CC - Proposed Development Agreement / CleanAMENDED DEVELOPMENT AGREEMENT - 1
55663.0002.10635510.6
AMENDED DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. L & G Murgoitio, LLC
THIS AMENDED DEVELOPMENT AGREEMENT (this “Agreement”), is made and
entered into this______ day of ______________, 2018, by and between the City of Meridian, a
municipal corporation of the State of Idaho, hereafter called “City”, and L&G Murgoitio, LLC,
whose address is 6575 S. Locust Grove Road, Meridian, Idaho 83642 hereinafter called “Owner/
Developer.”
1.RECITALS:
1.1 WHEREAS, the Owner/Developer is the sole owner, in law and/or equity,
of certain tract of land in the County of Ada, State of Idaho, described in
Exhibit “A”, which is attached hereto and by this reference incorporated
herein as if set forth in full, herein after referred to as the “Property”; and
1.2 WHEREAS, Timber Creek Recycling, LLC (“Timber Creek”) has
operated, does operate, and will operate a processing facility on the
Property; and
1.3 WHEREAS, Idaho Code § 67-6511A provides that cities may, by
ordinance, require or permit as a condition of re-zoning that an owner or
developer make a written commitment concerning the use or development
of the subject property; and
1.4 WHEREAS, Idaho Code § 67-6511A and Meridian City Code §11-5A-
2(E) provides that said written commitments may be modified with the
permission of the governing board; and
1.5 WHEREAS, the City has exercised its statutory authority by the
enactment of Section 11-5B-3 of the Unified Development Code
(“UDC”), which authorizes development agreements upon the annexation
and/or re-zoning of land; and
1.6 WHEREAS, the City and the Owner/Developer negotiated terms and
conditions into that certain Development Agreement, dated January 26,
2016, recorded as Instrument No. 2016-007075, Records of Ada County,
Idaho (“Original Agreement”); and
1.7 WHEREAS, the City and the Owner/Developer have negotiate terms and
conditions into this Agreement to amend the Original Agreement to clarify
the uses permitted under the Original Agreement, to allow for the
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continued use of the Property and described the permitted future uses of
the Property; and
1.8 WHEREAS, the City and the Owner/Developer agree to negotiate in good
faith and seek resolution to any conditions or circumstances that existed at
the time the Original Agreement and this Agreement were approved and
executed that are necessary for the continued and future use of the
Property; and
1.9 WHEREAS, the Owner/Developer, the City, Timber Creek, and others
made representations at the public hearings before the Meridian City
Council, as to the current and proposed uses of the Property and how the
Property may be developed, if any, at this time or in the future; and
1.10 WHEREAS, the Meridian City Council, on the ____ day of ___________,
2018, approved certain Findings of Fact and Conclusions of Law and
Decision and Order (“Findings”), which have been incorporated into this
Agreement and attached as Exhibit “B” and have been accepted by
Owner/Developer and Timber Creek; and
1.11 WHEREAS, the Findings require the Owner/Developer to enter into this
Agreement before the City Council takes final action on annexation and
zoning designation; and
1.12 WHEREAS, the Owner/Developer deems it to be in its best interest to be
able to enter into this Agreement and acknowledges that this Agreement
was entered into voluntarily; and
1.13 WHEREAS, the City requires the Owner/Developer to enter into a
development agreement for the purpose of ensuring that the use of the
Property is in accordance with the terms and conditions of this Agreement,
herein being established as a result of evidence received by the City and
from affected property owners.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties agree as follows:
2.INCORPORATION OF RECITALS: That the above recitals are contractual
and binding and are incorporated herein as if set forth in full.
3.DEFINITIONS: For all purposes of this Agreement the following words, terms,
and phrases herein contained in this section shall be defined and interpreted as herein provided,
unless the clear context of the presentation of the same requires otherwise:
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3.1 CITY: means and refers to the City of Meridian, a party to this
Agreement, which is a municipal corporation and government subdivision
of the state of Idaho, organized and existing by virtue of law of the State
of Idaho, whose address is 33 East Broadway Avenue, Meridian, Idaho
83642.
3.2 OWNER/DEVELOPER: means and refers to L & G Murgoitio, LLC,
whose address is 6575 S. Locust Grove Road, Meridian, Idaho 83642,
Meridian, Idaho 83642, the party that owns the Property and shall include
any subsequent owner/developer(s) of the Property.
3.3 SITE/PROPERTY: means and refers to that certain parcel(s) of property
located in the County of Ada, City of Meridian as described in Exhibit
“A” attached hereto and by this reference incorporated herein as if set
forth at length. The terms, in any form, may be used throughout this
document and are meant to be interchangeable in meaning unless
specifically defined.
