Reimbursement - 2021 - Reimbursement Agreement Between City Of Eagle And Avimor - 3/30/2021 REIMBURSEMENT AGREEMENT
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, THIS REIMBURSEMENT AGREEMENT (this "Agreement") is made thisp?f day of
t �'� , 2021 by and between the City of Eagle, a municipal corporation organized
and existing under the State of Idaho ("Eagle" or "City"), and Avimor Development, LLC, an
Idaho limited liability company ("Avimor"). The City and Avimor may be referred to in this
Agreement individually as a "Party" or collectively as the "Parties", as warranted under the
circumstances.
RECITALS
A. Avimor owns or controls large tracts of real property in Ada, Boise, and Gem
Counties(collectively,the"Property").
B. Avimor and City desire to annex the Property into the City of Eagle.
C. Avimor has requested the establishment of a reimbursement agreement between the
Parties for City's processing of all annexation and development applications to facilitate annexation
of the Property into the City, including, but not limited to, applications for annexation, initial
zoning, comprehensive plan amendment, zoning ordinance amendment, and development
agreement("Development Submittals").
D. The Parties acknowledge that:
1. Development of the Property, including public infrastructure, is expected to
progress in phases;
2. This Agreement does not constitute approval of any Development
Submittals, application, development agreement or conceptual plans for the development of
the Property and all development approvals will be in accordance with the notice and
hearing procedures of the Eagle City Code and Idaho State Statutes;
3. Due to the size of the Property, the City's standard application fees are cost
prohibitive to bringing the Development Submittals forward under the City's jurisdictional
authority;
E. To facilitate and ensure the timely processing of Development Submittals, the
Parties agree Avimor, on the terms and conditions herein, will deposit and maintain funds with the
City for monthly reimbursement of City expenses for the review and consideration of the
Development Submittals by appropriate land use planners, legal counsel, engineers and/or other
consultants (collectively, "City Consultants") as may be retained by the City, provided that such
additional fees for services are necessary to support City's review of the Development Submittals
where the City would not typically retain an outside consultant (for example, but not limited to, a
traffic engineer) (collectively, "Reimbursable Expenses"). If the City determines that additional
information is necessary to aid in the understanding of the work provided by Avimor's consultants
provided with the Development Submittals,the City will first request such information be provided
by Avimor before conducting its own third-party review using an outside City Consultant. A third-
party review will not be conducted by the City until Avimor has first had an opportunity to present
new information to the City. If the Eagle City Council determines that a third-party review by a
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City Consultant is necessary, then the City will provide written notice to Avimor of its intention to
retain a City Consultants and City's reason for its necessity. The Parties must agree on a scope of
work prior to commencement of third-party review(s).
F. The Eagle City Council has authorized the Mayor to enter into this Agreement on
behalf of the City and this Agreement shall become effective on the date that the City has executed
this Agreement("Effective Date").
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, and in consideration of the recitals above, which are
hereby incorporated below,the Parties represent,covenant,and agree as follows:
1. Fees. Avimor, in lieu of paying the fees established in Eagle City Code and/or
applicable fee resolution or application form, shall provide a cash deposit of Fifty Thousand
Dollars($50,000.00)("Review Fund")that will be considered a payment on Avimor's account and
drawn down based on the Reimbursable Expenses incurred by the City and invoices received by the
City for the costs incurred to process the Development Submittals in accordance with Eagle City
Code and Idaho State Statutes.
2. Scope of Review. Following the Effective Date, and again at least annually, the
City, through its Zoning Administrator, and Avimor will meet and discuss the scope of review of
the Development Submittals by City staff and City Consultants (the "Scope of Review"). In
advance of the meeting, the City will provide Avimor a written estimate for the time and expenses
for the Scope of Review, including then-current City Consultant rates. The Scope of Review is
understood to be a good faith estimate that may increase or decrease as City's review and
processing of the Development Submittals progresses. The fees collected by the City in connection
with this Agreement will be used solely for the purpose of reimbursing the City for Reimbursable
Expenses subject to the Scope of Review and its amendments, if any.
3. Costs for Public Hearings and Meetings. Out-of-pocket costs, not including City
Consultant fees, such as for publication of notices, incurred by City and City Consultants in
connection with public hearings and meetings before the City and required agencies will be paid by
Avimor to the extent that they are not covered by other fees in place at the time the City receives
the Development Submittals.
4. Minimum Balances. Avimor shall maintain a minimum balance of twenty percent
(20%) of the initial deposit in the Review Fund until the City has taken final agency action on the
Development Submittals and all implementation of said final action has been completed.
