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Scentsy MDA 10-010AOA COUNTY RECORDER Christopher 0. Rich AMOUNT .00 54 6018E IDAHO 06/30111 11:� AM DEPUTY Asa Batt III IIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIII RECORDED -REQUEST OF Meridian City 111052691 DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. H.O.T. 1, LLC, Owner/Developer THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into this day of vl v r,p1 , 2011, by and between City of ,Meridian, a municipal corporation of the State of Idaho, hereafter called CITY, and H.O.T. 1, LLC, whose address is 3698 E. Lanark, Meridian, ID 83646, hereinafter called O'UN NER/DEVELOPER. 1. RECITALS: 1.1 WHEREAS, Owner is the sole owner, in law and/or equity, of 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, herein after referred to as the Property; and 1.2 WHEREAS, I.C. § 67-6511 A, Idaho Code, provides that cities may, by ordinance, require or permit as a condition of re -zoning that the Owner/ Developer make a written commitment concerning the use or development of the subject Property; and 1.3 WHEREAS, Developer has submitted an application for a Modification of the Development Agreement dated 2-28-08, instrument # 108022893; and 1.4 WHEREAS, Owner/Developer made representations at the public hearing before the Meridian City Council, as to how the subject Property will be developed and what improvements will be made; and 1.5 WHEREAS, City and Owner/Developer entered into that certain Development Agreement that was approved in 2005 and recorded as Instrument # 106002636. 1.6 WHEREAS, City and Owner/Developer now desire to remove a portion of land referred to as Exhibit "A" from the original Development Agreement, and enter into a new Development Agreement for that portion of land which terms have been approved by the Meridian City Council in accordance with Idaho Code Section 67-6511. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 1 OF 9 1.7 WHEREAS, record of the proceedings for the requested development agreement modification for the subject Property held the City Council, include responses of government subdivisions providing services within the City of Meridian planning jurisdiction, and received further testimony and comment; and 1.8 WHEREAS, City Council, the 4th day of January, 2011, 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 1.9 WHEREAS, the Findings of Fact and Conclusions of Law and Decision and Order requires the Owner/Developer to enter into a development agreement to reflect the change of ownership in the subject property; and 1.10 OWNER/DEVELOPER 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 1.11 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 Property is in accordance with the terms and conditions of this development agreement, herein being established 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 11. 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 2 OF 9 3.2 OWNER/DEVELOPER: means and refers to H.O.T. 1, LLC, 3698 E. Lanark, Meridian, ID 83642, the party that is developing said Property and shall include any subsequent developer(s) of 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 to be zoned C -G (General Commercial 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 under City's Zoning Ordinance codified at Meridian Unified Development Code § 11-2B-2. 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. Owner/Developer shall develop the Property in accordance with the following special conditions: 1. Development of the property shall substantially comply with the conceptual site plan and elevation submitted with the subject application and the concepts outlined below. 2. The following concepts shall be employed in the development of the property: a. General massing of buildings, roundabouts and landscape islands in streets shall be constructed as generally shown on the conceptual site plan prepared by CTA, Inc., dated 11-12-10. b. Pedestrian connections shall be constructed between buildings in the form of pathways distinguished from vehicular driving surfaces through the use of pavers, colored or scored concrete, or bricks; c. Common areas with site amenities (i.e., plazas/courtyards, water features, picnic areas, flower gardens, public art, etc.) are encouraged to be included within the development. d. Exterior building walls should demonstrate the appearance of high quality materials of stone, brick, wood, or other native materials (acceptable materials include tinted or textured masonry block, textured or painted DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 3 OF 9 architectural concrete panels, or stucco or stucco like synthetic materials. Smooth faced concrete block, tilt -up concrete panels, or prefabricated steel panels are acceptable with the addition of paint and/or high quality accent materials. e. The building design shall incorporate at least 2 changes in one or a combination of the following: color, texture and materials; f. Rooflines shall demonstrate 2 or more of the following: overhanging eaves, sloped roofs, two or more roof planes, varying parapet heights, and cornices; g. The primary building entrances shall be clearly defined by the architectural design of the building. h. Buildings will be constructed in the order they are generally listed on the conceptual site plan (A, B, C, etc.) i. Building "A" is an accessory use within the current zoning designation and will be permitted to be constructed prior to other principally permitted structures (B or C) per this agreement. j . The construction of either building B or C will commence within 30 months of completing the previous building. 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/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. 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 ofOwner/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 maybe extended for such period as maybe necessary to complete the curing of the same with diligence and continuity. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 4 OF 9 7.3 Remedies. In the event of default by Owner/Developer that is not cured after notice as described in Section 7.2, Owner/Developer 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 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 rights or remedies of City nor apply to any subsequent default of any such or other covenants and conditions. 8. INSPECTION: Owner/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. REQUIREMENT FOR RECORDATION: City shall record either a memorandum of this Agreement or this Agreement, including all of the Exhibits, at Owner's and/or Developer's cost, 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 Property 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 5 OF 9 10. ZONING: The current zoning of C -C (General Commercial) shall remain. 11. 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 law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. 11.1 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 and/or 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. 11.2 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. 12. 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. 13. CERTIFICATE OF OCCUPANCY: The Owner/Developer agree that no Certificates of Occupancy will be issued in any phase in which the improvements have not been installed, completed, and accepted by the City or otherwise entered into an approved letter of credit for unfinished improvements. 14. ABIDE BY ALL CITY ORDINANCES: 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 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. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 6 OF 9 15. 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 3 3 E. Broadway Ave. with copy to: City Attorney City of Meridian 33 E. Broadway Avenue Meridian, ID 83 642 OWNER/DEVELOPER: H.O.T. 1, LLC 3 698 E. Lanark Meridian, ID 83642 Phillip E. Broadbent S centsy, Inc. 3698 E. Lanark Meridian, ID 83642 15.1 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. 