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HomeMy Public PortalAbout2018.05.25 Interagency Agreement - Idaho Street & Brown DriveCOUNTERPART 2of2 INTERAGENCY AGREEMENT FOR: STREET REPAIR / SEWER REPAIR CITY OF MCCALL / PAYETTE LAKES RECREATIONAL WATER & SEWER DISTRICT PROJECT: IDAHO STREET AND BROWN DRIVE RECONSTRUCTION THIS INTERAGENCY AGREEMENT FOR STREET REPAIR/SEWER REPAIR ("Agreement") is made and entered into this ._day of 2018, by and between the PAYETTE LAKES RECREATIONAL WATER AND SEW DISTRICT, a recreational water and sewer district organized under the laws of the State of Idaho ("DISTRICT" or "PLRWSD"), and the CITY OF McCALL, a municipal corporation organized under the laws of the "State of Idaho (" McCALL" or "CITY"), regarding City Project IDAHO STREET AND BROWN DRIVE RECONSTRUCTION. RECITALS WHEREAS, PLRWSD is a statutory recreational water and sewer district, and a public entity, organized and existing pursuant to Idaho Code Title 42, Chapter 3202A, as amended and supplemented, with the exclusive jurisdiction and authority to maintain, improve, regulate and operate public sewer improvements located within and outside the City of McCall, Valley County, Idaho; WHEREAS, McCALL is a municipal corporation organized and operating pursuant to Idaho Code Title 50, as amended and supplemented with jurisdiction, authority and police power to regulate and control municipal activities within the City of McCall, including streets, pedestrian pathways, stormwater system, and domestic water system; WHEREAS, Idaho Code § V-2332 provides that one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity or undertaking which each public agency entering into the contract is authorized by law to perform, provided that such contract is authorized by the governing body of each party and that such contract shall sat forth fully the purposes, powers, rights, objectives and responsibilities of the contracting parties; WHEREAS, DISTRICT and McCALL desire to undertake a cooperative effort to incorporate into McCALL's construction and repair project known as the IDAHO STREET AND BROWN DRIVE RECONSTRUCTION BETWEEN 1st STREET and NORTH MISSION STREET (" Project" or " Project Boundaries"), certain modifications or improvements to CITY owned streets, pedestrian pathways, stormwater system and domestic water system; as well as improvements and repairs to the DISTRICT's existing sewer system, including realigning gravity sewer lines with new manholes, gravity sewer pipe, sewer service lines, sewer pipe stubs, and connections between the new and existing sewer lines, which improvement need to meet the current edition of the ISPWC and the most current PLRWSD Supplemental Specifications to the Page 1 of 8 Interagency Agreement — Idaho Street May 24, 2018 ISPWC. The above described sewer improvements are to be constructed as part of an executed agreement between McCALL and the selected Contractor (the "CONTRACT'); and WHEREAS, McCALL is willing to accommodate DISTRICT' s request by including the sewer improvements in the Project plans, subject to the terms, conditions and obligations set forth in this Agreement and so long as McCALL receives assurances by the DISTRICT that it will fully reimburse McCALL for all actual and necessary costs and expenses that McCALL incurs as a result of the additional work attributable to the modification or installation of the sewer improvements described within the CONTRACT; NOW, THEREFORE, in consideration of the foregoing premises, mutual covenants and agreements herein contained, the parties hereto agree as follows: 1. McCALL SHALL: a. Be the party responsible for soliciting, receiving and opening of bids and for executing and administering the construction CONTRACT for the street, pathways, stormwater system, and water system reconstruction and the DISTRICT sewer improvements referenced herein, which CONTRACT shall include, inter alia, a provision that all work required for the sewer improvements shall be performed in conformance with the most current edition of the Idaho Standards for Public Works Construction (ISPWC) and the most current DISTRICT Supplemental Specifications to the ISPWC. b. Submit to DISTRICT a monthly invoice in the form of the Contractor progress payment application, with DISTRICT "sewer bid items" and "quantities installed" clearly indicated. The draft pay application shall be submitted for review and concurrence by DISTRICT regarding DISTRICT'S portion of the CONTRACT prior to McCALL's approval of the application. The CONTRACT "sewer bid items", including percentage of bid items, that the DISTRICT is responsible for paying shall be discussed and agreed upon by both parties prior to project bid advertisement. c. Submit to DISTRICT a monthly invoice for construction engineering and inspection (CE&I) work that was completed the prior month, which can include the overall management of the project, construction engineering, construction surveying, construction document management, and field observation. McCALL may hire a consultant/sub-consultant for some or all of the CE&I work. DISTRICT shall be invoiced for CE&I work based on the percentage of DISTRICT'S project costs as they relate to the total project construction costs at the time of the invoice, which may vary throughout the project based on approved changes to the CONTRACT. d. Provide the DISTRICT with a complete