Park Development Impact Fee Reimbursement Agmt for Messina Meadows ParkADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 17
BOISE IDAHO 12/06/07 01:36 PM
DEPUTY Danielle Boulette - • III i II II IIII II II I II II IIIc 11 I II III
RECORDED -REQUEST OF 107161976
City of Meridian
PARK DEVELOPMENT, PARK IMPACT FEE REIMBURSEMENT, AND REAL -
PROPERTY CONVEYANCE AGREEMENT
Parties: City of Meridian
Tuscany Development, Inc.
This Agreement is entered into this 00 day of 2007, by
and between the City of Meridian, a municipal corporation of the State of Idaho, whose address
is 33 East Idaho Street, Meridian, Idaho 83642, hereinafter referred to as "City", and the
Developer of the Messina Meadows 1 Subdivision, Tuscany Development, Inc., whose address is
P.O. Box 344 Meridian, Idaho 83680, hereinafter referred to as "Developer".
WHEREAS, the City, pursuant to § 10-7-9, Meridian City Code, and § §67-8207 and
8209, Idaho Code, has the authority to enter into agreements with developers for the construction
of system improvements when the same are to be paid by development impact fees, including
park and recreation facilities; and
WHEREAS, the Developer is entitled to receive impact fee credit or reimbursement for
the present value of any construction of system improvements of the category for which the
development impact fee is being collected; and
WHEREAS, the Developer has agreed to donate the park acreage, provide the
construction, installation and inspection of the improvements necessary to construct the park
Project strictly adhering to City specifications, a portion of which will be donated and a portion
of which will be reimbursed by City at a fixed price as set forth in this Agreement, the benefit to
the Developer being completion of the design and construction of the Park Project at a date
earlier than would be possible if,the City were to undertake such design and construction, and the
benefits to the City being the completion of construction of the Project at substantially less cost
and expense, resulting in a savings to the citizens and residents of Meridian, and the obtaining of
a park for the use and enjoyment of the citizens and residents of Meridian at a date earlier than
would otherwise be possible, which benefits to the City are determined substantial and in the best
interests of the City and its citizens and residents; and
WHEREAS, the approved subdivision plat includes a neighborhood park; and
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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WHEREAS, the City agrees that the use of the park impact fees for a portion of the
improvements identified herein will help the City achieve its goal of increasing inventory of
neighborhood parks.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
the Developer and the City do hereby agree as follows:
As used in this Agreement, the following words have the meanings herein stated:
1.1 CITY shall mean the City of Meridian acting through its Parks and Recreation
Department.
1.2 PROJECT REPRESENTATIVE shall mean the person appointed by the City to
act on its behalf as to matters indicated under this Agreement. The appropriate
Project Representative during the Design and Construction Phases is the Parks
Director or designee. The City may employ an additional outside consultant to
act with and on behalf of the City as an inspector.
1.3 DEVELOPER shall mean Tuscany Development Inc, whose address is P.O. Box
344 Meridian, Idaho 83680, the Developer of the Messina Meadows 1
Subdivision.
1.4 THE DESIGN ENGINEER shall mean the firm of Briggs Engineering Inc, 1800
W Overland Rd Boise, Idaho 83705, and will not be changed without the prior
written consent of the City.
1.5 PROJECT shall mean the design and construction of Lot 1 Block 7, consisting of
approximately 5.56 acres, the City and as recommended by the Board of Park and
Recreation Commissioners and as approved by the Meridian City Council as
condition of approval #35 of FP -05-019.
1.6 PROGRAM DOCUMENT shall mean all of the requirements and minimum
quality standards applicable to the Project outlined by the City in its Standard
Plans, Details and Specifications. The Developer warrants that it's Design
Development Documents and its complete design and construction of the Project
does and will fully satisfy or exceed the requirements of the Program Documents
in providing fully functional facilities, unless indicated otherwise in the approved
Design Development Documents. If quality levels are not stated in the Program
Document, it shall remain at the same level of quality and workmanship
established for the rest of the Project.
1.7 WORK shall mean all labor, equipment, materials and services necessary or
appropriate to design and construct the Project.
