HomeMy WebLinkAboutWarranty Deed Centennial Park Exchange - ZWJ Properties LLCFirst American Title Company of Idaho
National Commercial Services
7311 Potomac Drive
Boise, ID 83704
August 30, 2006
Ted Baird, City of Meridian
33 East Idaho Avenue
Meridian, ID 83642
Title Officer: May Lin Carlsen
Phone: (208)375-0700
Order Number: NCS-222811-BOI
Escrow Officer: Ruth M. Rubel
Phone: (208)375-0700
Buyer: City of Meridian
Property: 27 E. Broadway Avenue, Meridian, ID
Attached please find the following item(s):
A Policy of Title Insurance and two original Waranty Deeds
Thank You for your confidence and support. We at First American Title Insurance Company maintain the
fundamental principle:
Customer First.
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92)
ALTA Owner's Policy
Order Number: NCS-222811-BOI
Page Number: 1
Policy of Title Insurance
ISSUED BY
First American Title Insurance Company
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND
STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a CA corporation, herein called the Company, insures, as of Date of Policy shown in
Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the
Conditions and Stipulations.
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First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92)
- ALTA Owner's Policy
SCHEDULE A
Premium: $9,255.00
Amount of Insurance: $2,500,000.00
Date of Policy: August 10, 2006 at 4:22 p.m.
Name of insured:
City of Meridian, a municipal corporation
Order Number: NCS-222811-BOI
Page Number: 2
Policy Number: NCS-222811-BOI
2. The estate or interest in the land which is covered by this policy is:
Fee Simple
3. Title to the estate or interest in the land is vested in:
City of Meridian, a municipal corporation
4. The land referred to in this policy is described as follows:
Real property in the City of Meridian, County of Ada, State of Idaho, described as follows:
Parcel I:
Lots 1 through 9 in Block 1 of the Townsite of Meridian, according to the Amended plat thereof,
filed in Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Also including:
A parcel being part of the alley adjacent to Lots 1 through 9 and Lots 22 through 30 of the
Amended Plat of Block No. 1 of the Townsite of Meridian, as shown in Book 2 of Plats at Page 61,
in the office of the Recorder, Ada County, Idaho, and being located in the Southwest Quarter of
Section 7, of Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, as evidenced
by Vacation and Abandonment, recorded June 1, 2006, as Instrument No. 106086913, and more
particularly described as follows:
Commencing at a brass cap monument marking the Northwest corner of said Southwest Quarter
(1/4 corner), from which a brass cap monument marking the Southwest corner of said Southwest
Quarter (section corner), bears South 0017'15" West a distance of 2652.58 feet; thence South
0017'15" West along the Westerly boundary of said Southwest Quarter a distance of 866.45 feet
to a point; thence leaving said Westerly boundary South 89048'49" East a distance of 40.00 feet
to the Northwest corner of said Lot 1 of the Amended Plat of Block No. 1 of the Townsite of
Meridian and the POINT OF BEGINNING; thence North 0017'15" East along the Easterly right of
way of N. Meridian Road a distance of 16.00 feet to a point marking the Southwest corner of said
Lot 30; thence South 89048'49" East along the Southerly boundary of said Lot 22 through 30 a
distance fo 266.13 feet to a point marking the Southeast corner of said Lot 22; thence South
0017'15" West a distance of 16.00 feet to a point marking the Northeast corner of said Lot 9;
thence North 89048'49" West along the Northerly boundary of said Lots 1 through 9 a distance of
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92) Order Number: NCS-222811-BOI
ALTA Owner's Policy Page Number: 3
266.13 feet to the POINT OF BEGINNING.
Parcel II:
Lots 22 through 30 in Block 1 of the Townsite of Meridian, according to the Amended plat
thereof, filed in Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Parcel III:
That portion of the now vacated Railroad Avenue, lying between Lots 1 through 9 and the North
line of the railroad right of way, according to the Amended plat in Block 1 of the Townsite of
Meridian, filed in Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Parcel IV:
Together with those easement rights as set forth in Easement Agreements, recorded July 26,
1979, as Instrument No.'s 7941053 and 7941054, Records of Ada County, Idaho.
APN: R-5672-00-0006
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92)
ALTA Owner's Policy
SCHEDULE B
EXCEPTIONS FROM COVERAGE
Order Number: NCS-222811-BOI
Page Number: 4
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees
or expenses) which arise by reason of:
1. General and Special Taxes for the year 2006, an accruing lien not due or payable until the fourth
Monday in November 2006 when the bills are issued, the first half of which is not delinquent until
after December 20, 2006.
2. Liens, levies and assessments by City of Meridian.
3. Liens, levies and assessments by Nampa -Meridian Irrigation District.
4. Easements, reservations, restrictions and dedications as shown on the plat of said Subdivision.
5. Restrictions appearing in Warranty Deeds recorded in Book 46 of Deeds at Page 253, and in Book
68 of Deeds at Page 118, Records of Ada County, Idaho.
6. Easement, including terms and provisions contained therein:
Recording Information: 324109
In Favor of: The Mountain States Telephone and Telegraph Co.
For: communication lines
Easement Agreement upon the terms, conditions and provisions contained therein:
Dated: July 12, 1979 and June 28, 1979
Parties: Ada County Highway District and Wyeth Laboratories, Inc.
Recorded: July 26, 1979
Instrument No.: 7941053 and 7941054
8. The effect of a map purporting to show the land and other property, filed Survey No. 7052,
Instrument No. 105140701 of Record of Surveys.
9. The terms and provisions contained in the document entitled "Agreement" recorded November 4,
2005 as 105167782 of Official Records.
Clarification document recorded July 21, 2006, as Instrument No. 106116649, Records of Ada
County, Idaho.
10. Unrecorded Leaseholds, if any, rights of parties in possession other than the vestees herein,
rights of chattel mortgages, vendors and vendees under conditional sales contracts of personal
property installed on the premises herein, and rights of tenants to remove trade fixtures.
11. Retention of easements as evidenced by Vacation and Abandonment, recorded June 1, 2006, as
Instrument No. 106086913, Records of Ada County, Idaho.
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92)
ALTA Owner's Policy
Order Number: NCS-222811-BOI
Page Number: 5
12. Terms and conditions contained in Vacation and Abandonment, recorded June 1, 2006, as
Instrument No. 106086913, Records of Ada County, Idaho.
13. Matters as shown on ALTA Survey, dated June 6, 2006, and revised June 29, 2006 prepared by
Land Solutions Land Surveying and Consulting, of which are as follows:
Any effect of the buildings lying outside the boundary line on the Northerly and Westerly
boundaries.
Any effect of unrecorded easements for gas, water and storm drain purposes.
Any effect of a drain ditch running along the Southerly boundary of Lots 1-9.
Any effect of a loading dock and parking being located on Lot 22.
The map attached, if any, may or may not be a survey of the land depicted hereon. First American Title
Insurance Company expressly disclaims any liability for loss or damage which may result from reliance
on this map except to the extent coverage for such loss or damage is expressly provided by the terms
and provisions of the title insurance policy, if any, to which this map is attached.
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92) Order Number: NCS-222811-BOI
ALTA Owner's Policy Page Number: 6
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or
expenses which arise by reason of:
1.(a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting,
regulating, prohibiting or relating to
(i) the occupancy, use, or enjoyment of the land;
(ii) the character, dimensions or location of any improvement now or hereafter erected on the land;
(iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or
(iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of
the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded
in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or
encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from
coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims, or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to
the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this
policy.
4. Any claim, which arises out of the transaction vesting in the Insured the estate or interest insured by this policy, by reason of the operation of
federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on:
(i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or
(ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer
results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
CONDITIONS AND STIPULATIONS
1. DEFINITION OF TERMS.
The following terms when used in this policy mean:
(a) "insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those
who succeed to the interest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributees,
devisees, survivors, personal representatives, next of kin, or corporate or fiduciary successors.
(b) "insured claimant": an insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of any public
records as defined in this policy or any other records which impart constructive notice of matters affecting the land.
(d) "land": the land described or referred to in Schedule (A), and improvements affixed thereto which by law constitute real property. The term "land"
does not include any property beyond the lines of the area described or referred to in Schedule (A), nor any right, title, interest, estate or easement in
abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and
from the land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument.
(f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions from Coverage, "public records" shall also
include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located.
(g) "unmarketability of the title": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would
entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition
requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE.
The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in
the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall
have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not
continue in force in favor of any purchaser from the insured of either
(i) an estate or interest in the land, or
(ii) an indebtedness secured by a purchase money mortgage given to an insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT.
The insured shall notify the Company promptly in writing
(i) in case of any litigation as set forth in Section 4(a) below,
(ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as
insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or
(iii) if title to the estate or interest, an insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured
all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to
notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then
only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE.
First American Title Company of Idaho National Commercial Services
r Form No. 1402.92 (10/17/92) Order Number: NCS-222811-BOI
• ALTA Owner's Policy Page Number: 7
(a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own
cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title
or interest as insured but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy.
The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the
insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any
fees, costs or expenses incurred by an insured in the defense of those causes of action which allege matters not insured against by this policy.
(b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion
may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to an insured. The
Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede
liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently.
(c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the
Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to
appeal from any adverse judgment or order.
(d)In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall
secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to
use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give
the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or
proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the
title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's
obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with
regard to the matter or matters requiring such cooperation.
S. PROOF OF LOSS OR DAMAGE.
In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or
damage signed and swom to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the
facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter
insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount
of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the
Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any
litigation, with regard to the matter or matters requiring such proof of loss or damage.
In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company
and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative
of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which
reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its
permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks,
correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated
as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable
judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath,
produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this
paragraph shall terminate any liability of the Company under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY.
In case of a claim under this policy, the Company shall have the following additional options:
(a) To Pay or Tender Payment of the Amount of Insurance.
To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay.
Upon the exercise by the Company of this option, all liability and obligations to insured under this policy, other than to make the payment required,
shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company
for cancellation.
(b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant.
(i) to pay or otherwise settle with other parries for or in the name of an insured claimant any claim insured against under this policy, together with any
costs, attomeys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the
Company is obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and
expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to
pay.
Upon the exercise by the Company of either of the options provided for in paragraphs (b) (i) or (ii), the Company's obligations to the insured under this
policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend,
prosecute or continue any litigation.
7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE.
This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or
damage by reason of matters insured against by this policy and only to the extent herein described.
(a) The liability of the Company under this policy shall not exceed the least of:
(i) the Amount of Insurance stated in Schedule A; or,
(ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect,
lien or encumbrance insured against by this policy.
(b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or
interest or the full consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which
increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is
subject to the following:
(i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the
amount of insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy; or (ii) where a subsequent
improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of
Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement.
The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses for which the Company is liable under this policy, and shall only
apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A.
(c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations.
First American Title Company of Idaho National Commercial Services
Form No. 1402.92 (10/17/92) Order Number: NCS-222811-BOI
-�' ALTA Owner's Policy Page Number: 8
8. APPORTIONMENT.
If the land described in Schedule (A)(C) consists of two or more parcels which are not used as a single site, and a loss is established affecting one or
more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided
pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date of Policy,
unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy
and shown by an express statement or by an endorsement attached to this policy.
9. LIMITATION OF LIABILITY.
(a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land,
or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of
any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused
thereby.
(b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or
damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as
insured.
(c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit
without the prior written consent of the Company.
10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY.
All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto.
11. LIABILITY NONCUMULATIVE.
It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy
insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter
executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be
deemed a payment under this policy to the insured owner.
12. PAYMENT OF LOSS.
(a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which
case proof of loss or destruction shall be furnished to the satisfaction of the Company.
(b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage
shall be payable within 30 days thereafter.
13. SUBROGATION UPON PAYMENT OR SETTLEMENT.
(a) The Company's Right of Subrogation.
Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of
the insured claimant.
The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or
property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all
rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the
Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation
involving these rights or remedies.
If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies
in the proportion which the Company's payment bears to the whole amount of the loss.
If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be
required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the
impairment by the insured claimant of the Company's right of subrogation.
(b) The Company's Rights Against Non-insured Obligors.
The Company's right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to
indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for
subrogation rights by reason of this policy.
14. ARBITRATION.
Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the
American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the
insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other
obligation. All arbitrable matters when the Amount of Insurance is $1,000,000 or less shall be arbitrated at the option of either the Company or the
insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company
and the insured. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the
insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in
which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be
entered in any court having jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
15. LIABILITY LIMITED TO THIS POLICY, POLICY ENTIRE CONTRACT.
(a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the
Company. In interpreting any provision of this policy, this policy shall be construed as a whole.
(b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered
hereby or by any action asserting such claim, shall be restricted to this policy.
(c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the
President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company.
