HomeMy WebLinkAboutLavender Crossing DA FinalMay, 16, 2023
Lavender Crossing Development Agreement
(ANN23-000007)
After Recording
Return to:
Director
Caldwell Planning and Zoning Dept.
621 Cleveland Blvd
Caldwell, Idaho 83605
For Recording Purposes,
Do Not Write Above This Line
DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”) is made and entered into this 16th of May, 2023, by and between the City of Caldwell, a municipal corporation of the State of Idaho (“City”),
whose address is 411 Blaine Street, Caldwell, Idaho 83605, and Justin Fishburn and Yellowstone Capital LLC, (“Owner”)
RECITALS
WHEREAS, the Owner is the owner of record of approximately 14 acres of certain real estate identified as Canyon County Parcel No. R32487 and R32478010 located at 4121 and 4114 Laster
Lane, Caldwell, Idaho, (“Property”), and legally described in the attached legal description (Exhibit A), which is the subject of an application for Annexation identified as Annexation
Application Case No. ANN23-000007; and
WHEREAS, the proposed development includes properties within an area currently zoned R-3 (High Density Residential – Canyon County designation); and
WHEREAS, the Caldwell Planning and Zoning Commission and City Council have held public hearings as prescribed by Idaho Code with respect to the zoning and development of the Property
and this Agreement; and
WHEREAS, on the 16th day of May 2023, the City Council approved Application Case No. ANN23-000007, to include the approval of the development agreement herein, authorizing the Property
be rezoned to R-3 (High Density Residential), and adopted the Findings of Fact, Conclusions of Law, and Order of Decision (“Order”); and
WHEREAS, the Caldwell Planning and Zoning Commission and City Council have determined that the scope of development upon the Property must be limited with the use of a development agreement
to prevent undue damage to, and to otherwise be in harmony with, the existing community; and
WHEREAS, the intent of this Development Agreement to protect the rights of Owner’s/Developer’s use and enjoyment of the Property, while at the same time limiting any adverse impacts
resulting from the development of this property upon neighboring properties and the existing community, and ensuring the
Property is developed in a manner consistent with Caldwell’s Comprehensive Plan and City Code; and
WHEREAS, the Owner has provided Caldwell with an affidavit agreeing to submit the Property to a Development Agreement (Exhibit B) pursuant to Caldwell City Code and the provisions set
forth in Idaho Code Section 67-6511A and be bound by same; and
WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by reference; and
AGREEMENT
In consideration of the above Recitals and of the mutual covenants, duties, and obligations contained herein, the parties agreed as follows:
ARTICLE I
LEGAL AUTHORITY
This Development Agreement is made pursuant to and in accordance with the provisions of Idaho Code Section 67-6511A and Caldwell City Code, Chapter 10, Article 3.
ARTICLE II
ZONING ORDINANCE AMENDMENT
Caldwell will adopt an ordinance amending the Caldwell Zoning Ordinance to rezone the Property that is the subject of the application to the R-3 (High Density Residential) zone, after
recordation of, and subject to the provisions of this Development Agreement. The ordinance will become effective after its passage, approval, publication, and execution and recordation
of this Development Agreement.
ARTICLE III
CONDITIONS ON DEVELOPMENT
Development of the subject property shall be consistent with all requirements, codes, policies, standards, and regulations of the City of Caldwell, unless specifically stated otherwise
in the development agreement or in the Order of Decision.
A development agreement shall be approved prior to the recording of the annexation. The development agreement contains the obligations of both parties and lays out the various standards
and conditions that will control development of the subject property such as; the maximum build out and includes general uses, density and general site layout.; vested right for the
term of the agreement to proceed according to land use regulations in effect at the date of the execution of the agreement; reservation or dedication of land for public purposes including
facilities or associated infrastructure. The development agreement must be approved by the City Council.
A development agreement shall not prevent the city in subsequent actions applicable to the property from applying new rules, regulations or policies that do not conflict with commitments
applicable to the property set forth within any duly executed agreement.
