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Whitestone Subdivision 97008LJ3l1 :,D" ': :.'::C:[)ER j, D¡.';;D ::A'¡;~¡~no DEVELOPMENT AGREEMENT ~ S E : D -- ';b¡ 3Øp, -n ' ~ THIS AGREEMENT, made and entered into this 20th day of Áa~J~ Jn6"P~'1 u L , 1996, by and between the CITY OF MERIDIAN, a municipal ~ra -~_o! ',- State of Idaho, party of the first part, hereinafter called the "CITY", and Whitestoo:eiD.eJolètopmeiif:' "': E ~ T OF Company. L.L.C., party of the second part, hereinafter called the "DEVELOPER", whose address is 41Q South Orchard Street, Suite 124, Boise, Idaho 83705 WITNESSETH: WHEREAS, DEVELOPER is the sole owner, in law and/or equity, of a certain tract of land in the County of Ada, State of Idaho, described in Exhibit" A", which is attached hereto and by this reference incorporated herein as if set forth in full; and WHEREAS, the State of Idaho legislature, in 1991, passed Idaho Code, 67"651 lA, Development Agreements, which provides that cities may enter into development agreements with developers upon rezoning of land; and WHEREAS, the CITY has passed two development agreement ordinances, one when land is rezoned, 11.2.416 L, and one when land is annexed, which is when it is also rezoned, 11.2-417 D; and WHEREAS, the DEVELOPER has submitted an application for annexation and zoning, or an application for rezone, of that certain property described in Exhibit "A", and requested zoning of R:!I: and has submitted a subdivision preliminary plat for said property which has been recommended for approval by the Meridian Planning and Zoning Commission; and WHEREAS, the DEVEWPER made some representations at the public hearing before the Meridian Planning and Zoning Commission as to how the land would be developed and what improvements would be made; and WHEREAS, the CITY has authority to place conditions and restrictions upon annexation or rezoning of property; and WHEREAS, 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 WHEREAS, the DEVEWPER, as sole owner of said land, has made request to the CITY to have the same annexed to said CITY, or rezoned, and has submitted to the CITY a Plat thereof WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 1 which has been approved for annexation by the CITY and as part of the annexation or rezone the CITY adopted and approved Findings of Fact and Conclusions of Law; and, WHEREAS, the Findings of Fact and Conclusions of Law required that the DEVELOPER enter into a Development Agreement; and WHEREAS, the said City Council in the Findings of Fact and Conclusions of Law annexed or rezoned the property subject to de-annexation if the DEVELOPER did not enter into a Development Agreement. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: DEVELOPER agrees, and hereby binds his, its, or their heirs, successors and assigns to this agreement, in consideration for the annexation, rezone, or the non-de-annexation of the area, as follows: 1. That the above recitals are contractual and binding and are incorporated herein as if set forth in full. 2. That DEVELOPER, in accordance with its representations before the CITY, shall, on the land described in Exhibit" A", only construct single-family houses and that all such single-family houses shall have at least one thousand four hundred (l.4OO) square feet of floor space, exclusive of garages. 3. That the property is zoned,R-4, described in "Exhibit A", and shall have lot sizes of at least eight thousand (8J!OO) square feet, which is the size represented at the City hearings, and shall meet all of the requirements of the Ed zone and allow no duplex units, townhouses, or patio homes to be constructed on said property. 4. That there shall be no change to increase the number of lots or reduce the size of lots as shown in the preliminary plat submitted with the request for annexation, zoning and preliminary plat approval, which is incorporated herein as if set forth in full herein. 5. That DEVELOPER will, before annexation, or de-annexation, fIle or cause to be filed with the City Engineer, a complete set of "Subdivision Improvement Plans" showing all streets, utilities, pressurized irrigation facilities, sewer, water, drainage, street and other similar signing and barricades, and other such improvements contemplated within the subdivision, which Plans and all improvements shown thereon shall meet the approval of the City Engineer. The Subdivision Improvement Plan, or Plans supplemental thereto, shall also show the WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 2 proposed location of pressurized irrigation facilities within or that may affect or be affected by the development. Said Subdivision Improvement Plans are incorporated herein and made a part hereof by reference. 