16. SEVERABILITY.
In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision
and all other provisions shall remain in full force and effect.
17. NOTICES, WHERE SENT.
All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy
and shall be addressed to the Company at First American Tide Insurance Company, 1 First American Way, Santa Ana, CA 92707, or to the office which
issued this policy.
First American Title Company of Idaho National Commercial Services
`r
ADA COUNTY RECORDER J. DAVID NAUARRO AMOUNT 12.00 4
BOISE IDAHO 08/03/06 11:37 AM
DEPUTY D—R Haney III IIIIIIIlIIIIIIIIIlllll IIIII'll III
RECORDED—REQUEST OF
First American 106124729
AFTER RECORDING MAIL TO:
City of Meridian
33 East Idaho Avenue
Meridian, ID 83642
WARRANTY DEED
File No.: NCS-222811-BOI (rmr)
Date: June 27, 2006
For Value Received, ZWJ Properties, LLC, an Idaho limited liability company, as to an undivided
1/3 interest and CSRC Investments, LLC, an Idaho limited liability company, as to an
undivided 2/3 interest, hereinafter referred to as Grantor, does hereby grant, bargain, sell and convey
unto City of Meridian, a municipal corporation, hereinafter referred to as Grantee, whose current
address is 33 East Idaho Avenue, Meridian, ID 83642, the following described premises, situated in
Ada County, Idaho, to wit:
See Attached Exhibit "A"
APN: R-5672-00-0006
TO HAVE AND TO HOLD the said premises, with their appurtenances, unto said Grantee, and to the
Grantee's heirs and assigns forever. And the said Grantor does hereby covenant to and with the said
Grantee, that the Grantor is the owner in fee simple of said premises; that said premises are free from all
encumbrances except current years taxes, levies, and assessments, and except U.S. Patent reservations,
restrictions, easements of record and easements visible upon the premises, and that Grantor will warrant
and defend the same from all claims whatsoever.
Page 1 of 3
APN:R-5672-00-0006
Warranty Deed
- continued
Firs erican Exchange Company, LLC a
Qualifiedrmediary for ZWJ Prope ,
LLC, an Idaho ' 'ted liability co ny, as to
an undivided 1/3 in t
By: Sharon L. Wolfe, Authorized Signer
By: Read and approved by Exchangor, ZWJ
Properties, LLC, an Idaho limited liability
company, as to an undivided 1/3 interest
STATE OF Idaho )
ss.
COUNTY OF Ada
File No.: NCS-222811-BOI (rmr)
Date: 06/27/2006
CSRC Investments, LLC, an Idaho limited
liability company, as to an undivided 2/3
interest
��%ice •
b Record, 111, Member
By: Susan Record, Member
On this 31st day of July, 2006, before me, a Notary Public in and for said State, personally
appeared Zephaniah W. Johnson, known or identified to me to be the person whose name is
subscribed to the within instrument as Member of the ZWJ Properties, LLC , limited liability
company, and acknowledged to me that such limited company executed same.
In witness whereof, I have hereunto set my hand and a my official seal the day and year in this
certificate first above written.
�N�`"�u�•'••� Notaily Public for the State of Idaho
RUg�p� Residing at: Boise, ID
t0 �Ot AR r My Commission Expires: 3/17/2012
dV.•
co
Pue'%ON
rig of `oma
Page 2 of 3
APN: R-5672-00-0006 Warranty Deed File No.: NCS-222811-BOI (rmr)
- continued Date: 06/27/2006
STATE OF Idaho
ss.
COUNTY OF Ada )
On this 31st day of July, 2006, before me, a Notary Public in and for said State, personally
appeared Clayton Record III and Susan Record, known or identified to me to be the person whose
name is subscribed to the within instrument as Members of the CSRC Investments, LLC , limited
liability company, and acknowledged to me that such limited company executed same.
In witness whereof, I have hereunto set my hand and a ixed my official &&I the day an year in this
certificate first above written.
0##A �
a�g1t
M. Raj Notary Public for the State of Idaho
Residing at: Boise, ID
NOTA* j, My Commission Expires: 3-17-2012
W� B 1L1G
0 to
Page 3 of 3
EXHIBIT A
LEGAL DESCRIPTION:
Parcel I:
Lots 1 through 9 in Block 1 of the Townsite of Meridian, according to the Amended plat thereof, filed in
Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Also including:
A parcel being part of the alley adjacent to Lots 1 through 9 and Lots 22 through 30 of the Amended Plat
of Block No. 1 of the Townsite of Meridian, as shown in Book 2 of Plats at Page 61, in the office of the
Recorder, Ada County, Idaho, and being located in the Southwest Quarter of Section 7, of Township 3
North, Range 1 East, Boise Meridian, Ada County, Idaho, as evidenced by Vacation and Abandonment,
recorded June 1, 2006, as Instrument No. 106086913, and more particularly described as follows:
Commencing at a brass cap monument marking the Northwest corner of said Southwest Quarter (1/4
corner), from which a brass cap monument marking the Southwest corner of said Southwest Quarter
(section corner), bears South 001715" West a distance of 2652.58 feet; thence South 0017'15" West
along the Westerly boundary of said Southwest Quarter a distance of 866.45 feet to a point; thence
leaving said Westerly boundary South 89048'49" East a distance of 40.00 feet to the Northwest corner of
said Lot 1 of the Amended Plat of Block No. 1 of the Townsite of Meridian and the POINT OF
BEGINNING; thence North 0017'15" East along the Easterly right of way of N. Meridian Road a distance
of 16.00 feet to a point marking the Southwest corner of said Lot 30; thence South 89048'49" East along
the Southerly boundary of said Lot 22 through 30 a distance fo 266.13 feet to a point marking the
Southeast corner of said Lot 22; thence South 0017'15" West a distance of 16.00 feet to a point marking
the Northeast corner of said Lot 9; thence North 89048'49" West along the Northerly boundary of said
Lots 1 through 9 a distance of 266.13 feet to the POINT OF BEGINNING.
Parcel II:
Lots 23 through 30 in Block 1 of the Townsite of Meridian, according to the Amended plat thereof, filed in
Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Parcel III:
That portion of the now vacated Railroad Avenue, lying between Lots 1 through 9 and the North line of
the railroad right of way, according to the Amended plat in Block 1 of the Townsite of Meridian, filed in
Book 2 of Plats at Page 61, Records of Ada County, Idaho.
Parcel IV:
Together with those easement rights as set forth in Easement Agreements, recorded July 26, 1979, as
Instrument No.'s 7941053 and 7941054, Records of Ada County, Idaho.
\ + 1ADA COUNTY RECORDER J. DAVID NAUARRO AMOUNT 6.00 2 �/
BOISE IDAHO 08/10/06 04:22 PM
DEPUTY Gail Garrett
RECORDED -REQUEST OF III IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII III
First American 106125229
AFTER RECORDING MAIL TO:
City of Meridian
33 East Idaho Avenue
Meridian, ID 83642
WARRANTY DEED
File No.: NCS -247981 -BOX (rmr) Date: August 02, 2006
For Value Received, David Buich and Karen Bulch, husband and wife, hereinafter referred to
as Grantor, does hereby grant, bargain, sell and convey unto City of Meridian, a municipal
corporation, hereinafter referred to as Grantee, whose current address is 33 East Idaho
Avenue, Meridian, ID 83642, the following described premises, situated in Ada County, Idaho, to
wit:
Lot 22 in Block 1 of the Townsite of Meridian, according to the Amended plat thereof, filed in
Book 2 of Plats at Page 61, Records of Ada County, Idaho.
APN: Ptn of R-5672-00-0006
TO HAVE AND TO HOLD the said premises, with their appurtenances, unto said Grantee, and to the
Grantee's heirs and assigns forever. And the said Grantor does hereby covenant to and with the said
Grantee, that the Grantor is the owner in fee simple of said premises; that said premises are free from all
encumbrances except current years taxes, levies, and assessments, and except U.S. Patent reservations,
restrictions, easements of record and easements visible upon the premises, and that Grantor will warrant
and defend the sa from all claims whatsoever.
David Buic
Page 1 of 2
APN: Warranty Deed File No.: NCS-247981-DOI (rmr)
- continued Date: 08/02/2006
STATE OF Idaho
ss.
COUNTY OF
On this % day of August, 2006, before me, a Notary Public in and for said State, personally
appeared David Buich and Karen Buich, known or Identified to me to be the person(s) whose name(s)
is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same.
In witness whereof, I have hereunto set my hand and affixed my official seal the day and year in this
certificate first above written.
Notary Public for the State of Idaho
Residing at: #A CA ID
My Commission Expires: ./oho/0'?
Page 2 of 2
CITY OF MERIDIAN MERIDIAN, IDAHO
Payee FIRST AMERICAN TITLE CO
Vendor ID FIRST AMER TITL Account #:
Invoice IDescription
�S-247981-BOI Title fees to trade Broadway Lot#20 for ...
Total :
Discount
$0.00
$0.00
69818
08,10,2ic� 818
Amount
$495.38
I
$495.38
Date Printed: September 07, 2007
Date Posted: August 17, 2006
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FirstAmerican Title Company ofldaho, Inc.
National Commercial Services
7311 Potomac Drive • Boise, ID 83704
Buyer's Estimated Settlement Statement
Property: 0000 Broadway Avenue, Meridian, ID 83642
Lot: 22
Buyer: City of Meridian
Address: 33 East Idaho Avenue, Meridian, ID 83642
Seller: David Buich, Karen Buich
Address: 3100 N. Glen Stuart Lane Eagle ID 83616
File No: NCS-247981-BOI
Officer: Ruth M. Rubel/rmr
New Loan No:
Settlement Date: 08/10/2006
Disbursement Date: 08/10/2006
Print Date: 8/7/2006, 12:03 PM
Charge Description
Buyer Charge
Buver Credit
Consideration:
Total Consideration
_ _.._. —
---
90,000.00
Ad'ustments•
Lot 20 Exchange Value
90,000.00
Prorations:
Est. Tax Roll 2006 to Nampa Meridian Irri . 01/01/06 to 08/10/06 14.99/yr
69.62
Title/Escrow Charges to:
Closing Escrow Fee - First American Title Company of Idaho Inc. National Commercial Services
Policy -Extended Affk 1992 Owner s - First American Title Company of Idaho, Inc. National
Commercial Services
.. ..-......
ecord Warranty Deed -First American Title Company of Idaho, Inc National_m
Comer_-cial
Services
_...
Record Public Parking Lot Easement - First American Title Company_....- of Idaho-- ,---_ __— ____----
Commercial Services Inc. National
250.00
285,00
9,00
21.00
Cash (X From) ( To) Borrower
495.38
Totals
90,565.00
90,565.00
Notice – This Estimated Settlement Statement is subject to changes, corrections or additions
at the time of final computation of the Settlement Statement.
BUYER(S):
City of Meridian, a municipal corporation
By: Tammy de Weerd, Mayor
AUG 1 0 2006
-wi
0,�q5,39 oe
�,r.( Tet (�xtird �a✓'Chaeh.._
Page 1 of 1
CITY OF MERIDIAN MERIDIAN, IDAHO
Payee FIRST AMERICAN TITLE CO
Vendor ID FIRST AMER TITL Account #:
Invoice IDescription
�S-247971-BOI title fees to trade Broadway Lot#20 for ...
0"j, pw'�
Total :
Discount
$0.00
$0.00
69817
s
08,104 817
Amount
$834.94
$834.94
Dae Printed: September 07, 2007
Date Posted: August 17, 2006
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First American Title Company ofldaho, Inc.
National Commercial Services
7311 Potomac Drive •Boise, ID 83704
Seller's Estimated Settlement Statement
Property: 0000 E. Broadway Avenue, Meridian, ID 83642
Lot: 20
Buyer: David Buich, Karen Buich
Address: 3100 N. Glen Stuart Lane, Eagle, ID 83616
Seller: City of Meridian
Address: 33 East Idaho Avenue, Meridian, ID 83642
File No: NCS-247971-BOI
Officer: Ruth M. Rubel/trnr
New Loan No:
Settlement Date: 08/10/2006
Disbursement Date: 08/10/2006
Print Date: 8/7/2006,12:12 PM
Charge Description
Consideration:
Seller Char a
Seller -Credit
Total Consideration
90,000.00
Ad ustments•
Lot 22 Exchange Value
90,000.00
Prorations•
Tax Ro112006 to NM Irrigation 848-1-20 01/01/06 to 08/10/06 $24.67/
14.94
Title/Escrow Char e
_.
Policy -Standard ALTA °s to
Closing -Escrow Fee - First American Title Company of Idaho Inc National Commercial Services
Y 1992 Owner's -First American Title Company of Idaho, Inc. National
Commercial Services
250.00
570.00
Cash ( To) (X From) Seller
834.94
Totals
90,834.94
90,834.94
Notice - This Estimated Settlement Statement is subject to changes, corrections or additions
at the time of final computation of the Settlement Statement.
