HomeMy WebLinkAboutMeridian Center Cal, LLC. City Utilities Reimbursement Agreement Meridian Town Center Phase 3 Eagle Road Water Main Improvement Item#10.
Reimbursement
CITY UTILITIES REIMBURSEMENT AGREEMENT
Meridian Town Center Phase 3
This CITY UTILITIES REIMBURSEMENT AGREEMENT("Agreement")is made and entered
into this 9th day of February 2021 ("Effective Date"), by and among the CITY OF MERIDIAN, a
municipal corporation of the State of Idaho ("City") and Meridian CenterCal, L.L.C., a Delaware limited
liability company, or its assigns ("Developer"). City and Developer may be referred to in this Agreement
individually as a"Party"or collectively as the"Parties"as warranted under the circumstances.
RECITALS
A. Developer is developing a retail complex facility at the intersection of Eagle Road and East
Fairview Avenue in Meridian, Idaho.
B. Developer entered into that certain Sales Tax Anticipation Revenue Reimbursement
Agreement with the Idaho Transportation Department ("ITD") and the Ada County Highway District
("ACHD") dated effective September 23', 2011, as amended ("STAR Agreement") in connection with
Developer's retail complex facility.
C. Pursuant to the STAR Agreement, Developer is planning to construct certain
improvements to Eagle Road,an ITD facility,known as the"Phase 3"improvements,as generally described
and set forth in the STAR Agreement(the"Phase 3 Eagle Road Improvements").
D. City has identified certain Utility Improvements (defined below), located within ITD's
right-of-way, that City desires to be carried out concurrently with the Phase 3 Eagle Road Improvements
being carried out by Developer.
F. The Parties desire to enter into this Agreement to reimburse Developer for costs incurred
by Developer in connection with the installation of the Utility Improvements on the terms and conditions
set forth in this Agreement.
AGREEMENT
NOW THEREFORE,for good and valuable consideration,the receipt and sufficiency of which are
hereby acknowledged by the Parties and the recitals set forth above, which are hereby acknowledged by
the Parties as true and correct and incorporated herein,the Parties hereby agree as follows:
1. Water Main Improvements.
a) City desires to complete the abandonment and relocation of certain water main infrastructure
utilities as further described in Exhibit A, attached hereto and incorporated herein (the "Utility
Improvements"), and requests that the Utility Improvements be considered for inclusion by the
Developer in the Phase 3 Eagle Road Improvements project. City will design and engineer the
Utility Improvements and provide Developer with final drawings and specifications for the
construction of the Utility Improvements(the"Construction Documents")on or before March 1,
2021. If City timely delivers the Construction Documents, Developer agrees to include the
construction of the Utility Improvements, in accordance with the Construction Documents, in the
CITY UTILITIES REIMBURSEMENT AGREEMENT—Meridian CenterCal Page 1 of page 181
Item#10.
bid package for the Phase 3 Eagle Road Improvements being issued by Developer pursuant to the
STAR Agreement and subject to the terms and conditions set forth in this Agreement.
b) The Parties acknowledge and agree that Developer's obligation to bid the Utility Improvements
and construct the Utility Improvements,as set forth in this Agreement,is expressly conditioned on:
(i) ITD's written approval of the Utility Improvements and Construction Documents; and (ii)
Developer moving forward with and constructing the Phase 3 Eagle Road Improvements.
c) City's current estimated cost for the Utility Improvements is Eight Hundred Fifteen Thousand Five
Hundred Dollars ($815,500.00); however, the Parties acknowledge and agree this is only an
estimate and the actual cost of the Utility Improvements may be greater or less than City's estimate.
d) Promptly after the bidding of the Phase 3 Eagle Road Improvements pursuant to the STAR
Agreement, Developer shall furnish City with: (i) an abstract of all bids received for the Utility
Improvements;(ii)the City's portion of the bid that Developer proposes for inclusion of the Utility
Improvements into the construction contract for the Phase 3 Eagle Road Improvements (the
"Utility Bid"); and(iii)the date that City must respond to Developer,which date must not be less
than five (5)business days after City's receipt of the bid abstract and Utility Bid(the "Response
Deadline").City agrees to promptly review the information provided by Developer,and Developer
agrees to reasonably consult with City regarding the Utility Bid.
e) On or before the Response Deadline, City will provided Developer with a written notice stating
that: (i) City approves the Utility Bid ("Approval Notice") or(ii) City does not approve the Bid
("Disapproval Notice"). If City timely delivers an Approval Notice, then Developer agrees to
accept the Utility Bid and include the same in the award of the construction contract for the Phase 3
Eagle Road Improvements. If City timely delivers a Disapproval Notice,then this Agreement will
terminate and no Party will have any further obligations hereunder. City agrees that the City's
failure to deliver a Disapproval Notice to Developer prior to the Response Deadline for any
reason will constitute City's delivery of an Approval Notice as of the Response Deadline.
f) City acknowledges that changes may be necessary for the proper and complete construction of the
Utility Improvements, including, but not limited to, changes made necessary by site conditions
and/or errors and omissions in the Contract Documents. City agrees to promptly respond to any
request by Developer for a change order related to the Utility Improvements, and City agrees to
respond by any deadline identified in the change order request (which deadline must not be less
than five (5) business days after City's receipt of the request, absent urgent circumstances). City
agrees that it will not unreasonably withhold its approval of any change order request. Change
orders deemed reasonable would be: changes directed by the City of Meridian in writing, changes
reasonably required by unforeseen site conditions, changes reasonably required by errors or
omissions in the Contract Documents, and changes reasonably required by force majeure events.
