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HomeMy WebLinkAboutEisenberg Rezone Dev Ag CC ODEisenberg Rezone Development Agreement Case No. ZON-58-08 Recording requested by: City of Caldwell Planning and Zoning Dept. P.O. Box 1179 Caldwell, Idaho 83606 ________________________________________________________________________ For Recording Purposes Do Not Write Above This Line Development Agreement Eisenberg Rezone This Development Agreement is made and entered into this ______ day of August, 2008, by and between the City of Caldwell, a municipal corporation in the State of Idaho (“City”), by and through its Mayor, and VVPI, L.L.C., an Arizona limited liability company (“Owner/Applicant/Developer”). WHEREAS, the Owner/Applicant/Developer holds title to certain real estate (“Property”) located in the City and more particularly described as follows: See Exhibit “A”, a legal description, attached hereto and incorporated herein by this reference; and WHEREAS, the Property is the subject of an application for rezone identified as Case Number ZON-58-08; and WHEREAS, development of the Property will be as a C-3 (Service Commercial) development; and WHEREAS, the Property is currently zoned M-1 (Light Industrial) in the City; and WHEREAS, it is the intent of this Development Agreement to protect the rights of the Owner/Applicant/Developer’s use and enjoyment of the Property, while at the same time limiting any adverse impacts resulting from the re-zone classification of this Property upon neighboring properties and the community and ensuring that any development of the Property is in a manner consistent with the City’s Comprehensive Plan and City Code; and WHEREAS, the City and Owner/Applicant/Developer desire to set forth herein limitations and/or conditions upon the use and development of the Property; and WHEREAS, all capitalized terms in this Development Agreement not herein defined shall have those meanings designated in the City Code, the City Zoning Ordinance and the City Comprehensive Plan; and WHEREAS, the rezone approval is subject to this Development Agreement; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, Owner/Applicant/Developer and the City agree as follows: ARTICLE I LEGAL AUTHORITY 1.1 The City will adopt an ordinance to rezone the Property subject to the provisions of this Development Agreement and provided the Owner/Applicant/Developer is either the Owner of the Property or is duly authorized by the Owner of the Property. This Development Agreement shall be signed and delivered to the Caldwell Planning and Zoning Department within 20 days of the approving City Council public hearing, and prior to the Mayor’s signing of the affirmative Order of Decision by the Mayor and City Council permitting the rezone classification. The rezone classification ordinance shall only become effective after its passage, approval and publication. ARTICLE II CONDITIONS OF THE RE-ZONE CLASSIFICATION 2.1 The Property shall be utilized in the fashion and according to the terms set forth in the development application Case No. ZON-58-08 to include the following conditions: Except as specifically stated otherwise in this Development Agreement, all development of the Property must meet all requirements of City codes, ordinances, rules, regulations and standards governing the Property and property under the jurisdiction of the City in effect at the date of the submittal of any development application for any type of development. In the event the Property’s legal description is discovered to be in error, the Owner/Applicant/Developer shall be responsible for assuming the measures necessary to provide the City with an accurate legal description. Development shall be consistent with the City’s Comprehensive Plan. Any flexibility granted shall be consistent with the interests of the City and in substantial compliance with said Plan. In accordance with City Code, any phase of development of the Property shall require the construction of street side improvements in any public right-of-way adjacent to the Property to include curb, gutter, sidewalk, sub-base, asphalt paving, storm drainage facilities, street lights and water mains. These street improvement features shall be required to be incorporated into the design and construction of all streets located within the development as well. All roadways, planned and future, shall be built to City standards and dedicated for public purpose. Public roadway improvements shall include curb, gutter, sidewalk, sub-base and asphalt paving, storm drainage facilities, streetlights, and water mains. These street improvement features shall be incorporated into the subdivision and/or development as it is developed and shall be constructed by an appropriately-licensed public works contractor. At the time of development or within 90 days of a request by the City (whichever is sooner), the Owner/Applicant/Developer shall dedicate necessary right-of-way, being a forty-foot one-half width right-of-way, along the entire Smeed Parkway frontage of the Property. a. At the time of the applicable phase of development, the Smeed Parkway frontage of the Property shall be improved with the required street section of a thirty-one foot half-width street section from centerline to back of curb and shall feature standard vertical curb and gutter, 6-foot wide sidewalks, sub-base and asphalt paving, required