SELLER(S):
City of Meridian, a municipal corporation
By: Tammy de Weerd, Mayor
AUG 1 b Z006
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Page 1 of 1
rGLI
LCA Architects
Meeting Date: June 29, 2006
Date of Issuance: June 29, 2006
Project Name: Meridian City Hall
AGENDA
Time: 4:00 p.m. Type of Meeting: Citizens Committee Kick Off
Location: Meridian Police Facility
Project #:06016.01 File Code: (4-b)
1. Introductions & Committee Structure
o Contact Information and Preference
2. Process
o Short Term Schedule & Dates
o Workshop Dates
o Potential Building Tours and Schedule
3. Committee Ideas & Input
o Site & Existing Structures
o New Building
4. Other Items
5. Next Meeting
06016.01
LCA Architects 1221 Shoreline Ln. PAGE 1 OF 1
Boise, ID 83702 ph: 208.345.6677 fx: 208.344.9002
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MERIDIAN CITY HALL BUILDING INTERVIEW TIME SCHEDULE
FRIDAY, MAY 12, 2006
Meridian Police Department
Second Floor Conference Room
1401 E. Watertower Lane
11:00 Selection Committee Convenes: discuss ground rules and review questions.
11:15 CM Interview #I
CM Company
12:00 CM Interview #2
Kreizenbeck Constructors
12:45 CM Interview #3
Petra General Contractors
40 Minute Interview Format:
5 to 10 minute presentation
25 to 30 minute questions and answers
3 to 5 minute final wrap-up from presenter
1:30 15 Minute Break - Lunch
1:45 30 Minute Committee Discussion and Construction Manager Ranking
2:15 Architect Interview # 1
CSHQA
3:00 Architect Interview #2
Lombard Conrad Architects
3:45 Architect Interview #3
ZGA Architects
4:30 30 Minute Committee Discussion and Architect Ranking
5:00 Adjourn
Page 1 of 1
Will Berg
From: Michelle Albertson
Sent: Wednesday, May 03, 2006 3:45 PM
To: Mark Freeman; Cheryl Brown; ardendavis@idahopower.com; rich@richnesbit.com;
chris.klein@edwardjones.com; rwarwick@bcidaho.com; deneen m_wilson@keybank.com;
Brad Watson; Keith Bird; Tammy de Weerd
Cc: Will Berg; Ted Baird
Subject: Meridian City Hall Consultants
This is just a reminder of the meeting scheduled tomorrow, May 4th, at 5:15 at Meridian City Hall to
go over the final rankings and to finalize the initial selection for the Meridian City Hall Consultants.
Please fax your rating sheets to Will Berg at 887-4813 so we can compile the results. If it's more
convenient, you can e-mail me your rating sheets at albertsm@meridiancity.org or drop them by our
office at 703 N. Main Street (the former Farmers and Merchants Bank on the corner of Main &
Broadway).
If you have any questions, please let us know.
Michelle Albertson, Paralegal
Meridian City Attorney's Office
703 N. Main Street
Meridian, ID 83642
(208) 898-5506
albertsm@meridiancity.org
5/4/2006
Final Rankings for Interviewed Architects & Construction
Managers for Meridian City Hall Project
Eight evaluators, performing final ranking of interviewees from
1 to 3 based on all information provided in submittals and
interviews.
CONSRUCTION
MANAGEMENT
- ' Ili'. Q1
Contractors
Kreizenbeck
Constructors
CM Company
ARCHITECTURAL
SERVICES
Architects
ZGA Architects
>CSHQA
TOTAL
AVERAGE`
E16
2.0
23
29�
TOTAL I AVERAGE
8
1.0
16
2?0
24
3.0 ,
Submittal Rating Summary for Architects & Construction Managers for Meridian City Hall
CONSRUCTION
MANAGEMENT
Petra; General
Contractors
CM Company
Kreizenbeck
Constructors
Beniton Construction Co.
Heery International
Ewing Company
Layton Construction Co.
CSDI Company
JW Construction
Knot—he -Zior-Casali
Construction
Nine evaluators using criteria listed on RFQ
TOTAL
AVERAGE
824
816
814
767
760
737
692
652
628
550
AKGHITECTURAL
TOTAL
SERVICES"
ZGA Architects
818
CSHQA
801
798
Lombard/Conrad
Architects
Cole + Poe Architects
766
Trout Architects 737
BRS Architects 731
Design West Architects 717
85.2
84.4
81.9
76.9
72.4
61.1
AVERAGE
85.1
81.9
81.2
79.7
" -
CITY OF 41. S
044 v
IDAHO pr
�E" R o
/u" TREASURE V,-
1903
MAYOR
Tammy de Weerd
CITY COUNCIL MEMBERS
Keith Bird
August 8, 2006
Joseph W. Borton Pat Kershisnik
Charles M. Rountree
Shaun Wardle Petra Incorporated
9056 W. Blackeagle Drive
CITY DEPARTMENTS Boise, Idaho 83709
City Attorney/HR
703 Main street
898-5506 (City Attorney)
RE: Construction Manager Contract for New City Hall Project
898-5503 (HR)
Fax 884-8723
Dear Mr. Kershisnik,
Fire
540 E. Franklin Road
Enclosed please find the original Construction Manager Contract for the
888-1234 / fax 895-0390
New Meridian City Hall Project. This item was also scanned and emailed
Parks & Recreation
to your office early today.
11 W. Bower Street
888-3579 / fax 898-5501
Please feel free to contact our office if you have any
Planning
concerns.
660 E. Watertower Lane
Sincerely,
Suite 202
884-5533 / fax 888-6844
Police
Sharon Smith
1401 E. Watertower Lane
888-6678
Senior Deputy City Clerk
/fax 846-7366
City of Meridian
Public Works
660 E. Watertower Lane
Suite 200
898-5500/fax 895-9551
- Building
660 E. Watertower Lane
Suite 150
cc: City Clerk file
887-2211/fax 887-1297
Wastewater
3401 N. Ten Mile Road
888-2191 / fax 884-0744
Water
2235 N.W. 8th Street
888-5242 / fax 884-1159
CITY HALL 33 EAST IDAHO AVENUE MERIDIAN, IDAHO 83642 (208) 888-4433
CITY CLERK -FAX 888-4218 FINANCE & UTILITY BILLING -FAX 887-4813 MAYOR'S OFFICE -FAX 884-8119
Printed on recycled paper
COMMERCIAL/INVESTMENT REAL ESTATE
PURCHASE -SALE -EXCHANGE AGREEMENT
THIS Agreement is entered into for the purposes stated herein, this 3r� day of al,tc
2006, by Dave and Karen Buich, husband and wife ("BUICH"), and the City of Meridian ity
("CITY"), collectively referred to herein as " the parties."
WHEREAS, Buich owns or controls certain real property located in Ada County, Idaho more
particularly described as Lot 22 of the Amended Plat of Block No. 1 of the townsite of Meridian
located in the SW %4 of Section 7, T3N, R1 E, Ada County, Idaho (the "BUICH parcel" or "Lot 22");
and,
WHEREAS, CITY owns certain real property located in Ada County, Idaho more particularly
described as Lot 20 of the Amended Plat of Block No. 1 of the townsite of Meridian located in the
SW'/4 of Section 7, T3N, RIE, Ada County, Idaho (the "City Parcel" or "Lot 20" ; and,
WHEREAS, the parties desire to enter into a real property exchange agreement whereby BUICH will
convey Lot 22 to CITY in exchange for CITY conveying Lot 20 to BUICH.
WHEREAS, the laws of the State of Idaho require that the City of Meridian exchange city -owned
real property for property of equal value; and,
WHEREAS, Lot 20 and Lot 22 are of equal size and are located on the same City block. City desires
to own Lot 22 to add to the new City Hall site at the former Meridian Creamery, and Buich desires to
own lot 20 to add to the Buich parcel at the northeast corner of the block; and,
WHEREAS, the City Council of the City of Meridian has declared that Lot 20 and 22 are of equal
value at this time as long as the City receives assurances of the continued availability of the public
parking lot currently on lots 20 and 21 until such time as either of the adjacent parcels develop; and,
WHEREAS, Buich has agreed to execute a parking lot easement in favor of the City of Meridian to
fulfill the condition of the exchange requiring continued availability of public parking while plans for
development for the Buich and City Hall parcels are being completed.
NOW, THEREFORE, in return for good and valuable consideration, including the agreement set
forth herein and the parties' proceeding to their respective approvals and to the closing of the
property exchange contemplated hereby (the "Closing"), the receipt and sufficiency of such
consideration being hereby acknowledged, the parties do hereby enter into this Agreement and the
terms and conditions set forth below.
REAL ESTATE EXCHANGE AGREEMENT
- 1 -
1. IDENTIFICATION OF EXCHANGE PARCELS. The parcel that BUICH intends
to exchange to City under the terms of this agreement is legally described as Lot 22 of the Amended
Plat of Block No. 1 of the townsite of Meridian located in the SW 1/4 of Section 7, T3N, RIE, Ada
County, Idaho. The parcel that CITY intends to exchange to BUICH under the terms of this
Agreement is legally described as Lot 20 of the Amended Plat of Block No. 1 of the townsite of
Meridian located in the SW 1/4 of Section 7, T3N, RIE, Ada County, Idaho.
2. "AS -IS" SALE. The parcels are sold "as -is" and are sold without any water rights.
3. ADDITIONAL TERMS, CONDITIONS AND/OR CONTINGENCIES. The
closing of this transaction is contingent upon written satisfaction or waiver of the following
conditions:
A) BUICH shall obtain good and marketable title to the BUICH parcel.
B) BUICH shall execute and place into escrow the Parking Lot Easement
attached hereto as exhibit "A" and incorporated herein by this reference. The easement shall provide
for the continued operation of the existing public parking lot on lots 20 and 21 until such time as
City's adjacent property or BUICH's adjacent property develops. The closing agent shall be
provided with written instructions to record the easement document at closing.
C) BUICH acknowledges that this agreement will be executed by BUICH before
CITY executes the agreement and that the execution of the agreement by the CITY is contingent
upon ratification of the terms and conditions of this agreement by the Meridian City Council and the
Council's authorization for the Meridian City Mayor to execute this agreement on behalf of the
CITY.
REAL ESTATE EXCHANGE AGREEMENT
- 2 -
4. ACHD CIRCULATION EASEMENT. At such time that the Development Plans
for Buich's adjacent property are ready to be implemented, City agrees to work with the Ada County
Highway District to remove the blanket access easement from lot 20 and limit the location of the
access easement to the City -owned Lot 21. The timing of the relocation of the blanket easement
shall be concurrent with the termination of the Parking Lot Easement referenced in Section 3(B) of
this agreement.
5. TITLE COMPANY/CLOSING AGENCY.
A) The parties agree that First American Title Company of Ada County shall
provide any required title policy and preliminary report of commitment.
B) The closing agency for this transaction shall be First American Title Company
of Ada County.
C) Each party agrees to pay one-half (1/2) of the closing agency's fee.
6. TITLE INSURANCE.
A) Each Party shall pay for standard coverage owner's title insurance policy on
the respective properties which it conveys to the other party under the terms of this Agreement. The
face value of the policy for each parcel shall be Ninety Thousand Dollars ($90,000.00). The cost of
additional title insurance and endorsements, if desired by a party on property received under this
Agreement, shall be paid by the receiving party. The Title Company is to provide all parties to this
Agreement with a preliminary Title Report as soon as possible after execution of this agreement.
The parties shall have five (5) days to object in writing to the condition of the title as set forth in the
report, unless said time period is extended pursuant to this Agreement. In the event that a party
makes written objection to the title, the other party shall have a reasonable time to cure any defects of
title or provide affirmative title insurance coverage, and in the event the other party cannot cure said
REAL ESTATE EXCHANGE AGREEMENT
3 —
defects or is unwilling to cure said defects or provide affirmative title insurance coverage, the
objecting parry may elect, as its sole remedy, to either (i) terminate this Agreement, (ii) cure the
defects at the objecting party's expense, or (iii) proceed to closing, taking title subject to such
defects. If the parties do not so object, the parties shall be deemed to have accepted the condition of
the title.
B) The final Title Insurance policies shall be delivered to the parties by the Title
Company as soon as possible after closing.
7. CLOSING DATE AND TITLE CONVEYANCE.
A) On or before Closing, the parties shall deposit with Escrow Holder all
instruments necessary to complete the exchange contemplated under this Agreement.
B) Closing shall occur no later than August 10th, 2006. Closing shall occur on the
date on which the deeds to all properties are recorded in satisfaction of the requirements of this
Agreement.
