Kiwanis Park Impact Fee Reimbursement
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ADA COUNTY RECORDER J. DAVID NA\lARRO
BOISE IDAMO 1111&106 01::1 PMt'
DEPUTY Vilki ~Ien
RECORDED-REQUEST OF
City oftfMridian
AII10UIfT .1llI
211
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106180811
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This sheet has been added to the document to
accommodate recording information.
Park Development, Impact Fee Reimbursement,
and Real Property Conveyance Agreement for
Kiwanis Park with Tuscany Development, Inc. and
Kenai Partners, LLC.
Approved by City Council October 24, 2006.
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PARK DEVELOPMENT, IMPACT FEE REIMBURSEMENT, AND REAL PROPERTY
CONVEYANCE AGREEMENT
This Park Development, Impact Fee Reimbursement, and Real Property Conveyance
Agreement (the "Agreement") is entered into this 21':!5- day of October, 2006, by and
between City of Meridian, a municipal corporation of the State of Idaho, whose address is 33
East Idaho Street, Meridian, Idaho 83642 (the "City"), and the developer of the Gramercy
Subdivision, Tuscany Development, Inc., an Idaho corporation, whose address is 660 E.
Franklin, Ste. 240, Meridian, Idaho 83642 (the "Developer"), and Kenai Partners, LLC, an Idaho
limited liability company, whose address is 6223 N. Discovery Way, Suite 120, Boise, Idaho
83713 (the "Landowner").
RECITALS
A. WHEREAS, Developer has agreed to purchase from Landowner certain real
property located in City of Meridian, County of Ada, State of Idaho, for the purposes of platting
and developing the Gramercy Subdivision; and
B. WHEREAS, Landowner will retain ownership of a certain portion of real property
in the Gramercy Subdivision consisting of two and four hundredths (2.04) acres more
particularly described in a legal description attached hereto and made a part hereof as Exhibit A
(the "Property"); and
C. WHEREAS, Landowner desires to gift, grant and transfer the Property, and City
desires to receive as a gift, have granted and have transferred the Property; and
D. WHEREAS, Developer has undertaken at its own expense to construct and
develop the Property as a park (the "Park"), adjacent to that existing Kiwanis Neighborhood
Park ("Kiwanis Park"), which when completed such Park will be incorporated into and
connected with Kiwanis Park; and
E. WHEREAS, Developer has undertaken at its own expense to construct and
develop additional park improvements to the existing Kiwanis Park; and
F. WHEREAS, Developer has agreed to provide the construction, installation and
inspection of the improvements necessary to construct the Project strictly adhering to City
specifications, the benefit of Developer being completion of the design and construction of the
Project at a date earlier than would be possible if City were to undertake such construction, and
the benefits to 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
additional park space and improvements for the use and enjoyment of the citizens and residents
of Meridian at a date earlier than would otherwise be possible, which benefits to City are
determined substantial and in the best interests of City and its citizens and residents; and
PARK DEVELOPMENT AND PARK IMP ACT FEE REIMBURSEMENT AGREEMENT
PAGE 1 ,~
G. WHEREAS, Developer desires to donate a portion of the Work on the Project to
City as a gift; and
H. WHEREAS, City has earmarked and will earmark certain impact fee funds for
Work on the Project, and City desires to use those impact fee funds to reimburse Developer for
the portion of the Work on the Project that is not donated by Developer; and
1. WHEREAS, City, pursuant to Meridian City Code section 10-7-9, and Idaho
Code sections 67-8207 and 8209, has the authority to enter into agreements with developers for
the construction of system improvements, including park and recreation facilities, when the same
are to be paid by development impact fees; and
J. WHEREAS, Developer is entitled to receive reimbursement in the calculation of
development impact fees, for the present value of any construction of system improvements of
the category for which the development impact fee is being collected, provided that an
agreement for such reimbursement is negotiated in good faith; and
K. WHEREAS, City agrees that the use of the park impact fee reimbursement will
help City achieve its goal of increasing its inventory of neighborhood parks.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing, and in consideration of the
covenants and conditions set forth herein, City, Developer, and Landowner do hereby agree as
follows:
1. DEFINITIONS
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As used in this Agreement, the following words have the meanings herein stated:
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1.1 "City" shall mean City of Meridian acting through its Parks and Recreation
Department ("MPR").
1.2 "Construction Documents" shall mean the completed and fully detailed drawings
and specifications prepared by and paid for by City, setting forth in detail the requirements for
construction of the Work. Upon review and acceptance of the Construction Documents by City
and Developer, the same shall be incorporated into this Agreement. The Construction
Documents shall become the property of City. Construction Documents must comply with the
Program Documents and the design development documents, or with deviations agreed to by
City and Developer.
1.3 "Contract Documents" shall mean this Agreement, and any other modifications
authorized by Change Order issued pursuant to this Agreement. City shall be responsible for the
professional quality, technical accuracy and the coordination of all desians, drawings,
specifications, and other services furnished under this Agreement. City shall, without additional
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 2
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.