set of combined bid documents for the street, pathways, stormwater system, and water system reconstruction and the DISTRICT sewer improvements. Page 2 of 8 Interagency Agreement — Idaho Street May 24, 2018 e. Furnish DISTRICT with an abstract of all bids received and obtain DISTRICT's written concurrence with MCALL'S recommendation for award of the CONTRACT prior to making such award. DISTRICT'S concurrence shall specifically acknowledge that the Sewer Improvements are and shall be subject to the terms and conditions of this Agreement. If DISTRICT does not concur, MCCALL shall remove the Sewer Improvements and if necessary, rebid the Project. If the DISTRICT Sewer Improvements are removed from the project, parties shall negotiate cost sharing for the redesign and rebidding of the project. The negotiated cost share shall consider the engineer's estimate of the cost of the Street Improvements which the DISTRICT wants removed from the project, the cost incurred by MCCALL in the design of the project to the date of the notice from the DISTRICT, the cost to redesign and rebid necessitated by the withdrawal of the Street Improvements from the project, and a comparison of each to the total engineer's estimate of the project as originally designed and as modified. The object of the negotiated cost share will be to make MCCALL whole as a result of the changes in the project required by the DISTRICT. f. Work with the DISTRICT and Contractor to resolve any claims relating in any way to the Sewer Improvements and that MCCALL will consult with DISTRICT prior to executing any changes to the CONTRACT affecting the proposed sewer improvements. CONTRACT modification forms (e.g., change orders, field orders, work change directives, etc.) that affect DISTRICT sewer improvements or existing DISTRICT sewer infrastructure shall include a signatory line for the DISTRICT to indicate their concurrence with the change prior to finalizing such changes. g. Administer and respond to all Contractor submittals. McCALL shall submit Contractor submittals relating to DISTRICT sewer improvements to the DISTRICT for review. McCALL shall include DISTRICT submittal comments in their official submittal response to the Contractor. h. Indemnify, save harmless and defend regardless of outcome, DISTRICT from expenses and against suits, 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 McCALL or McCALL' S officers, employees, agents or contractors while acting within the course and scope of their employment, which arise from or which are in any way connected to the CITY Street Improvements. Such indemnification 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 DISTRICT. This duty to defend, indemnify and hold harmless is subject to the limitations of Idaho law, including Article VIII Section 4, Idaho Constitution and Idaho Code Title 6 Chapter 9 (the Idaho Tort Claims Act), and to any other limitations set forth in the agreement. Interagency Agreement — Idaho Street May 24, 2018 Page 3 of S i. Work directly with the Contractor to resolve any claims relating in any way to the McCALL Improvements that do not affect DISTRICT improvements or existing infrastructure. McCALL shall indemnify, save harmless and defend regardless of outcome, DISTRICT from expenses and against suits, actions, claims or losses of every kind, nature and description, including costs, expenses and attorney fees caused by or arising out of any and all such claims regardless of the outcome of the CITY's efforts to resolve said claims with the Contractor. 2. DISTRICT SHALL: a. Remit to McCALL, within thirty (30) calendar days after the date of any invoice referenced in paragraph 1.b and 1.c, all funds for which DISTRICT is responsible pursuant to the approved Contractor pay applications, the agreed upon "sewer bid items", the final CONTRACT payment estimate, the monthly CE&I invoice, and the DISTRICT percentage of project costs as they relate to the total project construction costs at the time of the invoice. b. Review sewer Contractor submittals and provide comments to McCALL within seven (7) days of the date of receipt from McCALL. c. Reimburse McCALL for any additional costs to McCALL over and above costs specifically enumerated herein, where such costs are attributable to the installations, adjustments, relocations and abandonments of the DISTRICT Sewer Improvements or to the removal of any or all items from the CONTRACT that are associated with the installation of the DISTRICT Sewer Improvements. d. Indemnify, save harmless and defend regardless of outcome, McCALL from expenses and against suits, 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 DISTRICT or DISTRICT'S officers, employees, agents or contractors while acting within the course and scope of their employment, which arise from or which are in any way connected to the DISTRICT Sewer Improvements. Such indemnification hereunder by DISTRICT shall in no event cause the liability of DISTRICT 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 McCALL. This duty to defend, indemnify and hold harmless is subject to the limitations of Idaho law, including Article VIII Section 4, Idaho Constitution and Idaho Code Title 6 Chapter 9 (the Idaho Tort Claims Act), and to any other limitations set forth in the agreement. e. Furnish MCCALL with an abstract of all bids received and obtain McCALL's written concurrence with