Cooperative Construction & Reimbursement Agmt for N. Black Cat Trunk SewerCOOPERATIVE CONSTRUCTION
AND
REIMBURSEMENT AGREEMENT
NORTH BLACK CAT TRUNK SEWER -LINE A
THI5 AGREEMENT made this day of , 2007, by and between
the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Brighton
Development Inc., an Idaho corporation; Treehaven, LLC, and Idaho limited liability
company; and Primeland Development Company, L.L.P., an Idaho limited liability
partnership (BTP), hereinafter called "DEVELOPER":
WITNESSETH:
WHEREAS, DEVELOPER owns land inside the corporate limits of the City of
Meridian and desires to construct a sanitary sewer system to be owned, operated, and
maintained by CITY to serve DEVELOPER's property and future City of Meridian property,
shown on Exhibit "A" and has requested reimbursement for a portion of the sanitary sewer
system;
WHEREAS, upon recommendation of the Public Works Department, the City Council
of CITY accepted and approved the proposal of DEVELOPER to construct the sanitary sewer
system, subject to all conditions hereinafter provided by this Agreement;
NOW THEREFORE, in consideration of the foregoing premises, CITY and
DEVELOPER hereby agree:
1. Preparation of Plans. CITY has prepared plans and specifications, drawings,
instructions, bid proposal and all other contract documents for the construction and
installation of sanitary sewer system (hereinafter called "Project"), shown on Exhibit
"B," including rights-of--way, grades and elevation, and materials used in the
construction and installation of said trunk sanitary sewer lines. DEVELOPER shall not
be liable for any damages or delays caused by the CITY's plans and specifications,
drawings, instructions, bid proposal and other contract documents prepared by the
CITY.
2. Final Plans. CITY and DEVELOPER shall acknowledge in writing the final plans, and
said plans shall not thereafter be modified in any material way unless such modifications
are approved in writing signed by CITY and DEVELOPER. The final plans and
specifications are attached hereto as Exhibit "B" and are made a part of this contract.
3. Constnzction of the Project.
A. DEVELOPER shall install and construct the Project in compliance with and subject
to all conditions provided herein.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 1 of 13
B. CITY, with the cooperation from the DEVELOPER, shall endeavor to obtain and/or
provide engineering, permanent and temporary easements adequate for timely
completion of the Project at no cost to DEVELOPER and DEVELOPER will provide all
surveying and contract administration with the contractors which shall be considered a
cost of the project.
C. DEVELOPER shall undertake and/or provide all testing, sampling and other
normally conducted measures for quality controUquality assurance regazding any and all
installed systems and shall be considered a cost of the project.
D. CITY shall provide inspection services for the construction of the Project in
accordance with CITY standards at its cost.
4. Solicitation of Bids. DEVELOPER shall awazd the construction contract to the lowest
qualified bidder, after obtaining approval from the City Council of the successful bidder
and bid amount which approval shall not be unreasonably withheld, delayed or
conditioned. The bids shall be administered in accordance with state public bidding
Laws pursuant to the CITY's purchasing guidelines.
5. Contract Terms. DEVELOPER shall provide CITY with a copy of the executed
construction contract(s). All construction contract(s) shall include, at a minimum, the
following provisions:
A. A requirement that the contractor provide payment and performance bonds naming
CITY as an additional beneficiary as required by the Public Works Contractors License
Act, Chapter 19, Title 54 of the Idaho Code.
B. A requirement that the successful bidder be licensed as a public works contractor.
C. A requirement that the construction of the Project shall be in accordance with the
approved designs, plans, and specifications and be Substantially Complete within
twenty-four (24) weeks from the date DEVELOPER issues to the contractor written
notice to proceed. For the purposes of this Agreement, the term "Substantially
Complete" shall mean that the Project and all components thereof can be safely used for
their intended purpose(s) despite the fact that some item or items remain uncompleted.
D. A provision that the time for Substantial Completion will only be extended by (a)
acts of God, (b) war, (c) delays caused by CITY, or (d) any request for extension of time
approved in writing by CITY.
E. A requirement that the contractor shall pay liquidated damages of Five Hundred
Dollars and 00/100 ($500.00) per day for each day that Substantial Completion is
delayed beyond twenty-four (24) weeks from the date DEVELOPER issues written
notice to proceed, or no later than May 1, 2008, or beyond the extended date as allowed
herein.
F. A requirement that the contractor shall maintain liability insurance insuring against
bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00)
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 2 of 13
per person and per occurrence, and property damage with a limit of One Million Dollars
($1,000,000.00) per occurrence, naming both DEVELOPER and CITY as co-insureds.
