Service Solicited - 2014 - CCI Construction Inc - Dirt Removal Guerber Park Procurement Agreement Amendment 1 PROCUREMENT AGREEMENT - 1ST AMENDMENT
THIS AMENDED PROCUREMENT AGREEMENT("Agreement")is made and entered
into this �54- day of cantor , 2014, by and between CCI Construction, Inc., an Idaho
corporation ("Developer"), an the City of Eagle, Idaho, an Idaho municipal corporation
("City"). For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the City and Developer agree as follows:
1. Background and Consideration. City owns that certain real property, being a portion of
Guerber Park, shown on Exhibit A (the "Procurement Site"). Within the Procurement Site is a
mound of dirt approximately 40 feet tall. The City desires the mound of dirt to be removed so as
to provide approximately 77,685 square feet of additional park space, provide a pathway to the
Procurement Site, and facilitate a future irrigation pipeline, use of irrigation water and other items
as may be addressed in a future development agreement with the City. The City's city council has
determined that the value to the City for the public works project at the Procurement Site and the
abatement of the claimed public nuisance at the abandoned gravel pit adjacent to the Procurement
Site can be completed by only one vendor who has access to and is reasonably available for the
removal of the earth above the City's park property which is Developer. Developer,at Developer's
sole cost and expense, is willing to remove the mound of dirt located along the eastern edge of the
Procurement Site and make other improvements to the Procurement Site, all as further set forth in
this Agreement, as a charitable donation to the City. The City is willing, upon certain terms and
conditions as set forth in this Agreement, to receive this donation from the Developer.
2. Duties and Responsibilities of Developer.
2.1 General Description of Services. Developer has commissioned Alpha Omega
Engineering, LLC to prepare the plans and specifications for removing the mound of dirt and
grading the eastern edge of the Procurement Site, which plans and specifications are attached
hereto as Exhibit B and made a part hereof("Plans and Specifications" OPTION B). The City
hereby approves of the Plans and Specifications.
2.1.2 Developer, without cost or expense to the City, shall hire a contractor
("Contractor")to remove the mound of dirt within the Procurement Site, grade the Procurement
Site and install a pedestrian pathway all in accordance with the Plans and Specifications ("Scope
of Work"). Any materials, including sand and gravel, removed within the Scope of Work shall
be disposed of by Developer, as Developer shall determine, without compensation to or offset by
City. The Contractor shall be approved by the City before performing any of the Scope of Work.
The Scope of Work shall include all management, supervision, financing, goods, products,
materials, equipment, systems, labor, services, permits, licenses, construction machinery, water,
heat, utilities, transportation and other facilities necessary for proper execution and completion of
the Scope of Work in accordance with all of the terms and conditions of this Agreement.
2.1.3 Before performing the Scope of Work,Developer shall obtain, and/or cause
Contractor to obtain, (and deliver copies thereof to City) from the authorities having jurisdiction
thereover all required building permits, plan approvals, special exceptions, special or conditional
use permits, variances, licenses, including public works licenses, and other permits and approvals
as may be required to enable Developer to complete the Scope of Work (the "Approval" or
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"Approvals"). All Approvals must be in such form and substance as to be acceptable to City. All
costs and expenses in connection with the foregoing shall be borne by Developer. The Scope of
Work shall comply with the requirements of public authorities and all lawful requirements
(including, without limitation, the Americans With Disabilities Act, 42 U.S.C. Section 12101 et
seq.); all state, county and municipal laws, ordinances, rules and regulations pertaining to the
accommodation of disabled persons; all zoning laws and ordinances; and all building, fire, health
and safety codes) with all necessary inspections having been completed in accordance with
applicable laws, and shall be done in a first class, good and workmanlike manner, and free and
clear of all liens and encumbrances for labor and materials furnished to Developer.
2.1.4 Upon completion of the Scope of Work, Developer shall, within five (5)
calendar days, remove from the Procurement Site all construction materials and waste, rubbish,
other debris, equipment, sheds and similar items related to, produced by or required for the Scope
of Work. City makes no warranty or promise as to the condition, safety, usefulness or habitability
of the Procurement Site or the mound of dirt thereon and Developer accepts responsibility for the
Scope of Work as-is.