C) The deeds for all properties shall be recorded concurrently, and neither party
shall be obligated to authorize the Escrow holder to convey a parcel if the Escrow Holder is not
irrevocably committed to record the deeds for all properties identified in this Agreement.
D) Title to the properties identified under this agreement shall be conveyed by
Warranty Deed and shall be marketable and insurable with the exception of any other liens,
encumbrances or defects allowed herein or otherwise approved by the receiving party.
REAL ESTATE EXCHANGE AGREEMENT
— 4 —
8. POSSESSION/PRORATION. The parties shall be entitled to possession of their
respective properties on the day of closing. Taxes and water assessments (using the last available
assessment as a basis), rents, insurance premiums, interest and reserve on liens, encumbrances or
obligations assumed and utilities shall be prorated as of the day of closing.
9. DEFAULT. In the event that a party does not perform in accordance with the terms
and conditions of this agreement then the other party shall have any recourse under the law to
enforce this contract.
10. ATTORNEY FEES. In the event of default by either of the parties in their
performance of the terms or conditions of this agreement, the defaulting party agrees to pay all
attorney fees and costs incurred by the non -defaulting parry and in the event of suit the prevailing
party shall be entitled to its reasonable attorney fees and costs.
11. CONDITION OF PROPERTY AT CLOSING/MAINTENANCE AFTER
CLOSING. The parties shall maintain their respective properties until the closing in their present
condition, ordinary wear and tear excepted. After Closing, each party shall be responsible for
maintenance of the parcels that they receive under this Agreement.
12. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants
to the other regarding their respective properties:
A. The party has received no notice from any governmental agency that the
properties are in violation of any statute, law, ordinance, rule, regulation, or deed restriction affecting
the Properties.
B. The parties have good, marketable title to their respective parcels. At the
time the deeds are placed into escrow, no other party shall have any right, title, or interest in the
subject property.
REAL ESTATE EXCHANGE AGREEMENT
- 5 -
C. There is no pending or threatened litigation or condemnation proceedings
affecting the Properties and there are no governmental assessments or local improvement district
assessments on the Properties nor are there any agreements to convey any portion of the Properties to
any other party.
D. Each party has disclosed to the other party the presence of all hazardous
substances or storage tanks that the disclosing party is aware of on their respective properties.
"Hazardous Substances" means any hazardous, dangerous or toxic substance (including petroleum
products) as defined under federal, state and/or local law, including all regulations promulgated
under such laws.
13. ENTIRE AGREEMENT. This Agreement, including any addendum or exhibits,
constitutes the entire Agreement between the parties, and no warranties, including any warranty of
habitability, agreements or representations have been made or shall be binding upon either party
unless herein set forth.
14. TIME IS OF THE ESSENCE IN THIS AGREEMENT. THIS IS A LEGALLY
BINDING AGREEMENT. THE PARTIES EACH REPRESENT THAT THEY HAVE HAD
THE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND THE INSTRUMENTS REFERRED TO
HEREIN.
15. SURVIVAL OF TERMS. All the terms and conditions hereof and all instruments
referred to herein and contemplated hereby shall survive closing and the transfer of title and shall
remain in full force and effect in accordance with their terms.
16. CONSTRUCTION OF TERMS. All times provided for in this Agreement or any
instrument referred to herein will be strictly construed, it being agreed that time is of the essence of
REAL ESTATE EXCHANGE AGREEMENT
— 6 —
this Agreement. Whenever the context requires, the singular includes the plural and vice versa, and
each gender includes each other gender, or the neuter, as the case may be.
17. BINDING ON SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns.
18. IDAHO LAW. This Agreement shall be construed and governed in accordance with
the laws of the State of Idaho.
19. HEADINGS. Headings preceding the text of the several Articles and Sections
hereof, and the table of contents, are solely for convenience or reference and shall not constitute a
part of this Agreement or affect its meaning, construction or effect.
20. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which shall constitute but one and
the same instrument.
REAL ESTATE EXCHANGE AGREEMENT
— 7 —
IN WITNESS WHEREOF, the parties have executed and attested this Agreement as of the
date and year first above written.
KAREN BUICH
THE CITY OF MERIDIAN
REAL ESTATE EXCHANGE AGREEMENT
— 8 —
Tammy rd, MAYOR
ATTEST:
CITY CLERK
REAL ESTATE EXCHANGE AGREEMENT
— 8 —
ET
'M
GENERAL CONTRACTORS & CONSTRUCTION MANAGEMENT
August 1, 2006
City of Meridian
City Attorney
703 Main Street
Meridian, Idaho 83642
ATTN: Ted W. Baird, Deputy City Attorney
Dear Ted,
ANJL E VEI
AUG 0 12006
City of Meridian
City Clerk Office
Enclosed are two signed and notarized originals of the Construction Management
Agreement for the City Hall Project.
As discussed with you it is our understanding that Section 10.2.1(i) shall be the subject of
a Change Order. To wit, the three year renewal requirement for the Errors and Omissions
Liability Insurance shall be changed to a renewal requirement of two years so as to
correspond to the statute of limitations for the professional services being rendered.
Respectfully yours,
Pat Kershisnik
9056 W. BLACKEAGLE DR. I BOISE, ID 83709 , PHONE: (208) 323-4500 , FAX: (208) 323-4507
WWW.PETRAINC.NET
RCE -1875
CONSTRUCTION MANAGEMENT
AGREEMENT
(CONSTRUCTION MANAGEMENT ADVISOR
BETWEEN
CITY OF MERIDIAN
AN IDAHO MUNICIPAL CORPORATION
AND
PETRA INCORPORATED
AN IDAHO CORPORATION
FOR THE
NEW MERIDIAN CITY HALL
AUGUST 1, 2006
TABLE OF CONTENTS
Page
1.
RELATIONSHIP OF THE PARTIES
1
1.1 RELATIONSHIP OF THE PARTIES.
1
1.2 AUTHORIZED REPRESENTATIVE.
2
1.3 CONSTRUCTION MANAGER AS OWNER'S REPRESENTATIVE.
2
2.
CONSTRUCTION MANAGER
2
2.1 CONSTRUCTION MANAGER'S REPRESENTATIONS.
2
2.2 COMMUNICATIONS.
3
2.3 MEETINGS WITH GOVERNMENTAL OFFICIALS.
3
2.4 PROJECT RECORDS.
3
2.5 VALUE ENGINEERING.
4
2.6 GOVERNMENTAL PERMITS.
4
2.7 COMPLIANCE WITH LAWS.
4
2.8 INDEPENDENT CONTRACTOR.
4
2.9 CONSULTANTS.
4
2.10 INDEMNIFICATION
5
2.11 OUTSIDE COMPENSATION PROHIBITED.
5
3.
OWNER
5
3.1 OWNER'S OBJECTIVES.
5
3.2 OWNER'S DUTIES.
5
3.3 OWNER'S ARCHITECT.
6
3.4 CONTRACTOR.
7
4.
SCOPE OF SERVICES
7
4.1 IN GENERAL.
7
4.2 DEVELOPMENT STRATEGIES PHASE.
7
4.3 SITE PREPARATION PHASE.
7
4.4 PRELIMINARY DESIGN PHASE.
8
4.5 CONSTRUCTION DOCUMENTS PHASE
9
4.6 BIDDING PHASE.
10
4.7 CONSTRUCTION PHASE.
11
5.
SCHEDULE.
13
5.1 SCHEDULE OF PERFORMANCE.
13
5.2 DELAYS.
13
6.
COMPENSATION
13
6.1 CONSTRUCTION MANAGER'S FEE.
13
6.2 REIMBURSABLE EXPENSES.
14
6.3 PAYMENTS.
15
7.
CHANGES
16
8.
CLAIMS.
16
TABLE OF CONTENTS - I
8.1 CLAIMS.
8.2 MEDIATION.
9. SUSPENSION AND TERMINATION
9.1 SUSPENSION BY OWNER FOR CONVENIENCE.
9.2 TERMINATION BY OWNER FOR CONVENIENCE.
9.3 TERMINATION BY OWNER FOR CAUSE.
9.4 TERMINATION BY CONSTRUCTION MANAGER.
10. GENERAL PROVISIONS
10.1
OWNERSHIP OF WORK PRODUCT.
10.2
INSURANCE.
10.3
PAYMENT AND PERFORMANCE BONDS.
10.4
RECITALS AND EXHIBITS.
10.5
COUNTERPARTS; FACSIMILE TRANSMISSION.
10.6
ATTORNEYS' FEES.
10.7
GOVERNING LAW.
10.8
VENUE.
10.9
GRAMMATICAL USAGE.
10.10
BINDING EFFECT.
10.11
HEADINGS.
10.12
ADDITIONAL ACTS.
10.13
TIME OF ESSENCE.
10.14
NOTICE.
10.15
RIGHTS AND REMEDIES CUMULATIVE.
10.16
THIRD -PARTY BENEFICIARIES.
10.17
INTEGRATION; WAIVERS.
10.18
SEVERABILITY.
TABLE OF CONTENTS - II
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17
17
17
17
18
18
18
18
18
19
19
20
20
20
20
20
20
21
21
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3
CONSTRUCTION MANAGEMENT AGREEMENT
(Construction Manager Advisor)
THIS CONSTRUCTION MANAGEMENT AGREEMENT (this "Agreement") is made
effective the 1St day of August, 2006, by and between CITY OF MERIDIAN, an Idaho municipal
corporation ("Owner'), and PETRA INCORORATED, an Idaho corporation ("Construction
Manager").
RECITALS
A. Owner is under contract to purchase that certain two -acre parcel of land located at
27 E. Broadway, Meridian, Idaho (the "Site").
B. Owner desires to abate and demolish the existing structures on the Site and
develop a new city hall facility thereon consisting of a four story structure with approximately
80,000 square feet of standard Class A office space and related improvements with surface
parking (the "Project").
C. Construction Manager has represented to Owner that it is has the skills,
qualifications, and experience to provide professional construction management for the Project
on behalf of Owner.
D. Owner desires to retain Construction Manager, and Construction Manager desires
to be retained by Owner, for professional construction management services for the Project on
Owner's behalf
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements stated herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Owner and Construction Manager agree as follows:
1. RELATIONSHIP OF THE PARTIES
1.1 Relationship of the Parties.
Construction Manager acknowledges and accepts the relationship of trust and
confidence established with Owner by this Agreement and that this relationship is a material
consideration for Owner in entering into this Agreement. Accordingly, Construction Manager
shall, at all times, act in a manner consistent with this relationship. Construction Manager
further covenants that Construction Manager will perform its services under this Agreement, in
the exercise of ordinary and reasonable care and with the same degree of professional skill,
diligence and judgment as is customary among construction managers of similar reputation
performing work for projects of a size, scope and complexity similar to the Project. Construction
Manager shall, at all times, further the interest of Owner through efficient business
administration and management.
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1.2 Authorized Representative.
Owner and Construction Manager shall designate a representative who shall be
authorized to act on that parties' behalf with respect to the Project. Each party's representative
shall render decisions in a timely manner in order to avoid unreasonable delay in the progress of
the Project. Each party may rely upon the directions and decisions of such representatives as the
directions and decisions of the other party. Neither Owner nor Construction Manager shall
change its authorized representative without five (5) days prior written notice to the other party.
1.2.1 Owner's authorized representative shall be:
To be determined by Owner. Upon Owner's selection of its
authorized representative, Owner will provide Architect the name
and contact information for such representative.
1.2.2 Construction Manager's authorized representative shall be:
Gene R. Bennett, Project Manager and
Wesley Bettis, Jr., Project Engineer
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531 (Bennett)
Mobile: 208-860-7531 (Bettis)
Email: gbennett@petrainc.net
Email: wbettis@petrainc.net
1.3 Construction Manager as Owner's Representative.
Construction Manager shall be a representative of Owner during the Project.
Construction Manager shall have authority to act on behalf of Owner only to the extent provided
in this Agreement, unless otherwise set forth in writing.
2. Construction Manager
2.1 Construction Manager's Representations.
Construction Manager makes the following express representations and
warranties to Owner, which shall survive the execution and delivery of this Agreement:
2.1.1 Construction Manager is or will be professionally qualified to
provide construction management services for the Project and is properly licensed to practice
construction management services to Owner by all public entities having jurisdiction over
Construction Manager and the Project;
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2.1.2 Construction Manager has, or will as part of its services under
this Agreement, become familiar with and examine the Site, including, but not limited to, the
existing terrain, structures, landscaping and the local conditions under which the Project is to be
designed, constructed, and operated, and correlate its observations with the Project's
requirements;
2.1.3 Construction Manager has the professional knowledge, skills,
experience, education and staffing to manage and coordinate the design and construction of the
Project . The individual employees of Construction Manager that will render services pursuant
to this Agreement are knowledgeable and experienced in the disciplines required for this Project;
2.1.4 Construction Manager shall prepare all documents and provide
all services required under this Agreement in such a manner that increases in Project costs
resulting from Construction Manager's errors or omissions do not exceed one percent (1%) of
the total construction price of the Project; and
2.1.5 Construction Manager assumes full responsibility to Owner for
its own improper acts and/or omissions and those employed or retained by Construction Manager
in connection with the Project (excluding intentional acts), but not for acts and omissions
expressly directed by Owner.
