PZ - REVISED DRAFT DEVELOPMENT AGREEMENT 10-30-19
DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Donald Cantrell, Owner
2. Sky Mesa Development, LLC, Developer
THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into
this ______ day of ________________, 2020, by and between, the City of Meridian, a
municipal corporation of the State of Idaho, hereafter called CITY, whose address is 33 E.
Broadway Avenue, Meridian, Idaho 83642 and Sky Mesa Development, LLC whose
address is 729 S. Bridgeway Place, Eagle, Idaho 83616 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” 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, Idaho Code § 67-6511A 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
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 annexation
and zoning of the Property described in Exhibit “A”, requesting a
designation of Medium Low-Density Residential District (R-4) under the UDC
and generally describing 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 subject Property will be developed
and what improvements will be made; and
1.6 WHEREAS, the 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, includes
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 _________________, 2020, 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 the
final plat; and
1.9 WHEREAS, Owner/Developer deem it to be in their best interest to be able
to enter into this Agreement and acknowledges that this Agreement was
entered into voluntarily and at their 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 re-zoning
designation is in accordance with the amended Comprehensive Plan of
the City of Meridian on October 11, 2016, Resolution No. 16-1173, 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: means and refers to Donald Cantrell, whose address is 3000 E. Lake
Hazel Road, Meridian, Idaho 83642 the party that own said Property and
shall include any subsequent owner(s) of the Property.
3.3 DEVELOPER: means and refers Sky Mesa Development, LLC, whose address
is 729 S. Bridgeway Place, Eagle, Idaho 83616, the party that is developing
said Property and shall include any subsequent owner/developer(s) of the
Property.
3.4 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 re-zoned R-4 (Medium Low-Density Residential District)
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.
5. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY:
5.1. Developer shall develop the Property in accordance with the following
special conditions:
5.1.1 Future development of this site shall be general consistent with the
preliminary plat, landscape plan, and building elevations (photos)
depicted in Exhibit “A” of the Staff Report and the conditions noted
in said staff report that is an exhibit to the Findings of Fact and
Conclusions of Law, attached hereto as Exhibit “B”.
5.1.2 The subdivision shall contain 8,000 square foot minimum lot sizes with
a maximum residential lot count of 75 new building lots.
5.1.3 Any two story homes that are constructed on Lots 9-15, and Lots 31-
38, Block 1 may be visible from S. Eagle Road, an arterial street.
Therefore, the rear elevations of two story homes shall incorporate
articulation through changes in two or more of the following:
material type, projections, recesses, step-backs, bays, banding,
pop-outs, porches, balconies or other architectural elements to
break up monotonous wall planes, and roof lines.
5.1.5 The height of structures located on Lots 15-27, Block 3 shall be limited
to a maximum height of five feet below the building pad elevation
of the property located at 3000 E. Lake Hazel Road, which is
estimated to be 2760.
5.1.6 Direct lot access to E. Lake Hazel Drive and S. Eagle Road is
prohibited in accord with UDC 11-3A-3. Except that Lot 29, Block 1
can continue to use its current access on Eagle Road.
5.1.7 The Developer shall be responsible for all costs associated with the
sewer and water service extension.
5.1.8 The existing amenities (i.e. clubhouse, swimming pools, playgrounds,
sports fields/courts, parking lots) located within the Sky Mesa and Sky
Mesa Commons subdivisions, will be available for use by the
residents within the Sky Mesa Highlands subdivision.
6. COMPLIANCE PERIOD This Agreement must be fully executed within two (2) years
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. In the event Owner/Developer, or Owner’s/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 terminated by the City in accordance
with the requirements of the Zoning Ordinance.
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 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, 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.
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 either a memorandum of this
Agreement or 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 that installation of the improvements, which the Owner/Developer agrees
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 Owners and/or 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: with copy to:
City Clerk City Attorney
City of Meridian City of Meridian
33 E. Broadway Avenue 33 E. Broadway Avenue
Meridian, Idaho 83642 Meridian, Idaho 83642
OWNER: DEVELOPER:
Donald Cantrell Sky Mesa Development, LLC
3000 E. Lake Hazel Road 729 S. Bridgeway Place
Meridian, Idaho 83642 Eagle, Idaho 83616
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 sections.
15. 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.
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 party 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 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 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 has fully performed
its 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
Agre ement 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. 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.
ACKNOWLEDGMENTS
IN WITNESS WHEREOF, the parties have herein executed this agreement and made
it effective as hereinabove provided.
OWNER:
Donald Cantrell
________________________________________
By:
DEVELOPER:
Sky Mesa Development, LLC
________________________________________
By:
CITY OF MERIDIAN ATTEST:
Mayor Tammy de Weerd C. Jay Coles, City Clerk
________________________________________ _______________________________________
By: By:
STATE OF IDAHO )
: ss:
County of Ada, )
On this ____ day of ___________, 2020, before me, the undersigned, a Notary Public in
and for said State, personally appeared Donald Cantrell, known or identified to me to be the
owner of the property, and acknowledged to me that he 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) _________________________________
Notary Public for Idaho
Residing at: ______________________
My Commission Expires: ___________
STATE OF IDAHO )
: ss:
County of Ada, )
On this ____ day of ___________, 2020, before me, the undersigned, a Notary Public in
and for said State, personally appeared _________________________, known or identified to me
to be the ____________________ of Sky Mesa Development, LLC, and acknowledged to me
that he executed the same on behalf of said Limited Liability Company.
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) _________________________________
Notary Public for Idaho
Residing at: ______________________
My Commission Expires: ___________
STATE OF IDAHO )
: ss
County of Ada )
On this__________ day of ___________________, 2020, before me, a Notary Public,
personally appeared Tammy de Weerd and C. Jay Coles, 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.
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) ___________________________________
Notary Public for Idaho
Residing at: _______________________
Commission expires: _______________