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CC - Existing DAADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 54 BOISE IDAHO 06/30/11 11:35 AM DEPUTY Use Ball RECORDED - REQUEST OF III I�II�II�II�II�IIIIIIIIIIIIIIII ��� Meridian City 111052691 DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. H.O.T. 1, LLC, Owner/Developer THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into this-?, day of\,Jjne, , 2011, by and between City of Meridian, a municipal corporation of the State of Idaho, hereafter called CITY, and H.O.T. 1, LLC, whose address is 3698 E. Lanark, Meridian, ID 83646, 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, 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, Developer has submitted an application for a Modification of the Development Agreement dated 2-28-08, instrument # 108022893; and 1.4 WHEREAS, Owner/Developer made representations at the public hearing before the Meridian City Council, as to how the subject Property will be developed and what improvements will be made; and 1.5 WHEREAS, City and Owner/Developer entered into that certain Development Agreement that was approved in 2005 and recorded as Instrument # 106002636. 1.6 WHEREAS, City and Owner/Developer now desire to remove a portion of land referred to as Exhibit "A" from the original Development Agreement, and enter into a new Development Agreement for that portion of land which terms have been approved by the Meridian City Council in accordance with Idaho Code Section 67-6511. DEVELOPMENT AGREEMENT- SCENTSY (MDA 10-010) PAGE 1 OF 9 1.7 WHEREAS, record of the proceedings for the requested development agreement modification for the subject Property held the City Council, include responses of government subdivisions providing services within the City of Meridian planning jurisdiction, and received further testimony and comment; and 1.8 WHEREAS, City Council, the 4h day of January, 2011, has approved 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 1.9 WHEREAS, the Findings of Fact and Conclusions of Law and Decision and Order requires the Owner/Developer to enter into a development agreement to reflect the change of ownership in the subject property; and 1.10 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 requests; and 1.11 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 in accordance with the amended Comprehensive Plan of the City of Meridian adopted August 6, 2002, Resolution No. 02-382, and the Zoning and Development Ordinances codified in Meridian Unified Development Code, 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 2 OF 9 3.2 OWNER/DEVELOPER: means and refers to H.O.T. 1, LLC, 3698 E. Lanark, Meridian, ID 83642, the party that is developing said Property and shall include any subsequent 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 zoned C -G (General Commercial District) 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 Unified Development Code § 11-2B-2. 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. Owner/Developer shall develop the Property in accordance with the following special conditions: 1. Development of the property shall substantially comply with the conceptual site plan and elevation submitted with the subject application and the concepts outlined below. 2. The following concepts shall be employed in the development of the property: a. General massing of buildings, roundabouts and landscape islands in streets shall be constructed as generally shown on the conceptual site plan prepared by CTA, Inc., dated 11-12-10. b. Pedestrian connections shall be constructed between buildings in the form of pathways distinguished from vehicular driving surfaces through the use of pavers, colored or scored concrete, or bricks; c. Common areas with site amenities (i.e., plazas/courtyards, water features, picnic areas, flower gardens, public art, etc.) are encouraged to be included within the development. d. Exterior building walls should demonstrate the appearance of high quality materials of stone, brick, wood, or other native materials (acceptable materials include tinted or textured masonry block, textured or painted DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 3 OF 9 architectural concrete panels, or stucco or stucco like synthetic materials. Smooth faced concrete block, tilt -up concrete panels, or prefabricated steel panels are acceptable with the addition of paint and/or high quality accent materials. e. The building design shall incorporate at least 2 changes in one or a combination of the following: color, texture and materials; f. Rooflines shall demonstrate 2 or more of the following: overhanging eaves, sloped roofs, two or more roof planes, varying parapet heights, and cornices; g. The primary building entrances shall be clearly defined by the architectural design of the building. h. Buildings will be constructed in the order they are generally listed on the conceptual site plan (A, B, C, etc.) i. Building "A" is an accessory use within the current zoning designation and will be permitted to be constructed prior to other principally permitted structures (B or C) per this agreement. j. The construction of either building B or C will commence within 30 months of completing the previous building. 6. COMPLIANCE PERIOD/CONSENT TO REZONE: This Agreement and the commitments contained herein shall be terminated, and the zoning designation reversed, upon an uncured material default of the Owner/Developer or Owner/Developer's heirs, successors, assigns, to comply with Section 5 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 Idaho Code § 67-6509, or any subsequent amendments or recodifications thereof. 7. DEFAULT/CONSENT TO DE -ANNEXATION AND REVERSAL OF ZONING DESIGNATION: 7.1 Acts of Default. Either party'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 (3 0) 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 4 OF 9 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, at Owner's and/or 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 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 5 OF 9 10. ZONING: The current zoning of C -C (General Commercial) shall remain. 11. 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. 11.1 Subject to Sections 6 and 7 of this Agreement, in the event of an uncured material breach of this Agreement, the parties agree that City and Owner and/or 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 reasonably necessary to complete the curing of the same with diligence and continuity. 11.2 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. 12. 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 § 11-5-C, to insure that installation of the improvements, which the Owner/ Developer agrees to provide, if required by the City. 13. CERTIFICATE OF OCCUPANCY: The Owner/Developer agree that no Certificates of Occupancy will be issued in any phase in which the improvements have not been installed, completed, and accepted by the City or otherwise entered into an approved letter of credit for unfinished improvements. 14. 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 6 OF 9 15. 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. with copy to: City Attorney City of Meridian 33 E. Broadway Avenue Meridian, ID 83642 OWNER/DEVELOPER: H.O.T. 1, LLC 3698 E. Lanark Meridian, ID 83642 Phillip E. Broadbent Scentsy, Inc. 3698 E. Lanark Meridian, ID 83642 15.1 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. 16. 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. 17. 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. 18. 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 and/or 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 and/or 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. DEVELOPMENT AGREEMENT- SCENTSY (MDA 10-010) PAGE 7 OF 9 19. 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. 20. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, condition and understandings between Owner and/or 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 and/or 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. 20.1 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. 21. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date of 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. ATTEST: fycee U Holman, City CI�i6rk DEVELOPMENT AGREEMENTr�' OWNER/DEVELOPER: H.O.T. 1, LLC CITY OF MERIDIAN Y �.. Mayory de Weerd T r O` �T"' PAGE 8 OF 9 STATE OF IDAHO, ss County of Ada, On this day of Gt•r , 2011, before me, the undersigned, a Notary Public in and for said State, personally appeared �. ©rO7(G c�wy7S�72� , known or identified to me to be the M r41{,y of H.O.T. 1, LLC, and acknowledged to me that they 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. STATE OF IDAHO ) ss County of Ada ) Notary Pubbk4 tbi Residing at: My Commission J'e� )04 On this a$ day of l � Une. , 2011, before me, a Notary Public, personally appeared Tammy de Weerd and Jaycee L. Holman, know or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who 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. ••••uses•• �Essl� •. � oT�, (S A0• 9�0• NohlrY Pub is Ida Residing at:�- 4 a,n l p Commission expires`.Jftjc—¢�� DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 9 OF 9 FAI DESCRIPTION FOR PINEBRIDGE PROPERTY LINE ADJUSTMENT R.O.S. NO. 8793 PARCEL 2 JUNE 1, 2010 A PARCEL OF LAND BEING A PORTION OF THE SE Y OF SECTION 8, TOWNSHIP 3 NORTH, RANGE 1 EAST OF THE BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE SE % (EAST %a CORNER) OF SECTION 8, T. 3 N., R. 1 E., B.M., ADA COUNTY, IDAHO, THENCE S 01 °02'07" W 83.97 FEET ALONG THE EAST LINE OF THE SE'/ OF SAID SECTION 8 TO A POINT; THENCE N 88°57'53" W 70.00 FEET TO THE INTERSECTION OF THE SOUTH RIGHT OF WAY OF PINE AVENUE AND THE WEST RIGHT OF WAY OF EAGLE ROAD, THE REAL POINT OF BEGINNING OF THIS DESCRIPTION; ALONG THE WEST RIGHT OF WAY OF EAGLE ROAD THE FOLLOWING: THENCE S 01 002'07' W 738.04 FEET TO A POINT; THENCE S 71 °10'34" W 74.43 FEET TO A POINT; THENCE S 01°02'07" W 50.00 FEET TO A POINT; THENCE S 69°31'00" E 13.77 FEET TO A POINT; LEAVING THE WEST RIGHT OF WAY OF EAGLE ROAD: THENCE N 88055'23" W 1795.14 FEET TO A POINT ON THE EAST RIGHT OF WAY OF PROPOSED HICKORY AVENUE EXTENDED; ALONG THE EAST RIGHT OF WAY OF PROPOSED HICKORY AVENUE EXTENDED THE FOLLOWING: THENCE N 00°03'42" E 50.01 FEET TO A POINT; THENCE N 44025'50" W 28.53 FEET TO A POINT; 35 ACRES PARCEL THENCE N 00°03'42" E 712.37 FEET TO A POINT; THENCE N 44°51'22" E 28.39 FEET TO A POINT ON THE SOUTH RIGHT OF WAY OF PINE AVENUE; ALONG THE SOUTH RIGHT OF WAY OF PINE AVENUE THE FOLLOWING: THENCE N 89039'03" E 1243.25 FEET TO A POINT; THENCE S 8701631" E 209.78 FEET TO A POINT; THENCE N 89°39'03" E 392.91 FEET TO A POINT; THENCE S 45'16'30" E 28.25 FEET TO THE REAL POINT OF BEGINNING OF THIS DESCRIPTION, THIS PARCEL CONTAINING 35.344 ACRES, MORE OR LESS. THIS PARCEL. IS SUBJECT TO ALL EXISTING EASEMENTS AND RIGHTS OF WAY. MICHAEL E. MARKS, PLS NO. 4998 35 ACRES PARCEL CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER a EroR inrr�- DAHJ In the Matter of the Request for a Modification to the Development Agreement for Pinebridge to Exclude the Subject Property and Require a New Development Agreement for the Scentsy Campus; and Variance to UDC I1-3H4B2 to Allow One (1) Right- In/Right-Out Access to/from the Site via Eagle Road Midway between Pine Avenue & Commercial Street for the Property Located on the Southwest Corner of Pine Avenue and N. Eagle Road, by Sam Johnson, HOT 1, LLC. Case No(s). MDA -10-010; VAR -10-002 For the City Council Hearing Date of: December 21, 2010 (Findings on January 4, 2011) A. Findings of Fact 1. Hearing Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 2. Process Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 3. Application and Property Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 4. Required Findings per the Unified Development Code (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) B. Conclusions of Law 1. The City of Meridian shall exercise the powers conferred upon it by the "Local Land Use Planning Act of 1975," codified at Chapter 65, Title 67, Idaho Code (I.C. §67-6503). 2. The Meridian City Council takes judicial notice of its Unified Development Code codified at Title 11 Meridian City Code, and all current zoning maps thereof. The City of Meridian has, by ordinance, established the Impact Area and the Amended Comprehensive Plan of the City of Meridian, which was adopted August 6, 2002, Resolution No. 02-382 and Maps. 3. The conditions shall be reviewable by the City Council pursuant to Meridian City Code § 11-5A. CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASENO(S). MDA -]0-010; VAR -10-002 -1- 4. Due consideration has been given to the comment(s) received from the governmental subdivisions providing services in the City of Meridian planning jurisdiction. 5. It is found public facilities and services required by the proposed development will not impose expense upon the public if the attached conditions of approval are imposed. 6. That the City has granted an order of approval in accordance with this Decision, which shall be signed by the Mayor and City Clerk and then a copy served by the Clerk upon the applicant, the Planning Department, the Public Works Department and any affected party requesting notice. 7. That this approval is subject to the Conditions of Approval all in the attached Staff Report for the hearing date of December 21, 2010, incorporated by reference. The conditions are concluded to be reasonable and the applicant shall meet such requirements as a condition of approval of the application. C. Decision and Order Pursuant to the City Council's authority as provided in Meridian City Code § 11-5A and based upon the above and foregoing Findings of Fact which are herein adopted, it is hereby ordered that: 1. The applicant's request for a development agreement modification to exclude the subject property from the development agreement for Pinebridge and require a new development agreement for the Scentsy Campus, is hereby approved per the provisions in the attached Staff Report for the hearing date of December 21, 2010, attached as Exhibit A. 2. The applicant's request for a variance is hereby approved per the Staff Report for the hearing date of December 21, 2010, attached as Exhibit A. D. Notice of Final Action and Right to Regulatory Takings Analysis 1. The Applicant is hereby notified that pursuant to Idaho Code 67-8003, the Owner may request a regulatory taking analysis. Such request must be in writing, and must be filed with the City Clerk not more than twenty-eight (28) days after the final decision concerning the matter at issue. A request for a regulatory takings analysis will toll the time period within which a Petition for Judicial Review may be filed. 2. Please take notice that this is a final action of the governing body of the City of Meridian, pursuant to Idaho Code § 67-6521 an affected person being a person who has an interest in real property which may be adversely affected by the issuance or denial of the conditional use permit approval may within twenty-eight (28) days after the date of this decision and order seek a judicial review as provided by Chapter 52, Title 67, Idaho Code. E. Attached: Staff Report for the hearing date of December 21, 2010 CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 -2- By action of the City Council at its regular meeting held on the 7r vday of -.'–k JAUAe&2�—' 2011. COUNCIL MEMBER DAVID ZAREMBA VOTED Uk 0- -0 --- COUNCIL MEMBER BRAD HOAGLUN VOTED COUNCIL MEMBER CHARLIE ROUNTREE VOTED COUNCIL MEMBER KEITH BIRD VOTED MAYOR TAMMY de WEERD VOTED (TIE BREAKER) Mayor T de Weerd ```1111;1 i x11111. Attest: \`0�`�yR,alq O Jaycee H an, City Clerk _ EAL- o�, Copy served upon Applicant, The Plannii 14'nt.',ublic Works Department and City Attorney. By: ler Of Dated: S 2 01 CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 -3- EXHIBIT A STAFF REPORT HEARING DATE: December 21, 2010 TO: Mayor and City Council E ICDIAN FROM: Sonya Watters, Associate City Planner IDAHO (208) 884-5533 SUBJECT: MDA -10-010; VAR -10-002 — Scentsy Campus I. SUMMARY DESCRIPTION OF REQUEST The Applicant, Sam Johnson, Hot 1, LLC, requests a modification to the development agreement for Pinebridge approved with the previous rezone of this property. Since the subject property is no longer part of the Pinebridge development, a new development agreement is proposed that will only apply to the subject property. Concurrently, a variance is requested to Unified Development Code (UDC) 11-3HAB2 which requires access to be provided from a street other than the state highway when a change or increase in intensity of use is proposed. The applicant proposes one (1) right-in/right-out access to/from the site via SH 55/Eagle Road. (See Section VIII for more information) II. SUMMARY RECOMMENDATION Staff recommends approval of the proposed variance in accord with the findings in Exhibit B and modification to the development agreement as detailed in Exhibits A.3 and A.4. The Meridian City Council heard these items on December 21.2010. At the public hearing. the Counc'1 annroved the subject MDA and VAR. realest. 