16. 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. 17. 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. 18. 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 and/or Developer 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 Owner and/or Developer, to execute appropriate and recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determined that Owner/Developer has fully performed its obligations under this Agreement. DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 7 OF 9 19. 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. 20. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, condition and understandings between Owner and/or 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 and/or 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. 20.1 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. 21. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date of 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. OWNER/DEVELOPER: H.O.T. 1, LLC By: _ A-)� CITY OF MERIDIAN R rY. or de Weerd ATTEST: F 4� um f4 ayceeolman, City Clerk.F DEVELOPMENT AGREEMENT T 0),�` PAGE 8 OF 9 l loif�III1111 \ STATE OF IDAHO, ) ): ss County of Ada, ) On thi sR day of tC , 2011, before me, the undersigned, a Notary Public in and for said State p ersonall Y pp a eared r/! l e �,, known or !'x identified to me to be the fit a of H.O.T. 1, LLC, and acknowledged to me that they executed the same on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. IN (SEAL Of STATE OF IDAHO ) ss County of Ada ) Notary Pub];e'for'113�ho ' Residing at: My CommissionExpires: On this QS day of _3& , 2011, before me, a Notary Public, personally appeared Tammy de Weerd and Jaycee 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. No Pub is Ida" Residing at:��d I a,rx l p Commission expirest.kil 4- DEVELOPMENT AGREEMENT - SCENTSY (MDA 10-010) PAGE 9 OF 9 DESCRIPTION FOR PINEBRIDGE ' PROPERTY LINE ADJUSTMENT R.O.S. NO. 8793 PARCEL 2 JUNE 1, 2010 A PARCEL OF LAND SLING A, PORTION OF THE SE Y OF SECTION 8, TOWNSHIP 3 NORTH, RANGE 1 EAST OF THE BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE SE % (EAST CORNER) OF SECTION 8, T. 3 N., R. I E., B.M., ADA COUNTY, IDAHO, THENCE S 01 °02'07" W 83.9r7 FEET ALONG THE EAST LINE OF THE SE �r OF SAID SECTION 8 TO A POINT; THENCE N 88057'53" W 70.00 FEET TO THE INTERSECTION OF THE SOUTH RIGHT OF WAY OF PINE AVENUE AND THE WEST RIGHT OF WAY OF EAGLE ROAD, THE REAL POINT OF BEGINNING OF THIS DESCRIPTION; ALONG THE WEST RIGHT OF WAY OF EAGLE ROAD THE FOLLOWING: THENCE S 01°02'07" W 738.04 FEES" TO A POINT; THENCE S 71 °l0'34" W 74.43 FEET TO A POINT; THENCE S 01 °02'07" X1150.00 FEET TO A POINT; THENCE S 59°31'00" E 13.77 FEET TO A POINT; LEAVING THE WEST RIGHT OF WAY OF EAGLE ROAD: THENCE N 88°55'23' W 1795,14 FEET TO A POINT ON THE EAST RIGHT OF WAY OF PROPOSED HICKORY AVENUE EXTENDED; ALONG THE EAST RIGHT OF WAY OF PROPOSED HICKORY AVENUE EXTENDED THE FOLLOWING: THENCE N 00403'42" E 50.01 FEET TO A POINT; THENCE N 44°25'50" W 28.53 FEET TO A POINT; 35 ACRES PARCEL THENCE N 00°03'42" E 712.37 FEET TO A POINT; THENCE N 44°51'22"* E 28.39 FEET TO A POINT ON THE SOUTH RIGHT OF WAY OF PINE AVENUE; ALONG THE SOUTH RIGHT OF WAY OF PINE AVENUE THE FOLLOWING: THENCE N 89°39'83'= E 1243.25 FEET TO A POINT; THENCE S 87°16'31" E 209.78 FEET TO A POINT; THENCE N 89°3903" E 392.91 FEET TO A POINT; THENCE S 45°16'30" E 28.25 FEET TO THE REAL POINT OF BEGINNING OF THIS DESCRIPTION, THIS PARCEL CONTAINING 35.344 ACRES, MORE OR LESS. THIS PARCEL. IS SUBJECT TO ALL EXISTING EASEMENTS AND RIGHTS OF WAY. MICHAEL E. MARKS, PLS NO. 4998 jil 35 ACRES PARCEL CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER N DIANta- IDAHO In the Matter of the Request for a Modification to the Development Agreement for Pinebridge to Exclude the Subject Property and Require a New Development Agreement for the Scentsy Campus; and Variance to UDC 11-3H4B2 to Allow One (1) Right- In/Right-Out Access to/from the Site via Eagle Road Midway between Pine Avenue & Commercial Street for the Property Located on the Southwest Corner of Pine Avenue and N. Eagle Road, by Sam Johnson, HOT 1, LLC. Case No(s). MDA -10-010; VAR -10-002 For the City Council Hearing Date of: December 21, 2010 (Findings on January 4, 2011) A. Findings of Fact 1. Hearing Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 2. Process Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 3. Application and Property Facts (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) 4. Required Findings per the Unified Development Code (see attached Staff Report for the hearing date of December 21, 2010, incorporated by reference) B. Conclusions of Law 1. The City of Meridian shall exercise the powers conferred upon it by the "Local Land Use Planning Act of 1975," codified at Chapter 65, Title 67, Idaho Code (I.C. §67-6503). 2. The Meridian City Council takes judicial notice of its Unified Development Code codified at Title 11 Meridian City Code, and all current zoning maps thereof. The City of Meridian has, by ordinance, established the Impact Area and the Amended Comprehensive Plan of the City of Meridian, which was adopted August 6, 2002, Resolution No. 02-382 and Maps. 3. The conditions shall be reviewable by the City Council pursuant to Meridian City Code § 11 -SA. CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 4. Due consideration has been given to the comment(s) received from the governmental subdivisions providing services in the City of Meridian planning jurisdiction. 5. It is found public facilities and services required by the proposed development will not impose expense upon the public if the attached conditions of approval are imposed. 6. That the City has granted an order of approval in accordance with this Decision, which shall be signed by the Mayor and City Clerk and then a copy served by the Clerk upon the applicant, the Planning Department, the Public Works Department and any affected party requesting notice. 7. That this approval is subject to the Conditions of Approval all in the attached Staff Report for the hearing date of December 21, 2010, incorporated by reference. The conditions are concluded to be reasonable and the applicant shall meet such requirements as a condition of approval of the application. C. Decision and Order Pursuant to the City Council's authority as provided in Meridian City Code § 11-5A and based upon the above and foregoing Findings of Fact which are herein adopted, it is hereby ordered that: 1. The applicant's request for a development agreement modification to exclude the subject property from the development agreement for Pinebridge and require a new development agreement for the Scentsy Campus, is hereby approved per the provisions in the attached Staff Report for the hearing date of December 21, 2010, attached as Exhibit A. 2. The applicant's request for a variance is hereby approved per the Staff Report for the hearing date of December 21, 2010, attached as Exhibit A. D. Notice of Final Action and Right to Regulatory Takings Analysis 1. The Applicant is hereby notified that pursuant to Idaho Code 67-8003, the Owner may request a regulatory taking analysis. Such request must be in writing, and must be filed with the City Clerk not more than twenty-eight (28) days after the final decision concerning the matter at issue. A request for a regulatory takings analysis will toll the time period within which a Petition for Judicial Review may be filed. 