6. That DEVELOPER will, at his, its or their own expense, construct and install all sanitary sewers, storm drains, pumping stations, water mains and appurtenances, fire hydrants, curbs, gutters and sidewalks, pressurized irrigation system, electrical transmission lines, natural gas lines, telephone lines, sidewalks, cross drains, street, street surfacing,street signs, and barricades as well as any and all other improvements shown on the Subdivision Improvement Plans. DEVELOPER shall also install telephone, electrical power, gas lines, and television as required for the development. 7. That DEVELOPER will construct and install all such improvements in strict accordance with the filed and approved plat and Subdivision Improvement Plans, and the City Standard Engineering Drawings and Standard Engineering Specifications current and in effect at the time the construction of said improvements is accomplished, or as otherwise agreed between the DEVELOPER and the CITY if the standards and specifications are more restrictive and onerous at the time of construction than at the time of execution of this Agreement. 8. That DEVELOPER will provide the City Engineer with at least fifteen (15) days advance written notification of when and of what portion, or portions, of said improvements he intends to complete and the time schedule therefor; and agrees to make such modifications and/or construct any temporary facilities necessitated by such phased construction work as shall be required and approved by the City Engineer. 9. That DEVELOPER will have "corrected" original drawings of the Subdivision Improvement Plans of all said improvements prepared by a Registered Professional Engineer and will provide the CITY with said Plans or a duplicate mylar copy of said Plans. The Subdivision Improvement Plans of the proposed improvements shall be "corrected" to show the actual constructed location (both horizontally and vertically) of the various water and sewer lines, all utility lines, and pressurized irrigation lines and their individual building service lines, the curb and gutter alignment and grades, etc. The "corrected" Subdivision Improvement Plans shall include a "Certification" thereon, signed by the Registered Professional Engineer in charge of the work, that said Plans of the various improvements are true and correct. WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 3 10. 11. 12. That DEVELOPER will, immediately upon the completion of any such constructed portion, portions, or the entirety of said development, notify the City Engineer and request his inspection and written acceptance of such completed improvements. That DEVELOPER agrees, that upon a finding by the City Council, duly entered in the official minutes of the proceedings of the City Council, that a portion, or portions, or the entirety of said improvements need to be completed in the interest of the health, welfare and/or safety of the inhabitants of the CITY, the DEVELOPER will thereupon, within a reasonable time, construct said needed improvements, or, if he does not so construct within a reasonable time after written notification of such Council action, and the CITY thereafter determines to construct, and does construct such improvement, or improvements, the DEVELOPER will pay to the CITY the cost of such construction, in such manner and under such terms as the CITY shall order, after conference with the DEVELOPER or attempted conference after notice to DEVELOPER. Provided, however, the City Council shall not make the finding set forth in this paragraph except at a regular or special meeting of the City Council and unless the DEVELOPER has been notified in writing of the time and place of such meeting at least three (3) days prior thereto and has been given an opportunity to be present in person or by counsel, and to be heard on the merits of the proposed finding. That DEVELOPER agrees that upon his, its, or their having received written notification from the City Engineer, that any of the requirements herein specified have not been complied with, that the CITY shall have the right to withhold the issuance of any Certificates of Occupancy within such annexed area and/or shall have the right to withllold the providing of culinary water service to any part, parcel, or portion of such annexed area until such time as all requirements specified herein have been complied with; provided, however, the DEVELOPER shall have the right to appear before the City Council at any regular meeting after any Certificate of Occupancy or any water service shall have been withheld for reasons set forth in this paragraph, and shall have the right to be heard as to why such Certificate of Occupancy should be issued or water service allowed. The Council shall then decide whether said Certificate of Occupancy shall be issued or water service to said property allowed, and its decision shall be final, except that the rights of the parties are preserved at law and equity. 13. DEVELOPER agrees that, in the event any of the improvements required herein are not timely installed, the CITY may, at its sole option, install the improvements and declare the entire cost of said improvements to be immediately due and payable and may seek to collect such sums in the manner provided by law, or may pursue any other remedy set forth herein or as may be available in law or equity. In the WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 4 14. 