HomeMy WebLinkAboutAmend and Restart Sewer & Service Agreement with Coleman Homes for Cabella Creek HomesADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 1
BOISE IDAHO 06/23/10 03:24 PM
RECORDED $ REQUEST OF II I I I II (II (~ I ~~ ~~ ~ IIII ~~ ~~~~ ~ IIII ~ ~~~
Meridian Ciry 11 E1O~7971
AMENDED AND RESTATED SEWER SERVICE AGREEMENT
Parties: 1. City of Meridian
2. Coleman Homes LLC
THIS SEWER SERVICE AGREEMENT ("Agreement") is made and entered into this
Z Z day of June 2010, by and between City of Meridian, a municipal corporation of the State
of Idaho (hereinafter called "City") and Coleman Homes LLC, an Idaho limited liability
company, whose address is 1859 S. Topaz Way, Suite 200, Meridian, Idaho 83642 (hereinafter
"Coleman").
RECITALS
WHEREAS, Coleman is the owner of the Cabella Creek Subdivision located at the
Northeast Corner of Mesa Way and East Victory Road, situated in a portion of the SE '/ of
T.3N., R.lE., Section 19, Boise Meridian, Ada County, Idaho as legally described in Exhibit A,
attached hereto and incorporated herein; and
WHEREAS, as a condition of approval of the Final Plat of Cabella Creek Subdivision
(FP-06-044) ("Final Plat") the owner/developer of the subdivision is responsible to provide
sewerability to the subdivision through the installation of a temporary off-peak sanitary sewer
pumping station in a location designated by the Public Works Department; and
WHEREAS, the prior owner of the Cabella Creek Subdivision, ATM Development LLC
("ATM"), provided a letter of credit to assure construction of the sanitary sewer pumping station;
and
WHEREAS, Coleman became responsible for the construction of the sanitary sewer
pumping station upon assuming ownership of the Cabella Creek Subdivision; and
WHEREAS, City and Coleman have agreed to an alternative and permanent plan, in lieu
of the installation of a temporary off-peak sanitary sewer pumping station, to provide the
required sewer capacity to the Cabella Creek Subdivision, to wit: The construction of an
extension of the Black Cat Sewer Line; and
WHEREAS, Coleman has agreed to provide funding for its proportionate share of the
extension of the Black Cat Sewer Line to provide sewerability to the Cabella Creek Subdivision;
and
WHEREAS, City has agreed to continue to provide sewer services to the Cabella Creek
Subdivision; and
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 1 of 7
WHEREAS, the City has agreed that Coleman's participation in funding the extension of
the sewer line satisfies the condition of approval on the Final Plat requiring construction of the
temporary pumping station; and
WHEREAS, in June 2009, the parties executed a Sewer Service Agreement, signed by
Coleman on June 11, 2009 and by City on June 16, 2009 ("Prior Agreement"); and
WHEREAS, the parties intend this Agreement to amend and restate, in its entirety, the
Prior Agreement, such that the Prior Agreement shall be null, void and of no further effect
following the execution of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
which the parties agree are good and adequate consideration, the parties agree as follows:
1. INCORPORATION OF RECITALS. That the above recitals are contractual
and binding, true and correct, and are incorporated herein as if set forth in full.
2. DEFINITIONS. For all purposes of this Agreement the following words, terms,
and phrases herein contained in this section shall be defined and interpreted as herein provided
for, unless the clear context of the presentation of the same requires otherwise:
(a) City means and refers to the City of Meridian, a party to this Agreement,
which is a municipal corporation and government subdivision of the State of Idaho, organized
and existing by virtue of law of the State of Idaho, whose address is 33 E. Broadway Avenue,
Meridian, Idaho 83642.
(b) Owners/Developers means and refers to Coleman Homes LLC, whose
address is 1859 S. Topaz Way, Suite 200, Meridian, ID 83642, and shall include any subsequent
owner(s) or developer(s) of the Property.
(c) Property means and refers to that certain parcel(s) of property located in
the County of Ada, City of Meridian as described in Exhibit A and by this reference incorporated
herein as if set forth at length.
3. AGREEMENTS REGARDING PROVISION OF SEWER SERVICES.
(a) Payment of Proportionate Share. Within ten (10) days following
execution of this Agreement, Coleman shall make none-time payment of One Hundred Sixteen
Thousand Two Hundred Eighty One Dollars and 27/100ths ($116,281.27), which is the parties'
current estimate of Coleman's proportionate share of the extension of the Black Cat Sewer Line
to provide sewerability to the Cabella Creek Subdivision ("Coleman Sewer Contribution"). In
the event that Coleman's proportionate share of the actual cost of the Black Cat Sewer Line
extension is less than $116,281.27, as established by bills or receipts received by City, City shall
promptly pay Coleman the difference between $116,281.27 and the actual proportionate share.
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 2 of 7
(b) Agreement to Provide Sewer Services; Satisfaction of Condition. In
exchange for the Coleman Sewer Contribution, the City shall continue to provide necessary
sewer services to the Cabella Creek Subdivision, and the lots located therein. Furthermore, the
City accepts the Coleman Sewer Contribution in satisfaction of its condition of approval on the
Final Plat for the Cabella Creek Subdivision that the Owner/Developer of the Property install a
temporary off-peak sanitary sewer pumping station in a location designated by the City's Public
Works Department.
