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Tradewinds Subdivision AZ 12-012ADA COUNTY RECORDER Christopher D• Rich AMOUNT ,00 12 BOISE IDAHO 02!07113 10;2D AM DEPUTY Bonnie0berbillig III I~ I~~ Illl~lll~IIIIIII~~ ~~ RECORDED-REQUEST OF I 11)11 Meridian City 11."k11 ~#~=1~=_~ DEVELOPMENT AGREEMENT PARTIES: 1. City of Meridian 2. Glacier Bank, Owner 3. Don Newell, SDN, LLC, Developer THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into this 3`r'` day of 2013, by and between City of Meridian, a municipal corporation of the State of Idah ,hereafter called CITY, and Glacier Bank, whose address is PO Box 1059, Coeur D'Alene, ID 83816, hereinafter called OWNER, and Don Newell, SDN, LLC, whose address is PO Box 1939, Eagle, ID 83616 hereinafter called DEVELOPER. 1. RECITALS: 1.1 WHEREAS, Owner is the sole owner, in law and/or equity, of certain tract of land in the County of Ada, State of Idaho, described in Exhibit A for each owner, which is attached hereto and by this reference incorporated herein as if set forth in full, herein after referred to as the Property; and 1.2 WHEREAS, LC. § 67-6511A, Idaho Code, provides that cities may, by ordinance, require or permit as a condition of re-zoning that the Owner and/or Developer make a written commitment concerning the use or development of the subject Property; and 1.3 WHEREAS, City has exercised its statutory authority by the enactment of Ordinance 11-SB-3, which authorizes development agreements upon the annexation and/or re-zoning of land; and 1.4 WHEREAS, Owner and/ar• Developer have submitted an application for annexation of the Property described in Exhibit A, and has requested a designation of R-8 (Medium Density Residential District), (Municipal Code of the City of Meridian); and 1.5 WHEREAS, Owner and/or Developer made representations at the public hearings both before the Meridian Planning & Zoning Commission and before the Meridian City Council, as to how the subject Property will be developed and what improvements will be made; and DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 1 OF 10 1.6 WHEREAS, record of the proceedings for the requested annexation and zoning designation of the subject Property held before the Planning & Zoning Commission, and subsequently befol•e the City Council, include responses of government subdivisions providing services within the City of Meridian planning jurisdiction, and received further testimony and comment; and 1.7 WHEREAS, City Council, the 2ND day of January, 2013, has approved the Findings of Fact and Conclusions of Law as set forth in Exhibit B, which are attached hereto and by this reference incorporated herein as if set forth in full, hereinafter referred to as (the Findings); and 1.8 WHEREAS, the Findings require the Owner and/or Developer to enter into a development agreement before the City Council takes final action on annexation and zoning designation; and 1.9 OWNER and/or DEVELOPER deems it to be in their best interest to be able to enter into this Agreement and acknowledges that this Agreement was entered into voluntarily and at their urging and requests; and 1..10 WHEREAS, City requires the Owner and/or 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 as a result of evidence received by the City in the proceedings for zoning designation from government subdivisions providing services within the planning jurisdiction and from affected property owners and to ensure re-zoning designation is in accordance with the amended Comprehensive Plan of the City of Meridian adopted on April 19, 2011, Resolution No l 1-784, and the Zoning and Development Ordinances codified in Meridian Unified Development Code, Title 11. NOW, THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: 2. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and are incorporated herein as if set forth in full. 3. DEFINITIONS: For all purposes of this Agreement the following words, terms, and phrases herein contained in this section shall be defined and interpreted as herein provided for, unless the clear context of the presentation of the same requires otherwise: 3.1 CITY: means and refers to the City of Meridian, a party to this Agreement, which is a municipal Corporation and government subdivision of the state DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PacE 2 OF 10 of Idaho, organized and existing by virtue of law of the State of Idaho, whose address is 33 East Broadway Avenue, Meridian, Idaho 83642. 3.2 OWNER: means and refers to Glacier Bank, whose address is PO Box 1059, Coeur D' Alene, ID 83816, the party that owns said Property and shall include any subsequent owner(s) of the Property. 3.3 DEVELOPER: means and refers to Don Newell, SDN, LLC, whose address is PO Box 1939, Eagle, ID 83616, the party that is developing said Property and shall include any subsequent developer(s) of the Property. 