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Queenland Acres MDA 09-004ADA COUNTY RECORDER J. OAVID NAVARRO AMOUNT .00 I BOISE IDAHO 01!20110 01:31 PM RECORDED ~ REauesT of II I I I II I II II I II I II II I I I II II IIIII I I III City of Meridian i i Q005407 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. James Prather, Owner/Developer THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT is dated this da Y of~ a...u..uali.~Ja• , 2010, ("AMENDMENT"), by and between CITY OF MERIDIAN, a municipal corporation of the State of Idaho ("CITY"), and James Prather ("OWNER/DEVLEOPER"), whose address is 2595 S. Linder Road, Meridian, ID 83642. RECITALS A. CTTYand OWNER/DEVELOPER' Spredecessor-in-interest entered into that certain DEVELOPMENT AGREEMENT dated on September 17, 2007 and recorded on September 20, 2007 as Instrument # 107131597 on real property more particularly described in the Agreement. OWNER/DEVELOPER is now requesting certain changes to the Agreement and, following public hearing, which was duly noticed, City agreed to amend the Agreement as set forth in this Amendment. B. CITY and OWNER/DEVELOPER now desire to amend the Development Agreement by amending Sections 5 "Uses Permitted by this Agreement", 6 "Conditions Governing Development of Subject Property" and Section 14 "Certificate of Occupancy". C. CITY and OWNER/DEVELOPER desire to update the Record of Survey, attached hereto as Exhibit A. D. CITY and OWNER/DEVELOPER also desire a modification to the previously approved Conceptual Development Plan to remove the "bump out" (and tree) in the perimeter buffer at the south boundary between Parcel Nos. 3 and 4, as well as the "stop" and "yield" signs in that area, as in attached Exhibit B. NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: 1. OWNER/DEVELOPER shall be bound by the terms of the Development Agreement, except as specifically amended as follows: FIItST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 1 OF 8 Section 5 (pages 4 & 5) USES PERMTI~'ED BY THIS AGREEMENT; 8. The two building pads shown on the concept plan at the northeast corner of the site should have-tee all. ow narking stalls between the buildings and Overland Road consistent with the design standards contained in UDC 11-3A-19 and the City of Meridian Design Manual. 12. , eConstruct a multi-use pathway from the sidewalk on the stub street at the south boundary (Alaska Street) across the site, out to the sidewalk at the traffic signal on Overland Road. . Said pathway may be constructed in two phases with development of parcels Nos. l & 3 as shown on Record of Survey recorded on November 25, 2009. as Instrument No. 109132349, records of Ada County, Idaho, (attached hereto as Exhibit A) and shall atl~~ be constructed prior to occupancy of the buildings on each of the aforementioned parcels. The applicant shall design and construct the multiuse pathway in accordance with UDC 11-3A-8 and in conjunction with the Parks Department's standards, except that the pathway is allowed to be 8 feet in width. instead of 10 feet. Additionally, where the pathway crosses drive aisles, the pathway shall be distinguished from the driving surfaces through the use of pavers, colored or scored concrete, or bricks (not paint). Any changes to these requirements can be done pursuant to Article 14 of this Agreement. 13. Development of this site plan shall be generally consistent with the conceptual building elevations (photos) and Conceptual Development Plan (attached as Exhibit B). site . Additionally, the rear elevation of the largest building proposed along the southern boundary shall have horizontal banding and/or include a variety of materials. With the exception of Parcel Nos. l and 2. as shown on the Record of Survey recorded November 25.2009. as Instrument No. 109132349. records of Ada County, Idaho, (individual buildings within this development shall be limited to 15% over or under the sizes shown on the concept plan except for the largest building pad