The development, design, and construction of Lavender Crossing shall be in substantial compliance with the submitted site plan and elevations (See Exhibit A attached hereto) of Case
File ANN23-000007 and SUP23-000004, or as amended to reflect requirements by City Engineering Department (Attachment B attached hereto as amended). Any substantial deviations, as determined
by the Planning & Zoning Director, from said Case File Exhibit, shall require City Council approval, through a public hearing.
Comply with all requirements of the City Engineering Department as specified in their memo dated 30th day of January, 2023 and shown in Attachment B.
All requirements from the Fire Department for access, turnarounds, emergency access, water supply, fire hydrants, etc. shall be met in the development and/or platting of the subject
property. Final approval of the location and number of fire hydrants within the development shall be determined by the Fire Marshal and take place by phase at the time of submittal
of applicable construction drawings for each phase. For specific information, see Attachment C.
Any changes to the plans and specifications upon which this approval is based, other than those required by the above conditions, will require submittal of an application for modification
and approval of that application prior to commencing any change.
All improvements and operations shall comply with applicable local, state and federal requirements and procedures whether specifically addressed in the analysis of this application or
not.
In the event that any provisions of this agreement are more or less strict than the City Code or other law or regulations in place at the time of development, the more stringent requirements
shall apply.
The applicant shall ensure building design is compatible with the existing neighborhood and adjoining properties by taking into account building type, height, bulk, and site location.
The development shall utilize cluster mailboxes for delivery of mail. Individual mailboxes shall not be allowed. A cluster mailbox placement plan shall be submitted to the Planning and
Zoning department showing coordination with the United States Postal Services prior to submitting the construction drawings.
The applicant shall post and maintain a “Rules and Regulations” sign at the entryways to the residential subdivision until it is fully developed. The signs would be intended for subcontractors
performing work and should include: 1) no dogs; 2) no loud music; 3) no alcohol or drugs; 4) no abusive language; 5) dispose of personal trash and site debris; 6) clean up any mud and/or
dirt that is deposited from the construction parcel onto streets; 7) installation of a temporary construction fence that would keep debris from being blown off site by the wind; 8)
no burning of construction or other debris on the Property.
The applicant shall comply with all landscaping requirements based on Caldwell City Code, Chapter 10, Article 7.
Proposed fencing must comply with Caldwell City Code Section 10-02-07.
This approval is for this application only. Additional permits, licenses and approvals may be necessary.
The property owner is responsible for the maintenance of all landscaping and screening devices required.
If any term or provision of this decision, to any extent, is held invalid or unenforceable, the remaining terms and provisions hereof shall not be affected thereby, but each such remaining
term and provision shall be valid and enforced to the fullest extent permitted by law.
Approval of the special use permit shall be subject to the annexation approval by City Council.
Units 9 and 10 will be two story.
The developer will work with homeowners around buildings 9 and 10 to increase landscaping.
Applicant will need to work with the adjacent property owner to the east owning parcel R2519400000 to establish a recorded pathway easement on their property, and to construct an 8-10’
wide public pathway with all required landscaping along the Elijah drain, connecting from Alante at
Spring Run to the edge of the Notus Canal. The construction and connection of the public pathway shall be completed prior to the issuance of certificate of occupancies for any structures
along the northeast and east boundary lines as shown below. If permission cannot be obtained from the property owner of parcel R2519400000 the applicant will need to install the pathway
on their site.
Applicant will install a 6’ fence along the western boundary.
Applicant will be required to do a design review with the planning and zoning department before submittal of construction drawings.
Conditions of Approval for SUP23-000004 can be found in the signed Order of Decision by the Planning and Zoning Commission
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNER(S)
An affidavit of the owner(s) of the Property is attached hereto and incorporated by reference herein agrees to subject the Property to this Development Agreement (Exhibit B) and be bound
thereby, and comply with and be bound by the provisions set forth in Idaho Code Section 67-6511A and Caldwell City Code shall be provided and is incorporated herein by reference.