2. Please take notice that this is a final action of the governing body of the City of Meridian, pursuant to Idaho Code § 67-6521 an affected person being a person who has an interest in real property which may be adversely affected by the issuance or denial of the conditional use permit approval may within twenty-eight (28) days after the date of this decision and order seek a judicial review as provided by Chapter 52, Title 67, Idaho Code. E. Attached: Staff Report for the hearing date! of December 21, 2010 CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 -2- By action of the City Council at its regular meeting held on the 7r vday of 2011. COUNCIL MEMBER DAVID ZAREMBA VOTED COUNCIL MEMBER BRAD HOAGLUN VOTED COUNCIL MEMBER CHARLIE ROUNTREE VOTED ~~� COUNCIL MEMBER KEITH BIRD VOTED _y,9,!�!— MAYOR TAMMY de WEERD VOTED (TIE BREAKER) Mayor Ta de Weerd , Attest: rp ; I Jaycee 'r TO an, City Clerk �f t> Copy served upon Applicant, The Planni/ >qQ"r*nt, ; ? 'blic Works De artment and Cit ��f�%%rr;�;t00� p y Attorney. By: Dated: - Jc— • Zoo dftyt1er6-0fhre----� CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 -3- EXHIBIT A STAFF REPORT HEARING DATE: December 21, 2010 TO: Mayor and City CouncilC E IDIAN*.r-.� Sonya Watters, Associate City Planner I D A H O (208) 884-5533 SUBJECT: MDA -10-010; VAR -10-002 — Scentsy Campus I. SUMMARY DESCRIPTION OF REQUEST The Applicant, Sam Johnson, Hot 1, LLC, requests a modification to the development agreement for Pinebridge approved with the previous rezone of this property. Since the subject property is no longer part of the Pinebridge development, a new development agreement is proposed that will only apply to the subject property. Concurrently, a variance is requested to Unified Development Code (UDC) 11 -3H -4B2 which requires access to be provided from a street other than the state highway when a change or increase in intensity of use is proposed. The applicant proposes one (1) right-in/right-out access to/from the site via SH 55/Eagle Road. (See Section Ulll for more information) H. SUMMARY RECOMMENDATION Staff recommends approval of the proposed variance in accord with the findings in Exhibit B and modification to the development agreement as detailed in Exhibits A.3 and A.4. IPAY11 Olpf 1 1 1 I I Will i1' 1 1 I live] 1 1 1 1 1 R:,l 1 11 II I I' it1 1 i 174I111 i IT, 14)1 1 1 1 1 1 �► 1 I ' 1 I 1: 1' 1 I II 11 1 1 1 11 l IM I/ l s I! 1 1 ! 1 � I 1 ►. 1 i I 1 it i 1 ; 1 � I/ � 1 1 1 ; 1 1 �_ 11 1 I1 i t 1 11 �y 1 1 1; I 111 11 1 1 1 1TT r III. PROPOSED MOTION (to be considered after the public hearing Approval After considering all Staff, Applicant, and public testimony, I move to approve File Numbers MDA - 10 -0 10 DA- 10-010 and VAR -10-002, as presented in Staff Report for the hearing date of December 21, 2010, with the following changes: (insert any changes here). I further move to direct Legal Department staff to prepare a Development Agreement for this site that reflects the changes noted in Exhibit A.2. Scentsy Campus MDA -10-010; VAR 10-002 Page 1 EXHIBIT A Denial After considering all Staff, Applicant, and public testimony, I move to deny File Numbers MDA -10- 010 and VAR -10-002, as presented during the hearing on December 21, 2010. (You should state why you are denying the request.) Continuance I move to continue File Numbers MDA -10-010 and VAR -10-002 to the hearing date of (insert continued hearing date here) for the following reason(s): (you should state specific reason(s) for continuance) IV. APPLICATION AND PROPERTY FACTS A. Site Address/Location: The subject property is located on the southwest corner of Pine Avenue and N. Eagle Road, in the southwest 1/ of Section 8, Township 3 North, Range 1 East. Parcel #S 110 8417320 B. Owner: Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 C. Applicant: Sam Johnson, Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 D. Representative: Sam Johnson, Hot 1, LLC 3698 E. Lanark Meridian, ID 83642 E. Applicant's Statement/Justification: Please see applicant's narrative for this information. V. PROCESS FACTS A. The subject application is a request for a development agreement modification and a variance. Per Meridian City Code, a public hearing is required before the City Council on these matters. B. Newspaper notifications published on: November 29, and December 13, 2010 C. Radius notices mailed to properties within 300 feet on: November 29, 2010 D. Applicant posted notice on site by: December 9, 2010 VI, LAND USE A. Existing Land Use(s): This site consists of vacant undeveloped land. B. Character of Surrounding Area and Adjacent Land Use and Zoning: 1. North: Blue Cross Corporate Center (office), zoned I -L 2. East: Jacksons convenience store & fuel facility, zoned C -G; and equipment rental store, zoned, I -L Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A 3. South: Scentsy warehouse/office/manufacturing, zoned I -L 4. West: Vacant land, zoned C -G C. History of Previous Actions: ➢ This property was rezoned (RZ-07-010) from I -L to C -G in 2007 as part of the Pinebridge development. A development agreement was required with the rezone of the property, recorded as Instrument No. 108022893. A preliminary plat (PP -07-008) was approved that incorporated the subject property. A variance (VAR -07-007) for access to SH 55/Eagle Road via Commercial Street, a private street, was also approved. A variance for direct access to SH 55/Eagle Road midway between Pine Avenue and Commercial Street was also requested but later withdrawn. ➢ A Corporation Warranty Deed (Inst. #0107000563) was recorded in 1988 which granted an approach to SH 55/Eagle Road. ➢ In 2008, the Idaho Transportation Department (ITD) approved a variance to upgrade the existing access to a right-in/right-out commercial approach under Encroachment Permit 03- 08-319. The access was required to be centered between Pine Avenue and Commercial Street and have a right turn deceleration lane southbound on Eagle Road. ➢ On November 16, 2010, the ITD encroachment permit was transferred to the current owner of the property (see Exhibit A.7, permit 0-11-135). The permit states the access is approved with the distance from the nearest approach 440 feet from Pine Avenue and 432 feet from Commercial Street. D. Utilities: 1. Public Works: a. Location of sewer: N Hickory Ave. b. Location of water: E Pine Ave, Commercial St c. Issues or concerns: No concerns E. Physical Features: 1. Canals/Ditches Irrigation: NA 2. ' Hazards: Staff is not aware of any hazards that exist on this property. , VII. AGENCY COMMENTS MEETING No comments were received by the Planning Department from other City departments for the subject application. Please see the public record for the MDA and VAR file for any written comments that may have been submitted by other agencies. VIII. STAFF ANALYSIS A. Development Agreement Modification (MDA): when the subject property was rezoned in 2007, it was part of the proposed Pinebridge development and was included in the development agreement (DA) for that project. Since that time, the property has been acquired by the applicant and is proposed to develop as a distribution center and corporate campus for Scentsy. Thus, the new owner/applicant proposes to separate this property from the existing DA and record a new DA solely for the subject property. The new DA proposed by the applicant includes a conceptual site development plan and Scentsy Campus MDA -10-010; VAR 10-002 Page 3 EXHIBIT A conceptual building elevations for the Scentsy campus which are included in Exhibits A.5 and A.6. The applicant has submitted a modified version of the existing DA, included in Exhibit A.3, which reflects the new ownership of the property, proposed development plan, and removal of parts that are no longer applicable. Condition #5.1.4 (d, e, f, and g) of the proposed DA includes specific design standards that are included in UDC 11-3A-19. Since the applicant is required to comply with these UDC, standards, Staff is of the opinion that it's not necessary to specify them in the DA. Therefore, Staff recommends these provisions be stricken from the DA and replaced with a requirement for the applicant to comply with the design standards listed