2.1.5 Developer shall immediately notify the Zoning Administrator, both orally
and in writing, of the nature and details of all incidents which may adversely affect the quality or
progress of the Scope of Work including, but not limited to, labor disputes, accidents, delays,
damages to the Scope of Work and other significant occurrences.
2.1.6 Except in the case of an emergency, Developer shall not perform the Scope
of Work before 8 a.m. or after 5 p.m. or at any time on weekends or holidays as defined by Idaho
Code § 73-108. Except as may be required to comply with applicable law, Developer shall not
utilize stand-alone lighting in order to extend the hours of work. As part of the Scope of Work,
Developer shall provide a three dimensional rendering of the expanded portion of the Procurement
Site and its surrounding areas.
2.2 Schedule. Developer shall cause the Scope of Work to be performed according to
a construction schedule approved by the City. Such construction schedule shall be planned to
minimize interference with planned activities at the Procurement Site. Subject to Section 4.4,once
the Scope of Work begins, Developer shall thereafter cause the Contractor to diligently pursue
completion of the Scope of Work in accordance with the approved schedule.
2.2.1 Developer shall send written notice to the Zoning Administrator at least
forty-eight hours (48) prior to the date that the Scope of Work is ready for final inspection. Such
notice shall set forth the date that all such Scope of Work is to be completed (the "Anticipated
Completion Date"). City and/or its Zoning Administrator shall have the right to inspect the Scope
of Work on the Anticipated Completion Date or such other date as the parties hereto shall agree.
2.2.2 Substantial Completion of Developer's Scope of Work shall be deemed to
have occurred when the Scope of Work passes a Substantial Completion inspection. Upon passing
the final inspection, City and Developer shall each sign a Declaration of Substantial Completion
declaring the Scope of Work substantially complete and establishing the actual date of Substantial
Completion. The Declaration of Substantial Completion may also include a list of and time line
for the completion of Scope of Work needing completion and correction.
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2.2.3 In the event the inspection on the Anticipated Completion Date reveals any
defective work or Scope of Work which is not in conformance with the Plans and Specifications,
then Developer shall, at Developer's sole cost and expense, and within ten (10) days following
such inspection correct all such Scope of Work to the reasonable satisfaction of City, and
Developer shall reimburse City for any costs incurred by City in connection with such inspection,
including, without limitation, the cost of any independent testing or inspection performed by or on
behalf of City and any re-inspection of the project as a result thereof. Any entry upon the
Procurement Site by City prior to substantial completion or City's failure to identify a defect in
construction during any inspection, shall not waive any of Developer's obligations under this
Agreement (including but not limited to Developer's obligation to correct defects or
nonconforming aspects of the Scope of Work). Each inspection is for the sole benefit of City and
shall not be relied upon by any other party. Nothing herein contained shall be construed as a
waiver of or limitation on any additional rights of City hereunder.
2.3 Security Deposit. Prior to the start of construction, Developer shall deposit with
the City the sum of Six Hundred Fifty Thousand Dollars ($650,000.00) ("Security Deposit") in
lieu of furnishing a surety company performance or payment bond. In the event of a material
change in the Scope of Work, as further described in Section 6.2, Developer agrees to increase the
Security Deposit amount to 100% of the additional cost to complete the material change.
3. License. City hereby grants Developer and Developer's contractors (including
Contractor), agents, employees and licensees, a license over and across the Procurement Site to
conduct the Scope of Work, and such portions of Guerber Park adjacent to the Procurement Site
as may be required to conduct the Scope of Work. The term of the license shall begin on the date
of this Agreement and continue until the Scope of Work has been completed.
