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2011-06-28C�E FIDIAN,--- IDAHO CITY COUNCIL REGULAR MEETING AGENDA Tuesday, June 28, 2011 at 7:00 PM 7:02 PM 1. Roll -Call Attendance X David Zaremba X Brad Hoaglun X Charlie Rountree X Keith Bird X Mayor Tammy de Weerd 2. Pledge of Allegiance 3. Community Invocation by Tim Pusey with Valley Shepherd of the Nazarene 4. Adoption of the Agenda Adopted 5. Consent Agenda Approved A. Approve Minutes of June 7, 2011 City Council Special Meeting B. Approve Minutes of June 7, 2011 City Council Regular Meeting C. Approve Minutes of June 14, 2011 City Council Special Meeting D. Approve Minutes of June 14, 2011 City Council Workshop Meeting E. Final Order for Approval: AP 11-001 Southridge Subdivision Gravel Mining by Idaho Sand & Gravel Company Located South of W. Overland Road; Southwest of the Ridenbaugh Canal and East of S. Ten Mile Road Within Future Development Areas of Southridge Subdivision Request: City Council Review of the Director's Decision to Deny the Conditional Use Permit Modification to Allow Audible Back Up Alarms on Construction Equipment Used on the Site Meridian City Council Meeting Agenda — Tuesday, June 28, 2011 Page 1 of 3 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. F. Water and Sewer Easement for Olson Avenue Road Extension Including New Water and Sewer Infrastructure; Mains, Hydrants, and other Appurtenances G. Award of Bid and Contract to Power Plus for Main Street Corridor Street Light Conversions for a Not -to -Exceed Amount of $112,931.00 H. Task Order #10002c for the Wastewater Treatment Plant Headworks Odor Control Design with Brown and Caldwell Under the Master Agreement Dated April 13, 2010 for a Not -To - Exceed Amount of $57,433.00 I. Addendum (Exhibit C/Task Order #3) to Master Agreement for Professional Services with Access Idaho for Electronic Transactions and Access to PayPort Electronic Payments for All Departments J. First Addendum to Agreement with Accela, Inc. for Professional Services for Implementation and Configuration of a City Wide Planning, Permitting, Licensing, and Code Enforcement System K. Addendum to Development Agreement for Approval: MDA 11- 002 Meridian Town Center by Meridian CenterCal, LLC Located at Northeast Corner of E. Fairview and N. Eagle Road Request: Amend the existing Development Agreement (Instrument #108131103)to Include an Updated and Expanded Development Plan and Minor Edits to the Text of the Agreement L. Development Agreement for Approval: MDA 10-010 Scentsy Campus by Sam Johnson, H.O.T. 1, LLC Located Southwest Corner of E. Pine Avenue and N. Eagle Road Request: Modify the Existing Development Agreement to Update the Owner Information and Development Plan M. Resolution No. : A Resolution of the Mayor and the City Council of the City of Meridian Authorizing the City Clerk to Destroy Certain Semi -Permanent and Temporary Records of the Meridian Public Works/Building & Development Services Divisions Vacated From the Agenda Meridian City Council Meeting Agenda — Tuesday, June 28, 2011 Page 2 of 3 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. 6. Items Moved From Consent Agenda 7. Action Items A. Continued from June 21, 2011: Public Hearing: ZOA 11-002 Unified Development Code (UDC) Text Amendment by City of Meridian Public Works Department Request: Amend the Surety Section, UDC 11-5C to Include Clarifications, Increase Surety Amounts and to Provide for Bonds as a Form of Surety Continued to July 19, 2011 B. Continued from June 21, 2011: Public Comment: Ordinance No. 11-1485: An Ordinance of the City of Meridian, Enacting a New Section, Title 8, Chapter 6, Section 2, Relating to Performance and Warranty Surety for Public Infrastructure (First Reading) Continued to July 5, 2011 8. Future Meeting Topics None Adjourned at 8:27 PM Meridian City Council Meeting Agenda — Tuesday, June 28, 2011 Page 3 of 3 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. Meridian City Council Meeting June 28, 2011 A meeting of the Meridian City Council was called to order at 7:03 p.m., Tuesday, June 28, 2011, by Mayor Tammy de Weerd. Members Present: Mayor Tammy de Weerd, Brad Hoaglun, David Zaremba, Keith Bird and Charlie Rountree. Others Present: Bill Nary, Jacy Jones, Pete Friedman, Jamie Leslie, Kenny Bowers, Tom Barry, Warren Stewart, Bruce Freckleton, Robert Simison and Dean Willis. Item 1: Roll -call Attendance: Roll call X David Zaremba X Brad Hoaglun X Charlie Rountree X Keith Bird X Mayor Tammy de Weerd De Weerd: I'd like to welcome everyone here this evening and thank you for joining us. For the record it is Tuesday, June 28th. It's a few minutes after 7:00. We will start tonight's meeting with roll call attendance. Madam Clerk. Item 2: Pledge of Allegiance De Weerd: Item No. 2 is our Pledge of Allegiance. If you will all rise and, please, join me in our pledge to our flag. (Pledge of Allegiance recited.) Item 3: Community Invocation by Tim Pusey with Valley Shepherd of the Nazarene De Weerd: Okay. Item No. 3 is our community invocation. Tonight we will be led by Pastor Tim Pusey and he is with Valley Shepherd Nazarene Church. If you would, please, join us in the community invocation or take this as an opportunity for a moment of reflection. Welcome. Pusey: Let's pray. Heavenly Father, as this meeting begins tonight we acknowledge our human need for your divine strength and wisdom and we pray for Mayor Tammy and for our City Council and we ask that you would give them insight to rightly discern the true needs of our community and courage to respond accordingly. I pray your blessing upon the people of the community of Meridian, the young and the old, all of us in between. I ask that you'd teach us to live out Christ -like love and compassion for one another and may we be the kind of community that you long for us to be. We thank you, Father, for your many blessings in our lives, including the privilege of calling upon you as we are this evening. We trust our needs to your care and your keeping, in Christ's name, amen. Meridian City Council June 28, 2011 Page 2 of 32 De Weerd: Thank you. And thank you for joining us this evening. Item 4: Adoption of the Agenda De Weerd: Item No. 4 is the adoption of the agenda. Hoaglun: Madam Mayor? De Weerd: Mr. Hoaglun. Hoaglun: On tonight's agenda, the Consent Agenda, Item 5-M, there is a request to vacate this item from the agenda and that is the only item to note. With that, Madam Mayor, I move adoption of the agenda as printed. Rountree: Second. De Weerd: I have a motion and a second to adopt the agenda as amended. All those in favor say aye. All ayes. Motion carried. MOTION CARRIED: ALL AYES. Item 5: Consent Agenda A. Approve Minutes of June 7, 2011 City Council Special Meeting B. Approve Minutes of June 7, 2011 City Council Regular Meeting C. Approve Minutes of June 14, 2011 City Council Special Meeting D. Approve Minutes of June 14, 2011 City Council Workshop Meeting E. Final Order for Approval: AP 11-001 Southridge Subdivision Gravel Mining by Idaho Sand & Gravel Company Located South of W. Overland Road; Southwest of the Ridenbaugh Canal and East of S. Ten Mile Road Within Future Development Areas of Southridge Subdivision Request: City Council Review of the Director's Decision to Deny the Conditional Use Permit Modification to Allow Audible Back Up Alarms on Construction Equipment Used on the Site F. Water and Sewer Easement for Olson Avenue Road Extension Including New Water and Sewer Infrastructure; Mains, Hydrants, and other Appurtenances Meridian City Council June 28, 2011 Page 3 of 32 G. Award of Bid and Contract to Power Plus for Main Street Corridor Street Light Conversions for a Not -to -Exceed Amount of $112,931.00 H. Task Order #10002c for the Wastewater Treatment Plant Headworks Odor Control Design with Brown and Caldwell Under the Master Agreement Dated April 13, 2010 for a Not -To - Exceed Amount of $57,433.00 I. Addendum (Exhibit C/Task Order #3) to Master Agreement for Professional Services with Access Idaho for Electronic Transactions and Access to PayPort Electronic Payments for All Departments J. First Addendum to Agreement with Accela, Inc. for Professional Services for Implementation and Configuration of a City Wide Planning, Permitting, Licensing, and Code Enforcement System K. Addendum to Development Agreement for Approval: MDA 11- 002 Meridian Town Center by Meridian CenterCal, LLC Located at Northeast Corner of E. Fairview and N. Eagle Road Request: Amend the existing Development Agreement (Instrument #108131103)to Include an Updated and Expanded Development Plan and Minor Edits to the Text of the Agreement L. Development Agreement for Approval: MDA 10-010 Scentsy Campus by Sam Johnson, H.O.T. 1, LLC Located Southwest Corner of E. Pine Avenue and N. Eagle Road Request: Modify the Existing Development Agreement to Update the Owner Information and Development Plan M. Resolution No. : A Resolution of the Mayor and the City Council of the City of Meridian Authorizing the City Clerk to Destroy Certain Semi -Permanent and Temporary Records of the Meridian Public Works/Building & Development Services Divisions De Weerd: Item 5. Consent Agenda. Hoaglun: Madam Mayor? De Weerd: Mr. Hoaglun. Meridian City Council June 28, 2011 Page 4 of 32 Hoaglun: As noted, 5-M, there is a request to vacate this item from the agenda. So, with that removed I move approval of the Consent Agenda and the Mayor to sign and Clerk to attest. Rountree: Second. De Weerd: I have a motion and a second to approve the Consent Agenda as changed. If there is no discussion, Madam Clerk. Roll -Call: Bird, yea; Rountree, yea; Zaremba, yea; Hoaglun, yea. De Weerd: All ayes. Motion carried. MOTION CARRIED: ALL AYES. Item 6: Items Moved From Consent Agenda De Weerd: Item --there were no items moved from the Consent Agenda. Item 7: Action Items A. Continued from June 21, 2011: Public Hearing: ZOA 11-002 Unified Development Code (UDC) Text Amendment by City of Meridian Public Works Department Request: Amend the Surety Section, UDC 11-5C to Include Clarifications, Increase Surety Amounts and to Provide for Bonds as a Form of Surety B. Continued from June 21, 2011: Public Comment: Ordinance No. 11-1485: An Ordinance of the City of Meridian, Enacting a New Section, Title 8, Chapter 6, Section 2, Relating to Performance and Warranty Surety for Public Infrastructure (First Reading) De Weerd: So, we will move to Item 7 under Action Items. To action -- or Action Item 7-A, which is continued from June 21st, a public hearing on ZOA 11-002 and I will also open up 7-13, which is a public comment on Ordinance No. 11-1485. Friedman: Thank you, Madam Mayor, Members of the Council. As the Mayor indicated, you have both an amendment to the UDC and an amendment to the -- I think it was Title 8. The amendment to the UDC is adjusting the amount of sureties that we would be obtaining for the installation of infrastructure, as well as the non -life safety elements of development, such as subdivision amenities and so forth. We have also -- what we are proposing to do is change the current 110 percent that we assess for performance for the non -life safety and we are recommending -- or the Planning Commission recommended to make it 125 percent, consistent with the amount that the Public Works Department has recommended for -- for warranties and performance for Meridian City Council June 28, 2011 Page 5 of 32 the installation of utilities. We have also added the ability to incorporate bonds as an acceptable form of surety, in addition to cash and letters of credit. So, with that I think the bulk of the presentation or the bulk of the matter for discussion and deliberation by the Council is really the amendments that were proposed by the Public Works Department. I would add one -- one comment at this point. I guess it's a comment. Last week Council Member Rountree, in discussing the UDC amendment, had suggested a change of amending the language of -- that we would prefer -- that was recommended so that the sureties would not exceed 125 percent. In thinking about it over the course of the last week that 125 percent would, in essence, form a ceiling, but we don't have a floor, and I was concerned that, at least from a staff perspective, we wanted to be able to treat everyone equitably and provide some guidance for them, so that we -- you know, we are not going in different directions for different -- different applicants or different levels of amenities. So, I have talked with the city attorney, we have got some suggestions if you want to follow along those lines, but we would respectfully request that we somehow develop some language that provides staff some guidance or we -- we establish a floor. We certainly -- if Council agrees that 125 percent is the appropriate amount or see that as a ceiling or what you choose to go long with. So, that -- those are really my comments on the UDC text amendment. De Weerd: Thank you, Pete. Council, any questions? Bird: I have none at this time. Rountree: Madam Mayor, just a comment on Pete's last comment is that the way it's written now it doesn't -- it establishes 125 percent as the fee for any surety. That may not be the right surety for non -infrastructure type of activities. Something less might be appropriate for landscaping or something else. This ordinance applies to other things than just infrastructure. I suggested that maybe some language be added to this that would say a level established by Council resolution and, then, establish a table, if you will, for the various kinds of activities that would require a surety and establish those rates by resolution, so we don't have to amend the ordinance and require those be updated just like what's been done for infrastructure and that at some point in time when it needs to be raised or lowered we can do that by resolution change. I just throw that out, but I think we need some flexibility in this instead of just establishing one fixed amount that may not be applicable to some other activities in the city. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Mr. Rountree, as I understand you -- you wanted to set a fee for job -- types of jobs and not to exceed 125? Rountree: Correct. Bird: And everything -- every time we go job by job -- is that how we do it or by -- Meridian City Council June 28, 2011 Page 6 of 32 Rountree: Well, now if we pass the ordinance as written it's cast in concrete at 125 percent. Bird: Yeah. Rountree: But if you can afford to in say subdivision amenities or landscaping or those kinds of things in a classification and say based on an analysis it's 115 percent and, then, establish that rate by resolution, then, when that needs to be changed, when it's costing more to do that, then we can just do it with a resolution change, as opposed to an ordinance amendment. Bird: I agree one hundred percent with that. If they can figure out a way to write it up. Rountree: If it can be done. Bird: It can be done. Rountree: What we don't want to do is put staff in a situation where every application they got to come up with a fee and, then, justify it. Bird: And bring it to us. Rountree: Yeah. Bird: No, I don't want that. That's what I was afraid we was getting into. Rountree: I don't want to do that. Nary: Madam Mayor? De Weerd: Mr. Nary. Nary: Madam Mayor, Members of the Council. So, if I'm understanding correctly Council Member Rountree, basically, what you're suggesting -- I think it's certainly doable. I mean we can certainly put as established by resolution of the Council and, then, you would want the staff to bring back a proposal -- I think like Pete stated -- infrastructure -- of sewer and water infrastructure, either type or both, versus non -life safety issues like landscaping or something -- fencing, those types of things and what the appropriate level is for one versus the other. That's what I'm understanding that -- Rountree: Yeah. That's -- Nary: Yeah. I don't -- I mean certainly it's -- changing the ordinance to reflect that is not -- not a problem. Meridian City Council June 28, 2011 Page 7 of 32 Rountree: Okay. De Weerd: Okay. Mr. Zaremba Zaremba: I'm mulling that over. It's a new idea to me and I'm trying to be open to new ideas. And I think I'm understanding what we are talking about, we are talking about the resolution would be a chart where there would be no variability among sewer projects. A sewer project is always going to be 125, but if what we are having them bond for or indemnify for -- or something is. For instance, a landscape project. That might be a 110 percent. But all landscape projects would be 110 percent and all fencing projects would be whatever we pick -- 105 or 110 or something. And I agree with the idea that -- referring to that as a resolution and making it easier to adjust might be a good idea. I think the one thing I want to make sure -- and I think it's what I am already hearing is that there is no decision or variability -- if somebody is going to put a sewer line in there is a fixed percentage that's not decided project by project. If it's a sewer it's 125. Hoaglun: Or -- Madam Mayor. Whatever we decide tonight that amount Zaremba: Yes. Hoaglun: -- is, yes, but that would -- that's my understanding and I completely agree with that -- that approach. I think that would work. De Weerd: Okay. Any further discussion? Mr. Barry, did you have comments on this -- on Item 7-13? Barry: Thank you, Madam Mayor, Members of the Council. With regard to the conversation that's just been had by the Council, you know, the percentage that was recommended to the Council of 125 percent was recommended in the UDC for four types of utility infrastructure. Storm water infrastructure, reclaimed water infrastructure, water infrastructure and sewer or wastewater infrastructure. We have established that percentage based on a formulaic approach, which I have shared with you in the past, and if you buy into that particular formulaic approach, then, I would urge you not to deviate from that in those four infrastructure areas. The 110 percent change for all other types of surety was -- as memory serves, occurred simply to try to bring uniformity to the percentage amount and to not have a variety of different percentages for the performance surety introduced. There is nothing wrong with having different amounts, cities all over the country do that, a different amount for landscaping or for surface improvements, so on and so forth. So, if that's something the Council would like to do, then, I mean it's certainly your prerogative to do so. The UDC, however, which we have adopted, does recommend and have contained in it 110 percent as the minimum. So, I guess that's all I would say to that. Hoaglun: Madam Mayor? De Weerd: Mr. Hoaglun. Meridian City Council June 28, 2011 Page 8 of 32 Hoaglun: Tom, what were those four again? It was storm water, reclaimed water, sewer and -- Barry: And water. Hoaglun: And water. Okay. Barry: Right. De Weerd: Okay. Any questions for Mr. Barry? Bird: I have none. Rountree: Madam Mayor, I -- just thinking of the concept of having it broken out by categories and you have the formula for those four. I assume we can develop formulas for others. Would it be better and more clear in the ordinance to just state, as opposed to a percentage, that the percentage will be established by Council resolution and that the resolution establishes 125 percent for those four -- in three years it might need to be 130 percent, as opposed to going through an ordinance change, just like we do with fees. Barry: Sure. Rountree: To just be -- you have run the formula, it's now more or less -- you know, it could go either way. Probably won't, but it could. Barry: Yeah. Rountree: Likewise, do that for the other categories that we establish and I -- I don't know, Bill, is that easier to administer and handle that way, as opposed to having to go through an ordinance change every time and -- Nary: Madam Mayor, Members of the Council, I don't anticipate it probably changing very often, so I don't -- it's doable either way. Rountree: Okay. Nary: Certainly it easier if we find with more data that the ordinance needs to change and -- or the amounts need to be changed and there is an easier method to do it. So, certainly it can be done. I mean we haven't changed it for as long as I can remember, so we probably won't change it very much. But it's certainly doable. Rountree: Okay. Zaremba: Madam Mayor? Meridian City Council June 28, 2011 Page 9 of 32 De Weerd: Mr. Zaremba. Zaremba: Probably a question for Mr. Nary or anybody else that remembers. About every six months we re -approve park fees as -- are we doing that as a resolution? That's not an ordinance change, is it? Nary: Madam Mayor, Members of the Council, Council Member Zaremba, you're correct, if we do it by resolution -- Zaremba: Okay. Well, to follow up, I think I can support the idea that the ordinance word should be established by resolution of the Council and that the -- and that the resolution that goes with that would be a chart that lists those four items at 125 percent and a list or just a category that says all else 110 percent. Demonstratable and doable? Nary: Uh-huh. Zaremba: I could support that idea. De Weerd: Okay. Anything else that -- this is a continued public hearing, so I would open this up to any additional public comment. Okay. Thank you. Okay. I do have a person who has signed up. Amanda Schaus. If you would -- signed up against. If you will, please, come forward. Thank you, Amanda, for being here. If you will, please, state your name and address for the record. Schaus: Amanda Schaus. General Council for Brighton Corporation. 12601 West Explorer Drive, Suite 200, Boise, Idaho. De Weerd: Thank you. Schaus: Thank you. Madam Mayor, Members of the Council, it's my pleasure to be here today. Mr. Turnbull wished he could be here, but he's out of town again. It is summertime. De Weerd: Sorry, your time's already up. We were just trying to save him money while he was out of town. Schaus: Okay. De Weerd: Please continue. I'm sorry. Schaus: We would like to recognize the staff's hard work on this ordinance and all of the resources that they have consulted. We are here today, though, to request a remand to staff or a continuance to discuss a few of the issues that have come up with regard to the development community that we don't really feel have been adequately vetted at this point. We are concerned about some of the unintended consequences. I Meridian City Council June 28, 2011 Page 10 of 32 know there is a few documents in the record that lodge concerns from the development community. For us this is a -- we consider this a major policy shift and it's complicated, as -- as I'm sure you're all aware, to try to get a grasp on some of the issues involved. We are trying to avoid a funnel into a certain point of view and we want a little bit more time to be able to evaluate some of the city's resources and information that they have provided -- provided to you and provided to us. In our discussions with staff it's our understanding that there is no particular rush to pass this ordinance and we think it's appropriate to spend a little more time exploring some of our concerns. Four -- I will categorize them in kind of four major points. One is whether or not the scope of the ordinance as it's written is appropriate. At this point due to problems with two -- two developments necessitate this type of ordinance and this type of answer or is it a sledge hammer being used to -- to take care of an ant? We would like to know a little bit more about what problems specifically have been caused -- obviously, we are familiar with one of the developments, I'm not familiar with the other one, and what type of issues those were and whether or not this actually really addresses that -- those issues for those two projects. We did have a conversation with the city of Boise engineer, which was interesting, and before this ordinance was even mentioned he just said they have not had problems with -- with warranty work and warranties and so that it's -- warranty bonds are not even on their agenda at this point to -- to introduce or to administer. I don't know if it's the City of Meridian's bad luck or what the cause is, but it's something that we want to explore a little bit more. And also I note that the ordinance was written to -- to affect all public infrastructure and it's -- my understanding is that -- well, mainly the issues have been with sewer and water improvements. My second -- our second area is whether or not the cited jurisdictions that the staff is using are actually persuasive. Are these jurisdictions that promote economic and -- economic development, are they friendly, is it a place like Portland where most developers cringe when they think about developing in Portland. I know the city's worked hard to promote economic development and we just want to take a look at what type of jurisdictions are providing these bonds and what type of bonds are they, are they for public infrastructure or private infrastructure? Third, an issue that we have is whether or not it's appropriate for a developer to be responsible for warranty work. We have heard that the developer is responsible for all of the project and we certainly have a management component, but when you actually breakdown the process, who is most involved in the actual improvements? There is a licensed engineer who comes up with the plan, the city reviews and approves the plan, the contractors build and do the plan -- do the work and the city inspects