DEVELOPMENT AGREEMENT
THIS AGREEMENT, dated effective November 14, 1995 is
made by and among the following parties:
CITY OF POCATELLO
Xxxxx X. Xxxxxxxx, Mayor
Xxxx Xxxxxxx, City Attorney
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
(the "City")
IDAHO STATE BOARD OF EDUCATION
acting as Trustees for
IDAHO STATE UNIVERSITY,
a body politic and corporate of
the State of Idaho,
J. Xxxxxx Xxxxxxxx, University Counsel
Idaho State University
Administration Box 8410
Xxxxxxxxx, XX 00000
(the "University")
and
BALLARD REAL ESTATE HOLDINGS, INC.,
a Utah corporation
Xxxx X. Xxxxxxx, President
00000 Xxxx Xxxx Xxxxxxx
Xxxxxx, Xxxx 00000
("Xxxxxxx")
RECITALS:
A. The University owns an approximately 300-acre
tract of real property which has been designated by the
State as the Idaho State University Research and Business
Park (the "Research Park"). The Research Park is located
within the city limits of Pocatello, Bannock County, Idaho.
X. Xxxxxxx desires to acquire from the University
title to the parcel of land described in Exhibit A attached
hereto and made a part of this Agreement (the "Land"), which
Land is located within the Research Park. Contemporaneously
with this Agreement, Xxxxxxx and the University are entering
into a Land Acquisition Agreement governing the transfer of
the Land to Xxxxxxx (the "Acquisition Agreement").
C. The City and the University have determined that
it is in the best public interest and welfare that they
provide improvements including roadways and public utility
improvements to the Land to encourage development in the
Research Park.
D. The covenants and agreements of the City and the
University set forth in this Agreement constitute a material
inducement to Xxxxxxx to develop a light manufacturing
facility on the Land. Xxxxxxx would not move forward with
construction of a facility on the Land without the
assurances provided by the City and the University herein.
NOW, THEREFORE, in consideration of the promises and
agreements set forth below to be kept and performed by one
or the other of the parties hereto, the parties agree as
follows:
1. Obligations of the City. Contingent upon the
Closing of the conveyance of the Land by the University to
Xxxxxxx, the City covenants and agrees as follows:
(a) Xxxxx Xxxxxx Drive. At no cost whatsoever to
Xxxxxxx, the City shall complete or cause to be completed,
construction of a publicly dedicated road (including curb
and gutter on both sides), extending the existing Xxxxx
Xxxxxx Drive to the South, to connect to Xxxxxx Road. The
City and the University represent and warrant that Xxxxx
Xxxxxx Drive, running from Buckskin Road to Xxxxxx Road has
previously been dedicated to the City as a public road, all
in compliance with applicable laws and regulations. The
extended Xxxxx Xxxxxx Drive will be at least the same width
and of at least the same quality of road construction as the
completed portion of Xxxxx Xxxxxx Drive. The extended Xxxxx
Xxxxxx Drive, as described herein, will be completed in two
phases, as follows:
Phase I. Completion to the southern boundary line of
the Land by May 1, 1996; and
Phase II. Completion to Xxxxxx Road by November 1,
1996.
(b) Temporary Road. Upon the parties' execution
of this Agreement, the City and the University will provide
(at no cost to Xxxxxxx), or cause to be provided, to Xxxxxxx
access to the Land via a temporary road in a location
acceptable to Xxxxxxx, with access via said temporary road
to continue until the completion of the construction of
Xxxxx Xxxxxx Drive.
(c) Sewer.
(i) The City will provide, or cause to be
provided (at no cost to Xxxxxxx except a one-time connection
fee not to exceed $5,000), to the Land access to the City's
sanitary sewer system. The City will, at its cost, obtain
all easements, rights of way, permits, and consents
reasonably needed to provide sanitary sewer service to the
Land. The City will pay all development, installation, and
construction costs associated with the installation of such
sewer lines. The sewer line shall be at least an 8-inch
line.
