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HomeMy WebLinkAbout026_MDTDevelopmentILOCAgreement 1 | Page AGREEMENT BETWEEN THE MONTANA DEPARTMENT OF TRANSPORTATION AND BOZEMAN TRAX PARTNERS, LLC FOR NORTH PARK DEVELOPMENT NOVEMBER 2023 2 | Page This Agreement (Agreement) is made and entered into by and between Bozeman Trax Partners, LLC (Developer), 5148 US Highway 89 South, Livingston, MT, 59047 and the Montana Department of Transportation (MDT), a department of the State of Montana, P.O. Box 201001, Helena MT 59620-1001 together referred to as “the Parties”. The purpose of this Agreement is to set forth the respective responsibilities and duties of the Parties associated with the Developer’s design and construction of an approach at North 7th Avenue (P-118A) and Cultivar Street for the Developer’s Phase I improvements (the Phase I Project) shown in the attachments appended to this agreement and the Developer’s responsibilities to design, construct, and financially guarantee future signalization of the North 7th Avenue and Cultivar Street intersection (the Signal Project) as shown in the attachments appended to this agreement to mitigate the Developer’s impacts along North 7th Avenue (P-118A). This Agreement, and Attachments A (Non-Discrimination Notice), B (Phase 1 & Signal Project Plans), C (Cost Estimate), & D (Financial Guarantee), set forth terms the Developer must meet for MDT to provide the Developer approach and encroachment permits to modify North 7th Avenue (P-118A). Any 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. WHEREAS, the Parties wish to establish and agree to the terms and conditions necessary for the Developer to construct the Phase I Project shown in Attachment B. WHEREAS, the Parties wish to establish and agree to the terms and conditions necessary for the Developer to design, construct, and financially guarantee the Developer’s Signal Project shown in Attachment B. WHEREAS, MDT is responsible for planning, designing, constructing and maintaining State Highways and roadways, and associated transportation facilities, including associated pull-offs, parking areas, and rest areas for the use and benefit of the traveling public, in a safe and efficient manner and in accordance with Title 23 United States Code (U.S.C.) and Title 60 Montana Code Annotated (MCA) including N. 7th Avenue (P-118A), a commission-designated highway system route; and WHEREAS, in accordance with the State’s agreement with the Federal Highway Administration (FHWA) of the U.S. Department of Transportation, MDT must ensure that certain requirements are met in order for MDT to fulfill its obligations to the FHWA and for North 7th Avenue (P-118A), to be eligible for federal funds; and WHEREAS, this Agreement must be fully executed before initiation of the Phase 1 Project modifications within the N. 7th Avenue (P-118A) right-of-way; and NOW, THEREFORE, The Parties set forth the fundamental duties and responsibilities and agree as follows: ARTICLE I. GENERAL OBLIGATIONS OF THE DEVELOPER 3 | Page 1. Per MDT’s direction with construction of the Developer’s Phase I Project, the Developer will, at its sole cost and expense, design and construct the Phase I Project including an approach with a stop control as shown in Attachment B. 2. Per MDT’s direction the Developer will, at its sole cost and expense, design and construct the Signal Project as shown in Attachment B, within 12 months of MDT’s written notice to Developer that a signal is warranted and justified. Such determination will be solely determined by MDT through its review of the annual traffic impact study addendum and warrant analysis. 3. Developer shall financially guarantee the design and construction of the Signal Project in accordance with the terms of this Agreement prior to the construction of the Phase I Project. ARTICLE II. GENERAL OBLIGATIONS OF THE DEVELOPER-THE PHASE I PROJECT 1. The Developer will submit, for MDT review and approval, all design materials and clearances required to construct the Phase I Project as shown in Attachment B. 2. The Developer is responsible for obtaining, in MDT’s name, all necessary right-of-way for the Phase I Project. 3. The Developer must comply with MDT’s permit and review process for modifications of state highways. 4. The Developer agrees to meet traffic control, geometrics and construction standards established by MDT. 5. The Developer shall complete necessary environmental processes for modification to the state highways and roadways and demonstrate all, if any, environmental issues associated with the proposed project have been identified and mitigated. The Developer agrees to 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 construction taking place within MDT right-of-way. 6. The Developer agrees that 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. 7. The Developer agrees any change, expansion, increase or revision in the MDT approved design or construction of the Phase I Project must receive written approval from MDT prior to construction or installation. 8. The Developer must submit a traffic control plan and receive approval for the plan from the MDT Butte District Traffic Engineer prior to working within MDT right-of-way. 4 | Page 9. Before initiating any work within MDT right-of-way, the Developer must schedule a preconstruction meeting with the MDT Bozeman Area Maintenance Chief and other appropriate MDT staff to discuss construction related activities and coordination. The Developer must receive approval a minimum of 14 calendar days prior to commencing any construction work within MDT right-of-way. 10. Any work performed prior to MDT review and approval that requires permitting is subject to removal if MDT design standards and/or guidelines are not met. 11. MDT design reviews are meant to ensure compatibility with existing facilities and design standards and guidelines. The Developer is responsible for all survey and plan errors and/or omissions that impact the constructability or intended design function of the Project. 12. The Developer shall provide full time construction inspection and certification. The Developer must provide weekly construction inspection reports to the Bozeman District Maintenance Chief until completion of the Project. 13. The Developer is responsible for any and all damages to MDT’s facilities or adjacent landowners caused by the Developer, the Developer’s staff or contractors, or resulting from the Developer’s operations. The Developer must repair any and all damages, at its sole expense, after notification of damage by MDT and approval by MDT of the repair work needed, the method of repair, and the schedule of repair. ARTICLE III. OBLIGATIONS OF THE DEVELOPER-THE SIGNAL PROJECT 1. The Developer shall submit, for MDT review and approval, 60 to 70% design materials and clearances required to construct the Signal Project for MDT approval prior to construction of the Phase I improvements which shall be appended to this agreement in Attachment B. 2. The Developer shall submit, for MDT review and approval, a cost estimate of the Signal Project based upon the 60 to 70% design materials prior to construction of the Phase I Project which shall be appended to this agreement in Attachment C. 3. The Developer shall submit a yearly traffic impact study (TIS) addendum to MDT with signal warrant analysis on the 1st day of every February for MDT review until such time as MDT provides written notice to the Developer to proceed with the Signal Project. 4. The Developer shall submit a completed design for the Signal Project to MDT for review and approval within three months of MDT’s written notification that the signal is justified and warranted. 5 | Page 5. The Developer is responsible for obtaining, in MDT’s name, all necessary right-of-way for the Signal Project. 6. The Developer must comply with MDT’s permit and review process for modifications of state highways. 7. The Developer agrees to meet traffic control, geometrics and construction standards established by MDT. 8. The Developer shall complete necessary environmental processes for modification to the state highways and roadways and demonstrate all, if any, environmental issues associated with the proposed project have been identified and mitigated. The Developer agrees to 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 construction taking place within MDT right-of-way. 9. The Developer agrees that 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. 10. The Developer agrees any change, expansion, increase or revision in the MDT approved design or construction of the Signal Project must receive written approval from MDT prior to construction or installation. 11. The Developer must submit a traffic control plan and receive approval for the plan from the MDT Butte District Traffic Engineer prior to working within MDT right-of-way. 12. Before initiating any work within MDT right-of-way, the Developer must schedule a preconstruction meeting with the MDT Bozeman Area Maintenance Chief and other appropriate MDT staff to discuss construction related activities and coordination. The Developer must receive approval a minimum of 14 calendar days prior to commencing any construction work within MDT right-of-way. 13. Any work performed prior to MDT review and approval that requires permitting is subject to removal if MDT design standards and/or guidelines are not met. 14. MDT design reviews are meant to ensure compatibility with existing facilities and design standards and guidelines. The Developer is responsible for all survey and plan errors and/or omissions that impact the constructability or intended design function of the Project. 6 | Page 15. The Developer shall provide full time construction inspection and certification. The Developer must provide weekly construction inspection reports to the Bozeman District Maintenance Chief until completion of the Project. 