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HomeMy WebLinkAboutKapic Dev Ag CC ODApril 22, 2008 Development Agreement for Kapic Case No. ANN-169-08 Recording requested by: City of Caldwell Planning and Zoning Department P.O. Box 1177 Caldwell, Idaho 83606 ________________________________________________________________________ For Recording Purposes Do Not Write Above This Line DEVELOPMENT AGREEMENT Kapic Annexation This Development Agreement made and entered into this ___ day of _____________, 2008, by and between the City of Caldwell, a municipal corporation in the State of Idaho by and through its Mayor (“City”), and Juso Kapic (“Owner/Applicant/Developer”). WHEREAS, the Owner of record holds certain real estate (Property) and hereby authorizes the Applicant to enter into this agreement with respect to said Property located in the City’s area of impact and contiguous to 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 identified as R35826 in the Canyon County Assessor’s Office; and WHEREAS, the Property is the subject of an application for annexation and land use zone classification identified as Application Number ANN-169-08; and WHEREAS, any development of the Property will be as C-2 Community Commercial with allowed special uses therein; and WHEREAS, the Property is currently zoned by Canyon County as A (Agricultural); and WHEREAS, it is being sought to rezone the Property to the City’s C-2 Zoning Classification; and WHEREAS, it is being sought to designate the Property as Commercial on the City’s Comprehensive Plan Map; 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 rezone 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 all development of the Property; and WHEREAS, all capitalized terms in this Development Agreement not herein defined shall have those meanings designated in the Caldwell City Code, the Caldwell Zoning Ordinance, and the Caldwell Comprehensive Plan; and WHEREAS, the annexation and land use zone classification are subject to a development agreement; and 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. This Development Agreement shall be signed by the Owner/Applicant/Developer prior to the Mayor’s signing of an affirmative Order of Decision by the Mayor and City Council permitting the annexation and prior to the Mayor and City Council passing the annexation ordinance for publication. The annexation ordinance will become effective after its approval, passage and publication. ARTICLE II CONDITIONS OF THE LAND USE ZONE CLASSIFICATION 2.1 The Property shall be utilized in the fashion and according to the terms set forth in the development application ANN-169-08 to include the following conditions: Any and all applications including, but not limited to, change of use applications, change of occupant/occupancy applications, building permit applications, sign permit applications, and/or land use applications for the Property must meet all requirements of City of Caldwell City Code, Ordinances, Policies and Standards in effect at the date of submittal of any application(s). In the event the Property’s legal description is discovered to be in error, the Owner/Applicant/Developer will be responsible for assuming the measures necessary to provide the City with an accurate legal description and correcting any erroneous annexation actions that may have occurred as a result, with all costs to be borne by the Owner/Applicant/Developer in correcting said errors. All 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 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 and asphalt paving, storm drainage facilities, street lights and water mains. These street improvement features will be required to be incorporated into the design and construction of all streets located within the development of the Property. At the time of any development or application or within 90 days of a request by the City (whichever is sooner), a forty-five foot (45’) one-half width right-of-way along the entire Ustick Road frontage (minus existing) of the Property shall be dedicated to the City. Any development or application shall require the street to be improved to a Principal Arterial. The street will be required to be constructed to include a 33-foot half-width street section from centerline to back of curb and shall feature standard vertical curb, gutter, 5-foot wide sidewalks, sub-base and asphalt paving, required storm water drainage facilities and street lights. These improvements shall extend the entire length of the Property’s Ustick Road frontage. City Specifications for these improvements will be required to be observed. 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 any development or subdivision of the Property, as it is developed, and shall be constructed by an appropriately licensed public works contractor. Culverts shall be extended/reconstructed as necessary to accommodate required street widening. Said extension/reconstruction shall be subject to appropriate city review. All development will require adherence to the City’s Infrastructure improvement policy. Construction of curb, gutter and sidewalk improvements will be required in accordance with City standards. Cross-access shall be provided to adjoining properties at the time of the subject property’s development. If specifications to the current street section and/or right-of-way schedule requirements have been changed by the date of submittal of any development applications, the most stringent requirements of those herein or those under code shall be required to be adhered to. Any non classified street, planned or future, shall be constructed within a minimum fifty-six (56) foot right-of-way consistent with the City’s 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 ACHD intersection spacing and alignment standards as adopted by the City of Caldwell, 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. All development of the Property shall require compliance with Idaho State Statute 49-221 regarding clear sight at intersections within and adjacent to the development and other applicable standards. Any and all roundabouts are subject to City Engineer design review and approval and City Engineer construction review, inspection and approval. 