1.8 CONSTRUCTION DOCUMENTS shall mean the completed and fully detailed
drawings and specifications prepared by the Developer setting forth in detail the
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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requirements for construction of the Work. Upon review and acceptance of the
Construction Documents by the City, the same shall be incorporated into this
Agreement. The Construction Documents shall become the property of the City.
Construction Documents must comply with the Program Documents and the
Design Development Documents, or with deviations agreed to by the City.
1.9 THE CONTRACT DOCUMENTS shall mean this Agreement, and any other
modifications authorized by Change Order issued pursuant to this Agreement.
The Developer shall be responsible for the professional quality, technical
accuracy and the coordination of all designs, drawings, specifications, and other
services furnished under this Agreement. The Developer shall, without additional
compensation, correct or revise any errors or deficiencies in its designs, drawings,
specifications, and other services. In the event of any inconsistencies among the
Contract Documents, the documents will first be interpreted as a reasonable whole
to assure that the ,goal of a functional facility is achieved. Should the
inconsistency still exist then, the documents will be interpreted as follows: The
Construction Documents, the Design Development Documents and then the
Program Documents.
2. TRANSFER OF TITLE:
2.1 In order for Developer to comply with site specific condition of approval #35 of
FP -05-019, Developer agrees to transfer title to the park parcel legally described
as Lot 1, Block 7 of Messina Meadows. Title of Developer is to be conveyed by
statutory warranty deed in substantial conformance with the sample deed,
attached hereto as Exhibit A and incorporated herein by this reference, and is to
be marketable and insurable except for rights reserved in federal patents, building
or use restriction; building and zoning regulations and ordinances of any
governmental unit, rights of way and easements established or of record, any
other liens, encumbrances or defects approved by City.
2.2 On December 29; 2006 at 4:18 p.m., Developer recorded a deed gifting the park
parcel to City (Lot 1, Block 7), along with two other parcels (Lot 11, Block 9 and
Lot 13, Block 7) that were not anticipated to be in City ownership pursuant to site
specific condition of approval #35 of FP -05-019. Furthermore, at the time of the
recording of the Gift Deed to City, each of these three lots was already in the
ownership of the Messina Meadows Homeowner's Association pursuant to Plat
Note No. 9, filed with the County Recorder on December 29, 2006 at 11:06 a.m.
The gift deed did,not contain an acknowledgement by City agreeing to the terms
of the conveyance. In order to correct the defects contained in the December 29,
2006 Gift Deed, and without affecting City's title to Lot 1, Block 7, Developer
agrees to record a Correction Deed or other legal mechanism with the result that
the land records of Ada County, Idaho will reflect that only Lot 1, Block 7 has
been conveyed to City. Upon satisfaction of this condition, City agrees to execute
and attest an acknowledgement of the terms of the deed restrictions. Developer
also agrees perfect City's ownership of Lot 1 Block 7 by means acceptable to the
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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Title Company in,order to clear up any cloud on the title created by including this
lot in Plat Note #9.
2.3 TITLE COMPANY. The parties agree that Lawyers Title Company 6223 N
Discovery Way, Suite 200 Boise, Idaho 83713 shall provide any required title
policy and preliminary report of commitment.
2.4. TITLE INSURANCE. The City intends to purchase, at City's expense, a standard
Owner's Title Policy premium in this transaction. The Title Company is to provide
all parties to this Agreement with a preliminary Title Report on as soon as possible
after the execution of this agreement. The City shall have 14 days to object in
writing to the condition of the title as set forth in the report, unless said time period
is extended pursuant to this agreement. In the event the City makes written
objection to the title, Developer shall have a reasonable time, not to exceed 14
days, to cure any defects of title or provide affirmative title insurance coverage.
The final Title Insurance policy shall be delivered to the City by the Title
Company as soon as possible after recording of the Correction Deed.
3. DEVELOPER AGREES TO THE FOLLOWING RESPONSIBILITIES:
3.1 DEVELOPER PROVIDED IMPROVEMENTS. At no cost to City, Developer
shall construct the following park improvements to the City's park specifications
and design. The Developer -provided Improvements have a stated valuation of
One Million Four Hundred Fifty Two Thousand Ninety Three Dollars and Three
Cents ($1,452,093.03):
a. Site grading (rough and final grade).
b. Install pressurized Irrigation System, including, connection to pressure
irrigation pump station.
