CC - Development Agreement - City of Meridian v.3 (2-26-19)DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Idaho Central Credit Union,
3. BVA Development, LLC
THIS DEVELOPMENT AGREEMENT (this "Agreement"), is made and entered into
this —day of , 20_, by and between City of Meridian, a municipal corporation of
the State of Idaho, hereinafter called "CITY" whose address is 33 E. Broadway Avenue, Meridian Idaho,
and Idaho Central Credit Union, an Idaho chartered credit union, hereinafter called "OWNER", and BVA
Development, LLC, an Idaho limited liability company, hereinafter called "DEVELOPER".
RECITALS:
1.1. WHEREAS, Owner is the sole owner, in law and/or equity, of a 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,
hereinafter referred to as the "Property"; and
1.2. WHEREAS, Developer has entered into a purchase agreement with Owner,
whereby Developer will acquire the portion of the Property that Owner does not
require for the improvements it contemplates hereunder, and Developer will
undertake the development of the project on the Property and the development of
Owner's improvements; and
1.3. WHEREAS, when the Property was originally annexed as part of a larger parcel,
the City determined in its original 1995 Findings of Fact and Conclusions of Law
("1995 Findings"), "That it has been the experience of the City that development
agreements are difficult to enter into prior to the annexation ordinance being
passed; that it is concluded that the development agreement shall be entered into
prior to the preliminary plat being approved"; and
1.4. WHEREAS, the Property was annexed into the City in 1995 pursuant to the 1995
Findings and was at that time zoned C -G General Retail and Service
Commercial, however, no preliminary plat for the Property was ever submitted
and no development agreement was ever executed; and
1.5. WHEREAS, the Owner and Developer desire to develop a mixed use corporate
campus with various office, healthcare, commercial, retail, entertainment, and
hospitality uses on the Property which differ from the retail center that was
originally approved for the Property, requiring modification of the original 1995
master plan and the 1995 Findings; and
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1.6. WHEREAS, Idaho Code § 67-6511A provides that cities may, by ordinance,
require or permit as a condition of zoning that the Owner and Developer make a
written commitment concerning the use or development of the Property; and
1.7. WHEREAS, City has exercised its statutory authority by the enactment of
Section 11-513-3 of the Unified Development Code ("UDC"), which authorizes
development agreements upon the annexation and/or re -zoning of land; and
1.8. WHEREAS, the 1995 Findings contemplated execution of a development
agreement that was never in fact approved, adopted, or recorded, Staff has
indicated that an application for the Modification of a Development Agreement is
required of the Owner and Developer before Owner and Developer can undertake
any use or development of the Property; and
1.9. WHEREAS, the Developer intends to construct a corporate center consisting of
an initial phase of two office buildings consisting of five stories each with each
building containing approximately one hundred twenty five thousand square feet
(125,000) of space, to provide a corporate campus for Owner to consolidate its
operation on a portion of the Property as well as other commercial office users
desiring to locate on the Property; and
1.10. WHEREAS, the Developer has identified a variety of compatible permitted uses
which can be developed on the Property including other potential compatible
office tenants which desire to locate their premises in the companion building to
that being developed for the Owner; and
1.11. WHEREAS, the Developer intends to develop a mixed use project with
additional office, health care, retail, commercial and entertainment uses on the
remainder of the Property; and
1.12. WHEREAS, the Owner and Developer have submitted an application to
subdivide the Property in furtherance of the development of the Property; and
1.13. WHEREAS, the Owner and Developer have made this application, seeking
modification of the 1995 conditions of approval to reflect the development of the
Property as they now contemplate; and
1.14. WHEREAS, the Owner and Developer desire to be able to commence
development and construction of the Owner's corporate center, which is a
permitted use of the property and is compliant with all required dimensional or
other standards imposed under the City's Unified Development Code, in advance
of the approval of their subdivision plat application; and
1.15. WHEREAS, Owner and Developer have made representations at the public
hearings before the Meridian City Council, as to how the Property now will be
developed and what improvements will be made; and
1.16. WHEREAS, on the day of , 20_, the Meridian City
Council approved certain Findings of Fact and Conclusions of Law and Decision
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and Order ("Findings"), which have been incorporated into this Agreement and
attached as Exhibit `B"; and
1.17. WHEREAS, the Findings require the Owner and Developer to enter into this
Agreement before the City Council takes final action on final plat, and to permit
the Owner to proceed with development and construction of the Owner's
Corporate Center; and
1.18. WHEREAS, Owner and Developer deem it to be in their best interest to be able
to enter into this Agreement and acknowledge that this Agreement was entered
into voluntarily; and
1.19. WHEREAS, City requires the Owner and Developer to enter into this Agreement
for the purpose of ensuring that the Property is developed and the subsequent use
of the Property is in accordance with the terms and conditions of this Agreement,
herein being established as a result of the evidence received by the City in in the
proceedings relating to this application.
