HomeMy WebLinkAboutTen Mile Crossing Inc. (Brighton) Landscaping and Maintenance Agreement LANDSCAPING AND MAINTENANCE AGREEMENT:
I-84 AND TEN MILE ROAD INTERCHANGE
This LANDSCAPING AND MAINTENANCE AGREEMENT ("Agreement") is made
effective this 13th day of August, 202,by and between the CITY OF MERIDIAN, a municipal
corporation organized under the laws of the State of Idaho ("City"), and TEN MILE
CROSSING INC., an Idaho corporation("Brighton"). City and Brighton may be referred to as a Party
or collectively as the"Parties."
WHEREAS, on December 3, 2009, City and the Idaho Transportation Department("ITD")
entered into an Interagency Agreement for Landscaping and Maintenance of the Interstate-84/Ten
Mile Road Interchange("2009 ITD Agreement"), attached hereto as Exhibit A;
WHEREAS, inter alia, the 2009 ITD Agreement requires City to maintain the landscape
improvements installed at 1-84 and Ten Mile Road;
WHEREAS, Brighton is willing to assume responsibility for such landscape maintenance as
it pertains to the locations depicted on Exhibit B;
NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged,the Parties hereby agree as follows:
I. BRIGHTON'S RESPONSIBILITIES.
A. Assumption of City's responsibilities. As it pertains to the area depicted in Exhibit B,
Brighton shall assume all responsibilities set forth in Article III of the 2009 ITD Agreement,
titled "Responsibilities of City," except those items listed in Article 11 City's Responsibility
below.
B. Landscaped areas as-is. Brighton acknowledges and accepts that the landscaped areas to be
maintained on an "as is" and "where is" basis. Brighton shall be solely responsible for any
and all measures necessary to provide the landscaping services in a manner that is safe for
persons conducting the work, and for users of the adjacent roadways.
II. CITY'S RESPONSIBILITIES.
A. Install new landscaping. City shall install new landscaping at the landscaped areas
described in the 2009 ITD Agreement as generally set forth in Section 2.2 of that
agreement and the plans attached hereto as Exhibit C.
B. Maintain sidewalks. The City shall continue to be responsible for maintaining the
sidewalks installed within the Project Site pursuant to Section 3.5 of the 2009 ITD
Agreement.
III. GENERAL TERMS.
A. Term and termination. This Agreement shall remain in effect until December 31,2034. The
term of this Agreement shall be renewed automatically for one-year periods thereafter unless
LANDSCAPING AND MAINTENANCE AGREEMENT:I-84 AND TEN MILE ROAD INTERCHANGE PAGE 1
terminated by either party in the manner provided in this Agreement. This Agreement shall
automatically terminate if the 2009 ITD Agreement is terminated pursuant to Section 6.2 of
that agreement.
B. Assumption of risk. Brighton acknowledges that provision of services under this Agreement
may carry a risk of injury, illness, and/or death, some of which risks may be unknown, and,
with that knowledge, Brighton hereby assumes all such risks and hazards.
C. Indemnification. Brighton shall fully indemnify, hold harmless and defend and City from
and against all claims, demands, actions, suits, damages, liabilities, losses, settlements,
judgments, costs, expenses (including but not limited to reasonable attorney's fees), or injury
to persons or property, whether or not involving a third party claim, which arise out of or
relate to any act or omission of in carrying out Brighton's responsibilities under this
Agreement. The limits of Brighton's insurance shall not be deemed a limitation of the
covenants to indemnify and save and hold harmless City; and if City becomes liable for an
amount in excess of the insurance limits herein provided due to the actions or omissions of
Brighton or Brighton's employees, agents, contractors, or invitees, Brighton covenants and
agrees to indemnify and save and hold harmless City from and for all such losses, claims,
actions, or judgments for damages or liability to persons or property. Brighton does not
assume the indemnity obligations of City contained in Article IV of the 2009 ITD Agreement.
D. Insurance. Each party shall obtain all necessary insurance as may be required in order to
protect its respective insurable interests as may be related to its rights and obligations
described within this Agreement.
E. Waiver. Brighton waives and releases,on behalf of Brighton and Brighton's heirs,executors,
administrators, assigns, and/or personal representatives, any and all claims and recourse
against City, including the right of contribution for loss and damage to persons or property
arising from, growing out of, or in any way connected with or incident to Brighton's
performance of this Agreement, whether such loss or damage may be attributable to known
or unknown conditions,except for liability arising out of concurrent or sole negligence of City
or its officers, agents or employees.
