HomeMy WebLinkAboutPurchase Agreement with JLJ Enterprises, Inc. for Bittercreek Lift Station & PipelinePURCHASE AGREEMENT
FOR
BITTERCREEK LIFT STATION & PIPELINE
THIS PURCHASE AGREEMENT is made this 2
into by and between the City of Meridian, a municipal corporation organized under the laws of
the State of Idaho, hereinafter referred to as "CITY", 33 East Broadway Avenue, Meridian, Idaho
83642, and JLJ Enterprises Inc., hereinafter referred to as "DEVELOPER", whose business
address is 1560 Carol Street Meridian, Idaho 83646
INTRODUCTION
WHEREAS, DEVELOPER owns land outside the corporate limits of the City of
Meridian and desires to construct the Bittercreek Lift Station and approximately 25,000 feet of
Sewer Pipeline (shown on Exhibit "A"),
WHEREAS, upon recommendation of the Public Works Department, the City Council of CITY
has assigned the construction of said Lift Station and Sewer Pipeline (PROJECT) to the
DEVELOPER to construct the said Lift Station and Sewer Pipeline, subject to all conditions
hereinafter provided by this Agreement;
WHEREAS, pursuant to that assignment the DEVELOPER publicly bid the PROJECT and
awarded the contract to Eastern Oregon Construction (EOC);
WHEREAS, the DEVELOPER and EOC have severed their contractual relationship; see Exhibit
«C».
WHEREAS, the parties desire to purchase the existing infrastructure that is completed and meets
all City's standards and specifications;
WHEREAS, the City desires to purchase the existing materials that have been procured for the
express purpose to use for the construction of the remaining sewer pipeline necessary for the
completion of this PROJECT;
WHEREAS the parties wish to resolve undisputed claims for payment by EOC to the
DEVELOPER while not addressing in this agreement any disputed claims for damages by EOC
or any monies due to DEVELOPER for his work that has been performed to date.
NOW THEREFORE, in consideration of the foregoing premises and subject the following
conditions, CITY and DEVELOPER hereby agree:
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PIPELINE -
page 1 of 6
TERMS AND CONDITIONS
1. Scope of Purchase Agreement:
1.1 DEVELOPER
a. DEVELOPER shall maintain the performance bond for the work that is
paid for by this agreement until the City grants a release in writing.
DEVELOPER shall be required to execute at the request the city the
performance bond at any time for any reason.
b. If the performance bond is executed the DEVELOPER agrees and
indemnifies the City that all funds acquired pursuant to the bond shall be
dedicated to the completion or warranty needs of the PROJECT.
c. The DEVELOPER will assure that all lien releases for City are received
or furnish a statement by Eastern Oregon Construction with
Indemnification or to hold harmless for the work paid for by this
agreement within 30 day of execution of this agreement.
d. The DEVELOPER shall secure a bill of sale for the material that is
being purchased with this Agreement.
e. DEVELOPER will acquire a Certificate of Insurance for the location(s)
where the materials are stored that is being purchased by this Agreement.
f. DEVELOPER will acquire written assurance from the properly owner
where the Materials that are being purchased with this agreement are being
stored that the materials will be secured and available for use by the City at
any time.
g. DEVELOPER shall furnish a written guarantee to City to warranty all
work covered in this agreement for 1 year.
2. PAYMENT
In consideration of the DEVELOPER's agreement above the City will release
funds to escrow pursuant to the existing Escrow Agreement as evidenced by
Exhibit "B" in the following amounts:
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PIPELINE -
page 2 of 6
A. FiscalImpact:
PROJECT Costs: (Exhibit "D")
Completed Portion of PROJECT $255,368.55
Material Costs $118,920.09
Total (Not to exceed amount) $374,288.64
B. Payment will be processed by City to the approved escrow agreement. (See
Exhibit "B").
3. Notices: Any and all notices required to be given by either of the parties hereto,
unless otherwise stated in this agreement, shall be in writing and be deemed
communicated when mailed in the United States mail, certified, return receipt
requested, addressed as follows:
City of Meridian
Purchasing Agent
33 E. Broadway Avenue
Meridian, Idaho 83642
Ph. (208) 888-4433
JLJ Enterprises Inc.
1560 Carol Street
Meridian, Idaho 83642
Ph. (208) 955-6655
Either party may change their address for the purpose of this paragraph by giving
written notice of such change to the other in the manner herein provided.
4. Attorney Fees: Should any litigation be commenced between the parties hereto
concerning this Agreement, the prevailing party shall be entitled, in addition to
any other relief as may be granted, to court costs and reasonable attorneys' fees as
determined by a Court of competent jurisdiction. This provision shall be deemed
to be a separate contract between the parties and shall survive any default,
termination or forfeiture of this Agreement.
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PIPELINE -
page 3 of 6
5. Time is of the Essence: The parties hereto acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition and provision
hereof, and that the failure to timely perform any of the obligations hereunder
shall constitute a breach of, and a default under, this Agreement by the party so
failing to perform.