C. Hydro -seeding or drill seeding
d. Tree planting.
e. Construct the. concrete and asphalt walkways (including the ten- (10) foot
wide multi -use pathway through and along the site and the micro -paths
which enter into the park.
f. Install open -vision fencing along the West side of the park.
g. Provide sewer and water service to the park, including water, sewer, and
other utility stubs to the restroom site (electrical and phone) to the
restroom and shelter facility.
h. Prepare sub base for playground and install sidewalk and curb surrounding
play area.
3.2 ADDITIONAL IMPROVEMENTS TO BE CONSTRUCTED BY DEVELOPER
AND REIMBURSED BY CITY. Developer shall construct the following
additional improvements, for which Developer shall be reimbursed by City from
its impact fee account in the total amount of One Hundred Eighty Six Thousand,
Four Hundred Dollars and Eighty Eight Cents ($186,402.88).
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a. Restrooms
b. Playground equipment and installation
C. Basketball court to include flatwork and standards
d. Parking Lot
e. Swing Set,and installation
f. Maxicom Controller and installation.
3.3 Developer shall provide City with an invoice for reimbursement in the amount set
forth in Section 3:2 which shall be paid within thirty (30) days of City's
acceptance of the park and all improvements. All of the conditions of the
Agreement shall be complied with by the Developer before Developer or his
successors may receive a reimbursement under this section of the Agreement.
Failure to comply with conditions within the time frame established in the
conditions or the terms of this Agreement shall result in a default of this
Agreement by the Developer.
3.4 The system improvements shall be installed and constructed as shown on the
plans, details and specifications which are in accordance with City's adopted
Master Plan and City's standard plans, details and specifications (Contract
Documents), as per the Technical Specifications for the Park, submitted by The
Land Group. These Contract Documents shall be approved by the Director and
other applicable government agencies prior to development.
3.5 The Developer shall secure and pay for all necessary approvals and other charges
required for or incurred for the design and/or construction of the Project and to
permit the City's initial use or occupancy of Project, except the City shall pay the
plan check fee of the Meridian City Building Department.
3.6 The Developer shall provide all construction supervision, inspection, labor,
materials, tools, equipment and all other Work necessary for the execution and
completion of the Project.
3.7 The Developer shall substantially complete all Work on the Project no later than
the Standard Completion date of July 16, 2007. The Developer shall furnish to
the City the schedules and scheduling service.
3.8 The Developer shall at all times keep all areas where work is being performed or
materials stored, and surrounding areas, free from the accumulation of waste
materials or rubbish caused by his operations. Upon completion of the Work or
any portions thereof accepted by City for partial occupancies, the Developer shall
remove all waste and rubbish and all construction tools, equipment, machinery
and surplus materials from such areas.
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3.9 The Developer shall indemnify, defend and hold harmless the City from any fines,
costs, and assessments and/or actions imposed or asserted for failure to comply
with any safety or health regulations or other laws.
3.10 The City may use the Proposal Documents, the Design Development Documents
and the Construction Documents and modifications thereof for any remodel
renovation, addition or repair of the Project or any part thereof.
3.11 The Developer warrants to the City that all materials and equipment furnished
under this Agreement will be new; that all Work will be of good quality, free from
improper workmanship and defect, and, further, that the materials and equipment
used in construction shall be free from all defects and will be constructed and
installed in accordance with the Contract Documents. The Developer shall
correct any work that fails to conform to the requirements of the Contract
Documents where such failure to conform appears during the progress of the
Work, and shall remedy any defects due to faulty materials, equipment or
workmanship which appear within a period of one year from the Substantial
Completion Date, The provisions of this Agreement apply to work performed by
the Developer, subcontractors, consultants, and supplies. All corrections shall be
made at no additional cost and at no increase in the contract price. With respect
to latent defects not reasonably discoverable within such one year period of time,
such defects shall be corrected by Developer upon written request given within
one year from the actual date of discovery of such defect, except that Developer
shall not be required to correct latent defects first discovered later than five (5)
years from the Substantial Completion Date. The foregoing warranties are in
addition to and not a limitation of. a) all other rights and remedies available at law
and equity including any specific additional warranties contained elsewhere in the
Contract Documents, b) such warranties as may be available from manufacturers
of equipment, suppliers of materials or other third -parties, c) Developer's
obligation to complete all Work in strict accordance with the Contract
Documents, and d) City's other remedies.
