HomeMy WebLinkAboutDMB Development and Blue Cross of Idaho for Pinebridge Annexation DisputeSETTLEN~ENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("A~reement'~ is entered into this _ day of
July, 2008, by, between and among Petitioner, Blue G~oss of Idaho Health Service, Inc., an Idaho
corporation doing business as Blue Cross of Idaho (`Blue Cross'~, Intervenor, DMB Tnvestments
LLC, an Idaho Limited Liability Company {"DMB'~; and Respondent, the City of Meridian, a
municipal corporation of tha State of Idaho ("Cit}~~. All participants to this Agreement shall be
referred to collectively as the "Pacties."
Defmitions
1. "LAWSUIT" - Shall mean the perition for judicial review filed by Blue Cross of
Idaho Health Service, Inc. doing business as Blue G~ross of Idaho, BLUE CROSS OF IDAHO v.
C1TY OF MERIDIAN et al, Case No. CV OC 0721697, pending in the District Court of the
Fourth Judicial District of the State of Idaho~ in and for the County of Ada.
Rec~tals
1. On or about March 7, 2007, DMB filed with the City its applications for approval
of: (1) annexation of approximately 94.69 acres of the Property from Rl and RUT Ada County
zones to City of Meridian CG zone, file no. AZ-U7-006; (2) rezone of 75.67 acres from I-L zone
to C-G zone, Sle no. RZ-07-O10; (3) preliminary plat of 61 building lots & 21 common lots, file
no. PP-07-008 and; (4) variaz-ee for two access points to N. Eagle Road, file no. VAR-07-007
(the "Applications"j.
2. Blue Cross maintains its corporate campus at 300U E. Pine Avenue, Meridian,
Idaho, at the northwest coiner of Eagle Road and Pine Avenue. The primary entrance to the
Blue Cross campus is west of the Eagle Road intersection and d'uectly across Pine Avenue from
DMB's pmperty. .
3. The City took up the Applications at a public hearing held on October 23, 2007,
wherein the City voted to approve the Applications. On November 7, 2007, the City entered its
Find'mgs of Fact, ConcIusions of Law and Decision and Order.
4. On or about December 5, 2007, Blue Cross filed the Lawsuit seeking review of
the City's decision to approve the Applications.
5. The district court subsequendy granted DMB's request to intervene in the Lawsuit
as evidenced by the court's order dated February 7, 2008.
6. In relation to its Application, DMB has entered into a Cooperative Development
Agreement ("CDA'~ with Ada County Highway District ("ACHD") whereby DMB will
construct improvemants and extend Pine Avenue ("Pine Avenue Project'~. The CDA is attached
hereto as Exhibit A.
7. As part of ite widening, extension and impmvement of Pine Avenue, Blue Cross
desires an additional entry access point to its corporate campus as weII as certain on-site
improvements relating to the new and existing access points (`BCI Improvements'). The
SETIZEMENT AGREEMENT AND RELEASE - Page 1
depiction with coiresponding measurements of the new access point withia ACHD's right-of-
way is attached hereto as Exlu'bit B. Blue Cross' existing entranca is depicted with
conresponding meastuements in Exhibit C. ExhibiEs B and C are attached hereto and
uncorporated herein by referc~nce.
8. AC~ID agrees to reimburse DMB for the BCI Improvements pursuant to the
"Letter AgreernenY' made part of the CDA and dated April 21, 2008. The Letter Agceement is
attached hereto as Exhibit E and incorporated herein by reference.
9. The Parties have conferred conceming th~se mattcrs and have rcached a
compromise and resolution of their dispute, and seek to conclude this matter without the
additional costs, inconvenience, burdens and uncertainties of lidgation and hereby enter into a
full and final settlement and agreement and discharge of any and all actions, demands and/or
claims between and among the Parties which are based in whole or in part on the subject matter
of the Lawsuit.
NOW, THEREFORE, in consideration of t[ie mutual promises contained herein, and of
other good and valuable considexation, the receipt and sufficiency of which are hereby
aclrnowledged, and 'mtending to be legally bound hereby, the Pazties agree as follows:
A¢reement
1. Payment by DMB: DMB shall pay to Blue Gtoss the sum of ONE HUNDRED
FIFTY FIVE THOUSAND DOLLARS ($155,000.00). Said payment shaIl be placed in escrow
with Pioneer Title Co., 8151 W. Ritleman St., Boise, Idaho 83704 upon the execution of this
Agreement. The $155.000.00 shall be used by Blue Cross for the BCI Improvements, wlrich
sha11 also include, but is not limited to, engineering costs and consulting costs relative to both
entranccs. Said fimds shall be disbutsed to Blue Cross pursuant to tht Escrow Instruc6ons
attached hereto as Exhibit F and incorporated herein by reference.
1. Blue Cross Agreemeut: Blue Cross, on behalf of itsel~ its assigns, and
successors, apon receipt of good and lawful funds as set forth in this Agreement, hereby
expressly covenant and agreas to forever refrain from bringing any and all cIaims, actions,
demands, suits, or proceedings in equity and/or law, contract and/or tort, against DMB and the
City arising out of the subject matter of the Lawsuit and hereby remises, acqnits, and releases
and forever discharges the City and DMB from any and all claims, demands~ obligations, and
causes of action arising out of the Lawsuit. In addition, Blue Cross shall do the following:
1.1. Plans and Engineering: Blue Cross shall be responsible for obtaining all
engineering drawings and specificarions for the BCF ~r-provements. Blue Cross shall instcuct its
engineers to coordinate with DMB's design team relative to the BCI Improvements and to ensure
that both the Pine Avemie Project and the new entrance will match at the common property line
of the new access point.
1.2. BCI Improvements: Blue Cross shall be responsible for employing its
own contractor for the BCI Tmprovements. In the event Blue G~oss elects to employ DMB's
contractor, DMB agees to cooperate and assist to the extent poss~ble.