71;11 V 1 =' I' 1 1 { II I I I I 11 1 1 1 1 1 1 I 1 1 1 1 111 11 l l l' 1 11 al t"I •1 1 1'I I1111 0 11 1 1 1' 1 1 1 1 1 11 1111 TIC11' 1 � 1 ' 1 1 : 1 1 1 1 1 1 1 1 I 1 1 I I' I I I I I I I 1 1 1 11 II T -N1, 1 1/ 1 1 1 I 1 1111111 ' 1 1" 1 1 I 11 M�P I' • 1. 1 1 11 1 1' I' : 11 : 1 1 t •/ I I' I ' 1 • I I 1 • I 111 11 7 1 MIMMrin • 1 1 1 1 1 11 I 111161110 #11101.2 M11.111.1 1 ' 71 I 1 I S I 1 11 11 1 1 1 1 1 III. PROPOSED MOTION (to be considered after the public hearing) Approval After considering all Staff, Applicant, and public testimony, I move to approve File Numbers MDA - 10 -010 and VAR -10-002, as presented in Staff Report for the hearing date of December 21, 2010, with the following changes: (insert any changes here). I further move to direct Legal Department staff to prepare a Development Agreement for this site that reflects the changes noted in Exhibit A.2. Scentsy Campus MDA -10-010; VAR -10-002 Page 1 EXHIBIT A Denial After considering all Staff, Applicant, and public testimony, I move to deny File Numbers MDA -10- 010 and VAR -10-002, as presented during the hearing on December 21, 2010. (You should state why you are denying the request.) Continuance I move to continue File Numbers MDA -10-010 and VAR -10-002 to the hearing date of (insert continued hearing date here) for the following reason(s): (you should state specific reason(s) for continuance) IV. APPLICATION AND PROPERTY FACTS A. Site Address/Location: The subject property is located on the southwest corner of Pine Avenue and N. Eagle Road, in the southwest '/o of Section 8, Township 3 North, Range 1 East. Parcel #S1108417320 B. Owner: Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 C. Applicant: Sam Johnson, Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 D. Representative: Sam Johnson, Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 E. Applicant's Statement/Justification: Please see applicant's narrative for this information. V. PROCESS FACTS A. The subject application is a request for a development agreement modification and a variance. Per Meridian City Code, a public hearing is required before the City Council on these matters. B. Newspaper notifications published on: November 29, and December 13, 2010 C. Radius notices mailed to properties within 300 feet on: November 29, 2010 D. Applicant posted notice on site by: December 9, 2010 VI. LAND USE A. Existing Land Use(s): This site consists of vacant undeveloped land. B. Character of Surrounding Area and Adjacent Land Use and Zoning: 1. North: Blue Cross Corporate Center (office), zoned I -L 2. East: Jacksons convenience store & fuel facility, zoned C -G; and equipment rental store, zoned, I -L Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A 3. South: Scentsy warehouse/office/manufacturing, zoned I -L 4. West: Vacant land, zoned C -G C. History of Previous Actions: ➢ This property was rezoned (RZ-07-010) from I -L to C -G in 2007 as part of the Pinebridge development. A development agreement was required with the rezone of the property, recorded as Instrument No. 108022893. A preliminary plat (PP -07-008) was approved that incorporated the subject property. A variance (VAR -07-007) for access to SH 55/Eagle Road via Commercial Street, a private street, was also approved. A variance for direct access to SH 55/Eagle Road midway between Pine Avenue and Commercial Street was also requested but later withdrawn. ➢ A Corporation Warranty Deed (Inst. #0107000563) was recorded in 1988 which granted an approach to SH 55/Eagle Road. ➢ In 2008, the Idaho Transportation Department (ITD) approved a variance to upgrade the existing access to a right-in/right-out commercial approach under Encroachment Permit 03- 08-319. The access was required to be centered between Pine Avenue and Commercial Street and have a right turn deceleration lane southbound on Eagle Road. ➢ On November 16, 2010, the TTD encroachment permit was transferred to the current owner of the property (see Exhibit A.7, permit #3-11-135). The permit states the access is approved with the distance from the nearest approach 440 feet from Pine Avenue and 432 feet from Commercial Street. D. Utilities: 1. Public Works: a. Location of sewer: N Hickory Ave. b. Location of water: E Pine Ave, Commercial St c. Issues or concerns: No concerns E. Physical Features: 1. Canals/Ditches Irrigation: NA 2. Hazards: Staff is not aware of any hazards that exist on this property. VII. AGENCY COMMENTS MEETING No comments were received by the Planning Department from other City departments for the subject application. Please see the public record for the MDA and VAR file for any written comments that may have been submitted by other agencies. VIII. STAFF ANALYSIS A. Development Agreement Modification (MDA): When the subject property was rezoned in 2007, it was part of the proposed Pinebridge development and was included in the development agreement (DA) for that project. Since that time, the property has been acquired by the applicant and is proposed to develop as a distribution center and corporate campus for Scentsy. Thus, the new owner/applicant proposes to separate this property from the existing DA and record a new DA solely for the subject property. The new DA proposed by the applicant includes a conceptual site development plan and Scentsy Campus MDA -10-010; VAR -10-002 Page 3 EXHIBIT A conceptual building elevations for the Scentsy campus which are included in Exhibits A.5 and A.6. The applicant has submitted a modified version of the existing DA, included in Exhibit A.3, which reflects the new ownership of the property, proposed development plan, and removal of parts that are no longer applicable. Condition #5.1.4 (d, e, f, and g) of the proposed DA includes specific design standards that are included in UDC 11-3A-19. Since the applicant is required to comply with these UDC, standards, Staff is of the opinion that it's not necessary to specify them in the DA. Therefore, Staff recommends these provisions be stricken from the DA and replaced with a requirement for the applicant to comply with the design standards listed in UDC I1 -3A-19 and the design guidelines contained in the City of Meridian Design Manual. The applicant also requests approval through the DA to construct the distribution center (Building A), which is classified in UDC Table 11-2B-2 as an accessory use in the C -G district, prior to construction of the office tower (Building B) and auditorium & fitness center (Building C), both classified as principal permitted uses in the C -G district (see Exhibit A.4). The applicant proposes to commence construction of either Building B or C within 30 months of completing Building A. Because a conceptual development plan has been submitted showing how the property will develop in the future with principal permitted uses in the C -G district, staff is amenable to the applicant `s proposal to construct the distribution center first followed by the other two structures in phases. In addition, the applicant is constructing a warehouse and has related facilities located immediately south across Commercial Avenue that are integrally related to the distribution facility. Please see Exhibit AA for Staff's recommended changes to the DA proposed by the applicant as discussed above. B. Variance (VAR): A variance to UDC 11 -3H -4B.2 is requested, which requires the owner to develop or otherwise acquire access to a street other than the state highway when a change or increase in intensity of use is proposed. The applicant proposes one (1) right-in/right-out (RIRO) access to/from the site via Eagle Road midway between Pine Avenue and Commercial Street with a right turn deceleration lane southbound on Eagle Road as shown in Exhibit A.8, consistent with ITD's approval (see Exhibit A.7). In 2007, a variance was requested for access to SH 55/Eagle Road between Commercial Street and Pine Avenue as currently proposed. The City Council heard the request but felt approving a variance for access at that time, prior to approval by TTD, was premature. In the minutes from that meeting, is was stated that Council's previous position had been to not allow access on state highways until the applicant had worked out any issues with the transportation department and received their approval. At such time, the applicant would request a variance from Council and generally get a favorable response. Based on this discussion, the applicant chose to withdraw the application and pursue a variance through ITD before requesting approval of a variance from the City. Subsequently, TTD has approved the variance for access and the applicant is now requesting approval of the variance from the City as recommended by Council. A traffic analysis, dated November 17, 2010, prepared by Stanley Consultants, was submitted with this application which considers and evaluates the intersection of Eagle & Pine and the traffic impacts with a RIRO access on Eagle between Pine & Commercial as proposed. In summary, the traffic analysis surmises the RIRO would reduce traffic at the intersection, lower the average delay, and reduce the right -turn traffic approximately 12% during the PM peak hour resulting in queue length reduction and an overall improvement in site circulation. Additionally, Scentsy Campus MDA -10-010; VAR -10-002 Page 4 EXHIBIT A the RIRO access is projected to reduce the number of conflicts and likelihood for potential crashes at the intersection due to reducing traffic at the intersection. In accord with UDC 11 -5B -4E, in order to grant a variance, the Council has to make three findings as follows: 1) The variance shall not grant a right or special privilege that is not otherwise allowed in the district; 2) The variance relieves an undue hardship because of characteristics of the site; and 3) The variance shall not be detrimental to the public health, safety, and welfare. Please see Exhibit B for Staff's response to these findings. IX. EXHIBITS A. Maps/Other 1. Vicinity Map 2. Map showing the Subject Property within the Previous Pinebridge Development 3. Applicant's Proposed Changes to Development Agreement 4. Staff's Recommended Changes to Development Agreement Proposed by Applicant 5. Proposed Conceptual Site Plan 6. Proposed Conceptual Building Elevations 7. Idaho Transportation Department Encroachment Permit & Approval Letter 8. Proposed Access/Lane Configuration B. Required Findings from the Unified Development Code Scentsy Campus MDA -10-010; VAR -10-002 Page 5 i:jr i2ii." 4 " Y. IN it V f T1 LJ oil EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMENT AGREEMENT PAR'T'IES: 1. City of Meridian 2. -H.O.T. 1, LLC, Owner/Developer DOWN& DW kn mnda THIS DEVELOPMENT AGREEMENT (this Agreement), is made and - entered into this day of , 2019,by and between CLq of Meridian, a Deh"&. 06 municipal corporation of the State of Idaho, hereafter called CITY, and .O.T. 1, LLC Deweod: DIAB whose address is 3698 E. Lanark. Meridian, Idaho IM42, hereinafter called Dem 2" s. aeod wand, suift 120, OWNER/DEVELOPER. Boise 1. RECITALS: 1.1 WHEREAS, Owner/Developer is the sole owner, in law andf oalaEad: equity, of that 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 ovides that cities mMM, b DeMad: ic. ordinance, require or permit as a condition of re -zoning that the oakftd: idem cos., 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 11-5B-3, which authorizes development agreements upon the annexation and/or re -zoning of land; and 1.4 WHEREAS Ownera3eveloper has submitted an application for a Modification to Development Agreement dated 2-28-08 instrument 910802289 and Dom: aeawuAm and zoning o'er ---- ---- --- — — Pmp"'a doKnIod in F.tdabb A and has requabd a daaiyeaim of C-0 (Oaoaai 1.5 WHEREAS, Owner/Developer made representations at the public onmoznuiail. Oft*W Code ordta City hearin fore the Meridian rk,Counc' as to how the sub'ect °r�'°1 Property will be developed and what improvements will be made; and Dekftd: ° DWWAd: bo& befaa do Maidba 1.6 WHEREAS, record of the proceedings for the requested i»umung a Zaiiog Commimm and de elop e t ageement modification for.be subject Property held zoningdosigandon land of 1 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07.010) PINEBRIDGE SUBDIVISION PAGE l OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 2 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 3 before xhe City Council, include responses of government Mete& the Mftnt a Zmmg subdivisions providing services within the City of Meridian planning Cam m --a. std" meawad "bcd've jurisdiction, and received further testimony and comment; and 1.7 WHEREAS, City Council, the day o hes approved certain oateeed: Findings of Fact and Conclusions of Law and Decision and Order, set o.i.tad: November forth in Exhibit B, which are attached hereto and by this reference oe�eeed:2007 incorporated herein as if set forth in full, hereinafter referred to as (the Findings); and 1.8 WHEREAS, the Findings require the Owner/Developer to modi the existing development agreement to reflect the change in owner and DAW1 aura i0o a dovdapamm Womew berate tte City Comal rites 1.9 VUIEB AS. Owner/Develooer.deems it to be inLt&best interest to snr who4 on ssoesatim sed maw deem be able to enter into this Agreement and acknowledges that this FortneRledt Fad: Bald Agreement was entered into voluntarily and atits urging and requests; Deleted, ownswuaystoese and me: \ 1.10 WHEREAS, City requires the Owner/Developer to enter into a Deleeem &Oil 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,in accordance with the amended Comprehensive Delsto tea.-PAofmdaweteoeived Plan of the City of Meridian adopted August 6, 2002, ResolutionNo. by the c"''t° the pmeed1aw for =n °s 02-382, and the Zoning and Development Ordinances codified in dmpa im Sam So amem su6divi:ms pmndwg =vim WAwn the pie Meridian Unified Development Code, Title 11. i-miLam and fiam sffecmd p`ap" owns rod to amn r nnmg desi0mtioe is 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 2 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 3 EXHIBIT A subdivision of the state of Idaho, organized and existing by virtu 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 LLC WIN& DMSJovaamo.ab whose address is 3689 E. Lanark_ Meridian, Idaho 83642, the party o re.m 2s0 s. ee%hwood. sea 120. that owns and is developing said Property and shall include any r., wbo subsequent owner(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 parcel currently zoned C -G _ Dekbod: a _(General Commercial), attached hereto and by this reference incorporated owed: to be end ad 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 Unified Development Code § I 1-2B-2 which are herein specified as follows: Construction and devdlopnwnt ofd+/_ asses in the proposed C -G _ n t o.wda a adrr�r aaru zone pertinent to tke- apacres si -._ —" Ddit*A"T-aumdrzmsl9 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: V I 1 6 2 Pim sevadhaabe aceadad to Locaft Grove Par b 5.1. Owner/Developershall develop the Pro p peaty u1 accordance with the forboUmpdwam wreipmam vagaow fo<bta'Id'mea d,aa..oum /.gime aaa. b following special conditions: Ph* A »d.. I 1. Development of the o shall substantially P property ally comply with the 1 3.. Wbdmn ae aadaeg utititm mt conceptual site plan and elevation submitted with the subject application wbm to swvam&gpuW roe& oe and the concepts outlined below. 