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Interagency Agmt with ACHD and MDC for Split Corridor Phase 2JOINT PROJECT IBETWEEN CY AGREEMENTCOPY ADA COUNTY HIGHWAY DISTRICT, CITY OF MERIDIAN, AND MERIDIAN DEVELOPMENT CORPORATION - MERIDIAN SPLIT CORRIDOR PHASE TWO ACHD PROJECT NO. 506047 THIS JOINT PROJECT INTERAGENCY AGREEMENT ("Agreement") is entered into this ... day of J V ; , , 2012, by and between ADA COUNTY HIGHWAY DISTRICT, by and through its Board of Commissioners (hereinafter referred to as "ACHD"), and the CITY OF MERIDIAN, by and through its Mayor and City Council (hereinafter referred to as the "CITY"), and the MERIDIAN DEVELOPMENT CORPORATION, by and through its Board of Commissioners (hereinafter referred to as "MDC") all parties being bodies politic and corporate of the State of Idaho. RECITALS WHEREAS, ACHD is a single county -wide highway district, a public entity, organized and operating pursuant to Idaho Code Title 40, Chapter 14, as amended and supplemented. WHEREAS, CITY is a public entity, organized and operating pursuant to Idaho Code Title 50, as amended and supplemented. WHEREAS, MDC is a public entity, organized and operating pursuant to Idaho Code Title 50, Chapter 20, as amended and supplemented. WHEREAS, ACHD is planning to construct a road improvement project focusing on widening and realigning Main Street and Meridian Road from north of Franklin Road to Cherry Lane -Fairview Avenue, Ada County, Idaho, known as Phase Two of the Meridian Split Corridor Project, ACHD Project No. 506047 (hereinafter referred to as the "ACHD Phase Two Project"). The ACHD Phase Two Project includes the construction of a cross-over roadway, connecting Main Street to Meridian Road, north of Franklin and south of the railroad crossing. It includes the expansion of Meridian Road to 5 -lanes, from the crossover roadway, north to the Meridian Road/Cherry Lane -Fairview Avenue 'intersection and elimination of the free -running right turn at the intersection of Main Street and Fairview Avenue. The ACHD Phase Two Project is generally depicted in the aerial/GIS map attached hereto as Exhibit A. The Meridian Split Corridor project has been identified in the Downtown Meridian Transportation Management Plan (2005). WHEREAS, CITY is planning a public works sewer and water project for Meridian Road (hereinafter referred to as "CITY Sewer and Water Project") and desires the CITY Water and Sewer Project to be incorporated into a portion of the ACHD Phase Two Project and CITY agrees to pay for the actual design and construction costs of the CITY Water and Sewer Project if it is incorporated into the ACHD Phase Two Project. Page 1 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two WHEREAS, ACHD is willing to accommodate CITY's request for the incorporation of the CITY Water and Sewer Project into the ACHD Phase Two Project so long as CITY agrees to be fully responsible for all costs of the CITY Water and Sewer Project. WHEREAS, MDC desires the installation of decorative street lighting (hereinafter referred to as the "MDC Lighting Project") to be incorporated into a portion of the ACRD Phase Two Proj ect and MDC agrees that the MDC Lighting Project is a "non -transportation component" and agrees to comply with all requirements set forth in ACHD's Cost Share Ordinance Section 3109 et. seq. (hereafter "Cost Share Ordinance"), and MDC agrees to pay for the design and construction costs of the MDC Lighting Project in accordance with the Cost Share Ordinance, and as a co -permittee with CITY, MDC shall assume secondary responsibility for the perpetual maintenance and operation of the MDC Lighting Project in accordance with the Cost Share Ordinance. CITY agrees that the MDC Lighting Project is a "non -transportation component" under the Cost Share Ordinance and CITY agrees to have primary responsibility to pay for the perpetual maintenance and operation of the MDC Lighting Project in accordance with the Cost Share Ordinance as a co -permittee on the MDC Lighting Project, and City agrees to comply with all applicable requirements set forth in the Cost Share Ordinance. WHEREAS, CITY desires the installation of landscape improvements (hereinafter referred to as the "CITY Landscape Project") to be incorporated into a portion of the ACRD Phase Two Project and CITY agrees that the CITY Landscape Project is a "non -transportation component" and agrees to comply with all requirements set forth in ACHD's Cost Share Ordinance Cost Share Ordinance, and CITY agrees to pay for the design, construction costs, and perpetual maintenance and operation of the CITY Landscape Project in accordance with the Cost Share Ordinance. WHEREAS, ACRD, CITY and MDC desire by this Agreement to work cooperatively and to set forth their respective duties and obligations which they are authorized by law to perform, and to allocate certain costs and responsibilities, each with regard to the joint ACHD Phase Two Project/CITY Water and Sewer Project/CITY Landscape Project/MDC Lighting Project in accordance with law and as further set forth in this Agreement. WHEREAS, Idaho Code § 67-2332 expressly authorizes public agencies to enter into agreements with one another for cooperative action for purposes within the power, privilege or authority of said agencies. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing Recitals, which are made a part of the Agreement, and not mere Recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do mutually undertake, promise and hereby agree as follows: Page 2 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two SECTION I. ACHD PHASE TWO PROJECT 1. DESIGN 1.1 ACHD, and/or its consultant, shall complete all design work for the ACHD Phase Two Project. The ACHD Phase Two Project shall be designed in compliance with the standards of the American Association of State Highway and Transportation Officials ("AASHTO"), the standards and specifications set forth in the ACHD Policy Manual. ACHD shall provide the CITY and MDC with plan sets at all design phases for review and comment. 