HomeMy WebLinkAboutLetter from William Collins 12/29/09WESTBERG, I~icCABE & ~~LLIl~TS,
ATTORNEXS & COUNSELORS AT LAW
516 WEST FRANKLIN STREET
P.O. BOX 2836
BOISE, IDAHO 83701-2836
PAUL L. WESTBERG
WILLIAM D. COLLINS
CHRISTIAN D. COLLINS
Of Counsel:
THOMAS J. McCABE
December 29, 2009
Meridian City Council
Meridian City Hall
33 E. Broadway
Meridian, ID 83642
Dear Council Members:
CTD.
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CITY CLERICS OFFICIO TELEPHONE
(208) 336.5200
FAX
(208) 336.2121
I represent James Prather with respect to his request to amend the Development Agreement
entered into between the City and himself which was approved by the Council September 18, 2007,
and recorded as Instrument No. 107131597. Mr. Prather has requested several amendments to the
Development Agreement which have been submitted to the City's staff in a writing entitled
"Narrative" and dated December 5, 2009. The purpose of this letter is to expand on the detail of the
request and to suggest language for three of the several requested amendments. We have worked
with the City's staff on what might be the appropriate wording for those three amendments.
Mr. Prather requested amendments to subparagraphs 8, 10, 12 and 17 of Section 5. There
is no change to his request as to those subparagraphs except as to subparagraph 12. Subparagraph
12, in part dealt with the size of the buildings on the property. It is now felt that the amendment to
Section 12 can best be accommodated by simply removing the size restriction on the buildings which
would be constructed on what is now Parcels 1 and 2 of his Record of Survey recorded November
24 of this year. We request that subparagraph 12 be amended to read as set forth in the attached
Exhibit A.
Mr. Prather also requested an amendment to Section 6 commenting that there was some
question on what the two year time period was meant to cover, two years to complete the entire
development or two years for the Developer to execute the Development Agreement. Rather than
asking for clarification it seems that the better approach would be to rewrite Section 6 using the
City's current approach in setting forth requirements of compliance and consent to rezone which is
amore comprehensive recitation of what should occur in the event there is a default by either party.
Therefore, it is requested that Section 6 be amended to read as set forth in Exhibit A.
While Mr. Prather did not specifically request a modification of Section 14, his request to
modify subparagraph 10 of Section 5 dealt with a phased development of those parcels over which
the multi-use pathway is to be constructed across the site. Section 14 prohibits any phased
Meridian City Council
December 29, 2009
Page 2
development without an amendment to the Development Agreement. To eliminate future issues as
might relate to that pathway, it is requested that Section 14 also be amended so as to permit a phased
development of the entire project provided that all improvements for each phase are completed
before a Certificate of Occupancy can be issued. Therefore, it is requested that Section 14 be
amended as set forth in Exhibit A.
Very truly yours,
WESTBERG, McCABE & COLLINS, CTD.
VIM.. ~.
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William D. Collins
WDC:mrs
enclosures
cc: James Prather, via a-mail
David Wishney, via a-mail
EXI~IBI~' 1~
Suggested Amendment to Parag~h 12 of Section 5.
12. Development of this site plan shall be generally consistent with the conceptual
building elevations (photos) and site attached as Exhibit A of the staff report.
Additionally, the rear elevation of the largest building proposed along the
southern boundary shall have horizontal banding and/or include a variety of
materials. With the exception of Parcel Nos. 1 and 2, as shown on the ]record
of Survey recorded November 25, 2009, as Instrument No. 109132349,
records of Ada County, Idaho, individual buildings within this development
shall be limited to 15% over or under the sizes shown on the concept plan except
for the largest building pad which shall not exceed 170,000 square feet, and the
minimum number of buildings allowed on the site shall be no less than four and
no more than six. The foregoing building size restrictions shall not apply to
buildings constructed on Parcel Nos. 1 and 2. fronting on Overland Road:
Suggested Amendment to Section 6.
6. COMPLIANCE/CONSENT TO REZONE: Either party's failure to faithfiilly
comply with all of the terms and conditions included in this Agreement shall
constitute default under this Agreement.
In the event of Owner/Developer's default of this Agreement, Owner/Developer
shall have thirty (30) days from receipt of written notice from City to initiate
commencement of action to correct the breach and cure the default, which action
must be prosecuted with diligence and completed within one hundred eighty (180)
days; provided, however, that in the case of any such default that cannot with
diligence be cured within such one hundred eighty (180) day period, then the time
allowed to cure such failure maybe extended for such period as maybe necessary
to complete the curing of the same with diligence and continuity.
In the event of default by Owner/Developer that is not cured after notice as
described in the prior paragraph, Owner/Developer shall be deemed to have
consented to modification of this Agreement and de-annexation and reversal of
the zoning designations described herein, solely against the offending portion of
Property and upon City's compliance with all applicable laws, ordinances and
rules, including any applicable provisions of Idaho Code, §§67-6509 and 67-
6511. Owner/Developer reserves all rights to contest whether a default has
occurred. This Agreement shall be enforceable in the Fourth Judicial District
Court in Ada County by either City or Owner/Developer, ar 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.
In the event the performance of any covenants to be performed hereunder by
either Owner or City is delayed for causes that are beyond the reasonable control
of the party responsible for such performance, which shall include, without
limitation, acts of civil disobedience, strikes or similar causes, the time for such
performance shall be extended by the amount of time of such delay.
A waiver by City of any default by Owner of any one or more of the covenants or
conditions hereof shall apply solely to the default and defaults waived and shall
neither bar any other rights or remedies of City nor apply to any subsequent
default of any such or other covenants and conditions.
Suggested Amendment to Section 14.
14. CERTIFICATE OF OCCUPAI®TCY: The Owner/Developer agrees that no
Certificate of Occupancy will be issued for any building site or parcel until all
improvements thereto, required under this Agreement, have been installed,
completed and accepted by the City. The Owner/Developer may develop each
parcel or building site as a separate phase or in phases. Improvements shall
include the multi-use pathway referred to in Section 5.12 .
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