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HomeMy WebLinkAboutAlbertson's Landscaping VAR• CITY OF MERIDIAN 33 E. IDAHO AVE. MERIDIAN, IDAHO 83642 VARIANCE APPLICATION (RE: Meridian Zoning Ordinance) NAME : Alberton's, Inc. , A Delaware Corporation PHONE 385-6643 (Owner or holder of valid option) ADDRESS : 250 East ParkCenter Blvd. Boise, Idaho 83726 GENERAL LOCATION : SWC Cherry Lane and Ten Mile Road LEGAL DESCRIPTION OF PROPERTY: Refer to attached sheet. PROOF OF OWNERSHIP OR VALID OPTION: R copy of your property deed or option agreement must be attached. PRESENT ZONE CLASSIFICATION Neighborhood C`nmmPrriaj (C-N) . VICINITY SKETCH:' A vicinity map at a scale approved by the City showing property lines, streets existing and proposed zoning and such other items as the City may require. SURROUNDING PROPERTY OWNERS: A list of all property owners and addresses within contiguoug to, directly across the street from, and within a 300' radius of the parcel(s) proposed for a Variance must be attached. (This information is available from the County Assessor) DESCRIPTION OF PROPOSED VARIANCE: Refer to attached sheet. SIGNATURE: CITY COUNCIL RECORDS Date Received City Council Hearing Date Received By MERIDIAN VARIANCE APPLICATION Description of Proposed Variance (s) The applicant requests a variance of City Ordinance 11-9-605.M which requires the Eight Mile Lateral to be covered and enclosed with tiling. In conjunction with the previous request for variance, the applicant requests a variance of City Ordinance 11-9- 605.G, which requires a 20'-0" planting strip where commercial properties are adjacent to residential properties. RE UIREMENTS: VARIANCE Attach a site plan showing all details of the proposed development. .Complete the following questions and return with the application. 1. What is intended to be done on or with the property? Refer to the attached sheet. 2. What special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other .lands, structures, or buildings in the same district? Refer to the attached sheet. 3. Why will a literal interpretation of the provisions of this ordinance deprive you of rights commonly enjoyed by other properties in the same district under the terms of this ordinance? Refer to the attached sheet. 4. what special conditions or circumstances exist that were not a result of your actions? Refer to the attached sheet. 5. Why will the granting of this Variance not confer on you any. special privilege that is denied by this Ordinance to other lands, structures, or building in the same district? Refer to the attached sheet. • REQUIREMENTS: VARIANCE Attach a site plan showing all details of the proposed development. Complete the following questions and return with the application. What is intended to be done on or with the property? This agricultural property of 6.90 acres will be developed into a neighborhood shopping center including an Albertson's grocery store with 6,000 sq.ft. of adjacent retail shop space. Site construction will include landscaping, screening for equipment and trash compactors, concrete sidewalks, and paved areas for customer parking and delivery areas. Landscaping will occur within parking row-end planters, internal planters, a large screening buffer for the delivery service area, and perimeter buffering with expanded areas along Cherry Lane and Ten Mile Road to help create the attractive entrance corridor desired by the City of Meridian. 2. What special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district? The property is bound by the Eight Mile Lateral along the southern edge. This irrigation canal is owned by the Nampa and Meridian Irrigation District (NMID). NMID retains rights to a 30'- 0" ditch easement on each side of the south property line. As a result, the configuration of the property is irregular and restrictive. 3. Why will a literal interpretation of the provisions of this ordinance deprive you of rights commonly enjoyed by other properties in the same district under the terms of this ordinance? City Ordinance 11-9-605.M requires that all irrigation laterals be covered and enclosed with tiling. Rod's Parkside Creek Subdivision No. 4 lies adjacent to and south of the Eight Mile Lateral. Development of this subdivision did not require the tiling of the waterway. The size and length of culvert necessary to the the waterway would impose a financial burden on the property owner. In prior situations of similar circumstances regarding the Eight Mile Lateral, the City of Meridian has granted requests for variances of City Ordinance 11-9-605.M. City Ordinance 11-9-605.G requires a 20'-0" wide planting strip where commercial properties are adjacent to residential properties. The existing 30'-0" ditch easement, which can not be landscaped without a license agreement with NMID, in addition to the City required 20'-0" planting strip, would require the project to provide a 50'-0" planting strip/separation from the adjacent residential property. It should be noted, that entering into a licensing agreement with NMID would not allow the applicant to provide shrubs or trees within the easement area, only turf or ground cover. 4. What special conditions of circumstances exist that were not a result of the actions? The Eight Mile Lateral Irrigation Canal, and the corresponding NMID 30'-0" service easement, is an existing condition. Proposed site development has been designed so that site construction does not encroach upon the NMID service easement or hinder their access to the easement. Why will the granting of this Variance not confer on you any special privilege that is denied by this Ordinance to lands, structures, or building in the same district? The City of Meridian has granted variances to City Ordinance 11-9-605.M for prior applicants with similar circumstances such as Rod's Parkside Creek Subdivision No. 4 south of the Eight Mile Lateral. City Ordinance 11-9-605.G requires a 20'-0" wide planting strip between commercial and residential properties for screening purposes. The proposed project would provide more than the required 20'-0" planting strip along the westerly property line. Along the southerly property line from Ten Mile Road to the corner of the Albertson's store, a 10'-0" wide planting strip is proposed. Along the remainder of the southerly property line, two (2) triangular shaped planting strips are proposed, providing from 60'-0" of planting to 0'-0" of planting. However, due to the NMID ditch easement, the adjacent residential properties are provided with 60'-0" of separation from the proposed commercial development in addition to the proposed planting strips. The net planting strip/separation width from the residential property is a minimum of 60'-0" and a maximum of 120'. These distances are well in excess of the required 20'-0". • AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ss. County of Ada ) We, JAMES W. FULLER & LOIS J. FULLER, of 1635 N. TEN MILE ROAD,. MERIDIAN, IDAHO, being first duly sworn upon oath, depose and say: 1. That we are the record owners, of the property described and attached hereto as Exhibit "A", and we grant our permission to ALBERTSON'S INC., BOISE, IDAHO to submit the accompanying application pertaining to that property. Dated this 12th day of January, 1995. SUBSCRIBED AND SWORN to before me the day mid ~ar first above written. ,. 1 ~=s~l) ~~ No a Public for Idaho Residing at Meridian ~ ~~ ~~,~ My Commission Expires: -~ _)~ • A parcel in the Northeast 1/4 Northeast 1/4 of Section 10, Township 3 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho described as follows: commencing at the Northeast comer of said Section 10; thence, North 89° 16'54" West, (formally North 89' 41'38" West per deed recorded as Instrument No. 8351286 in the Ada County Recorder's Office) 530.00 feet along the northerly line of said Section 10; thence, South 00' 43'06" West (South 00' 18'22" West) 49.34 feet along the easterly line of said deed to the POINT OF BEGINNING; thence, South 88° 08'56" East, 227.29 feet along the proposed new southerly sideline of Cherry Lane; thence, South 88° 42'45" East, 228.53 feet along said new sideline; thence, South 44° 08'58" East, 42.10 feet to a point in the proposed new westerly sideline of North Ten Mile Road; thence, South 00° 24'46" West, 215.64 feet along said new westerly sideline of North Ten Mile Road, being along a line parallel with and 45.00 feet west of the easterly line of said Section 10; thence, South 04° 46' 12" East, 221.41 feet along said new westerly sideline to a point in the original westerly sideline of said North Ten Mile Road; thence, South 00° 24'46" West, 432.59 feet along said original westerly sideline parallel with and 25.00 feet west of said easterly section line; thence, North 41° 01'46" West, 766.08 feet along a ditch to the southeast comer of said Deed Instrument No. 8351286; thence, North 00° 43'06" East, (North 00' 18'22" East) 333.66 feet along the easterly line of said deed to the POINT OF BEGINNING. LESS property sold to the Ada County Highway District for road purposes. This description was written using recorded documents and maps and not from an actual survey. The ditch line above mentioned is a line scaled from an aerial photograph and should be :considered approximate only; the basis for bearings of this description is the plans for Cherry Lane prepared by CH2M Hill for the Ada County Highway District. EXHIBIT " A " LEGAL DESCRIPTION A tract of -land located in the Northeast 1/4 of the Northeast 1/4 of Section 10 Township 3 North, Range 1 West of the Boise Meridian, in the City of Meridian, Idaho, said tract being more particulor/y described as follows: Commencing at o Brass Cop monument marking the Northeast corner of said Section 10; thence North 89 41'38" West 530.00 feet along the North line of said Section 10 to a point; thence South 00'18'22" West 49.34 feet along the East line of that tract of land described in Instrument- No. 8351286 to Wallace D. Lovan and lrnita Lovan dated September 26, 1983 in Ada County Deed Records to the 'TRUE POINT OF BEGINNING, said point being on the South right of way line of Cherry Lane as described in Instrument No. 94060466 to Ada County Highway District, recorded on June 24, 1994 in Ada County Deed Records; (hence South 8833'40" East _227.29 feet along said right of woy line to a point; thence South 89 07'29" .East 228.53 feet along said right of way line to a point; thence South 44'33'42" East 42.09 feet to a point being 45.00 feet distant from (when measured.at right ongles to) the East line of said Section 10; thence South 00'00'05" West 215.52 feet and poraf/el with said east line to a point; (hence South 05'10'56" East 221.37 feet to a point being 25.00 feet distant from (when measured at right angles to) said East line; thence South 00'00'05" West 419.74 feet and parallel with said East line to a point on the center line of Eight Mile Lateral as described, in Instrument No. 768075 pages 3-6 in Ada County Deed Records; thence North 42'00'12" West 331.89 feet along said center line to a point on the East line of said Lovan tract; thence North 00'18'22" Eost 331.89 feet along the East line of said Lovan tract to the POINT OF BEGINNING. Said parcel contains 6.90 acres more or less. ~."isM.~l~~M ~I~o~ ~1~~ ~OfWA • *Bs~.~~ ZKWMRIT~ pp ~~ ~V 3~ OHVO 1rVIOFBN ~IVI AkkS~ 437^1 I~.L 'O'M'S ~ ~ _ 091 'ON I~IOSllfl9lM ~~ ~ e ; $ ~ ~ ~ ~~ a ~5~~ q~ 9 ~RAa &q~H a gg awN ~~X~n ~ 3 d 9 ~a.~e ~~s~~~~~s~ ~ : ~ ~ ~~~~ ~~ ~~~ ~ ~ ~ 4i ~ a I~ ~ B OFFICIALS WILLIAM G. BERG, JR., City Clerk JANICE L. GASS, City Treasurer GARY D. SMITH, P.E. City Engineer BRUCE D. STUART, Water Works Supt. JOHN T. SHAWCROFT, Waste Water Supt. KENNY W. BOWERS, Fire Chief W.L. "BILL" GORDON, Police Chief WAYNE G. CROOKSTON, JR., Attorney .HUB OF TREASURE VALLEY t ~ ~~ ~ ~ ~~~~ COUNCIL MEMBERS A Good Place to Live t+~ ~.(~` `{~~p O.NALD R. TOLSMA CITY OF MERIDIA~ ~~ 1'i+~:;~i~IA, R AL RW DMIORROW 33 EAST IDAHO MERIDIAN, IDAHO 83642 Phone (208) 888-4433 • FAX (208) 887-4813 Public Works/Building Department (208) 887-2211 SHARI STILES ~~~~~ Planner & Zoning Administrator /~~p JIM JOHNSON a+@Hairman -Planning & Zoning 3 - F~~ 1995 GRANT P. KINGSFORD Mayor NgMpA & MERIDIAN IRRIGATION DISTF~ICT TRANSMITTAL TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN To insure that your comments and recommendations will be considered by the Meridian ,City .Council, please submit your comments and- -recommendations to Meridian City Hall, Attn: Will Berg, City Clerk by: February 14, 1995 TRANSMITTAL DATE: 1/30/95 HEARING DATE: 2/21/95 REQUEST: Variance request BY: Albertson's Inc. LOCATION OF PROPERTY OR PROJECT: Southwest corner of Cherry Lane and Ten Mile Road JIM JOHNSON, P/Z MERIDIAN SCHOOL DISTRICT MOE ALIDJANI, P2 MERIDIAN POST OFFICE(PRELIM & FINAL PLAT) JIM SHEARER, P2 ADA COUNTY HIGHWAY DISTRICT -CHARLES ROUNTREE, P/Z ADA PLANNING ASSOCIATION TIM HEPPER, P/Z CENTRAL DISTRICT HEALTH GRANT KINGSFORD, MAYOR ~NAMPA MERIDIAN IRRIGATION DISTRICT RONALD TOLSMA, C/C SETTLERS IRRIGATION DISTRICT BOB CORRIE, C/C IDAHO POWER CO..(PRELIM & FINAL PLAT) WALT MORROW, C/C U.S. WEST(PRELIM & FINAL PLAT) MAX YERRINGTON, C/C INTERMOUNTAIN GAS(PRELIM & FINAL PLAT) WATER DEPARTMENT BUREAU OF RECLAMATION(PRELIM & FINAL PLAT) SEWER DEPARTMENT CITY FILES BUILDING DEPARTMENT OTHER: FIRE DEPARTMENT YOUR CONCISE REMARKS: The plans show that Nampa & POLICE DEPARTMENT Meridian Irrigation District's Eightmile Lateral's CITY ATTORNEY right-of-way is being protected and that all buildings -CITY ENGINEER and shrubs are off the 30 foot easement. All drainage CITY PLANNER is in hel on site er a revious tele hon conversation. This will meet a o ampa eri >.an rrigation istrict s requirements. We have no comment on this variance request. Bill Henson, Assistant Water Superintendent Nampa & Meridian Irrigation District • • .HUB OF TREASURE VALLEY OFFICIALS A Good Place to Live COUNCIL MEMBERS RONALO R. TOLSMA WILLIAM G. BERG, JR., City Clerk ~`1 MAX YERRINGTON n S ( ITY OF MERIDIAN ROBERT D. CORRIE ear GARY D SM TH P.EYCity Eng \/ WALT W. MORROW BRUCE D. STUART, Water Works Supt. 33 EAST IDAHO SHARI STILES JOHN T. SHAWCROFT, Waste Water Supt. Planner 8 Zoning Administrator KENNY W. BOWERS, Flre Chief IDAHO 83642 MERIDIAN W.L. "BILL" GORDON, Police Chief , JIM JOHNSON WAYNE G. CROOKSTON, JR., Attorney Phone (208) 888-0433 • FAX (208) 887813 Chairman -Planning 8 Zoning Public Works/Building Department (208) 887-221 I GRANT P. KINGSFORD Mayor TRANSMITTAL TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN To insure that your comments and recommendations will be considered by the Meridian City Council, please submit your comments and recommendations to Meridian City Hall, Attn: Will Berg, City Clerk by: February 14. 