SETTLEMENT AGREEMENT AND ItELEASE - Page 2
2. DMB Agreement: DMB, on behalf of itsal~ its assigns, and successors, hereby
expressly covenants and agcees to forever refrain from bringing any and all claims, actions~
demaads, suits, or proceedings ia equity and/or law, wntract and/or tort, against Blue Cross and
the City, relative to the Lawsuit and hereby remises, acquits, and releases and forever discharges
Blue Cross and the City from any and all claims, demands, obligations, aad causes of acrion
anising out of the Lawsuit. In addition, DMB shall do the following:
2.1. Piae Avenue Project: Pursuant to the CDA, DMB shall construct all
curbs, gutters, sidewallcs and paving to the property line common to the ACFID right-of-way and
Blue Cross's property. The right of-way and property line is depicted with con~esponding
measurements in Exhibit D attached hereto and iacorporated herein by reference.
2.2. AG'FiD Contingeney: Should AC~ID require the construction of a
restricting island in front of Blue Cross's existing entrance, DMB agrees to construct the
resCricting island in accordance with the CDA and ACF~ID's timeline.
3. City Agreement: The City, on behalf of itself, i~ assigns, and successors, hereby
expressly covenants and agrees to forever refrain from bringing any and all clauns, ac6ons,
dcmands, suits, or proceedings in equity and/or law, contract and/or tort, against Blue Cross and
DMB relative to the Lawsuit and hereby remises, acquits, and releases and forever discharges
Blue Cross and DMB from any and all ciaims, demands, obligations, and causes of action arising
out of the Lawsuit. In addition The City shall do the following:
3.1 Meeting(s) By City: The City through the Office of the Mayor, in an
effort to facilitate resolution shall coordinate one (1) preconstrucrion meeting with DMB, Blue
Cross and the appropriate road agencies with oversight over the Pine Avenue Project. The City~s
Mayor shall, at a minimurn, hold at least one (1) meeting, but may host more mcetings if the
Mayor so detetrnines~ in consultation with the parties and the appropriate road agencies that
additional meetings would be beneficial. Blue Cr~ss shali be responsible for reasonable costs
associated for atl meetings. Unlesa otherwise indicated by the Mayor, ail meetings shall be held
at Meridiaa City Ha]l, 33 E. Idaho Avenue, Meridian, Idaho.
4. Mitlgation Et~'orts By DMB and Blue Crnss: DMB and Blue G~oss each agree
to act in good faith and use their best efforts to assist each other in coordinating meedngs with
essential personnet, entities and governmental agencies to ensure the Fine Avenue Project
proceeds in an efficient and timely manner with minimal disruption to citiz~ns of the G~ty, the
customers and employees of Blue Cross and DMB personnel.
5. Coadusion and Discontinuance of the Lawsuit witi~ Prejudice: None of the
Pazties shall file an appeal or take fiuther action against the other in the Lawsuit, except as set
forth herein and/or under the assignment of claims provided herein, and except to file such other
documents as may be required by the Court to effect the discontinuance of the Lawsuit Each
Party specifically avthorize and direct their attomeys to execute a discnissal of the Petition for
Judicial Review fited in the Lawsuit with prejudice~ with each party to bear their own costs and
attorneys' fees, and to deliver the same contemporaueously with this executed Agreemett~
SETTLEMENT AGREEMENT AND RELEASE - Page 3
6. Agreeraent Not an Admisslon: The Parties hereto agree that thie Agreement
resolves and compromises disputed claims and that this Agreement is not intended to be, nor
shall it be construed as an~ admission or evidence of any claim~ liability, wrongdoing,
misconduct, or breach of any contractual, common law, or statutory duty by any peison or Party,
or by anyperson or entity being released hereunder.
7. Representation by Counsel: The Parties fiuther aclanowledge that they have had
the opp~rrimity to be represented in the negotiations for and in the performance of this Release
by legal counsel of their own choice, and that they have read this Release, and that they are fully
aware of the contents of ttus Release.
8. Snccessors and Asslgns/FtirtLer pocuments: This A,greement shall be binding
upon, aad inure to tha benefit of the Parties, their heira, edministrators~ executors, successors and
assi~ns. The Parties acknowledge that they have carefully read this Agreement, aad their
respective counseF has explained its contents to ttcem. Each Paity agrees to execute any and all
documents required hereunder and/or necessary to the implementation of this Agreement, in a
timely manner.
9. Governing Law; Enforcement: This Agreement shall be govemed by and
canstrued in accordance with the laws of the State of Idaho. This Agreement may ba enforced
by any court of competent jurisdiction. The Parties specifically consent to the jurisdiction of the
court in which the Lawsuit was filed.
10. Volvntary Exeeution: All Parties are aware of end understand tha terms of this
Release and the legal consequences thereof. The Pazties hereto warrant that they have signed the
Agreement voluntarily of tf~eir own free will and accord and not under duress.
11. Entirety Clause: This Agreement supersedes afl prior agreemea-ts between the
Parties concerning the subject matter hereof, and reflects the entire agrecmettt between the
Parties. Any statements, representations, promises, or inducements that are not contained in this
Agreement aze not valid or binding on the Parties.
12. Signature in Counterparts: This Agreement may be signed in counteYpart and
circulated by facsimile transmission. Each of the counteiparts shall be deemed an original, and
all ofthem shaU constitute one and the same instrument.
13. Amendment: This Agreement shall not be modified or amended excepi in
writing signed by alI Parties hereto.
14. Headings: The headings in the Agree,ment are for convenience only and shall not
be used in intcrpretiag the obligations of the Parties under this Agreement.