G. A provision that the contractor shall indemnify CITY and DEVELOPER from any
and all claims by third persons arising out of the performance of the contract.
H. A provision that the contractor shall comply with all applicable laws, rules, and
regulations, and that the contractor shall secure all applicable permits and pay all
applicable fees.
I. A provision providing at least a one (1) year warranty on the operation and materials
of the Project from the contractors, which warranty shall be assignable to CITY.
J. DEVELOPER shall have the right to rely upon instructions and the authority of the
City Engineer.
6.
Conditions Precedent to Execution of Construction Contracts . Prior to execution of
any construction contract, the following conditions shall be satisfied:
A. DEVELOPER shall obtain written approval from CITY of the form and terms of
such construction contract, including but not limited to DEVELOPER'S failure to obtain
a construction contract that contains the provisions required by this Agreement, but
which approval shall not otherwise be unreasonably withheld or delayed.
B. Any easements required for the Project or the construction thereof shall be deeded to
CITY and recorded prior to construction of the Project.
7. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER will
construct sanitary sewer improvements, as shown on Exhibit "B", at the request of the
CITY, it is mutually agreed that the cost of the Project will be reimbursed as set forth
herein," subject to actual cost verification by City. DEVELOPER shall fund 100% of
the cost of the Project, estimated at $1,717,484.31, as detailed in Paragraph 10 below,
with reimbursement from the CITY in accordance with the provisions of this
Agreement. CITY warrants to DEVELOPER that it has sufficient funds on hand for
payment of its share of the costs pursuant to the terms of this Agreement.
8. Change Orders to Construction Contract. DEVELOPER shall obtain the written
approval of CITY before approving any change order to the construction contract. In
the event of a change order, CITY and DEVELOPER shall execute an amendment to
this Agreement to record the amount of the change order to be reimbursed to
DEVELOPER, if any. The project management fee to Primeland Development
Company, L.L.P. for any change order may be four (4%) percent of any additional
project costs if determined appropriate by the CITY.
9. Completion of the Project.
A. Upon final completion of the Project, DEVELOPER shall furnish to CITY written
certification that the Project has been completed in accordance with the approved plans.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 3 of 13
Within fifteen (15) days after delivery of the certificate of completion, CITY shall either
accept the same or provide a written itemization of those matters it reasonably finds to
be non-conforming with the approved plans, in which case DEVELOPER shall
promptly cause the remediation of all non-conforming matters by the contractors.
DEVELOPER shall not be liable for any defaults, omissions, or failures of the
contractors unless DEVELOPER failed to exercise reasonable care in the performance
of its duties. DEVELOPER warrants to the CITY that it will perform its duties pursuant
to this agreement with reasonable care.
B. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive
as-built drawings for the Project, signed and stamped by a licensed professional
engineer, in both a reproducible, printed format, on both mylar and in electronic files in
AutoCAD format.
C. Upon completion of the Project, DEVELOPER shall complete all paperwork
necessary to assign to CITY the contractor's one (1) year warranty of the work and
materials on the Project.
D. Upon completion of the Project, DEVELOPER shall represent and warrant that the
Project is free and clear of all liens and encumbrances not created by or with the written
consent of CITY.
10. Reimbursement to DEVELOPER.
A. Estimated Total Reimbursement. Because DEVELOPER will construct the Project,
CITY shall reimburse to DEVELOPER 100% of project costs, with the total
reimbursement to the DEVELOPER estimated at $1,717,484.31. The estimated total
reimbursement for the North Black Cat Trunk Sewer is as follows:
1. Construction Bid (Brown Construction) $1,578,937.31
2. Project Management (Primeland Development) $ 65,000.00
3. Engineering $ 60,000.00
4. Survey $ 9,300.00
5. Testing and inspection verification $ 4,250.00
Total $1,717,487.31
B. Method of Pay lent. To receive payment, DEVELOPER will provide CITY with a
written invoice for each Reimbursement Payment. Upon receipt of such invoice, CITY
will pay such invoice within forty-five (4S) days after receipt, provided that
DEVELOPER is in compliance with all other terms and conditions of this Agreement.
The invoice from DEVELOPER shall have attached to it all invoices and billings from
contractors, engineers, and expenses of contract management verifying the total actual
project costs for which DEVELOPER is seeking a Reimbursement Payment.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 4 of 13
C. Timing of Reimbursement Payment. CITY shall reimburse DEVELOPER for eighty
(80%) percent of the CITY's reimbursement amount as set forth in this Agreement,
subject to written change orders approved by the CITY as herein set forth, upon
substantial completion of the Project. The remaining twenty (20%) percent shall be paid
by the CITY no later than forty-five (45) days from the date of final completion and
acceptance. "Substantial completion" is defined for the purposes of this Agreement to
mean that stage in the process of the work when the work is sufficiently completed in
accordance with this Agreement so that the CITY can utilize the work for its intended
use. If a dispute arises between the CITY and DEVELOPER with regard to any
particular issue or matter, the CITY shall not withhold payment of those amounts not in
dispute.
