CC - DA (Redline 1-11-21)DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. H.O.T. 1, LLGLLLP, Owner/Developer
THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into
this day of , 2-442021, by and between City of Meridian, a municipal
corporation of the State of Idaho, hereafter called CITY, and H.O.T. 1, L-LCLLLP, whose
address is 3698 E. T anar-k2701 E. Pine Ave, Meridian, ID 836426, hereinafter called
OWNER/DEVELOPER.
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
(Pinebridge DA) and Modification of the Development Agreement dated
6-30-11, instrument # 111052691 (HOT1 DA); 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
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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 add said land to the HOT 1 Development Agreement
enter- ;rt„ a e w Development Agreement f that-poi4io „4an which
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ 10 0 10) PAGE 1 OF 9
terms have been approved by the Meridian City Council in accordance
with Idaho Code Section 67-6511.
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 4#' day ofjanuat-y, 2044, 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
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ '0^' ^) PAGE 2 OF 9
of the State of Idaho, whose address is 33 East Broadway Avenue,
Meridian, Idaho 83642.
3.2 OWNER/DEVELOPER: means and refers to H.O.T. 1, LLLPE, 349-5
ELanark, Mer-idian, 1D 9 2701 E. Pine Ave., 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 and, per this agreement, light -industrial
use is allowed as a principally permitted use within the C -G zone.
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 CTA, in d date,� ,�-0.
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.
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ '0^' ^) PAGE 3 OF 9
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 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 aeeessai=y use within the ettffent zening designation
a will be permitted to be—eenstrueted prior -to other prineipally
pefmitted stfuetur-es (B or- G) per- this agr-eeme
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 (30) days from
receipt of written notice from City to initiate commencement of action to
correct the breach and cure the default, which action must be prosecuted
with diligence and completed within one hundred eighty (180) days;
provided, however, that in the case of any such default that cannot with
diligence be cured within such one hundred eighty (180) day period, then
the time allowed to cure such failure may be extended for such period as
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ '0^' ^) PAGE 4 OF 9
may be necessary to complete the curing of the same with diligence and
continuity.
7.3 Remedies. In the event of default by Owner/Developer that is not cured
after notice as described in Section 7.2, Owner/Developer shall be
deemed to have consented to modification of this Agreement and de -
annexation and reversal of the zoning designations described herein,
solely against the offending portion of Property and upon City's
compliance with all applicable laws, ordinances and rules, including any
applicable provisions of Idaho Code §§ 67-6509 and 67-6511.
Owner/Developer reserves all rights to contest whether a default has
occurred. This Agreement shall be enforceable in the Fourth Judicial
District Court in Ada County by either City or Owner/Developer, or by
any successor or successors in title or by the assigns of the parties hereto.
Enforcement may be sought by an appropriate action at law or in equity
to secure the specific performance of the covenants, agreements,
conditions, and obligations contained herein.
7.4 Delay. In the event the performance of any covenant to be performed
hereunder by either Owner/Developer or City is delayed for causes that
are beyond the reasonable control of the party responsible for such
performance, which shall include, without limitation, acts of civil
disobedience, strikes or similar causes, the time for such performance
shall be extended by the amount of time of such delay.
7.5 Waiver. A waiver by City of any default by Owner/Developer of any
one or more of the covenants or conditions hereof shall apply solely to
the default and defaults waived and shall neither bar any other rights or
remedies of City nor apply to any subsequent default of any such or other
covenants and conditions.
8. INSPECTION: Owner/Developer shall, immediately upon completion of any
portion or the entirety of said development of the Property as required by this Agreement or by
City ordinance or policy, notify the City Engineer and request the City Engineer's inspections
and written approval of such completed improvements or portion thereof in accordance with the
terms and conditions of this Agreement and all other ordinances of the City that apply to said
Property.
9. REQUIREMENT FOR RECORDATION: City shall record either a
memorandum of this Agreement or this Agreement, including all of the Exhibits, 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 (N4D ^ '0^' ^) 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 (N4D ^ '0^' ^) 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, L-L-ELLLP
3698 E. T anaf-k2701 E. Pine
Meridian, ID 83642
Phillip E. Br-eadbe Legal Department
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 (N4D ^ '0^' ^) 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.
OWNER/DEVELOPER:
H.O.T. 1, DbELLLP
go
CITY OF MERIDIAN
an
ATTEST:
JayEov T Holman, City Clerk
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ '0^' ^) PAGE 8 OF 9
STATE OF IDAHO, )
): ss
County of Ada, )
On this day of , 24142021, before me, the undersigned, a
Notary Public in and for said State, personally appeared ,
known or identified to me to be the of H.O.T. 1, LL�GLLLP, 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.
(SEAL)
Notary Public for Idaho
Residing at:
My Commission Expires:
STATE OF IDAHO )
ss
County of Ada )
On this day of , 20442021, before me, a Notary
Public, personally appeared Ta nnifde Weefd - and .
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.
(SEAL)
Notary Public for Idaho
Residing at:
Commission expires:
DEVELOPMENT AGREEMENT - SCENTSY (N4D ^ '0^' ^) PAGE 9 OF 9