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508543 DEVELOPMENT AGREEMENT BETWEEN MILLER DEVELOPMENT, LLC AND THE CITY OF MOSCOW, IDAHO FOR POPE'S THIRD ADDITION TillS DEVELOPMENT AGREEMENT is entered into this p+lt day of , 2006, by and between Miller Development, LLC, 2869 Herndon Road, Orofino, Idaho 83544 (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 ofldaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter referred to as "CITY"); W I T N E S S E T H: WHEREAS, DEVELOPER desires to develop property known as Pope's Third Addition in the City of Moscow, Latah County, Idaho. WHEREAS, DEVELOPER understands that improvements required herein are standards required pursuant to Moscow City Code Title 5, Chapter I 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 streets, curbs, sidewalks, traffic control, water mains, sanitary sewer, franchise utilities, and storm collection and detention 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 WHEREAS, DEVELOPER enters into this Development Agreement of DEVELOPER's own free will 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 to be known as a portion of Pope's Third Addition within the City of Moscow, Latah County, Idaho, more particularly described as follows: All of the Pope's Third Addition as shown on the recorded plat thereon excepting Lots l through 8 of Block 4 and Lots 13 through 19 of Block 3 and the O'rion Drive right-of way between Sunnyside A venue and Lenter Street POPE'S Th1RD DEVEWPMENT AGREEMENT PAGEl OF7 ---PAGE BREAK--- TI. PUBLIC IMPROVEMENTS: 508543 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 streets, curbs, sidewalks, traffic control, water mains, sanitary sewer, franchise utilities, and storm collection and detention; all in accordance with City Standards duly adopted by Resolution of the City Council and in accordance with approved engineering plans. ill. TERM: This Agreement shall remain in full force and effect in accordance with all of its terms and conditions as follows: A. Until all public improvements have been completed and accepted by CITY; and B. Until the warranty period for public improvements has expired; and C. Until all development fees, as required and assessed by CITY, have been paid in fulL IV. CITY'S COVENANT: CITY shall issue building permits to DEVELOPER's property only after the following has occurred: A. Payment of all applicable developmental fees required and assessed by CITY; and B. CITY has determined that the construction of all required public improvements is complete or after adequate security, as described in Moscow City Code Sections 5-1-10 and as described in Sections VI, VII and VIII herein, has been provided to ensure construction, maintenance and warranty repairs of the required public improvements; and C. Compliance with applicable CITY permit issuance requirements. V. DEVELOPER'S COVENANT: A. DEVELOPER agrees to construct, at DEVELOPER's expense streets, curbs, sidewalks, traffic control, water mains, sanitary sewer, franchise utilities, and storm collection and detention, all in accordance with CITY approved engineering design plans, to CITY standards, during and under the terms of this Agreement; and 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 public improvements construction; and C. DEVELOPER agrees that DEVELOPER shall construct all required public improvements (except sidewalks as provided in Section V herein) within nine (9 ) months from the date of the issuance of the first building pem1it in the development; and PoPE's THIRD DEVELOPMEN'T AGREEMENl PAGE20F7 ---PAGE BREAK--- 508543 D. If DEVELOPER fails to complete installation of the required public improvements (except sidewalks) within nine (9 ) 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. E. DEVELOPER agrees to construct all sidewalks within two years from the date of issuance of the first building permit and subject to all of the conditions of this Agreement. VI. SECURITY FOR IMPROVEMENTS: In lieu of DEVELOPER's construction and installation of all public improvements required herein and CITY'S acceptance of such for ownership and maintenance, CITY agrees that, upon receipt of the adequate security described in Moscow City Code Section 5-1-10, it will issue building permits (upon payment of all CITY development fees 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 through this Agreement within nine (9 ) months (or in the case of the required sidewalks, within two years), from the date of the issuance of the first building permit in the development, CITY may attach the security and cause the improvements to be made or CITY may cause improvements to be made and attach a I ien 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 ofldabo relative to public works contracting and bidding. VII. 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 for all public improvements except sidewalks must be effective for a minimum period of one year from the date of the issuance of the first building permit in the development; three years from the date of issuance of the first building permit for sidewalks. 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 (9 ) months (or in the case of the required sidewalks, within two years), from the issuance of the first building permit in the development, 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 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. lf any building permits POPE"S THIRD DEVELOPMENT AGREEMENT PAGE30F7 ---PAGE BREAK--- 508543 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. Vlll. WARRANTY A. All required public improvements, once constructed and accepted by CITY for ownership and maintenance, shall remain free of defects in materials and workmanship for a period of one year following the date of CITY's written acceptance of such required public improvements the warranty period). B. DEVELOPER shall be responsible for correcting any and all deficiencies which occur within the one year warranty period. C. For the one year warranty period, a warranty Security in the amount of fifteen percent (15%) of the estimated value of tbe required public improvements, as determined by the City Engineer, shall be furnished to CITY prior to issuance of any building permit in the development and such warranty Security shall be in effect for a minimum period of two years from the date of the date of the issuance of the first building permit. D. If DEVELOPER fails to correct all deficiencies within a reasonable amount of the time, CITY may claim the warranty security and correct the deficiencies. E. The warranty security may be in any form allowed under Section VII of this Agreement. IX PARKLAND DEDICATION: Not applicable this development. This property was subdivided prior to the adoption of CITY Parkland Dedication requirements. X. STREET TREES: Not applicable this development. This property was subdivided prior to the adoption of CITY street tree requirements. XI. PHASING ALLOWED CITY may allow this development to occur in phases as specifically approved in writing by both the City Engineer and the Community Development Director. No building permit shall be issued for any phase of this development until after all public improvements related to each preceding phase of this development are completed, installed, and accepted by the City in accordance with this Agreement. All proposed phasing of this development shall be submitted and approved prior to the execution of this Agreement and shall not be modified unless agreed in writing and specifically approved of by City Council. Phasing shall be clearly shown on construction drawing to be submitted. POPE'S THIRD DEVEWPMENT AGREEMENT PAGE40F7 ---PAGE BREAK--- XII. CONSTRUCTION DRAWINGS: 508543 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. Xill. FAILURE TO COMPLY: DEVELOPER agrees to pay all expenses incurred by CITY in enforcing this Agreement. XIV. BINDING ON HEIRS, ASSIGNS AND PURCHASER: This Agreement shall be binding upon the heirs, assignees of the parties, and subsequent purchasers of and/or within the property described herein. XV. OCCUPANCY: DEVELOPER agrees that no person shall be allowed to occupy any part of the development for any purpose until the described public improvements are completed and accepted by CITY for maintenance or as otherwise provided for by a subsequent development agreement between the parties. XVI. 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. XVII. 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. XVill. 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. XIX. 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: POPE'S THIRD DEVELOPMENT AGREEMENT PAGE50F7 ---PAGE BREAK--- DEVELOPER: Miller Development, LLC CilY: 2. 1'869 Herndon Road Orofino, ID 83544 Phone: (208) 299 -6149 Nancy Chaney, Mayor City of Moscow P0Box9203 Moscow, ID 83843 Phone: (208) 883-7000 FAX: (208) 883-70 18 XX. UNDERSTANDING: 508543 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 above written. · DEVELOPER: Kenneth Miller, Managing Partner POPE'S THIRD DEVELOPMENT AGREEMENT CITY: City of Moscow, Idabo PAGE 6 OF 7 ---PAGE BREAK--- STATE OF IDAHO ) ) ss: COUNTY OF LATAH ) On this I Z 'f.dt day of ?!ti emb.e It:.. 2006, before me, the undersigned, a Notary in and for said State, personally appeared Kenneth Miller known to me to be the person whose name is subscribed to the foregoing and acknowledged to me he executed the same for and in behalf of DEVELOPER as its duly authorized agent. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein above written. POPE'S THIRD DEVELOPMENT AGREEMENT NOTARY PUBLIC for u Residing at fh ffo.U My Commission Expires: _ PAGE70F7 ---PAGE BREAK--- ZIONS BANl": Established in 1873 lntematioual Operations 550 South Hope Street, 3rd Floor Los Angeles, Ca!ifomia 90071 S.\V.LF.T: ZFNBUS55 Standby Letter of Credit L!C No. ZSB80 1787 October 13, 2007 IRREVOCABLE STAND BY LETTER OF CREDIT NO. ZSB801787 BENEFICIARY: CITY OF MOSCOW 221 E. 2ND ST. MOSCOW, ID 83843 ATTN: DEAN WEYER Dear Sir/Madam: EXPIRATION: October II, 2007 AMOUNT: USD 85,034.00 At the request of KENNETH A. MILLER, BONNIE J. MILLER, and LAURELLA F. MILLER, 2735 GRANGEMONT RD., OROFINO, ID 83544 we hereby establish our Inevocable Standby Letter of Credit in your favor up to an aggregate amount of Eighty Five Thousand Thirty Four and 00/100 USDOLLARS (USD 85,304.00). This credit is available for payment against presentation of your draft(s) at Sight drawn on ZIONS FIRST NATIONAL BANK, bearing fbe clause: "Drawn under credit no. ZSB801787 of ZIONS FIRST NATIONAL BANK" accompanied by the following documents: This original Letter of Credit and amendment(s) thereto, if any, which will be retumed to you following our notation thereon of the amount of such draft drawn hereunder. If the amount of the draft is for the full amount of this Letter of Credit, the original Letter of Credit wjl] be retained by us. Beneficiary's statement purportedly signed by an authorized representative of the City of Moscow certifying the following: "We certify that the improvements have not been completed as per the development agreement #508543) dated September 12, 2006 between Miller Development, LLC and the City of Moscow for the public improvements to Pope's Third Addition to the City of Moscow." Partial drawings are allowed. In the event of a drawing all original doctm1ents including original sight Draft must be dispatched in one lot by registered mail or courier services directly to Zions First National Bank, International Operations, 550 South Hope Street, 3rd Floor, Los Angeles, CA 90071. This Standby Letter of Credit expires at our counters at the close of business on the expiration date. lf you have any questions concerning this transaction, please call us at (213) 593-2131, (213) 593-2130 or (213) 593-2127. We hereby agree with you that all draft(s) drawn under and in compliance with the terms of this letter of credit will be honored upon presentation to us as specified herein. THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1 993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500. Sincerely, FIRST