F. Compliance with law. Throughout the course of this Agreement, the Parties shall comply
with any and all applicable federal, state, and local laws.
G. Force Majeure.No Party will be liable for failure to perform any duty under this Agreement
where such failure is due to or made impracticable by unforeseeable causes beyond the
Parties' control and without the fault or negligence of the Parties, including,but not restricted
to, acts of God or the public enemy, fire, flood, natural disaster, epidemic, strike, or order of
any court or authorized agency.
H. State of Idaho requirements. The following provisions are required by the State of
Idaho. The inclusion of these provisions in this Agreement does not indicate that these clauses
are relevant to the subject matter of this Agreement; rather, these provisions are included
solely to comply with the laws of the State of Idaho.
LANDSCAPING AND MAINTENANCE AGREEMENT:I-84 AND TEN MILE ROAD INTERCHANGE PAGE 2
1. Anti-Boycott Against Israel Act. Pursuant to Idaho Code § 67-2346, as applicable,
Brighton certifies that Brighton is not currently engaged in, and will not for the duration of
this Agreement engage in, a boycott of goods or services from Israel or territories under
Israel's control. The terms "company" and "boycott Israel" shall have the meanings
ascribed to them in Idaho Code § 67-2346.
2. No Public Funds for Abortion Act. Pursuant to Idaho Code § 18-8703, as applicable,
Brighton certifies that Brighton is not, and will not for the duration of this Agreement
become, an abortion provider or an affiliate of an abortion provider, as those terms are
defined in the"No Public Funds for Abortion Act," Idaho Code §§ 18-8701 et seq.
3. Contract with company owned or operated by the government of China
prohibited. Pursuant to Idaho Code § 67-2359, as applicable, Brighton certifies that
Brighton is not a company currently owned or operated by the government of China and
will not for the duration of this Agreement be owned or operated by the government of
China. The terms"company"and "government of China"shall have the meanings ascribed
to them in Idaho Code § 67-2359.
I. Time of the essence. The Parties hereto acknowledge and agree that time is strictly of the
essence with respect to each and every term, condition and provision hereof, and that the
failure to timely perform any of the obligations agreed to hereunder shall constitute a breach
of, and a breach of this Agreement, by the Party so failing to perform.
J. Binding on Successors. This Agreement shall be binding on the successors, administrators,
executors and assigns of all Parties hereto.
K. Non-waiver. No waiver by either Party operates as, or is to be construed as, a waiver in
respect of any failure,breach,or default not expressly identified by an express,written waiver,
whether of a similar or different character, and whether occurring before or after that waiver.
No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising
from this Agreement operates as,or is to be construed as, a waiver thereof, nor does any single
or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,remedy, power, or privilege.
L. Third-party beneficiaries. This Agreement is not intended to create, nor shall it in any way
be interpreted or construed to create, any third-party beneficiary rights in any person or entity
not a Party hereto.
M. Assignment. Neither Party shall sell,transfer,or assign its interest in this Agreement without
first providing written notice to the other Party.
N. Notices. All notices, demands and requests required or desired to be given under this
Agreement must be in writing and shall be deemed to have been provided as of the date such
writing is mailed, via U.S. Mail, prepaid and addressed, if to Brighton to Ten Mile Crossing
Inc., 2929 W. Navigator Drive, Suite 400, Meridian, Idaho 83642, or, if to City, to Meridian
City Clerk, 33 E. Broadway Avenue, Meridian, Idaho, 83642.
LANDSCAPING AND MAINTENANCE AGREEMENT:I-84 AND TEN MILE ROAD INTERCHANGE PAGE 3
O. Entire agreement. This Agreement constitutes the entire understanding between the Parties.
This Agreement supersedes any and all statements, promises, or inducements made by either
Party, or agents of either Party,whether oral or written, and whether previous to the execution
hereof or contemporaneous herewith. The terms of this Agreement may not be enlarged,
modified or altered except upon written agreement signed by both Parties hereto. If the 2009
ITD Agreement is modified pursuant to Section 6.7 of said agreement, City shall provide
Brighton with a copy of said modification within three (3) business days of its execution.
Within five (5) business days from receipt of the modification, the Parties shall amend this
Agreement to provide Brighton the opportunity to assume or decline to assume the
modification to the modification.
