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HomeMy WebLinkAboutZON-17-05 Las Brisas DA (2)DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 1 January 16, 2018 Las Brisas Development Agreement (ZON-17-05) Recording requested by: City of Caldwell Community Development P.O. Box 1177 Caldwell, Idaho 83605 For Recording Purposes, Do Not Write Above This Line DEVELOPMENT AGREEMENT Las Brisas Rezone This Development Agreement is made and entered into this ___ day of _______________, 2018, by and between the CITY OF CALDWELL, an Idaho municipal corporation of 411 Blaine Street, Caldwell, Idaho 83605 (“City” or “Caldwell”), and MIRIAM, LLC, an Idaho limited liability company of 971 E. Winding Creek Drive #117, Eagle, Idaho, 83616 (“Owner” or “Developer”). WHEREAS, Owner is the owner of record of certain real property (the “subject property”) located within the City limits and more particularly described as follows: See Exhibit “A”, a legal description, attached hereto and incorporated herein by this reference. WHEREAS, the Subject Property is the subject of an Application for Rezone, identified as Application Number ZON-17-05; and WHEREAS, the property is currently zoned by the City of Caldwell as R-1 (Low Density Residential); and WHEREAS, the property is proposed to be rezoned to C-2 (Community Commercial); and WHEREAS, it is the intent of this Development Agreement to protect the rights of Owner and Developer’s use and enjoyment of the Property, while at the same time limiting any adverse impacts resulting from the zoning of this property upon neighboring properties and the community, and ensuring that any future development of the property is in a manner consistent with Caldwell’s Comprehensive Plan and City Code; and WHEREAS, Caldwell and Owner desire to set forth herein limitations and/or conditions DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 2 upon the use and future development of the Property; 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; WHEREAS, the new zoning designation with respect to the Subject Property, if granted by the City, will only be granted upon execution of this Development Agreement; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, Owner and Caldwell agree as follows: ARTICLE I LEGAL AUTHORITY Caldwell will adopt an ordinance to rezone the Subject Property, subject to the terms and conditions of this Development Agreement. This Development Agreement shall be signed before an affirmative Order of Decision by the Mayor and City Council permitting the rezoning designation will be signed into effect by the Mayor. The ordinance will become effective after its passage, approval, and publication. ARTICLE II CONDITIONS OF THE REZONE The Subject Property shall be utilized in the fashion and according to the terms set forth in the development application ZON-17-05, to include the following conditions: 1. All future development applications for the Subject Property must meet all requirements of the Caldwell City Code in effect at the time of application. 2. If the City of Caldwell has established a design review process at the time of submittal of development application(s) for the subject property, the applicant will be required to go through the design review process. 3. In the event the Subject Property’s legal description is discovered to be in error, the Owner will be responsible for assuming the measures necessary to provide the City with an accurate legal description of the Subject Property. 4. Planned and future development shall comply with the all applicable city codes, ordinances, policies, and standards. 5. All street improvements shall be constructed to City of Caldwell specifications. 6. Intersection and driveway spacing shall comply with ACHD Intersection and DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 3 driveway spacing requirements adopted by the City of Caldwell. 7. Install a 25-foot wide landscape buffer along Ustick Road. The landscape buffer shall contain a minimum of 10 Class II trees and 44 shrubs and shall contain grass and other vegetative ground cover so that the entire buffer area is covered. 8. Install a 10-foot wide street landscape buffer along Lenity Living Lane, abutting the site. The landscape buffer shall contain a minimum of 19 Class II trees and 96 shrubs and shall contain grass and other vegetative ground cover so that the entire buffer area is covered. 9. Provide a minimum of 72 paved parking stalls for the proposed multi-family development. The parking lot shall be paved and meet all City Code requirements. 10. Perpetuate the right-of-way along an alignment connecting Indian Springs Street with Lenity Living Avenue. Dedicate to the City of Caldwell a fifty-three (53) foot full width right-of-way along said alignment. 11. Construct Indian Springs Street along an alignment connecting with Lenity Living Lane as a 37-foot width local street section with standard vertical curb, 5-foot wide sidewalk, sub- base and asphalt paving, required storm water drainage facilities and street lights (see Caldwell Std. Dwg. 810-E). As soon as practicable after Indian Springs Street has been improved and provides a thru connection to Lenity Living Avenue, the City of Caldwell shall take all actions necessary to: (1) release of record that certain Right-of-Way Easement for a temporary turn around, recorded in the real property records of Canyon County, Idaho as Instrument No. 200441702; and (2) release of record in connection with all real property lying south of Indian Springs Street that certain Development Agreement, recorded in the real property records for Canyon County, Idaho as Instrument No. 200343493. 12. All requirements from the Fire Department for access, turnarounds, emergency access, water supply, fire hydrants, etc. shall be met in the development of the subject property. This shall include, but not be limited to, a secondary access road as approved by the Fire Marshal. Final approval of the location and number of fire hydrants within the development shall be determined by the Fire Marshal. 