1.2 ACHD shall provide for the design of the ACHD Phase Two Project. CITY shall pay ACHD for the additional cost for design of the ACRD Phase Two Project resulting from incorporation of the CITY Water and Sewer Project and/or the CITY Landscape Project. MDC shall pay ACHD for any actual additional costs for design of the ACRD Phase Two Project resulting from incorporation of the MDC Lighting Project The actual cost of the ACHD Phase Two Project design is EIGHT HUNDRED THOUSAND SEVEN HUNDRED AND EIGHTY FOUR DOLLARS AND SEVENTY-SIX CENTS ($800,784.76). ACHD shall invoice any actual additional costs for the design of the ACHD Phase Two Project accordingly and within thirty-five (35) days receipt of any such invoice, CITY and/or MDC shall pay the amount invoiced by ACRD. 1.3 ACHD shall approve, in its sole discretion, the Engineer's Estimate and the ACHD Phase Two Project plans. ACHD, CITY and MDC shall acknowledge in writing the final, approved ACHD Phase Two Project bid plans and the Engineer's Estimate prior to commencement of formal bid, and neither shall thereafter be modified in any material way unless such modifications are approved in writing signed by ACHD 2. CONSTRUCTION ACCESS MEASURES — SHARED RESPONSIBILITIES 2.1 In order to ensure access for properties during construction which would otherwise be landlocked as a result of road closures during the joint ACHD Phase Two Project/CITY Project, and in order to ensure parking access for CITY' s City Hall building during the joint ACHD Phase Two Project/CITY Project, ACHD and CITY shall coordinate measures for alternate access, which includes the acquisition of temporary easements, the placement of temporary paving, and the removal of curbing and other features. 2.2 The approximate location and configuration of the alternate access measures to be coordinated by ACHD and CITY and made a part of the joint ACHD Phase Two Project/CITY Project are depicted in the attached Exhibits B 1, B2 and B3. 2.3 The current cost estimate of the alternate access measures is TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000); CITY shall reimburse ACRD for one-half of the costs of such alternate access up to a maximum amount of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000). ACHD and CITY agree that if the actual cost of the alternate access measures exceeds TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) CITY and ACRD shall each be responsible for one-half of such excess costs. ACHD Page 3 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two shall provide CITY with a breakdown of the actual costs of the access measures along with an invoice for the CITY's share of the same as set forth herein and as may be agreed by ACHD and CITY with regard to any excess amounts and within thirty-five (35) days receipt of such invoice, CITY shall pay the amount invoiced by ACRD. 3. ACHD STORM WATER FACILITY — PARCEL 143 3.1 ACHD Phase Two Project will include a storm water facility on a parcel located at the southeast corner of the intersection of Meridian Road and Carmel Drive; the work is depicted in the attached Exhibit C, and is identified as Parcel 143 in the attached Exhibit C. 3.2 Parcel 143 and the storm water facility to be constructed thereon shall be characterized by ACHD as "highway" and "public right-of-way" as such terms are defined in Title 40, Chapter 1, Idaho Code. SECTION II. CITY WATER AND SEWER PROJECT SUMMARY STATEMENT OF AGREEMENT ACHD shall incorporate the CITY Water and Sewer Project into the ACHD Phase Two Proj ect subject to the terms and conditions of this Agreement. 2. SCOPE OF WORK, ESTIMATED COST 2.1 ACHD and CITY agree that the scope of work for the CITY Water and Sewer Project provided by this Agreement is set forth in the document entitled "Scope of City Water and Sewer Project", a copy of which is attached hereto as Exhibit D. 2.2 CITY's consultant has prepared a cost estimate in 2011 Dollars for the construction of the CITY Water and Sewer Project. Construction of the CITY Water and Sewer Project is estimated to cost a total of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000). The parties acknowledge that these costs are only an approximation of the cost in 2011 dollars for the construction of the CITY. The parties acknowledge and agree that rapid rise in construction materials may affect the actual cost of construction of the CITY Water and Sewer Project that are substantially higher than the estimated costs in 2011 dollars. CITY shall be solely responsible to pay all actual construction costs for the CITY Water and Sewer Project including all actual construction costs in excess of the CITY's estimate. 3. DESIGN AND PERMITS 3.1 CITY, and/or its consultant, will complete all design work for the CITY Water and Sewer Project. The CITY Water and Sewer Project shall be designed in conformance with all applicable federal, state and local laws and regulations and standards and specifications for such work including but not limited to the most current edition of the Idaho Standards for Public Works Construction (ISPWC) and the CITY Supplemental Specifications to the ISPWC and all applicable standards and specifications set forth in the ACHD Policy Manual. Page 4 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 3.2 The design work for the CITY Water and Sewer Project shall include detailed and comprehensive plans addressing ground water to be encountered during sewer excavation in the project site and adequate countermeasures for handling ground water including, but not limited to, dewatering. The dewatering plans must be approved by the CITY Engineer and all applicable agencies. 3.3 Copies of complete and final designs for the CITY Water and Sewer Project including detailed and comprehensive plans addressing ground water in the project site and adequate countermeasures for ground water including, but not limited to, dewatering shall be provided to ACRD no later than June 1, 2012. 3.4 CITY shall be solely responsible to apply for and obtain all necessary federal, state and local permits for the CITY Water and Sewer Project as incorporated into the ACRD Phase Two Project. 4. SPECIAL PROVISIONS AND BID QUANTITIES 4.1 CITY, and/or its consultant, will develop special provisions, and unit bid quantities for the CITY Water and Sewer Project work to be included in the bid documents for the ACRD Phase Two Project construction contract. The special provisions and unit bid quantities shall support the CITY Water and Sewer Project as designed, including but not limited to ground water countermeasures such as dewatering, and shall be in conformance with all applicable federal, state and local laws and regulations and standards and specifications for such work including but not limited to the most current edition of the Idaho Standards for Public Works Construction (ISPWC) and the CITY Supplemental Specifications to the ISPWC and all applicable standards and specifications set forth in the ACRD Policy Manual. 4.2 Complete and final special provisions, and unit bid quantities for the CITY Water and Sewer Project work shall be provided to ACRD no later than June 20, 2012. 