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AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF MOSCOW SCHOOL DISTRICT PROPERTY AT JOSEPH STREET THIS AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF MOSCOW SCHOOL DISTRICT PROPERTY AT JOSEPH STREET (hereinafter "Agreement") is entered into this ~ day of Avru sT , 2013 by and between Moscow School District No. 281, a body corporate and politic of the State of Idaho (hereinafter "District") and City of Moscow, a municipal corporation of the State of Idaho (hereinafter "City"). WITNESSETH: WHEREAS, the District is a school district created and operated pursuant to authority granted by Title 33, Idaho Code, operating principally, but not exclusively, in the City of Moscow, Idaho; and WHEREAS, the District is empowered by the statutes of the State of Idaho, with particular reference to Idaho Code§ 33-601(5) to enter into agreements with municipal corporations for the purposes of sharing facilities; and WHEREAS, the City is a municipal corporation of the State of Idaho and is vested with the powers granted by the Constitution and statutes of the State ofldaho; and WHEREAS, both the District and the City are vested with full authority under Idaho law to enter into and perform this Agreement, and this Agreement shall comply with the requirements of a Joint Powers Agreement pursuant to Idaho Code§ 67-2326 through§ 67-2333; and WHEREAS, the District has outdoor playfield facilities needs and a desire to develop playfield opportunities for District students, and the City has recreational facilities needs and a desire to develop recreational opportunities for citizens and young people in and around the City of Moscow and for the public at large; and WHEREAS, the District owns a parcel of real property comprised of approximately twenty two (22) acres located northerly of Joseph Street and easterly of Mountain View Road in Moscow, Idaho, more particularly described in Exhibit attached hereto, and commonly referred to as the Moscow School District Property at Joseph Street (hereinafter "Joseph.Street Fields"); and WHEREAS, District and City have previously cooperated and jointly developed, used and maintained a portion of the Joseph Street Fields for mutual benefit, and desire to further cooperate and jointly develop, use and maintain more Joseph Street Fields area for recreational purposes, including, but not limited to, for soccer, baseball, softball, basketball, general recreation and the like (the "Project"); and AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - I zo \ ---PAGE BREAK--- WHEREAS, the District intends to retain a portion of Joseph Street Fields as the site for future construction of a School District facility, although the site of the future facility may be developed and utilized as a play field until District constructs such facility and the site for such future facility will be located in the general area of the southwest quadrant of the Joseph Street Fields as illustrated in Exhibit B, attached hereto; WHEREAS, the District and City intend by this Agreement to set forth their respective obligations and commitments to jointly develop, use, maintain and administer the Joseph Street Fields; and WHEREAS, each party to this Agreement wishes to retain its separate identity, authority and jurisdiction to the full extent of the law while cooperating with the other party pursuant to this Agreement. NOW THEREFORE, the District and the City mutually agree as follows: ARTICLE I DUTIES OF THE PARTIES In furtherance of the foregoing recitals and statements, the duties of the parties shall be as follows: A. Duties of the District. The District shall: 1. Cooperate with the City as contemplated by this Agreement. 2. Construct improvements on the Joseph Street Fields site in accordance with a design and budget as agreed between the parties. 3. Provide up to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) for the design and construction of the Joseph Street Fields, as described herein. 4. Act as the contracting entity and fiscal agent for all design and construction agreements which are entered into in furtherance of the development of the Joseph Street Fields. 5. Make the recreational facilities constructed on Joseph Street Fields available for public uses in accordance with this Agreement. 6. Provide funding for maintenance in accordance with this Agreement. 7. Execute additional agreements as contemplated by, and in furtherance of this Agreement. 8. Perform other duties as contemplated by this Agreement. B. Duties of the City: 1. Cooperate with the District as contemplated by this Agreement. 2. Provide up to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) to the District for the design and construction of the Joseph Street Fields, as approved herein. Such funding shall be provided as designated herein. 3. Provide administration and maintenance services for the Joseph Street Fields upon completion of the construction phase of this Agreement, and to provide funding for maintenance in accordance with this Agreement. 4. Execute additional agreements as contemplated by, and in furtherance of this Agreement. 