Reimbursement - 2024 - Element Design Build / Blue Skye Development Reimbursement - 5/14/2024REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENTAGREEMENT(this "Agreement") is made this III
day of VY1,A, , 2024 between the City of Eagle, a municipal corporation organized
and existing un er the State of Idaho ("Eagle" or "City"), and Element Design Build
LLC, an Idaho limited liability company ("Element"). The City and Element may be
referred to in this Agreement individually as a "Party" or collectively as the "Parties",
as warranted under the circumstances.
RECITALS
A. Blue Skye Capital LLC owns or controls or is under contract to purchase
large tracts of real property in Ada County (the "Property") and has contracted with
Element to develop the Property.
B. Element intends to request annexation of the Property into the City of Eagle.
C. Element has requested the establishment of a reimbursement agreement
between the Parties for City's review of development proposals and processing of all
annexation and concurrent development applications for the Property ("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 Element, on the terms and conditions herein, will deposit and maintain
funds with the City to ensure 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 Element's consultants provided with the
Development Submittals, the City will first request such information be provided by
Element before conducting its own third -party review using an outside City Consultant. A
third -party review will not be conducted by the City until Element 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 City Consultant is necessary, then the City will provide
written notice to Element of its intention to retain a City Consultant 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 Parties have 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. Element, in lieu of paying the fees established in Eagle City Code
and/or applicable fee resolution or application form, shall pay 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 Element 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 provid e
Element 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 Element to the extent that they are not covered by
other fees in place at the time the City receives the Development Submittals.
4. Review Fund Retainer. Element shall deposit $15,000 (the "Review Fund
Retainer") with the City Treasurer. Element acknowledges and understands that the
retainer paid is not an estimate of the total cost of the services to be performed, nor it is a
cap or "not to exceed" number. The Review Fund Retainer is to be held to ensure Element
is able to abide by the terms of this Agreement regarding the timely payment of all fees
incurred. The Review Fund Retainer shall remain at this amount throughout this
Agreement. If Element is unable to remain current with all outstanding invoices as set
forth in Paragraph 5 below, the City may utilize the existing Review Fund Retainer to
apply toward the account and suspend all work under this Agreement. Upon completion
or termination of this Agreement and payment of all outstanding invoices, the balance of
the Review Fund Retainer will be refunded to Element within sixty (60) days from the
date of completion or termination.
5. Invoices and Payment. The City will provide a monthly statement to
Element 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. Payment is due thirty (30) days from the Invoice
date. If Element contests any portion of an Invoice, Element will promptly notify the
City Clerk's office, 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 Element will continue to pay all
uncontested Invoices.
6. Element's Right to Terminate or Suspend. In the event that Element
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, Element
will notify the City in writing. Element will be responsible for payment of all
Reimbursable Expenses incurred prior to delivery of such notice. The City will
provide and Element will pay a final invoice, with supporting documentation, in
accordance with Section 5 of this Agreement. Any balance remaining in the Review
Fund Retainer will be returned by the City to Element within sixty (60) days of a
final action on the Development Submittals or notice provided by Element pursuant
to this Section 8.
7. Meetings of the Parties. The City's Zoning Administrator, or the
Zoning Administrator's designee, and Element 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 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.
8. Processing Applications. The Parties acknowledge that nothing in this
Agreement shall be construed to establish nor grant Element 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.
9. 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.
10. 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 Element 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 Element 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 Element, 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 Element 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 Element Representations. Nothing contained herein will be
deemed to obligate Element to complete any part or all of the entitlement or
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
Element of any kind whatsoever.
k. Time of Essence. Time is of the essence in implementing the terms
of this Agreement.
I. 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 Treasurer
660 E. Civic Lane
Eagle, ID 83616
clerks@cityofeagle.org
Element: Element Design Build LLC
Attn: Josh Anderson
35Oi Bavaria St- to IL-1°1 N • rne•4\ (Vlas� loo
-6 ' os%Se, 83-1 �3
joshAdesignmyelement.com
with a copy to:
Kelly Palos
ke11ya,designmyelement.com
Deborah Nelson
Givens Pursley LLP
denAgivenspursley.com
or such other addresses and to such other persons as the parties may hereafter designate.
IN WITNESS WHEREOF, the Parties hereto, having been duly authorized, have
executed
this Agreement to be effective as of the Effective Date.
CITY:
CITY OF EAGLE, IDAHO, a municipal
corporation organized and existing under
the laws of the State of Idaho
By -
Brad Pike, Mayor
Attest:
ELEMENT:
Element Design Build LLC, an Idaho limited
liability company
By:
Name:
Its:
with a copy to:
Kelly Palos
kellyAdesignmyelement.com
Deborah Nelson
Givens Pursley LLP
den@givenspursley.com
or such other addresses and to such other persons as the parties may hereafter designate.
IN WITNESS WHEREOF, the Parties hereto, having been duly authorized, have
executed
this Agreement to be effective as of the Effective Date.
CITY:
CITY OF EAGLE, IDAHO, a municipal
corporation organized and existing under
the laws of the State of Idaho
By:
Brad Pike, Mayor
Attest:
By:
Tracy Osborn, City Clerk
DATED:
ELEMENT:
Element Design Build LLC, an Idaho limited
liability company
BY: KI`A
Name:
Its:
PreC1(1 one
DATED: