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Development Agreement1 `' DEVELOPMENT AGREEMENT PARTIES: I . City of Meridian 2. Lee Centers, L.C. Development, Inc., Centers Construction, Owner/Developer THIS DEVELOPMENT AGREEMENT (this "Agreement"), is made and entered into this day of , by and between CITY OF MERIDIAN, a municipal corporation of the State of Idaho, hereafter called "CITY", and LEE CENTERS, L.C. DEVELOPMENT, INC., CENTERS CONSTRUCTION, INC., hereinafter called "OWNER"/"DEVELOPER", whose address is P.O. Box 518, Meridian, Idaho 83680. 1. RECITALS: 1.1 WHEREAS, "Owner"/"Developer" is the sole owner, in law and/or equity, of certain tract of land in the County of Ada, State of Idaho, described in Exhibit A for each owner, which is attached hereto and by this reference incorporated herein as if set forth in full, herein after referred to as the "Property"; and 1.2 WHEREAS, I.C. §67-6511A, Idaho Code, provides that cities may, by ordinance, require or permit as a condition of re-zoning that the "Owner"/"Developer" make a written commitment concerning the use or development of the subject "Property"; and 1.3 WHEREAS, "City" has exercised its statutory authority by the enactment of Ordinance 11-15-12 and 11-16-4 A, which authorizes development agreements upon the annexation and/or re-zoning of land; and 1.4 WHEREAS, "Owner"/"Developer" has submitted an application for annexation and zoning of the "Property"s described in Exhibit A, and has requested a designation of (R-40) High Density Residential District and (C-G) General Retail And Service Commercial District, (Municipal Code of the City of Meridian); and DEVELOPMENT AGREEMENT (AZ-O1-008) - 1 ~ `, 1.5 WHEREAS, "Owner"/"Developer" made representations at the public hearings both before the Meridian Planning & Zoning Commission and before the Meridian City Council, as to how the subject "Property" will be developed and what improvements will be made; and 1.6 WHEREAS, record of the proceedings for the requested annexation and zoning designation of the subject "Property" held before the Planning & Zoning Commission, and subsequently before the City Council, include responses of government subdivisions providing services within the City of Meridian planning jurisdiction, and received further testimony and comment; and 1.7 WHEREAS, City Council, the day of , 2001, has approved certain Findings of Fact and Conclusions of Law and Decision and Order, set forth in Exhibit B, which are attached hereto and by this reference incorporated herein as if set forth in full, hereinafter referred to as (the "Findings"); and 1.8 WHEREAS, the "Findings" require the "Owner"/"Developer" enter into a development agreement before the City Council takes final action on annexation and zoning designation; and 1.9 "OWNER"/ "DEVELOPER" deem it to be in its best interest to be able to enter into this Agreement and acknowledges that this Agreement was entered into voluntarily and at its urging and requests; and 1.10 WHEREAS, "City" requires the "Owner"/"Developer" to enter into a development agreement for the purpose of ensuring that the "Property" is developed and the subsequent use of the "Property" is in accordance with the terms and conditions of this development agreement, herein being established as a result of evidence received by the "City" in the proceedings for annexation and zoning designation from government subdivisions providing services within the planning jurisdiction and from affected property owners and to ensure annexation and zoning designation is in accordance with the Comprehensive Plan of the City of Meridian adopted December 21, 1993, Ordinance #629, January 4, 1994, and the Zoning and Development Ordinances codified in Meridian City Code Title 11 and Title 12. DEVELOPMENT AGREEMENT (AZ-O1-008) - 2 NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: 2. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and are incorporated herein as if set forth in full. 3. DEFINITIONS: For all purposes of this Agreement the following words, terms, and phrases herein contained in this section shall be defined and interpreted as herein provided for, unless the clear context of the presentation of the same requires otherwise: 3.1 "CITY": means and refers to the City of Meridian, a party to this Agreement, which is a municipal Corporation and government subdivision of the state of Idaho, organized and existing by virtue of law of the State of Idaho, whose address is 33 East Idaho Avenue, Meridian, Idaho 83642. 3.2 "OWNER"/"DEVELOPER": means and refers to Lee Centers, L.C. Development, Inc., Centers Construction, whose address is P.O. Box 518, Meridian, Idaho 83680, the party developing said "Property" and shall include any subsequent owner(s)/developer(s) of the "Property". 3.3 "PROPERTY": means and refers to that certain parcel(s) of "Property" located in the County of Ada, City of Meridian as described in Exhibit "A" describing the parcels to be annexed and zoned R-40 and C-G, attached hereto and by this reference incorporated herein as if set forth at length. 4. USES PERMITTED BY THIS AGREEMENT: 4.1 The uses allowed pursuant to this Agreement are only those uses allowed under "City"'s Zoning Ordinance codified at Meridian City Code Section 11-7-2 (F.. and K.) which are herein specified as follows: Construction and development of a planned unit development consisting of 9 commercial building lots, 4 common lots and 1 residential apartment lot. The following uses shall only be allowed through a conditional use permit: DEVELOPMENT AGREEMENT (AZ-O1-008) - 3 automobile service station automobile washing facilities bus and rail stations greenhouses and nurseries hotels indoor/outdoor entertainment motels planned commercial development storage facilities service stations truck stops wholesale facilities equipment sales and repair. 4.2 No change in the uses specified in this Agreement shall be allowed without modification of this Agreement. 5. DEVELOPMENT IN CONDITIONAL USE: "Owner"/"Developer" have submitted to "City" an application for conditional use permit, and shall be required to obtain the "City's" approval thereof, in accordance to the City's Zoning & Development Ordinance criteria, therein, provided, prior to, and as a condition of, the commencement of construction of any buildings or improvements on the "Property" that require a conditional use permit. 6. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY: 6.A "Owner"/"Developer" shall develop the "Property" in accordance with the following special conditions: 1. Meridian City Ordinance 12-6 sets forth the requirements for Planned Developments. Any conditions attached to a Final Development Plan for Planned Development projects run with the land and shall not lapse or be waived as the result of any subsequent change in tenancy or ownership. 2. The following uses shall only be allowed through a conditional use permit: automobile service station automobile washing facilities bus and rail stations greenhouses and nurseries hotels motels planned commercial development DEVELOPMENT AGREEMENT (AZ-O1-008) - 4 storage facilities service stations truck stops wholesale facilities equipment sales and repair. Any existing domestic wells and/or septic systems within this project shall be removed from their domestic service per City Ordinance Section 9-1-4 and 9-4-8 Wells may be used for non-domestic purposes such as landscape irrigation. 4. Outside lighting shall be designed and placed so as not to direct illumination on any nearby residential areas in accordance with City Ordinance Sections 11-13- 4.C. and 12-5-2.M. 5. Two-hundred-fifty and 100-watt, high-pressure sodium streetlights shall be required at locations designated by the Public Works Department. All streetlights shall be installed at subdivider's expense. Typical locations are at street intersections and/or fire hydrants. 6. A drainage plan designed by a State of Idaho licensed architect or engineer is required and shall be submitted to the City Engineer (Ord. 557, 10-1-91) for all off-street parking areas. All site drainage shall be contained and disposed of on- site. 7. Off-street parking shall be provided in accordance with the City of Meridian Ordinance 11-13 for use of property. 8. All signage shall be in accordance with the standards set forth in Section 11-14 of the City of Meridian Zoning and Development Ordinance. No temporary signage. flags, banners or flashing signs shall be permitted. 9. Provide five-foot-wide sidewalks in accordance with City Ordinance Section 12-5-2.K. 10. All construction shall conform to the requirements of the Americans with Disabilities Act. Adopt the Recommendations of the Ada County Highway District as follows: 11. Dedicate 31 to 42-feet ofright-of--way from the section line of Franklin Road abutting the parcel by means of recordation of a final subdivision plat or execution of a warranty deed prior to issuance of a building permit (or other required permits), whichever occurs first. DEVELOPMENT AGREEMENT (AZ-O1-008) - 5 12. Provide a $9,700 deposit to the Public Rights-of--Way Trust Fund for the cost of constructing a 5-foot wide concrete sidewalk on Franklin Road abutting the parcel (approximately 485-feet) prior to issuance of a building permit, or District approval of a final plat, whichever occurs first. 