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1 MEMORANDUM OF UNDERSTANDING 5th Street, 6th Street, Arthur Avenue and Maurice Avenue Realignment by Montana Department of Transportation City of Missoula The University of Montana I. PARTIES This Agreement made and entered into on this day of November 2009, by and between the MONTANA DEPARTMENT OF TRANSPORTATION (herein, “Department”), P.O. Box 201001, Helena, MT 59620, The UNIVERSITY OF MONTANA (herein, “University”), Building 32 Campus Drive, Missoula, MT 59812, and the CITY OF MISSOULA (herein, “City”), 435 Ryman, Missoula, MT 59802. II. PURPOSE: The purpose of this Agreement is to set forth the duties and responsibilities of the parties with regard to the redirection of Highway 12 traffic along Arthur Avenue between Madison Street Bridge and 6th Street, in the City of Missoula; with the objective of improving automobile, bicycle, and pedestrian flow on US Highway 12 near the University of Montana Campus, and allowing the safe and efficient movement of traffic. This Agreement specifically supersedes and voids the terms and conditions of the 5th, 6th, Arthur, Madison Realignment Memorandum of Understanding, dated May 2001, between the City, the University, and the Department, and the Agreement to Exchange Real Estate dated May 2001, between the University and the Department III. AGREEMENT OF PARTIES: The University agrees to provide right of way necessary to re-align Highway 12 between Madison Street Bridge and 6th Street on a contingency right of way exercise basis. This right of way will be sufficient to accommodate future development of a facility consistent with the Arthur Avenue Preferred Alternative Option 2, Figure 2-4, identified in the Environmental Assessment and Nationwide Section 4(f) Evaluation, Arthur Avenue CM 7-2(36)94 CN 4611, dated February 2006. The contingency right of way exercise basis requires the Department to submit to the University a legally authorized and fully funded project. The Department agrees to fund signal improvements at the intersections of Arthur Avenue and 5th Street and Arthur Avenue and 6th Street; ---PAGE BREAK--- 2 The City agrees to fund all construction activity necessary for the re-alignment of Highway 12 traffic along Arthur Avenue between Madison Street Bridge and 6th Street, consistent with the purposes of this Agreement; and The parties further agree to proceed in compliance with MEPA and to participate in public meetings to assure public comment is obtained and considered prior to commencing construction. IV. HOLD HARMLESS, INDEMNIFICATION: The City agrees to protect, defend and save the Department, the University, and the State of Montana, its elected and appointed officials, agents and employees, while acting within the scope of their duties as such, harmless from and against all claims, demands, causes of action of any kind or character, including the cost of defense thereof, arising in favor of the City’s employees or third parties on account of bodily or personal injuries, death, or damage to property arising out of services performed or omissions of services or in any way resulting from the acts or omissions of the City and/or its agents, employees, representatives, assigns, subcontractors, except the sole negligence of the State, under this agreement. V. COMPLIANCE WITH WORKERS’ COMPENSATION ACT In accordance with Mont. Code Ann. 39-71-401 and 39-71-405, the City will comply with the provisions of the Montana Workers’ Compensation Act while City is performing work on the instant project by providing Workers’ Compensation insurance. VI. TAX EXEMPTION: The State of Montana is exempt from Federal Excise Taxes (#81-0302402). VII. COMPLIANCE WITH LAWS: The City must, in performance of work under this contract, fully comply with all applicable federal, state or local laws, rules and regulations, including the Montana Human Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Any subletting or subcontracting by the CONTRACTOR subjects subcontractors to the same provision. In accordance with Mont. Code Ann. §49-3-207, the City agrees that the hiring of persons to perform the contract will be made on the basis of merit and qualifications and there will be no discrimination based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing the contract. The City will comply with all provisions of the Non- Discrimination Notice attached hereto and made a part hereof. ---PAGE BREAK--- 3 VIII. CONTRACT TERMINATION: Any notice of termination made under this Agreement shall be made in writing. The DEPARTMENT, at its sole discretion, may terminate or reduce the scope of this contract or project if available funding is reduced for any reason (Mont. Code Ann. §18-4-313). This Agreement may be terminated without cause by written agreement of the parties, prior to the commencement of construction activities, upon 30 days written notice. IX. LIAISONS: The contract liaison for the City of Missoula is Gregg Wood, Project Development Coordinator, 435 Ryman, Missoula, MT 59802. Phone: (406) 552-6093; FAX: (406) 327- 2125. The contract liaison for the University is Jerry Ballas, University Project Manager, Planning & Construction, Building 32 Campus Drive, Missoula, MT 59812. Phone: (406) 243-6061; FAX: (406) 243-6612. The contract liaison for MDT is Dwane Kailey, Operations Manager, Montana Department of Transportation, P.O. Box 201001, Helena, MT 59620. Phone: (406) 444- 6414; FAX: (406) 444-5411. X. CHOICE OF LAW AND VENUE: This contract is governed by the laws of Montana. The parties agree that any litigation concerning this contract must be brought in the First Judicial District in and for the County of Lewis & Clark, State of Montana, and each party shall pay its own costs and attorney fees. (See, Mont. Code Ann. §18-1-401). XI. DEBARMENT: The parties certify that neither the parties nor their principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this contract by a governmental department or agency. XII. SCOPE OF AGREEMENT: This document contains the entire contract between the parties. Any enlargement, alteration or modification requires a written amendment signed by all parties. ---PAGE BREAK--- 4 The University of Montana George M. Dennison, President Date: City of Missoula John Engen, Mayor Date: Martha Rehbein, City Clerk Date: Montana Department of Transportation Jim Director Date: For Legal Content by: Attorney, MDT Legal Services