5. BIDDING AND CONTRACTING 5.1 ACRD shall incorporate the designs, special provisions, and unit bid quantities for the CITY Water and Sewer Project work as developed and submitted by CITY into the bid documents for the ACRD Phase Two Project. ACRD shall provide CITY a complete set of combined bid documents for the ACRD Phase Two Project, and the CITY Water and Sewer Project work referenced herein. 5.2 ACRD shall solicit, receive, and open bids for the ACHD Phase Two Project incorporating the CITY Water and Sewer Project work referenced herein utilizing a two-step, prequalification methodology as allowed in Idaho Code Section 67-2805. In the initial phase, ACRD shall prequalify prime and specialty contractors and in the second phase, bid prices will be accepted by ACRD only from prequalified contractors. ACRD shall furnish CITY with an abstract of all bids received. Page 5 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 5.3 ACRD shall award a contract for construction of the for the ACRD Phase Two Proj ect incorporating the CITY Water and Sewer Project work referenced herein, or in its discretion, ACHD may reject all bids and re -bid the project. CITY agrees and acknowledges that the contract for construction may include incentives for early completion. 5.4 Following award, ACRD shall execute and administer the construction contract for the ACRD Phase Two Project incorporating the CITY Water and Sewer Project work referenced herein. CONSTRUCTION 6.1 The construction of the CITY Water and Sewer Project as incorporated into the ACHD Phase Two Project shall be built in conformance with the designs, plans and specifications provided to ACRD by CITY. Such construction shall comply with all applicable laws, ACRD policies and standards, and engineering practices. 6.2 For all lawful purposes, CITY shall be considered a "Co-owner" of the ACRD Phase Two Project to the extent that it incorporates the CITY Water and Sewer Project. Pursuant to and in accordance with, applicable laws and regulations, the CITY shall file separately with the appropriate agencies a Notice of Intent (hereinafter referred to as "NOI") for the construction of the CITY Water and Sewer Project as incorporated into the ACHD Phase Two Project. 6.3 ACHD shall at all times be the party responsible to provide inspection for all work for the ACRD Phase Two Project that is not within the scope of the CITY Water and Sewer Project. CITY shall at all times be the party responsible to provide inspection for all work for the CITY Water and Sewer Project and shall provide copies of appropriate inspections, tests and diaries to the ACRD Phase Two Project representative. ACHD shall combine all applicable inspections, tests and diaries into a joint report which shall be co-signed by CITY and ACRD. The CITY shall at all times be the party responsible for maintenance, inspection, and tracking of any and all dewatering work associated with the CITY Water and Sewer Project. 6.4 CITY shall reimburse ACHD for all costs associated with the portion of the awarded bid relating to the CITY Water and Sewer Project. CITY shall have the discretion to accept or reject any change orders to the portion of the awarded bid relating to the CITY Water and Sewer Project within 5 business days. CITY shall not be obligated to reimburse ACHD for any costs associated with unapproved change orders, but may, in its discretion, approve any change order retroactively. 6.5 CITY shall at all times be the party solely responsible for and shall reimburse ACRD for backfill of excavation, safety measures, landscape restoration solely attributable to the CITY Water and Sewer Project as incorporated into the ACHD Phase Two Project and all other activities incidental to the CITY Water and Sewer Project. 6.6 CITY shall also be responsible for and shall reimburse ACHD for changed conditions, plan errors and omissions, and any delays attributable to the CITY Water and Sewer Project as incorporated into the ACRD Phase Two Project. Page 6 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 6.7 ACHD shall make any monthly progress payments to and the final construction contract payment to the Construction Contractor in conformance with the Construction Contract. Provided, however that before ACHD makes any monthly progress payment to the Construction Contractor for any work relating to any portion of the CITY Water and Sewer Project, CITY shall first approve and authorize such payment in writing within S business days of receipt. CITY shall hold ACHD harmless for any disputes relative to any monthly progress payment or portion thereof that the CITY does not approve and authorize. 6.8 ACHD will submit to CITY a copy of each Contractor progress payment estimate, as such estimates are approved by ACHD, together with an invoice for CITY's share of the Construction Contract costs earned by and to be paid to the Contractor. ACHD shall retain all invoices and other documents supporting such payment estimates. ACHD shall submit a monthly bill to CITY for reimbursement of the actual construction costs of the CITY Water and Sewer Project, as well as other costs for which CITY is responsible as set forth in this Agreement, and a final bill within THIRTY (30) days after completion of the work which shall include the CITY's share of any early completion incentive paid to the Construction Contractor as provide in Section II.8.1 of this Agreement. 6.9 CITY shall reimburse ACHD for the actual construction costs of the CITY Water and Sewer Project as incorporated into the ACHD Phase Two Project as well as other costs for which CITY is responsible as set forth in this Agreement. CITY shall pay ACHD within THIRTY (30) days after receipt of ACHD's monthly and final bills referenced in Section II.6.8 of this Agreement in cash or other immediately available funds. 6.10 CITY shall be solely responsible for determining that the work for the construction of the CITY Water and Sewer Project is Substantially Complete and will provide ACHD evidence of said acceptance and determination in writing. CITY shall be solely responsible to notify ACHD in writing when Construction Completion may be issued for the CITY Water and Sewer Project. 6.11 CITY shall be solely responsible for operation and maintenance of the work for the construction of the CITY Water and Sewer Project once said CITY Water and Sewer Project becomes operational. 6.12 ACHD shall transfer to CITY for the benefit of CITY, all warranties in the Construction Contract relating to the CITY Water and Sewer Project. 