1.4 "Design Engineer" shall mean the firm of Pinnacle Engineering, 12552 Executive
Drive, Boise, Idaho 83713, and will not be changed without the prior written consent of City.
1.5 "Developer" shall mean Tuscany Development, Inc., an Idaho corporation, 660 E.
Franklin, Ste. 240, Meridian, Idaho 83642, Developer of the Gramercy Subdivision.
1.6 "Landowner" shall mean Kenai Partners, LLC, an Idaho limited liability
company, 6223 N. Discovery Way, Suite 120, Boise, Idaho 83713.
1.7 "Program Documents" shall mean all of the requirements and minimum quality
standards applicable to the Project outlined by City in its standard plans, details, and
specifications. City warrants that its design development documents and its complete design 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 Documents, it shall
remain at the same level of quality and workmanship established for the rest ofthe Project.
1.8 "Proiect" shall mean both the design and construction of certain park
improvements to the existing Kiwanis Park and the design and construction of the new Park with
the legal description attached hereto and made a part hereof as E.hibit A (the "Property"),
attached hereto and incorporated herein, of Gramercy Subdivision No.1, consisting of two and
four hundredths (2.04) acres, as donated by Landowner and as approved by the Meridian Board
of Parks and Recreation Commissioners and the Meridian City Council
1.9 "Proiect Representative" shall mean the person appointed by City to act on its
behalf as to matters indicated under this Agreement. The appropriate Project Representative
during the design phase and the construction phase is Doug Strong or his designee. City may
employ an additional outside consultant to act with and on behalf of City as an inspector.
1.1 0 "Work" shall mean all labor , equipment, materials, management services and
other services necessary or appropriate to construct the Project.
2. TRANSFER OF THE PROPERTY
2.1 Transfer of Title. Landowner agrees to gift, grant and convey, and City agrees to
receive as a gift, to have granted and to have conveyed the Property. City's agreement to accept
the gift of real property is conditioned upon the City's review of the condition of title to the
Property. City will not accept the gift of real property until City is satisfied through its review of
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PARK DEVELOPMENT AND PARK IMP ACT FEE REIMBURSEMENT AGREEMENT
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the state of title that there are no monetary liens or any encumbrances that would cause the
Property to be incapable of being used for the purposes contemplated by this Agreement.
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2.2 Deed. Landowner shall convey the Property to City by a deed of gift substantially
similar to the Deed of Gift attached hereto as Exhibit B and made a part hereof.
2.3 Title Commitment/Title Policy. Landowner makes no express or implied
warranties pertaining to the condition oftitle to the Property. City has chosen to obtain at its
own expense a title commitment and/or a title policy on the Property through Lawyers Title of
Treasure Valley.
2.4 Gift Date. The transfer of the Property contemplated by this Agreement shall take
place on or before December 31, 2007 (the "Gift Date"), at a location and time mutually agreed
upon by the parties. The transfer of the Property shall take place through escrow closing at
Lawyers Title of Treasure Valley, with costs shared equally by Landowner and City.
2.5 Prorations. All items typically prorated, including, without limitation, taxes, liens
and assessments, shall be prorated as of the Gift Date. All prorations shall be final.
2.6 Tax Status. It is understood that Landowner intends for the transfer of the
Property to City to represent a gift and to qualify as a tax-exempt contribution to City. In
recognition of the gift from Landowner, City will provide information and assistance as
necessary for completion of the applicable Department of Treasury Forms and other reasonable
documentation as may be required to document such gift.
3. OBLIGATIONS OF DEVELOPER
3.1 Improvements to be Constructed by the Developer. Developer shall complete
Work on the Project as described on Exhibit C, attached hereto and incorporated herein, subject
to the donation and reimbursement provisions in Section 7 of this Agreement.
3.2 Additional Improvements to be Constructed by Other Parties. Parties other than
Developer shall complete Work on the following additional improvements, including, without
limitation: (i) picnic shelter; (ii) restrooms; (iii) installation of playground equipment; and (iv)
basketball court. The improvements listed in this paragraph are not subject to this Agreement
and Developer is not obligated to construct said improvements.
3.3 Plans and Specifications. The Park improvements shall be installed and
constructed as shown on the plans, details and specifications that are in accordance with MPR's
adopted Master Plan and MPR's standard plans, details and specifications (Contract Documents),
as per the technical specifications for the Park paid for by City and submitted by Design
Engineer. These Contract Documents shall be 'approved by the director of MPR and other
applicable government agencies prior to development.
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3.4 Work. Developer shall provide all construction supervision, inspection, labor,
materials, tools, equipment, and all other Work necessary for the execution and completion of
the Project. ,\1
3.5 Work Area. 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, Developer shall remove all waste and rubbish
and all construction tools, equipment, machinery and surplus materials from such areas.
Developer will comply with the dust control ordinance.
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3.6 Repair and Remodel. City may use the proposal documents, the design
development documents and the Constru~tion Documents and modifications thereof for any
remodel renovation, addition or repair of the Project or any part thereof.