3.12 The Developer will secure and submit certificates of all inspection, testing or
approvals to the Project Representative.
3.13 The Developer will collect and submit to the City all manufacturer's warranties
and all other documents relating to materials and facilities otherwise required by
the Contract Documents.
3.14 The Developer shall be liable to the City for all costs and damages resulting from
any defect in materials or workmanship. Any warranties provided by the
Developer and of third parties are for the benefit of the City. Developer will be
obligated and responsible to City to the full extent of any warranties provided by
subcontractors, suppliers, manufacturers or others.
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3.15 Developer shall provide such insurance as is required in the section of this
agreement titled: INSURANCE, INDEMNITY AND WAIVER OF
SUBROGATION.
3.16 Developer shall provide engineering and architectural design and management
services as necessary to complete the Project. Developer shall prepare and
furnish Construction Documents (or "As Built" documents) of the Project in
accordance with the Design Development Documents, all applicable building
codes in effect at the time of this Contract execution. All design, engineering,
architectural, or other professional services which are a part of the Work shall be
performed by duly licensed professionals, skilled and experienced in this type of
prof ect.
4. CITY AGREES TO THE FOLLOWING RESPONSIBILITIES:
4.1 The City shall provide specifications for the ten (10) foot wide multi -use pathway
for the portion that goes through the park.
4.2 The City shall provide specifications for the pressurized irrigation system.
4.3 The City shall provide specifications for the park's pressurized irrigation pump
station that is to be co -located with the subdivision PUIS pump station.
4.4 The City shall specify the location of the sewer and water stubs to the park.
4.5 The City shall specify the location of other utilities for the park.
4.6 The City shall provide specifications for the PUIS design for the park.
4.7 The City shall designate in writing a Project Representative who shall be
acquainted with the Project and who shall act on behalf of the City with respect to
the Project, subject to the limitations upon such authority contained in this
Agreement.
4.8 If the City becomes aware of any fault or defect in the Project or non-
conformance with the Contract Documents, the City shall give prompt written
notice to the Developer. This does not relieve the Developer of its responsibility
of conforming to the Contract Documents.
4.9 The City shall secure and pay for all necessary approvals, easements,
assessments and charges required for use, or occupancy of the facilities,
including any plan check fee required by the Meridian City Building
Department.
5. SUBCONTRACTORS
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5.1 All Work not performed with the Developer's own forces shall be performed
under written subcontracts. The Developer shall submit to the City, a list of the
names and addresses of all subcontractors, suppliers, and consultants. The
Developer shall complete Form WH -5 as required by the State Tax Commission.
5.2 No contract or agreement, express or implied, shall be deemed to exist between
the City and any subcontractor, supplier, consultant or other person acting on
behalf of the Developer. Developer shall be responsible for the control and
direction of all subcontractors, supplies, and other persons participating in the
construction of the Project and shall be responsible to the City for their acts and
omissions, and their failure to perform the Work in strict accordance with the
Contract Documents. The Developer shall be responsible for the payment of all
subcontractors, supplies and other third parties participating in the construction of
the Work and shall indemnity, defend, and hold the City harmless from any claim,
liability, cause of action, or suit relating to or arising out of the acts of such person
or failure to make payments due or allegedly due any of such persons.
6. CONTRACT TIME SCHEDULE
6.1 The Developer shall complete construction by July 31, 2007. Time extensions
may be granted hereunder by City in accordance with the provisions of this
Agreement. If a time extension is not granted, then in that event if the Developer
fails to commence or complete construction within the time periods herein stated,
the Developer shall be in default of this Agreement.
6.2 Completion of the Project shall mean the date determined by the Project
Representative and the Developer when construction is sufficiently complete in
accordance with the Construction Documents so that the City can fully occupy or
effectively utilize the facilities for its intended use. All warranties including the
five-year warranty provided herein shall commence from the Completion Date.