15. Aathorlty to Sign: The Parties warrant that they have the capacity and authority
to sign this Agreement and to accept the promises specified in it. AIl corporate or other action
on the p~t of each Party necessary for the performance of its obligations under this Agreement
has been taken prior to the signing of this Agreement.
SETIZEMENT AGREEMENT AND RELEASE - Page 4
l6. Severability: If any provision of this Agreement shall be invalid, illegal, or
uaenforceable, the validity, legality, and enforceability of the remaining provisions shatl not be
impaired or affected in any way. Further, the PaRics agree that those provisions, if az-y, fouad to
be iavalid, illegal or une~forceable, sball be modified by the Cow~t, to conform to the most
expansive parmissible reading under the law.
17. Attorneys' Fees: Should any dispuoe arise conceming the meaning, or
interpretmion of dus Agreemant, and if any claim ba made on this Agrecment or pursuant to this
Agreement, the Pre~'ailin8 P~Y in such dlspute shall be eatitled to ~easonable a#omeys' fees and
costs incurted in enforcing or defending this A~reemen~
18. ConstrucHon of Agreemen~ Each Party has participated in, through their
ettomeys, in the dcaf~ing and preparation of tlus Agr~eemeM. This Agreement shall not be
construed for or against any party based npon its preparation, but shall be construed as if all
Parties, and each of them jointly, prepared it, and any uncertainty or ambiguity s~11 not be
interpreted against anyone party.
19. Agreement Contractua~: The terms of this Agreement are contractual and not a
mere recitaL
BLUE CROSS OF mAHO HEALTH
SERVICE, INC., aa Idaho corporation d/bla
Blue Cross of Idaho
By:
I~• r s ~~r-1- -}-L' ~.O
DMB INVESTMENTS, LLC, aa Idaho
limited liability company
g~;~~ ._~.~-~~t/~
.aa.e~
Its: ~ ,
CITY OF MERIDIAN, a municipat
corporation of the Statc of Idaho
~G~L; ~
By:
Its:
SEZTLEMENT AGREEMENT AND RELEASE ~- Page 5
E~HIBIT A
FILE No.814 07i02 '08 15:16 ID~ACHD FAX:i 208 3457650 PAGE 2i 13
COOP~RATYV~ DEVELOPIVIENT A`RE _EN~NT
This COOPERATIVE DEVELOP[V~ENT AGRfi~MENT (tbe
"Agracment") is made and eptercd into this ~L~''~day of Decoatber, 200~, by and
botwecn pMH tnvestments, fnc., an Idaho Corporation and the ADA COUNTY
HIOH'WAY DISTRICT, a body politic and corporata of che state oP [daho
("ACHA").
R~cYTaLs
WFi~REAS ACHA is a single county-wide highw$y district organized and
axisting undar the laws of the 3tate of Idaho, with the responsibil9ty, jurisdiction.
and authority to improve public roads and assess developmcnt impact fces in
accordanco w~tlt t6e Idaho Aevclopmcnt Impaot Fee Act;
WY~REA3 the parties desire to dtscribe and provide for the coqstruction
of the project (as deSned below); and
V~HEREAS ihe partios dasire to provida for the ailocatio~ and payment of
the Froject Costs (as defncd below) as 6etween the parties.
AGREEMSIYT
NOW. THETtEFORE~ in eonsideration oP thc foregoing, and for otber
good and valuable conslderation, the rdceipt and sufficiency of which are hereby
acknowlcdged, tha partlas horeto agree as Follows:
s~cMrrox ~.
DEF~~TITIOIVS
As qsed in this Agreament, the following terms shall have the following
meanings:
l.l The term "Construation Mana~er" shalt meaa Dan Torfin in his capacity as an
e~»ployee of DM8 Investmgnt~ who shall coordiaate and supervise the Projcct.
For the purpose ef this Agreement, tbe Constcuctioa Managor's compeQsation
sha11 be threa pereent (3~0) of the Reimbursablo Projeat Costs.
1.2 Tha terra "Eligible DsveIopmont Arc~" shall mean the real pruperty descr~bed
on Txhiblt A attached hereto, irrespective of its futu~c owriorship.
l.3 The tertn '•Bligible innpact Fee" shall meat~ any [mpact Peo collectcd at any
tlme by ACHA fiom any party within the Filisible Development Arca atter ihc
cffeetivc date of this AgreemeAt.
1.4 Tho tcrm "~nginocr's Esttmat~" means an estiatate of tho Project Costs
pr~pared by tt~e Projoct angi~eer (or other angineer licensed under tho laws of the
state of Idaho).
Pine Avenue Extension, #608001
Cooperative Devolopment Agreement - 1
F1LE No.814 07i02 '0~ 15:20 ID:ACHD FAX:1 208 3467650 PAGE 3i 13
1.5 The term "Itapact Fec" sbatl mean a payment of money imposed by ACHA as
a condition of davcloprucnt approval pursuant to ordinance adopted by ACHD
under the Authodty graated to it by tha Idaho Devetopment Ympact ~ee Act, and
sball not inelude any oth4r fees, pertttita or ~ssessments by ACHD ot any other
ageACy.
1.6The term "praject" ref~rs to the design and coustruction of Pine Avapue ft~om
No1a Road to SH-SS (Eagle Road) as a S-latte roadway w~th bike lanes, vertical
eurb, euttar ~d 5-foot detached or 7-foot attached eonereta sidewalk; a 72-foot
sireet sectioa. The project atso includes the design and construction to widen the
existtng west leg of tho Pine Avenue/SH-55 intcrscction to 7-lanas; thc design
and installation of a traffic signal at the intersection of Piae Avenue and Hickory
Avsnue; and all as the sante shal! more specificatiy ba de~ned by tba plans and
speei~cations to be prepared and approved as set forth herein.