3.7 Defects. Developer warrants to 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 will
be constructed and installed in accordance with the Contract Documents. 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
Completion Date. The provisions of this Agreement apply to work performed by Developer and
Developer's subcontractors, consultants, and suppliers. 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 three (3) years from the Completion Date. The foregoing warranties are in addition to and
not a limitation of: (i) all other rights and remedies available at law and equity including any
specific additional warranties contained elsewhere in the Contract Documents, (ii) such
warranties as may be available from manufacturers of equipment, suppliers of materials or other
third-parties,(iii) Developer's obligation to complete all Work in strict accordance with the
Contract Documents, and (iv) City's other remedies.
3.8 Inspection Certificates. Developer will secure and submit certificates of all
inspection, testing, or approvals to the Project Representative.
3.9 Manufacturer Warranties. Developer will collect and submit to City all
manufacturers' warranties and all other documents relating to materials and facilities otherwise
required by the Contract Documents.
3.10 Other Warranties. Any warranties provided by Developer and of third parties are
for the benefit of City. Developer will be obligated and responsible to City to the full extent of
any warranties provided by subcontractors, suppliers, manufacturers or others.
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENt
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3.11 Insurance. Developer shall provide such insurance as is required in the Section 9
of this Agreement. '"
4. OBLIGATIONS OF CITY
4.1 Duties of City. City shall provide Developer and Landowner with the following:
4.1.1 Engineering and architectural designs prepared by City's independent
contractor necessary to complete the Project.
4.1.2 Construction Documents of the Project prepared by City's independent
contractor and in accordance with the design development documents and all applicable building
codes in effect on the date hereof. All design, engineering, architectural, or other professional
services that are a part of the Work shall be performed by duly licensed professionals, skilled and
experienced in this type of project.
4.1.3 Specifications for the ten (10) foot wide multi-use pathway for the portion
that goes through the Park.
4.1.4 Specifications for the pressurized irrigation system and irrigation pond.
4.1.5 Specifications for the Park's pressurized irrigation pump station currently
existing at the Park site.
4.1.6 Specifications for the location of the sewer and water stubs to the Park.
4.1.7 Specifications for the location of other utilities for the Park.
4.1.8 Specifications for the PUIS design for the Park.
4.2 Proiect Representative. The Project Representative shall be acquainted with the
Project and shall act on behalf of City with respect to the Proj~t, subject to the limitations upon
such authority contained in this Agreement. The Project Representative during the design phase
and the construction phase is Doug Strong. If City desires a Project Representative other than
Doug Strong, then City shall designate the new Project Representative in writing as provided in
Section 11, below.
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4.3 Notice of Fault. Defect, or Nonconformance. If City becomes aware of any fault
or defect in the Project or non-conformance with the Contract Documents, City shall give prompt
written notice to Developer.
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4.4 Fees. Assessments. and Charges. 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 Developer's own forces shall be performed under
written subcontracts. Developer shall submit to City, a list of the names and addresses of all
subcontractors, suppliers, and consultants. 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
City and any subcontractor, supplier, consultant or other person acting on behalf of 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 City for
their acts and omissions, and their failure to perform the Work in strict accordance with the
Contract Documents. 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 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. COMPLETION OF THE PROJECT
6.1 Construction Completion. Developer shall substantially complete all Work on the
Project by June 7, 2007, weather permitting. 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 Developer fails to complete construction within the time periods herein stated,
Developer shall be in default of this Agreement.
6.2 Completion of the Proiect. Completion of the Project shall mean the date
determined by the Project Representative and Developer when construction is sufficiently
complete in accordance with the Construction Documents so that City can fully occupy or
effectively utilize the facilities for its intended use. At the time of City occupancy of the Project,
City shall direct the Project Representative to execute a written certificate of completion (the
"Certificate of Completion"). The date of the Certificate of Completion shall be the
"Completion Date." All warranties, including, without limitation, the three (3) year warranty
provided in Section 3, shall commence on the Completion Date.
7. REIMBURSEMENTS AND PAYMENTS
7.1 Total Proiect Budget. The total Project budget is Seven Hundred Fifty Six
Thousand, Thirty Seven and No/l 00 Dollars ($756,037.00), as detailed on Exhibit D, attached
hereto and incorporated herein.
7.2 Donation. Developer agrees to donate to City Park improvements and Work in
the amount of Two Hundred Seventy-five Thousand and No/I00 Dollars ($275,000.00).
7.3 Reimbursement. City shall reimburse Developer for the remaining costs
associated with any Park improvements and Work performed by Developer in an amount not to
exceed the Total Proj ect Budget as set forth in Section 7.1, less the amount of the Donation set
forth in Section 7.2, said amount being Four Hundred Eighty One Thousand Thirty Seven and
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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No/I00 Dollars ($481,037.00). Developer shall submit to City invoices for any and all
completed and uncompensated costs on the first day of each month until such time as Developer
completes construction on the Park. City, upon verification of work completed, shall pay
Developer in full for each invoice received before the last day of the same month in which City
receives the invoice. City shall pay Developer at a rate of eight percent (8%) per annum for any
invoices not paid in full by the end of the month in which Developer submitted the invoice to
City.