At the time of the City occupancy of the Project the City shall direct the Project
Representative to execute a certificate of Completion. The City may also direct
the Developer or the Project Representative to prepare a list of the items to be
completed or corrected with respect to the Project. The City shall not be
obligated to accept any portion of the Project until the entire Project is complete.
6.3 The Developer shall notify the City in writing when it believes it has achieved
Final Completion. The City shall promptly inspect the Work and, if the City
agrees that Final Completion has been achieved, the City shall so document this
agreement in writing. Final completion is to be achieved by the end of the 2005
calendar year unless modified by Change Order.
7. CHANGES IN THE PROJECT
7.1 Changes by the City: The City, without invalidating this Agreement, may order
changes within the general scope of the Project consisting of additions, deletions
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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or other revisions. The Contract Price and the Completion Date shall be adjusted
accordingly. Changes in the Project may be authorized only by written Change
Order approved by the City.
7.2 Change Order is a written order to the Developer issued by the City after the
execution of this Agreement, authorizing a change in the Project or the
Completion Date.
7.3 The City will provide the Developer written authorization and direction to make
City requested Design Changes. Any City directed Additional Design Changes
will be paid by written Change Order.
7.4 Claims for Additional Cost or Time:
a. If the developer wishes to make a claim for an extension in the Completion
Date or in an instance where the Developer contends it was delayed by an act
or omission of.City it shall give the City written notice thereof within five (5)
calendar days after the occurrence of the event giving rise to such claim. This
notice shall be given by the Developer before proceeding to execute any Work
affected by the event giving rise to such a claim, except in an emergency
endangering life or property in which case the Developer shall act, at his
discretion, to prevent threatened damage, injury or loss.
b. If it is determined from the claim and notice submitted by the Developer that
the City has delayed the Developer, then the City will issue a Change Order
and an extension of time may be granted for the demonstrated period of time
lost which is directly attributable to the delay.
8. INSURANCE, INDEMNITY AND WAIVER OF SUBROGATION
8.1 Indemnity: The ,Developer shall indemnify, defend and hold harmless the City,
its agents, employees, representative, consultants and successors from and against
all claims, damages, costs, liabilities, judgments, legal fees, expenses, actions, and
suits for personal injury, death, and property damage, arising out of the Project,
the Work, or the acts or omissions of the Developer, subcontractors, suppliers,
agents, consultants, representatives and materialmen, including without limitation
the employees of each, caused by any negligent or wrongful act or omission of
any of such persons or by any failure to comply fully with any term or condition
of the Contract Documents or caused by, or arising out of the Work or any portion
thereof.
8.2 Property Insurance: The Developer shall purchase and maintain property
insurance upon the entire work at the site to the full insurable value thereof. This
insurance shall include the interests of the City, the Developer, subcontractors and
sub -subcontractors in the work and shall insure against the perils of fire and
extended coverage and shall include "all risk" insurance for physical loss or
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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damage. If the City is damaged by failure of the Developer to purchase or
maintain such insurance and to so notify the City, then the Developer shall bear
all reasonable costs properly attributable thereto. If not covered under the all risk
insurance or otherwise provided in the Contract Documents, the Developer shall
effect and maintain similar property insurance on portions of the work stored off
the site or in transit.
The Developer shall maintain insurance as deemed necessary by Developer to
protect the interests of himself, his subcontractors and the sub -subcontractors in
the work, including property, materials, equipment and tools.
If by the terms of this Insurance any mandatory deductibles are required, or if the
Developer should elect to increase the mandatory deductible amounts or purchase
this Insurance with voluntary deductible amounts, the Developer shall be
responsible for payment of the amount of the deductible in the event of paid
claim.
8.3 Liability Insurance: The following insurance shall be carried by the Developer.
a. The primary engineer and all associates and consultants shall carry
professional liability insurance with a minimum limit of $500,000. This
insurance shall continue for two years after certificate of substantial
completion of the entire project.
b. The Developer shall purchase and maintain comprehensive general liability
insurance with a combined single limit on ONE MILLION DOLLARS
($1,000,000) each occurrence. The policy shall provide coverage for bodily
injury and property damage, and shall include broad form property damage
(including completed operations), personal injury liability (including coverage
for employee,.acts), blanket contractual liability and products and completed
operations.
