E2. Whitefish - Kalispell Building Inspector Interlocal AgreementCity of Kalispell
201 1st Ave E. P.O. Box 1997
Kalispell, Montana 59903-1997
(406) 758-7000 Fax (406)7757
REPORT TO: Mayor Johnson and Kalispell City Council
FROM: Doug Russell, City Manager
SUBJECT: Interlocal Agreement with Whitefish for Plan Review services
MEETING DATE: October 19, 2015
BACKGROUND: The City of Whitefish contacted our office this past fall inquiring about
the ability to assist them with commercial plan review services and/or building inspections as
they are experiencing a temporary workload that exceeds their current staffing levels.
Specifically, they are looking for assistance with their City Hall/Parking structure and a hotel
review. Additional services could include inspections.
Exhibit A outlines the scope of services and Exhibit B outlines the compensation schedule. For
Plan Review Services, the City of Kalispell would receive 50% of the total building application
fee charged by the City of Whitefish. If our cost to provide plan review services exceeds 50%,
the City of Whitefish agrees to compensate us for all costs on a time and material basis.
Additional services will be compensated on a time and material basis as well.
Our building department has been in contact with Whitefish officials and is comfortable that we
can provide the assistance that is requested without impacting our current workload.
Attached to this document is an interlocal agreement between the two cities that provides for this
arrangement, as allowable under Title 7, Chapter 11, Part 1, M.C.A., known as the "Interlocal
Cooperation Act". This Act permits governmental units to make the most efficient use of their
powers by enabling them to cooperate with other local governmental units on a basis of mutual
advantage and thereby to provide services and facilities in a manner and pursuant to forms of
governmental organization that will accord best with geographic, economic, population, and
other factors influencing the needs and development of local communities.
FISCAL IMPACTS: Kalispell will be compensated 50% of the total building application fee
charged by the City of Whitefish, plus reimbursement for time and materials for additional
services. The total agreement is not anticipated to exceed $100,000.
RECOMMENDATION: It is recommended that the City Council authorize the City
Manager to sign the attached Interlocal agreement between the Cities of Kalispell and Whitefish.
INTERLOCAL AGREEMENT
between
THE CITY OF WHITEFISH
and
THE CITY OF KALISPELL
The CITY OF WHITEFISH, hereinafter referred to as "WHITEFISH", a municipal
corporation duly formed and authorized pursuant to Montana state law and the CITY OF
KALISPELL, hereinafter referred to as "KALISPELL" a municipal corporation duly formed
and authorized pursuant to Montana state law hereby enter into agreement as set forth below.
RECITALS
WHEREAS, Title 7, Chapter 11, Part 1, M.C.A., known as the "Interlocal Cooperation Act,"
permits governmental units to make the most efficient use of their powers by
enabling them to cooperate with other local governmental units on a basis of
mutual advantage and thereby to provide services and facilities in a manner and
pursuant to forms of governmental organization that will accord best with
geographic, economic, population, and other factors influencing the needs and
development of local communities; and
WHEREAS, said Act provides that an Interlocal agreement may be authorized and approved by
the governing body of each party to said contract; and
WHEREAS, WHITEFISH is a municipal corporation of the State of Montana located within
Flathead County, Montana and is duly organized and in existence pursuant to the
terms of MCA Title 7 Chapter 3 Part 43; and
WHEREAS, KALISPELL is a municipal corporation of the State of Montana located within
Flathead County, Montana and is duly organized and in existence pursuant to the
terms of MCA Title 7 Chapter 3 Part 43; and
WHEREAS WHITEFISH requires professional services to be performed in connection with
Commercial Building Plan Reviews in the City of WHITEFISH, Montana (the
"Project"); and
WHEREAS, KALISPELL represents that its municipal Building Department staff is fully
qualified and capable to perform such services and is in compliance with federal
and state law relating to the provisions of such service; and
WHEREAS, WHITEFISH desires to have KALISPELL perform such professional services,
and KALISPELL is willing to do so.
Interlocal Agreement - Page I
NOW THEREFORE, ITISAGREED by and between WHITEFISH and KALISPELL,
each a local government agency of the State of Montana, and pursuant to MCA 7-11-104, that it
is to their mutual benefit to adopt this Interlocal Agreement as follows:
1. SCOPE OF WORK OR SERVICES; COMPENSATION:
A. KALISPELL shall furnish professional services, obligations, and
responsibilities under this Agreement, more particularly set forth in Exhibit
"A," Scope of Service, attached hereto and incorporated herein by this
reference.
B. WHITEFISH shall pay for services from time to time, as set forth in Exhibit
"B," Compensation Schedule, attached hereto and incorporated herein by this
reference, in an amount not to exceed $100,000.00.
