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HomeMy WebLinkAboutSewer Service Agreement with Coleman Homes, LLC Cabella Creek Amended and Restated 1st AddendumADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 ! BOISE IDAH010120111 09:45 AM DEPUTY Yickf Allen II I I I II I II I II'I II' I' I I'I I I I~I I III III RECORQED-REQUEST OF 111085618 Meridian City FIRST ADDENDUM TO THE AMENDED AND RESTATED SEWER SERVICE AGREEMENT COLEMAN HOMES LLC (Cabella Creek Subdivision) ~~o~/ Whereas, This addendum, made this ~ day of S~elrtemher, 2011 to the above- captioned agreement executed between the City of Meridian ("City") and Coleman Homes LLC ("Coleman") dated the 22nd day of June 2010 (AGREEMENT); and, WHEREAS, the above referenced AGREEMENT provided for payment of the proportionate share of the extension of the Black Cat Sewer Line in the amount of $116,281.27 which was paid by Coleman to City; and, WHEREAS, the AGREEMENT provided for a reimbursement to Coleman in the event that the actual amount of the proportionate share was less than the amount paid; and, WHEREAS, the actual proportionate share for this portion of the work was $29,545.67 so a reimbursement is due to Coleman. NOW THEREFORE, the AGREEMENT shall be modified in the following particulars: Section 3(a) of the AGREEMENT shall be modified to add the following language: "The actual cost of the proportionate share for the extension of the Black Cat Sewer Line is $29,545.67. City shall promptly reimburse Coleman in the amount of 86 735.60." All other terms of the AGREEMENT shall remain the same. END OF TEXT SIGNATURES TO FOLLOW ON NEXT PAGE COLEMAN HOMES LLC By: ~~~J~ Thomas M. Coleman, Jr. CITY OF MERIDIAN By: Mayor Tammy eerd ~ _ ~''~B° AU~L~ st: t Ja STATE OF IDAHO County of Ada ~O r1,~ Q+ ~' . ~. City Cl E II71~~ IDANO ~~ S ti ) p~ tl~e T~~d~ ss. ~ ~ On this -~ da of 2 11 f r y , 0 , be o e me, a Notary Public m and for said State, personally appeared Thomas M. Cole an, Jr., known or identified to me to be the person who signed the above on behalf of Colees LLC, and acknowledged to me that he executed the same on behalf of said entity. ~LYN ,~* ~~ ~ ~R '~ ~~' ': w • i 0 ~ ~~~~ ©~: •.,,,~r~ (~ ,,~ ,• ~+~fl1!!lli~ STATE OF IDAHO ) ss. County of Ada ) -. NO Y PUBLIC for IDAHO Residing at ~~~' Commission expires 3 ' ~ -t7 On this ~ day of , 2011, b fo e me a Not Public in and for ~~ ~ ~ said State, personally appeared Tammy de Weerd and .~ n k~iown or identified to me to be the Mayor and City Clerk, respectively, who signed and attested the above on behalf of the City of Meridian, and acknowledged to me that they executed the same on behalf of said City. ,~~OOi001+t ~~ ~,, ~A ~r •, ~ ~ ~~~ i ~ N ~ ~ . /f ~ ~ ~~ "~,-,~ 1~~~~~ ~~ `~ T~~ ®~ 0 S NOTARY PUB for IDAHO Residing at ~~~ `' I~ Commission expires ~ ~ ~.:~ --~ ~ ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 ~ BOISE iDANO 061ZSI1B 03;24 PM DEPUTY Lisa Ban RECORDED-REQUEST OF Meridian Cily i i ~~~~~~ i AMENDED AND RESTATED SEWER SERVICE AGREEMENT P ies. 1. City of Meridian - ~-- 2. Coleman Homes THIS SEWER SERVICE AGREEMENT ("Agreement") is made and entered into this ,~ .. .. . ~ 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 83b42 (hereina~er "Coleman"}. RECITALS WHEREAS, Coleman is the owner of the Cabella Creek Subdivision located at the Northeast Corner of Mesa Wa and East Victo Road, situated in a portion of the SE 1/ of Y rY T.3N., R.1 E., 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 r uired 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 conshuction 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 fiu~ther effect following the execution of this Agreement. AGREEMENT NOW, THEREFORE, in considera~on of the covenants and conditions set forth herein, which the parties agree are good and adequate consideration, the parties agree as follows: 1. INC~RF~RATI~N 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} OwnerslDeveiopers means and refers to Coleman Homes LLC, whose address is 1859 S. Topaz Way, Suite 200, Meridian, ID 83642, and shall include any subsequent owners} or developers} 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 PR~VISIUN OF SEWER SERVICES. (a} Payment of Proportionate Share. Within ten (10} days following execution of this Agreement, Coleman shall make aone-time payment of One Hundr~i Sixteen Thousand Two Hundred Eighty One Dollars and 271100ths ($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 Cabello 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 Cit accepts the Coleman Sewer Contribution in satisfacfion of its condition of approval on the Y 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 W TIES. 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 Cifiy. City represents and wan~ants 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 c~rrtified 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 fib} 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 Parsley 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 re~~sonable 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 OwnerfDeveloper, to execute appropriate and recordable evidence of tenmin.ation of this Agreement if City, in its sole and reasonable discretion, had determined that Owner/Developerhas 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 partite 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 maybe 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. 4WNER/DEVEL~PER: STATE 4F IDAHO County of Ada ~ 33. COLEMfAN HOMES LLC B i. ~. y Thomas M. Coleman, Jr. ~~ On this da of ~vun ~ 2010 before me, a No Public in and for said Y ~ ~ ~'Y State, personally appear~l 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 en~ty. ~Y ~ NOTARY PUBLIC for IDAHO I~IO~TA1~1f PI~IC Residing at W1E~i~ R tJ ~ S~ QR Commission expires 22 D ~ CP AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 5 of 7 CITY: CITY OF MERIDIAN ~~ By: `mid ~~~ STATE OF IDAHO 1 ~ 7 ~ v ss. County of Ada ) .. On this Z~ day of c,~+~... , 2010, before me, a Notary Public ~ and for said State, personally appeared .,~ known or identified to me to be the person who signed the above on behalf of the City of Meridian, and acknowledged to me that slhe executed the same on behalf of said City. •' c~~CA JO••• .~ • '0 ` 5; ~~ ~',~'~ ~ N TARY PUB C far 0 . ~~ ; . . • ~ ~ Residing at . ~ ....._ .~ . ;~ Conunission expires ~ • ~ i -•+" • ~ OF jp~,~ • ,.. . , ,. ,,, AMENDED AND RESTATED SEWER SERVICE AGREEMENT -Page 6 of 7 Ezhibit A Lots 3, 4, 5, 6, 7 and 8 in Block I, Lots 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,14,15, 1b, 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 b of Cabella Creek Subdivision, according to the plat thereof, filed in Baok 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