Macha Retail Plaza AZ 09-003ADA COUNTY RECORDER Christopher 0. Rich AMOUNT .00 13
6018E IDAHO 01119!11 02:43 PM
DEPUTY Lisa Batt III I~IIIIIIIIIII~~I~IIIIIIII~IIIII ~II
RECORDED-REQUEST OF
Meridian City 111006191
DEVELOPMENT AGREEMENT
PARTIES: I . City of Meridian
2. Matthew Macha, Owner/Developer
THIS DEVELOPMENT AGREEMENT 4this Agreement), is made and
entered into this~_ day of i~), Ar~~~,~rt,~ ,~889Zb°y and between City of Meridian, a
municipal corporation of the State of Idah' o h eafter called CITY, and, Matthew Macha,
whose address is 11660 W, Cartwright Road, Boise, Idaho 83714, hereinafter called
OWNER/DEVELOPER.
1. RECITALS:
1.1 WHEREAS, Owner/Developer is the sole owner, in Iaw and/or
equity, of certain tract of land in the County of Ada, State of Idaho,
described in Exhibit A for each owner, which is attached hereto and
by this reference incorporated herein as if set forth in full, hereinafter
xeferred to as the Property; and
1.2 WHEREAS, I.C. § 67-651 IA, Idaho Code, provides that cities may,
by ordinance, require or permit as a condition of re-zoning that the
Owner/Developermake awritten commitment concerning the use or
development of the subject Property; and
1.3 WHEREAS, City has exercised its statutory authority by the
enactment of Ordinance 11-SB-3, which authorizes development
agreements upon the annexation and/or re-zoning of land; and
I.4 WHEREAS, Owner/Developerhas submitted an application for re-
zoning of the Property described in Exhibit A, and has requested a
designation of C-C (Community Business District) in the Municipal
Code of the City of Meridian; and
1.5 WHEREAS, Owner/Developer made representations at the public
hearings both before the Meridian Planning & Zoning Commission
and before the Meridian City Council, as to how the subject Properly
will be developed and what improvements will be made; and
1.6 WHEREAS, record of the proceedings for the requested annexation
and zoning designation of the subject Property held before the
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA {AZ 09-003) PAGE I OF I I
Planning & Zoning Commission, and subsequently before the City
Council, include 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 6'h day of October, 2009, has
approved Findings of Fact and Conclusions of Law and Decision and
Order, set forth in Exhibit B, which are attached hereto and by this
reference incorporated herein as if set forth in full, hereinafter
referred to as (the Findings); and
1.8 WHEREAS, the Findings require the Owner/Developer to enter into
a Development Agreement before the City Council takes final action
on annexation and zoning designation; and
I.9 OWNER/DEVELOPERdeems it to be inhis best interest to be able
to enter into this Agreement and acknowledges that this Agreement
was entered into voluntarily and at his urging and requests; and
1.10 WHEREAS, City requires the Owner/Developer to enter into a
development agreement for the purpose of ensuring that the Property
is developed and the subsequent use of the Properly is in accordance
with the terms and conditions of this development agreement, herein
being established as a result of evidence received by the City in the
proceedings for zoning designation from government subdivisions
providing services within the planning jurisdiction and from affected
property owners and to ensure re-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 Zoning and
Development Ordinances codified in Meridian Unified Development
Code, Title 1 I.
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 wards,
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
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003} PAGE 2 OF I I
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 83d42.
3.2 OWNER/DEVELOPER: means and refers to Matthew Macha,
whose address is 11660 W. Cartwright Road, Boise, Idaho 83714, 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 parcels} of Property
located in the County of Ada, City of Meridian as described in
Exhibit A describing the parcels to be re-zoned C-C, (Community
Business District) attached hereto and by this reference incorporated
herein as if set forth at length.
4. USES PERMITTED BY THIS AGREEMENT:
4.1 The uses allowed pursuant to this Agreement are only those uses
allowed in the approved C-C zone under the UDC.
4.2 No change in the uses specified in this Agreement shall be allowed
without modification of this Agreement.
S. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT
PROPERTY:
5.1. Owner/Developer shall develop the Property in accordance with the
following special conditions:
1. Future development of this site shall substantially comply with the conceptual
development plan included in Exhibit A.3 including the interconnected walking.
paths, hardscape plaza areas including water features and an entrance parkway as
proposed.
2. Certificate of Zoning Compliance and Administrative Design Review applications
are required to be submitted to the Planning Department for approval of all fixture
buildings/uses on the site, prior to issuance of building permits.
3. Direct access to E. Franklin Road is limited to the access shown on the
conceptual development plan approved with this application. Cross-access shall
be provided to the property to the west (parcel #S 1117120630) and the property
to the east (parcel #S 1 1 171 10201) for future interconnectivity. Arecorded copy
of the cross-access agreement(s) shall be provided with the Certificate of Zoning
Compliance application.