ARTICLE V
DEFAULT
In the event the Owner, their heirs or assigns or subsequent owners of the property or any other person acquiring an interest in the property, fails to faithfully comply with all of
the terms, conditions, and commitments set forth herein, included in this Agreement, within thirty (30) days of written notice of such failure from the City, the City shall have
the right without prejudice to any other rights or remedies to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement.
The City shall have the following non-exclusive and cumulative remedies, upon the City’s compliance with the requirements of Caldwell City Code and Idaho Code 67-6509.
If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, City shall be entitled to recover all direct out-of-pocket costs so incurred
to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorney’s fees and court costs.
ARTICLE VI
UNENFORCEABLE PROVISIONS
If any term, provision, commitment, or restriction of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable,
the remainder of this instrument shall nevertheless remain in full force and effect and that portion determined to be invalid or unenforceable shall be re-negotiated in good faith between
Owner(s), or other appropriate party, and the City.
ARTICLE VII
ASSIGNMENT AND TRANSFER
After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of the Owner. Each commitment and restriction on the development
shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property, adjacent property, and other property near the Property and shall run with the land.
This Development Agreement shall be binding on Owner, and its respective heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided, however,
that if all or any portion of the development is sold, the sellers shall thereupon be released
and discharged from any and all obligations in connection with the property sold arising under this Agreement. The new owner of the Property or any portion thereof (including, without
limitation, any owner who acquires its interest by foreclosure, trustee’s sale or otherwise) shall be bound by and liable for all commitments and other obligations arising under this
Agreement with respect to the Property or portion thereof.
ARTICLE VIII
GENERAL MATTERS
Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions of Idaho Code Section 67-6509.
Termination. A development agreement may be terminated by the city, and the zoning designation upon which the use is based may be reversed upon the failure of the owner, developer
or each subsequent owner or person acquiring an interest in the subject parcel to comply with the commitments in the agreement within two (2) years. The two (2) year period of time
for compliance of commitments may be extended by the city for just cause and upon application for such by the owner, and after complying with the notice and hearing provisions of
this section.
No failure by the City to enforce this Agreement or any provision hereof shall constitute a waiver of such provision or of any other right of the City or obligation of the Owner contained
herein. This non- waiver provision shall apply regardless of the amount of time that may elapse after such default by Owner. This non-waiver provision shall apply regardless of whether
such waiver by the City is express or implied.
Consent to Change Zoning. The establishment of a development agreement and the written commitments contained therein, in accordance with the provisions of this section, shall be deemed
written consent to change the zoning of the subject property to its prior designation upon failure to comply with the conditions imposed by the agreement.
Other Laws. This Development Agreement shall not prevent City, in subsequent actions applicable to the Property, from applying new ordinances and regulations of general application
adopted by City in the exercise of its police powers that do not conflict with the Parties’ commitments set forth herein, including, but not limited to, amendments to the City’s zoning
ordinance which may prohibit the use or uses Owner proposes in this Agreement. Owner understands that the building and fire codes applicable to its development shall be those in
effect at the time when a complete application for a building permit is filed. Nothing in this Development Agreement shall preclude the application of any law that is specifically
mandated and required by changes in state or federal laws or regulations. In the event such law prevents or precludes compliance with one or more provisions of this Development Agreement,
City and Developer shall meet and confer to determine how provisions of this Development Agreement would need to be modified or suspended in order to comply with the law and shall
prepare and process the necessary amendment or amendments to this Development Agreement.
Paragraph Headings. This Development Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience
only and shall not constitute a portion of this Development Agreement. As used in this Development Agreement, masculine, feminine or neuter gender and the singular or plural number
shall each be deemed to include the others wherever and whenever the context so dictates.
Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Idaho in effect at the time of the execution of this Development Agreement.
Any action
brought in connection with this Development Agreement shall be brought in a court of competent jurisdiction located in Canyon County, Idaho.
Legal Representation. Both the Owner and City acknowledge that they each have been represented by legal counsel in negotiating this Development Agreement and that neither party shall
have been deemed to have been the drafter of this agreement.
