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HomeMy WebLinkAboutReimbursement Agreement with Linder 109 for 21" Black Cat Sewer Trunk Overland RoadLinder 109, LLC (2) 1560 S. Carol St. Meridian, ID 83646 Bill To City of Meridian Invoice Date Invoice # 2119/2009 1 33 Description Amount Reimbursement - 21" Black Cat Sewer Trunk in Overland Rd. 232,012.00 Less: 2.5% Admin Fee Less: Retention -5,800.00 -5,800.60 Total $220,411.40 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT 21 -INCH SANITARY SEWER TRUNKLINE OVERLAND ROAD TO TEN MILE ROAD THIS AGREEMENT made this _''day of March, 2009, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Linder 109, LLC, 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 property to be annexed into CITY, shown on Exhibit "A" and Exhibit "C," 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; WHEREAS, the sanitary sewer system has been completed in accordance with the approved plans and the project was accepted by City on February 15, 2008. NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: A. Construction of the Project. 1. DEVELOPER has installed and constructed the Project in compliance with and subject to all conditions provided herein. 2. DEVELOPER has obtained and/or provided all engineering, surveying, contract administration, and/or permanent and temporary easements necessary for the construction of the Project. 3. DEVELOPER has undertaken and/or provided all testing, sampling and other normally conducted measures for quality control/quality assurance regarding any and all installed systems. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 1 of 12 4. CITY has provided inspection services for the construction of the Project in accordance with CITY standards. B. Solicitation of Bids. DEVELOPER has solicited bids and published requests for bid proposals for construction of the sanitary sewer system from at Ieast three (3) properly licensed public work contractors. DEVELOPER awarded the construction to the lowest responsible bidder after obtaining concurrence from CITY of low bidder. C. Contract Terms. DEVELOPER has provide CITY with a copy of the executed construction contract(s). All construction contract(s) included, at a minimum, the following provisions: 1. 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. 2. A requirement that the successful bidder be licensed as a public works contractor. 3. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within six (6) months of the date of the issuance of a Notice to Proceed from the City. 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. 4. A provision that the time for Substantial. Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, (d) weather, (e) review and/or approval processes required by outside agencies not otherwise parties to this Agreement (f) any request for extension of time approved in writing by CITY. 5. A requirement that the contractor shall mpintain liability insurance insuring against bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00) Per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence,. Said requirement is extinguished upon acceptance of Project by City. 6. 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. 7. 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. S. A provision providing at least a one (1) year warranty on the operation and materials of the Project, which warranty shall be assignable to CITY, to be secured by securing a COOPERATNE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 2 of 12 letter of credit in favor of City upon project completion in the amount of ten percent (10%) of the total Project cost. D. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER has constructed oversized 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 shared as depicted in Exhibit "C," subject to actual cost verification by City. DEVELOPER has funded 100% of the cost of the Project, at $4146, with reimbursement from the CITY in accordance with the provisions of this Agreement. E. Chane 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. In the event that a change order or other amendment to the construction contract results in a cost savings, CITY and DEVELOPER shall execute an amendment to this Agreement to reflect how the cost savings will be allocated between CITY and DEVELOPER. F. Completion of the project. 1. 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. 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. 2. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as -built drawings for the Project in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. 3. 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. 4. 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. G. Reimbursement to DEVELOPER 1. Estimated Total Reimbursement. Because DEVELOPER will construct the project, CITY shall reimburse to DEVELOPER the reimbursable amount of $232,012, less a 2.5% deduction for an administration fee, with net reimbursement to the DEVELOPER of 122fi,212. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 3 of 12 2. Method of Payment_ To receive payment, DEVELOPER will provide CITY with a written invoice for Reimbursement. Upon receipt of such invoice, CITY will pay such invoice within thirty (30) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement, including, but not limited to, section J(3), below. 3. Reimbursement Pam. CITY shall make reimbursement to DEVELOPER in two Reimbursement Payments. Adjustments based on actual costs incurred, where incurred pursuant to written change orders approved by CITY as set forth herein, will be allowed upon approval of such adjustments by City Council prior to DEVELOPER's request for the first Reimbursement Payment. CITY shall make the first Reimbursement Payment of ninety five percent (95%) of the reimbursable amount ($220,411.40) upon fulfillment of each of the following conditions: (a) DEVELOPER's satisfactory substantial completion of the construction of the sewer improvements; (b) DEVELOPER'S submission to CITY proof of costs and CITY's approval of such proof as substantially conforming to the estimated costs in the proposal'approved by City Council; and (c) Developer must be in compliance with the terms of a fully executed and binding Cooperative Development Agreement with the Ada County Highway District for the following ACRD Project: The construction of Overland Road from Linder Road to Ten Mile Road to a five (5) lane urban road section with curb, gutter and sidewalk including the realignment of Overland Road to intersect Ten Mile Road south of the Ridenbaugh Canal, the disconnection of the existing Overland Road. at Ten Mile Road, the signalization of the Overland Road/Linder Road intersection and the signalization of the realigned Overland Road/Ten Mile Road intersection, all as the same shall more specifically be defined by the plans and specifications to be prepared and approved as set forth herein and as described in the Southridge Subdivision preliminary plat approval dated September 12, 2007. The second Reimbursement Payment shall be made upon satisfactory final completion Of the Project and the ACHD Project to include asphalt and collars. The City's 2.5% administrative fee shall be deducted from the second reimbursement payment. H. Sanitary Sewer Lines on DEVELOPER's Pro e� yrt . As a condition for CITY entering this Agreement, DEVELOPER has or will request and submit to inspections by the Public Works Department and/or the Building Department of CITY whenever a building is to be connected to any and all portions of the Project constructed and installed on and/or within DEVELOPER's property. I. Compliance with Laws. 1. 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 and at DEVELOPER's sole expense shall obtain any and all licenses or permits which may be required for or in the course of the performance of this Agreement. COOPERATIVE CONSTRUCTION .AND REIMBURSEMENT AGREEMENT — Page 4 of 12 2. 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. J. Indemnification and Insurance: DEVELOPER shall indemnify and save and hold harmless CITY from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or properly and losses and expenses caused or incurred by DEVELOPER, its servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees. In addition, DEVELOPER shall maintain, and specifically agrees that it will maintain, until City accepts the Project as per Section I, liability insurance in which CITY 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 if CITY becomes liable for an amount in excess of the insurance limits herein provided, DEVELOPER covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions and/or judgments for damages and/or liability to persons and/or property. DEVELOPER shall provide CITY with a certificate of insurance or other proof of insurance evidencing DEVELOPER'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 DEVELOPER of such change, and DEVELOPER shall immediately submit proof of compliance with the changed limit. K. No Assiariment. 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. L. Remedies upon Default. 1. 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 gl perform its obligations under the terms.and provisions of this Agreement in the time and wanner required herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until such default is corrected to the satisfaction of CITY. 2. Default by CITY. 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. M. 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 unsuccessf it 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 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 5 of 12 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. N. 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 660 E. Watertower Meridian, Idaho 83642 with copy to: City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 DEVELOPER: Linder 109, LLC with copy to: Trout, Jones, Gledhill, Fuhrman, P.A. Attn: Stephen J. Gledhill P.O. Box 1097 Boise, ID 83701 Such notice shall be deemed delivered if and when delivery is accepted or tbree -(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. O. 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. P. 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. Q. 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 party shall be liable or bound to any other in any manner by COOPERATNE CONSTRUmON AND REIMBURSEMENT AGREEMENT — Page 6 of 12 any representations, warranties, covenants and agreements except as specifically set forth herein. R Definition of DEVELOPER's Proms. The term, "DEVELOPER's Property". in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto, and more specifically all of the property included in the Southridge Subdivision. S. 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. T. 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. U. 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. V. 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. 