HomeMy WebLinkAboutBVBC Cadence Village, LLC Construction of Pickleball Court Agreement and Joint Use - Kleiner Park AGREEMENT FOR CONSTRUCTION AND JOINT USE
OF PICKLEBALL FACILITY AT KLEINER PARK
This AGREEMENT FOR CONSTRUCTION AND JOINT USE OF PICKLEBALL
FACILITY AT KLEINER PARK("Agreement") is made this 7th day of June , 2022
("Effective Date"),by and between the City of Meridian, a municipal corporation organized under
the laws of the State of Idaho ("City") and BVBC Cadence Village, LLC (`BVBC"), a limited
liability company organized under the laws of the State of Idaho (collectively, "Parties").
WHEREAS,the Parties are mutually interested in enhancing the Meridian community's
quality of life by providing and supporting recreational facilities and opportunities, including those
related to pickleball, for members of the Meridian community;
WHEREAS,the Parties recognize that through cooperation between public and private
parties,publicly-held facilities can be enhanced to meet broader community needs for athletic
programming and recreation;
WHEREAS,BVBC has proposed to construct pickleball facilities at Kleiner Park, located at
1900 N. Records Avenue, in Meridian, Idaho ("Park"), for use by residents of Bri at the Village, an
apartment building owned by BVBC and located at 2233 N. Records Way, in Meridian Idaho (Ada
County parcel no. R1343720350), as well as by members of the public;
WHEREAS,upon the expiration of this Agreement, and in consideration of past and
proposed contributions and commitments of the Parties to maintenance and upkeep of the Pickleball
Facility, the Parties agree to consider extending the term hereof, if such extension is in the best
interest of both Parties and appropriate under the circumstances;
WHEREAS, the Parties' respective governing bodies find that it is fiscally responsible and in
the best interest of the community to enter into an agreement for the construction and use of
pickleball facilities at Park;
NOW,THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and agreed, and in consideration of the mutual promises and
covenants herein contained, the Parties agree as follows:
I. CONSTRUCTION OF PICKLEBALL FACILITY
A. BVBC's obligations.
1. Construction of Pickleball Facility. BVBC shall construct in Park four(4) six-inch (6")
concrete slab courts, and related facilities, features, amenities, concrete walkway,
landscaping, and irrigation (collectively, "Pickleball Facility"), to be developed generally at
the location, and in accordance with the plan, as show in Exhibit A hereto. Such construction
shall include, but shall not necessarily be limited to, the following:
a. Configuration of courts. BVBC shall conduct survey work necessary to maximize the
number of pickleball courts, as may be configured horizontally and/or vertically, in the
desired location in Park.
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b. Specifications. BVBC shall construct the Pickleball Facility in accordance with industry
standards for such facilities. Specifically, BVBC's construction of the Pickleball Facility
shall include,but shall not be limited to, each and all of the following:
(1) Excavation of a minimum of twenty-four inches (24") of soil, removal from the site, in
order to accommodate concrete flatwork;
(2) Grading the affected area within a tolerance of two inches (2");
(3) Demarcation of regulation baselines, centerlines, sidelines, and non-volley lines;
(4) Installation of Plexipave coating over the concrete courts;
(5) Paving, sawcutting and installation of concrete slab with color coat system, five feet
(5') in width, with a concrete ribbon, as shown in Exhibit A, or post-tension concrete
with color coat system;
(6) Installation of a black vinyl-clad chain-link fence with a height of four feet (4') on the
front and back of each court, with no fencing on the courts' sides; and
(7) Installation of pickleball net posts and net systems on each court.
2. Final Completion. Upon final completion of the Pickleball Facility, BVBC shall obtain and
deliver to City:
a. Waivers of lien from any and all sub-contractors and major materials suppliers;
b. Report from an independent testing agency approving the structural soundness of the
constructed pickleball courts and installation materials and methods; and
c. Written proof of final inspection and approval of the Pickleball Facility by the Parks
Superintendent.
