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HomeMy WebLinkAbout2009-004 Agrmt Dev Condition/Imp - Coming Attractions Theatres Jackson County Official Records 2009-002941 R.A Cnt=1 Stn=10 ALONZO~/28/2009 12:57:38 PM $40.00 $5.00 $5.00 $11.00 Total:$61.00 III 11111 "III "11111 01357994200900029410080083 I, Christi~e Walker, County Clerk for Jackson County, Oregon, certify that the Instrument identified herein was recorded in the Clerk records. Christine Walker - County Clerk For County Use Only Subject Property Address: Project #: Map & Tax Lot #: Legal Description: Property Owner: Property Owners Address: 2200 Ashland Street. Ashland. OR 97520 Plannina Action #PA-2008-01318 MaD # 39 1 E 14 BB Tax Lot #300 See Attached John C. Schweiaer Lavina Trust (John C. Schweiaer. Trustee) P.O. Box 3520. Ashland. OR 97520 Development Condition Implementation Agreement This Agreement is made and entered into this <t"-day of January, 2009, by and between Coming Attractions Theatres, Inc., and the John C. Schweiger Loving Trust,L (hereinafter collectively referred to as "Developer"), and the City of Ashland, a municipal corporation of the State of Oregon (hereinafter referred to as "City"). RECIT ALS: · John C. Schweiger Loving Trust, is Owner of the real property located at 2200 Ashland Street, Ashland Oregon, said property being more particularly described in Exhibit A, attached hereto and made a part hereof by this reference (the "subject property" or "said real property"). · Coming Attractions Theatres, Inc., is the applicant for Planning Action 2008- 01318, concerning said real property. · On December 9, 2008 the City of Ashland Planning Commission approved with conditions, P A 2008-01318, an application by Coming Attractions Theaters, Inc., for inter alia, site review approval to redevelop an office building located at 2200 Ashland Street. · On December 22, 2008 the Developer's representatives filed an appeal of the decision to approve the office building; said appeal concerns the imposition of condition 7 by the Planning Commission. Development Condition Implementation Agreement: Page 1 / · Condition 7, as imposed by the Planning Commission reads as follows: "7. That the applicant shall provide a future connectivity route to what is now the informal pathway connecting to the Central Ashland Bikepath (CAB) through or adjacent to the subject property to properties on the southeast side at such time as a legal connection is made." · The Central Ashland Bikepath ("CAB") is located on the south side of the railroad tracks that run generally below and on the south side of the subject property . · The "informal pathway" referenced above is located to the Southeast of the subject property, on the north side of the railroad tracks that run below and on the south side of the subject property. · The City and Developer agree, without deciding the validity of the appeal, that the appeal can be withdrawn and the matter settled if Condition 7 is implemented and clarified in this Agreement; and NOW THEREFORE, IN CONSIDERATION OF the mutual promises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Developer and City do hereby agree as follows: 1. The recitals set forth above are true and correct and are incorporated herein by this reference. '~~ Subject to the terms and COnditio$~~ent, Developer agrees to withdraw, on or before January Ji, 2009, the I calland use appeal of PA 2008-01318, filed on December 22, 2008. 2. 3. City agrees to promptly refund to Developer the appeal fees submitted for said local appeal of P A-2008-01318. 4. City and Developer agree that condition 7 as set forth in P A 2008-01318, shall be implemented as follows, and unless the parties otherwise agree in writing, not otherwise: a. Except to the extent specifically otherwise provided herein, Developer shall have no obligation whatsoever under condition 7 unless and until (on or before the earlier of the dates set forth in paragraph 6 hereof) City obtains all necessary rights and permits to construct and completes Development Condition Implementation Agreement: Page 2 ;L construction of a pedestrian or bicycle path crossing over ODOT or railroad property in the immediate vicinity of the current informal pedestrian crossing located near the western point of the subj ect property or at some other point adjacent to Developer's frontage at 2200 Ashland Street on the ODOT or railroad property. The occurrence of the last of these events is referred to herein as the "triggering" of the condition. b. At such time as the condition is triggered, Developer shall work with City Planning and Engineering staff to locate a route for a pedestrian or bicycle path, either through Developer's property or on adjacent property (including without limitation ODOT or railroad or other property), for a reasonable and convenient continuation of the Central Ashland Bikepath to the "informal pathway" southeast of the subject property (said route being referred to hereinafter as a or the "connectivity route" or "future connectivity route.") It is specifically understood and agreed that the right to decide whether the connectivity route may be on