4. Covenants of Developer.
4.1 Insurance.
4.1.1 Developer shall, at all times during the term of this Agreement, and at its
sole cost and expense, secure and maintain liability insurance providing coverage for damages,
claims and causes of action for injury, death or personal property damage, including workers'
compensation in an amount not less than One Million Dollars ($1,000,000) per occurrence. Prior
to commencement of the Scope of Work,Developer shall provide City with proof that such liability
insurance is in effect together with a certificate or endorsement evidencing that said insurance may
not be canceled without at least ten (10) days' prior written notice to City and showing that City
is an additional insured thereunder.
4.1.2 Developer shall, at all times during the term of this Agreement, and at its
sole cost and expense, secure and maintain workers compensation insurance as required by law
and provide City with proof of the same.
4.1.3 Developer shall, at all times during the term of this Agreement, and at its
sole cost and expense, secure and maintain Comprehensive Automobile Liability which includes
contractual liability coverage and coverage for all owned, hired and non-owned vehicles with
limits of not less than: (a) one million Dollars ($1,000,000) per accident for bodily injury and
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property damage, or (b) one million Dollars ($1,000,000) combined single limit. Developer shall
provide City with proof of such coverage.
4.2 Indemnity. Subject to the limits of the Idaho Tort Claims Act, Developer agrees
to indemnify,defend and save the City harmless from any and all claims,damages,liability,causes
of action,judgments,expenses(including reasonable attorneys' fees and reasonable attorneys' fees
on appeal) (collectively"Claims") arising out of or in any way connected with the Scope of Work.
Notwithstanding the foregoing,to the extent any Claims arise from or relate to the condition of the
Procurement Site prior to commencement of the Scope of Work, Developer's indemnification and
other obligations under this section shall not apply. Without limiting the foregoing, Developer
shall not be liable for any Claims or diminution in value arising or resulting from (i) Developer's
discovery of any pre-existing condition in, on, under or about the Procurement Site, or (ii) any
exacerbation of a pre-existing condition in, on, under or about the Procurement Site, except to the
extent, if any, said exacerbation results from the willful or negligent act or omission of Developer,
its agents, contractors or employees.
4.3 Approval Procedure.
4.3.1 Before any action requiring the City's approval is commenced, sufficient
information shall be sent to City and City's zoning administrator (the "Zoning Administrator")
to enable City and the Zoning Administrator to make a reasonable decision as to the proposal. City
agrees not to unreasonably withhold, condition or delay its approval to any proposal. In the event
the City does not approve any proposal, it will so inform Developer in writing and provide
sufficient details as to the reason why it denied the proposal and the corrective actions necessary
to obtain the City's approval.
4.3.2 City hereby appoints William E. Vaughan to act as the initial Zoning
Administrator for the City. Unless otherwise directed by City, the Zoning Administrator shall act
as City's representative from the effective date of this Agreement until one (1) year from the date
Developer achieves substantial completion. The Zoning Administrator so designated will (i)
consult with and advise City on all design and technical matters; (ii) be City's representative in
dealing with Developer on all such matters; and, (iii)administer this Agreement. Unless otherwise
directed by City, City and Developer shall communicate with each other in the first instance
through the Zoning Administrator. City's instructions to Developer will be issued through the
Zoning Administrator. The Zoning Administrator will act as initial interpreter of the requirements
of this Agreement and as City's advisor on claims.
4.3.3 Zoning Administrator will visit the project with sufficient frequency for
familiarization with the progress and quality of the Scope of Work and to inspect the Scope of
Work to determine compliance of the Scope of Work with(i) this Agreement, including approved
shop drawings and other submittals; (ii) the construction schedule; and, (iii) applicable laws,
statutes, building codes, rules or regulations of all governmental, public and quasi-public
authorities and agencies having or asserting jurisdiction over the project.
4.3.4 Zoning Administrator may disapprove or reject Scope of Work which does
not comply with(i)this Agreement including approved shop drawings and other submittals; or(ii)
applicable laws, statutes, building codes, rules or regulations of any governmental, public and
quasi-public authorities and agencies having or asserting jurisdiction over the project.
