HomeMy WebLinkAboutDA - Lower Five Subarea_Midland 20_26
Midland 20/26 – LOWER FIVE Subarea
Development Agreement
(ANN23-000016, CPM23-000011, DEV23-
000004, PUD23-000006, SUB23-000042, & ZON23-000009)
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 _________ of ________, 20__,
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 Yamamoto Kay and Frances Living Trust,
Yamamoto Properties LLC, DWT Investments LLC, and WinCo Foods LLC (“Owner”).
RECITALS
WHEREAS, the Owner is the owner of record of approximately 125 acres of certain real estate
identified as Canyon County Parcel No. R3412100000, R341201000 (20511 Midland Boulevard),
R3412200000, R3412301000, R3412500000, R3412501000, R3412600000 (20243 Midland Boulevard),
R3412700000, and R3412701000, generally located at the north of Hwy 20/26, west of Midland
Boulevard, and south of the Lower Fivemile Drain, in Caldwell, Idaho, (“Property”), and legally
described in the attached legal description (Exhibit A) and as depicted on the map in (Exhibit B); and
WHEREAS, the Property is currently designated as R-1 (Low Density Residential) on the City of
Caldwell Zoning Map; and
WHEREAS, the Property is currently designated as Low Density Residential on the City of Caldwell
Comprehensive Land Use Map; and
WHEREAS, the Owner seeks to rezone said Property to the City of Caldwell’s R-2 (Medium Density
Residential), and H-C (Highway Corridor) zoning classifications; and
WHEREAS, the Owner seeks to amend the City of Caldwell Comprehensive Land Use Map for the
Property to Medium Density Residential and Highway Corridor future land use designations; and
WHEREAS, the Owner is not proposing a specific development at this time; and
WHEREAS, the Owner seeks to terminate the existing Development Agreement (recordation date of
December 19, 2006 and instrument #2006099937) on the Property for the purpose of entering into a new
agreement; 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 City and Owner desire to set forth herein limitations and/or conditions upon the use
and future 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 zoning designation requested by Owner with respect to the Property, if granted by the
City, will only be granted upon execution of this Development Agreement; and
WHEREAS, the Owner has agreed to provide Caldwell with an affidavit agreeing to submit the Property
to a Development Agreement (Exhibit C) 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-1 (Low Density Residential), R-2 (Medium Density Residential),
and H-C (Highway Corridor) zoning classifications, subject to the terms and conditions of this
Development Agreement. This Development Agreement shall be signed to meet the conditions of
approval for the rezone as approved in the Order of Decision signed April 2, 2024. The ordinance will
become effective after its passage, approval, and publication.
ARTICLE III
GENERAL CONDITIONS OF DEVELOPMENT
3.1 Future development of the Property shall be substantially consistent with the approvals of ANN23-
000016, CPM23-000011, DEV23-000004, PUD23-000006, SUB23-000042, ZON23-000009
(Midland 20/26) for those portions associated with the Lower Five subarea, as shown in Exhibits A
and B contained herein.
3.2 Development of the Property shall be consistent with all requirements, codes, rules, and regulations of
the City of Caldwell, unless specifically stated otherwise in this Development Agreement.
3.3 If the City of Caldwell has established a design review process at the time of submittal of building
permits or development application(s) for the Property, the applicant will be required to go through
the design review process.
3.4 In the event the 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
Property.
3.5 Construction. Development and sitework on the Property shall be in accordance with all applicable
laws and regulations and shall also be consistent with the development standards set forth in this
Agreement. Failure to construct any development on the Property consistent with this Agreement or
construction in variance with this Agreement, including any amendment of this Agreement, shall
constitute a default of this Agreement by the Developer/Owner.
3.6 Development Construction Signage: At the time of future development a "rules and regulations" sign
shall be posted and maintained at the entryways to the project until it is fully developed and build out
is complete. The signs would be intended for subcontractors performing work and should include: a)
no dogs; b) no loud music; c) no alcohol or drugs; d) no abusive language; e) disposal of personal
trash and site debris; f) daily cleanup of any mud and/or dirt that is deposited from the construction
parcel onto streets; g) installation of a temporary construction fence that would keep debris from
being blown off site by the wind; h) no burning of construction or other debris on the property.