1995 TRANSMITTAL DATE: 1/30/95 HEARING DATE: 2/21/95 REQUEST: Variance request BY: Albertson's Inc. LOCATION OF PROPERTY OR PROJECT: Southwest corner of Cherry Lane and Ten Mile Road JIM JOHNSON, P/Z MOE ALIDJANI, P2 JIM SHEARER, P2 CHARLES ROUNTREE, P/Z TIM HEPPER, P/Z GRANT KINGSFORD, MAYOR RONALD TOLSMA, C/C BOB CORRIE, C/C WALT MORROW, C/C MAX YERRINGTON, C/C WATER DEPARTMENT -SEWER DEPARTMENT BUILDING DEPARTMENT FIRE DEPARTMENT POLICE DEPARTMENT CITY ATTORNEY CITY ENGINEER CITY PLANNER MERIDIAN SCHOOL DISTRICT MERIDIAN POST OFFICE(PRELIM & FINAL PLAT) ADA COUNTY HIGHWAY DISTRICT ADA PLANNING ASSOCIATION CENTRAL DISTRICT HEALTH NAMPA MERIDIAN IRRIGATION DISTRICT SETTLERS IRRIGATION DISTRICT IDAHO POWER CO..(PRELIM 8~ FINAL PLAT) U.S. WEST(PRELIM & FINAL PLAT) INTERMOUNTAIN GAS(PRELIM & FINAL PLAT) BUREAU OF RECLAMATION(PRELIM & FINAL PLAT) CITY FILES ~ v ~ / S OTHER: YOUR CONCISE REMARKS: ~hts ao~s mot ~FFF~r ~- ~ (= G R [1 R 1ao5 CENTRAL •• DISTRICT HEALTH DEPARTMENT REVIEW SHEET Return to: ^ Boise ^EI Rezone # Conditional Use # Environmental Health Division FEO 0 8 g9~5 ag e C~~ ~ +~}~ ~+ifC:~iix~lt-~1I'e Preliminary /Final /Short Plat / / ^ Garden city ~Pleridian ^ Kuna ^ Acz ^ I. We have Objections to this Proposal. ^ 2. We recommend Denial of this Proposal. ^ 3. Specific knowledge as to the exact type-of use must be provided before we can comment on this Proposal. ^ 4. We will require more data concerning soil conditions on this Proposal before we can comment. ^ 5. Before we can comment concerning individual sewage disposal, we will require more data concerning the depth of: ^ high seasonal ground water ^ solid lava from original grade ^ 6. We can Approve this Proposal for individual sewage disposal to be located above solid lava layers: ^ 2 feet ^ 4 feet ^ 7. After written approval from appropriate entities are submitted, we can approve this proposal for: ^ central sewage ^ community sewage system ^ community water well ^ interim sewage ^ central water ^ individual sewage ^ individual water ^ 8. The following plan(s) must be submitted to and approved by the Idaho Department of Health & Welfare, Division of Environmental Quality: ^ central sewage ^ community sewage system ^ community water ^ sewage dry lines ^ central water ^ 9. Street Runoff is not to create a mosquito breeding problem. ^ 10. This Department would recommend deferral until high seasonal ground water can be determined if other considerations indicate approval. ^ I I. If restroom facilities are to be installed, then a sewage system MUST be installed to meet Idaho State Sewage Regulations. ^ 12. We will require plans be submitted for a plan review for any: ^ food establishment ^ swimming pools or spas ^ child care center ^ beverage establishment ^ grocery store 13. GCE .~~/"D ~Q /E'G'lo~.l Date: °~ / ~ / Reviewed By: _ fDHD 10!91 rcb, rev. I I/93 jll • • .HUB OF TREASURE VALLEY OFFICIALS A Good Place to Live COUNCIL MEMBERS RONALD R. TOLSMA WILLIAM G. BERG, JR., City Clerk CITY OF MERIDIAN MAX YERRINGTON ROBERT D. CORRIE GARY D SM THS P.E. City Engeneer WALT W. MORROW BRUCE D. STUART, Water Works Supt. 33 EAST IDAHO sHARI snLEs JOHN T. SHAWCROFT, wears water supt. Planner 82oning Administrator KENNY W. BOWERS, Flrecniet IDAHO 83642 MERIDIAN W.L. "BILL" GORDON, Police Chief , JIM JOHNSON WAYNE G. CROOKSTON, JR., Attorney Phone (208) 888433 • FAX (208) 887-4813 Chairman ~ Planning & Zoning Public Works/Building Department (208) 887-2211 GRANT P. KINGSFORD Mayor TRANSMITTAL TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN To insure that your comments .and recommendations will be considered by the Meridian City Council, please submit your comments and recommendations to Meridian City Hall, Attn: Will Berg, City Clerk by: February 14, 1995 TRANSMITTAL DATE: 1!30/95 HEARING DATE: 2/21/95 REQUEST: Variance request BY: Albertson's Inc. LOCATION OF PROPERTY OR PROJECT: Southwest corner of Cherry Lane and Ten Mile Road JIM JOHNSON, P/Z MOE ALIDJANI, P2 JIM SHEARER, P2 CHARLES ROUNTREE, P2 TIM HEPPER, P2 GRANT KINGSFORD, MAYOR RONALD TOLSMA, C/C BOB CORRIE, C/C WALT MORROW, C/C MAX YERRINGTON, C/C WATER DEPARTMENT SEWER DEPARTMENT BUILDING DEPARTMENT FIRE DEPARTMENT POLICE DEPARTMENT CITY ATTORNEY CITY ENGINEER CITY PLANNER MERIDIAN SCHOOL DISTRICT MERIDIAN POST OFFICE(PRELIM & FINAL PLAT) ADA COUNTY HIGHWAY DISTRICT ADA PLANNING ASSOCIATION CENTRAL DISTRICT HEALTH NAMPA MERIDIAN IRRIGATION DISTRICT SETTLERS IRRIGATION DISTRICT IDAHO POWER CO..(PRELIM & FINAL PLAT) U.S. WEST(PRELIM 8r FINAL PLAT) INTERMOUNTAIN GAS(PRELIM & FINAL PLAT) BUREAU OF RECLf-AgPTION(PRELIM & FILL PLAT) CITY FILES ~ ) r _ n ~.,/ YOUR CONCISE F E B - 1 1995 t~tY OF i~ER1DIAIV • .HUB OF TREASURE VALLEY OFFICIALS A Good Place to Live COUNCIL MEMBERS WILLIAM G.BERG,JR.,CItyClerk JANICE L. GASS, City Treasurer CITY OF MERIDIAN RONALD R. TOLSMA MAXYERRINGTON ROBERT D. CORRIE GARY D. SMITH, P.E. City Engineer WALT W. MORROW BRUCE D. STUART, Water Works Supt. JOHN T. SHAWCROFT, waste water suet. 33 EAST IDAHO SHARI STILES KENNY W. BOWERS, Fire Chief MERIDIAN, IDAHO 83642 Planner ff Zoning Administrator W.L. "BILL" GORDON, Police Chief JIM JOHNSON WAYNE G. CROOKSTON, JR., Attorney Phone (208) 888.4433 • FAX (208) 887813 Chairman -Planning 8 Zoning Public Works/Building Department (208) 887-2211 GRANT P. KINGSFORD Mayor TRANSMITTAL TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN To insure that your comments and recommendations will be considered by the Meridian City Council, please submit your comments and recommendations to Meridian City Hall, Attn: Will Berg, City Clerk by: eb 14 1995 TRANSMITTAL DATE: 1/30/95 HEARING DATE: 2/21/95 REQUEST: Variance request BY: Albertson's Inc. LOCATION OF PROPERTY OR PROJECT: Southwest corner of Cherry Lane and Ten Mile Road JIM JOHNSON, P/Z MOE ALIDJANI, P2 JIM SHEARER, P2 CHARLES ROUNTREE, P2 TIM HEPPER, P/Z GRANT KINGSFORD, MAYOR RONALD TOLSMA, C/C BOB CORRIE, C/C WALT MORROW, C/C _MAX YERRINGTON, C/C WATER DEPARTMENT SEWER DEPARTMENT BUILDING DEPARTMENT FIRE DEPARTMENT POLICE DEPARTMENT CITY ATTORNEY CITY ENGINEER CITY PLANNER MERIDIAN SCHOOL DISTRICT MERIDIAN POST OFFICE(PRELIM & FINAL PLAT) ADA COUNTY HIGHWAY DISTRICT ADA PLANNING ASSOCIATION CENTRAL DISTRICT HEALTH NAMPA MERIDIAN IRRIGATION DISTRICT SETTLERS IRRIGATION DISTRICT IDAHO POWER CO..(PRELIM & FINAL PLAT) U.S. WEST(PRELIM & FINAL PLAT) INTERMOUNTAIN GAS(PRELIM & FINAL PLAT) BUREAU OF RECLAMATION(PRELIM & FINAL PLAT) CITY FILES OTHER: YOUR CONCISE REMARKS: 1iEl) ~~~ CITY OF 1~ERIDIr~g ~ f NOTICE OF HEARING NOTICE IS HEREBY GIVEN pursuant to the Ordinances of the City of Meridian and the Laws of the State of Idaho, that the City Council of the City of Meridian will hold a public hearing at the Meridian City Hall, 33 East Idaho Street, Meridian, Idaho, at the hour of 7:30 p.m., on February 21, 1995, for the purpose of reviewing and considering the Application of Albertson's Inc., for a Variance request for land located in the NE 1/4, NE 1/4 of Section 10, T.3N, R.1W, Boise Meridian, Ada County, Idaho, and which property is generally located on the Southwest: corner of Cherry Lane and Ten Mile Road. The Application requests a Variance to the requirement to the the Eight Mile Lateral and the requirement fora 20 foot planting strip. Amore particular legal description of the above property is on file in the City Clerk's office at Meridian City Hall, 33 East Idaho Street, and is available for inspection during regular business hours. A copy of the Application is available upon request. Any and all interested persons shall be heard at said public hearing and the public is welcome and invited to submit testimony. Dated this 30th day of January 1995. WILLIAM G. BERG, JR., C LERK HUB OF TREASURE VALLEY OFFICIALS COUNCIL MEMBERS A Good Place to Live WILLIAM G. BERG, JR., City Clerk CITY OF MERIDIA RONALD R. TOLSMA I GARY D. SM THS P.E. City Engineer N ROBERT D CORR E BRUCE D. STUART, Water Works Supt. WALT W. MORROW JOHN T. SHAWCROFT, waste water supt. 33 EAST IDAHO SHARI STILES KENNY W. BOWERS, Fire Chief " " MERIDIAN, IDAHO 83642 Planner 8 Zoning Administrator W.L. BILL GORDON, Police Chief JIM JOHNSON WAYNE G. CROOKSTON, JR., Attorney Phone (208) 888-4433 • FAX (208) 887-4813 Chairman -Planning & Zoning Public Works/Building Department (208) 887-2211 GRANT P. KINGSFORD Mayor TRANSMITTAL TO AGENCIES FOR COMMENTS ON DEVELOPME NT PROJECTS WITH THE CITY OF MERIDIAN To insure that your comments and recommendations will be considered by the Meridian City Council, please submit your comments and recommendations to Meridian City Hall, Attn: Will Berg, City Clerk by: _ February 14. 1995 TRANSMITTAL DATE: 1/30/95 HEARING DATE: 2/21/95 REQUEST: Variance request BY: _ Albertson's Inc. LOCATION OF PROPERTY OR PROJECT: Southwest corner of Cherry Lane and Ten Mile Road JIM JOHNSON, P/Z MOE ALIDJANI, P/Z JIM SHEARER, P/Z CHARLES ROUNTREE, P/Z TIM HEPPER, P/Z GRANT KINGSFORD, MAYOR RONALD TOLSMA, C/C BOB CORRIE, C/C WALT MORROW, C/C -MAX YERRINGTON, C/C -WATER DEPARTMENT -SEWER DEPARTMENT -BUILDING DEPARTMENT FIRE DEPARTMENT -POLICE DEPARTMENT -CITY ATTORNEY -CITY ENGINEER -CITY PLANNER MERIDIAN SCHOOL DISTRICT MERIDIAN POST OFFICE(PRELIM & FINAL PLAT) ADA COUNTY HIGHWAY DISTRICT ADA PLANNING ASSOCIATION CENTRAL DISTRICT HEALTH NAMPA MERIDIAN IRRIGATION DISTRICT SETTLERS IRRIGATION DISTRICT IDAHO POWER CO.(PRELIM 8~ FINAL PLAT) U.S. WEST(PRELIM & FINAL PLAT) INTERMOUNTAIN GAS(PRELIM & FINAL PLAT) BUREAU OF RECLAMATION(PRELIM & FINAL PLAT) CITY FILES OTHER: YOUR CONCISE REMARKS: u,atal ea West ~ East b ? iroa~ nd .~~ 1 wY Gp ~ ~. Q 161F~'Or t. lw.ssan 2 zaameka flRawpwl0r Q lfuntt r % n. 3 ~ a o. 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Ce1dRCYl yy r'4/( \ 5 6 \\ m 'Vcbn®Or s. 7 fl ~ £8 ~~ 'In 7. ,;.; T Ben ~ vt a ~ } , saes ~b!~ c` ~ € 30 55 ~ ,,_*y~. a ~' 8 ¢ 4 ~ G Po ~ OwAaaE fid I ~' .r OwAand Rd ~~ 'ri y h c ~ o- r & 5 ~ ~~'9l ¢ 6 ~ ~. p 6 ~~ ~ ~ Z Cr k3' a' V Mwa Re f ~ ~[ ~ 1 4 o 0® mile iii ~~aae a \ Hm y~ ~ 0 s ~ 7,Balx ~ ., S c a l e 5 ~ C'any Eanenar - r. x ~,iders6augh u ~ ~,,,~" a 69 - gPalYYU 91 ~ dEE 21NABIFarm ~,{ WeJe ~ East CNt~ VICINITY MAP • r PEOPLE WHO LISTEN DESIGN THAT SPEAKS January 30, 1995 Shari Stiles, Planning Director City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 RE: Meridian Variance Application January 13, 1995 Albertson's No. 180 SWC Cherry Lane and Ten Mile Road Meridian, Idaho Project No. 94160 Dear Shari: As you requested on January 27, 1995, we are submitting this letter as a written verification that we shall post the property at the southwest corner of Cherry Lane and Ten Mile Road in compliance with the variance application requirements. The site shall be posted with four (4) signs on February 14, 1995. Each sign shall contain information regarding the subject, date, time, and location of the Public Hearing before the City Council scheduled for February 21, 1995. Please. let us know if we need to take further action to meet the variance application requirements. If we may be of further assistance, please do not hesitate to call. Sincerely, CSHQA Architects/Planners Evelyn Grime pc: Scott Edens, Albertson's Inc. `~EI~TI~#~`[::~T1Q1~. -..~Qt~::~TH..:..._:;:~3~3.1~;>::[:I3AH1~:>:.:.37~2...~:.::. ~~8:::~4~:.;4C~~:.::*>:::.::...:: l' •; ~ •. 1 YIA MESSENGER ~~~ A1bBrtsons° September 20, 1994 s Pioneer Title Company Attn: David Sells 8151 West Rifleman Boise, Idaho 83704 •~ i~.c~ RE: Albertson's #01M0 -.Cherry Lane & Ten Mile Meridian, Idaho - Escrow No. 133702 Dear Mr. Sells: Pursuant to the Option to Purchase Real Properly dated September 9, 1994, between James W. Fuller and Lois Jean Fuller, husband and wife, and The Igo Company, an Idaho corporation which Option has been assigned to Albertson's as Assignee of Igo), we hereby deliver the sum of ~as set forth in paragraph 9 of the Option. You are instructed to invest the above-referenced~in an interest-bearing money market account with West One Bank for the benefit of Albertson's, Inc. a Delaware corporation. You are further instructed to release or otherwise deal with the above-referenced account only in accordance with further written instructions from Albertson's, Inc. Very truly yours, ALBERTSON'S, INC. ~ ~~~ .~i C. Lee Mumford Attorney clm/haj/PIONEERLTR Enclosure cc: Bob Banks Kevin Mortensen John Fitzgerald h ALBERTSON'S. INC. /GENERAL OFFICES / 250 PARKCENTER BLVD. /BOX 20 /BOISE. IDAHO 837261208-385-6200 ~~~~ ARCHITECTS/PLANNERS.: LETTER OF TRANSM'ITTA L Central Station - 200 N. 6th • Baise, Idaho 83702 • (2081 343-4635 • FAX (208) 343-1858 T0: Date: ~ 3~ qs Architect Job No.: ~ Z~ Job Name: L -~~ ,S d ~ L ~ ~ ~ PHONE: ~B - 3 FAX: 8 "j- c~~ ~ ~ Attention: En¢ os~res i cl de foil ~ : ^ Copy of Letter ^ Samples o Sho cDrawin s ^ Submittal Data ^ Change Order ^ Plansr Separate Cover ^ Specifications Via: ^ DHL ^ Fax ^ Prints ^ Fed-X ^ Other ^ UPS iar Mail Co ies Date, or No. Descri lion ~ A GD 6 ~ C G E - ~L a THESE ARE TRANSMITTED`AS CHECKED ;BELOW: ^ For Acceptance or Your Use As Requested ^ For Review and Comment ^ Furnish as Submitted ^ Furnish as Noted ^ Returned for Corrections ^ Re'ected-See Remarks ^ Resubmit Copies for Acceptance ^ Prints- Returned After ^ Submit -Copies for Distribution Loan To Us ^ Return -Corrected Prints ^ FOR BIDS DUE ^ Return PrlnLS After Use .REMARKS: L E ~ T Ignature ~ ~~ C E T e or rent ame Itle: cc: cc: Co ies for File Own r ~ Mail q enclosures are not as noted, k[ndty notdly us immedtate[y. • MERIDIAN CITY COUNCIL MEETING: FEBRUARY 21 1995 APPLICANT:. ALBERTSON'S INC ITEM NUMBER; 9 REQUEST; VARIANCE TO THE 20 FOOT PLANTING STRIP REQUIREMENT ~ ~/1e ~~~ a°~~ AGENCY CITY CLERK: CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY: CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: MERIDIAN SCHOOL DISTRICT: MERIDIAN POST OFFICE: ADA COUfdTY HIGHWAY DISTRICT: ADA COUNTY STREET NAME COMMITTEE: CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION; SETTLERS IRRIGATION: IDAHO POWER: US WEST. INTERMOUNTAIN GAS: BUREAU OF RECLAMATION: OTHER: COMMENTS "REVIEWED" SEE ATTACHED COMMENTS SEE AT ~J. G,~,~ ~~If ~ ~I ~~ y~, ~ ' ~/ TA D COMMENTS .~'~ . C~Op~I .~ BEFORE THE MERIDIAN CITY COUNCIL APPLICATION OF ALBERTSON'S INC. FOR VARIANCES FROM 11-9-605 M TILING OF DITCHES AND VARIANCE 11-9-605.G FROM 20 FOOT PLANTING STRIP FINDINGS OF FACT AND CONCLUSIONS The above entitled variance request having come on for consideration on February 21, 1995, at approximately 7:30 o'clock p.m. on said date, at the Meridian City Hall, 33 East Idaho Street, Meridian, Idaho, the Applicant's representative, Craig Slokum, appearing and the City Council having heard and taken oral and written testimony, the City Council of the City of Meridian makes the following: FINDINGS OF FACT 1. That notice of the public hearing on the variance was published for two consecutive weeks prior to the scheduled hearing for February 21, 1995, the first publication of which was fifteen (15) days .prior to said hearing; that the matter was duly considered at the February 21, 1995, hearing; that copies of all notices were available to newspaper, radio and television stations. 