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HomeMy Public PortalAbout2014.09.25 Village on Lake St Development AgreementRecording Requested By and When Recorded Return to: City Clerk City of McCall 216 East Park Street McCall, Idaho 83638 Instrument # 387654 VALLEY COUNTY, CASCADE, IDAHO 10-32014 MI:37:10 No. of Pages: 7 Recorded for : CITY OF DOUGLAS A. MILLER ^ Ex-Officio Recorder 11111 • lit Index to: DEVOLUTION ON DEATH For Recording Purposes Do Not Write Above This Line DEVELOPMENT AGREEMENT (The Village on Lake Street) This Development Agreement, hereinafter referred to as "Agreement", is entered into by and between the City of McCall, a municipal corporation of the State of Idaho, hereinafter referred to as the "City", and The Lake Street Company LLC, hereinafter referred to as "Owner" whose address is P.O. Box 1492, McCall, Idaho, 83638 , and who is the owner of the Village on Lake Street (the "Project") which is more particularly described in the attached Exhibit A (the "Property"). WHEREAS, approval of the Planned Unit Development General Plan Application, the Vacation of Public Alley Application and the Application for Zoning Map Amendment (the "Applications") have been granted by the McCall Planning and Zoning Commission and the McCall City Council as PUD 14- 02, VAC 14-01 and ZON 14-03; and WHEREAS, the ZON 14-03 application approval is tied to the PUD 14-02 approval and the Project; and WHEREAS, the parties desire to memorialize certain conditions regarding the ZON 14-03 approval, with the further understanding that it will be necessary to supplement and amend this Agreement to memorialize additional terms and conditions as the PUD and platting process proceeds. WHEREFORE, the City of McCall and Owner do enter into this Agreement for and in consideration of the mutual covenants, duties and obligations herein set forth, do agree as follows: ARTICLE I LEGAL AUTHORITY 1.1 This Development Agreement is made pursuant to and in accordance with the provisions of Idaho Code Section 67-651 lA and McCall City Code, Title 9, Chapter 6. ARTICLE II REZONE 2.1 In the event that Owner does not submit a Final PUD Plan for Phase One of the Project, in substantial conformity with the PUD General Plan, as approved, on or before December 31, 2016, then Owner, in such circumstance, waives and relinquishes any objection to the City's rezone of the Property to Medium Density Residential-R8, or such other zone as the City concludes is consistent with the McCall Comprehensive flan. Development Agreement between Owner and the City of McCall — Thee Village on Lake Street 9-25-14 Page 1 of 7 ARTICLE III DEVELOPMENT SCHEDULE 3.1 The Development Schedule for the PUD (i.e. the minimum acceptable Development Schedule) shall be as follows: a) By December 31, 2016: Submit PUD Final Development Plan for at least one Phase of PUD. b) By December 31, 2017: Submit Preliminary Condominium Plat for entire Project (i.e. Site Plat) and for at least one Phase (i.e. Building) of Project. c) By December 31, 2018: Submit PUD Final Development Plan for at least second Phase of PUD and Application for Building Permit for at least one Phase of PUD. d) By December 31, 2019: Submit PUD Final Development Plan for remaining Phase(s) of PUD. ARTICLE IV DEFAULT 4.1 In the event Owner, its successors, assigns or subsequent owners of the property or any other person acquiring an interest in the property, fail to faithfully and materially comply with all of the terms and conditions included in this agreement, such failure to comply will be deemed a default hereunder. In that event, City shall have the following options: (a) This agreement and the commitments contained herein may be terminated, and the High Density Residential-R16 zoning designation reversed according to the process required by the McCall City Code and the Local Land Use Planning Act; provided, however, no such termination or reversal shall occur unless City provides written notice of the default and Owner fails to cure such default within ninety (90) days after mailing or delivery of said notice. (b) Enforcement of this agreement may be sought in an action at law or in equity in Valley County District Court. A waiver by City of any default by Owner of any one or more of the covenants or conditions hereof shall apply solely to the breach waived and shall not bar any other rights or remedies of City or apply to any subsequent breach of any covenants or conditions. Notwithstanding anything to the contrary herein, in the event of a material default of the agreement, the parties agree that City and/or Owner shall have ninety (90) days after delivery of notice of such default to correct the same prior to the non -defaulting party's seeking of any remedy provided for herein; provided, however, that in the case of any such default which cannot with diligence be cured within such ninety (90) day period, if the defaulting party shall commence curing the same within the ninety (90) day period and prosecute the curing of same with diligence and continuity, then the time within which such default may be cured shall be extended for such period as may be necessary to Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 2 of 7 complete the curing of the same, but in any event not to exceed (6) months; and provided further, however, no default by a subsequent owner of a portion of the property shall constitute a default by Owner for the portion of the property still owned by Owner. (c) In the event the performance of any obligation to be performed hereunder by any party hereto is delayed for causes that are beyond the reasonable control of the party responsible for such performance, which shall include, with limitation, acts of civil disobedience, strikes or similar causes, the time for such performance shall be extended by the amount of time of such delay. (d) In addition to the remedies set forth above, in the event of a default by Owner or any other party claiming an interest herein, City may withhold building permits for any remaining lots within the development until such time as the default is cured. 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 remain in full force and effect. ARTICLE VI ASSIGNMENT AND TRANSFER 6.1 After its execution, the Development Agreement shall be recorded in the office of the County Recorder. Each commitment and restriction on the development subject to this Agreement, shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property, and shall run with the land. This Development Agreement shall be binding on the City and the Applicant and owners, and their respective heirs, administrators, executors, agents, legal representatives, successors and assigns; provided, however, that if all or any portion of the Property is divided, each owner of a legal lot shall only be responsible for duties and obligations associated with an owner's parcel and shall not be responsible for duties and obligations or defaults as to other parcels or lots within the Property. 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 only to such owner's lot or parcel. 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 Idaho Code Section 67- 6509, as required by McCall City Code, Title 3, Chapter 15. 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 neuter gender and the Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 3 of 7 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 Valley 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: ARTICLE VIII MISCELLANEOUS 8.1 This Agreement may be modified only by means of a subsequently executed and acknowledged written agreement. 8.2 In the event Owner fails to comply with the commitments set forth herein, within one hundred twenty (120) days of written notice of such failure from the City, in addition to any other remedies which the City may have available to it, 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, and to collect the direct costs associated with such action from Owner. 8.3 In the event that a judicial dispute arises regarding the enforcement or breach of this Agreement, then the prevailing party in such dispute shall be entitled to recover its attorney's fees and costs reasonably incurred, including fees and costs incurred on appeal. 8.4 Except as specifically set forth in the Agreement, the rules, regulations and official policies governing permitted uses of land, density, design, improvements and construction standards and specifications applicable to the Project and the Property shall be those rules, regulations and official policies in effect as of the effective date of the ordinance effecting the annexation and/or rezone of the property. Provided, however, that the applicable building codes for structures shall be the codes in effect when a complete application for a building permit is filed. Development impact fees, if imposed by ordinance, shall be payable as specified in said ordinance even if the effective date is after the date of this agreement or the annexation and/or rezone thereto. 