Z - Development Agreement for Interstate Center (aka Wahooz_Roaring Springs) MDA H-2016-0119 AMENDED AND RESTATED DEVELOPMENT AGREEMENT
PARTIES : 1 . City of Meridian
2. Black Mor, LLC, and
BowDen Properties, LLC
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this "Agreement"), is
made and entered into this 196 day of Te,ce,._b •• , 20 16 (the "Effective Date"), by and
between City of Meridian, a municipal corporation of the State of Idaho (" City"), and Black Mor,
LLC, an Idaho limited liability company ("Black Mor"), and BowDen Properties, LLC, an Idaho
limited liability company (`BowDen") . Black Mor and BowDen are sometimes individually or
collectively referred to herein as "Owner/Developer. "
RECITALS
A . On May 30, 1997, City and Winston H. Moore and Diane L. Moore, collectively, the
original owner/ developer, entered into that certain Development Agreement, recorded
on June 5 , 1997 as Instrument No . 97044085 , official records of Ada County, Idaho
(the "Original Development Agreement") on real property more particularly
described in the Original Development Agreement,
Be Upon recordation of this Agreement, the Original Development Agreement shall be
null and void and of no further force or effect for the subject Property, defined below.
C . Owner/Developer is currently the sole owner, in law and/or equity, of that certain tract
of land in the County of Ada, State of Idaho, described in Exhibit A, attached hereto
and made a part hereof, (the "Property") .
D . I.C . § 67- 651 IA, Idaho Code, provides that cities may, by ordinance, require or permit
as a condition of re-zoning that Owner/Developer make a written commitment
concerning the use or development of the Property.
E. Owner/Developer's predecessor in interest submitted an application for annexation and
zoning of the Property, requesting a designation of C-G, (General Retail and Service
Commercial District) under City' s Unified Development Code ("UDC") .
F . City has exercised its statutory authority by the enactment of Section I I - 5B-3 of the
UDC, which authorizes development agreements upon the annexation and/or
re-zoning of land.
G. Owner/Developer submitted an application for modification of the Original
Development Agreement,
AMENDED AND RESTATED DEVELOPMENT AGREEMENT an I
H . Owner/Developer made representations at the public hearing before the Meridian City
Council, as to how the Property will be developed .
I . Owner/Developer deems it to be in Owner/Developer ' s best interest to be able to enter
into this Agreement and acknowledges that this Agreement was entered into
voluntarily and at its urging and request .
J . City requires Owner/Developer to enter into a development agreement for the purpose
of ensuring that the Property is developed and the subsequent use of the Property is in
accordance with the terms and conditions of this Agreement.
K . City Council, the 6th day of December, 2016 , the Meridian City Council approved
certain Findings of Fact and Conclusions of Law and Decision and Order
("Findings"), attached hereto as Exhibit B and made a part hereof.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the
parties agree as follows :
1 . INCORPORATION OF RECITALS : That the above recitals are contractual and binding
and are incorporated herein as if set forth in full .
2 . SCHEDULE OF EXHIBITS : The following exhibits are incorporated herein :
Exhibit A : Legal Description of the Property
Exhibit B : City Council Findings approved December 6 , 2016
Exhibit C : Conceptual Development Plan
Exhibit D : Signs Plan
3 . DEFINITIONS : For all purposes of this Agreement the following words, terms, and
phrases herein contained in this section shall be defined and interpreted as herein provided for,
unless the clear context of the presentation of the same requires otherwise .
3 . 1 CITY : means and refers to the City of Meridian, a party to this Agreement, which is
a municipal corporation and government subdivision of the state of Idaho, organized
and existing by virtue of law of the State of Idaho, whose address is 33 East
Broadway Avenue, Meridian, Idaho 83642 .
3 . 2 OWNER/DEVELOPER : means and refers to Black Mor, LLC , whose address is
400 W . Overland Road, Meridian, Idaho 83642 , and Bowden Properties, LLC , whose
address is 400 W. Overland Road, Meridian, Idaho 83642, collectively, the party that
owns and is developing the Property and shall include any subsequent owner(s) or
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 .
4 . USES PERMITTED BY THIS AGREEMENT : This Agreement shall vest the right to
develop the Property in accordance with the terms and conditions of this Agreement.