1.7The tsrm "Project Costs" refers to al! costs of Comptoting tho Project.
inctuding (i) aIl dosign, const~uotion, testiag aad inspoction costs~ (ii)
compoASation Por tha Project Managar and Construcrion Mana~er as providcd
herein. and (iii) alt othcr co~ts related to and reasoaably aecessary for
completion of the Projoct. excluding the oost oF acquiring any addItlona3 rigbt-
of-way or easements.
1.8Tha term "Project Manager" shali mean a liccused ongineer engageQ by
Developer to managa and eoordinato tde design. inspeatioq and certificatieA of
tho Projeot. The PYOject Manager sitd the terms of his or her eompensation sha11
be subjcct to approval by ACHD.
1.9'Y'ho term "Roimbursablo Projeet Costs" shall ~eam all project Cosis
~d.~ tho followiag:
a. Costs assoclated with thc design, hardwara and inst$llatipn of the uaffie
sign~! Iocated at the incersection of Piue Avenue and Hickory Aveaue;
b. Costs assoeiated with the desigu and constraction of the roupdabout
locat~d at the intessection af Pi~e Avenue and the new coltector roadway
above tho coste aecessary for a standard "T"-type stop controlied
interseotioa;
c. Costs for any new utility services installec! to serve exclusively
Developcr's parcels withln the EiigIble Development Aroa;
d. Costs assooiated witb the construction, tcstiag and inspectioa of
sf dewalks;
e. Admiatstrattve and overhead aosts of Devoloper other than the
Coustruction Maaages's compensation defiaed ia Section 1.1;
f. Ittterest on funds used fot the Projact;
Pinc Avonuc ExteASion. #608001
Cooperativo Devolopment Agresment - 2
FIL.E No.814 07i02 '08 15:20 ID~ACND FAX:1 206 3457650 PAGE 4i 13
g. Liquidated damages.
1.10 ~'he tertns "Sabstant!$1 Cosnpletioa" and `'Substanti$lly CotttpiBte" shall
have thc same meaning as in ihe ACHD General Condltions for a constructioA
coatraot, which provide as fnllows; "The constructiou [of the Projectj will ba
cottsidered to be substaatially eomplete when ii ean be safcly used pr occupicd
by the pu6lic for ita itttendad purpuse despite the fact that soma item or items
rcn~ain uucompleted."
SECTION 2_
DESIGN AND BYDDIN~ OF Ti~Y~ PROd~C'Y'
2.1 Davelooer to A~ra~age for Project Des~ n r~,~n~er's ~cT~.~aie, pevoloper
ahall provide for the desi~n of the Project by design pTOfessionals acceptable to,
aad in accordanca witli the customary requirement~ of ACHD: The design ef tho
Project shall be i~ aocordanc~ aritb tha standards and spocifications sei fortb in
tha ACHD Policy N~nual. Aeveloper shall also obtaia an Bn~ineer's F.stimate of
tho Prof cct Costs.
2•2 ~ ' t-o -Wa . AC~CA shall pcovide accoss to the public
right-af-way to l~eveloper and its age~ts as may be reasonabty neccssary in
connection with ths Project design and tbe Engineer's Estimats.
2.3 ~inai Agprova o_f Fin~sl Pla~. ACHD shall appzove, in its discretion, the
8n$ineer's Bstimate and thc Project plans. ACHD aad DBVelopor shall
aeknowtedge in writing the finsl, approved Project plans and tha ~nginaer's
Estiraate prior to coiumenaement of oonstruction. and aeither shall thereaRer be
modified in aay matorIal way unless suoh modiftcations are approved in wr~ting
signed by ACHD and Developer:
2.4 UBliverv of _ Documenta to ACHD Following tho parties' written
ackaowlodgment oP tha fina[ Project pians attd Eaglneer's Estimate, pevelopar
shall cause the Project engiaeer to snbm~t thc followiag to ACHD:
a. three (3) sots of ths Project plans;
b. ona (1) copy of the En~lnoer's ~stimate; and
c. any other related information «quasted by ACHD.
2,SAoeess to Informa~~y A~p, pevaloper shsll provide ACHD with ~ccess
to all destgns, plans, speolfic$tiotts, reports. d~ta and other materlais (both
digital, electronic aad hard copy) produced by peveloper and its agents aad
contraciors under this Agrccment.
Pinc Avanue Extcrts~ou, #6080Q1
Cooperativa pevetopment Agrasmeat - 3
FILE No.814 8Ti02 '08 15:20 ID:ACFID FAX~1 208 3457660 PAGE 5i 13
3ECT~ON 3.
CONSTRCJCTIQN CONTRACT
3.1 Solicitin Bids. Aftar ACHD has apptoved the Project plans and tbe
Bngineer's Estlmate, Develop~r shall sollcit $ minimum of three (3) bids for
censtruction of tho Projoot in complianae with the approved Project plans and tbe
rol$ted raquiremeats for public highway projects $s required by ldaho law.
a. ACHD shall raview and approve tha bid amcunt prior to Aaveloper
$warding contract.
