DRAFT Construction Maintenance AgreementKalispell Bypass Maintenance/Construction Agreement
022 NH 15(32)
Kalispell Bypass: Foys Lake Section
UPN 2038
This Agreement by and between City of Kalispell (City of Kalispell), 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 US 93 Bypass located
within the City of Kalispell of Kalispell, Montana.
Whereas, the construction will be accomplished through Uniform Project Number 2038,
Federal -Aid Project Number 022 NH 15(32), titled Kalispell Bypass: Foys Lake Section
(Project) located on US 93 Bypass between 1.7 and 3.6; and,
Whereas, State and/or Federal Highway Administration (FHWA) funds will be used to pay
for the construction, the City of Kalispell and State must ensure that federal and state
requirements are met in fulfilling its obligations to the FHWA and for the project to remain
eligible for state and/or federal funding; and,
Whereas, the Project lies on the designated National Highway System under the
jurisdiction of the Montana Transportation Commission and MDT as per Mont. Code Ann.
60-2-110; and,
Whereas, the City has applied for and received funds from the U.S. Department of
Transportation, Better Utilizing Investments to Leverage Development (BUILD) Grants
program pursuant to The Consolidated Appropriations Act, 2018 (Pub. L. 115-141, March
23, 2018), hereinafter called "BUILD Award", to construct an additional section to the
Kalispell Bypass, UPN (FAIN #/Award Date/Award Duration/Award Amount), titled
Kalispell Bypass: Foys Lake Section (hereinafter the "Project"); and
Whereas, the BUILD Award amounts to $12,750,000 with National Highway Performance
Plan (NHPP) funds consisting of $5,369,800 being matched by MDT at $823,324 for a total
cost of $18,952,124 for the Project; and
Whereas, the Project will fund the construction of an interchange and 4-lane connection
for a 1.9-mile section of US Highway 93 Bypass in the CITY; and
Whereas, the City wishes to engage MDT to assists the parties in utilizing these funds; and
Whereas, the funding and federal requirements are agreed to under the "Sub -Recipient
Agreement for the BUILD Award and the "Grant Agreement Under The Consolidated
Appropriations Act, 2018 (PUB. L. 115-141, March 23, 2018) For The National
Infrastructure Investments Discretionary Grant Program (FY 2018 BUILD
TRANSPORTATION DISCRETIONARY GRANTS)"
Whereas, the City of Kalispell and MDT recognize the need to construct the Project and to
duly execute this Agreement in advance of construction phase programming; and,
Whereas, the City of Kalispell desires to have the Project constructed, the City of Kalispell
deeming it to be a valuable and beneficial consideration, and it will perform the functions,
duties and responsibilities as set forth in Agreement;
Now, therefore, the parties agree as follows:
ARTICLE I. GENERAL OBLIGATIONS OF MDT
1. MDT will design and award a Contract to construct the Project.
2. MDT will provide the City of Kalispell opportunities to participate in the Project's
development, including invitation to the final inspection of the project.
3. MDT will maintain the roadway surface, including pavement repair, pavement
preservation, and snowplowing, and will maintain all features, including signals (if
present) and non -decorative roadway lighting, within the roadway prism unless
otherwise noted herein.
4. If the City of Kalispell does not fulfill any maintenance requirements stated herein,
MDT may complete the required maintenance and seek compensation from the City
of Kalispell. In doing so, MDT must first provide notice to the City of Kalispell
allowing time to complete any such maintenance. If MDT performs such
maintenance under this section, it must provide detailed invoices of such costs to
the City of Kalispell.
S. For any maintenance requirements that are the obligation of the City of Kalispell, as
stated herein, MDT may complete any maintenance required due to a public
emergency and seek compensation from the City of Kalispell for any costs incurred.
In doing so, MDT may first provide notice to the City of Kalispell, 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 of
Kalispell.
6. MDT is the issuing authority for all future encroachment and approach permits.
ARTICLE II. GENERAL OBLIGATIONS OF THE CITY OF KALISPELL
The City of Kalispell agrees to conform in all regards to Mont. Code Ann. Title 61,
Chapter 8, and will not take any action, by enacting an ordinance or otherwise, in
contradiction of the traffic laws in Mont. Code Ann. Title 61, Chapter 8.
2. The City of Kalispell will provide appropriate and timely input during the Project's
development.
3. The City of Kalispell will continue to enforce the ordinances, laws and/or
regulations necessary and essential for the operations of the project.
4. The City of Kalispell, at its sole expense, will maintain the City of Kalispell signs
installed as part of this project. For the purposes of this Agreement, "maintenance of
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signs", is defined as: the inspection, cleaning, repair and replacement of signs
damaged through weathering, vandalism, the wind, or other means.
S. The City of Kalispell agrees no fixture, building, structure, or other permanent
installation other than those approved by MDT shall be constructed or placed within
MDT right-of-way without prior written approval from MDT.
6. Unless specified otherwise herein, the City of Kalispell agrees it will fund any
additional costs MDT may incur on future MDT projects due to any amenities the
City of Kalispell places in the MDT right-of-way.