AMENDED AND RESTATED DEVELOPMENT AGREEMENT = 2
4 . 1 Uses . The uses allowed pursuant to this Agreement are only those uses listed as
permitted , conditional or accessory, including parking, in the approved C-G zone
under the UDC in effect as of the Effective Date (the "Uses"), which are generally set
forth on : the conceptual development plan, attached hereto as Exhibit C and made a
part hereof (the "Conceptual Development Plan") ; and the signs substantially
similar to the signs depicted on Exhibit D attached hereto and made a part here of
(the "Signs Plan ") . Notwithstanding anything to the contrary herein or the UDC ,
outdoor arts, entertainment or recreational facility or facilities may be located within
fifty feet (50 ') of the exterior Property boundary.
4 . 2 Change in Uses . No change in the Uses specified in this Agreement shall be allowed
without modification of this Agreement. All Uses are deemed to be permitted uses
and are not subject to the need for a conditional use permit.
5 . CONDITIONS GOVERNING DEVELOPMENT OF THE PROPERTY :
5 . 1 Development Conditions . Owner/Developer shall develop the Property in
accordance with the following special conditions .
1 . Development of this Property shall be generally consistent with the Conceptual
Development Plan .
2 . All future Uses shall not involve uses, activities, processes, materials,
equipment and conditions of operation that will be detrimental to any persons,
property or the general welfare by reason of excessive production of traffic,
noise, smoke, fumes, glare or odors .
3 . The hours of operation for the Property are 24 hours per day of the week .
4 . Subject to Sections 4 . 1 and 4 . 2 regarding Uses, and this Section 5 . 1 , all future
development of the Property shall comply with City of Meridian ordinances in
effect at the time of application for development.
5 . The landscape buffer along the north property boundary adjacent to Interstate
144 shall be twenty (20) feet . The Landscape buffer along the north property
boundary adjacent to existing C-G zoned property shall comply with the
requirements of the C-G zoning district. The landscape buffer along the east
property boundary shall be twenty-five (25 ) feet . The landscape buffer along
Overland road shall be thirty-five (35 ) feet .
6 . Owner/Developer shall comply with the Signs Plan attached as Exhibit D .
I
7 . Owner/Developer shall be responsible to obtain a Certificate of Zoning
Compliance (CZC) permit and administrative design review in accordance
with the standards listed in UDC 11 -3A49 and the guidelines listed in the City
of Meridian Architectural Standards Manual, prior to all new construction on
the Property.
8 . Owner/Developer shall be responsible to obtain a Certificate of Zoning
AMENDED AND RESTATED DEVELOPMENT AGREEMENT - 3
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Compliance (CZC) permit and administrative design review in accordance
with the standards listed in UDC I I - 3A49 and the guidelines listed in the City
of Meridian Design Manual , prior to all new construction on the Property.
9 . Owner/Developer shall be responsible for all costs associated with sewer and
water service installation .
10 . Access points to/from the Property are limited to those shown on the
Conceptual Development Plan, unless otherwise restricted/approved by
ACHD .
11 . The landscape buffers (35 feet of landscaping along Overland Road, 25 feet
along the east boundary of the proposed expansion, which includes 5 feet of
landscape and a 20400t gravel road and 20 feet along the I44 frontage) shall
all be installed with the first Certificate of Zoning Compliance approved on
Parcel 6 (as indicated by the proposed concept plan) .
6 . DEFAULT :
6 . 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.
6 .2 Notice and Cure Period . In the event of Owner/Developer' s default of this
Agreement, Owner/Developer shall have thirty (30) days from receipt of written
notice from City to initiate commencement of action to correct the breach and cure
the default, which action must be prosecuted with diligence and completed within one
hundred eighty ( 180) days ; provided, however, that in the case of any such default
that cannot with diligence be cured within such one hundred eighty ( 180) day period,
then the time allowed to cure such failure may be extended for such period as may be
necessary to complete the curing of the same with diligence and continuity.
Owner/Developer reserves all rights to contest whether a default has occurred . No
provision in this Agreement can be modified or amended without the approval of the
City Council after City has conducted public hearing(s) in accordance with the notice
provisions provided for a zoning designation and/or amendment to zoning in force at
the time of the proposed modification or amendment .
6 . 3 Enforcement. 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 performance of the
covenants, agreements, conditions, and obligations contained herein .
6 .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.
AMENDED AND RESTATED DEVELOPMENT AGREEMENT - 4
6 . 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 .
6 . REQUIREMENT FOR RECORDATION : City shall record either a memorandum of this
Agreement or this Agreement, including all of the Exhibits, at Owner' s/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 adoption of this Agreement by the City Council .