6.13 ACHD shall transfer to CITY for the benefit of CITY, all title in the work for the construction of the CITY Water and Sewer Project. 7. CITY SEWER AND WATER WORK OUTSIDE OF ACHD PHASE TWO PROJECT BOUNDARIES CITY shall be fully responsible for any sewer and water work outside of the ACHD Phase Two Project boundaries as depicted in Exhibit A, including, but not limited to, property Page 7 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two owner notification, excavation, material costs, construction costs, traffic control, grading, and associated paving work which will be subject to ACHD permitting, inspection, and approval. Provided that any ACHD permit fees shall be waived in accordance with the ACHD-CITY Interagency Governmental Agreement for Waiver of Costs and Fees dated June 9, 2010 and incorporated herein by reference. City shall also be responsible for inspection of storm water protection and erosion control measures outside of the aforementioned ACHD Phase Two Proj ect boundaries. 8. EARLY COMPLETION INCENTIVE PAYMENT 8.1 The early completion incentive that may be paid to the Construction Contractor shall not exceed THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00). CITY shall be responsible for and shall reimburse ACHD for one-half (1/2) of any early completion incentive paid to the Construction Contractor, up to a maximum amount of ONE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($175,000.00). 8.2 One-half (1/2) of any liquidated damages received by ACRD from the Construction Contractor shall be reimbursed back to the CITY. SECTION III. CITY LANDSCAPE PROJECT SUMMARY STATEMENT OF AGREEMENT ACHD shall incorporate the CITY Landscape Project into the ACHD Phase Two Project subject to the terms and conditions of this Agreement. 2. ISLAND MEDIAN AND FREE -RUNNING RIGHT -TURN — MAIN STREET AND FAIRVIEW AVENUE INTERSECTION — PARCEL 162; CROSS-OVER ROADWAY MEDIANS — PARCELS 163 AND 164. 2.1 As part of the ACHD Phase Two Project, ACRD shall modify the landscaped island median on the southeast corner of the intersection of Main Street and Fairview Avenue that is currently right-of-way owned by ACHD and maintained by CITY and ACHD shall eliminate the free -running right turn at said intersection. The work is depicted in the attached Exhibit E and these areas are identified collectively as Parcel 162 in the attached Exhibit E. 2.2 As part of the ACHD Phase Two Project, ACHD shall construct an island median southwest of the intersection of Main Street and Ada Street and an island median west of the intersection of Bower Street and the cross-over roadway. The work is depicted in Exhibit F and Exhibit G and these areas are identified respectively as Parcel 163 and Parcel 164 in the attached Exhibit F and Exhibit G. 3. CONSTRUCTION Page 8 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 3.1 As to Parcels 162, 163 and 164, ACRD shall be responsible for all traffic related improvements and removal of all roadway base material as part of the ACRD Phase Two Project, construction of curb, gutter and sidewalks, and the placement of conduit and 12" of top soil to a finish grade of 2" below top back of curb for the interior of and within each parcel as indicated on the plans for the ACRD Phase Two Project. 3.2 As to Parcels 162, 163 and 164, CITY shall be solely responsible for the design, construction and inspection of the installation of the sod, landscape, sprinkler irrigation facilities, renovation materials, and warranties and such work shall be completed prior to substantial completion of the ACRD Phase Two Project. CITY understands and agrees that if the work is not completed prior to substantial completion of the ACRD Phase Two Project, ACRD may in its full and complete discretion, pave Parcels 162, 163 and 164 with asphalt and any obligations of ACRD and the CITY under this Section III shall terminate. 0 COST SHARE PERMIT 4.1 CITY agrees that the CITY Landscape Project is a "non -transportation component" as defined in the Cost Share Ordinance and that CITY shall apply to ACRD for a Cost Share Permit for the CITY Landscape Project. CITY shall comply with any and all terms and conditions of the permit that may be issued to CITY by ACRD as to landscape improvements placed on Parcels 162, 163 and 164 by the CITY. 4.2 The terms and conditions of this Agreement relating to the CITY Landscape Project shall be null and void in the event CITY fails to apply to ACRD for a Cost Share Permit for the CITY Landscape Project or if ACRD does not issue a Cost Share Permit for the CITY Landscape Project. 5. MAINTENANCE AND OPERATION 5.1 CITY shall be solely responsible to pay for the perpetual maintenance and operation of the sod, landscape, and sprinkler irrigation facilities on Parcels 1625 163 and 164 in accordance with the Cost Share Ordinance and any permit that may be issued to CITY thereunder. CITY shall be solely responsible to provide adequate water volume and pressure for landscape irrigation. 6. VACATION AND ABANDOMENT OF PARCEL 162 6.1 Upon completion of the ACRD Phase Two Project, the ACRD Board of Commissioners shall consider the vacation and abandonment of Parcel 162 as public right-of- way in accordance with the procedures set forth in Idaho Code. Upon vacation and abandonment of Parcel 162, ACRD shall convey Parcel 162 to CITY as surplus property in accordance with the procedures set forth in Idaho Code with the execution of a Quitclaim Deed, "as -is" and without warranty of any kind. Any compensation normally due to ACRD in the event of such a conveyance will be waived by ACRD in accordance with the ACRD -CITY Interagency Governmental Agreement for Waiver of Costs and Fees dated June 9, 2010 and incorporated herein by reference. Page 9 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 6.2 If Parcel 162 is vacated and abandoned by ACRD and conveyed to CITY as surplus property as provided in Section III.6.1 of this Agreement, any Cost Share Permit granted to CITY by ACHD for the CITY Landscape Project shall terminate as to Parcel 162. SECTION IV CITY A CO -PERMITTEE ON MDC LIGHTING PROJECT 1.1 CITY agrees that the MDC Lighting Project provided for in Section V of this Agreement is a "non -transportation component" as defined in the Cost Share Ordinance and that CITY shall apply to ACRD for a Cost Share Permit for the MDC Lighting Project as a co - permittee with MDC, for the purpose of assuming primary and sole responsibility for perpetual maintenance and operation of the MDC Lighting Project. CITY shall comply with all applicable terms and conditions of the permit that may be issued to MDC and the CITY by ACRD for the MDC Lighting Project. 