Amberwave Subdivision AZ 14-004ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 35
BOISE IDAHO 05/22114 01:17 PM
DEPUTY Lisa Batt
RECORDED -REQUEST OF III I'IIIIIIIIIIIIIIIII'll'll
Meridian City 114039261
DEVELOPMENT AGREEMENT
PARTIES: 1. City of Meridian
2. Gem State M&M, LLC, Owner/Developer
2t THIS DEVELOPMENT AGREEMENT (this Agreement), is made and entered into
this day of tt , 2014, by and between City of Meridian, a municipal
corporation of the State of daho, hereafter called CITY whose address is 33 E. Broadway Avenue,
Meridian, Idaho and Gem State M&M, LLC, whose address is 5262 N Papago PL Boise, ID 83713,
hereinafter called O"ER/DEVELOPER.
1. RECITALS:
1.1 WHEREAS, Owner/Developer 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, Idaho Code § 67-6511 A provides that cities may, by ordinance,
require or permit as a condition of zoning that the Owner/Developer make a
written commitment concerning the use or development of the subject
Property; and
1.3 WHEREAS, City has exercised its statutory authority by the enactment of
Section 11-513-3 of the Unified Development Code ("UDC"), which
authorizes development agreements upon the annexation and/or re -zoning of
land; and
1.4 WHEREAS, Owner/Developer has submitted an application for annexation
and zoning of 5.56 acres described in Exhibit "A", requesting a designation
of R-15 (Medium -High Density Residential) zoning districts under the UDC,
which generally describes how the Property will be developed and what
improvements will be made; and
1.5 WHEREAS, Owner/Developer made representations at the public hearings
both before the Meridian Planning & Zoning Commission and before the
Meridian City Council, as to how the subject Property will be developed and
what improvements will be made; and
DEVELOPMENT AGREEMENT -AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 1 OF 8
1.6 WHEREAS, the record of the proceedings for the requested annexation and
zoning designation of the subject Property held before the Planning & Zoning
Commission, and subsequently before the City Council, includes responses of
government subdivisions providing services within the City of Meridian
planning jurisdiction, and includes further testimony and comment; and
1.7 WHEREAS, on the 6`h day of May, 2014, the Meridian City Council
approved certain Findings of Fact and Conclusions of Law and Decision and
Order ("Findings"), which have been incorporated into this Agreement and
attached as Exhibit `B"; and
1.8 WHEREAS, the Findings require the Owner/Developer to enter into a
Development Agreement before the City Council takes final action on
annexation and zoning designation; and
1.9 WHEREAS, 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 request; and
1.10 WHEREAS, City requires the Owner/Developer to enter into a development
agreement for the purpose of ensuring that the Property is developed and the
subsequent use of the Property is in accordance with the terms and conditions
of this 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 zoning designation are in accordance
with the amended Comprehensive Plan of the City of Meridian on April 19,
2011, Resolution No. 11-784, and the UDC, 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,
indess 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-AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 2OF8
3.2 OWNER/DEVELOPER: means and refers Gem State M&M, LLC, whose
address is 5262 N Papago PL, Boise, ID 83713. the party that is developing
said Property and shall include any subsequent owner/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 Medium High Density Residential District
(R-15) and attached hereto and by this reference incorporated herein as if set
forth at length.
4. USES PERMITTED BY THIS AGREEMENT: This Agreement shall vest the
right to develop the Property in accordance with the terms and conditions of this Agreement.
4.1 The uses allowed pursuant to this Agreement are only those uses allowed
under the UDC.
4.2 No change in the uses specified in this Agreement shall be allowed without
modification of this Agreement.
CONDITIONS GOVERNING DEVELOPMENT OF SUBJECT PROPERTY:
5.1. Owner/Developer shall develop the Property in accordance with the following
special conditions:
5.1.1 Development of this site shall substantially comply with the preliminary plat
and landscape plan in Exhibit A of the Staff Report attached hereto in the
Findings as Exhibit B.
5.1.2. Future homes constructed within the subdivision must comply with the
submitted elevations attached in Exhibit A.4 of the Staff Report attached
hereto in the Findings as Exhibit B. A mix of materials and architectural
details as represented in the attached elevations shall be incorporated on the
rear facades that face W. McMillan Road and N. Meridian Road (Lots 2-5
and 7-18, Block 1).
5.1.3. A maximum of twenty-seven (27) single family detached homes shall be
constructed on the site.
6. COMPLIANCE PERIOD This Agreement must be fully executed within two (2)
years after the date of the Findings for the annexation and zoning or it is null and void.