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4.3.5 Zoning Administrator, at City's initial expense, may require inspection or
testing of any Scope of Work in addition to that required by this Agreement or governmental
entities having or asserting jurisdiction over the project when such additional inspections and
testing is necessary or advisable, whether or not such Scope of Work is then completed. Zoning
Administrator will take appropriate action on all such special testing and inspection reports,
including acceptance, rejection, requiring additional testing or corrective Scope of Work, or such
other action deemed appropriate by Zoning Administrator. If the testing shows the Scope of Work
was not performed in accordance with this Agreement, Developer shall reimburse City for the
testing performed.
4.3.6 Zoning Administrator will, when requested to do so in writing by
Developer, promptly and so as to cause no unnecessary delay, render written or graphic
interpretations and decisions necessary for the proper execution of the Scope of Work. Zoning
Administrator's interpretations and decisions relating to artistic effect shall be final if not
inconsistent with this Agreement.
4.3.7 The duties, obligations and responsibilities of Developer under this
Agreement shall not be changed, abridged, altered, discharged, released, or satisfied by any duty,
obligation or responsibility of the Zoning Administrator. Developer shall not be a third-party
beneficiary of any agreement by and between City and Zoning Administrator. The duties of
Developer to City shall be independent of,and shall not be diminished by,any duties or obligations
of the Zoning Administrator to City.
4.4 Force Majeure. Developer shall comply with the time periods set forth in this
Agreement and the agreed upon schedule, provided, however, that said periods shall be extended
for a period or periods of time equal to any period or periods of delay caused by strikes, lockouts,
fire or other casualty, the elements or acts of God, refusal or failure of governmental authorities to
grant necessary permits and approvals for the construction contemplated hereunder (Developer
agrees to use reasonable diligence to procure the same), or other causes, other than financial
problems of Developer, beyond Developer's reasonable control.
4.5 Liens. Developer shall not permit any liens to stand against the Procurement Site
or any portion thereof for any work done or materials furnished in connection with the Scope of
Work. Developer may contest the validity of any such lien provided that, upon a final
determination of the validity thereof, Developer shall cause the lien to be satisfied and released of
record.
5. Payments.
5.1 Cost Estimate. Developer estimates the total cost to complete the Scope of Work,
including any and all Idaho state sales tax but excluding costs incurred and paid for by Developer
prior to the date of this Agreement, does not exceed the amount of the Security Deposit. To the
extent the total cost to complete the Scope of Work exceeds the Security Deposit, such excess shall
be borne by the Developer in its entirety.
5.2 Release of Security Deposit. Prior to substantial completion of the Scope of Work,
City shall make release portions of the Security Deposit directly to Contractor, or any
subcontractor of Developer or Contractor, as Developer's invoice may direct; provided that in no
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event shall City be obligated to cut more than five (5) individual checks in any one draw request
and provided further that no payments shall be made to Developer. Security deposit releases shall
be made upon Developer's application for payments based on the following schedule of values
and the percentage completed according to Developer's application for payment:
Event Amount
Soils Testing $25,000
Construction Staking $10,000
Professional $15,000
Grading/Crushing $550,000
SWWP/Barricades $25,000
Miscellaneous $25,000
5.3 Application for Release. Except as set forth in Section 5.4, on or before the
Monday before the last Wednesday of each calendar month after commencement of the Scope of
Work, Developer shall submit to Zoning Administrator an invoice for the percentage of work
completed according to the schedule of values set forth in Section 5.2. Zoning Administrator shall
inspect,or cause to be inspected,the construction site on or before the last Wednesday of the month
and confirm the percentage work completed or notify Developer within five (5) days after the
inspection of any objections to the invoice. Provided Zoning Administrator has not objected to
the invoice within such five (5) day period, City will pay the invoice directly to Contractor,
Developer or any subcontractor of Developer or Contractor as Developer's invoice may direct,not
later than twenty (20) days after the last Wednesday of the month less a retainage of five percent
(5%).
5.4 Final Release. City shall release the balance of the Security Deposit, as
Developer's invoice may direct, which amount shall include all retainage amounts previously
withheld by City,within twenty(20)days after the Scope of Work passes a Substantial Completion
inspection as described in Section 2.2.2. The final release payment may include payment to more
than five (5) individual payees.