Additionally,prices of change order must represent market value for work to be performed(given
the circumstances). If City does not timely approve any change order request, City will cooperate
with Developer to promptly resolve City's concerns.Developer will not be under any obligation to
incur any expense related to the Utility Improvements unless City first agrees to reimburse
Developer for the expense.
g) Upon substantial completion of the Utility Improvements, Developer will invoice City for the
amount of the Utility Bid and the amount of any change orders approved by City (or that should
have been approved by the City under this Agreement). City will pay the invoice in full within
thirty(30) days of City's receipt thereof.
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h) Developer will assign all of the construction contractor's representations and warranties with
respect to the Utility Improvements to City, and City agrees that City will look to the construction
contractor, and not Developer, for enforcement of the representations and warranties.
2) General Terms.
a) Reimbursement Funds. City represents and warrants that City has allocated and appropriated all
funds necessary to fully reimburse the Developer for the Utility Improvements.
b) Limited Effect of Agreement. The purpose of this Agreement is to set forth the terms for
reimbursement to Developer for installing the Utility Improvements. This Agreement imposes
obligations on City to reimburse Developer for Utility Improvements upon substantial completion
of the improvements and invoice to City, as described herein. This Agreement does not alter the
terms in the STAR Agreement or impose any new obligations or liabilities on Developer,regarding
the design or installation of improvements or otherwise. This Agreement does not alter any City
approvals related to Developer's projects. This Agreement does not alter Developer's right to
include any unreimbursed "Project Costs" (as that term is defined in the STAR Agreement) that
Developer incurs as a result of this Agreement in a sales tax rebate claim for reimbursement
pursuant to the STAR Agreement. This Agreement does not provide any new rights or remedies to
City. The Parties acknowledge and agree that the Utility Improvements are included within the
"approved transportation improvements"described in the STAR Agreement.
c) Entire Agreement.This Agreement sets forth the entire understanding and agreement of the Parties
with respect to the reimbursement contemplated herein. Other agreements referenced herein are
unaffected by the terms in this Agreement.
d) Severability. If any provision of this Agreement will be held or deemed to be or will, in fact, be
inoperative or unenforceable as applied in any particular case in any-jurisdiction because it conflicts
with any other provision or provisions or any constitution or statute or rule of public policy, or for
any other reason,such circumstances will not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance,or of rendering any other provision
or provisions herein contained invalid, inoperative or unenforceable to any extent whatever.
e) Notices. Except as otherwise provided in this Agreement, all notices, certificates or other
communications hereunder will be sufficiently given when in writing and either mailed by first
class mail,postage prepaid,with proper address as indicated below or sent by electronic mail. Any
Party may, by written notice, designate any address or addresses to which notices, certificates or
other communications to it will be sent when required as contemplated by this Agreement.
City City of Meridian
Attn: City Attorney's Office
33 E. Broadway Ave.
Meridian,Idaho 83642
Developer: Meridian CenterCal LLC
Attn: Sean Dennison
1960 E. Grand Avenue, Suite 400
El Segunda, CA 90245
Givens Pursley LLP
CITY UTILITIES REIMBURSEMENT AGREEMENT—Meridian CenterCal Page 3 of page 183
Item#10.
Attn: Jeff Bower
601 W. Bannock Street
Boise,ID 83702
Notice shall be deemed given upon actual receipt (or attempted delivery if delivery is refused), if
personally delivered or rejected.
f) Counterparts. This Agreement may be simultaneously executed in several counterparts, each of
which will be an original and all of which will constitute but one and the same instrument.
g) Governing Law.This Agreement will be governed exclusively by and construed in accordance with
the laws of the State of Idaho.
h) Exhibits.All exhibits hereto are hereby incorporated by reference as if fully set forth herein.
[end of text; signatures and exhibits follow]
CITY UTILITIES REIMBURSEMENT AGREEMENT—Meridian CenterCal Page 4 of page 184
Item#10.
IN WITNESS WHEREOF,the Parties have executed this Agreement, effective as of the Effective
Date.
CITY:
CITY OF MERIDIAN, a municipal corporation of the
State of Idaho
By: Robert E. Simison Dated:2-9-2021
Its: Mayor
DEVELOPER:
Meridian CenterCal, L.L.C., a Delaware limited liability
company
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CITY UTILITIES REIMBURSEMENT AGREEMENT—Meridian CenterCal Page 5 of page 185
Item#10.
Exhibit A
Utility Improvements
The following modifications to the water main are between Franklin Road and Leslie Drive and
constitute the Utility Improvements,which will be further detailed in the Construction Documents:
• Starting just south of E. Lanark Drive to south of the Boise Valley Railroad right-of-way
the water main will be relocated/replaced.
• The existing water main will be left in place across the Boise Valley Railroad right-of-way.
• The water main will be relocated from just north of the Boise Valley Railroad right-of-way
to East Commercial Court.
• At East Commercial Court a new crossing will be installed across Eagle Road using an
existing pipe as a sleeve.
• The water main will be abandoned from East Commercial Court to approximately 125 feet
south of Leslie Drive
• At Pine Avenue a new crossing will be installed across Eagle Road using an existing pipe
as a sleeve. Some pipe modifications are required along Pine Avenue.
• At East Florence Street a new crossing will be installed across Eagle Road using an existing
pipe as a sleeve.
• At just south of Fairview Avenue a new crossing will be installed across Eagle Road using
an existing pipe as a sleeve.
• The water main will be relocated along Eagle Road from approximately 165 feet south of
Leslie Drive to Leslie Drive. Additionally, a water main will be routed through the
Stokesberry Subdivision(NW corner of River Valley Street and Eagle Road)to an existing
water main in the Stokesberry Subdivision parking lot.
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