in UDC 11-3A-19 and the design guidelines contained in the City of Meridian Design Manual. The applicant also requests approval through the DA to construct the distribution center (Building A), which is' classified in UDC Table 11-2B-2 as an accessory use in the C -G district, prior to construction of the office tower (Building B) and auditorium & fitness center (Building C), both classified as principal permitted uses in the C -G district (see Exhibit A.4). The applicant proposes to commence construction of either Building B or C within 30 months of completing Building -A. Because a conceptual development plan has been submitted showing how the property will develop in the future with principal permitted uses in the C -G district, staff is amenable to the applicant `s proposal to construct the distribution center first followed by the other two structures in phases. In addition, the applicant is constructing a warehouse and has related facilities located immediately south across Commercial Avenue that are integrally related to the distribution facility. Please see Exhibit A.4 for Staff's recommended changes to the DA proposed by the applicant as discussed above. B. Variance (VAR): A variance to UDC 11 -3H -4B.2 is requested, which requires the owner to develop or otherwise acquire access to a street other than the state highway when a change or increase in intensity of use is proposed. The applicant proposes one (1) right-in/right-out (RIRO) access to/from the site via Eagle Road midway between Pine Avenue and Commercial Street with a right turn deceleration lane southbound on Eagle Road as shown in Exhibit A.8, consistent with ITD's approval (see Exhibit A.7). In 2007, a variance was requested for access to SH 55/Eagle Road between Commercial Street and Pine Avenue as currently proposed. The City Council heard the request but felt approving a variance for access at that time, prior to approval by ITD, was premature. In the minutes from that meeting, is was stated that Council's previous position had been to not allow access on state highways until the applicant had worked out any issues with the transportation department and received their approval. At such time, the applicant would request a variance from Council and generally get a favorable response. Based on this discussion, the applicant chose to withdraw the application and pursue a variance through ITD before requesting approval of a variance from the City. Subsequently, ITD has approved the variance for access and the applicant is now requesting approval of the variance from the City as recommended by Council. A traffic analysis, dated November 17, 2010, prepared by Stanley Consultants, was submitted with this application which considers and evaluates the intersection of Eagle & Pine and the traffic impacts with a RIRO access on Eagle between Pine & Commercial as proposed. In summary, the traffic analysis surmises the RIRO would reduce traffic at the intersection, lower the average delay, and reduce the right -turn traffic approximately 12% during the PM peak hour resulting in queue length reduction and an overall improvement in site circulation. Additionally, Scentsy Campus MDA -10-010; VAR -10-002 Page 4 EXHIBIT A the RIRO access is projected to reduce the number of conflicts and- likelihood for potential crashes at the intersection due to reducing traffic at the intersection. In accord with UDC 11 -5B -4E, in order to grant a variance, the Council has to make three findings as follows: 1) The variance shall not grant a right or special privilege that is not otherwise allowed in the district; 2) The variance relieves an undue hardship because of characteristics of the site; and 3) The variance shall not be detrimental to the public health, safety, and welfare. Please see Exhibit B for Staff's response to these findings. IX. EXHIBITS A. Maps/Other 1. Vicinity Map 2. Map showing the Subject Property within the Previous Pinebridge Development 3. Applicant's Proposed Changes to Development Agreement 4. Staff s Recommended Changes to Development Agreement Proposed by Applicant 5. Proposed Conceptual Site Plan 6. Proposed Conceptual Building Elevations 7. Idaho Transportation Department Encroachment Permit & Approval Letter 8. Proposed Access/Lane Configuration B. Required Findings from the Unified Development Code Scentsy Campus MDA -10-010; VAR -10-002 Page 5 ty IWMi ' .•+.H..,�IIiG �+ � iRrwv�niirw.ifw �f i ': 7MM �i1111�IMf N ova 111tiM i�+1MM ; . .. lkw r FA McM1�AtirMilR. p MMMNK W[- I}IWAV!/R MwMMI4wifMt M MMa1M11mum _ -- IAFMMIIMmew - - - �IIMMF iMi WMWF � • i iIMMIt IMM; t iYM1MYMMR i i i ." �� �larvMMt.±r� � " JMMMAR MlIIMIMM MMrMM• 1! iL MMeMMAMgMCl.M1AMI1t 7L 'm tEf1MMq�lrili�-. �fl�f.t�lf '1/'+iMw11�i"1M�11� ** MMMI►f if lMF T MMii ,A ,M4 owl 101i"i 1FlYMltill M t y u iQ i - rbt AMA P I{��, #9 �. �.�'��' ....rnilrlii�►w �.,� �„ 4°' w'°"W.'t f � "�4 �H.>m,»,.w,P'r.:4*ae'°gy"u� y, 7I SOOak.*— AI� ..i�=,�^iY. ►. 9s.-"'�:.�. i re,+' ,r Y _+,<a7& `�M p L � maw I' 1 W4 ans . �M �. oil Mo w , e .rB ,..7F• .. "� w ---- ., -- -4 . °"° _ - .�.r..b..wa'F.,.,, i ;Il,,f�"�K f .t °""""I"1°"" �.AMb _'.bY*.,a.�.,"•"""'" � .gw,.iC,, �wFw�.E".edo„�.; �bl. "`�:`"�„J - go-ASigiM117MiIMN�'r✓! � '” •e' s e i >rz t iI 4 w ig n .v ngww� +: t-»}ner�VA wc..aa�Y � +w.t.,w ,..,nx�.»• � 4 . t amu, +moi +rAaw . ft , 4. � e�� F ti•' '6 ,, �'ke *,'moi» � � �ww� M"' is 1A�'S.. .e�komaaay'rd.°_�'� 4-� �� L �t 0Y, .:-.;•.••,.w..,:...,d # ��� �' � i � �UA�MF,'. ^k6gtlANwe !W Y' »'ql�•. `�Y.w. rn , n✓P, ,G 4 � . t {ey rti h +bA a /c n 9 Mnt Mw. w w'MJ' �, i MY 4 S r lie m . _ ....a a (a 0 EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMZNT AGREENUENT PARTIES: 1. City of Meridian I 2. 1-4-O.T. 1. LLCM owner/Developer orraed: DW houtwaft THIS DEVELOPMENT AGREEMENT (this Ag me ment), is made and entered into this day of , 2QLO b and betweea Ci of Meri ' a DaMS& 09 municipal corporation of the State of Idaho, hereafter called CrM and E.O.T. 1, LLC, .— aela8e& DMB whose address is 3628 E. Lan Meri i Idaho 93 42 hereinafter called D.khl* 2" S. Bacbwa4 Sube yea, 11 OWNER/DEVELOPER. Boise oaNwd: 8370 L RECITALS: 1.1 wBDEREAS, Owner/Developer is the sole owner, in law equity, of that 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, herein after referred to as the Property; and f 1.2 WHEREAS, Idaho Cade 67-b51 lA- avides that cities num b D.l.ftd: LC.ordinance, require or permit as a condition of re -zoning that the Delded: Usha Cale, Owner/Developer make a written 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 11-5B-3, which authorizes development agreements upon the annexation and/or re -zoning of land; and 1.4 'WHEREAS Qmme—Q?evelqS has submitted an lic ation for �eMrad: Modification to Development Agreement dated 2-29-08 instrura,� #108022191- andnom: ema � af� Promw's m & ed bw cnquated s &dgsWm aEC.c (ate 1.5 WHEREAS, Owner/Developer made representations at the public Nw*4W cane oftacky hearing,before the Meridian City Counc' as to how the sub 'ect Property will be developed and what improvements will be made; and Di1e' oelf.de boat bets ase Mariann 1.6 WHEREAS, record of the proceedings for the requested & de elo e t eement modifi tion for a sub'ect Pro held Delabee: ► ad &WSWioo of DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 1 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A before the City Council, include responses of governmentdo -----c a Zwis subdivisions providing services within the City ofMeridian planning am, sua jurisdiction, and received further testimony and comment; and 1.7 WEEREAS, City Council, the day o has approved certain oekeok r& Findings of Fact and Conclusions of Law and Decision and Order, set oNd: xovrmbrr forth in Exhibit B, which are attached hereto and by this reference oelMed:20M incorporated herein as if set forth in full, hereinafler referred to as (the Findings); and 1.8 WHEREAS, the Findings require the Owner/Developer to modi the existing development We !Ca_ - to reflect the chance in mn-cuh• mid #wed: moan i do a avdopamw qpwmw 6. ChyC.ounca W= 1.9 AS OwMr/Devel er eems it to be in 'ts best interest to fnd action on aunmcaion and d"4pvdoa be able to enter into this Agreement and acknowledges that this ow*Wt Foft Wd Agreement was entered into voluntarily and atits urging and requests' oe owe =WZVsLMs 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 Property is in accordance with the terms and conditions of this development agreement, herein being established ,fin accordance with the amended ComprehexLsive ,,..