ACHD Cost Share Permit Ustick and Ten MileADA COUNTY HIGHWAY DISTRICT
COST SHARE PERMIT
Date of Permit: Novemberl8, 2011
3775 Adams Street
Garden City Idaho 83714
Phone (208) 387-6280
Facsimile (208) 387-6289
Project No.; 310023
ACHD Contact Person:
Name: Al Busche
3775 Adams Street
Garden City Idaho 83714
Phone: (208) 387-6230
Permit No.: 001
Capitalized terms that are not defined in this Permit shall have the meanings given to them in the
ACHD Cost Share Ordinance No. 215.
This permit is granted to: City of Meridian Partnering Agency Co
33 E. Broadway Ave. Caleb Hood
Meridian, Idaho 83642 33 E. Broadway Ave.
Meridian, Idaho 83642
Phone: (208) 489-0572
of ACRD Road Project:
Ustick & Ten Mile Intersection, ACHD Project #310023, as generally depicted on Exhibit A and
further depicted in the plans attached hereto and incorporated herein as Exhibit B.
Approved Non -Transportation
In accordance with Section 3109.10 of Cost Share Ordinance No. 215, ACRD considers the
Partnering Agency's Cost Share Application to be an exception request to allow interim
treatments in connection with the ACHD Road Project. The Interim Treatments (defined below)
must eventually be replaced with Permanent Landscaping (defined below) within 10 years,
unless otherwise authorized in writing. Therefore, pursuant to this Permit, ACRD authorizes,
and as a condition of issuing this Permit, requires, the following Non -Transportation
Components:
(1) Design, Construction, and Maintenance of Interim Treatments until Replaced with Design,
16, 18, and 19 as depicted on Exhibit A. ACRD authorizes and requires the maintenance of
interim treatments in the form of existing weed barrier and two inch minus drain rock, along with
conduit for future irrigation. The top surface of the drain rock shall be level and depressed I/2
inch to 1 inch below the top surface of the curb and sidewalk in order to contain the rock
(collectively, the "Interim Treatment") within the six-foot wide pedestrian safety buffer areas
present in front of parcels 12, 14, 16, 18, and 19 for a period of ten (10) years from the date of
this Permit. After the 10 year period, the Interim Treatments must be replaced with developed
landscaping in the form of irrigated grass (the "Permanent Landscaping"), except that the
Interim Treatment may remain in front of parcels that are undeveloped beyond the 10 year period
upon the prior written consent of ACHD.
(2) Design Construction and Maintenance of Interim Treatments until Replaced with Design,
Construction and Peffpetual Maintenance of Permanent Landscaping in Front of Parcels 8, 9, 10,
13, 15, and 21. ACHD authorizes and requires the design, construction, and maintenance of
Interim Treatments within the six-foot wide pedestrian safety buffers present in front of parcels
8, 9, 10, 13, 15, and 21 for a period of ten (10) years from the date of this Permit. After the 10
year period, the Interim Treatments must be replaced with Permanent Landscaping, except that
ACHD may, in its sole discretion, taking into account then -current conditions, authorize the
Interim Treatments to remain in front of parcels that are undeveloped beyond the 10 year period.
Such authorization, if given, shall only be valid if it is provided by ACHD in writing prior to the
expiration of the 10 -year period. .
(3) Design Construction and Perpetual Maintenance of Permanent Landscaping* of Parcels 7
and 12. ACHD authorizes and requires the design, construction, and perpetual maintenance of
the Permanent Landscaping in front of parcels 7 and 12.
In accordance with Ordinance 215, the foregoing Interim Treatments and Permanent
Landscaping are referred to herein as the "Non -Transportation Components."
Conditions of acquisition/contribution of real property by Partnering Agency and/or
reimbursement to ACHD by Partnering Agency for acquisition of real property:
None. ACHD has already acquired or is in the process of acquiring the right-of-way necessary
to incorporate the Non -Transportation Components into the Project. Therefore, the acquisition
of the real property for these safety buffer areas is not required of Partnering Agency, and is not
part of the Non -Transportation Components.
tj
Party responsible for obtaining plans/design for Non -Transportation Components:
The Partnering Agency shall be responsible for obtaining approval of the plans/designs of the
Non -Transportation Components, which shall consist of designs for the Interim Treatments and
Permanent Landscaping, as applicable, for the parcels outlined above.
