Z - DA ADA COUNTY RECORDER Trent Tripple 2023-033828
BOISE IDAHO Pgs=18 BONNIE OBERBILLIG 06/14/2023 08:03 AM
CITY OF MERIDIAN, IDAHO NO FEE
DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Mauricio and Ilene Garcia, Owner/Developer
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into this 13th day of
June , 2023, by and between City of Meridian, a municipal corporation of the State of Idaho,
hereafter called"CITY,"whose address is 33 E. Broadway Avenue, Meridian, Idaho 83642, and
Mauricio and Ilene Garcia, whose address is 4863 N. Larkwood Place, Meridian, ID 83646, hereinafter
called"OWNER/DEVELOPER."
1. RECITALS:
1.1 WHEREAS, Owner/Developer is the sole owner, in law and/or equity, of a certain
tract of land in the County of Ada, State of Idaho, commonly known as 2365 E.
Fairview Avenue, Meridian, Idaho 83642, and described in Exhibit"A,"which is
attached hereto and by this reference incorporated herein as if set forth in full,
hereinafter referred to as the "Property;" and
1.2 WHEREAS, Idaho Code § 67-6511A provides that cities may, by ordinance,
establish provisions governing the creation, form, recording, modification,
enforcement and termination of development agreements required or permitted as a
condition of zoning that the Owner/Developer make a written commitment
concerning the use or development of the Property; and
1.3 WHEREAS, City has exercised its statutory authority by the enactment of Section
11-513-3 of the Unified Development Code ("UDC"), which authorizes
development agreements and the modification of development agreements; and
1.4 WHEREAS, Owner/Developer has submitted an application for development
agreement modification to remove the property listed in Exhibit"A" from an
existing Development Agreement recorded on March 12, 2004 in Ada County as
Instrument 9104027941, and for the inclusion of the Property into this new
DEVELOPMENT AGREEMENT—JENNIE'S RETAIL H-2022-0071
Page 1 of 9
Agreement, which generally describes how the Property will be developed and
what improvements will be made; and
1.5 WHEREAS, Owner/Developer made representations at the duly noticed public
hearings before the Meridian City Council as to how the property will be developed
and what improvements will be made; and
1.6 WHEREAS, the record of the proceedings for requested development agreement
modification held before the City Council includes responses of government
subdivisions providing services within the City of Meridian planning jurisdiction,
and includes further testimony and comment; and
1.7 WHEREAS, on the 7t'day of February, 2023, the Meridian City Council approved
certain Findings of Fact and Conclusions of Law and Decision and Order
("Findings"), which have been incorporated into this Agreement and attached as
Exhibit"B;" and
1.8 WHEREAS, 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 request; and
1.9 WHEREAS, the property listed in Exhibit"A" shall no longer be subject to the
terms of the existing Development Agreement (Inst. 9104027941) and shall be
bound by the terms contained herein in this new agreement; and
1.10 WHEREAS, City requires the Owner/Developer to enter into a development
agreement modification for the purpose of ensuring the Property is developed and
the subsequent use of the Property is in accordance with the terms and conditions
of this Agreement, herein being established as a result of evidence received by the
City in the proceedings for zoning designation from government subdivisions
providing services within the planning jurisdiction and from affected property
owners and to ensure zoning designations are in accordance with the amended
Comprehensive Plan of the City of Meridian on December 19, 2019, Resolution
No. 19-2179, and the UDC, Title 11.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties agree as follows:
2. INCORPORATION OF RECITALS: That the above recitals are contractual and binding
and are incorporated herein as if set forth in full.
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
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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 Mauricio and Ilene Garcia, whose
address is 4863 N. Larkwood Place, Meridian, Idaho 83646, the party that owns
said Property and shall include any subsequent owner(s) of the Property.
3.3 PROPERTY: means and refers to that certain parcel of Property located in the
County of Ada, City of Meridian as described in Exhibit"A" describing a parcel to
be removed from existing Development Agreement recorded on March 12, 2004 in
Ada County as Instrument A104027941, with such parcel being bound by this new
Agreement, which Exhibit"A" is attached hereto and by this reference
incorporated herein as if set forth at length.
4. USES PERMITTED BY THIS AGREEMENT: This Agreement shall vest the right to
develop the Property in accordance with the terms and conditions of this Agreement.
4.1 The uses allowed pursuant to this Agreement are only those uses allowed as
permitted, conditional and/or accessory uses under the UDC.
4.2 No change in the uses specified in this Agreement shall be allowed without
modification of this Agreement.
5. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY:
5.1 Owner/Developer shall develop the Property in accordance with the following
special conditions:
a. The existing residential use may continue as a legal nonconforming use until
such time as sanitary sewer service is available to the property, and at that time
the residential use of the building shall cease.
b. The C-G area shall remain undevelopable until sanitary sewer service is
available to the property.
c. Any existing domestic wells and/or septic systems within this project will have
to be removed from their domestic service, per Meridian City Code 9-1-413,
when services are available from the City of Meridian. Wells may be used for
non-domestic purposes such as landscape irrigation.
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
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d. Any other conditions as desired by the Council.
e. A cross-access/ingress-egress easement shall be granted and the shared
driveaway constructed to Parcel AR7104250566 (Pine 43 Subdivision)to the
west. A copy of the recorded easement shall be submitted with the first
certificate of zoning compliance application.
f. Parking for the development shall be based on the parking ratio of one (1)
parking space for every two hundred fifty(250) square feet of gross floor area
regardless of use.
6. COMPLIANCE PERIOD: This Agreement must be fully executed within six (6)months
after the date of the Findings or it is null and void.
7. DEFAULT/CONSENT TO DE-ANNEXATION AND REVERSAL OF ZONING
DESIGNATION:
7.1 Acts of Default. In the event Owner/Developer, or Owner's Developer's heirs,
successors, assigns, or subsequent owners of the Property or any other person
acquiring an interest in the Property fail to faithfully comply with all of the terms
and conditions included in this Agreement in connection with the Property, this
Agreement may be terminated by the City upon compliance with the requirements
of the Zoning Ordinance.
7.2 Notice and Cure Period. In the event of Owner/Developer's default of this
agreement, Owner/Developer shall have thirty(30) days from receipt of written
notice from City to initiate commencement of action to correct the breach and cure
the default, which actions must be prosecuted with diligence and completed within
one hundred eighty(180) days; provided, however, that in the case of any such
default that cannot with diligence be cured within such one hundred eighty(180)
day period, then the time allowed to cure such failure may be extended for such
period as may be necessary to complete the curing of the same with diligence and
continuity.
7.3 Remedies. In the event of default by Owner/Developer that is not cured after notice
from City as described in Section 7.2, City shall, upon satisfaction of the notice and
hearing procedures set forth in Idaho Code § 67-6511A, have the right, but not a
duty, to de-annex all or a portion of the Property, reverse the zoning designations
described herein, and terminate City services to the de-annexed Property, including
water service and/or sewer service. Further, City shall have the right to file an
action at law or in equity to enforce the provisions of this Agreement. Because the
covenants, agreements, conditions, and obligations contained herein are unique to
the Property and integral to the City's decision to annex and/or re-zone the
Property, City and Owner/Developer stipulate that specific performance is an
appropriate, but not exclusive, remedy in the event of default. Owner/Developer
reserves all rights to contest whether a default has occurred.
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
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7.4 Choice of Law and Venue. This Agreement and the rights of the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Idaho, including all matters of construction, validity, performance, and
enforcement. Any action brought by any party hereto shall be brought within Ada
County, Idaho.
7.5 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.
7.6 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 ordinance or
policy, notify the City Engineer and request the City Engineer's inspections and written approval of
such completed improvements or portion therefor in accordance with the terms and conditions of this
Agreement and all other ordinance of the City that apply to said Property.
9. REQUIREMENT FOR RECORDATION: City shall record this Agreement, including
all of the Exhibits, and submit proof of such recording to Owner/Developer.
10. SURETY OF PERFORMANCE: The City may also require surety bonds, irrevocable
letters of credit, cash deposits, certified check or negotiable bonds, as allowed under the UDC, to
insure the installation of required improvements, which the Owner/Developer agrees to provide, if
required by the City.
11. CERTIFICATE OF OCCUPANCY: No Certificates of Occupancy shall be issued if the
improvements have not been installed, completed, and accepted by the City, or sufficient surety of
performance is provided by Owner/Developer to the City in accordance with Paragraph I I above.
12. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agrees to abide by all
ordinances of the City of Meridian unless otherwise provided by this Agreement.
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
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13. NOTICES: Any notice desired by the parties and/or required by this Agreement shall be
deemed delivered if and when personally delivered or three (3) days after deposit in the United States
Mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
CITY: with copy to:
City Clerk City Attorney
City of Meridian City of Meridian
33 E. Broadway Ave. 33 E. Broadway Ave.
Meridian, Idaho 83642 Meridian, Idaho 83642
OWNER/DEVELOPER:
Mauricio and Ilene Garcia
4863 N. Larkwood Place
Meridian, Idaho 83646
14.1 A party shall have the right to change its address by delivering to the other party a
written notification thereof in accordance with the requirements of this section.