3. Primary Source of Contact for BVBC. BVBC shall provide City the name, e-mail address,
and telephone number of specific BVBC personnel (hereinafter`BVBC Construction
Contact") who shall serve as BVBC's primary contact between City and BVBC for all matters
regarding construction of the Pickleball Facility.
B. City's obligations.
1. Temporary construction easement conveyed. City does hereby give, grant and convey unto
BVBC a temporary easement over and across that portion of the Park reasonably necessary to
stage and use materials and equipment during the construction of the Pickleball Facility, as
directed by the Superintendent of the Meridian Parks and Recreation Department. BVBC's
right to have and to hold the said easement and right-of-way on the Premises shall be
temporary, and shall terminate upon City's Final Acceptance of the Pickleball Facility as set
forth in this Agreement. Following City's Final Acceptance of the Pickleball Facility, City
shall restore the construction easement area.
2. Amenities. City shall install any comfort and convenience amenities at the Pickleball Facility,
at City's sole election.
3. Drainage. City shall construct the drainage Swale as depicted in Exhibit A.
4. Primary Source of Contact for City. City shall provide BVBC the name, e-mail address,
and telephone number of specific City personnel (hereinafter"City Construction Contact")
who shall serve as City's primary contact between City and BVBC for all matters regarding
construction of the Pickleball Facility.
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5. Final Acceptance. Following Final Completion, as signified by BVBC's delivery of the
enumerated documentation as specified herein,the City shall execute Final Acceptance of the
Pickleball Facility, which shall be signified by City's adoption of a resolution indicating that
the City accepts the delivery of the Pickleball Facility as constructed by BVBC and delivered
to City.
II.JOINT USE OF PICKLEBALL FACILITY
A. Obligations and rights contingent on Final Acceptance. City's Final Acceptance of the
Pickleball Facility as described in this Agreement shall be contingent on, and a condition
precedent to, the obligations and rights of the Parties related to the joint use of the Pickleball
Facilities pursuant to this section II.
B. BVBC's obligations.
1. Primary Source of Contact for BVBC. BVBC shall provide City the name, e-mail address,
and telephone number of specific BVBC personnel (hereinafter"BVBC Pickleball Contact")
who shall serve as BVBC's primary contact between City and BVBC for all matters regarding
the day-to-day scheduling,use, and maintenance of the Pickleball Facility.
2. Reasonable use. BVBC shall employ best efforts to ensure that the use of the Pickleball
Facility by the residents of Bri at the Village is appropriate and reasonable, i.e.,
commensurate with typical daily use of a pickleball court and related amenities. BVBC shall
exercise best efforts to see that any and all use of the Pickleball Facility, where such use is
scheduled or authorized by BVBC, is in compliance with all laws and with City's policies
regarding use of City parks and/or facilities, including,but not limited to, such reasonable
policies as may be adopted or enacted by the Director of the Meridian Parks and Recreation
Department.
B. City's obligations.
1. Maintenance and utilities. City shall provide all usual maintenance and repair of the
Pickleball Facility and related amenities, as necessary. City shall provide all necessary
utilities to the Pickleball Facility, as needed. Except as otherwise set forth herein, City shall
repair and/or replace any utility infrastructure, amenities, and/or vegetation that are physically
damaged by use, misuse, vandalism, acts of nature, weather, or other damage or wear and
tear. City shall provide custodial services at the Pickleball Facility.
2. Scheduling. Except as otherwise set forth herein, and with due regard for BVBC's priority
use as set forth herein, City shall be solely responsible for scheduling of all use and
reservations of the Pickleball Facility.
3. Primary Source of Contact for City. City shall provide BVBC the name, e-mail address,
and telephone number of specific City personnel (hereinafter"City Pickleball Contact")who
shall serve as City's primary contact between City and BVBC for all matters regarding the
day-to-day scheduling,use, and maintenance of the Pickleball Facility.
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C. Rights of residents of Bri at the Village.