3.2~ontract Terms, Thc construction contract shall include~ at minimum, the
following provisions:
a. a requirement that the eontractor provide payment artd perfocmance bonds
required by the Public Contracts Hond Act, Cbapter 19, Tetle 54, Idaho
Coda naming ACHD as an additional benef4iary;
b. a requiremeAt that tbe successful bidder be liceused as ~ public works
contractor (Chapter 19, Title S4, Idaho Code);
c. a sequirement that the construation of the Project in accordanee with tbe
approved deaigns, plan~ and specifications be Sabstantially Campieto
withia iwenty (20) weeks frotrs iho date Developee issues a aotiee to
proeeed to the contractor, ar no later than October 31. 2008;
d. a requirement that the contraator psovide a phasing plan far the
aoastructioa of the Project. Tha pbasing plas~ sha!! alsa provide for a
miaimurn of three (3) traval lanes (ono wostbound $nd two eastbound) to
remain opan at tha intersection of Pine Avenua aad SH-SS~thraughout the
duration oP the Project, subjeci to scheduled temporary closures as deemed
necessary and appro~ved by ACHD;
e. a provision that the timo foc Substantial Corapletion will only be extendcd
by (i) aots of Ood, (ii) war, (iii) dalays causcd by ACHD. (iv)
utueason$ble detays causad by utilities~ as determiuod by ACHD~ or (v)
any request for extensians of titne approved in writing by ACHD;
P. a scquirement that tho contractor shaJl pay liquidated damagcs of Une
Thousahd Dollars ($I,000) por day fo; oacb day that 3ubstsntiat
Cornpietioa of tha construction is dcleyed bsyond twcnty (ZO) weaks from
tha date Developer issu~s a notice to procead, or no later than October 31,
2008, os beyoad the extendec~ date as allowed by Section 3.2(c) abovc;
g. a rayuirefient t&at the onntractor rnaintaia liabil9ty insuranca i~uring
against bodily in,jury ar death with limits of bot lcss than Two Million
Dollars ($2,000,000) per person and per oecuireuco, and property damage
Pine Avtlnue Extension. #608001
Cooperative Development Agreau~eAt - 4
FILE No.814 07i02 '08 15:20 ID:ACHD FAX:1~ 208 3457650 PAGE 6i 13
with a Iimit of Onc Million Dollars (51,000~000) per occurcence, naming
both Developer and ACHD as co-tr~surcds;
h. a provisious that the contcactor shall indemnify ACHD and pevcloper
frora any and alI claims by third persons arising out of the performance of
the contract;
i. a provislon tbat thc coatractor shall obtain the ~nvironmcnial Protectiou
Agency (EPA) Constavction Qenoral Permit (CGP) attd that the contractor
shalt ~ile a Notice of Yntent (NOI) aad develop snd impicment aa approved
Storm Water Pallution prevencion Plan (SWPpP) pr~o~ ~ eo~menc~mcnc
of construction, and that the contractor shal[ not filo a Notice of
Tormination (NOT) with th~ BPA unti! authorized in writing by ACHD.
Authorization for thc contractor to file the NOT will be granted by ACHD
wben the area subject to the CGP has achieved final stabilization as
def~ed in the CCrP.
j. st least a one (1) ysar warranty on the work and materials of the Project
tbat is aasignable to ACHD; artd
k. a provision that ACHD may unilaterally assign the constructioa contract
to a third party in the event of a d~fault by De~velopar under this
Agreament.
33 Condit~ons Precedent to E~,ecuti°n of Construction Co~traet, Prior to
execution of the conatruction contract~ ~he following canditions shall be
satisf3od:
a, Agpro~al uf Constructio C~, o ~, pevcloper shalt abtain the written
approval of ACHD of the form ~nnd terms of the coastruction contract,
which may bc withhald for any reasoa~ including but aot limited to
Dcvelopcr's failure to ebtein a constructloa coatract that coatains the
proviaions set forih in Section 3.2 above. but which shall aot ettterwisc be
unreasonably witltheld;
b. ~~ t-of-W g~nd Fas~gtents, Aay rigbt-of-way reqyirnd for the prnject
sha11 bc recordcd prior ~to construction of the Projoct. Ali sidewalk, storm
drain. siepe or other easaments required for the projoct shall be dodieated
to ACHD by neveloper at no cost to ACHD and shall ba recorded prior to
constsuation of the Projsct.
Letcer of Credie or ~ash Bond, D6veloper shall provide ACHD with an
irrevocable aud unconditional lctter of credit in favor of ACHD in an
amount aqual to one hundred and ten percent (110%) of the total of th~
contr$ct price of tba Rcimbursable Projeot Costs tess Fivo I~iundred
Tbousand Dollars ($500,000) Yor the purposo of assuitng ACHD thai
Dsveloper will perform its obligations her.eunder. Tha letter of credit
sha11 be issued by either a natioaal bank with a branch in Ada County,
Pine Avenue LxteASion, #608001
Cooper8tivo Dcvelopmeat Agreement - S
FI'~E Nlo.814 07i02 '08 15=21 ID~ACHD FAX~1 208 3457660 PAGE 7i 13
Yda.ho or ttuoihsr fiuancial institution acceptable to ACHD. The lettcr of
credit sh~ll be delfvered to ACHD prior to Developer's execution of the
co~stsuctiob aontract. Ya lieu of ~ lettar of eredit, tho pevaloper may
provlde a eash bond in the satne amouni, or pledge othor security
acceptable to ACHb of cqual value. When aIl DeveIopor's cont~actors for
the Project havo been paid and ACHD bas issned its certiffc$te of
completion oP tha Project, sucb assuranca shall ba coleased to pevoleper.
I~ its so18 diseretioA, ACHA may a~low the reductioa oP thc assuraace as
payraents of Costs of the project ara raada during the coursc of
construatiob.
3.4Con.~„~- of Gontract o q~D, poveloper shal! provide ACHD with a copy of
the exeCuted constructton contract.
4.I Per~its and F,~es. Prior to tho commoncament of const~uction, Aeveloper
ahall require that the contractor (i) has obtained all applicable pecmits to wor[c in
tbe right-of-way~ and (ii) has paid all applicable fees for such parmlts. Daveloper
acknowlcdges that this Agreement will not f~nction as an ACHD pernzit to work
in the public rlght-of-way,
4.2~tanacr of Construction, Upon ACHD's written approval oP the coAStruciiop
contraet, Daveloper shall provide for construction of the Project in complianee
with the construction coptract and with tha customary requirements ot ACHA,
aad shail diligoaUy and continuously prosecute such consisuction to comptetioA.