3.4 DEVELOPMENT/REDEVELOPMENT: means any construction or
installation of a structure, or any change in use of an existing structure, or
any subdivision of the Property, or any change in the use of the Property
that creates additional or different demand and/or need for public facilities
or services, except as otherwise permitted herein. Notwithstanding the
foregoing, the construction of structures necessary for Timber Creek to
continue its operation on the Property, now or in the future, shall not
constitute development or redevelopment of the Property.
The terms, in any form, may be used throughout this document and are meant to be
interchangeable in meaning unless specifically defined.
4.USES PERMITTED BY THIS AGREEMENT: The right to use and develop
the Property shall be in accordance with the terms and conditions of this Agreement. The
following uses on the Property are specifically allowed:
4.1 All uses allowed or will be allowed in the future under the City’s Zoning
Ordinance codified in the UDC.
4.2 No change in the uses specified in this Agreement shall be allowed
without modification of this Agreement.
4.3 Any existing and future written agreements for the collection, disposal, or
maintaining of solid waste in pursuance of an agreement with the City’s
solid waste franchisee may remain until such time that the Property is
developed in the future.
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4.4 Any currently allowed use in Ada County regarding the raising or
maintaining of livestock shall remain on the Property until such time that
the Property is developed in the future. The Property maintains a livestock
business and operation. All existing uses and operation on the Property
relating to the livestock business and operation at the time of annexation
may remain until the Property is developed in the future.
4.5 The Property will have an exemption to Meridian City Code 6-3-10,
Firearms; Dischargeable Instruments, until such time that the Property is
developed in the future.
4.6 Any use constituting an “agricultural operation”, as defined in Idaho Code
§ 22-4502 until such time the Property is developed in the future.
4.7 Currently stored or maintained on the Property: farm equipment, vehicles
(registered and unregistered), and excess organic and/or inorganic material
necessary for the agricultural operation of the Property. Such items may
include but not be limited to weed spray, gasoline, diesel, wood, compost,
fertilizers and the like in quantities not usually found in urban residential
properties. Such storage may remain in the current condition at the time of
the adoption of this Agreement until such time that the Property develops
in the future.
4.8 Operate Timber Creek Recycling on the portion of the Property
(“Recycling Property”) outlined on the site plan (“Site Plan”) attached
hereto as Exhibit “C” and incorporated herein, as is currently conducted
or may be conducted in the future, whether under the name of Timber
Creek Recycling or another name or entity.
5.Operation of Timber Creek Recycling. As set forth in Section 4.8 of this
Agreement, Timber Creek is specifically permitted to continue operations on the Recycling
Property. The following outlines the primary activities, but not all activities, related to Timber
Creek’s operation or proposed operation on the Recycling Property:
5.1 Delivery of Recycled Materials. Timber Creek receives or may receive
the following materials (collectively “Recycled Materials”) for Recycling Activities (defined
below):
5.1.1 Wood. Wood is and will be delivered to the Recycling Property
from the Ada County Landfill, Republic Services and other sources.
5.1.2 Grass. Grass clippings are and will be delivered to the Recycling
Property from Republic Services and other sources.
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5.1.3 Leaves. Leaves are and will be delivered to the Recycling
Property from the Ada County Landfill and other sources.
5.1.4 Sheetrock. Sheetrock and/or gypsum is and will be delivered to
the Recycling Property from Republic Services and other sources.
5.1.5 Food Waste. Food waste will be delivered to the Recycling
Property from Republic Services and other sources.
5.1.6 Garden Waste. Garden waste will be delivered to the Recycling
Property from Republic Services and other sources.
5.1.7 Other Materials. Timber Creek is allowed to accept other
materials to recycle which are of the same category as the materials identified in Sections 5.1.1
through 5.1.6 or are intended for agricultural uses.
5.2 Recycling Activities. Timber Creek is entitled to accept, process, utilize
and sell the Recycled Materials on the Recycling Property (“Recycling Activities”). For
purposes of clarity, but not limitation, the following are examples of the Recycling Activities
which are permitted on the Recycling Property:
5.2.1 Grinding. The Recycling Materials may be ground and
transported from the Recycling Property for animal bedding, soil amendment, other agricultural
uses or otherwise, and may be sold on the Recycling Property or to third parties. In the grinding
process, Timber Creek may use loaders and excavators and other necessary equipment to
perform such grinding.