5. Perform other duties as contemplated by this Agreement. AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 2 ---PAGE BREAK--- ARTICLE II THE PROJECT A. Project Description and Location. The improvements are to be located and developed within the area of the Joseph Street Fields. The Joseph Street Fields and Project improvement will be solely owned by the District, and to be developed, maintained, and used subject to the terms of this Agreement. The parcel is presently improved with a softball/baseball field, the outfield portion of which is also ·used as a playfield for other sports, and parking area. The Project is presently intended to improve the unimproved portion of the Joseph Street Fields with a baseball field, multi-use field and other field and play areas (collectively the "Improvements"), provided, however, that the development plan will identify an area of the Joseph Street Fields as a future site of a District facility as shown in Exhibit B attached hereto, and the District will retain all rights to construct a District facility at any time within that area, (ii) utilize parking within the Joseph Street Fields area to serve any such District facility according to further agreement between the parties and in conformance with law, and (iii) post signage identifying that area as a future site of a District facility. Joseph Street Field improvements are to be developed as mutually agreed upon between the District and the City. B. Development Cost Sharing. The costs of design and construction services for the Project shall not exceed Three Million Dollars ($3,000,000). The District shall contribute one-half (1/2) of the total Project costs, not to exceed One million Five Hundred Thousand Dollars ($1,500,000) and the City shall contribute one-half (1/2) of the total Project costs, not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) as more fully discussed below. C. Planning and Design. The District and the City will collaborate and agree on a final site plan for the Project prior to November 30, 2013. The planning will be accordance with the process described in Article IV A. of this Agreement. D. Construction of Improvements. The District and the City will collaborate and agree on construction plans and specifications for the Project. Construction of the Project will be completed prior to October 1, 2014. The District and the City will provide construction management services in accordance with Article IV A. of this Agreement. E. Administration. After completion of the Project, the City shall provide administration and management of the Joseph Street Fields, including programming services, coordination of scheduling, and maintenance for Joseph Street Fields in accordance with this Agreement. The District and the City will share use of the Joseph Street Fields on a relatively equal basis, in accordance with this Agreement, but giving priority to the District's use needs. The District and the City will meet regularly and collaborate and reasonably cooperate in developing and implementing use and scheduling policies to be mutually agreed upon by both parties. Each party, when using Joseph Street Fields, shall provide, at its own expense, sufficient supervision to prevent careless or malicious injury to persons and/or property, and be responsible for clean-up at the conclusion of each activity. AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 3 ---PAGE BREAK--- F. Maintenance. After completion of the Project, the City shall provide maintenance services for the Joseph Street Fields as agreed between the parties, the costs of which shall be shared equally between the District and the City, in accordance with Article IV B.2. of this Agreement. ARTICLE III TERM AND COMPLIANCE WITH JOINT EXERCISE OF POWER ACT In compliance with the Joint Exercise of Power Act (Idaho Code§ 67-2328), the District and the City agree as follows: A. Duration. The duration of this Agreement shall be Thirty (30) years from the date of completion of Project construction. B. Administrative Entity. The District and the City have agreed that no separate legal or administrative entity is created by this Agreement, except by the meeting of authorized representatives for the purpose of exercising the respective duties and obligations of this Agreement. After completion of the Project, administration and maintenance of the Joseph Street Fields shall be governed by Article II, E. and F. of this Agreement. C. Purpose. The purpose of this Agreement is referenced in the recitals contained in this Agreement, to provide outdoor playfield facilities, develop playfield opportunities for District students, and to provide recreational facilities and develop recreational opportunities for citizens and young people in and around the City of Moscow and for the public at large. D. Manner of Financing and Maintaining Budget. As referenced in Article I of this Agreement, the District shall have the obligation for construction of the Project, with project funding to be provided by the District and the City in accordance with Article I A.3. and B.2. of this Agreement. Upon completion of the Project, the improvements to Joseph Street Fields shall become the property of the District and shall be a capital facility of the District. The annual maintenance for the Joseph Street Fields shall be in accordance with Article II F. of this Agreement. E. Termination and Disposal of Property. The District shall not terminate the terms and conditions of this Agreement during the term thereof (Thirty [30] years), provided, however, that the City may terminate this Agreement by providing written notice to the District of the City's intent to terminate this Agreement no later than One year prior to such termination. In the event that the Joseph Street Fields is to be disposed of by sale, conveyance or other disposition, the same shall not be commenced or completed during the term of this Agreement, absent termination by the City, without the approval of the Moscow City Council. In the event this Agreement is terminated by the City, and the District desires to dispose of the Joseph .Street Fields, such disposal shall be in accordance with Idaho law regarding disposition of real property by a school district. AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 4 ---PAGE BREAK--- ARTICLE IV PLANNING, FINANCING AND NEGOTIATIONS A. Planning. The District and the City agree that the Project will be jointly administered by the parties. 