P. Agreement governed by Idaho law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of Idaho, including,
without limitation, Article VIII, Section 3, of the Idaho Constitution limiting indebtedness.
Venue shall be in the courts of Ada County, Idaho.
Q. Severability. If any provision of this Agreement is found by a court of competent jurisdiction
to be illegal, invalid, or unenforceable, the remainder of this Agreement shall not be affected.
R. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of
hereof as if the exhibits were set forth in their entirety herein.
S. Warranty of authority. Each party represents that all corporate action necessary for the
authorization, acceptance and delivery of this Agreement by such party and the performance
of its obligations hereunder has been taken.
IN WITNESS WHEREOF,the undersigned have caused this Agreement to be executed the
day and year first written above.
BRIGHTON:
TEN MILE CROSSING INC.,
an Idaho corporation
d ,
By: Robert L. Phillips, President
CITY:
City of Meridian ATTEST:
Robert E. Simison, Mayor 8-13-2024 Chris Johnson, City Clerk 8-13-2024
LANDSCAPING AND MAINTENANCE AGREEMENT:I-84 AND TEN MILE ROAD INTERCHANGE PAGE 4
Exhibit A
INTERAGENCY AGREEMENT FOR
LANDSCAPING AND MAINTENANCE
OF THE INTERSTATE-84/TEN MILE ROAD INTERCHANGE
Project No. A011(932)
Key No. 11932
This AGREEMENT ("Agreement") is made and entered into this 3�dayof
by and between the Idaho Transportation Department
(hereinafter, and the City of Meridian, an Idaho municipal corporation,
(hereinafter, "City") (collectively, the "Parties").
RECITALS
WHEREAS, the City has requested that the State approve the expenditure of
transportation funds for landscape treatments of the Idaho Transportation Department's
Interstate 84 / Ten Mile Rd IC Landscaping Project No. A011(932) to provide scenic
enhancement of a gateway road into the City of Meridian; and
WHEREAS, the City is committed to protecting the investment of these funds
by performing certain maintenance as agreed upon between the parties; and
WHEREAS, authority for this Agreement is established in Section 40-317, Idaho
Code, which allows for cooperative agreements between the Idaho Transportation
Department and municipalities for the construction of and improvements to bridges and
state highways; and
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties do mutually undertake, promise, and agree as follows:
I. Appropriation of Funds
This Agreement contemplates that the State will appropriate sufficient funds, not to
exceed $880,000.00, to design and construct landscaping for the new interchange at the
junction of Interstate 84 and Ten Mile Road, in Meridian, Idaho, near Mile Post 42.00
(hereinafter, "Project Site"). This Agreement is limited to that project, identified as
ITD Project No. A011(932) and specifically shown on Exhibit A, attached hereto and
incorporated herein. If, within two (2) years of signing of this Agreement by the
parties, sufficient funds for this transportation project are not appropriated and a bid
process is not completed with the awarding of construction of Project No. A011(932),
this Agreement shall become null and void and neither party shall have any obligations
to the other under its terms.
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 1
II. Responsibilities of State
2.1 State will design and install landscape features in accordance with the Project
Plans for Project No. A011(932), shown on Exhibit A to this Agreement.
2.2 State agrees that it will provide and install landscape improvements described as
follows:
a. Four (4) Islands/Approach Triangles improved with shrubs, perennials,
non-mown grasses, rock mulch, sidewalk, stamped colored concrete
border, topsoil, and pressurized irrigation system;
b. Two (2) raised median areas on Ten Mile Road improved with shrubs,
perennials, non-mown grasses, rock mulch, stamped colored concrete
border, topsoil, and pressurized irrigation system;
C. Interchange ramp and Ten Mile Road slopes improved with non-mown
grass;
d. Interchange detention ponds improved with water tolerant shrubs and
water tolerant non-mown grass;
2.3 State agrees to notify City of any future highway construction that would impact
the landscape improvements covered by this Agreement, and to seek mutually-agreeable
solutions to any such construction in order to minimize the destruction or removal of
the landscape improvements covered by this Agreement. If a solution is not found, both
parties understand and agree that State shall be allowed to remove the landscape
improvements at its expense and that City's obligations under this agreement shall
cease. In such event, State agrees to provide sixty (60) days written notice to City prior
to any construction or other actions to remove the landscape improvements.
2.4 State agrees to hold contractors/subcontractors responsible for any and all
damages to the landscape improvements resulting from contracted work at the Project
Site.