DISTRICT'S recommendation for award of the CONTRACT prior to making such award. MCCALL'S concurrence shall specifically acknowledge that the Street Improvements are and shall be subject to the terms and conditions of this Page 4 of 8 Interagency Agreement — Idaho Street May 24, 2018 Agreement. If MCCALL does not concur, DISTRICT shall remove the Street Improvements and if necessary, rebid the Project. If the MCCALL Street Improvements are removed from the project, parties shall negotiate cost sharing for the redesign and rebidding of the project. The negotiated cost share shall consider the engineer's estimate of the cost of the Sewer Improvements which MCCALL wants removed from the project, the cost incurred by DISTRICT in the design of the project to the date of the notice from MCCALL, the cost to redesign and rebid necessitated by the withdrawal of the Sewer Improvements from the project, and a comparison of each to the total engineer's estimate of the project as originally designed and as modified. The object of the negotiated cost share will be to make the DISTRICT whole as a result of the changes in the project required by MCCALL. f. Work with MCCALL and the Contractor to resolve any claims relating in any way to the DISTRICT Sewer Improvements; any and all such claims will be reviewed by the DISTRICT for concurrence prior to their resolution. DISTRICT shall indemnify, save harmless and defend regardless of outcome, McCALL from expenses and against suits, actions, claims or losses of every kind, nature and description, including costs, expenses and attorney fees caused by or arising out of any and all such claims regardless of the outcome to resolve said claims with the Contractor. 3. THE PARTIES HERETO FURTHER AGREE THAT: a. 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. b. Prior to commencement of work by the Contractor, the parties will, together with the Contractor, inspect within the ensure Project Boundaries for the purpose of reviewing the Project to locate any unstable areas and to resolve any items of concern or misunderstanding. c. This Agreement may not be enlarged, modified, amended or altered except in writing signed by both of the parties hereto. d. All signatories to this Agreement represent and warrant that they have the power to execute this Agreement and to bind the agency they represent to the terms of this Agreement. e. Should either party to this Agreement be required to commence legal action against the other to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs incurred in said action. Interagency Agreement — Idaho Street May 24, 2018 Page 5 of 8 f. Any action at law, suit in equity, arbitration or judicial proceeding for the enforcement of this Agreement shall be instituted only in the courts of the State of Idaho, County of Valley. g. This Agreement shall be binding upon and inure to the benefit of the personal representatives, heirs and assigns of the respective parties hereto. h. Nothing in this Agreement shall be construed to be an indebtedness or liability in violation of Article VIII, Section 3 of the Idaho Constitution. i. The validity, meaning and effect of this Agreement shall be determined in accordance with the laws of the State of Idaho. j. 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 or agreements except as specifically set forth herein. k. The promises, covenants, conditions and agreements herein contained shall be binding on each of the parties hereto and on all parties and all persons claiming under them or any of them; and the rights and obligations hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. 1. 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. m. The 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 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 DISTRICT and McCALL. n. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. o. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same. p. 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 Page 6 of 8 Interagency Agreement — Idaho Street May 24, 2018 liability for the debts and/or obligations of the others, except as otherwise expressly agreed in this Agreement. q. This Agreement is not intended to create, nor shall it in any way be interpreted or construed to create, any third -party beneficiary rights in any person not a party hereto. r. All parties have been represented by legal counsel, and no party shall be deemed to be the drafter of this Agreement for purposes of interpreting an ambiguity against the drafter. s. Time shall be of the essence for all events and obligations to be performed under this Agreement. Without limiting the foregoing, in the event that McCALL does not timely comply with any of its obligations hereunder, DISTRICT shall have no obligation whatsoever to incorporate, facilitate, and/or complete the City Water and Sewer Improvements, regardless of whether prior approval has been given by DISTRICT to McCALL. SIGNATURES ON FOLLOWING PAGE Interagency Agreement — Idaho Street May 24, 2018 Page 7 of 8 DATED AND SIGNED this F day of ,� , 2018. CITY OF MCCALL 'e J. A f'on, i • yor ATTEST: BessieJo Wagner, City Clerk j /, DATED AND SIGNED this � 2D day of iV I,I�LY , 2018. PAYETTE LAKES RECREATIONAL WATER AND SEWER DISTRICT By: U�lte J y VV vig, Chairr ATTEST: By: Tammie Richardson, Business Manger Interagency Agreement — Idaho Street May 24, 2018 Page 8 of 8