the work and, then, they own the work. The developer is really not involved that much, except to hire a contractor and to make sure that they get -- that they get paid and if it really makes sense in the back end, once that's done, to still require a developer to come back in and be a part of a contractor's warranty and their performance under that. And, additionally, on that point I think our understanding is that contractors have a better relationship with bonding companies and developers. They are in the process -- they are in the business of regularly providing these warranties and providing bonds and that's not something that developers are familiar with. We don't have that relationship with the bonding companies that the contractors do. The fourth area that I'd like to cover generally that we still have some concerns with are whether or not a contractor to provide a warranty bond specifically is a reasonable request for Meridian City Council June 28, 2011 Page 11 of 32 accommodation in this ordinance and flexibility by the city. It's our understanding and our belief that it can be done. I think the staff's -- at first it couldn't be done, but now maybe it can be done and it's not recommended, that's just an issue that we want to explore just a little bit more. If it's something that is in the ordinance and it's not -- we can't find contractors who are able to provide the bond, then, it won't happen. But at this point we are just asking for some flexibility with these new requirements to be able to -- if we have the ability to require a contractor to -- to provide the warranty bond to be able to do that. Our view is that the city is really in no worse position, the -- they have a warranty, they have warranty provisions in force, and they have the bond to back it up. It will encourage the use of more bondable -- it actually benefits the city, because it encourages the use of more bondable qualified contractors, because only very good contractors with a good relationship with their bonding companies would be able to provide such a bond and it's on a case-by-case basis. For us -- it's better for developers, because it places the responsibility with who produced the product, the responsibility to warranty work and correction with -- with the contractor and it really -- possibly contractors can get a better rate for their bonds than a developer can due to that relationship. So, that's an economic benefit. I know there is a lot of management concerns that the staff has raised that we would like to also address. I have discussed that with Mr. Nary a little bit in that I think a lot of those concerns can be addressed in the development agreement. There still remains having a contractual agreement with the developer. We are not proposing that we -- that we abdicate any sort of responsibility to see the prospect through, it's merely just who -- who can provide the bonds. We are open to having requirements to manage the warranty work in a development agreement if it becomes necessary, so the city is also protected in that way and still gets all of the benefits of the bond. And, then, of course, there is always the ultimate issue of being able to get a building permit if the city is not happy with the way the warranty work is going. It still affects the developer and the developer is not going to step back and say, oh, well. It just provides us a little bit of flexibility in that we can require, hopefully, a contractor to provide that bond for their own work and we don't have to step in when we haven't been involved in the process and do it -- do it for them. Another issue that I have been aware of with the city is the phased development issue and a possibility of issues between phases. That's going to be an issue either way. I mean I -- I would have a hard time -- we would have a hard time coming up with a project in which a developer is able to provide a uniform bond for an entire project in all phases up front. A lot of times, depending on the economic climate a project can change, the infrastructure changes, usually do development in phases. So, there will be more than one bond involved either way, regardless of whether a developer provides it or a contractor provides it. And, again, we are just asking for the option, whether or not the market bears it or able to do it will depend on what good contractors we can get and what qualified contractors we can get to provide that. In closing, we believe there is some substantive issues that we need to further address. I understand staff feels like that they have been there, done that, but we still have some -- some information that we are getting in from our -- our contacts and our resources and we'd like to provide a better, more balanced representation of the developer in the process. The surety companies they have, they deal a lot with their contractors and we want to explore more of a development oriented balance to some of these agreements that we have and the Meridian City Council June 28, 2011 Page 12 of 32 substantive issues -- no need to expedite as far as I know and we have been -- there is no urgency. All we are asking for is a little more time to make sure we are heard and that our contractual obligation and development agreement may be explored a little bit further to address some of the staffs concerns. We think it's a major policy change and we want to make sure there is a full exploration for us and for the city to make sure there is no unintended consequences of these new requirements that we have on our development community and so we think a remand or deferral is appropriate in this case and would be greatly appreciated. Thank you. De Weerd: Thank you. Council, any questions? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Excuse me. Amanda? Schaus: Yes. Bird: Can you think of anytime that a developer bond -- you bring up a very good point. A lot of your fee on bond is -- is the experience of bonding and I can't think -- I'm just thinking about it, but I haven't even thought of that before. Is there anytime that -- that you can think of when a developer has to bond unless this is passed? Schaus: No. And it's a new animal for us. When Mr. Turnbull asked me to research this, I don't -- we didn't have a relationship with a bonding company. I called Tom Bowser, who I know has been involved in the project. I called our insurance company. We are just not -- we are just not familiar with the process at all and we don't have the relationship and we don't get the rates and it's not something that we feel like we should be -- we should be involved in, except for the management in the development agreement, but I mean as far as actually providing the bond to the city, I think that we -- the contractor provided the product and provides the warranty and it makes sense for them to provide the bond, because they have that relationship. Zaremba: Madam Mayor? De Weerd: Mr. Zaremba. Zaremba: As I understand the bond discussion, that is adding one more choice to choices that are already there. There are other choices, like a letter of credit or other kinds of surety that have not been in our ordinance before and this isn't restricting those choices, it's adding one more choice to it and I think the discussion that we have had -- some of it in response to the point that you bring up, because we have been told that that is an issue for you and I appreciate your studying it thoroughly, but one of the issues is that we only have the relationship with a developer. We don't have a relationship with contractors that the developer has hired and administering a third -party Meridian City Council June 28, 2011 Page 13 of 32 relationship has a great number of pitfalls. The one that I could see that it might have for you is that if, in fact, the city does create a relationship with a contractor that's going to work on your site, because of our requirements in that relationship you may have to put it out to bid and take the lowest bidder and I would see that as being problematic for you. Schaus: To elaborate on that a little bit, I haven't been familiar with that -- Zaremba: Any contractor that we develop a relationship with has to be because of a bidding process -- Schaus: Uh-huh. Zaremba: -- and, then, we are restricted to who we can choose out of those bids -- Schaus: What we are suggesting -- Zaremba: -- for our own projects and I suspect that rule might apply if we get involved in somebody else's projects. Schaus: And that's another issue that I think has been alluded to, but I'm not -- Mr. Nary, did you want to -- Nary: Madam Mayor? De Weerd: Yes. Nary: Madam Mayor, Members of the Council, Council Member Zaremba, I think -- I think that problem goes away, because that would only be an issue on the performance side and we have already gotten a legal opinion from our ICRMP counsel that we can't even get a bond -- we can't -- we can't get involved and be a part of the bond from a -- from the contractor in regards to performance. So, that's where I think where you're talking about using the lowest bidder would come into play if we were going to be involved in the performance side. We have to get the bond from the developer for the performance, because they are the owner of the project until it's complete. So, that issue I don't think is a concern on the warranty side, because it's already -- it's complete. So, I don't think that's a problem. But, again, the developer has to get a bond for performance. All we are asking and all we are talking about is a bond for the warranty. So, I agree with Mrs. Schaus that they currently maybe don't have a relationship with a bonding company to get a bond, but they are going to have to get the performance bond. So, I don't see that as that significant an issue. They are already going to have to do it anyway. We cannot get a bond from a contractor for performance. We have to get it from the developer. But you're correct, it's only an alternative. They can use cash, letter of credit, instead for the warranty piece. I hope that answers your question. Meridian City Council June 28, 2011 Page 14 of 32 Stewart: Madam Mayor? Zaremba: Thank you. Schaus: Council Member Zaremba -- may I speak, too? Zaremba: Sure. Schaus: I -- what we typically do for performance is we do letters of credit, so that's why we don't have the relationship with a bonding company. This would allow us to continue to do that, we could still provide the surety for performance through a letter of credit and, then, what we would propose is upon the completion of the work and the contractor gets paid and when the city accepts the improvements, that's when the warranty, by that letter of acceptance, that's when the warranty provisions would kick in and when -- that's at the point at which the bond -- you have agreed up front to do that, but that's at the point in which the bond -- the contractor would be able to get a bond directly for the city after the acceptance of the improvements and the warranty. Stewart: Madam Mayor? De Weerd: Yes. Stewart: Madam Mayor, Members of the Council, I just want to make sure that it's clear that in both the performance side and on the warranty side bonds are not required, they are one form of surety that is allowable. So, both on the performance, as well as on the warranty, they can bond, they can do a letter of credit or cash equivalent. So, developers would not be required to develop a relationship with a bonding company to provide the warranty surety. De Weerd: Thank you, Warren, for that clarification. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: That's very true, but letters of credit and cash tie up their cash, so they are -- what we -- we are doing them a favor by allowing bonding now, because bonding don't tie up that much cash and especially in these times I don't know too many developers that got a lot of cash flow. So, my question to you if -- Madam Mayor? De Weerd: Yes. Bird: In your -- in the letter from David he said he had talked to Morton and Company. Schaus: Yes. Meridian City Council June 28, 2011 Page 15 of 32 Bird: And I believe they probably are the largest bonding -- write the most bonds in this valley by far. Did -- what was their answer, if you talked to them, on two years? Schaus: On whether or not it's available? Bird: Getting a bond for two years, whether it's you or the contractor or who? Schaus: I believe it's available for an additional charge. For -- I would imagine it would be for either the contractor or the developer. That, obviously, increases the cost. Bird: Yeah, that -- well, I got the same answer out of mine, I just wondered what -- what you had got out of Morton. Okay. Thank you. De Weerd: Any further questions from Council? Rountree: I have none. De Weerd: Okay Schaus: If I may add one more comment, Madam Mayor? I do also want to point out that Morton did provide to us -- and I have not yet had a chance to provide it to staff, but they did provide us with an actual -- a copy of an agreement from the city of Anchorage where they allowed the -- a contractor -- there were provisions in the development agreement for a contractor to provide the warranty bond. I have not had a chance to see if that was ever requested or how that worked out, but I do -- I do have one agreement so far that shows that it can be done and at least has been permitted in the past in a development. Bird: Madam Mayor, that brings up one more question De Weerd: Mr. Bird. Bird: You know. And you're legal. We have got very good legal here. But I want your opinion. If you're -- if I'm the developer and I hire this contractor to put in my infrastructure and I -- the city is requesting the warranty bond and stuff goes to them, but I'm the one paying him until it's done, until the city takes it, how do you protect yourself as a developer? Do you have -- is the city -- as I understand in bonds this can't happen. Is that just an additional rider for the city or an additional rider for the developer? Which I understand you can't do that with a bond. Schaus: As far as protection for a developer? Bird: Yeah. Meridian City Council June 28, 2011 Page 16 of 32 Schaus: The -- our -- we would rely on our contract with the contractor and we haven't completely vetted out what all we would have in there, probably, to deal with this, but they would be required us to perform your warranty work as required by the city. Bird: But wait a minute. If the city is holding the bond, you hire this contractor, he gets 70 percent done and you paid him 70 percent and he goes belly up and the work falls part, what's protecting you? The city's protected, but you're not, because the city hasn't bought the project yet. Schaus: Well, in a performance construction scenario usually there is retainage and you have to make sure that you retain enough until the work -- until the work is complete. Bird: But your retainage is either five or ten percent Schaus: Uh-huh. Bird: You can hold ten. We can only hold five. But -- and that isn't going to -- that isn't going to pick up if he's done a lousy job because he's going broke, because he's working and he's just -- trying to get cash, that isn't going to cover it. What's covering the developer? Do you know what -- do you see where I'm coming from? Schaus: I do. I do. Bird: I'm not being very clear, I understand, but -- Schaus: Well -- so, generally speaking, my understanding -- and I certainly don't have the depth of construction knowledge that Mr. Turnbull does, so we may ask for follow up from him to make sure this is accurate, but my understanding is that we would -- we would make progress payments for work done and they would need to make -- there would be inspections up to a point and if we manage it well they don't get paid until the actual work is in the ground and we pay them and at the end if there is an issue we have our contract and potentially additional security, but I'm not sure what -- what exactly it would require at that point. You want me to have Mr. Turnbull follow up with you on that? Bird: No. No. I know the answer. I just -- I just personally want to protect our payers, our taxpayers and also want to protect the developer that is -- that is our bread and butter and if they tell me that you can't get a bond with an additional insured, one of us has got to be left out. You see what I mean? Now, if it's insurance -- if I'm giving you my insurance policy, I just -- be on as an additional insured, but I was told you can't do this with a bond and I -- my bond guy that I talked to about bonds I forgot to ask him on this, so I just wondered if somebody else -- Stephanie back there, she can probably tell us. Meridian City Council June 28, 2011 Page 17 of 32 Schaus: I'm sure -- I'm sure she could. Another -- I'm not that familiar with insurance and maybe she can clarify this, but I do know that there is a completed operations insurance coverage, but, I don't know, that may be something that might apply to this -- to that scenario, but I think we might need to leave it to the experts. Bird: Okay. Thank you very much. Schaus: Thank you. Zaremba: Madam Mayor? De Weerd: Mr. Zaremba. Zaremba: This may be the same question that Councilman Bird is asking, but can a bond or a letter of credit have beneficiaries? Schaus: I think that's probably a question for Mrs. Barnes as well. She -- I know that there is a -- a dual obligee concept and I'm not sure what that's about. I mean this all comes back to the issue of we are still trying to work through this and we just want to make sure that it's not an undue economic burden on development and that we have as many options as we can to -- to operate in these economic times and the ultimate structure of it, like I said, I would like to further investigate maybe what the city of Anchorage has done and some other jurisdictions to see if we can come up with a solution that protects the city as well. Bird: I'm done. I asked enough stupid ones. De Weerd: Okay. Anything further from Council? Thank you. Schaus: Thank you very much for the opportunity. De Weerd: Thank you. Freckleton: Madam Mayor? De Weerd: Like where did that voice come from. Yes, Bruce. Freckleton: Madam Mayor, Members of the Council, I just wanted to point out today we did receive a letter from W.H. Moore Company. It should be in your packets in your record. Bird: We got it. Freckleton: Had some comments regarding their supporting the idea of bonds. So, just wanted to point that out and make sure you did have that and had an opportunity to see it. Meridian City Council June 28, 2011 Page 18 of 32 De Weerd: Yes, we did. Thank you. Additional testimony? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: I'd like to ask Stephanie if she can answer that, if you -- if you can do to a bond like you do to your liability and comp -- and insurance and all that, workmen's comp and everything, if you can just have an additionally insured on a bond. Because I forgot to ask my agent when I talked to him. Barnes: Mayor and Council, Stephanie Barnes, All American Insurance, Meridian. You can have a dual obligee. That is something the bonding does allow for. Again, that was something that -- I wanted to kind of go back to something I kind of missed telling you the last time when we started this about seven months ago and they asked me all these questions, of course, because we discovered it really wasn't done much in Idaho or really hasn't been done. Had to do a lot of investigation. So, I contacted bond brokers who are kind of like myself, independent agents that work with multiple companies. So, I contacted bond brokers in New York, Arizona, locally here in Boise. I was the one that got ahold of Tom Bowser and brought him in, because Insco Dico was so familiar with subdivision bonds and we found out that subdivision bonding is not new. I mean this is something they do all over, it's just not in Idaho yet. So, it's something that we are kind of behind the times on. But that was one thing that they mentioned to me that they have discovered in the past it creates all kinds of legal -- legal problems and I think it's something Bill looked into as well and it's not recommended. So, everything that I have given to you is not just from my experience, but what I have obtained through all of these different resources, the underwriters, agents and companies. So, I just want to let you have that background, so it's not just coming from me. I have been bonding for 16 years and worked for one of the other largest bonding agencies in the valley, Post Insurance, for years as a bonding agent. So, you know, it's something contractors, yes, they definitely have a relationship with the bonding companies. That is also something developers can build exactly the same, they provide the same information regarding their financial background, their experience, their workloads, banking relationship, bank letters, and they can build those same relationships and get bonds specific to what their industry is just like the contractors do. As far as the protection for the developer, a lot of their bonding companies will suggest that the contractor bond back to them if they feel that there is a concern with that contractor, if they, you have, have been in business 40 years, their financials are great, they haven't -- you know, they have made it through the economy no problems, they may say, yeah, you don't need to worry about it, this guy's great, you know. But a lot of times they will come back and say we are seeing they are dropping in their financials and we would suggest that you, then, in turn, get a bond to yourself. Bird: I'm sure there is some of the developers out there that keep their own buildings and stuff that insure through insurance companies, so that their bonding is nothing. The Meridian City Council June 28, 2011 Page 19 of 32 bonding just is thrown in because they insure all their buildings and everything, the developers. A lot of that is thrown in. Barnes: Not typically, actually, because usually the companies that handle the surety are different underlying companies and -- Bird: Same agent. You usually go through the same agent. Barnes: Yes. You would typically go through the same agent. That's correct. Bird: Thank you very much, Stephanie. Barnes: No problem, Mr. Bird. Anything else? De Weerd: While Stephanie is up here any further questions from Council? Thank you. Council, any further information needed or staff? Information needed to be provided? Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: I have a comment. I know this is something that staffs really been working hard on and stuff, but right -- I -- I don't know if we -- I think the suggestion might -- to go back and see if we can't get with the developers and get this thing a little better, I -- I know W.H. Moore, Van Auker, all them and they -- the reason they like it is because we added bonds to it. They basically say that, because where there is credit and cash, tie up cash. They like the UDC change, because I -- I haven't heard anybody really complain about the two year length or the 25 percent -- 125. But I'm really concerned about the developers and private businesses, but I'm also very concerned about our rate payers being a rate payer and a taxpayer. I -- I think we got to be able to sit down -- I know we have. I know you have had meetings -- and, Tom, I appreciate the paper, the hard copy give us of the history and everything. But I'm for one right now that I would like to see us go back, maybe invite these guys back in. BCA -- you went to BCA. And let's see if we can't work out some detail and bring in some bonding companies. I mean, you know, Stephanie can bring in an expert at bonding, you know, or something like that to answer some real good questions and take a look at what these other states -- how they are doing and stuff, because I guess we don't have a track record in Idaho. And I'm not scared of being the first in line, but I do want to do it right and I want to be fair to the taxpayers, rate payers, and the developers or the contractors. I don't care what you call it. That's my two cents worth. De Weerd: Mr. Barry. Barry: Madam Mayor, I don't know if you want me to a -- as the applicant for the city to make closing remarks or just respond to some of the questions and issues that have been raised and comments of the evening, so I will ask you what your pleasure is. Meridian City Council June 28, 2011 Page 20 of 32 De Weerd: I think certainly a response is -- is good. That might elicit some further questions, but -- Barry: Great. Thank you. Glad to do it. Mr. Bird, the suggestion that you have made is -- I appreciate very much, but I do want you to know that that work has been done and we have, again, worked 20 meetings internally on this issue. We brought four bonding experts to the meetings. We have had meetings with the developers on multiple occasions. We have had private meetings with specific developers as well. Exchanged numerous e-mails. Had numerous phone calls with many developers. Have also talked with counsel for ICRMP. We have also gotten information from -- from the International Risk Management Agency. All of that work has been done and it's a ten month project, as you know. The developers were brought in in December and given our proposal. That has been discussed and discussed and discussed since December. I believe that -- and it's difficult for me to say this, because I think the Council all know my desire in trying to achieve a win-win and I will go virtually to the ends of the earth to try to find a win-win and I'm sad to report that in some -- in at least one developer's eyes we haven't achieved the win-win and I'm sorry for that. But we are bound by the state Constitution. We are bound by fiscal policy. We are bond by fiduciary responsibility we have to our rate payers and our taxpayers and I was asked to take the time, develop a process, get the input to develop what is the best recommendation for the rate payers and taxpayers. We expanded that to include what would be least burdensome for development and that's what we believe we have provided for you tonight. This proposal that has been discussed is about options. There is no requirement ever to get a bond with the city. There are a lot of jurisdictions out there that will require a bond and a bond only. There is no letter of credit. There is no cash. There is none of that. There are other jurisdictions like we were and still are, which don't allow bonds. These are all options and we feel like we have brought more options to the table than we have had previously. There were a number of comments that I wanted to respond to that Amanda had mentioned, which I thought were good comments. One of them is regarding the scope of the ordinance. I'll just walk you down these really quick. She asked the question do two problems warrant this ordinance and our answer is absolutely and the two problems we have identified were by looking at a number of projects in the last 18 months. So, in an 18 month period of time we found two major problems. The culmination of the dollar figure the city is going to have to pay out and has already paid out is around 200,000 dollars. I think that's sufficient for us to require a change in what we do. Additionally, would this ordinance have really addressed those two problems and the answer is unequivocally, yes, it would have. We would have had a two year warranty, we would have had a bond in place, and when that project was found to be deficient we would have had in that particular case that was mentioned the financial resources, without the burden of the taxpayer or the rate payer to take care of that problem. So, absolutely it would have been solved. Also are the benchmarking jurisdictions the correct jurisdictions? We did not mask, frame, selectively omit any jurisdictions. We looked at jurisdictions that were adjacent to us with regard to states. Twenty-five of them between 10,000 and 200,000 population. If you look at your list it's in your list of exhibits. There are jurisdictions all over the place. Salt Lake City. Meridian City Council June 28, 2011 Page 21 of 32 Redmond, Washington. Bellevue, Washington. These -- Bend, Oregon. These are cities that have a similar development focus as we do and respect their developing communities as well. So, wanted to comment on that. Also, is the developer really best responsible for the warranty and, obviously, they are. State constitution doesn't allow for the developer in the case of performance, which includes warranty, to allow the city to contract with the contractor on that. The development agreement is with the city. The contract is with the city and developer. There are the other jurisdictions, all the other insurance representatives, bond representatives, counsel representatives -- and I'm talking legal counsel representatives -- have advised against it. It's been done all over the country. It's not currently popular here in Idaho, that is true, but we are behind the times. It's not that we are re -inventing the wheel here, we are adopting what are best management practices all around the country. Additionally, we have been told that a developer -- and I would agree that some developers may not walk away from a project if there is a problem relating to their contractor's work, that there would be the kind of professionalism and ethical approach that many developers would take in fulfilling their contract's obligations if the contractor failed that. I would agree, we have very very good developers. The developer who is concerned about this issue I would agree also is very a good developer. However, we cannot selectively choose which developer we are going to trust and which one we can't. We have to be fair across the board with all developers. And, additionally, we also are going to be vulnerable in the case of warranty for the issuance of certificates of occupancy, as well as building permits in event that relationship deteriorates and 1 have provided you three pages of information about the challenges associated with that. Lastly, there has been a request to remand this back to staff and to spend more time on this and as I have outlined to you before we have spent ten months on this and since December -- what is that? Five months of it, six months of it has been with the developing community. We feel that we have vetted every idea, every concept, and given this our best effort and if this Council so desires to remand this back to staff, we will continue to do that. But I will tell you from where I sit -- and I believe the staff would tell you the same thing -- and the bond agents that we have had at the table would tell you the same thing -- the suggestion that's being brought to you tonight by this particular developer is not one that's been advised by anyone we have talked to and we have talked to a dozen or so professionals beyond the scope or so of our -- of our warranty meetings. So, I don't know if Mr. Nary has anything to add about that, but, honestly, if -- I mean we would be happy to continue to talk with folks about it, but, quite frankly, this is the recommendation where we have landed after the ten months of work and doing just the work that Mr. Bird has described. So, again, the bond is an option. It's not a requirement. Just assure you of some kind of form of the requirement. So, I'll pause there. I don't know if staff has any comment or anything else to add. Freckleton: Madam Mayor? De Weerd: Yes, Bruce. Freckleton: I would just like to add -- and I stated this before on the record, but in my 19 years with the city this particular proposal has -- has received the greatest depth of Meridian City Council June 28, 2011 Page 22 of 32 effort of anything that I have ever been involved with. You know, we have brought in -- we have brought in numerous representatives, you know, 32 meetings now -- 33 meetings now in regards to this. It has -- it has been -- I won't say exhaustive process, but it has been a very in depth, very well thought out, very thorough process that we have gone through. I will just leave it at that. Stewart: Madam Mayor? De Weerd: I'm sorry. Warren. Yes. Stewart: That's okay. Madam Mayor, Members of the Council, I think it's also -- it would be fair to say that we are in no particular hurry in some sense, but I will say this: We have on a consistent basis new projects coming into the city all the time and the longer we wait to protect ourselves against warranty issues the more projects enter the queue that potentially could cause us a problem. So, although on the one hand you can say, you know, we had these two issues and maybe we are not under a lot of pressure, I wouldn't want to give the impression that there isn't benefit in doing it sooner rather than later. Certainly there is a benefit to protecting ourselves on projects that are going through the queue now. De Weerd: Thank you. Bird: Madam Mayor? De Weerd: Mr. Bird. Bird: Tom, I just got one question. Under Industrial Specialists, I know Stephanie writes bonds -- or gets bonds. Brenda Smith from Payne Financial and John Ritchie from Payne Financial, are they -- do they -- are they a bonding company or do they write bonds or -- Barry: As I answer that question I'm going to turn behind my shoulder to make sure that I'm not incorrect, but I believe, yes, they are in the bonding field and they are -- one of them I believe is an underwriter; is that right? Okay. Bird: I can't hear her. De Weerd: Well, neither can the record. Barry: Yeah. Mrs. Barnes said that they are both agents of bond companies. Bird: Okay. They are agents, they are not bonds -- bonding people. Barry: But they have consulted with underwriters; is that correct? Meridian City Council June 28, 2011 Page 23 of 32 Bird: Okay. They are like Mrs. Barnes. And, then, tell us what 1 -n -s -c -o and D -i -c -o stand for, Tom. Barry: I'm sorry, could you point me to -- Bird: What do those letters stand for? Barry: Where are you at here, Mr. Bird? Bird: I am at Industry Specialists. I -n -s -c -o -- Barry: Oh. Insco Dico. Bird: Yeah. Barry: That's the actual company name. Insco Dico. Bird: And they are an insurance underwriter, too? Barry: Bonding. Yeah. I think she probably should come on up. De Weerd: Yes, please. Barnes: Stephanie Barnes. All American Insurance, Meridian. Yes, Insco Dico is a bonding company that is one of the biggest subdivision bonding companies that there is and Tom Bowser is the underwriter for the local office in Boise. Bird: And they are out of Morton? Barnes: No. Morton is an agency, just like All American Insurance is and Morton accesses Tom Bowser as an underwriter on behalf of Insco Dico, the company. Bird: They are like Allied -- Barnes: Correct. Correct. And I have also talked to underwriters at Hartford Bonding, Travelers Casualty and Surety Bonding, Surety Placement Services, which is another subdivision -- Bird: These are actually the underwriters? Or the bonding? Barnes: Tom Bowser is an underwriter. That's why we brought him in. Bird: And this -- this -- oh, Tom. Okay. He's an underwriter. Barnes: Yes. Correct. And I believe that's who Morton contacted as well. Meridian City Council June 28, 2011 Page 24 of 32 Bird: Yeah. Okay. Thank you very much, Stephanie. Barnes: Sure. Bird: I won't bring you up anymore. Zaremba: Madam Mayor? De Weerd: Mr. Zaremba. Zaremba: I may be expressing an alternate view here, I guess, and to some extent Warren expressed what I'm thinking. It was some time ago -- as a matter of fact, way back when I was liaison to the Public Works Department that Tom mentioned this subject to me one day and my immediate reaction was, oh, you're absolutely right, we need to do this tomorrow. Now, I can't tell you which day we are going to take on too much risk, but this has gone through a pretty serious process of vetting it. Every day we have put it off we do take on another risk possibly or -- and we don't know which one of those is the one that's going to be harmful to us. I personally feel that this has been studied enough that we need to at least get this protection in place and, then, if we need to keep looking at it after that we can keep looking at it. But I think we need to take the other tact of putting this in place. Now, I agree with perhaps putting this off one more week to change the language to -- as approved by resolution of the Council and making that chart for our resolution if we could do that next week. We have a small agenda next week. But this week is a day short for everybody that's working, because there is a holiday in it. But I feel a sense of urgency. I feel a sense of rightness about this and I feel a sense of urgency about this and I'm satisfied that the proper thought has been put into it. It doesn't mean we can't review it after it's an ordinance, but I think -- I personally feel we need to come down on the side of lets get this in and, then, tweak it after that if we need to. De Weerd: Mr. Nary, did you have a comment? Nary: Madam Mayor, Members of the Council, I guess I -- what you have, I think, in front of you, just so the parts are clear, I think we have -- I think we have resolved your concern in regards to the UDC amendment and the resolution process and separating it out. So, the ordinance only addresses public works infrastructure. So, you don't have to concern yourself about the 110 versus 125. The performance surety portion of the ordinance I think is -- we either -- we either do it or we don't. I don't think there is any way to satisfy -- I was re -reading the letters from the opposition folks that have provided that and they either just don't like it, because there is an additional cost, and they don't want to provide the bond. Again, the bond's an option. We don't have any alternative if they want to provide a bond that it has to be from them, because the state Constitution doesn't allow us to do a dual obligee bond. So, you either would concur to have a bond and it would have to be from the developer or you don't provide that as an option. On the warranty -- on the warranty side. Really, the issue in front of you is who provides it. And as Tom stated, nobody I could find could find in the best interest of the city that Meridian City Council June 28, 2011 Page 25 of 32 someone else other than the developer should provide it. And one of the simplest examples I can see is the one that was relevant to why we began this process. When you have contractors provide bonds -- and counsel for ICRMP had a very similar experience in another city than ours -- when you have a contractor provide a bond you still -- if everything works out great it's not a problem. But when things don't work out great, which occasionally happens, you have to execute on that bond. When you have a contractor provide it what would happen -- what we were concerned with in the city's protection and what had happened in other cities is you have a dispute with a contractor over what is the root cause of the problem. Was it caused by their construction? Was it caused by somebody else? In the project we had in our city that was exactly what the contractor claimed. They had installed the infrastructure properly and somebody else later had caused it to fail, whether it was the person paving the street, whether it's the person that was building houses, whether they were dumping debris into the manhole -- but it wasn't them. They built it right, somebody else messed it up. If they are the bond person we are going to be stuck arguing with them over who was the root cause of this. At the same time the developer is not getting a building permit and I guarantee he was going to be calling all of you. Even if it's in their development agreement, even if it's clear up front, I guarantee he's going to be squawking that he can't control any of this, right, because he's not involved, he's not the person on the bond, he's not in a relationship with the city on this particular point, yet he can't get the ability to develop his property, because this failure happened and nobody could figure out who is at fault for it. The reason we felt -- and why ICRMP and every -- both bonding people, insurance people, and lawyers all say the developer is in the best position is because he is in the best position to make it happen. He has all the -- he has all the stake in the game to make this occur. He has the bond. He's the bonding person with his company to provide it. If there is a dispute over cause, again, from the city's perspective we don't care, we are saying, developer, our bond's with you, fix it or no building permits. Rather than we are going to go over here to the contractor and spend staff's time, money, either managing it or staffs time and money legally fighting it, just to figure out who is at fault and whether we could secure that and at that particular point, honestly, Council, the 20 percent is probably going to get eaten up. They are in the best position to do that and I will -- you know, all of these folks that have provided opposition are very good developers and, honestly, if everybody operated like most of these folks that are providing you comment, we probably don't need this. But we have to deal with the people that don't operate as well as these people that have commented to you. We have to deal with everybody and in the best interest of the city that's what we brought to you and that's what everybody has advised us in the best interest of the city. Is it in the best interest or is it -- is it a win-win for everybody? Does it satisfy some of the folks that are in opposition? I know it doesn't. But all I can tell you at the end of the day is in our belief it's the best protection for the city going forward. If we have to execute it, one person, we don't have to argue whether it was your road builder that wrecked your sewer, it wasn't your builders that wrecked your -- that damaged your infrastructure, it doesn't make any difference. It's your project, it's your bond, you take care of it if you want another building permit and I -- I'm assured -- in fact, one of the things Nancy Strickland, ICRMP counsel said, is whenever I have held the line on this they have always been able to seem to get it. So, all I can tell you is we have been through it. I Meridian City Council June 28, 2011 Page 26 of 32 don't think when re -reading what their concerns are, we can certainly meet with them again, but I honestly don't think we can satisfy those concerns in just meeting with them again. I think -- I think realistically we are at a point that we are only talking about the warranty, we are only talking about the length of it, and we are really only talking about who provides it. And in our opinion I don't think any of those things will change by -- by continuing to vet it. I think we have vetted it. I just don't think there is a different answer that's going to be satisfactory. Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: I just have one final question and it really hasn't got a thing to do with this, but, Mr. Nary, what do we put in the development agreement, which is a contractual document between us and the developer, that goes with the property? Because some of these issues come about because the properties exchange hands. Is there language in the development agreement or is there a standard clause that we put in the development agreement that would get to this issue as well? Because to me that's a lot of the problem we have had are because of the exchanges of ownerships and we have been very successful recently in some litigation with respect to actions we have taken that were included in the development agreement and upheld by -- by the courts, all the way to the Supreme Court. So, is there some standard language -- it might be onerous -- that could be added to a development agreement as an -- as yet another option? And the developer could agree to -- I accept that language in the development agreement or be much better to get a letter of credit or to do the surety bonding. But it seems to me if we can get it contractually there that would be the best. Nary: Madam Mayor, Members of the Council, Council Member Rountree, actually, that is part of our project. That's just a piece that hasn't come up yet, because you remember -- if you notice at the tail end of this ordinance there is not -- an effective date hasn't been put in -- Rountree: Right. Nary: -- because we recognize there was some -- a few other parts that need to be implemented, as well as we need to give time to the development community to be prepared for this. So, we did discuss putting this in development agreements. Part of the thought behind an ordinance is we do have developments that come through that are not related to a development agreement. We can only do them at annexation and we do them at -- at rezone. So, we do have some parcels -- not very many, but we think going forward in the future we may have more, because, again, we have -- we don't have a lot of undeveloped land outside the city limits anymore, as we used to. But we did think of that. And we did intend to put that into development agreements as well. I mean I think buttoning it up in both the development agreement and an ordinance certainly makes it crystal clear. What we didn't want is I guess the -- what sometimes happens is that every development agreement that you're going to get -- and we don't Meridian City Council June 28, 2011 Page 27 of 32 have it in ordinance, we haven't made a policy as a city, but we are just going to do it piece by piece -- you're going to have a number of people standing up in front of you saying we don't need it for this one. We are good. It's going to be fine. Don't worry about it. And I think putting the Council or future Councils on that decision point on every single project, with no other policy statements behind it, really puts, again, more of the horns of a dilemma on the Council -- Rountree: I agree. Nary: -- that's unreasonable. Rountree: I agree. De Weerd: Anything, Pete? Friedman: Madam Mayor, Council, no. I was just -- I had one of those thoughts going through my head, but it didn't quite reach its conclusion. I think Mr. Nary answered the question for me. Rountree: Yeah. De Weerd: Yes. Other comments, questions from Council? Rountree: Madam Mayor, I -- at this point I read the testimony -- testimony or comments, I guess, if you will, from a number of folks and there are a number of folks in the business that have said that they welcome the opportunity to have this option and they are not upset or openly disturbed by this action being proposed by the city. We have a couple that are. I believe that the comments that we have received in writing from them have been addressed by staff and staff's recommendation is that some of their thoughts and issues have not proven out in their analysis and in their investigation through the bonding underwriters, the bonding agents, other communities, our insurer, et cetera. So, I would suggest that since this is just a comment period, that we calendar this ordinance for its first official reading next week and continue the public hearing on ZOA until after the third reading of this ordinance and, then, take the appropriate action on either approving or not approving the ordinance and depending on that action, then, act on the UDC amendment. Zaremba: Madam Mayor? De Weerd: Mr. Zaremba. Zaremba: I like that suggestion. Are you still including in that suggestion that -- the change to having the percentage set by resolution? Rountree: The change to the UDC to set -- establish the rates by resolution. Meridian City Council June 28, 2011 Page 28 of 32 Zaremba: If that was a motion I would second it. De Weerd: I don't know if it was a motion. It wasn't in the form of one. Rountree: It wasn't in the form of a motion, but open for discussion and -- De Weerd: I guess I just have -- again, it seems odd that the -- that one of the developers who has experienced the -- I mean the -- the risk that you're trying to avoid is the one that is opposed to this or questioning it and I think that Amanda has brought up economic development and we have done a risk analysis, have you not, in what the potential cost is and what the offset is, both to our rate payers or potential job creation. What would be the cost to -- and if you took economic development is -- what is that additional cost? I know Mr. Nary says it does come with additional cost. Is it only in the bonds that you get the additional cost or is it the 125 percent and two year time frame? What is the cost to that? Barry: Is that a question, Madam Mayor? De Weerd: That is a question. Barry: Okay. We did not -- De Weerd: I did say what is the cost to that. Barry: You did, but I didn't -- De Weerd: Okay. Barry: -- know if it was rhetorical or not. De Weerd: I thought maybe I did, but -- Barry: Yeah. Yeah. So, we did do an analysis on the actual cost of the bond, particularly for the warranty side. All that stuff is in your packet and we said, essentially, it's about 20 to 30 dollars on average per lot that the developer is going to have to carry the bond cost for. So, a hundred lot plat, to get 500,000 thousand dollars worth of improvements covered at the 20 percent rate, just as what was described in your -- in your packets, would cost the developer about 2,500 dollars to get that kind of coverage and get the city two years of protection. Now, on the other side what's the cost to the city? I could tell you the cost to the city currently is 114,000 dollars, with one of these projects in the last 18 months that our rate payers are having to pay for -- have already paid for I should say -- directly resulting from a scenario that we were trying to put this proposal in to avoid. I can also tell you that it appears that we will be spending another 90,000 dollars to correct a similar problem on the second project that we found, again, within the 18 month period. So, this particular program, again, I believe shifts the responsibility, the risk, and the liability from our existing rate payers and citizens back Meridian City Council June 28, 2011 Page 29 of 32 onto the developing community where I believe it belongs under a growth pays for growth scenario. Now, I cannot get to you what the actual cost is for, you know, having to go to 125 percent versus 110. On a bond it's virtually inconsequential, because a bond is a percentage of the amount that's being requested and that percentage, as has been discussed, is about 1.75 percent. So, 1.75 percent of 110 percent or 1.75 percent of 125 percent is virtually inconsequential, regardless of the number in the scheme of things. And on the warranty, again, I just described the example where we know what our cost is, we know what we have -- what we vetted through the insurance providers and the bond agents and I can tell you it doesn't balance right now. The risk is -- without this proposal the risk is entirely on the city's shoulders. So, I don't know if that adequately answers your question or not. De Weerd: Okay. Now, what is the cost for commercial? Barry: Commercial bonding? De