5.2.2 Screening. The Recycling Materials, before and after processing,
may be screened. Screening of any Recycled Materials may including the use of conveyors,
trommels, hopper boxes, air systems, loaders and another other equipment necessary to screen
the Recycled Materials;
5.2.3 Feed. The Recycling Materials may be processed and transported
from the Recycling Property for feed for livestock or other agricultural uses, and may be sold on
the Recycling Property or to third parties.
5.2.4 Composting. The Recycling Materials may be composted on the
Recycling Property and transported from the Recycling Property for soil amendment, agricultural
uses or otherwise, and may be sold on the Recycling Property or to third parties.
5.2.5 Storing of Recycling Materials. The Recycled Materials, both
before and after processing, may be stored on the Recycling Property and on the balance of the
Property.
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5.2.6 Miscellaneous. Engage in any the following as part of the
Recycling Activities: loading and unloading of trucks; use of watering trucks on the Recycling
Property and as part of the Recycling Activities; use of loaders, graders, tractors (with
implements), fork lifts, and other heavy equipment, preparation and maintenance of the
Recycling Property for the Recycling Activities; erection and use of a weather station;
modification of the Recycling Property for the Recycling Activities, including leaching ponds
and berms; use of air compressors, generators, tarps for covering of Recycling Materials, and
bagging systems.
5.2.7 Other Activities. Timber Creek may engage in other activities
relating to the operation of Timber Creek and utilize any or all of the Recycling Materials as
deemed appropriate by Timber Creek, provided, however, that any such use shall be in
accordance with applicable laws and regulations governing such activities.
5.3 Related Activities. In addition to the Recycling Activities, Timber Creek
may engage in uses on the Recycling Property that are related to, support, or are in furtherance of
the Recycling Activities (“Related Activities”). For purposes of clarity, but not limitation, the
following are examples of the Related Activities:
5.3.1 Truck Parking. Timber Creek may park trucks used for delivery,
removal and/or processing of Recycled Materials on the Recycling Property.
5.3.2 Equipment. Timber Creek may place, operated, maintain, repair,
relocate and remove any equipment, fixtures and personal property onto and from the Recycling
Property in order to engage in the Recycling Activities.
5.3.3 Compliance with DEQ, Department of Agriculture and
Central District Health Department. Timber Creek may take any action to:
Comply with conditions imposed on it by the Department (a)
of Environmental Quality, the Department of Agriculture or
the Central District Health Department relating to the
Recycling Materials or the Recycling Activities;
Comply with the rules and regulations relating to the (b)
Recycling Materials or the Recycling Activities which may
be adopted, revised or re-interpreted by the Department of
Environmental Quality, the Department of Agriculture or
the Central District Health Department; and
Cure or correct deficiencies or issues identified by the (c)
Department of Environmental Quality, the Department of
Agriculture or the Central District Health Department.
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5.3.4 Marketing and Sale of Processed Recycling Materials. Timber
Creek may market and sale processed Recycling Materials. Processed Recycling Materials
include, but are not limited to, mulch, compost, bark, playground chips, sand, stone, etc.
5.4 Retail Sales. Within the area on the Site Plan marked “Retail Sale”
(“Retail Area”), Timber Creek may sell processed Recycling Materials to the public. Timber
Creek shall take reasonable steps to keep the public purchasing Recycling Materials from the
portion of the Recycling Property where active Recycling Activities occur. Retail sales in the
Retail Area are restricted as follows:
5.4.1 Hours of Operation. The Retail Area will not be open to the
public for the purchase of Recycling Materials outside of the following hours:
April – October: (a)
a.Monday – Saturday: 8:00 a.m. to 6:00 p.m.
b.Sundays: Closed
November – March: (b)
a.Monday – Saturday: 9:00 a.m. to 4:00 p.m.
b.Sundays: Closed
5.4.2 Vehicle Limitation. The following vehicles will be prohibited
from accessing the Retail Property for the purchase of processed Recycling Materials:
Commercial vehicles, as defined in Idaho Code §49-123(d). (a)
Vehicles with more than two (2) axels; provided, however, (b)
that a trailer pulled by a two (2) axel vehicle does not count
towards the axel count.
5.4.3 Limitation on Sales. Timber Creek may only sell the following in
the Retail Area: a) processed Recycling Materials; b) landscaping materials, including but not
limited to, mulch, compost, bark, playground chips, and other products typically sold at a
nursery, excepting trees and shrubs; and c) products and materials to permit Timber Creek to
provide engineered soil to customers, including but not limited to gypsum, sulfur and nitrogen.