6. Assignment: It is expressly agreed and understood by the parties hereto, that
DEVELOPER shall not have the right to assign, transfer, hypothecate or sell any
of its rights under this Agreement except upon the prior express written consent of
CITY.
7. Termination: If, through any cause DEVELOPER, ,its officers, employees, or
agents fails to fulfill in a timely and proper manner its obligations under this
Agreement, violates any of the covenants, agreements, or stipulations of this
Agreement, falsifies any record or document required to be prepared under this
agreement, engages in fraud, dishonesty, or any other act of misconduct in the
performance of this contract, or if the City Council determines that termination of
this Agreement is in the best interest of CITY, the CITY shall thereupon have the
right to terminate this Agreement by giving written notice to DEVELOPER of
such termination and specifying the effective date thereof at least fifteen (15) days
before the effective date of such termination. DEVELOPER may terminate this
agreement at any time by giving at least sixty (60) days notice to CITY.
In the event of any termination of this Agreement, all finished or unfinished
documents, data, and reports prepared by DEVELOPER under this Agreement
shall, at the option of the CITY, become the City's property, and DEVELOPER
shall be entitled to receive just and equitable compensation for any work
satisfactorily complete hereunder.
Notwithstanding the above, DEVELOPER shall not be relieved of liability to the
CITY for damages sustained by the CITY by virtue of any breach of this
Agreement by DEVELOPER and the CITY may withhold any payments
DEVELOPER for the purposes of set-off until such time as the exact amount of
damages due the CITY from DEVELOPER is determined. This provision shall
survive the termination of this agreement and shall not relieve DEVELOPER of
its liability to the CITY for damages.
8. 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.
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PIPELINE -
page 4 of 6
9. Advice of Attorney: Each parry warrants and represents that in executing this
Agreement, it has received independent legal advice from its attorney's or the
opportunity to seek such advice.
10. Entire Agreement: This Agreement contains the entire agreement of the parties
and supersedes any and all other agreements or understandings, oral of written,
whether previous to the execution hereof or contemporaneous herewith.
11. Applicable Law: This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Idaho, and the ordinances of
the City of Meridian.
12. Approval Required: This Agreement shall not become effective or binding until
approved by the City of Meridian.
-.r--rrer no~~~~~
Department A
BY:
NAME: ~r~a~ -(-~, ~~cc~~
TITLE: _ ~Y~~J~:c Wo~ICS~lrrc~ro~
Dated:( /c c o2~, aD 4 `l
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PIPELINE -
page 5 of 6
Approved as to Form
CITY ATTORNEY
~~~~~/~~i G`
DATE
PURCHASE AGREEMENT FOR BITTERCREEK LIFT STATION & PII'ELINE -
page 6 of 6
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PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
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PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
PIPELINE, Page 6
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PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
PIPELINE, Page 7
10/23/2009 18:36 FAZ 2083433232 Pi>ItiCINS COIB $OIFAZ I~002
Rlciwd Q Buadmm
uwu ItBoa~3meCM4~wolcaom
October 23, 2409
BY FACSXMILE AND GFRTIFIETI MAIL
CH2M HILL.
c% Perna Robinson
322 B. Front Street. Suits 200
Boise, ID 83702
Z08.345.5315(faaslmilo)
James L. Jowett
J.I..J. Enterprises, Inc.
1560 Garol Street
Meridian, ID $3642
24$.95S.66Sd (fat~imile)
EII;HIBYT' "C"'
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Tile Ladd Qroup, Inc
do Eason Dom
462 E. Shore live, Sulfite t 00
Bogie, ID 83616
248.939.4445 (facsimile)
R,e: Bluer Greek Lint 8tatloa and PipClines Pro,~ect
NOTICE OF IN1'~1vT TO ~RMINATE
Oen#lomtarl:
Please be advised tbat, unless I3astern Oregon Constractian, LLC ("fiOC`~ receives Pnl1 payment
of its first and Second Applic~liona far Payment (the °Applications") by October 30.2009, EOC
intends to exordsc its right to tenninate the construction Agree@nent between J.L.J. ~.terprises,
Inc. ("Owned'') and BOC isolating to the Bitter Cce$k Lift latatYon and Pfpallaes ProJeat (°Project'~
pursasat to Secdo~ 15.04.Aii and/or 15.04.A.iii of the Agreem~eat Cianeral Condition8. The
Engineer (CH2M liffrL and tho Land Group) Irae failed to aot on and/or Owner has hailed to pay
both Applications which are Bast due pcusuant to the Progress Payment provisions set ibrlh in
Section 14 of tho :AgrBemer-t General Condidons:
EOC bas Oomplied with all Progress payment procedures and timely st>Ilmaitte~i the Applications
to the Engineer on Auk 19 and September 19, 2009, reapeetivcly. Pussaaat to Section
64998-~021LBOAL t 7 @ BT9Y7.1
ANGMQRAG! - EEIJINO • SR1L>!VY7 • YOIfQ • CNEGGO • OiNV@~ • LOS AiiO6li6 • IdADt40N
M@Nl,p PARK • PHO@NI% • PdRTLANO • !AR MRAIICIStO • @@ATTC! • 6NAI14Na! • WAfNIN6SQN. ac.
