Ashley manor H-2016-0043ADA COUNTY RECORDER Christopher D. Rich 2016-086864
BOISE IDAHO Pgs=27 DAWN TRIVOLIS 09/14/2016 01:15 PM
CITY OF MERIDIAN, IDAHO NO FEE
DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Bright Angel Holdings, LLC, Owner/Developer
N&
THIS DEVELOPMENTAGREEMENT (this Agreement), is made and entered into
this 3d -C day of ces'Z , by and between City of Meridian, a municipal
corporation of the State orldaho, hereafter called CITY whose address is 33 E. Broadway Avenue,
Meridian, Idaho 83642 and Bright Angel Holdings, LLC, whose address is 4334 N. Bright Angel
Avenue, Meridian, Idaho 83642, hereinafter called OWNER/ DEVELOPER.
1. RECITALS:
1.1 WHEREAS, Owner is the sole owner, in law and/or equity, of certain tract
of land in the County of Ada, State of Idaho, described in Exhibit "A", which
is attached hereto and by this reference incorporated herein as if set forth in
full, herein after referred to as the Property; and
1.2 WHEREAS, Idaho Code § 67-6511 A provides that cities may, by ordinance,
require or permit as a condition of 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
Section 11-5B-3 of the Unified Development Code ("UDC"), which.
authorizes development agreements upon the annexation and/or re -zoning of
land; and
1.4 WHEREAS, Owner/Developer has submitted an application for the
annexation of approximately 1.22 acres of land from the RUT zoning district
in Ada County to the L -O (Limited Office) zoning district (as described in
Exhibit "A"), under the Unified Development Code, which generally
describes how the Property will be developed and what improvements will be
made; and
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 Property will be developed and what
improvements will be made; and
1.6 WHEREAS, the record of the proceedings for the requested preliminary plat
on the Property held before the Planning & Zoning Commission, and
subsequently before the City Council, includes responses of government
DEVELOPMENT AGREEMENT —ASHLEY MANOR (H-2016-0043) PAGE 1 OF 8
subdivisions providing services within the City of Meridian planning
jurisdiction, and includes further testimony and comment; and
1.7 WHEREAS, on the 21" day of June, 2016, the Meridian City Council
approved certain Findings of Fact and Conclusions of Law and Decision and
Order ("Findings"), which have been incorporated into this Agreement and
attached as Exhibit `B"; and
1.8 WHEREAS, the Findings require the Owner/Developer to enter into a
Development Agreement before the City Council takes final action on final
plat; and
1.9 WHEREAS, Owner/Developer deems it to be in its best interest to be able to
enter into this Agreement and acknowledges that this Agreement was entered
into voluntarily and at its urging and request; 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 Agreement, herein being established as a result of evidence received
by the City in the proceedings for zoning designation from government
subdivisions providing services within the planning jurisdiction and from
affected property owners and to ensure zoning designation are in accordance
with the amended Comprehensive Plan of the City of Meridian on April 19,
2011, Resolution No. 11-784, and the UDC, Title 11.
NOW, THEREFORE, in consideration of the covenants and conditions set forth
herein, the parties agree as follows:
2. INCORPORATION OF RECITALS: That the above recitals are contractual and
binding and are incorporated herein as if set forth in full.
3. DEFINITIONS: For all purposes of this Agreement the following words, terms, and
phrases herein contained in this section shall be defined and interpreted as herein provided for,
unless the clear context of the presentation of the same requires otherwise:
3.1 CITY: means and refers to the City of Meridian, a party to this Agreement,
which is a municipal Corporation and government subdivision of the state of
Idaho, organized and existing by virtue of law of the State of Idaho, whose
address is 33 East Broadway Avenue, Meridian, Idaho 83642.
3.2 OWNER/DEVELOPER: means and refers to Bright Angel Holdings, LLC,
whose address is 4334 N. Bright Angel Avenue, Meridian, Idaho 83642 the
party that own and are developing said Property and shall include any
subsequent owner(s)/developers of the Property.
3.3 PROPERTY: means and refers to that certain parcel(s) of Property located
DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043 PAGE 2 OF 8
in the County of Ada, City of Meridian as described in Exhibit "A"
describing the parcels to be re -zoned Limited Office District (L -O) and
attached hereto and by this reference incorporated herein as if set forth at
length.
4. USES PERMITTED BY THIS AGREEMENT: This Agreement shall vest the
right to develop the Property in accordance with the terms and conditions of this Agreement.
4.1 The uses allowed pursuant to this Agreement are only those uses allowed
under the UDC.
4.2 No change in the uses specified in this Agreement shall be allowed without
modification of this Agreement.
CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY:
5.1. Owner/Developer shall develop the Property in accordance with the following
special conditions:
a. Direct lot access to N. Locust Grove Road, an arterial street, is prohibited in
accord with UDC 11-3A-3.
b. Sidewalk shall be installed along N. Locust Grove Road where it doesn't
currently exist and along N. Bright Angel Avenue in accord with the standards
listed in UDC 11-3A-17. The sidewalk along Locust Grove shall go around the
existing irrigation vault to provide continuous pedestrian access.
c. Future development of this site shall be generally consistent with the conceptual site
plan and building elevations depicted in Exhibit A of the Findings of Fact and
Conclusions of Law as described in the attached "Exhibit B" and the conditions
noted in the staff report.
d. The site plan submitted with the Certificate of Zoning Compliance application for
this site shall take into consideration the ultimate right-of-way for N. Locust
Grove Road per the Master Street Map in regard to sidewalk, street buffer and
building locations.
e. Mitigation is required for any existing trees 4 -inch caliper or greater that are
removed from the site in accord with the standards listed in UDC 11 -3B -10C.
Contact Elroy Huff, City Arborist, prior to removal of any trees from the site to
confirm mitigation requirements.
f. Future development of this site is required to comply with the design standards listed
in UDC 11-3A-19 and the Architectural Standards Manual.
g. The applicant shall submit and obtain approval of a Certificate of Zoning
Compliance and Design Review application prior to submittal of a building
permit application(s).
h. Hours of operation in the L -O district are limited to the hours between 6:00 am and
10:00 pm as set forth in UDC 11 -2B -3A.4.
i. The residential use of the subject property shall cease upon annexation ordinance
DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043) PAGE 3 OF 8
approval.
j. If the existing structure is to be retained on the site, the applicant shall be required to
cease using any other existing water source or method of disposing of sewage and
connect to City water and sewer service within sixty (60) days of approval of the
annexation ordinance per MCC 9-1-4 and MCC 9-4-8.
6. COMPLIANCE PERIOD This Agreement must be fully executed within six (6)
months after the date of the Findings for the annexation and zoning or it is null and void.
7. DEFAULT/CONSENT TO DE -ANNEXATION AND REVERSAL OF
ZONING DESIGNATION:
7.1 Acts of Default. Either parry's failure to faithfully comply with all of the
terms and conditions included in this Agreement shall constitute default
under this Agreement.
7.2 Notice and Cure Period. In the event of 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 may be extended for such period as may be necessary to complete the
curing of the same with diligence and continuity.
7.3 Remedies. In the event of default by Owner/Developer that is not cured after
notice as described in Section 7.2, Owner/Developer shall be deemed to have
consented to modification of this Agreement and de -annexation and reversal
of the zoning designations described herein, solely against the offending
portion of Property and upon City's compliance with all applicable laws,
ordinances and rules, including any applicable provisions of Idaho Code §§
67-6509 and 67-6511. Owner/Developer reserve 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, or
by any successor or successors in title or by the assigns of the parties hereto.
Enforcement may be sought by an appropriate action at law or in equity to
secure the specific performance of the covenants, agreements, conditions, and
obligations contained herein.
7.4 Delay. In the event the performance of any covenant to be performed
hereunder by either Owner/Developer or City is delayed for causes that are
beyond the reasonable control of the party responsible for such performance,
which shall include, without limitation, acts of civil disobedience, strikes or
similar causes, the time for such performance shall be extended by the
amount of time of such delay.
DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043) PAGE 4 OF 8
7.5 Waiver. 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 default
and defaults waived and shall neither bar any other rights or remedies of City
nor apply to any subsequent default of any such or other covenants and
conditions.
8. INSPECTION: 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 Agreement and all other ordinances of the City that apply to said Property.
9. REQUIREMENT FOR RECORDATION: City shall record this Agreement,
including all of the Exhibits, and submit proof of such recording to Owner/Developer, prior to the
third reading of the Meridian Zoning Ordinance in connection with the re -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.
10. ZONING: City shall, following recordation of the duly approved Agreement, enact a
valid and binding ordinance zoning the Property as specified herein.
11. SURETY OF PERFORMANCE: The City may also require surety bonds,
irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under the
UDC, to insure the installation of required improvements, which the Owner/Developer agree to
provide, if required by the City.
12. CERTIFICATE OF OCCUPANCY: No Certificates of Occupancy shall be issued
in any phase in which the improvements have not been installed, completed, and accepted by the
City, or sufficient surety of performance is provided by Owner/Developer to the City in accordance
with Paragraph 11 above.
13. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to abide by
all ordinances of the City of Meridian unless otherwise provided by this Agreement.
14. NOTICES: Any notice desired by the parties and/or required by this Agreement
shall be deemed delivered if and when personally delivered or three (3) days after deposit in the
United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed
as follows:
CITY:
City Clerk
City of Meridian
33 E. Broadway Ave.
Meridian, ID 83642
with copy to:
City Attorney
City of Meridian
33 E. Broadway Avenue
Meridian, ID 83642
DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043) PAGE 5 OF 8
OWNER/DEVELOPER:
Bright Angel Holdings, LLC
4334 N. Bright Angel Avenue
Meridian, ID 83642
14.1 A party shall have the right to change its address by delivering to the other
party a written notification thereof in accordance with the requirements of this section.
15. ATTORNEY FEES: Should any litigation be commenced between the parties hereto
concerning this Agreement, the prevailing parry 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.
16. TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that time
is strictly of the essence with respect to each and every term, condition and provision hereof, and that
the failure to timely perform any of the obligations hereunder shall constitute a breach of and a
default under this Agreement by the other parry so failing to perform.
17. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure
to the benefit of the parties' respective heirs, successors, assigns and personal representatives,
including City's corporate authorities and their successors in office. This Agreement shall be
binding on the Owner/Developer, each subsequent owner and any other person acquiring an interest
in the Property. Nothing herein shall in any way prevent sale or alienation of the Property, or
portions thereof, except that any sale or alienation shall be subject to the provisions hereof and any
successor owner or owners shall be both benefited and bound by the conditions and restrictions
herein expressed. City agrees, upon written request of Owner/Developer, to execute appropriate and
recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion,
had determined that Owner/Developer have fully performed their obligations under this Agreement.
18. INVALID PROVISION: If any provision of this Agreement is held not valid by a
court of competent jurisdiction, such provision shall be deemed to be excised from this Agreement
and the invalidity thereof shall not affect any of the other provisions contained herein.
19. DUTY TO ACT REASONABLY: Unless otherwise expressly provided, each party
shall act reasonably in giving any consent, approval, or taking any other action under this Agreement.
20. COOPERATION OF THE PARTIES: In the event of any legal or equitable action
or other proceeding instituted by any third party (including a governmental entity or official)
challenging the validity of any provision in this Agreement, the parties agree to cooperate in
defending such action or proceeding.
21. FINAL AGREEMENT: This Agreement sets forth all promises, inducements,
agreements, condition and understandings between Owner/Developer and City relative to the subject
matter hereof, and there are no promises, agreements, conditions or understanding, either oral or
written, express or implied, between Owner/Developer and City, other than as are stated herein.
DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043 PAGE 6 of 8
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.
21.1 No condition governing the uses and/or conditions governing re -zoning of the subject
Property herein provided for can be modified or amended without the approval of the
City Council after the City has conducted public hearing(s) in accordance with the
notice provisions provided for a zoning designation and/or amendment in force at the
time of the proposed amendment.
22. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the
date the Meridian City Council shall adopt 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.
end of text; signatures, acknowledgements, and Exhibits A and B follow]
ACKNOWLEDGMENTS
IN WITNESS WHEREOF, the parties have herein executed this agreement and made
it effective as hereinabove provided.
OWNER/DEVELOPER:
Bright Angel Holdings, LLC
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DEVELOPMENT AGREEMENT -ASHLEY MANOR (H-2016-0043) PAGE 7 OF 8
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STATE OF IDAHO ) +he. M&mac}e r
ss:
County of Ada, )
On this day of , 2016, before me, the undersigned, a Notary Public in and
for said State, personally ppeare K4;44,. !' 1-0 c-ktr , known or identified to me to be
the of Bright Angel Holdings, LLC and acknowledged to me that he
executed the same on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
SEAL)
SHANNON JANSON
Notary Public
State of Idaho
STATE OF IDAHO )
Notary Public ficir Idaho
Residing at:
My Commission Expires:
ss
County of Ada )
On this 3 day of ` , 2016, before me, a Notary Public,
personally appeared Tammy de Weerd and know or identified to me to be the Mayor
a d Ctrlc rhe etivel}bof the City of Meridian A elec tie 1e instrument or the person that
cv -ice---,-
exec&0 t e ms?rument o>ehalf of said City, and acknowledged to me that such City executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
00606,
MA
SEAL) y 1 tai'
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L.
Notary Public fort Idaho
l__ Residing at: 0a A
Commission expires:
DEVELOPMENT AGREEMENT —ASHLEY MANOR (H-2016-0043 PAGE 8 OF 8
Exhibit B
EXHIBITA