5.5 Recycling Activities Structures. Timber Creek may construct, relocate
or install the following : a) a scale house with approximate dimensions of forty five feet by
fifteen feet (45’x15’); b) a restroom with approximate dimensions of twenty feet by eight feet
(20’x8’) with a septic system until sewer is available at the Recycling Property at which time the
restroom will connect to the sewer line; c) a storage shed with approximate dimension of forty
feet by eight feet (40’x8’); and d) a barbwire fence on the south east corner of the Property to
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connect the existing fencing. The construction, relocation or installation of the above identified
structures shall not constitute “development” as defined in Section 3.4.
6.Conditions and Limitations to Operation of Timber Creek Recycling. To
mitigate or ameliorate any adverse effects from Timber Creek’s operation on the Property,
Timber Creek shall comply with the following conditions on its operation:
6.1 Extent of Operations on Property. Timber Creek’s Recycling Activities
shall be limited to the Recycling Property; provided, however, that Timber Creek may store and
use processed Recycling Materials on the balance of the Property.
6.2 Composting.Composting on the Recycling Property shall be conducted in
accordance with applicable law, rules and regulations. Prior to composting in quantities which
would require approval as a Tier 2 composting facility, Timber Creek shall satisfy all
requirements imposed on Tier 2 composting facilities by the Idaho Department of Environmental
Quality (“DEQ”). Timber Creek shall provide proof of satisfaction of DEQ’s requirements to
the City prior to composting as a Tier 2 composting facility. In connection with the Tier 2
designation process and operating as a Tier 2 facility, Timber Creek shall:
6.2.1 Odor Management. Adopt an odor management plan as part of
the Tier 2 approval process that satisfies DEQ. Upon being designated as a Tier 2 composting
facility, Timber Creek will provide a copy of the odor management plan approved by DEQ to the
City.
6.2.2 Compliance with DEQ and Central District Health. Comply
with all requirements of DEQ and the Central District Health Department (“CDHD”) as part of
the Tier 2 approval process. Following approval as a Tier 2 facility, Timber Creek shall
cooperate with DEQ and CDHD and permit monitoring of the composting operation and to
resolve any compliance issues.
6.3 Noise Mitigation. Timber Creek shall do or adopt the following to
mitigate the noise generated from Timber Creek’s Recycling Activities:
6.3.1 Mufflers. Timber Creek will acquire and install a Harco 2286RSL
10 SI SO SP HARCO MFG, or a muffler of equivalent quality and characteristics, on the
horizontal grinder and a muffler of similar quality and characteristics on the tub grinder. Timber
Creek shall provide notice to the City upon the installation of the mufflers.
6.3.2 Landscaping. Timber Creek will install trees and other
landscaping features on the Recycling Property, as is depicted on the Site Plan, to mitigate the
sound generated on the Recycling Property by the Recycling Activities. Said landscaping will be
installed within one (1) year from the date of this Agreement. Timber Creek shall provide
notice to the City when the landscaping set forth on the Site Plan has been installed.
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6.3.3 Hours of Operation. Recycling Activities on the Property will be
limited to the following:
Monday – Friday: 7:00 a.m. to 6:00 p.m. (a)
Saturday: 8:00 a.m. to 6:00 p.m. (b)
6.4 Visual Impact. To minimize any visual impact caused by the Recycling
Materials or the Recycling Activities, Timber Creek will:
6.4.1 Landscaping. Timber Creek will comply with the requirements of
Section 6.3.2;
6.4.2 Height of Recycling Materials. Timber Creek will keep the
height of piles of Recycling Materials at the greater of: a) twenty-five (25) feet, and b) the height
permitted by the Meridian Fire Department under applicable code, regulations and rules.
6.5 Dust Abatement.Timber Creek Recycling will take commercially
reasonable steps to abate the dust caused by the Recycling Activities as follows:
6.5.1 Water Tank. Maintain a 4,000 gallon water tank on the Property
to hold water for dust abatement purposes on the Recycling Property.
6.5.2 Sprinklers. Maintain a sprinkler system on roads and other parts
of the Recycling Property as deemed reasonably necessary by Timber Creek to minimize dust
caused by Recycling Activities.
6.5.3 Water Trucks. Maintain water truck, tender or buffalo or other
similar equipment for dust abatement. Said equipment will be utilized to apply water to
unpaved portions of the Recycling Property or the Recycling Materials to minimize dust caused
by the Recycling Activities.
6.5.4 Spray Hoses. Spray hoses will be used as part of the Recycling
Activities to reduce dust caused by the Recycling Activities.