7 . SURETY OF PERFORMANCE : 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 .
8 . CERTIFICATE OF OCCUPANCY : Owner/Developer agrees that no Certificates of
Occupancy will be issued for any building site or parcel until all improvements related thereto,
required under this Agreement have been installed, completed, and accepted by City .
Owner/Developer may develop each parcel or building site as a separate phase or in phases .
9 . ABIDE BY ALL CITY ORDINANCES : Owner/Developer agrees to abide by all
ordinances of the City of Meridian unless otherwise provided by this Agreement.
10 . 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 .
City Clerk Black Mor, LLC
City of Meridian c/o Patrick Morandi
33 E . Broadway Avenue 400 W . Overland Road
Meridian, ID 83642 Meridian, ID 83642
With a copy to : BowDen Properties, LLC
c/o Patrick Morandi
City Attorney 400 W . Overland Road
City of Meridian Meridian, ID 83642
33 E . Broadway Avenue, Suite 308
Meridian, ID 83642 With a copy to :
Spink Butler, LLP
Attn : JoAnn C . Butler
251 E . Front Street, Suite 200
Boise, ID 83702
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 .
AMENDED AND RESTATED DEVELOPMENT AGREEMENT - 5
11 . 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 .
12 . 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 .
13 . 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
Owner/Developer and 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,
determines that Owner/Developer has fully performed Owner/Developer' s obligations under this
Agreement.
14 . DUTY TO ACT REASONABLY : Unless otherwise expressly provided , each party shall
act reasonably in giving any consent, approval , or taking any other action under this Agreement.
15 . COOPERATION OF THE PARTIES : In the event of any legal or equitable action or
other proceeding instituted by any third parties (including a governmental entity or official)
challenging the validity of any provision of this Agreement, the parties hereby agree to cooperate in
defending such action or proceedings .
16 . 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 .
IT 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, oral or written, express
or implied, between Owner/Developer and City, other than as are stated herein . All Exhibits
referenced herein are incorporated in this Agreement as if set forth in full including all text
information in the Exhibits . 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.
AMENDED AND RESTATED DEVELOPMENT AGREEMENT - 6
IN WITNESS WHEREOF, the parties have herein executed this Amended and Restated
Development Agreement and made it effective as of the Effective Date.
BOWDEN .
BOWDEN PROPERTIES , LLC,
an Idaho limited liability company
By:
Patrick E. Morandi, Manager
BLACKMOR:
BLACK MOR, LLC,
an Idaho limited liability company
By: �i M
Patrick E . Morandi , Member
CITY OF MERIDIAN ATTEST:
By :
Mayor Tammy de Weerd C . Jay Coles, City Clerk
AMENDED AND RESTATED DEVELOPMENT AGREEMENT - 7
STATE OF IDAHO )
. ss :
County of Ada, )
On this 'e day of Pp- cer L� , 20 l L�, before me, the undersigned, a Notary Public in and for
said State, personally appeared Patrick E. Morandi, known or identified to me to be the Manager of
BowDen Properties , LLC and acknowledged to me that he executed the same on behalf of said Company .
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( WWI iWHEREOF , I have hereunto set my hand and affixed my official seal the day and year
iis ` `perEiflMte° its'��ybBiv� written.
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(SEAL ,•� �j ..
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.��' No a z Public for Idaho
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ss :
County of Ada, )
On this 2 on day of 7 ; c , 20 I , before me, the undersigned, a Notary Public in and for
said State, personally appeared Patrick E. Morandi, known or identified to me to be a Member of
BlackMor, LLC and acknowledged to me that he executed the same on behalf of said Company.
IN WTTt r� Sd, WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this c® ��rAt Wz9 �ritten.
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(SE ) Ax oTA/ F e Notary Public for Idaho
Residing at : icto
A Uk3l..iC � My Commission Expires : - o� � - 01 00 Q
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STATE OTC , P`4�R
ss
County of Ada )
On this day of , 2016 before me, a Notary Public, personally appeared
Tammy de Weerd and C.Jay Coles , know or identified to me to be the Mayor and Clerk, respectively, of the
City of Meridian, who executed the instrument or the person that executed the instrument of behalf of said
City, and acknowledged to me that such City executed the same .
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
(SEAL) Notary Public for Idaho
Residing at :
Commission expires :
AMENDED AND RESTATED DEVELOPMENT AGREEMENT = 8