16. The Developer is responsible for any and all damages to MDT’s facilities or adjacent landowners caused by the Developer, the Developer’s staff or contractors, or resulting from the Developer’s operations. The Developer must repair any and all damages, at its sole expense, after notification of damage by MDT and approval by MDT of the repair work needed, the method of repair, and the schedule of repair. ARTICLE IV. OBLIGATIONS OF THE DEVELOPER-THE FINANCIAL GUARANTEE 1. Upon execution of this agreement, the Developer agrees to financially guarantee its obligation to complete the Signal Project using an Irrevocable Letter of Credit (ILOC) in favor of MDT in the amount of $___________________, which shall allow MDT to withdraw the funds necessary for MDT to complete the Signal Project in the event the Developer has not completed the Signal Project, as solely determined by MDT in accordance with the terms of this Agreement. 2. The ILOC and financial institution providing the ILOC shall meet the following criteria: a. The Developer shall automatically renew and maintain the ILOC until the Signal Project is completed, as solely determined by MDT. b. The Developer must provide notice to MDT as to the status of the ILOC no less than 90 days prior the end of each ILOC term. c. The Developer shall provide proof to MDT of the ILOC’s renewal no less than 30 days prior to the end of each ILOC term. d. Every ILOC shall be appended to Attachment D. 3. The Developer agrees MDT shall use the ILOC to pay for any and all costs MDT incurs to complete the Signal Project as set forth in this Agreement. ARTICLE V. OBLIGATIONS OF THE MDT-THE PHASE I PROJECT 1. MDT agrees to review all plans, designs and data submitted by the Developer to ensure all MDT safety and design standards are met, and if found acceptable, approve such plans and designs. 2. Upon completion of MDT’s review and approval process, MDT will issue the approach and encroachment permits for the Phase 1 Project per MDT’s established permitting process and grant permission to enter MDT right-of-way for the Phase I Project, conduct final inspection of said work and note any deficiencies in installation or workmanship needing correction prior to accepting the work. 7 | Page 3. MDT agrees it will review the Developer’s traffic control plan and if such plan meets established guidelines, it will approve the plan. 4. MDT agrees it will request necessary approval or concurrence from the Transportation Commission for the Phase I Project described in this Agreement. ARTICLE VI – OBLIGATIONS OF MDT – THE SIGNAL PROJECT 1. MDT will review the TIS addendums provided by the Developer to MDT for review and will inform the Developer when to begin completion of the design and construction of the Signal Project. 2. MDT agrees to review all plans, designs and data submitted by the Developer to ensure all MDT safety and design standards are met, and if found acceptable, approve such plans and designs. 3. Upon completion of MDT’s review and approval process, MDT will issue the encroachment permits for the Signal Project per MDT’s established permitting process and grant permission to enter MDT right-of-way for Signal Project work to be done, conduct final inspection of said work and note any deficiencies in installation or workmanship needing correction prior to accepting the work. 4. MDT will ensure the Signal Project will be presented to the Montana Transportation Commission for approval. ARTICLE VII – GENERAL TERMS AND CONDITIONS 1. Term – The Agreement terminates when the Signal project is completed. 2. Termination – This Agreement may be terminated by MDT if the Developer has violated or breached any term, condition or article of this Agreement and the Developer has failed to correct the same within 60 days of receiving notice in writing addressed to the Developer at the addresses shown above, from MDT of such violation or breach of any term condition or article of this Agreement. 3. Hold Harmless & Indemnification The Developer shall protect, defend, indemnify, and hold MDT and the State of Montana, 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 Developer’s employees or third parties on account of personal or bodily 8 | Page injury, death or damage to property, arising out of any acts or omissions of the Developer, its agents, or sub-contractors, under this Agreement, except the sole negligence of MDT. 4. Insurance Developer shall maintain for the duration of the Agreement at their cost and expense insurance against claims for injuries to persons or damages to property which may arise from or in connection with any act or omission by Developer and their agents, employees, representative, assigns or subcontractors. This insurance shall cover such claims as may be caused by any intentional or negligent act or omission of Developer. Developer ’s insurance coverage shall be primary insurance with respect to MDT, its officers, officials, employees and volunteers and shall apply separately to the structures and their locations. Any insurance or self-insurance maintained by MDT, its officers, officials, employees or volunteers shall be excess of Developer ’s insurance and shall not contribute to it. a). Commercial General Liability Insurance: Developer shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage as set forth below, to cover such claims as may be caused by any act, omission, or negligence of Developer or their