(ii) The initial, temporary access will be to
the sewer main located to the West of the Veteran's Home in
the Research Park. The installation of this initial sewer
line to the northern boundary of the Land shall be completed
by the City no later than March 1, 1996, as provided in
subparagraph (i) above. The easement for this temporary
easement will terminate automatically upon completion and
activation of the sewer access described in subparagraph
(iii) below. The legal description of this temporary sewer
line easement is as follows:
A twenty (20.0)-foot wide easement for
the construction and maintenance of a
sanitary sewer line, said easement being
ten (10.0) feet on each side of the
following described centerline:
Commencing at the northwest corner of
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 35
East, Boise Meridian; thence
South 89 degrees 44 minutes 03 seconds
East along the north line of Section 31
for a distance of 610.05 feet to a point
on the west line of the land associated
with the Idaho State Veterans Home;
thence
South for a distance of 469.22 feet to
the southwest corner of the land
associated with the Idaho State Veterans
Home; thence
West for a distance of 10.00 feet to the
TRUE POINT OF BEGINNING; thence
North along the centerline of the
easement being described, said
centerline being parallel with and 10.0
feet west of the west boundary line of
the land associated with the Idaho State
Veterans Home, for a distance of 510.0
feet to the terminus of the easement
being described.
(iii) The long-term plan of the City and the
University is for a sewer line to be placed in the easement
of Xxxxx Xxxxxx Drive, as shown in Exhibit B, attached to
and made a part of this Agreement. The City will complete,
or cause to be completed, construction of such sewer line to
the eastern boundary of the Land and cause such line to be
activated no later than June 1, 1996, in accordance with the
provisions of subparagraph (i) above, except that Xxxxxxx
will not be required to pay a new connection fee. This
sewer line will be constructed at an elevation which will
accommodate the gravity flow of sewage into it from
Xxxxxxx'x facility to be constructed on the land, without
the need of a lift station.
(d) Culinary Water.
(i) At no cost to Xxxxxxx, the City will
construct and install a culinary water system and 10-inch
water lines as are reasonably necessary, to provide culinary
water service from the City's culinary water system, which
shall service the Land at its eastern boundary, as shown on
Exhibit B. The culinary water system shall be constructed
and installed within Xxxxx Xxxxxx Drive to provide access to
the system by Xxxxxxx. Connection to the system shall be at
a hook-up cost not to exceed $2,000 (including water meter
fee). The culinary water system shall adequately satisfy
the reasonable needs and requirements of Xxxxxxx, including
fire protection, in accordance with plans and specifications
provided by Xxxxxxx to the City. The City shall be required
to provide adequate fire hydrants at appropriate locations
in Xxxxx Xxxxxx Drive. The installation of all culinary
water improvements shall be completed by the City no later
than January 1, 1996.
(ii) Xxxxxxx estimates the following
potential water capacity for fire flows (and to maintain
acceptable rating with its property and casualty insurance
carrier):
- Four to six 8 inch risers per 100,000
square feet of building;
- 75 psi at least;
- Need to be able to pump approximately
1300-1500 gal. per min for two hours.
(iii) Upon the execution of this Agreement by
the parties and continuing until completion of the culinary
water improvements as specified in subparagraph (i) above,
the City and the University hereby authorize Xxxxxxx to use
in its excavation, soil compaction, and development
activities, water from existing water service in Xxxxx
Xxxxxx Drive. For this purpose, Xxxxxxx may pull water from
existing fire hydrants. This temporary use of water for
construction will be at no charge to Xxxxxxx.
(e) Electricity, Gas, Fiberoptics and Telephone.
At no cost to Xxxxxxx, the City will construct or cause to
be constructed, and install an underground electric line, an
underground natural gas line (at least 2 inches), an
underground fiberoptics cable, and underground telephone
cable, to provide access by the Land (at its eastern
boundary) to electricity, natural gas, fiberoptics, and
telephones, respectively, all as shown in Exhibit B. The
City will, at its cost, obtain all easements, rights of way
and permits reasonably needed to provide such electricity,
natural gas, fiberoptics and telephone service to the Land.
The City will pay all development, installation and
construction costs associated with the installation of such
lines. The City shall obtain all consents and permits
required from any applicable electricity, gas, fiberoptics
or telephone authority. Installation of electricity and gas
lines shall be completed no later than December 15, 1995.
Installation of telephone and fiberoptics lines shall be
completed no later than April 1, 1996.