2.2 Communications.
Construction Manager shall endeavor to keep Owner fully informed regarding the
progress of the Project so Owner can have meaningful review and involvement in the Project.
Without limiting the generality of the foregoing sentence, Construction Manager shall, as a
matter of course, promptly provide Owner with copies of all documents relating to design and
construction management and coordination, meeting notes and memorandum and any other
information related to the Project for Owner's review and input. Construction Manager shall
notify Owner of any decisions that are required to be made by Owner, and any deadlines
pertaining thereto. Construction Manager shall consult with and advise Owner with respect to
any such decisions.
2.3 Meetings with Governmental Officials.
Construction Manager agrees to provide Owner with reasonable notice of all
formal public and non-public meetings with government officials regarding the Project. Owner
shall be entitled to attend any formal public or non-public meeting with governmental officials
regarding the Project. Construction Manager shall document all meetings with governmental
officials related to the Project and any verbal or written interpretations related to the Project
provided by any governmental officials.
2.4 Project Records.
All records relating to the Project in Construction Manager's possession (the
"Project Records") shall be made available to Owner for inspection and copying at a reasonable
time and place upon the written request of Owner. The Project Records shall include, but not be
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limited to, all plans, specifications, submittals, correspondence, minutes, memoranda, receipts,
timesheets, electronic recordings and other writings or things that document any aspect of the
design and construction management and coordination of the Project. Construction Manager
shall maintain the Project Records for six (6) years after substantial completion of Project or for
any longer period required by law.
2.5 Value Engineering.
Construction Manager shall value engineer the Project to maximize costs savings
to Owner through discounts, value engineering and other actions consistent with good design and
building practices for a project of the type contemplated by Owner.
2.6 Governmental Permits.
Construction Manager shall, with the assistance of Owner and Architect, prepare
and file all documents necessary to obtain the approvals of governmental authorities having
jurisdiction over the Project, including, but not limited to, building and occupancy permits.
2.7 Compliance with Laws.
Construction Manager shall perform all of Construction Manager's services in
compliance with all applicable laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the Project, any applicable permits and any recorded
covenants, conditions and restrictions affecting the Site.
2.8 Independent Contractor.
Construction Manager acknowledges that it is an independent contractor and not
an employee or agent of Owner. As an independent contractor, Construction Manager shall be
and remain responsible to Owner for all its negligent acts or omissions in connection with its
duties and services under this Agreement that result in damage or injury to persons or property.
Construction Manager shall indemnify and hold harmless Owner against all claims or liabilities
that are asserted, incurred or recovered against Owner related to employer liabilities that arise
from Construction Manager's employment or retention of any person or entity. Owner shall
have no control over the manner or method by which Construction Manager meets Construction
Manager's obligations under this Agreement; provided that Construction Manager's services
shall be performed in a competent and efficient manner this is in compliance with this
Agreement. Nothing in this Agreement shall be construed to mean that Owner employs or is
responsible for compensating any consultant of Construction Manager.
2.9 Consultants.
Prior to retaining or engaging any consultant to provide services pursuant to this
Agreement, Construction Manager shall submit for Owner's approval a written statement listing
(1) a description of the services to be provided by said consultant (2) a brief description of said
consultant's qualifications to render the identified services, and (3) a disclosure of any
ownership, controlling interest or affiliation between Construction Manager and said consultant.
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Owner shall bear no responsibility for reimbursing Construction Manager for services of any
consultant retained or engaged by Construction Manager unless Construction Manager first
complies with this Section.
2.10 Indemnification
To the fullest extent permitted by law, Construction Manager shall indemnify,
defend and hold harmless Owner and its officers, directors, agents and employees from and
against claims, damages, losses and expenses, including but not limited to attorney's fees, arising
out of or resulting from performance of Construction Manager's duties and responsibilities under
this Agreement, but only to the extent caused by the negligent acts or omissions of Construction
Manager, its employees, agents or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in party by a party indemnified
hereunder.
2.11 Outside Compensation Prohibited.
Except with Owner's knowledge and consent, Construction Manager shall not
engage in any activity or accept any employment, interest or contribution that would reasonably
appear to compromise Construction Manager's professional judgment with respect to the Project
or the relationship of trust between Owner and Construction Manager established herein;
provided, however, nothing in this Section shall be deemed to limit Construction Manager's
ability to provide services for an competitor of Owner.
3. OWNER
3.1 Owner's Objectives.
Owner's objective for the Project is to develop a new cost efficient city hall
facility and public plaza on the Site.
3.2 Owner's Duties.
3.2.1 Owner shall, at its expense, furnish Construction Manager with
documents in its possession concerning the Site, which documents shall include a legal
description, environmental risk evaluation, site survey and preliminary title report.
3.2.2 Owner shall provide Construction Manager with Owner's
preliminary planning and programming information regarding the Project, including, but, not
limited to, Owner's purposes, concepts, desires and any design, construction, scheduling,
budgetary or operational needs, restrictions or requirements, as the same may be amended from
time to time ("Owner's Criteria").
3.2.3 Owner shall timely review documents provided by or through
Construction Manager and timely render its direction, decision, consent or approval on matters
identified by Construction Manager for Owner's direction, decision, consent or approval.
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3.2.4 Owner shall timely review documents provided by or through
Construction Manager;
3.2.5 Owner shall provide for all required testing or inspections of the
Work as may be mandated by law, the Construction Documents or the Construction Contracts;
3.2.6 If Owner learns of any failure to comply with the Construction
Contract by Contractor, or of any errors, omissions, or inconsistencies in the services of
Construction Manager, and in the further event that Construction Manager does not have notice
of the same, Owner shall inform Construction Manager;
3.2.7 Owner shall afford Construction Manager access to the Site and
to the Work as may be reasonably necessary for Construction Manager to properly perform its
services under this Agreement;
3.2.8 Owner's review, direction, decision, approval or consent of any
document provided or matter identified by or through Construction Manager shall be solely for
the purpose of determining whether such document or matter is generally consistent with
Owner's Criteria. No review of such documents shall relieve Construction Manager of its
responsibility for the accuracy, adequacy, fitness, suitability, or coordination of its services or
work product.
3.2.9 Construction Manager shall be entitled to rely upon services and
information provided by or through Owner only to the extent that a reasonably prudent
Construction Manager would so rely on such services and information. Construction Manager
shall promptly notify Owner in writing if Construction Manager becomes aware of any errors,
omissions or inconsistencies in such services or information.
3.3 Owner's Architect.
Owner has retained LCA Architects, P.A., an Idaho professional corporation
("Architect") to provide professional architectural services for the Project. Architect's
authorized representative is:
Steve Simmons, President
LOMBARD-CONRAD ARCHITECTS, P.A.
1221 Shoreline Lane
Boise, Idaho 83702
Telephone: 208-345-6677
Facsimile: 208-344-9002
Mobile: 208-830-4122
Email: ssimmonsl@lcarch.com
Construction Manager hereby acknowledges that it has received, reviewed, and studied the
agreement form that Owner intends to use with Architect (the "Architectural Agreement"), and
the same is herein incorporated by reference. Construction Manager shall consult and coordinate
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with Architect as needed to fulfill its duties hereunder, and shall assist Architect as need for
Architect to fulfill its duties to Owner under the Architectural Agreement.
3.4 Contractor.
Construction Manager understands that Owner plans to retain multiple prime
contractors (the "Contractors") to provide construction labor, services, materials and equipment
for the Project (the "Work"). The term "Contractor" means all prime contractors retained by
Owner to perform Work, but not the prime contractor's subcontractors, laborers and material
suppliers.
4. SCOPE OF SERVICES
4.1 In General.
Owner has retained Construction Manager to help it achieve the objectives set
forth in Section 3.1 above by managing and coordinating the design and construction of the
Project on behalf of Owner. Therefore, the general scope of Construction Manager's
responsibilities is to do all things, or, when appropriate, require Architect and each Contractor to
do all things necessary, appropriate or convenient to achieve the end result desired by Owner,
including, but not limited to, those tasks set forth in this Article 4. The tasks set forth in this
Article 4 are not intended to be an exhaustive list of the tasks required to achieve the result
desired by Owner. The general scope of Construction Manager's responsibilities and shall
include all other tasks indicated or implied in this Agreement and the implementing plans
contemplated herein.
4.2 Development Strategies Phase.
Construction Manager shall carefully examine Owner's Criteria and consult with
Owner and Architect in detail about the same in detail. Based on its review and consultations,
and with the assistance of Architect, Construction Manager shall prepare and submit to Owner a
written report detailing its understanding of Owner's Criteria and identifying any design,
construction, scheduling, budgetary, operational or other problems or recommendations that may
result from Owner's Criteria. The written report shall also include proposed solutions addressing
each problem identified, alternative strategies for the cost effective design and construction of
the Project, and alternative strategies for the cost effective future expansion of the Project.
Construction Manager, with Architect's assistance, shall develop a preliminary project schedule
for the design and construction of the Project.
4.3 Site Preparation Phase.
Construction Manager shall also prepare and submit to Owner a plan for the
demolition of the existing improvements on the Site and the preparation of the Site for
construction activities. Upon Owner's approval of the plan and Owner's notice to proceed,
Construction Manager shall proceed with bidding of the demolition Work in accordance with
Section 4.6 below. Upon Owner's approval of the lowest bid and notice to the demolition
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Contractor to proceed, Construction Manager shall proceed with the management of the
demolition work in accordance with Section 4.7 below.
4.4 Preliminary Design Phase.
4.4.1 After reviewing Construction Manager's written report and
Architect's written report with Owner and Architect, and reaching agreement upon proposed
alternatives and solutions, Construction Manager shall, within the time frames set forth in the
preliminary schedule developed in Section 4.2 above and in cooperation with Architect's efforts,
prepare and submit to Owner for approval the following:
(a) A plan for the management of the design and construction of the
Project (the "Construction Management Plan"), which shall include (i) a Project
organizational chart, (ii) staffing recommendations for Owner, Architect and
Construction Manager, along with an explanation of the roles, responsibilities,
and authority of each staff member from each of the three entities, (iii) description
of the various bid packages recommended for the efficient and cost effective
bidding of the Project, including the procurement of those "general conditions"
items that may be efficiently and lawfully procured by Construction Manager
directly; (iv) a description of the basic methods and procedures for coordination
between Contractors; and (v) a system for claims avoidance on the Project
consistent with fixed price construction contracts. Construction Manager shall
not be responsible for the failure of Owner and/or Architect to adequately staff the
Project in accordance with the approved Construction Management Plan.
(b) A comprehensive master Project schedule (the "Project Schedule")
that specifies the proposed starting and finishing dates for each task required to
complete the demolition of the existing site improvements and the design,
construction and occupancy of the Project. The Project Schedule shall be divided
into separate tasks and phases as desired by Owner and shall include the tasks of
Owner, Architect, Construction Manager and each Contractor. The Project
Schedule shall provide reasonable time periods for Owner reviews and approvals
where appropriate.
(c) Based on the Architect's preliminary designs and specifications, a
preliminary price estimate for the design and construction of the Project (the
"Preliminary Price Estimate"), using area, volume or similar conceptual
estimating techniques, which shall include all expenditures that will be required of
Owner and a reasonable allowance for Owner's contingency.
(d) A plan for the efficient and effective communication of information
between Owner, Architect, Construction Manager and each Contractor (the
"Communications Plan"). The Communications Plan shall include payment
procedures, be compatible with the accounting practices of Owner and shall
provide reports and documents in the format and in the frequency required by
Owner.
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(e) A plan for managing the quality each Contractor's Work (the " ualit
Management Plan"); and
(f) Construction Manager understands that the Owner's maximum price
for the construction of the Project is Twelve Million Two Hundred Thousand and
No/ l 00ths Dollars ($12,200,000.00) (the "Project Budget").
4.4.2 Owner shall timely review and approve or disapprove the
documents set forth above. If Owner disapproves any document, Owner shall set forth the
reasons therefor in writing. Construction Manager shall then revise the disapproved document as
required by the reasons for disapproval and resubmit the revised document to Owner for
approval, which approval shall not be unreasonably withheld or delayed. This process shall
repeat until Owner approves the documents set forth above.