14. 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.
15. 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.
16. 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, 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, has
determined that Owner/Developer has fully performed its obligations under this Agreement.
17. 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.
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
Page 6 of 9
18. DUTY TO ACT REASONABLY: Unless otherwise expressly provided, each
party shall act reasonable in giving any consent, approval, or taking any other action under this
Agreement.
19. COOPERATION OF THE PARTIES: In the event of any legal or equitable
action or other proceeding instituted by any third party(including a governmental entity or official)
challenging the validity of any provision in this Agreement, the parties agree to cooperate in
defending such action or proceeding.
20. 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.
20.1 No condition governing the uses and/or conditions governing the 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 as
of the date herein above written.
[End of text. Acknowledgements, signatures, and Exhibits A and B follow.]
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
Page 7 of 9
ACKNOWLEDGMENTS
R4 WITNESS WHEREOF, the parties have herein executed this agreement and made it
effective as hereinabove provided.
OWNER/DEVELOPER:
'elt4'�
Mauricio Garcia Ilene Garcia
STATE OF IDAHO )
ss:
County of Ada )
On this acr day of °7yu rat, , 2023,before me, the undersigned, a Notary Public in and for said State,
personally appeared Mauricio Garcia,known or identified to me to be the person who signed above and acknowledged to me
that they 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. ,aaaxaaaemer:phr'h
(SEAL.
= o'[A/� Not ublic
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i Z y Commission Expires:
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STATE OF IDAHO ) ,Oaa�e�e,so�vv
ss:
County of Ada )
On this r vnc�day of 2023, before me, the undersigned, a Notary Public in and for said State,
personally appeared Ilene Garcia,known or identified to me to be the person who signed above and acknowledged to me that
they executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand andaffixed my cial seal the day and year in this certificate
first above written.
raaaaaaaanitr/tr►�p•j �
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(SEAL) �s•,'' tary Public
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DEVELOPMENT AGREEMENT—JENNIE'S RETAIL H-2022-007I
Page 8 of 9
CITY OF MERIDIAN ATTEST:
By:
Mayor Robert E. Simison 6-13-2023 Chris Johnson, City Clerk 6-13-2023
STATE OF IDAHO )
ss
County of Ada )
On this 13th day of June 2023,before me,a Notary Public,personally appeared Robert E.Simison
and Chris Johnson,known 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
My Commission Expires: 3-28-2028
DEVELOPMENT AGREEMENT-JENNIE'S RETAIL H-2022-0071
Page 9 of 9
EXHIBIT"A"
Lf2r1 Description Qf property
Jack G.Cortabitarte w d Issac F.Cartabitarte
Lot I of Plemm3t Valtey Subdivision,according to the plat thmoof,filed in Book
12 of Plats,page d65 in the office of the county r=rder of Ada County,State of
Idaho.
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ANNEXATION EXHIOIT BRIGGSEN91NEERING6INC.
FOR
JACK CORTABITARTE 8 R I s
A PORTION OF LOT 1, PLEASANT VALLEY 9J8CIVISION
LOCATED IN THE NW 1/4 OF SECION b, 7,34„ FUE, 6.M. (205)3"-97DD
MERIDIAN ADA COUNTY, IDAHO 11300 W.OVEAMAM ROAD•9pg,VAN0 aV05
Oil6 GALE 054G NO SCALE ��// �]
09/22/03 CSN 20911 NTS E/\ ILaIT
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EXHIBIT B
STAFF REPORT E IDIAN---
COMMUNITY DEVELOPMENT DEPARTMENT
HEARING 02/07/2023
DATE: Legend R1 R1 R2II�
Project Location R-2 R-4
TO: Mayor&City Council L OAR 40�
R-4 R74RUT
FROM: Stacy Hersh,Associate Planner
208-884-5533 �R6 � � R-15 C-G
CFN AFL-O C-G �L@O L-O
SUBJECT: H-2022-0071 —C2 G-C—P."T—C-G
Jennie' Retail MDA R-15 R-40 I-L It
R-15 L-O
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LOCATION: The site is located at 2365 E. Fairview R-15 R-410 I-L
Avenue,near the half-mile mark between SCR-4
1 RUT
N. Eagle Road and N. Locust Grove R-1.5 CIL �a
Road,in the NE 1/4 of the NW 1/4 of RIL-0O C-G
Section 8,Township 3N,Range I L-O�
(R7104250004).