6.5.5 Wood Flour. Timber Creek Recycling will not accept or process
wood flour as part of the Recycling Activities.
6.6 Traffic for Recycling Materials. Traffic to the Recycling Property is
regulated as follows:
6.6.1 Recycling Activities. All traffic to permit Timber Creek to
perform the Recycling Activities, including but not limited to, traffic for delivery of Recycling
Materials, any safety programs, fire prevention, odor management, and composting, grinding and
screening operations is expressly permitted, except as limited by this Section 6.6, and shall not
constitute a nuisance.
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6.6.2 Compliance with Ada County Highway District. All traffic to
the Recycling Property shall comply with Ada County Highway District rules and regulations.
6.6.3 Truck Limitation. No more than fifty-six (56) Truckloads of
Recycling Materials will be delivered to the Recycling Property per day. For purposes of this
Agreement, “Truckload” shall mean any truck or vehicle carrying ten (10) or more cubic yards
of Recycling Materials to the Recycling Property for Recycling Activities. For purposes of
clarification, the following do not qualify as a Truckloads:
Vehicular traffic associated with the agricultural use of the (a)
Property such as delivery of feed, livestock, equipment and
fertilizer or the removal of crops, livestock, equipment,
feed, waste or fertilizer;
Vehicles to and from the Retail Area; (b)
Vehicular traffic to and from the Property not carrying (c)
Recycling Materials; and
Vehicular traffic from the Property delivering Recycling (d)
Materials for agricultural uses.
6.7 Agency Requirements/Recommendations. Timber Creek shall comply
with the following requirements and recommendations from the following agencies:
6.7.1 Fire.
Emergency Plan. Timber Creek shall prepare and deliver (a)
a emergency plan to the Meridian Fire Code Official.
Timber Creek shall notify the City upon approval of the
emergency plan.
Process Hazard Analysis. Timber Creek shall prepare a (b)
process hazard analysis which satisfies the requirements of
the International Fire Code, Section 5001.3.3.11-17 (2015)
and deliver to the Meridian Fire Code Official, if required
by the Meridian Fire Code Official.
6.7.2 Irrigation. Obtain approval from the applicable irrigation district
for any use of or encroachment on the easement(s) surrounding the canals bordering the
Recycling Property. If any such approval is required, Timber Creek shall provide evidence of
said approval to the City.
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6.7.3 Land Development Services. As long as Timber Creek is
engaged in Recycling Activities, the Recycling Property shall be open to inspection for
compliance with this Agreement by the Land Development Services, upon advance notice.
6.7.4 Complaints. Timber Creek will set up a telephone line, email
account, or other means of communication for neighbors to be able to submit comments and
complaints to Timber Creek relating to the Recycling Activities.
6.8 Termination of Recycling Activities. The Recycling Activities on the
Recycling Property will cease, unless permitted in the UDC, upon the earliest of the following to
occur:
6.8.1 Conveyance to Third Party. Upon the conveyance of the
Recycling Property to a third party; provided, however, that the conveyance of the Recycling
Property: 1) via intestacy or other estate planning devise or instrument; 2) to an immediate
family member of any member of the Owner/Developer or Timber Creek; or 3) to an affiliated
entity, will not trigger the elimination of the Recycling Activities. For purposes of this Section
4.8.3, an “affiliated entity” is an entity: (a) which is a successor to Owner/Developer or Timber
Creek by either merger or consolidation or pursuant to sale of all or substantially all of
Owner/Developer or Timber Creek’s assets or membership interests, or (b) an entity controlled
by, or under common control with, or controlling Owner/Developer; or
6.8.2 Development of Adjacent Property. Within thirty (30) days of
written notice that the City has granted a Certificate of Occupancy to any new residential or
commercial development within 1000 feet of the grinding machine located on the Recycling
Property, as approximately depicted on the attached Exhibit “C”, being delivered to Timber
Creek. For purposes of this Section 6.8.2, a “new residential or commercial development” shall
mean real property which has:
Been annexed into the City; (a)
Zoned either with a commercial designation or a residential (b)
designation of R-4 or denser;
Has been subdivided in accordance with Meridian City (c)
Code, excepting however any real property subdivided by a
short plat under Meridian City Code 11-6B-6; and
Receives water and sewer services from the City. (d)
In no event will the issuance of a Certificate of Occupancy for any structure existing as of
the date of this Agreement, as may be expanded, modified or altered, or for any new accessory
building, within 1000 feet of the grinding machine on the Recycling Property trigger Timber
Creek’s obligation to cease operations under this Section 6.8.2.