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 LINDER 109, LLC M. CITY: O/iC7 COOPERATNE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 7 of 12 i TAMMY de WEERD, MAYOR Date Attest: JAYCEE HOLMAN, CITY CLERK COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — page 8 of 12 STATE OF IDAHO ) ) ss County of Ada ) On this ��{� daY of ars ,200, before me the undersigned,. a Notary Public in and for said State, personally appeared Jim Jewett, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Ito �a 46TARY Notary Public For daho e Residing at: OW040 fl U81:% G Commission Expires:_ p tir9TE O'F �®�•' STATE OF IDAHO ) ) ss County of Ada } On this day of ,2008, before me the undersigned, a Notary Public in and for said State, personally appeared TAMMY DE WEERD and JAYCEE HOLMAN, 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 hereuxtto 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 9 of 12 EXHIBIT "A" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT —Page 10 of 12 EXHIBIT `B" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 11 of 12 EXHIBIT "C" BLACK CAT TRUNK OVERSIZED SEWER OVERLAND TO TEN MILE (LINE A2) -21" TOTAL CONSTRUCTION COSTS REIMBURSEABLE OR CITY ONSITE DEVELOPER CONSTRUCTION COSTS CONSTRUCTION COSTS LINE A2 Soft Cost $373,126 UNE A2 $232,012 $40,939 ' LINE A2 $141,114 Total Cost $414,066 $232,0$0 $40,939 $182,054 LINE A2 SOUTHRIDGE COSTS TO BE PAID IN FALL 2007 BY SOUTHRIDGE AND REIMBURSED FROM THE CITY OF MERIDIAN IN CONFORMANCE WITH COOPERATIVE AGREEMENT etmbursaba Construction Engineering $232,012 Hard Cost From Oversizing Reimbursement Calculations $26,200 Soft Cost NW Pipeline $5,812 Soft Cost Surveying $4,860 Soft Cost Legal $4,068 Soft Cost License Agreement NMID Soft Cost Subtotal $232,012 City Admin (2.50/6) -$5,800 (2.5% of Reimbursable Construction Pius Soft Costs) REIMBURSE LINE A2 $226,212 AMOUNT TO BE PAID TO SOUTHRIDGE UPON COMPLETION EXHIBIT "C" COOPERATIVE CONSTRUCTION AND REAMURSEMENT AGREEMENT — Page 12 of 12 Y Page 1 of 1 Tara Green From: Bill Nary Sent: Monday, March 09, 2009 2:21 PM To: Kyle Radek; Jaycee Holman; Tara Green; Scott Steckline; Jim Jewett Cc: Tom Barry; Ted Baird Subject: There was one error on the last page of the previous transmittal. This should be good for tomorrow night. Attachments: 21 inch overland to ten mile 03 09 09.doc 13111 N ary C ltv "-kllorrrc>%/HR Director 33 E. Broadway Meridian, ID 83642 Ph.#'s Legal - 208.898.5506 HR - 208.898.5503 Fax - 208.489.0480 Cell - 208.440.3881 3/9/2009 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT 21 -INCH SANITARY SEWER TRUNKLINE OVERLAND ROAD TO TEN MILE ROAD THIS AGREEMENT made this day of March, 2009, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Linder 109, LLC, 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 property to be annexed into CITY, shown on Exhibit "A" and Exhibit "C," 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; WHEREAS, the sanitary sewer system has been completed in accordance with the approved plans and the project was accepted by City on February 15, 2008. NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: A. Construction of the Project. 1. DEVELOPER has installed and constructed the Project in compliance with and subject to all conditions provided herein. 2. DEVELOPER has obtained and/or provided all engineering, surveying, contract administration, and/or permanent and temporary easements necessary for the construction of the Project. 3. DEVELOPER has undertaken and/or provided all testing, sampling and other normally conducted measures for quality control/quality assurance regarding any and all installed systems. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 1 of 12 4. CITY has provided inspection services for the construction of the Project in accordance with CITY standards. B. Solicitation of Bids. DEVELOPER has solicited bids and published requests for bid proposals for construction of the sanitary sewer system from at least three (3) properly licensed public work contractors. DEVELOPER awarded the construction to the lowest responsible bidder after obtaining concurrence from CITY of low bidder. C. Contract Terms. DEVELOPER has provide CITY with a copy of the executed construction contract(s). All construction contract(s) included, at a minimum, the following provisions: 1. 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. 2. A requirement that the successful bidder be licensed as a public works contractor. 3. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within six (6) months of the date of the issuance of a Notice to Proceed from the City. 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. 4. A provision that the time for Substantial Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, (d) weather, (e) review and/or approval processes required by outside agencies not otherwise parties to this Agreement (f) any request for extension of time approved in writing by CITY. 5. 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) per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence,. Said requirement is extinguished upon acceptance of Project by City. 6. 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. 7. 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. 8. A provision providing at least a one (1) year warranty on the operation and materials of the Project, which warranty shall be assignable to CITY, to be secured by securing a COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 2 of 12 letter of credit in favor of City upon project completion in the amount of ten percent (10%) of the total Project cost. D. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER has constructed oversized 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 shared as depicted in Exhibit "C," subject to actual cost verification by City. DEVELOPER has funded 100% of the cost of the Project, at $414,066, with reimbursement from the CITY in accordance with the provisions of this Agreement. E. 