4.3 C~sgg Orders t~ Contr ct, Developar shall obtain the wcittan approval of
ACHA before approviag any change order ia the construction contr$ot ff (i) the
cost of the c6snge order will exceed ono percent (1~Yo) of the coatract price;
$nd/or (ii) the eumulative total of all previously appsoved cbange ordess oxceeds
tet~ peraeat (10`Yo) of tba contraCt price.
4.4Ins~ect~ons. Inspecting and testing shalt be accomplished as required by and
in accosdance with ACHD standards. '
4.S Issuance oY Certific e of Completion.
a Upon completion of thc construction of the Project, Ueveioper shail
f~mish to ACHD the Project Manager's writton enrtifieation that the
Pmject is cou~pleta in accord~co with thC approved plans.
b. Withi~t fffteen (l5) days aftar delivary of the Projcct Manager's written
cartit3cato~ ACI~D shall either (i) accept the same or (ii) provide a written
itemization of those matters it reasonably finds to bc nop-conPorming, in
wl~ich ease Developer sh~l promptly cause the svmediatioa of a11 non-
conforming tuattors.
Pinc Avenue Extansioa~ #608001
Cooperative Aevelop~ent Agteeusent - 6
F1LE I~o.814 07i02 '08 15~21 ID~Aq~ FAX~1 208 3457650 PAGE 8i 13
c. ACHD shall solcrtowledge its accaptaqce of t~e Pruject ia writing as
vomplete ~ and issus a oert~~cate stating that the project ia completa (a
"Certificate of Completion"). within fiftca» (15) days sfter the latcr of
(i) delivery of tha Project MaAager's cet6if-catioA to ACFiD, or (ii)
remsdiation of any nu~-eonforming raatters.
d. Upon issUaace of tha Certificate of Completion. Aeveloper shall deliver to
ACHD drawings fos the Projcct, as-built~ in botb a reproducible printed
format on mylar and in alectronic files iQ AutoCAp format.
4.6 Warrantv, Upon issuance of the Certificate of Complction, Develaper sha1l
complete ~il paperwork t~eccssary to asslgn to ACI~D the eonuactor's (1) one
ycar warranty of tha work and matarials on the Projecx
4.7Representationy ~~-a 'CVarranties. poveloper iepresents a~td warrants that upon
oomplatio~ of thc pcojeot. the Project shall be free ancl ctear of all tiens and
eacumbranccs that were not crested by or with thc wtltt~n consent of ACHD.
~SE~TI,~QN s
~AYMENT O~' PR0.IECT C03TiS•
FINAx. ACCOUNTING AND SE~'~EM~NT
5.1 ~'$vrriBnt of Praiect Costs. Al! P~ojcct Casts shall ba paid and funded by
Dovolopar~ and ACHD shall pa~ Dcveloper the Reimbursabla Project Costs in the
manner set forth herein.
S.2Pay~en~of Rgimbursable Proje osts, ACHA shall pay tho Reimbursablc
Projeet Costs to Developer in the following manner:
a. Final Aeao t r~i g. Within a reasauable period atjter issuaace of the
Certificato aP Completion, Developer shall submit ta ACHA a fiaal
aecvuntltt~ of the Reirnbucsable Pmject Costs.
b. ~areement of I~inal Amau~t. Within fiPteen (15) business days (3-wecks)
after pevoloper's submittal of the Reimbursable Project Costs, Developer
and ACHD shall reach an agrremcnt and aclutawledge in writing as to the
final amount of the Relmbursable Projoct Costs.
c. Pavment of Reimburgable PrQject Costs.
i. It~imbutsa~],n Projg~t C~sts
ACHA shall pay to peveloper the foIlowing InstalIments, untii all
Reimbursable Project Costs hava beeA paid to Developer.
Within thirty (30) days after agreoment ns to the Rsimbursable
Project Costa, ACHD shall pay to Developer Fiva Hundred
Pins Avenuc Extension, #6p8001
Coaperativc Development Agreement - 7
FILE No.814 07i02 '08 15~21 ID~Aq-ID FAX~1 208 3457650 PAGE 9i 13
Thcusand Dollars ($500,000), towarda the Reimbursable Projeot
Costa.
'Within thirty (30) days aftor agrcoraent as to tbe Reimbursable
Projoct Costs, AC~IA shatl pay to Developer the amount equat to
the sum of a!L Elieible Impact l~ees AC~Ip h$s oollected to date not
to cxceed one half the tatal remaining Rejutbursable Projoct Costs.
Tho other half of the remaining Reimbussable Project Costs sha11
be subject to au Impact Fee Credit Agreement attacbed es Exhibit
"B" and aha11 noi be. roimbursed from Eligible lmpset Feea.
ThereaPter, for each Eligible Impact Fae ACHA collects, the
amovat equal thereto shall be paid to Aeveloper on a quarterly
basis begianing Janvary 1, 2U09, untt! sil lteimbursable Project
Cos#s t ha t are not subject to thc Ympact Fee Credit Agreeruent hav~
been paid to Daveloper. Such payments sha!! bc made withi~ forty-
five (45) d$ys of the end of each qusrter.
d~ ' c e a . ACHA may at its sola discretion make
reimbursement payments to Dcvelopcr other than those required to be
madc by Section 5.2(c), tber~by accalerating reimburseraent af the
Reimbursable Project Costs, Au~ such additionat paymc~ts sha~~ not be a
waivar of the requirement to make future payments required by Section
S.2(c) as EligibIc I~lpact ~ees are collected, until all Reimbursable Project
Costs aot subject to the Impact Fce Credit Agreement have boen
roiuibursed to Developer.
5.3 N4 Ynterest, Wo interost shall accruo on Reimbursable Project Costs, subject~
however, to the provisions of Section 6.2 regarding past duo reimbursement
iYtstallaients.