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 costs be delayed to later phases. All development/building of the Property shall require compliance with all requirements set forth in the most-recently adopted City of Caldwell Zoning Ordinance in effect at the date of submittal of any applications. All development of the Property shall require compliance with all requirements set forth in the City’s most-recently adopted Landscaping Ordinance and Tree Ordinance as of the date of submittal of any applications. The Property shall be maintained in keeping with the City’s nuisance abatement program 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 of the Property, a “Rules and Regulations” shall be posted and maintained at all entryways to the development 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 for the purpose of draining on site storm water detention facilities shall be identified in construction drawings and retained. All development of the Property shall require the maintenance of any existing upstream and/or downstream irrigation and/or drainage rights that may cross the Property. Conveyance systems are subject to City of Caldwell design review and approval. All development of the Property shall require compliance with the City of Caldwell Storm Water Management Manual including any subsequent updates. On site detention facilities shall be required for management of site storm water for future development except as provided for under said Manual. Development shall require connection to city sewer services. Any easements for sewer lines not in the right-of-way shall be at a width sufficient to construct same and not less than 20 feet in width. Easements for adjacent sewer and water lines not in the right-of-way shall be at a width sufficient to construct the same and shall be no less than 30 feet in width. A temporary 30-foot wide easement centered over any required sewer trunk line extension alignments to facilitate adjacent developments shall be provided. The temporary easement shall be retained until replaced by a permanent easement or recorded public right-of-way. Any development of the Property shall require (where applicable and as determined by the City Engineer) extension of all sewer mainlines to the center of adjacent roadways for connectivity by future developments. Locations of said extensions will be decided during the review of the improvements plans. Any platted development of the Property will require all easements and/or rights-of-way to be determined and clearly indicated on the Final Plats. A note will be required to be placed on all Final Plats indicating that all rights-of-way are to be dedicated to the public. This statement does not indemnify development of the Property from future requirements of any access-related policies or codes. All development of the Property shall require compliance with the City of Caldwell Water Master Study Plan as updated. City standards require that all new development shall construct 12-inch water lines along the Property’s frontages of all section and quarter section lines Development shall be required (where applicable and as determined by the City Engineer) to extend all water mainlines to the center of adjacent roadways for connectivity by future developments. Locations of said extensions shall be decided during the review of the improvement plans. All on site water mains shall be looped into existing mains for fire flow and water quality purposes. Internal main sizing and construction plan approval shall be dependent upon the availability of fire flow. Water is available from a ten-inch line located adjacent to the subject property’s southerly boundary in Ustick Road. Upon development of the Property, irrigation water for the Property shall be obtained from the appropriate Government Irrigation District, Irrigation Ditch Company and/or groundwater sources. Pressure irrigation facilities shall be provided consistent with Caldwell Municipal Irrigation District specifications and dedicated to Caldwell Municipal Irrigation District. Said Caldwell Municipal Irrigation District shall operate pressurized irrigation facilities for the Property. All platted development shall require the face of the subdivision final plat to bear a note stating that the development shall conform to Idaho Code 22-4503, Right to Farm Act. Any water rights on the Property as of the date of this agreement, excepting those held in trust by a government irrigation district, shall not be sold, otherwise transferred to other parties or abandoned, but shall be transferred to the City of Caldwell for both irrigation and domestic water supply for the Property. The City of Caldwell will assist in registering the transfer. Any development of the Property shall participate in any Development Master Plan designed for the area in which the Property is located in accordance with the provisions of Caldwell Subdivision Ordinance No. 1758, Article 2, Section 11-02-03, including planning for water and sewer connections for the development as well as accessibility of these utilities to adjacent properties. All development of the Property shall be subject to the laws and requirements of State and City Code and any and all City Ordinances, Rules, Regulations, Policies and Standards in place at the time of submittal of any and all applications. This agreement shall not inhibit the enforcement of provisions of code which may be stricter than given herein. In cases of variation or discrepancy the strictest condition shall apply. All requirements of the City of Caldwell Building Department and City of Caldwell Fire Department shall be met in any development of the Property. Any note, item or drawing element on any plats, construction drawings, engineering drawings and/or design drawings related to the Property inconsistent