— o.IGad: as a am* of ai&ws received '�'"by Plan of the City of Meridian adopted August 6, 2002, Resolution No. dw Mr In t o paew&W for IoW 02-382, and the Zoning and Development Ordinances codified in ,�;�;� e= SOWN 4aooeat U"Visiam POVWM OWYMS W ew plumm Meridian Unified Development Code Title 11. �m "011 ' , minus wA to an o�waers acre to mare r��ooiag 664Ndmk 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. DEFMffIONS: For all purposes of this Agreement the following words, terms, and phrases herein contained in this section shall be defined and intE:rpreted 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 (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 2 OF 10 S centsy Campus MDA -10-010; VAR -10-002 Page 3 EXHIBIT A subdivision of the state of Idaho, organized and existing by virtue of law of the State of Idaho, whose address is 33 East Idaho Avenue, Meridian, Idaho 83642. 3.2 OWNER/DEVELOPER: means and refers to ILO.T. L LLC W8606 nive kw.etm." whose address is 3689 E. LgRgLkMeridi Ld& 83642 the o�.t.Maa iso S. stn 120, that owns and is developing said Property and shall include any $0"0`° subsequent owner(s) of 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 parce currently►7� C -G (General : a Com►mercud), attached hereto and by this reference incorporated a be mmmd coed 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 under City's Zoning Ordinance codified at Meridian Unified Development Code § 11-213-2 which are herein specified as follows: Construedon and development of. +/-_acres In Me p±Wased C -G o•k•* Q 6"w A* aW21 zone pertinent to the fires. era..lyo DeNlrtl: AT��-ers.��7�o7stA 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. Owner/Developer shall develop the Property in accordance with the following special conditions: 1. Development of the property shall substantially comply with the conceptual site plan and elevation submitted with the subject application and the concepts outlined below. 4. The following concepts shall be employed in the development of the property: DEVELOPMENT AG (AZ 07-006 & RZ 07-010) PMEBRIDGE SUBDI`iISION PAGE 3 OF 10 Scentsy Campus MDA -10-010; VAR 10-002 ott8ace 2- Pine street dwN be act n&d to Lama Own pear to ieauso m of ow Caida.te of occupmcy for WNW dat.rwld nqv ernm to rhe wmm. WON* I t I. Wbm dwe are aoe t udWn oa- wbere the amawft public me& .oro &. the devato w shall be ak ed up to 10MW01q pyo amts prior m &W PW nm*dm Mw Pkadva Dk octcor ad the Dwdopmat SaMm MameW of the City of Mari" mw maddw W w* WMA oowPny pew (not to =end 13) ifthr ad®ioistr+mion ofdw paevkxw 9 .earns to be eMd t and in the Cdr's bat ir*rva1 Page 4 EXHIBIT A a. General massing of buildings, roundabouts and landscape islands i4e::l bed: ," pW and streets shall be constructed as generally shown on the on teal sitgay Cmadmwe plan prepared by TA Inc. dated 1-12-10. aes� 3-5-07 b. Pedestrian connections shall be constructed between buil ' in th of pathways disttinguished from vehicular driving surface stludwas shall W bitform m �� � a mmja► of through the use of pavers, colored or scored concrete, or bricks; to ** rw mid sides or&v Common areas with site amenities Ci.e.,lazas/co IS t water features, picnic areas, flower gardens, public art, etc.) are a . encouraged to be included within the evelo went. oefebe� of;; . Exterior building walls should demote the nem ss>d � � m a,e >� arm appearance of high quality materials of stone, brick, wood, or other native materials (acceptable materials include tinted or textured Dekte&e.. StUaMms Awk be drifted Umcd a& o&w or the adjs►ow masonry block, tenWred or Painted architecturalconcrete mels, or`)'f t°rD is no pwking t° &0 Aug of &e W stucco or stucco ble synthetic materials_ Imootii faced concrete block, tilt -up concrete panels, or prefabricated steel panels are : £ or a Ing xwnuW' acceptable with the addition of oaint and/or high quality accent -----�---- °fdw ° sh01W be proMW f` beades materials. see vk w" A m (Aw g. The building design shall incorporate at least 2 E4EM in one or a odatad a.. at he combination of the following: color, texture and materials; $ � als, 8 fix* in a" `t � any dw is . Roof Unes shall demonstrate 2 or more of the fallowin : over Mean Ihmn 150 psddng � 200 eaves, sloped roofs, two or more roof planes, varying parapet heights °'mwml and cornices; Dlebed: h . The primary building enftwces shall be c!Laft definedb the : �y , architechnig design of the building. oat,a caftd Buildings will be MnsMcted in the 2L4Lr the are &.enerallylisted on tae�et:ed: - a the _cohceotual site plan M. B C, etc. _ pmh z. Building is an ccesso use within c on 1 desigpgtLoa uLd will bepermitted to be constructed. g&or to other ' 'tt Dokftd:j ci Ail s aures or C per this a Weement. '. : k The cons coon f in er b '1 B or w' omme a with 3 months of coma 1 the revious buildin 1 dots Who A Conditional Use Permit for 6. COMPL ANCE PERIODI CONSEhiT To REZONE. This Agreenae� and pufmcfeis '� `- A11 .n ed .QtD � the commitments contained herein shall be teraminated, and the zoning designation reversed, � ""'� f` � ;M � on upo an actual showin of defaul as det ' ed b a court of com ent 'urisdictio of the Fo ►moeIndeft Lek- 1. -Vol Owner/Developer or Owners/Developers heirs, successors, assigns, to comply with Section 5 Hanging: 0.130, Numbered + Lavd: entitled "Conditions Governing Development of Subject Property" of this agreement within 1 + Numbe" Style: i, ti, IN, ... + two years of the date this Agreement is effective, and after the City has complied with the Start at: 1 + Alignment- telt + aligned at 1.94' + Tab aver: o• + notice and hearing procedures as outlined in Idaho Code § 67-6509, or any subsequent Indent at: 2-W amendments or recodifications thereof. ftmeftak Indent: Haaving: 0. IT DEVUOPMENT AGREEMENT (AZ 07-006 & itZ 07-010) PNEBMGE SuBDmSION Qek.�sd: a PAGE 4 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 5 EXHIBIT A 7. . CONSENT TO DE -ANNEXATION AND REVERSAL OF ZONING DESIGNATION: Owner/Developer consents upon an actual showing of def suit as detterrmined by a court a€ comoetent,,sdion to the reversal of the zoning designation of the Property subject to and conditioned upon the following conditions went to -wit: 7.1 That the City provide written notice of any failure to comply with flus Agreement to Owner/Developer and if the Owner/Developer fails to cure such failure within six (6) months of such notice. 8. WSPECTION: Owner/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 Development Agreement and all other ordinances of the City that apply to said Development. DEFAULT: 9.1 In the event Owner/Developer, or Owner/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 and a court of competent 'urisdiction rules that Owner/Developer is in default hereof, this Agreement may be modified or terminated by the City upon compliance with the requirements of the Zoning Ordinance. 