3.7 Preliminary Plat Expiration: Any future Preliminary Plat approval shall meet all procedural
requirements as outlined in Caldwell City Code 11-02, including any need for time extensions or plat
renewals.
3.8 Dimensional/Bulk Standards: All new construction shall comply with the current height, setback, and
area schedule in effect at the time the building permit is filed.
ARTICLE IV
SITE SPECIFIC CONDITIONS OF DEVELOPMENT
4.1 At the time of development of ‘a portion’ or ‘all’ of the Property, the Owner or their representative
shall provide a site plan, building elevations, a material board, landscaping plans, and any other
material required by the City for review of the proposed project.
4.2 Future residential development within the Lower Five subarea shall be required to go through a
Development Agreement Modification process that includes going through both the Planning and
Zoning Commission and the City Council.
4.3 Concept Site Plan. The Concept Site Plan (Exhibit D) represents a broad concept for development of
the Lower Five subarea that includes a general street layout and anticipated uses. As the Concept Site
Plan evolves, the City understands and agrees that certain changes in that concept may occur or be
required. If the City determines that any such changes require additional public comment due to
potential impacts on surrounding property or the community when a public hearing is not typically
triggered, a public hearing (Development Agreement Modification) shall be held on any proposed
changes in the Concept Plan and notice shall be provided as may be required by the City. The Owner
understands and agrees that any changes or modifications to the site plan must be submitted to the
City for review and approval prior to development.
4.4 Residential Densities. The allowable gross density of future residential development shall comply
with the densities outlined in the City’s Comprehensive Plan at the time of application submittals.
Any densities noted on the Concept Site Plan (Exhibit D) are not approved or part of this agreement.
4.5 Screening. Screening through landscaping/screening devices will be required to ensure compatibility
of uses and compatibility with the goals and policies of the comprehensive plan for adjacent
noncompatible uses. Any required landscape buffer shall be designed and planted in accordance with
the Caldwell Landscape Ordinances at the time of application submittal. Six (6) foot tall, non-scalable
fencing shall be placed along the entire length of the railroad right-of-way to ensure safety for future
residents and children with the first phase of development in this subarea.
4.6 Linear Park. The Caldwell 2040 Bicycle and Pedestrian Master Plan depicts a linear park along the
railroad right-of-way that impacts this subarea development. Future development of the site shall
account for this linear park and landscaping in substantial compliance with the proposed master plan
for the “Tri-City Corridor” as depicted in Exhibit D of this agreement or as amended by the City in
the future. This linear park shall be placed on the east side of the railroad and shall act as the required
buffer for uses adjacent to the railroad right-of-way and shall be constructed at the time of each
development phase.
4.7 Future Development shall comply with all requirements of the City of Caldwell Engineering, Fire,
Mapping, and Building & Safety Departments unless otherwise modified through applicable
processes.
4.8 Future Uses within Lower Five subarea. Future uses shall comply with the land use schedule for the
applicable zoning designation at the time of project development including the uses outlined below
for the Highway Corridor district. The City of Caldwell Land Use Schedule for the Property has been
modified to provide for land uses on the Property in accordance with the following Land Use
Schedule included herein within Table 1. The intent is to provide for flexibility in establishing
compatible uses on the subject property. Those uses identified as requiring a special use permit shall
be subject to all codes and requirements in effect at the time of application. Those uses requiring a
director review are subject to conditions and requirements as indicated by the reviewing Director at
the time of application for review. Review shall be for compatibility, design, and specific
development requirements to mitigate concerns. Those uses prohibited / not allowed shall not be
allowed on the Property. Permitted uses are subject to the requirements of the City Codes and
Ordinances, including but not limited to setbacks, height, landscaping, specific use provisions,
building codes, fire codes, engineering requirements, and all other applicable code requirements.