or across Developer's property or must be located on adjacent property shall belong solely to the Developer, to be exercised in its sole discretion. It is further understood and agreed that once Developer has identified one or more future connectivity route(s) as provided in the following subparagraph, upon the triggering of the condition, the connectivity route to be used shall be one of those currently so identified by Developer, unless the parties otherwise agree in writing. c. Subsequent applications for building permits or development approvals on the subject property shall (until the earlier of the dates identified in paragraph 6 hereof) acknowledge the possible triggering of an obligation to cooperate with a future connectivity route pursuant to this Agreement, and such applications shall identify (at the Developer's discretion) one or more approximate alternative routes therefor. Once Developer has identified one or more alternative route(s), and unless and until Developer has in a subsequent application or modification thereof deleted any such route (which may be done with or without replacement, provided that at least one connectivity route remains designated by Developer), Developer shall not preclude future connectivity over its designated route(s) by placement of grading, walls or other impediments. For purposes of this condition landscaping, exclusive of trees, shall not be considered an impediment. Development Condition Implementation Agreement: Page 3 3 d. Developer expressly agrees to cooperate with the City of Ashland in negotiation and acquisition of permits, licenses and easements, including without limitation ODOT, to facilitate a future connectivity route on adjacent properties or (should Developer have so elected or agreed) on Developer's property, provided that such cooperation shall be without cost, expense or obligation to Developer. e. Provided that the connectivity route to be used is one of those then currently having been identified by Developer under subparagraph 4(c) hereof or agreed to by Developer in writing, and that said route and the proposed improvements thereon do not interfere with Developer's use or enjoyment of the subject property (except to the extent necessarily following from the use of the route as so identified or agreed to), Developer expressly agrees not to oppose, hinder or obstruct the City in any judicial or quasi-judicial or administrative proceeding concerning the acquisition of right-of-way, access easements or permits to facilitate a future connectivity route on adjacent property and/or (should Developer have so elected or agreed) on Developer's property. f. Nothing in this Agreement requires the dedication or donation or transfer of any kind of any interest in real property from the Developer to the City of Ashland or to any other party. g. Nothing in this Agreement shall be deemed to require Developer to construct or maintain any of the physical improvements associated with continuation of the CAB or connection with the "informal pathway," or to bear or incur any expense whatsoever in connection therewith. Unless otherwise agreed in writing hereafter, City shall not have the right to access or use the subject property in any way in connection with the construction or maintenance of any of said physical improvements or the CAB or any connection of the CAB to the "informal pathway." h. City hereby agrees to and shall, in the event that the condition is triggered and any steps taken by City (whether or not completed) to develop a pedestrian or bicycle pathway either on the subj ect property or on property adjacent to the subject property, fully and completely indemnify, defend, and hold harmless Developer and all of its officers, directors, agents, employees, representatives, heirs, executors, trustees, beneficiaries, administrators, successors, and assigns, from any and all claims, demands, actions or causes of action ("Claims") that may be asserted at any time by any third party related in any way to the CAB, the "informal pathway," or any pedestrian or bicycle pathway on the Development Condition Implementation Agreement: Page 4 ~ subject property or on property adjacent to the subject property, including without limitation any Claims arising thereon or from the use or condition or construction or maintenance thereof, or arising from any property rights asserted to be infringed by the location, construction, use, condition or maintenance thereof, based on acts, omissions, conditions or events whenever occurring or arising. 5. City and Developer agree that this Agreement is consistent with condition 7 as set forth in P A 2008-01318; and 6. The Parties stipulate and agree that the obligations in Condition 7 and any continuing obligations on Developer pursuant to this Agreement shall terminate on December 9, 2018, or upon the removal of Condition 7 in any subsequent amendment to P A 2008-01318, whichever occurs first. It is further stipulated and agreed that Condition 7 applies only to Planning Action P A 2008-01318, and that in the event said Planning Action approvals were to expire without having been implemented by Developer, Condition 7 would cease to have any continued existence, and would in no way restrict Developer's or any other party's rights or impose any obligations on any party in or in connection with the use of the subject property. 