If Partnering Agency is responsible for providing plans/designs, deadline for submitting
plans/designs to ACHD for approval:
Partnering Agency shall submit the plans/designs of the Non -Transportation Components and
receive approval from ACHD as to the plans/designs prior to installation.
Additional conditions: All designs/plans subinitted by the Partnering Agency will comply with (i)
established engineering standards, including the Idaho Standa cls for Public Works Construction
(ISPWC) (ii) the American. Association of State Highway and Transportation Officials ("AASHTO"), (iii)
the Cost -Share Ordinance No. 215, (iv) all adopted ACHD rules, regulations, and policies, and (v) all
state and federal laws. No designs shall be considered final until they are approved, in ~writing by ACHD.
Any modifications to the deadlines set forth. above must be approved in writing by ACHD. By approving
such. designs/plans, ACHD assumes no responsibility for any deficiencies or inadequacies in the design or
construction of the Non -Transportation Components.
Allocation of design costs for Non -Transportation Components (including, if applicable,
any credits provided to Partnering Agency and application of any federal funding) and
time for reimbursement, if applicable:
Partnering Agency shall be solely responsible for all design costs for the Non -Transportation
Components. Partnering Agency shall receive no credits in connection with the design costs for
the Non -Transportation Components.
Description of construction work approved by ACHD to be completed by Partnering
Agency (if applicable): (In addition to description, refer to designs and plans attached to
this Permit as Exhibits, if applicable. If designs and plans are not complete at the time of
issuance of this Permit, they must be approved in writing by ACHD and shall be
incorporated into this Permit.)
Upon submission of the plans/designs of the Non -Transportation Components by Partnering
Agency and approval by ACHD, Partnering Agency may proceed with construction or may elect
to contract with ACHD for construction. If Partnering Agency performs the construction, it shall
construct the improvements in accordance with the approved plans/designs.
In connection with the construction, Partnering Agency may elect to utilize existing 2 inch minus
drain rock in front of parcels 12 and 14 as depicted on Exhibit A. If Partnering Agency elects to
do so, so long as Partnering Agency is solely responsible for the collection of such gravels or
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reimbursement to ACHD for such collection, and so long as such collection is reasonably
feasible.
Additional conditions, (1) The Partnering Agency will not allow any liens to attach to any right-of-way,
iniprovements, or other property of ACHD as a result of any labor pef formed or materials supplied in
connection with the construction of the Non -Transportation Components. (2)The Partnering Agency
shall be responsible for obtaining all permits required by ACHD in connection with any construction of
the Nora -Transportation Components. (3) Partnering Agency's construction shall not negatively impact
ACHD's construction, of the Transportation Components orACHD's Road Project schedule in any way.
(4) Any amendment to the designs and plans must be approved in writing by ACHD. (5) All construction
of the Non -Transportation Coniponen.ts shall be in accordance with the designs/plans approved by
ACHD. (6) All construction by the Partnering Agency will comply with (i) established engineering
standards, including the Idaho Standards for Public Works Construction (ISPWC) (i) the American
Association. of State Highway and Transportation Officials ("AASHTO"), (iii) the Cost -Share Ordinance
No. 215, (iv) all adopted ACHD rules, regulations, and policies, and (v) all state and federal laws.
If Partnering Agency is responsible for all or a part of the construction of the Non -
Transportation Components:
a. Date for submitting the Partnering Agency's contractors and engineers to ACHD for
approval: Not applicable due to the nature of the construction.
b. Date for submitting the Partnering Agency's contractors' and engineers' estimates
to ACHD for approval: Not applicable due to the nature of the construction.
c. Date for submitting the Partnering Agency's contractors' and engineers' contracts to
ACHD for approval: Not applicable due to the nature of the construction.
