Exhibit A - AgreementAGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI
PROPERTIES, LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF
THE PROPERTY M ~~
THIS AGREEMENT is made and entered into this ~i~day of ~ 2010, by and
between CITY OF MERIDIAN, a Municipal corporation of the State of Idaho, hereinafter
referred to as "CITY", and the WENPHI PROPERTIES, LLC or assigns, as hereinafter
referred to as "OWNER."
RECITALS
WHEREAS, Owner is the owner of three contiguous parcels of real property located in
the City of Meridian, Ada County, Idaho, namely pazcels S 1107110508, S 1101110512, and
S 1107110525, legally described on Exhibit A, Exhibit B, and Exhibit C attached hereto and
incorporate herein (collectively, the "Property"). The Property is the subject of a Certificate of
Zoning Compliance ("CZC") application with the City.
WHEREAS, The City's Planning Director ("Director") conditioned issuance of the CZC
on two conditions: (1) construction of a ten (10) foot wide multi-use pathway on the northern
boundary of the Property along Fairview Avenue; and (2) construction of a twenty by twenty
(20x20) foot driveway on the western boundary of the Property.
WHEREAS, the Owner requested City Council Review of the two conditions (the
"Appeal"), and on February 2, 2010, as public hearing AP 10-001, the Meridian City Council
heard the matter.
WHEREAS, at the close of said public hearing, it was moved by Councilmember
Zaremba and seconded by Councilmember Rountree that the Owner's Appeal would be granted
as to the condition relating to the ten foot multi-use walkway, and that .the condition relating to
the twenty by twenty (20x20) foot driveway would be resolved pursuant to the terms of a
separate written agreement between the City and the Owner. That motion passed unanimously.
AGREEMENT
NOW, THEREFORE, in furtherance of the development of the Property, for due and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged and
agreed, and in consideration of the recitals above, which are incorporated herein as contractual
and binding terms, and the premises and the mutual representations, covenants, undertakings and
agreements hereinafter contained, Owner and City represent, covenant, undertake and agree as
follows:
L MULTI-USE PATHWAY.
In connection with the further development of the Property, the Owner shall construct a
ten foot wide multi-use pathway on the northern boundary of the Property along Fairview
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPffi PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY -1
Avenue; provided, however, that in the area immediately in front of the Owner's existing
monument sign, the multi-use pathway maybe tapered down to a minimum width of six (6) feet.
2. TWENTY BY TWENTY FOOT DRIVEWAY.
2.1 In the event that pazcel #S 1107120600, located adjacent to the- west of the
Property ("Western Pazcel") is approved by the City for development based upon
an application by the Western Pazcel's owner, the Owner shall upon written
notice from the City, but not before, be required to construct a twenty by twenty
(20x20) foot driveway in the approximate location hatched and identified as
"NEW ASPHALT PAVED SURFACE TO MEET CITY CZC APPROVAL FOR
FUTURE SITE ACCESS" on Exhibit D attached hereto and incorporated herein,
-- to allow for cross access in the future to -the Western Pazcel. The location of the
twenty by twenty foot driveway hatched and identified in Exhibit D is for
reference only and is not intended by the parties to be the exact location of the
driveway. The exact location of the driveway shall be established between the
Owner, the City and the- Western Pazcel's owner in coordination with the Western
Parcel owner's development application.
2.2 If the Owner fails to perform its obligation pursuant to Section 2.1 above, the
damages to City that would result from such a breach would be extremely
difficult to determine in that it is impossible to foresee the future cost of
constructing such a driveway when the exact time for its construction is unknown
to the parties. Therefore, the parties agree that in the event of Owner's breach of
duty to perform its obligations pursuant to Section 2.1 above, the Owner shall pay
to City the amount of Seven Thousand Dollars ($7,000.00) as liquidated damages
for its breach. Said liquidated damages amount represents a reasonable estimate
of the future cost to construct said driveway, inclusive of construction materials,
labor, and engineering fees. The Parties hereto agree that the liquidated damages
_ amount agreed to herein represents a reasonable attempt to quantity the damages
- to City in the~event of Owner's breach and is not intended to be a penalty.
2.3 The City shall amend.the certificate of Zoning Compliance with respect to the
Property to reflect this Agreement.
3. DEFAULT..
Any failure to perform the terms and conditions of this Agreement shall be a default.