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6.9 Sunset on Composting. Timber Creek’s use of the Recycling Property
for composting, as permitted under this Agreement, shall be reviewed by the City in 2030. As
part of the review, City shall: a) consider the development of the property surrounding the
Recycling Property, the benefits derived by the community by the composting, and Timber
Creek’s compliance with this Agreement; and b) hold a public hearing, with notice as required
by the UDC, and permit the public to provide input on whether to continue to permit composting
on the Recycling Property. The City shall determine whether to permit Timber Creek to
continue composting on the Recycling Property for another period of ten (10) years under the
terms of this Agreement, permit composting with revised conditions, or terminate Timber
Creek’s composting on the Recycling Property (unless permitted under the UDC).
6.10 Tolling of Deadlines. In the event the approval of this Agreement is
challenged, contested or appealed, in any manner, the deadlines imposed on Timber Creek under
this Section 6 shall be tolled until all challenges, contents and appeals have been completely and
finally resolved.
7.CONDITIONS GOVERNING DEVELOPMENT OF THE PROPERTY:
7.1 Owner/Developer shall develop the Property in accordance with the
following special conditions:
7.1.1 Except as otherwise provided in this Agreement, future
development of the Property shall comply with the ordinances in the
Meridian City Code in effect at the time of development.
7.1.2 Except as otherwise provided in this Agreement, future
development of the Property shall comply with all bulk, use, and
development standards of the R-4 zoning district listed in UDC 11-2A-5,
unless rezoned by City in accordance with the UDC following application
by the Owner/Developer or future developer, and then in accordance with
the new zoning designation.
7.1.3 Any property or easements reasonably needed by the City to
provide any sewer or water infrastructure in furtherance of this Agreement
shall be provided by the Owner/Developer at no cost to the City.
7.1.4 Any future development of the Property which will require an
amendment to this Agreement to approve any proposed development plan
may be sought by the Owner/Developer. The first such request for an
amendment shall be at no cost to the Owner/Developer or future
developer.
8.COMMITMENTS AND CONDITIONS BY THE CITY OF MERIDIAN:
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8.1 The City intends to extend the sewer and water infrastructure (“Utility
Extension”) which will benefit the Property, the City, and other adjacent
and adjoining properties. The City will endeavor to design the Utility
Extension in a manner consistent with the City’s Sewer Master Plan
(including the assumptions and tolerances included in the Sewer Master
Plan) in existence at the time the city designs the Utility Extension. In
furtherance of this objective, the Utility Extension will include, but is not
limited to, the extension of:
Water Mains; and (a)
Sewer Mains; and (b)
Trunk Lines. (c)
A complete description of the Utility Extension is set forth in Exhibit “C”,
incorporated by reference to this Agreement.
8.2 The City shall be expending funds to plan, design, and construct the
Utility Extension described in 6.1 over the course of time. The City
anticipates completion of the initial phase of the Utility Extension in or
about Meridian Road/State Highway 69 within approximately two (2)
years from the date of the publication of the annexation ordinance for the
Property and the completion of the Utility Extension in or about Linder
Road and Victory Road in approximately four (4) years from the date of
the publication of the annexation ordinance for the Property. The above
described timelines for completion of the Utility Extension are subject to
the following conditions:
Acts of God; or (a)
Denial of the Application by the City or any other (b)
governmental agency with authority to approve or deny the
Application or Utility Extension; or
Any legal challenge to the annexation of the Property that (c)
causes the delay of the annexation approval; or
The inability of the City to acquire all the needed target (d)
properties necessary to allow for the necessary expenditure
of the Utility Extension; or
Economic limitations, as prescribed by law; or (e)
Permitting limitations or denials; or (f)
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The inability to acquire the necessary easements for the (g)
Utility Extension; or
Geology and/or geography of the area; or (h)
Weather conditions that may cause delay; or (i)
Unavailability or delay of materials for the Utility (j)
Extension; or
Review or delay by other agencies needed for approvals of (k)
the Application or Utility Extension; or
Labor disputes, strikes, work stoppages; or (l)
Limitations by other governmental, semi-governmental, or (m)
private industry restrictions unanticipated at the time of
execution of this Agreement; or
Any and all contingencies, whether anticipated or not, that (n)
are beyond the control of the City.