2. That notice of public hearing is required to be sent to property owners within 300 feet of the external boundaries of the land being considered pursuant to 11-2-416 E., 11-2-419 D., and 11- 9-612 B. l.b of the Revised and Compiled Ordinances of the City of Meridian; that his requirement has been met. 3. That Ordinance 11-9-605 M., PIPING OF DITCHES, requires FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 1 • I all irrigation ditches, laterals or canals, exclusive of natural waterways, intersecting, crossing or lying adjacent and contiguous, or which canals, ditches or laterals touch either or both sides of the area being subdivided, shall be covered and enclosed with tiling or other covering equivalent in ability to restrain access to said ditch, lateral or canal. 4. That the Applicant, Albertson's Inc., has requested that they be granted a variance from the above ditch piping requirements and be allowed not to pipe the Eight Mile Lateral. 5. That Craig Slokum testified that the property is bound by the Eight Mile Lateral along the southern edge; that the Nampa and Meridian Irrigation District retains rights to a 30' ditch easement on each side of the south property line; that the property is irregular, and restrictive; that the City granted a similar variance to Rod's Parkside Creek Subdivision No. 4; that the size and length of culvert necessary to the would impose a financial burden on the property owner. 6. That the entire property in question is described in the variance application and is incorporated herein as if set forth in full. 7. That the property in the area where the variance is requested is zoned C-N Neighborhood Commercial. 8. That the intended use of the property is to develop a neighborhood shopping center including an Albertson's grocery store with 6,000 square feet of adjacent retail shop space. 9. That the project will include landscaping, screening for FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 2 • equipment and trash compactors, concrete sidewalks, and paved areas for customer parking and delivery areas. Landscaping will occur within parking row-end planters, internal planters, a large screening buffer for the delivery service area, and perimeter buffering with expanded areas along Cherry Lane and Ten Mile Road to help create an attractive entrance corridor. 10. That the City previously granted a variance to this Ordinance for Rod's Parkside Creek Subdivision which is directly south of the Albertson parcel, not to the the Eight Mile Lateral. 11. That applicant also requests a variance to City Ordinance 11-9-605.G which requires a 20' wide planting strip next to incompatible features such as commercial and residential properties to screen the view from residential properties. That the Applicant's representative testified that the proposed project would provide more than the required 20 foot planting strip along the westerly property line; that along the southerly property line from Ten Mile Road to the corner of the proposed Albertson's store, a 10 foot wide planting strip is proposed; that along the remainder of the southerly property, two (2) triangular shaped planting strip are proposed, providing from 60 feet of planting to 0 feet of planting; that due to the Nampa Meridian Irrigation District ditch easement, the adjacent residential properties are provided with 60 foot of separation from the proposed commercial development in addition to the proposed planting strips; that the net planting strip/separation width from the residential property is a minimum of 60 feet and a maximum of 120 feet which are well in excess of FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 3 • the required 20 feet. 12. That Katie Brown testified that the Eight Mile Lateral which comes across into her property is being tiled now; that this canal should be completely tiled; that children are run off all summer long from playing there; that the lights from the parking lot will be in her bedroom and significantly impact her property value; that significant noise from Albertson's will effect her life and some sort of noise barrier needs to be present to protect the residents; that there needs to be a stop-light at Ten Mile and Cherry Lane; no other testimony was heard at the hearing. 13. That the City Engineer, Ada County Highway District, Nampa & Meridian Irrigation District, City Planning Director, or the Central District Health Department may submit comments and they shall be incorporated herein if submitted. 14. That a view of the property and the lots in Parkside Creek Subdivision #4 shows that there are no houses built, or being built, on the lots that abut the Eight Mile Lateral, but that the lots that do abut the Eight Mile Lateral could houses be within 25 to 50 feet of the Eight Mile Lateral. 15. That 11-2-410 B 3. states in part as follows: "Requirements for Non-Residential Uses Abutting Residential Districts - Screening and/or other buffer requirements, as stipulated by the Commission or Council, shall be provided." 16. That 11-2-410 C, SITE PLANNING REVIEW, states in part as follows: "In addition to any other requirements contained in this Zoning Ordinance or in the Subdivision Ordinance, the City in FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 4 • its discretion may require, as a condition of approval, that any use, development or construction have the plans, design, plat, specifications, drawings, actual construction, landscaping, etc,., reviewed and approved by the City. 17. That 11-2-413 B, PROVISIONS FOR COMMERCIAL AND INDUSTRIAL USES, 1., states in part as follows: "No land or building in any district shall be used or occupied in any manner creating dangerous, injurious, noxious, or otherwise objectionable conditions which could adversely affect the surrounding areas or adjoining premises except that any use permitted by this Ordinance may be undertaken and maintained if acceptable measures and safeguards to reduce dangerous and objectionable conditions to acceptable limits as established by the following performance requirements: c. Noise - Objectionable noise which is due to volume, frequency, or beat shall be muffled or otherwise controlled. Air-raid sirens and related apparatus used solely for public purposes are exempt from this requirement; f. .Glare - No direct or reflected glare shall be permitted which is visible from any property outside an industrial district or from any street; ." 18. That 11-9-605 J, FENCES 9., states as follows: "Subject to the other restrictions contained in this Section, 'Fences', the maximum fence heights in each zoning district shall be as follows: ZONE HEIGHT b. C-N, C-C, C-G and RSC, OT and MUR* 8.0 feet" 19. That 11-9-605 K, LINEAL OPEN SPACE CORRIDORS, states in part, as follows: "The extent and location of lands designed for linear open space corridors should be determined largely by natural features and, to a lesser extent, by man-made features such as utility easements, transportation rights-of-way or water rights-of-way. Landscaping, screening or lineal open space FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 5 • corridors may be required for the protection of residential properties from adjacent arterial streets, waterways, railroad rights-of-way or other features. As improved areas (landscaped), semi-improved areas (a landscaped pathway only) or unimproved areas (left in a natural, state), linear open space corridors serve: 4.. .To buffer more intensive adjacent urban land uses; . .' CONCLUSIONS 1. That all the procedural requirements of the Local Planning Act and of the Ordinances of the City of Meridian have been met including the mailing of notice to owners of property within 300 feet of the external boundaries of the Applicant's property. 2. That the City has authority to grant variances pursuant to Section 11-2-419 of the Zoning Ordinance and pursuant to Section 11-9-612 of the Development Ordinances. 3. That the City Council has judged this application by the guidelines, standards, criteria, and policies contained in the Subdivision and Development Ordinance upon which it may take judicial notice. 4. That the Council may take judicial notice of its own proceedings, those of the Commission, governmental statutes, ordinances, and policies, and of actual conditions existing within the City and the State. 5. That the following provision of Section 11-9-605 M, of PIPING OF DITCHES, of the Subdivision and Development Ordinance is noted which is pertinent to the Application: "All irrigation ditches, laterals or canals, exclusive of FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 6 i • natural waterways, intersection, crossing or lying adjacent and contiguous, or both sides of the area being subdivided, shall be covered and enclosed with tiling or other covering equivalent in ability to detour access to said ditch, lateral or canal. The City may waive this requirement for covering such ditch, lateral or canal, if it finds that the public purpose requiring such will not be served in the individual case. Any covering program involving the distribution system of any irrigation district shall have the prior approval of that affected district. ." 6. That the City Council has considered changing the Ordinances regarding the piping of large ditches and has directed that the Ordinance be changed so that if the the required to the the ditch is greater than 48 inches the ditch that it need not be tiled; that the Ordinance will be changed. 7. That the following provision of Section 11-9-605 G, of PLANTING STRIPS, of the Subdivision and Development Ordinance are noted which are pertinent to the Application: That Section 11-9-605 G 1. states as follows: "1. Planting strips shall be required to be placed next to incompatible features such as highways, railroads, commercial or industrial uses to screen the view from residential properties. Such screening shall be a minimum of twenty feet (20') wide, and shall not be a part of the normal street right of way or utility easement."; 8. That Section 11-9-605 H 2. states as follows: "Existing natural features which add value to residential development and enhance the attractiveness of the community (such as trees, watercourses, historic spots and similar irreplaceable amenities) shall be preserved in the design of the subdivision;" 9. That the specific requirements regarding a variance that must be evidenced and found by the City Council are as follows: "11-9-612 A. 2., FINDINGS: No variance shall be favorably acted upon by the Council unless there is a finding, as a FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 7 • • result of a public hearing, that all of the following exist: a. That there are such special circumstances or conditions affecting the property that the strict application of the provisions of this Ordinance would be ,clearly impracticable or unreasonable; in such cases, the subdivider shall first state his reasons in writing as to the specific provision or requirement involved; b. That strict compliance with the requirements of this Ordinance would result in extraordinary hardship to the subdivider because of unusual topography, the nature of condition of adjacent development, other physical conditions or other conditions that make strict compliance with this Ordinance unreasonable under the circumstances, or that the conditions and requirements.of this Ordinance will result in inhibiting t h e achievement or objectives of this Ordinance. c. That the granting of the specified variance will be detrimental to the public welfare or injurious to other property in the area in which the property is situated; d. That such variance will not violate the provisions of the Idaho code; and e. .That such variance will not have the effect of nullifying the interest and purpose of this Ordinance and the Comprehensive Development Plan. 10. That there does appear to be a specific benefit or profit, economic .gain or convenience to the Applicant if the variance of the ditch tiling is granted; however, to require tiling of the ditch would cause extreme hardship to Applicant. 11. That the requirement of tiling ditches is a health and safety requirement; that by reason of the size of this ditch, it appears that to require tiling of this ditch would not achieve the safety purpose for which tiling is required in the Ordinance. 12. That the irrigation district affected has not demanded that this ditch be tiled. 13. That regarding Section 11-9-612 A. 2., regarding the FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 8 • variance of tiling of ditches, it is specifically concluded as follows: a. That there are special circumstances or conditions affecting the property that the strict application of the provisions of the ditch tiling Ordinance would clearly be unreasonable. b. That strict compliance with the requirements of this ditch tiling Ordinance would result in extraordinary hardship to the Applicant. c. That the granting of a variance would not be detrimental to the public's welfare and possible injurious to the public. d. That the variance would not have the effect of altering the interests and purposes of the ditch tiling Ordinance which, is included in the Subdivision and Development Ordinance for safety purposes. 13. That since the piping of the ditches is not going to be required, other safety measures must be undertaken to assist the health, safety, and welfare of the people of this City; that it is concluded that the Applicant shall fence the ditch in a fashion that will be in accordance with the plan submitted under the provisions of the planting strip variance. 14. That in regards to the Application for a variance from the 11-9-605 G. PLANTING STRIPS AND RESERVE STRIPS, it is concluded as follows in the Conclusions below. 15. That 11-9-605 G 1, requires that planting strips be placed next to incompatible features such as commercial uses to .screen the view from residential properties, and because the houses will be so close to the Albertson property and the store, it makes complete sense that a planting strip be required. FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 9 • 16. That there is limited distance from the boundary of the south boundary of the store property to the houses in Parkside Creel Subdivision # 4 and there apparently will be limited distance from the store to the south, boundary; that a twenty foot planting strip, depending on what was placed in the planting strip, would likely not provide a sufficient land width to provide an effective screening or buffering from the likely impacts of the store, including light, noise, and glare, and the truck traffic going to and from the store. 