Completion of implementation of final agency action shall be determined solely by the City Clerk's
office in conjunction with the Zoning Administrator or its designees. The City shall notify Avimor
when the balance reaches the twenty percent (20%) threshold or less of the initial deposit in the
Review Fund on the regular invoice/statement generated by the City Clerk's office.
5. Invoices and Payment. The City will provide a monthly statement to Avimor
detailing Reimbursable Expenses incurred in the prior calendar month (each an "Invoice") along
with copies of supporting documentation such as receipts and invoices from City Consultants,
which may be redacted to protect privileged or otherwise undisclosable information. If Avimor
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contests any portion of an Invoice, Avimor will promptly notify the City Clerk's office pursuant to
Eagle City Code § 1-7-4(B)(2)(b), and the Parties will promptly and diligently endeavor to resolve
the contested amounts, including, as necessary, by the City replenishing the deposit by the
contested amount. If the Parties are unable to come to agreement on the Reimbursable Expenses,
either Party may provide the other Party notice and intent to mediate the matter. The Parties shall
agree on a mediator selected from the Idaho Supreme Court Mediators Roster. While the matter is
in mediation, the City will continue to review the Development Submittals and Avimor will
continue to pay all uncontested Invoices.
6. City Right to Stop Work. If the Review Fund falls below 10% or less of the initial
balance, the City Clerk shall have the authority to issue a stop work order to all City departments,
including but not limited to City Consultants, but only after City gives Avimor notice of City's
intent to issues a stop work order and 30 days to cure by replenishing the Review Fund to no less
than 20% of the initial balance. The stop work order may be in effect until: (i) all outstanding
Invoices are paid in full, excluding any contested Invoices; and (ii) the deposit account is brought
back to a minimum balance of no less than 20% of the initial balance. If a stop work order is
issued, all scheduled and noticed hearings shall be deemed vacated and shall not be placed on a
public meeting agenda. The applicant shall pay all costs for new notices and publication required
for new hearings. If after sixty (60) days from the issuance of a stop work order by the City, the
Review Fund remains below 10% of the initial balance and Avimor has not replenished the Review
Fund or been granted waiver or modification pursuant to Eagle City Code § 1-7-4, the
Development Submittals shall be deemed abandoned. All remaining funds within the Review Fund
shall be returned to Avimor less any outstanding Invoices and costs incurred by the City to collect
the outstanding invoices.
7. Past Due Balances. If there is an outstanding balance after sixty (60) days of a final
action by the City, and the City has given Avimor notice of such outstanding balance and 30 days
to cure, the City Clerk shall issue a suspension on the acceptance and processing of all City
applications including, but not limited to, building permits, planning and zoning permits, and
design review approvals, regardless of location, until the past due amounts are paid in full. The
City may use any and all legal remedies to collect outstanding balances.
8. Avimor's Right to Terminate or Suspend. In the event that Avimor elects, in its
sole discretion, to cease or suspend pursuing the Development Submittals or upon completion of
the City's processing of the Development Submittals, Avimor will notify the City in writing.
Avimor will be responsible for payment of all Reimbursable Expenses incurred prior to delivery of
such notice. The City will provide and Avimor will pay a final invoice, with supporting
documentation, in accordance with Section 5 of this Agreement. Any balance remaining in the
Review Fund will be returned by the City to Avimor within sixty (60) days of a final action on the
Development Submittals or notice provided by Avimor pursuant to this Section 8.
9. Meetings of the Parties. The City's Zoning Administrator, or the Zoning
Administrator's designee, and Avimor may meet from time to time to discuss the review of the
Development Submittals and the manner in which costs might be most effectively managed. The
City maintains the sole right to determine the nature and extent of the City's review of the
Development Submittals provided such review is consistent with the Eagle City Code, Idaho State
Statutes, or any future Development Agreement or other agreements between the Parties. The
City's Zoning Administrator or the Zoning Administrator's designee will be the City's
representative and will oversee the City's review of the Development Submittals and coordinate all
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communications and carry out any and all tasks as may be required by this Agreement so as to
promote the efficient use of time and resources and help control Reimbursable Expenses.
10. Processing Applications. The Parties acknowledge that nothing in this Agreement
shall be construed to establish nor grant Avimor any right to demand that the Development
Submittals are placed ahead of any other rightfully submitted application. The City will establish
an official submittal date prior to scheduling a formal review and hearing process.