8. CHANGES IN THE PROJECT
8.1 Changes by City. City, without invalidating this Agreement, may order changes
within the general scope of the Proj ect consisting of additions, deletions or other revisions. The
Completion Date shall be adjusted accordingly. Changes in the Project may be authorized only
by written Change Order approved by City.
8.1.1 Change Order ("Change Order") is a written order to Developer issued
by City after the date hereof, authorizing a change in the Project or the Completion Date.
8.1.2 City will provide Developer written authorization and direction to make
City requested Design Changes. Any City directed Additional Design Changes will be paid by
written Change Order.
8.2 Claims for Additional Time.
8.2.1 If Developer wishes to make a claim for an extension in the Completion
Date or in an instance where Developer contends it was delayed by an act or omission of City, it
shall give City written notice thereof within ten (10) calendar days after the occurrence of the
event giving rise to such claim, which claim shall not be unreasonably withheld, conditioned, or
delayed. This notice shall be given by 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 Developer shall act, at his discretion, to prevent threatened damage,
injury or loss.
8.2.2 If it is determined from the claim and notice submitted by Developer that
City has delayed Developer, then City shall issue a Change Order and an extension of time shall
be granted for the demonstrated period of time lost that is directly attributable to the delay.
9. INSURANCE, INDEMNITY AND WAIVER OF SUBROGATION
9.1 Indemnity. Developer shall indemnify, defend and hold harmless 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 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
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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Documents, to the extent the acts, omission, or negligence of City did not cause such claims,
damages, costs, liabilities, judgments, legal fees, or expenses.
9.2 Liability Insurance. Developer shall carry the following insurance for Work on
the Project:
9.2.1 The primary engineer and all associates and consultants shall carry
professional liability insurance with a minimum limit of Five Hundred Thousand and No/100
Dollars ($500,000.00). This insurance shall continue for two years after the Completion Date.
9.2.2 Developer shall purchase and maintain comprehensive general liability
insurance with a combined single limit on One Million and No/100 Dollars ($1,000,000.00) 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).
9.2.3 All subcontractors of any tier shall be required to provide comprehensive
general liability insurance with combined single limits for bodily injury and property damage of
. at least One Million and No/100 Dollars ($1,000,000.00) 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 and Noll 00 Dollars ($1,000,000.00) per
occurrence or other limits as approved by City.
9.2.4 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 One Hundred Thousand Dollars and
Noll 00 Dollars ($100,000.00) per Accident; Five Hundred Thousand and Noll 00 Dollars
($500,000.00) per Disease Policy Limit; One Hundred Thousand Dollars and Noll 00 Dollars
($100,000.00) Disease, each employee.
9.2.5 Insurance Policy Requirements: All insurance required in this Section 9.3
shall be endorsed as follows:
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(a)
City, including their respective agents, employees, consultants and
representative shall be named as additional insured.
(b) 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.
(c) All insurance policies shall not be terminated or cancelled without
thirty (30) calendar days advance written notice of cancellation to
be provided by the insurance company.
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(d) The insurance afforded by Developer shall be primary insurance
and any insurance carried by City shall be excess and not
contributory insurance to that provided by Developer.
(e) Each entity providing insurance shall furnish certificates of
insurance that 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.
10. TERMINATION OF AGREEMENT AND CITY'S RIGHT TO PERFORM
DEVELOPER'S OBLIGATIONS
10.1 Termination for Cause.
10.1.1 If Developer fails to perform any of its obligations under this Agreement
City, may upon seven (7) calendar days' written notice to Developer and Landowner take such
action as is necessary to perform such obligation either with or without terminating this
Agreement.
10.1.2 In the event of any material breach of this Agreement by Developer, after
ten (10) calendar days written notice to Developer, City may, in addition to any other remedies
available, terminate this Agreement, 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 City may
determine necessary or expedient. In such instance Developer relieved from any of its
obligations under this Agreement, including obligations assumed under the liability for damages
paragraph listed herein.
10.1.3 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.
10.2 Amendment. In the event City Council determines that this Agreement shall be
modified, the terms of this Agreement shall be amended and Developer shall comply with the
amended terms. Failure to comply with the amended terms shall result in default.
10.3 Waiver. A waiver by City of any default by 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 City or apply to any subsequent breach of any such or other
covenants and conditions. ~,
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10.4 Plans and Specifications. In the event of any termination, whether if for cause or
without cau~, 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.
11. NOTICES
Any and all notices, demands, requests or other communications required under this
Agreement, shall be in writing and shall be deemed properly served or delivered, if
delivered by hand to the party to whose attention it is directed, or when sent, three (3)
days after deposit in the U.S. mail, postage prepaid, certified mail, return receipt request,
or one (1) day after deposit with a nationally recognized air carrier providing next day
delivery, or if sent via facsimile transmission, when received as determined by the
facsimile transmission report related thereto, addressed as follows:
To 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
To Developer:
Tuscany Development, Inc.