17. Applicant put forth no plan, and did not testify as to a plan, when asked how the impact from the store on the houses, that would be in Parkside Creek #4 Subdivision, would be mitigated. 18. That it is concluded that if the Variance were denied the Applicant may not provide efficient and useful plants that would provide a sufficient screen and buffer to protect the houses and people in Parkside Creek; that it may be more practical to grant the variance and provide for requirements that would, hopefully, provide adequate screening and buffering. 19. That regarding Section 11-9-612 A. 2., regarding the variance of PLANTING STRIP requirement, it is specifically concluded as follows: a. That there are special circumstances or conditions affecting the property that the strict application of the provisions of the planting strip Ordinance would clearly be unreasonable, as to only have a twenty foot planting strip may not be sufficient to buffer and screen the houses to the south. b. That strict compliance with the requirements of this ditch tiling Ordinance would not likely result in FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 10 • extraordinary hardship to the Applicant but it may cause extraordinary hardship to the residents of Parkside Creek Subdivision. c. That the granting of a variance would not be. detrimental to the public's welfare and possible injurious to the public so long as the Applicant meets the requirements placed on the granting of the variance. d. That the variance would not have the effect of altering the interests and purposes of the Planting Strip Ordinance if the Applicant meets the requirements and conditions for receiving the variance. 20. That 11-2-410 C, SITE PLANNING REVIEW, states in part as follows: "In addition to any other requirements contained in this Zoning Ordinance or in the Subdivision Ordinance, the City in its discretion may require, as a condition of approval, that any use, development or construction have the plans, design, plat, specifications, drawings, actual construction, landscaping, etc., reviewed and approved by the City." 21. It is further concluded that there should not be a total variance of the 11-9-605 G, but a variance that allows the Applicant to not meet the full twenty feet requirement, but as a quid pro quo, that the Applicant provide sufficient screening, buffering and landscaping to protect the houses, and people that will eventually reside in Parkside Creek. 22. That it is concluded that the Variance should be granted; that since 11-2-413 B, PROVISIONS FOR COMMERCIAL AND INDUSTRIAL USES, 1., states that no land or building shall be used or occupied in any manner creating dangerous, injurious, noxious, or otherwise objectionable conditions which could adversely affect the surrounding areas or adjoining premises except that any use permitted by this Ordinance may be undertaken and maintained if FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 11 acceptable measures and safeguards to reduce dangerous and objectionable conditions to acceptable limits, it is concluded that the Applicant shall submit a landscape, screen and buffer plan to the Planning and Zoning Administrator showing how the Applicant proposes to provide screening and buffering for the homes that are, and will be, in Parkside Creek; that the plan may show less than a twenty foot strip but it must show that there will be sufficient screening and buffering for Parkside Creek, which should include a S/zQ// block or masonry wall; that the plan ~ be submitted to the Council if the Planning and Zoning Administrator believes that it should be approved by the Council. 23. That if the Applicant is in agreement with these Findings of Fact and Conclusions of Law and the Decision, it shall submit the required plan to the Planning and Zoning Administrator as soon as possible; if the Applicant is not in agreement the Application shall be deemed denied; that if the Applicant is not in Agreement it shall submit a letter so informing the City within ten (10) days of March 7, 1994. FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 12 • APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS The City Council of the City of Meridian does hereby adopt and approve these Findings of Fact and Conclusions. ROLL CALL: COUNCILMAN YERRINGTON VOTED COUNCILMAN MORROW VOTED_G~~ COUNCILMAN CORRIE VOTED COUNCILMAN TOLSMA VOTED MAYOR KINGSFORD (TIE BREAKER) VOTED DECISION That it is decided the Application for a variance from 11-9- 605 M is granted under the conditions stated herein; that the variance of the Planting Strip shall be granted under the conditions stated herein, if the Applicant agrees with these Findings and Conclusions and submits the required plan; that if the Applicant. is not in agreement and submits a letter so stating, this variance is deemed denied. APPROVED• DISAPPROVED: FINDINGS OF FACT & CONCLUSIONS OF LAW - Page 13 • • Meridian City Council February 21, 1995 Page 15 have always added Ada County, Idaho. Kingsford: I just had a problem with the double Meridian. ITEM #9: PUBLIC HEARING: REQUEST FOR A VARIANCE TO THE 20 FOOT PLANTING STRIP REQUIREMENT BY ALBERTSON'S, INC.: Kingsford: At this time I will open that public hearing and invite the owner or his designee to speak first. Craig Slokum, 2581 West Linden, Boise, was sworn by the City Attorney. Slokum: Mayor and Councilmen, Craig Slokum with CSHQA Architects representing the applicant Albertson's Inc. The applicant is requesting a variance from the City Ordinance to the the Eight Mile Lateral which is the southem boundary of this property. They request this variance based on similar variance being granted to the property directly to the south, Rod's Parkside Creek. We also, the applicant requests a variance to the City ordinance which requires the 20 foot planting strip adjacent to residential properties. The conceptual plan that we have worked with Shari Stiles of Planning and Zoning and Gary Smith of Public Works, it has been conceptually approved by the City. It calls for adequate planting strip to be provided along the western property line. However, along the southern property line where the Eight Mile Lateral exists we are proposing to provide 10 feet for about half the distance of the property. In 2 locations it would be 0 feet from the easement which exists for the lateral. I guess I should explain that in fact we are providing more than 30 feet from our property line but are unable to plant it short of reaching an agreement of Nampa Meridian Irrigation District to provide landscaping in their easement which wouldn't allow us to put in trees or shrubs anyway as they are required to get in there to service that ditch. I think the plan provides more than adequate landscaping along that southerly property line there are areas where there is in excess of 50 feet of landscaping. I think the ordinance is in place to provide a buffer from the residential and the existing easement that goes along with that Eight Mile Lateral provides 60 feet of buffering from the residential as it exists. (End of Tape) That is what we are requesting tonight, thank you. Kingsford: Mr. Berg, all we have in our packet is a variance request for the landscape strip, was that what was accomplished? The tiling issue was at least not in my packet. (Inaudible) Morrow. There are 2 variances that they are requesting, but one is on our agenda and that is the 20 foot planting strip. • Meridian City Council February 21, 1995 Page 16 • Kingsford: Counselor, jog my memory, are we still tiling all ditches, that is larger than a 48 and it has been our policy to grant a variance on that. Did that not get changed? Crookston: It hasn't been changed because we are still in the process of changing our entire zoning and subdivision development ordinances. Tolsma: (Inaudible) Crookston: It has been granted to Rod's Parkside Creek. Kingsford: What about the fact that we haven't noticed that then for this evening. Crookston: If it has not been noticed then you can't act on it. Slokum: Both applications for variance were submitted on one application. (Inaudible) Kingsford: So it was on the notice that was sent out. We just don't have the information everybody else does, that is usually the case. Any questions for Craig? Morrow. My question would be on the southern property line between Parkside Creek and this parcel of property, even though there is approximately 60 feet, is that not all flat? There is no berm or anything to deflect sound, light, noise and that kind of thing from that subdivision? Slokum: It is flat with the ditch in the middle. Morrow. I understand that, and you are proposing not to buffer in anyway other than some small amount of trees and then nothing else to further isolate this commercial entity from this subdivision. Slokum: There would be 60 feet of distance and then for a great more than half of it there is over 20 feet, then there is a distance from the rear comer of Albertson's to Ten Mile that we have proposed 10 feet, so you have 70 feet of a distance from the residential property, 10 of #hat being landscape screening. Within 10 feet you can provide trees, the site you can provide in 20 feet. Morrow. My question is how are you protecting the subdivision from noise, light and other types of things that impact a subdivision? • • Meridian City Council February 21, 1995 Page 17 Slokum: City ordinance requires us to not have lights. Morrow. Trucks have lights and trucks have diesel engines, those things all make noise. I guess my point here Mr. Slokum is if you are going to be a good neighbor to an already existing subdivision let's be a good neighbor, how are you going to protect those folk from the in and out of the everyday business. Albertson's runs night freight crews many times those deliveries are made at night. And certainly those folk have every right to have a peaceful sleep, so how do you mitigate that noise? Slokum: I think between the screening that we proposed as well as the distance if we if Albertson's chose to the the ditch we could certainly move that building far closer to that property than we are proposed. We feel that not tiling it and bringing the building farther back will in fact provide more sound buffering than 10 additional feet of landscaping. Morrow. I have no further questions. Tolsma: Isn't that also where the trash compactor and everything sits back there, (inaudible)? Slokum: It is. Tolsma: And then the trash truck (inaudible) Slokum: They will, the typical trash compactor, if I am not mistaken operates one time a day. Tolsma: But that also is early in the morning and very late in the evening. A lot of times when most deliveries are made. Slokum: I don't, Scott do you know on delivery times? (Inaudible) Corrie: Mr. Mayor, following Councilman MorrovV's thinking, we have got with another chain that is going in another place, people were quite concerned with the noise. I am pretty sure the people in this other area are going to be concerned about it too. tf we don't have some buffering in there other than just 70 feet and some trees, I don't think that is going to cut it. They are going to come back and say why not something to cut that noise down, the trucks. And I am thinking the same way he is, just because you have 70 foot of space there and a ditch that is not going to stop the noise from going through, you need something to buffer that, whether it is a mound or whatever you want to do. So I would • Meridian City Council February 21, 1995 Page 18 really suggest you go back and put a planting strip in there some kind of buffer zone rather than just 70 foot of space. I would like to see you do that. Kingsford: Anyone else? So that I am clear again Craig, you are talking about 20 feet for most of the way, 10 feet for some of the way and did I not hear you say that there wouldn't be any planting at that 2 intervals? Slokum: At one particular spot where the Albertson's building very closely abuts the 30 foot easement. Kingsford: The southwest corner of that. And so that would be close enough that there wouldn't be trucks logically going around there. Slokum: There is no access provided completely around the back of Albertson's. Which if we tiled the ditch would be an option. The configuration and size of the site without tiling the ditch doesn't allow that. Kingsford: Any other questions? Anyone else from the public? Katy Brown, 3459 Sugar Creek Drive, was sworn by the City Attorney. Brown: Our property is on Sugar Creek, we back up directly across the Eight Mile Lateral that comes across into our property which is being tiled now. Number 1 this canal should be tiled completely because there is nothing but children playing in it all summer long. We have had the police out and everything else chasing them out of our canals because I don't want the liability. Number 2, the things with the lights in that parking lot are going to be in my bedroom window and I do oppose that. When the road was put in and they started widening the road they did a noise impact on our property because our house and neighbors house is elevated. They said at the time they widen the road we would not have a significant noise impact. You put an Albertson's there I am going to have a significant noise impact. The trucks coming and going, the lights in the parking lot are not going to do anything for my property value, I am sorry there needs to be something more done. These canals need to be tiled, there needs to be a stop light on Ten Mile that at the time they told us that they were widening this road it would be at least another year and a half from the time the road is completed before the stop light was put in on that intersection. That needs to be addressed also. We didn't know anything about these even going in until I received this letter in the mail last week. 1 am opposed to it being there if there is not going to be some kind of a noise barrier put in on our properties and something to do about the traffic and the lights. Kingsford: Katy, so that 1 am clear, you are across Cherry Lane? ,- • Meridian City Council February 21, 1995 Page 19 C~ Brown: We are across the street, the canals come over onto our property and go across the golf course. Kingsford: Thank you, anyone else from the public? Seeing no one I will close the public hearing. I would assume that we need to have findings. Corrie: Mr. Mayor, one quick question, are you saying you would the that ditch? (Inaudible) Corrie: You are requesting to not the it? Thank you Kingsford: I assume that we need to have findings Counselor? Entertain a motion to that effect. Corrie: So moved Morrow. Second Kingsford: Moved by Bob, second by Walt to have findings of fact and conclusions of law prepared, all those in favor? Opposed? MOTION CARRIED: All Yea ITEM #10: PUBLIC HEARING: REQUEST FOR A VARIANCE TO THE 20 FOOT LOT SQUARE FOOTAGE FOR LOT 12, BLOCK 12 OF THE LANDING NO. 7 BY SKYLINE DEVELOPMENT: Kingsford: At this time I will open the public hearing and invite the owner or his designee to speak first. Tucker Johnson, 5635 North Eagle Road, was sworn by the City Attorney. Johnson: This request comes after working with Shari Stiles on staff. From my perspective this is the current events that transpired, back when we annexed this property into the City and then we proceeded with the preliminary plat. The preliminary plat was approved without any reference to or comments about block length. The preliminary plat was approved essentially as you see it on the current plat. Then when the final plat came through it was approved without any comments from staff regarding that issue. So we proceeded fonnrard and in the process of signing the plat that is where the issue came up about block length. Wayne Forrey, who I have been in discussion with was the original ..