Five Twelve Subdivision MDA 10-995ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 t
BOISE IDAHO 06/23110 03:24 PM
DEPUTY Lisa Batt
RECORDED-REQUEST OF III IIIIIIIIIIIIIIIIIIIIIIIIIII~III III
Meridian Ciry 11 E1Q~7~?0
DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Corporation of the Presiding Bishop of The Church of Jesus Christ of
Latter-day Saints, a Utah Corporation Sole, CPB
THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into
this ~"~ day of ,) w~-~-- , 2010, by and between City of Meridian, a municipal
corporation of the State of Idaho, hereafter called CITY, and Corporation of the Presiding
Bishop of The Church of Jesus Christ of Latter Day Saints, a Utah corporation sole, whose
address is 50 E. North Temple, 12~' Floor, Salt Lake City, Utah, 84111, hereinafter called
CPB.
1. RECITALS:
1.1 WHEREAS, CPB is the sole owner, in law and/or equity, of a 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, the Property is currently subject to that certain Development
Agreement (AZ OS-064) Bear Creek West Subdivision recorded with the
Ada County Recorder on September 21, 2005, as Entry Number
106151232 (the "Bear Creek Development Agreement"); and
1.3 WHEREAS, CPB has obtained a conditional use permit from the City to
construct a religious meetinghouse on the Property; and
1.4 WHEREAS, ,the City agrees that the release of CPB from the terms and
conditions of the Bear Creek Development Agreement, upon CPB's
agreement to enter into this Agreement is mutually beneficial to both
parties; and
1.5 WHEREAS, CPB made representations at the public hearings both before
the Meridian Planning & Zoning Commission and before the Meridian
City Council, as to how the subject Property will be developed and what
improvements will be made; and
DEVELOPMENT AGREEMENT -PAGE 1 OF 8
4849-5973-9398.2
1.6 WHEREAS, the record of the proceedings relating to the use 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 received further testimony and comment; and
1.7 WHEREAS, City Council, the 11th day of February, 2010, the Meridian
City Council approved certain Findings of Fact and Conclusions of Law
and Decision and Order ("Findings"), Meridian Case No. FP 10-002,
which have been incorporated into this Agreement; and
1.8 WHEREAS, the Findings require CPB to enter into this Development
Agreement in exchange for being released from the Bear Creek
Development Agreement encumbering the Property; and
l .9 WHEREAS, CPB 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 requests; and
1.10 WHEREAS, City requires CPB 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.
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 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 CPB: means and refers to Corporation of the Presiding Bishop of The
Church of Jesus Christ of Latter-day Saints, a Utah Corporation Sole,
whose address is 50 E. North Temple, 12th Floor, Salt Lake City, Utah
DEVELOPMENT AGREEMENT -PAGE 2 OF 8
4849-5973-9398.2
84111, the party that owns and is constructing a religious meetinghouse on
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 zoned as R-8 (Medium Density Residential District)
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
in the approved R-8 (Medium Density Residential District) zone under the
UDC. Notwithstanding the foregoing, City agrees that CPB's use of the
Property for construction and operation of a religious meetinghouse
qualifies as an acceptable use in zone R-8 (Medium Density Residential
District) as authorized in the Findings for Case No. CUP 09-013 and DES
09-034.
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. CPB shall develop the Property in accordance with the following special
conditions:
5.1..1 RELEASE OF DEVELOPMENT AGREEMENT: Upon recordation of
the Five Twelve Subdivision (FP-10-002), the Property, as described in Exhibit A,
will no longer be subject to, but will be automatically released from, the
requirements of that certain Development Agreement (AZ OS-064) Bear Creek
West Subdivision recorded with the Ada County Recorder on September 21, 2005,
as Instrument Number 106151232. Moreover, the Property shall be governed
only by the following: (1) this Agreement; (2) the conditions of approval of the
preliminary plat (PP-09-002);.(3) the conditional use permit (CUP-09-013); and
(4) the final plat (FP-10-002).
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. DEFAULT/CONSENT TO DE-ANNEXATION AND REVERSAL OF
DEVELOPMENT AGREEMENT -PAGE 3 OF 8
4849-5973-9398.2
ZONING DESIGNATION:
7.1 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.
7.2 Notice and Cure Period. In the event of CPB's default of this
Agreement, CPB 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 .(1.80) 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. This Agreement shall be enforceable in the Fourth Judicial
District Courtin Ada County by either City or CPB, 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.
7.4 Delay. In the event the performance of any covenant to be performed
hereunder by either CPB 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.