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 for, unless
the clear context of the presentation of the same requires otherwise:
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: means and refers to Idaho Central Credit Union, an Idaho chartered
credit union, whose address is 4400 Central Way, Chubbuck, Idaho 83202, the
party that owns said Property and shall include any subsequent
owners/developers of the Property.
3.3 DEVELOPER: means and refers to BVA Development, LLC, an Idaho limited
liability company, whose address is 2775 West Navigator Drive, Suite 220,
Meridian, Idaho 83642, the party developing said Property and which will
acquire the remainder of the Property following its subdivision.
3.4 PROPERTY: means and refers to that certain Property located in the County of
Ada, City of Meridian, as described in Exhibit "A" and attached hereto and by
this reference incorporated herein as if set forth at length.
4. USES PERMITTED BY THIS AGREEMENT:
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4.1 The uses allowed pursuant to this Agreement are those uses allowed under the
UDC, within the C -G district from time to time as permitted, accessory or
conditional uses.
4.2 No change in the uses specified in this Agreement shall be allowed without
modification of this Agreement.
CONDITIONS COVERING DEVELOPMENT OF SUBJECT PROPERTY:
5.1. In recognition of the existing development rights associated with the Property
under the UDC, and the proposed scope of the initial phase of the Owner's
corporate center consisting of the two commercial office buildings located on the
northern boundary of the Property, the Owner and Developer have been
permitted to submit and to obtain design review approvals for those two
buildings, certificates of zoning compliance for those two buildings, and building
permits for those two buildings, prior to the approval of the subdivision plat for
the Property, consistent with the Findings, attached as Exhibit `B" and the
concept plan attached as Exhibit "C".
5.2. No other building permits for individual buildings will be available on the
Property until the subdivision plat is recorded. Upon the recording of a
subdivision plat, additional building permits shall be available consistent with the
UDC.
5.3. The Owner and Developer shall develop the Property in accordance with the
conditions of approval contained in Findings attached as Exhibit "B".
6. COMPLIANCE PERIOD: This Agreement must be fully executed within two (2) years
after the date of the Findings or it is null and void.
7. DEFAULT/CONSENT TO DE -ANNEXATION AND REVERSAL OF ZONING
DESIGNATION:
7.1. Acts of Default. Either party's failure to faithfully comply with all of the terms
and conditions included in this Agreement shall constitute default under this
agreement.
7.2. Notice and Cure Period. In the event of default of this Agreement by the
Owner or Developer, the Owner or Developer shall have thirty (30) days from
receipt of written notice from City to initiate commencement of action to correct
the breach and cure the default, which action must be prosecuted with diligence
and completed within one hundred eighty (180) days; provided, however, that in
the case of any such default that cannot with diligence be cured within such one
hundred eighty (180) day period, then the time allowed to cure such failure may
be extended for such period as may be necessary to complete the curing of the
same with diligence and continuity. In the event of default of this Agreement by
the City, the City shall have thirty (30) days from receipt of written notice from
the Owner or Developer to correct the breach and cure the default, which action
must be prosecuted by the City with diligence and completed within one hundred
eighty (180) days; provided, however, that in the case of any such default that
cannot with diligence be cured within such one hundred eighty (180) day period,
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then the time allowed to cure such failure may be extended for such period as
may be necessary to complete the curing of the same with diligence and
continuity..