8.3 In the event the City reasonably determines that it cannot complete the
Utility Extension within the timeframes set forth above in Section 8.2 due
to the occurrence of any of the conditions set forth in Sections 8.2(a) to
8.2(n), the Owner/Developer or the City may terminate this Agreement
upon compliance with the requirements of the UDC,
8.4 This Agreement is part of an application for the simultaneous annexation
of numerous parcels. This Agreement shall be null and void if the
annexation of the Property or any other of the parcels to be simultaneous
annexation is not approved.
9.DEFAULT/CONSENT TO DE-ANNEXATION AND REVERSAL OF
ZONING DESIGNATION:
9.1 Acts of Default. In the event either party fails to faithfully comply with
all of the terms and conditions included in this Agreement, this Agreement
may be terminated by the Owner/Developer or the City upon compliance
with the requirements of this Agreement and in a manner prescribed by
law or ordinance.
9.2 Notice and Cure Period. In the event of any alleged default or failure to
perform any obligation under this Agreement, the non-defaulting party
shall give the alleged defaulting party written notice thereof. The party
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given notice of failure shall have a period of thirty (30) days after such
notice is given within which to cure such default, which period shall be
extended to the extent reasonably necessary to complete such cure so long
as the cure was commenced within thirty (30) days after such notice is
given and thereafter prosecuted with due diligence.
9.3 Remedies.
9.3.1 Remedies Against the Owner/Developer. In the event of default
by Owner/Developer that is not cured after notice as described in Section
9.2, Owner/Developer shall be deemed to have consented to modification
of this Agreement and de-annexation and reversal of the zoning
designations described herein, solely against the offending portion of
Property and upon the City’s compliance with all applicable laws,
ordinances and rules, including any applicable provisions of Idaho Code
§§ 67-6509 and 67-6511. Owner/Developer reserves all rights to contest
whether a default has occurred. This Agreement shall be enforceable in
the Fourth Judicial District Court in Ada County by the City. The sole
remedy for enforcement of this Agreement may be sought by an
appropriate action at law or in equity to secure the specific performance of
the covenants, agreements, conditions, and obligations contained within
this Agreement or to de-annex the Property.
9.3.2 Remedy against the City . In the event of default by the City that
is not cured after notice as described in Section 7.2, the City shall be
deemed to have consented to modification of this Agreement and de-
annexation and reversal of the zoning designations described herein, solely
against the offending portion of Property and upon City’s compliance with
all applicable laws, ordinances and rules, including any applicable
provisions of Idaho Code §§ 67-6509 and 67-6511. The City reserves all
rights to contest whether a default has occurred.
9.4 Delay. In the event the performance of any covenant to be performed
hereunder by either the Owner/Developer or the City is delayed for causes
that are beyond the reasonable control of the party responsible for such
performance, which shall include, without limitation, acts of civil
disobedience, strikes or similar causes, the time for such performance shall
be extended by the amount of time of such delay.
9.5 Waiver. A waiver by a party of any default of any one or more of the
covenants or conditions hereof shall apply solely to the default and
defaults waived and shall neither bar any other rights or remedies nor
apply to any subsequent default of any such or other covenants and
conditions.
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10.INSPECTION: Following the development of the Property, Owner/Developer
shall, immediately upon completion of any portion or the entirety of said development of the
Property, as required by City ordinance or policy, notify the City Engineer and request the City
Engineer’s inspections and written approval of such completed improvements or portion thereof
in accordance with the terms and conditions of this Agreement and all other ordinances of the
City that apply to said Property.
11.REQUIREMENT FOR RECORDATION: City shall record, at its cost and
expense, either a memorandum of this Agreement or this Agreement, including all of the
Exhibits, and submit proof of such recording to Owner/Developer, prior to the third reading of
the ordinance annexing and re-zoning the Property. If for any reason after such recordation, the
City Council fails to adopt the ordinance in connection with the annexation and zoning of the
Property contemplated hereby, the City shall execute and record an appropriate instrument of
release of this Agreement, at its cost and expense.
12.SURETY OF PERFORMANCE: Following the development of the Property,
the City may require surety bonds, irrevocable letters of credit, cash deposits, certified check or
negotiable bonds, as allowed under Meridian City Code §11-5-C, to insure the installation of
future improvements, which the Owner/Developer agrees to provide, if required by the City.
13.CERTIFICATE OF OCCUPANCY: Following the development of the
Property, no Certificates of Occupancy shall be issued in any phase in which the improvements
have not been installed, completed, and accepted by the City.
14.ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agrees to
abide by all ordinances of the City, except as otherwise provided in this Agreement, and the
Property shall be subject to de-annexation if the Owner/Developer shall not meet the conditions
contained in the Findings, this Agreement, and the ordinances of the City.
