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Reimbursement - 2017 - Avimor / Reimbursement For Development Submittals For City Expenses - 6/20/2017REIMBURSEMENT AGREEMENT Between City Of Eagle and Avimor Development, LLC THIS REIMBURSEMENT AGREEMENT (this "Agreement") is effective on the date last executed below (the "Effective Date") by and between the City of Eagle, a municipal corporation organized and existing under the State of Idaho, by and through its Mayor ("Eagle" or the "City") and Avimor Development, LLC ("Avimor"). The City and Avimor are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS I. Avimor owns or controls large tracts of property in Ada, Boise, and Gem Counties ("Property"). II. Avimor and City desire to annex the Property into the City of Eagle. III. Avimor has requested the establishment of a reimbursement agreement between the City and Avimor for all annexation and development applications that may include but are not limited to annexation, zoning, comprehensive plan amendment, zoning ordinance amendment, development agreement, planned unit development and any application leading up to but not including subdivision of the Property ("Development Submittals"). IV. 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 application, development agreement or conceptual plans for the Property and all development approval will be in accordance with the notice and hearing procedures of 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; 4. The ordinances, rules, regulations, permit requirements, development fees, other infrastructure fees, exactions, other requirements, and/or official policies however denominated, applicable to and governing the development of the Property will be those that are existing and in force as of the Date of the Development Submittals or as may be established or modified in a future Avimor Development Agreement, Impact Fee Agreement or other agreement approved by the Parties. V. To facilitate and ensure the timely processing of Development Submittals, the Parties agree Avimor will deposit and maintain funds with the City for monthly reimbursement of City expenses for the review and consideration of Development Submittals by appropriate land use planners, legal counsel, engineers and/or other consultants ("Consultants") as may be retained by the City, provided that such additional fees for services are necessary to support the Development Submittals where the City would not typically retain an outside Consultant (for example, but not limited to, a traffic engineer) ("Reimbursable Expenses"). If the City determines that additional information is necessary to aid in the understanding of the work provided by Avimor consultants, the City will first request such information be provided by Avimor before conducting its own third -party review using outside Consultants. 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 City Council determines that a third -party review by outside Consultants is necessary, then the City will provide written notice to Avimor of its intention to retain outside Consultants for Reimbursable Expenses REIMBURSEMENT AGREEMENT - 1 and City's reason for its necessity. The Parties must agree on a scope of work prior to commencement of third -party review(s). VI. City. The City Council has authorized the Mayor to enter into this Agreement on behalf of the 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 City and Avimor represent, covenant and agree as follows: 1. Fees. Avimor, in lieu of paying the fees established in Eagle City Code and/or the appropriate fee resolution, shall provide a cash deposit of Fifty Thousand Dollars ($50,000) that will be considered a payment on the account and drawn down based on the costs 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 execution of this Agreement, and again at least annually, the City staff and Avimor will meet and discuss the scope of review of the Development Submittals by City staff and Consultants ("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 Consultant rates. The Scope of Review is understood to be a good faith estimate that may increase or decrease as the review and processing work 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 Consultant fees, such as for publication of notices, incurred by City Staff and 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 from Avimor. 4. Minimum Balances. A minimum balance of twenty percent (20%) of the initial deposit shall be maintained until the City has taken final agency action and all implementation of said fmal action has been completed. Completion of implementation of final 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%) benchmark or less of the initial deposit 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 ("Invoice") along with copies of supporting documentation such as receipts and invoices from Consultants, which may be redacted to protect privileged or otherwise undisclosable information. If Avimor contests any portion of the Invoice, Avimor will promptly notify the City Clerk's office pursuant to ECC 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, the Parties shall 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. REIMBURSEMENT AGREEMENT - 2 6. City Right to Stop Work. The City Clerk shall have the authority to issue a stop work order to all city departments, including but not limited to Consultants and outside consultants, once an account falls below ten percent (10%) or less of the initial balance. The stop work order shall be in effect until: 1) All outstanding invoices are paid in full, excluding any contested invoices; and 2) The deposit account is brought back to a minimum balance of no less than 10% of the original 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 the applicant's account remains below ten percent (10%) of the initial balance and the applicant has not replenished the account or been granted modification to this payment plan pursuant to ECC 1-7-4, the application shall be deemed abandoned. All remaining funds within the depository account shall be returned to the applicant minus 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, 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 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 from the escrow account will be returned by the City to Avimor within sixty (60) days of final action. 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 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 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. Subsequent Applications. The Parties understand and agree that this Reimbursement Agreement pertains to the Development Submittals. 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. 11. 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. REIMBURSEMENT AGREEMENT - 3 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 the Party against which the enforcement of such modification or amendment is sought. c. Severability. If any provision of this Agreement is declared void or unenforceable, such provision will be severed from this Agreement, which will otherwise remain in full force and effect. d. Exhibits; Recitals; Headings. Any exhibit attached hereto and the recitals set forth above will be deemed to have been incorporated herein with the same force and effect as if fully set forth in the body hereof. 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. 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. 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. 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 Eagle. 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 address of such party set forth below. REIMBURSEMENT AGREEMENT - 4 Eagle: City Council City of Eagle 660 E. Civic Lane Eagle, ID 83616 with copy to: Owner: with copy to: Cherese McLain MSBT Law, Chtd. 950 W. Bannock, Suite 520 Boise, ID 83702 Avimor Development, LLC Attn: General Manager 18454 N. McLeod Way Boise, ID 83714 Givens Pursley LLP Attn: Deborah Nelson, Esq. 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] REIMBURSEMENT AGREEMENT - 5 IN WITNESS WHEREOF, the Parties hereto, having been duly authorized, have executed this Agreement to be effective as of the Effective Date. THE CITY: CITY OF EAGLE, IDAHO, a municipal corporation organized and existing under the laws of the State of Idaho By: Stan Ridgeway, Mayor Sharon I Bergmann,C'ty Clerk d/ T DATED: 6/- *****MO . os,A7-4N 41, Sat ', • 5 Ate,. % �'••.5•p ,..TAT ,••,.• AVIMOR: Avimor Development, LLC, an Idaho limited liability company By: Ck Dan Richter, its /YIt,M, be r a A A-sA. DATED: C J / '1/ REIMBURSEMENT AGREEMENT - 6