7. Developer does hereby, for itself, its officers, agents and employees, their heirs, executors, administrators, successors, and assigns, release and forever discharge the City of Ashland, its officers, directors, agents, employees, contractors, successors, and assigns from any and all claims, demands, actions or causes of action which Developer now has or which hereinafter may accrue based on acts, omissions or events to the date hereof, against the City of Ashland its officers, directors, agents, employees, contractors, successors, and assigns in connection with P A-2008-01318, including, without limitation, any and all claims, demands actions and causes of action referenced in any previous written or electronic correspondence with the City of Ashland. This release expresses a full and complete release of liability claimed and denied, regardless of the adequacy of the above consideration, and the acceptance of this release shall not operate as an admission of liability on the part of anyone. Developer has been represented by counsel throughout this process, and has been given the opportunity to consult with legal counsel. 8. This instrument and the covenants and agreements provided for herein shall inure to the benefit of and be binding and obligatory upon the heirs, executors, administrators, successors, and assigns of the respective parties. This Agreement shall run with the land, so that obligations of this Development Condition Implementation Agreement: Page 5 ,/' j Agreement shall be binding upon future owners of the property. THE PARTIES FURTHER DECLARE and represent that no promise, inducement, or agreement not expressed herein has been made between them, that this Agreement contains the entire agreement between them, and that the terms of this Agreement are contractual and are not merely recitals. IN WITNESS WHEREOF, the parties hereto have executed this instrument effective the day and year first hereinabove written. DEVELOPER Coming Attractions Theatres, Inc., ~~ D ennan, resident Dated / - B -" LJ.9 STATE OF OREGON) ) County of Jackson ) The foregoing instrument was acknowledged before me this ?~ day of 'f.~ 2009, by Daryn McLennan, ~!f.~~:d.ent and authorized agent of Coming Attractions Theatres, Inc. ~ 1-.. ~ -~ Notary Public for Oregon ~- My Commission Expires: ID/U/'O . OFFICIAL SEAL KIMBERLY R. BRODBJR.-IEUfELD NOTARY pueLlC-OR!8ON COMMISSION NO. 411278 MY COMMISSION EXPIRES OCT. 24, 20\0 John C ch~, T stee Dated . tt 9 I STATE OF OREGON) ) County of Jackson ) The foregoing instrument was acknowledged before me this ~I}\, day of ~ 2009, by John C. Schweiger, as Trustee and authorized agent of John Development Condition Implementation Agreement: Page 6 to C. Schweiger Loving Trust. CITY OF ASHLAND STATE OF OREGON) ) County of Jackson ) A(~~~. ~;-]\~ Notary Pu lic for Oregon My Commission Expires: IfJ/ ~ 1'0 . OFFICIAL SEAL KIMDERlY R. BROOEU...... NOTAllY PUBLIC-OR88ON COMM1SSION NO. 411278 MY COMMISSION EXPIRES OCT. 26. 2010 ~ T e foregoing instrument was acknowledged before me this ~ day of 2009, by Martha Bennett, as City Administrator and authorized agent of ity of Ashland. ~Lt~ Notary Public for regon My Commission EXPires:~2-1~l:t 0 Approved as to Fo Robert Kuenzel, Attorney for DEVELOPER IOWNER Development Condition Implementation Agreement: Page 7 7 '" . OFFICIAL SEAL DIANA R. SHIPLET NOTARY PUBLIC-OREGON COMMISSION NO. 405584 MY COMMISSION EXPIRES MAY 2, 2010 Approved as to Form: Richard Appic CITY Attorney Exhibit "A" Commencing at the northwest corner of Section 14 in Township 39 South, Range 1 East of the Wlllamette Meridian in Jackson County, Oregon; thence South 190 54' 50" East (record East), along the north line of a.ld Section, 1080.0 feet; thence South 00 OS' 1011 west (record South) 30.0 feet to a 5/8" iron pin on thesouthUne of Oregon State Highway No. 66; thence continue South 00 05'10" West (record South) 60.0 feet to a 5/8" iron pin for the true point of beginning; thence South 00 11' 05" E.st (record South 00 10" East) 191.615 feet to a 5/1" iron pin on the northe..terly right of way line of the Southern Pacific Railroad; thence continue South 00 11' OS" E.st 85.43 feet (record South 00 10" East 85.19 feet) to a 5/8" iron pin on said northeasterly right of way line of aforementioned Railroad; thence North 550 12' 3D" west, 475.415 feet (record North 550 25' West 473.70 feet), along said right of way line, to a 5/8" Iron pin on the east right of way line of Clay Street; thence North 00 11' 50" West 6.36 feet (record North 5.94 feet) to a 5/8" Iron pin; thence South 890 54' SO" East 389.555 feet (record Ea.t 390.0 feet) to the true point of beginning. EXCEPTING THEREFROM that portion of the above described tract conveyed to the State of Oregon, by and through Its State Highway Comml..lon in deed recorded as No. 72-07175 of the Official Records of Jackson County, Oregon. Account 10080931, Map 391E14BB 300 S'