1. While acknowledging that the Moscow School District Board of Trustees and the Moscow City Council have the obligation and authority to obligate their respective entities, the parties agree that an Authorized Representatives Committee (ARC) shall be formed, representing the interests of the District and the City, which shall be charged with the oversight of the Project. The ARC membership shall include the following: a. Moscow School District Trustee; b. Moscow Mayor or City Council member; c. Moscow School District Superintendent; d. Moscow City Supervisor; e. Moscow School District Business Manager; and f. Moscow City Parks and Recreation Director The ARC shall be supported by the District's Attorney and the Moscow City Attorney as requested by their respective clients. 2. The ARC shall meet regularly to provide administration for the Project, and shall regularly report to, and seek authorization from, the Moscow School District Board of Trustees and the Moscow City Council in matters relating to the Project. 3. The ARC shall implement a selection process for retaining design professionals and construction management professionals for the design and management of the construction of the Project, which shall include issuing a Request for Qualifications (RFQ), Request for Proposals (RFP) or other process conforming to law. The ARC shall interview responders and provide a recommendation to the Moscow School District Board of Trustees and the Moscow City Council for selection of such design professionals and construction management professionals. Upon approval of the design professionals and/or construction management professionals by the District and the City, the District shall be the contracting entity for retaining such design professionals and construction management professionals. 4. The ARC shall appoint a Design/Planning Team (DPT), which shall be charged with assisting design professionals selected by the District and the City, by providing community input and perspectives to the design professional for consideration in the design for the Project. The DPT shall be task-oriented and shall be dissolved when the design of the Project is accepted and approved by the Moscow School District Board of Trustees and the Moscow City Council. 5. Upon the submission by the design professional of the design site plan for ARC review and approval of the proposed Project, the ARC shall present the proposed Project design AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 5 ---PAGE BREAK--- site plan to the Moscow School District Board of Trustees and the Moscow City Council for approval. 6. After approval of the proposed design site plan by the Moscow School District Board of Trustees and the Moscow City Council, the ARC shall implement a process for preparing the Project for bid and the District shall coordinate the bid process for construction. The ARC shall review bid responses, utilizing the staff resources of the City and the District, and shall recommend the selection of contractors to the Moscow School District Board of Trustees and the Moscow City Council for approval. Upon such approval, the District shall be the contracting entity for such approved contractors. 7. The ARC will serve as the liaison for communications between design professionals, construction management professionals and contractors and the Moscow School District Board of Trustees and the Moscow City Council. 8. The ARC shall have the authority to review and approve change orders as authorized by the Moscow School District Board of Trustees and the Moscow City Council. Change orders are to be presented by the design professionals, construction management professionals and/or contractors through the District's Business Manager. B. Financing. 1. Project Design and Construction a. Budgetary and Fiscal Responsibility. The District, as the owner of the Joseph Street Fields, shall be the contracting and financial agent for the Project. The District shall execute all agreements relating to the design and construction of the Project, subject to the prior approval of such agreements by the District and the City. The District shall include the Project in its annual budget during the Project design and construction phases of this Agreement and shall serve as fiscal agent for the Project, receiving funding and approving expenditures in accordance with the terms of this Agreement. 1) On or before September 15, 2013 the District and the City shall mutually agree upon the budget for the costs of such design of the Project. 