Weerd: Uh-huh. Barry: Well, again, we are talking about -- there is lots of different types of bonds again, you know, there is contractor bonds -- De Weerd: No. I mean commercial projects. You mentioned the residential per lot. Barry: It's pretty much the same bonding rates. So, infrastructure is infrastructure, whether it has a commercial end use or it has a residential end use. The installation of water and sewer, storm water, and reclaimed water infrastructure is the same, to provide services to that particular property. De Weerd: Okay. Okay. Anything further? Hoaglun: Well, Madam Mayor, I just wanted to comment that, you know, we have got two major goals -- I know the Mayor and this Council supported all along and that's number one, keeping business costs and regulations as low and as reasonable as possible. I mean that's something we aspire to. We want our businesses to thrive. We want them to go out there and break ground and create jobs and do those things. Our other goal is protecting taxpayers or in this case the rate payers from increasing rates, keeping them as low as possible and what we have here is a collision of two very worthy goals and we have got to figure -- figure that out. One of the options, if developers don't like this and as, Mayor, I think you alluded to this -- is if we are going to protect the rate payers from having to pay, then, if the project goes bankrupt the next developer that comes in, they are going to have to pay that to fix and I don't think they are going to be willing to do that. It wasn't their fault, they are coming in rescuing a project. I'm sure the bank give them a good deal. I'm sure the bank still wants the money and they are going to walk into a situation where I'm going to have to pay how much to fix this? And I think that bond gives them some cover to have a project they can walk into knowing that that infrastructure is ready to go or in the process of being Meridian City Council June 28, 2011 Page 30 of 32 ready to go if repairs are being made and they will not have to bear that cost. But at the same time the rate payers don't have to bear that cost and should not have to bear that cost. We did that for banks a few years back and -- on Wall Street and people were not happy about that. When somebody takes a risk and they fail, what happens? Who pays? And they spoke loud and clear that it shouldn't be -- shouldn't be tax payers or in this case rate payers. So, I like Councilman Rountree's suggestion to -- to move this forward and go through the reading calendars, make that change on that and -- and, then, vote on it at the appropriate time. Rountree: Madam Mayor? De Weerd: Mr. Rountree. Rountree: I move that we move Item 7-B to its first reading for July 5th, 2011, and continue the public hearing on ZOA 11-002 until the third reading of the ordinance number 11-1485, at which point this the city would take action, depending on the action it takes on the pending ordinance. Zaremba: Second. De Weerd: I have a motion and a second. Would you like to repeat that motion? Rountree: One more time. De Weerd: No. Mr. Nary. Nary: Madam Mayor, Council Member Rountree, would you want to make Item A July 19th? That would be the third week? Rountree: If that's at the point of the third reading, yes. Nary: Yes. De Weerd: Okay. Change noted in the motion. Anything further? Discussion? This is a continuation and asked to bring this back for first reading. Do I need a voice vote on that? Nary: Voice vote is enough. De Weerd: Okay. Rountree: Madam Mayor, to clarify my second motion making that my motion also included that the language in the UDC include the resolution table for rates. Nary: Yes. Meridian City Council June 28, 2011 Page 31 of 32 Zaremba: Second agrees. De Weerd: Okay. All those in favor say aye. All ayes. Motion carried. MOTION CARRIED: ALL AYES. De Weerd: Thank you. And thank you for being here this evening. Stephanie, you have been very diligent. Item 8: Future Meeting Topics De Weerd: Council, Item No. 8 is future meeting topics. Does anyone have anything for future City Council meetings? Rountree: I have nothing. De Weerd: Okay. I will let you know today Erin from HR -- and I -- I call her Erin Light. I got it from the Miller -- because she -- she is the blond Erin. So, Erin Light and I went to Communities In Motion and picked up an award that the City of Meridian received, platinum level, for May In Motion 2011 as a transportation champion. Erin has been our champion -- kind of that point person behind alternative transportation program in the city and has been at least the energy behind that and we had some participation this year. There is -- the wellness committee is -- is having discussion on other things that the city can be doing and we are very proud to -- to be representatives of the city to pick this up. So, I wanted you to know that. Rountree: Very nice and thank you. Zaremba: Uh-huh. Rountree: Thanks to Erin. Nary: Thank you, Mayor. De Weerd: Our thanks to HR and for what you're doing there. Zaremba: Congratulations. Yes. Hoaglun: Yes. De Weerd: And the wellness committee, please. Nary: Thank you. De Weerd: If there is no further business, Council, I would entertain a motion to adjourn. Meridian City Council June 28, 2011 Page 32 of 32 Rountree: Madam Mayor, I move -- Hoaglun: Second. De Weerd: All those in favor say aye. All ayes. Motion carries. MOTION CARRIED: ALL AYES. De Weerd: We are adjourned. MEETING ADJOURNED AT 8:27 P.M. (AUDIO RECORDING ON FILE OF THESE PROCEEDINGS) MAYOR TA De WEERD DATE APPROMEP ATTEST: JAYI�EE L ' JN dl �a' Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 5A PROJECT NUMBER: ITEM TITLE: Approve Minutes of June 7, 2011 City Council Special Meeting MEETING NOTES APpyo-j cr� Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: Approve Minutes of June 7, 2011 City Council Regular Meeting MEETING NOTES y�J eA Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 5C PROJECT NUMBER: ITEM TITLE: Approve Minutes of June 14, 2011 City Council Special Meeting MEETING NOTES N` yl) lj Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 5D PROJECT NUMBER: ITEM TITLE: Approve Minutes of June 14, 2011 City Council Regular Meeting MEETING NOTES -pyjyJ�e A Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: Final Order for Southridge Subdivision Gravel Mining by Idaho Sand & Gravel Company Located South of W. Overland Road; Southwest of the Ridenbaugh Canal and East of S. Ten Mile Road Within Future Development Areas of Southridge Subdivision Request: City Council Review of the Director's Decision to Deny the Conditional Use Permit Modification to Allow Audible Back Up Alarms on Construction Equipment Used on the Site MEETING NOTES Community Item/Presentations Presenter Contact Info./Notes In VYD eOr File, CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: Water and Sewer Easement for Olson Avenue Road Extension Including New Water and Sewer Infrastructure; Mains, Hydrants, and other Appurtenances MEETING NOTES Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS IDAC-MIEN DIAN-- HO TO: Mayor Tammy de Weerd Members of the City Council FROM: Steve O'Brien DATE: 6116111 SUBJECT: Water and Sewer Easement for Olson Avenue Road Extension I. RECOMMENDED ACTION A. Move to: Mayor Tammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba 1. Approve an easement for new water and sewer infrastructure including mains, hydrants, and other appurtenances. The aforementioned items are falling outside a new ROW. The ROW is being dedicated to ACHD by the developer. See the attached illustration... 2. Authorize the Mayor to sign the easement. II. DEPARTMENT CONTACT PERSONS Supervisor Supervisor Tom Barry, Director of Public Works 489-0372 Bruce Freckleton, Development Services Manager 489-0362 Scott Steckline, Land Development Supervisor 489-0369 Steve O'Brien, Development Analyst II 489-0371 Page I of 2 Supervisor -vices Manager C � � ((IE R, L DAN*-- HO OL SON ANO BU 5N SV 601 VIS 10N 61 IV IeA If a T Plc zees smrtae a aaK xsrNL rEE CtUNdlt PW YrM[MN 91a aN0. 5b1 Q1 rll(fl 1 NWAL 11 1/4'.Y aLM aer YanNl 11 1/1' eQa d4 \ ANO BUSH /IS 10N /Y vwr a• WE (YexalO) a• aarz VAWCFLa11.Q Ya 4 6 Y bean NLtOI WAN P n r NIX NE9NIN1 sm. pylC Ma ox 9141 0. Y 11 r%1' KW lYN Y 11 1/1' e9e1W 6� l4 (YJ•Y.MLG) V N YL woko NJj as Ir arc o.. lata N Y• 1aW QF RT Nuo1.W a10. aa¢ WI9 aM 9NLrS Page 2 of 2 Mayor Tammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba U N PLA rTEO Nsua a Aw uK((rwH ) r U R .' '..a va" MAN ME lllaaAYt M NYLNUN sl0. NNO. 1q ON tNttra NsrxL a' " (NAa) LV n la V 6�RM WEER WINSPR YrzWINI SN. U N PLA rrEO I ADA COUNTY RECORDER Chrlelopher 0. Rich AMOUNT .00 I BOISE IDAHO 06130111 11:36 AM DEPUTY Use Bait RECORDED—REQUESTOF Meridian Clly 111052693 SANITARY SEWER AND WATER MAIN EASEMENT THIS INDENTURE, made thiMyWay of June, 2011 between Ronald W. Van Auker the parties of the first part, and hereinafter called the Grantors, and the City of Meridian, Ada County, Idaho, the party of the second part, and hereinafter called the Grantee; WITNESSETH: WHEREAS, the Grantors desire to provide a sanitary sewer and water main right-of-way across the premises and property hereinafter particularly bounded and described; and WHEREAS, the sanitary sewer and water is to be provided for through underground pipelines to be constructed by others; and WHEREAS, it will be necessary to maintain and service said pipelines from time to time by the Grantee; NOW, THEREFORE, in consideration of the benefits to be received by the Grantors, and other good and valuable consideration, the Grantors do hereby give, grant and convey unto the Grantee the right-of-way for an easement for the operation and maintenance of sanitary sewer and water mains over and across the following described property: (SEYATTACHED EXHIBITS A and E) The easement hereby granted is for the purpose of construction and operation of sanitary sewer and water mains and their allied facilities, together with their maintenance, repair and replacement at the convenience of the Grantee, with the free right of access to such facilities at any and all times. TO HAVE AND TO HOLD, the said easement and right-of-way unto the said Grantee, it's successors and assigns forever. IT IS EXPRESSLY UNDERSTOOD AND AGREED, by and between the parties hereto, that after making repairs or performing other maintenance, Grantee shall restore the area of the easement and adjacent property to that existent prior to undertaking such repairs and maintenance. However, Grantee shall not be responsible for repairing, replacing or restoring anything placed within the area described in this easement that was placed there in violation of this easement. THE GRANTORS hereby covenant and agree that they will not place or allow to be placed any permanent structures, trees, brush, or perennial shrubs or flowers within the area described for this easement, which would interfere with the use of said easement, for the purposes stated herein. Sanitary Sewer and Water Main Easement easement olsen ave sewer and water Pagel of 3 THE GRANTORS herebyocovenant and agree with the Grantee that should any part of the right-of-way and easement hereby granted shall become part of, or lie within the boundaries of any public street, then, to such extent, such right-of-way and easement hereby granted which lies within such boundary thereof or which is a part thereof, shall cease and become null and void and of no further effect and shall be completely relinquished. THE GRANTORS do hereby covenant with the Grantee that they are lawfully seized and possessed of the aforementioned and described tract of land, and that they have a good and lawful right to convey said easement, and that they will warrant and forever defend the title and quiet possession thereof against the lawful claims of all persons whomsoever. IN WITNESS WHEREOF, the said parties of the first part have hereunto subscribed their signatures the day and year first herein above written. W. Van Auker, 3084 E. Lanark Street, Meridian, ID 83642 Address STATE OF IDAHO ) ss: County of ADA ) On this J � �' day of June, 2Q1 1, before me, the undersigned, a Notary Public in and for said State, personally appeared Ronald W. Van Auker known or identified to me to be the person that executed the foregoing instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereto set my hand and affixed my official seal the day and year in this certificate first written. a Sanitary Sewer and Water Main Easement sewer and water Page 2 of 3 easement olsen ave GRANTEE: CTI'1' OF MERIDIAN Tammy de ILKod, /Mayor Attest Ky/Jaycee L. Holman, City Clerk Approved By City Council On: STATE OF IDAHO, ) : ss. County of Ada ) On this_21__day of \) vine, , 20 tl , before me, the undersigned, a Notary Public in and for said State, personally appeared Tammy de Weerd and Jaycee L. Holman, known to me to be the Mayor and City Clerk, respectively, of the City of Meridian, Idaho, and who executed the within instrument, and acknowledged to me that the City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year firstrgypye written. Residing at:_ Commission 11 Sanitary Sewer and Water Main Easement easement olsen ave sewer and water Page 3 of 3 EXHIBIT A T P4NMU thence )`t 5 j °5�' 19t `N for a distanoeot 20:29'feet,' tlrence 1 tlR°04'24' E for A distance -Of 15.OR fee ;, tene S8°54'56Fa;c9�raa of 16.00 feet;' the>7ce N 51°5`7`1.9" W foT'A Oistanc'e of 72U9,feel.; titer N OQ°04'. 4a' B foi a 000 Of 322.07 feet,; thehro"' W For a'distance':sf 34,97 feet; 4u°u�rwusterar_-r ,:1Rr90ctWLSON ST2g48WOCUME14TSlOisgns&weasc,OQc doc tl IQ-1.ti'_o m EMIT3IT A Aence,S gkn2 59"'E along d SOU- boundary of said;0laon;an t-Bwh.lnat triat Park Subdivision, fora distance. of 11.46;: (hence 22°24'56" E fora distance -of 54.1,5 feet;' 4hericei+Y`1$<'l0" distanceof3497;feet-, f�tenceleaviilg'sail5outh_bounc�afyS 1$°04'1:1.""�for,adistaric�za('49�9lfect thence S fi7°35'04°' W f6i g dist ani e` of 14,.44 feet; thrice=Nf22p24,'S`6" W foto distanoeof32:8$;Feet thence ioaving said South.lroundaty S`'18°04'_l 1,'jl--Voir a 414ia ,,ofA9n9i>'e t;. -- ihonCe� 22° 18' 10" E for a d�sta[ice d(' 111.3 fee(;:: t3,LUttN1VlILN(3 OF PARCEL 4;; thence &00604124",W for 4 distance:of 20.00 feet , thenYie iV 89°.555`3(" W for a_distance;oi' 10 Poet; 8he.>ace N 00°04''2A,"`) ior, a distance of 20,6 feet . *0160S 89" SSWW? E for a distance of PARCEL4 containing~200 SF of 10ndi P! p�redby; Todd,.R. Weite P.L.S. z-nPrgjccts\OLSON ST 244MOCUMENTS\Olsons&weas6;dop,49c MD Page Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 50 PROJECT NUMBER: ITEM TITLE: Award of Bid and Contract to Power Plus for Main Street Corridor Street Light Conversions for a Not -to -Exceed Amount of $112,931.00 MEETING NOTES R-(7vll\le t Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Memo To: Jaycee L. Holman, City Clerk, From: Keith Watts, Purchasing Manager CC: Tim Curns Date: 6/22/2011 Re: June 28 City Council Meeting Agenda Item The Purchasing Department respectfully requests that the following item be placed on the June 28, 2011 City Council Consent Agenda for Council's consideration. Approval of Award of Bid and Contract for "MAIN STREET CORRIDOR STREET LIGHT CONVERSIONS" to Power Plus Inc. and authorize the Mayor to sign the contract for a Not -To -Exceed amount of $112,931.00. This award is the result of Formal IFB #PW -11-6007-10188 issued May 23rd and opened June 9, 2011. Three bids were received. This project is part of the EECGB grant funding. Recommended Council Action: Approval of Award of Bid and Contract and Authorize the Mayor to sign the Contract for the Not -To -Exceed amount of the Low Bid Award of $112,931.00. Thank you for your consideration 0 Page 1 AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES MAIN STREET CORRIDOR STREET LIGHT CONVERSIONS PROJECT #6007-10188 THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made this X day of JUNE, 2011, and entered into by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "CITY', 33 East Broadway Avenue, Meridian, Idaho 83642, and POWER PLUS. INC., hereinafter referred to as "CONTRACTOR", whose business address is 25 Hartman St., Boise, ID 83704 and whose Public Works Contractor License # is C-14995. INTRODUCTION Whereas, the City has a need for services involving MAIN STREET CORRIDOR STREET LIGHT CONVERSIONS; and WHEREAS, the Contractor is specially trained, experienced and competent to perform and has agreed to provide such services; NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties agree as follows: TERMS AND CONDITIONS 1. Scope of Work: 1.1 CONTRACTOR shall perform and furnish to the City upon execution of this Agreement and receipt of the City's written notice to proceed, all services and work, and comply in all respects, as specified in the document titled "Scope of Work" a copy of which is attached hereto as Attachment "A" and incorporated herein by this reference, together with any amendments that may be agreed to in writing by the parties. 1.2 All documents, drawings and written work product prepared or produced by the Contractor under this Agreement, including without limitation electronic data files, are the property of the Contractor; provided, however, the City shall have the right to reproduce, publish and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to Main Street Corridor Street Light Conversions page 1 of 13 Project 6007-10188 authorize others to do so. If any such work is copyrightable, the Contractor may copyright the same, except that, as to any work which is copyrighted by the Contractor, the City reserves a royalty -free, non-exclusive, and irrevocable license to reproduce, publish and use such work, or any part thereof, and to authorize others to do so. 1.3 The Contractor shall provide services and work under this Agreement consistent with the requirements and standards established by applicable federal, state and city laws, ordinances, regulations and resolutions. The Contractor represents and warrants that it will perform its work in accordance with generally accepted industry standards and practices for the profession or professions that are used in performance of this Agreement and that are in effect at the time of performance of this Agreement. Except for that representation and any representations made or contained in any proposal submitted by the Contractor and any reports or opinions prepared or issued as part of the work performed by the Contractor under this Agreement, Contractor makes no other warranties, either express or implied, as part of this Agreement. 1.4 Services and work provided by the Contractor at the City's request under this Agreement will be performed in a timely manner in accordance with a Schedule of Work, which the parties hereto shall agree to. The Schedule of Work may be revised from time to time upon mutual written consent of the parties. 2. Consideration 2.1 The Contractor shall be compensated on a Lump Sum basis as provided in Attachment B 'Payment Schedule" attached hereto and by reference made a part hereof for the Not -To -Exceed amount of $112,931.00. 2.2 The Contractor shall provide the City with a monthly statement, as the work warrants, of fees earned and costs incurred for services provided during the billing period, which the City will pay within 30 days of receipt of a correct invoice and approval by the City. The City will not withhold any Federal or State income taxes or Social Security Tax from any payment made by City to Contractor under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of Contractor. Main Street Corridor Street Light Conversions page 2 of 13 Project 6007-10188 2.3 This project is funded by an Energy Efficiency and Conservation Block Grant. EECBG Guidelines require that invoices submitted for payment be separated into individual line items for labor and individual line items for equipment and supplies. 2.4 Except as expressly provided in this Agreement, Contractor shall not be entitled to receive from the City any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement including, but not limited to, meals, lodging, transportation, drawings, renderings or mockups. Specifically, Contractor shall not be entitled by virtue of this Agreement to consideration in the form of overtime, health insurance benefits, retirement benefits, paid holidays or other paid leaves of absence of any type or kind whatsoever. 3. Term: 3.1 This agreement shall become effective upon execution by both parties, and shall expire upon (a) completion of the agreed upon work. 3.2 Should Contractor default in the performance of this Agreement or materially breach any of its provisions, City, at City's option, may terminate this Agreement by giving written notification to Contractor. 3.3 Should City fail to pay Contractor all or any part of the compensation set forth in Attachment B of this Agreement on the date due, Contractor, at the Contractor's option, may terminate this Agreement if the failure is not remedied by the City within thirty (30) days from the date payment is due. 3.4 This Agreement shall terminate automatically on the occurrence of any of the following events: a) Bankruptcy of insolvency of either party; b) Sale of Contractor's business; or c) Death of Contractor 3.5 Time for executing contract: Upon receipt of a Notice to Proceed, the Contractor shall have a total of 60 (sixty) calendar days to complete the work as described herein. Contractor has ten (10) calendar days from Notice To Proceed to notify City of any delays due to product availability. Contractor shall be liable to the City for any delay beyond this time period in the amount of $300.00 (three hundred dollars) per calendar day. Such payment shall be construed to be liquidated damages by the Contractor in lieu of any claim or damage because such delay and not be construed as a penalty. Main Street Corridor Street Light Conversions page 3 of 13 Project 6007-10188 4. Termination: 4.1 If, through any cause, CONTRACTOR, its officers, employees, or agents fails to fulfill in a timely and proper manner its obligations under this Agreement, violates any of the covenants, agreements, or stipulations of this Agreement, falsifies any record or document required to be prepared under this agreement, engages in fraud, dishonesty, or any other act of misconduct in the performance of this contract, or if the City Council determines that termination of this Agreement is in the best interest of CITY, the CITY shall thereupon have the right to terminate this Agreement by giving written notice to CONTRACTOR of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. CONTRACTOR may terminate this agreement at any time by giving at least sixty (60) days notice to CITY. 4.2 In the event of any termination of this Agreement, all finished or unfinished documents, data, and reports prepared by CONTRACTOR under this Agreement shall, at the option of the CITY, become its property, and CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. 4.3 Notwithstanding the above, CONTRACTOR shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by CONTRACTOR, and the CITY may withhold any payments to CONTRACTOR for the purposes of set-off until such time as the exact amount of damages due the CITY from CONTRACTOR is determined. This provision shall survive the termination of this agreement and shall not relieve CONTRACTOR of its liability to the CITY for damages. 5. Independent Contractor: 5.1 In all matters pertaining to this agreement, CONTRACTOR shall be acting as an independent contractor, and neither CONTRACTOR nor any officer, employee or agent of CONTRACTOR will be deemed an employee of CITY. Except as expressly provided in Attachment A, Contractor has no authority or responsibility to exercise any rights or power vested in the City and therefore has no authority to bind or incur any obligation on behalf of the City. The selection and designation of the personnel of the CITY in the performance of this agreement shall be made by the CITY. Main Street Corridor Street Light Conversions page 4 of 13 Project 6007-10188 5.2 Contractor, its agents, officers, and employees are and at all times during the term of this Agreement shall represent and conduct themselves as independent contractors and not as employees of the City. 5.3 Contractor shall determine the method, details and means of performing the work and services to be provided by Contractor under this Agreement. Contractor shall be responsible to City only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of Contractor in fulfillment of this Agreement. If in the performance of this Agreement any third persons are employed by Contractor, such persons shall be entirely and exclusively underthe direction and supervision and control of the Contractor. 5.4 EECBG GRANT REQUIREMENTS This project is being funded by an Energy Efficiency and Conservation Block Grant. The Davis -Bacon Act applies to this project and it is the responsibility of the Contractor to comply in all aspects of the law. This Request for Proposal and resulting contract, will be subject to HUD - 4010 Federal Labor Standards Provisions attached hereto as "Attachment B" and made a part hereof. Paragraph 2 on page 2 of 5 of HUD -4010 states that the City may withhold payment to Contractor for failure to pay wages when due. Davis -Bacon requires wages to be paid not less often than once a week. All subcontractors and any lower tier subcontractors are subject to the same Davis -Bacon Wage requirements as the general contractor. The wage rate decision for the area incorporating the City of Meridian may be found at the following web address: http://www.apo. aov/davisbacon/I D. htm I HUD ACT — SECTION 3 All contracts and subcontracts that result from this proposal are subject to the following: A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent Main Street Corridor Street Light Conversions page 5 of 13 Project 6007-1 01 88 feasible, be directed to low- and very low-income persons, particularly persons who are recipients 6 HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers'representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination 6 this contract for default, and debarment or suspension from future HUD assisted contracts. G. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (fi) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this contract that are subject io the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). 6. Indemnification and Insurance: CONTRACTOR shall indemnify and save and hold harmless CITY from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses and other costs including litigation costs and attorney's fees, arising out of, resulting from, or in Main Street Corridor Street Light Conversions page 6 of 13 Project 6007-10188 connection with the performance of this Agreement by the CONTRACTOR, its servants, agents, officers, employees, guests, and business invitees, and not caused by or arising out of the tortious conduct of CITY or its employees. General Liability One Million Dollars ($1,000,000) per incident or occurrence, Automobile Liability Insurance One Million Dollars ($1,000,000) per incident or occurrence and Workers' Compensation Insurance, in the statutory limits as required by law.. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY; and if CITY becomes liable for an amount in excess of the insurance limits, herein provided, CONTRACTOR covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions, or judgments for damages or injury to persons or property and other costs, including litigation costs and attorneys' fees, arising out of, resulting from, or in connection with the performance of this Agreement by the Contractor or Contractor's officers, employs, agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property, including use of. CONTRACTOR shall provide CITY with a Certificate of Insurance, or other proof of insurance evidencing CONTRACTOR'S compliance with the requirements of this paragraph and file such proof of insurance with the CITY at least ten (10) days prior to the date Contractor begins performance of it's obligations under this Agreement. In the event the insurance minimums are changed, CONTRACTOR shall immediately submit proof of compliance with the changed limits. Evidence of all insurance shall be submitted to the City Purchasing Agent with a copy to Meridian City Accounting, 33 East Broadway Avenue, Meridian, Idaho 83642. 6.2 Any deductibles, self-insured retention, or named insureds must be declared in writing and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles, self-insured retentions or named insureds; or the Contractor shall provide a bond, cash or letter of credit guaranteeing payment of losses and related investigations, claim administration and defense expenses. 6.3 To the extent of the indemnity in this contract, Contractor's Insurance coverage shall be primary insurance regarding the City's elected officers, officials, employees and volunteers. Any insurance or self- insurance maintained by the City or the City's elected officers, officials, employees and volunteers shall be excess of the Contractor's insurance and Main Street Corridor Street Light Conversions page 7 of 13 Project 6007-10188 shall not contribute with Contractor's insurance except as to the extent of City's negligence. 6.4 The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 6.5 All insurance coverages for subcontractors shall be subject to all of the insurance and indemnity requirements stated herein. 6.6 The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's agents, representatives, employees or subcontractors. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Meridian Purchasing Agent 33 E. Broadway Avenue Meridian, Idaho 83642 208-888-4433 Power Plus, Inc Attn: Mark McKibben 25 Hartman St Boise, ID 83704 208-323-1506 Idaho Public Works License #: C-14995 Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. 8. 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 Main Street Corridor Street Light Conversions page 8 of 13 Project 6007-10188 attorneys' 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. 9. 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 party so failing to perform. 10. Assignment: It is expressly agreed and understood by the parties hereto, that CONTRACTOR shall not have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of CITY. 11. Discrimination Prohibited: In performing the Work required herein, CONTRACTOR shall not unlawfully discriminate in violation of any federal, state or local law, rule or regulation against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. 12. Reports and Information: 12.1 At such times and in such forms as the CITY may require, there shall be furnished to the CITY such statements, records, reports, data and information as the CITY may request pertaining to matters covered by this Agreement. 12.2 Contractor shall maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this or Agreement. This includes any handwriting; typewriting, printing, photo static, photographic and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. 13. Audits and Inspections: At any time during normal business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of CONTRACTOR'S records with respect to all matters covered by this Agreement. CONTRACTOR shall permit the CITY to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of Main Street Corridor Street Light Conversions page 9 of 13 Project 6007-10188 personnel, conditions of employment and other data relating to all matters covered by this Agreement. 14. Publication, Reproduction and Use of Material: No material produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country. The CITY shall have unrestricted authority to publish, disclose and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement. 15. Compliance with Laws: In performing the scope of work required hereunder, CONTRACTOR shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. 16. Changes: The CITY may, from time to time, request changes in the Scope of Work to be performed hereunder. Such changes, including any increase or decrease in the amount of CONTRACTOR'S compensation, which are mutually agreed upon by and between the CITY and CONTRACTOR, shall be incorporated in written amendments which shall be executed with the same formalities as this Agreement. 17. Construction and Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 18. Waiver of Default: Waiver of default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided above. 19. Advice of Attorney: Each party warrants and represents that in executing this Agreement. It has received independent legal advice from its attorney's or the opportunity to seek such advice. 20. Entire Agreement: This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. Main Street Corridor Street Light Conversions page 10 of 13 Project 6007-10188 21. Order of Precedence: The order or precedence shall be the contract agreement, the Invitation for Bid document, then the winning bidders submitted bid document. 22. Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of Meridian. 23. Approval Required: This Agreement shall not become effective or binding until approved by the City of Meridian. CITY OF MERIDIAN BY: TAM MY WEERD, MAYOR Dated: t Jun P_ 7R, aot I Approved by City POWER PLUS, INC l�I��dl G •�� BY: MARK MCKIBBEN Dated: T�z JAYCEE f IA T. CLf3 1 Approved as to Content '`v�<< ti Department Approval BY: KEITH WATT8'PURCHASING AGENT Dated: !�/ZZ�// Approved as to Form CITY ATTORNEY Main Street Corridor Street Light Conversions Project 6007-10188 BY: LJP%"1r14 @J: ^ TITLE: FMc-TNit-tR7 rlc- .WAWii r-8 2 Dated: C.A. -L-111 I page 11 of 13 Attachment A SCOPE OF WORK REFER TO INVITATION FOR BID PW -11-6007-10188 ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the Invitation for Bid Package # PW -11-6007-10188 dated 06-09-2011 by Mark McKibben, are by this reference made a part hereof. Main Street Corridor Street Light Conversions Project 6007-10188 page 12 of 13 Attachment B MILESTONE / PAYMENT SCHEDULE A. Total and complete compensation for this Agreement shall not exceed $112,931.00. TASK DESCRIPTION Unit Est Qty Unit Price AMOUN T Item 1 Retrofit Existing 250W Decorative Luminaire EA 24 $615.00 $14,760.00 with Induction Lamp Kit Item Retrofit Existing 150W Decorative Luminaire EA 28 $498.00 $13,944.00 2A with 85W Induction Lamp Kit Item 3 Retrofit Existing 150W Bollard Luminaire with EA 3 $498.00 $1494.00 55W Induction Lamp Kit Item 4 Replace Existing Globe Luminaire Set with EA 5 $1,299.00 $6495.00 New Sin le 85W Induction Luminaire Item 5 Replace Existing 400W Luminaire with New EA 41 $960.00 $39,360.00 LED Luminaire Item 6 Replace Existing 250W Intersection EA 32 $799.00 $25,568.00 Luminaire with New LED Luminaire Item 7 Replace Existing 250W Interchange EA 13 $870.00 $11,310.00 Luminaire with New LED Luminaire TOTAL CONTRACT PRICE 1 $112,931.00 Travel expenses will be paid at no more than the City of Meridian's Travel and Expense Reimbursement Policy. Main Street Corridor Street Light Conversions Project 6007-10188 page 13 of 13 Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 5H PROJECT NUMBER: ITEM TITLE: Task Order # 10002c for the Wastewater Treatment Plant Headworks Odor Control Design with Brown and Caldwell Under the Master Agreement Dated April 13, 2010 for a Not -To -Exceed Amount of $57,433.00 MEETING NOTES P-PpYov e -A Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS E IDIAN- Public D A H O Works Department TO: Mayor Tammy DeWeerd Members of the City Council FROM: Roxanne Holland, EIT DATE: June 20, 2011 Mayor Tammy de Weerd City Council Member$@ Keith Bird Brad Hoaglun Charles Rountree David Zoremba SUBJECT: TASK ORDER #10002c FOR THE WASTEWATER TREATMENT PLANT HEADWORKS ODOR CONTROL DESIGN WITH BROWN AND CALDWELL UNDER THE MASTER AGREEMENT DATED APRIL 13, 2010 FOR A NOT -TO -EXCEED AMOUNT OF $57,433.00. I. RECOMMENDED ACTION A. Move to: 1. Approve Task Order with Brown and Caldwell, the most qualified firm, to provide engineering services for Headworks Odor Control Design at the wastewater treatment plant (WWTP) in an amount not to exceed $57,433.00; and 2. Authorize the Mayor to sign and the City Clerk to attest the Task Order with Brown and Caldwell IL DEPARTMENT CONTACT PERSONS Roxanne Holland, Staff Engineer (Project Manager) 489-0347 Clint Dolsby, Asst. City Engineer 489-0341 Warren Stewart, PW Engineering Manager 489-0350 Tom Barry, Director of Public Works 489-0372 III. DESCRIPTION A. Background An odor assessment conducted at the WWTP in 2004 identified elevated odor levels at the headworks area and recommend mitigation to reduce off-site odors. In 2009 a Preliminary Engineering Report (PER) was completed. The report evaluated alternatives for controlling odors at the headworks, the grit effluent channel, and the primary clarifier splitter box. The recommendations for Page I of 3 reducing off-site odors include a building to enclose the headworks, covers over the screen channels and screw pumps, and treatment system using biofilters. B. Proposed Project The proposed project will provide design service for odor control using channel covers at the headworks, which includes the primary clarifiers, primary clarifier splitter box, the screening channels, and the grit removal facility. Building enclosures and odor treatment using biofilters will be implemented in a phased approach at a later date because of current budgetary constraints. C. Consultant Selection Brown and Caldwell is a highly knowledgeable consulting firm in wastewater facilities and has completed odor control mitigation for a number of cities across Idaho. The firm was chosen as a consultant for projects over $25,000 from a Request for Qualifications in February of 2010. IV. IMPACT A. Strategic Impact: This project is aligned with the Public Works objective of being opportunistic in planning for growth and infrastructure needs. B. Fiscal Impact: Project Costs Consultant Agreement Project Funding $57,433.00 W WTP Building Improvements (3510-92100) $57,433.00 Total Funding $57,433.00 V. ALTERNATIVES A. The City could defer the Odor Control Design. A deferment of the design could delay reduced odors at the treatment plant. VI. TIME CONSTRAINTS The approval of this task order allows Public Works to complete design during the current fiscal year and bid the project for construction beginning in Fiscal Year 2012. Page 2 of 3 VII. LIST OF ATTACHMENTS A. Task Order No. 10002c Department Approval: Date Page 3 of 3 �fI�i�w:1WIEN DAN�-= �.. PURCHASING AGENT 33 E. Broadway Ave, Meridian, ID 83642 Phone: (208) 489-0417 Fax: (208) 887-4813 TASK ORDER NO. 100020 Between CITY OF MERIDIAN AND BROWN AND CALDWELL This Task Order is issued by City and accepted by the Engineer pursuant to the mutual promises, covenant and conditions contained in the Master Agreement between the above mentioned parties dated April 13, 2010. Headworks Odor Control Design SCOPE OF SERVICES Introduction 54/051364.003 This project is a follow-on contract to the Preliminary Engineering Report completed by Brown and Caldwell and submitted to IDEQ in December of 2010. This scope is for design services to provide odor control for the primary clarifiers, primary clarifier splitter box, the screening channels, and the grit removal facility collectively called the headworks. Foul air ductwork, foul air treatment, building construction and associated electrical upgrades required due to the hazardous atmosphere will be deferred until a later date. Phase 100 - Project Management Provide management, direction, and coordination of all work associated with this scope, including schedules, budgets, technical quality, deliverables, and invoices. Communicate and coordinate with the City as necessary. Lead weekly design team meetings via telephone and travel as needed to coordinate design staff. Prepare monthly invoices, including, backup materials, and accompanying status reports. Update construction cost estimate at each design submittal. Provide quality control of all work produced. Deliverables • Meeting notes as needed • Updated cost estimate Assumptions • Background information provided by the City as needed Phase 200 - General Design The following drawings will be produced: • Cover sheet with index, location, and vicinity maps • General notes and abbreviations • Symbols, legends, and notes CSI Divisions 0 through 1 specifications will be produced. BC will provide senior level review of work products. Deliverables • 50 and 90 percent complete general drawings and specifications for City comment • 100 percent complete general drawings and specifications for IDEQ submittal Assumptions • None Phase 300 - Process Mechanical Design The following drawings will be produced: • General legend, symbols, index, abbreviations • Primary Clarifier Plan and sections • Primary Clarifier sections and details Primary Clarifier cover specifications produced. BC will provide senior level review of work products. Deliverables • 50 and 90 percent complete process mechanical drawings and specifications • 100 percent complete drawings and specifications for IDEQ submittal Assumptions • None Phase 400 - Structural Design The following drawings will be produced: • Structural general notes, special inspections, and specifications • Steel connections and aluminum covers typical details • Splitter Box Plan and details • Headworks Channel Covers Plan • Headworks Channel Covers sections and details • Grit Removal Channel Covers Plan • Grit Removal Channel Covers sections and details Structural calculations will be produced. Plans, sections, and details will be prepared for each area. CSI Divisions 3 through 7 specifications will be produced. BC will provide senior level review of work products. Deliverables • 50 and 90 percent complete drawings and specifications • 100 percent complete drawings and specifications for IDEQ submittal Assumptions • None TIME OF PERFORMANCE The attached MS Project chart shows the anticipated schedule of the project. COMPENSATION The following table provides a summary fee for the scope of services proposed in this task order. The fee estimate is based on the assumptions developed from our conversations with City staff. These assumptions are presented in the following section. Brown and Caldwell proposes conducting this work in accordance with the rate schedule attached to the master agreement dated April 13, 2010. Phase 100 - Project Management Fee $5,110 200 - General Design $1,665 300 - Process Mechanical Design - $12,340 400 - Structural Design $38,318 Total $67,433 ASSUMPTIONS The following assumptions were made in preparation of the scope of work and fee estimate: • The cost of this task order is $57,433, is on a time -and -materials, not -to -exceed basis, and the amount and will not be exceeded unless the scope of work changes and only upon prior written authorization by the City • Brown and Caldwell will rely on information provided by the City to prepare the technical documents Bid period services and services during construction are not included CITY OF MERIDIAN By: TAMMY de W TID, MAYOR Dated: �, Ln?, RL aot\ Approved by City Council: Attest: JA U6S•` ava Y F=HPC w, t,. BROWN AND CALDWELL Jeffrey S. YoWKW, Ph.D., P.G., Vice President Dated: GZSh l Approved as to Content Depart t Appro al / By: Ora By: KEITH WATTS, PUR HAST G AGENT Title: r—ni4�,Jdy-uzNc— Dated: i 3' iia v 1 1 Dated: Meridian City Council Meeting DATE: June 28. 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: Addendum (Exhibit C/Task Order #3) to Master Agreement for Professional Services with Access Idaho for Electronic Transactions and Access to PayPort Electronic Payments for All Departments MEETING NOTES YPPP-(DJ Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS EXHIBIT C TO MASTER AGREEMENT FOR PROFESSIONAL SERVICES TASK ORDER #3 FOR ELECTRONIC TRANSACTIONS AND ACCESS FOR PAYPORT ELECTRONIC PAYMENTS TO CITY OF MERIDIAN—ALL DEPARTMENTS This TASK ORDER #3 is made and entered into this 28th day of June, 2011, by and between the City of Meridian (hereinafter "City"), a municipal corporation organized under the laws of the State of Idaho, and Idaho Information Consortium, LLC, d.b.a. Access Idaho (hereinafter "Portal Manager"), a limited liability company organized under the laws of the State of Idaho. WHEREAS, on February 2, 2010, Portal Manager and City entered into a Master Agreement for Professional Services ("Master Agreement'), which, inter alfa, established the terms, conditions, and scope of services to be provided by Portal Manager; WHEREAS, on February 2, 2010, Portal Manager and City entered into Task Order #1, under which Portal Manager agreed to provide PayPort Over -the -Counter Services and PayPort Online Services to the Building and Development Services Division of the Public Works Department; WHEREAS, on June 7, 2011, Portal Manager and City entered into Task Order #2, under which Portal Manager agreed to provide Transaction Payment Engine Services, as accessed through the Accela program, to all Departments; WHEREAS, the purpose of this task order is to implement services provided by Portal Manager under the terms and conditions of the Master Agreement in the context of providing PayPort Over -the -Counter Services and PayPort Online Services to all Departments, not just to Building and Development Services; and WHEREAS, it is the intention of the Parties that this Task Order #3 supersede Task Order #1, but that Task Order #2 remain in effect; NOW, THEREFORE, in consideration of the mutual covenants of the parties, the Parties agree as follows: 1. Task: PayPort Access, all departments. Portal Manager will create a service for the City, in accordance with this Task Order, as follows: Portal Manager will provide PayPort Over -the -Counter Services and PayPort Online Services to all Departments. Portal Manager does not require electronic access to information contained in a City computer database maintained by the City or its agent. CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 1 OF 7 2. Definitions. As used herein, these terms shall have the following meaning: a. ACH Transaction: Automated Clearing House, a system of the U.S. Federal Reserve Bank, which provides electronic funds transfer (EFT) between banks. b. Card: credit cards branded as Visa, MasterCard, Discover, and American Express, as well as debit cards that display either the Visa or MasterCard logos. c. Devices: credit card swipe devices contemplated in this Task Order #3, as depicted in Attachment A hereto. d. E -check: online payment option by which Users enter their bank account and routing numbers. e. Payment System: the Internet -based payment online point of sale payment system hosted by Portal Manager. f. Portal Manager's Network: the network systems of the Portal Manager that host the Payment System. g. Statutory Fees: without limitation, fees assessed by statute, rule, court order or other governmental act and collected by the City from the User. l h. Transaction: the successful payment using a Card via the Payment System by a User, without regard to whether such Transaction is voided or charged -back by the Card issuer, or refunded by the City. i. Portal Administration Fee: fee charged for use of the Payment System to pay Statutory Fees. User: the person or entity that pays the Statutory Fees via the Payment System. 3. Over -the -Counter Equipment. For PayPort OTC, Portal Manager agrees to provide to City Devices at cost, plus shipping costs, for each City department/division in this agreement. City shall not pay or reimburse Portal Manager for sales tax. City shall reimburse Portal Manager for any Devices requested by City and provided by Portal Manager under this agreement. Portal Manager agrees to provide the following additional materials with each Device: • Full manufacturer's installation and user guide; • An assignment, in a form acceptable to City of all applicable warranties; and • Detailed instructions on how to reach the device manufacturer's technical support. The procurement by City of any Device is subject to, and must be done in accordance with, any applicable purchasing laws or rules. Any additional Devices provided to City by Portal Manager shall be subject to all of the terms and conditions of this Agreement, unless the parties otherwise agree in writing. Devices will be shipped within 15 business CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 2 OF 7 days from receipt of a written notice from City. City may purchase Devices independently of the Portal Manager. In such case, any such devices must meet the hardware requirements of the Portal Manager. 4. Internet -based applications. During the term of this Agreement, Portal Manager will provide City with access to the following Portal Manager Internet -based applications: a. Administrative Module. Portal Manager will provide City with access to administrative tools hosted on Portal Manager's server that can be used by City to define credit card services, set up cashiers, view transaction reports and initiate refunds. b. Cashier's Module. Portal Manager will provide City access to the tools that will permit City to enter Transaction and Card information manually. Card information may be automatically entered by "swiping" a Card through an installed Device, or manually entered using the cashier's module. 5. Technical su000rt. Portal Manager will provide City technical support for Service inquiries through a local number for the City. Portal Manager's technical support services are provided via telephone support. 6. Records and data. Portal Manager shall not sell, lease or otherwise transfer transaction ( records to any other entity than City or authorized representative. Portal Manager shall create and maintain documents and records relating to City transactions and such records shall be available for inspection; auditing and copying by City or other authorized representatives. 