with the Development Agreement, Conditions of Approval, City Codes, Standards, Policies and/or Ordinances shall not be construed as approved (even if plans have been reviewed and approved by a City department) unless specifically addressed and granted by City Council as a variance or deviation. The conditions of this development agreement are in addition to the regulations provided for in the zoning district and in all city ordinances and codes. Dedication of rights-of-way shall be required at the time of development or application or within 90 days of a request by the City of Caldwell, whichever is sooner. Construction of frontage improvements shall be required at the time of development or application and shall be built to the most strict of the specifications in effect at the time of development or as stipulated herein. All requirements from the City Planning and Zoning Department, City Engineering Department, City Fire Department and City Building Department shall be met in the development of the Property. At the time of submittal of any change of use permit, special use permit, or building permit application for the Property, a landscaping plan shall be submitted to the Planning and Zoning Department for review. Said landscaping plan shall adhere to all requirements of the most recently-adopted landscape ordinance and tree ordinance in effect at the date of submittal of the permit application. Building permits shall not be issued until a landscaping plan has been approved by the Planning and Zoning Department. Certificates of occupancy shall not be issued until all requirements from City Building, Engineering, Fire and Planning and Zoning have been met as well as all requirements from this development agreement and from the Order of Decision. Owner/Applicant/Developer hereby voluntarily, knowingly and intentionally waive 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 objection within four (4) years after granting the zone designation sought in this current Application Number ANN-169-08. At the time of annexation (April 2008) an auto repair service shop was in existence and actively being used by the Owner/Applicant/Developer. A change of use, change of occupant, and/or special use permit application shall be required at the time that the Owner/Applicant/Developer changes the use of the existing auto repair service shop to another use, ceases operation, and/or sells the business to someone other than the Owner/Applicant/Developer. At the time of annexation (April 2008) a single-family residential dwelling was in existence and actively being used by the Owner/Applicant/Developer and is therefore granted special use permit status as part of the annexation application approval. At such time that the existing single-family residential dwelling changes use, changes occupant, and/or ceases to be used, special use permit status shall become null and void and a change of use, change of occupant, and/or special use permit application shall be required. A six-foot high fence shall be placed along the entire north boundary of the subject property, the material of said fence to be selected by the Owner/Applicant/Developer with approval from the adjacent neighbor to the north. No sales of used passenger vehicles or motorcycles may take place anywhere on the property at any time, except that a separate application for a special use permit be submitted and approved after the subject property has been annexed into the City of Caldwell. 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 In the event the Owner/Applicant/Developer fails to comply with the commitments set forth herein, within thirty (30) days of written notice of such failure from Caldwell, Caldwell 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. 4.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, the prevailing party 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 attorneys’ fees and court costs as the Court shall determine. ARTICLE V UNENFORCEABLE PROVISIONS 5.1 If any term, provision, commitment, or restriction of this Development 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 terminate and the zoning of the Property shall revert to the City of Caldwell’s original land designations as set forth in the Comprehensive Plan, unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the Owner/Applicant/Developer (or other appropriate party) and Caldwell 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 Caldwell City Clerk. 6.2 Each commitment and the 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 residential property near the Property and shall run with the land. 6.3 This Development Agreement shall be binding on the Owner/Applicant/Developer and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided, however, that if all or any portion of the Property 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, 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 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: Planning and Zoning Department P.O. Box 1179 Caldwell, Idaho 83606 Owner/Applicant/Developer: Juso Kapic 3521 E. Ustick Rd. Caldwell, ID 83605 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 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto of a fully executed original of this Development Agreement. IN WITNESS WEREOF, the parties have executed this Development Agreement. DATED this ____ day of _________________, 200_. 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 _________________, 200_ STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 200_, 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: Juso Kapic By:__________________________ STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 200_, before the undersigned notary public in and for the said state, personally appeared _____________________________, known or identified to me to be the owner/applicant/developer referenced herein and the person who executed the foregoing instrument. 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:_______________