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. In the event that a change order or other amendment to the construction contract results in a cost savings, CITY and DEVELOPER shall execute an amendment to this Agreement to reflect how the cost savings will be allocated between CITY and DEVELOPER. F. Completion of the Project. 1. 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. 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. 2. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as -built drawings for the Project in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. 3. 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. 4. 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. G. Reimbursement to DEVELOPER. 1. Estimated Total Reimbursement. Because DEVELOPER will construct the Project, CITY shall reimburse to DEVELOPER the reimbursable amount of $232,012, less a 2.5% deduction for an administration fee, with net reimbursement to the DEVELOPER of $226,212. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 3 of 12 2. Method of Payment. To receive payment, DEVELOPER will provide CITY with a written invoice for Reimbursement. Upon receipt of such invoice, CITY will pay such invoice within thirty (30) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement, including, but not limited to, section J(3), below. 3. Reimbursement Payments. CITY shall make reimbursement to DEVELOPER in two Reimbursement Payments. Adjustments based on actual costs incurred, where incurred pursuant to written change orders approved by CITY as set forth herein, will be allowed upon approval of such adjustments by City Council prior to DEVELOPER's request for the first Reimbursement Payment. CITY shall make the first Reimbursement Payment of ninety five percent (95%) of the reimbursable amount ($220,411.40) upon fulfillment of each of the following conditions: (a) DEVELOPER's satisfactory substantial completion of the construction of the sewer improvements; (b) DEVELOPER'S submission to CITY proof of costs and CITY's approval of such proof as substantially conforming to the estimated costs in the proposal approved by City Council; and (c) Developer must be in compliance with the terms of a fully executed and binding Cooperative Development Agreement with the Ada County Highway District for the following ACHD Project: The construction of Overland Road from Linder Road to Ten Mile Road to a five (5) lane urban road section with curb, gutter and sidewalk including the realignment of Overland Road to intersect Ten Mile Road south of the Ridenbaugh Canal, the disconnection of the existing Overland Road at Ten Mile Road, the signalization of the Overland Road/Linder Road intersection and the signalization of the realigned Overland Road/Ten Mile Road intersection, all as the same shall more specifically be defined by the plans and specifications to be prepared and approved as set forth herein and as described in the Southridge Subdivision preliminary plat approval dated September 12, 2007. The second Reimbursement Payment shall be made upon satisfactory final completion of the Project and the ACHD Project to include asphalt and collars. The City's 2.5% administrative fee shall be deducted from the second reimbursement payment. H. Sanitary Sewer Lines on DEVELOPER's Property. As a condition for CITY entering this Agreement, DEVELOPER has or will request and submit to inspections by the Public Works Department and/or the Building Department of CITY whenever a building is to be connected to any and all portions of the Project constructed and installed on and/or within DEVELOPER's property. I. Compliance with Laws. 1. 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 and at DEVELOPER's sole expense shall obtain any and all licenses or permits which may be required for or in the course of the performance of this Agreement. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 4 of 12 2. 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. J. Indemnification and Insurance. DEVELOPER shall indemnify and save and hold harmless CITY 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 DEVELOPER, its servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees. In addition, DEVELOPER shall maintain, and specifically agrees that it will maintain, until City accepts the Project as per Section I, liability insurance in which CITY 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 if CITY becomes liable for an amount in excess of the insurance limits herein provided, DEVELOPER covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions and/or judgments for damages and/or liability to persons and/or property. DEVELOPER shall provide CITY with a certificate of insurance or other proof of insurance evidencing DEVELOPER'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 DEVELOPER of such change, and DEVELOPER shall immediately submit proof of compliance with the changed limit. K. No Assignment. 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. L. Remedies upon Default. 1. 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. 2. Default by CITY. 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. M. 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 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 5 of 12 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. N. 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 660 E. Watertower Meridian, Idaho 83642 with copy to: City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 DEVELOPER: Linder 109, LLC with copy to: Trout, Jones, Gledhill, Fuhrman, P.A. Attn: Stephen J. Gledhill P.O. Box 1097 Boise, ID 83701 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. O. 