2) On or before October 31, 2013 and on or before May 1 of each succeeding year the Project is undergoing construction, the District and the City shall mutually agree upon the annual budget for the costs of such approved design and construction. The District shall provide regular reporting of the status of the Project funds. b. Financial Participation. The District and the City shall share the costs of design and construction of the Project in accordance with Article I A.3. and Article I B.2. of this Agreement. Such participation shall be accomplished according to the following procedure: After the adoption of the budget described in Article IV B.1.a., the District AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 6 ---PAGE BREAK--- shall expend funds from such budget in accordance with the terms of this Agreement. Requests for payment shall be submitted to the District Business Manager. The District Business Manager will review the request for payment and after verifying that such request for payment is appropriate, will submit the request for payment to the ARC for approval. After the ARC approves the expenditure, the District Business Manager will submit a request for payment to the City for One-half (1/2) of the amount to be expended. The City, upon receiving such request for payment, shall remit the requested amount to the District within 14 days. 2. Administration and Maintenance a. Budgetary and Fiscal Responsibility. After the construction phase of the Project is completed and has been accepted by the District and the City, the District, as the owner of the Joseph Street Fields, agrees that the administration and maintenance of the Joseph Street Fields shall be the responsibility of the City of Moscow, as contemplated by this Agreement and any further agreements between the parties. The District shall execute all agreements necessary for such administration and maintenance. The City shall include the costs of maintenance in its annual budget during the term of this Agreement and shall serve as fiscal agent for such maintenance, receiving funding and approving expenditures in accordance with the terms of this Agreement. On or before May 1 of 2014 and each successive year this Agreement is in effect, the District and the City shall mutually agree upon the annual budget for maintenance. 1) Financial Participation. The District and the City shall share the costs of maintenance of the Joseph Street Fields in accordance with Article II F. of this Agreement. Such participation shall be accomplished as follows: after the adoption of the budget described in Article IV B.2.a., the District shall provide One-half (1/2) of the costs of such maintenance to the City for the funding of such maintenance. The City shall send a request for payment to the District for such amounts, and the District shall pay such request for payment within 30 days of the receipt of such request for payment. 2) Extraordinary, major and/or unexpected maintenance activities are to be agreed upon in advance by the District and the City and costs of such activities shall be apportioned One-half (1/2) to the District and One-half (1/2) to the City. ARTICLE V. GENERAL PROVISIONS A. Indemnification. 1. District's Indemnification. The District shall indemnify, defend, and hold the City harmless from and against any and all claims, losses, damages, injuries, liabilities and costs, including attorney fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the performance of any obligation AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 7 ---PAGE BREAK--- to be performed under the terms of this Agreement by the District, or arising from any act, negligence or omission by the District or any of its agents, employees and volunteers. The District's liability under this paragraph shall be limited by the terms of the Idaho Tort Claims Act and the limits of any insurance provided under the Act and Idaho Code§ 67-5776. 2. City's Indemnification. The City shall indemnify, defend and hold the District harmless from and against any and all claims, losses, damages, injuries, liabilities and costs, including attorney fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the performance of any obligation to be performed under the terms of this Agreement by the City, or arising from any act, negligence, or omission by the City or any of its agents, employees and volunteers. The City's liability under this paragraph shall be limited by the terms of the Idaho Tort Claims Act and the limits of any insurance provided under the Act and Idaho Code § 67- 5776. B. Insurance. I. District's Insurance. The District shall maintain comprehensive public liability and property damage insurance with limits reasonably satisfactory to the City as will protect the District from claims for damages because of bodily injury, including death, or damages because of injuries or destructfon or loss of use of property, which may arise from its operations under this Agreement, whether such operations be by it or its agents or anyone directly or indirectly employed by the District. In addition, the District shall notify the City in writing as soon as practicable after notice of an injury or a claim is received; cooperate completely with the City and/or the City's insurers in the defense of such injury or claim; and take no steps (such as admission of liability) which will prejudice the defense or otherwise prevent the City from protecting the City's interests. All insurance required under this paragraph shall be maintained in full force and effect in a company(ies) or entity(ies) reasonably satisfactory to City and shall be maintained at the District's expense throughout the term of this Agreement. Certificates of such insurance shall be provided to the City contemporaneously with the execution and delivery of this Agreement by the District and at any other time upon reasonable notice by the City to the District. Failure to maintain the insurance required herein shall be grounds for its immediate termination notwithstanding any other provisions governing termination of this Agreement. 