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Instant Equity Auto CZC 08-010ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 10 BOISE IDAHD 12101109 03:14 PM DEPUrY usa Batt III IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII III RECORDED-REQUEST OF 1 ~~ 1 ~417~ Maridlan City DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. Instant Equity Auto, Owner/Developer THIS DEVELOPMENT AGREEMENT (this "Agreement"), is made and entered into this o?4~" day of 2009, by and between City of Meridian, a municipal corporation of the State of Idaho, hereinafter called City, and Instant Equity Auto whose address is 10221 West Fairview, Boise, ID 83704, hereinafter called Owner/Developer. 1. RECITALS: 1.1 WHEREAS, Owner/Developer 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, hereinafter referred to as the Property; and 1.2 WHEREAS, Section 67-6511A, Idaho Code, provides that cities may, by ordinance, require or permit as a condition of zoning that 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-SB-3 of the Unified Development Code ("UDC"), which authorizes development agreements upon the annexation and/or re-zoning of land; and 1.4 WHEREAS, the property described in Exhibit A was originally annexed with project AZ 01-010 under the Boise Podiatry Building in 2001. A Development Agreement was required in the Findings approved by the Meridian City Council on October 2, 2001, however the Development Agreement was never completed; and 1.5 WHEREAS, the record of the proceedings for the requested annexation and zoning designation of the Property held before the Planning & Zoning Commission, and subsequently before the City Council, includes responses of government subdivisions providing services within the City of Meridian planning jurisdiction and includes further testimony and comment; and DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 1 OF 9 1.6 WHEREAS, on the 2nd day of December, 2008, the City Council approved the Owner/Developer's request for a Certificate of Zoning Compliance and required the OwnerlDeveloper to enter into a Development Agreement as required in the original annexation; and 1.7 WHEREAS, Owner/Developerdeerns 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 1.8 WHEREAS, 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, herein being established as a result of evidence received by 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 designation is in accordance with the amended Comprehensive Plan of the City of Meridian adopted August 6, 2002, Resolution No. 02-382, and the UDC, Title 11. NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: 2. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and are incorporated herein as if set forth in full. 3. DEFINITIONS: For all purposes of this Agreement the following words, terms, and phrases herein contained in this section shall be defined and interpreted as herein provided for, unless the clear context of the presentation of the same requires otherwise: 3.1 CITY: means and refers to the City of Meridian, a parry 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 Instant Equity Auto, whose address is 10221 West Fairview, Boise, ID 83704, the party that owns and is developing said 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, describing the parcels to be C-G, (General Commercial District). DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 2 OF 9 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 in the approved C-G zones 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 PROPERTY: Owner/Developer shall develop the Property in accordance with the following special conditions: 5.1 The applicant shall provide cross access along the west and east property boundary as depicted on the revised site plan dated 1/18/2008. A copy of the recorded cross access agreement shall be submitted to the Planning Department prior to the issuance of a CZC. While the property is being used for vehicle sales, cross access shall be limited to the west through the Fairview entry point. 5.2 The applicant shall have 24 months from CZC approval to connect the existing structure to city services. 5.3 The applicant shall provide a 17.5-foot wide landscape buffer with 10-foot wide multi-use pathway adjacent to Fairview Avenue. A 5-foot wide landscape buffer with a six foot solid fence shall be installed along the southern property boundary as depicted on the revised site plan dated 1/18/2008. All remaining landscaping on the site shall be consistent with UDC landscape standards. 5.4 Minor vehicle service and/or repairs from the existing garage shall be allowed as an accessory use in accordance with the standards listed in UDC 11-4-3-37 provided the building foot print of the garage is not expanded until city services are provided on site. The City Council approved raising the roof on the shop 4 feet to accommodate the lift for the repair facility. If future expansions or new buildings are proposed for the site, the applicant shall be responsible for CZC approval. 6. COMPLIANCE PERIOD: This Agreement must be fully executed within one (1) year after the date of the Findings or it is null and void. 7. INSPECTION: Owner/Developer shall, immediately upon completion of any portion or the entirety of said development of the Property as required by this Agreement DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 3 OF 9 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 of Meridian that apply to said Property. 8. DEFAULT/CONSENT TO DE-ANNEXATION AND REVERSAL OF ZONING DESIGNATION: 8.1 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. 8.2 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. 8.3 Remedies. In the event of default by Owner/Developerthat isnot cured after notice as described in Section 8.2, Owner/Developershall bedeemed tohave 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 maybe sought by an appropriate action at law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. 8.4 Delay. In the event the performance of any covenant to be performed hereunder by either Owner/Developer or City is delayed for causes that aze beyond the reasonable control of the party responsible for such performance, which shall include, without limitation, acts of civil disobedience, strikes or similaz causes, the time for such performance shall be extended by the amount of time of such delay. 8.5 Waiver. A waiver by City of any default by Owner/Developer ofany one or more of the covenants or conditions hereof shall apply solely to the default DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 4 OF 9 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. 9. REQUIREMENT FOR RECORDATION: City shall record this Agreement, including all of the Exhibits, at Owner/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, City shall execute and record an appropriate instrument of release of this Agreement. 10. ZONING: City shall, following recordation of the duly approved Agreement, enact a valid and binding ordinance zoning the Property as specified herein. 11. SURETY OF PERFORMANCE: City may require surety bonds, irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under the UDC, to insure the installation of improvements that Owner/Developer agrees to provide. 12. CERTIFICATE OF OCCUPANCY: Owner/Developer agrees that no Certificates of Occupancy will be issued until all improvements are completed, unless City and Developer/Owner has entered into an addendum agreement stating when the improvements will be completed in a phased developed; and in any event, no Certificates of Occupancy shall be issued in any phase in which the improvements have not been installed, completed, and accepted by City. 13. ABIDE BY ALL CITY ORDINANCES: Owner/Developeragrees to abide by all ordinances of the City of Meridian unless otherwise provided by this Agreement. 14. NOTICES: Any notice desired by the parties andlor 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. Meridian, ID 83642 OWNER/DEVELOPER: Instant Equity Auto 10221 West Fairview Boise, ID 83704 DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 5 OF 9 with copy to: City Attorney City of Meridian 33 E. Broadway Avenue Meridian, ID 83642 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. 15. ATTORNEY FEES: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorney's fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 16. TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. 17. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including City's corporate authorities and their successors in office. This Agreement shall be binding on 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 ofOwner/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 its obligations under this Agreement. 18. 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. 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 of this Agreement, the parties hereby agree to cooperate in defending such action or proceeding. DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 6 OF 9 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/Developerand 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/Developerand City, other than as aze stated herein. All Exhibits referenced herein aze 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. 21.1 No condition governing the uses and/or conditions governing re-zoning of 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. 22. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date the Meridian City Council shall adopt the amendment to the Meridian Zoning Ordinance in connection with the annexation and zoning of the Property and execution of the Mayor and City Clerk. ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this agreement and made it effective as hereinabove provided. INSTANT EQUITY AUTO By. ~ ~ ~' `, Daniel Burrup By:, Christensen DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 7 OF 9 CITY OF MERIDIAN By: Mayor T de Weerd ```~,,~unu~u~~'`~,~ ATTEST: ~.~`~`~ pf A~gg®® %''~. j TF ~'; o - SEAL Jaycee L. olman, City Clerk 9 9 ~~~ '~. Q T 1 S'~ ~ .rte ~: STATE OF IDAHO, ) ): ss County of Ada, ) On this ~~~ day of n U1PQ-~~~, 2009, before me, the undersigned, a Notary Public in and for said State, personally appeared Daniel Burrup known or identified to me to be the ~~ ~p,~ ,, of Instant Equity Auto and acknowledged to me that he executed the same on behalf of Instant Equity Auto. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Q'' ''"`..o~~~,r ~f. t (SEAL) _ ~~` ~ ' ~ ~ 6 ~y; ~ „ ~ 4 , a ~~ ~ ~~= ~~~ o '`i~~f~~'0aaac¢saeoeg ~'ph'~' , v. r v~~°~ ssol~~~~gtrtrt®~t att~~~~`~~` ~ -cc ~~ Notary Pub ' or Idaho Residing at~ .~ t My Commission Expire : - ~~ J DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 8 OF 9 STATE OF IDAHO, ) ): ss County of Ada, ) On this ~} =~ day of VI.E.)V'e. ~s.~, 2009, before me, the undersigned, a Notary Public in and for said State, personally appeared Eddy Christensen known or identified to me to be the i11/~ C 1iv~s.,~- of Instant Equity Auto and acknowledged to me that he executed the same on behalf of Instant Equity Auto. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ~- . ___~ t ~ ~ _ Notary Pub ' for Idaho r " r ~, r Residing at ~ oe.Q ,~ ~ My Commission Expires: -- ^~J STATE OF IDAHO ) ss County of Ada ) h On this day of ~ over" h~ , 2009, 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. ,....~ • ~tll: (SEAT,) ; ~ o Public fo Idaho . , ~,, ; R iding at: ~~, A ~ ~~{~itih '~'y ~~IC %p~% Commission expires: ,~ ~„ ~/ ~ o ! ~~ •' -~-~, OF ID~'••• DEVELOPMENT AGREEMENT -INSTANT EQUITY AUTO (CZC-08-010) PAGE 9 OF 9 ~~6{N EgRs r ~ 9~ O y ~a`` F'PS ~ Sv APPENDIX A RUBBLE ENGINEERING, INC. 701 S. Allen St., Suite 102 . Meridian, ip 83642 Project No. 0105200 DESCRIPTION FOR ANNEXATION /REZONE OGDEN PROPERTY 206/322-8992 . Fax 208/378-0329 November 8, 2001 A parcel of land located in the NW1/4 of the NE1/4 of Section 7, T.3N., R.1E., B. M., Ada County, Idaho and more particularly described as foliows: Commencing at the comer common to Sections 5, 6, 7 and 8 of T.3N., R.1 E., B.M., from which the 1/4 comer common to said Sections 8 and 7~ bears Narth 89°28'06" West, 2640.98 feet; thence North 89°28'06" West, 1513.68 feet on the line common to said Sections 6 and 7 to the REAL POINT OF BEGINNING; thence continuing on said common line North 89°28'06° West, 209.36 feet; thence leaving said common fine South 00°42'04" West, 33.09 feet to a point on the southeriy right of-way of said Fairview Avenue; thence continuing South 00°42'04" West, 175.98 feet; - thence South 88°56'51" East, 208.52 feet; thence North 00°55'50" East, 179.65 feet to a point on the said southeriy right-of-way of Fairview Avenue; thence continuing Narth 00°55'50" East, 31.32 feet to the Point of Beginning, containing 1.01 acres, more or less. NOY 1 4 ~ ]Ideri33an Public Works Dept, Patrick J. Scheffler, P.L.S. Prepared by: NUBBLE ENGINEERING, INC.