES, SEC. 49-3-207, MCA
In accordance with Section 49-3-207, MCA, the Parties agree that for this Agreement all hiring
will be made on the basis of merit and qualifications and that there will be no discrimination on
the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental
disability, or national origin by the persons performing the Agreement.
(1) The Parties will comply with all regulations relative to implementation of the
AMERICANS WITH DISABILITIES ACT.
(2) The Parties will incorporate or communicate the intent of the following statement
in all publications, announcements, video recordings, course offerings or other
program outputs: "The Parties will provide reasonable accommodations for
any known disability that may interfere with a person in participating in any
service, program or activity offered by the Parties. In the case of documents,
recordings or verbal presentations, alternative accessible formats will be
provided. For further information call the Parties."
(3) All video recordings produced and created under contract and/or agreement will
be closed -captioned.
D) COMPLIANCE WITH PARTICIPATION BY DISADVANTAGED BUSINESS
ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL
ASSISTANCE PROGRAMS, 49 CFR PART 26
Each Agreement the Department signs with the Parties (and each subcontract the prime
contractor signs with a subcontractor) must include the following assurance:
The Parties, subrecipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The Parties
shall carry out applicable requirements of 49 CFR Part 26 in the award and
administration of DOT -assisted contracts. Failure by the Parties 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