15. event of such declaration, all sums due shall bear interest at the prime interest rate of First Security Bank of Idaho, plus five percent (5%) per annum, until paid. That DEVELOPER agrees to, and does hereby, grant a security interest in the land which is the subject of this Agreement, to secure the installation of all improvements including, but not limited to, sewer, water, irrigation and drainage piping, pressurized irrigation system, landscaping and beTIDing, and fencing. In the event of DEVELOPER's failure to complete such installation, the CITY may install such improvements and, without notice, foreclose this Agreement as a mortgage in accordance with the mortgage foreclosure laws of the State of Idaho; provided further that upon request of the DEVELOPER, the CITY will execute and deliver a partial release of the lien created herein against all or any portion of the subject land, upon completion of that portion of the total improvements installed which relates to the percentage of improvements that have been installed as compared to the total amount of improvements. The CITY further agrees that, upon request of DEVELOPER, the CITY will, by written agreement, subordinate the lien created hereby, to any mortgage, deed of trust, or other security device required to secure the payment of any loan or advance made to DEVELOPER for the sole purpose of fmancing the construction of improvements upon the land which is the subject of this Agreement; provided, however, that the financing entity shall first warrant and represent in writing that it understands that the contemplated loan or advances will be used solely for the construction of improvements upon the land and that it will take reasonable precautions usual and customary to the financing and lending industry to ensure that the loan proceeds or advances will not be used for any other purpose. The CITY may also require surety bonds, irrevocable letters of credit, cash deposits, certified checks or negotiable bonds, as allowed under 11-9-606 C of the Revised and Compiled Ordinances of the CITY of Meridian, to insure the installation of the improvements, and the DEVELOPER agrees to provide such, if required by the CITY. That DEVELOPER agrees that those portions of the water main or the sanitary sewer line, for which the CITY has expressly agreed to enter into a late comers agreement, if any, for including any water or sewer line extensions, increased line size or capacity, are required because of future service needs originating from properties not owned by DEVELOPER and located within the vicinity of the subject development; that sound planning requires construction thereof at the present time in order to accommodate future expansion and development. In recognition of the cost savings which can be accomplished by construction of such WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 5 16. 17. 18. excess capacity and/or improvements concurrently with the facilities to be constructed for DEVELOPER's purposes, and the impracticality or impossibility of constructing such excess capacity and/or improvements separately or at a later time, DEVELOPER agrees to design and construct such facilities subject to the CITY's agreement to enter into a late comers agreement to reimburse DEVEWPER for a portion of the costs of such excess capacity. DEVELOPER agrees to obtain three independent bona fide bids for the performance of such work ftom qualified and responsible contractors and shall deliver copies of such bids to the CITY prior to the commencement of such work. Such bids shall be solicited and itemized in a manner which allows clear and specific identification of that portion of the construction work for which the CITY may possibly agree to enter into a late comers agreement. The CITY's obligation to enter into a late comers agreement to help DEVELOPER to pay for such costs shall be limited to the lowest of such bids irrespective of whether the lowest bidder is in fact selected by DEVELOPER to perform the work. That DEVELOPER agrees that no Certificates of Occupancy will be issued until all improvements are completed, unless the CITY and the DEVELOPER have entered into an addendum agreement stating when, the improvements will be completed in a phased development; 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. That DEVELOPER agrees, in recognition of the unique and peculiar circumstances relative to this development, to the special conditions set forth in Exhibit "B" attached hereto and by this reference made a part hereof; and agrees to construct a perimeter fence around the entire parcel prior to any construction, except where roadways and streets for access are located and except where the CITY has agreed that such fencing is not necessary. That DEVELOPER agrees that any notice required by this Agreement shall be given at the following address: CITY of Meridian: City Engineer City of Meridian 33 East Idaho Meridian, ID 83642 DEVELOPER: Whitestone DevelQpment Company. LLC I..a.n:y Van Hees, Managinj¡' Partner 410 S. Orchard Suite 124 Boise, ID 83705 19. That DEVELOPER agrees to pay all recording fees necessary to record this Agreement with the Ada County Recorder's office. WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 6 20. All covenants and conditions set forth herein shall be appurtenant to and run with the land and shall be binding upon DEVELOPER's heirs, successors or assigns. 