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. P. 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. Q. 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 party shall be liable or bound to any other in any manner by COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 6 of 12 any representations, warranties, covenants and agreements except as specifically set forth herein. R. Definition of DEVELOPER's Propeerty. The term "DEVELOPER's Property" in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto, and more specifically all of the property included in the Southridge Subdivision. S. 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. T. 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. U. 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. V. 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. 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: LINDER 109, LLC Tim Eck, Managing Member Date CITY: COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 7 of 12 TAMMY de WEERD, MAYOR Date Attest: JAYCEE HOLMAN, CITY CLERK COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 8 of 12 STATE OF IDAHO ) ss County of Ada ) On this day of ,2008, before me the undersigned, a Notary Public in and for said State, personally appeared Tim Eck, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she 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 ,2008, 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 9 of 12 EXHIBIT "A" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 10 of 12 EXHIBIT "B" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page I 1 of 12 EXHIBIT "C" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 12 of 12 RECEIVE e m o NAR 0 6 2009 CITY OFC a"u . CITY CLERKS OFFICE To: Charlie Rountree, Council President From: Kyle Radek CC: Clint Dolsby, Scott Steckline, Tom Barry, Bill Nary Date: 3/6/09 Re: Proposed Agenda Item for March 10, 2009 City Council Meeting The following information is provided as requested regarding the reimbursement agreement with Linder 109 for construction of the 21 inch trunk sewer on the new alignment of Overland Road from existing Overland to Ten Mile Road. This agreement was originally discussed by City Council briefly on August 6 and August 14, 2007. The agreement was discussed a special Council meeting on December 20, 2007 where the Council made a decision on some specific points of the agreement and directed Legal to make appropriate changes in the language of the agreement. The agreement was never finished, but the project was completed, with the exception of finishing after road construction (raising manholes to grade). The attachments provided for City Council outline the cost of construction and reimbursement which is supported by other documents submitted by Linder 109. The costs of engineering, surveying and other "soft costs" have not been included as reimbursable expenses per notes from the August Council meetings. The reimbursement is scheduled at 95% of the total reimbursable due per the meeting notes of December 20. We do not believe there is any need to secure any collateral for warranty since the sewer lines have been inspected and accepted for over a year. The developer is out of town and has not yet executed this agreement, but requested that it be scheduled for Council as he would execute it before the Council date. Public Works intends to request to have this removed from the agenda if it is not executed and delivered to Public Works by noon on the day of the meeting. Please contact me if you have any other questions. 0 Page 1 Thank you. • Page 2 Memo To: Jaycee Holman; Tara Green From: Kyle Radek CC: Clint Dolsby Date: 3/5/09 Re: Proposed Agenda Item for March 10, 2009 City Council Meeting The Public Works Department respectfully requests the following item be placed on the March 10 City Council agenda, under Public Works Department Reports, for Council's consideration: Reimbursement Agreement with Linder 109 for 21 inch Sewer Trunk from Overland to Ten Mile Road The intent of the reimbursement agreement was agreed to by Council during a special Council meeting on December 20, 2007. Recommended Council Action: The Public Works Department Recammends that Council approves the reimbursement agreement with Linder 109 for construction of the 21 inch trunk sewer from Overland to Ten Mile Road for a cost of $226,212 and authorizes the Mayor to sign it. Thank you for your consideration. Please contact me if you have any questions. • Page 1 xHi/3i C c wrrs rn �a too� 0 0 0 r MN 1-�. SHEPHERD t t E r�*i c:> E -f j=j j Gf CREEK -55 +C7 r -F-p -i- r +- J C) a n o o m Z N m n N 0VERL4ND STODDARD MERIDIAN Z o N Lu 0 W= ® Z Q QTY SME Naza W F T Z Q W f1� � 66. 0 N bj = O m � U LU VJ ExHr�rr � 048pI UBipuaw r � Nunjl jemoS peon puePeno �b No1S1A1a9nS BJ©l2dH1noS 2 erg I l l l l t 1 y � 044 Q p< nAzgl C1 41 M41 � V 4 K Y111 ` Pil2 x U 3 U Z w es m tyi to tr) Mill 2 erg I l l l l t 1 y 0.0.0. 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A2 W Q 0 P4 0 t zr f L .. . . ....... fee 11—A J ;4— M ... .. ....... p fo A V I It . . . . . . . . . . ............. )ooz 'zo 'Jsw lis Tvnoaddb kON3iJV �a+tet NUnJj JGMGS peOU PUlapSAO � ♦ i�# = _ � ° I � : NOISIAIasnS 3JQRIHlnos hill r ecesx 19 Hill,y F'i;bx . / aS_ Taft Y. apeTT,.