Fiptdh~COb W~ied A~flR~s
PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
PIPELINE, Page 8
10/Z3/Z009 iti:ST FA% Z083A3,Zg2 FBR$IN5 COIB li0IFA3 LOOS
October 23, 2009
Page 2
14.02,8.1 of the Agreement General CmtdiCtame, the Engineer wag required, within 10 days of
receipt ofthe Agplicatiot~s, to either recomtl~end payment and present the Applications to Owner
or ret~un Orem to 1300 and provide a writton mcplass~ton four mfitsi~og Qu recamm~cnd payment.
A9 neither Applic~ion has been returned to EOC, payazatt has been r~omrneaded by tlra
Engitteerto the Owner. Pursuant to 14.02.C.1 of the Supplemeatmy COndition8 ofthe
Agreement, paytneut by Owner bcaame due 20 days agar the Engineer's recommendation to the
Owner and is past due on both Applications. Parauaat to Idaho law, interest began to acxrue as
the priaoIpal amounts at the rate of ] 2°~ per anntmt when they '6ecaane due and owing.
EOC is unable to Watinue proceeding with wow on the Project without receipt of payraeat.
Although other ~ have arisen on the prvjeat {dun tv no fault of EOC) which hfi-e ~
affected ~t3Cs ability tau proceed there i$ no excuse for tltq taa7tuu of payment to be trade vn
undisputed Atpplications for work oampletad to clefs. As the aotttrttctor, BOC carmot bo expected '
to continue pelfotming vvaak sad inourring dgnitYC~rt additi0rtal expense in the sbserttx of
paytaeat.
EOG would prefer trot to ex~clse its right to te~te the Agreement and continue assisting the ~
Owner and the City of lVlertdiaa to reach as anrloable resolution of iite issues bstweert them.
Idowever, in the absence of payment; SaC suet pnoRect its interests and exercise its rights under
the Agreement to do so. BOC is hopefitl firll payment o~£the Applications wiR be roceived by the
October 30, 2009 deadliu~e. Please futrtber sofa that BOC subadiied its third, Applit~li0n to the •
Engineer on October 24th.
1300 reserves its ri is and tsotnedies with •
gh to all other relief available tinder the
Agreement and at law, incltt+ding but not llmhed to rti:covery of the Claim presrattal in my letter
of October 13, 2409• and reovvery- of all eos~ and related items set forth art sc~tlon I5.03.
Stncetely,
Richard C. Boardman ;
RCB;cgJ
cc: William Ir.M. Nary (by a [208.884.8723]]
Weston Wettste~in {by email)
steelier! G1~1 {by email}
6499~Lt718Ty27_I
PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
PIPELINE, Page 9
E~~TT KD"
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1'H$ LAND paOUP, lNC.
December 11, 2009
Protect No. 109031
Mr. Jim Jewett
J.U. Enterprises, inc.
1560 Carol Street
Meridian, i0 83642
Re: 8lttercrsek Lift Station & Pipelines-Eastern Oregon Cotrst~vctlon Fay Appflw~on #3 (revised)
and Pay Application i#4
Dear Jim:
I have received and reviewed a revised Pay AppBtatian #3R from Eastern Oregon Construction for work
on the Bittercreek Uft Station & Pipelines praJect through September 20, 2009. I recommend payment
of the revised application in the amount of $159,238,00 less reterrtlon of $7,961.00 for a rat payment of
$151,276.10.
In addition,) have received applications and supporting Information requesting paymerrt for stored
materials on the project (processed as Pay Applicetion #4, although no work under the contract Is
included). Working with J.V. Enterprses personnel, the quantity and location of the stored materials
have been verified. The total recommended stored nurteri~als payment is $118,920A9.
To date, I have recommended the following payments:
Pay Applkation 81 (Aug. 19, 2009) _$39,551.00 - $1,977.55 (retentkm) _ $37,573.45
Pay Application #2 (yep. 20, 2009)' _$70,020.00 - $3,501.00 (reter~tJon) = 566;319.00
Pay Application 83R (Oct. 20, 2009) _ $159,238. - $7,961.90 (rete~rtlon) _ $151,276.10
Pay Application 84 (Nov. 20, 2009) ° $118,920.09 stored materials
Total payments recommended a $374,288.84
Please let me, know if you have any questions.
Sincerely,
. /~
n ensurer, PE
Prindpal Chril Engineer
The Land Group, Inc.
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5tte PiannhEg • LaitdswpE Archlure • Civil Engi-.~r~g • Soil Cqufse irrtgatloR & Engineering • C~p---c Rm~' SurVeY~$
46Z E. Shore. Drive. Suite 100 • Eagle, idaffD 83616 • P 208.939.4041 • F 208.939A445 • wnv~k~elendgrouph~.wro
PURCHASE AGREEMENT AND PROGRESS PAYMENT FOR BITTERCREEK LIFT STATION AND
PII'ELINE, Page 10