21. This Agreement shall become valid and binding only upon its approval by the City Council and execution of the Mayor and City Clerk. That 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. 22. DATED the date, month and year first appearing. DEVELOPER: CITY OF MERIDIAN &¿ffi)~; ert . Corrie, Mayor ~~p WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 7 STATE OF IDAHO) ss. County of Ada On this ~ day of I/.u ¿¡asrf, 1996, before me, the undersigned, a Notary Public in and for said State, perso~ Larry Van Hees, known, or proved to me, to be the Managing Partner of said partnership that executed this instrument and the person who executed the said instrument on behalf of said partnership, and acknowledged to me that such partnership 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. (SEAL) """"""""" ,'\CEL. Q" ~"6"'::" .' " ,u. '\. ¡"> ~O"\'AIi'J. tJI \ ~;.* "AlIB\.,cl*} ~. .r~~ .' ",,:4,[ Of \'O~"", ""...."",....., STATE OF IDAHO) ss. County of Ada On this ~ day of .4~ ~f , 1996, before me, the undersigned, a Notary Public in and for said State, personally app ed ROBERT D. CORRIE and WILLIAM G. BERG, JR., known to me to be the Mayor and City Clerk, respectively, of the City of Meridian that executed this instrument and the, persons who executed the said instrument on behalf of said corporation, and acknowledged to me that said City of Meridian 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. .,."£"i.:""", ",~'\c. -~', Q-1"" l" <1';-:;. r' ~o1AIi'J. \ : ... 1*: ~* AlIs\."" , f \.~I\.' -!.~i' "'41: .....ç;~", '." f Of II .", """"",.,., (SEAL) WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page 8 .:/ A& 290 North Maple Grove Road Boise, ID 83704 (208) 378-6380 Fax (208) 378-0025 1'ROJBCI': 143050 DAiE: JUDe 5, 1996 Revised :JUDe3,1996 DESCRIPTION FOR WHI'ŒSTONEESTA TES SUBDMSION A PORTION OF LOT 7 VAN HEES SUBDMSION AND A PORTION OF THE WEST 1/2 OF THE EAST 1/2 OF THE NORTHEAST 1/4 SECTION 14 TOWNSHIP '3 NORTH, RANGE 1 WEST, BOISE MERIDIAN MERIDIAN, ADA COUNTY, IDAHO Aparcel ofland,being.a portion ofLotÎ V.anHees"Subdivision and a portion of the West 1/2 of theEastl12,oftheNortheast 114, Section 14, Township 3 Notth,Bal!gel West, Boise Meridian, Meridian, Ada County, Idaho,.andmore particularly>desClibedasfollows: 'Beginning at aninm pin mai'kinlrthe,Nortbeast:corner of the said NortheasU/4 ofSecûon 14; , , thence along the Easterly boundary,ofthe sÌ1idNortbeastl/4 of Section 14, said Easterly boundary also being the centerline of South Linder Road, ,South,OO~3'.o8" West 578,41 feetto an iron pin; ;tbenœ le8vingsaidEasterlybOllndary,and œnœrIine,South78"14'15" West 46,06 feet to a,2" galvanized pipe 'nuuking a point on the .southerly right.Œf.way .ofTen Mile Dmin, said'2" galvanized pipe also,being,the'REALPOINT OF BEGINNJNG ,(Initial Point); thence along the Southerly right-of-way ofTen MileDmin the following courses and distances; thenœcontinuing South 78°14'15" West 634;18 to an iron pin, ,said iron pin marking the Westerly boundary of Van Bees Subdivision as filed for record in theoflice of the Ada County Recorder, Boise, Idaho, in Book 19 of P1ats at Page un; thence along said Westerly boundary, North OOOJ3'43" East28.98 feet to an iron pin; 1hence.leavingsaid Westerly boundary of Van Hees'Subdivision,South 75°01'43" West 689.4Î feet to iron pin ,marking a point on the Wester1yboundary oftbesaidWestll2 of the East 1/2 of the Nortbeast 1/4, Section 14; , 1hence leaving said Southerly right-of-way and along said Westerly boundary,' South 00°34' 18" West 568.79 feet1o.an iron pin; ,thence1eaving said Wester1yboundary, South 89°.25'-42"-Eastl00.00feet to an iron-pin; thence ,North 44°42'07" East Îl.81 feet to an iron pin; thence South 89°25'42" East 105.00 feet to an iron pin; thence North Oo034'18"'East 357.70 feet ,to an iron pin; !hence South 89°25'42" East 105.00 feet to,aniron pin; thenœNorth 59°23'19': East 58,44 feet ,to an iron pin; thence South 89°25'42" East 100.00 feet to an iron pin; Pacific Land Surveyors, a cliviBion of POWER Engineers. Inc.. an Idaho Corporation \ \ 'thence North 00°34'18» East 11.49 feet to andronpin; thence South 89°25'42" East 80.00 feet to an iron pin; thence North 75°31'43» East 165.68 feetto,an iron pin; thence North 80°01'21» East 95.86 'feet to an ironlJin; thence South 