storm water drainage facilities and streetlights. Additional widening may be required during construction plan review. If specifications to the current street section schedule requirements, as defined in this Development Agreement, have changed by the date of submittal of a development application, the Owner/Applicant/Developer shall be required to adhere to the more stringent requirements at time of development. Any non classified-street, planned or future, shall be constructed within a minimum fifty-six (56) foot right-of-way consistent with the City subdivision ordinance or a fifty-one (51) foot right-of-way consistent with City standards for a planned unit development. The streets shall be constructed at a width of 37 feet to back of curb and shall feature standard rolled curb, gutter, 4-foot wide sidewalks, sub-base and asphalt paving, required storm drainage facilities and streetlights. All development, impending and future, shall comply with City spacing and alignment standards along restricting full access approaches and intersections to a distance of no less than 440 feet, near curb to near curb, from signalized intersections or intersections likely to be signalized (intersections of classified roads) and right-in/right-out intersections a distance no less than 220 feet, near curb to near curb, from such intersections. Further, approaches on the same side of the street shall be spaced no less than 150 feet apart, near curb to near curb. Approaches or intersecting roadways to be installed across the street from existing intersections shall either be aligned within a 10-foot centerline offset or be offset by no less than 150 feet near curb to near curb. a. Except that a service vehicle approach shall be allowed at the southeast corner of the property. The design of the approach shall be subject to the approval of the Engineering Department. Signage shall be clearly posted at the entrance indicating that the approach is for service vehicles only. Any development of the Property shall require compliance with Idaho State Statute 49-221 regarding clear sight at intersections within and adjacent to the Property and other applicable standards. Any phase of development may require participation in a traffic study if warranted under the most-recently adopted traffic study ordinance. If a study is required, said traffic study shall be commissioned by the City at the Owner/Applicant/Developer’s expense. The Owner/Applicant/Developer shall be responsible to share a proportionate cost of the required improvements noted therein and any other improvements the City Engineer deems necessary as a result of his analysis of the completed traffic study. In the course of development, street improvements, traffic mitigation measures or trust investments shall be completed in equitable portions for each phase so that the cost to develop lots given the overall improvements required is as nearly the same for each phase as is practical. In no case shall a disproportionate share of the cost be delayed to later phases. Except as specifically stated otherwise in this Development Agreement, any development shall meet all requirements set forth in the City’s most-recently adopted Zoning Ordinance and any portions contained therein. Except as specifically stated otherwise in this Development Agreement, any development shall meet all requirements set forth in the City’s most-recently adopted Subdivision Ordinance and any portions contained therein. The Property shall be maintained in keeping with the City’s nuisance abatement until such time as development is complete. Maintenance shall include the mowing of all weeds (said mowing to take place at least monthly within the months of April, May, June, July, August, September and October) within the subdivision boundaries and the immediate removal of noxious weeds when they are identified. All appropriate dust abatement procedures as part of the construction process shall be applied. At the time of development a “Rules and Regulations” sign shall be posted and maintained at the entryways to the project 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. All historical drainage discharge points from the Property shall be identified and retained for the purpose of draining on site storm water detention facilities. All phases of all development shall require compliance with the City’s Storm Water Management Manual and any updates adopted subsequent to the date of this Development Agreement. The engineer of record shall provide calculations which indicate that the assumptions in the stormwater drainage plan comply with the requirements of said Management Manual and said adopted updates. Sewer is available from a 21” main line adjacent to the Property in Smeed Parkway. Development of any phase shall require the Property to connect to the City’s Sewer System and comply with any applicable sewer study in the construction of on-site and adjacent sewer facilities. The location of sewer service, including sizing of mains, providing of easements, frontage construction, and offsite construction shall be decided by the Engineering Department during review of improvement plans. All habitable lots shall require an individual sewer service. A public utility easement not less than 20 feet in width shall be provided for any sewer lines not in the public right-of-way and 30 feet in width for adjacent sewer