7.3. Remedies. In the event of default by the Owner or Developer that is not cured
after notice as described in Section 7.2, the Owner or Developer shall be deemed
to have consented to modification of this Agreement solely against the offending
portion of the 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. In the event of such modification, all conditions of approval
shall revert to those set forth in the 1995 Findings. The Owner or Developer
reserves all rights to contest whether a default has occurred. In the event of a
default by the City that is not cured after notice as described in Section 7.2, the
Owner or Developer shall have such remedies available to them in law or equity.
This Agreement shall be enforceable in the Fourth Judicial District Court in Ada
County by either City or the Owner or Developer, or by any successor or
successors in title or by the assigns of the parties hereto. Enforcement 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
herein.
7.4. Delay. In the event the performance of any covenant to be performed hereunder
by the Owner or Developer or 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.
7.5. Waiver. A waiver by City of any default by the Owner or Developer 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 of City nor
apply to any subsequent default of any such or other covenants and conditions.
8. INSPECTION: The Owner and Developer shall, immediately upon completion of any
portion or the entirety of said development of the property as required by this Agreement or 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.
9. REQUIREMENT FOR RECORDATION: City shall record this Agreement, including
all of the Exhibits, and submit proof of such recording to the Owner and Developer.
10. INTENTIONALLY DELETED
11. SURETY OF PERFORMANCE: The City may also require surety bonds, irrevocable
letters of credit, cash deposits, certified check or negotiable bonds, as allowed under the UDC, to
insure the installation of required improvements, which the Owner and Developer agree to provide, if
required by the City.
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12. CERTIFICATE OF OCCUPANCY: No Certificates of Occupancy shall be issued in
any phase in which the improvements have not been installed, completed, and accepted by the City,
or sufficient surety of performance is provided by the Owner or Developer to the City in accordance
with Paragraph 1 I above.
13. ABIDE BY ALL CITY ORDINANCES: That Owner and Developer agree to abide by
all ordinances of the City of Meridian unless otherwise provided by this Agreement.
14. 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: With copy to::
City Clerk City Attorney
City of Meridian City of Meridian
33 E. Broadway Avenue 33 E. Broadway Avenue
Meridian, ID 83642 Meridian, ID 83642
Idaho Central Credit Union
4400 Central Way
Chubbuck, Idaho 83202
DEVELOPER:
BVA Development, LLC
2775 W. Navigator Drive, Suite 220
Meridian, Idaho 83642
Attn: J. Thomas Ahlquist
With a copy to:
BV Management Services, Inc.
Attn: Cortney Liddiard
901 Pier View Drive, Suite 201
Idaho Falls, Idaho 83402
PO Box 51157
Idaho Falls, Idaho 83405
With a copy to:
BV Management Services, Inc.
Attn: Thel W. Casper
901 Pier View Drive, Suite 201
Idaho Falls, Idaho 83402
PO Box 51298
Idaho Falls, Idaho 83405
With a copy to:
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Spink Butler, LLP
Attn: Geoffrey M. Wardle
PO Box 639
Boise, Idaho 83701
14.1 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.
15. 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 attorneys' 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.
16. 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.
17. 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 and 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 the Owner and Developer, to
execute appropriate and recordable evidence of termination of this Agreement if City, in its sole
and reasonable discretion, had determined that the Owner and Developer has fully performed its
obligations under this Agreement.
18. 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.
19. 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.