660 E. Franklin, Ste. 240
Meridian, Idaho 83642
To Landowner:
Kenai Partners, LLC
6223 N. Discovery Way, Suite 120
Boise, Idaho 83713
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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.
12. DESIGN AND CONSTRUCTION DRAWINGS
12.1 Design. Developer acknowledges to City that Developer and firms working for
Developer have been reviewed by 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 incorporate all of City's"Yequirements 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 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 City's actual
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 11
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objectives and requirements, then Developer shall immediately advise the Project Representative
and Developer shall take all necessary action to correct same.
12.2 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
City. Plumbing and electrical permits shall be paid by City. The foregoing codes are in addition
to and not in derogation of any other codes that may be applicable by law or governmental
regulation.
12.3 Construction Documents. 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 ambi~ities in the
Construction Documents shall be borne by City, including any cost to correct Work already
performed or to redesign or otherwise correct such deficiencies.
13. RECORD RETENTION REQUIREMENT: Developer shall maintain all records
required by law for the period required.
14. UNFORESEEN CONDITIONS
14.1 Subsurface Conditions. Should unknown physical conditions below the surface
of the ground or should concealed or unknown conditions in an existing structure ,,pf 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 Completion
Date shall be equitably adjusted by Change Order upon claim by either party made within a
reasonable time after the first observance of the conditions.
14.2 Site Inspection. 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 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. Any failure of Developer to take the actions described and
acknowledged in this paragraph will not relieve 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 City. City does not assume any
responsibility for erroneous conclusions or interpretations made by Developer.
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
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14.3 Representations of this Agreement. City assumes no responsibliity for any
conclusions or interpretations made by Developer based on the information made available by
City, nor does 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 date
hereof, unless that understanding or representation made concerning conditions which can affect
the work by any of its officers or agents before the date hereof is expressly stated in this
Agreement.
14.4 Notice of Conditions. Developer shall promptly, before the conditions are
disturbed, and in all instances within ten (10) 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.
14.5 Duty to Investigate. 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 Developer's time required for, performing any part of the Work under this Agreement,
whether or not changed as a result of the conditions, an equitable adjustment shall be made under
this clause and the Agreement modified in writing accordingly.
14.6 Additional Time. No claim by Develop:r for additional time shall be allowed if
there is no written notification to City as required herein.
15. SUSPENSION OF WORK
"
15.1 City may order 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 City.
15.2 If performance of all or any part of the Work is suspended under this Agreement
for the convenience of 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.
16. MISCELLANEOUS
16.1 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respeetive heirs, personal representatives, successors
and assigns.
16.2 Date Hereof. As used herein, the term "the date hereof' shall mean the date first
set forth above. '.~
.
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 13
~;
16.3 Governing Law. This Agreement shall be governed by the laws ofthe State of
Idaho.
16.4 Entire Agreement. This Agreement represents the entire agreement between City
and Developer and supersedes all prior negotiations, representations or agreements. This
Agreement may be amended only by written instrument signed by both City and Developer.
16.5 Severability. 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 ~ill be limited only to those unenforceable provisions.
16.6 Attorney Fees. If either party shall default in the full and timely performance of
this Agree'lnent and said default is cured with the assistance of an attorney for the other party and
before the commencement of a suit thereon, as a part of curing said default, the reasonable
attorney fees incurred by the pther party shall be reimbursed to the other party upon demand. In
the event that either party to tbis Agreement shall file suit or action at law or equity to interpret
or enforce this Agreement hereof, the unsuccessful party to such litigation agrees to pay to the
prevailing party all costs and expenses, including reasonable attorney<<fees, incurred by the
prevailing party, including the same with respect to an appeal.
16.7 Captions. The captions at the beginning of the several paragraphs and sections,
respectively, are for convenience in locating the context, but are not part of the text.
[The remainder of this page left intentionally blank.]
;~
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 14
.. ~
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be
executed on the day and year first above written.
DATED this t?g'~ay
CITY OF MERIDIAN
2006.
"DEVELOPER"
By: ~~
R. Craig Groves, Secretary/Treasurer ,i;
"LANDOWNER"
By: /l-~ -
R. Craig Groves, Managing Member
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 15
STATE OF IDAHO )
) ss:
County of Ada )
I'
On this _ day o( . 2006, before me, the undersigned, a Notary Public
in and for said' ate, personally appeared TAMMY DE WEERD and WILLIAM G. BERG, JR.,
known to me to be the Mayor and City Clerk, respectively, of City of Meridian, Idaho, and who
executed the within instrument, and acknowledged to me that 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.
(SEAL)
!j ~,-~ - ..~~. .~
STATE OF IDAHO )
) ss:
County of Ada )
,.J-
On this(~~___:< day of 2006, before me, the undersigned, a Notary Public in and
for said State, personally appeared GREGORY B. JOHNSON and R. CRAIG GROVES, known
to me to be the President and Secretary/Treasurer, 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.