~ Meridian City Council March 7, 1995 Page 3 Kingsford: Has the Council reviewed that information? That issue again was the tiling of the ditch. Morrow: Mr. Mayor I would move that we adopt the findings of fact and conclusions of law as written. Tolsma: Second Kingsford: Moved by Walt, second by Ron to approve of the findings of fact and conclusions of law as written for the variance request by the The Landing No. 7, roll call vote. ROLL CALL VOTE: Morrow -Yea, Yerrington -Yea, Corrie -Yea, Tolsma -Yea MOTION CARRIED: All Yea Kingsford: Is there a motion on the decision? Corrie: Mr. Mayor, I move that the decision, that the application for the variance of 11-9- 605M is denied. Yerrington: Second, Kingsford: Moved by Bob, second by Max to approve of the decision denying the variance, all those in favor? Opposed? MOTION CARRIED: All Yea ITEM #5: FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR A VARIANCE REQUEST FOR ALBERTSON'S, INC.: Kingsford: This is a variance on the width of the landscaping and the tiling of the ditch. Is Council prepared on those findings? Morrow: Mr. Mayor I would like some discussion on the findings. We have a combination of the findings here with respect to the piping of the ditch and the landscaping issues. I think that the piping of the ditch is fine because we had granted that same variance to Parkside Creek. On the last page of the conclusions it says that the plan may be and we are talking now here about the landscaping plan and the buffers, it says that the plan may be submitted to the Council if the Planning and Zoning Administrator believes that it should be approved by the Council. I think my preference there would be to give (inaudible) after - * i • Meridian City Council March 7, 1995 Page 4 looking at the site, after Wally Lovan's comments that there were some potential changes in that ground configuration that would further expose more of those homes to this particular shopping center and given the fact that with the Avest properties we will be requiring substantial buffering it appears to me that I would like that to say that the plan shall be submitted to the City Council for our approval in its final form. (Inaudible) dealing with these other issues but also as a ,means of supporting not only the neighbors but our (inaudible). Kingsford: Further discussion? Tolsma: I agree with Walt wholeheartedly. Morrow: I would like to put the motion on the table then to change the wording from the plan may be submitted to the plan shall be submitted. Corrie: Second Kingsford: ,Moved by Walt, second by Bob to amend the findings to include then the plan may be to the plan shall be submitted for review, that is item #22 the next to the last line, all those in favor? Opposed? MOTION CARRIED: All Yea Kingsford: Is there a motion then on the rest of the findings? Morrow: I move we adopt the findings of fact and conclusions of law with the change that has been noted. Yerrington: Second Kingsford: Moved by Walt, second by Max to approve of the amended findings of fact and conclusions of law, roll call vote. ROLL CALL VOTE: Yerrington -Yea, Morrow -Yea, Corrie -Yea, Tolsma -Yea MOTION CARRIED: All Yea Kingsford: Is there a motion on the decision? Tolsma: Mr. Mayor I would move that we approve the decision that was written on the findings of fact that it is decided the application for a variance from 11-9-605M is granted - • • Meridian City Council March 7, 1995 Page 5 under the conditions stated herein, that the variance of the planting strip shall be granted under the conditions stated herein. If the applicant agrees with these findings and conclusions and submits the required plan that if the applicant is not in agreement and submits a letter so stating this variance is denied. Kingsford: Is there a second? Yerrington: Second Kingsford: Moved by Ron, second by Max to approve the decision, all those in favor? Opposed? MOTION CARRIED: All Yea ITEM #6: FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR A VARIANCE REQUEST FOR THE LANDING NO. 7 BY SKYLINE DEVELOPMENT: Morrow: Mr. Mayor I would move that we adopt the findings of fact and conclusions of law as written. Tolsma: Second Kingsford: Moved by Walt, second by Ron to approve the findings of fact and conclusions of law as written for the variance request for the Landing No. 7 by Skyline Development, roll call vote. ROLL CALL VOTE: Morrow -Yea, Corrie -Yea, Yerrington -Yea, Tolsma -Yea MOTION CARRIED: All Yea Kingsford: Is there a motion on the decision? Corrie: Mr. Mayor, I move that we approve the decision as stated, that it is hereby decided that the variance request to allow one lot in the R-8 subdivision not to be 8,000 square feet is approved but the applicant shall place the pedestrian pathway adjacent to the lot 12, Block 12 of the Landing Subdivision No. 7 and shall meet the ordinance requirements for the pathway. Tolsma: Second Kingsford: Moved by Bob, second by Ron to approve the decision, all those in favor? ,~ ~~ . ~e OIMOKOP.DOC ~ #0~~.10 -Cherry Lane & 9/2/94 8:56 AM Ten Mile Meridian, Idaho OPTION TO PURCHASE REAL PROPERTY THIS OPTION TO PURCHASE REAL PROPERTY, made and entered into this ~~ day of ~ 1994, by and between JAItIES W. FULLER and LOIS JEAN FULLER, husband and wife, herein after referred to as "FULLERS" and THE IGO COMPANY, an Idaho corporation, or its assigns, hereinafter referred to as "IGO"; (for the purposes of this Option when the term "IGO" is used it shall also mean the "Assignee of IGO"); WITNESSETH: That for and in consideration of the payment of TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) herein paid by IGO to Pioneer Title Company of Ada County, and the same to be paid to FULLERS as set forth below; and in consideration that, within five (5) days after the right of first refusal has terminated as set forth in Section (a) below IGO will place the additional sum o with Pioneer Title Company of Ada County as set forth in detail below; and also based upon the mutual promises and valuable consideration received by FULLERS from IGO; FULLERS grant to IGO the Option to purchase the following described real property: A parcel in the Northeast 1/4 Northeast 1/4 of Section 10, Township 3 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho described as follows: commencing at the Northeast corner of said Section 10; thence, s_ North 89' 16'54" West, (formally North 89°41'38" West per deed recorded as Instrument No. 8351286 in the Ada County Recorder's Office) 530.00 feet along the northerly line of said Section 10; thence, South 0(P 43'06" West (South 00' 18'22" West) 49.34 feet along the easterly line of ~' i:~id deed to the POINT OF BEGINi'~TNG; thence, OPTION TO I'I.?RCHASE REAL PROPERTY Page 1 s r ~ South 88°08'56" East, 227.29 feet along the proposed new southerly sideline of Cherry Lane; thence, South 88°42'45" East, 228.53 feet along said new sideline; thence, South 44°08'58" East, 42.10 feet to a point in the proposed new westerly sideline of North Ten Mile Road; thence, South 00°24'46" West, 215.64 feet along said new westerly sideline of North Ten Mile Road, being along a line parallel with and 45.00 feet west of the easterly line of said Section 10; thence, South 04°46'12" East, 221.41 feet along said new westerly sideline to a point in the original westerly sideline of said North Ten Mile Road; thence, South 00°24'46" West, 432.59 feet along said original westerly sideline parallel with and 25.00 feet west of said easterly section line; thence, North 41°01'46" West, 766.08 feet along a ditch to the southeast corner of said Deed Instrument No. 8351286; thence, North 00'43'06" East, (North 00' 18'22" East) 333.66 feet along the easterly line of said deed to the POINT OF BEGINNING. LESS property sold to the Ada County Highway District for road purposes. This description was written using recorded documents and maps and not from an actual survey. The ditch line above mentioned is a line scaled from an aerial photograph and should be considered approximate only; the basis for bearings of this description is the plans for Cherry Lane prepared by CH2M Hill for the Ada County Highway District. - under the following terms and conditions and subject to a right of first refusal as hereinafter defined: a. The Option period herein shall commence on the date.. hereof and shall ~_extend one hundred eighty (180) days from the date FULLERS notify IGO in writing that ~~ ~ ~' the "right of first refusal" relating to and existing on this property has been waived in ,•,~:~ writing by L&R Sales, a general partnership. Said "right of first refusal" is set forth in more ~`^ detail below. FULLERS shall promptly present to L&R Sales the terms of the offer between FULLERS and IGO, and shall notify IGO in writing within five (5) days after a determination a^, to whether the right of first refusal was accepted, refused or otherwise terminated (here~l~f+,er: "First: Refusal Termittation Nottce"). 1 OPTION TO PURCHASE RI?Az. PROPERTY -Page 2 ~ ~ IGO may extend this Option for an additional ninety (90) day period. This extension may be obtained by paying an additional TEN THOUSAND AND NO/ 100 DOLLARS ($10,000.00) prior to the expiration of the initial term of this Option. Any such extension shall be in writing and be accompanied by a cashiers or ban]: check in • the above-referenced sum. Failure to exercise the Option or the extension before expiration shall render this document null and void and FULLERS shall be under no duty, either legal or equitable, to continue to deal with IGO and FULLERS shall be free to deal with any other party free and clear of any claim by IGO. _ h. Pi~rchasc Price: Tl~e purchase price of the above described property shall be cash upon closing. IGO shall receive credit at the time of closing for any monies delivered to FULLERS by Pioneer Title Company of Ada County prior to closing and as provided herein. The parties hereto recognize and agree that this legal description is based upon information available to them at the time that this Option is executed and that the final legal description may be different. c. Exercise of Option: IGO, may at anytime during the Option period exercise this Option. This Option may be exercised orily in writing. IGO shall notify FULLERS in writing of its desire to exercise the Option and in doing so shall give FULLERS at least, ten (10) business days notice before the "actual" exercise or closing date. This writing to FULLERS shal] be mailed by certified mail, addressed to FULLERS at the address set forth in this Option or may be hand-delivered, in which case IGO shall obtain a written receipt. d. Closing: FULLERS and IGO agree that Pioneer Title Company of Ada County shall be the closing agent for this transaction. Upon mailing or delivery of the notice that the Option is being exercised, each party agrees to deliver to the closing agent all documents, funds and closing instructions needed to close the transaction. Closing shall take place within thirty (30) days of the date the Option is exercised. Each party shall share equally the cost of the closing agent. e. Title Insurance: IGO may, at any time after the First Refusal Termination Notice, order and obtain a commitment for a standard owner's policy covering the Option property. In the event the Option is exercised and the transaction closes, FULLERS agree to pay the cost of a Standard Owner's Policy. Any additional coverage desired by IGO Shall be at IGO's expense. In the event that IGO obtains the commitment for a standard owner's policy but the transaction does not close, then IGO shall be responsible for the cancellation fee. '~ OPTION TO PURCHASE REAL i?ROPERTY -Page 3 ~ ~ Further, in the event that exceptions exist in said title commitment, other than the normal standard exceptions to title reports in Ada County, Idaho, IGO shall notify FULLERS of these exceptions (other than the aforementioned standard exceptions) or objections to the commitment and FULLERS agree to act in good faith to remove said exceptions and/or to instruct the closing agent, at time of closing, to expend such funds as needed to remove said exemptions. Failure by FULLERS to remedy such matters shall result in a refund to IGO of any and all funds-paid to FULLERS or the Escrow Agent notwithstanding anything to the contrary set forth in this Option. FULLERS represent to IGO that they own the property in fee simple, including all mineral rights and that the property is free and clear of all liens, mortgages and deeds of trust, and the title to said real property is clear, excepting real property taxes, and water ~assessments~~vhich are not yet due but are liens upon the property. FULLERS ~urther represent that during the term of this Option they shall not cause any encumbrances, liens or other obligations to be placed upon said property as the result of any of their acts. f. Deed: The property shall be conveyed by Warranty Deed and shall be free and clear of all encumbrances other than those shown upon the final title policy as accepted by IGO. g. Proration of Taxes: Any and all taxes for real property, water assessments or assessments shown of record shall be prorated as of the date of closing. h. Possession: IGO shall be entitled to possession as of the date of closing. i. Default: In the event either party shall fail to honor the terms and conditions of this Option, the