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003) PAGE 3 OF 11
4. Any existing domestic well system within this project shall be removed from
domestic service per City Ordinance Section 9-1-4 and 9-4-8, within 6 months
after the date of annexation ordinance approval. Contact the City of Meridian
Engineering Department at (208)898-5500 for inspections of disconnection of
services. Wells may be used for non-domestic purposes such as landscape
irrigation if approved by Idaho Department of Water Resources Contact Robert
B. Whitney at (208}334-2190.
5. Any existing septic systems within this project shall be removed from service per
City Ordinance Section 9-1-4 and 9-4-8, within 6 months after the date of
annexation ordinance approval. Contact Central District Health for abandonment
procedures and inspections (208)375-5211.
6. The Owner/Developershali provide a master address kiosk at the entrance of the
development containing a directory map and addresses of the buildings within the
development. Said signage and any additional requirements (i.e. addressing,
maps, number and letter sizes) shall be done through coordination with the
Meridian Fire Department.
7. The uses allowed pursuant to this agreement aze those uses allowed in the C-C
zoning district listed in UDC Table 11-2B-2 except for the following: drinking
establishments, fuel sales facility, minor vehicle repair, vehicle washing facility,
wireless communication facility and vehicle sales and rentals.
8. All future development of the subject property shall comply with City of
Meridian ordinances in effect at the time of development.
9. The Owner/Developershall be responsible for all costs associated with sewer and
water service installation.
10. The Owner/Developer shall construct an 8-foot decorative CMU wall adjacentto
the southern property boundary and terminate on the western property boundary
at the northeast corner of the Yoder Property (Parcel #R3273150110).
11. The Owner/Developer shall construct a 35-foot wide street buffer adjacent to
Franklin Road and a 25-foot landscape buffer adjacent to the west and southern
property boundary in accordance with UDC 11-3B-7 and UDC 11-3B-9.
12. The four buildings along the southern property boundary shall not exceed 35 feet
in height to maintain compatibility with the adjacent residential properties.
6. COMPLIANCE PERIOD/CONSENT TO REZONE: This Agreement and
the commitments contained herein shall be terminated, and the zoning designation reversed,
upon an uncured material default of the Owner/Developer or Owner's/Developer's heirs,
successors, assigns, to comply with Section 5 entitled "Conditions Governing Development
of Subject Property" of this agreement within two years of the date this Agreement is
effective, and after the City has complied with the notice and hearing procedures as outlined
in Idaho Code § 67-6509, or any subsequent amendments or recodifications thereof.
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA {AZ 09-403) PAGE 4 OF 11
7. DEFAULT/CONSENT TO DE-ANNEXATION AND REVERSAL OF
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 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.
7.3 Remedies. In the event of default by Owner/Developer that is not
cured after notice as described in Section 8.2, Owner/Developershail
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
Ciry's compliance with alI applicable laws, ordinances and rciles,
including any applicable provisions of Idaho Code §§ 67-6549 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 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 Owner/Developer 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 Owner/Developer 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
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003) PAGE 5 OF 11
rights or remedies of City nor apply to any subsequent default of any
such or other covenants and conditions,
8. INSPECTION: Ovmer/Developer shall, immediately upon completion of
any portion or the entirety of said development of the Property as required by this Agreement
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 that apply to said Property.
9. DEFAULT:
9.1 In the event Owner/Developer, or Owner's/Developer's heirs,
successors, assigns, or subsequent owners of the Property or any other
person acquiring an interest in the Property, fail to faithfully comply
with all of the terms and conditions included in this Agreement in
connection with the Property, this Agreement may be terminated by
the City upon compliance with the requirements of the Zoning
Ordinance.
4.2 A waiver by City of any default by Owner/Developer of any one or
more of the covenants or conditions hereof shall apply solely to the
breach and breaches waived and shall not bar any other rights or
remedies of City or apply to any subsequent breach of any such or
other covenants and conditions.
10. REQUIREMENT FOR RECORDATION: City shall record either a
memorandum of this Agreement or this Agreement, including all of the Exhibits, at
Owner's/Developer'seost, 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
Properly 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, the City shall execute and record an appropriate instrument of release
of this Agreement.
11. ZONING: City shall, following recordation of the duly approved Agreement,
enact a valid and binding ordinance zoning the Property as specified herein.
I2. REMEDIES: This Agreement shall be enforceable in any court of competent
jurisdiction 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
taw or in equity to secure the specific performance of the covenants, agreements, conditions,
and obligations contained herein.
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA {AZ 09-003) PAGE 6 OF 11
12.1 Subject to Sections 6 and 7 of this Agreement, in the event of an
uncured material breach of this Agreement, the parties agree that City
and Owner/Developer shall have thirty (30) days after delivery of
notice of said breach to correct the same prior to the non-breaching
party's seeking of any remedy provided for herein; provided,
however, that in the case of any such default which cannot with
diligence be cured within such thirty (30}day period, if the defaulting
party shall commence to cure the same within such thirty (30) day
period and thereafter shall prosecute the curing of same with
diligence and continuity, then the time allowed to cure such failure
may be extended for such period as may be reasonably necessary to
complete the curing of the same with diligence and continuity.