6. Change Orders and Changes to Scope of Work.
6.1 Change Order Requests. Any party to the construction process may request
changes to the Scope of Work, compensation or applicable schedules.
6.1.1 With respect to such requests for changes by Developer, Developer shall
prepare and submit a change order request to the Zoning Administrator. When requested to do so,
Developer shall prepare and submit to the Zoning Administrator drawings, specifications or other
data in support of a change order request. Each change order shall include time and monetary
impacts of the change, whether the change order is considered alone or with all other changes in
the course of the project.
6.1.2 The City and/or Zoning Administrator may authorize or direct Developer to
make minor changes in the Scope of Work which are consistent with the intent of the Plans and
Specifications and which do not involve a change in project cost, time for construction, project
scope, or approved design elements, and Developer shall promptly carry out such changes. Any
such minor changes shall be implemented by written field order and executed by Developer.
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6.1.3 The Zoning Administrator will administer and manage all change order
requests and change orders and will prepare required drawings, specifications and other supporting
data as necessary in connection with minor changes, change order requests and change orders.
6.1.4 With respect to all change order requests from the City which increase the
Scope of Work or involve or additional expense to Developer, Developer shall (i) obtain from
subcontractors and suppliers the best reasonably available price quotations; (ii) review such
quotations to ascertain whether they are reasonable; (iii) prepare an itemized accounting together
with appropriate supporting data, including reasonable expenditures by, and savings to, those
performing the scope of the work involved in the proposed change; and, (iv) provide a reasonable
quotation to the Zoning Administrator.
(i) If price quotations for change order requests are determined by
Zoning Administrator to be unreasonable, Developer shall, in writing, justify said
quotations or provide additional back-up materials. If after review of the additional
information Zoning Administrator determines the quotation is unreasonable, City may
require Developer to perform the subject work on a time and material basis and City will
pay the same to Developer.
(ii) Developer shall be allowed no compensation for any costs, fees or
expenses incurred in performing services already required by this Agreement, and shall not
be entitled to additional reimbursement for its home office,other non job project or indirect
overhead expenses, or tools necessary for construction.
6.1.5 If Developer disputes a change order from the Zoning Administrator,it must
give City its written notice of dispute, including the reasons therefore, within ten (10) calendar
days of the disputed decision.
6.2 Unforseen Changes to Scope of Work. In the event a material and unforeseen
circumstance at the Procurement Site necessitates a material change in the Scope of Work,
Developer shall prepare and submit a change order request to the Zoning Administrator. When
requested to do so, Developer shall prepare and submit to the Zoning Administrator drawings,
specifications or other data in support of a change order request. Such change order shall include
time and monetary impacts of the change, and whether the change order is considered alone or
with all other changes in the course of the project. If the cost to address the material and unforeseen
circumstance exceeds 15% of the remaining balance of the Security Deposit, Developer shall
increase the Security Deposit to cover 100% of the additional cost to address the material and
unforeseen circumstance along with a modification to the schedule of values set forth in Section
5.2 to account for the change in the Security Deposit. In the event City does not agree to the
modification to the schedule of values, such increased amount shall be paid with the last payment
due.
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7. Independent Contractor Status. In the performance of the work, duties and obligations
described in this Agreement, it is mutually understood and agreed that each party is at all times
acting and performing as an independent contractor with respect to the other and that no
relationship of employment is created by this Agreement. Neither party, nor any other person
performing services on behalf of either party pursuant to this Agreement, shall have any right or
claim against the other party under this Agreement for social security benefits, workers'
compensation benefits, disability benefits, unemployment insurance benefits, health benefits,
vacation pay, sick leave or any other employee benefits of any kind.