4.4.3 If the Preliminary Price Estimate developed pursuant to Section
4.4.1(c) exceeds the Project Budget provided by Owner to Construction Manager in Section
4.4.1(f), Owner may require Construction Manager, with no increase in the not -to -exceed
allowance for preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with
Owner and Architect to identify cost saving measures and (ii) assist Architect in revising the
Preliminary Design to reflect approved cost savings measures, and (iii) revise the Preliminary
Cost Estimate to reflect the anticipated savings from approved cost savings measures, as
necessary to bring the Preliminary Cost Estimate below the Project Budget. Absent clear and
convincing evidence of gross negligence, and provided Construction Manager completes its
obligations under this Section, Construction Manager shall not be financially responsible to
Owner for the failure of the Preliminary Cost Estimate to be within the Project Budget.
4.5 Construction Documents Phase
During the Construction Documents phase, Construction Manager shall complete
the followings tasks:
4.5.1 Make recommendations for revision to the Construction
Management Plan and submit them to Owner for review. Revise the Construction Management
Plan to include revisions approved by Owner.
4.5.2 Monitor compliance with the Project Schedule, which shall include
periodical progress reports and immediate reports of material deviations from the Project
Schedule for the design phase.
4.5.3 Review the Construction Documents at appropriate intervals
during their preparation to make recommendations to Owner and Architect as their
constructability, cost-effectiveness, clarity, consistency and coordination. This review shall
include peer reviews by electrical, mechanical, structural and architectural professionals for up to
two (2) work days per discipline.
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4.5.4 Construction Manager shall, with the assistance of Architect,
prepare documents necessary for the clear separation of the Work into the various bid packages
as set forth in the Construction Management Plan.
4.5.5 Conduct such Project meetings as required for the timely
completion of the Project;
4.5.6 Keep and distribute minutes as required in Construction
Management Plan and Communications Plan;
4.5.7 Coordinate transmittal of documents to regulatory agencies and
advise Owner of potential solutions to problems encountered;
4.5.8 Prepare value analysis studies on major construction components
as requested by Owner.
4.5.9 As soon as practical after Architect's submission of the
Construction Documents and in accordance with the Project Schedule, Construction Manager
shall submit to Owner a final written estimate of the anticipated price for constructing the Project
(the "Final Cost Estimate"). The Final Cost Estimate shall be detailed and shall be divided into
bid packages and work categories. If the Final Cost Estimate exceeds the Maximum Price,
Owner may require Construction Manager, with no increase in the not -to -exceed allowance for
preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with Owner and
Architect to identify cost savings measures, (ii) assist Architect in revising the Construction
Documents to reflect approved cost savings measures, and (iii) revise the Final Cost Estimate to
reflect the anticipated savings from approved cost savings measures, as necessary to bring the
Final Cost Estimate below the Maximum Price. Absent clear and convincing evidence of gross
negligence, and provided Construction Manager completes its obligations under this Section,
Construction Manager shall not be financially responsible to Owner for the failure of the Final
Cost Estimate to be within the Maximum Price.
4.6 Bidding Phase.
4.6.1 Construction Manager shall assist Owner in preparing bid
packages contemplated by the Construction Management Plan, preparing and placing notices and
advertisements to solicit bids, delivering bid documents to bidders, tracking bid documents and
bidders, answering bidders questions; reviewing addenda, holding a pre-bid conference if
required, reviewing bids or proposals for construction, and determining the selected bidders.
4.6.2 If the lowest bids from qualified bidders exceeds the Maximum
Price, Owner may require Construction Manager, with no increase in the not -to -exceed
allowance for preconstruction services set forth in Section 6.2.2(a) below, to (i) consult with
Owner and Architect to identify cost savings measures, (ii) assist Architect in revising the
Construction Documents to reflect approved cost savings measures, and (iii) rebid the Work, as
necessary to bring the Final Cost Estimate below the Maximum Price. Absent clear and
convincing evidence of gross negligence, and provided Construction Manager completes its
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obligations under this Section, Construction Manager shall not be financially responsible for the
failure of the Project to bid within the Maximum Price.
4.6.3 As appropriate, Construction Manager shall bid or select the
providers of "general conditions" items designated for procurement by the Construction Manager
under the Construction Management Plan.
4.7 Construction Phase.
During construction of the Project, from commencement of construction activities
until final payment to all Contractors, Construction Manager shall have and perform the
following duties, obligations, and responsibilities:
4.7.1 Construction Manager shall have and perform those duties,
obligations and responsibilities set forth in the construction agreements between Owner and each
Contractor (the "Construction Contracts"). Construction Manager hereby acknowledges that it
has received, reviewed, and studied the forms that Owner intends to use for the Construction
Contracts, and the same is herein incorporated by reference. Construction Manager
acknowledges that Owner may modify the Construction Contracts, and that such modified
Construction Contracts shall be applicable to this Agreement; provided, however, to the extent
such modified Construction Contracts are materially are inconsistent with the terms of this
Agreement, this Agreement shall control as between Owner and Construction Manager.
4.7.2 Construction Manager shall, as contemplated herein and in the
Construction Contract, but not otherwise, act on behalf and be the agent of Owner throughout
construction of the Project. Instruction, directions, and other appropriate communications from
Owner to Architect and each Contractor shall be given by Construction Manager.
4.7.3 Construction Manager shall monitor, update, implement, make
recommendations on, and report to Owner on compliance with, the Construction Management
Plan, Project Schedule and Project Budget.
4.7.4 Construction Manager shall conduct Project meetings as required
for the timely completion of the Project in accordance with the Project Schedule, and shall keep
and distribute minutes as required in the Construction Management Plan and Communications
Plan.
4.7.5 Construction Manager shall verify that the required permits, bonds,
and insurance have been obtained.
4.7.6 Construction Manager shall require each Contractor to prepare and
submit to Construction Manager for general review a safety program and a quality assurance
plan in conformance with the Contract Documents and the Quality Management Plan.
Construction Manager shall promptly report to Owner regarding whether or not the safety
program and quality assurance plan proposed by each Contractor conforms to the Contract
Documents the Quality Management Plan. Construction Manager shall review each safety
program and each quality assurance plan to determine that the programs and plans of the various
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Contractors performing Work at the Site, as submitted, provide for coordination among the
Contractors for the portions of the Work each will perform. Construction Manager shall monitor
each Contractor's compliance with the safety program and quality assurance plan and report to
Owner promptly concerning any deviation therefrom along with recommendations for
correction. Construction Manager shall be responsible for coordinating the Contractors for each
portion of the Work.
4.7.7 Upon receipt, Construction Manager shall carefully review and
examine each Contractor's schedule of values ("Schedule of Values"), together with any
supporting documentation or data that Owner, Construction Manager or Architect may require
from the Contractor. The purpose of such review and examination shall be to protect Owner
from an unbalanced Schedule of Values that allocates greater value to certain elements of the
Work than is indicated by such supporting documentation or data or than is reasonable under the
circumstances. If the Schedule of Values is not found to be appropriate, or if the supporting
documentation or data is deemed to be inadequate, and unless Owner directs Construction
Manager to the contrary in writing, the Schedule of Values shall be returned to the Contractor for
revision or supporting documentation or data. After making such examination, if the Schedule of
Values is found to be appropriate as submitted, or if necessary, as revised, Construction Manager
shall sign the Schedule of Values thereby indicating its informed belief that the Schedule of
Values constitutes a reasonable, balanced basis for payment of the Contract Price to the
Contractor. Construction Manager shall not sign such Schedule of Values in the absence of such
belief unless directed to do so, in writing, by Owner.
4.7.8 Construction Manager shall promptly examine, study, approve or
otherwise respond to each Contractor's shop drawings and other submittals. Construction
Manager's approval of such submittal shall constitute its representation to Owner that such
submittal is in general conformance with the Construction Documents, Construction
Management Plan and Project Schedule. After Construction Manager's review, Construction
Manager shall promptly forward such submittals to Architect, with Construction Manager's
comments attached, for review, approval, rejection or other response. Construction Manager
shall promptly forward information or actions received from Architect to the appropriate
Contractor.
4.7.9 Construction Manager shall carefully observe the Work of each
Contractor whenever and wherever necessary, and shall, at a minimum, observe Work at the
Project site no less frequently than each standard workday. The purpose of such observations
shall be to determine the quality and quantity of the Work in comparison with the requirements
of the Construction Contract. In making such observations, Construction Manager shall protect
Owner from continuing deficient or defective Work, from continuing unexcused delays in the
schedule, and from overpayment to a Contractor. Following each observation, Construction
Manager shall submit a written report of such observation to Owner and Architect together with
any appropriate comments or recommendations.
4.7.10 Construction Manager shall reject, in writing, any Work of a
Contractor that is not in compliance with the Construction Documents unless otherwise directed
by Owner in writing.
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4.7.11 Construction Manager shall procure, for reimbursement by Owner
pursuant to Section 6.2.3 below, those "general conditions" items identified for procurement by
the Construction Manager in the Construction Management Plan.
5. SCHEDULE.
5.1 Schedule of Performance.
Construction Manager shall commence the performance of its obligations under
this Agreement upon Owner's notice to proceed and shall diligently and expeditiously continue
its performance in accordance with the Project Schedule until all services hereunder have been
fully completed. The time limits established by the Project Schedule are of the essence and shall
not be exceeded by Construction Manager without Owner's prior written consent or as permitted
in Section 5.2 below.
5.2 Delays.
If Construction Manager is delayed at any time in progress of its services under
this Agreement by an act or neglect of Owner, or an employee of Owner, or of a separate
contractor employed by Owner, or by changes in its scope of work, unavoidable casualties, or
other causes beyond Construction Manager's reasonable control or by other causes which Owner
determines may justify the delay, then the Project Schedule shall be equitably adjusted for such
reasonable time as Owner may determine to be appropriate for the extent of the delay.
Construction Manager's sole right and remedy against Owner shall be an extension of time and
reimbursable expenses pursuant to Section 6.2 unless such delay is caused by acts of Owner
constituting active interference with Construction Manager's performance, and only to the extent
such acts continue after Construction Manager furnishes Owner with written notice of such
interference. In the event of delay from active interference by Owner, Construction Manager's
sole right and remedy shall an equitable adjustment in its compensation pursuant to Article 7
below.
6. COMPENSATION
6.1 Construction Manager's Fee.
As full compensation for Construction Manager's performance under this
Agreement, Owner agrees to pay Construction Manager a fee of Five Hundred Seventy-four
Thousand and No/100ths Dollars ($574,000.00) (the "Construction Manager's Fee") plus
reimbursable expenses set forth in Section 6.2 below. For purposes of progress payments,
Construction Manager's compensation shall be divided into the following phases:
Development Strategies Phase
Site Preparation Phase
Preliminary Design Phase
Construction Documents Phase
Bidding Phase
Construction Phase
Five Percent
( 5%)
Five Percent
( 5%)
Ten Percent
( 5%)
Twenty Percent
(20%)
Five Percent
( 5%)
Sixty Percent
(60%)
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The Construction Manager's Fee includes Construction Manager's overhead, profit, home office
expenses, transportation expenses and field office supplies and expenses, such as
communications (i.e., telephones, cell phones, facsimiles) and photocopies. The Construction
Manager's Fee also includes the necessary and appropriate principal level management of the
Project, the efforts of the Project Manager (identified in Section 6.2 below) during the
construction phase, and clerical support.
6.2 Reimbursable Expenses.
6.2.1 Professional Staff Reimbursables. Owner shall reimburse
Construction Manager for the direct personal expense (i.e., payroll plus related taxes, insurance
and customary benefits) of certain professional staff when actively working in furtherance of the
Project. Those certain professional staff and their rates are identified below:
Position
Name
Rate Per Hour
Project Manager
Gene R. Bennett
$63.50
Project Engineer
Wesley Bettis, Jr.
$45.90
Project Superintendent
Gene Landon
$40.40
Project Foreman
Brian Weinaught
$22.90
6.2.2 If any of the professional staff identified above leaves the
employment of Construction Manager or otherwise becomes unavailable, the Construction
Manager shall promptly submit the name, rate and qualifications of a suitable replacement to
Owner for approval, which approval shall not be unreasonably withheld. Construction Manager
guarantees that the efforts of the reimbursable professional staff will not exceed the amounts set
forth in subsections (a) below for preconstruction services (i.e., the services specifically set forth
in Sections 4.2 to 4.6 above) and subsection (b) below for construction services (i.e., the services
specifically set forth in Section 4.7 above). If the size (i.e., 80,000 square feet), complexity (i.e.,
four story, surface parking), Owner's schedule (i.e., six months Preconstruction Phase Services,
eighteen months Construction Phase Services), Project Budget (i.e., $12,200,000.00),
procurement method (i.e., no long lead time and/or expedited materials), and/or bidding process
(i.e., two bid packages, no rebids) materially changes, Owner and Construction Manager agree
that the not -to -exceed limits set forth below shall be adjusted up or down accordingly based upon
the actual number of hours worked in furtherance of the change by the Project Manager, Project
Engineer, Project Superintendent, and Project Foreman.
