HomeMy WebLinkAboutMSSB Enterprises Cooperative Agreement with for Water Main Union Pacific Railroad Crossing Lewis & Clark Middle SchoolCOOPERATIVE AGREEMENT
WATER MAIN (UPRR CROSSINGI AT LEWIS AND CLARK MIDDLE SCHOOL
THIS AGREEMENT made this~~ day of , 2008, by and between the CITY OF
MERIDIAN, a municipal corporation, hereinafter called "CITY," and _MSSB Enterprises
LLC., An Idaho Limited Liability Company, hereinafter called "DEVELOPER":
WITNESSETH:
WHEREAS, DEVELOPER owns land inside the corporate limits of the City of Meridian and
desires to construct improvements that require the installation of water main both on the
DEVELOPER' S land, and on land adjacent to the DEVELOPER' S land in order to provide
adequate fire flows;
WHEREAS, the CITY had previously designed a project to provide water main to connect
areas adjacent to the DEVELOPER'S land prior to the DEVELOPER'S project;
WHEREAS, simple modifications to the CITY project have been made that make the CITY'S
project smaller, but still satisfy the CITY'S desire to connect in the area and the
DEVELOPER'S requirement to connect to adjacent land to provide adequate fire flows;
WHEREAS, due to timing, constructability of connections, and economy of scale, it will be
mutually beneficial for the DEVLOPER to build both his on site water line and the CITY'5
water line projects at the same time;
WHEREAS, upon recommendation of the Public Works Department, the City Council of
CITY accepted and approved the proposal of DEVELOPER to construct the CITY'S project
of Water Main (UPRR Crossing) at Lewis and Clark Middle School, hereinafter called
"Project", subject to all conditions hereinafter provided by this Agreement;
NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER
hereby agree:
A. Preparation of Plans. CITY has prepared plans and specifications, drawings,
instructions, bid proposal and all other contract documents for the construction and
installation of the Project, shown on preliminary plans (hereinafter called "Exhibit "B"),
including rights-of--way, grades and elevation, and materials used in the construction and
installation of said Project.
B. Solicitation of Bids.
DEVELOPER shall coordinate a public bidding process with CITY's Purchasing Agent.
The bids shall be administered in accordance with State of Idaho public biding laws and
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 1 of 8 (~ /
pursuant to CITY's purchasing policy. DEVELOPER will award the construction to the
lowest responsible bidder after obtaining concurrence from CITY of low bidder.
C. Contract Terms. DEVELOPER shall provide CITY with a copy of the executed
construction contract(s). All construction contract(s) shall include, at a minimum, the
following provisions:
1. A requirement that the successful bidder be licensed as a public works contractor.
2. A requirement that the construction of the Project shall be in accordance with the
approved designs, plans, and specifications and be Substantially Complete within six (6)
months of the date of the issuance of a Notice to Proceed from the City. For the
purposes of this Agreement, the term "Substantially Complete" shall mean that the
Project and all components thereof can be safely used for their intended purpose(s)
despite the fact that some item or items remain uncompleted.
3. A provision that the time for Substantial Completion will only be extended by (a)
acts of God, (b) war, (c) delays caused by CITY, (d) weather, (e) review and/or approval
processes required by outside agencies not otherwise parties to this Agreement (f) any
request for extension of time approved in writing by CITY.
4. A requirement that the contractor shall maintain liability insurance insuring against
bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00)
per person and per occurrence, and property damage with a limit of One Million Dollars
($1,000,000.00) per occurrence,. Said requirement is extinguished upon acceptance of
Project by City.
5. A provision that the contractor shall indemnify CITY and DEVELOPER from any
and all claims by third persons arising out of the performance of the contract.
6. A provision that the contractor shall comply with all applicable laws, rules, and
regulations, and that the contractor shall secure all applicable permits and pay all
applicable fees.
7. A provision providing at least a one (1) year warranty on the operation and materials
of the Project, which warranty shall be assignable to CITY.
E. Conditions Precedent to Execution of Construction Contract(s). Prior to execution of
any construction contract, the following conditions shall be satisfied:
1. DEVELOPER shall obtain written approval from CITY of the form and terms of
such construction contract, which approval may be withheld for any reason, including
but not limited to DEVELOPER's failure to obtain a construction contract that contains
the provisions required by this Agreement, but which approval shall not otherwise be
unreasonably withheld.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 2 of 8 I"
2. Any easements required for the Project or the construction thereof shall be deeded to
CITY and recorded prior to construction of the Project. Easements will be obtained and
funded by the CITY.
F. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER will
construct the Project, as shown on Exhibit "A" the approved construction plans dated
August 1St, 2008, it is mutually agreed that the cost of the Project will be subject to
actual cost verification by CITY. DEVELOPER shall fund 100% of the cost of the
Project, including approved change orders, estimated at $71,700.00 with reimbursement
from the CITY in accordance with the provisions of this Agreement .
G. Construction of the Project.
1. DEVELOPER shall install and construct the Project in compliance with and subject to
all conditions provided herein.
2. DEVELOPER shall obtain and/or provide all contract administration necessary for
the construction of the Project.
3. DEVELOPER shall undertake and/or provide all testing, sampling and other normally
conducted measures for quality controUquality assurance regarding any and all installed
systems.
4. CITY shall provide inspection services for the construction of the Project in
accordance with CITY standards.
H. Change Orders to Construction Contract. DEVELOPER shall obtain the written
approval of CITY before approving any change order to the construction. In the event
of a change order, CITY and DEVELOPER shall execute an amendment to this
Agreement to reflect the amount of the change order.
I. Completion of the Project.
1. Upon fmal completion of the Project, DEVELOPER shall furnish to CITY written
certification that the Project has been completed in accordance with the approved plans.
Within fifteen (15) days after delivery of the certificate of completion, CITY shall either
accept the same or provide a written itemization of those matters it reasonably finds to
be non-conforming with the approved plans, in which case DEVELOPER shall
promptly cause the remediation of all non-conforming matters.
2. Upon completion of the Project, DEVELOPER shall complete all paperwork
necessary to assign to CITY the contractor's one (1) year warranty of the work and
materials on the Project.
3. Upon completion of the Project, DEVELOPER shall represent and warrant that the
Project is free and clear of all liens and encumbrances not created by or with the written
consent of CITY.
COOPERATIVE CONSTRUCTION AND REIlVIBURSEMENT AGREEMENT -Page 3 of 8
4. Upon completion of the Project, CITY shall issue an approval letter accepting
ownership to DEVELOPER.
J. Reimbursement to DEVELOPER.
1. Estimated Total Reimbursement. Because the DEVELOPER shall install, construct
and erect domestic water system as shown on Exhibit "A", the CITY shall reimburse to
the DEVELOPER 100% of the construction cost, including a roved change orders,
estimated at $71,700. ~ ~ U~ ~~~j{~
nt shall be made to the DEVLOPER no more er acceptance
of the Project an s agreement have been fulfilled. If
payment is no m this-time period t e amour tat
er month.
K. Water and Sewer Lines on DEVELOPER'S Prop. As a condition for CITY entering
this Agreement, DEVELOPER has or will request and submit to inspections by the
Public Works Department and/or the Building Department of CITY whenever a building
is to be connected to any and all portions of the Project constructed and installed on
and/or within DEVELOPER'S property.
L. Compliance with Laws.
1. In constructing and installing the Project on and/or within its property,
DEVELOPER, at its sole expense, shall comply with any and all laws, orders and
regulations of Federal, State and local authorities and at DEVELOPER'S sole expense
shall obtain any and all licenses or permits which maybe required for or in the course of
the performance of this Agreement.
2. Upon connection to the City of Meridian water and sanitary system, DEVELOPER
shall abide by all applicable CITY laws, rules and regulations pertaining to water and
sanitary sewer systems.
M. Indemnification and Insurance. DEVELOPER shall indemnify and save and hold
harmless CITY from and for any and all losses, claims, actions, judgments for damages,
and/or injury to persons or property and losses and expenses caused or incurred by
DEVELOPER, its servants, agents, employees, guests, and/or business invitees, and not
caused by or arising out of tortious conduct of CITY or its employees. In addition,
DEVELOPER shall maintain, and specifically agrees that it will maintain, until City
accepts the Project as per Section I, liability insurance in which CITY shall be named
insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in
Title 6, Chapter 9 of the Idaho Code. "The limits of such 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,
DEVELOPER covenants and agrees to indemnify and save and hold harmless CITY
from and for all such losses, claims, actions and/or judgments for damages and/or
liability to persons and/or property. DEVELOPER shall provide CITY with a certificate
co~`l~!
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 4 of 8
of insurance or other proof of insurance evidencing DEVELOPER'S compliance with
the requirements of this paragraph by filing such proof of insurance with the City Clerk.
In the event the insurance minimums of the Idaho Tort Claims Act are changed, CITY
shall notify DEVELOPER of such change, and DEVELOPER shall immediately submit
proof of compliance with the changed limit.