2.5 State, or its Contractor, shall assure the establishment of plantings by watering,
cultivating, replacement of plants or mulch, and other work necessary to maintain the
plants in a healthy condition, throughout a plant establishment period of one year.
2.6 State shall maintain the Ten Mile IC bridge structure, including the irrigation
pipe sleeve provided for installation of the pressurized irrigation system though the
structure. State shall also maintain the integrity and functionality of the Interchange
detention ponds located within the I-84 Right-Of-Way.
2.7 State agrees to hold all contractors responsible for warranties provided under
agreements between State and contractors/subcontractors for the benefit of City in its
maintenance obligations under this Agreement. All warranties shall be for a minimum
of a one year period from date of substantial completion.
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 2
III. Responsibilities of City
3.1 The City will review and approve the construction plans and specifications, prior
to the project advertisement for construction.
3.2 Upon completion of construction of Project No. A011(932) and City inspection
and sign-off of the landscape improvements, City will assume responsibility for
maintenance and care of the landscape improvements described above, as follows:
a. Maintain all shrubs, perennials, and grasses in a healthy condition,
replacing any vegetation with same or equivalent plantings as
needed, with responsibility for replacement after completion of the
one year establishment period;
b. Maintain the graded areas to the shape and contours as established
at the Project Site, unless a modified grading plan is approved by
Idaho Transportation Department;
C. Remove trash and other roadside debris from the approach triangles
formed by the on and off ramps at the Project Site;
d. Trim and prune as required to remove dead materials and to
maintain the vegetation in an attractive condition;
e. Operate and maintain the pressurized irrigation system, including
main and distribution pipes, the pressurized irrigation pipe within
the pipe sleeve in the interchange bridge structure, valves,
sprinklers, and control system, with responsibility for replacement
after the Contractor warranty periods are complete;
f. Maintain sprinklers so that they do not wet the roadways.
g. Utilize State-approved highway safety procedures for City
personnel during all times of landscape maintenance completed
within the State retained Right-of-Way;
3.3 City shall be required to perpetually maintain the landscape areas within the
Project Site as shown on Exhibit A, subject to annual appropriation of such
maintenance cost by the City and in conformity with the provisions of Article VIII,
Section 3 of the Idaho Constitution.
3.4 Should the City desire additional landscape improvements after completion of
Project No. A011(932), City will comply with State's standard permitting and approval
process for work completed within the I-84 and Ten Mile Interchange Right-Of-Way.
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT- 3
IV. Indemnity
Should any part of the landscape features within the State retained Right-of-Way and
maintained by the City be damaged or destroyed though the wrongful or negligent act of
any third party, the State will make every effort to determine the identity and
whereabouts of the responsible party and the State will attempt collection of the costs
of the repair or replacement. If the State is able to collect the cost of repair or
replacement, it will advance the funds to the City, based on City estimates or repair
invoices.
City does hereby indemnify, save and hold harmless State from and against any and all
liability, damages or costs, known or unknown, relating to or as a result of City's
maintenance of the Project Site and not as the result of the negligence of State.
State does hereby indemnify, save and hold harmless the City from and against any and
all liability, damages or costs, known or unknown, relating to or as a result of defects in
the construction of Project No. A011(932) resulting in additional cost to the City to
plant, repair, replace or maintain the aesthetic improvements which are the subject of
this Agreement and not as the result of the negligence of the City.
V. Term of Agreement
It is anticipated the term of this Agreement shall be perpetual, subject to annual
appropriation of such maintenance cost by the City and in conformity with the
provisions of Article VIII, Section 3 of the Idaho Constitution. Neither party may
terminate this Agreement without the prior written consent of the other party, other than
as set forth in this Agreement.
VI. General Provisions
6.1 Contact Information: The contact for the Idaho Transportation Department shall
be the Assistant District Three Engineer (Operations) at (208)334-8300. The contact
for the City of Meridian shall be the Director of Public Works at (208) 898-5500.
6.2 Termination of Interagency Agreement/Nonappropriation: Nothing in this
Agreement shall be construed to be an indebtedness or liability in violation of Article
VIII, Section 3 of the Idaho Constitution.
6.3 Attorney Fees: In the event of any controversy, claim, or action being filed or
instituted between the parties to enforce the terms and conditions of this Agreement, or
arising from the breach of any provision hereof, the prevailing party will be entitled to
receive from the other Party all costs, damages, and expenses, including reasonable
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 4
attorneys' fees including fees on appeal, incurred by the prevailing party. The
prevailing party will be that party who was awarded judgment as a result of trial or
arbitration.