Liability coverage shall be provided for hazards commonly referred to as
XCU (explosion, collapse, and underground).
c. All subcontractors of any tier shall be repaired to provide comprehensive
general liability insurance with combined single limits for bodily injury and
property damage of at least ONE MILLION DOLLARS ($1,000,000) per
occurrence, comprehensive auto liability insurance for all owned, non -owned
vehicles with combined single limits for bodily injury and property damage of
at least ONE MILLION DOLLARS ($1,000,000) per occurrence or other
limits as approved by City.
d. The Developer and its subcontractors shall carry Worker's Compensation
Insurance to cover obligations imposed by Federal and State statutes covering
all employees, and employers' liability insurance with a minimum limit of
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ONE HUNDRED THOUSAND DOLLARS ($100,000) per Accident; FIVE
HUNDRED THOUSAND DOLLARS ($500,000) per Disease Policy Limit;
ONE HUNDRED THOUSAND DOLLARS ($100,000) Disease, each
employee.
e. Insurance Policy Requirements: All insurance required as stated above and
shall be endorsed as follows:
1. The City, including their respective agents, employees, consultants and
representative shall be named as additional insured.
2. The insurance required shall contain a severability of interest clause
such that the insurance afforded applies separately to each insured
against whom claim is made or suit is brought.
3. All insurance policies shall not be terminated or cancelled without
thirty (3) calendar days advance written notice of cancellation to be
provided by the insurance company.
4. The insurance afforded by the Developer shall be primary insurance
and any insurance carried by the City shall be excess and not
contributory insurance to that provided by the Developer.
5. Each entity providing insurance shall furnish certificates of insurance
which shall specifically set forth evidence of all coverage required
above. If required each entity providing insurance will allow the other
party to review and copy such insurance provisions contained in the
certified policies.
9. TERMINATION OF AGREEMENT AND CITY'S RIGHT TO PERFORM
DEVELOPER'S OBLIGATIONS
9.1 Termination for Cause:
a. If the Developer fails to perform any of its obligations under this Agreement
the City, may upon seven (7) calendar days written notice to the Developer
take such action as is necessary to perform such obligation either with or
without terminating this Agreement.
b. In the event of any material breach of this Agreement by developer, after five
(5) calendar days written notice to Developer, the City may, in addition to any
other remedies available, terminate this Contract, take possession of the
Project site and the raw materials, equipment, tools, construction equipment
and machinery thereon owned or provided by Developer and may finish the
Work by whatever reasonable means and methods the City may determine
necessary or expedient. In such instance Developer relieved from any of its
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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obligations under this Agreement, including obligations assumed under the
liability for damages paragraph listed herein.
c. As used in the foregoing paragraph, a material default shall include but is not
limited to: (a) persistent or repeated failures to provide properly skilled
workmen or materials or failure to prosecute the Work according to the
progress schedules provided herein; (b) unjustified failure to make proper
payments to subcontractors for materials or labor; (c) persistent or intentional
disregard of laws, ordinance, rules, regulations or orders of any public
authority having jurisdiction; (d) being adjudged to be bankrupt or being
subject to any state or federal insolvency proceedings.
9.2 Termination by City Without Cause: (Termination for Convenience)
a. The City shall have the right to terminate the Agreement at its convenience for
any reason at its sole discretion.
9.3 NOTICES: Any and all notices required to be given by either of the parties
hereto, shall be in writing and be deemed communicated when mailed in the
United States mail, certified, return receipt requested, addressed as follows:
a. To the City:
Meridian City Clerk
33 East Idaho
Meridian, Idaho 83642
(with a copy to) Doug Strong, Director, Parks and Recreation Department
11 W. Bower
Meridian, Idaho 83642
b. To the Developer:
Tuscany Development, Inc.
P. O. Box 344
Meridian, Idaho 83680
Either party shall give notice to the other party of any change of their address for
the purpose of this section by giving written notice of such change to the other in
the manner herein provided.