C. WHITEFISH shall pay KALISPELL within thirty (30) days following receipt
from KALISPELL and approval by WHITEFISH of invoices showing the
services performed and the name of the Project. KALISPELL shall certify on
the invoices that KALISPELL has performed the services in full conformance
with this Agreement and is entitled to receive payment. KALISPELL shall
indicate on the invoices the Building Review project, together with a
description of the services provided with respect to each employee or agent,
and the Building Plan Review fee charged therefore. The amounts of payment
and schedule of submission of invoices are set forth in Exhibit "B."
D. KALISPELL may select the time and place of performance hereunder,
provided, however, that access to WHITEFISH documents, records, and the
like, if needed by KALISPELL, shall be available only during WHITEFISH's
normal business hours.
2. COORDINATION AND ORGANIZATION:
A. KALISPELL shall coordinate its performance with the WHITEFISH's project
manager. KALISPELL shall advise and inform WHITEFISH's project
manager of the work in progress on the Project in sufficient detail so as to
assist WHITEFISH's project manager in making presentations and in holding
meetings for the exchange of information.
The designated contact for WHITEFISH is:
David Taylor
Planning and Building Director
PO Box 158
Whitefish, Montana 59937
406-863-2416
Interlocal Agreement - Page 2
The designated contact for KALISPELL is:
Jeff Clawson
Chief Building Official
201 1 st Avenue East
Kalispell, MT 59901
406-758-7739
B. The parties acknowledge that a substantial inducement to WHITEFISH for
entering this Agreement was and is the reputation and skill of key employee
Jeff Clawson. WHITEFISH shall have the right to approve any person
proposed by KALISPELL to replace such key employee.
3. INSURANCE: WHITEFISH acknowledges that KALISPELL has the same levels of
insurance coverage through the Montana Municipal Interlocal Authority as WHITEFISH
and as such provides the same degree of insurance protection as would exist if
WHITEFISH was utilizing its own personnel for the Project. KALISPELL shall comply
with all applicable requirements of Montana's Workers' Compensation Act, and the
Occupational Disease Act.
4. INDEMNITY: WHITEFISH agrees to indemnify and hold KALISPELL harmless
of and from any and all claims, demands, actions, suits, proceedings or judgments based
upon the negligence of WHITEFISH employees in its performance or failure to perform
the services contracted for.
KALISPELL agrees to indemnify and hold WHITEFISH harmless of and from any and
all claims, demands, actions, suits, proceedings or judgments based upon the Plan Review
of WHITEFISH's building codes and not resulting from the negligence of WHITEFISH's
employees.
5. ASSIGNMENT AND SUBCONTRACTING: This Agreement contemplates the
personal services of KALISPELL and KALISPELL's employees, and the parties
acknowledge that a substantial inducement to WHITEFISH for entering this Agreement
was and is the professional reputation and competence of KALISPELL and
KALISPELL's employees. KALISPELL shall not assign its rights or delegate its duties
hereunder, or any interest herein, or any portion hereof, without the prior written consent
of WHITEFISH, except that KALISPELL may, upon written consent of the Whitefish
City Manager obtained in advance, assign any monies due or to become due the
KALISPELL hereunder. Any attempted assignment or delegation shall be void, and any
assignee or delegate shall acquire no right or interest by reason of such attempted
assignment or delegation. Furthermore, KALISPELL shall not subcontract any portion
of the performance required hereunder without the prior written consent of the Whitefish
City Manager or his designee, nor substitute an approved subcontractor without said prior
written consent to the substitution. Nothing stated in this Paragraph 5 shall prevent
KALISPELL from employing as many employees as KALISPELL deems necessary for
performance of this Agreement.
Interlocal Agreement - Page 3
6. CONFLICT OF INTEREST: KALISPELL, by executing this Agreement,
certifies that, at the time KALISPELL executes this Agreement and for its duration,
KALISPELL does not and will not perform services for any other client which would
create a conflict, whether monetary, scheduling, or otherwise, as between the interests of
WHITEFISH hereunder and the interests of such other client.
7. MATERIALS: KALISPELL shall furnish all labor and supervision, supplies,
materials, tools, machinery, equipment, appliances, transportation, and services necessary
to or used in the performance of KALISPELL's obligations.