9.2 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/Developer's cost, and submit proof of such recording to Owner/Developer., 1 I. ZONING:.1'he current zoning of C -Or (General Cnmmerriall chall ramain DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE S OF 10 S centsy Campus MDA -10-010; VAR -10-002 DtNfetk . prior to the *W mmling of ,0 Nkgi&= zonim OFTWMW in P. nnnp. r,600,1i& s 10.Zoning of to PMWIY by me OW camml fffir a► room aaw W&racmdown. the OW ca mw fob so wait *0 W im me in CMWW oa with to ah W=d= and of*eftWW ►0000 1d@d dw OW 60 amass wd rp r W 9pr vift iosiraunt of reiem of No ASMOMMt MdWMds Ow *4 Ulm* oft w duty► appxa APUMO oe, gem a VWW and oF&Maa miss 60 Pmpony as ar d w haemo. Page 6 EXHIBIT A 12. REMEDIES: This Agreement shall be enforceable in any court of c ompeteavt 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 law or in equity to secure the specific performance of the covenants, agmuents, conditions, and obligations contained herein. 12.1 In the event of a material breach of this Agreement, the parties agree than City and Owner/Developer shall have thirfiy (30) days after delivery of notice of said breach to correct the same prior to the non - breaching party's sceldng of any remedy provided for herein; provided, however, that in the case of any such deWt 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 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 mayrequire irrevocable letters of credit, cash deposits, certified check as allowed under Meridian City Code Section 11-5-C, to insure installation of any unwed improvements that are not in conflict with Section 15 of this Agreement. At the City's sole discretion the Owner/Developer agrees to provide surety in the form as required by the City, if necessary. 14. CERTIFICATES OF OCCUPANCY: The Owner/Developer agrees thorn Certificates of Occupancy will be issuedja issued'any phMe m which the 0i rovements have not v.i. : und as M"Wavem is no been installed, completed, and accepted by the City or,otherwise entered into an anuroved °°mom "n°"'o �''and DoveieQme/Owns bs.o and ba an letter of credit for uns a� I -- inap+cW wilt be comOWW m • 15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developera to ef � � S� 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 DEVELOPMENT AGRE=AMNT (AZ 07-006 & RZ 07-010) PINEBRWGE SUBDIVISION PAGE 6 OF 10 Scentsy Campus MDA -10-010; VAR- 10-002 Page 7 EXHIBIT A contained in the Findings of Fact and Conclusions ofLaw, this Development Agreement, and the Ordinances of the. City of Meridian. 16. 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: Com: OWNER/DEVELOPER: c/o City Engineer .O.T. i LLC oeldwh DhG kwaftno City of Meridian 3698 E. Imark. DOWS& 134 S. Beechwood. suits In 33 E. Idaho Ave. N4eridian. ID 3642 a I e(60 Meridian, ID 83642 Deldls� 83709 with copy to: City Clerk Phillip E. Broadbent City of Meridian Scen , ,Inc. 33 E. Idaho Avenue A698 E. Lanark . Meridian, ID 83642 Meridian. ID 83642 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 be 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 tern, condition and provision hereof, and that the failure to timely perform any ofthe obligations hereunder shalt constitute a breach of and a default under this Agent by the other party so failing to perform. DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 7 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 8 EXHIBIT A 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 eqnssed. City agrees, upon written request of Owner/Developer, to execute appropriate and recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determined that Owner/Developer has -My performed its obligations under this Agreement. 20. INVALID PRO'V'ISION: 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 affl t any of the other provisions contained herein. 21. FINAL AGREEMENT: This Agreement sets forth allpromises, 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 govenmg re -zoning ofthe subject Property herein provided for can be modified or amended without the approval ofthe 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 dateLf execution of the Maw and City Clerk. Odobm ; the Mmidin ter Come i dud adopt the aosandbl►e� 10 me Muidium Zoning otftn■ooe in conmadon wilt ft sawmatim and zoning of" how► wd DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PDTEBRIDGE SUBDIVISION PAGE 8 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 9 Al"=T: C(tYCLERK EXHIBIT A IN VaTteSS WtiE MF, the pwtW rine h crab Attu dd dim yze®ems i�..lDRAP -RCLT, It LLQ orr.r 8Y; BYt MAYOR TAMMY de W ERD PAGE 9 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 EXHIBTT A STATE OF 814HOt. C4DdWdAA&j # Nom- PA& m aad Or acid sawe�pa�r+ed LLC. jgkn!d� to an dathe mooftd gra �.w�■r 60 same *0 be MW mpcv -4 IN WtTl NS WIEERFCIF, I ire i 1-1 of �o set toy bad m d mar vw 1� 4*rid. ' ins d& fl,c s iii �bawe re�pi. STATE OF UMHO � Coaq,ofAde Pilo r Tammy da Wead. and WiMm G. „ fir., know or fied to me to M ad Cl� .rosea urd� , +af an of) I I' k on. M60 trom", of . and �ica� -_ -d d10 me *x e& City owadefto i m o. 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Y .Ma a w'lW8 Y? 9! . � , Ai _ 6 eta # __ .N }`axx 9 Z -71t �i g s ` ➢` oi « __ _ a fy.i � , v ... k �....._ ...� k , Y I I w Y m � �,- „mow. • �wK� MMM 1 ' -7r, E HI f Exhibit A.. — Vicinity Mai - , I , - T- ir l4A 'V�- j {yam µms/ r, 06 VAS, � �, ILI 1- 11 _7" y a6 �.. • j r S contsy Campo MDA -110-010; AR -1.0-00 EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2..O.T. 1 LLC Owner/Develo oeieded: DW hftV$ =* THIS DEVELOPNtENT AGREEMENT (this Agreement), is made and - entered into this day of , 2 0,10. by and between City of Meridian, a Ddets* os municipal corporation of the State of Idaho, hereafter called CITY, and O.t LLC DMB b whose address is .3698 E. l.aaark. Meridian. Idaho 3642 herefter called jAT ;0d@bN:Lzso S. Be.abwood, s iza, OWNER/DEVELOPER. Dddm* $3704 L RECITALS: 1.1 WHEREAS, Owner/Developer is the sole owner, in law equity, of that 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, herein after referred to as the Property; and 1.2 WHEREAS, Idaho Code 67-6511 vides that cities mai, b Del*Wi Lc. ordinance, require or as a condition of re -zoning that the v.�e�ed: cAa.� Owner/Developer make a written commitment concerning the use or - __j development of the subject Property; and 1.3 WHEREAS, City has exercised its statutory authority by the enactment of Ordinance 11-5B-3, which authorizes development agreements upon the annexation and/or re -zoning of land; and 1.4 WHEREAS Owner vel has submitted an lication for Modification to 12evelopment Agreement dated 2-28-08 instrument # 108022 &U and Qeftd: unuatim and Ofto Pcopwwol deeara'bed in Exhibit A. and hr regwod a daigufm ofC-G (0an" 1.5 VVIIEREAS, Owner/Developer made representations at the public wmi*d CG& of*0 chy hearin efore the Meridian Ci Counc' as to how the sub'act Property will be developed and what improvements will be made; and °'yftd'' Dakftd: bon W= do MrWian 1.6 'WHEREAS, record of the proceedings for the requested & Wd development Bement modification for Am sub'ect Property held oal ad: anowtim and &wpwm of DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PP4EBRMOE SUBDMSION -j PAGE 1 OF 10 S centsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A before & City_Council includenses ofovernment o stat *a �s & z� subdivisions providing services within the City of Meridian planning cO�'�°a "�'°—J jurisdiction, and received fiuther testimony and comment; and 1.7 WHEREAS, City Council, the da o has gyroved certain Dd9t1 k 7& Findings of Fact and Conclusions of Law and Decision and Order, set Web& NoveoW forth in Exhibit B, which are attached hereto and by this reference oetreed:2007 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 modify the existing -development ggLeeMgat to reflr&t ghe changS in w er hi • and eaw into a dralopmed meat befty tie CAy caomd Oka 1.9 AS OwnerlDevel eems it to be in 'ts best interest to sWwiman mnocadm md be able to enter into this Agreement and acknowledges that this Fortaat"t Fast: sold Agreement was entered into voluntarily and at, 'ts urging and requests• o WI* oWMUUMMOPM and a 1.10 WHEREAS, City requires the Owner/Developer to enter into a IWI 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 development agreement, herein being established�n accordance with the amended Comprehensive fl+ • a• a rn k of.iiaem W Plan of the City of Meridian adopted August 6, 2002, Resolution No. J'' to o``r in *6 r'000'0` f0` �O° darcg,.nnm fiom gotienomeoc atbdtwaae 02-382, and the Zoning and Development Ordinances codif ed in pron&m samm wto phopdi v Meridian Unified Devel ment Code, Title 11. °P owms us "°d'�'0°"f°�°d pmpwty .d>a� m 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 DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PR410RMGE SUBDIVISION PAGE 2 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 3 EXHIBIT A subdivision of the state of Idaho, organized and existing by virtue of law of the State of Idaho, whose address is 33 East Idaho Avenue, Meridian, Idaho 83642. 