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Playground Subdivision ORIGINAL PARTIAL AMENDED DEVELOPMENT AGREEMENT THIS AMENDED DEVELOPMENT AGREEMENT is made and entered into this ~ ~ day of April, 1997, by and between the CITY OF MERIDIAN, a municipal corporation of the State of Idaho, party of the first part, hereinafter called the "CITY", and CONTRACTORS EQUIPMENT SUPPLY COMPANY, INC., an Idaho corporation, party of the second part, hereinafter called "CESCO", whose address is 2049 Commerce Avenue, Boise, Idaho 83705. RECITALS WHEREAe, CESCO is the owner of Lot 1, Block 1 of the Playground Subdivision, City of Meridian, County of Ada, Idaho, as recorded as Instrument No. 96045393 in Book 71, at pages 7318 and 7319, records of Ada County, Idaho, hereinafter called "the Property"; and WHEREAS, the legislature of the State of Idaho has adopted Idaho Code § 67-6511A, which provides that cities may enter into development agreements with developers upon rezoning of land and that cities may modify development agreements; and WHEREAS, Section 2-417D of the Zoning Ordinance of the CITY of Meridian authorizes the CITY to enter into development agreements upon annexation and rezoning of land, and authorizes the CITY to modify a development agreement; and WHEREAS, pursuant to Ordinance No. 615 dated September 7, 1993 and Amended Ordinance No. 615 dated December 6, 1994, the CITY annexed the Property and provided it with a zoning designation of C-G; and PARTIAL AMENDED DEVELOPMENT AGREEMENT - 1 NOV 85 '01 1g=46 2H8 `>~9 G1882 PAGE.G2 WHEREAS, on October 1~, 1994, the Playground, Inc., the prior owner of the Property, entered into a Development Agreement with the CITY; and WHEREAS, on January 16, 1996, the CITY approved a preliminary and final plat for the Playground Subdivision; and WHEREAS, on August 13, 1996, CESCO submitted to the CITY an application for a conditional use permit for the Property requesting permission to construct and operate a John Deere dealership providing sales, service and parts for John Deere products; and WHEREAS, CESCO has made representations at public hearings and meetings before the Meridian Planning & Zoning Commission and Meridian City Council as to how the Property would be developed and what improvements would be made; and RHEREAB, the CITY has authority to place conditions and restrictions upon the conditional use permit for the Property; and WHEREAS, CESCO, as sole owner of the Property, has submitted to the CITY plans showing how the Property will be landscaped, bermed, lighted, access provided, elevations, and other matters, which plans have been reviewed and approved by the CITY; and WHEREAS, the CITY has adopted and approved Findings of Facts and Conclusions of Law requiring that as a condition of approval CESCO enter into a Partial Amended Development Agreement with the CITY; and PARTIAL AMENDED DEVELOPMENT AGREEMENT - 2 NOV 05 '01 10 47 ~D8 529 0882 PAGE.~~3 WHEREAS, CESCO deems it to be in its best interest to enter into this Agreement and acknowledges that this Agreement is entered into voluntarily. NOW, THEREFORE, IT Z8 HEREBY AGREED A8 FOLLOWS: 1. The above recitals are contractual and binding and are incorporated herein as if set forth in full, and the terms of this Agreement cannot be altered, changed or modified without the express written consent of the CITY. 2. This Amended Development Agreement modifies, amends, and supersedes the Development Agreement entered into between the CITY and the Playground, Inc. dated October 13, 1994, as it relates to Lot 1 of the Playground Subdivision. This Amended Development Agreement does not amend, supersede, or modify in any manner the Development Agreement between the CITY and the Playground, Inc. dated October 13, 1994 as it relates to Lots 2 and 3 of the Playground Subdivision. 3. CESCO, in accordance with its representations before the CITY, shall develop and construct on the Property a John Deere dealership providing sales, service and parts for John Deere products. 4. CESCO will, within thirty (30) days of the date of this Agreement, file with the CITY Engineer a complete set of Improvement Plans showing all streets, entry drives entering the Property from a public right-of-way, utilities, a pressurized irrigation system for all landscaped areas, fire hydrants, extension of a temporary sewer line to the building to be located on the Property, extension of a water line to the furthest point PARTIAL AMENDED DEVELOPMENT AGREEMENT - 3 NOV 05 '01 10 47 z08 529 088 PFIGE.Oa from entry into the Property, landscaping, drainage, signage, barricades, and other such improvements contemplated within the development. The Improvement Plans shall meet the approval of the City Engineer in accordance with this Agreement, the Findings of Fact and Conclusions of Law approving CESCO'S conditional use permit application, and the CITY's Ordinances in effect at the time. Said Improvement Plans shall be and are incorporated herein and made a part hereof by reference. 