~~crioN 6.
~~~r~nrEs
6.1 Default by bevalaoer. !n additlon to sueh other reirtedies at law or in eguity
for default that ACHD mey have, in the event Qeveloper fails or negl8cts to
perform its obligatlons qnder the terms and provlsions of this Agrcemept in the
time and manner required hereia~ ACKD may w[thhold any reiuiburseraettt due to
Aaveloper heseunder unti! such defaults are oorrectad to the sarisfaction aF
ACHD.
6.2~efault b,~ACHD, Ia the event ACHD fsils or neglects ta parform its
obtigauous under the te:ms and provisions of this Agreement in the teme and
maunts required heroin, Aeveloper shall bo esntitled to alI romedios availublo at
law or ia aquity. Without liu~iting tha ganeralst~- of the fo«go~g, attd in
Piue Avonue Extension, ~608001
Cooporative Dcvelopmcnt Agreemeni - S
FILE No.814 07i02 '08 15~21 ID~ACHD FAX~1 208 3457650 PAGE 10~ 13
additioa thereto~ any reimbursement instailmortt of Reirabursablc Pioject Costs
aot pa~d to Aeveloper by its due date shall bcar interest from the duc date until
paid ai one-ttalf of the lege) rate ptovidcd in Idaho Code § 28-22-104.
6.3 ettorn~v Fees. Sho~ld eithar pai~ty find it necessary to employ an attorncy
for representation in any action seeking enforceYpcnt af any of tha provisiens of
this Agreet»aut, or to recover damages for the breach of this Agreemesst. or to
resolva aay disagreement ia interpretation of this Agreement, or w obta~n
assistaaca in any arbiUatioA, the unsuccessfyl party in any final judg~ment or
award entored therein sbal! reitnburse the prevailing party for $Il reasonabte
costs. charges and exponses~ including sttorneya' fees expended or iaeurred by
tlu prcvai~ling party iu conn~ct9on therewith and in connectfo~ with any appeal,
and the sa~t~e raay be included in such judgmeqt or $ward.
~ECTYON 7.
OTHETt ~ROVYSIONS
?.I ~iQticea. Any aotice required to be ~iven hereunder shall bo in writing and
sball be deemed offectively given: (a) upon persons! delivery to the par[y ta be
notIfied, (b) when sent by oonfirmed electronic mail or facsimile if sent duriag
normal businesa hours of tha recipient; if not, then on tbo aext business day, (e)
four (4) days aPter ha~ving been scnt by prcpaid reglstered or ocrtified mail~ or (d)
oae (1) day after deposit witb a r~ationally recogAized overnight courter,
specit~ing naxt day delivery~ with written veri~cation of receipt. All
comrauniaatiens shsll be to the~ respective parties to this Agr~ement at the
following addrossds:
Ada Couaty Highway pistrict
Attn: Chrlsty Richardsott, Program Administrator
3~75 N. Ad~s Street
Qarden City, Tdaho 83714-6499
Telephone: (208) 387-6144
Aacsimile: (208) 38?'-6393
DM8 Invesuneats
Atttt: pan Torfin
2S0 S. Haechwood 3treet, Suite #124
Boiso, ID 83709
Telophone: (208) _-
Facsimile: {208) _
7,2 CAeica of Law. This Agreemanc shall be governed by. a~d construad in
accordance with. tha laws of ~he State ef Idahu.
Pine Aveauc Extension, #60800I
Cooperative Develvpment Agraement - 9
FILE No.814 07i02 '08 15~21 ID~ACFID FAX:1 208 3457650 PAGE ili 13
7.3~ All exhibits to thIs Agreement are incorporated by refereACe and
made 8 part of this Agrcemont as if tho exhibits wcra set forth in tbeir eatirety in
thIs A~rccment.
7.a E~}tue A~, 't'his Agreement aad the exhibits hereto constitute the fti11
aad entire ur-derstanding and agreentent betwaen tbe parties witb rcgard to the
transactio~ oontomplated herain. and ao party shall be liable or boand to aay
other in aay mauner by any represantations, w~rranties~ covenants and
agreaments axeept as specific~tlly sei forth haceib.
7.SAclrnowledg~ents a~qd Modi~~tions. No acknawledgments required
hers~tndar, and no ~todificatioa or waive~ of at~y provision of this Agreement or
cona~it to departare therefrom~ shall be effective unlBas in writing and signed by
ACHD and eacb of the parties aomprising Develeper.
7.6~ adin~s. The headings usod in this Agreement are used for cntivenience
only and are not to.ba consid~red in consttping or interpreting this Agroeraent.
7.7 Sucoesaors and Assigns. This Agrcement shaq be bindin$ upon and inute to
1ho bcneFt oP the parties herato and thein c~irs, successors and asstgns. and shall
sar'vive any t~ansfer by Developcr of al) or pari of its interest in tbe Etigible
Developmeut Area, provided. however, tbat the benef~ts to Aeveloper of this
Agreatueat shall not be construed to run with the Iand eomprising the Eligible
Development Asea.
7.8C~unterparts. This Agreement may be execut8d in two or mote Counissparts,
eaah of ~ which shall be deomed an original, but all of which together shall
constityte onc atid the same instrument.