3.4 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 annexed as R-8 (Medium Density Residential District), and 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. 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 and/or Developer shall develop the Property in accordance with the following special conditions: a. Future development of the site shall substantially comply with the preliminary plat, landscape plan, and conceptual building elevations included in Exhibit C. b. Across-access/ingress-egress easement is required to be granted to the adjoining property to the south owned by the City of Meridian (Parcel #S 1129223550) in accord with UDC 11-3A-3A, Access to Streets. 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 and/or Developer or Owner's and/or 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 DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 3 OF 10 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 and/or Developer's default of this Agreement, Owner and/or Developer shall have thirty (30) days from receipt of written notice from City to initiate commencement of action to correct the breach and cure the default, which action must be prosecuted with diligence and completed within one hundred eighty (180) days; provided, however, that in the case of any such default that cannot with diligence be cured within such one hundred eighty (180) day period, then the time allowed to cure such failure may be extended for such period as may be necessary to complete the curing of the same with diligence and continuity. 7.3 Remedies. In the event of default by Owner and/or Developer that is not cured after notice as described in Section 7.2, Owner and/or 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 and/or Developer reserve 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 the City or Owner and/or Developer, or by any successor or successors in title or by the assigns of the parties hereto. Enforcement may be sought by an appropriate action at law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. 7.4 Delay. In the event the performance of any covenant to be performed hereunder by either Owner and/or 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 and/or Developer of any one or more of the covenants or conditions hereof shall apply solely to DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 4 OF 10 the default and defaults waived and shall neither bar any other rights or 1emedies of City nor apply to any subsequent default of any such or other covenants and conditions. 8. INSPECTION: Owner and/or Developer shall, immediately upon completion of any portion or the entirety of said development of the Property as required by this Agreement or by City ordinance or policy, notify the City Engineer and request the City Engineer's inspections and written approval of such completed improvements or portion thereof in accordance with the terms and conditions of this Agreement and all other ordinances of the City that apply to said Property. 9. DEFAULT: 9.1 In the event Owner and/or Developer, or Owner's and/or Developer's heirs, successors, assigns, or subsequent owners of the Property or any other person acquiring an interest in the Property, fail to faithfully comply with all of the terms and conditions included in this Agreement in connection with the Property, this Agreement may be terminated by the City upon compliance with the requirements of the Zoning Ordinance. 9.2 A waiver by City of any default by Owner and/or Developer of any one or more of the covenants or conditions hereof shall apply solely to the breach and breaches waived and shall not bar any other rights or remedies of City or apply to any subsequent breach of any such or other covenants and conditions. 10. REQUIREMENT FOR RECORDATION: City shall record either a memorandum of this Agreement or this Agreement, including all of the Exhibits, at Owner's and/or Developer's cost, and submit proof of such recording to Owner and/or Developer, prior to the third reading of the Meridian Zoning Ordinance in connection with the re-zoning of the Property by the City Council. If for any reason after such recordation, the City Council fails to adopt the ordinance in connection with the annexation and zoning of the Property contemplated hereby, the City shall execute and record an appropriate instrument of release of this Agreement. 11. ZONING: City shall, following recordation of the duly approved Agreement, enact a valid and binding ordinance zoning the Property as specified herein. 12. REMEDIES: This Agreement shall be enforceable in any court of competent jurisdiction by either City or Owner and/or 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. 