20. COOPERATION OF THE PARTIES: In the event of any legal or equitable action or
other proceeding instituted by any third party (including a governmental entity or official)
challenging the validity of any provision in this Agreement, the parties agree to cooperate in
defending such action orproceeding.
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 signed by them
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or their successors in interest or their assigns, 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
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 Agreement is last executed below.
[end of text; signatures, acknowledgements, and exhibits to follow]
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IN WITNESS WHEREOF, the parties have herein executed this Agreement and made it
effective as of the date last executed below.
11MAI/121 DI A
IDAHO CENTRAL CREDIT UNION,
an Idaho chartered credit union
R -A
Kent Oram, CEO
Date:
CITY:
CITY OF MERIDIAN,
a municipal corporation
1.2
Tammy de Weerd, Mayor
Date:
117 Dili 040)9of:A
BVA DEVELOPMENT, LLC,
an Idaho limited liability company,
By its Executive Manager:
BV Management Services, Inc.,
Lo
Cortney Liddiard, President
Date:
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STATE OF IDAHO )
ss.
County of Ada )
On this day of , 2019, before me, the undersigned, a Notary Public in and
for said State, personally appeared Kent Oram, known or identified to me to be the Chief Executive
Officer of Idaho Central Credit Union, chartered credit union that executed the within and foregoing
instrument, or the person who executed the instrument on behalf of said chartered credit union, and
acknowledged to me that such chartered credit union 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 , 2019, before me, the undersigned, a Notary Public in and
for said State, personally appeared Cortney Liddiard, known or identified to me to be the President of BV
Management Services, Inc., the Executive Manager of BVA Development, LLC, the limited liability
company that executed the within and foregoing instrument, 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:
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STATE OF IDAHO )
ss.
County of Ada )
On this day of , 2019, before me, the undersigned, a Notary Public in and
for said State, personally appeared Tammy de Weerd, known or identified to me to be the Mayor of the
City of Meridian, who executed the instrument or the person that executed the 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 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
Legal Description:
THE NORTH ONE-HALF OF THE SOUTHWEST QUARTER OF SECTION 1.6, TOWNSHIP 3 NORT-H" 4 EAST,
OF 114E BOISE MERIDIAN, IN ADA COUNTY, IDAHO;
EXCMMNG THEREFROM:
THE PROPERTY TAKEN BY THE STATE OF IDAHO FOR THE CONSTRUCTION OF INTERSTATE HIGHWAY
PROJECT NO. I-8044(28)45 BETW1EEN STATION 2428-4-40.52 TO STATION 2455+6,0-.64 AD BETWEEN
ST:95
STATION 2429+27TO STATION 2455+59.18 DESCRIBED AS PARCELS 13 AND 1341N -THE JUDGMENT AND
DECREE bF'CONDEMNATION DATED JULY 2}, 1965, RECORDED AUGUST 20; 1965; AS INSTRUMENT NO.
619430, RECORDS_ OF ADA COUNTY, IDAHO.
ALSO' EXCEPTING.THEREFROM :
THE POPERTY-TAKEN. BY THE STATE'OF IDAHO FOR'THE CONSTRUCTION OF THAT CERTAIN PUBLIC
HIGHWAY KNOWN AS INTERSTATE 84, PROJECT IR -84-1(12)95 BETWEEN HIGHWAY STATION 2423*86.30 TO
2448+64.84 DEWO.ED'IN THAT SECOND )UDG14ENT AND DECREE OF CONDEMNATION DATED JUNE 25,
1990, RECORDED JULY 2, 199(1, AS INSTRUMENT NO. 90"34963, RECORDS OF ADA COUNTY, IDAHO.
EXHIBIT A
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EXHIBIT B
Findings of Fact and Conclusions of Law and Decision and Order
To be Inserted
EXHIBIT B
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EXHIBIT C
Concept Plan
EXHIBIT B
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7-1� f—.L
9-9 _ac
iv Al 11
EXHIBIT B
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