N. No Assi nment. DEVELOPER shall not assign any portion of this Agreement or any
privilege here under, either voluntarily or involuntarily, without the prior written
consent of the CITY, which consent shall not be unreasonably withheld.
O. Remedies upon Default.
1. Default by DEVELOPER. In addition to such other remedies at law or in equity that
CITY may have, in the event DEVELOPER fails or neglects to perform its obligations
under the terms and provisions of this Agreement in the time and manner required
herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until
such default is corrected to the satisfaction of CITY.
2. Default by CITY. In the event CITY fails or neglects to perform its obligations
under the terms and provisions of this Agreement in the time and manner required
herein, DEVELOPER shall be entitled to all remedies available at law or in equity.
P. Attorney Fees. Should either party fmd it necessary to employ an attorney for
representation in any action seeking enforcement of any provision of this Agreement, or
to recover damages for breach of this Agreement, or to resolve any disagreement as to
the interpretation of this Agreement, the unsuccessful parry in any final judgment or
award entered pursuant to such action shall reimburse the prevailing party for all
reasonable costs, charges and expenses, including attorneys' fees expended or incurred
by the prevailing parry in connection therewith and in connection with any appeal, and
the same may be included in such judgment or award. This provision shall be deemed
to be a separate contract between the parties and shall survive any default, termination
or forfeiture of this Agreement.
Q. Notices. Any notice desired by the parties and/or required by this Agreement shall be
sent via United States Mail, registered or certified mail, postage prepaid, return receipt
requested, and shall be addressed as follows:
CITY:
Meridian City Engineer
City of Meridian
660 E. Watertower, Suite #200
Meridian, Idaho 83642
with copy to:
City Clerk
City of Meridian
33 E. Idaho Ave.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 5 of 8
Meridian, Idaho 83642
DEVELOPER:
MSSB Enterprises LLC
PO Box 1265
Meridian, ID 83680
Such notice shall be deemed delivered if and when delivery is accepted or three (3) days
after deposit in the United States Mail. Either party shall have the right to change its
address by delivering to the other party a written notification thereof in accordance with
the requirements of this section.
R. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Idaho and the ordinances of the City of Meridian.
S. 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.
T. 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 any other in any manner by
any representations, warranties, covenants and agreements except as specifically set
forth herein.
U. Definition of DEVELOPER'S Property. The term "DEVELOPER'S Property" in the
Agreement shall mean Lot 5 of Porky Park #2 Subdivision.
V. Binding E~ ffect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, successors and assigns, and shall survive any transfer by
DEVELOPER of DEVELOPER' S Property.
W. Reports and Information. At such times and in such forms as the CITY may require,
DEVELOPER shall furnish to CITY such statements, records, reports, data and
information as the CITY may request pertaining to matters covered by this Agreement.
X. Audits and Ins ections. At any time during business hours and as often as the CITY
may deem necessary, there shall be made available to the CITY for examination all of
DEVELOPER's records with respect to all matters covered by this Agreement.
DEVELOPER shall permit the CITY to audit, examine, and copy such records, and to
make audits of all contracts, invoices, materials, payrolls, records of personnel,
conditions of employment and other data relating to all matters covered by this
Agreement.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 6 of 8
Y. Construction and Severability. If any part of this Agreement is held to be invalid or
unenforceable, such holding will not affect the validity or enforceability of any other
part of this Agreement so long a,s the remainder of the Agreement is reasonably capable
of completion.
IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly
authorized officers the day and year first above written.
t~~ ~~'~"
Title
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Date
CITY:
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TAMMY e WEERD, MAYOR Date
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CITY CIS y ~
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COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 7 of 8 ,v
DEVELOPER: MSSB Enterprises, LLC
STATE OF IDAHO )
ss
County of Ada )
On this day of ~ .~~ b~ ,200,8,..x~,, before me the undersigned, a
Notary Public in and for saute, personally appeared 9~ ~, vt~Z,~_ ,known
or identified to me to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
D..~tt0~~+,~
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STATE OF IDAHO )
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County of Ada )
No Public For Idaho
ing at: /' .1~~~co
Commission Expires: ~ 7't ~ of c7
On this~day of 008, before me the undersigned, a Notary
Public in and for said State, p sonally appeared TAMMY DE WEERD and fi~i~. J~ cQ ~.
B, known to me to be the Mayor and City Clerk of the City of Meridian, Idaho, who N~lw.a-~n
executed the within instrument and acknowledged to me that they executed the same on
behalf of the City of Meridian
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
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