7famd, dte davatope abau be anowW "p to Y pb p- b aed phe mealdwicn The Mmiq Diector Ion &@ Dwdopnaot Sadea Maoys of the 4. The following concepts shall be employed in the development of the aHefMaomv—cy—dis(ototaa Am mw additioed ooa�ey p� (to to Property: auead 13) ifthe adoi�trmoe Gita pevi r as®a b ba �vimt and n dye DEVELOPMENT AGREEMENT (AZ 07.006 & RZ 07-010) PINEBRIDGE SUBDIVISION Ci4p'a best mbRgL� PAGE 3 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 4 EXHIBIT A a. General massing of buildings, roundabouts and landscape islands in streets shall be constricted as generally shown on the conceptual site Plan prepared bye, Inc., dated 1-12-10. b. Pedestrian connections shall be constructed between buildings in the form of pathways distinguished from vehicular driving surfaces through the use of pavers, colored or scored concrete, or bricks; &. Common areas with site amenities (i.e., plazas/courtyards, water features, picnic areas, flower gardens, public art, etc.) are encouraged to be included within the development., J. Exterior building walls should demonstrate the appearance of high quality materials of stone, brick, wood, or other native materials (acceptable materials include tinted or textured masonry block, textured or painted architecturalponcrete panels, or stucco or stucco like synthetic materials. Smooth faced concrete block, tilt -up concrete panels, or prefabricated steel panels are, acceptable with the addition of paint and/or higl, i quality accent materials. _. The building design shall incorporate at least 2 changes in one or a combination of the following: color, texture and materials; Rooflines shall demonstrate 2 or more ofthe following: overhanging eaves, sloped roofs, two or more roofplanes, varying parapethe and cornices; ,• The primary building entrances shall be clearly defined by the architectural design of the building. Building "A" is an accessory use within the current zoning desienation and will be permitted to be constructed prior to other principally permitted structures fB or -C) per this agreement months of completing the previous building. 6. COMPLIANCE PERIOD/CONSENT TO REZONE: This Agreement and the commitments contained herein shall be terminated, and the zoning designation reversed, upon_an actual showin>z of default, as determined by a court of competent iurisdietiom of the Owner/Developer or Owners/Developers heirs, successors, assigns, to comply with Section 5 entitled "Conditions Governing Development of Subject Property" ofthis 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 m Idaho Code § 67-6509, or any subsequent amendments or recodifications thereof. DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 4 OF I0 Scentsy Campus MDA -10-010; VAR -10-002 Deleted: prehm;nuyvia and Dewed: Stedey Commit" Delated: 3-5-07 Delated: c.. stractma shall be bink adiacent to roadways with a majority of AW parlong to the roe and aides ofthe atruconea.1 Debted: d Deleted: ofcshatal nation ofthe Deleted: and will be required to the BWN-&B* pavan ofthe devdopment. Deleted: e.. Stcuoro. ahoaldbe oriented toward oath other or the a jeceot itreeKs) if there u on por!®g m the 5mt of the buikling,1 Dettsted: f. _ wiadows, awnhw. or wof �should be ed fbr facade, 69 aro viewable Som other etrucarreaj Deleted: g.. Provide wallmVB at least 8 feet in width for any gale IaWh dost is greatrr than 15o perking apmce or Zoo Seat away Sorin the mm bmlding entrawel Delated: h Deleted: texwr d memotey biotic, Delated: coded Deleted: - a Deleted: prohibited axogX as Dekted:i Deleted:j Deleted: k Deleteds 1 DeMted: A Con&donel use Pam it fir the mtilti-family portion of this development shalt be suhmiaed prier to subadmag for final pot approval on the am FormdUed: Indent: Left: 1.38', Hanging: 0.13•, Nurnbered + Level: 1 + Numbering Style: 1, A, IN, ... + Start at: 1 + Alignment• Left + Aligned at 1.94' + Tab after: 0' + Indent at: 2.44' Farmsthad: Irtdertt: Hanging: 0.17 Delated: a Page 5 EXHIBIT A T CONSENT TO DE -ANNEXATION AND REVERSAL OF ZONING DESIGNATION: Owner/Developer consents upon an actual showing of default as determined by a court of competent jurisdiction to the reversal of the zoning designation of the property subject to and conditioned upon the following conditions precedent to -wit: 7.1 That the City provide written notice of any fail= 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. 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 Development Agreement and all other ordinances of the City that apply to said Development. 9. DEFAULT: 9.1 In the event Owner/Developer, or 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 and a court of competent jurisdiction rules that Owner/Developer is in default hereof this Agreement may be modified or terminated by the City upon compliance with the requirements of the Zoning Ordinance. 9.2 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 sha11 not bar arry other rights or remedies of City or apply to any subsequent breach of any such or other covenants and conditions. 10. 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,`_ 11. ZONING: The current zoning of C -Cr (General (nmmernial) ch211 remain DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINF.BRIDGE SUBDIVISION PAGE 5 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 D I 111 . ptior to the mad m.Aes of th. Mmdi a z..iqg ordimave in o®aeodoo WIm d.s m moiog of *W Aopmtybyth.City Coma]. fffer asy &&W M eh sem 1m n. dm Ca. Como9 fi& tp adopt ma Whi cm—am arim m, mnenHm sed mmHg of da PrwerW cc-w*Lted huiby, tbs city rb.a coma and moors sa .pprapnote moment of talew of "Agee 1 DdMeds city thlt &t6 -_S t dwdw of the Ally apptmed ABvememt .oaa a vWW mW biding otdinsue mmHg dte Pmpmty as specified hma¢n Page 6 EXHIBIT A 12. 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. 12.1 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 (3 0) 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. 12.2 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. 13. SURETY OF PERFORMANCE: The City may require irrevocable letters of credit, cash deposits, certified check as allowed under Meridian City Code Section 11-5-C, to insure installation of any unfinished improvements that are not in conflict with Section 15 of this Agreement. At the City's sole discretion the Owner/Developer agrees to provide surety in the form as required by the City, if necessary. 14. CERTIFICATES OF OCCUPANCY: The Owner/Developer agrees that no Certificates of Occupancy will be issuedjn issued'any phase in which the improvements have not Ddow. ura a kwmeu mu en City and been installed, completed, and accepted by the City or otherwise entered into an approved °®dete Dwdopw)w=h e a letter of credit for unfinished imyrpvements. .da cam. hm ort bvpu amrswXbeoae44mdms 15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to C&6ficaiw of0ecMway mha be imW 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRWGE SUBDIVfSION PAGE 6 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 7 EXHIBIT A contained in the Findings of Fact and Conclusions of Law, this Development Agreement, and the Ordinances of the City of Meridian. 16. 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: CIT/': OWNER/DEVELOPER: cM City Engineer .O.T. 1 LLC oeteeet Dam kw=Wmn City of Meridian 3698 E. Lanark Diet.* 250 s. aeanwa, snit. 120 33 E. Idaho Ave. -Meridian, ID 3642 anise Meridian, ID 83642 Delete& 83109 with copy to: City Clerk Phillip E. Broadbent City of Meridian Scentsv, Inc. 33 E. Idaho Avenue 3b98 E. Lanark Meridian, ID 83642 Meridian, ID 83642 16.1 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. 17. 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. 18. 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 hereo% and that the failure to timely perform any ofthe obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 7 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 8 EXHIBIT A 19. 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 ofthe 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 We 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 f dly performed its obligations under this Agreement. 20. 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. 