12.1 Subject to Sections 6 and 7 of this Agreement, in the event of an uncured material breach of this Agreement, the parties agree that City and Owner DEVELOPMENT AGREEMENT- TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 5 OF 10 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 pet•iod, if the defaulting patty 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 maybe extended for such period as may be reasonably necessary to complete the curing of the same with diligence and continuity. 12.2 In the event the performance of any covenant to be performed hereunder by either Owner and/or Developer or City is delayed for causes which are beyond the reasonable control of the party responsible for such performance, which shall include, without limitation, acts of civil disobedience, strikes or similar causes, the time for such performance shall be extended by the amount of time of such delay. 13. SURETY OF PERFORMANCE: The City may also require surety bonds, irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under Meridian City Code ~ 11-5-C, to insure that installation of the improvements, which the Owner andlor Developer agrees to provide, if required by the City. 14. CERTIFICATE OF OCCUPANCY: The Owner and/or Developer agrees that no Certificates of Occupancy will be issued until all improvements are completed, unless the City and Developer and/or Owner has entered into an addendum agreement stating when the improvements will be completed in a phased developed; and in any event, no Certificates of Occupancy shall be issued in any phase in which the improvements have not been installed, completed, and accepted by the City. 15. ABIDE BY ALL CITY ORDINANCES: That Owner and/or Developer agree to abide by all ordinances of the City of Meridian and the Property shall be subj ect 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. 16. NOTICES: Any notice desired by the parties and/or required by this Agreement shall be deemed delivered if and when personally delivered or three (3) days after deposit in the United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY: City Clerk OWNER: Glacier Bank City of Meridian PO Box 1059 33 E. Broadway Ave. Coeur D' Alene, Idaho 83816 Meridian, Idaho 83642 DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 6 OF 10 DEVELOPER: Don Newell, SDN, LLC PO Box 1939 Eagle, ID 83616 with copy to: City Attorney City of Meridian 33 E. Broadway Avenue Meridian, ID 83642 16.1 A party shall have the right to change its address by delivering to the other party a written notification thereof in accordance with the requirements of this section. 17. ATTORNEY FEES: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorney's fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 18. TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. 19. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including City's corporate authorities and their successors in office. This Agreement shall be binding on the Owner 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 subj ect to the provisions hereof and any successor owner or owners shall be both benefited and bound by the conditions and restrictions herein expressed. City agrees, upon written request of Owner/Developer, to execute appropriate and recordable evidence of termination of this Agreement if City, in its sole and reasonable discretion, had determined that Owner and/or Developer has fully performed its obligations under this Agreement. 20. INVALID PROVISION: If any provision of this Agreement is held not valid by a court of competent jurisdiction, such provision shall be deemed to be excised fiom this Agreement and the invalidity thereof shall not affect any of the other provisions contained herein. 21. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, condition and understandings between Owner and/or Developer and City relative to DEVELOPMENT AGREEMENT - TRADEWINDS SUBDIVISION (AZ 12-012) PacE 7 OF 10 the subject n~attex hereef, and there are no promises, agreements, conditions or understanding, either oral or written, express or implied, between Qwnex and/az Z7eve14per azzd City, other than as ire stated herein. i;xcept as herein otherwise provided, no sufzsequent alteration, arnendxnent, change or addition to this Agreezxzent shall be bindizxg upon floe parties hereto unless zeduced to writiz~zg az~d si~»ed by them ar their successors in interest or their assigns, and pursuant, with. aspect to City, t~ a duly adopted ordinance or resolution of City. 21.1 1~o condition goveza~azzg the uses and/or conditions gaverriin~ re-zoning of the subject ~'z;aperty herein provided for can be modified or amended without the approval of the City Council after the City has conducted puhiic heariu~g(s) itx accordance with the notice provisions provided far a zoning designation andlor amendment in force at the tune of the proposed azrzexzdzxaent. 