13. Construct Baltic Place as a public street, private street, or driveway. on the south side of Franklin Road to align with Baltic Road on the north side of Franklin Road. If the applicant constructs Baltic Place as a public street it shall be constructed as a 40-foot street section within 58-feet or right-of--way with a standard turnaround at the south end of the street. 14. Construct a public turnaround at the terminus of Kalispell Street. 15. If Baltic Place is constructed as a public street, driveways shall be located a minimum of 50-feet south of Franklin Road and paved their full width and at least 30-feet into the site beyond the edge of pavement of Baltic Place. 16. The applicant shall provide a recorded cross access easement for all of the lots within the subdivision for access to the public streets if Baltic Place is not constructed as a public street. 17. Construct a center turn lane on Franklin Road for the Franklin Road/main entrance intersection. The turn lane shall be constructed to provide a minimum of 100-feet of storage with shadow tapers for both the approach and departure directions. Coordinate the design of the turn lane with District staff. In accordance with the traffic study, the center turn lane shall not be required until the site generates 298 vehicle trips per day (45 apartment units; or 27,000-square feet of office; or 7,000-square feet of retail; etcY) as determined by the land use, and the ACRD trip generation rate in the impact fee schedule. 18. Construct a right turn lane (eastbound) on Franklin Road for the Franklin Road/main entrance intersection. Coordinate the design of the turn lane with District staff. 19. Any proposed landscape islands/medians within the public right-of--way dedicated by this plat shall be owned and maintained by a homeowners association. Notes of this shall be required on the final plat. DEVELOPMENT AGREEMENT (AZ-O1-008) - 6 20. Any existing irrigation facilities shall be relocated outside of the right-of- way. 21. All utility relocation costs associated with improving street frontages abutting the site shall be borne by the developer. 22. Other than the access point specifically approved with this application, direct lot or parcel access to Franklin Road is prohibited. Lot access restrictions, as required with this application, shall be stated on the final plat. Adopt the Recommendations of the Nampa & Meridian Irrigation District as follows: 23. The Nampa & Meridian Irrigation District's Hunter Lateral courses along the south boundary of the proposed project. Any encroachments shall be approved and a signed License Agreement shall be in place. 24. The District requires a Land Use Change/Site application to be filed with the District. 7. COMPLIANCE PERIOD/ CONSENT TO REZONE: This Agreement and the commitments contained herein shall be terminated, and the zoning designation reversed, upon a default of the "Owner"/"Developer" or "Owner"/"Developer"'s heirs, successors, assigns, to comply with Section 6 entitled "Conditions Governing Development" of subject "Property" of this agreement within two years of the date this Agreement is effective, and after the "City" has complied with the notice and hearing procedures as outlined in I.C. ' 67-6509, or any subsequent amendments or recodifications thereof. 8. CONSENT TO DE-ANNEXATION AND REVERSAL OF ZONING DESIGNATION: "Owner"/"Developer" consent upon default to the de-annexation and/or a reversal of the zoning designation of the "Property" subject to and conditioned upon the following conditions precedent to-wit: 8.1 That the "City" provide written notice of any failure to comply with this Agreement to "Owner"/"Developer" and if the "Owner"/"Developer" fails to cure such failure within six (6) months of such notice. DEVELOPMENT AGREEMENT (AZ-O1-008) - 7 9. INSPECTION: "Owner"/"Developer" shall, immediately upon completion of any portion or the entirety of said development of the "Property" as required by this agreement or by City ordinance or policy, notify the City Engineer and request the City Engineer's inspections and written approval of such completed improvements or portion thereof in accordance with the terms and conditions of this Development Agreement and all other ordinances of the "City" that apply to said Development. 10. DEFAULT: 10.1 In the event "Owner"/"Developer", "Owner"/"Developer"'s heirs, successors, assigns, or subsequent owners of the "Property" or any other person acquiring an interest in the "Property", fail to faithfully comply with all of the terms and conditions included in this Agreement in connection with the "Property", this Agreement may be modified or terminated by the "City" upon compliance with the requirements of the Zoning Ordinance. 10.2 A waiver by "City" of any default by "Owner"/"Developer" of any one or more of the covenants or conditions hereof shall apply solely to the breach and breaches waived and shall not bar any other rights or remedies of "City" or apply to any subsequent breach of any such or other covenants and conditions. 