6.4 Choice of Law: This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Idaho.
6.5 Exhibits: All exhibits to this Agreement are incorporated by reference and made
a part of this Agreement as if the exhibits were set forth in their entirety in this
Agreement.
6.6 Entire Agreement: This Agreement and the exhibits hereto constitute the full
and entire understanding and agreement between the parties with regard to the
transaction contemplated herein, and no party shall be liable or bound to the other in
any manner by any representations, warranties, covenants and agreements except as
specifically set forth herein.
6.7 Acknowledgments and Modifications: No acknowledgments required hereunder,
and no modification or waiver of any provision of this Agreement or consent to
departure there from, shall be effective unless in writing and signed by State and City.
6.8 Headings: The headings used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement.
6.9 Counterparts: This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but both of which together shall constitute
one and the same instrument.
End of Agreement
[Signature page follows.]
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF MERIDIAN IDAHO TRANSPORTATION DEPARTMENT
Tammy de Vfeerd, Mayor Assistant Chief Engineer (Development)
Attest: Recommended by:
OF
City Wrk District Engineer, District Three
SEAL =
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APPROVED AS TO FORM:
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Date D puty Att r ey eneral ate
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 6
Exhibit A Index
Sheets
1 Legend and Project Totals
2 - 6 Landscape Exhibits 1 - 5
I84/TEN ILE INTERCHANGE LANDSCAPING INTERAGENCY AGREEMENT - 7
I -84 TEN MILE RD IC LANDSCAPING
FEDERAL AID PROJECT NO. A011 ( 932 )
KEY NO. 11932
ADA COUNTY
LEGEND
SYM DESCRIPTION
OG COWACT OREGON GRAPE-1UHDRA ADUIFOLIUM 'COWACTA'-S GAL
RG ROSE CLOW BARBERRY-BERBERIS TH NBERGI1 VAR VGSE GLOW•S GAL
GL GROW-LOW SWAC-RHUS AROVATICA'GROW-LOW'-5 GAL _
LF L13WFAST COMWASTER-COTOHEASTER DA0ARI'LOWFAST•-5 GAL
MR WHITE WIOILAND ROSE•ROSA'ALBA M[I0ILAND'-5 GAL
SW UA#ARWINE NIEBARK-PHYSOCAIP4Z OPUA.IFQILIS SUMERWINE'-S GAL
YU YUCCA'YUCCA FILAAENTOSA•2 GAL
FG FLAE GRASS-MISCANTHVS SINENSIS PUPIPIAASCENS-1 GAL
KF KARL FORESTER FEATHER REEO•CALAMAGROSTIS X ACUTIFLERA IKARL FORESTEW•1 GAL
MG DWARF MAIDEN GRASS-MISCAH THUS SIN[NSIS 'ADAGIO'•I GAL
BE BLACK-EYED SUSAN-RUDBECKIA FULGIDA•GQDSTRUF-1 GAL 18'SP
DL STELLA DbRO OAYLILY-HEWHCALLIS STELLA 013W-1 GAL
LV HIDCOTE LAVENDER-LAVAQLIA ANCUSTIFOLIA TtlDCOTE'•1 GAL
(RS RUSSIAHRUSSI N SAGE•PEROVSKIA ATRIPLIFOLIA•1 GAL
I IMiOWN GRASS SEEDING •MIX d' GF WINGS FESCUE.HARD FESCUE,AND COVAR SHEEP FESCUE
LL___--_ -71 ROCK NULCH -2-CRUSHED BASALT ROCK CHARCOAL CRAY WITH TAN IN COLOR.INSTALL A-THICKNESS a WEED BARRIER FABRIC.
I RIVER COBBLE •A•6-WASHED RIVER C®aE.INSTALL 6-THICKNESS ON WEED BARRIER FABRIC.
APPROXIMATE PROJECT TOTALS
LP49 WN GRASS SEEDING • IILO AC
9RUA9S - 1297 [A
PERENNIALS - 3,009[A
LANDSCAPE EXHIBIT A
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KEY NO. 11932
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EXHIBIT B To LANDSCAPING AND MAINTENANCE AGREEMENT:I-84 AND TEN MILE ROAD INTERCHANGE
EXHIBIT C
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