(a) Preconstruction Phase Services
An amount not -to -exceed Twenty-nine Thousand Eight Hundred
Eighteen and No/100ths Dollars ($29.818.00), which is based on
the following expected efforts over a six (6) month period for
preconstruction services:
Position Months Hrs/Mo. Rate/hour Cost .
Project Manager 6 32 $63.50 $12,192
Project Engineer 6 64 $45.90 $17.626
Total $29,818
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(b) Construction Phase Services
An amount not -to -exceed Two Hundred Forty-nine Thousand Nine
Hundred Ninety-four and No/100ths Dollars ($249,994.00), which
is based on the following expected efforts over a eighteen (18)
month period for construction services:
Position Months
Hrs/Mo.
Rate/hour
Cost
Project Manager 18
32
$63.50
In CMF
Project Engineer 18
64
$45.90
$ 52,877
Project Superintendent 18
173
$40.40
$125,806
Project Foreman 18
173
$22.90
$ 71.311
Total
$249,994
6.2.3 "General Conditions" Reimbursables. Owner shall reimburse
Construction Manager for the "general conditions" items designated for procurement by the
Construction Manager under the Construction Management Plan at the cost thereof incurred by
the Construction Manager.
6.2.4 Records of Reimbursable Expenses. Construction Manager
shall maintain full and detailed records of all reimbursable expenses and exercise such controls
as may be necessary for proper financial management and control of the Project. Such records
shall be made available for inspection by Owner during normal business upon three (3) days
notice. Construction Manager shall maintain such records for a period of five (5) years from the
completion or termination of Construction Manager's services under this Agreement.
6.3 Payments.
6.3.1 As a condition precedent for any payment due under this
Article 0, Construction Manager shall submit to Owner a monthly application for payment no
later than the fifth day of the calendar month for services properly rendered and reimbursable
expenses properly incurred during the preceding month. The Construction Manager's Fee
earned shall be calculated as a percentage of each phase completed. Reimbursable expenses
shall be separately itemized and supported by invoices, timesheets or other data substantiating
Construction Manager's right to payment as Owner may require. Hourly services shall be
described with reasonable particularity each service rendered, the date thereof, the time
expended, and the persons rendering such service. Each invoice shall be signed by Construction
Manager, which signature shall constitute Construction Manager's representation to Owner that
(i) the services indicated in the invoice have reached the level stated and have been properly and
timely performed, (ii) the reimbursable expenses included in the invoice have been reasonably
incurred in accordance with this Agreement or otherwise approved by Owner in writing, (iii) all
obligations of Construction Manager covered by prior invoices have been paid in full, and (iv)
the amount requested is currently due and owing, there being no reason known to Construction
Manager that payment or any portion thereof should be withheld. Submission of Construction
Manager's invoice for final payment shall further constitute Construction Manager's
representation to Owner that, upon receipt by Owner of the amount invoiced, all obligations of
Construction Manager to others, including its consultants, incurred in connection with the
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Project, will be paid in full. During the construction phase, Construction Manager shall present
its statement of services to Owner concurrently with the approved Certificates for Payment,
when possible.
6.3.2 Owner shall pay Construction Manager sums properly invoiced
within 30 days of Owner's receipt of such invoice. If payment is not made within thirty (30)
days, the outstanding balance shall bear interest at the rate of .75% per month until paid.
7. CHANGES
Changes in Construction Manager's services (not involving a cardinal change to
the scope of the services) may be accomplished after the execution of this Agreement upon
Owner's request or if Construction Manager's services are affected by any of the following:
(a) A change in the instructions or approvals given by Owner that
necessitate revisions to previously prepared documents or the reperformance of
previously performed services;
(b) Significant change to the Project, including, but not limited to size,
quality, complexity, Owner's schedule, budget or procurement method;
(c) Construction Manager performs additional services because of
active Owner interference pursuant to Section 5.2 above, or
(d) Preparation for and attendance at a dispute resolution proceeding
or a legal proceeding except where Construction Manager is a party thereto or
where the Construction Manager's performance is an issue in such proceeding.
Except as otherwise set forth in this Agreement, if any of the above circumstances materially
affect Construction Manager's services, Construction Manager shall be entitled to an equitable
adjustment in the Schedule of Performance, the Construction Manager's Fee and/or the not -to -
exceed limits for reimbursable expenses, as mutually agreed by Owner and Construction
Manager. Prior to providing any additional services, Construction Manager shall notify Owner
of the proposed change in services and receive Owner's approval for the change. Except for a
change due to the fault of Construction Manager, a change shall entitle Construction Manager to
an equitable adjustment in the Schedule of Performance, Construction Manager's Fee and/or the
not -to -exceed limits for reimbursable expenses as mutually agreed by Owner and Construction
Manager.
8. CLAIMS.
8.1 Claims.
In the event that any claim, dispute or other matter in question between Owner
and Construction Manager arising out of or related to this Agreement or the breach hereof (a
"Claim"), Owner and Construction Manager shall first endeavor to resolve the Claim through
direct discussions. Claims must be initiated by written notice. The responsibility to substantiate
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Claims rests with the party making the Claim. Except as otherwise agreed in writing,
Construction Manager shall continue to diligently perform its obligations under this Agreement
and Owner shall continue to make payments in accordance with this Agreement pending the final
resolution of any Claim. Construction Manager acknowledges that Owner's ability to evaluate a
Claim depends in large part on Owner being able to timely review the circumstances of the
Claim. Therefore, Construction Manager agrees that it shall submit a Claim to Owner by written
notice no later than twenty-one (21) calendar days after the event or the first appearance of the
circumstances giving rise to the Claim, and that such written notice shall set forth in detail all
facts and circumstances supporting the Claim.
8.2 Mediation.
All Claims shall be subject to mediation as a condition precedent to the institution
of legal or equitable proceedings by either party. Request for mediation shall be filed in writing
with the other party to this Agreement. The request may be made concurrently with the filing of
a legal or equitable proceeding but, in such event, mediation shall proceed in advance of legal or
equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the
date of filing, unless stayed for a longer period by agreement of the parties or court order. The
parties shall endeavor to mutually agree on an independent, professional mediator within 15 days
of the request for mediation. The parties shall endeavor to have the mediation completed within
60 days of the request for mediation. The parties shall share the mediator's fee and any filing
fees equally. The mediation shall be held in the place where the Project is located, unless
another location is mutually agreed upon. Agreements reached in mediation shall be enforceable
as settlement agreements in any court having jurisdiction thereof. Owner and Construction
Manager agree that all parties with an interest in a Claim being mediated may be included in the
mediation, including, but not limited to, Architect and Contractors.
9. SUSPENSION AND TERMINATION
9.1 Suspension by Owner For Convenience.
Owner may order Construction Manager in writing to suspend, delay, or interrupt
the performance of this Agreement, or any part thereof, for such period of time as Owner may
determine to be appropriate for its convenience and not due to any act or omission of
Construction Manager. In that event, Construction Manager shall immediately suspend, delay or
interrupt the performance of this Agreement, or that portion of this Agreement, as ordered by
Owner. On the resumption of Construction Manager's services, Construction Manager's Fee and
Project Schedule shall be equitably adjusted for reasonable costs and delay resulting from any
such suspension.
9.2 Termination by Owner for Convenience.
Upon written notice to Construction Manager, Owner may, without cause,
terminate this Agreement. Construction Manager shall follow Owner's instructions regarding
shutdown and termination procedures, strive to mitigate all costs and stop the performance of its
services. Upon such termination, Construction Manager shall invoice Owner for all services
actually performed and any reasonable costs or expenses incurred by Construction Manager in
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connection with the termination (such as services necessary to shutdown performance), but not
lost profits, unabsorbed overhead or lost opportunity).
9.3 Termination by Owner for Cause.
If Construction Manager fails to fully and faithfully perform its duties and
responsibilities under this Agreement, Owner may give Construction Manager written notice of
such failure and Owner's intent to terminate Construction Manager's services if Construction
Manager fails to commence and diligently continue satisfactory correction of such failure within
ten (10) days. If Construction Manager fails to commence and diligently continue satisfactory
correction of the failure within such 10 -day period, Owner may terminate Construction
Manager's services by written notice. Upon such termination, Construction Manager shall not
be entitled to receive further payment until the Project is finished. If the unpaid balance of
Construction Manager's Fee exceeds costs of finishing Construction Manager's services and
other damages incurred by Owner, such excess shall be paid to Construction Manager. If such
costs and damages exceed the unpaid balance, Construction Manager shall pay the difference to
Owner.
9.4 Termination by Construction Manager.
Upon ten (10) days' prior written notice to Owner, Construction Manager may
terminate this Agreement if (i) the progress of the Project has been suspended by Owner for
convenience for a period of ninety (90) days through no fault of Construction Manager; (ii)
Owner fails to pay Construction Manager in accordance with this Agreement and Construction
Manager has not defaulted; or (iii) Owner otherwise breaches this Agreement or fails to perform
its duties and responsibilities under this Agreement and Owner has failed to cure the breach or
failure to perform within ten (10) days after Construction Manager provides such written notice
of the breach or failure to perform to Owner. Upon such termination, Construction Manager
shall invoice Owner for all services actually performed and any reasonable costs or expenses
incurred by Construction Manager in connection with the termination (such as services necessary
to shutdown performance), but not lost profits, unabsorbed overhead or lost opportunity).
10. GENERAL PROVISIONS
10.1 Ownership of Work Product.
All documents prepared by Construction Manager for the Project shall become
and be the sole property of Owner, and Owner shall be deemed to be Owner of all common law,
statutory and other reserved rights thereto, including copyrights. Construction Manager may
keeps copies of such documents for its records and for its future professional endeavors.
10.2 Insurance.
10.2.1 Errors and Omissions Liability. Construction Manager shall
provide errors and omissions liability insurance on an aggregate limits "claims made" basis in an
amount not less than Two Million Dollars ($2,000,000). Construction Manager shall either (i)
maintain the specified levels of aggregate limits "claims made" insurance for no less than three
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years after completion or termination of Construction Manager's services under this Agreement,
or (ii) provide tail coverage for claims, demands or actions reported within six (6) years after
completion or termination of Construction Manager's services under this Agreement for acts or
omissions during the term of this Agreement.
10.2.2 General Commercial Liability. Construction Manager shall
maintain at all times commercial general liability insurance and excess liability coverage on
occurrence form basis (standard, unmodified) with products and completed operations coverage
in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million
Dollars ($2,000,000) annual aggregate.
10.2.3 Worker's Compensation. Construction Manager will maintain
at all times such worker's compensation and employer's liability coverage insurance as required
by the laws of the State in which the Project is located and any other state in which Construction
Manager or its employees perform services for Owner. The policy must be endorsed to include a
waiver of subrogation.
10.2.4 Additional Insureds. Upon Owner's request, Construction
Manager shall have Owner and Owner's lender, if any, named as additional insureds under all
Construction Manager's liability insurance policies (not including errors and omissions and
workers' compensation insurance).
10.2.5 Certificates of Insurance. Construction Manager shall provide
certificates of insurance issued by the insurer to Owner for each policy required under this
Section 10.1 and, if requested by Owner, copies of each insurance policy. Each certificate issued
to Owner shall contain the following covenant of the issuer: "Should any of the above described
policies be cancelled before the expiration date thereof, the issuing company will mail 30 days
written notice to the certificate holder."
10.2.6 Construction Manager's Consultants. Construction Manager
shall require its consultants to maintain at all times insurance coverages consistent with the
consultant's role on the Project and reasonably acceptable to Owner.
10.3 Payment and Performance Bonds.
If and when requested by Owner, Construction Manager shall provide Owner with
a payment and performance bond or bonds in the amounts requested by Owner to secure the
construction manager's obligations hereunder. The cost of such bond or bonds shall be a
reimbursable expense pursuant Section 6.2.3 above.
10.4 Recitals and Exhibits.
The recitals above and the exhibits referred to in this Agreement and attached
hereto are incorporated into the agreement as if set out in full in the body of the Agreement. In
the event of a conflict between any exhibit and the body of this Agreement, the Agreement shall
control.
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10.5 Counterparts; Facsimile Transmission.
This agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which, taken together, shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this agreement via
facsimile transmission shall be as effective as delivery of an original signed copy, provided that
an original signed copy shall be delivered to the party entitled thereto within five (5) business
days after such facsimile transmission.
10.6 Attorneys' Fees.
In the event of any controversy, claim or action being filed or instituted between
the parties to this agreement to enforce the terms and conditions of this agreement or arising
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, incurred by
the prevailing party, whether or not such controversy or claim is litigated or prosecuted to
judgment. The prevailing party will be that party who was awarded judgment as a result of trial
or arbitration and determined to be the prevailing party by the judge or arbitrator.