11. Compliance with Laws.
A. In constructing and installing the Project on and/or within its property,
DEVELOPER, at its sole expense, shall comply with any and all laws, orders and
regulations of Federal, State and local authorities. It shall be the CITY's responsibility
and sole expense to obtain any and all licenses or permits which maybe required for or
in the course of the performance of this Agreement.
B. Upon connection to the City of Meridian sanitary sewer system, DEVELOPER shall
abide by all applicable CITY laws, rules and regulations pertaining to sanitary sewer
systems.
12. Indemnification and Insurance. DEVELOPER shall include in the contracts between
DEVELOPER and the contractors the indemnification and insurance requirements as set
forth in this paragraph. The contractors shall indemnify and save and hold harmless
CITY and DEVELOPER from and for any and all losses, claims, actions, judgments for
damages, and/or injury to persons or property and losses and expenses caused or
incurred by the contractors, their servants, agents, employees, guests, and/or business
invitees, and not caused by or arising out of tortious conduct of CITY or its employees
or its DEVELOPER. In addition, the contractors shall maintain, and specifically agrees
that it will maintain, throughout the pendency of this Agreement, liability insurance in
which CITY and DEVELOPER shall be named insured in the minimum amount as
specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code.
The limits of such insurance shall not be deemed a limitation of the covenants to
indemnify and save and hold harmless CITY and DEVELOPER, and if CITY and
DEVELOPER become liable for an amount in excess of the insurance limits herein
provided the contractors shall provide CITY and DEVELOPER with a certificate of
insurance or other proof of insurance evidencing the contractor's compliance with the
requirements of this paragraph by filing such proof of insurance with the City Clerk. In
the event the insurance minimums of the Idaho Tort Claims Act are changed, CITY
shall notify the contractors of such change, and the contractors shall immediately submit
proof of compliance with the changed limit. CITY hereby indemnifies and saves and
holds harmless DEVELOPER from and for any and all losses, claims, actions,
judgments for damages, and/or injury to persons or property and losses and expenses
caused or incurred by the CITY, its servants, agents, employees, and those parties under
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 5 of 13
the control or direction of the CITY. The duty to indemnify shall also include the duty
to defend DEVELOPER at the CITY's cost.
13. No Assi nn~ent. DEVELOPER shall not assign any portion of this Agreement or any
privilege here under, either voluntarily or involuntarily, without the prior written
consent of the CITY, which consent shall not be unreasonably withheld.
14. Remedies upon Default.
A. Default by DEVELOPER. In addition to such other remedies at law or in equity that
CITY may have, in the event DEVELOPER fails or neglects to perform its obligations
under the terms and provisions of this Agreement in the time and manner required
herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until
such default is corrected to the satisfaction of CITY. Any withholding of
reimbursement shall only be for the amount in dispute and the CITY shall have no right
to withhold funds that are not in dispute between the parties.
B. _Default b~. In the event CITY fails or neglects to perform its obligations
under the terms and provisions of this Agreement in the time and manner required
herein, DEVELOPER shall be entitled to all remedies available at law or in equity.
C. Notice of Default. If either the DEVELOPER or the CITY claims the other is in
default of a provision of this Agreement, they shall give a ten (10) day notice of default
to the other parry and the other party shall thereafter have ten (10) days to cure the
default.
15. Attorney Fees. Should either party find it necessary to employ an attorney for
representation in any action seeking enforcement of any provision of this Agreement, or
to recover damages for breach of this Agreement, or to resolve any disagreement as to
the interpretation of this Agreement, the unsuccessful party in any final judgment or
award entered pursuant to such action shall reimburse the prevailing party for all
reasonable costs, charges and expenses, including attorneys' fees expended or incurred
by the prevailing party in connection therewith and in connection with any appeal, and
the same may be included in such judgment or award. This provision shall be deemed
to be a separate contract between the parties and shall survive any default, termination
or forfeiture of this Agreement.
16. Notices. Any notice desired by the parties and/or required by this Agreement shall be
sent via United States Mail, registered or certified mail, postage prepaid, return receipt
requested, and shall be addressed as follows:
CITY:
Meridian City Engineer
City of Meridian
200 E. Carlton, Suite #101
Meridian, Idaho 83642
with copy to:
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 6 of 13
City Clerk
City of Meridian
33 E. Idaho Ave.
Meridian, Idaho 83642
All parties constituting DEVELOPER:
And:
And:
c/o Primeland Development Company, L.L.P.