'tt-
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year firs:...~RHy:~:X>Zi~~n. .
(SEAL) ~..~ '2;r. Y 8'C Q' ., ""
.:>.:-.s ....">1'53(.. v./'.... ~
~ ~LV"..... C)..._.... ~
.. -"..- . f\,;~< '!I;
..., ". 'i!
I I, ~OTA-4'rj ':
.. .. ..
: :- +...". :t~
: · .. "i
: \ PUBV~C . ~
~tP. -...
~~,t1~;'<:".f~~~;:~C ~l
" l; Q'L' \'i)~ ~..~
t~1 :I" ,'0'
'E'OlG,~,.i'~
Notary Pub}"
Residing at:~::_____
Commission Expires: .."
PARK DEVELOPMENT AND PARK IMPACT FEE REIMBURSEMENT AGREEMENT
PAGE 16
STATE OF IDAHO )
) ss.
County of Ada )
On this day 2006, before me, the undersigned, a
Notary Public in and for said State, personally appeared GREGORY B. JOHNSON and R.
CRAIG GROVES, known or identified to me to be the Managing Members of Kenai Partners,
LLC, the Idaho limited liability company that executed the within and foregoing instrument, or
the persons who executed the instrument on behalf of said Idaho limited liability company, and
acknowledged to me that such Idaho limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunfo set my hand and affixed my official seal the
day and year !ll.tlm'~cate first above written.
~...", .. ~'i sea ':""
..... ,':J ".~II. . v /. ~#.
(SEAL) ! 4;-~~~. ~...~<" \
! I ~OTA~y \, \
!: ,: __,t,;.=
:. ,~,
'\ \ PUB\"'\C! ~
~U>'. ...01
...., />-1 -~.."'... ~ .......
"'",/'8 011 \~ ~...........
'I'~ .......
Schedule of ExnlUrrs~
Notary Pub}'
Residing at:
Commission Expires"
Exhibit A - Legal Description of the Park
Exhibit B """,;Deed of Gift
Exhibit C'""":Elements of Project Improvements
Exhibit D,-!Total Project Budget
:..:
PARK DEVELOPMENT AND PARK IMP ACT FEE REIMBURSEMENT AGREEMENT
PAGE 17
EXHIBIT A
LEGAL DESCRIPTION
lparCel of1aa:11ocatfia ia the W-est 1/2 oftlu: NE 1/4 ofS8Ction 20, T.3N.,
R.IE., B.M., Ada County, Idaho, more pilticularly Acscnbed U1foIlow.: Cmdnellting.
the North 1/4 cordtr of.d Section 20, froJ!1 whiclt the Northeest comer of said "ion
bcfa'S North 89046'02" East, 2656.88 feet; Thenceftlollj:thr NQftb-South mid-9IDl:tion line t-
South 00024'04" West. 1541.32 ffllt to the u..(L POINT OF S-JG~ING. .
Thence South 89035'56" East, 40.OQ f8et;
1'b.eItte South 00"24'~" vr~ 915.87 flit;
TaeocDlorth g9~4'13" EEt, 120.08 feet;
fh~North 55"29'51" East, 43.9t f~to . point on aCurYe;
1IQenCG"30.20 = aloI1&,tI! life off non-rllP~t c~ to the left, having a radius
of75.00 felet, a delw..gle of2300"'26", and a 1CJl1S chord bearing South 34030'09" East,
.gO.oe felt;
ThJnce SQuth 55"29'51" West, 32.35 teet;
Thence.South1)Oot5'47" Bast, 154.82 feet;
Third North 3~54'13" ~ 1 060. 00.. fCt to a point Ion the west_yboundaryof
Bonito Sllbiiivision, as sarae if'lrecorded in ~ 86 drPlats at Paa- 9783, records of Ada
COWlty, Idaho;
TWilce along t~ W<lIt boUDdary of said subdivision South 01 042 '39" West,
15.01 fett to tbte Southwest cornir of ~d IUbdivision lying on th.North bo\81dary of
Thousaul8prinllS Subdivisfbn No.3, as liilIJle is recor~ ift B&k 79 of PI_ at Pase
~:;3S, records of Ada COtllty, Idaho;
Tlaence tioD(!:.mill North boundary South 89054'13" We8t, 1247.79 feet to the
Ceater,l'fiiid SHPQIl 20;
Thmce abll.the Nri-South mid-sdctiQlllin'e aM th'6 East boundary'U
Roso\ution S!.b4I.Vim,n NQ.l... ai~i$J rccordM in Boo~ilg2 ofPlAts'8l Pqe 904-\,
records of Ada Cmmty, Idlho, NoltlilOQo24'()4" East, 11{)ll.J3 fM to the Point of
Beginning. Conta!1i!lg;2.04 acrGl, more 0[':_.
EXHIBIT A-I
+
.