8. OWNERSHIP OF DATA: All materials, information and data prepared, developed,
or assembled by KALISPELL or furnished to KALISPELL in connection with this
Agreement, including but not limited to documents, estimates, calculations, studies,
maps, graphs, charts, computer disks, computer source documentation, samples, models,
reports, summaries, drawings, designs, notes, plans, information, material, and
memorandum ("Data") shall be the exclusive property of WHITEFISH. Data shall be
given to WHITEFISH, and WHITEFISH shall have the unrestricted right to use and
disclose the Data in any manner for use in connection with the project for which it is
intended without payment of further compensation to KALISPELL. Copies of Data may
be retained by KALISPELL but KALISPELL warrants that Data shall not be made
available to any person or entity for use without the prior written approval of
WHITEFISH. Said warranty shall survive termination of this Agreement for ten (10)
years. It is agreed that KALISPELL's referral to Data in general terms for the purpose of
listing past professional experience in future marketing endeavors is not a violation of
this warranty.
9. CONFIDENTIALITY: KALISPELL shall keep the Data confidential and shall not
disclose the Data or use the Data directly or indirectly other than in the course of services
provided hereunder during this Agreement and for ten (10) years following expiration or
termination of this Agreement. In addition, KALISPELL shall keep confidential all
information whether written, oral, or visual, obtained by any means whatsoever in the
course of KALISPELL's performance hereunder for the same period of time.
KALISPELL shall not disclose any or all of the Data to any third party, nor use it for
KALISPELL's own benefit or the benefit of others except for the purpose of this
Agreement.
10. CHANGES AND EXTRA SERVICES:
A. WHITEFISH may make changes within the general scope of this Agreement.
Change orders shall be in writing and shall state the dollar amount of the
change, the method of payment, any adjustment in the time for performance
and, when negotiated prices are involved, shall provide for the KALISPELL's
signature indicating acceptance. If KALISPELL estimates that change will
cause an increase or decrease in the cost or time required for performance,
KALISPELL shall so notify WHITEFISH of that fact. Any notification by
Interlocal Agreement - Page 4
KALISPELL shall be provided within ten (10) calendar days from the date of
receipt by KALISPELL of the change order. In addition, KALISPELL shall
notify WHITEFISH when KALISPELL identifies a condition which may
change the initial scope of work or services. All change orders shall be
deemed part of this Agreement.
B. WHITEFISH may request in a change order that KALISPELL perform extra
services not covered by the scope of work or services, and KALISPELL shall
perform such extra services. WHITEFISH shall pay for such extra services as
specified in the change order. WHITEFISH shall not be liable for payment of
such extra services nor shall KALISPELL be obligated to perform such extra
services unless and until the change order is signed by both parties. Extra
services shall not exceed twenty-five percent (25%) of the contract price, as
set out in Exhibit "B," without prior approval of the WHITEFISH Council.
11. TERMINATION:
A. Either party may terminate this Agreement by giving ten (10) days' prior
written notice to the other party in the event of substantial failure by such
other party to perform in accordance with the terms of this Agreement through
no fault of the terminating party.
B. WHITEFISH shall have the right to terminate this Agreement for any reason
or no reason at any time by giving ten (10) days' prior written notice to
KALISPELL.
C. In the event of termination under Paragraph 9(A) or Paragraph 9(B), the
ten (10) days shall run from the date of deposit in the mail or the date on
which personal service is obtained, whichever first occurs. Further, in the
event of termination under Paragraph 9(A) or Paragraph 9(B), WHITEFISH
shall pay KALISPELL for services satisfactorily performed and costs incurred
up to effective date of termination for which KALISPELL has not been
previously paid. The procedures for payment in Paragraph 1(C) with regard
to invoices shall apply. On the effective date of termination, KALISPELL
shall deliver to WHITEFISH all Data developed or accumulated in the
performance of this Agreement, whether in draft or final form, or in process,
without regard to whether or not KALISPELL has received from the
WHITEFISH all compensation that KALISPELL claims is due.
12. NONDISCRIMINATION: KALISPELL agrees that all hiring by KALISPELL of
persons performing this Agreement will be on the basis of merit and qualification and
will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age,
marital status, physical or mental disability, or national origin. KALISPELL agrees to
comply with all applicable federal, state, and municipal laws concerning the prohibition
of discrimination.
Interlocal Agreement - Page 5
13. AMENDMENT: This Agreement, including all exhibits, shall not be amended, nor
any provision or breach hereof waived, except in writing signed by the parties which
expressly refers to this Agreement.
14. NO THIRD -PARTY BENEFICIARY: This Agreement is for the exclusive benefit
of the parties, does not constitute a third -party beneficiary agreement, and may not be
relied upon or enforced by a third party.
15. GOVERNING LAW: This Agreement shall be governed by and construed pursuant
to the laws of the State of Montana.
16. FORUM: Any legal proceeding to enforce or interpret this Agreement or to protect
or establish any rights or remedies hereunder shall be maintained only in the courts in the
County of Flathead, Montana.