4. CITY REPRESENTATIONS AND WARRANTIES. City represents and
warrants that after all necessary easements have been obtained, it will design and install the
extension of the Black Cat Sewer Line in accordance with City standards and design parameters
necessary to accommodate approved development on the Property, applicable laws, and the plans
for the Cabella Creek Subdivision approved by City. City represents and warrants that the
approved plans accommodate sewer service for the total units approved for development on the
Property. City further represents and warrants that it will reserve sufficient sewer treatment
capacity to serve the lots approved on the Property.
5. NOTICES. Any notice under this Agreement shall be in writing and be delivered
in person or by public or private courier service (so long as such services provide written
confirmation of delivery) (including U.S. Postal Service Express Mail) or certified mail, return
receipt requested. Any notice given by registered or certified mail shall be sent with return
receipt requested. All notices shall be addressed to the parties at the addresses contained herein
or at such other addresses as the parties may from time to time direct in writing. Any notice shall
be deemed to have been given on (a) actual delivery or refusal, or (b) three (3) business days
after mailing by registered or certified mail.
If to City: City of Meridian
Attention: City Clerk
33 E. Broadway Avenue
Meridian, Idaho 83642
With copy to: Attention: City Attorney
33 E. Broadway Avenue
Meridian, Idaho 83642
If to Coleman: Coleman Homes LLC
Attention: Thomas M. Coleman, Jr.
1859 S. Topaz Way, Suite 200
Meridian, Idaho 83642
With a copy to: Givens Pursley LLP
Attention: Deborah E. Nelson
601 W. Bannock Street
P.O. Box 2720
Boise, Idaho 83701
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 3 of 7
6. 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 maybe granted, to court costs and reasonable attorney fees as determined by a court of
competent jurisdiction, including reasonable attorneys' fees on appeal. This provision shall be
deemed to be a separate contract between the parties and shall survive any default, termination or
forfeiture of this Agreement.
7. BINDING UPON SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of the parties' respective heirs, successors, assigns and personal
representatives, including City's corporate authorities and their successors in office. Nothing
herein shall in any way prevent sale or alienation of the Property, or portions thereof. City
agrees, upon written request of Owner/Developer, to execute appropriate and recordable
evidence of termination of this Agreement if City, in its sole and reasonable discretion, had
determined that Owner/Developer has fully performed its obligations under this Agreement.
8. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties hereto with respect to the subject matter hereof and supersedes and
extinguishes all written or oral prior agreements between the parties hereto with respect to the
subject matter hereof. No extension, change, modification or amendment to or of this
Agreement of any kind whatsoever shall be made or claimed by the City or Coleman, and no
notice of any extension, change, modification or amendment made or claimed by the City or
Coleman shall have any force or effect whatsoever unless the same shall be endorsed in writing
and be signed by the party against which the enforcement of such extension, change,
modification or amendment is sought, and then only to the extent set forth in such instrument.
9. GENERAL. Time is of the essence for this Agreement. If any provision of this
Agreement is held not valid by a court of competent jurisdiction, such provision shall be deemed
to be excised from this Agreement and the invalidity thereof shall not affect any of the other
provisions contained herein. This Agreement may be executed in counterparts, each of which
shall constitute an original, but all together shall constitute one and the same Agreement. The
laws of the state of Idaho shall govern this Agreement.
[End of Text)
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 4 of 7
IN WITNESS WHEREOF, the parties have herein executed this Agreement and made it
effective as hereinabove provided.
OWNER/DEVELOPER:
STATE OF IDAHO
County of Ada
ss.
COLEMAN HOMES LLC
B i ~.
Y
Thomas M. Coleman, Jr.
~r
On this ~ day of .Stun ~Pi , 2010, before me, a Notary Public in and for said
State, personally appeared Thomas M. Coleman, Jr., known or identified to me to be the person who
signed the above on behalf of Coleman Homes LLC, and acknowledged to me that he executed the
same on behalf of said entity.
~ l~ NOTARY PUBLIC for IDAHO
~~ p~ Residing at pY~~iR-ipl fit N ~ Sp
$T' ~ pR Commission expires 22 2.0 j CP
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 5 of 7
CITY:
STATE OF IDAHO
County of Ada
ss.
CITY OF MERIDIAN
<~
By:
1~ i d ~?tL.pr.~~. .
On this 22 day of J ~~ , 2010, before me, a Notary Public in and
for said State, personally appeared 1~w1 L( ~,~ , !~c-~,'~ ntin~e~ known or identified
to me to be the person who signed the above on behalf of the City of Mendian, and acknowledged
to me that s/he executed the same on behalf of said City.
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AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 6 of 7
Ezhibit A
Lots 3, 4, 5, 6, 7 and 8 in Block 1, Lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 in Block 2, Lots 1, 2 and 3 in Block 3, Lot 3 in Block 4,
Lots 3, 4, 5, 6 and 7 in Block 6 of Cabella Creek Subdivision, according to the plat thereof, filed
in Book 100 of Plats at Pages 12999 through 13004, and as amended by Affidavit recorded
March 18, 2008 as Instrument N. 108031228, records of Ada County, Idaho.
AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 7 of 7