7. DEFAULT/CONSENT TO DE -ANNEXATION AND REVERSAL OF
ZONING DESIGNATION:
DEVELOPMENT AGREEMENT-AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 3 OF 8
7.1 Acts of Default. Either party's failure to faithfully comply with all of the
terms and conditions included in this Agreement shall constitute default
under this Agreement.
7.2 Notice and Cure Period. In the event of Owner/Developer's default of this
Agreement, Owner/Developer shall have thirty (30) days from receipt of
written notice from City to initiate commencement of action to correct the
breach and cure the default, which action must be prosecuted with diligence
and completed within one hundred eighty (180) days; provided, however, that
in the case of any such default that cannot with diligence be cured within
such one hundred eighty (180) day period, then the time allowed to cure such
failure may be extended for such period as may be necessary to complete the
curing of the same with diligence and continuity.
7.3 Remedies. In the event of default by Owner/Developer that is not cured after
notice as described in Section 7.2, Owner/Developer shall be deemed to have
consented to modification of this Agreement and de -annexation and reversal
of the zoning designations described herein, solely against the offending
portion of Property and upon City's compliance with all applicable laws,
ordinances and rules, including any applicable provisions of Idaho Code §§
67-6509 and 67-6511. Owner/Developer reserves all rights to contest
whether a default has occurred. This Agreement shall be enforceable in the
Fourth Judicial District Court in Ada County by either City or
Owner/Developer, or by any successor or successors in title or by the assigns
of the parties hereto. Enforcement may be sought by an appropriate action at
law or in equity to secure the specific performance of the covenants,
agreements, conditions, and obligations contained herein.
7.4 Delay. In the event the performance of any covenant to be performed
hereunder by either Owner/Developer or City is delayed for causes that are
beyond the reasonable control of the party responsible for such performance,
which shall include, without limitation, acts of civil disobedience, strikes or
similar causes, the time for such performance shall be extended by the
amount of time of such delay.
7.5 Waiver. A waiver by City of any default by Owner/Developer of any one or
more of the covenants or conditions hereof shall apply solely to the default
and defaults waived and shall neither bar any other rights or remedies of City
nor apply to any subsequent default of any such or other covenants and
conditions.
8. INSPECTION: Owner/Developer shall, immediately upon completion of any
portion or the entirety of said development of the Property as required by this Agreement or by City
ordinance or policy, notify the City Engineer and request the City Engineer's inspections and written
approval of such completed improvements or portion thereof in accordance with the terms and
conditions of this Agreement and all other ordinances of the City that apply to said Property.
DEVELOPMENT AGREEMENT-AMBERWAVE SUBDIVISION (AZ 14-004) PAGE OF
9. REQUIREMENT FOR RECORDATION: City shall record this Agreement,
including all of the Exhibits, and submit proof of such recording to Owner/Developer, prior to the
third reading of the Meridian Zoning Ordinance in connection with the re -zoning of the Property by
the City Council. If for any reason after such recordation, the City Council fails to adopt the
ordinance in connection with the annexation and zoning of the Property contemplated hereby, the
City shall execute and record an appropriate instrument of release of this Agreement.
10. ZONING: City shall, following recordation of the duly approved Agreement, enact a
valid and binding ordinance zoning the Property as specified herein.
11. SURETY OF PERFORMANCE: The City may also require surety bonds,
irrevocable letters of credit, cash deposits, certified check or negotiable bonds, as allowed under the
UDC, to insure the installation of required improvements, which the Owner/Developer agrees to
provide, if required by the City.
12. 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 the
City.
13. ABIDE BY ALL CITY ORDINANCES: That Owner/Developer agrees to abide by
all ordinances of the City of Meridian unless otherwise provided by this Agreement.
14. NOTICES: Any notice desired by the parties and/or required by this Agreement
shall be deemed delivered if and when personally delivered or three (3) days after deposit in the
United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed
as follows:
CITY:
City Clerk
City of Meridian
33 E. Broadway Ave.
Meridian, Idaho 83642
OWNER/DEVELOPER:
Gem State M&M, LLC
5262 N Papago PL
Boise, ID 83713
with copy to:
City Attorney
City of Meridian
33 E. Broadway Avenue
Meridian, ID 83642
14.1 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.
DEVELOPMENT AGREEMENT -AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 5 OF 8
15. 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.
16. 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.
17. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure
to the benefit of the parties' respective heirs, successors, assigns and personal representatives,
including City's corporate authorities and their successors in office. This Agreement shall be
binding on the Owner/Developer, 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/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.
18. INVALID PROVISION: If any provision of this Agreement is held not valid by a
court of competent jurisdiction, such provision shall be deemed to be excised from this Agreement
and the invalidity thereof shall not affect any of the other provisions contained herein.