8. Compliance with Employment and Immigration Laws. Developer certifies to City that:
(i) Developer is in full compliance with the immigration laws of the United States relating to
Developer's employees assigned by Developer to perform services for City hereunder; (ii) all of
Developer's employees are authorized by law to work in the United States and Developer's
employees have presented documentation to Developer that establishes both identity and work
authorization in accordance with applicable immigration regulations (and to the best of
Developer's knowledge, information and belief, the documentation presented to Developer is
genuine and accurate); and (iii) Developer complies with all federal, state and local labor and
employment laws, and wage and hour laws, as these laws may relate to Developer's employees
performing services for City (collectively the laws referenced in this paragraph shall be referred
to as the "Immigration and Employment Laws"). After the date hereof, Developer shall fully
comply with all Immigration and Employment Laws in connection with Developer's performance
of services for City hereunder. In addition, Developer shall require, in Developer's contract(s)
with its subcontractor(s) that each such subcontractor: (i) make the same certifications to
Developer as set forth in this Section; (ii) make the covenants contained herein pertaining to
compliance with the Immigration and Employment Laws during the course of performance of such
subcontractor's work; (iii) reaffirm, as of the date of completion of all work to be performed by
such subcontractor, that such subcontractor has complied with the Immigration and Employment
Laws during the course of the performance of such subcontractor's work; and(iv)require, in such
subcontractor's contracts with its subcontractors, that each such subcontractor make such same
certifications and covenants to Developer as set forth in (i), (ii) and (iii) above. Upon execution
of the substantial completion certificate, Developer shall be deemed to have certified to City that
Developer has complied with the Immigration and Employment Laws during the period of time
from the date of this Agreement through and including the date of substantial completion.
9. Supervision. City shall have the right, but not the obligation, at all times during
Developer's hours of operation, to observe and correct, as necessary, Developer's performance of
Developer's responsibilities as set forth in this Agreement. Nothing herein obligates or implies
that the City controls the Developer's means or methods of compliance with this Agreement.
10. Notices. All notices required to be given under this Agreement shall be in writing and shall
be deemed delivered if personally delivered or dispatched by certified or registered mail, return
receipt requested, postage prepaid, addressed to the parties as follows:
Developer: CCI Construction, Inc.
1342 E. Covey Run Court
Eagle, Idaho 83716
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City: City of Eagle
P.O. Box 1520
Eagle, Idaho 83616
Either party may change the address to which to send notices by notifying the other party of such
change of address in writing in accordance with the foregoing.
11. Default. Neither party shall be deemed to be in default under this Agreement except upon
the expiration of ten (10) days from receipt of written notice from the other party specifying the
particulars in which such party has failed to perform its obligations under this Agreement, unless
such party, prior to expiration of said ten (10) day period, has rectified the particulars specified in
said notice of default. However, such party shall not be deemed in default if the default,other than
the failure to pay money,can not be cured within such ten (10)day period,and the defaulting party
is using good faith efforts and all diligence to cure the default.
12. City's Right To Stop Scope Of Work.
12.1 Cease And Desist Order. If Developer fails or refuses to perform or fails to correct
defective work as required, or persistently fails to carry out the Scope of Work in accordance with
this Agreement, City may, by written notice, order Developer to cease and desist in performing
the Scope of Work until the cause for the order has been eliminated to the satisfaction of City.
Upon receipt of such instruction, Developer shall immediately cease and desist as instructed by
City and shall not proceed further until the cause for City's order has been corrected, no longer
exists, or City instructs that the Scope of Work may resume.
(i) Developer shall not be entitled to an adjustment in the time for
performance or the Purchase Price under this clause since such stoppages are considered
to be the fault of Developer.
(ii) The right of City to stop work shall not give rise to a duty on the part
of City to exercise this right for the benefit of Developer or other.
(iii) In the event City issues instructions to cease and desist, and in the
further event that Developer fails and refuses with seven (7) calendar days to provide
adequate assurance to City that the cause of such instructions will be eliminated or
corrected, then City shall have the right, but not the obligation, to carry out the Scope of
Work or any portion of the Scope of Work with its own forces,or with the forces of another
builder, and Developer shall be responsible for the cost of performing such Scope of Work
by City to the extent such costs exceed any amounts remaining in the Security Deposit.
(iv) The rights set forth herein are in addition to, and without prejudice
to, any other rights or remedies City may have against Developer.