10. DESIGN AND CONSTRUCTION DRAWINGS
10.1 Design: Developer acknowledges to City that Developer and firms working for
Developer have been reviewed by the City based upon Developer's
representations and warranties that Developer has particular skill and experience
in construction of park and recreation facilities substantially similar to this
Project. Developer shall at all times manage the construction process so as to
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incorporate all of the City's requirements and objectives for the Project as
expressed in the Contract Documents, and so as to deliver the Project within the
time limits provided in this Agreement. Any instance in which the Developer
learns of any defect or insufficiency in the Project or any part thereof, or learns
that the Work is not proceeding in accordance with the City's actual objectives
and requirements, then the Developer shall immediately advise the Project
Representative and the Developer shall take all necessary action to correct same.
10.2 Building Codes: 'The Project, as designed and constructed, shall fully comply
with all codes and standards applicable at date of this Agreement, including (a)
the International Building Code; (b) Current IBC Standards; (c) Americans with
Disabilities Act Accessibility Guidelines; (d) Current Uniform Plumbing Code;
(e) Current National Electrical Code. Compliance with all of the foregoing codes
shall be reviewed and approved by the Meridian City Building Department, where
applicable. Plan check fees in connection therewith shall be paid by the City.
Plumbing and electrical permits shall be paid by the Developer. The foregoing
codes are in addition to and not in derogation of any other codes that may be
applicable by law or governmental regulation.
10.3 The Developer shall keep at the Project a complete copy of the Construction
Documents and shall afford the Project Representative access thereto. All cost
resulting from errors, omissions, discrepancies, inconsistencies or ambiguities in
the Construction 'Documents shall be borne by the Developer, including any cost
to correct Work already performed or to redesign or otherwise correct such
deficiencies.
11. RECORD RETENTION REQUIREMENT
11.1 Developer shall maintain all records required by law for the period required.
12. UNFORESEEN CONDITIONS
12.1 Should unknown, physical conditions below the surface of the ground or should
concealed or unknown conditions in an existing structure of an unusual nature,
differing materially from those ordinarily encountered and generally recognized
as inherent in work of the character provided for in this Agreement, be
encouraged, the Contract Time Schedule shall be equitably adjusted by Change
Order upon claim by either party made within a reasonable time after the first
observance of the conditions.
12.2: The Developer acknowledges that it has taken all steps reasonably necessary to
ascertain the nature and location of the Work, and that it has investigated and
satisfied itself as to the general and all local conditions which can affect the Work
or its cost, including but not limited to: (1) conditions bearing upon
transportation, disposal, handling, and storage of materials, remodel work, tie-ins
and existing structures, utilities, security, and existing operations; (2) the
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availability of labor, water, electric power, and roads; (3) uncertainties of weather,
river stages, tides, or similar physical conditions at the site; (4) the topography
and conditions of the ground; and (5) the character of equipment and facilities
needed preliminary to and during work performance. The Developer also
acknowledges that it has satisfied itself as to the character, quality, and quantity of
surface and subsurface materials or obstacles to be encountered insofar as this
information is reasonably ascertainable from an inspection of the site, including
all exploratory work done by Developer as well as from the drawings and
specification made a part of this contract. Any failure of the Developer to take the
actions describedgand acknowledged in this paragraph will not relieve the
Developer from responsibility for estimating properly the difficulty and cost of
successfully performing the work, or for proceeding to successfully perform the
work without additional expense to the City. The City does not assume any
responsibility for erroneous conclusions or interpretations made by Developer.
12.3: The City assumes no responsibility for any conclusions or interpretations made by
the Developer based on the information made available by the City, nor does the
City assume responsibility for any understanding reached or representation made
concerning conditions which can affect the work by any of its officers or agents
before the execution of this Contract, unless that understanding or representation
made concerning conditions which can affect the work by any of its officers or
agents before the execution of this Contract is expressly stated in this Contract;
12.4. The Developer shall promptly, before the conditions are disturbed, and in all
instances within five (5) calendar days after the conditions are discovered, give a
written notice to the Project Representative of. (1) subsurface or latent physical
conditions at the site which differ materially from those which a reasonably
prudent Developer could anticipate, foresee, or make provision for this type of
Work at such site locations; or (2) unknown physical conditions at the site, of an
unusual nature, which differ materially from those ordinarily encountered and
generally recognized as inherent in work of the character provided for in the
Contract Documents and which could have been reasonably foreseen and/or
anticipated by a prudent developer.