8.5 After its execution, this Development Agreement shall be recorded in the office of the Valley County Recorder, at the expense of Owner, Each commitment and covenant contained in this Agreement shall constitute a burden on, shall be appurtenant to, and shall run with the Subdivision Property. This Development Agreement shall be binding on the City and Owner and their respective heirs, administrators, executors, agents, legal representatives, successors and assigns; provided, however, that if all or any portion of the Subdivision Property is divided, each owner of a legal lot shall only be responsible for duties and obligations associated with an owner's parcel and shall not be responsible for duties and obligations or defaults as to other parcels or lots within the Property. Owner shall not be relieved of its responsibilities and duties under this Agreement absent Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 4 of 7 an agreement with the City which designates a successor to Owner who accepts such responsibilities and duties as are then remaining. 8.6 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: McCall: Owner: City Clerk City of McCall 216 East Park McCall, Idaho 83638 The Lake Street Company LLC P.O. Box 1492 McCall, Idaho 83638 With copy to: Steven J. Millemann P.O. Box 1066 McCall, Idaho 83638 or such other addresses and to such other persons as the parties may hereafter designate in writing to the other parties. Any such notice shall be deemed given upon delivery if by personal delivery, upon deposit in the United States mail, if sent by mail pursuant to the foregoing. IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be executed, effective on the day and year first above written. OWNER The eet Company LLC By. ve Minor, its CITY L kie J. Ay r, City of McCall ATT BessieJo W?McCall Cler Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 5 of 7 STATE OF ILLIA, r, County of On this e9.. day of en3eiAk, 2014, before me, ()fa_ r V 1 \son , a Notary Public in and for said State: personally appeared Steve Minor, known or identified to me, and acknowledged to me, to be the Managing Member of The Lake Street Company LLC, and the member who subscribed said Limited Liability Company's name to the foregoing instrument, and acknowledged to me that he executed the same in said LLC's name. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certiftr4ve written. ,`jQvh 1 '�',$'i ,, 0. • (SEAL) t 14O Tit , 7 • z i p • n {i c ys •• i iyf• 1F ,• STATE OF IDAHO, County of Valley. )ss NOTARY PUBLIC FOR My Commission Expires: On this day of , 2014, before me, LA L , a Notary Public in and for said State, personally appeared :NOe , YbnCw and ,ess e kA4oPkin Q lie known or identified to me to be the Mayor and the City Clerk of the City of Mc, ID, respectively, the Idaho municipal corporation that executed the instrument or the person that executed the instrument on of behalf of said municipal corporation. and the person who attested the Mayor's signature to the instrument, and acknowledged to me that such municipal corporation 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. (SEAL) NOTARY P My Commissio Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 6 of 7 EXHIBIT A LEGAL DESCRIPTION Certain property located in McCall, Valley County, Idaho, and more particularly described as follows: All those certain lots, pieces or parcels of land situated in Valley County, Idaho and shown as Lots 10, 11, 12 and 13, of Block 1, Williams -Mayfield Addition to the Village of McCall, a plat of which is recorded in the office of the Recorder of Valley County, Idaho; AND A tract of land beginning at a point 225.00 feet North and 639.00 feet West of the SE corner of Government Lot 4, Section 9, Township 18 North, Range 3 East, Boise Meridian Valley County, Idaho, the Real Point of Beginning: Thence running West 75.00 feet; Thence North 276.54 feet; Thence East 75.00 feet; Thence South 276.54 feet; to the Real Point of Beginning. Aka Tax No. 178 AND A tract of land in Lot 4, Section 9, Township 18 North, Range 3 East, Boise Meridian, Valley County, Idaho, more particularly described as follows: Beginning at a point 225 feet North and 714 feet West of the Southeast corner of said Lot 4; Thence West 50 feet; Thence North 276.54 feet; Thence East 50 feet; Thence South 276.54 feet to the Point of Beginning. (Aka Tax No. 179 in Government Lot 4.) AND A parcel of land in Valley County, Idaho, beginning at a point 225 feet North and 764 feet West of the Southeast corner of Government Lot 4, Section 9, Township 18 North, Range 3 East, Boise Meridian, Valley County, Idaho; running West 50 feet to a point; thence North 276.54 feet to a point; thence East 50 feet to a point; thence South 276.54 feet to the Place of Beginning. (Aka Tax No. 180 in Government Lot 5.) Development Agreement between Owner and the City of McCall — The Village on Lake Street 9-25-14 Page 7 of 7