73°55'37" East 166.06 feet to an iron pin; thence North 00°33'08» East 22.99 feet to an iron pin; thence .South 89°26'52" East 100.00 feet to an iron pin; thence South 89°48'16" BastSO.OO'feettoanmm pin; thence South 89°26'52" East 150.00 feet to an iron-pinmarking the Westerly right-of-way of South Linder Road; thence along said Westerly righto()f-way, North 00°33 '08» East 372,68 feet to an iron pin; thence leaving said Westerly righto()f-way, South 78°14'15" West 20.47 feet,to the point of beginning. Comprising 10.27 acres, more or less. SUBJECT TO: All.existingeasements and road rights-of-way of record or appearing on theabovCHlescribed parcel of land. Prepared by: PACIFIC LAND SURVEYORS JoboT. (Tom) Eddy, P.L.S, JTE:beb EXHIBIT "B" TO THE DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MERIDIAN, IDAHO AND WHITESTONE DEVELOPMENT COMPANY, LLC This subdivision is for 35. lots with an overall density of 3.Æ} dwelling units per acre. The DEVEWPER shall: Construct a non-combustible fence along Ten Mile Creek outside existing NampacMeridian Irrigation District/U .S. Bureau of Reclamation easementlright-of-way prior to obtaining building permits. 1. Submit detailed landscape plan of 20' wide berm along Linder Road for approval prior to construction and provide a letter of credit, cash, or appropriate bonding prior to signature on the final plat; no fencing shall encroach on tills 20' planting strip, located beyond required right-of-way of 45' ITom centerline, 2, 3, Agree to construct, at its sole cost, a bike path on a strip oflandcontaining Ten Mile Creek, wlúch land (hereinafter "the Strip") is adjacent to the northern boundary of Phase I of the development and to construct a new pedestrian bridge across Ten Mile Creek at the location of the existing bridge, all according to the following conditions and requirements: a, The bike path shall be in the right-of-way ofTen Mile Creek, 10' in width, and shall be paved with 2" asphalt over a 6" gravel underlayment, according to the attached plan prepared by Tom South; b, The pedestrian bridge shall be 6' in width with steel girders and steel handrails, to be constructed when the property on the north side ofTen Mile Creek is developed; c, The City of Meridian shall work with the Developer to obtain written approvals ITom the Bureau ofRec1amation and/or Nampa-Meridian Irrigation District to permit the construction; d. Construction of the path will be commenced witlún 90 days ITom approval by the Bureau of Reclamation and/or Nampa-Meridian Irrigation District. All construction shall thereafter be completed in 180 days; e, Developer and Wlútestone Homeowners' Association shall have no further duty to improve or maintain the bike path, bridge, or adjacent areas in the Strip upon acceptance of the completed pathway by the City; and EXHIBIT "B" WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page I of 2 4. 5. 6. 7. 8. 9. 10. II. 12. 13. f Developer and Whitestone Homeowners' Association shall have no liability for any claim of injury or death or resulting damages arisingftomany accident or incident occuning in or on the Strip, except for any claims that arise as a result of Developer's or Whitestone Homeowners Association's actions or inactions, Provide permanent perimeter fencing prior to obtaining building permits, except where the City has agreed in writing that such fencing is not necessary. Tile all ditches, canals and waterways, including those that are property boundaries or only partially located on the property, unless downstream water users and the irrigation district determine they can be abandoned or a variance is granted by the City; Ten Mile Creek is excluded from this requirement. Extend and construct water and sewer line extensions to serve the property and connect to Meridian water and sewer lines, as well as extending and constructing water and sewer ,line extensions through the property; Construct curbs, gutters, sidewalks and streets to and within the property. Pay any development, impact or transfer fee adopted by the CITY. Meet the requirements and conditions of the Findings of Fact and Conclusions of Law and meet the ,Ordinances of the CITY. Construct and install pressurized irrigation to all lots within this subdivision prior to obtaining building permits. Provide pedestrian walkways in accordance with Meridian City Ordinance 11-9-605 C. Construct sewage lift station to City standards and enter into a maintenance agreement with the City of Meridian, under terms and conditions to be approved by the Public Works Department, prior to obtaining building permits; prepare and submit proposed agreement for review by the Meridian Public Works Director prior to signature on the final plat. Petition the City Council for amendment to this development agreem~nt at such time as future phases of Whitestone Subdivision are proposed to incorporate specific requirements. EXHIBIT "B" WHITESTONE SUBDIVISION DEVELOPMENT AGREEMENT Rev. 8/06/96 Page20f2