1. Definition of resident. For purposes of this Agreement, a"resident of Bri at the Village"
shall mean a person who is listed as a tenant on a valid, current lease between such person and
BVBC or BVBC's agent that leases residential living units at the Bri at the Village. The
rights granted to residents of Bri at the Village by this Agreement shall not be transferrable to
any other persons, including any agent, guest, invitee, or sublessee of a resident(s) of Bri at
the Village.
2. Priority reservation. For ten(10) years from the date of City's Final Acceptance of the
Pickleball Facility, residents of Bri at the Village shall be entitled to Priority Reservation of
the Pickleball Facility between 10:00 a.m. and 12:00 p.m. (noon) on Mondays, Wednesdays,
and Fridays ("Priority Reservation Times"). Priority Reservation shall include the rights to
reserve pickleball courts at the Pickleball Facility, at no charge, during the Priority
Reservation Times. To exercise Priority Reservation rights,residents of Bri at the Village
shall contact the Meridian Parks and Recreation Department("MPR") and reserve a pickleball
court during the Priority Reservation Times. MPR shall not allow persons who are not
residents of Bri at the Village to reserve the pickleball courts at the Pickleball Facility during
the Priority Reservation Times. However, it is agreed by the parties that at all times not
subject to a reservation confirmed by MPR, including during the Priority Reservation Times,
the Pickleball Facility and all components thereof shall be open to use by both residents of Bri
at the Village, and by the general public, on a first-come, first-served basis. Reservations at
times other than the Priority Reservation Times shall be available to both residents of Bri at
the Village, and to the general public, on a first-come, first-served basis. All reservations,
including those made by residents of Bri at the Village during Priority Reservation Times,
shall be subject to, and shall comply all respects, with any and all applicable state laws, City
ordinances, and/or City or MPR policies.
3. Collection of fees. Absent specific written approval from the Director of the Meridian Parks
and Recreation Department, no person or persons, including,but not limited to, BVBC or Bri
at the Village residents, shall be authorized to assess or collect fees from any person, persons,
or group using the Pickleball Facility, including any fee for use of the Pickleball Facility
under a Priority Reservation.
4. No right to exclude conveyed. The Priority Reservation rights granted to the residents of Bri
at the Village by this Agreement shall not include the right to exclude any law-abiding person
from Pickleball Facility or Park where such person is not interfering with the reserving party's
use thereof, nor the right to interfere with any person's concurrent, lawful use of the
Pickleball Facility or Park where such concurrent use does not conflict or interfere with the
reserving party's use. At all times when the Pickleball Facility are not reserved, including
during the Priority Reservation Times, the residents of Bri at the Village shall be on an equal
footing with the general public regarding use of Pickleball Facility, which shall include,but
shall not be limited to, reservation requirements and payment of all applicable reservation and
other fees. The residents of Bri at the Village shall exercise the Priority Reservation rights
granted by this Agreement only in accordance with the terms of this Agreement and in
accordance with any and all applicable laws and City policies.
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D. Rights of City.
1. Public park. The parties hereto expressly acknowledge that Park is a public space, the
management and scheduling of which shall at all times be within the sole purview of City.
City shall have the right to use or allow the use of Park for any and all purposes and under any
and all conditions, so long as such use does not directly interfere with a reserved use of
Pickleball Facility. All provisions of state law, Meridian City Code, and MPR policy, as such
provisions exist on the Effective Date and as may be later adopted or amended, shall apply in
Park and in Pickleball Facility. City shall have the right to close Park and/or the Pickleball
Facility for maintenance,repairs, or where closure is in the best interest of the public health,
safety, or welfare. It is acknowledged by the Parties that when Park, Pickleball Facility, or
any component of Pickleball Facility is closed, such closed area is closed to both the general
public and to residents of the Bri at the Village, and Priority Reservation rights shall not
apply.
2. Alterations/improvements to Park. City shall have the right to make alterations of Park
and/or to construct or locate fences, fixtures, structures, and/or any other improvements in or
upon Park or Park facilities, infrastructure, and vegetation, so long as such alterations,
construction, or improvements will not unreasonably affect BVBC's use of the Pickleball
Facility as set forth in this Agreement, except that City may undertake alterations,
construction, or improvements to or in Park on an immediate basis without notice to BVBC
where such action is necessary to protect the health, safety, and/or welfare of the public.