12.5. The City shall investigate the site conditions promptly after receiving the notice.
If the conditions do materially so differ and cause an increase or decrease in the
Developer's time required for, performing any part of the Work under this
Contract, whether or not changed as a result of the conditions, an equitable
adjustment shall lie made under this clause and the contract modified in writing
accordingly.
12.6. No claim by Developer for additional time shall be allowed if there is no written
notification to the City as required herein.
13. SUSPENSION OF WORK
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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13.1 The City may order the Developer, in writing, to suspend, delay or interrupt all or
any part of the Work for such period as may be determined to be appropriate by
the City.
13.2 If performance of all or any part of the Work is suspended under this Agreement
for the convenience of the City, an equitable adjustment shall be made to the
Completion Date. However, no adjustment in the Completion Date shall be made
under this clause for any suspension, to the extent that performance would have
been so suspended, delayed, or for which an equitable adjustment is provided for
under any other term or condition of this Agreement.
14. NON -ASSIGNMENT AND GOVERNING LAW
14.1 The Developer shall not assign its interest in whole or part in this Agreement
without the written consent of the City.
14.2 This Agreement shall be governed by the laws of the State of Idaho.
14.3 This Agreement represents the entire agreement between the City and the
Developer and supersedes all prior negotiations, representations or agreements.
This Agreement may be amended only by written instrument signed by both City
and Developer.
14.4 Should any portion of this Agreement be found to be unenforceable by a court of
competent jurisdiction in such determination shall not void the entire Agreement,
but will be limited only to those unenforceable provisions.
14.5 In the event either party to this Agreement is required to initiate or defend
litigation with respect to the terms hereof, or the rights granted hereunder, the
prevailing party in such litigation shall be entitled to all reasonable attorney's fees
incurred in such litigation, including all discovery costs and costs of expert
witness, together with other reasonable litigation costs.
15. MISCELLANEOUS
15.1 Withholding: The Project will be completed by the Developer not later than the
Completion Date. In the event the Work is not completed within such time, the
parties agree that the Developer must maintain the Project until such time as it is
accepted by the City as complete.
15.2 A waiver by the City of any default by the Developer of any one or more of the
covenants or conditions hereof shall apply solely to the breach and breaches
waived and shall not bar any other rights or remedies of the City or apply to any
subsequent breach of any such or other covenants and conditions.
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 15 OF 21
15.3 In the event of any termination, whether if for cause or without cause, City shall
have the right to reproducible copies of all design and construction plans and
specifications, the ownership of all work in progress, and the right to complete all
construction.
ACKNOWLEDGEMENTS
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be
executed on the day and year first above written.
DATED this 63-1 day of N()VCffjbP r , 2007.
ATTEST:
William G. Berg, Jr.,
CITY OF MERIDIAN
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Secretary
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 16 OF 21
STATE OF IDAHO, )
ss:
County of Ada, )
On this _jn day of /?,b Lt ,,, �e r , 2007, before me, the
undersigned, a Notary Public in and for said State, personally appeared Greg Johnson and
known to me to be the president and secretary,
respectively of Tuscany Development, Inc., who executed the within instrument on behalf of said
corporation, and acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above;written.
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Notafy Public for Idaho
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Commission Expires: 8 3 a�
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ID X X00
STATE OF IDAHO, )
ss:
County of Ada, )
On this 2-1fi day of NQyit�Mt�t-- , 2007, before me, the
undersigned, a Notary Public in and for said State, personally appeared TAMMY DE WEERD
and WILLIAM G. BERG, JR., known to me to be the Mayor and City Clerk, respectively, of the
City of Meridian, Idaho, and who executed the within instrument, and acknowledged to me that
the City of Meridian executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
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Notary Public for Idaho
Residing at: (`(Uci ( L K U , I I7
Commission Expires: w-11-1
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