TABLE 1: LAND USE SCHEDULE
FOR LOWER FIVE SUBAREA (H-C zoning district)
P = Permitted use
S = Special use permit required
NP = Not permitted through Development Agreement provisions
DIR = Director Decision required
LAND USE LAND USE
ALLOWANCE
Community Center P
Daycare Center; preschool/homeschool, 13 or more P
Flex Space P
Library P
Multi-Family Residential S
Railroad yard/shops NP
ARTICLE V 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 C) 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 VI DEFAULT
6.1 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.
6.2 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 VII 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 shall be interpreted to carry out the intent of the parties. Any provision so determined to be invalid or unenforceable shall be re-negotiated in good faith between Owner(s), or other appropriate party, and the City, but such negotiation shall not stay the enforceability of this Agreement.
ARTICLE VIII 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 IX
GENERAL MATTERS
9.1 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.
9.2 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.
ARTICLE X WAIVER
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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.
10.6 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.
10.7 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.
10.8 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 herein below, 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.
To City:
City of Caldwell
c/o Director, Planning & Zoning Department 621 Cleveland Blvd Caldwell, Idaho 83605
With a Copy to:
Hilty, Bower, Haws & Seable, PLLC
Attn: Mark Hilty 1303 12th Avenue Road Nampa, ID 83653
mhilty@hbhslaw.com
To Developer:
Brighton Development Inc. c/o Jon Wardle 2929 W. Navigator Drive, Suite 400 Meridian, Idaho 83642
To Owner:
WinCo Foods, LLC
Attn: Mark Lavin & Hilary Vaughn 650 N. Armstrong Place Boise, ID 83704
mark.lavin@wincofoods.com
hilary.vaughn@wincofoods.com
10.9 Change of Address. 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.
10.10 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 City staff, 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:
A. To terminate this Development Agreement and revert the property to the previous zoning designation. Withhold the connection of water, sewer or electric service to any property
located within the Project;
B. To specifically enforce this agreement;
C. To withhold any and all permits for development and/or construction on the Property;
D. Any and all other remedies set forth in this Agreement;
E. Any and all other remedies 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.
10.11 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.
10.12 Effective Date. This Development Agreement shall be effective upon the signing and execution of
this agreement by both parties.
10.13 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.
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement.
DATED this _____________day of ________________, 2024.
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 ) ) ss.
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: ______________________
INDEX OF EXHIBITS
A - Legal Description B - Parcel Map C - Affidavits of Owner
D - Concept Plan E - Tri-City Corridor Master Plan Exhibit
Exhibit A Legal Description of Property
Exhibit B Parcel Map
Exhibit C Affidavits of Legal Interest
Yamamoto Properties LLC
Property Owner Acknowledgement l,_V_i_ct_o_r_Y_a_m_a_m_o_t_o ____________ , the record owner for real property addressed as--------------------� am aware of, in agreement with, and give my permissiorl3fti:hto Development, Inc. to submit the accompanying application{s) pertaining the that property. 1.I agree to indemnify, defend and hold the City of Caldwell and its employees harmless from anyclaim or liability resulting from any dispute as to the statement(s) contained herein or as to theownership of the property which is the subject of the application.2.I hereby grant permission to City of Caldwell staff to enter the subject property for the purpose ofsite inspection(s) related to processing said application(s).
Dated this ---'--=¢11 ___ day of _�----=.,�
➔P'-+e:;....a;...rn� .... �
.......=........;ao.. _____ _,. 20 �3
CERTIFICATE OF VERIFICATION STATE OF IDAHO ) ss. County of Canyon I, ; 4".-4 a Notary Public do hereby certify that on this /q!A.. day of5?.epkmher . 20�, persona appeared before me Vichit *'MtHb . known or identified to meto be the person whose name is subscribed to the foregoing in�rument, who, being by me first duly sworn, declared that she signed the foregoing document, and that the statements therein contained are true.
�-J...,._ k.,_ NOTARY PUBLIC FOR�HO Residing at � , LP My Commission Expires {p -1-cJ.D;J.c.f
SHARI VAUGHAN
lfotary Public -State of Idaho
Commission Number 20181002
My commission Expires Jun 1, 2024
Parcel #'s: R3412200000; R3412701000; R3412301000
Parcel # R3412700000
Exhibit D Concept Plan
Exhibit E Tri-City Corridor Master Plan Exhibit