EXHIBIT B
DEED OF GIFT
DEED OF GIFT
THIS DEED OF GIFT is made this" day of . ____
.~ ...........:-.~.........-
Partners, LLC, and Idaho limited liability c'ompany ("Grantor")
subdivision ofthe State ofIdaho whose current address is 33 Ea,
("Grantee").
, "Kenai
a political
aho 83642
AS A GIFT to Grantee, Grantor does here - .
property located in the County of Ada, State 0 dah6, .
and made a part hereof (hereafter, the "Pro ..
.." - . hereditaments and appurtenances
- ec' n-J..-,.
This conveyance by G
'.ee is ~. de subject to the following exceptions:
1.
"
'>-.,., ts levied against the Property, including liens and
, rrigation district ("Taxes") for the year in which the
"~: de shall be prorated between Grantor and Grantee as ofthe date
if Gift. Taxes levied and assessed for the prior year shall be paid by
ents and rights-of-way for roads, ditches, utilities and other purposes and
:. s, which easements and rights-of-way are of record or visible upon a physical
. nspection of the Property.
3. Exceptions, reservations, terms, covenants and conditions of record; provided,
however that Grantee shall not be subject to the Declaration of Covenants,
Conditions and Restrictions for Gramercy Subdivision recorded
as Instrument No. in the records of Ada County, Idaho; and
further, Grantee shall not be a member of the Gramercy Subdivision
Homeowners' Association, nor subject to assessments thereof.
EXHIBIT B-1
:;,:.
Section 2. Conditions of Conveyance.
TO HA VE AND TO HOLD the Property unto Grantee subject to the following express
conditions and covenants which are accepted and agreed to by Grantee as
evidenced by Grantee's execution of this Deed of Gift (collectively, "Grantee's
Covenants"):
1. City covenants and agrees to use the Property to provide community open space
and recreation facilities for the citizens of the City of Meridian. " -. intenance
of the Property shall be undertaken by the Grantee, and Gran a" ' ' - tain the
Property and all fixtures and equipment in satisfactory park onditi
2. Without the prior written consent of Grantor, which ..
sole and exclusive discretion of Grantor, at no ti
shall the Property, or any portion thereof, or t '
utilized for any residential, commercial, ind --
Property as a public park.
Section 3. Term of Grantee Covenants - S '
The term of the Grantee's Covenants /0
Deed of Gift and continue therea r a.
recordation of this Deed of Gift ("C
the Covenant Term, the Gr ... 's cove
shall be of no further for '
the date of recordation of this
- . do' ,-,rty (30) years following the date of
"). From and after the expiration of
II automatically terminate and end and
The Grantee's Cove ,:
r-
its successors
be' - en on the Property for the benefit of the Grantor,
shal -fun with the land.
-"'Grantee shall be deemed to have accepted and agreed to comply
- tions set forth in this Deed of Gift.
EXHIBIT B-2
'.
IN WITNESS WHEREOF, Grantor has caused its name to be subscribed this _ day of_
,200_
GRANTOR:
KENAIPARTNERS,LLC
On this _ day o(
Notary Public in and for said Sta
Groves, known or identified t,
Idaho limited liability com '
who executed the ins ~ - ' ,
acknowledged to me tha ;
By:
Gregory B. Johnson, Managing Member
By:
R. Craig Groves, Managing Member
,.
STATE OF IDAHO )
) ss.
County of Ada )
_ 006, before me, the undersigned, a
'nallYi\ ' 'ed Gregory B. Johnson and R. Craig
- - " '.~ng Members of Kenai Partners, LLC, the
e e within and foregoing instrument, or the persons
If of' id Idaho limited liability COrijpany, and
" 'ted liability company executed the same.
, have hereunto set my hand and affixed my official seal the
rst above written.
Notary Public for Idaho
Residing at:
Commission Expires:
EXHIBIT B-3
ACCEPTANCE
CITY OF MERIDIAN, by its execution below, hereby accepts the terms of the foregoing
Deed of Gift, and agrees to accept title to the Property subject to the conditions and restrictions
set forth therein, and agrees to comply with the same.
DATED this
day of
,200_.
STATE OF IDAHO
CITY OF MERIDIAN, ~
State of Idaho .'
n of the
=
....... ---
:G. Berg, Jr., City Clerk
County of Ada ,;~.
, 2006, before me, the undersigned, a Notary Public
.~ ally appeared TAMMY DE WEERD and WILLIAM G. BERG, JR.,
t yor and City Clerk, respectively, of City of Meridian, Idaho, and who
, instrument, and acknowledged to me that City of Meridian executed the
'.
. TNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
(SEAL)
Notary Public for Idaho
Residing at:
Commission Expires:
.
"
EXHmIT B - 4
EXHIBIT A
(Exhibit to Deed of Gift)
Legal Description
'"
A pIl"Gcl of 1Wld.loctlttq.in the WIit f/2 of the NE 1/4 of~.tion 20, T.3N.,
R.l E~, Paj,"ft.., Ada tg&y" Iqlho~ore particular!y descnMd ai:followst C~eoci~,'lt
the'''ortti If' ~~ofSIIUd.slCtion 20, from "hicb th~Northeat com.. of SAld 8eltion
~ ltbrtli 89046'O!" Ea. ~6~8 -.It; TlwnCt'J1lona Ithe Norftl-South mid-section 1m.