11. Subsequent Applications. The Parties understand and agree that this
Reimbursement Agreement pertains to the Development Submittals for the annexation of the
Property into the City. Application fees related to the processing of future land use and
administrative applications including, but not limited to, subdivision, conditional use permit, and
design review applications will be paid in accordance with the City's adopted planning fee and
deposit schedule.
12. Miscellaneous.
a. Notices. All notices, filings, consents, approvals and other communications
provided for herein or delivered in connection with this Agreement will be delivered as
provided herein.
b. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof. No modification or amendment
to this Agreement made or claimed by Avimor or the City will have any force or effect
unless the same will be endorsed in writing and signed by both Parties.
c. Severability. If any provision of this Agreement is declared void or
unenforceable, such provision will be severed from this Agreement, and this Agreement
will otherwise remain in full force and effect.
d. Exhibits; Recitals. Any exhibit attached hereto and the Recitals set forth
above are hereby incorporated herein with the same force and effect as if fully set forth in
the body of this Agreement.
e. Construction. The language herein will be constructed simply in accord
with its fair meaning and not strictly for or against a Party, regardless of whether such Party
prepared or caused the preparation of this Agreement. As used in this Agreement references
to one gender and the singular or plural number will each be deemed to include the others
wherever and whenever the context so dictates.
f. Choice of Law. This Agreement will be construed in accordance with the
laws of the State of Idaho.
g. Waiver. No delay in exercising any right or remedy will constitute a waiver
by either Party thereof, and no waiver by the City or Avimor of the breach of any covenant
or condition of this Agreement will be construed as a waiver of any preceding or succeeding
breach of the same or any other covenant or condition of this Agreement.
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h. Successors and Assigns. This Agreement will be binding on the City and
Avimor, and their respective heirs, administrators, executors, agents, legal representatives,
successors and assigns.
i. No Partnership; No Third-Party Beneficiaries. Nothing contained in this
Agreement will, create any partnership,joint venture or other arrangement between Avimor
and City. This Agreement will not be construed to create any rights in any person or entity
who is not a signatory to this Agreement and no person or entity may claim the status of a
third-party beneficiary of this Agreement.
j. No Avimor Representations. Nothing contained herein will be deemed to
obligate Avimor to complete any part or all of the development of the Property in
accordance with this Agreement, or any other plan, and this Agreement will not be deemed
a representation or warranty by Avimor of any kind whatsoever.
k. Time of Essence. Time is of the essence in implementing the terms of this
Agreement.
1. Further Acts. Each of the Parties will act in good faith when undertaking
their respective obligations and covenants contained herein and will promptly execute and
deliver all such documents and perform all such acts as reasonably necessary, from time to
time,to carry out the matters contemplated by this Agreement.
m. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together constitute
one and the same instrument.
n. Notices. Any notice which a Party may desire to give to another Party must
be in writing and may be given by personal delivery, by mailing the same by registered or
certified mail, return receipt requested postage prepaid, or by Federal Express or other
reputable overnight delivery service, to the Party to whom the notice is directed at the
following addresses:
Eagle: City of Eagle
Attn.: City Clerk
660 E. Civic Lane
Eagle, ID 83616
with copy to: Borton-Lakey
Attn: Victor Villegas
141 E Carton Ave.
Meridian,ID 83642
Owner: Avimor Development,LLC
Attn: General Manager
18454 N. McLeod Way
Boise, ID 83714
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with copy to: Givens Pursley LLP
Attn: Deborah Nelson
601 W. Bannock St
Boise,ID 83702
or such other addresses and to such other persons as the parties may hereafter designate. Any such
notice will be deemed given upon delivery if by personal delivery, upon deposit in the United
States mail, if sent by mail pursuant to the foregoing.
[end of agreement; signatures follow]
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IN WITNESS WHEREOF,the Parties hereto, having been duly authorized,have executed
this Agreement to be effective as of the Effective Date.
THE CITY: AVIMOR:
CITY OF EAGLE, IDAHO,a municipal Avimor Development,LLC, an Idaho limited
corporation organized and existing under liability company
the laws of the State of Idaho
By: \ _ By:
Jaso Pierce,Mayor Dan Richter, its Manager
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IN WITNESS WHEREOF,the Parties hereto,having been duly authorized,have executed
this Agreement to be effective as of the Effective Date.
THE CITY: AVIMOR:
CITY OF EAGLE,IDAHO,a municipal Avimor Development,LLC,an Idaho limited
corporation organized and existing under liability company
the laws of the State of Idaho
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By:
ks...La.r Pierce,Mayor Dan Richter, its Manager
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