12.2 In the event the performance of any covenant to be performed
hereunder by either Owner/Developer 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, the time for such
performance shall be extended by the amount of time of such delay.
13. SURETY OF PERFORMANCE: The City may also require surety bonds,
irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed
under Meridian City Code §11-5-C, to insure that installation of the improvements, which
the Owner/Developer agrees to provide, if required by the City.
14. CERTIFICATE OF OCCUPANCY: The Owner/Developeragreesthat no
Certificates of Occupancy will be issued until all improvements are completed, unless the
City and Owner/Developer 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.
15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developeragree 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 Development Agreement, and
the Ordinances of the City of Meridian.
ld. 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:
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003) PAGE 7 OF I 1
CITY:
City Clerk
City of Meridian
33 E. Broadway Ave.
Meridian, ID 83642
with copy to:
City Attorney
City of Meridian
33 E. Broadway Avenue
Meridian, ID 83642
OWNER/DEVELOPER:
Matthew Mocha
11660 W. Cartwright Road
Boise, ID 83714
16.1 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.
17. 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 he a
separate contract between the parties and shall survive any default, termination or forfeiture
of this Agreement.
18. 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.
19. 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/Developer ofthe 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 ofOwner/Developer, to execute appropriate and recordable evidence of
termination of this Agreement if City, in its sole and reasonable discretion, had determined
that Owner/Developerhos fully performed its obligations under this Agreement.
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-043) PAGE 8 OF 11
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/Developer 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/Developer and City,
other than as are stated 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, to a duly adopted ordinance or resolution of
City.
21.1 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.
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.
DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-OO3) PAGE 9 OF 11
ACKNOWLEDGMENTS
IN WITNESS WHEREOF, the parties have herein executed this agreement
and made it effective as hereinabove provided.
OWNER/DEVELOPER:
,~---
Ma ew Macha
CITY OF MERIDIAN
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Mayor Tamux~. e Weerd
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DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003) PAGE 10 OF 11
STATE OF IDAHO, )
): ss
County of Ada, }
On this ~_ day of ~~a Y ~_, 20l f , before me, the
undersigned, a Notary Public in and for said State, personally appeared Matthew Macha
known or identified to me to the person who signed above 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.
(SEAL}
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Notary Public daho
Residing at: ~ ~ ~, ~.o
My Commission Expires: (-'z.. 5~- ~ („
STATE OF
County of Ada
ss
On this i g day of , 20 !1, before me, a Notary
Public, personally appeared Tammy de Weerd and Jay ee 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.
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DEVELOPMENT AGREEMENT - MACHA RETAIL PLAZA (AZ 09-003) PAGE I 1 OF 1 I
/~~~' 1. ur~r~ , /s1-C.
7575 South Shoshons St. a Boiss, Idaho a 83705 a 208.342-7957 a 208-342-7437 FAX
ANNEXATION DESCRIPTION
A PORTION OF THE NORTHEAST'/a OF THE NORTHF~IST'/a OF SECTION '17,
TOWNSHIP 3 NORTH, RANGE 1 EAST, BOISE MERIDIAN,
ADA COUNTY, IDAHO
A Portion of The Northeast'/4 of the Northeast'/ of Section 17, Township 3 North,
Range 1 east, Boise Meridian, Ada County, Idaho, more particularly described as
follows;
COMMENCING at a found Brass Cap Monument marking the northeast comer of Section
17, from which a found Brass Cap Monument marking the North'/4 Corner #hereof bears
North 89°54'37" West, a distance of 2570.96 feet;
A. Thence along the northerly boundary of Section 17 (also the center line of East
Franklin Road) North 89°54'37" West, a distance of 870.54 feet to its intersection
with the northerly projection of the common boundary of properties described i .
Wan-only Deed Instrument number 100070395 and Warranty Deed Instrume
number 104031045, the TRUE POINT OF BEGINNING;
1. thence along said projection and boundary, South 00°01'58° West, a
distance of 422.72 feet #o a found 5/8 inch rebar with plastic cap stamped
"PLS 7729" marking i#s intersection with the northerly boundary of
Greenhill Estates No. 3; ._
2. thence along said northerly boundary, North 87°41'59" West, a distance ~f
414.98 feet to a found 5/8 inch rebar with illegible cap (replaced with a
plastic cap stamped "FLSI PLS 7612") marking its intersection with the
easterly boundary of Greenhill Estates No. 2;
3. thence along said boundary and the common boundary of properties
described in Warranty Deed Instrument Number 7818788 and Warranty
Deed Instrument number 104031045, North 00°00'56" East, a distance of
406.71 feet to its intersection with the northerly boundary of Section 17
(also the center line of East Franklin Road); _~_~
4. thence along said boundary and center line, South $9°54'37" East, a
distance of 414.78 feet to the TRUE POINT OF BEGINNING.
Containing 171,987 square feet (3.948 acres) more or less.
Refer to the attached sketch titled "ANNEXATION EXHIBIT'B"'.
Any modification of this description shall render it void.
Fox Land Surveys, Inc.
Timothy J. Fox, President, PLS 7612
END OF DESCRIPTION
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