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13. Termination Or Suspension Of Agreement.
13.1 Termination for Cause by City. After notice and opportunity to cure as set forth
in this Agreement, City may terminate this Agreement for cause if Developer materially breaches
this Agreement by:
13.1.1 refusing, failing or being unable to properly manage or perform the Scope
of Work;
13.1.2 refusing, failing or being unable to supply the project with sufficient
numbers of workers,properly skilled workers,proper materials, or maintain applicable schedules;
13.1.3 refusing, failing or being unable to make prompt payment to subcontractors
or suppliers; provided City is in compliance with Article 5;
13.1.4 disregarding laws, ordinances, rules, regulations or orders of any public
authority or quasi-public authority having jurisdiction over the project;
13.1.5 refusing,failing or being unable to substantially perform in accordance with
the terms of this Agreement as determined by City, or as otherwise defined elsewhere herein, or
13.1.6 refusing,failing or being unable to substantially perform in accordance with
the terms of any other agreement between City and Developer.
13.2 Remedies. Upon the occurrence of a default by Developer and Developer's failure
to cure the default as set forth in this Agreement, City, without prejudice to any other rights or
remedies, may take any or all of the following actions:
13.2.1 complete all or any part of Developer's Scope of Work,including supplying
workers, material and equipment which City deems expedient to complete the Scope of Work;
13.2.2 contract with other contractors(s) to complete all or any part of the Scope
of Work, including supplying workers, material and equipment which City deems expedient to
complete the Scope of Work;
13.2.3 take such other action as is necessary to correct such failure; and,
13.2.4 give notice to Developer of immediate termination.
13.3 Additional Remedies. If City terminates this Agreement for cause, City may also,
without prejudice to any other rights and remedies:
13.3.1 take possession of all materials, tools, construction equipment, balance of
the Security Deposit and machinery on Guerber owned or leased by Developer;
13.3.2 directly pay from the Security Deposit or otherwise Developer's
subcontractors and suppliers, if any, compensation due to them from Developer;
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13.3.3 finish the Scope of Work by whatever method City may deem expedient;
and,
13.3.4 require Developer to assign Developer's right, title and interest in
Developer's subcontracts or orders to City.
13.4 Offset. If City terminates this Agreement for cause, and City takes possession of
all materials,tools, construction equipment,balance of the Security Deposit and machinery on the
Procurement Site owned or leased by Developer, Developer's compensation shall be increased by
fair payment, either by purchase or rental at the election of City, for any materials, tools,
construction equipment, balance of the Security Deposit and machinery items retained, subject to
City's right to recover from Developer its damages resulting from the termination.
13.5 Termination for Cause by Developer. Developer may terminate this Agreement
for cause if City materially breaches this Agreement.
14. Miscellaneous Provisions.
14.1 Severability. Any terms or provisions of this Agreement which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other terms or provisions in
this Agreement and such remaining terms and provisions shall remain in full force and effect.
14.2 Attorney's Fees. In the event that either party to this Agreement shall bring any
action at law or in equity to enforce any term, covenant or condition of this Agreement, the
prevailing party in such action shall be entitled to recover all costs and expenses, including
reasonable attorney's fees, incurred by such party in connection with such action.
14.3 Governing Law. The existence, validity and construction of this Agreement shall
be governed by laws of the state of Idaho.
14.4 Assignment. Neither party shall have the right to assign this Agreement without
the prior written consent of the other party, which consent may be withheld by such party in its
sole discretion. Any attempted assignment of this Agreement in contravention of this provision
shall be null and void and without any effect whatsoever.
14.5 Successors and Assigns. Subject to the provisions of this Agreement regarding
assignment, the terms, covenants and conditions contained herein shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
14.6 Waiver. The waiver by either party to this Agreement of any one or more defaults,
if any, on the part of the other shall not be construed to operate as a waiver of any other or future
defaults, under the same or different terms, conditions or covenants contained in this Agreement.
14.7 Caption and Headings. The captions and headings throughout this Agreement are
for convenience of reference only and shall in no way be held or deemed to be a part of or affect
the interpretation of this Agreement.