Any modifications to the deadlines set forth above must be approved in writing by ACHD.
Allocation of construction costs for Non -Transportation Components, reconstruction costs
of Transportation Components necessitated by the incorporation of Non -Transportation
Components into the Road Project, ACHD construction, maintenance, administration, and
overrun costs (including, if applicable, any credits provided to Partnering Agency and
application of any federal funding), and time for reimbursement, if applicable:
Partnering Agency shall be solely responsible for all construction costs of the Non-
Transpoilation Components, whether ACHD or Partnering Agency performs such construction.
Partnering Agency shall receive no credits in connection with the construction of the Non -
Transportation Components. if ACHD performs the construction of the Non -Transportation
Components, then Partnering Agency shall reimburse ACHD for the actual cost of all materials
used, the cost of the relocation of any utilities necessitated by the Non -Transportation
Components, and any other costs associated with the construction and installation of the Non -
Transportation Components. Payment by Partnering Agency shall be made to ACHD within 30
days following submission of an invoice by ACHD to Partnering Agency identifying such
charges.
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Relocation of utilities to be completed by Partnering Agency (if any):
If Partnering Agency constructs the Non -Transportation Components, the Partnering Agency
will be solely responsible for the relocation of any utilities required tired in connection with the
placement, incorporation, or construction of the Non -Transportation Components. If ACHD
constructs the Non -Transportation Components, the Partnering Agency will be solely responsible
for the cost of the relocation of any such utilities.
Storm water provisions (if
The pedestrian safety buffer area between sidewalk and vertical curb shall be designed so as to
prevent storm water from accumulating and ponding in the buffer area.
Additional conditions; Upon a determination by ACHD that the incorporation into the Road Project of
the Partnering Agency's Non -Transportation Cornponent(s) will have an adverse effect onstorm. water
quantity or quality, Partnering Agency shall be solely responsible for either mitigating or funding the
initigation of any such adverse effected in a means determined by or acceptable to ACRD,
Schedule for completion of Road Project:
At this time, ACHD's schedule for completion of the Transportation Components of the Road
Project completion is unknown, but estimated on August, 2012. There is no deadline for
Partnering Agency's completion of the Non -Transportation Components.
ace requirements of Non-
onents by the Partnering Agency:
Partnering Agency shall, and is hereby granted a non-exclusive, revocable license to, maintain,
repair, and replace the Non -Transportation Components, subject to the provisions of this Permit
and during the terns of this Permit. This includes:
(1) The maintenance, repair, and replacement of Interim Treatments until replaced with
Permanent Landscaping in front of Parcels 12, 14, 16, 18, and 19, and thereafter, the perpetual
maintenance, repair, and replacement of the Permanent Landscaping in front of such parcels.
(2) The maintenance repair, and replacement of Interim Treatments until replaced with
Permanent Landscaping in front of Parcels 8, 9, 10, 13, 15, and 21, and thereafter, the perpetual
maintenance, repair, and replacement of the Permanent Landscaping in front of such parcels.
(3) The perpetual maintenance, repair, and replacement of the Permanent Landscaping in front
of Parcels 7 and 12.
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Partnering Agency shall cause the Non -Transportation Components to be operated and
maintained in good functioning order during the term of this Permit, in accordance with
applicable law, the approved designs/plans, the Partnering Agency's landscape and irrigation
standards and specifications, and industry standards. This obligation includes, without
limitation, grass and lawn care, pruning or replacement of gravel, trees, and shrubs, clean -tip of
litter and debris, weed removal and application for shrubs, trees and groundcover, as applicable.
Any replacement and/or installation by Partnering Agency of additional improvements shall be
accomplished in accordance with designs, plans and specifications approved in advance and in
writing by ACHD, in its discretion, and as required to satisfy applicable laws, its policies and
good engineering and landscaping practices.
Additional conditions:
I.This Permit does not extend to Partnering Agency the right to use any part of the ACHD Road Project
area to the exclusion. of ACHD for any use within its jurisdiction, authority, and discretion or of others to
the extent authorized by law.