(i) Electricity. Xxxxxxx needs the
following to allow for potential future capacity of the
facility on the Land:
- 480 volts
- 3 phase 4 wire (277 per wire for each of
3 wires plus a neutral 4th wire)
- 3,000 amps
- 1.6 megaWatt demand
(ii) Natural Gas. Xxxxxxx needs the
following to allow for potential future capacity of the
facility on the land:
- 2-inch gas line - 6 psi
(iii) Telephone
- Xxxxxxx needs a potential of 50 pairs of
lines, to enable future expansion of its
facility on the Land. Initially,
Xxxxxxx would require 25 pairs.
(f) $150,000 Contribution to Improvements. The
City will contribute $150,000 of value toward any one of, or
a combination of, the following projects in connection with
the development of Xxxxxxx'x facility on the Land:
(i) Purchase of fill dirt from the hill
located on the northwest corner of the Land.
(ii) Grading the Land for storm drainage
purposes;
(iii) Developing and providing landscaping
within the right of way of Xxxxx Xxxxxx Drive; and
(iv) Funding assistance in the construction
of the fire line (water) loop to be located on the Land,
with respect to which an easement (for access and
maintenance) would be granted to the City by Xxxxxxx.
Xxxxxxx and the City shall cooperate together to decide
where and how said $150,000 assistance will be allocated.
The contribution of $150,000 will be made through a Revenue
Allocation District to be created and approved by the City
and administered by PDA. The proceeds of tax increment
financing within the District are to be used for items (i)
through (iv) above.
(g) Storm Drainage. The parties shall cooperate
together to develop a storm sewer plan for the Land.
Xxxxxxx currently anticipates a storm sewer plan as follows:
- Xxxxxxx will install storm sewer
pipelines and drains.
- Storm water will be piped to
detention basins located in the existing gully south of the
Land.
- The detention pond will release
water into nearby ravines.
- The University will grant to
Xxxxxxx a storm drainage easement to allow for release and
runoff of storm water onto University property.
(h) Certificate of Completion. Promptly after
the completion of all improvements required herein by the
City substantially in accordance with the approved plans,
the City shall furnish to Xxxxxxx an instrument certifying
completion of the infrastructure and improvements.
(i) Cooperation to Develop/Permits. The City
will cooperate fully in promptly reviewing, pursuant to its
regulations and ordinances and, absent reasonable
objections, promptly approving plans and specifications
submitted by Xxxxxxx for its proposed development and
construction on the Land and granting appropriate building
permits therefor. The City has appointed Xxxx Xxxxxxxxx, as
a "Fast-Track Officer," to assist Xxxxxxx to obtain prompt
inspection and prompt processing of needed building permits.
Building permit fees will be paid one-half by Xxxxxxx and
one-half by the City.
(j) Bus Service. The City will provide adequate
commuter bus service on Xxxxx Xxxxxx Drive adjacent to the
Land, after Xxxxxxx begins production at its facility
located on the Land. Such commuter service shall connect at
Xxxxxxx'x facility to the downtown Pocatello area.
(k) Priority Snow Removal. The City covenants
and agrees that it will make Xxxxxx Drive a priority snow
removal route.
2. Obligations of the University. Contingent upon
the closing of the conveyance of the Land to Xxxxxxx, the
University covenants and agrees as follows:
(a) Easements. The University will transfer and
convey, for no consideration other than the covenants of
Xxxxxxx and the City as set forth herein, all easements and
rights of way reasonably needed for all of the utilities
described in the paragraphs of Section 1 above, to the
extent such easements and rights of way are reasonably
needed across real estate owned by the University.
(b) Cooperate to Develop. The University will
cooperate fully in Xxxxxxx'x development and construction on
the Land.
3. Obligations of Xxxxxxx. Xxxxxxx agrees,
contingent upon the closing of the conveyance of the Land to
Xxxxxxx and upon satisfaction of the covenants and
agreements of the City and the University herein, that
Xxxxxxx shall construct on the Land a building and
improvements of generally the same quality of construction
as Xxxxxxx'x facility in Draper, Utah.
4. Default. Time is of the essence in this
Agreement. In the event of any default in or breach of this
Agreement or any of its terms and conditions by any party,
such party shall, upon written notice from the other party
or parties, proceed immediately to cure or remedy such
default or breach, and in any event shall cure within thirty
(30) days after receipt of such notice. In case the default
or breach shall not be cured or remedied within such thirty
(30) day period, the aggrieved party may institute such
proceedings as may be necessary to realize on rights or
remedies available to it as law or equity, including, but
not limited to, proceedings to compel specific performance
by the party in default or breach of its obligations. In
addition, the aggrieved party shall have the right to
complete construction of any improvements in connection with
which the defaulting party is in breach, and to then demand
and receive reimbursement from the defaulting party for
funds so expended, plus interest at 8% per annum.