7. Collection, fees, and payment, a. Collection. The cost for each item posted to the application is set by the City. The City will not receive a bill from the Portal Manager for this service or any fees. The Portal Manager shall be entirely responsible for the assessment and collection of payments from Users. Any changes or amendments to the terms of this Task Order #3 must be documented and agreed to in writing by the parties hereto. b. Portal Administration Fee. For every credit/debit card transaction in which the Payment System is used, User shall pay, in addition to User's payment to the City, a non-refundable Portal Administration Fee equal to 3.00% of the amount of User's payment to the City plus $1.00, due at the time the transaction is performed. This Portal Administration Fee will be retained by Portal Manager as compensation for its services under this agreement. Example: For a $100 payment to City, User will be charged an additional Portal Administration Fee of $4.00, for a total of $104.00. For every E -check transaction—should the City choose to offer this online payment option for its Users—in which the Payment System is used, User shall pay, in CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 3 OF 7 addition to User's payment to the City, a non-refundable Portal Administration Fee of $2.50, due at the time the transaction is performed. This Portal Administration Fee will be retained by Portal Manager as compensation for its services under this agreement. The City understands that, unlike credit/debit card payments, E -check payments are not guaranteed funds; therefore the City shall be responsible for collecting such funds on unsuccessful payments due to, but not limited to, non - sufficient funds in a User's account, incorrect account and/or routing number entry by User, closed bank accounts, and stopped payments. Portal Manager reserves the right to charge City for the Portal Administration Fee and any additional fees associated with a voided or charged back Transaction, when charged against Portal Manager by the merchant bank (e.g., Visa, Mastercard). It is the intent of this provision that such right may be exercised by Portal Manager only when City exhibits a pattern of excessive voided or charged back Transactions. In addition, if City has already received the voided or charged back Statutory Fee from Portal Manager, City shall refund the full amount of such Statutory Fee to Portal Manager upon receipt of evidence that such Transaction was charged back or voided by User. c. Payment of Statutory Fees. Payments of the Statutory Fees (regardless of whether the Portal Manager has collected the amount from the applicable User) shall be made from the Portal via ACH Transaction directly to a numbered account furnished by City. In addition, a payment/deposit report shall be available online to City. The Portal Manager shall remit the portion of revenues constituting Statutory Fees to the appropriate City account, within 24 hours of when funds are received into Portal Manager's account. In the event of a disputed charge, a charge -back, voiding of a Transaction or a refund by City, Portal Manager will work with the City to resolve the dispute. d. Records and Finances. All Portal documents and records maintained by the Portal Manager relating to City records shall be available for inspection, auditing, and copying by the City or other authorized representatives. 8. City responsibilities. a. City is responsible for providing a PC with Internet connection and an attached printer. Such PC must have a web browser and an available USB port interface. b. City is responsible for providing information about, and a complete explanation of, the Portal Administration Fees to potential users. c. City is responsible for securing any required authorizations (including, without limitation, those required for compliance with any required statutes, rules or executive order) that are necessary to permit the adoption of the Services, the payment of Portal Administration Fees, and the other payments required for Services CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 4 OF 7 ( provided hereunder. Any such required authorizations shall be obtained prior to any Transactions being processed pursuant to this Agreement. d. Devices provided pursuant to this Agreement will be preprogrammed and ready for installation. City is responsible for installation of the Devices and any required accessory equipment and all required utilities. e. City shall provide to the Portal Manager written notification as to which City account(s) is/are to be used for the Statutory Fees. f. City will use due care in determining whether the User is authorized to use a Card to pay Statutory Fees. g. Security Measures. City shall take all necessary measures to protect the access codes provided to it by Portal Manager from unauthorized use or disclosure. 9. Warranties. a. Devices. Portal Manager represents that the Devices provided are compatible with and will function with the Portal Manager's Network and Payment System to process the POS transactions contemplated by this Agreement. Portal Manager does not guarantee mechanical operation of the Devices. Portal Manager will assign and transfer to City, in a form acceptable to City, all manufacturer warranties for the Devices. b. Connectivity. Portal Manager is not responsible for Service downtime due to interruptions in Internet connectivity, City network interruptions, interruptions caused by Card companies or issuing banks, or due to routine system maintenance. c. Funds availability. City understands that Portal Manager's Services do not constitute, and that Portal Manager is not providing, credit availability, history or authorization for use of the Card, but rather Portal Manager provides the Services with respect to accessing such credit services via the Internet. 10. Termination. Either party may terminate this Agreement at any time, without cause, upon thirty (30) days advance notice. In the event of such termination, Portal Manager shall transmit to City all Statutory Fees collected by Portal Manager which are due City, and City shall pay for Services up to the date of termination. City understands that upon termination, Portal Manager shall disconnect City's access to the Services, and Users will no longer be permitted to use the Payment System to make payment of Statutory Fees. 11. Access. Portal Manager shall be responsible for costs and expenses in maintaining the records created by City in its administrative interface and shall provide a record of transactions to City, including without limitation, the cost for purchasing or developing CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 5 OF 7 and maintaining all programs used to access the administrative interface. Computer programs used by the Portal Manager shall: a. Protect information from unauthorized access; b. Supply Transaction records to City on a timely basis in an accurate, understandable and logical format acceptable to City; C. Be tested by the Portal Manager, and prototype shall be provided for City review and approval before it is offered to City. If required by City, Portal Manager shall cause Portal to require City employees to signify online prior to being allowed access to records that they will comply with any restriction required by law on use of the records. City access agreement will be in the form of a use message displayed online, with a required positive response, to be captured in a log file, prior to City employee being permitted to further search or view the record. IN WITNESS WHEREOF, the parties have executed this Task Order #3 on the 28th day of June, 2011. IDAHO INFORMATION CONSO TIUM, dba ACCESS IDAHO: By: WVVT Walker, President CITY OF MERIDIAN: By: TammyeJ eerd, Mayor ATTEST: CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES or .Vx.t l eterk PAGE 6 OF 7 Attachment A: MAGTEK CENTURION SECURE CARD READER AUTHENTICATOR (SCRA) FEATURES $47.50 • Meets PCI DSS requirements • Unique, non - changeable device serial number • Triple DES encryption • DUKPT key management • Tokenization • Device & host authentication • Masked Data • USB powered (No external power supply required) • 6 -foot cable • Scans either direction • Includes USB interface • Red/green/amber status LED • Keyboard emulation • Part #21073062 • www.maptek.com • Questions? Call Access Idaho at 208- 332-0102. DIMENSIONS Height: 1.23 in (31,3 mm) Width: 1.28 in (32,5 mm) Length: 3.94 in (100 mm) Magtek Centurion Secure Card Reader CITY OF MERIDIAN/ACCESS IDAHO EXHIBIT C TO MASTER SERVICE LEVEL AGREEMENT FOR PROFESSIONAL SERVICES PAGE 7 OF 7 Meridian City Council Meeting DATE: June 28. 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: First Addendum to Agreement with Accela, Inc. for Professional Services for Implementation and Configuration of a City Wide Planning, Permitting, Licensing, and Code Enforcement System MEETING NOTES pevpnDJ-e-a Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS FIRST ADDENDUM to AGREEMENT FOR PROFESSIONAL SERVICES FOR IMPLEMENTATION AND CONFIGURATION OF A CITY WIDE PLANNING, PERMITTING, LICENSING AND CODE ENFORCEMENT SYSTEM This FIRST ADDENDUM to AGREEMENT FOR PROFESSIONAL SERVICES FOR IMPLEMENTATION AND CONFIGURATION OF A CITY WIDE PLANNING, PERMITTING, LICENSING AND CODE ENFORCEMENT SYSTEM ("First Addendum") is made and entered into this g_Z_ day of June, 2011 ("Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho (hereinafter "City"), and Accela, Inc., a corporation organized under the laws of the State of California (hereinafter "Consultant"). WHEREAS, on or about September 28, 2010, Consultant and City entered into an Agreement for Professional Services for Implementation and Configuration of a City Wide Planning, Permitting, Licensing and Code Enforcement System ("September 28, 2010 Agreement"), under which, inter alfa, the September 28, 2010 Agreement would expire upon completion of the therein agreed upon services, or June 30, 2011, whichever comes first; and WHEREAS, it is mutually agreed by the Parties that the expiration of the September 28, 2010 Agreement should be postponed in order to provide enough time for the completion of all deliverables, including, without limitation, Deliverable 20 (four (4) weeks of Post Deployment Support and Transition to Customer Resource Center); NOW, THEREFORE, in consideration of the mutual covenants of the parties, the Parties agree as follows: I. That the reference to June 30, 2011 in Section 3 of the September 28, 2010 Agreement shall be stricken and shall be replaced by a reference to August 31, 2011, as follows: 3. Time of Performance: This Agreement shall become effective upon execution by both parties. The Professional Services Agreement shall expire upon completion of the agreed upon services, or june 30,2011, August 31, 2011, whichever comes first, unless sooner terminated as provided below or unless some other method or time of termination is listed in Exhibits A -F. The License Agreement executed contemporaneously herewith shall be perpetual and shall continue in full force and effect unless earlier terminated as provided therein. The Maintenance Agreement executed contemporaneously herewith shall expire five (5) years from the effective date of that agreement. II. That, except as expressly modified by this First Addendum, all provisions of the original September 28, 2010 Agreement shall remain in full force and effect. No other understanding, whether oral or written, whether made prior to or contemporaneously with this First Addendum, shall be deemed to enlarge, limit or otherwise affect the operation of the September 28, 2010 Agreement or this addendum thereto. FIRST ADDENDUM To AUGUST 14, 2008 AGREEMENT PAGE 1 OF 2 III. The party signing below on behalf of Consultant expressly warrants that he is duly authorized to act as the representative and agent of Consultant and its principals. Further, the validity of this First Addendum shall be expressly conditioned upon City Council action approving same. IN WITNESS WHEREOF, the parties shall cause this First Addendum to be executed by their duly authorized officers to be effective as of the day and year first above written. AC�CEELLA, INC: Signature Galin M. ,Samuels Print name As5t. L'o/doiah serest%_ Title ------------------- DIANE JANKIEWIC2 Commission # 1775149 Notary Public - California Contra Coda County Comm Od22,2011 CITY OF MERIDIAN: BY: wor% Tammy eerd Mayor STATE OF CALIFORNIA ) ) ss: County of L,,o/!bn Pasha County I HEREBY CERTIFY that on this day of June, 2011, before the undersigned, a Notary Public in the State of California, personally appeared 60AA M, SoMut/.r proven to me to be the person who executed the said instrument, and acknowledged to me that such person 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. L� Notary Public for Califomi Residing at &W A~ California My Commission Expires: Oct. A21, 20// Attest: FIRST ADDENDUM To AUGUST 14, 2008 AGREEMENT PAGE 2 OF 2 Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: MDA 11-002 ITEM TITLE: Addendum to Development Agreement Meridian Town Center by Meridian CenterCal, LLC Located at Northeast Corner of E. Fairview and N. Eagle Road Request: Amend the existing Development Agreement (Instrument # 1 08131103)to Include an Updated and Expanded Development Plan and Minor Edits to the Text of the Agreement MEETING NOTES P—\>v rov 2& Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Aft -1111111000� CENTET�CAL PROPERTIES LLC June 17, 2011 Meridian City Clerk Jaycee Holman Meridian City Hall, Suite 104 33 E. Broadway Avenue Meridian, Idaho 83642 Re: Addendum for the CenterCal MDA w/exhibits Dear Ms. Holman: CALIFORNIA 1960 E GRAND AVENUE SUITE 400 EL SEGUNDO, CA 90245 PHONE 310.563.6900 FAX 310.563.6905 OREGON 7455 SW BRIDGEPORT ROAD SUITE 205 TIGARD, OR 97224 PHONE 503.968.8940 FAX 503.968.8047 WWW.CENTERCAL.COM Enclosed please find the Addendum for the CenterCal MDA including exhibits which has been executed and notarized on behalf of Meridian CenterCal LLC. If you have any questions or require additional information, do not hesitate to contact US. Yours truly, 4�t7fovL�II11 ,1:evj Lorrie Rashkow Executive Assistant Enclosures /Ir ADA COUNTY RECORDER Chrlehlpher D. Rich AMOUNT .00 16 BOISE IDAHO 06/30111 11:36 AM DEPUTY Bell RECRDEDe-REQUESTOF IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Meridian Clly 111052692 ADDENDUM TO DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. Meridian Center Cal, LLC, Owner/Developer 99 THIS ADDENDUM TO DEVELOPMENT AGREEMENT is dated this iQ day of OLYU� , 2011, ("ADDENDUM"), by and between CITY OF MERIDIAN, a municipal corporation of the State of Idaho ("CITY"), and Meridian Center Cal, LLC, ("OWNER/DEVELOPER'), whose address is 42 N. 650 West, Farmington, UT 84025. RECITALS A. CITY and OWNER/DEVELOPER entered into that certain Development Agreement that was recorded on December 9, 2008 in the real property records on Ada County as Instrument No. 108131103. B. CITY and OWNER/DEVELOPER now desire to amend the Development Agreement, which terms have been approved by the Meridian City Council in accordance with Idaho Code Section 67-6511. NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: 1. OWNER/DEVELOPER shall be bound by the terms of the Development Agreement, except as specifically amended as follows: SECTION 1 1.11 WHEREAS, City and Owner/Developer entered into a development agreement that was recorded on December 9, 2008 in the real property records of Ada County as Instrument No. 108131103 ("Original Development Agreement'); and 1.12 WHEREAS, Owner/Developer submitted an application for Development Agreement Modification, and following a public hearing City Council approved such application, resulting in this Modification of the Original Development Agreement. SECTION 4 4.USES PERMITTED BY THIS AGREEMENT: This Agreement shall vest the right to develop the Property in accordance with the terms and conditions of this Agreement. 4.1 The uses allowed pursuant to this Agreement include those uses allowed in the approved C -G ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11,002 — MEW oIAN TOWN CENTER (CENTER CAL) Page I of 8 zone as indicated in the table attached as Exhibit "C' (excerpted from the UDC as it existed on the date of the Original Development Agreement) for a period not to exceed seven (7) years from the date of this agreement. At the end of the seven (7) year period, the allowed uses shall be those allowed in the C -G zone as indicated in UDC Table 11-2B-2, Allowed Uses in the Commercial Districts, in effect at the time of development. 4.2 Owner/Developer shall develop the Property generally in accordance with the Conceptual Site Plan in Exhibit "B", as it may be modified from time to time, and with the conditions set forth in Section 5 herein, unless otherwise modified by this Agreement. The parties acknowledge that the Conceptual Site Plan is conceptual, reflects early stage planning, and involves a large project with dynamic components. Consistent with the Findings, this Agreement affords Owner/Developer the Flexibility to tailor the particular distribution and configuration of uses to meet actual market demand at the time of development, so long as the development is generally consistent with the Conceptual Site Plan. A. In determining consistency with the Conceptual Site Plan, the Planning Director may allow a plus or minus 20% change in square footage for any building or collection of buildings. The Planning Director has the discretion to allow a change in excess of 20% where Owner/Developer supplies adequate data to demonstrate the change does not increase transportation impacts or impacts on adjacent uses beyond the levels contemplated with the Conceptual Site Plan. B. Relocation and reconfiguration of buildings shall be allowed provided that the impact to adjacent properties remains the same or is less than that depicted on the Conceptual Site Plan and provided that the integrity of the Conceptual Site Plan remains substantially equal or better. For example, the buildings that form a central plaza may be relocated if the plaza amenity is substantially equal or better in size or character than originally depicted. 4.3 If an amended Conceptual Site Plan does not meet the requirements of Section 4.2, then Owner/Developer may be required to get City Council approval of a modification to this Agreement for a new conceptual site plan. 4.4 Owner/Developer shall provide the Planning Director with any updates to the Conceptual Site Plan as available and updated from time to time as the Conceptual Site Plan is modified by the Owner/Developer as provided herein. The Planning Director shall keep the current version of the Conceptual Site Plan on file and available to the public. 4.5 The Property and any additional adjacent property as may be acquired by the Owner/Developer in the future shall be governed by this Agreement. The Findings that have been approved by the City Council have been incorporated into this Agreement. SECTION 5 5. CONDITIONS GOVERNING DEVELOPMENT OF PROPERTY: Owner/Developer shall develop the Property in accordance with the following special conditions. This list of special conditions is intended to include all conditions and requirements applicable to the Property as a condition of annexation and zoning. 5.1 For a period not to exceed seven (7) years from the date of recording of this agreement, development of the site and construction of structures on the site shall be subject to ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002 — MERIDIAN TOWN CENTER (CENTER CAL) Page 2 of 8 Administrative Design Review in accordance with the following standards and shall not be subject to subsequent amendments of the UDC. At the end of the seven (7) year period, all structures and site development shall be subject to all the applicable standards and provisions in effect at the time of development. A. The following minimum standards shall apply in addition to the detailed guidelines as set forth in the "City Of Meridian Design Manual 1. Architectural Character: a. Facades: Building facades visible from a public street or public space shall incorporate modulations in the facade, including, but not limited to, projections, recesses, and step backs that articulate wall planes and break up building mass. Facades shall be modulated and articulated in accord with the "City Of Meridian Design Manual". b. Primary Entrance(s): The primary building entrance(s) shall be clearly defined by the architectural design of the building. c. Rooflines: Roof design shall provide variations in profile through modulation and/or articulation in accord with the "City Of Meridian Design Manual", including, but not limited to, the following: 1) overhanging eaves; 2) sloped roofs; 3) two (2) or more roof planes; 4) varying parapet heights; and 5) cornices. d. Pattern Variations: Architectural building design shall not create blank wall segments along public streets and/or adjacent public spaces. Architectural elements, including, but not limited to, windows, awnings and arcades, shall have color, texture and/or materials to mitigate blank walls. e. Mechanical Equipment: All ground level mechanical equipment shall be screened to the height of the unit as viewed from the property line. All rooftop mechanical equipment shall be screened as viewed from the farthest edge of the adjoining right of way. 2. Materials: a. Exterior building designs shall demonstrate the appearance and use of high quality materials, including, but not limited to, stone, brick, wood or other natural materials, tinted or textured masonry block, textured or architecturally detailed concrete panels, or stucco or stucco like synthetic materials. b. Smooth faced concrete block, prefabricated steel panels, and/or vinyl are prohibited as finish materials but may be approved as accent materials in accord with the "City Of Meridian Design Manual". c. Untextured concrete panels are prohibited as finish and/or accent materials. (Ord. 09-1394, 3-3-2009, eff. retroactive to 2-4-2009) ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002 - MERIDIAN Towm CENTER (CENTER CAL) Page 3 of 8 ( 3. Parking Lots: No more than seventy percent (70%) of the off street parking area for the structure shall be located between the front facade of the structure and abutting streets, unless the principal building(s) and/or parking is/are screened from view by other structures, landscaping and/or berms. 4. Pedestrian Walkways: a. The internal pedestrian walkway shall be distinguished from the vehicular driving surfaces through the use of pavers, colored or scored concrete, or bricks. b. Unobstructed walkways at least five feet (6) in width shall be provided for any aisle length that is greater than one hundred fifty (150) parking spaces or two hundred feet (200') away from the primary building entrance(s). c. The walkways shall have weather protection (including, but not limited to, an awning or arcade) within twenty feet (20') of all customer entrances. B. Alternative Compliance: If: 1) the location of existing buildings or structures prevents conformance with the standards of this section and/or the guidelines of the "City Of Meridian Design Manual", or 2) strict adherence to such standards and/or guidelines would create inconsistency in the design objectives of the proposed development, the director may consider an alternative design proposal through the alternative compliance provisions as set forth in section 11-5B-5 of this title. The director may approve, or recommend approval of, such an alternative compliance proposal when the overall design, as proposed by the applicant, meets or exceeds the intent and the requirements of this section and the "City Of Meridian Design Manual" and is not detrimental to public health, safety, and welfare. (Ord. 09-1394, 3-3-2009, eff. retroactive to 2-4-2009) 5.2 Owner/Developer currently intends to develop 200,000 square feet of residential uses on the Property. Such residential uses may be moved to a different location than depicted on the Conceptual Site Plan, may occur in later phases, and may be modified to meet actual market demand at the time of development. If the Owner/Developer chooses to remove all of the residential from the project, they will need to obtain approval from City Council for a modification to this Agreement. Additional housing shall be allowed without triggering the need for a modification to this Agreement. 5.3 Subject to Section 4.2, the general configuration of the shops around a plaza area(s) shown centrally on the east side of State Highway 55/Eagle Road shall not substantially change. Amenities such as a water feature, benches, on -street parking, vertically integrated buildings, stamped and/or colored concrete crosswalks, and a mix of restaurants, retail, office and should be provided consistent with this Agreement. 5.4 A cross -access agreement shall be required that benefits all businesses within the Property and the property bounded by the Property line to the north and by Records Road to the east, unless the referenced properties are both owned by the same owner at the time this Development Agreement is adopted by the parties. A recorded copy of said agreement, if required, shall be ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002 — MERmuN Town CENTER (CENTER CAL) Page 4 of 8 submitted to the Planning Department prior to or concurrently with the first Certificate of Zoning Compliance application for this site. 5.5 The applicant is required to comply with all ACHD and ITD conditions. City will not sign off on any occupancy cards without first receiving ACHD's signature and sign -off. All applications on the Property are subject to ACHD's project specific comments, regardless of the type of application (i.e. conditional use permit, certificate of zoning compliance, etc.). No details related to access to the Property are approved with the subject annexation and zoning approval. The proposed access locations on the major arterials will be as approved by ACHD and ITD. 5.6 Owner/Developer shall dedicate right-of-way and improve the extension of Records Road and E. River Valley Street in accordance with ACHD requirements at such time as Owner/Developer develops the portion of the project adjacent to each road, except that Owner/Developer shall not be responsible for improving the extension of these roads or the utilities therein if such improvements are accomplished by or through agreement with an adjacent landowner. No certificate of occupancy shall be issued until the road improvements are substantially completed and functional for that phase. In the event that Records Road extends from Fairview Avenue to Ustick Avenue, the timing with regard to constructing E. River Valley Street may be re-evaluated by the City Council, Additionally, Owner/Developer shall make such right-of-way available immediately (but without improvements) at any time the City and/or ACHD is willing to accept the right-of-way, such as if an adjacent property owner makes required improvements. Such right-of-way as required herein shall be conveyed by Owner/Developer in the form of a deed to either the City or such other jurisdictional agency upon the request of the City. No compensation shall be required from City or ACHD for such right-of-way unless permitted through the STARS legislation, Idaho Code § 63-3641 ("STARs"), as amended. SECTION 7 COMPLIANCE PERIOD: This Agreement must be fully executed within two (2) years after the date of the Findings for the development agreement modification application or it is null and void; in such event, the Original Development Agreement shall control. SECTION 10 REQUIREMENT FOR RECORDATION: City shall promptly record either a memorandum of this Agreement or this Agreement, including all Exhibits, at Owner's/Developer's cost, and submit proof of such recording to Owner/Developer. SECTION 13 CERTIFICATE OF OCCUPANCY: No Certificates of Occupancy shall be issued in any phase in which the improvements have not been installed, completed, and accepted by City. SECTION 23 EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date approved by the Meridian City Council. ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002— MERIDIAN TOWN CENTER (CENTER CAL) Page 5 of g EXHIBITS A, C, AND D No changes are proposed to Exhibits A, C and D of the Original Development Agreement, however they are attached hereto as reference. EXHIBIT B The conceptual site plan (dated 9/27/07) shown in Exhibit B of the Original Development is replaced with the proposed plan (dated 218111) shown in Exhibit B (Attached hereto). 2. 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/Developer, or their assigns, heirs, or successor shall not meet the conditions of this Addendum, and the Ordinances of the City of Meridian as herein provided. 3. This Addendum shall be binding upon and insure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including City's corporate authorities and their successors in office. This Addendum shall be binding on the Owner/Developer of the Property, each subsequent owner and any other person(s) 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 hereon 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 Addendum if City, in its sole and reasonable discretion, had determined that Owner/Developer have fully performed its obligations under this Addendum. 4. If any provision of this Addendum is held not valid by a court of competent jurisdiction, such provision shall be deemed to be excised from this Addendum and the invalidity thereof shall not affect any of the other provisions contained herein. 5. This Addendum sets forth all promises, inducements, agreements, condition, and understandings between Owner/Developer and City relative to the subject matter herein, and there are no promises, agreements, conditions or under -standing, 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 Addendum 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. a. Except as herein provided, no condition governing the uses and/or conditions governing development of the subject Property herein provided for can be modified or amended within the approval of the City Council after the City has conducted ADDENDUM TO DEVELOPMENT AGREEMENT - MDA I1-002 — MERuxAN TowN CENTER (CENTER CAL) Page 6 of 8 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. 6. This Addendum shall be effective as of the date herein above written. 7. Except as amended by the Addendums, all terms of the previous Agreements shall remain in full force and effect. ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this Addendum and made it effective as hereinabove provided. OWNER/DEVELOPER: Mayor T y de Weerd City Clerk 7z' ' 9 c � ' OON ; ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002 — MERIDIAN TOWN CENTER (CENTER CAL) Page 7 of 8 CAU FOWN44 STATE OF IDANOQ�)- ) ss. County of�a'4Nr l On this l6 4 day of Ju N G, , 2011, before me, the undersigned, a Notary Public in and for said State, personally appeared -X40 PAWL wA (GJy known or identified to me to be the PPW 1 Pb_Wj of Meridian CenterCal, LLC, the Idaho limited liability company that executed the within and foregoing instrument, or the person who executed the instrument on behalf of said Idaho limited liability company, and acknowledged to me that such Idaho limited liability company 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. VIRGINIAACOSTA RECOMONO COMM. # 1784293 i 2 NOTARY PUBLIC - CALIFORNIAM LOS ANGELES COUNTY My OUMM, 901rea 8s6, ®, 2911 STATE OF IDAHO ) ss County of Ada 4j4r'rr� Notary Public for Idaho CA WPOILN1,4 Residing at: L61 ArN 6 l 5i , C14 My commission expires: I A- 9 - U Il On this_ day of �'J V„E , 2011, before me, a Notary Public, personally appeared Tammy de Weerd and Jaycee L. Holman, known or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the instrument or the person that 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. •�,. on” JES, AL) 9 ;� ; Not y Public for aho Residing at: k4eric(14„ ti) Commission expires: Ik „-)014 ADDENDUM TO DEVELOPMENT AGREEMENT - MDA 11-002 — MERMAN TowN CENTER (CENTER CAL) Page 8 of 8 EXHMff A Property Legal Description and Depiction 11ihaMWWWn ane 1 rtwnn7m %•:':'r'du" .. P.PI oft ®d a01 ' Bvvedegll'veWpdm efNertrereello ' ' fer ' lob W. 0770"L;LLC lob Na 6011070.00 • Apeen:l efbed eRueled Jade, eomhwvtWymlvo(Sevbn 4,Tew.Np3 Nw0{ Rik, l: .' rne4 sole Meddle, Adn Covmy,WJe, Mtgimnepw71d0edy daedbedefaewa: ®. Eomlemektmn(xwppmokiotme".Aw mnivofWan/,TowmNp3Nwik ROW I p+n. RoluMeddlen; . .33en<eN00.1043-e,2611.19fMaMcatewm lke ofinemnlbx'vlgwrvmbbmn up &eweWgve m"odIoneomwofSeclfebl; Theeee N69'S f'01'R, 70.00 Qw Jaet Ort awib Iiu a of Ow wolhwem quvmr m q bme up . ® on 6weid dibWofwey OoamNalb Llle Roed, OMPOR0T0►BBGINNagO: WAoV39q •SI'07"5,1137.4: fineimtae1me16llmof0ayvq bVafOx ' '• W eumwutyuvtveftecdon l; ' ' S 800'01•SVW, 112,63 •fug . ' 76epee 16,65 fmoo ewrve t6 Omd16; buret a nMe of511A7 fm, • imhd .ubleortest, 1]",eWbgidbuftofS01ro576"W,and m JwilItro ot16.65 ' fm; ... ® - 7b wSMV2'W% 720.47 feet. noom 311.33 fid an d Wmve m the left, NWnsy • rode eft" fee; a «did ' ogle 914}{47, enbmdbudej;OM070W2216wits dwd1&0. 771.76 •fm; '- K'19•ITW,1]IW,T{fenplLv,eWei dgbee4w+yl�mo/NaM Bgls , R4.d; . Rad;. 71cW.10'13"B',II60AShmJaa6t6eauWltlitro(onyagsdfNonb G6le - . Aad ro ftOm 1'041 CP BEOogNn10. 7bobovo4vpibtdpmdoAW&3S.tSwvmv lm {y. or SuMmmeol'nd+Wkeuvpoo[foSdyMwf-w76t1volduypvevL 11ihaMWWWn ane 1 rtwnn7m %•:':'r'du" .. 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HOLM Table of Proposed Uses Code X Type Use P Animal care facilltyl P Artist studlol P Arts, entertainment or recreation P facility, Indoorsl P Building material, garden P equipment and supplied Church or place of religious P worshipl C Civic, social or fraternal C organizational Exhibit C Permitted Uses Retail Office Residential other Comments X X A/C X X X Drive-through establlshmentl X X X A/C Daycare tented X x A/C Drive-through establlshmentl x P Education Institution, prtvatel X P Education Institution, publlcl x Equipment rental, sales, and C servltel x P Financial lnstitutlonl X x P Flex spacer x P Fuel sales facllltyl X P Healthcare or social servlces X C Hospltall x P/C Hotel and moball X P Industry, Informationl x P Laundromatl x P Laundry and dry deening X C Multi -family development x P Nursery or urban farms X P Parking facility P Parks, public and private P Personal or professional service x P Public or quasi -public user X X P Restaurant x P Retail stere x Vertical integrated residential P projettl x LEGEND permitted (P), accessory (A), and conditional (c) 1 at end of use title Implies specific standards for the use exist In UDC chapter 4 home daycare is residential; otherwise daycare Is office. Home daycare Is actually daycare, family or daycare, group. Includes home/household, personal use, and office equipment businesses; excludes farm, Industrial, and heavy equipment or machinery businesses e bank Is retail; a mortgage or security broker or other financial Institution Is office We generally consider this accessory to X the use. X classification depends on general nature of use housing porton. Integrated Hon -residential uses count as retail or office as appropriate. ADDI7TONAl. Accessory uses allowed In C•G zone but not shown above are permitted If the primary use Is allowed. Uses not listed above but otherwise allowed In C•G zone may be considered by modification of DA, Uses classlfled as "Retail' or °Office" above count against total allowed retail or office square footagesp "Residential' and "Other" uses shown above do not. EXHHiIT D Visual Deplellon of Roadway 1Lnprovements Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 5L PROJECT NUMBER: MDA 10-010 ITEM TITLE: Development Agreement Scentsy Campus by Sam Johnson, H.O.T. 1, LLC Located Southwest Corner of E. Pine Avenue and N. Eagle Road Request: Modify the Existing Development Agreement to Update the Owner Information and Development Plan MEETING NOTES PR7Yl)JR-4 Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS E wJDIAN-- Po" AH0 March 28, 2011 H.O.T. 1, LLC 3698 E. Lanark Meridian, ID 83642 RE: Modified Development Agreement — Scentsy MDA 10-010 To Whom it May Concern: Mayor Tammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba Enclosed please find the Modified Development Agreement for Scentsy, which is ready for your review and signatures of the appropriate parties. Please sign where indicated and return to the City of Meridian Clerk's Office for placement on the next available City Council agenda for approval. Please call me if you have any questions at 208-489-0389. Sincerely, (PNt y ones Deputy City Clerk Encl. ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 54 BOISE IDAHO 00/30/11 11:35 AM DEPUTY Use Ban RECORDED -REQUEST OF III II IIIIIIIIIIIIII IIIIIIIIIIIIII I III 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_Qo& day of_June 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 OWNER/DEVELOPER. 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. § 67-651 IA, 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 l 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 ofFact and Conclusions ofLaw 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 ofthe 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 § 11-213-2. 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: 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 roofplanes, varyingparapet 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 of Owner/Developer's default of this Agreement, Owner/Developer shall have thirty (3 0) 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. 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 maybe 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. hi 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 ofthe 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 33 E. Broadway Ave. with copy to: City Attorney City of Meridian 33 E. Broadway Avenue Meridian, ID 83642 OWNER/DEVELOPER: H.O.T. 1, LLC 3698 E. Lanark Meridian, ID 83642 Phillip E. Broadbent Scentsy, hic. 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 CITY OF MERIDIAN PAGE 8 OF 9 STATE OF IDAHO, ) ): ss County of Ada, ) On this day of c:- TZo,-, , 2011, before_me, the undersigned, a Notary Public in and for said State, personally appeared - QnI7 �lL �itO isy7yp7Q, , known or identified tome to be theof H.O.T. 1, LLC, and acknowledged tome 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. STATE OF IDAHO ) ss County of Ada Notary PubWi of Residing My Commission J'el( On this Q$ day of �Une' , 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 ]c Id Residingat:h-f*AdjAr1L lD Commission expires DEVELOPMENT AGREEMENT— SCENTSY (MDA 10-010) PAGE 9 OF 9 EAl DESCRIPTION FOR PINEBRIDGE PROPERTY LINE ADJUSTMENT R.O.S. NO. 8793 PARCEL 2 JUNE 1, 2010 A PARCEL OF LAND BEING A PORTION OF THE SE Y4 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 X CORNER) OF SECTION 8, T. 3 N., R.1 E., B.M., ADA COUNTY, IDAHO, THENCE S 01 "02'07" W 83.97 FEET ALONG THE EAST LINE OF THE SE .OF SAID SECTION 8 TO A POINT; THENCE N 88°57'53" 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 01 002'07" W 738.04 FEET TO A POINT; THENCE S 71 °10'34" W 74.43 FEET TO A POINT; THENCE S 01°02'07" W 50.00 FEET TO A POINT; THENCE S 69°31'00" E 13.77 FEET TO A POINT; LEAVING THE WEST RIGHT OF WAY OF EAGLE ROAD: THENCE N 88955'23" 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 00"0342" E 50.01 FEET TO A POINT; THENCE N 44025'50" W 28.53 FEET TO A POINT; 35 ACRES PARCEL THENCE N 00003'42" E 712.37 FEET TO A POINT; THENCE N 44061'22"E28.39 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 89039'03" E 1243.25 FEET TO A POINT; THENCE S 8761631" E 209.78 FEET TO A POINT; THENCE N 89039'03" E 392.91 FEET TO A POINT; THENCE S 4501610" 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 35 ACRES PARCEL CITY OF MERIDIAN (SIwWENLFINDINGS OF FACT, CONCLUSIONOF LAW AND O DECISION & ORDER 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 ight- 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 § 11-5A. CITY OF MERIDIAN FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION & ORDER CASE NO(S). MDA -10-010; VAR -10-002 k 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 -- day of 2011. COUNCIL MEMBER DAVID ZAREMBA COUNCIL MEMBER BRAD HOAGLUN COUNCIL MEMBER CHARLIE ROUNTREE COUNCIL MEMBER KEITH BIRD MAYOR TAMMY de WEERD (TIE BREAKER) VOTED VOTED VOTED VOTED Mayor TaW de Weerd +VuI ++urrrp.: Attest: ++.+`�y O� MERfn' v `ot3vORgr�p ?� Jaycee HWnan, City Clerk _ SEAL rP v I �Qa Copy served upon Applicant, The Plaluu4>$rr�' rQ{�pIIICnt� ublie Works Department and City Attorney. By: Dated: ler Of 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 ��Vl E IDIAN TO: Mayor and City Council FROM: 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 I, 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) 11-3HAB2 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-inhight-out access to/from the site via SH 55/Eagle Road. (See Section PILI for more information) II. 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. a. Il. r. 7fa U17i�Km1i - i t rM4 1 i i l i T,- n „ i- i :. 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 -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 comer of Pine Avenue and N. Eagle Road, in the southwest 1/4 of Section 8, Township 3 North, Range 1 East. Parcel#S 1108417320 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 #3-11-135). 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 Staffs 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 (RERO) access to/from the site via Eagle Road midway between Pine Avenue and Commercial Street with a right tum 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, TPD 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 RrRO 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 -tum 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. Staffs 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 ' _-®`"-• /.,�P _ �� 1 r"�-'r 1 '`V I .fie !q®#l�m��T� �'. r. t ,. •. it �,` !H a '-�fl43 f1 ��I s��:i r_a+`�■ � \ � IIS fy I � ■, /R ` r # rel I t , b �e�0�4.`�� I ,R,° � .rate i • - ®� � L .;l'�r `q 71 1'0Sal air � sem' WO ��ll I��Li1! EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMENTAGREEMENT PARTIES: 1. City of Meridian 2. JJi.O.T. 1. LLC, Owner/Developer Ddod: case b.e.ms THIS DEVELOPMENT AOREEMENT (this Agreement), is made and entered into this day of .2 0 by and between City ofMaridian, a ea municipal corporation of the State of Idaho, hereafter celled CITY, and JjO.T. I LLC oatstam mm e..mem whose address is 3698 E Lanark Meridian.Idaho 3642 hereinafter called o.wa:SR. and row 4 OWNER/DEVELOPER. L D.U. 1. RECITALS: 1.1 WHEREAS, Owner/Developer is the sole owner, in law andf paean: a equity, of that certain had 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 incorpotsted herein as if set forth in fun, herein after referred to as the Property; and 12 WHEREAS, Idaho Code 67-651 Kprovides that cities maw, by prem: La ordnance, require or permit as a condition of re -zoning that the umromrrm ac, Owner/Developermake a written commitment concerning the use or development ofthe subject Property; and 1.3 WHEREAS, City bas exercised its statutory suthority by the enactment of Ordinance 11-511-3, which authorises development agreements upon the annexation and/or re -zoning of land; and 1.4 WfiEREAS. Ownm�eveloper hes aubmittad m application for g nwem: Modification to Development Agreement dated 2-28-08 instrument 1.5 WHEREAS, Owner/Developer made representations at the public heminebefore the Meridian Citv CounciL as to how the subiect 1.6 WHEREAS, record of the proceedings for the requested irr�az®acea�am.a development agreement modification foribe subject Property held Dde d'mmuem ma mobs DEVE OPMBNf AGREEMENT (AZ 07.006 &RZ 07-010)PAl®RIDGE SUBDIVISION PAGE 1 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A before jurisdiction, and received further testimony and comment; and 1.7 WHEREAS, City Council, the day o has approved certain maWm� Findings of Fact and Conclusions ofLawand Decision mid Order,set Hawed: Eambw forth in Exhibit B, which are attached hereto and by this refavoce 0~1 tam incorporated herein as ifset forth in full, hereinsfterreferred to as (the Findings); and 1.8 WHEREAS, the Findings require the OwnedDeveloper to 1.9 WHEREAS,, Owner/Develooerdeeans it to be inlet best interest to be able to enter into this Agreement and acknowledges that this Agreement was entered into voluuterilyand at jb urpaR eadrequestc; 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 ofthe Property is in accordance with the terms and conditions of this development agreement, therein being established M accordance with ten amended Comprehensive Plan ofthe City ofMaridian adopted August 6, 2002, ResolutionNo. 02-382, and the Zoning and Development Ordinances codified in Meridian Unified Development Code, Title 11. NOW, THEREFORE, in consideration ofthe covenants and conditions set forth herein, the parties ages as follows: 2. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and aro incorporated herein as if act forth in Sill. 3. DEFINITIONS: For allpurposes of this Agreement the following words, terms, and phrases herein contained in this section shall be defined and interpmted as harem provided for, unless the clear context of the preseuhtton of the same requires oflamwise: 3.1 CITY: means and refers to the City of Meridien, a party to this Agreement, which is a municipal Corporation and government DE UOPMENr AGREEMENT(AZ07-006&RZ07-010)PQJEBRIDOESUBDIVISION PAOE20FIO Scentsy Campus MDA -10-010; VAR -10-002 m ioasdwd.' ,e Page 3 EXHIBIT A subdivision ofthe slate of Idaho, organized and existingby 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 LLC ts.Yaemtudlk .tuba whose address is368�_t,_anarr4_Meridian Lo 83642. the party u.trmrrso a abot.oA3W us Nat owes and is developing said Property and shun include any B.*M.roums subsequent owner(s) of the Property. 3.3 PROPERTY: means and refers to that certain parcel(s) ofproperly located in the Canty of Ada, City of Meridian as described in Exhibit A describing the patriel. currentlyyoned C -G (Geaeial o.M`a:. Commercial), attached hereto and by this reference incorporated paMtaarbl.wdnd herein as if art forth at length. 4. USES PERMITTED BY THIS AGREEMENT: 4.1 The uses allowed pursuant to thisAgmementareonly these uses allowed under City's Zoning Ordinance codified at Meridian Unified Development Code § 11-211-2 which are herein specified as follows: Constraedon and depdopment zonepewnewto the _ 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/Developershall develop the bP NoP�Y 1-p accordance with the a'�°'°r�r'sae00ro0°P1°0J f0110W1ng special renditions: fa E�daab atwwMagm.am,b Po.A. Dalrb ttl 1. Development of the properly shall substantially comply with the f conceptual siteplan and elevation submitted with thesubject application �e..m.ro.maawes'o� and the concepts oufined below. sos.aem .urab.m..aovb 4. The following concepts shall be employed in the develops property: DEVELOPMENT AORE A W(AZ 07-006 k RZ 07-010) PWMRID('E 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 D.rta:+a.ygema streets shall be constructed as generally shown on the site plan prepared by TA Inc. dated 1- 2-1 Da4t d: s� cuaaWur b. Pedestrian connec4ionsshallbeconabuctedbetweenbuilyJ''��y�inthe D.Iatem3dm form of pathways distinguished from vehicular driving surfaces n�IG. aaaCtapaaa hehR blaomtamdwry,w m.mgmy through the use of pavers, colored or scored concrete, or bricks; dnP�s W th r.rmd i1dm ora" Common areas with site amenities i.e. lazas/co a�ma�t water features, picnic areas flower gardens, public art etc,) are DaMaea a encouraged to be included within the 1 ant tralanem °�ae°°�P°"�0° orae Exteriorbuil ' wa11 houlddenroashateflre Datetia ea.nh„ayoraove. ..+d a Paden d4a a. ety.m apPmrance of high quality materials of stone, brick, wood, or odrer native materials (acceptable materials include tinted or texttred �� G. s��.eoatab ad.mamaaaa OtherarPoe446 masonrybiock, tezturedor intedarchitechral oncrete auels or stucco or stucco like synthetic materials, mooch faced concrete I block, tilt -up concrete panels, or prefabricated steel panels are Deleeea: r. whd.wr. maoA W .rcrarowc.9atheA30tcafeer M&W-table with the addition of paint and/or hiWi quality accent Oftla hol a asa,Wh.pmrided f. materials. andnd emir. .uaaammbQ g. The building design shall incorporate at least 2 than s in one or a dradmvd1 Ddeted; a.. ParvideL,,p aL combination of the following: color, knure and materials; 1 fMfii. khharaV:a kM&t ,e I Rooflines shall demonstrate 2 or more ofthe followin: overh ' as thin 1J0 ° " e mpox ar300 .ary 6aaaae.,aabawoa eaves, sloped roofs, two ormoremofplanes,varyingparapatheigbis, mr-MI and cornices; n - , . h I g. The primary building entrances shalt M A.Ar a a".a I", A.e a Dd~. ACa"didmd UwP®ufu 6. CONFLUNCEPERIOD/CONSENT TOREZONE;'This &'� '��" Agreementagd aaMopoedr:aa he au.aaYd pivro the commitments oontainedheminshall beterminated,and the zo' designation °° °sb<s°'tym.w^wmmn zoning gnationreveraed, ,„a upo anactualshow' defaul det ' ed acourtofcom ant' 'trio ofthe r,,,,„namirWentLeft r Owner/Developer or Ownera/Developersheirs,successors, assigns, to comply with Section5 Hagins:0.t3•,Nm*ved+teed: entitled "Conditions Governing Development of Subject property" ofthis agreement within t +Numbering Style: 1, a, a, —+ two years of the date this A h P stmat: l +atgnnwiC tat+ Agreement is effective and after the Ci has complied with the Aligned ere t.ge•+Tab alter. o + notice and hearing procedures as outlined in Idaho Code § 67-6509, or any subsequent Indent at: 2.44 amendments or recodifications thereof. rannewx roans: Hanging: 0.1Y DEVELOPMENT AGRIMENT (AZ 07-006 & RZ 07-010) PMMRMGE SUEDMSION Death l: a PAGE 4OF 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 to sad conditioned upon the following conditions precedent to -wit: 7.1 That the City provide written notice ofany fad= to comply with this Agreement to Owner/Developer and ifthe Owner/Developer fails to cure such fiiluro within six (6) months of such notice. 8. INSPECTION: Owner/Developer shall, immediatelyupou completion of any portion or the entirety of said development of the Property w 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. 9. DEFAULT: 9.1 In the event Owner/Developer, or Owner/Developer's heirs, successors, assigns, or subsequent owners ofthe Property or any other Person acquiring an interest in the Property, fail to faithfully wpb' with all of the terms and conditions included in this Agreement in connection with the Property and a court of competent jurisdiction nlles that Ownen0cvelow is in default heeo - 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 defikult by Owner/Developer of spy one or mora of thtcovenaab or conditions hereof shall apply solely to the breach and breeches waived and shag not her any other rights or remedies of City or apply to any subsequent breach of any such or other covenants and conditions. 10. REQrlrorr. ENT FOR RECORDATION. City shall record either a memorandum of Otis 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: -Tbe current zonina of r' -r. M...al �h.0 —.;.. DEVOAPMEW AORMUNr (AZ 07-006 & RZ 07-010) PDMBRMGE SUBDIVISION PAGE 5 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 6 EXHIBIT A 12. REMEDIES: MAgreemmtshsllbeenforembleinmycourtefcompeteot jurisdiction by either City or Owner/Developer, or by snysuocessor or successors in title or bytheassignsofthe parties hereto. Enforcementmaybe sought byanappropriate action at a •� �.u� ��Pu;u,c pcnormarce orme eovmenrs, egteemeaiS, eondihons, s contained herein 12.1 In the event of a materiel breech of this Agreement, the parties agree that City and Owner/Developer 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 ofany such default which cannot with diligence be cured within such thirty (30) day period, if the defaulting party shell commence to orae the same within such [bitty (30) day period and thereafter"I prosecute the acing ofsamewith diligence and continuity, then the time allowed to cine such failure maybe extended for such period as maybe necessary to complete the curing of the same with diligence and continuity. - 12.2 In the event the performance of any covenam to be performed hereunder by either owner/Developer or City is delayed for causes which aro beyond the reasoaeble control ofthe party responsible for such performance, which shall mclude, without limitation, acs of civil disobedience, strikes or similsr causes, the time for Such Performance shall be extended by the amount of time of such delay.. 