2. hi. accessing any part of the Road Project that has been accepted as an open public highway (as the
term. "highway" is defined in Idaho Code Section 40-109(5)), Partnering Agency's authorized use is
subject to the rights of the public to use the highway.
3, The rights granted hereunder are subject to and subordinate to the rights of holders of easements of
records and the statutory rights of utilities to use the right-of-tivay.
4. This Permit does not preclude or impede the ability of ACHD to enter into or grant easements or
license agreements allowing third parties to access the Road Project area, or the ability of ACHD to
redesign, reconstruct, relocate, maintain, and improve the Road Project and right-of-way as it determines
necessary, in its sole discretion.
5. In consideration of the license granted by this Permit, Partnering Agency expressly covenants and
agrees that the license granted herein is temporary and merely a permissive use of the ACHD right-of-
way pursuant to the terms of this Permit. Partnering Agency assumes the risk that the license granted
herein. may be terminated before Partnering Agency has realized the economic benefit of the cost of
installing, constructing, repairing, or maintaining the Nan -Transportation Components, and by signing
and accepting this Permit, Partnering Agency hereby waives and estops itself from asserting any claim,
including damages or reimbursement, that the license is in any way irrevocable because Partnering
Agency has expended funds on the Non -Transportation Components and the Permit has not beenin effect
for a period sufficient for Partnering Agency to realize the economic benefit from such expenditures.
6. In the event the Partnering Agency fails to replace, repair; maintain, and care for the Non. -
Transportation Components, ACHD shall have the following remedies in addition to any other recovery
in law or in equity provided thatACHD first gives the Partnering Agency thirty (30) days notice and the
Partnering Ageney fails to remedy such failure: (i) ACHD ntay revoke this Permit, (ii) ACHD may
replace, maintain, and/or care for the Non. -Transportation Components and the Partnering Agency shall
reimburse ACHD fully for all associated costs, (iii) ACHD may remove, alter, redesign, or reconstruct
the Non -Transportation Components or any part of the ACHD Road Project (including without limitation
the right-of-way), or in the case of landscaping, replace the Nara -Transportation Components with
hardscape, and the Partnering Agency shall reimburse ACHD fully for all associated costs; and (iv)
ACHD may refuse to issue any further Cost Share Per traits or any other permits for future ACHD Road
Projects until the Partnering Agency complies with the conditions of the Perin.it. In addition, inn the event
of an emergency caused by the Partnering Agency's faili.rre to per form required maintenance, ACHD may
immediately petfor»r any and all emergency repairs or take other measures in connection with an
emergency, and the Partnering Agency shall reimburse ACHD full for all associated costs.
Term of Permit:
Perpetual, until terminated or revoked pursuant to the provisions of this Permit, provided that
Interim Treatments are only authorized for a period of 10 years following the date of this Permit,
after which time the Interim Treatments must be replaced with Permanent Landscaping, which
shall be perpetually maintained by Partnering Agency until termination or revocation of this
Permit. Notwithstanding the foregoing, Interim Treatments may remain in front of parcels that
are undeveloped beyond the 10 year period upon the prior written consent of ACHD
Upon termination or revocation of this Permit, upon the request of ACHD, Partnering Agency
will either, as directed by ACHD, (i) promptly remove the Non -Transportation Components and
restore the underlying area to at least the condition present as of the date of this Permit.
Partnering Agency shall repair and restore all portions of ACHD's right-of-way and personal
property, if any, that is damaged during such removal activities, or (ii) reimburse ACHD for its
cost of redesigning, replacing, and/or reconstructing the right-of-way underlying the Non -
Transportation Components. Any portion of the Non -Transportation Components that remain in
ACHD right-of-way 90 days after the termination or revocation of this Permit shall be deemed
abandoned and ACHD shall have the right to remove them or redesign, replace, and reconstruct
the rinht-of way underlving them and charge all costs to Partnering Agency,
This Permit is issued in connection with the following findings; Partnering Agency's Cost Share
Application was determined by ACHD to be incomplete due to numerous inaccuracies,
including, by way of example and without limitation, (i) the reference to the former ACHD Cost
Share Policy, which has been superseded by the ACHD Cost Share Ordinance No. 215, (ii) the
application of credits to the Non -Transportation Components, (iii) the reference to the Non -
Transportation Components as Transportation Components, (iv) the statement that Partnering
Agency will not assume the cost of the design and construction of Non -Transportation
Components, and (v) the request that ACHD enter directly into agreements with third party
property owners within the Road Project area to provide the Non -Transportation Components.