Attn: Frank Varriale, President
Varriale Construction, Inc., Managing Partner
3120 West Belltower, Suite 100
Meridian, Idaho 83642
c/o Derick O'Neill, Managing Member
Treehaven, LLC
2242 E. Riverwalk Drive, Suite 200
Boise, Idaho 83706
c/o David Turnbull
Brighton Development, Inc.
12601 West Explorer Drive, Suite 200
Boise, Idaho 83713
Such notice shall be deemed delivered if and when delivery is accepted or three (3) days
after deposit in the United States Mail. Either party shall have the right to change its
address by delivering to the other party a written notification thereof in accordance with
the requirements of this section.
17. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Idaho and the ordinances of the City of Meridian.
18. 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.
19. Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire
understanding and agreement between the parties with regard to the transaction
contemplated herein, and no parry shall be liable or bound to any other in any manner by
any representations, warranties, covenants and agreements except as specifically set
forth herein.
20. Definition of CITY's Property. The term "CITY's Property" in the Agreement shall
mean the parcels shown on Exhibit "A" attached hereto.
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 7 of 13
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, successors and assigns, and shall survive any transfer by
DEVELOPER of DEVELOPER'S Property.
22. Reports and Information. At such times and in such forms as the CITY may require,
DEVELOPER shall furnish to CITY such statements, records, reports, data and
information as the CITY may request pertaining to matters covered by this Agreement.
Such reports shall be at the sole cost of the CITY and not the DEVELOPER.
23. Audits and Inspections. At any time during business hours and as often as the CITY
may deem necessary, there shall be made available to the CITY for examination all of
DEVELOPER's records with respect to all matters covered by this Agreement.
DEVELOPER shall permit the CITY to audit, examine, and copy such records, and to
make audits of all contracts, invoices, materials, payrolls, records of personnel,
conditions of employment and other data relating to all matters covered by this
Agreement. All such audits and examinations shall be at the sole cost of the CITY and
not the DEVELOPER.
24. 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.
25. Approval Required. This Agreement shall not become effective or binding until
approved by CITY.
IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by
their duly authorized officers the day and year first above written.
DEVELOPER:
BRIGHTON DEVELOPMENT, INC.
By:
David Turnbull, President
Date
TREEHAVEN, LLC
By:
Derick O'Neill, Managing Member
Dated:
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 8 of 13
PRIMELAND DEVELOPMENT COMPANY, L.L.P.
By: Varriale Construction, Inc., Managing Partner
By:
Frank S. Varriale, President Date
CITY:
BY:
TAMMY de WEERD, MAYOR Date
Attest:
WILLIAM G. BERG, JR., CITY CLERK
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 9 of 13
STATE OF IDAHO )
ss
County of Ada )
On this day of 2007, before me the
undersigned, a Notary Public in and for said State, personally appeared DAVID TURNBULL,
known or identified to me to be the President of the corporation Brighton Development, Inc.,
that executed the instrument or the person who executed the instrument on behalf of said
corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public For Idaho
Residing at:
Commission Expires:_
STATE OF IDAHO )
ss
County of Ada )
On this day of 2007, before me the
undersigned, a Notary Public in and for said State, personally appeared DERICK O'NEILL,
known or identified to me to be the Managing Member of the limited liability company that
executed the instrument or the person who executed the instrument on behalf of said limited
liability company, and acknowledged to me that such limited liability company executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public For Idaho
Residing at:
Commission Expires:
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 10 of 13
STATE OF IDAHO )
ss
County of Ada )
On this day of 2007, before me the
undersigned, a Notary Public in and for said State, personally appeared FRANK VARRTAT.E,
known or identified to me to be the President of Varriale Construction, Inc., the Managing
Member of the limited liability company that executed the instrument or the person who
executed the instrument on behalf of said limited liability company, and acknowledged to me
that such limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public For Idaho
Residing at:
Commission Expires:_
STATE OF IDAHO )
ss
County of Ada )
On this day of , 2007, before me the undersigned, a
Notary Public in and for said State, personally appeared TAMMY DE WEERD and
WILLIAM G. BERG, JR, known to me to be the Mayor and City Clerk of the City of
Meridian, Idaho, who executed the within instrument and acknowledged to me that they
executed the same on behalf of the City of Meridian
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public For Idaho
Residing at:
Commission Expires:_
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 11 of 13
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