non-defaulting party shall be entitled to take any action needed to enforce this Agreement and to seek any remedy, either legal or equitable, to enforce the same. Further, the non-defaulting party shall be entitled to reasonable attorney fees and costs incurred in enforcing this Agreement, regardless of whether formal legal action is instituted. This provision shall be enforceable regardless of whether this Agreement is executory or not. This provision shall cover all of this Option, including that section denoted as "GENERAL PROVISIONS RELATING TO OPTION." j. Assignment: This Option may not be assigned by IGO except as provided in Paragraph 1 of "GENERAL PROVISIONS RELATING TO OPTION." k. Notices: Any and all notices required or sent pursuant to this Option shall be sent to the following: FULLERS: Mr. & Mrs. James W~. ~~u!ler 1635 N. Ten Mile Road Meridian, ID 83642 OPTION TO PURCHASE REAL PROPERTY -Page 5 ~ ~ Photocopy to their attorney: John O. Fitzgerald Ambrose, Fitzgerald & Crookston P.O. Box 427 Meridian, ID 83680 IGO: The IGO Company 1088 North Cole Road Boise, ID 83704 GENERAL PROVISIONS RELATING TO OPTION 1. This Option is granted to the IGO Company or its assigns. By this provision IGO has the right to assign this Option once and said assignment shall take place on or before the expiration of five (5) days of the receipt by IGO of the notice of termination of the "right of first refusal" by L&R Sales. The assignee, at the time of execution of this Option is known to IGO but not to FULLERS. At the time of the a.SSignment, IGO shall notify FULLERS in writing who the assignee is and shall provide FULLERS the form for the assignment document, and FULLERS shall have three (3) days after being informed to cancel this Option. Failure by FULLERS to notify IGO within three (3) days, as set forth above, shall constitute a full waiver on the part of FULLERS to exercise their right to cancel the Option and shall be the same as a full acceptance of the assignee by FULLERS. FULLERS agree, upon being informed of the assignee, that they shall keep this information confidential. Any public disclosure shall be made by the assignee (or its agents) only. IGO may assign this Option once, and thereafter neither IGO nor the assignee shall have any rights of further assignment or sale during this Option. 2. At the time of execution of this Agreement, the parties hereto acknowledge that FULLERS have previously granted to L&R Sales, a general partnership, a "right of first refusal." Upon the execution of this Option, FULLERS are obligated to offer this same property to L&R Sales under the same terms and conditions of this Option, and FULLERS agree with IGO to do so within five (5) working days after execution of this Option. If L&R Sales elects to exercise its right then this Agreement shall be null and void and neither party hereto shall be under any further obligation to the other. Additionally, any funds or monies paid by IGO to Pioneer Title Company of Ada County shall be refunded in full. IGO shall be responsible for any charges by Pioneer Title Company of \ Ada County. OPTION TO PURCHASE REAL PROPERTY -Page S ~ ~~ 3. The first TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) Option money paid herein shall be deposited with Pioneer Title Company of Ada County. From the date of IGO's receipt of the First Refusal Termination Notice until the sixtieth (60th) day thereafter, said funds shall be held by Pioneer Title Company of Ada County. On the sixty-first (61st) day following receipt of the First Refusal Termination Notice, and each thirty (30) day period thereafter, during the initial term of this Option, Pioneer Title Company of Ada County shall remit to FULLERS the sum of TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00). All monies delivered to FULLERS under this Section 3 shall be non-refundable except in the event of default by FULLERS, and all such money not so delivered shall be returned to IGO in the event that the Option is not exercised. In the event that the Option is exercised and the transaction closes these monies shall be a credit towards the total purchase price. IGO shall pay all of Pioneer Title Company's costs incurred in making the disbursements required by this Section 3. 4. In the event the extension of this Option referred to in the second paragraph - of Section (a) above is requested by IGO and the additional TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) is paid, this money shall be immediately remitted to FULLERS. All monies delivered to FULLERS under this Section 4 shall be non-refundable in the event that the Option is not exercised or the transaction does not close, except in the event of default by FULLERS. Further, in the event the Option is exercised and the transaction closes, these monies shall be a credit towards the total purchase price. 5. IGO shall have the right at any time during the Option period or the extension thereof to notify FULLERS and Pioneer Title Company that IGO has elected not to proceed with the transaction. In that event, all monies not paid to FULLERS and still held by Pioneer Title Company of Ada County shall be refunded by Pioneer Title Company of Ada County to IGO. 6. IGO represents that it may be necessary to obtain a ENVIRONMENTAL RISK STUDY or other related hazardous waste study done on the property. The study(ies) shall be at the full expense and obligation of IGO and in no event shall FULLERS have any responsibility for said expense. The results of any and all tests performed under this provision shall be delivered to FULLERS for their information and review and in the event that IGO elects to cancel this Option the tests shall belong to FULT_ERS and become the property of the FULLERS who may use them in future transactions. It will be necessary for IGO, its agents, subcontractors, representatives, and invitees, to be allowed upon the property to conduct necessary investigations, surveys, soil analyses and other required tests and studies, which are or may be required by regulatory agencies -'- having proper jurisdiction. FULI:ERS agree to allow the abode-referenced individuals and parties to enter upon the property during the Option period for the ab~~~e purposes. However, it is expressly understood that IGO assumes all responsibility for the costs and -- OPTION TO PURCHASE REAL PROPERTY -Page 6 ~ ~~ d. IGO I~erel~y expressly acknowledges and agrees that IGO, at the time of closing will have been given the opportunity to thoroughly inspect and examine the Property to the extent deemed necessary by 1G0 in order to enable IGO to eval~iate the purchase of the Property. IGO }~erehy further acknowledges and agrees that IGO will rely solely upon the inspection, examination, and evaluation of the Property by IGO and that IGO is purchasing the Property on "as is," "where is" and "with all faults" basis, without representations (other than the express limited representations set forth in this Agreement), warranties and covenants, express or implied, of any kind of nature. IGO also hereby expressly acknowledges and agrees that FULLERS have made no representations or warranties of any kind or nature with respect to any soils report, Phase I Environmental Assessment Report, asbestos reports or other reports. e. To the extent the provisions of these Sections 6(a) - (d) limit IGO's recourse _ or remedies concerning the existence of Hazardous Materials and/or other matters, such limitations shall apply only against FULLERS and not against any predecessor in title to the subject property or any other Third Party. THE ABOVE SECTIONS 6~a) - (e) SPECIFICALLY SURVIVE THE CLOSING OF THIS TRANSACTION. 7. FULLERS herein make no representations as to zoning, access to utilities, or other services as it relates to the intended use of IGO. FULLERS have informed IGO of their hest knowledge of the current zoning and other matters but it shall he the responsihility of IGO to determine all of these matters to its satisfaction. Further, FULLERS make no representations as to governmental entity ohligations other than those shown of record. IGO assumes the full responsibility for determining whether the option property herein is satisfactory for its intended use as well as all governmental approvals, if for no other reason, FULLERS do not know the intended use. In this regard, both FULLERS and IGO, acknowledge that it will be necessary for IGO to obtain a conditional use permit and/or related approvals from the governmental authorities. FULLERS agree to cooperate with IGO in obtaining said permits and related approvals. 8. FULLERS and IGO agree that neither shall encumber the property while this Option is in existence. 9. As additional consideration and as GOOD FAITH, IGO shall deposit with Pioneer Title Company of Ada County within five (5) days after receipt of notice of the First Refusal Termination Notice, in an escrow account separate from the transaction account, the gum o This money shall remain in said account until either the Option is exercised and the transactic.~n is closed or until such time as IGO notifies the FULLERS of its intent OPTION TO PURC)-LASE REAL PROPERTY -Page 9 !~ OIMOKAAO.DOC ~0 M - 1 O Cherry Lane & 09/15/94 2:58 PM Ten Mile Meridian, Idaho ASSIGNMENT AND ASSUMPTION OF OPTION TO PURCHASE REAL PROPERTY This Assignment and Assumption of Option to Purchase Real Property ("Assignment") is made as of this /S day of _ `'~~~s'Y~~~ 1994, by and between The Igo Company, an Idaho corporation ("Assignor"), and Albertson's, Inc., a Delaware corporation ("Assignee"). AGREEMENTS: For consideration in the amount of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title, interest' and estate in and to that certain Option to Purchase Real Property made and entered into the `~ day of ~~n ~~,.~ 6 er , 1994, by and between James W. Fuller and Lois Jean Fuller, husband and wife, and The Igo Company, an Idaho corporation, a copy of which is attached hereto as Exhibit "A" and by this reference incorporated herein. 2. Assignee hereby assumes and agrees to perform from and after the date of this assignment all of Assignor's obligations under said Option to Purchase Real, Property to the same extent as if the Assignee were named therein as The Igo Company. ' 3. In the~event any party to this Assignment is required to initiate or defend litigation in order to enforce the terms of this Assignment, the prevailing party in any such action or pFOCeeding shall be` entitled to recover its reasonable costs and attorney's fees as determined by the court. IN WITNESS WHEREOF the parties have executed this Assignment as of the date first above written. ASSIGNOR: The Igo Company, an Idaho corporation B ._.,, ~P: esdent ASSIGNEE: `' Albertson's, Inc., a Delaware corporation ~~ BY: ~, ~\ William ~. Arnold J Vice President, Real Estate Law . '~~ OIMOKOP.DOC #U 1M0 -Cherry Lane Esc ;~ _ - 9/2/94 8:56 AM ~ ~ Mile Me..,,ian, Idaho • EXHIBIT "A" OPTION TO PURCHASE REAL PROPERTY THIS OPTION TO PURCHASE REAL PROPERTY, made and entered into this ~~ day of Q~ 1994, by and between JAMES W. FULLER and LOIS JEAN FULLER, husband and wife, herein after referred to as "FULLERS" and THE IGO COIVIPANY, an Idaho corporation, or its assigns, hereinafter referred to as "IGO"; (for the purposes of this Option when the term "IGO" is used it shall also mean the "Assignee of IGO"); WITNESSETH: That. for and in consideration of the payment of TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) herein paid by IGO to Pioneer Title Company of Ada County, and the same to be paid to FULLERS as set forth below; and in consideration that, within five (5) days after the right of first refusal has terminated as set forth in Section (a) below IGO will place the additional sum of with Pioneer Title Company of Ada County as set forth in detail below;, and also based upon the mutual promises and valuable consideration received by FUL~.ERS from IGO; FULLERS grant to IGO the Option to purchase the following described real property: A parcel in the Northeast 1/4 Northeast 1/4 of Section 10, Township 3 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho described as follows: f commencing at the Northeast corner of said Section 10; thence, North 89° 16'54" West, (formally North 89°41'38" West per--deed recorded as Instrument No. 8351286 in the Ada County Recorder's Office) 530.00 feet along the northerly line of said Section 10; thence, South 00'43'06" West (South 00' 18'22" West) 4934 feet along the easterly line of said deed to the POINT OF ~:F_GINIVING; thence, ,, 7~ ` - ~----- ------- ~ "~~- OPTI:ii~T TO PURCHASE REAL PROPERTY -Page 1 This Exhibit "A" is attached to the Assignment and Assumption of Op~iQn_to Purchase -- Real Property between The Igo Company and Albe son's, Inc. dated September 15, 1994. A e tson's, Inc_ ~il William H. Arnold, Vice President, Real, Estate A+ v South 88'08'56" East, 227.29 feet along the proposed new southerly sideline of Cherry Lane; thence, South 88° 42'45" East, 228.53 feet along said new sideline; thence, South 44° 08'58" East, 42.10 feet to a point in the proposed new westerly sideline of North Ten Mile Road; thence, South 00'24'46" West, 215.64 feet along said new westerly sideline of North Ten Mile Road, being along a line parallel with and 45.00 feet west of the easterly line of said Section 10; thence, South 04°4b'12" East, 221.41 feet along said new westerly sideline to a point in the original westerly sideline of said North Ten Mile Road; thence, South 00°24'46" West, 43259 feet along said original westerly sideline parallel with and 25.00 feet west of said easterly section line; thence, North 41° 01'46" West, 766.08 feet along a ditch to the southeast corner of said Deed Instrument No. 8351286; thence, North 00' 43'06" East, (North 00' 18'22" East) 333.66 feet along the easterly line of said deed to the POINT OF BEGINNING. LESS property sold to the Ada County Highway District for road purposes. This description was written using recorded documents and maps and not from an actual survey. The ditch line above mentioned is a line scaled from an aerial photograph and should be considered approximate only; the basis for bearings of this description is the plans for Cherry Lane prepared by CH2M Hill for the Ada County Highway District. under the following terms and conditions and subject fo a right of first refusal as hereinafter defined: - a. The Option period herein shall commence on the date hereof and shall extend one hundred eighty (180) days from the date FULLERS notify IGO in writing that C~ 1~~ L'~ the "right of first refusal" relating to and existing on this property has been waived in ~,(~~'~ writing by L&R Sales, a general partnership. Said "right of first refusal" is