HomeMy WebLinkAboutReimbursement Agreement with JLJ Enterprises, Inc. for 12 Inch Water Main Overland & Linder
COOPERATIVE CONSTRUCTION
AND
REIMBURSEMENT AGREEMENT
12-INCH WATER MAIN
FROM THE INTERSECTION OF OVERLAND AND CINDER ROADS WEST
APPROXIMATELY 5x00 FEET
THIS AGREEMENT made this day of ~ ~ , 2009, by and between the
CITY OF MERIDIAN, a municipaLcorporation, hereinafter called "CITY," and .!w Enterprises,
Inc., hereinafter caged "DEVELOPERA:
WITNESSETH:
WHEREAS, DEVELOPER owns land inside the corporate limits of the City of Meridian and
desires to construct approximately 6,000 feet of 12-inch water main, along Overland Road,
to be owned, operated, and maintained by CITY to serve DEVELOPER's property, South
Ridge Subdivisions {shown on Exhibit "A"), and has requested reimbursement for a portion
of the 12-inch water main;
WHEREAS, upon recommendation of the Public Works Department, the City Council of
CITY accepted and approved the proposal of DEVELOPER to construct the said 12-inch
water main system, subject to all conditions hereinafter provided by this Agreement;
NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER
hereby agree:
A. Preparation of Plans.
DEVELOPER has prepared plans and specifications, drawings, instructions, bid
proposal and all other contract documents for the construction and installation of the
12-inch water main system (hereinafter called "Project"), shown on preliminary plans
{hereinafter called "Exhibit "B`~, including rights-of-way, grades and elevation, and
materials used in the construction and installation of said Project.
B. Fiinal Araproval of Plans.
Prior to commencement of construction, CITY shall approve or reject, in its discretion,
the Project plans. CITY and DEVELOPER shalt acknowledge in writing the final plans,
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and said plans shall net thereafter be modified in any material way unless such
modifications are approved in writing signed by CITY and DEVELOPER.
C. Solicitation of Bids.
DEVELOPER will solicit bids for construction using the City Purchasing Department's
bid procedures at a minimum. DEVELOPER Shall work with the City Purchasing
Manager in developing the bid and establishing a due date. A representative of the
City Purchasing Department must attend the bid opening. DEVELOPER will award
the construction contract to the lowes# responsible bidder after obtaining concurrence
from the CITY Purchasing Manager of law bidder and City Council approval.
D. Contract Terms.
DEVELOPER shall provide CITY with a copy of the executed construction contract{s)
prior to the start of any construction. All constnrction contract(s) shall include, at a
minimum, the fallowing provisions:
1. A requirement that the contractor provide payment and pertormance bands in the
amount of one hundred percent {100%) of the total Project cost Warning 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
as required by Idaho State Statute 54-1902.
3. A requirement that the construction of the Project shall be in accordance with the
approved designs, plans, and specifications and be Substantially Complete by June 1,
2009. 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 andlor
approval processes required by outside agencies not otherwise parties to this
Agreement (fl any request for extension of time approved in writing by CITY.
5. A requirement that the contractor shall maintain liability insurance insuring against
badily 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, naming the City as an additional insured and
provide a certificate of said insurance prior to the start of construction. Said
requirement is extinguished upon acceptance of Projec# by City.
&. A prevision that the contractor shall indemnify CITY and DEVELOPER from any
and all claims by third persons arising out of the performance of the contract.
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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
the posting of a performance bond in favor of City upon project completion. in the
amount of ten percent ~(10%) of the total Project cost.
E. Conditions Precedent to Execution of Construction Contract(s).
Prior to execution of any construction contract, the following conditions shall be
satisfied:
1. Prior to the start of construction in 2009 the DEVELOPER shalt secure financial
surety acceptable to ACHD guaranteeing the completion of the Overland Road
realignment project.
2. DEVELOPER shall provide proof to CITY that the completion of the Overland Road
realignment project has not been canceled or postponed.
3. DEVELOPER shall obtain written approval from CITY of the form and terms of such
construction contract, which approval may be withheld for any reason, including but not
limited to DEVELOPER'S failure to obtain a construction contract that contains the
provisions required by this Agreement, but which approval shall not otherwise be
unreasonably withheld.
4. Any easements required for the Project or the construction thereof shall be deeded
to CITY and recorded prior to construction of the Project.
F. DEVELOPER and CITY Responsibility for Costs.
Because the DEVELOPER will construct the Project, as shown on Exhibit "Bn, it is
mutually agreed that the cost of the Project will be subject to actual cost verification by
CITY. DEVELOPER shall fund 100% of the cost of the Project, estimated at
X229,896.90.
The City will reimburse the DEVELOPER for 50% of the project estimate (subject to
cost verification} less an administration fee of $9,384.60 as listed in paragraph J.
G. Construction of the Project.
1. DEVELOPER shall install and construct the Project in compliance with and subject
to all conditions provided herein.
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2. DEVELOPER shall obtain and/ar provide all engineering, surveying, contract
administration, andJor permanent and temporary easements necessary for the
construction of the Project.
3. DEVELOPER shall undertake and/or provide all testing, sampling and other
normally conducted measures for quality controllquality assurance regarding any and
all installed systems.
4. CITY shall provide inspection services for the construction of the Project in
accordance with CITY standards.
H. Chanrxe Qrders 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.
I. Comple#ion of th® Project.
1. It is the desire of the City and in agreement with the Developer that this project be
substantially completed by June 30, 2009 to be in alignment with the Ada County
Highway District's needs for the road system in this area. The DEVELOPER and the
CITY discussed and agreed to this completion date on September 16, 2008 in a City
Council meeting.
2. Upon final completion of the Projecfi, DEVELOPER shall furnish #o 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-confom~ing with the approved plans, in which case DEVELOPER shall
promptly cause the remediation of all non-conforming matters.
3. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive
as-built drawings for the Project in both a reproducible, printed forma#, on both mylar
and in electronic files in AutoCAD forma#.
4. 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.
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5. Upon completion of the Project, DEVELOPER shall represent and wan-ant that the
Project is free and clear of all liens and encumbrances not created by or with the
written consent of CITY.
6. Upon completion of the Project, CITY'shall issue an approval letter accepting
ownership to DEVELOPER.
J. Reimbursement.to DEVELOPER.
Because DEVELOPER will construct the Project, CITY shall reimburse to
DEVELOPER 50°10 50°/a of the project estimate {subject to cost verification} less an
administration fee of $9,384.60 as listed below.
Construction Cost $229,896.90
Gity portion of Construction Cost $115,214.20
Less Administration fee of -$ 9,384.60
Design & Engineering Costs $ 12,806.25
Soft Costs ,,., $ 1,0.220.38
Total City Responsibility $128,856.23
CITY to pay $100,000.00 to DEVELOPER within thirty (30} Day's upon project
completion, which shall be no later than June 30, 2009 unless delay is caused by
something outside the control of the DEVELOPER, and CITY's acceptance of the
project. The City shall not be obligated to pay any amount after June 30, 2009 unless
the DEVELOPER can prove to the CITY that they delay was outside of his control. If
such showing is made the CITY may allow for a reasonable period of time to cure the
default and shall pay this amount at the later designated date.
The CITY Project Manager will conduct an audit of this agreement on a quarterly basis,
beginning three months from the date of this agreement, and reimburse the
DEVELOPER the remainder of the-CITY's responsibility in accordance wi#h this .
agreement from the assessment fees .collected during the audit period for the
DEVELOPERS property, South Ridge Subdivision.
K. Term of Agreement.
Payments shall continue under this agreement for a period of 5 (five} years from the
date of execution of this agreement by CITY, or until DEVELOPER is reimbursed the
full amount of $128,856.23, whichever occurs first. The City ordinance in effect at the
time of-execution of this agreement does not allow the term of this agreement to
extend beyond 5 (five} years. if the DEVELOPER has not been reimbursed the
estimated amount as shown above after five.{5} years from the date of this agreement,
and if the CITY ordinance has been amended to allow this agreement to be extended
beyond a five year period, then this agreement may be extended by mutual Agreement
of the CITY and the DEVELOPER. This provision is intended to allow CITY to
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consider extending this agreement if allowed by ordinance and does not commit CITY
to agree to such an extension if allowable.
L. Water and Sewer Lines on DEVELOPER'S Prouerty.
As a condition for CITY entering this Agreement, DEVELOPER has or wil[ 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 properly.
M, Compliance wi#h Laws.
1. In constructing and installing the Project on and/or within its property,
DEVELOPER, at its sole expense, shall comply with any and ail taws, orders and
regulatians of Federal, State and local authorities and at DEVELOPER' 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.
2. Upon connection to the City of Meridian water and sanitary system, DEVELOPER
shall abide by all applicable CITY laws, rules and regulations pertaining to water and
sanitary sewer systems.
N. Indemnification and Insurance.
DEVELOPER shall include in all contracts between DEVELOPER and the contractors
the indemnification and insurance requirements as set forth in this paragraph. All
contractors shalt indemnify and save and hold harmless CITY and DEVELOPER from
and for any and all losses, claims, actions, judgments for damages, and/or injury to
persons or property and losses and expenses caused or incur-ed by contractors; their
servants, agents, employees, guests, and/or business invitees, and not. caused by pr
arising ou# of tortious conduct of CITY or its employees or its DEVELOPER. In
addition all contractors shall maintain, and specifically agrees that it will maintain,
throughout the pendency of this Agreement, liability insurance in which CITY and
DEVELOPER shall be named insured in the minimum amount as specified in the Idaho
Tart Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. "The limits of such
insurance shall not be deemed a limitation of the covenants to indemnify and save and
hold harmless CITY and DEVELOPER, and if CITY and~DEVELOPER become liable
for an amount in excess of the. insurance limits herein provided Ci#y and 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
evidencing DEVELOPER'S compliance with the requirements of this paragraph by
filing such proof of insurance with the City Purchasing Manager. In the event the
insurance minimums of the Idaho Tort Claims Act are changed, CITY shall notify
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DEVELOPER of such change, and DEVELOPER shall immediately submit proof of
compliance witE~t the changed limit. City hereby indemnifies and saves and holds
harmless DEVELOPER ftom and for any and a!I losses, claims, actions judgments for
damages, and/or injury to persons or property and losses and expenses caused or
incurred by CITY, its servants, agents, employees, and those parties under the control
or direction of the CITY. The duty to indemnify shall also include the duty to defend
DEVELOPER at the ClTY'S cost.
4. 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.
P. Remedies_ u pon Default.
1. Default by DEVELOPER. In addition to such other remedies at law or in equity that
CITY may have, in the event DEVELOPER faits 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 pravisians of this Agreement in the time and manner required herein,
DEVELOPER shall be entitled to all remedies available at !aw or in equity.
Q. Attorr~ey Fees.
Should either party frnd 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 disagreemen# 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 ail reasonable costs,
charges and expenses, including attorneys' fees expended or incurred by the
prevailing party in connection therewith and in connection with any appeal, and the
same may be included in such judgment or award. This provision snail be deemed to
be a separate con#ract between the parties and shall survive any default, termination or
forteiture of this Agreement.
R. Notices.
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Any notice desired by the parties andlor 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:
City Engineer
City of Meridian
33 E. Broadway Ave, Suite # 102
Meridian, Idaho 83642
with copy to:
Purchasing Manager
City of Meridian
33 E. Broadway Ave, Suite # 106
Meridian, Idaho 83642
DEVELOPER:
JLJ Enterprises Inc.
1560 Carol Street
Meridian, Idaho 83642
Such notice shall be deemed delivered if and when delivery is accepted or three (3)
days after deposi# in the United States Mail. Either party shad 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.
S. 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.
T. 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.
U, 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
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no party shall be liable or bound to any other in any manner by any representations,
warranties, covenants and.agreements except as specifically set forth herein.
W. Definition of DEVELOPER's Property.
The term "DEVELOPER's Propertyn in the Agreement shalt mean the parcels shown
on Exhibifi "A° attached hereto, and more spec~cafly all of the property included in the
South Ridge Subdivision.
W. Binding Effect.
This Agreement shelf 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.
X. Reports and Information.
At such times and in such forms as the CITY may require, DEVELOPER shall famish
to CITY such s#atements, records, reports, data and information as the CITY may.
request pertaining to matters covered by this Agreement.
Y. Audits and #nstoections.
Af any time during business hours and as often as the CITY may deem necessary,
there shall be made available to.~he CITY for examinatign al[ of DEVELOPER'sa.
records with respect #o aft matters covered by this Agreement. DEVELOPER shall
permit the CITY to audit, examine, and copy such records, and to malce.audits of all
contracts, invoices, materials, payrolls, records of personnel, conditions of employment
and other data relating to all matters covered by this Agreement.
Z. Constnaction and Severabillty.
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.
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IN WITNESS WHEREC3F, the parties shall cause this Agreement to be executed by their
duly authorized officers the day and year first above written:
DEVELOPER:.3LJ Enterprises, Inc
Title -
Date
x'16
Date
~~
TY
~~~
o ~
+~
~~ Q
Approved as to Content
TH WATTS, URCHASi~NyG MANAGER
Da#ed: ~ 12 ~ 0 t
Page 10 of 11
~~ ~ )~~e
Name (printed)
)~
County of Ada )
STATE OF IDAHO }
On #his 12~~ day ofi__~Q,.~h ,_,2009, before me the undersigned, a
Notary Public in and for said State, personally appeared me s L, T W ~
known or identified to me to lje the person whose name is subscribed to the within
ins#rument, and acknowledged to me that he/she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official sea( the day
and year first above written.
Notary Pu !' For fdaho
Residing at: NaA~~a, Z p
Commission Expires:__ ~ _ 2 g - 2013 _
STATE OF IDAHO }
ss
County of Ada }
,'~~..!~~~V E R~~.y.•
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On this 1 ~° day of ~ M L~ cl,~ ,2009, before me the undersigned, a
Notary Public in and for said State, personally appeared TAMMY de WEERD and JA~~~~.
e~ F°I~~, 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.
Public
Residing at: ` V\~; ~; ~,. ,~d~l~
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