7.5 Waiver. A waiver by City of any default by CPB 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. REQUIREMENT FOR RECORDATION: City shall record either a
memorandum of this Agreement or this Agreement, including all of the Exhibits, at CPB's cost,
and submit proof of such recording to CPB, prior to the third reading of the Meridian Zoning
Ordinance in connection with the annexation and zoning of the Property by the City Council.
9. SURETY OF PERFORMANCE: The City may also require surety bonds,
irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under
DEVELOPMENT AGREEMENT -PAGE 4 OF 8
4849-5973-9398.2
Meridian City Code § 11-5-C, to insure that installation of the improvements, which CPB agrees
to provide, if required by the City.
10. CERTIFICATE OF OCCUPANCY: CPB agrees that no Certificates of
Occupancy will be issued until all improvements are completed, unless the City and CPB 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 the City.
11. ABIDE BY ALL CITY ORDINANCES: That CPB agrees to abide by all
ordinances of the City of Meridian unless otherwise provided by this Agreement.
12. 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. Broadway Ave.
Meridian, ID 83642
CPB:
Corporation of the Presiding Bishop of
The Church of Jesus Christ of Latter-day Saints
Attn.: Real Estate Services Division
50 E. North Temple, 12th
Salt Lake City, Utah 84111
with copy to:
City Attorney
City of Meridian
33 E. Broadway Avenue
Meridian, ID 83642
with copy to:
Kirton & McConkie
Attn.: Robert D. Walker
60 E. South Temple, Suite 1800
Salt Lake City, Utah 84111
12.1 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.
13. 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 maybe 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.
14. 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,
DEVELOPMENT AGREEMENT -PAGE 5 OF 8
4849-5973-9398.2
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.
15. 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 CPB of the Property, 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 CPB, to execute
appropriate and recordable evidence of termination of this Agreement if City, in its sole and
reasonable discretion, determines that CPB has fully performed its obligations under this
Agreement.
l 6. 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.
17. COOPERATION OF THE PARTIES: In the event of any legal or equitable
action or other proceeding instituted by any third parties (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 proceedings.
18. 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.
19. FINAL AGREEMENT: This Agreement sets forth all promises, inducements,
agreements, condition and understandings between CPB 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 CPB and City, other than as are stated herein. All Exhibits
referenced herein are 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.
19.1 No condition governing the uses and/or conditions governing re-zoning of the
subject 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.
DEVELOPMENT AGREEMENT -PAGE 6 OF 8
4849-5973-9398.2
20. 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.
CORPORATION OF THE PRESIDING BISHOP
OF THE CHURCH OF JESUS CHRIST OF
LATTE~Y SAINTS, a Utah corporation sole
~ ~~,~
By: ~ ~`
Name: TE F. v ~D
Its: Authorized Agent
CITY OF MERIDIAN
B
Y~
ATTEST: / ~~ d ~2`-.,~a--
-4~
OF ~E~i®/`/~~~~~'%
Jaycee .Holman, City ~er ~~ Ago ~%
~~~~
,,,, ~ ~ ~o~o,,.
DEVELOPMENT AGREEMENT -PAGE 7 OF 8
4849-5973-9398.2
STATE OF UTAH
:ss
COUNTY OF SALT LAKE )
On this l5 ~ day of ~~ I~ ~ 2010 personally appeared before me
TRRy F. ~~~~ personally known to me to be an Authorized Agent of
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JE5U5 CHRIST
OF LATTER-DAY SAINTS, a Utah corporation sole, who acknowledged before me that he
signed the foregoing instrument as Authorized Agent for the CORPORATION OF THE
PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY
SAINTS, a Utah corporation sole, and that the seal impressed on the within instrument is the
seal of said corporation; and that said instrument is the free and voluntary act of said corporation,
for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute
said instrument on behalf of said corporation and that said corporation executed the same.
WITNESS my hand and official seal.
d~-~`~, GORDON R. JESSEE
i~ ~ a NOTARY PUBLIC - STATE OF UTA
Y,.,~s Commission # 575257
My Comm. Exp. 09/25/2012
State of Utah
STATE OF IDAHO )
ss
County of Ada )
On this 22~ day of ~ w~._ , 2009, before me, a Notary
Publa, ersonally appeared ~~ and Jaycee L. Holman, know or identified to me to
be the ~~r and Clerk, respectively, o t e ity 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 y~a~raz ~~ ~l:~s certificate first above written.
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DEVELOPMENT AGREEMENT -PAGE 8 OF 8
4849-5973-9398.2