and water lines. Said easements shall be constructed under/within an all-weather surface so as to provide access for maintenance and/or repair. All development shall require all easements and/or rights-of-way to be determined and clearly indicated on all Final Plats. A note shall be placed on the Final Plat indicating that all rights-of-way are to be dedicated to the public. No individual common lot or individual commercial lot or individual residential lot within any development on the Property shall be allowed to take direct access to any classified roadway. Cross-access easements shall be required across all lots. Water is available from a 12-inch main line located adjacent to the Property in Smeed Parkway. All development shall require the Property to connect to the City Municipal Water System and comply with any applicable City Water Master Study. At the time of each phase of development of the Property, all habitable lots shall be supplied with potable water. The location of water services, including sizing of mains, providing of easements, frontage construction and offsite construction shall be decided by the Engineering Department during review of improvement plans. Irrigation water for the Property shall be obtained from the appropriate irrigation entity, such as an irrigation district, and/or from other existing surface or ground water rights appurtenant to the Property. Pressure irrigation facilities shall be provided consistent with City specifications and dedicated to the City. City municipal water may be used for irrigation purposes only if the criteria specified in the Landscape Ordinance Section 10-07-12 are met. Any water rights on the Property as of the date of this agreement, excepting those held in trust by an irrigation entity, such as an irrigation district, shall not be sold, otherwise transferred to other parties or abandoned, but shall be transferred to the City for use on the Property. The City shall assist in obtaining transfer approval. The transfer application will not be filed place until development begins. Development must allow the continuance of existing drainage and/or irrigation rights-of-way across the Property in accordance with Idaho law. The appropriate irrigation and/or drainage district shall be contacted to aid in ascertaining these rights. It appears that the “A” Drain crosses the southwesterly portion of the Property. Existing easements and/or rights-of-way of record for said drain and any other irrigation facility shall be determined and clearly indicated on the construction plans. Construction across or re-routing of said “A” Drain is subject to approval by Pioneer Irrigation District. Except as specifically stated otherwise in this Development Agreement, all development of the Property shall be subject to the laws and requirements of State and City Code and any and all City Ordinances in place at the time of submittal of any development application. Vehicular and pedestrian connectivity shall be provided to the north, east and west. The above Development Agreement conditions are in addition to the regulations provided for in the zoning district as well as all codes, standards, requirements, resolutions and titles of the City. The Order of Decision, including all conditions of approval, for the rezone classification of the Property is hereby made a part of this Development Agreement to be adhered to by the Owner/Applicant/Developer, and is attached hereto as Exhibit “B” and incorporated herein by this reference. In the event there is a discrepancy or conflict, the strictest condition shall generally apply but the Planning and Zoning Department shall be allowed the flexibility to clarify inconsistencies with the caveat that said Department may or may not deem it necessary to take the issue back before City Council as a new business item. A temporary easement on the alignment of any master-planned sewer at a width necessary for construction of the same (not less than 30 feet in width) shall be granted and remain in effect until replaced by right-of-way or a permanent easement. All requirements from the City Engineering Department related to the Property, and any development on the Property, shall be met and adhered to. All requirements from the City Building and Fire Departments related to the Property, and any development on the Property, shall be met and adhered to. Any note, item or drawing element on any plats, drawings, designs or plans inconsistent with City Codes, Policies and/or Ordinances shall not be construed as approved, regardless of stamped approval by any City department, unless specifically addressed as a variance or deviation by City Council and granted by the City Council as a variance or deviation. In the event of Owner/Applicant/Developer’s default hereunder, Owner/Applicant/Developer hereby voluntarily, knowingly and intentionally waives the rights and privileges set out in Idaho Code 67-6511(d) that might prohibit the City from rezoning the property over Owner/Applicant/Developer’s objection within four (4) years after granting the zone designation sought in this current application Case No. ZON-58-08. A landscaping plan that depicts all requirements of the most-recently adopted landscaping ordinance (the landscaping ordinance in place at the time of any development application) shall be submitted to the Planning and Zoning Department and approved prior to the issuance of any building permits or approval of any preliminary plats. The Property is divided between the APO-1 and APO-2 zone. Divided parcels shall follow Section 10-11-08 of City Code as well as following all other portions of Section 10-11 of City Code. As per Section 10-11-11 of City Code, applications for rezoning, annexation, deannexation, subdivision plats, special use permits or variances on any property lying wholly or partially within the APO-1 or APO-2 zones shall be submitted to the airport commission for comment as part of any action by the City planning and zoning director, City planning and zoning commission or City council. Sign permits for signage shall be obtained prior to installing any sign at the site. All signage shall be in accordance with the most recently-adopted sign ordinance in place at the date of submittal of any sign permit application. External lighting shall be downward facing. All requirements of any applicable airport overlay zones shall be met prior to any City signatures on any final plat. Additionally, all requirements of any applicable airport overlay zones shall be met prior to issuance of any certificates of occupancy. All requirements of applicable agencies connected to development of the Property, including all applicable City departments, shall be met prior to the issuance of building permits or certificates of occupancy, preliminary plat approvals or any City signatures on any final plat. ARTICLE III AFFIDAVIT OF PROPERTY OWNERS 3.1 An affidavit of the Owners of the Property agreeing to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A is incorporated herein by reference. ARTICLE IV DEFAULT 4.1 Upon a breach of this Development Agreement, either of the parties in any court of competent jurisdiction, by action or proceeding at law or in equity, may secure the specific performance of the covenants and agreements herein contained, may be awarded damages for failure of performance of both, or may obtain rescission, disconnection, and damages for repudiation or material failure of performance. Before any failure of any party to this Development Agreement to perform such party’s obligations under this Development Agreement, the party claiming such failure shall notify, in writing, the party alleged to have failed to perform of the alleged failure and shall demand performance. No breach of this Development Agreement may be found to have occurred if performance has commenced to the complete and full satisfaction of the complaining party within thirty (30) days of the receipt of such written notice. 4.2 The parties hereto may, in law or in equity, by suit, action, mandamus or any other proceeding, including, without limitation, specific performance, enforce or compel the performance of this Development Agreement; provided, however, that Owner/Applicant/Developer agrees that it will not seek, and does not have the right to seek, to recover a judgment for monetary damages against City or any elected or appointed officials, officers, employees, agents, representatives, or attorneys on account of the negotiation, execution or breach of any of the terms and conditions of this Development Agreement. In the event of a judicial proceeding brought by any party to this Development Agreement against the other party for enforcement or for breach of any provision of this Development Agreement, the prevailing party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful party of all costs and expenses, including reasonable attorneys’ fees incurred in connection with such judicial proceeding. 4.3 In the event of a material breach of this Development Agreement, the parties agree that each shall have thirty (30) days after delivery of notice of said breach to correct the same prior to the non-breaching party’s seeking the remedies provided herein; provided, however, that in the case of any such default which cannot with diligence be cured within said 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, the time within which such failure may be cured shall be extended for such period as may be necessary to complete the curing of the same with diligence and continuity. Due diligence in curing a breach shall be determined by the non-breaching party in the reasonable exercise of its discretion. 4.4 In addition to specific provisions of this Development Agreement, performance by any party to this Development Agreement shall not be deemed to be in default where delays or defaults are due to war, insurrection, strike, walk-out, riot, flood, earthquake, fire casualty, or act of God. As long as Owner/Applicant/Developer has provided governmental agencies all necessary information in a timely manner, performance hereunder shall not be deemed in default where delays or defaults are due to governmental agencies. An extension of time necessary to gain approval of another independent governmental agency as required in the conditions of approval may be granted upon written request. The grant of a time extension shall be in writing and shall specify the period of excused delay. ARTICLE V UNENFORCEABLE PROVISIONS 5.1 If any provision of this Development Agreement or the application of any provision of this Development Agreement to a particular situation is held by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be disregarded and this Development Agreement shall continue in effect. However, if such provision is not severable from the balance of the Development Agreement so that the mutually dependent rights and obligations of the parties remain materially unaffected, this Development Agreement shall become void unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the Owner/Applicant/Developer and the City as an amendment to the Development Agreement processed in accordance with the notice and hearing provisions of Idaho Code Section 67-6509. ARTICLE VI ASSIGNMENT AND TRANSFER 6.1 After its execution, the Development Agreement shall be recorded in the Office of the County Recorder by the City Clerk. 6.2 Each commitment and the restrictions on the development shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property and shall run with the land. 6.3 This Agreement shall be binding on the Owner/Applicant/Developer, and his/her/their respective heirs, administrators, executors, agents, legal representatives, successors, and/or 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 Development Agreement, and such obligations shall be automatically adopted by the buyer of the same. 6.4 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 liable for all commitments and other obligations arising under this Development Agreement with respect to the Property or portion thereof. ARTICLE VII GENERAL MATTERS 7.1 Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions of the Idaho Code Section 67-6509. 7.2 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 neutral gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 7.3 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. 7.4 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: Caldwell: City of Caldwell Planning and Zoning Department P.O. Box 1179 Caldwell, ID 83606 Owner/Applicant/Developer: VVPI, L.L.C., an Arizona limited liability company 2231 East Camelback Road Suite 215 Phoenix, AZ 85106 Or such other addresses 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. 7.5 Merger and Integration. This writing embodies the whole Development Agreement. There are no promises, terms, conditions, or obligations other than those contained in this Development Agreement. All previous and contemporaneous communications, representation, or agreements, either verbal or written, between City and Owner/Applicant/Developer are superseded by this Development Agreement. 7.6 Third party Beneficiaries. Nothing contained herein shall create any relationship, contractual or otherwise, with, or any rights in favor of, any third party. 7.7 Changes in State and Federal Law. This Development Agreement shall not preclude the application of changes in state or federal laws or regulations to the Property. In the event such law prevents or precludes compliance with one or more provisions of this Development Agreement, City and Owner/Applicant/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(s) to this Development Agreement. 7.8 Effective Date. This Development Agreement shall be effective upon the date of recordation. The City shall deliver to each of the parties hereto a recorded and fully executed copied original of this Development Agreement. IN WITNESS WEREOF, the parties have executed this Development Agreement. DATED this ____ day of _________________, 2008 CALDWELL: CITY OF CALDWELL, a municipal corporation organized and existing under the laws of the State of Idaho By:_________________________, Mayor ATTEST: _____________________________, City Clerk DATED this ____ day of _________________, 2008 STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 2008, before the undersigned notary public in and for the said state, personally appeared Garret L. Nancolas, known or identified to me to be the Mayor of the City of Caldwell and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that said City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. ____________________________________ Notary Public for Idaho Residing at:__________________________ My Commission Expires:_______________ OWNER/APPLICANT/DEVELOPER: VVPI, L.L.C., an Arizona limited liability company By: Eisenberg-Spier VVP, LLC, an Arizona limited liability company Its: Administrative Member By: Craig F. Eisenberg and Pamela S. Eisenberg, as Co-Trustees of the Eisenberg Family Trust U/T/A dated September 28, 1990, as amended and restated in its entirety U/T/A dated October 28, 2002 Its: Administrative Member By:_________________________________ Craig F. Eisenberg, Co-Trustee By:_________________________________ Pamela S. Eisenberg, Co-Trustee STATE OF _________________ ) : ss. County of __________________ ) On this ____ day of __________________, 2008, before the undersigned notary public in and for the said state, personally appeared Craig F. and Pamela S. Eisenberg, Co-Trustees of the Eisenberg Family Trust U/T/A dated September 28, 1990, as amended and restated in its entirety U/T/A dated October 28, 2002, the Administrative Member of Eisenberg-Spier VVP, LLC, an Arizona limited liability company, known or identified to me to be the Administrative Member of the Owner/Applicant/Developer referenced herein and the persons who executed the foregoing instrument on behalf of VVPI, L.L.C. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. ____________________________________ Notary Public for _____________________ Residing at:__________________________ My Commission Expires:_______________