The City of Kalispell agrees that any City of Kalispell -performed maintenance that
occurs within MDT right-of-way must be reviewed and approved by the appropriate
MDT District Maintenance Office prior to initiation of the maintenance.
ARTICLE III. PROJECT -SPECIFIC PROVISIONS
1. Construction Storm Water General Permit
a. Upon completion of all physical work associated with construction activity,
the parties will inspect the temporary erosion and sediment control
measures and devices as part of MDT's final inspection with MDT's
Contractor. MDT will provide the City of Kalispell with the Storm Water
Pollution Prevention Plan (SWPPP) package for City of Kalispell review.
Within ten (10) days of receiving the package, the City of Kalispell will
provide MDT with an itemized list of any outstanding records or deficiencies
associated with the SWPPP. Upon MDT's and the City of Kalispell's approval
of site conditions and Contractor records, MDT will provide the City of
Kalispell a Permit Transfer Notification (PTN) form. The City of Kalispell
must return the signed PTN form to MDT within ten (10) business days. MDT
will forward the completed PTN form and transfer fees to the Montana
Department of Environmental Quality (DEQ).
b. Once DEQ transfers the Construction Storm Water General Permit
Authorization, the City of Kalispell will inspect, maintain, and revise the Best
Management Practice devices (BMPs) in accordance with DEQ permit
requirements until final stabilization is met and permit coverage is
terminated.
c. MDT agrees to pay annual fees associated with permit coverage until
termination. To assure payment, the City of Kalispell must forward invoices
to the MDT's Environmental Services Bureau for payment.
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2. Small Municipal Separate Storm Sewer System (MS4) Permit
a. MDT concludes, and the City of Kalispell agrees, the project work is designed
in compliance with applicable Small MS4 Permit requirements.
b. The City of Kalispell agrees to operate, monitor and maintain storm water
management features in compliance with applicable MS4 requirements.
ARTICLE IV. PROJECT -SPECIFIC FEATURES
1. Shared -Use Path
a. Upon completion of the Project by the State and its Contractor, the City of
Kalispell agrees that it is responsible, at no cost to MDT, to service, maintain,
repair, and pay the cost of operating the path within the project limits, such
that it does not negatively impact the operation of the path or the safety of
the traveling public. If all or part of the shared use path becomes unsafe for
use, the City of Kalispell agrees to restrict access to the affected area until the
condition has been remedied.
b. For the purposes of this Agreement, "maintenance of a shared -use path" is
defined as: grinding or milling down displacements; surface patching; crack
sealing; sweeping; cleaning; washing; replacing portions of damaged path;
removal of snow and ice; repair of chipped, fractured, or broken surface from
any cause, including but not limited to frost heaving, landscaping, tree roots,
or encroachments; removal of debris and other obstructions or impediments
to the safe travel of pedestrians or other path users; maintenance of all
associated drainage features; maintenance of path -related signs; and any and
all other normally accepted maintenance practices.
c. For the purposes of this Agreement, "maintenance of shared -use path signs,"
is defined as: the inspection, cleaning, repair and replacement of signs
damaged through weathering, vandalism, wind, and other means.
2. Lighting
a. Upon completion of the Project by the State and its Contractor, the City of
Kalispell agrees that it is responsible, at no cost to MDT, to service, maintain,
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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 of Kalispell.
d. If the cost of energy is raised by the utility company, the City of Kalispell,
town or special improvement district shall pay their proportionate share of
the rate increase.
3. Sidewalks
a. Upon completion of the Project by the State and its Contractor, the City of
Kalispell agrees that it is responsible, at no cost to MDT, to service, maintain,
repair, and pay the cost of operating the sidewalk within the project limits,
such that it does not negatively impact the operation of the sidewalk or the
safety of the traveling public. If all or part of the Project becomes unsafe for
use, the City of Kalispell agrees to restrict access to the affected area until the
condition has been remedied.
b. For the purposes of this Agreement, "maintenance of a sidewalk" is defined
as: grinding or milling down displacements; surface patching; crack sealing;
sweeping; cleaning; washing; replacing portions of damaged sidewalk;
removal of snow and ice; repair of chipped, fractured, or broken surface from
any cause, including but not limited to frost heaving, landscaping, tree roots,
or encroachments; removal of debris and other obstructions or impediments
to safe pedestrian travel; and any and all other normally accepted
maintenance practices.
4. Landscaping/Irrigation Equipment
a. Upon completion of the Project by the State and its Contractor, the City of
Kalispell agrees that it is responsible, at no cost to MDT, to service, maintain
and repair the landscaping and irrigation equipment installed as part of this
project.
b. For the purposes of this Agreement, "maintenance of landscaping and
irrigation system," is defined as: mowing, watering, debris removal, weed
control, fertilizing, tree/shrub trimming including removal, replacement and
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maintenance of sight triangles, the repair and replacement of fences, and
maintenance of all features in compliance with ADA/PROWAG. The
irrigation system shall be fully operational, free of leaks, with heads selected
and adjusted to reduce water waste.
c. If the City of Kalispell is not able to complete the maintenance on the
landscaping and irrigation system as per this Agreement, the improvements
may become the property of MDT, without reimbursement. If landscaping or
irrigation become MDT property, MDT will maintain the property as it sees
fit and may remove the landscaping and irrigation system without City of
Kalispell approval. MDT may seek compensation for the maintenance or
removal of the landscaping and irrigation system from the City of Kalispell.