In the event of a default, written Notice of Default shall be served and defaulting party shall
then have thirty (30) days after delivery of Notice of Default to cure the same before the
non-defaulting party may seek any remedy-provided-for herein. If the breach is such that it
cannot be cured within thirty (30) days, then Owner will not be in default ifafter receipt of
City's Notice of Default Owner has promptly commenced to cure such breach and diligently
continues to pursue the cure thereafter until it is completed. Notice of Default does not
excuse performance of the balance of any terms and conditions of the Agreement unless the
default is such to negate continued performance.
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY - 2
4. REMEDIES.
This~Agreement shall be enforceable in any court of competent jurisdiction by either City
or Owner, 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 covenant to be performed hereunder by either Owner
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, third party or outside agency delay, the time for such performance shall be
extended by the amount of time of such delay.
5. 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. Idaho Ave.
Meridian, Idaho 83642
OWNERS:
Pet Care Clinic
1151 E. Fairview Ave.
~- Meridian, Idaho 83642
A party shall have the right to change their address by delivering to the other party a written
notification thereof in accordance with the requirements of this section.
6. 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.
7. 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. Any extension of any time lines may be for by acts of God,
war, delays beyond control of the City, delay caused by third parties and/or agencies.
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY - 3
8. 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 of the property, each
subsequent owner and each 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.
9. 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 therefrom and the invalidity thereof shall not affect
any of the other provisions contained herein.
10. FINAL AGREEMENT.
This Agreement sets forth all promises, inducements, agreements, condition and
understandings between Owner 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 City other than as are stated herein or the exhibits or agreements referenced
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,
a duly adopted resolution of City.
11. TERMINATION.
At such time as the multi-use pathway and cross access driveway is constructed this
agreement shall terminate except for any default that exists at such time shall still be enforceable
pursuant to the terms of this agreement.
12. EFFECTIVE DATE:
This Agreement shall be effective at such time as both parties have executed this
Agreement.
13. COUNTERPARTS; FACSINIILES.
This Agreement may be executed in any number of counterpart originals, each of which
shall be deemed an original instrument for all purposes, but all of which shall comprise one and
the same instrument. Delivery of an executed signature page by facsimile or by scanned image
shall be deemed effective as delivery of amanually-executed counterpart. Delivery of an
executed signature page by facsimile or by scanned image shall be deemed effective as delivery
of amanually-executed counterpart.
[signatures on following page]
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY - 4
` i
IN WITNESS WHEREOF, authorized representatives of the parties hereto have executed
this Agreement as of the Date set forth below.
CITY OF MERIDIAN
By: ~~~~ ~~~~~
~-
Name: / o~c
Title: ~.(.l~'7Z
Date: 3 - ~. - a-O! 0
WENPHI PROPERTIES, LLC
sy: ~,~.~
Name: 7d/~ ~ i~ ~!-,'~/~
~~
Title: ~ ~aTiil~ ~
Date: E~/ ,a~~/ e''
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY - 5
STATE OF IDAHO )
. ss.
County of Ada )
On this ~"`~day of N1r~rclr\ , 2010, before me, the undersigned, personally appeared
TMm~ de Wee.~c- ~ ,known to me, or proved to me upon satisfactory evidence, to be the
-•.~a,~ o~ of the CITY OF MERIDIAN, the entity that executed the
within instrument, and known to me to be the person who executed the within instrument on behalf
of said entity and acknowledged to me that such entity executed the same..
IN WITNESS WI~REOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
,......
.•'1CA J~••,
~;
•~ ,tA.
. '~.
•
. ~ ~ .
. ~ •
i ,'. % •
• `. ~j~jCi,•~0i
•
'•....~*
tazy Public I
Residing: lhyna . Idlnk,~
Commission Expires: 1 a r. y , ~~ ~ ,~
STATE OF IDAHO )
. ss.
County of Ada )
On this r ~ay of u,~.c 2010, before me, the undersigned, personally appeazed
~ f ~i known to m~'; or proved to me upon satisfactory evidence, to be the
of WENPHI PROPERTIES, LLC, the corporation that
executed the within instrument, and known to me to be the person who executed the within
instrument on behalf of said corporation and acknowledged to me that such corporation executed
the same..
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and yeaz in this certificate first above written.
~~ yq p~ ,~
NOp ~ Notary Public for Idaho
~~ ~rP~ Residing: 'S.~ ~~
AG ~` Commission Expires: a? ~ (1
~ ~41C •
~~
AGREEMENT FOR FUTURE CROSS CONNECTION ACCESS BETWEEN WENPHI PROPERTIES,
LLC AND THE CITY OF MERIDIAN RE: WESTERN BOUNDARY OF THE PROPERTY - 6