South 00"24';o4"-W~t, 1541.32 Sit to th!RW.. MINT OF BEGINNING.
1b.nce So" 89035'56" Fist, 40.00 fiC1;
~~'South O()~4'o.t' West, 915~17 f<<:it;
Theme North 89054' 13" East, 120!O8 felll;
ThEnc~ North 550:29' 51" East, 43.98 feet to a point on.. curve;
ThCllctl 30.20 fl!et alodl tlft: I.C of a non-tangent curve: to the left, havins ..radius
of 75.00 feot, a del~~ of23004'26", and a long chord b:uini South 34030'Or East,
30:00 feW;
TIr"cmce South 5SCI!9'Sl" West, 32.35 fe~
1'ben~South 00005'47" East, 154.82 fut;
Th~iNorth i90S4'13" East, 1 ~O.OO nset to a point on the west<<ly boundary of
Bonit.o S~ivisjon, lliillMme is-recordai in B~~ 86 of Plats tt Ptige 9783, l'Mords of Ad.
CountY. Ia.ho;
~
1'a.an<;,'alool!the ~t bo~aryofsaid subdivision South 01042'39" WlVt,
15.01 fee to the; Southwest comet of'lajd ftbdiv~ion lying on the North wundsty of
TIwUS8hd SprinpSubdiYilion ~o. 5, lIl_e.s ~ded.idBook 79 of Plats at Pall
8535, rdtordt of AltloCount)l, IcI.ho;
THine:. along Pi4 N~ l:1buft~ary South.s9054'13'i1W.lIt, 1247.79 rea to th(;
Center. oueid Section 20; ~
~oi tJIlg the North-j~outh mid-9IICti~ line and the Ea. bound&ry of
Resolug.on SuMivision No.1, aa lIame iarccordc:d in BoQ!. 82 ofPl'lits at Page 9041,
reca.a. of AcilPCounty~dlho, Nortl!i OO-24'~" East, 1104.23.t to tlfe Point of
Bt\tinliins. Containifi/2.()t 1CteS, more or 11$.
EXHIBIT B - 5
~
'.
EXHIBIT C
ELEMENTS OF PROJECT IMPROVEMENTS
KiMih~ ~~ PM - b
n R!q'ues~
CKM.J1 Co., Ilt.
~--=&:5n1II ~~
Imd eX! -
'I!t:1d _&':f'4t
ip-nlllJBOUIIld paI'Kl
-- .' "alC<k.!~
, [+/-.10]
:lfc!D .fotjve DIIIIfkm lot
>fiIJIb '
~.~"_1l.1
~Ct\'iIlICr.'
.s26.230.~
SPlW.Ol
'JI27 816.
'S1l3.:JbJ.
'$'3,lMJ.
sn~o.
$6,780.
SIB.roo.
:&,17 3:J:l.
'If. ,~-
~,;,ro.
, s:.!S.4\!fT.
.gs,9197.
S3,!Dl'.
'''''.~,
rf153..
..~~.
".l.?5.
.S25:.715.
'9'.2,100. '
.ss;92S.
.\
~icle('& ~CotdlliII
Food ......
nlilllie ~* lIRe
,..,
r m
j
~I
PWt tre6l!l
Bin ITVIi'dl
l!JI'la.~ e
~lkfI_'
lrwt~~
&f!iL , 11~SSU&1Iid.
. ' ' "'1>,
- iii,. ..]
I
$40Q..
3.-
&3,'LW.
5l2,~.
:':4
'~,1r4.1Jt
E-......:I ~ dwr.ldJn: 83 'IIIGlI:IIDg __I<'
"0IWI'Illf
;J:
11II,'1 - PrtlG.'& 4"' Coo OWl
AI. 1:2 - Preo. '&' 'Z' COf1~. B6 COlI1
:iLrl.tiZf .11I
519 162.fll
1C.11.~
EXHIBIT C - 1
EXHIBIT D
TOTAL PROJECT BUDGET
Kiwanis Park Project Budget
Landscape Contract
Survey & Staking (allowance)
Contingency 10%
Construction Management 5%
Insurance
$649,174.00
7,000.00
64,000.00
33,130.25
2,732.75
Total ~ro;ect D,!d!!et
$7~.OJ7.00
$275,000.00
$
Less: Developer Contribution
Less: Landowner Contribution
(approx. 2.035 acres)
R.em9.ininQ' Pro'~,ed, Cost
$481.037.00
Kiwanis Park Budget
Less: Restroom, Playground
Remaining Kiwanis Park budget
$340,684.00
140.216.00
$ 200,468.00
Unfunded difference
$ 280,569.00
Budget Amendment needed
$280.569.00
.
11
EXHIBIT D - 1