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'