15.NOTICES: Any notice desired by the parties and/or required by this Agreement
shall be deemed delivered if and when personally delivered or three (3) days after deposit in the
United States Mail, registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
CITY: City Clerk
City of Meridian
33 E. Broadway Ave.
Meridian, Idaho 83642
with copy to: City Attorney
City of Meridian
33 E. Broadway Avenue
Meridian, ID 83642
OWNER/DEVELOPER: L & G Murgoitio, LLC
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6575 S. Locust Grove Road
Meridian, Idaho 83642
15.1 A party shall have the right to change its address by delivering to the other
party a written notification thereof in accordance with the requirements of this section.
16.ATTORNEY FEES: Should any litigation be commenced between the parties
hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other
relief as may be granted, to court costs and reasonable attorney’s fees as determined by a Court
of competent jurisdiction. This provision shall be deemed to be a separate contract between the
parties and shall survive any default, termination or forfeiture of this Agreement.
17.TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition and provision
hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a
breach of and a default under this Agreement by the other party so failing to perform.
18.BINDING UPON SUCCESSORS: This Agreement shall be binding upon and
inure to the benefit of the parties’ respective heirs, successors, assigns and personal
representatives, including City’s corporate authorities and their successors in office. This
Agreement shall be binding on the Owner/Developer, each subsequent owner and any other
person acquiring an interest in the Property. Nothing herein shall in any way prevent sale or
alienation of the Property, or portions thereof, except that any sale or alienation shall be subject
to the provisions hereof and any successor owner or owners shall be both benefited and bound by
the conditions and restrictions herein expressed. City agrees, upon written request of
Owner/Developer, to execute appropriate and recordable evidence of termination of this
Agreement if City, in its sole and reasonable discretion, had determined that Owner/Developer
has fully performed its obligations under this Agreement.
19.INVALID PROVISION: If any provision of this Agreement is held not valid by
a court of competent jurisdiction, such provision shall be deemed to be excised from this
Agreement and the invalidity thereof shall not affect any of the other provisions contained
herein.
20.DUTY TO ACT REASONABLY: Unless otherwise expressly provided, each
party shall act reasonably in giving any consent, approval, or taking any other action under this
Agreement.
21.FINAL AGREEMENT: This Agreement sets forth all promises, inducements,
agreements, condition and understandings between Owner/Developer and City relative to the
subject matter hereof, and there are no promises, agreements, conditions or understanding, either
oral or written, express or implied, between Owner/Developer and City, other than as are stated
herein. Except as herein otherwise provided, no subsequent alteration, amendment, change or
addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and
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signed by them and pursuant, with respect to City, to a duly adopted ordinance or resolution of
City.
21.1 No condition governing the uses and/or conditions governing re-zoning of
the subject Property herein provided for can be modified or amended without the approval of the
City Council after the City has conducted public hearing(s) in accordance with the notice
provisions provided for a zoning designation and/or amendment in force at the time of the
proposed amendment.
22.EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on
the date the Meridian City Council shall adopt an ordinance in connection with the annexation
and zoning of the Property and execution by the Mayor and City Clerk.
[SIGNATURES ON FOLLOWING PAGE]
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55663.0002.10635510.6
IN WITNESS WHEREOF, the parties have herein executed this Agreement and made it
effective as hereinabove provided.
OWNER/DEVELOPER:
L & G Murgoitio, LLC
Date: __________________________By:
Name:
Title:
CITY OF MERIDIAN:
Date: __________________________By:
Mayor Tammy De Weerd
ATTEST:
Jaycee L. Holman, City Clerk
AMENDED DEVELOPMENT AGREEMENT - 20
55663.0002.10635510.6
STATE OF IDAHO )
) ss.
County of Ada )
On this _____ day of September, 2018, before me,
________________________________, a Notary Public in and for said State, personally
appeared , known or identified to me to be the
manager or a member of L & G Murgoitio, LLC, or the person who executed the instrument on
behalf of said limited liability company and acknowledged to me that such limited liability
company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public for Idaho
Residing at
My commission expires
STATE OF IDAHO )
) ss.
County of Ada )
On this _____ day of ______________, 2018, before me, a Notary Public, personally
appeared Tammy De Weerd and Jaycee L. Holman, known or identified to me to be the Mayor
and Clerk, respectively, of City of Meridian who executed the instrument or the person that
executed the instrument on behalf of said City, and acknowledged to me that such City executed
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public for Idaho
Residing at
My commission expires
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT B
COPY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND
ORDER
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EXHIBIT C
SITE PLAN