5. CESCO will, at its own expense, construct and install all sanitary sewers, storm drains, utilities, pumping stations, water mains and appurtenances, fire hydrants, curbs and gutters, sidewalks, a pressurized irrigation system for all landscaped areas, electrical transmission lines, natural gas lines, telephone lines, cross drains, streets, street surfacing, street signs, and barricades as well as any and all other improvements shown on the Improvement Plans as reviewed and eventually approved by the CITY. Provided, however, nothing in this Agreement shall affect in any manner the use of funds already deposited with the Ada County Highway District by CESCO or any other party for the purpose of constructing curbs, gutters, and sidewalks for the Property. 6. CESCO will construct and install all such improvements in accordance with the approved Improvement Plans, and the CITY Standard Engineering Drawings and Standard Engineering Specifications current and in effect at the time the construction of said improvements is accomplished, or as otherwise agreed in writing between CESCO and the CITY. PARTIAL AMENDED DEVELOPMENT AGREEMENT - 4 NOV 85 '0t t0=47 2a8 529 0882 PAGE.DS 7. CESCO will provide the CITY Engineer with at least fifteen (15) days advance written notification of when and what portion, or portions, of said improvements it intends to complete and the time schedule therefor; and agrees to make such modifications and/or construct any temporary facilities necessitated by such phased construction work as shall be required and approved by the CITY Engineer. 8. CESCO will have "corrected" original drawings of the Improvement Plans prepared by a Registered Professional Engineer and will provide the CITY with said Plans or a duplicate mylar copy of said Plans. The Improvement Plans of the proposed improvements shall be "corrected" to show the actual constructed location (both horizontally and vertically) of the various water and sewer lines, all utility lines, and pressuri2ed irrigation lines and their individual building service lines, sidewalk, curb and gutter alignment and grades, etc. The corrected Improvement Plans shall include a "Certification" thereon, signed by the Registered Professional Engineer in charge of the work, that said Plans of the various improvements are true and correct. 9. CESCO shall, immediately upon the completion of any such constructed portion, portions, or the entirety of said development, notify the CITY Engineer and request his inspection and written acceptance of such completed improvements or portion thereof. 10. CESCO agrees, upon a Finding by the City Council, duly entered in the official minutes of the proceedings of the City Council, that a portion, or portions, or the entirety of said PARTIAL AMENDED DEVELOPMENT AGREEMENT - 5 NOV 05 '01 104© 2E~0 529 ©Ofl~ PAGE.06 ,. improvements, or the improvements or requirements contained in Exhibit A, need to be completed in the interest of the health, welfare and/or safety of the inhabitants of the CITY, CESCO will, within a reasonable time as determined by the CITY, construct said needed improvements, or, if CESCO does not so construct within a reasonable time after written notification of such Council action, and the CITY thereafter determines to construct, and does construct such improvement, or improvements, then CESCO will pay to the CITY the actual costs paid or incurred by the CZTY for such improvements so constructed by the CZTY, plus interest thereon at an annual interest rate equal to the prime interest rate of First Security Bank of Idaho plus five percent (5$) until paid, said payment to be made in such manner and under such terms as the CITY shall order after conference with CESCO. Provided, however, the City Council shall not make the Finding except at a regular or special meeting of the City Council, duly held, and unless CESCO has been notified in writing of the time and place of such meeting at least three (3) days prior thereto and has been given an opportunity to be present in person or by counsel, and to be heard on the merits of the proposed Finding. 