3. Collection of Fees. Except as otherwise specifically set forth in this Agreement, in
accordance with applicable law and policies, City shall have right to assess and collect
reasonable user fees from persons who use Park or the Pickleball Facility. BVBC shall not be
entitled to any user fee or portion thereof assessed and/or collected by City.
III. GENERAL PROVISIONS.
The following provisions shall be applicable during both BVBC's construction of the Pickleball
Facility, and BVBC's and City's joint use of the Pickleball Facility.
A. Notice. Communication between the BVBC Construction Contact and the City Construction
Contact regarding day-to-day matters shall occur via e-mail or telephone. Communication
between the BVBC Pickleball Contact and the City Pickleball Contact regarding day-to-day
matters (e.g., issues related to facility condition, use, scheduling, or maintenance of the Pickleball
Facility) shall occur via e-mail or telephone. All other notices required to be given by either of
the parties hereto shall be in writing and be deemed communicated when personally served, or
mailed in the United States mail, certified, return receipt requested, addressed as follows:
To City. To BVBC:
City of Meridian BVBC Cadence Village, LLC
Attn: Parks and Recreation Director Attn: Robert Phillips, Manager
33 E. Idaho Avenue 2929 W. Navigator Drive
Meridian, Idaho 83642 Suite 400
Meridian, Idaho 83642
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Any party may change its authorized representative and/or address for the purpose of this
paragraph by giving written notice of such change to the other party in the manner herein
provided.
B. Time of the essence. The Parties acknowledge and agree that time is of the essence with respect
to this Agreement, and that the failure to timely perform any of the obligations hereunder shall
constitute a breach of, and a default under, this Agreement by the party so failing to perform.
C. Assignment. BVBC shall not assign or sublet all or any portion of its respective interests in this
Agreement or any privilege or right hereunder, either voluntarily or involuntarily, without the
prior written consent of City. This Agreement and each and all of the terms and conditions hereof
shall apply to and are binding upon the respective organizations, agents, legal representatives,
successors, and assigns of the parties.
D. No agency. Neither BVBC nor its respective employees, agents, lessees, contractors, officials,
officers, servants, guests, and/or invitees shall be considered agents of City in any manner or for
any purpose whatsoever in their respective construction, use, and/or occupancy of Park or the
Pickleball Facility.
E. Insurance—BVBC. BVBC shall submit to City proof of an insurance policy issued by an
insurance company licensed to do business in Idaho protecting BVBC, and BVBC's employees,
agents, contractors, officials, officers, servants, guests, and/or invitees from all claims for
damages to property and bodily injury, including death, which may arise in connection with
construction of the Pickleball Facility. Such insurance shall name City as an additionally insured
party, and shall afford at least one million dollars ($1,000,000.00) per person bodily injury, one
million dollars ($1,000,000.00) per occurrence bodily injury, and one million dollars
($1,000,000.00) per occurrence property damage. The limits of insurance shall not be deemed a
limitation of the covenants to indemnify and save and hold harmless City as set forth in this
Agreement. If City becomes liable for an amount in excess of the insurance limits herein
provided due to the actions or omissions of BVBC or any BVBC employee, agent, contractor,
official, officer, servant, guest, and/or invitee, BVBC covenants and agrees to indemnify and save
and hold harmless City from and for all such losses, claims, actions, or judgments for damages or
liability to persons or property.
F. No warranty; use is on as-is basis. City makes no warranty or promise as to the condition,
safety, usefulness, or habitability of the Park and Pickleball Facility; BVBC and each and all of
its employees, agents, tenants, contractors, officials, officers, servants, guests, and/or invitees, and
all participants in BVBC programming related to the Pickleball Facility accept Pickleball
Facilities for all uses as they are. BVBC acknowledges that use of the Pickleball Facility carries
risks, some of which are unknown, and with that knowledge does assume all known and unknown
risks of using the Pickleball Facility.