17. NECESSARY ACTS: Each party to this Agreement agrees to perform any further
acts and execute and deliver any further documents that may be reasonably necessary to
carry out the provisions of this Agreement.
18. ENTIRE AGREEMENT: This Agreement, including all exhibits, constitutes the
entire understanding between the parties and supersedes all other agreements, whether
oral or written, with respect to the subject matter herein.
19. SEVERABILITY: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
20. NOTICES: Any notice required hereunder or desired to be given by either party
shall be in writing and personally served or deposited in the U.S. Postal Service, first
class, postage prepaid, addressed to KALISPELL at its address stated herein, and to the
City of Whitefish, Attention: Whitefish City Manager, PO Box 158, Whitefish, Montana
59937. Notice of change of address shall be given in the same manner as stated herein
for other notices. The notice shall be deemed given on the date deposited in the mail or
on the date personal service is obtained, whichever first occurs.
21. WAIVER: The acceptance of any services or the payment of any money by
WHITEFISH shall not operate as a waiver of any provision of this Agreement, or of any
right to damages or indemnity stated in this Agreement. The waiver of any breach of this
Agreement shall not constitute a waiver of any other or subsequent breach of this
Agreement.
22. AUTHORITY: Each party represents that it has full power and authority to enter
into and perform this Agreement and the person signing this Agreement on behalf of each
party has been properly authorized and empowered to sign this Agreement.
Interlocal Agreement - Page 6
23. EFFECTIVE DATE: The effective date of this agreement shall be upon the
execution of this document as authorized by the governing bodies of each party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
dates set forth opposite their signatures.
CITY OF WHITEFISH,
a municipal corporation
Charles C. Stearns
Whitefish City Manager
DATED:
CITY OF KALISPELL
a municipal corporation
UOIN
Douglas Russell
Kalispell City Manager
DATED:
EXHIBIT "A" Scope of work or services, including proposed timeline
EXHIBIT "B" Compensation schedule and procedure for reimbursement of expenses
Interlocal Agreement - Page 7
EXHIBIT A
Scope of Services
Provide commercial building plan review and approval of commercial building permit
applications in Whitefish while Whitefish's Chief Building Official is absent from work
with an illness. Commercial building permit applications contemplated include, but are
not limited to the Whitefish City Hall/Parking Structure project and a possible Marriott
Hotel in Whitefish. Other commercial building permit applications are subject to the
approval of both Whitefish and Kalispell. Kalispell agrees to perform commercial
building plan reviews within 30 days of their receipt of complete plans for review.
2. Provide commercial building plan review and approval of commercial building permit
applications in Columbia Falls while Whitefish's Chief Building Official is absent from
work with an illness. Commercial building permit applications contemplated include, but
are not limited to a possible hotel in Columbia Falls. Other Columbia Falls commercial
building permit applications are subject to the approval of both Whitefish and Kalispell.
Kalispell agrees to perform commercial building plan reviews within 30 days of their
receipt of complete plans for review.
As Kalispell has time and as Whitefish may desire, Kalispell could perform commercial
building inspection services for Whitefish. Both Kalispell and Whitefish that these
additional services are not contemplated at the time of this agreement, but this agreement
allows it to occur with the consent of both parties. Compensation shall be as shown on
Exhibit B for these services.
Interlocal Agreement - Page 8
EXHIBIT B
Compensation Schedule
For commercial building plan reviews, Whitefish receives a building plan review fee
equal to 65% of the total building permit fee. Upon payment of the building plan review
fee, Whitefish shall retain 15% of the total building permit fee for its costs in
administering the building plan review and shall remit 50% of the total building permit
fee (the remaining portion of the 65% fee) to Kalispell for their building plan review
costs.
If Kalispell's services, on a time and materials basis, on any building plan review that it
does for Whitefish exceed the revenues Kalispell receives from the 50% remittance
described above because of overtime or other costs, Whitefish agrees to pay such
additional costs on a time and materials basis to Kalispell so Kalispell fully recovers all
of its costs for providing building plan review services for Whitefish.
If Whitefish and Kalispell agree to have Kalispell provide some commercial building
plan inspection services, Whitefish shall pay Kalispell its full costs on a time and
materials basis. Hourly time costs shall include, but not be limited to hourly
compensation, overtime, all benefits and employer contributions on a direct or pro -rated
hourly or percentage basis, and any materials or supplies costs. Kalispell agrees to
invoice Whitefish for such costs showing itemized costs for wages, overtime, benefits
and employer contributions (can be aggregated), and materials or supplies. Whitefish
agrees to remit payment on such invoices within 30 days of receipt of the invoice.
Interlocal Agreement - Page 9