11. REQUIREMENT FOR RECORDATION: "City" shall record either a memorandum of this Agreement or this Agreement, including all of the Exhibits, at "Owner"/"Developer"'s cost, and submit proof of such recording to "Owner"/"Developer", prior to the third reading of the Meridian Zoning Ordinance in connection with the annexation and zoning of the "Property" by the City Council. If for any reason after such recordation, the City Council fails to adopt the ordinance in connection with the annexation and zoning of the "Property" contemplated hereby, the "city" shall execute and record an appropriate instrument of release of this Agreement. 12. ZONING: "City" shall, following recordation of the duly approved Agreement, enact a valid and binding ordinance zoning the "Property" as specified herein. 13. REMEDIES: This Agreement shall be enforceable in any court of competent jurisdiction by either "City" or "Owner"/"Developer", or by any successor or successors in title or by the assigns of the parties hereto. Enforcement may be sought by an appropriate action at law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. DEVELOPMENT AGREEMENT (AZ-O1-008) - 8 13.1 In the event of a material breach of this Agreement, the parties agree that "City" and "Owner"/"Developer" shall have thirty (30) days after delivery of notice of said breach to correct the same prior to the non-breaching party's seeking of any remedy provided for herein; provided, however, that in the case of any such default which cannot with diligence be cured within such thirty (30) day period, if the defaulting party shall commence to cure the same within such thirty (30) day period and thereafter shall prosecute the curing of same with diligence and continuity, then the time allowed to cure such failure may be extended for such period as may be necessary to complete the curing of the same with diligence and continuity. 13.2 In the event the performance of any covenant to be performed hereunder by either "Owner"/"Developer" or "City" is delayed for causes which are beyond the reasonable control of the party responsible for such performance, which shall include, without limitation, acts of civil disobedience, strikes or similar causes, the time for such performance shall be extended by the amount of time of such delay. 14. SURETY OF PERFORMANCE: The "City" may also require surety bonds, irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under Meridian City Code § 12-5-3, to insure that installation of the improvements, which the "Owner"/"Developer" agrees to provide, if required by the "City„ 15. CERTIFICATE OF OCCUPANCY: The "Owner"/"Developer" agrees that no Certificates of Occupancy will be issued until all improvements are completed, unless the "City" and "Owner"/"Developer" have entered into an addendum agreement stating when the improvements will be completed in a phased developed; and in any event, no Certificates of Occupancy shall be issued in any phase in which the improvements have not been installed, completed, and accepted by the "City". 16. ABIDE BY ALL CITY ORDINANCES: That "Owner"/"Developer" agrees to abide by all ordinances of the City of Meridian and the "Property" shall be subject to de-annexation if the owner or his assigns, heirs, or successors shall not meet the conditions contained in the Findings of Fact and Conclusions of Law, this Development Agreement, and the Ordinances of the City of Meridian. 17. NOTICES: Any notice desired by the parties and/or required by this Agreement shall be deemed delivered if and when personally delivered or three (3) days DEVELOPMENT AGREEMENT (AZ-01-008) - 9 after deposit in the United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY: c/o City Engineer City of Meridian 33 E. Idaho Ave. Meridian, ID 83642 OWNER/DEVELOPER: Lee Centers L.C. Construction, Inc. Centers Construction, Inc. P.O. Box 518 Meridian, Idaho 83680 with copy to: City Clerk City of Meridian 33 E. Idaho Ave. Meridian, ID 83642 17.1 A party shall have the right to change its address by delivering to the other party a written notification thereof in accordance with the requirements of this section. 18. ATTORNEY FEES: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorney's fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 19. TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. 20. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including "City"'s corporate authorities and their successors in office. This Agreement shall be binding on the owner of the "Property", each subsequent owner and any other person acquiring an interest in the "Property". Nothing herein shall in any way prevent sale or alienation of the "Property", or portions thereof, except that any sale or alienation shall be subject to the provisions hereof and any successor owner DEVELOPMENT AGREEMENT (AZ-01-008) - 10 or owners shall be both benefitted and bound by the conditions and restrictions herein expressed. "City" agrees, upon written request of "Owner"/"Developer", to execute appropriate and recordable evidence of termination of this Agreement if "City", in its sole and reasonable discretion, had determined that "Owner"/"Developer" has fully performed its obligations under this Agreement. 21. INVALID PROVISION: If any provision of this Agreement is held not valid by a court of competent jurisdiction, such provision shall be deemed to be excised from this Agreement and the invalidity thereof shall not affect any of the other provisions contained herein. 22. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, condition and understandings between "Owner"/"Developer" and "City" relative to the subject matter hereof, and there are no promises, agreements, conditions or understanding, either oral or written, express or implied, between "Owner"/"Developer" and "City", other than as are stated herein. Except as herein otherwise provided, no subsequent alteration, amendment,. change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by them or their successors in interest or their assigns, and pursuant, with respect to "City", to a duly adopted ordinance or resolution of "City". 22.1 No condition governing the uses and/or conditions governing development of the subject "Property" herein provided for can be modified or amended without the approval of the City Council after the "City" has conducted public hearing(s) in accordance with the notice provisions provided for a zoning designation and/or amendment in force at the time of the proposed amendment. 23. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date the Meridian City Council shall adopt the amendment to the Meridian Zoning Ordinance in connection with the annexation and zoning of the "property" and execution of the Mayor and City Clerk. DEVELOPMENT AGREEMENT (AZ-O1-008) - 11 ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this agreement and Made it effective as hereinabove provided. OWNER/DEVELOPER: BY: Lee Centers Attest: BY: CITY OF MERIDIAN BY: MAYOR ROBERT D. CORRIE Attest: CITY CLERK DEVELOPMENT AGREEMENT (AZ-O1-008) - 12 STATE OF IDAHO) COUNTY OF ADA) ss: On this day of , in the year 2001, before me, a Notary Public, personally appeared LEE CENTERS and ,known or identified to me to be persons who executed the instrument on behalf of said L.C. Development, Inc. and Centers Construction, Inc., and acknowledged to me that they executed the same on behalf of said corporations. (SEAL) STATE OF IDAHO ) County of Ada ) :ss Notary Public for Idaho Residing at: Commission expires:- On this day of , in the year 2001, before me, a Notary Public, personally appeared Robert D. Corrie and William G. Berg, know or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the instrument or the person that executed the instrument of behalf of said City, and acknowledged to me that such City executed the same. (SEAL) Notary Public for Idaho Commission expires: DEVELOPMENT AGREEMENT (AZ-O1-003) - 13 EXHIBIT A Leal Description Of Property L.C. DEVELOPMENT, FRANKLIN ROAD SUBDIVISION ANNEXATION DESCRIPTION (R-40 AND C-G) A parcel of land located in the NW1/4 of the NE1/4 of Section 18, T.3N., R.lE., B.M., Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 7, 8, 17 and the said Section 18, from which the'/4 corner common to said Sections 7 and 18 bears South 89°46'13" West, 2654.29 feet; thence South 89°46'13" West, 1327.12 feet to the East 1/16 corner common to said Sections 7 and 18 and the REAL POINT OF BEGINNING. Thence along the West boundary of Medimont Subdivision No.'s 1 & 2, as same are recorded in Book 75 of Plats at Page 7794, and Book 79 of Plats at page 8453, respectively, South 00°29'15" West, 1332.09 feet to the southwest corner of said Medimont Subdivision No. 2; thence generally along the bank of the Hunter Lateral North 51°29'39" West, 132.92 feet; thence North 63°25'13" West, 205.41 feet; thence North 61°05'52" West, 203.20 feet; thence departing said bank North 00°38'34" West, 1057.28 feet to a point on the North boundary of said Section 18; thence North 89°46'13" East, 488.80 feet to the Point of Beginning. Containing 12.99 acres, more or less. DEVELOPMENT AGREEMENT (AZ-O1-003) - 14 EXHIBIT B Findings of Fact and Conclusions of Law/Conditions of Approval \\NPA NTS40 PDC\SERVER Z\Work\M\Meridian\Meridian 15360M\Baltic PlaceAZ01-008 PP01-009 CUPOI- O15\DevelooAer.doc DEVELOPMENT AGREEMENT (AZ-O1-003) - 15