` ' ` • �� / / EXHIBIT "C" BLACK CAT TRUNK OVERSIZED SEWER OVERLAND TO TEN MILE (LINE A2) - 21" TOTAL REIMBURSEABLE OR CITY CONSTRUCTION COSTS CO RUCTION COSTS LINE A2 $373,126 LINE A2 $232,092 Soft Cost $40,939 $0 Total Cost $414,066 $232,012 LINE A2 SOUTHRIDGE COSTS TO BE PAID IN FALL 2007 BY SOUTHRIDGE AND REIMBURSED FROM THE CITY OF MERIDIAN IN CONFORMANCE WITH COOPERATIVE AGREEMENT Reimbursable Construction $232,012 Hard Cost From Oversizing Reimbursement Calculations Engineering $26,200 Soft Cost NW Pipeline $5,812 Soft Cost Surveying $4,860 Soft Cost Legal $4,068 Soft Cost License Agreement NMID Soft Cost Subtotal $232,012 ONSITE DEVELOPER CONSTRUCTION COS LINE A2 $141,114 $40939 $182,054 City Admin (2.59/a) 45,800 REIMBURSE $226,212 AMOUNT TO BE PAID TO SOUTHRIDGE UPON COMPLETION LINE A2 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT 21 -INCH SANITARY SEWER TRUNKLINE OVERLAND ROAD TO TEN MILE ROAD THIS AGREEMENT made this day of March, 2009, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Linder 109, LLC, 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 property to be annexed into CITY, shown on Exhibit "A" and Exhibit "C," 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; WHEREAS, the sanitary sewer system has been completed in accordance with the approved plans and the project was accepted by City on February 15, 2008. NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: A. Construction of the Project. 1. DEVELOPER has installed and constructed the Project in compliance with and subject to all conditions provided herein. 2. DEVELOPER has obtained and/or provided all engineering, surveying, contract administration, and/or permanent and temporary easements necessary for the construction of the Project. 3. DEVELOPER has undertaken and/or provided all testing, sampling and other normally conducted measures for quality control/quality assurance regarding any and all installed systems. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 1 of 9 4. CITY has provided inspection services for the construction of the Project in accordance with CITY standards. B. Solicitation of Bids. DEVELOPER has solicited bids and published requests for bid proposals for construction of the sanitary sewer system from at least three (3) properly licensed public work contractors. DEVELOPER awarded the construction to the lowest responsible bidder after obtaining concurrence from CITY of low bidder. C. Contract Terms. DEVELOPER has provide CITY with a copy of the executed construction contract(s). All construction contract(s) included, at a minimum, the following provisions: 1. 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. 2. A requirement that the successful bidder be licensed as a public works contractor. 3. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within six (6) months of the date of the issuance of a Notice to Proceed from the City. 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. 4. A provision that the time for Substantial Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, (d) weather, (e) review and/or approval processes required by outside agencies not otherwise parties to this Agreement (f) any request for extension of time approved in writing by CITY. 5. 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) per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence,. Said requirement is extinguished upon acceptance of Project by City. 6. 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. 7. 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. 8. A provision providing at least a one (1) year warranty on the operation and materials of the Project, which warranty shall be assignable to CITY, to be secured by securing a COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 2 of 9 letter of credit in favor of City upon project completion in the amount of ten percent (10%) of the total Project cost. D. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER has constructed oversized 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 shared as depicted in Exhibit "C," subject to actual cost verification by City. DEVELOPER has funded 100% of the cost of the Project, at $414,066, with reimbursement from the CITY in accordance with the provisions of this Agreement. E. 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. In the event that a change order or other amendment to the construction contract results in a cost savings, CITY and DEVELOPER shall execute an amendment to this Agreement to reflect how the cost savings will be allocated between CITY and DEVELOPER. F. Completion of the Project. 1. 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. 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. 2. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as -built drawings for the Project in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. 3. 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. 4. 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. G. Reimbursement to DEVELOPER. 1. Estimated Total Reimbursement. Because DEVELOPER will construct the Project, CITY shall reimburse to DEVELOPER the reimbursable amount of $232,012, less a 2.5% deduction for an administration fee, with net reimbursement to the DEVELOPER of $226,212. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 3 of 9 2. Method of Payment. To receive payment, DEVELOPER will provide CITY with a written invoice for Reimbursement. Upon receipt of such invoice, CITY will pay such invoice within thirty (30) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement, including, but not limited to, section J(3), below. 