5. Force Majeure. In the event that any work or
construction required herein cannot be completed by the date
provided herein due to interruption of transport, strikes,
fire, flood or extreme weather, or acts of God or similar
occurrences, then the date for completion shall be extended
for the period of such interruption. No such allowance
shall be made unless the party claiming such allowance shall
provide notice of the interruption, in writing, to all other
parties, citing specifically the conditions impeding
performance within 30 days of the event which caused the
delay.
6. Representations and Warranties of Parties. The
parties each hereby represent and warrant solely with
respect to itself:
(a) All Consents. Said party has all consents
and approvals required to enter into and perform this
Agreement.
(b) Powers, Authorizations. The execution,
delivery, and performance of this Agreement by said party:
(i) is within the power of said party;
(ii) has been duly authorized by all
necessary actions; and
(iii) does not contravene or constitute a
default under any provisions of applicable law or regulation
or of any agreement, judgment, injunction, order, decree or
other instrument binding upon said party.
(c) Pending or Threatened Litigation. There is
no action, suit, or proceeding pending, or to the knowledge
of said party threatened, against or affecting said party
before any court or arbitrator or any governmental body,
agency, or official in which there is a reasonable
possibility of an adverse decision which could materially
affect the Land, or which in any manner questions the
validity of this Agreement or the covenants made herein.
(d) Binding Agreement. This Agreement
constitutes a valid and binding agreement of said party.
7. Land Use. The City represents and warrants that
the only approvals needed from the City for construction of
Xxxxxxx'x facility on the Land is the obtaining of building
permits. No zoning, conditional use, or other permits are
required. The intended use of the Land by Xxxxxxx (i.e., as
a manufacturing facility) is fully authorized and proper
under applicable laws and regulations.
8. Miscellaneous. No waiver made by any party shall
apply to obligations beyond those expressly waived in
writing. There are no representations or agreements between
the parties regarding the subject matter addressed by this
Agreement except as set forth herein and in the Acquisition
Agreement, and this Agreement and the Acquisition Agreement
supersede any and all prior negotiations, agreements, or
understandings between the parties hereto in any way related
to the subject matter. None of the provisions of this
Agreement may be altered or modified except through a
document in writing signed by both of the parties hereto.
To the extent permitted by the provisions hereof, all of the
terms, provisions, agreements, and undertakings herein
contained shall be binding upon and shall inure to the
benefit of the respective successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the dates written below, effective as the
date first written above.
CITY OF POCATELLO
Xxxxx X. Xxxxxxxx, Mayor
November 30, 1995
IDAHO STATE BOARD OF EDUCATION
acting as Trustees for
IDAHO STATE UNIVERSITY
Xxxxxxx X. Xxxxx, President
Idaho State University
November 30, 1995
XXXXXXX REAL ESTATE HOLDINGS, INC.
Xxxx X. Xxxxxxx, President
November 29, 1995
EXHIBIT A
(Attached to and forming part of Development Agreement)
Legal Description of the Land
A tract of land in the northwest quarter
of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx
35 East, Boise Meridian, described as
follows:
Commencing at the northwest corner of
Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 35
East, Boise Meridian; thence
South 89 degrees 44 minutes 03 seconds
East along the north line of Section 31
for a distance of 610.05 feet to a point
on the west line of the land associated
with the Idaho State Veterans Home;
thence
South for a distance of 469.22 feet to
the southwest corner of the land
associated with the Idaho State Veterans
Home, the TRUE POINT OF BEGINNING;
thence
East along the south boundary line of
the land associated with the Idaho State
Veterans Home for a distance of 496.84
feet; thence
South 08 degrees 07 minutes 22 seconds
West for a distance of 909.12 feet;
thence
West for a distance of 903.77 feet; thence
North for a distance of 900.00 feet; thence
East for a distance of 535.39 feet to the point of
beginning.
Comprising 20.00 acres, more or less.
EXHIBIT B
Utility Plan Map