10.7 Governing Law.
This agreement shall be governed by the laws, including conflicts of laws, in the
State of Idaho as an agreement between residents of the State of Idaho and to be performed
within the State of Idaho.
10.8 Venue.
As a material part of the consideration for this agreement, each of the parties
hereto agrees that in the event any legal proceeding shall be instituted between them, such legal
proceeding shall be instituted in the courts of Ada County, State of Idaho, and each of the parties
hereto agrees to submit to the jurisdiction of such courts.
10.9 Grammatical Usage.
In construing this agreement, feminine or neuter pronouns shall be substituted for
those masculine in form and vice versa, plural terms shall be substituted for singular and singular
for plural in any place in which the context so requires, and the word "including" shall be
construed as if the words "but not limited to" appear immediately thereafter.
10.10 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and assigns. Construction
Manager shall not assign its rights hereunder, nor shall it delegate any of its duties hereunder,
without the written consent of Owner. Owner may assign this Agreement to any affiliated entity
or to any lender providing construction financing without Construction Manager's prior written
consent. Construction Manager agrees to execute all consents reasonably required to facilitate
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such an assignment. If either party makes such an assignment, that party shall nevertheless
remain legally responsible for all obligations under this Agreement, unless otherwise agreed by
the other party.
10.11 Headings.
The headings contained in this agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation hereof.
10.12 Additional Acts.
Except as otherwise provided herein, in addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by the parties, the parties
hereby agree to perform, execute and/or deliver or cause to be performed, executed and/or
delivered any and all such further acts, deeds and assurances as any party hereto may reasonably
require to consummate the transaction contemplated hereunder.
10.13 Time of Essence.
All times provided for in this agreement, or in any other document executed
hereunder, for the performance of any act will be strictly construed, time being of the essence.
10.14 Notice.
All notice between the parties shall be deemed received when personally
delivered or when deposited in the United States mail postage prepaid, registered or certified,
with return receipt requested, or sent by telegram or mail -o -gram or by recognized courier
delivery (e.g. Federal Express, Airborne, Burlington, etc.) addressed to the parties, as the case
may be, at the address set forth below or at such other addresses as the parties may subsequently
designate by written notice given in the manner provided in this Section:
Owner: To be determined by Owner. Upon Owner's selection of
its authorized representative, Owner will provide Architect
the name and contact information for such representative.
With a copy to: Office of the City Clerk
City of Meridian
33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-888-4433
Facsimile: 208-884-8119
Email: bergw@meridiancity.org
City Attorney's Office
City of Meridian
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33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-898-5506
Facsimile: 208-884-8723
Email: bairdt@meridiancity.org
Construction Manager: Gene R. Bennett, Project Manager
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531
Email: gbennett@petrainc.net
With a copy to: Patrick C. Kershisnik, Esq.
PETRA INCORPORATED
9056 W. Blackeagle Drive
Boise, Idaho 83709
Telephone: 208-323-4500
Facsimile: 208-323-4507
Mobile: 208-860-7531
Email: pkershisnik@petrainc.net
10.15 Rights and Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by any party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same time or different times, of any other
rights or remedies for the same default or any other default by the other party. In the event of a
default, the parties have all of the rights and remedies afforded in law or in equity, except as
provided herein to the contrary.
10.16 Third -Party Beneficiaries.
Nothing contained herein shall create any relationship (contractual or otherwise)
with, or any rights in favor of, any third party. Construction Manager's duties and
responsibilities shall not relieve any other party, including Construction Manger and Contractors,
from their duty to fully and faithfully perform their contractual and other obligations to Owner.
10.17 Integration; Waivers.
This is the entire agreement between the parties with respect to the matters
covered herein and supersedes all prior agreements between them, written or oral. This
Agreement may be modified only in writing signed by both parties. Any waivers hereunder must
be in writing. No waiver of any right or remedy in the event of default hereunder shall constitute
a waiver of such right or remedy in the event of any subsequent default.
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10.18 Severability.
If any term or provision of this agreement shall, to any extent be determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this agreement
shall not be affected thereby, and each term and provision of this agreement shall be valid and be
enforceable to the fullest extent permitted by law; and it is the intention of the parties hereto that
if any provision of this agreement is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, the provision shall have
the meaning which renders it valid.
[end of text]
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The parties have executed this Agreement effective as of the date first set forth above.
"Owner" CITY OF MERIDIAN,
an Idaho municipal corporation
ATTEST:
William G. Berg, Jr.
City Clerk
Date: 9-9-06 -
By.—
Tamm e eerd
Mayo
Date: g —;7-49 6
GI�
"Construction Manager" PETRA INCORPORATED,
an Idaho corporation
CEO
=��
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PAGE 24
STATE OF IDAHO )
ss
County of Ada )
On this q` day of Ire 0 2006, before me, a Notary Public, personally
appeared TAMMY DE WEERD and WILLIA G. BERG, JR. known or identified to me to be
the MAYOR and CITY CLERK, respectively, of the CITY OF MERIDIAN, who executed the
instrument or the person that executed the instrument of behalf of said City, and acknowledged
to me that such City executed the same.
(SEAL)
STATE OF IDAHO )
ss
County of Ada )
Shv
Notary Public for Idaho
Residing at: 0� tb Gz -: d
Commission expires: /t -- / S--- ((
On thisday of Ages, 2006, before me, a Notary Public, personally
appeared JERRY S. FRANK, known or Identified to me to be the CEO of PETRA
INCORPORATED, an Idaho corporation, who executed the instrument or the person that
executed the instrument of behalf of such corporation, and acknowledged to me that such
corporation executed the same.
f 4 G YE CU4+,.
o •,
f4�rjll?
(SEAL) No ublic for IdahoResiding at: pC *;
Commission expires:p o
''tett_ up ID �°
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ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 18.00 6
+. Z � % 7 %/ BOISE IDAHO 08/10/06 04:22 PM
DEPUTY Gall Garrett
V RECORDED -REQUEST OF
First American 106128228
EXHIBIT "A"
PUBLIC PARKING LOT EASEMENT
THIS PUBLIC PARKING LOT EASEMENT (the "Easement"), is made and entered into
this 3,r d. day of , 2006, by and between Dave and Karen Buich, husband and wife,
hereinafter referred to s "Buich" or "Grantor" and THE CITY OF MERIDIAN, an Idaho
Municipal Corporation, hereinafter referred to as "City" or "Grantee."
WITNESSETH:
FOR GOOD AND SUFFICIENT CONSIDERATION, IT IS AGREED:
SECTION 1. Recitals.
1.1 Grantor owns the real property located in Ada County, Idaho more particularly
described as Lot 20 of the Amended Plat of Block No. 1 of the townsite of
Meridian located in the SW 1/4 of Section 7, T3N, RIE, Ada County, Idaho
(referred to herein as "Lot 20"). Lot 20 is currently developed and used as the
easterly portion of a public parking lot located at 55 E. Broadway Avenue,
Meridian.
1.2 City operates a public parking lot on Lots 20 and 21, open for the use of the
general public. Pursuant to the terms of a Public Right of Way easement (Ada
County Instrument Number 106083740) the public parking lot also acts as a
traffic circulation link between the terminus of an adjacent alley to the south of
the parking lot and Broadway Avenue to the north.
1.3 As a condition of approving a real property exchange agreement between City and
BUICH, City desires to obtain an easement from BUICH over and across Lot 20
so that Lot 20 will remain open to the public for parking lot and circulation
purposes until such time as either adjacent property develops.
SECTION 2. Grant and Authorized Use; Non-exclusive Easement,• Relocation.
2.1 Grantor hereby grants to CITY a perpetual easement in gross upon, over across
and through Lot 20 for pedestrian and vehicular ingress, egress, and vehicle
parking for the benefit of the general public.
2.2 The easement on Lot 20 is intended to be used in conjunction with the balance of
the parking lot on Lot 21, owned by City.
2.3 Walls, buildings, curbs or other temporary or permanent structures will not be
constructed on Lot 20 that would in any material way restrict or limit the easement
granted herein for the purposes set forthrherein.
Parking Lot Easement, page 1
SECTION 3. Improvements• Repair and Maintenance
3.1 CITY acknowledges that the improvements on the Servient are sufficient for the
purposes of this easement and that no additional construction shall be required by
Grantor as a condition of this Easement.
3.2 City agrees to maintain and repair the improvements at its sole cost and expense.
SECTION 4. Indemnification.
Subject to the provisions of, and limits of liability set forth in, the Idaho Tort Claims Act,
CITY shall indemnify and hold harmless Grantor from and against all claims, actions or
judgments and expenses (including, without limitation, reasonable attorneys' fees incurred
by Grantor in defense thereof) for damages, injury or death caused by or arising out of the
public's use of the Lot 20 for the purposes set forth in this Easement.
Grantor shall indemnify and hold harmless CITY from and against all claims, actions or
judgments and expenses (including, without limitation, reasonable attorneys' fees incurred
by Grantor in defense thereof) for damages, injury or death caused by or arising out of the
public or private use of Grantor's adjacent real property.
SECTION 5. Attorneys Fees and Costs
In any suit, action or appeal therefrom to enforce or interpret this Easement, the
prevailing party shall be entitled to recover its costs incurred therein, including reasonable
attorneys' fees.
SECTION 6. Term; Extinguishment
The term of this Easement is perpetual, unless amended or terminated by mutual
agreement of the parties. However, this Easement shall automatically terminate in the
event that either adjacent property develops (triggered upon the approval of a building
permit) because the current configuration of the public parking lot will no longer be
required and the essential purpose of this Easement shall no longer exist. The "adjacent
properties" referred to in this section of this agreement are commonly known as the Buich
parcel at the northeast corner of Main Street and Broadway, and the City Hall site on the
Creamery parcel to the west of Lot 22.
SECTION 7. Covenants Run with the Land.
Throughout the term of this Easement, it shall be a burden upon Lot 20 and shall for the
benefit of the general public, and shall run with the land.
Parking Lot Easement, page 2
SECTION 8. Notices.
All notices given pursuant to this Easement shall be in writing and shall be given by
personal delivery, by United States Mail Certified, Return Receipt Requested, or other
established express delivery service (such as Federal Express), postage or delivery charge
prepaid, addressed to the appropriate party at the address set forth below.
Grantor: Dave and Karen Buich
82 East State Street, Suite `B"
Eagle, ID 83616
CITY: City of Meridian, Attention City Clerk
22 East Idaho Avenue
Meridian, Idaho 83642
SECTION 9. Recordation.
This Easement shall be recorded in the Official Real Property Records of Ada County,
Idaho.
Grantor covenants to CITY that the general public shall enjoy the quiet and peaceful
possession of the Lot 20 for the purposes granted herein; and, (b) Grantor warrants to the
CITY that Grantor is lawfully seized and possessed of the Lot 20 and has the right and
authority to grant this Easement to CITY, or that such right and authority shall exist at the
time this Easement is recorded in the Official Real Property Records of Ada County,
Idaho.
IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed the
day, month and year first set forth above.
[END OF TEXT]
Parking Lot Easement, page 3
KAREN BUICH
Grantee
CITY OF MERIDIAN
cf
Cid=.` 'Vdipmy
rd, Mayor
1�1 e"17
Atte
sg,- City Clerk
99
Parking Lot Easement, page 4
State of Idaho)
) ss.
County of Ada)
On this ,fU day ofACjS� in
Notary Public
the year 20L�, before me,
in and for the State of Idaho,
per onally appeared Dave Buich known or identified to me to be the person who executed this
instrument and acknowledged to me that he executed the same.
IN WITNE
day and year irA
SOT A*
Ole' 4D t�
State of Idaho )
) ss.
County of Ada)
)F, I have hereunto set my hand and affixed my official seal the
rst above written.
No ary Public f the State of Idaho
Residing at U`C , Idaho
My Commission expires 101-7,6
O this J l day of &6� , in the year 2N6 before me,
a Notary Public in and for the State of Idaho,
personally appeared Karen Buich known or identified to me to be the person who executed this
instrument and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
low
IkA L, 4. *'. j
.��•' ��° ®sC Not Public fir the State of Idaho
'00 A* 1 Residing at0!t , Idaho
My Commission ehires
pUB LAG4.
Parking Lot Easement, page 5
d
State of Idaho)
) ss.
County of Ada)
On this {� day ofLL-
V in the year 2006, before me,
k tUl rYt - 41, , a Notary Public in and for the State of Idaho,
personally appeared Tammy de Weerd and William Berg, know or identified to me to be the
Mayor and City Clerk of the City of Meridian, Idaho, the persons who respectively executed and
attested this instrument on behalf of said municipal corporation, and acknowledged to me that
such municipal corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Parking Lot Easement, page 6
01
( i(i)) Xn
Notary Public for the State of Idaho
Residing at 1%,� , Idaho
My Commission expires