13. The above Development Agreement conditions are in addition to all other regulations provided for in the zoning district. ARTICLE III AFFIDAVIT OF PROPERTY OWNERS 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. DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 4 ARTICLE IV DEFAULT 4.1 In the event Developer and/or Owner 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 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 master plan, unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the applicant (or other appropriate party) and Caldwell as an amendment to the Development 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 at the expense of the Developer and/or Owner. 6.2 Each commitment and the restriction on the development shall be a burden on the Subject Property, shall be appurtenant to and for the benefit of the Subject Property, adjacent property, and other residential property near the Subject Property, and shall run with the land. 6.3 This Development Agreement shall be binding on the Developer, and Owner, and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns. 6.4 Any new or subsequent owner of the Subject 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 (LAS BRISAS) – PAGE 5 Agreement with respect to the Subject Property or any 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 deliver, by mailing the same by registered or certified mail, return receipt requested postage repaid, 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 hereinabove, 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 send by mail pursuant to the foregoing, or twenty-four (24) hours after timely deposit with a reputable overnight delivery service. 7.5 Representation by Counsel. All parties hereto have either: (i) been represented by separate legal counsel; or (ii) have had the opportunity to be so represented. Thus, in all cases, the language herein shall be construed simply and in accordance with its fair meaning and not strictly for or against a party, regardless of which party prepared or caused the preparation of this Development Agreement. 7.6 Authority of Signatory. Each of the persons executing this Development Agreement on behalf of the parties hereto warrant his or her authority to do so and to bind said represented party. 7.7 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. DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 6 IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the date and year set forth hereinabove. “CITY” THE CITY OF CALDWELL ______________________________________ By: GARRET NANCOLAS, Mayor Attest: _______________________________ DEBBIE GEYER, Caldwell City Clerk STATE OF IDAHO ) ) ss. COUNTY OF CANYON ) On this _____ day of _______________, 2017, before me the undersigned, a Notary Public in and for said State personally appeared GARRET NANCOLAS and DEBBIE GEYER, known or identified to me to be the Mayor and City Clerk, respectively, of the City of Caldwell, Idaho, an Idaho municipal corporation, that executed the said instrument, 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 this certificate first above written. __________________________________ NOTARY PUBLIC FOR IDAHO Residence: _________________________ My Commission Expires: _____________ *SEAL DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 7 “OWNER” MIRIAM, LLC __________________________________________ By: ____________________________________ Its: ____________________________________ STATE OF _____________ ) ) ss. COUNTY OF ___________ ) On this _____ day of _______________, 2017, before me the undersigned, a Notary Public in and for said State personally appeared __________________________, known or identified to me to be the manager or a member of MIRIAM, LLC, the limited liability company that executed the instrument, or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. __________________________________ NOTARY PUBLIC FOR _____________ Residence: _________________________ My Commission Expires: _____________ *SEAL DEVELOPMENT AGREEMENT (LAS BRISAS) – PAGE 8 Exhibit “A” A parcel of land being a portion of Parcel A depicted on record of survey instrument no. 2015-041667 (records of Canyon County, Idaho) situated in a portion of Government Lot 2 of Section 3, Township 3 North, Range 3 West, Boise Meridian, City of Caldwell, Canyon County, Idaho, and being more particularly described as follows: Commencing at an aluminum cap marking the North 1/4 corner of said Section 3, which bears N00°27’10”W a distance of 2,723.11 feet from a 5/8-inch rebar marking the Center of said Section 3; Thence following the north line of said Section 3, S89°53’03”E a distance of 661.02 feet to the northwest corner of said Parcel A; Thence leaving said north line and following the west boundary of said Parcel A, S00°28’21”W a distance of 329.01 feet to the POINT OF BEGINNING. Thence leaving said west boundary line, S89°53’03”E a distance of 175.37 feet; Thence S00°00’00”E a distance of 198.37 feet; Thence 35.73 feet along the arc of a circular curve to the right, said curve having a radius of 72.00 feet, a central angle of 28°26’09”, a chord bearing S14°13’05”W, and a chord distance of 35.37 feet; Thence S28°26’09”W a distance of 74.94 feet; Thence S61°33’51”E a distance of 56.00 feet; Thence S89°59’44”E a distance of 74.54 feet; Thence S00°00’00”E a distance of 31.11 feet to the south boundary line of said Parcel A; Thence following said south boundary line N89°30’28”W a distance of 257.71 feet to a 5/8-inch rebar marking the southwest corner of said parcel A; Thence leaving said south boundary line and following said west boundary line N00°28’21”E a distance of 354.49 feet to the POINT OF BEGINNING. Said parcel description contains 1.44 acres, more or less, and is subject to all existing easements and/or rights-of-way of record or implied.