11. CESCO agrees that upon its having received written notification from the City Engineer, that any of the requirements herein specified have not been complied with, that the CITY shall have the right to withhold the issuance of any Certificates of Occupancy within CESCO's land, or condition issuance of the Certificate of Occupancy upon complete performance of the requirements herein specified, or shall have the right to PARTIAL AMENDED DEVELOPMENT' AGREEMENT - 6 Nn~ es ~ei ia:ae ~e~ 5~9 0ee~ PAr~_~~ s withhold the providing of culinary water service or terminate such culinary water service to any part, parcel, or portion of such land until such time as all requirements specified in this Agreement have been complied with; provided, however, that CESCO shall have the right to appear before the City Council at any regular meeting after any Certificate of Occupancy or any water service shall have been withheld, conditioned or terminated, for reasons set forth in this paragraph, and shall have the right to be heard as to why such Certificate of Occupancy should be issued or water service allowed. The Council shall then decide whether said Certificate of Occupancy shall be issued or water service to said Property allowed, and its decision shall be final, except that the rights of the parties are preserved at law and equity, including, but not limited to, the right of appeal to a court of competent jurisdiction. 12. CESCO agrees that no Certificates of occupancy will be issued until all improvements as listed on Exhibit "A" are completed, unless the CITY and CESCO have entered into an addendum to this Agreement stating when the improvements will be completed. Provided, however, CESCO shall not be required to construct the Five Mile_Trunk Sewer Extension prior to issuance of a Certificate of Occupancy. 13. CESCO agrees, in recognition of the unique and peculiar circumstances relative to this development, to perform the special conditions set forth in Exhibit "A" attached hereto and by this reference made a part hereof; and agrees to construct a perimeter fence around construction areas to contain debris prior PARTIAL AMENDED DEVELOPMENT AGREEMENT - 7 NOV 85 '81 10=48 2aB 529 088 PAGE.08 to any construction, except where roadways and streets for access are located and except where the CITY has agreed in writing that such fencing is not necessary. 14. CESCO agrees that any notice required by this Agreement shall be deemed delivered if and when personally delivered or deposited in the United States mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY OF MERIDIAN: City Engineer City of Meridian 33 East Idaho Meridian, ID 83642 with copy to: Wayne G. Crookston, Jr. Ambrose, Fitzgerald & Crookston P.O. BoX 427 Meridian, ID 83680 CESCO: Mark Canfield CESCO 2049 Commerce Avenue Boise, ID 83705 John McCreedy Jim Jones & Associates 1275 Shoreline Lane Boise, ID 83702 A party shall have the right to change its address by delivering to the other party a written notification in accordance with the requirements of this Section. The parties may at anv time hereafter modify or amend this Agreement by a subsequent written agreement executed by the parties. This Agreement shall not, however, be changed orally, nor shall it be deemed modified in any way by the act of any of the parties hereto. Nothing herein is intended, nor shall it be construed, as obligating a party to agree to any modification to this Agreement. 15. CESCO agrees to pay all recording fees necessary to record this Agreement with the Ada County Recorder's office. PARTIAL AMENDED DEVELOPMENT AGREEMENT - 8 NOU 85 '01 L8~49 2~A 529 GlAB? PRGE,©q 16_ All covenants and conditions set forth herein shall be appurtenant to and run with the land and shall be binding upon CESCO'S heirs, successors and assigns. 17. This Agreement shall become valid and binding only upon its approval by the City Council and execution by the Mayor and City Clerk. 18. CESCO agrees to abide by all ordinances of the City of Meridian and the Property shall be subject to de-annexation if the owner or his assigns, heirs, or successors shall not meet the conditions contained in the Findings of Fact and Conclusions of Law, this Partial Amended Development Agreement, the Ordinances of the City of Meridian, and the Comprehensive Plan of the City of Meridian which was approved and adopted on January 4, 1994. DATED the day, month and year first appearing. CESCO BY: AN IELD, PR •NT OF MERIDIAN BY: `~„ ~iiinir~i~i~i~ ~ttotsr:K'1% D. CORRIE, MAYOR ~ ~ B~: _ r SAL _ WILLIAM G. BERG, JR. C1 y Clerk //~~~''q COUNTY ~~Q~~``\~ PARTIAL AMENDED DEVELOPMENT AGREEMENT - 9 NOV 85 '01 10 49 208 529 0882 PAGE_147 ... STATE OF IDAHO County of Ada ) ss. On the ~ S~ da a Notar Y of April, 1997, before me, the undersigned, y Public in and for the State of appeared MARK CANFIELD, known ~r identified to ho' personally President of Contractors Equipment Su 1 fie tO be corporation whose name is subscribed to theyforegoi ng~i strurnente and acknowled ed the capacity, g tO me that he executed the same in such IN WITNESS WHEREOF, T have hereunto set m my official seal on the day and year in thisycertif cate (fixed above written. first (Seal) Notary Public f I o Residing at My commission 'e ~~ xpires:i STATE OF IDAHO County of Ada ) ss. ) On the ~ day of ~~ ~ 2~ a Notary Public in and for t~.he Stater of e, the undersigned, appeared ROBERT D. CORRIE and WILLIAM G Idaho, personally identified to me to be the Mayor and City Clerk, Bespectiveln or the City of Meridian and the instrument Persons who executed the foregoing and acknowledged to me that said City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year in this certificate, first above written. ~..