22. EFFECTIVE DATE OF AIsREEMEI~TT: This Agreement shall be effective on the date the Meridian City Council shall adapt the amendment to the IVleridian,~aning Ordiutance in connection with the annexatiam and zc~zjl>~g ofthe P"xoperty aid e.cecution oftlae Mayor and City Clerl~. ACHIVOWLEDGMENTS ~N WzTN~SS W~1E12.EQb', the parties have herein executed this agreement and zxz~de it effecti~'e as bereinabove provided. OWNER.: DEV~ ~LAI~TE1tt T3A1~ ~DN, ~~ r ~ ~y~ Richard Brittain, SUP/5AA Dy'Don~Teweli CITY OF MERIDIAN AT'T'EST: ~O`L1-y i~v,, ~.VUS~ ~ 1 19 ~ ~ ` City of ~ ~~~TDI Mayor Tatnmy'de Weerd , ° A ~i-~ ~,~: _~ ~ `~,`~,F, ~~y~i% Halrrian, City Clerk r~~v~.x,a~~r~r~.~r~~n~mA M~~v ~rv~szo~r(.az zz-oiz~ riRax $ o~ ro S~'ATE OF Ip~~Q, ) . ss bounty of A.da ) On this day of 4 ~-~~, ~.~ $~ 2Q1~, befgxe zxze, the undersigned, a I~'otary Public in azzd fax said Mate, l7ez's~nalZy appeased k ~- ` ,~ known or zder~tlfxed to me to be the person who executed the agreement on behalf of GL,A.~~r R.l~, azxd acknowledged to me that lze executed tlae same of behalf of said Bat>k. IN WITNESS VJHEREaF, I have heretanto set my hand and affixed my official seal the day and year irz this eertii:icate first above written. °~ ) r 1~lotaiy public for dalza residing at: ~ ~ ~~ ~ ~...., ,~ ley Commission l;xpires: ~.r ~_ , ~ ~~-, ~-., C7n this day of r'~ ~. V~ c.~..ot 2Ul ~, befaz~e zne, the undez~sigz-zed, a I~'otazy public izz and for said 'axe, personally appeared n Ne't}velI knowrZ ar iderAtified to me to be the person who executed the •eezxzezzt vzx behal~of ST.~l~t, ~1~~, and aclsxzowledged to zne that lie axecut~d the same o~'~el~a~~'afi s 'd L~~i~ted L~ah~l~ty Corpora~Cio~. TN WZ':CN.~SS Wf~p.EC~ I have laereuzzta sef zxzy hand anal aff'z~ed zxzy official seas the day and year in this certificate first ove written. ~pCH~~ ~ (SEAL) ~ ? \ , ~ _ I~Totaiy r rdalio =.~~j ~ `-~~ residing at: ~, f (/ j'• '' ~ Ivly Caznzrzission E Tres: r ,~C~ l , ~~, ]~~V~1.Qk1~',A, .RAt3=W11~rA3 SURAxvISIO~T (A.~ Z2-012) ~~ca 9 Qk' 10 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 heI•eto unless reduced to writing and signed by them or their successors in interest or their assigns, and pursuant, with respect to City, to a duly adopted ordinance or resolution of City. 21.1 No condition governing the uses and/or conditions governing re-zoning of the subject Property herein provided for can be modified or amended without the approval of the City Council after the City has conducted public hearing(s) in accordance with the notice provisions provided for a zoning designation and/or amendment in force at the time of the proposed amendment. 22. EFFECTIVE DATE OF AGREEMENT: This Agreement shall be effective on the date the Meridian City Council shall adopt the amendment to the Meridian Zoning Ordinance in connection with the annexation and zoning of the Property and execution of the Mayor and City Clerk. ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this agreement and made it effective as hereinabove provided. DEVELOPI~,R: CITY OF MERIDIAN Mayor Tatr~`ny de Weerd SDN, I~LC }` ,:~ ~/ ? _. By: Don Newell ter',, .~,° -'~~ ATTEST: O ' ~' _r - ~G 9°W ~ ~ ~ IDIA.N i~awo (1 n ~- ;~,. olman, Clerk DEVELOPMENT AGREEMENT-TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 8 OF 10 STA IDAHO, ) ss County of A ) On t ' day of , 2013, before me, the undersigned, a Notary Public in and fo aid State, personally appeared known or identified to me to be the p •son who executed the agreement on behalf of GLACIER BANK, and acknowledged to me that he ecuted the same of behalf of said Bank. IN WITNESS W OF, I have hereunto set my hand and affixed my official seal the day and year in this certificate rst above written. (SEAL) STATE OF ~ , ) County of ) ss Notary Pl~l Residing at: My Commi: for Idaho ices: On this ~ day of ~~~ ~.,~ . ~-~ f , 2013, before me, the undersigned, a Notary Public in and for said State, personally appeared -n Newell known or identified to me to be the person who executed the agreement on behalf of SDN, LLC, and aclcrlowledged to me that he executed the same of behalf of said Limited Liability 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. ~-_ ~ _~. `_a ~ ~ (SEAL) ~ ~r Notaiy'I~IIc~~pr Idaho Residing at: :,`` -' My Commission Expires: ~i~ ~, DEVELOPMENT AUR~~~L MEN'"1'- TRADEV/INDS SUBDIVISION (AZ 12-012) PaGE 9 OF 10 STATE OF IDAHO ) ss County of Ada ) On this ~ day of ~~\ Vw a. , 2013, before me, a Notaly Public, personally appeared Tammy de Weerd and Jaycee L. Hol nan, 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 WITNES S WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. -~_ (SEAL); Not r Public for Ida o ~, Residing at: ~e~ l ~ ~'~ `'~ 1 I~ Commission expires: `~,-~ ~( ~~ 1 9 ~ DEVELOPMENT AGREEMENT- TRADEWINDS SUBDIVISION (AZ 12-012) PAGE 10 OF 10