HomeMy WebLinkAboutReimbursement Agreement with Linder 109, LLC for 21 Inch Sewer Trunk Overland to Ten MileCOOPERATIVE CONSTRUCTION
AND
REIM— RSEMENT AGREEMENT
21 -INCH SANITARY SEWER TRUNKLINE
OVERLAND ROAD TO TEN MILE ROAD
THIS AGREEMENT made this Allay 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 Coumcil 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 REMSURSEMENT 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 (1) 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 proposat 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 We 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 We 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 ACRD 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. Com fiance 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 u on 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 RERVMURSEMENT 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 Appreement. 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 Pro y. The term "DEVELOPEWs 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 Insuections. 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 Severabili . 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 WIEREOF, 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
LOU
CITY:
COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT—Page 7 of 12
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COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGRM&NT — Page 8 of 12
STATE OF IDAHO )
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County of Ada }
On this ja{� day of E mr c � ,2004, 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.
STATE OF IDAHO
County of Ada
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Notary Public For tdaho
Residingat:
Commission Expires: t- i 9_ 2 0 k 3
On this day of M e w e- L. ,2008, before me the undersigned, a No
Public in and for said State, personally appeared TAMMY DE WEERD and JA rGE0 Y0 -
% reCW0t IMq; 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 affixedmy o cial seal the day_,
and year first above written. rte)
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COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT - Page 9 of 12
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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 LINE A2 $232,012
LINE A2 $141,114
Total Cost
$40,939 $0
$414,066 $232,012
$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
Relmbursatile
Construction
$232,012 Hard Cost From Oversizing Reimbursement Calculations
Engineering
$26,200 Soft Cost
NW Pipeline
$5,812 Soft Cost
Surveying
$4,660 Soft Cost
Legal
$4,068 Soft Cost
License Agreement NMID
Soft Cost
Subtotal
$292,012
City Admin (2.5%)
-$5,800
REIMBURSE
$226,212 AMOUNT TO BE PAID TO SOUTHRIDGE UPON COMPLETION
LINE A2