13. SURETY OF PERFORMANCE: The Citymayrequireiaevocablelemm ofraedit, cash deposits, certified check as allowedrmderMeMan CilyCode Section I1 -5-C, to insure installation ofany unfinishedimprovements that arenot htconflict with Section 15 of this Agreement. At the City's sole discretion the Owner/Developer agrees to provide su viy in the form as requited by the City, if necessary. 14. CERTIFICATESOFOCCUPANCY: The Ownw/Developeregeeathetno Certificates of Occupancy will be issued' env phase m which the improvements have not been iustalled, completed, and accepted by the Ctty or otherwise entered into an amroved letter of credit for mufini5hed imcrovements 15. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to abide by all ordirmces of the City of Meridien and the Property shall be subject to de - annexation if the owner or his assigns, heirs, or successors shall not meet do conditions DEVELOPMENT AOREEMENr (AZ 07-0068 RZ 07-0]0) PDffiBRIWE SUBDIVISION PAGE 6 OF 10 Scentsy Campus MDA -]0-010; VAR -10-002 Page 7 EXHIBIT A contained intheFindiogsofFactandConclusionsofLaw,thisDevelopmentAgreement,and the Ordinances ofthe City of Meridian. 16. NOTICES: Any notice desired by the parties and/or required by this Agreement shall be deemed delivered ifand when personally dehvered orthree (3) days alter deposit in the United Slates Mail, registered orcertified mail,postageprepaid,rehanreceipt requested, addressed as follows: CITY: OWNER/DEVELOPER: C/o City Engineer JtO.T. I. LLC Dewe 1301 rim City of Meridian 3698 E. Lanark naae.etsos.aaeeeora,sarrm 33 E. Idaho Ave. -Meridian, ID Ji3642 - ewe MW Meridiaq ID 83642 oefeeee rstw with copy to: City Clerk Phillip E. Broadbent City of Meridian Scentsv. Inc 33 E. Idaho Avenue 3698E Lamark Meridian, ID 83642 Meridian. ID 83642 16.1 Aparty 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, m additionto 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 patties and shall survive any def h, terminationorforfeiture 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 herm4 and that the failure to timelypolbrm any ofthe obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. DEVELOPMENT AGREEMENT (AZ 0744 & RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 7 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 8 EXHIBIT A 19. BINDING UPONSUCCESSORS: 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 biudingon the Owner/Developer of the Property, as& subsequentowner and any other person acquiringaninterest inthe Property. Nothingheroinshsllinanyway prevent sale or alienation of the Property, "portions thereof, except that any sale or alienation shall be subject to the provisions hereofand any successor owner or owners shall be both benefited and bound by the conditions and restriaronsherein oxwessed. City agrees, upon written request of Owner/Developer, to execute app opride and recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determined that Owner/Developer has Ailly performed its obligations under this Agreement. 20. INVALID PROVISION: If any provision of this Agreement is hold not valid by a court ofcompeteadjurisdiction, such provision shall be deemed to be excised ffm this Agreemer 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 understandingcbetween Owner/Developwand City relative to the subject matter hereof, and there are no promises, agreements, conditions or uaderstandin& eitherorel mwritten, expteas or implied, between Owner/Daveloper and City, other than as are stated herein. Except as herein otherwise provided, no subsequent alteration, amendment, change of addition to this Agreement shall be binding upon the parties hereto unless reduced towriting and signed bythem or theirsuccessors in interest or their assigns, and pursuant, withrespectto City, to a duly adoptedordinance orresohationof City. 22. M 21.1 No coaditiongoverningtheuses end/orconditionsgoverning te-zonmgofthe subject Propenyhereinprovided for canbe modifiedoramendedwithoutthe approval oftboCityCamcil afterthe Citybas conductedpublic 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. EFFECTIVE DATE OFAGREEMENT: This Agreement ahsllbeaffecaw DEVELOPMENT AGREEMENT (AZ 07-006 R RZ 07-010) PINEBRIDGE SUBDIVISION PAGE 8 OF 10 Scentsy Campus MDA -10-01 0; VAR -10-002 Page 9 EXHIBIT A M WrYMW WMWMW, dwprtishm MtebalwjW"�m IadmmE9h 9Bbedre to 6adnho>.pavvwa OWNRBIDSVBW LR H,{L'4LLLC tt.rretru9romus MY of MZMMM BY: MAYOR TAMMY de WEERD ATTEST: MYCl EM OEYHW MUf► A®FYtTW07-006RR07-010) PAM 90T 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 EXHIBIT A STATS OF IDAHO, ) :x CoixryaSAde, ) ON dtlr Ifdenfaued, • Nowy Puhso m sal bar and soft PMKO syp of JUL �epered wraoenae hown a idoodW m on o be of R7WnWESSWHPAEOF.1hvaI err myhod anddffxWmy o9'ioiel fdthedq ra)� io Wir ceetltio:eeellmm shove veltlm (SEAL) Naory h6ac for Idaho Redft at: my Oxmixieo Eapila; STATE OF WHO ) CoofgedAds ) oAdde Polk'$aeeoellyeyyefedYLmw�deWemiandWiPma.sc k m .a be me m he the Meyer ad Clot, mpwth*. oidtr Clq of himpWke. who heated Ae ieetruoeal othahY[of xi d Ciiy, ad ealmoldedpd m xe met srh Chy aroowed dtwume, 1N wlM4W WHMWP,1 hen hfmoo ret my heed and mord My *sold sal the dq and yar in fie m6&af &x Am wham (SEAL) NamyPwk tbrldeho Rnkft x: CmzlLwiwvhft: �EVH.�Nf Amt�l,@if (AZOEOaet a2etal%P1NBApQ7pH.711BNv6410N Scentsy Campus MDA -10-010; VAR -10-002 Page l l 226 1: rlll�! = _-77 Wit EXHIBIT A Exhibit A.3 - Proposed Changes to Development Agreement DEVELOPMENTAGREEMENT PARTIES: 1. City of Meridian 2. -H.O.T. I, LLC, Owner/Developer oalaeba:mml..mmh THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into this day of 14110- by and between City of Meridian, a DdIoNk04 municipal corporation of the State of Idaho, hereafter called CITY, and .O.T. I LLC trbteebm Dbfll eR� whose address is 3698 E. anm6 Meridian,Idaho 2 heleinefter called 0615bbd: tta S. BadrWOM& ads 12% OWNEWDEVELOPER. ^ rrerram there 1. RECITALS: 1.1 WHEREAS, Owner/Developer is the sole owner, in law amdf orMaa:Q equity, of that certain tract of land in the County of Ads, State of Idaho, described in Exhibit A for each owner, which is attached hereto and by this reference inoMonded herein as if set forth in fiil), herein after referred to as the Property; and 12 ordinance, require or permit as a condition of re -zoning that the Owner/Developer make a written commitment coneemmgthe user 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 rezoning of land, and 1.4 WHEREAS ner evelaperhas submitted an application for ge 1.5 WHEREAS, Owner/Developer made representations at the public ma A.wdh D.warbAbd=*ALfW" 1.6 WHEREAS, record of the proceedings for the requested - -- development agreement modification for Ac subject Property held l mdmCumau�laa i DOUOPMENT AGREEMWT (AZ 07.006 &RZ 07-010) PMEERWE SUBDIVISION PAGE I OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 2 EXHIBIT A before jbe City Council, include responses of government Ddd lffiders.mins&rete a subdivisions providiogaerviceswilhiotheCityofMeridianplanning Ico®:m.ma�h.a+onvbra. I jurisdiction, and received Amber testimony and commem; and 1.7 WHEREAS, City Council, the, day of . has approved. certain Findings of Fad and Conclusions of Law and Decision andOrder, set forth in Exhibit B, which aro attached hereto and by this reference incorporated herein as if set forth in full, heremafterrefinedto as (the Findings); and 1.8 WHEREAS, the Findings require the Ownm0evelopar to modJ& the existing development aueement to reflect the change in ownership; and Ddrmdim ib ,e.®a aa.. a. c� comm uia 9oisEm mmmmmmdm®a 1.9 WHEREAS, Owner/Develoner-deems it to be in.its best interest to bdW.Wa be able to enter into this Agreement and acknowledges that this rammdodm aae Agreement was entered intovoluntsrilyand 'tsu ' and a u.twmownaamMWWJIR and ...�.....a 1.10 WHEREAS, City requires the Owner/Developer to enter into a development agreement forthe purpose of ensudngthsttho Property is developed and the subsequent use ofthe Property is in accordance with the trams and conditions of this development agreement, herein being establishedin accordance with the amended Comprehensive Plan ofthe City ofMaridian 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 ofthe 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 ofthis Agreement the following words, tem u, andphrases 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, s party to this Agreement, which is a municipal Corporation and government DEVELOPMIRdr AORMAWr (AZ 07-006 & RZ 07-010) MEBRIDGE 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, wbose address is 33 East Idaho Avmu% Meridian, Idaho 83642. 3.2 OWNERIDEVELOPER: meson and refers to JLO.T. 1 LL pataum osm ewm.a whose address is3689 E. Lanark. Meridian. Idaho 83642: the party pataeaa: z+s s.ashamd �, I20, that owns and is developing said Property and shall include any lea...wmuros subsequent owner(s) of the Property. w..e..m, 3.3 PROPERTY: mesas sad refers to that certainparcel(s)ofProperty located in the County of Ada, City of Meridian as described in Exhibit A describing the parcel cmrendv zoned C -G (General orated:. Commercial), attached hereto and by this reference incorporated DeY @d; -*h wwadsa herein as if set &* at length. - 4. USES PERMITTED BY THIS AGREEMENT: 4.1 Theuses allowed pursuant to thisAgmementare onlythmuses allowed under City's Zoning Ordinance codified at Maridian Unified Development Code § 11-211-2 which are herein specified as follows: Conrdaredon and developmentoj95 +/-acrd in rAe oroposed C -G iI Pdatao a s.a W".W2r 4.2 No change in the was specified in this Agreement shall be allowed without modification of this Agreement. 5. CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY: 08%10 :a..vww.r"M eummemrmram qd.b 5.1. Owner/Developer shall develop the Property in accordonce with the irm�.f.WQMm410 sr e.sraeada.ws,wm..ox.le following special conditions: w..e..m, 1. Development of the property shell substantially comply with thews..m...aed.mamta;..e concepmalsiteplanand elevation submittedwiththesubjectWhoatiort and the concepts outlined below. �o d W mad�d wee 4. The following concepts shall be employed in the develop property. DEVELOPMHNT AGREh3'sNT (AZ 07-006 h RZ07.010) PIt1P&R DOE SIIBI)PASION 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 streets shall be constructed as generally shown on theponceptual site plan prepared by.CTA.Inc..dated 1-12-10. b. Pedestrian connections shall be constructed be. iweenbuild(ags in the form of pathways distinguished from vehicular driving smhces through the use of pavers, colored or scored concrete, or bricks; I a- Common areas with site amenities (i.e., plazaa/courtyards, water features, picnic areas, flower gardens, public art, etc.) are encouraged to be included within thedevelopm®t, A Exterior building walls should denumstvate the. appearance or high quality materials of stone, brick, wood, or other native materials (acceptable materials include tinted or texhued I masomy block,.textured r painted architect ral concrete panels or stucco or stucco Lice synthetic materials. Smooth faced concrete block, tilt -up concrete pawls, or prefabricated steel panels are, acceptable with the addition of paint and/or high puality accent materials. I g. The building design shall incorporate at least 2 changes in one or a combination of the following: color, texture and materials; I t Rooflines shall demonstrate 2 or more of the following: overbenjeM eaves, sloped roofs, two or more roofplanes, varying parapet heights, and cornices; g. The primary building entrances shall he elenrly lefineri by tim 6. COMPLIANCE PERIOD/CONSENT TO REZONE: upon anactualshowm' fdefaultasdeterminedbvacourt ofcompetent iurisdiction.ofthe Owner/Developer or 0wners/Developelahch, successors, assigns,to complywith Section 5 entitled "Conditions Governing Development of Subject Property" ofthis agreementwithin 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 1etoodifications thereof DEVELOPMENT AGREEMENT (AZ 07-006 & RZ 07-010) PINEBRIDOE SUBDIVISION PAGE 4 OF 10 Scentsy Campus MDA -10-010; VAR40-002 omeaee: a. smrlmp ahso b. bale W4kmdtora4dvae adti.me0*61 dm pig m dr,s and skim of du wam.m.I Dareeate tMlahelkaWWh,edp tknofma odehm: rod wmba,eq.bdln dm mld-awlY p"m dtlm dewlopmmm Dektub a.. Smram dvaldb. *u,)K tam.sae►omraraudr.djm. Ord.bIfdb mpmtiym d ha grin. ~ 1,Eeda r. wfedaw .r kep; or avdm Wft1.g dleaa 30%0fduh W ebbs 9iad.d0A be provided for 9adea mat o YkW*b E® atter aarmaml Deleted"X.. PmHds waawarr 0 hu ' mp"iegmdxah gwsd=150poddrg apes ar100 sa an0'a®ma wh balding eobao.gt Dabledt h Dakeadt teahiiad momy Mwk 0e1aea1,c d Dalabadi - r D~1 poFab bdrwpt es DdeM i Dokft* j Deleted:k Ddeadl I Dalatad: ACom6dmd Un Pamm far m.mubbei ypvdenarLida d.vkpnwadudb..at.medyd. m mhadn4a mr finel pbt app,wal m mY ane. 1Nrtndh* Indent: Left 130', Hanging: n1r'Numtered+level: 1 + Numbering SWe: 4 a, K... + stmt at I +eapmmmt: tart+ AWed at 1.94'+Tab arta: 0'+ brletat Z44' room ed: Indent Hwmft: 0.13' Page 5 EXHIBIT A 7. .CONSENT TO DE- ANNEXATION AND REVERSAL OF ZONING DESIGNATION: consents to and conditioned upon the following conditions precedent to -wit: 7,1 That the City provide written notice ofany More to comply with this Agreement to Owner/Developer and ifthe OwnevDeveloper 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 Sogineer's inspections and written approval of such completed improvements or portion thereof in accordance with the terns and conditions of this Development Agreement and all other ordinimm of the City that apply to said Development 9. DEFAULT: 9.1 In the event Ownw/Developer, or Owner/Developer's heirs, successors, assigns, or subsequent owners ofthe Property or any other Peron 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- _a court of comoetent nKisdiction rules that Owned/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 (.Sty of any default by owner/Developer of any one or r more of tbtcovenants or conditions hereof shall apply solely to the breach and breaches waived and shall not bar any other rights or F, "by remedies of City or apply to any subsequent breach of any such or r'1 en' other covenants and conditions. a�aore 10. REQUEREMENT 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 Owrer/Developer,,_ 11. ZONING: -The current zoning of C -G (General Conmerciall shall remain. DEVPLOPMENr AGREEMENT (AZ 07-006 &RZ 07-010) PINPARIDGE SUBDIVISION PAGE S OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 6 EXHIBIT A 12. REMEDIES: This Agreement shall be enforceable inanycerrtofcompetent jurisdiction by either City or Owner/Developer, or by my successor or successors intitle or by the migns of the parties hereto. Enforcementmaybesought byan appropriate action at law or in equity to secure the specific performance ofthe covenants, agreements, conditions, and obligations contained herein. 12.1 In the event of a material breach ofthis Agreement, the parties agree that City and OwnedDevoloper 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 anysuch default which cannot with diligence be cured within such thirty (30) day period, if the defaulting party shall commence to cine the same within such thirty (30) day period and thereafter shellprosecute the curing ofsame with diligence and continuity, then the time allowed to cure such failure maybe attended for such period as maybe necessary to complete the curing ofthe 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 Citymayrequireirevocablelettm of credit, cashdeposits, certified che& as allowedunderMerldianCityCode Section 11-5-C, to insure installation of my unfinished improvements that am not mconflictwith 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. CERTIFICATESOFOCCUPANCY: Certificates of Occupancy will be issued jn any phase u been installed, completed, and accepted by the City Qr letter of credit for unfinished immovemenis. is. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agree to abide by all ordinances of the City of Meridian and the Property shall be subject to de- amcomfion if the owner or his assigns, heirs, or successors shall not meet the conditions DEVEI.OPMENr AORE2MBNT (AZ 07-M & RZ 07-010) PBEBRIDGE SUBD1VMON PAGE 6 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 lidetm wpm Page 7 EXHIBIT A contained in the Findings ofFact and Conclusions of Law, this DevelopmentAgreement, and the Ordinances of the City of Meridian. 16. NOTICES: Any notice desired by the parties and/or required by this Agreementshall be deemed delivered if and whenpersonally, delivered orthree (3) daysaft deposit inthe United States Mail, registered or certifiedmail,postageprepaid, mtumrwaipt requested, addressed as follows: CITY: OWNER/DEVELOFER: clo City Engineer .O.T. I LLC oetwa: o�rw.mn City of Meridian3698E a.ataaxw Lanark 03 11 33 E. Idaho Ave. Meridien ID 3642 D~ m.. Meridian, ID 83642 enktert utas with copy to: City Clerk Phillip E. Broadbent City of Meridian Scentsv, Inc. 33 E. Idaho Avenue 3698E Lanark Meridian, ID 83642 Meridian, ID 83642 16.1 Apmty 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 partieshereto concerning this Agreement, theprevailmlipmty shall beentitled, in additionto any other relief as may be granted, to court costs and reasonable attomWs 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. . is. 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 ofthe obligations hereundershaR constitute a breach of and a default under this Agreement 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: TbisAgreement"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 oftheProperty, each subsequent owner and any other person acquiring an interest in the Properly. 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 bothbenefited and bawd by the conditions andtestrictioashaein expressed. Citysg.oes, upon written request of Owne/Devel open, to execute appropriate and recedable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determined that Owne/Developer has fahly performed its obligations ander this Agreement. 20. INVALID PROVISION: If any provision of this Agreement is held not valid by social ofcompetent jurisdiction, suchprovision shallbe deamedto be excisedfrom this Agreement and the invalidity thereof shall not affect any of the other provisions contained herein. 21. FINAL AGREEMENT: 'Mils Agreement sets forth all promises, inducements, agreements, condition and understandings between Owner/Developerwel 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/Developerand City, other than as 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 smigns, and pursuant, with respect to City, to a duly adopted ordinance or resolution of City. 22. on the 21.1 No condition governing the uses and/orconditions governing re-zoningofthe subject Propetybereioprovided for can be modified or emended without the approval ofthe City Council atter the City has conducted public bearing(s) in accordance with the notice provisions provided for a zoning designation and/or amendment in force at the time of the proposed amendment. EFFECTIVE DATE OFAGREEhOM: This Agreement shall be effective DEVELOPMENT AGREEMENT (AZ 07406 &RZ 07-010) PINEBRIDOE SUBDIVISION PAGE 8 OF 10 Scentsy Campus MDA -10-010; VAR -10-002 Page 9 EXHIBIT A IN 1YMESS WMMtBOP, m9 p rdm is a Mob ata AW dd99pemml WdlUlk9 cfiWft abwdMbMpm9lded. OWNZRMCVXLOM HS6ZL 1J.0 orr�aaa�aauwA CITYBlNI =MN BY: MwYOR TAABdYd WMD ATlBSf: ONVELOFMMAaRMUMT O74%&RZWAIVIPB4MNMCN MOrAWN PAM 9OF 13 Scentsy Campus MDA -10-010; VAR -10-002 Page 10 EXHIBIT A STATE OF MAHO, ) sw CbMW otAdk ) uenlaN4 a� � Nopsy Pu61io-o cW ndtar era sok pmay wreaa (mown OF idmdfid to me m m the atlyQ�1,Ii.C.ediwwlsdusdmmsthmiesseenred OmMsmoemer�� the woo oa beheltatmdd oapWaim IN Wt1NP.ilB WHEREOF, I hre I . set ety bund and ab" my oxww sed dw dq ondym in thio am0com Ilett shove mwftw (SEAL) Notuy %"c tar Moho Rwft It: MY CAemsariao Expfi :_ .. STATEOFMAHO ) :m Co®q+etAde ) mmeq Imoworid oMW Vie wewred db Mmuwaat soft 1N WIIIiM WHMWF, I hm Itetmmoe Be my heed and et8xdd my odidd red the dw rod yeer im 9de Mdfiwoe fiat emw Vaflmo_ (SEAL) Nervy ftWk mr Idem msec coo mltlao empinm: nera,oeeteNe w�ea.�vr G►z tn� t as mat � �tt+�tlove y t>etxivtxtae I'ME le d le Scentsy Campus MDA -10-010; VAR -10-002 Page 11 a. General b. C. Con the building, h3. Buildings will be constructed in the order they are generally fisted bn the plan (A, B, C, etc.). l4. Building "A" is an accessory use within the citrrent zoning designationat permitted to be constructed prior to other principally permitted stnrcAures this agreement. }5. The construction of either building B or C,will commence within 30 mon C 7. Sceatsy Campus MDA -10-010; YAR -I0 -OP S. 9. 10. EXHIBIT A 13. 13. 14. 15. Scentsy Campus MDA -10-010; VAR -1 Q-AQi 16. 17. 23. 24. Sceatsy Campus MDA -10-U10; VAR -10-002 EXHIBIT A Exhibit A.6 - Proposed Conceptual Building Elevations Page l¢:' EXHIBIT A Scentsy Campus MPA -10-010; VAR -10-002 EXHIBTP A Exhibit A.7 - Right -Of -Way Encroachment Permit Approved by ITD & Approval Letter � xw PWLMII RIOhR*Wgr ftwO ahmwk APAOm wW P*mW MM APP =OjM wW OIhM EOwIq"h wft tr•' 1. A=MOWN EnwoudnwR Clad" OP/r"mOWwM doaum a mukom sMMsCh p@M& Ir.a. z. vvnnen.u�w4r�a,f�amtirawnwar.a,.mmupinww�req�� a RMGrdWA*jMftWdWAq r ibs pno r .eiwY mns «pliMq Al '119 w n MbrbFhd s. N*MIftwWOfttmftQnbdPkMEnwmimelritdoonmbm WVGU ,-N-pwmbL IarlNjrMatlamlMwsrerrerwsr ------ �.��--�-•-- - . Scentsy Campus MDA -10-010; VAR -10-002 Page 18 EXHIBIT A .hew a 2006 Mr. Flaft V.Shoormw f66 W. ■e:ew* aft foo Odes. ID MM Re: E7rmodimerdPomtOa06,811—aft "VmySo Dw Mr. abosreehm 1mmwim MMNMSW You wren! Womrd by tsiler fMt our drpeApemtwre peooesdrp wfh your npual ter awelenae *W wflsa o"ol@A 11" paomesecnm-m TWehis>r "Mooeimmol eft I endbb ftfMewaftlodoom Yowlequaetlorawnl loabwm upp*& rn &$ end ow d"We aft deededopproedi leoppmodwlflftI - 'no- --1 rl 1) 0 17 Sb WAWA 8) ED&RoadrMO M uMn•DueloftMghIreMJ db l lomdamndho outbfnTi ftbVWOftNVAIMMgAvdlDkddfiNmdloNerefon(rw sou6baaid on EapM Road (81666) M P1ne 8lnset. /rr pnopeMd epproiteh el tlblmlgi e. AWmw*DmW—Theapwse0hw Mpakdtop newbaapalnYdbbW tole 8r deoelerefon ergo ScentsyCarnpusMDA-10-010; VAR -10-002 ibit6iYed ......«......« Page 19 Rk..odffib V. &%wwr*Mw I 3 W,2WV POP2 . 4) a) 6) EXHIBTI' A IL PWAnadl- a-MwMllwwoWMeddmdwwlMaMa�lrnsbonwdwd C. mkmdmodbnvd rWndi*aom"W*WdopMpft bm"mk dlo 10 TM Wnd Upas NOW d ft Mw. onwt ,wn yaraaorpwna dw fwAWw d8PPWM bnw M M1� �►+ �9wWoiw h wend b w oerdMenadeppowl plwNNl (ba b eaMaot ma by Mobwnwft phoew «•wt BMW*. +edgy Fnprw► cox mgr DIWM SMAdMOL ftl*na y, MftSM4 ftcTo" UNK MwwombYwft eorvlas Scentsy Campus MDA -10-01 0; VAR -10-002 Page 20 EXHIBIT A Exhibit A.8 — Proposed Access/Lane Configuration s�v M Mi I �1 II II f �: rl II II II Q II If D COMMERCM COURT Scentsy Campus MDA -10-010; VAR -10-002 I 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 11-5114E 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 Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: ITEM TITLE: Resolution No. A Resolution of the Mayor and the City Council of the City of Meridian Authorizing the City Clerk to Destroy Certain Semi -Permanent and Temporary Records of the Meridian Public Works/Building & Development Services Divisions MEETING NOTES , 2) env s-{- iu VaCa+2 \4 Ne 0,A CA / Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 6 PROJECT NUMBER: ITEM TITLE: Items Moved from Consent MEETING NOTES Nn>1c Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: PROJECT NUMBER: ZOA 11 ITEM TITLE: Continued from June 21, 2011: Public Head Unified Development Code (UDC) Text Amendment by City of Meridian Public Works Department Request: Amend the Surety Section, UDC 1 1-5C to Include Clarifications, Increase Surety Amounts and to Provide for Bonds as a Form of Surety MEETING NOTES -Fy�\ec�YVLO -✓\ Community Item/Presentations Presenter Contact Info./Notes &4-inve-c� A -o -�/Lq CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 7B PROJECT NUMBER: ITEM TITLE: Continued from June 21, 2011: Public Comment (k� tea, P Mo It -1485 Unified Development Code (UDC) Text Amendment by City of Meridian Public Works Department Request: Amend the Surety Section, UDC 11-5C to Include Clarifications, Increase Surety Amounts and to Provide for Bonds as a Form of Surety (First Reading) MEETING NOTES orvl �j cern ,I Community Item/Presentations Presenter Contact Info./Notes &r\n tnveA '�o 7IS-I11 CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS CITY OF MERIDIAN CITY COUNCIL PUBLIC COMMENT SIGN-UP SHEET June 28, 2011 ITEM # 713 PROJECT NUMBER Proposed Ordinance No. 11-1485 Performance and Warranty Surrety for Public PROJECT NAME Infrastructure PLEASE PRINT NAME FOR AGAINST NEUTRAL AvtAok ,q%a w'V. k v r h� ]ECEIVE JUN z o 2011 CITY CF r1KQW'" OFFICE Meridian City Council Meeting DATE: June 28, 2011 ITEM NUMBER: 8 PROJECT NUMBER: ITEM TITLE: Future Meeting Topics MEETING NOTES Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS