Full Text
2005-45 DEVELOPMENT AGREEMENT BETWEEN THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY AND THE CITY OF MOSCOW, IDAHO THIS AGREEMENT is entered into this day of fb•A>r' , 2005 by and between THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a MOSCOW GOOD SAMARITAN VILLAGE at PO Box 5038, Sioux Falls, South Dakota, 57117- 5038 (hereinafter referred to as 'DEVELOPER'), being Developer of real property as described herein, and the City of Moscow, Idaho, a Municipal Corporation of the State of Idaho (hereinafter referred to as 'CITY'); WITNESSETH: WHEREAS, DEVELOPER desires to develop property on Fairview Drive (to be known as Fairview Village Estates) in the City of Moscow, Latah County, Idaho, more particularly described as follows: A !egal description for a parcel of land located !n the SE14 of Sect:on 9 and the N1h: NEY. of Section 16, T39N, R5W, BM and being more particularly described as follows: Beginning at the southeast corner of Section 9, T39N, R5W BM; thence S 89°36'07" E, 1279.41 feet along the south line of said Section 9 to the TRUE POINT OF BEGINNING. Thence S 00°38'27" W, 51.61 feet; Thence S 76°16'00" W, 123.88 feet; Thence S 55°46'57" W, 73.12 feet; Thence N 89°21 '33" W, 120.00 feet; Thence N 00°38'27" E, 40.00 feet; Thence N 89°21 '33" W, 152.56 feet; Thence N 04 °33'33" E, 202.12 feet; Thence N 33°53'24" W, 117.08 feet; Thence N 44 °36'30" W, 260.25 feet; Thence N 29°57'52" E, 230. 79 feet; Thence N 44°55'57" E, 680.33 feet; Thence East, 59.02 feet to a point on the east line of the SWY. SEY. of said Section 9; Thence along said east line, S 00°29'30" W, 1086.19 feet to a point on the south line of Section 9; Thence S 89°36'07" E, 40.00 feet along said south line, to the TRUE POINT OF BEGINNING. WHEREAS, DEVELOPER understands that improvements required herein are standards required pursuant to Moscow City Code Title 5, Chapter 1 and are authorized by Idaho Code Section 67-6513 and Section 67-6518; and WHEREAS, DEVELOPER and CITY believe that without the public improvements required herein, CITY would not be able to otherwise provide for mitigation of the effects of the subdivision development on the ability of CITY to deliver services without compromising quality of such service delivery to current city residents, or without imposing substantial additional costs upon current city residents to accommodate the proposed subdivision; and WHEREAS, CITY desires to ensure that public improvements consisting of pavement construction, curb, sidewalk, storm sewer systems, water mains and sanitary sewer mains are constructed; and WHEREAS, DEVELOPER understands that a waiver of public improvements is available pursuant to the Moscow City Code, but DEVELOPER specifically does not wish to request such a waiver and wishes to enter into this Agreement; and GOOD SAMARITAN DEVELOPMENT AGREEMENT PAGE 1OF5 ---PAGE BREAK--- WHEREAS, DEVELOPER enters into this Development Agreement of its own freeJv$jl 8 7 2 4 and accord, without coercion and without inducement and at DEVELOPER's request; and WHEREAS, DEVELOPER has read this Agreement, has understood it, and has had the opportunity to avail itself of legal and other counsel prior to entering into this Agreement and prior to signing it; NOW, THEREFORE, DEVELOPER and CITY hereby agree as follows: I. PROPERTY AFFECTED: This Agreement affects property located on Fairview Drive (to be known as Fairview Village Estates) within the City of Moscow, Latah County, Idaho, more particularly described as follows: A legal description for a parcel of land located in the SEY. of Section 9 and the N% NEY. of Section 16, T39N, R5W, BM and being more particularly described as follows: Beginning al the southeast corner of Section 9, T39N, R5W BM; thence S 89°36'07" E, 1279.41 feet along the south line of said Section 9 to the TRUE POINT OF BEGINNING. Thence S 00°38'27" W, 51.61 feet; Thence S 76°16'00" W, 123.88 feet; Thence S 55°46'57" W, 73.12 feet; Thence N 89°21'33" W, 120.00 feet; Thence N 00°38'27" E, 40.00 feet; Thence N 89°21'33" W, 152.56 feet; Thence N 04°33'33" E, 202.12 feet; Thence N 33°53'24" W, 117.08 feet; Thence N 44°36'30" W, 260.25 feet; Thence N 29°57'52" E, 230.79 feet; Thence N 44°55'57" E, 680.33 feet; Thence East, 59.02 feet to a point on the east line of the SWY. SEY. of said Section 9; Thence along said east line, S 00°29'30" W, 1086.19 feet to a point on the south line of Section 9; Thence S 89°36'07" E, 40.00 feet along said south line, to the TRUE POINT OF BEGINNING. II. PUBLIC IMPROVEMENTS: DEVELOPER agrees to install, at DEVELOPER's expense, public improvements required by Moscow City Code Sections 5-1-4 and 5-1-5 consisting of pavement construction, curb, sidewalk, storm sewer systems, water mains and sanitary sewer mains; all in accordance with City Standards and approved engineering plans. Ill. TERM: This Agreement shall remain in effect until the public improvements required herein are constructed and installed and such public improvements are accepted by CITY for maintenance. IV. CITY'S COVENANT: CITY shall issue building permits for DEVELOPER's property described above (upon payment of permit tees, public utility inspection fees of 1.00% of the City Engineer's estimated construction costs and satisfaction of Moscow City Code requirements) only after construction and installation of all public improvements and acceptance of such by CITY for maintenance or after adequate security as described in Moscow City Code GOOD SAMARITAN DEVELOPMENT AGREEMENT PAGE 2 OF 5 ---PAGE BREAK--- Sections 5-1-10 and as described in sections VI AND VII herein has been provided to ensure proper construction of the required public improvements. V. DEVELOPER'S COVENANT: A. DEVELOPER agrees to construct, at DEVELOPER's expense, pavement construction, curb, sidewalk, storm sewer systems, water mains and sanitary sewer mains all in accordance with CITY approved engineering design plans, to CITY standards, during and under the terms of this Agreement. B. DEVELOPER agrees to furnish to CITY, at DEVELOPER's expense, engineering design plans (for the required public improvements) prepared by an Idaho Licensed Professional Engineer. Such plans shall be approved by the Moscow City Engineer prior to beginning any construction. C. DEVELOPER agrees that DEVELOPER shall construct pavement construction, curb, sidewalk, storm sewer systems, water mains and sanitary sewer mains within nine months from the date of the issuance of the first building permit; and D. If DEVELOPER fails to complete installation of the required public improvements within nine months from the date of the issuance of the first building permit, to City standards and as per the approved plans, CITY shall revoke occupancy of the entire development and shall revoke any applicable permit issued to DEVELOPER by CITY. VI. SECURITY FOR IMPROVEMENTS: In lieu of DEVEOPER's construction and installation of all public improvements required herein and CITY'S acceptance of such for maintenance, CITY agrees that upon receipt of the adequate security described in Moscow City Code Section 5-1-1 O it will issue building permits (upon payment of permit fees, public utility inspection lees of one percent (1.00%) of the City Engineer's estimated construction costs and satisfaction of Moscow City Code requirements) for DEVELOPER's development. If DEVELOPER fails to complete installation of the public improvements as required by CITY within nine months from the date of the issuance of the first building permit CITY may attach the security and cause the improvements to be made or CITY may cause improvements to be made and attach a lien on the property in the amount of CITY expense incurred as a result of DEVELOPER's failure to comply with this Agreement. Any engineering or construction costs in excess of the security shall be borne by DEVELOPER. Any additional construction services shall be performed subject to the laws of the State of Idaho relative to public works contracting and bidding. VIL FORM OF SECURITY: DEVELOPER agrees to provide security for the public improvements in the amount to be determined by the City Engineer. This security shall be in the form of cash, construction bond, irrevocable letter of credit from a certified bank or financial institution, or such other form of security acceptable to CITY. Such security shall be provided to CITY prior to the issuance of building permits by CITY. The security must be effective for a minimum period of one year from the date of the issuance of the first building permit. If this security is in the form of an irrevocable letter of credit or bond, the secured improvements shall be constructed at least ninety (90) days prior to the expiration date of the security. If the public improvements identified and described in section II are not completed within nine months from the issuance of the first building permit, CITY may claim the security and complete the said improvements. The amount of the security may, from time to time, be modified as deemed appropriate by the City Engineer as conditions warrant If for any reason the security for such improvements shall be withdrawn by DEVELOPER or the security or financial institution, or the value or terms thereof shall be compromised in any way, CITY shall immediately cease issuing building permits and shall revoke any GOOD SAMARITAN DEVELOPMENT AGREEMENT PAGE3 OF 5 ---PAGE BREAK--- ,j , 'l ' y ,j ( building permits and/or occupancy permits issued pursuant to the terms contained herein, and further, DEVELOPER shall hold CITY harmless for any and all causes of action or damages alleged to have been sustained because of the revocation of such building permits. If any building permits and/or occupancy permits are revoked pursuant to this section, such building permits and/or occupancy permits shall be re-issued upon receipt by CITY of new or additional security as required herein. VIII. PARKLAND DEDICATION: DEVELOPER has previously satisfied the Moscow City Code requirement for parkland dedication related to this development. IX. STREET TREES: DEVELOPER agrees to voluntarily contribute to the CITY One Thousand Two Hundred Dollars ($1,200) to be placed in a street tree fund to be distributed to lot owners in Fairview Village Estates for the purchase of street trees in Fairview Village Estates. The amount assessed for each lot shall be provided to each such lot owner for the purchase of street trees for said lot in accordance with current City of Moscow Standard Construction Specifications and Drawings (Resolutions Nos. 97-04 and 00-02). X. CONSTRUCTION DRAWINGS: DEVELOPER agrees to furnish, prior to acceptance by CITY of the public improvements as required herein, one set of accurate, complete, mylar final construction drawings for the public improvements described herein, unless such requirement is waived by the City Engineer. XI. FAILURE TO COMPLY: DEVELOPER agrees to pay all expenses incurred by CITY in enforcing this Agreement. XII. BINDING ON HEIRS, ASSIGNS AND PURCHASER: This Agreement shall be binding upon the heirs, assignees of the parties, and subsequent purchasers of the property described herein. XIII. VENUE AND ATTORNEY FEES: The parties agree that should any provision of this Agreement be litigated in the future, venue for such litigation shall be with the District Court of the Second Judicial District of the State of Idaho in and for the County of Latah. XIV. MODIFICATION: DEVELOPER and CITY agree that the provisions of this Agreement may be modified only upon request of DEVELOPER accompanied by a complete set of development plans, and acceptance of such modification by the Moscow City Council or by a subsequent development agreement between the parties. XV. COVENANTS TO RUN WITH LAND: This Agreement shall run with the land affected hereby, as shall all covenants contained herein, and shall be to the benefit of CITY, its successors and assigns. This Agreement shall be recorded with the Latah County Recorder. XVI. NOTICES: Any notice required or called for by this Agreement shall be deemed served upon the party to whom it is sent when delivered by certified or registered United States mail to the following addressed: GOOD SAMARITAN DEVELOPMENT AGREEMENT PAGE40F 5 ---PAGE BREAK--- DEVELOPER: The Evangelical Lutheran Good Samaritan Society P.O. Box 5038 Attn: Cindy Moegenburg, Vice President Sioux Falls, SD 57117-5038 Phone: (605) 362-3345 FAX: (605) 362-3302 CITY: Marshall H. Comstock, Mayor City of Moscow P.O. Box 9203 206 E. 3rd Street Moscow, ID 83843 Phone: (208) 883-7000 FAX: (208) 883-7018 XVII. UNDERSTANDING: DEVELOPER has read and understood this Agreement and the contents thereof and has had the opportunity to avail itself of legal and of other counsel before entering into this Agreement and before signing it, and hereby enters into it voluntarily, willingly, and without inducement. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective the date first written. DEVELOPER: l David J. Horazd6vsky The Evangelical Lutheran Society President STATE OF SOUTH DAKOTA County of MINNEHAHA SS CITY: shall H. Comstoc rayor On this day of A:i , 2005, before me, the undersigned officer, personally appeared David J. Horaz sky acknowledged to be the president of The Evangelical Lutheran Good Samaritan Society, a corporation, and that being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself as the president. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein above written. l Residing at 51cJI 1ii41Lti My Commission Expires: J- 7-(J'6 GOOD SAMARITAN DEVELOPMENT AGREEMENT PAGE 5 OF 5