which shall not exceed 170,000 square feet, and the minimum number of buildings allowed on the site shall no less than four and no more than six. The foregoing building size restrictions shall not apply to buildings constructed on Parcel Nos. l and 2 fronting on Overland Road. 17. Replace the existing fence, with the property owner's consent, along the southern boundary of the site with an ~8-foot tall °~~°-~°*° •••°" white vinyl fence to assist in providing a buffer to the residents in Bear Creek Subdivision in addition to the landscaping requirements listed in UDC 11-3B-9C a & b. FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 2 OF 8 Section 6 (page 6) COMPLIANCE PERIOD/CONSENT TO REZONE: ' « , .Either party's failure to faithfully comply with all of the terms and conditions included in this Agreement shall constitute default under this Agreement. 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 on 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. In the event of default by Owner/Developer that is not cured after notice as described in the prior paragraph, Owner/Develoaer 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 .Tudicial 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. In the event the performance of any covenants to be performed hereunder by either Owner 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. A waiver by City of any default of Owner 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. FIltST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 3 OF 8 Section 14 (page 8) CERTIFICATE OF OCCUPANCY: The Owner/Developer agrees that no Certificates of Occupancy will be issued for any buildins site or parcel until all improvements thereto, reauired under this Aereement. are have been installed, completed~e£~ and accepted by the City. The Owner/Developer may develop each parcel or building site as a separate phase or in phases. Improvements shall include the multi-use pathway referred to in Section 5 (#10). 2. 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/Developer, or their assigns, heirs, or successor shall not meet the conditions of this Amendment, and the Ordinances of the City of Meridian as herein provided. 3. This Amendment shall be binding upon and insure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including City's corporate authorities and their successors in office. This Amendment shall be binding on the Owner/Developer of the Property, each subsequent owner and any other person(s) 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 hereon 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 amendment if City, in its sole and reasonable discretion, had determined that Owner/Developer has fully performed its obligations under this amendment. 4. If any provision of this Amendment is held not valid by a court of competent jurisdiction, such provision shall be deemed to be excised from this Amendment and the invalidity thereof shall not affect any of the other provisions contained herein. 5. This Amendment sets forth all promises, inducements, agreements, condition, and understandings between Owner/Developer and City relative to the subject matter herein, and there are no promises, agreements, conditions orunder-standing, 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 Amendment 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 Ciry. a. Except as herein provided, no condition governing the uses and/or conditions governing development of the subject Property herein provided for can be modified or amended within the approval of the City Council after the City has conducted public hearing(s) in accordance with the notice provisions FIltST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 4 OF 8 provided for a zoning designation andlor amendment in force at the time of the proposed amendment. 6. This Amendment shall be effective as of the date herein above written. 7. Except as amended by the Amendment, all terms of the Agreement shall remain in full force and effect. ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this Amendment and made it effective as hereinabove provided. CITY OF MERIDIAN /~~ By: May r y de Weerd ATTEST: ~~``'"~ 111111111,,,, s Jaycee .Holman, City Clerk = ~j~;~ _ / ~ ,~ ` 9 '. Q T1S't~ ~~` ~/~~ ~ ^ `o `~\ / S' /, ~~~ /,Yl• l/l 1111 61 ~ ~ ,,, \ \ \` FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 5 OF 8 STATE OF IDAHO ) ss. County of Ada ) On this l y~day of , 2010 before me, the undersigned, a Notary Public in and for said State, personall appeared James Prather, known or identified to me to be the person who executed the instrument herein and acknowledged to me that he 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. ,~r~r r~ sUe~~4 '~ rF o! ~c STATE OF IDAHO ) ss County of Ada ) Notary Pu 'c for Idaho Residing at:~ 1 ~ My commission expires: - On this 1°I~'r' day of ~ huo. 2010, before me, a Notary Public, personally appeared Tammy de Weerd and Jaycee L. Holman, 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. ••.~1r,A Jp~. (SEAL) • 5.~ TA •~ . 'w'~~ ~,~ ~.cp . ~?~ ~, '~'.9rE OF ~~' •...... No Public r Idaho Residing at: Ihur~a ,~Idaha Commission expires: Jan y , ao~~ FIItST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 6 OF 8 Exhibit A -Amended Record of Survey (Instrument No. 109132349) a ~~ ai 4 ea4wo sc R. ~• J. ~ c t r s =.__Bl4~.r:st- A0G~4 /779-I sr I i 1 m f ~ ~ ~ of 0 1 J4'~/~ e.a.er "~ aW a~ae 1#'TNL ... ~ 'A' an~xom PxoP®m~unrcAarao~ruan~e A PART OF THE NW 1 4 NE 1 4, SECII~1 2' ~ ~m Imo ADA COUNTY. fDANO Y .~, Bea/ seek eueN4slm~ ro 2 Deok BI peps ee84 6889 i k]]rAe9 1 ..~ dM.e erarvra_.g._sawc....._.:° mru'6rr H a RH<?DRDFRS C.BHTIFICATB Scrow r°PO a~Dpl~ ~+n om~i1ao'd~oa_~ maa~dar er+~« . tJ a arm N~vuzRV Raara. ey --!? ~o..ar~. n4+ary evsrHVa¢Nr Ra . 0513 L~ Y4 area .3 S •'' SMm 1'~10a' ~~~ a CdalOated paBd 0 YONM ta® sap mampnot 4• 9st 9ye ma, ar0. . JO a+b ka, pM sop pis 9.T66 p r«p,4 s/6 arh mn kan pD o raa,a //2 krM da kan pF ---- Dese Pm ~~.~ Perl(6an Ops --~~- SsaWn one '-~-~ EasemsntP,s Ojai bt Pas Q~TT7FlOATH OP BUtibHYOH 1, OarM No4hey do hereDY oertlly thot 1 wn o Protesstonol Lmld Surwror licensed Dy tha Stote of ktoho, and Owl fhie Revd of Serray ooneeBY raPresente o aurreY mode Dy me a under my dheef wpeMebn N wntormmics -Jth fdaho Cade .)t-2709. 1047 REt30RD DATA Bear Croak SulydiHaton Book 82 8886 8985 one oacePtad praadurea o/ tmld aunty 1 further certrlY that I . Reomd a/ Surroy Mst. Na 98122 hove cmnp11e0 alth Rtia SR pwpter t8, Code. Record of Survey Wt. Na 9JOJiBf Record of Survsy Inst Na 104187284 Retaud e/ Swvey 4ret Na 101087]59 Record e! Survey inst. Na 10$018708 93 Qusanland Haas Su6dvdebn Book 28 Popes i7a7, 1748 ' a P1£ tk>enae Na 8JB8 Oorfn HolaAeY 6mrenty Deed k+sf. No. fOBItOJ52 1091 R / t N 1 2 l ~„s~ oeord o as a Svr»Y J 9 3 avPn1 Na oe6,w-f.sa.mao Qt~YmPo / James Prather na .emrdnp ar wP rrmm a aen nee «mi. ms a.roe pr 6- pareW oalq qYy on Flab map. A nRfm amgpeva mWl to m~qr N dptD er sw.e aeee am .en m N w+ms p e o r ~ dted~+r bn fd dro m aperfr ~ ~ ua d rNe ererM aa. rot ^eesmar dro. m1 pf tM pDpiad apfmo M tl- wwsr7e //~`~~//JJ' pmHWWae ~a50n S, Vf°a r a.a eon ~OIMRetlen pm rytaa• sv uwan a Sim+ed4 4% ammo ro aoDOty t psemt or Mure aompROnGa ar p:mnae4dss aa~ ~k~pmmlfq ;kff°" wnawxv ro aaaakw r. f 1 " Pbas fdke eelis tanl'lefa r+~ ~avpa:aaearaw ~p m R+ et/1a.0a FIItST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-004 QUEENSLAND ACRES) PAGE 7 OF 8 Exhibit B -Proposed Conceptual Development Plan '1- "' ._ _ i ': I: i' ! i€ ! ;! I ~ li i Iii i fi i i {~ I ~ ! I ~~ ~ 6K s.f. _ 8K st. I i' i ~ _._. _~ 16K s.t. ~ -~- --r- ~- t- -._ =1- - -~ -~- __ _ ...._ __ -F __ ~_ -~- --"- ~ 1 . ; , ~- -.1- . _ _ ~ i -. ~ -~Y_ __-._. Gib n~ ~ ~e ~ O e C5 O L~ __ ---- .~ _.. $COp Sfg~ ... _ _ _ ~ - - D __ _ i25K sf. Valley gutter or _ _ _ - speed bump - ~ 60R s.f. ... 1 - - -- - ~ Valley gutter or speed bump FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (MDA 09-Q04 QUEENSLAND ACRES) PAGE 8 OF 8