This Permit provides the terms upon which the incorporation of the Non -Transportation
Components into the Road Project are approved.
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1. This Permit is issued conditioned upon the Partnering Agency's compliance with ACHD's Cost
Share Ordinance No, 215 and all certifications made by the Partnering Agency pursuant to this
Permit.
2. This Permit is subject to the provisions of state and federal law and ACHD's Cost Share
Ordinance No. 215, in effect as of the date of issuance of this Permit (the "Applicable Law"). In
the event of any conflict between this Permit and Applicable Law, Applicable Law shall govern.
In the event that any part of the obligations of the Partnering Agency or of ACRD in connection
with the Road Project are determined to be illegal or unenforceable by a court of competent
jurisdiction, the remaining obligations of the Partnering Agency set forth in this Permit shall still
be applicable. Future amendments and restatements of the Cost Share Ordinance shall not be
applicable to this Permit.
If any portion of the ACHD Road Project (including without limitation any portion of the right-
of-way) is damaged as a result of Partnering Agency's action or inaction with regard to the
construction, operation, and/or maintenance of the Non -Transportation Components or the failure
or neglect to construct, operate, and/or maintain the Non -Transportation Components, then
Partnering Agency shall, at its sole cost and expense, correct such deficiency and restore the area
to the same condition it was in prior thereto, and if Partnering Agency or its successors or assigns
shall fail or neglect to commence such correction and restoration within 24 hours of notification
thereof, ACHD may proceed to do so, in which event Partnering Agency shall reimburse ACHD
for the costs and expenses thereof, including, without limitation, reasonable compensation for the
use of staff and equipment of ACHD.
4. The Partnering Agency shall be liable to ACHD for any and all damages, fines, fees, obligations
to third parties, costs, expenses, attorney fees, or any other liabilities whatsoever resulting from
the Partnering Agency's failure to comply with any provision of this Permit and/or Cost Share
Ordinance No. 215. Without limiting the foregoing in any manner, in the event Partnering
Agency fails to comply with any provision of this Permit, then following any applicable notice
and opportunity to cure set forth herein, ACRD shall have the right, in addition to all other rights
and remedies elsewhere in this Permit, to redesign, replace, and/or reconstruct the Non -
Transportation Components and/or the right-of-way underlying the Non -Transportation
Components, and in such event, Partnering Agency shall reimburse ACHD for all associated
costs. The obligations in this Section shall survive the expiration, revocation, and/or cancellation
of this Permit for any reason.
5. Partnering Agency may delegate any of its responsibilities hereunder to any third party so long as
it gives prior written notice to ACHD that specifies in detail what responsibilities are being
delegated and 'identifies the third party Notwithstanding any delegation to a third party, the
Partnering Agency shall remain and shall be ultimately responsible for the third party's
compliance with the terms of this Permit, and no delegation shall absolve Partnering Agency of
any duties or obligations of this Permit in any way. In addition, Partnering Agency fully assumes
all legal risks of determining whether any such delegation is proper under applicable law and/or
regulations, and shall not be absolved of any responsibilities under this Permit if it is unable to
complete or maintain any such delegation for any reason.
6. The Partnering Agency, will protect, defend, indemnify, and hold ACHD and its officers,
directors, employees, members, and agents harmless from and against any and all liability, suits,
losses, damages, claims, actions, costs, and expenses of any nature, including court costs and
attorney fees, arising from or out of any acts or omissions of the Partnering Agency, its agents, or
contractors related to or in connection with the Non -Transportation Components and the exercise
of any privileges or performance of any obligations by the Partnering Agency pursuant to the
terms of this Permit. The Partnering Agency's obligations in this Section shall survive the
expiration, revocation, and/or cancellation of this Permit for any reason.