2. City's Insurance. The City shall maintain comprehensive public liability and property damage insurance with limits reasonably satisfactory to the District as will protect the City from claims for damages because of bodily injury, including death, or damages because of injuries or destruction of loss of use of property, with may arise from its operations under this Agreement whether such operations be by it or its agents or anyone directly or indirectly employed by the City. In addition, the City shall notify the District in writing as soon as practicable after notice of an injury or a claim is received; cooperate completely with the District and/or the District's insurers in the defense of such injury or claim; and take no steps (such as admission of liability) which will AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 8 ---PAGE BREAK--- prejudice the defense or otherwise prevent the District from protecting the District's interests. All insurance required under this paragraph shall be maintained in full force and effect in a company(ies) or entity(ies) reasonably satisfactory to District and shall be maintained at the City's expense throughout the term of this Agreement. Certificates of such insurance shall be provided to the District contemporaneously with the execution and delivery of this Agreement by the City and at any other time upon reasonable notice by the District to the City. Failure to maintain the insurance required herein shall be grounds for its immediate termination notwithstanding any other provisions governing termination of this Agreement. C. Rights Not Assignable. District and City shall not assign any rights or duties under this Agreement to any other person or entity, governmental or otherwise, without the prior written approval of the other party. Nothing in this paragraph shall preclude utilizing volunteer or donated resources to assist in improving the Joseph Street Fields, as mutually agreed by the parties. D. Interpretation. As a further condition of this Agreement, District and City acknowledge that this Agreement shall be deemed and construed to have been prepared mutually by each party and it shall be expressly agreed that any uncertainty or ambiguity existing therein shall not be construed against any party. In the event any party shall take an action, whether judicial or otherwise, to enforce or to interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover from the other party all expenses which it may reasonably incur in taking such action, including attorney fees and costs, whether incurred in a court of law or otherwise. E. Jurisdiction and Venue. It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. F. Binding Authority. The District and the City each represents and warrants to the other that this Agreement has been validly executed and delivered, (ii) has been duly authorized and (iii) constitutes a valid binding agreement of such party enforceable in accordance with its terms. G. Appropriation of Funds. This Agreement is contingent upon each governmental entity receiving the necessary funding to cover the obligations of the governmental entity herein. In the event that such funding is not received or appropriated, then and in that event, the respective governmental entity's obligations under this Agreement shall cease and each party shall be released from further performance under this Agreement without any liability to the other party. AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 9 ---PAGE BREAK--- H. Notice. All communication or notification to be given pursuant to this Agreement shall be given to the following: Notice to District: Moscow School District Superintendent 650 N. Cleveland Moscow, ID 83843 with copy to: Landeck & Forseth Attorneys at Law 693 Styner Avenue, Suite 10 P 0 Box 693 Moscow, ID 83843 Notice to City: Moscow City Supervisor 206 E. Third St. P 0 Box 9203 Moscow, ID 83843-1703 with co_py to: Moscow City Attorney 206 E. Third St. P 0 Box 9203 Moscow, ID 83843-1703 I. Complete Agreement. This Agreement constitutes the entire expression of intent and/or agreement of the parties in relation to the design, construction, administration and maintenance of the Joseph Street Fields and supersedes all prior agreements or understandings, written or oral, with respect thereto. IN WITNESS WHEREOF, District and City, by and through their respective officials designated below, have caused this Agreement to be executed on the date and year first above written. MOSCOW SCHOOL DISTRICT NO. 281 CITY OF MOSCOW ATTEST: By:8~ Dawn Fazio, Chair, Board~s AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELQS - I 0 ---PAGE BREAK--- EXHIBIT N t 1 ;och ~ 200 feet AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 11 ---PAGE BREAK--- Future Sdioel facility Site EXHIBIT N t Hnch = 200 feel AGREEMENT FOR JOINT DEVELOPMENT, USE, MAINTENANCE AND ADMINISTRATION OF JOSEPH STREET FIELDS - 12