G. Compliance with laws. In performing the scope of services required hereunder, City and BVBC
shall comply with all applicable laws, ordinances, and codes of federal, state, and local
governments.
H. Attorney fees. Should any litigation be commenced between any or all of the Parties hereto
concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as
AGREEMENT FOR DEVELOPMENT AND JOINT USE OF PICKLEBALL FACILITY AT KLEINER PARK PAG�
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may be granted, to court costs and reasonable attorneys' fees as determined by a court of
competent jurisdiction. This provision shall be deemed to be a separate contract between the
parties and shall survive any default, termination or forfeiture of this Agreement.
I. Term of Agreement. This Agreement shall become effective as of the Effective Date upon
execution by all parties. As to BVBC, except as otherwise set forth herein, this Agreement shall
expire upon City's Final Acceptance of the Pickleball Facility, unless earlier terminated or
extended in the manner as set forth in this Agreement. As to BVBC, except as otherwise set forth
herein, this Agreement shall expire ten(10) years from the date of City's Final Acceptance of the
Pickleball Facility, unless earlier terminated or extended in the manner as set forth in this
Agreement.
J. Termination.
1. Grounds for termination. Grounds for termination of this Agreement shall include, but shall
not be limited to:
a. An act or omission by any party which breaches any term of this Agreement.
b. An act of nature or other unforeseeable event which precludes or makes impossible the
performance of the terms of this Agreement by any party.
c. A change in circumstances that renders the performance by any party a detriment to the
public health, safety, or welfare.
2. Termination process. Any party may terminate this Agreement by providing ninety(90)
days' advance written notice of intention to terminate. Such written notice shall include a
description of the breach or circumstances providing grounds for termination. A thirty(30)
day cure period shall commence upon mailing of the notice of intention to terminate. If, upon
the expiration of such cure period, cure of the breach or circumstances providing grounds for
termination has not occurred, this Agreement may be terminated upon provision of written
notice of termination.
K. Nonappropriation.The Parties acknowledge that City is a governmental entity, and the validity
of this Agreement is based upon the availability of public funding under the authority of City's
statutory mandate.
L. Construction and severability. If any part of this Agreement is held to be invalid or
unenforceable, such holding will not affect the validity or enforceability of any other part of this
Agreement so long as the remainder of the Agreement is reasonably capable of completion.
M. Exhibits.All exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as if the exhibits were set forth in their entirety in this Agreement.
N. Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes
any and all other agreements or understandings, oral or written, whether previous to the execution
hereof or contemporaneous herewith. The terms of this Agreement may not be enlarged,
modified or altered except upon written agreement signed by all relevant parties hereto.
O. Non-waiver. Failure of any party to promptly enforce the strict performance of any term of this
Agreement shall not constitute a waiver or relinquishment of any party's right to thereafter
AGREEMENT FOR DEVELOPMENT AND JOINT USE OF PICKLEBALL FACILITY AT KLEINER PARK PAG�
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enforce such term, and any right or remedy hereunder may be asserted at any time after the
governing body of either party becomes entitled to the benefit thereof, notwithstanding delay in
enforcement.
P. Applicable law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Idaho and the City of Meridian.
Q. Approval required. This Agreement shall not become effective or binding until approved by the
respective governing bodies of BVBC and City.
IN WITNESS WHEREOF,the parties shall cause this Agreement to be executed by their
duly authorized officers to be effective as of the day and year first above written.
BVBC CADENCE VILLAGE,LLC:
BY:
Robert Phillips for Brighton Corporation
Manager, BVBC Cadence Village, LLC
CITY OF MERIDIAN: ATTEST:
BY:
Robert E. Simison 6-7-2022 Chris Johnson 6-7-2022
Mayor City Clerk
AGREEMENT FOR DEVELOPMENT AND JOINT USE OF PICKLEBALL FACILITY AT KLEINER PARK PAGE 8
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