3.2 OWNER/DEVELOPER: means and refers to ILO.T. 1 LLC oal0e� Dbf bvnftmw whose address is 689 E. Lanark 1VIWiil I 2 the v�.ieaa: asa S. Ba woo x6.120, that owns and is developing said Property and shall include any B°"0''°' subsequent owner(s) of 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 parcet currently toned C -G fggleral ossa: Commercial), attached hereto and by this reference incorporated -JDdww;wt*=w=dww herein as if set forth at length. 4. USES PERMMED BY THIS AGREEMENT: 4.1 The uses allowed pursuant to this Agreement are only those uses allowed under City's Zoning Ordinance codified at Meridian Unified Development Code § 11-2B-2 which are herein specified as follows: Construction and development ofS +/- acres in she rn osed CG oetetr� 61 AUMV tont pertinent to tke DaMerCh A"'.M mrsz e7-ot0 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: Dakota& 2.. Pio,, gww,M be era m>ac cum p dw to 5.1. Owner/Developer shall develop the Property in accordance with the � following special conditions: P*u "' mw. owtb.u� � 1. Development of the property shall substantially comply with the I. Wbw thav adsting uftUn and conceptual site plan and elevation submitted with the subject application whore dw sonvaWft pubk roe& sm and the concepts outlined below. '�°°d' m` �°�°�°` AWbei°°�� "'P m 7 000epoay permits prior to 6sd phi nowdadm As Phwing Me" mad Ow rw4opmas Savim Mso w a dw City of Merl = may aoo6dw Wkwiog 4. The following concepts shall be employed in the development of the Y (norm property: mcesd 13) iftbe - i- aFds previau 7 same a be *Mciat sod in tt~e Catys bat �ieett.� DEVELOPMENT AG (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 3 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 4 EXHIBIT A a. General massing of buildings, roundabouts and landscape islands in owed: I"and streets shall be constructed as generally shown on the on fuel site Delated: sem► comhom plan prepared by TA Inc. dated 1-12-10. '; M b. Pedestrian connections shall be constructed between buildings in the Deleted: forth of pathways distinguished from vehicular driving surfaces C. _ stuftm shill W W& adjawd to wo&mp vA& a maj«k of tbrough the use of pavers, colored or scored concrete, or bricks; &o pwhing to dw''w wd WWof&e �• Common areas with site amenities i.e., plazas/ca arils saucum. - , water features, picnic areas, flower gardens, public art, etc.) are DeWecls d . encouraged to be included within the vele trent. a� �d� . Exterior buil ' walls should demonstrate the 0 MIP and wffi be n0nd fn &e appearance of high quality matte of stone, brick, wood, or other. ; e. _ s native materials (acceptable materials include tinted or textured oriented Wwwd ems► other or the k§woact masonry block,, textured or ainted architecturalA ncrete panels or * *8) ff& s Do in to Aug i stucco or stucco lice synthetic materials_ Smooth faced conte ; f.W. or block, tilt -up concrete panels, or prefabricated steel panels e s rA mor . ecce to a with the addition of aint and/or hr ualr accent of the dwWd be provided for fiwa&m dot xv virweWe snm otbar materials. sh , . The building design shall incorporate at least 2 chmees m one or a : d.. ftovi& Wa&%V5 at Zest combination of the following: color, texture and materials; 8 fees n for shy" ►11 %W is . Roof fines shall demonstrate 2 or more of the folio :over xmm � dt 200 g opwa or eaves, sloped roofs, two or more roof ptanes, varying parapet heights, et and cornices; : h ,g. The primary buil duig entrances shall be clearly defined by the D~11 . architectural design of the building. DdWed: mew ui in will be constructed in the order the a en on oelal�sd: - I the conceptual site plan (A, B, C. etc.,). oelebed: is an -acce-ssga use within the urrent zon' Dele�bed: i designation w' be permitted to be constructd WLort other princiRafl,y Ram:iAed-==eg..Jbr C pq this ent. '. Dalebed: k The construction of rdler build-kiz B or C 35dU commme with months of compl time previous buidin�. awed• 0111t0d: A Goad_ dwd U" Piermh far 6. COMPLIANCE PERIOD/CONSENT TO REZONE: This Agreement and dye mini fW='JY pardw of this oaa prowrior the commitments contained herein shall be terminated, and the zoning designation reversed, dw WM � Er s� p''` =upo an actual show' of defaul as determined by a court of competent ' 'ctio ofthe �, m Indent~ e1.3r, Owner/Developer or Owners/Developers heirs, successors, assigns, to comply with section 5 Hanging: 0.1r, Numbered + LeM: entitled "Conditions Governing Development of Subject Property" of this agreement within i + Numbering Style: i, N, Wt... + two years of the date this Agreement is effective, and after the City has complied with the Start at: I + Alo merit: Lett + Mgrad at. LW + Tab ate-: V + notice and hearing procedures as outlined in Idaho Code § 67-6509, or any subsequent Went at: 2.44" amendments or re -codifications thereof lamIndent: Hanging: 0: oeiebed: a DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PR4EBRIDGE SUBDIVISION PAGE 4 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 5 EXHIBIT A CONSENT TO DE -ANNEXATION AND REVERSAL OF ZON ING DESIGNATION: Owner/Developer consents upon an actual sho, o i ,g„gf defuu.it as determined by a court of conipete,nt, jurisdiction to the reversal of the zoning designation of the Property subject to and conditioned upon the following conditions precedent to -wit: 7,1 That the City provide written notice of any failure to comply with this Agreement to Ownerlbeveloper and if the Owner/Developer fails to cure such failure within six (6) months of such notice. 8. INSPECTION: Owner/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 Development Agreement and all other ordinances of the City that apply to said Development DEFAULT: 9.1 In the event Owner/Developer, or Owner/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 and a court of competent jurisdiction rules that Ow- near/DeveIg= is in, default ha- wf, this Agreement may be modified or terminated by the City upon compliance with the requirements of the Zoning Ordinance. 9,2 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/Developer's cost, and submit proof of such recording to Owner/Developer� 11. ZONING:.0—e current zoning of C-Ol ieml Commercial) shall remain. / DEVELOPMENT AG (AZ 07-006 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE S OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Mbed:. Tem to the 6W ruMng of do k4wifim znnig orinMW in ioQVIA to looming of dw Ptopaty' by the OW coaoeiL if tw any redcn aaw 6U& racWWM &D ci W Cou=O fi& 0o miapt the adwoce in ooaoeodm with the cram" and of#"W husby, the city *all aacuw and a c and in appropciate fiWWA MA ofnhwe of ft Agtuemo Ll n a it ecN city gbA 8oilow* moo of dW d* Agreement, two a valid and binding UAW=" Doming do Property as .pecisw l Page 6 EXHIBIT A 12. 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 law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. 