ARTICLE V. GENERAL TERMS AND CONDITIONS
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.
2. Termination - This Agreement may be terminated by MDT if the City of Kalispell
violates or breaches any term, condition, or article of this Agreement and the City of
Kalispell has failed to correct (or reasonably initiate correction) within 60 days of
receiving notice in writing addressed to the City of Kalispell's representative, 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 property as it sees fit and may remove the
improvements without City of Kalispell or landowner approval. MDT may seek
compensation for maintenance or removal of the improvements from the City of
Kalispell.
3. Other Agreements -Other Agreements pertaining to the project area remain in full
force and effect. In the case of a conflict between this Agreement and a previously
executed Agreement, the terms of this Agreement apply.
4. Hold Harmless & Indemnification
a. The City of Kalispell 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 of
Kalispell'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 of
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Kalispell, its agents, or sub -contractors, under this Agreement, except the
negligence of MDT.
b. The State and Department of Transportation agrees to protect, defend,
indemnify, and hold the City of Kalispell, 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 of Kalispell.
S. 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 of Kalispell 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.
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6. Public Safety
It is agreed, if any repairs to the elements of the Project must be performed to address
or prevent a public hazard, the City of Kalispell will immediately protect the area from
public access, contact the appropriate MDT District Maintenance Office, and make
reasonable and timely effort to correct or repair the hazard.
7. Invoicing and Indirect Cost (IDC).
a. If MDT incurs any costs resulting from this Agreement, MDT shall be entitled
to be compensated for such costs by the City of Kalispell and the City of
Kalispell shall pay the same within thirty (30) days of its receipt of such
invoices.
Mont. Code Ann. §17-1-106, 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 VI1. MDT's current IDC
rate is 10.41% for fiscal year 2020 (July 1, 2019 to June 30, 2020). If the work
occurs or extends into fiscal year 2021 or beyond the IDC rate will be charged at
the rate agreed to by MDT and the Federal Highway Administration (FHWA).
Invoice will be sent to:
Attu: Town Clerk V're;,,isurer
MMRHSS
ii. Payments shall be made to:
Montana Department of Transportation
Attention: Collections
2701 Prospect Avenue
PO Box 201001
Helena, MT 59620-1001
8. 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. In case of conflict between the terms and
conditions of this Agreement and the laws of the State of Montana, the laws of the
State of Montana shall control.
9. Binding Effect -- 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.
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10. 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.
11. Non -Discrimination - The City of Kalispell will require that during the performance
of any work arising out of this Agreement the City of Kalispell, 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.
12. ADA - MDT requires that any construction 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 Accessibility Design, United States Access Board Proposed Guidelines
for Pedestrian Facilities in the Public Right -of -Way (2011 PROWAG), and MDT's
detailed drawings, 608 series.
13. Audit - The City of Kalispell grants to the Legislative Auditor and the Legislative
Fiscal Analysts the right, without prior notice and during normal business hours, to
audit, at their own costs and expense, all records, reports, and other documents, the
City of Kalispell maintains in connection with this Agreement.
14. Utilities -- This Agreement is subject to the right of any private or public utility
entity now lawfully occupying the right-of-way to continue to operate and maintain
utility facilities thereupon. Copies of existing utility permits may be obtained from
the MDT District Utility Agent.
15. Amendment and Modification -- This Agreement may be modified or amended only
by written Addendum signed by the parties. In addition to the terms and conditions
contained herein, the provisions of any Addendum 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 provisions of
any Addendum, the provision of the Addendum shall control, unless the provisions
thereof are prohibited by law.
16. Representatives
a. City of Kalispell's Representative: The City of Kalispell's Representative for
this Agreement shall be the City of Kalispell Manager or designee or such
other individual as City of Kalispell shall designate in writing. Whenever
approval or authorization from or communication or submission to City of
Kalispell is required by this Agreement, such communication or submission
shall be directed to the City of Kalispell's Representative and approvals or
authorizations shall be issued only by such Representative; provided,
however, that in exigent circumstances when City of Kalispell's
Representative is not available, MDT may direct its communication or
submission to other designated City of Kalispell 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
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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 of Kalispell
may direct its direction or communication or submission to other designated
MDT personnel or agents.
17. 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.
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IN WITNESS WHEREOF, MDT's authorized representative has hereunto signed on behalf of
the State of Montana, and the City of Kalispell's authorized representative on behalf of the
City of Kalispell, has signed and affixed hereto the seal of the City of Kalispell.
STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION
Montana Department of Transportation Date
Approved for Legal Content
Approved for Civil Rights
CITY OF KALISPELL OF
KALISPELL
Name
Title
Attest:
Name
Title
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ATTACHMENT A: MDT
NONDISCRIMINATION AND
DISABILITY ACCOMMODATION
NOTICE