officers, agents, representatives, assigns, or subcontractors. Commercial General Liability insurance covering all operations under the Agreement shall have coverage substantially similar to the standard ISO Commercial General Liability Insurance policy, the limits shall be: Each Occurrence $1,000,000 General Aggregate $2,000,000 Excess/Umbrella Liability Insurance $2,000,000 Any party classified as a governmental entity may meet the insurance requirements of this Agreement through self-insurance or risk sharing pool coverage which meets Montana statutory tort limits. Proof of self-insurance or risk sharing pool coverage must be provided to MDT before commencement of the Agreement activities. Developer must notify the State immediately of any change in insurance coverage during the term of this Agreement and must meet the limits for private insurance shown above should self-insurance or risk sharing pool coverage be discontinued. b). Additional insured status: The State, MDT, its officers, officials, employees, and volunteers are to be covered and listed as additional insureds arising out of the activities performed by or on behalf of Developer, including the insured’s general supervision of any Contractor; products, and completed operations; premises owned, leased, occupied or used. c). Certificates of Insurance: Insurance is to be placed with an insurer with a Best’s rating of no less than A-. The Best’s rating requirement does not apply to any governmental entity self-insurance or risk-sharing pool insurance coverage. Developer must notify the State immediately of any material change in insurance coverage, such as changes in limits, coverages, changes in status of policy, etc. The State reserves the right to require complete copies of insurance policies at any time. 9 | Page d). Workers’ Compensation Insurance: The Developer 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. 5. Public Safety If any repairs to the elements of the Project must be performed to address or prevent a public hazard, the Developer 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 (IDC) If MDT incurs any costs as a result of an action on MDT’s part for maintenance or repair of MDT facilities due damages caused by the Developer or its agents/contractor during Construction of the Phase I or the Signal Project, MDT shall be compensated for such costs by the Developer, and the Developer 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 § 200, Appendix VII. MDT’s current IDC rate is 13.56 % for fiscal year 2024 (July 1, 2023 to June 30, 2024). If the work occurs or extends into fiscal year 2024 or beyond the IDC rate will be charged at the rate agreed to by MDT and the FHWA. a. Invoice will be sent to: Bozeman Trax Partners, LLC (Developer) 5148 US Highway 89 South Livingston, MT, 59047 b. Payments shall be made to: Montana Department of Transportation Attention: Collections 2701 Prospect Avenue PO Box 201001 10 | Page Helena, MT 59620-1001 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. 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. 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 Developer will require that during the performance of any work arising out of this Agreement the Developer, 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. 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 Access Board 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 Developer maintain in connection with this Agreement. 13. Access and Retention of Records – The Developer agrees to provide the State, Legislative Auditor, or their authorized agents access to any records necessary to determine compliance with this Agreement (Mont. Code Ann. §18-1-118). The Developer 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, prior to the beginning of construction of the Signal Project, the Developer will modify, at no expense to MDT, the Signal Project accordingly. 15. 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 11 | Page to the Developer. Copies of existing utility permits may be obtained from the MDT District Utility Agent. 16. Amendment and Modification – The Parties may, upon MDT’s sole approval, modify and append revisions to Attachments B, C, & D to this agreement. Otherwise, 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. 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. (Signature Pages to Follow) 12 | Page 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. SIGNATURES: STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION By ______________________________________________ ______________________, 2022 Montana Department of Transportation ________________________________ Approved for Legal Content ________________________________ Approved for Civil Rights TKJ Development, LLC Date: _______________________________________ By: _____________________________________________ Bozeman Trax Partners, LLC 13 | Page ATTACHMENT A MDT Nondiscrimination and Disability Accommodation Notice 14 | Page ATTACHMENT B Plans - Phase 1 Project & Signal Project 15 | Page ATTACHMENT C MDT Cost Estimate/Developer Participation 16 | Page ATTACHMENT D Financial Guarantee