1.2 The terms and conditions of this Agreement relating to the MDC Lighting Project shall be null and void in the event CITY fails to apply to ACHD for a Cost Share Permit for the MDC Lighting Project as a co -permittee with MDC or if ACRD does not issue a Cost Share Permit for the MDC Lighting Project. 2. MAINTENANCE AND OPERATION CITY shall be primarily and solely responsible to pay for the perpetual maintenance and operation of the MDC Lighting Project in accordance with the Cost Share Ordinance and any permit that may be issued to MDC and the CITY thereunder. CITY shall be primarily and solely responsible to pay the energy costs necessary for the perpetual operation of the MDC Lighting Project. SECTION V MDC LIGHTING PROJECT SUMMARY STATEMENT OF AGREEMENT ACHD shall incorporate the MDC Lighting Project into the ACRD Phase Two Project subject to the terms and conditions of this Agreement. 2. COST SHARE PERMIT 2.1 MDC agrees that the MDC Lighting Project is a "non -transportation component" as defined in the Cost Share Ordinance and that MDC shall apply to ACRD, as a co -applicant with the City, for a Cost Share Permit for the MDC Lighting Project as required by the Cost Share Ordinance. 2.2 MDC shall pay for the design and cost to construct the MDC Lighting Project in accordance with the Cost Share Ordinance and any permit(s) that may be issued to MDC Page 10 of 21 ACRD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two thereunder. MDC shall comply with any and all terms and conditions of the permit(s) that may be issued to MDC by ACHD. As a co -permittee with CITY, MDC shall assume secondary responsibility for the perpetual maintenance and operation of the MDC Lighting Project in accordance with the Cost Share Ordinance and shall take on such responsibilities in the event the CITY fails in any way to carry out its obligations as set forth in Section IV of this Agreement. 2.3 The terms and conditions of this Agreement relating to the MDC Lighting Project shall be null and void in the event MDC fails to apply to ACHD for a Cost Share Permit for the MDC Lighting Project or if ACHD does not issue a Cost Share Permit for the project. 3. SCOPE OF WORK, ESTIMATED COST 3.1 ACHD and MDC agree that the scope of work for the MDC Lighting Project provided by this Agreement is set forth in the document entitled MDC Lighting Project, a copy of which is attached hereto as Exhibit H. 3.2 MDC's consultant has prepared a cost estimate in 2011 Dollars for the construction of the MDC Lighting Project provided by this Agreement. Construction of the Lighting Project as provided by this Agreement is estimated to cost a total of FIVE HUNDRED THOUSAND DOLLARS ($500,000). The parties acknowledge that these costs are only an approximation of the cost in 2011 dollars for the construction of the MDC Lighting Project. The parties acknowledge and agree that rapid rise in construction materials may affect the actual cost of construction of the MDC Lighting Project that are substantially higher than the estimated costs in 2011 dollars. MDC agrees that if any additional construction costs for the MDC Lighting Project are incurred, MDC shall be solely responsible to pay these additional costs. 0 DESIGN AND PERMITS 4.1 MDC, and/or its consultant, will complete all design work for the MDC Lighting Proj ect. The MDC Lighting Project shall be designed in conformance with all applicable federal, state and local laws and regulations and standards and specifications for such work including but not limited to the most current edition of the Idaho Standards for Public Works Construction (ISPWC) and the CITY Supplemental Specifications to the ISPWC and all applicable standards and specifications set forth in the ACHD Policy Manual. 4.2 Copies of complete and final designs for the MDC Lighting Project shall be provided to ACHD no later than June 1, 2012. 4.3 MDC shall be solely responsible to apply for and obtain all necessary federal, state and local permits for the MDC Lighting Project as incorporated into the ACHD Phase Two Project. 5. SPECIAL PROVISIONS AND BID QUANTITIES 5.1 MDC, and/or its consultant, will develop special provisions, and unit bid quantities for the MDC Lighting Project work to be included in the bid documents for the ACHD Page 11 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two Phase Two Project construction contract. The special provisions and unit bid quantities for each project shall be in conformance with all applicable federal, state and local laws and regulations and standards and specifications for such work including but not limited to the most current edition of the Idaho Standards for Public Works Construction (ISPWC) and the CITY Supplemental Specifications to the ISPWC and all applicable standards and specifications set forth in the ACHD Policy Manual. 5.2 Complete and final special provisions, and unit bid quantities for the MDC Lighting Project work shall be provided to ACHD no later than June 1, 2012. BIDDING AND CONTRACTING 6.1 ACHD shall incorporate the designs, special provisions, and unit bid quantities for the MDC Lighting Project work, as developed and submitted by MDC, into the bid documents for the ACHD Phase Two Project. ACHD shall provide MDC a complete set of combined bid documents for the ACHD Phase Two Project, and the MDC Lighting Project work referenced herein. 6.2 ACHD shall solicit, receive, and open bids for the ACHD Phase Two Project incorporating the MDC Lighting Project work referenced herein utilizing a two-step, prequalification methodology as allowed in Idaho Code Section 67-2805. ACHD shall furnish MDC with an abstract of all bids received. 6.3 ACHD shall award a contract for construction of the ACHD Phase Two Project incorporating the approved MDC Lighting Project work referenced herein, or in its discretion, ACHD may reject all bids and re -bid the project. 6.4 Following award, ACHD shall execute and administer the construction contract for the ACHD Phase Two Project incorporating the MDC Lighting Project work referenced herein. 7. CONSTRUCTION 7.1 The construction of the MDC Lighting Project as incorporated into the ACHD Phase Two Project shall be built in conformance with the designs, plans and specifications provided to ACHD by MDC. Such construction shall comply with all applicable laws, ACHD policies and standards, and engineering practices. 7.2 CITY shall inspect work under the Lighting Project at no- cost to ACHD or MDC and shall provide copies of appropriate tests and diaries to the ACHD Phase Two Project representative. 