Ongoing Performance Commitments. If the Development Agreement has commitments involves ongoing performance and the owner or developer fails to comply with the commitment after completion
of construction, said failure may be dealt with by the city according to the violation and penalty provisions of this chapter and for specific performance of the development agreement,
including attorney fees and costs associated with the enforcement of the agreement.
Notices. Any notice which a party may desire to give to another party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail,
return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery service, to the party to whom the notice is directed at the address of such party
set forth below;
To City:
City of Caldwell
c/o Director, Planning & Zoning Department
621 Cleveland Blvd
Caldwell, Idaho 83605
With a Copy to:
Hamilton, Michaelson & Hilty, PLLC
Attn: Mark Hilty
1303 12th Avenue Road
Nampa, ID 83653
civillaw@nampalaw.com
To Owner:
Yellowstone Capital LLC
Justin & Gennie Fishburn
1410 N. 6th
Boise, Idaho 83702
With a Copy to Developer:
Riley Planning Services LLC
Penelope Constantikes,
P.O. Box 405
Boise, Idaho 83701
Or such other address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight
(48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after timely deposit with a reputable overnight delivery
service.
Either Party shall give notice to the other Party of any change of its address for the purpose of this section by giving written notice of such change to the other in the manner herein
provided. In the event any successor or assign fails to provide an address, the City’s obligation of mailing shall be deemed accomplished by uses of the address on file with the County
Tax Assessor.
Default. In the event Owner fails to comply with the terms and conditions hereof in any material respect, the City may, without further notice to Owner, exercise any or all of
the following remedies.
Withhold the issuance of any building permit or certificate of occupancy of any structure located within the Project;
Withhold the connection of water, sewer or electric service to any property located within the Project;
Refuse to accept public ownership and maintenance of public improvements within the Project and record a notice of such action with the Canyon County Recorder's Office;
Issue a stop work order for any building under construction within the Project;
Bring an action for damages, injunctive relief, specific performance or any other remedy available at law or in equity;
All of the above remedies are cumulative and to the extent not wholly inconsistent with each other, may be enforced simultaneously or separately, at the sole discretion of the City.
Attorney. The prevailing party in any claims or disputes arising out of this Agreement shall be entitled to recover reasonable attorney’s fees in addition to other relief which a
court of competent jurisdiction may award.
Effective Date. This Development Agreement shall be effective upon the signing and execution of this agreement by both parties.
Authority to Enter Into Agreement: By the execution and delivery of this Agreement by the parties, and the performance of their covenants and obligations therein, the parties acknowledge
such action has been duly authorized by all necessary corporate (or LLC) action, and necessary corporate (or LLC) resolution(s) have been executed for the undersigned representatives
to sign this Agreement and so bind their respective parties.
Automatic Termination: If the Property is not developed as conditioned herein, this agreement shall terminate five (5) years after the Effective Date.
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement.
DATED this _____________day of ________________, 2023.
CITY OF CALDWELL, a municipal corporation
organized and existing under the laws of the State of
Idaho
By:_______________________________________
Jarom Wagoner, Mayor
ATTEST:
_______________
Debbie Geyer, Caldwell City Clerk
STATE OF IDAHO )
)
County of Canyon )
On this ______ day of _________________, in the year ______, before me, the undersigned, a Notary Public in and for said State, personally appeared JAROM WAGONER, known to me to be
the MAYOR of said municipal corporation that executed this instrument and the persons who executed the said instrument on behalf of said corporation, and acknowledged to me that such
corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first written.