set forth in more 1`` detail below. FULLERS shall promptly present to L&R Sales the terms of the offer between FULLERS and IGO, and shall notify IGO in writing within five (5) days after a determination as to whether the right of first refusal was accepted, refused or otherwise ~~ terminated thereinafter "First Refusal Termination Notice"~. q -- OPTION TO PURC)-~tiSE REAL PROPERTY -Page 2 ~ ~ IGO may extend this Option for an additional ninety (90) day period. This extension may be obtained by paying an additional TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) prior to the expiration of the initial term of this Option. Any such extension shall be in writing and be accompanied by a cashiers or bank check in the above-referenced sum. Failure to exercise the Option or the extension before expiration shall render this document null and void and FULLERS shall be under no duty, either legal or equitable, to continue to deal with IGO and FULLERS shall be free to deal with any other party free and clear of any claim by IGO. b: Purchase Pricer The purchase price of the above described property shall be cash upon closing. IGO shall receive credit at the time of closing for any monies de iTve~ed to FULLERS by Pioneer Title Company of Ada County prior to closing and as provided herein. The parties hereto recognize and agree that this legal description is based upon information available to them at the time that this Option is executed and that the final legal description may be different. c. Exercise of Option: IGO, may at anytime during the Option period exercise this Option. This Option may be exercised only in writing. IGO shall notify FULLERS in writing of its desire to exercise the Option and in doing so shall give FULLERS at least, ten (10) business days notice before the "actual" exercise or closing date. This writing to FULLERS shall be mailed by certified mail, addressed to FULLERS at the address set forth in this Option or may be hand-delivered, in which case IGO shall obtain a written receipt. d. Closing: ~ FULLERS and IGO agree that Pioneer Title Company of Ada County shall be the closing agent for this transaction. Upon mailing or delivery of the notice that the Option is being exercised, each party agrees to deliver to the closing agent all documents, funds and closing instructions needed to close the transaction. Closing shall take place within thirty (30) days of the date the Option is exercised. Each party shall share equally the cost of the closing agent. e. Title Insurance: IGO may, at any time after the First Refusal Termination Notice, order and obtain a commitment for a standard owner's policy covering the Option property. In the event the Option is exercised and the transaction closes, FULLERS agree to pay the 'cost of a Standard Owner's Policy. Any additional coverage desired by IGO shall be at IGO's. expense. In the event that IGO obtains the commitment for a standard owner's policy bu't the' transaction does not close, then IGO shall be responsible for the , cancellation fee. ~ ~ - - may- - '' ... ~pJ t7~~~.i~:i~°. ~f i(1 r'PPfi„1~c.~ ~•~TT'C~ ~1 •°`}}y~~ 1~~.1"r~?1 ~1`l n,"`~~'°~-~ .f-, n<<~...r h -- OPTION TO PURCHASE REAL PROPEP.1~ -Page 3 ,: ~ ~ Further, in the event that exceptions exist in said title commitment, other than the normal standard exceptions to title reports in Ada County, Idaho, IGO shall notify FULLERS of these exceptions (other than the aforementioned standard exceptions) or objections to the commitment and FULLERS agree to act in good faith to remove said exceptions and/or to instruct the closing agent, at time of closing, to expend such funds as needed to remove said exemptions. Failure by FULLERS to remedy such matters shall result in a refund to IGO of any and all funds paid to FULLERS or the Escrow Agent notwithstanding anything to the contrary set forth in this Option. FULLERS represent to IGO that they own the property in fee simple, including all mineral rights and that the property is free and clear of all liens, mortgages and deeds of trust, and the title to said real property is clear, excepting real property taxes, and water assessments which are not yet due but are liens upon the property. FLiLLERS further represent that during the term of this Option they shall not cause any encumbrances, liens or other obligations to be placed upon said property as the result of any of their acts. f. Deed: The property shall be conveyed by Warranty Deed and shall be free and clear of all encumbrances other than those shown upon the final title policy as accepted by IGO. g. Proration of Taxes: Any and all taxes for real property, water assessments or assessments shown of record shall be prorated as of the date of closing. h. Possession: IGO shall be entitled to possession as of the date of closing. i. Default: In the event either party shall fail to honor the terms and conditions of this Option, the non-defaulting party shall be entitled to take any action needed to enforce this Agreement and to seek any remedy, either legal or equitable, to enforce the same. Further, the non-defaulting party shall be entitled to reasonable attorney fees and costs incurred in enforcing this Agreement,. regardless of whether formal legal action is instituted. This provision shall be enforceable regardless of whether this. Agreement is executory or not. This provision shall cover all of this Option, including that section denoted as "GENERAL PROVISIONS.RELATING TO OPTION." j. Assignment: This Option may not be assigned by IGO except as provided in Paragraph 1 of "GENERAL PROVISIONS RELATING TO OPTION." k. Notices: Any and all notices required or sent pursuant to this Option shall be sent to the following: FULLERS: ..... . ........ A Mr. & Mrs. Jams W. Fuller - 1635 N. Ten Milc P.oad Meridian, ID 83642 OPTION TO PURCHASE REAL PROPERT : -Page 4 ~ ~ Photocopy to their attorney: John O. Fitzgerald Ambrose, Fitzgerald & Crookston P.O. Box 427 Meridian, ID 83680 IGO: The IGO Company 1088 North Cole Road Boise, ID 83704 GENERAL PROVISIONS RELATING TO OPTION 1. This Option is granted to the IGO Company or its assigns. By this provision IGO has the right to assign this Option once and said assignment shall take place on or before the expiration of five (5) days of the receipt by IGO of the notice of termination of the "right of first refusal" by L&R Sales. The assignee, at the time of execution of this Option is known to IGO but not to FULLERS. At the time of the assignment, IGO shall notify FULLERS in writing who the assignee is and shall provide FULLERS the form for the assignment document, and FULLERS shall have three (3) days after being informed to cancel this Option. Failure by FULLERS to notify iG0 within three (3) days, as set forth above, shall constitute a full waiver on the part of FULLERS to exercise their right to cancel the Option and shall be the same as a full acceptance of the assignee by FULLERS. FULLERS agree, upon being informed of the assignee, that they shall keep this information- .confidential. Any public disclosure shall be made by the assignee (or its agents) only. IGO may assign this Option once, and thereafter neither -IGO nor the assignee shall have any rights of further assignment or sale during this Option. 2. At the time of execution of this Agreement, the parties hereto acknowledge . that FULLERS have previously granted to L&R Sales, a general partnership, a "right of first refusal:' Upon the execution of this Option, FULLERS are obligated to offer this same property to L&R Sales under the same terms and conditions_ of this Option, and FULLERS agree with IGO to do so within five (5) working days after execution of this Option. If L&R Sales elects to exercise its right then this Agreement shall be null and void and neither party hereto shall be under any further obligation to the other. Additionally, any funds or monies paid by IGO to Pioneer Title Company of Ada County shall be refunded in full. IGO shall be responsible for any charges by Pioneer Title Company of •~ Ada County. OPTION TO PURCHASE REAL PROPERTY -Page 5 3. The first TEN THOUSAND AND NO/100 DOLLARS ($10,000.130) Option money paid herein shall be deposited with Pioneer Title Company of Ada County. From the date of IGO's receipt of the First Refusal Termination Notice until the sixtieth (60th) day thereafter, said funds shall be held by Pioneer Title Company of Ada County. On the sixty-first (61st) day following receipt of the First Refusal Termination Notice, and each thirty (30) day period thereafter, during the initial term of this Option, Pioneer Title Company of Ada County shall remit to FULLERS the sum of TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00). All monies delivered to FULLERS under this Section 3 shall be non-refundable except in the event of default by FULLERS, and all such money not so delivered shall be returned to IGO in the event that the Option is not exercised. In the event that the Option is exercised and the transaction closes these monies shall be a credit towards the total purchase price. IGO shall pay all of Pioneer Title Company's costs incurred in making the disbursements required by this Section 3. 4. In the event the extension of this Option referred to in the second paragraph of Section (a) above is requested by IGO and the additional TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) is paid, this money shall be immediately remitted to FULLERS. All monies delivered to FULLERS under this Section 4 shall be non-refundable in the event that the Option is not exercised or the transaction does not close, except in the event of default by FULLERS. Further, in the event the Option is exercised and the transaction closes, these monies shall be a credit towards the total purchase price. 5. IGO shall have the right at any time during the Option period or the extension thereof to notify FULLERS and Pioneer Title Company that IGO has elected not to proceed with the transaction. In that event, all monies not paid to FULLERS and still. held by Pioneer Title Company of Ada County shall. be refunded by Pioneer Title Company of Ada County to IGO. 6. IGO represents that it may be necessary to obtain a ENVIRONMENTAL RISK STUDY or other related hazardous waste study done on the property. The study(ies) shall be at the full expense and obligation of IGO and in no event shall FULLERS have any responsibility for said expense. The results of any and all tests performed under this provision shall be delivered to FULLERS for their information and review and in the event that IGO.elects to cancel this Option the tests shall belong to FULLERS and become the property of the FULLERS who may use them in future transactions. It will be necessary for IGO, its agents, subcontractors, representatives, and invitees, to be allowed upon the property to conduct necessary investigations, surveys, soil analyses .and other required tests and studies, which are or may be required by regulatory agencies ~ , having proper jurisdiction. FULLERS agree to allow the.ab~ve-referenced individuals and parties to enter upon the property during the Option period for the above purposes. However, it is expressly understood that IGO assumes all responsibility for the costs and -- OPTION TO PURCHASE REAL PROPERTY -Page 6 ~• ~ ~ expense of these tests and studies as well as any other liability which may relate in any, way to these activities. IGO hereby agrees to hold FULLERS harmless and to indemnify FULLERS for any costs or loss incurred as a result of the above activities. IGO covenants with FULLERS not to allow any liens, mortgages, deeds of trust or other obligations to attach to the property as a result of any of IGO's acts. IGO and FULLERS agree that for purposes of this transaction, "Hazardous Materials" means and includes any hazardous, toxic, or dangerous waste substance or material including, without limitation, asbestos containing materials in any form which has become or threatens to become friable, electrical transformers, fluorescent light fixtures with ballasts or other equipment containing PCB's ~at levels in excess of fifty parts per million (SOppm), flammable explosives, or radioactive substances defined as hazardous in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") as amended (42 U.S.C. 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.); the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), and those substances defined as hazardous, toxic or dangerous wastes under any and all such laws of the State of Idaho and so-called "Superfund" or "Superlien" law, or any other regulations, rider or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now in effect at the close of escrow (collectively "Hazardous Materials Laws"). FULLERS have informed IGO of any knowledge of environmental or Hazardous Materials matters related to the property (which is none). Other than this limited representation concerning actual knowledge, FULLERS make no warranties as to the environmental condition of the property and pursuant to this provision IGO shall rely solely on the tests and other matters it may elect to take to determine the status of the environmental condition of the property. EXCEPT AS TO THE EXPRESS REPRESENTATIONS SET FORTH HEREIN, FULLERS MAKE NO WARRANTIES AS TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY AND PURSUANT TO THIS PROVISION IGO SHALL. RELY SOLELY ON THE TESTS AND OTHER MATTERS IT MAY ELECT TO TAKE TO DETERMINE THE STATUS OF THE ENVIRONMENTAL CONDITION OF THE PROPERTY. a. IGO agrees that, except as expressly contained in this Agreement, no representations by or on behalf of FULLERS, express or implied, have been made to IGO as to the environmental condition of the Property, any _ , ..restrictions related. to the development of the Property, the applicability of any governmental requirements, including but not limited to environmental requirements, pertaining to the Property, or to the suitability of the Property for any purpose whatsoever. IGO represents ~ to FULLERS that IGO will make its own independent investigation of the Property and except as to the express representations sit. forth: herein will- rely solely on such independent,..; -- OPTION TO PURCHASE REAL PROPERTY -Page 7 .. investigation. IGO acknowledges that FULLERS have no expertise concerning environmental requirements and "Hazardous Materials" and that except as to the express representations set forth herein IGO is not relying upon any representation, or the lack of same, with respect to environmental requirements or Hazardous Material as they apply to conditions on the Property. b. Notwithstanding any provision contained in this Agreement to the contrary, IGO hereby agrees that except for a breach of the express representation and warranty of FULLERS set forth above, and except for the existence of Hazardous Materials caused by the intentional or active negligence of FULLERS, IGO hereby covenants and agrees that IGO shall not make a claim against ;,r ;~~k reimbursement from FULLERS, his successors, heirs or assigns, as a result of the existence of any Hazardous Materials under or upon the Subject Property. FULLERS hereby assign to IGO any right - FULLERS may have to pursue claims to recover damages, seek reimbursement and/or obtain injunctive relief against any other predecessor in title to the Subject Property and/or any other third party (collectively, ' referred to herein as 'Third Parties") whose activities or failure to act in any way caused, permitted or contributed to the existence of any Hazardous Materials under or upon the Subject Property; provided, however, that in the event that FULLERS are made a party to any action in connection with or as a result of the existence of any Hazardous Materials under or upon the Subject Property, FULLERS shall be entitled to pursue concurrently with IGO any claim against or reimbursement from or against any Third Parties with respect to the Subject Property, to the extent such claim for damages or reimbursement does not exceed the amount of damages or costs for which FULLERS are determined to be legally responsible, together with attorneys' fees and costs incurred in connection therewith. The provisions of this Subparagraph 6(b) shall survive the closing of this transaction and transfer of title to IGO. - TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THIS SUBSECTION (b) AND THE IDAHO CODE, IGO WAIVES ANY PROVISION OF THE IDAHO CODE WHICH LIMITS THE PROVISIONS OF THIS SECTION (b) AND THIS SECTION (b) SHALL GOVERN IN THE EVENT OF ANY AFTER DISCOVERED ENVIRONMENTAL MATTER. c. FULLERS are selling the Property on an "as is," "where is" and "with all faults" basis, without representations (other than the limited representations expressly set forth in this Agreement), warranties and covenants, express or '~ ~mplie,d, of any. kind or nature. ~ - ~ - - ' ;i OPTION TO PURCHASE REAL PROPERTY -Page 8 ~ ~ d. IGO hereby expressly acknowledges and agrees that IGO, at the time of closing will have been given the opportunity to thoroughly inspect and examine the Property to the extent deemed necessary by IGO in order to enable IGO to evaluate the purchase of the Property. IGO hereby further acknowledges and agrees that IGO will rely solely upon the inspection, examination, and evaluation of the Property by IGO and that IGO is purchasing the Property on "as is," "where is" and "with all faults" basis, without representations (other than the express limited representations set forth in this Agreement), warranties and covenants, express or implied, of any kind of nature. IGO also hereby expressly acknowledges and agrees that FULLERS have made no representations or warranties of any kind or nature with .respect to any soils report, Phase I Environmental Assessment Report, asbestos reports or other reports. e. To the extent the provisions of these Sections 6(a) - (d) limit IGO's recourse _ or remedies concerning the existence of Hazardous Materials and/or other matters, such limitations shall apply only against FULLERS and not against any predecessor in title to the subject property or any other Third Party. THE ABOVE SECTIONS 6(a) - (e) SPECIFICALLY SURVIVE THE CLOSING OF THIS TRANSACTION. 7. FULLERS herein make no representations as to zoning, access to utilities, or other services as it relates to the intended use of IGO. FULLERS have informed IGO of their best knowledge of the current zoning and other matters but it shall be the responsibility of IGO to determine all of these matters to its satisfaction. Further, FULLERS make no representations as to governmental entity obligations other than those shown of record. IGO assumes the full responsibility for determining whether the option property herein is satisfactory for its intended use as well as all governmental approvals, if for no other reason, FULLERS do not know the intended use. In this regard, both FULLERS and IGO, acknowledge that it will be necessary for IGO to obtain a conditional use permit and/or related approvals from the. governmental authorities. FULLERS agree to cooperate with IGO in obtaining said permits and related approvals. 8. FULLERS and IGO agree that neither shall encumber- the property while this Option is in existence. 9. As additional consideration and as GOOD FATI'H, IGO shall deposit with Pioneer Title Company of Ada County within five (5) days after receipt of notice of the First Refusal Termination Notice, in an escrow account separate from the transaction account, the sum..of. This money shall remain in said account until either the Option is exercised and the transaction is closed or until such time as IGO notifies the FULLERS of its intent -~ OPTION TO PURCHASE REAL, PROPERTY -Page 9 Yr ~ ~ not to proceed. This account may be interest bearing and any interest shall accrue to the benefit of IGO. In the event that IGO elects for any reason not to proceed and/or to cancel said Option or this Option expires and IGO gives written notice thereof to Pioneer Title Company of Ada County and FULLERS, then in any such event said money with all the interest accrued thereon shall be immediately and without further condition returned to IGO. 10. At the time of this Agreement, the parties recognize that the property is under cultivation and that a crop of sugar beets is being raised. If closing should occur prior to the harvesting of the crop, IGO agrees to either reimburse FULLERS for the market value of said crop as if harvested or, in IGO's sole discretion, to allow FULLERS a reasonable time within which to grow and harvest that one crop. 11. It is the clear and specific intention and knowledge of the. parties to this - Option that IGO intends to assign this Option to a third entity. As such and as stated _ previously this is the only assignment allowed. FOR PURPOSES OF READING THIS AGREEMENT. ANY PLACE WHERE "IGO" APPEARS IT SHALL ALSO MEAN OR BE READ AS BEING THE PARTY TO WHICH IGO IS GOING TO ASSIGN THIS OPTION. THE TERMS ARE USED INTERCHANGEABLY IN THIS AGREEMENT. 12. It is agreed that time is of the essence as related to this Option. 13. In the event that this Option is not exercised and the transaction does not close but for some reason this Option causes a "cloud" on the title to this property, then IGO agrees and covenants to the FULLERS to cooperate in removing said "cloud" caused by said Option. By way of example, if IGO orders a preliminary title report and the transaction does not close at the time of a subsequent sale a title company raises the question of the interest of IGO and this would have to be removed. 14: ~ FULLERS and IGO each hereby agree that this Option shall not be recorded. - 15. IGO agrees that the property will not be re-zoned prior to closing of the IGO's purchase of the property without the written consent of FULLERS which consent shall not be unreasonably withheld. 16. In the event that the Option, or any extension period thereof, expires without this Option being exercised, this Agreement shall be null and void and FULLERS shall have no further obligation to IGO and FULLERS. 17. ,FULLERS represent that they have not employed or worked with any person or entity on this transaction or on this property who might claim a real estate commission and as such agree to hold harmless IGO from any such claims OP:70N TO PURCHASE REAL FROPERTY -Page 10 ~, ~, IGO has and does clearly represent to FULLERS that any compensation it shall receive related to this transaction shall come from the assignee. _,IGO hereby waives any claim to a commission from the FULLERS and also holds them harmless from any real estate commission or compensation claims made against the FULLERS other than those directly related to any actions on the FULLERS part with third parties unknown to IGO. 18. It was further agreed by FULLERS and IGO -that this Option Agreement was drafted by John O. Fitzgerald of the law firm Ambrose, Fitzgerald & .Crookston, at the request of FULLERS; that IGO has not relied on any statements or representations by John O. Fitzgerald and have been advised and counseled by its own attorney or other competent persons regarding all matters which pertain to this transaction. 19. FULLERS agree to make available to IGO at the time that this Option becomes effective any and all survey information that they have regarding and relating to said property. __. _ .. _ . . 20. This Agreement shall be binding upon the heirs, successors and assigns of the parties hereto. - - IN WITNESS WHEREOF, the parties have executed this Option to Purchase Real Property the. date and year first above written. FULLERS: ~~ AMES W. FULLER LOIS FULLER IGO: ~, -~. OPTION TO PURCHAS$ REAL PROPERTY -Page 11 • ECORDED -REQUEST CF ADA CfJUMTY RECORDER ~t~~~- ,J. OAV90 NAVARRO faOIS~. -DAPiO FEE DEPUTY Zo~ONY1s Pi~2=48 100038152 MERIDIAN CITY CITY OF MERIDIAN AMENDED ORDINANCE NO. 857 AN ORDINANCE FINDING THAT CERTAIN LAND LIES CONTIGUOUS OR ADJACENT TO THE CITY LIMITS OF THE CITY OF MERIDIAN, COUNTY OF ADA, STATE OF IDAHO; AND FINDING THAT THE OWNER HAS MADE A REQUEST FOR ANNEXATION IN WRITING TO THE COUNCIL; AND THAT SAID LAND BE ANNEXED TO THE CITY OF MERIDIAN AND ZONING DESIGNATED LIGHT INDUSTRIAL DISTRICT (I-L); AND DECLARING THAT SAID LAND, BY PROPER LEGAL DESCRIPTION AS DESCRIBED BELOW, BE A PART OF THE CITY OF MERIDIAN, COUNTY OF ADA, STATE OF IDAHO; REPEALING ALL ORDINANCES, RESOLUTIONS, ORDERS OR PARTS THEREOF IN CONFLICT HEREWITH; AND DIRECTING THE CITY ENGINEER TO ADD SAID PROPERTY TO THE OFFICIAL MAPS OF THE CITY OF MERIDIAN, IDAHO; AND DIRECTING THE CLERK OF THE CITY OF MERIDIAN TO FILE A CERTIFIED COPY OF THE ORDINANCE AND MAP OF THE AREAS TO BE ANNEXED WITH ADA COUNTY RECORDER, AUDITOR, TREASURER AND ASSESSOR, AND THE STATE TAX COMMISSION OF THE STATE OF IDAHO, PURSUANT TO IDAHO CODE SECTION 50- 223 AND SECTION 63-2215. BE IT ORDAINED BY THE MAYOR AND THE COUNCIL OF THE CITY OF MERIDIAN, COUNTY OF ADA, STATE OF IDAHO: SECTION 1. FINDINGS: That the following described land is contiguous and adjacent to the City of Meridian, Idaho, and that the City of Meridian has received a written request for annexation to the City of Meridian, Idaho, by the owner of said Property to-wit: A parcel of land being a portion of the South half of Section 9, T.3N., R.IE., B.M., Ada County, Idaho, and more particularly described as follows: Commencing at a point marking the Southwest corner of Section 9, T.3N., R lE., B.M., Ada County, Idaho; thence North 00°00'00" East along the Westerly boundary of said Section 9, 1,298.53 feet to a point, said point being on the extension of the Southerly boundary line of Commerce Park Subdivision as recorded in Book 45 of Plats at page ANNEXATION AND ZONING ORDINANCE (AZ-99-024) - 1 • • 3721, records of Ada County; thence leaving said Westerly boundary, South 89°56'30" East along said extension and said Southerly boundary, 1,348.75 feet to a point marking the Southwesterly corner of Lot 4, Block 1, of said subdivision and the REAL POINT OF BEGINNING; thence North 00°04'51" West along the Westerly boundary of said Lot 4, 479.96 feet to a point on the center line of Commercial Court; thence North 89°56'23" East along said center line, 386.72 feet to a point on the Easterly boundary of Commerce Park Subdivision; thence leaving said center line North 00°04'51" West, 409.06 feet along said Easterly boundary to a found iron pin on the Southerly right-of-way of the Settler's Canal; thence South 66°39'26" East along said right-of-way, 511.24 feet to a found iron pin; thence North 89°19'55" East along said right-of--way, 458.56 feet to a found iron pin; thence leaving said right-of--way South 00°41'21" West East. 690.83 feet to a point on the Northerly right-of-way of the Union Pacific Railroad; thence South 89°56'18" West along said railroad right-of-way, 1,321.69 feet to the REAL . POINT OF BEGINNING. Said parcel contains 20.05 acres, more or less. This description is based upon found monuments and record information. SECTION 2: That the above-described real property be, and the same is hereby annexed and made a part of the City of Meridian, Ada County, Idaho. SECTION 3: That the real property herein by this ordinance annexed to the City of Meridian hereinabove described shall be zoned Light Industrial District (I-L). SECTION 4: That the City Engineer is hereby directed to alter all use and area maps as well as the official zoning maps, comprehensive plan and all official maps depicting the boundaries of the City of Meridian in accordance with this ordinance. ANNEXATION AND ZONING ORDINANCE (AZ-99-024) - 2 • • SECTION 5: All ordinances, resolutions, orders or parts thereof in conflict herewith are hereby repealed, rescinded and annulled. SECTION 6: This ordinance shall be in full force and effect from and after its passage, approval and publication, according to law. SECTION 7: The Clerk of the City of Meridian shall, within ten (10) days following the effective date of this ordinance, duly file a certified copy of this ordinance and a map prepared in a draftsman .manner plainly and clearly designating the boundaries of the City of Meridian, including the lands herein annexed, with the following officials of the County of Ada, State of Idaho, to-wit: the Recorder, Auditor, Treasurer and Assessor and shall also file simultaneously a certified copy of this ordinance and map with the State Tax Commission of the State of Idaho, all in compliance with Idaho Code §63-2215 and §50-223. PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN, IDAHO, this (~~ day of 2000. APPROVED BY THE MAYOR OF THE CITY OF MERIDIAN, IDAHO, this `~~ day of ~ , 2000. / ATTE T: I CLERK OR ,~~~~~ulinru~~~~ ~`+. i \` Y _ ~~~L - •. Q~ sT 1SZ , Q~ ~`. +~~~{i1E 111 11 Y3NN,`1 ANNEXATION AND ZONING ORDINANCE (AZ-99-024) - 3 ~ i STATE OF IDAHO,) County of Ada. . ss. On this ~ ~fh day of ~,~" , 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared ROBERT D. CORRIE and WILLIAM G. BERG, JR., known to me to be the Mayor and City Clerk of the CITY of Meridian, Idaho, and who executed the within instrument, and acknowledged to me that the City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ••••M~~~af•.• .~. ~ . UG • o ~ ~ ~ ~ a: ~sEAL) v ~~ . s :~ tj~ ,~Cjg_7,1G~~:~~,p,,~' ~':~OFIDe;~• ey\Z:\WorkVVl\lVlecidian 1536pM\Albertsons\AZ.ORD NOT Y PUBLIC FOR IDAHO RESIDING AT: ~eY!`~C(,~r GD MY COMMISSION EXPIRES: ~ ab-~D ANNEXATION AND ZONING ORDINANCE (AZ-99-024) - 4 ~ ~ . oo°OOl 1/ ~. SiL/ - ~. 7~' N Z 0 ~ S A .. 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