7.3 MDC shall reimburse ACHD for all costs associated with the portion of the awarded bid relating to the MDC Lighting Project. MDC shall have the discretion to accept or reject any change orders to the portion of the awarded bid relating to the MDC Lighting Project within 5 business days. MDC shall not be obligated to reimburse ACHD for any costs associated Page 12 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two with unapproved change orders, but may, in its discretion, approve any change order retroactively. 7.4 MDC shall also be responsible for and shall reimburse ACHD for changed conditions, plan errors and omissions, and delays attributable to the MDC Lighting Project as incorporated into the ACHD Phase Two Project. 7.5 ACHD shall make monthly progress payments and the final construction contract payment to the Construction Contractor in conformance with the Construction Contract. Provided, however that before ACHD makes any monthly progress payment to the Construction Contractor for any work relating to any portion of the MDC Lighting Project, MDC shall first approve and authorize such payment in writing. MDC shall hold ACHD harmless for any disputes relative to any monthly progress payment or portion thereof that MDC does not approve and authorize. 7.6 ACHD will submit to MDC a copy of each Contractor progress payment estimate relating to the MDC Lighting Project, as such estimates are approved by ACHD. ACHD shall retain all invoices and other documents supporting such payment estimates. ACHD shall submit a bill to MDC for full and complete reimbursement of the actual construction costs of the MDC Lighting Project as incorporated into the ACHD Phase Two Project and as earned by and paid to the Contractor by ACHD, as well as other costs for which MDC is responsible as set forth in this Agreement, within THIRTY (30) days after final completion of all the work on the MDC Lighting Project. 7.7 MDC shall reimburse ACRD for the actual construct costs of the MDC Lighting Project as incorporated into the ACRD Phase Two Project as well as other costs for which MDC is responsible as set forth in this Agreement. MDC shall pay ACHD within THIRTY (30) days after receipt of ACHD's bill referenced in Section V.7.6 of this Agreement in cash or other immediately available funds. 7.8 MDC shall be solely responsible for determining that the work for the construction of the MDC Lighting Project is Substantially Complete and will provide ACHD evidence of said acceptance and determination in writing. MDC shall be solely responsible to notify ACHD in writing when Construction Completion may be issued for the MDC Lighting Project. 7.9 In accordance with and subject to, the Cost Share Ordinance and the terms and conditions of the Cost Share Permit as may be issued to MDC by ACHD, MDC, as a co - permittee with the CITY, shall be secondarily responsible for operation and maintenance of the work for the construction of the MDC Lighting Project once said MDC Lighting Project work becomes operational and shall take on such responsibilities in the event the CITY fails in any way to carry out its obligations as set forth in Section IV of this Agreement. 7.10 ACHD shall transfer to MDC for the benefit of MDC, all warranties in the Construction Contract relating to the MDC Lighting Project. Page 13 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 7.11 ACRD shall transfer to MDC for the benefit of MDC, all title in the work for the construction of the MDC Lighting Project. SECTION VI. INDEMNIFICATIONS 1. ACHD 1.1 ACRD shall, subject to the limitations hereinafter set forth, indemnify, save harmless and defend regardless of outcome, CITY and/or MDC from expenses and against suites, actions, claims or losses of every kind, nature and description, including costs, expenses and attorney fees caused by or arising out of any negligent acts by ACHD or ACHD's officers, agents and employees while acting within the course and scope of their employment, which arise from or which are in any way connected to the ACRD Phase Two Project. Any such indemnification hereunder by ACRD is subject to the limitations of the Idaho Tort Claims Act (currently codified at chapter 9, title 6, Idaho Code). Such indemnification hereunder by ACRD shall in no event cause the liability of ACRD for any negligent act to exceed the amount of loss, damages, or expenses of attorney fees attributable to such negligent act, and shall not apply to loss, damages, expenses or attorney fees attributable to the negligence of CITY and/or MDC. 1.2 For any claims or actions arising out of the ACRD Phase Two Project, ACHD's obligations pursuant to this Section VI.1 shall survive the termination of this Agreement. 2. CITY 2.1 AS TO THE CITY WATER AND SEWER PROJECT, CITY SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ACRD FROM ANY CLAIM OR ACTION BY ANY THIRD PARTY FOR REIMBURSEMENT OR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, ANY DAMAGES ARISING OUT OF ANY CLAIM FROM ANY CUSTOMER FOR LOSS OF SERVICES) ARISING UNDER THIS AGREEMENT OR FROM ANY BREACH OF THIS AGREEMENT, OR ARISING OUT OF ANY ACT OR OMISSION OF EITHER PARTY HERETO, ITS EMPLOYEES, SERVANTS, CONTRACTORS AND/OR AGENTS. 2.2 As to the CITY Water and Sewer Project, CITY shall, subject to the limitations hereinafter set forth, indemnify, save harmless and defend regardless of outcome, ACRD from expenses and against suites, actions, claims or losses of every kind, nature and description, including costs, expenses and attorney fees caused by or arising out of any negligent acts by CITY or CITY's officers, agents and employees while acting within the course and scope of their employment, which arise from or which are in any way connected to the CITY Water and Sewer Project. Any such indemnification hereunder by CITY is subject to the limitations of the Idaho Tort Claims Act (currently codified at chapter 9, title 6, Idaho Code). Such indemnification hereunder by CITY shall in no event cause the liability of CITY for any negligent act to exceed the amount of loss, damages, or expenses of attorney fees attributable to such negligent act, and shall not apply to loss, damages, expenses or attorney fees attributable to the negligence of ACRD. Page 14 of 21 ACHD/City of Meridian/1\4eridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 2.3 As to the CITY Landscape Project, pursuant to the Cost Share Ordinance and any Cost Share Permit issued to CITY there under for the CITY Landscape Project, CITY shall indemnify, defend, and hold harmless ACRD and its elected and appointed officials, employees, agents, and contractors from and against any and all claims or actions for loss, liability, cost, injury, death, damages, mechanics and other liens, arising out the construction, installation, design, use, operation, repair, maintenance, and removal, of the CITY Landscape Project, or that otherwise results from the use, operation, maintenance, design, construction, installation, repair, and occupation of the Right -of -Way by CITY for the CITY Landscape Project, and including any attorney fees and costs that may be incurred by ACRD in defense of such claims or actions indemnified against by CITY (it being specifically agreed that ACRD as the indemnitee may retain its own counsel in connection with any such action, and MDC shall be solely responsible for any attorney fees and costs incurred by ACHD). 