Pina Aveuue Exteasion, #608001
Cooperative Devolopment AgreCmeat - 10
FILE No,814 (Y1i02 '08 15:21 ID:ACHD FAX:i 208 3457650 PAGE 12i 13 ~
i
~
IN W7TNE33 WHEREOF. the parties hsreto have axecuted this ~
Agreomeat the day and year first abovc writtcu, I
D~VEi.OPER:
DM8 IaveatYUe
D nnis B$1ter, anaging Partnar
ACHD:
A A 4 T HI(iHWAY DISTRICT
~ ~~
~
J n S, Frande~~ Commission Presldent
Ex6fbEts
Exbibit A Eligible pevolopment Ar~a
~xhibft B impact Y~ee Credit Agreement
- Pino Avenue Extension, #60800I
Cooperativc Dovelopment Agreemont - 1 I
FILE No.814 07i02 'OS 15:21 ID:ACHD FAX:1 208 3457650 PAGE 13i 13
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E~HIBIT E
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CI-~[
(~iv.w.w~X'ul~o ~j'o,rvicc
.~pril ? 1. 20U8
O \i k3 1 n ~•cst mcnts
:\ttn: Dan 7ortin
?~U S. Beech~~•oad Street. Suit~ =120
Boise.lD 83709
RE: Pinc Avenuc, EHglc Itoud to ~iolu / Praject # 60800]
l~ear I~an:
Card A. McKee, President
Sherry R Muber, 1" Vice President
pavld Biven~ 2n0 V~ce ~resldent
lohn S. f~enden. Comrtslssioner
Rebeoca W. Art~ald, Commissianer
.aC'HI) an~rr:ciates ynur ei~'oits to ~ti'~rk a•i~h the C)istrict. Ci~y uf ~lct~itli~ut, t~nd Blue C:ross to resol~~e
u~cess a~ncerns rais~d in conjuncii~n ~+ith this pr~ject. As n•e ha~•e discussed in tha p~vious meztiii~s.
aC.l{n ~~•~q t~~cepc a p~~rtion of the c~+sts associated with ~hr un-siic improrcments necessar~• to constnut
an enu:~ncz to f3lue Cross approximately 350-feet eas[ of Rosario S[reet as project expenses (See
~ttached drawing). 1'he~~forc; ~CHD ~~~ill reimburse DMB Invesunem up to a maaimum of 5150.000
Ior actunl canstruction costs u~curred under the terms of the c:urrenl Cooperxtive Developmenl
.agiecment to~yard~ these costs.
lf ~•~u hfl<< any yuestiuns ~•uu may con[ac~ me at 387-617A,
Sinrcn:l~ . !
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Gfin~ Insclmaii ~
~•i~n~~,cr. Riglit-of Way and Devel~pmcnt Sen•iccs I
~ Ada Camty Higt~way Dlstr'lct ~ 3775 Adams SVzat • Garden Clty, ID • 83714 • PH (206) 387-6200 • FX 387-6393 • www.achd.ada.id.us
IBIT F
E~H
E~ibit F
ESCRO'W ll~TSTRUGTION3 TO SETTLEMENT AGREEMEIV'i' AND RELEASE
Escmw Ins~uctions To: Pioneer Tifle Company
From: DMB Tnvesbments LLC en Idaaho Limited Liability Company ("DMB'~ and
Blue Cross of Idaho Health Services Inc. ("Blue Cross'~, funds deposited for Pine Street access to
Blue Cross property under the Settlement Agreement and Release.
1. These Escrow Instructions constitute joint and mutual instructions from DMB and
Blue Cross to effectuate DMB's and Blue Cross' agreement under the Settlement Agreement and
Release in which the City of Meridiaa, a municipal corporation of the state of Idaho ("City'~ is also
a party.
2. These Escrow inst~uctions may not be amended or modified except by the separate
written inshuments signed by both DMB and Blue Cmss.
3. A true and wrrect copy of the Settlement Agreement and Release aad Exhibits A
through E shall be deposited with these instructioas.
4. DN1B has deposited with you a checlc ia the amount of S 155,000.00, which you shall
deposit °vn an interest bearing accoimt with interest payable to DNiB and retain and disbucse in
accordance with these instiuctions. Blue Cmss' tax identification # is: --~.-~ DNiB's tax
identification # is: g~2 03~~2•~4.
5. The funds shaU be used for the purposes desoribed in the Settlement Agreement and
Release, namely BCI Improvements as deSned in the Settlement Agreement aad Release. DMB
shall submit a disbursemeat request and authorization to you from time to time, JointlY signed by
DMB and Blue G~oss, wherein Blue Cross sl~all certify thatthe disburseme~ request is for the BCY
Improvements wirich will also be counter signed aud appmved by a representative of DMB. The
Disbursement Request and Authorizetion shall be in a fomn substantiaUy similar to tl~at atta.ched
hereto as Fxhibit Fl.
6. Upon final completion of the BCI Improvements and upon fmal payment for all
services and/or matsrials for the BCI improvements, aay funds remaining in the Escrow account
shall be returaed to DMB.
DATED T~IIS day of ~ 2008.
Exhibit F
Escrow Instructions Accepted aad Agreed to by Pioaeer Title Company.
Pioneer Title Company
BY:
Its:
DATED THIS day of~ 20U8.
Blue Cross of Idaho Health Services Inc.
BY:
its: ~'~Si i- ~
DATED THIS ~d day of Juae, 2008.
DMB Investmen C.
BY: c'~ .,. , {Q• ~,~~u.4
Its:
Exlubit F-1
DLSBUltSEMENT REQUEST AND AUTHORIZATION
The undersigned representative of Blue Cmss of Idaho Health Services Inc. does hereby
certify that it has incurred actual cost aad expended fimds in the amount of $ for
the BCI Improvements as defined in the Settlement Agceement and Relesse and hereby
requests that you release these funds in a check payable to Blue Cross of Idaho Health
Services Inc, in tt~at amoun~ Copies of invoices totaling the amouat of ttus sum are
attached.
Blue Cross of Idahp Health Services Tnc.
BY:
Its:
DATED THIS ~ day of J v h p, 2008.
Request approved by DMB Investments LLC
BY'~,,L.> ,~
I~: ~~~ ~
DATED THIS day of , 2008.
FVS/ej
c~~)