12.1 In the event of a material breach of this Agreement, the pasties agree that City and OwnerlDeveloper shall have thirty (30) days after delivery ofnotice 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 tl*iy (30) day period, if the defaulting party shall commence to cure the same within such thirty (3 0) 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 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 smiler causes, the time for such performance shall be extended by the amount of time of such delay. B. SURETY OF PERFORMANCE: The Citymay require irrevocable letters of credit, cash deposits, certified cheek as allowed under Meridian City Code Section 11-5•C, to insure installation of arty unfinished improvements that are not in conflict with Section 15 of this Agreement. At the City's sole discretion the Owner/Developer agrees to provide surety in the form as required by the City, if necessary. 14. CERTIFICATES OF OCCUPANCY: The Owner/Developer agrees that no Certificates of Occupancy will be issuedin My e in which the im rovements have not o : =a d PvAumtv av been installed, completed, and accepted by the City or otherwise entered in-.. to ars approved bn ommod &W letter of credit for unfnhed imKQ=en-ts. aa=&= aP"MWg wkm a8 iaproI wM be ooq$md m • plseted &vdoQo& and in ate+ event no 15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to CaMcda ofaWoW " be ismW 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 DEVELOPMENT' AGREF.bffiNT (AZ 07-006 & RZ 07-010) PMBRMGE SUBDIVMON PAGE 6 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 7 EXHIBIT A contained in the Findings of Fact and Conclusions of Law, this Development Agreement, and the Ordinances of the -City of Meridian. 16. 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 Maid, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY: OWNER/DEVELOPER: c% City EngineerR.O.T. L LLC nes DUB hwesbaeft City of Meridian 3698 E. Laark oNaa* zso S. Bwckwwd, suite 120 33 E. Idaho Ave. Meridian. ID IL642 02 ?Meridian, ID 83642 Deis" 83709 _J with copy to: City Clerk Phillip E. Broadbent City of Meridian Scentsy, Inc. 33 E. Idaho Avenue 3698 E. Lanark Meridian, ID 83642 Meridian, ID 83642 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 pasties hereto concerning this Agreement, the prevailing party shall be entitled, in additim 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 . 18. TDW IS OF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every tenni, 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. DEVELOPMENT AGREEMENT (AZ 07-006 etc RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 7 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 8 EXHIBIT A 19. BINDING UPON SUCCESSORS: ThisAgreement shall be binding upon and inure to the benefit of the parties' respective heirs, - successors, assigas and personal representatives, inchxding 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 Properly, 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 Owner/Developer, to execute appropriate and recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determhied that Owner/Developer has -fully performed its obligations under this Agreement. 20. INVALID PROVISION: If any provision of this Agent 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 pin want, 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 ofthe 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 AGREE WJT: This Agreement shall be effective on the date&ff execution of the Mayor and � Clerk. Derated: dw Mai&= Chy co+ma dull adopt die ==WW%et m da Meridien oidioeme is oomwdw to mmomam ad wni*9fdo lid w DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRII,?(`E SUBDIVISION PAGE 8 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 9 EXHIBIT A AC3M0WLZDCMfVM Wnr,vsq W ' F-, ft Patin U" bores oowjw.tbb�eaan,a�t odea a I cinboNopmvided 0WHK-2lDZA) BY; cffv 01 MMML4N BY: MAYOR TAY da WE RD A'I`rM; DEV UA Mwr mit ft M?�4Q4 Z ff l� P�ii� �51�! PAM 9 OF E0 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 EXHIBIT A STATE OF MNHO� � 0090y,of Mk I 00 Ms daw _201L Q wd fvr MW MHKpeesoaeU7 eFpM'�d or UieMUMe-d. to nm to be to wAaaw #c me &the mectod ��■...r a� bmWofd aoL IN NNM WH RBOF, I benne I 1 1 - W: W my bod end Wfixad: mfr offmW eed dw do y► and .Pew in 1his cseditmw &a Wkr m wri w (SEAL) Novy Public flit -WW W PAMOR at My eEXpUM STATE OF QAHO � r ComMy of PUbi iaq$M."VpmW Thy dm Woad and WiMm G. 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'T (AZ 074H A 0Z 07-410) FOMPOUB SUDO Yi RM PA M. 10 (W 10 S centsy Campus MDA -10-010; VAR -10-002 Page 11 EXHIBIT EXHIBIT Exhibit A.5 - Proposed Conceptual Site Plan, 1424, bp* Scentsy Campus MDA- .0-0 ;VAR-� 10-002 'age 15 EXHIBIT A Scent EXHIBIT ; Sc.entsy Campus MDQ;. -10- 0 AR- -002 i Page 17 ExHIBIT A Exhibit A.7 - Right -Of -Tay Encroachment Permit Approved by ITD & Approval Letter fthwway Ena�oa�m,�llt � �fld Pit ADpfiO--- D_ lA� irookub the #. h +compbled Eelm turMt O"Welp docun� Z. 1��1e�n � aPP �1�, fir�At vwrM1' ar M� _ - atjoint war 3. or G (3 * DOWN6dam, Ow i�a!'ia liblo p ' ASR ,� r+os�iwrr� �► � parrs f o y dad a�n aw�r wa* Mome OWAMMt �ulhat APS"an of 4►h� b� s�rrd ! �� �rMon to •{O1lW on 2 ofrrA Ow "M W'wor �� s P� oi�ir i hew M owl td�d i is o 1" eti�r Tr iad r fhb P diff*hr R*1wn bd wib v ee pwis4 I IA Scentsy Campus MDA -10-010; VAR -10-002 Page 18 EXHIBIT A 1M11d NI�ANtrMY P�O� 6�Ole 7h1�P � IIOIM Ri �'•fl�i iM11w Mr. Frdllc Y. 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P'M�. mrd Emile qo�d �in�otlOn led oonw� 10 oaM 81�rr1. 1'IN �1 � be endto wf�c�M.� . ft �Movwno� of � bltl�rn #rte atOae�11 11" 1w 41 AIg..w Ir end PwarM� 11 if - Thr dNNiq�rMA 1� Aquk�d ID m00m M Lqt OMOMOMM a_0P_'nW+�an affDaeawW►aACND.lDoMa9wrrloomm no ia. 8y A1f of oyrilwi _v imp rov end dM-lapn00 0wY an Cai�rMt 6�wt end F'In� Bb�M M� nMd bbi bt# baNNil� � p�Mo«Mgr dfi� Irk YMiMMa1*M wrp Ihl► Eyj� fiord �d eawt i� bVtb oo�unoMon �ilh a h �q� o1fM 6� Road �Ppro+dr.��improw�lr mwt b� 1ppo�drd oomlMd l ACM $i � d00" b tlw /Mlt0atoW levet. P io Y''ryrR+- WIN . I you W&ilvin I! he 4F �rd� d of 'O o�on�lruo your hrar M►ID +aorMMt p� roe *-nuL oir�r, is, PiL �MMP Ca Aft ckxft�DWM 3Adam ft ftftn . Mft On 4 Aft 1` i- - IM i Scentsy Campus MDA -10-010; VAR -10-002 Page 20 EXHIBIT A Exhibit A.8 — Proposed Access/Lane Configuration Scentsy Campus MDA -10-010; VAR -10-002 COMMERCM COURT Page 21 EXHIBIT A Exhibit B - Required Findings from the Unified Development Code The City Council shall apply the standards listed in Idaho Code 67-6516 and all the findings listed in Section 11 -5B -4.E of the UDC to review the variance request. In order to grant a variance, the Council shall make the following findings: A. The variance shall not grant a right or special privilege that is not otherwise allowed in the district: The City Council finds that granting a variance would not allow a right or special privilege that is not otherwise allowed for properties that are adjacent to a state highway because the City Council has granted similar privileges to other properties in this area/district in the past. B. The variance relieves an undue hardship because of characteristics of the site; The City Council finds that there are no undue hardships that would prevent the applicant from developing the site by restricting access to SH 55/Eagle Road. However, the traffic impact study reflects that a right-in/right-out access would improve traffic flow within the site and at the intersection of Pine and Commercial Streets with SH 55/Eagle Road. Additionally, the Idaho Transportation Department has already approved the proposed access. C. The variance shall not be detrimental to the public health, safety, and welfare. The City Council finds that the Traffic Impact Study submitted with this application suggests that allowing the proposed right-in/right-out access to SH 55/Eagle Road will actually improve public safety and will not be detrimental to the public health and welfare due to a reduction of traffic at the Pine/Eagle intersection. Scentsy Campus MDA -10-010; VAR- 10-002 Page 22