2.4 As a co -permittee on the MDC Lighting Project, pursuant to the Cost Share Ordinance and any Cost Share Permit issued to CITY there under for the perpetual maintenance and operation MDC Lighting Project, CITY shall indemnify, defend, and hold harmless ACRD and its elected and appointed officials, employees, agents, and contractors from and against any and all claims or actions for loss, liability, cost, injury, death, damages, mechanics and other liens, arising out its use, operation, repair, maintenance, and removal, of the MDC Lighting Project, or that otherwise results from the use, operation, maintenance, repair, and occupation of the Right -of -Way by CITY for the MDC Lighting Project, and including any attorney fees and costs that may be incurred by ACRD in defense of such claims or actions indemnified against by CITY (it being specifically agreed that ACRD as the indemnitee may retain its own counsel in connection with any such action, and CITY shall be solely responsible for any attorney fees and costs incurred by ACHD). 2.5 For any claims or actions arising out of this Agreement, CITY's obligations pursuant to this Section VI.2 shall survive the termination of this Agreement. 3. MDC 3.1 Pursuant to the Cost Share Ordinance and any Cost Share Permit issued to MDC there under for the MDC Lighting Project, MDC shall, to the extent permitted by Idaho Law, indemnify, defend, and hold harmless ACHD and its elected and appointed officials, employees, agents, and contractors from and against any and all claims or actions for loss, liability, cost, injury, death, damages, mechanics and other liens, arising out the design of the MDC Lighting Project, or, following completion of the MDC Lighting Project, MDC's use, operation, repair, maintenance, and removal, of the MDC Lighting Project, or that otherwise results from the use, operation, maintenance, design, repair, and occupation of the Right -of -Way by MDC for the MDC Lighting Project, and including any attorney fees and costs that may be incurred by ACHD in defense of such claims or actions indemnified against by MDC (it being specifically agreed that ACRD as the indemnitee may retain its own counsel in connection with any such action, and MDC shall be solely responsible for any attorney fees and costs incurred by ACHD). 3.2 ACRD shall, to the extent permitted by Idaho Law, indemnify, defend, and hold harmless MDC and its elected and appointed officials, employees, agents, and contractors from and against any and all claims or actions for loss, liability, cost, injury, death, damages, Page 15 of 21 ACRD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two mechanics and other liens, arising out the construction and installation of the MDC Lighting Proj ect including any attorney fees and costs that may be incurred by MDC in defense of such claims or actions indemnified against by ACRD (it being specifically agreed that MDC as the indemnitee may retain its own counsel in connection with any such action, and ACRD shall be solely responsible for any attorney fees and costs incurred by MDC). 3.3 For any claims or actions arising out of this Agreement, MDC and ACHD's obligations pursuant to this Section VI.3 shall survive the termination of this Agreement. SECTION VII. TERM OF AGREEMENT 1. ACRD 1.1 As to the work described in Section I of this Agreement and the mutual obligations relating thereto, it is anticipated that this Agreement shall terminate upon the satisfactory completion of the work and satisfaction of the obligations of ACRD and CITY and otherwise, the term of this Agreement shall be in conformity with the provisions of Article VIII, Section 3 of the Idaho Constitution. 2. CITY 2.1 As to the work described in Section II of this Agreement and the mutual obligations relating thereto, it is anticipated that this Agreement shall terminate upon the satisfactory completion of the work and satisfaction of the obligations of ACRD and CITY and otherwise, the term of this Agreement shall be in conformity with the provisions of Article VIII, Section 3 of the Idaho Constitution. 2.2 As to the work described in Section III of this Agreement and the mutual obligations relating thereto, if a Cost Share Permit is issued to CITY as provided in this Agreement, the term of this Agreement shall be perpetual as to the CITY's maintenance of the sod, landscaping and irrigation facilities subject to such Cost Share Permit, subject to annual appropriation of such maintenance cost by the CITY as provided in the Cost Share Ordinance and any Cost Share Permit issued to CITY under the Cost Share Ordinance and in conformity with the provisions of Article VIII, Section 3 of the Idaho Constitution. Any party shall not terminate this Agreement without the prior written consent of the other party, other than as set forth in this Agreement. 2.3 As to the the work described in Section V of this Agreement and CITY's status as co -permittee, primarily responsible for the perpetual maintenance and operation of the work as set forth in Section IV of this Agreement and the mutual obligations relating thereto, if a Cost Share Permit is issued to CITY and MDC as provided in this Agreement, the term of this Agreement shall be perpetual as to CITY's maintenance of the work, subject to annual appropriation of such maintenance cost by the CITY as provided in the Cost Share Ordinance and any Cost Share Permit issued to CITY under the Cost Share Ordinance and in conformity with the provisions of Article VIII, Section 3 of the Idaho Constitution. Any party shall not Page 16 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two terminate this Agreement without the prior written consent of the other party, other than as set forth in this Agreement. 3. MDC 3.1 As to the work described in Section V of this Agreement and the mutual obligations relating thereto if a Cost Share Permit is issued to MDC and CITY as provided in this Agreement, the term of this Agreement shall be perpetual as to MDC's status as a co -permittee, secondarily responsible for the perpetual maintenance and operation of the work in the event the CITY fails in any way to carry out its obligations as set forth in Section IV of this Agreement and MDC takes on such responsibilities, subject to annual appropriation of such maintenance cost by the MDC as provided in the Cost Share Ordinance and any Cost Share Permit issued to MDC under the Cost Share Ordinance and in conformity with the provisions of Article VIII, Section 3 of the Idaho Constitution. Any party shall not terminate this Agreement without the prior written consent of the other party, other than as set forth in this Agreement. SECTION VIII. JURISDICTION CITY and MDC each acknowledge and agree that ACRD has exclusive jurisdiction of the public Right -of -Way on the ACRD Phase Two Project. ACRD may grant a license and/or a Cost Share Permit to the CITY and/or MDC for the limited purpose of entering upon the Right - of -Way which is the subject of this Agreement, to install, maintain, repair and replace the lighting and related infrastructure and to plant, install, maintain, repair and replace the landscaping and related sprinkler irrigation infrastructure within the Right -of -Way subject to the approval of a license and/or a Cost Share Permit. CITY and MDC each agree that this grant of a license and/or permit by ACRD does not grant or confer upon CITY and/or MDC any rights over such public Right -of -Way other than specifically granted by ACRD to CITY and/or MDC under the terms of this Agreement. SECTION IX. GENERAL PROVISIONS 1. In accordance with Idaho Code § 67-2332, the purposes, powers, rights, and objectives of each of the parties are as set forth in the Recitals above. Each of the Recitals above is incorporated into the body of this Agreement. 2. Contact Information. The contact for ACRD shall be the Project Manager for the Meridian Split Corridor Phase Two Project at (208) 387-6249. The contact for CITY shall be the �o�� Manac�r, Tim COM $ at (208) 4901 — Z The contact for MDC shall be tie �-t'�-� � at (208) 19) �; 0. 3. Debt Limitation. Nothing in this Agreement shall be construed to be an indebtedness or liability in violation of Article VIII, Section 3 of the Idaho Constitution. 4. 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 Page 17 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two 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 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. 5. Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Idaho. 6. 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. 7. 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. This Agreement may not be enlarged, modified, amended or altered except in writing signed by all parties hereto. 8. Acknowledgments and Modifications. No acknowledgments required hereunder, and no modification or waiver of any provision of this Agreement or consent to departure therefrom, shall be effective unless in writing and signed by ACHD and CITY and MDC. 9. Headings. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 10. Counterparts. This Agreement may be executed in three or more counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same. 11. No Third Party Beneficiaries. This Agreement is not intended to create, nor shall it in any way be interpreted or constructed to create, any third party beneficiary of this Agreement. 12. Drafting. All parties have been represented by counsel and no party shall be deemed to be the drafter of this document for purposes of interpreting an ambiguity against the drafter. 13. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 14. Warranty of Authority. All signatories to this Agreement represent and warrant that they have the have the power to execute this Agreement and to bind the agency they represent to the terms of this Agreement. 15. Non -Waiver of Breach. Failure of a party to insist on the strict performance of any provision of this Agreement or to exercise any right or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit such party's right to enforce Page 18 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two any provision or exercise any right. No acknowledgments required hereunder, and no modification or waiver of any provision of this Agreement or consent to departure therefrom, shall be effective unless in writing and signed by ACHD, CITY and MDC. 16. No Joint Venture. The parties hereto agree that nothing herein contained shall be construed to create a joint venture, partnership, or other similar relationship which might subject any party to liability for the debts and/or obligations of the others, except as otherwise expressly agreed in this Agreement. 17. Time of the Essence. Time shall be of the essence for all events and obligations to be performed under this Agreement. 18. MDC Existence Not Perpetual. So far as they pertain to MDC, the duties and obligations under this Agreement shall only exist so long this Agreement remains in effect and so long as MDC is in existence; provided however, that the duties and obligations under this Agreement shall be binding upon, and shall inure to the benefit of MDC's lawful and approved successors and assigns if any. End of Agreement [Signature page follows.] Page 19 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two IN WITNESS HEREOF, the parties hereto have executed this Agreement on the day and year herein first written. City of Meridian: By: Tamm Weerd Its: May Meridian Development Corporation: By: bAie Pipal Its: Chair Ada County Highway District: L (4ye becca W. Arnold Its: President ATTEST: ector, Bruce S. Wo Page 20 of 21 ACRD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two EXHIBITS Attached Page 21 of 21 ACHD/City of Meridian/Meridian Development Corporation Joint Project Interagency Agreement Meridian Split Corridor Phase Two F MN KLI N ROAD 4 WILL'tAMS STREET F KING STREET � t , TAYLOR AVENUE 1 , ADA STREET s BOWER STREET 1 UNION PACIFIC RAILROAD i f t F t BROADWAY AVENUE t 4 Z b 6 Y t� t PINE AVENUE t t b t s STATE AVEI`J J F E E k c r f m CARLTON AVENUE WASHINGTON STREET m m 0 i ►VE UEmom, a MAPLE AVENUE 4 LM AVENUE y ry FAIRVriEW CHERRY AVENUE IE i i C t { CARMEL DRIVE EXHIBIT.... , 1 -- I EXHlBiT Q I i fi is p q r a4 yG k A �.r sq� % Area f e ;,,,pts'-... ..._ .._.....�..gpWl.�.............�....». ...... V a M. 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