3. Reimbursement Payments. CITY shall make reimbursement to DEVELOPER in two Reimbursement Payments. Adjustments based on actual costs incurred, where incurred pursuant to written change orders approved by CITY as set forth herein, will be allowed upon approval of such adjustments by City Council prior to DEVELOPER's request for the first Reimbursement Payment. CITY shall make the first Reimbursement Payment of ninety five percent (95%) of the reimbursable amount ($220,411.40) upon fulfillment of each of the following conditions: (a) DEVELOPER's satisfactory substantial completion of the construction of the sewer improvements; (b) DEVELOPER'S submission to CITY proof of costs and CITY's approval of such proof as substantially conforming to the estimated costs in the proposal approved by City Council; and (c) Developer must be in compliance with the terms of a fully executed and binding Cooperative Development Agreement with the Ada County Highway District for the following ACHD Project: The construction of Overland Road from Linder Road to Ten Mile Road to a five (5) lane urban road section with curb, gutter and sidewalk including the realignment of Overland Road to intersect Ten Mile Road south of the Ridenbaugh Canal, the disconnection of the existing Overland Road at Ten Mile Road, the signalization of the Overland Road/Linder Road intersection and the signalization of the realigned Overland Road/Ten Mile Road intersection, all as the same shall more specifically be defined by the plans and specifications to be prepared and approved as set forth herein and as described in the Southridge Subdivision preliminary plat approval dated September 12, 2007. The second Reimbursement Payment shall be made upon satisfactory final completion of the Project and the ACHD Project to include asphalt and collars. The City's 2.5% administrative fee shall be deducted from the second reimbursement payment. H. Sanitary Sewer Lines on DEVELOPER's Property. As a condition for CITY entering this Agreement, DEVELOPER has or will request and submit to inspections by the Public Works Department and/or the Building Department of CITY whenever a building is to be connected to any and all portions of the Project constructed and installed on and/or within DEVELOPER's property. I. Compliance with Laws. 1. 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 and at DEVELOPER's sole expense shall obtain any and all licenses or permits which may be required for or in the course of the performance of this Agreement. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 4 of 9 2. 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. Indemnification and Insurance. DEVELOPER shall indemnify and save and hold harmless CITY 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 DEVELOPER, its servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees. In addition, DEVELOPER shall maintain, and specifically agrees that it will maintain, until City accepts the Project as per Section I, liability insurance in which CITY 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 if CITY becomes liable for an amount in excess of the insurance limits herein provided, DEVELOPER covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions and/or judgments for damages and/or liability to persons and/or property. DEVELOPER shall provide CITY with a certificate of insurance or other proof of insurance evidencing DEVELOPER'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 DEVELOPER of such change, and DEVELOPER shall immediately submit proof of compliance with the changed limit. K. No Assignment. 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. L. Remedies upon Default. 1. 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. 2. Default by CITY. 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. M. Attorney. 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 COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 5 of 9 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. N. 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 660 E. Watertower Meridian, Idaho 83642 with copy to: City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 DEVELOPER: Linder 109, LLC with copy to: Trout, Jones, Gledhill, Fuhrman, P.A. Attn: Stephen J. Gledhill P.O. Box 1097 Boise, ID 83701 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. O. 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. P. 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. Q. 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 party shall be liable or bound to any other in any manner by COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 6 of 9 any representations, warranties, covenants and agreements except as specifically set forth herein. R. Definition of DEVELOPER's Property. The term "DEVELOPER's Property" in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto, and more specifically all of the property included in the Southridge Subdivision. S. 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. T. 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. U. 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. V. 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. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 7 of 9 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: LINDER 109, LLC IC Tim Eck, Managing Member Date CITY: TAMMY de WEERD, MAYOR Date Attest: WILLIAM G. BERG, JR., CITY CLERK COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT — Page 8 of 9 STATE OF IDAHO ) ss County of Ada ) On this day of ,2008, before me the undersigned, a Notary Public in and for said State, personally appeared Tim Eck, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she 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 ,2008, 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 9 of 9