19. DUTY TO ACT REASONABLY: Unless otherwise expressly provided, each party
shall act reasonably in giving any consent, approval, or taking any other action under this Agreement.
20. COOPERATION OF THE PARTIES: In the event of any legal or equitable action
or other proceeding instituted by any third party (including a governmental entity or official)
challenging the validity of any provision in this Agreement, the parties agree to cooperate in
defending such action or proceeding.
21. FINAL AGREEMENT: This Agreement sets forth all promises, inducements,
agreements, condition and understandings between Owner/Developer and City relative to the subject
matter hereof, and there are no promises, agreements, conditions or understanding, either oral or
written, express or implied, between Owner/Developer and City, other than as are stated herein.
Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to
this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by them
or their successors in interest or their assigns, and pursuant, with respect to City, to a duly adopted
ordinance or resolution of City.
21.1 No condition governing the uses and/or conditions governing re -zoning of the subject
Property herein provided for can be modified or amended without the approval of the
City Council after the City has conducted public hearing(s) in accordance with the
DEVELOPMENT AGREEMENT-AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 6OF8
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.
[end of text; signatures, acknowledgements, and Exhibits A and B follow]
ACKNOWLEDGMENTS
IN WITNESS WHEREOF, the parties have herein executed this agreement and made
it effective as hereinabove provided.
OWNER/DEVELOPER:
Gem State M & M, LLC
By•
William Fremgen
CITY OF MERIDIAN
By: /
Mayor Ta464y de Weerd
40gp,TED AUGUST
ATTEST: �G�4
_ e ^ City of
E IDIANt-
kIDAHO
f
SEAL
m �
T �P
6R of
the TBE ASUQ�C
DEVELOPMENT AGREEMENT — AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 7 OF 8
STATE OF IDAHO )
ss:
County of Ada, )
On this ta day of , 2014, before me, the undersigned, a Notary Public in and
for said State, personally appeared William Fremgen , known or identified to me to be the
Manager of Gem State M & M, LLC, and acknowledged to me that he executed the same on behalf
of said Limited Liability Company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
(SEAL)
���►►rrrr��,
E 4q�����
� Jct ,,....... .►
NO T,q,9 2
(P �eLiG
•.• \�
OF 10�
1
STATE OF IDAHO )
6M]
County of Ada
My Commission Expires'
On this f� J ` day of , 2014��ofore me, a Notary Public,
personally appeared Tammy de Weerd and , know 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
—as**
first above written.
1U ���, c,� L.. � ,P,C.
Notary Public Idaho
Residing at: & Lope IO
Commission expires: 2 - r,�!q
DEVELOPMENT AGREEMENT — AMBERWAVE SUBDIVISION (AZ 14-004) PAGE 8 OF 8
Legal Description
December 3, 2013
Project No. 113196
EXHIBIT A
THE LAND GROUP, INC.
Exhibit "A"
AMBERWAVE SUBDIVISION
ANNEXATION — REZONE DESCRIPTION
A parcel of land located in the Northeast 1/4 of the Northeast 1/4 of Section 36, Township 4
North, Range 1 West, B.M., Meridian, Ada County, Idaho, described as follows:
Commencing at the Section Corner common to Sections 25 and 36 of said Township 4 North,
Range 1 West, and Sections 30 and 31 of Township 4 North, Range 1 East, B.M., (from which
point the 1/4 Section Corner common to Sections 25 and 36 bears North 89'27'22" West a
distance of 2,681.84 feet), said Section Corner being the POINT OF BEGINNING;
Thence South 00"29'41" West a distance of 834.82 feet on the section Line common to said
Sections 31 and 36;
Thence North 89"27'27" West a distance of 290.00 feet on the northerly boundary line of
Ambercreek Subdivision No. 1, as same is shown on the Plat thereof recorded in Book 97 of
Plats at Page 12145 of Ada County Records, to an angle point in the northerly boundary line
of said Subdivision;
Thence North 00°29'41" East a distance of 834.83 feet to a point on the Section Line
common to said Sections 25 and 36;
Thence South 89°27'22" East a distance of 290.00 feet on the Section Line common to said
Sections 25 and 36 to the point of beginning.
Said Parcel contains 5.56 acres more or less.
PREPARED BY:
THE LAND GROUP, INC.
James R. Washburn, PLS
A,
I.andnapeArehitedinr • Sile Plannir;q • Chvl Engineenq . Go/fConrse ImSafron & Engiaeenng • Graphre Comair deation
462 E. Shore Driva, Ste. 100, Iiagle, Idaho 83616 • P 208.939.4041 b208.939.4445 • wwa.thelanderouplar,, onj
Amberwave Subdivision AZ 14-004