C-G I.L�C G�� R1�m C-G C-G,
L PROJECT DESCRIPTION
Development Agreement Modification(MDA)to amend the existing agreement(DA Inst.
4104027941)to remove the subject property from this agreement for the purpose of allowing the
property to develop consistent with the allowed uses in the existing C-G zoning district. Currently,
the recorded DA requires conditional use permit approval for all future uses prior to development on
the property.
NOTE: City Council approved the subject MDA on January 3'. After the hearing,it was discovered
that this property did not include the entire boundary of the property that was part of the original DA.
Staff met with the applicant to discuss all of the options. Both staff and the applicant agreed that the
best course of action was to update the staff report and renotice/reschedule the project. Staff has
prepared Findings in the affirmative for Council's approval since the project did not have any public
testimony or Council discussion during the previous hearing.
Pagel
IL SUMMARY OF REPORT
A. Applicant:
Richard Wilmot—3130 W. State Street,Boise,ID 83703
B. Owner: Mauricio and Ilene Garcia—4863 N. Larkwood Place, Meridian,ID 83646
C. Representative:
Same as Applicant
III. STAFF ANALYSIS
The Applicant proposes to amend the Cortabitarte Development Agreement (Inst. 4104027941) to
remove the subject property from the existing development agreement. When this property was
originally annexed it included the I-L property directly south of the subject property. Since the applicant
wasn't able to obtain the property owner's consent to amend the terms of the original DA,a new DA is
being requested so the property can develop consistent with the C-G zoning district without the need
of obtaining CUP approval for every use. Below is the legal description and exhibit map of the C-G
zoned property attached to the original annexation ordinance.This is the area that will be subject to the
new DA.
A concept plan was submitted showing how the property could potentially develop. The new DA will
not include this as an exhibit,it is meant for illustrative purposes only. Due to the size of the property,
compliance with the City's design standards,and the inclusion of staff's other recommended DA
provisions, staff believes the inclusion of a concept plan is not warranted. The proposed site plan
depicts a mix of retail,restaurants,a drive-through,and associated site improvements. Because the
site has the potential to develop with multiple drive-throughs and restaurants, staff has analyzed the
parking on the plan using the restaurant standards requiring one (1)parking stall for every 250 square
feet(UDC 11-4-3-49)of gross floor area to ensure adequate parking. Per this standard, 68 parking
stalls would be required if the site develops per the submitted concept plan. Currently,the plan
depicts 50 parking stalls. Therefore, staff recommends adding a provision to the Development
Agreement to address potential parking issues by requiring a parking ratio of 1 parking stall for every
250 square feet of gross floor area regardless of the use.
Currently,the City is processing a CZC and DES application for a drive-through use on the west
boundary in the Pine 43 development. If the abutting property does develop with a drive-through,the
proposed drive-through would be within 300 feet of another drive-through which would require CUP
approval.
Access to the property is proposed from E. Fairview Avenue; a shared access drive with the property
to the east(R8525101800). Staff has reviewed the Pine 43 Development Agreement(42018-000751)
conditions of approval and cross-access was required to be provided to this property for future cross-
access and interconnectivity between the two commercial areas. The plan as submitted doesn't
contemplate the cross access with the adjacent property. Staff recommends the applicant grant cross
access with the adjacent property to improve interconnectivity.
Staff recommends approval of the development agreement modification for the purpose of entering a
new agreement with the provisions in Exhibit A below.
IV. DECISION
A. Staff:
Staff recommends approval of the modification to the DA(Inst. 9104027941) as recommended by
Staff's analysis above and with the specific changes below.
V. EXHIBITS
A. Legal Description and Exhibit Map
EXHIBIT"A"
Desert
Jack G.Cartabitarte aad Isaac F.C'artabitarte
Lot I of Pleasant Vaitey Subdivision,according to the play thaeof,fiiad in Book
12 of Ptak,page 665 in the office of the county roarder of Ada County,State of
Idaho.
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09/22/03 Csu 20911 NTS EXHIBIT
B. New Development Agreement Provisions Recommended by Staff:
Add a new DA provision-A cross-access/ingress-egress easement shall be granted and the
shared driveway constructed to Parcel#R7104250566(Pine 43 Subdivision)to the west.A copy
of the recorded easement shall be submitted with the first certificate of zoning compliance
application.
Add a new DA provision—Parking for the development shall be based on the parking ratio of one
(1)parking space for every two hundred fifty (250) square feet of gross floor area regardless of
use.
C. Conceptual Site Plan(reference only):
Chrysalis
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