14.8 No Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied,
is intended or shall be construed to confer upon any person, firm or corporation other than the
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parties hereto and their respective successors or assigns, any remedy or claim under or by reason
of this Agreement or any term, covenant or condition hereof, as third-party beneficiaries or
otherwise, and all of the terms, covenants and conditions hereof shall be for the sole and exclusive
benefit of the parties hereto and their successors and assigns.
14.9 Entire Agreement; Amendment. This Agreement states the entire contract
between the parties in respect to the subject matter of this Agreement and supersedes any oral or
written proposals, statements, discussions, negotiations or other agreements before or
contemporaneous to this Agreement. The parties acknowledge that they have not been induced to
enter into this Agreement by any oral or written representations or statements not expressly
contained in this Agreement. This Agreement may be modified only by mutual agreement of the
parties provided that, before any modification shall be operative or valid, it be reduced to writing
and signed by both parties.
14.10 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be taken to be one and the same instrument, for the same effect as if all parties
hereto had signed the same signature page.
14.11 City Cooperation. City, at no cost or expense to the City, agrees to cooperate with
Developer in Developer's efforts to obtain IRS approval of the charitable donation contemplated
by this Agreement, including, without limitation, execution of such forms, appraisals or other
documents as Developer may reasonably request. Developer agrees City is not obligated to
determine or opine upon the validity of any charitable contribution and City is not undertaking any
tax analysis for Developer to obtain IRS approval of this charitable function. Developer agrees to
indemnify, hold harmless and reimburse City for any costs or claims incurred for City's
cooperation under this Section.
IN WITNESS WHEREOF,the parties to this Agreement have executed this Agreement on
that day and year set forth above.
DEVELOPER: CITY:
CCI Construction, . City of Eagle
r
;• f
By: .� BY:
D as B. Clegg James D. Reyno d
P sident Mayor
Page- 12
',NINIIIIIIIIIII
44 0 I AG4 ,\
ATTEST U44 41011Arto *.
(-C ")).C‘i2 71464.6\& a.
O ��r
Sheri Horton, Deputy City Clerk ; * u S�I**1'
��,�••
16 'A E0 '
STATE OF IDAHO ) 1/,"'•""'
): ss.
• County of Ada )
4 Alt
On this al day of , 2014, before the undersigned notary public in
and for the said state, personally appeared JAMES D. REYNOLDS, known or identified to me to
be the Mayor of the City of Eagle and the person who executed the foregoing instrument on
behalf of said City and acknowledged to me that said City executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first
above written.
1 4'0 0
d
.
O v w Notary Pu►a`c f Idaho
/ 1, esiding : C_41/4.,
e p v v My Commissi n Expires: o/" 140/ CA1
o, •••..•6e".t +°:
ST A
44i4.111, . 2
STATE OF IDAHO )
): ss.
County of Ada )
On this A day of/412n l , 2014, before the undersigned notary public
in and for the said state, personally appeared DOUGLAS B. CLEGG, known or identified to me
to be the President of CCI CONSTRUCTION, INC., who subscribed said company's name to the
foregoing instrument,and acknowledged to me that he executed the same in said company's name.
IN WITNESS WHERIA06,4414ve hereunto set my hand and seal the day and year first
above written. .••' 0SBORA, ''•.,
s a : �° ./ V • 0 3iotary P Wry Idaho d��ti .I esiding ria CJ' U
'., * • P ..... «`My Commission Expires: dt /.1-/�4.5
#4.„STATS o 4.
� `�
Page - 13
EXHIBIT A
SITE PLAN
[To be attached.]
Page- 14
0 41
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Exhibit A
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AMENDED 7-29-13
91,835 SQ. FT.
(2.108 AC.)
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130,541 SQ. FT. I i/
(2.996 AC.) ' / l I_
Procurement Site i-'-----• —'�— ~"� I
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109,463 SQ. =. �
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756,973 S
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0 17'377 AO
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EXHIBIT B
PLANS AND SPECIFICATIONS
[to be attached]
Page - 15
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