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HomeMy WebLinkAboutFirst Amend w/ ACHD Sidewalk FacilitiesFIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE MERIDIAN CITY CORE THIS FIRST AMENDMENT AND ADDENDUM TO THE MASTER LICENSE AGREEMENT is entered into this 11th day of September, 2013, by and between ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho ("ACHD") and the CITY OF MERIDIAN, an Idaho municipal corporation ("City"). I. RECITALS A. ACHD is a single county-wide highway district organized and existing under the laws of the State of Idaho, with the exclusive jurisdiction over public rights-of- way, including sidewalks, in Ada County; City is a municipal corporation with police power to regulate and control encroachments and activities upon sidewalks within the city. B. Idaho Code § 67-2332 provides that public agencies may contact with one another to perform any governmental service, activity, or undertaking that each public agency entering into the contract is authorized by law to perform. C. The parties entered into a Master License Agreement on August 7, .2012, in which ACHD granted City a limited license to regulate and maintain sidewalk facilities in the Meridian City Core. D. City seeks to periodically install within the Meridian City Core a temporary "parklet," a space that temporarily extends the sidewalk area into a parking spot for the purpose of offering amenities such as seating, vegetation, and art to pedestrians and downtown business patrons, and therefore the parties agree herein to amend the Master License Agreement for the specific purpose of an additional grant of authority under the Master License Agreement allowing the City to regulate, control, and authorize temporary parklets in the Meridian City Core. E. ACHD and City desire to amend and add to the terms and conditions of the Master License Agreement to additionally grant the City a license to regulate and control the size, placement, area, operation, and maintenance of any and all parklets within the public rights-of--way located in the Meridian City Core. FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER DOWNTOWN AREA - 1 II. AGREEMENT NOW, THEREFORE, inconsideration of the foregoing recitals, which are made a part of this Agreement and not mere recitals, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows: A. That Section 1 of the Master License Agreement be amended to provide an additional sentence to grant City additional license rights, such that the Section shall read, as amended: Section 1. License Grant. ACHD hereby grants a license to City ("License") to (i) regulate and control the size, placement, operation and maintenance of all newsstands, ATM's, signs, planters, benches, fountains, fences, streetlights, sidewalk cafes, outdoor eateries, and similar commercial and public structures, objects, and uses, regardless of whether the same are or are not affixed to the ground (collectively, the "Facilities") on the sidewallcs within the surface of the public rights-of--way depicted on Exhibit A (collectively, the "Meridian City Core"), (ii) provide for and maintain the necessary and/or desired landscaping and streetscaping upon sidewalks within the public rights-of--way for the Meridian City Core, and (iii) sublicense the rights and obligations set forth in (i) and (ii). ACHD additionally grants to Cites license to lan ce, operate, and maintain any and all parklets within the same Meridian City Core upon and within on-street public parking spaces, which are public rights_ of-wa~City shall have no right, title, or interest in or to the public rights-of-way other than the right to use the same pursuant to the terms and conditions of this Agreement and pursuant to the authority granted in the Idaho Code. This Agreement does not extend to City the right to use the public rights-of--way to the exclusion of ACHD for any use within its jurisdiction, authority and discretion or of others to the extent authorized by law to use the public right-of--way. If the public right-of--way has been opened as a public Highway (as used in the Agreement, the term "Highway" is as defined in Idaho Code § 40-109(5)), City's authorized use is subject to the rights of the public to use the right-of--way for Highway purposes. City's authorized use is also subject to the rights of holders of easements of record or obvious physical limitations upon inspection of the public right-of--way, and to the statutory rights of utilities to use the public right-of--way. This Agreement is subject to and shall not supersede or conflict with license or rights granted under the VRT Agreement, attached hereto as Exhibit B. This Agreement is not intended to, and shall not preclude or impede (i) the ability of ACHD to enter into other similar agreements in the future allowing third parties to also use the public right-of--way, provided that written notice is provided to the City, and such use does not unreasonably interfere with City's rights regarding the Facilities as set forth in this Agreement and contained in Idaho Code, or (ii) the ability of ACHD to redesign, reconstruct, relocate, maintain and improve the public right-of--way and Highways as authorized by and in accordance with state law. Where ACHD's retained rights, as stated herein, affect the City's authorized placement or sublicensing of Facilities upon the sidewalks, ACRD and City will work in good faith to resolve any conflicts. FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER DOWNTOWN AREA - 2 a. With reference to any Facilities located in the Meridian City Core, ACRD will use best efforts to terminate all ACHD License Agreements for any existing Facilities in the Meridian City Core. During the term of this Agreement, ACHD shall not authorize, permit or license any Facilities to be located in the public right-of--way in the Meridian City Core, except for underground structures. b. ACRD and City agree to freely and promptly exchange information reasonably necessary to comply with the terms of this Agreement, including the provision to City, by ACHD of all records, documents, databases, or information relating to known and authorized Facilities licenses in the Meridian City Core, whether terminated or not. B. That an additional term be provided by Addendum to the Master License Agreement as follows: 14. Parklet installation. City shall consult with representatives of the ACHD staff to determine any traffic operations, motorist and traffic safety issues associated with parklet installation. Under no circumstances may a parklet installation take place in a travel lane or interfere with motorist or pedestrian traffic. ACHD shall have the right to prohibit or request removal of a parklet installation that interferes with or obstructs traffic operations, motorist or pedestrian safety, street improvement activities, construction activities, cleaning efforts or• other similar activities. C. Waiver. This Addendum shall not be construed as an amendment or waiver of any of City's obligations under the Master License Agreement, except as specifically set forth herein. No failure by either party to insist upon the strict performance of any covenant, duty, agreement, or condition of the Master License Agreement or this Addendum or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, agreement, term, or condition. No waiver shall be binding unless executed in writing by the party making the waiver. Without limiting the foregoing, ACHD in no way waives any claims: D. Amendment and Restatement of Agreement. The provisions of this Addendum shall be incorporated into the Master License Agreement, which is hereby amended and restated in full. All provisions of the Master License Agreement shall remain the same except as specifically set forth herein. In the event of any conflict between the terms of the Master License Agreement and this Addendum, this Addendum shall control. E. Entire Addendum. The Master License Agreement and this Addendum and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the license 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. F. Recitals Incorporated by Reference. The Recitals of this Addendum are incorporated by this reference into this Addendum. FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER DOWNTOWN AREA - 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. CITY OF MERIDIAN Tammy de Weerd Mayor ATTEST: Jaycee L. Holman City Clerk ACRD ADA COUNTY HIGHWAY DISTRICT Sara M. Baker President ATTEST: Bruce S. Wong Director FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER DOWNTOWN AREA - 4