7. In the event the Non -Transportation Components will or may necessitate future maintenance,
repair, relocation, or replacement that is not the subject of this Permit, ACED shall in its
discretion issue the Partnering Agency an amended or an additional Cost Share Permit to perform
such work.
ACHD shall at all times have the right to relocate, reconstruct, remove, or redesign any and all
improvements that are part of the Road Project. ACHD will use its best efforts to advise
Partnering Agency of any anticipated actions within the Road Project that would be likely to
cause a relocation, modification, or other adaptation of any of the Non -Transportation
Components, and the parties, to the extent reasonably possible, shall agree to a priority schedule
regarding the same and shall attempt to cooperate with respect to planning and coordination as
related to any such relocation, modification, or other adaptation of any of the Non -Transportation
Components. If ACHD ultimately determines that any part of the Road Project must be
relocated, reconstructed, removed, or redesigned, then Partnering Agency, at its sole cost and
expense, shall be responsible for relocating, reconstructing, removing, or redesigning the Non -
Transportation Components, as required by ACHD, which shall be accomplished by Partnering
Agency according to designs, plans, and specifications approved by ACHD in writing prior to any
such work. Partnering Agency may also elect to remove all or a part of the Non -Transportation
Components in lieu of any relocation, modification, or adaptation. Partnering Agency assumes
any and all costs of itself and ACHD relating to any fixture relocation of the Non -Transportation
Components,
9. ACHD shall at all times have the right to revolve this and any other Cost Share Permit granted to
the Partnering Agency to access any Highway or Public Right -of -Way. In addition, ACHD may
immediately perform any and all emergency repairs or take other measures in connection with an
emergency, in which case the Partnering Agency shall reimburse ACHD fully for all associated
costs.
10. This Permit shall immediately be revocable and/or cancelable by ACHD by providing written
notice to the Partnering Agency upon the occurrence of any of the following: (i) a determination
by ACHD that any of the information submitted by the Partnering Agency in the Cost Share
Application is false or inaccurate in any manner, (ii) a determination by ACHD that the
Partnering Agency has failed to comply with any term or provision of this Permit or any other
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permit granted by ACRD to Partnering Agency, (iii) a determination by ACHD that the
Partnering Agency has failed to replace, maintain, and/or cane for the Non -Transportation
Components as required by the terms of this Permit. Except in an emergency situation, ACHD
shall provide the Partnering Agency with thirty (30) days notice of the issue and an opportunity to
comply prior to exercising such rights,
11. The issuance of this Permit shall in no way obligate ACHD to provide Partnering Agency with
additional permits or rights, nor shall ACHD be obligated to utilize provisions or rights set forth
in this Permit in connection with additional permits or rights that it may elect to provide to
Partnering Agency in the future.
12. All exhibits and any addenda to this Permit are incorporated herein,
13, This Permit is conditioned upon the signature of ACHD and the Partnering Agency below.
This Cost Share Permit is issued by the Ada County Highway District on the date set forth
above:
.Acca County Highway District:
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AO"\
This Cast Share Permit is issued by the Ada County Highway District on the date set forth
above:
Ada County Highway District:
The person signing below represents that he or she has the authority on behalf of ACHD to issue
this Permit and bind ACHD to the terms set forth herein.
Fay: Bruce S. Won
Its: Director
City of Meridian:
Acceptance/certification by Partnering Agency: The person signing below represents that he or
she has the authority on behalf of the Partnering Agency to accept and agree to the terms of this
Permit and bind the Partnering Agency to the terms set forth herein.
err
By. Tanury Deweerd
Its: Mayor
Exhibits
Exhibit A General Depiction of Project
Exhibit B Project Plans
EXHIBIT A - GENERAL DEPICTION OF PROJECT
EXHIBIT B - PROJECT PIANS