___________________________________________
Notary Public
Residing at: _________________________________
My Commission Expires: ______________________
OWNER(S):
By: __________________________
Justin Fishburn
By: __________________________
Yellowstone Capital LLC
STATE OF IDAHO )
)
County of Canyon )
On this ______ day of _________________, in the year ______, before me, the undersigned, a Notary Public in and for said State, personally appeared___________________________, known
or identified to me to be an owner of the property referenced herein and the persons who executed the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first written
___________________________________________
Notary Public
Residing at: _________________________________
My Commission Expires: ______________________
STATE OF IDAHO )
)
County of Canyon )
On this ______ day of _________________, in the year ______, before me, the undersigned, a Notary Public in and for said State, personally appeared___________________________, known
or identified to me to be an owner of the property referenced herein and the persons who executed the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first written
___________________________________________
Notary Public
Residing at: _________________________________
My Commission Expires: ______________________
INDEX OF EXHIBITS
A - Legal Description
B - Affidavit of Owner
C - Concept Site Plan
D - Concept Building Elevations
E - Landscape Plan
F - Permitted Land Uses
EXHIBIT A – LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
)
County of Canyon )
____________________, who being first duly sworn under oath, deposes and says:
I am ____________________________ (“Owner”), whose mailing address is _______________________________________________________________.
Owner is the fee simple owner of the parcel of real property (“Property”), and legally described as:
A parcel of land being a portion of the N ½ SW ¼ of Section 1, Township 3 North, Range 3 West, Boise Meridian, Canyon County, Idaho being more particularly described as follows:
COMMENCING at the ¼ Corner common to Sections 1 and 2, T3N, R3W, from which the center-west 1/16 Corner of said Section 1 bears N89°00’15”E, 1319.88 feet; thence N89°00’15”E, 1239.05
feet along the mid-section line and centerline of Laster Lane to the POINT OF BEGINNING; thence continuing N89°00’15”E, 50.10 feet; thence S63°28’16”E, 42.66 feet; thence S73°33’54”E,
43.97 feet; thence S62°54’54”E, 48.60 feet; thence S33°56’54”E, 249.87 feet; thence S25°15’47”E, 215.55 feet; thence N63°22’10”E, 106.31 feet; thence N89°08’49”E, 99.33 feet; thence
S73’26’55”E, 46.96 feet; thence S61°25’41”E, 56.80 feet; thence S54°11’53”E, 62.77 feet; thence S47°02’45”E, 72.14 feet; thence S40°42’12”E, 63.47 feet; thence S34°42’26”E, 37.54 feet;
thence S33°35’47”E, 51.87 feet; thence S27°32’02”E, 79.36 feet; thence S21°52’10”E, 109.23 feet; thence S15°23’23”E, 81.01 feet; thence S08°25’12”E, 118.51 feet; thence N89°00’19”E,
388.51 feet to a point on the mid-section line; thence S00°18’55”W, 293.83 feet along said mid-section line to the center-south 1/16 Corner; thence S89°12’20”W, 919.59 feet along the
1/16 line to a point on the easterly line of Weston Pointe Subdivision No. 2, Book 35 of Plats at Page 26, records of Canyon County, Idaho; thence N07°21’47”W, 192.88 feet along said
line; thence N14°22’48”W, 449.82 feet along said line; thence N01°08’18”W, 100.01 feet along said line; thence N22°44’07”E, 135.93 feet along said line and its extension; thence N27°25’38”W,
277.94 feet; thence N34°46’13”W, 166.98 feet; thence N62°35’01”W, 184.83 feet to the POINT OF BEGINNING. Parcel contains 14.027 acres, more or less.
___________________________________authorizes the submission of Property to certain Development Agreement pursuant to the provisions set forth in Idaho Code Section 67-6511A and Caldwell
City Code dated the ___ day of ________, 20___ by and between the City of Caldwell, a municipal corporation in the State of Idaho, and Owner (the “Agreement”).
DATED this ____ day of _____________, 20____.
Owner
By: ____________
Yellowstone Capital LLC / Justin & Gennie Fishburn
SUBSCRIBED AND SWORN to before me this ________day of ____________, 20 _ .
Notary Public
Residing at _____________________, Idaho
My Commission expires
EXHIBIT C – CONCEPT SITE PLAN
EXHIBIT D – CONCEPT BUILDING ELEVATIONS
EXHIBIT E – LANDSCAPE PLAN
EXHIBIT F – SCHEDULE OF LAND USES