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 ofthe subject Property herein provided for can be modified or amended without the approval ofthe 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,Lf execution of the Mayor and City Clerk. Daktu ± &a hU"n Cky Camaa "n 46V d. —.aammt m *. MmdmzamagOtd mamuftm wMm.wwzphmand m iveofw. and DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDMSION PAGE 9 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 9 EXHIBIT A IN WiIT+ M WEMMF, the pwnn hz" bersit asooW this egtammt K4 Made it offw vc a buco ebo" pl mWsd. OWNNRMIVRWPU 8.4'-16 LLC o�re�rF tw��rreer�awlat BY: CPPV Of MH7 ULN BY! MAYOR TAMMY de wEERD ATTEST; CRY CLERK DEVRDFMD f AGtMW NT (AZ 07-006 & RE 07410) FDOW M KADIVWON PAGE 9 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 EXHIBIT A STATS OF IDAHO, ) OwW of Ade, l I OM dsis day of . ZRl9 —4LM MAAM t>,sresao3M a NOWY pubho m and for acid State. ply sII known or i&cdf od to me to be dm aftl.0.'r. 1. LLG ar�owlnd®ad m ms tbrtlre a�recrtisd MM�dr rJso>d�.... *as=* on behel)'of nw owposw im IN WUNESS WHEREOF, I base betesmro set any band end affixod my official seal the dW and ycw in dur swMeaas flret above wrltteo. &11.1.�� Notmy Pubk for Welty Residinji it., MY Coarmsitaim Expircr STATE OF MAHO :a Commly of Ada Ob 6ds� _ d" of 12009,1 ere neo a Nopsy Public, o uy aVpesred kmmoy de wed and W fim Ci. Bwg, lr:, bww or forked to me to be *a Mryot rod Clark. rmpeetively. of ase City of MwWi m% wM "muted the l arrest of bebalfofrrid City , wd dmowledgod to me that mwh City —eat to- - ing JAI W1i>tiM WEfHiWF. I her beret at my heed and affixed my of WAI sal the dqr wad year im thele cadfiicoM fiat ebo.e wriam (SEAL) Notuy Pawk ON Idaho R"kingst Caamfarioe eapira: DEVELDPdMNt AaREEMENP (AZ 07406 A RZ 07416) FDURMB SVBOQYG" PAIN 10 (W 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 11 .:awe' �'•:n�is�e%'�a°H#iAMM 2 LEN 7o�TrE.rrrrrr'�• �tt`illl us . wc�1i _ I MTAa t1P fPN" EXHIBIT A Exhibit A. 1 — Vicinity Map Seentsy Campus MDA -10-010; VAR -10-002 Page 6 EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. I.O.T. 1, LLC, Owner/Developer —14 odew. Dem 1 THIS DEVELOPMENT AGREEMENT (this Agreement), is made and - entered into this day of 2Q0, b and between City of Meridian, a odaosd; os municipal corporation of the State of Idaho, hereafter called CITY, andB.O.T. 1, LLC DdROM DMB knustocnU whose address is 3698 E. Lanark, Meridian, Idaho A3642, hereinafter called o.waC: 2" s. Bmdwmod. mw i20, OWNER/DEVELOPER. I Beiu Ddit t93709 RECITALS: 1.1 WHEREAS, Owner/Developer is the sole owner, in law and/ui �- or 1 equity, of that 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, IdahoCode,_§ 67-6511A„lsrovides that cities may, byorebeee Lc. ordinance, require or permit as a condition of re -zoning that the odow: wabo cam, 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 11-513-3, which authorizes development agreements upon the annexation and/or re -zoning of land; and 1.4 WHEREAS Owner eveloper has submitted an application for Modification to Development Agreement dated 2-28-08 insirurnent #108022893.: and Dsi tae:.mw6mnasmmgofdw ------------`_-- — Btcpoly.$dUU%WmEdAkAmdhr aganW s &@i A m of C -G (Gmsa) 1.5 WHEREAS, Owner/Developer made representations at the public co�4 0��ag cooF&a ciw L_____ L_C___ .L_ 1t_ -- _ n!—_ —____-__l __ — L_—_ -- __L _.-a of1Yoir0) Property will be developed and what improvements will be made; and °ebW" Dalehds hom before die A.+eedi.n 1.6 WHEREAS, record of the proceedings for the requested a z0aim coo mim= Wd development agreement modification for jhe subject Property held owaa: emmasmatdxo�{ ld*Uwim of — DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE l OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDMSION PAGE 2 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 3 before The City Council, include responses of government o.wad: ma eb anme & Zming subdivisions providing services within the City ofMeridian planning l Caoomoaq and abee*watb beta° k jurisdiction, and received fiuther testimony and comment; and 1.7 WHEREAS, City Council, the jay o has approved certain Dektad: r+ Findings of Fact and Conclusions of law and Decision and Order, set wt.ad: xovambw forth in Exhibit B, which are attached hereto and by this reference wrad: zoos incorporated herein as if set forth in fiill, hereinafter referred to as (the Findings); and 1.8 WHEREAS, the Findings require the Owner/Developer to modi the existing development agreement to reflect the chance in w er hi • and ostaa* a=im. W"Mew beat.60 C1W C00na7 Ww 1.9 WH AS Owner/Develomdeems it to be in jts best interest to fi" wbao ou aooenbm and mom* d-sooi o be able to enter into this Agreement and acknowledges that this Far®.ead: Font: said Agreement was entered into voluntarily and at 'ts urzivand requests* oaisoed: ownswnsyswrsx and wt.ad: tdr woad: me< 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�n accordance with the amended Comprehensive i wkad: r a m* ofwWsa erwwmd Plan of the City of Meridian adopted August 6, 2002, Resolution No. by " ari o m proceedmp ra mKo derip.cm aero .tc,tbma:vae 02-382, and the Zoning and Development Ordinances codified in VM4W8 ear widen the rag Meridian Unified Development Code, Title 11. aflik E �$'° n-aoeed p'°P°"' awms-+omi3 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDMSION PAGE 2 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 3 EXHIBIT A 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 JLOT 1, LLC oak ,D�Iaveeme.tt whose address is3689 E. Lanark, Meridian. Idaho 83642, the party vraaaa:7aos. E.eahwaad, st. 181, that owns and is developing said Property and shall include any B°i'° 1diho °3 subsequent owner(s) of the Property. 3.3 PROPERTY: means and refers to that certain parcels) of Property located in the County of Ada, City of Meridian as described in Exhibit A describing the parcel currently zoned C -G AGeneral oaletwk s Commercial), attached hereto and by this reference incorporated Delated: w be unnmd ad 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 Unified Development Code § 11-213-2 which are herein specified as follows: Construction and development of JS, +/_acres to the so owed C -G oaratea: 61 enaft w: &a 21 zone pertinent to the anDlicadons. comm. Is& N 170 Dobbs& AZ67-M as f l"7-010 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: DoWb t 2.. viae seat da be eaeo w w L.a,.t Caove prim t. 5.1. Owner/Developer shall develop the Property in accordance with the i.armce of my CatiBas of 00avency for baldow dot w=M nxxm. t. following special conditions: Pim A—. Daland� � 1. Development of the property shall substantially comply with the / I. wbeta mwe.e edving adba ad conceptual site plan and elevation subm itted with the subject application wbov do #=aaadnq pabbo ms& = the concepts outlined below. the � y�aDe, to EaA be pk up w fi-dand &a D"W..a service. M,m w of dw Cky afMarAn my wooder.0.wing 4. The following concepts shall be employed in the development of the addMian l ooaqwwy 1wadn hecto property wwwd 13) ifthe sku of tsbao odds pwia..7 teem. b be etQeieotand in ds Ctily'. bat iMmK� DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 3 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 4 EXHIBIT A a. General massing of buildings, roundabouts and landscape islands in ueted>ed: preliminary plat sod streets shall be constructed as generally shown on the one foal sitetadjeout ; s„� c�,� J plan prepared by TA Inc. dated 1-12-10. ; 3-5-07 b. Pedestrian connections shall be constructed between buildings in the form of pathways distinguished from vehicular driving surfaces d: st�tmes shall be ham to roadways with a mejo ty of through the use of pavers, colored or scored concrete, or bricks; t°'b"°�'°did09°f'h` Common areas with site amenities i.e. lazas/co arils structural water features, picnic areas, flower gardens, public art, etc.) are lletot d I encouraged to be included within thedevelopment, t>ebbed: ai$whaml pardon of do J. Exterior buil ' walls should demonstrate thedmavdo oele d: and will required be ft mai¢-�,ly paatim tithe pmmc m appearance of high quality materials of stone, brick, wood, or other �, e. _ smnichm should be native materials (acceptable materials include tinted or textured on�ed towara..� other or the a4aaaot masonry block„textured or painted architectural rte panels or of&eAreek) ilthere n ne parkingm tlta fimt �� t�� stucco or stucco h'ke synthetic materials. Smooth faced concrete block, tilt -up concrete panels, or prefabricated steel panels are `' Delebod, r. Vmaaws, or aroadestoftimSatland 30% ofthebagth acre table with the addition of Paint and/or hi quality accent F P F tX ` oftbe 11"do should be provided for & ade$ dw we vxwvwe from otber materials. ` swm 'J pe. The building design shall incorporate at least 2 changes in one or a oeteted: e.. Provide watiways at bast combination of the following: color, texture and materials; a fed in `rim f0f my sire length dat it . Rooflines shall demonstrate 2 or more of the folio : over greater than Iso peridog spaces or 200 fast away iiam &a num buaftg eaves, sloped roofs, two or more roofplanes, varying parapet heights, em'"aiee11 and cornices; DoWed: h Z. The primary building entrances shall be clearly defined by the DeloW.,t«u>red mamyblocir. architectural design of the building. o” I M ooand ` 1. Buildings will be constructed in the order the a en ted on oelehed: - a the conceptual site plan (ABC etc.). 0eAfted: p,ohyid except as i. Building "A" is an accessoly use within the current zonin per: i designation and will be permitted to be constructed prior to other tom:; principally permitted structures B or Cl per this j The construction of either building B or C will commence with 3 DaleEed: k months of completing the previous building , Deleted:l Odded. A Caadiamal Use Permit for 6. COMPLIANCE PERIOD/CONSENT TO REZONE: This Agreenent and the muki-f roily puatioa tf tbis development than be mth®roea our to the commitments contained herein shall be terminat ed, and the zoning designation reversed, °am"aag for find �'"eY'I °� t°" s,u upo an actual sho&ing of default as determined by a court of competent iMtLdjctio ofthe Foretetbed: UdenC teff 1.38•, Owner/Developer or Owners/Developers heirs, successors, assigns, to comply with Section 5 Hanging: 0.13', Numbered + Level: entitled "Conditions Gov Development of Subject Pro Governing P J Pte' of this agreement within 1 +Numbering style: ... + two years of the date this Agreement is effective, and after the City has complied with the start at: 1 + Alignment: left + t L ft Mpned at. 1.W + Tab after: 0' + notice and hearing procedures as outlined in Idaho Code § 67-6509, or any subsequent Indent at: 2.44" amendments or recodifications thereof : HwMkV: 0.13• t>Neesd: a DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PM2RMGE SUBDIVISION PAGE 4 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 5 EXHIBIT A 7. CONSENT TO DE -ANNEXATION AND REVERSAL OF ZONING DESIGNATION: Owner/Developer consents upon an actual showiest of default as determined by a court of comnetentjurWiction to the reversal of the zoning designation of the Property subject to and conditioned upon the following conditions precedent to -wit: 7.1 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. 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 Development Agreement and all other ordinances of the City that apply to said Development 9. DEFAULT: 9.1 In the event Owner/Developer, or 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 and a court of competent jurisdiction rules that Owner/Developer is in default hereof, this Agreement may be modified or terminated by the City upon compliance with the requirements of the Zoning Ordinance. 9.2 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. 10. 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„ 11. ZONING: The current zoninst of C -G (General Commercial} shall remain. DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDMSION PAGE 5 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Deiftd: , piw to the thed ru&t of d. Maidim zomog ordm. i. ._WCdM with th. te=g of>h. Prop” by ft Cly Conwir rffirmy ,e..m after "Wh recahu... d. OW comoa r,a, m .dept @. *, m cormom s with de a rAwshm and . g of the Pmp.M caoomVhftd hwaby, me City "mmwe ad mwrd W appwPM& im"Um" t 06.6m of this Affee I 11 - - d: City *4 fol -has T.w.d.tim of the doty appor.d Apoement, meet a wtid .od bmftg m*n ow amg the Property es epad iad hclvi� Page 6 EXHIBIT A 12. REMEDIES: This Agreement shall be enforceable in any court ofcompetent 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. 12.1 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 (3 0) 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. 12.2 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.. 13. SURETY OF PERFORMANCE: The City may require irrevocable letters of credit, cash deposits, certified check as allowed under Meridian City Code Section I 1-5-C, to insure installation of any unfinished improvements that are not in conflict with Section 15 of this Agreement. At the City's sole discretion the Owner/Developer agrees to provide surety in the form as required by the City, if necessary. 14. CERTIFICATES OF OCCUPANCY: The Owner/Developer agrees that no Certificates of Occupancy will be issued 'n any phase in which the improvements have not Dd@W: uwd a imp—to =. and been installed, completed, and accepted by the City or otherwise entered into an approved 0 uvWuped we.e dm csand Developarrowoa hr emceed iab on letter of credit for unfinished improvements. sd&nd m ares 046nsWIM+be impmmmmb wf be oatyieoed in a phased developed; mda d9 event, ao 15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to cetwkete. ef0mvewy &a be is w 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 6 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 7 EXHIBIT A contained in the Findings of Fact and Conclusions of Law, this Development Agreement, and the Ordinances of the City of Meridian. 16. 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: OWNER/DEVELOPER: c/o City EngineerB.O.T. 1 LLC Delete& DMB u City of Meridian.3,698 E. Lanark DN.a* 250 S. Bwkwood. 540120 33 E. Idaho Ave. MeridiAm ID 3642 Ddelvm Bp.. Meridian, ID 83642 Delete& 89709 with copy to: City Clerk Phillip E. Broadbent City of Meridian Scentsy, Inc. 33 E. Idaho Avenue 3698 E. Lanark Meridian, ID 83642 Meridian, ID 83642 16.1 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. 17. 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. 18. 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. DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 7 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 8 EXHIBIT A 19. 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 ofthe 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. 20. 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. 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 m -zoning ofthe subject Property herein provided for can be modified or amended without the approval ofthe 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 pf execution of the Mgoor and City Clerk. oeteaa: dw m city Cmwd -- _ tmu adopt the to ma Mecidim zmws otdiamoa m wmetdm with dte m midim wd zmi v of to hpx4 and DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDMSION PAGE 8 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 9 EXHIBIT A F.Tk P AlN..1�i 1N WM4E'SS WMWF, the p wds lore bel ok ncbp W thus WMW 04 MO& it off0dw n bwdmlbvw pmrided. OWNfSffi9VBw. M B&a,L LLC arrr ar> niers BY; cffv OT MgittD1Al11 BY: MAYO* TAMMY do vnmD ATIM; M w• DEVROnAWAGEMUM(AZ07-M$&ItZWMD)?B*MNMMSUBDI%UM PALE 90F t0 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 STATE OF UAHO, ) ss Coin' of Ada, EXHIBIT A On dais d"of . �,gjQ,�he�ss mq the ttWWM*sea mdW tip w4 a Nacwy PuW in and for and Stale. Ply vpmed b mn or xbuftfnd to me to be the ofN.ty.T. 3. LLC:. acitaowlydtaracito me tbathe sorecueed delslaeR neo y.■..r the same ca bebslf of Wd Ompondicm – IN WUNESS WHEREOF, Mare beesm. set flay bored cud afficti+d my offwW seal flee dry and year in thio caeti8caes fim above wrifte: (SM) - Nancy Public roc Lbdw Residing at: , - My CcefataWiea Expires: STATE OF MAHO ) ag CvMlyofAds ) WWI— *af , 2DOti, before see, allotaty Publiie, Versa #y appeared Tammy de Weeed sed Wii= G. Beg, * , know or idmtifled bo me to be the Mayan teed Clerk. rtspwdr*, of On City of b4wiidien, who MoMied the ieraW ment of 6ebaifotsaid C hy. and admowl odged oro me that mch City eueovled dwowv e IN Wl'i'h = wmEKwF, I bsma beetmm sat my hastd sed affixed my official sed do dey and year in this aatifitata fiat share wrkwn. (SEAL) Nabrp Poblk ihr Idaho Raidingat Commiaelon o Pkes: DEVELOM EW AU MMU (AZ 07-M A RZ 07410) IPWOPM011 SUBDIYG " PA43E 10 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 11 EXHIBIT A Exhibit A.4 — Staffs Recommended Changes to Development Agreement Proposed by Applicant 5. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY: 5.1. Owner/Developer shall develop the Property in accordance with the following special conditions: 1. Development of the property shall substantially comply with the conceptual site plan and elevations submitted with the subject application and the concepts outlined below. 42. The following concepts shall be employed in the development of the property: a. General massing of buildings, roundabouts and landscape islands in streets shall be constructed as generally shown on the conceptual site plan prepared by CTA, Inc., dated 11-12-10. b. Pedestrian connections shall be constructed between buildings in the form of pathways distinguished from vehicular driving surfaces through the use of pavers, colored or scored concrete, or bricks; c. Common areas with site amenities (i.e., plazas/courtyards, water features, picnic areas, flower gardens, public art, etc.) are encouraged to be included within the development. ,weed,other- panels, .. '. tilt ,up eemFete P0006-,-ef aeeei# ffiat'elialg: e. The bidilding design shall ineer-pei;ate a4 least 2 ehe El eembimfieft of r ; eaves, reefs, slop two or- f"Oft roof P! ofapet > heights, and eemiees; W. Buildings will be constructed in the order they are generally listed on the conceptual site plan (A, B, C, etc.). X14. Building "A" is an accessory use within the current zoning designation and will be permitted to be constructed prior to other principally permitted structures (B or Q per this agreement. j5. The construction of either building B or C will commence within 30 months of completing the previous building ft, The annLicant shall work with the deveianer of PinebridQe to clarify when & by 7. Sanitary sewer service to this development is being proposed via extension of mains in N Minimum cover over sewer mains is three feet, if cover from top of pipe to sub -grade is Scentsy Campus MDA- 10-0 10; VAR -10-002 Page 12 EXHIBIT A Exhibit A.5 - Proposed Conceptual Site Plan w Scentsy Campus MDA -10-010; VAR -10-002 Li..d SO* I• -ISO, (-►-t Page 15 EXHIBIT A Exhibit A.6 - Proposed Conceptual Building Elevations Scentsy Campus MDA -10-010; VAR -10-002 Page 16 EXHIBIT A Scentsy Campus MDA -10-010; VAR -10-002 Page 17 EXHIBIT A Exhibit A.7 - Right -Of -Way Encroachment Permit Approved by ITD & Approval Letter ftM4"SY ftOrt)tl(*Mw* App[tTad m wYW Pfa n* ADprowlim and emr P"mm.:l.....e.. irxwtuda the fotlowbw. i. A aorriileled Erroromchm" Clrwotdhd. wppgc" ovnrnnht docturlo e, fnlg" approwdh pMmR ahwab 2. W"lbn =*zdXMbn fbm the awrW or aWuftre a(jaW ow CM wn rwgAwd). 3. PhM or dtak*W fg SOW dxK*g Popo+ed work, appro o* k=#Orw, dr A, Mg dwtaltr IN- I - p. aril trexp PMnR wffa ow OMkde dwpwrerm "p+&Vey WWWW4 (Ir VOM plow when a - dabb.) * 8pecl d PnvbbM Tlg% contra pMM etwaanMON doownmb and ry cow r **" PWM W law* ttwf i am dw O. -M or wlM wbw wprwww *A" M "w propwrq to bo wa , wnd n*mm pwrayuloa lw eonwhUot a* tagg w. atak so Sao fljqh15,��, l aweardwwow,rlu► me P ►Mlow. wpaot[IaA on papr 2 of&b tbrn and weir �Iwi ver pima Mw b a Pwrt of *ft pwrrrk i tlledlwr tie! i wf Wred perlbna bw wark mWmrbW umder"h p -- tRtil d 0 6"W rOVA" poMwoaMnlM 1(MW ww Vw thkopeabnmid N M wwk bww NW bewn �ebd w ,, , oft � ce permr approval *am frD ba rot bwwn , I - - d. HAT 1, LLC *MMO E La rwk 49642 raw 2D$4W-W17 .gyp 00 w P! E lirowdbatrt abitl lr L,wnwk kiNidkirt q SM2 a 20Q�061T 41• ••• •+�• 8trhjwot to V brrnrr oondilona, and Wean M dwm on t>tie ftm or afbwdwnwnla, namperrnhwlan i ► pranbd b to above} ed+eolcwrtbawfeemu,...�.r,• -- Nate Pa. wp be e�wsidarad - +- �C urs lknl InwpaeUon and +PPM by + dtF+►tr+wnt nprNarl+lww Scentsy Campus MDA -10-010; VAR -10-002 Page 18 EXHIBIT A a MOM* IF esnrlm osm ID D Dae D" am -?Is Jura 9, 2006 Mr. Fmft Y. Shoomidoer ow W. Banrlodt, Sul* 000 Bow,, ID 6$= Fb: Erm adrnwd F%m * 09-0-319 # — ftb ►iWmay 56 Dau Nr. Shoaaalmr. You wane V* mid by boor #W our dapwMwnt was pmoeadkV w M yaw ft*" br a batt nes b Maw the upBrada of an a, M Ig ao m an SM -0d. 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R �'ft(d4j, f3hwla i7 snd 1B a 84 an as tolbwrac Ptne B1. 84.8Yt19.lY.919 Tftsp~ as�add 9md 0 P 08-0�b+ai lobe obinla aced baaMeen Phe 8lraatarldComllaraltl8wa�t at Nipllway ala. e�+oo�f1. � S? ff &toad fw d iftftn - Due b the high walunnM d taft #000 shown d bull ou# h b Tiara bnpaot �it tNr bs reguMed b bitld rlalNum d�aMendon iaetse salltboisld on Eaple Nord (Sffd6� at P1r1a 8tnaat. tlw plgtaad approach si hlplhrlgr t aiatfon 644W.I, std d Conrrran W Btoot AmmschDmWp—M*&ppmwh%lhpftchw noft moat bs o psillad Mand ony wW ria MptrMrM d the wipe he of Eapia Pmd w mu& as j , -*i- M* omW daa4n asaho111 would haw hila tartdwW beat the aoc O*wvvW && Road Wft dR10 #w ftM 1nh tla da 1 1 I'mn ansa baorwrae the ed{fe in l ftF erlt to Hat nalalilod. i�otlihuad ................ Scentsy Campus MDA -10-010; VAR -10-002 Page 19 EXHIBIT A Mr. Fndedo V. 9home1w Jura 8.2008 Popo 2 . b. Pawramt Marts W — gt vM be MOWN* egg Ursa de 1* aron Mnee be nNdod c. A Mbed mec hn wi be rmMmd to ad"M Sd* and aperalb W Meuaa Mhad to YM approach and b 00ft the appiaach 10 RT4rMY-Ou4 vft Vo O&Wuoft W d dadpn m*WV V* d k» net sd ntu4n 0" wda kaded an ft& PAW am& d FW*#h Rnd The kwWMron Mdl alert from ria Map bar of OW Sough Mp of ft tits and OP& Pbad tineWon vW ooftw to Cmasodd gbree. The madlan W be bo a**ad to r e omd aW im the okwwm of S MR vn bm at CannaroW proof for 4j 81�tabalcn and Pa�wrrrrrq Marldnpe—Thadlwiopw MI ba ragidnd b tNoalnaM any► oil ee effeoM Grab aM AMlnp apolivow Sd* O(t4 WbOMd m w and raa *"L 4) M ON *VdM f0wh v ImprowaWft and danMpnm *" p*ft an Co mmaN Greet WW Pb» SbaM WN roved b be burg b &Uvkio a V 1 co %pe of to W panM"M kM aet+lp ft Eapta Road wW turret bo burg bn oo*n*an vMar In advww d ft Eg& Reed approa L bbporammfa muM to rppmved and n n r - -na s Mmto Aem 69 A copy d *M gMW ft" lh* oc WWw cf rppro -1 wll be proftd b tlN Ade O mW Hdwjay bM "(ACMb) for troh flA" nrfawrba. Upon MO* Of Oft l ft-pMaaa tomrMre ycrr aaoaplanca d itN oarmiwr d aPPM g b me b hirAdMeagy PwAis You vft UN appOVd pamdt and a copy d M oorNruotlon 11 You bow &W grenM m In roped b 00 oon Mmm d ap xwM Olen UM lm b oonisat no by phone ae-mNL Sgnorrey, gl , P.E slab Noway OPWO" OW Soft ROW tea Ada Caur y lrphwegr fygarfa 3M Aderaa 8L Garden QV. kbM 88714 Aft Torry LMW ManapenTmft Seabee Scentsy Campus MDA -10-010; VAR -10-002 Page 20 EXHIBIT A Exhibit A.8 — Proposed Access/Lane Configuration Scemsy Campus MDA -10-010; VAR -10-002 COMMERCM COURT } Page 21 EXHIBIT A Exhibit B - Required Findings from the Unified Development Code The City Council shall apply the standards listed in Idaho Code 67-6516 and all the findings listed in Section 11-511-4.E of the UDC to review the variance request. In order to grant a variance, the Council shall make the following findings: A. The variance shall not grant a right or special privilege that is not otherwise allowed in the district: The City Council finds that granting a variance would not allow a right or special privilege that is not otherwise allowed for properties that are adjacent to a state highway because the City Council has granted similar privileges to other properties in this area/district in the past. B. The variance relieves an undue hardship because of characteristics of the site; The City Council finds that there are no undue hardships that would prevent the applicant from developing the site by restricting access to SH 55/Eagle Road. However, the traffic impact study reflects that a right-in/right-out access would improve traffic flow within the site and at the intersection of Pine and Commercial Streets with SH 55/Eagle Road. Additionally, the Idaho Transportation Department has already approved the proposed access. C. The variance shall not be detrimental to the public health, safety, and welfare. The City Council finds that the Traffic Irnpact Study submitted with this application suggests that allowing the proposed right-in/right-out access to SH 55/Eagle Road will actually improve public safety and will not be detrimental to the public health and welfare due to a reduction of traffic at the Pine/Eagle intersection. Scentsy Campus MDA -10-010; VAR -10-002 Page 22