^^^•• :~~ ~~ ~~; Notary Public or I aho ~ ,~,, ~ : Residing at (Seal) ; ~,,;." ! My commission expires: R ~ • , ... ,- i _ _ ~....~ r! •~r PARTIAL AMENDED DEVELOPMENT AGREEMENT - 10 NOU 85 '01 10 49 EXHIBIT "A" TO THE PARTIAL AMENDED DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MERIDIAN, IDAHO AND CONTRACTORB EQUIPMENT BQPPLY COMPANY, zxc. 1. CESCO agrees to comply with the requirements of the Meridian Police Department, Meridian Fire Department, .Meridian City Engineer, Meridian Planning Director, Ada County Highway District (hereafter "ACRD"), Central District Health Department and the Nampa-Meridian Irrigation District. z. cESCO shall extend and construct water and sewer line extensions to serve the Property and connect to CITY water and sewer lines in the following manner: CESCO shall be allowed to connect to and use the existing sewer line extensions that exist on Lots 2 and 3 of the Playground Subdivision for at least a period of five (5) years from the date of issuance of the building permit. In the event that the Five Mile Trunk Sewer Extension is not constructed by CESCO or another party within said five (5) year period, CESCO shall, individually or in cooperation and agreement with other landowners and/or developers whose land would be served by the Five Mile Trunk Sewer Extension, construct the Five Mile Trunk Sewer Extension to the Property; the distance and size of the Five Mile Trunk Sewer Extension is shown and described on Exhibit B which is attached hereto and incorporated herein as if set forth in full.. CESCO shall be allowed to enter into Late Comers Agreement(s) with the City in accordance with the sewer ordinance in effect at the time for the purpose of recovering the costs of construction of the Five Mile Trunk Sewer Extension paid by CESCO. If the Five Mile EXHIBIT A - p. 1 NOV 85 '81 10 50 200 523 BE3[32 WAGE .: Trunk Sewer Extension is not constructed within five (5) years, CESCO shall be allowed to continue to use the existing sewer service for an additional two (2) year period during which time it shall complete construction of the Five Mile Trunk Sewer Extension to the Property and connect to that extension. Provided, however, CESCO shall connect to the Five Mile Trunk ~- Sewer Extension as soon as it becomes available, but not later than seven (7) years from the date of this Agreement. The Improvement Plans required by this Amended Development Agreement shall not be required to include the Five Mile Trunk Sewer Extension; provided, however, in the event CESCO is required to construct the Five Mile Trunk Sewer Extension to the Property, it shall submit and obtain the CITY'S approval of plans and specifications for that extension. CESCO shall not be responsible for obtaining any easements, permits, or other authorizations from any private or public entity necessary to construct the Five Mile Trunk Sewer Extension. 3. CESCO shall pave the entrance driveway and parking lot within the Property and other areas the City desires to be paved. Provided, however, CESCO shall only be required to gravel the rear portions of the facility where heavy equipment will be parked or transported. 4. CESCO shall construct sidewalks and deposit amounts required by the Ada County Highway District into the Public Rights-of-Way Trust Fund for the construction of curbs and gutters along Overland. Provided, however, nothing in this Agreement shall affect in any manner the use of funds already EXHIBIT A - p. 2 NOV 05 '01 10 50 208 529 0882 PF1GE . 1 3 deposited with the Ada County Highway District by CESCO or any other party for the purpose of constructing curbs, gutters, and sidewalks for the Property. 5• CESCO shall provide landscaping as depicted on approved plans prior to obtaining a Certificate of Occupancy. Failure to provide and maintain landscaping may result in revocation of the Certificate of Occupancy. 6• CESCO shall construct, pave and stripe all parking areas and walkways in accordance with CITY standards, including the requirements of the Americans with Disabilities Act (ADA). 7. CESCO shall design buildings to be accessible to the handicapped in accordance with the ADA. 8• In accordance with paragraphs 11 and 12 of this Agreement, the City shall issue to CESCO a Certificate of Occupancy following the City's completion of a fire inspection, building inspection, and electrical inspection, and CESCO's satisfaction of the require-ments of this Agreement and all other applicable requirements for issuance of a Certificate of Occupancy. EXHIBIT A - p, 3 NOV 85 '01 10 50 208 529 0882 pAGE,14 EXHIBIT B Nov es •et to-5t gee sz9 e8ez PArF.~: