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M3 Eagle LLC Pre-annexation & Development Agreement 2007 FINALTable 1: Bia Gulch Plannina Area Density Allocation Acres Densitv (units/acre) Units Base Density 636 0.5 318 Community Center - 2.5 - Neighborhood Center 120 10 1,200 Regional Open Space - 1 - Excess Community Open Space 60 0.5 30 Subtotal: 1,548 Fundina Bonus (10%) 155 Density Reassianment 188 Units 1,891 Gross Density (units/acre) 2.97 Maximum PlanninQ Area Density (units/acre) 5.24 Non-Residential Use Acreage 100 The Big Gulch Planning Area contains 636 acres (approximately 11 % of the total Property) and is more fully described in Exhibit F1. Topographically, over 95% of this area is less than 25% slope. The Planning Area contains approximately 116 acres of Constrained Lands of which 75 acres will be mitigated. The maximum Pre-Mitigation Density for this Planning Area is 1,634 dwelling units. This Planning Area is the heart of the community and is planned for a mix of residential, Non-Residential Uses, civic and public uses with 120 acres of Neighborhood Centers that are planned for a mixture of commercial and/or office uses and residential uses. Two Neighborhood Centers, each comprised of 60 acres and planned for a mixture of commercial and/or office and residential uses, are located near the center and western end of the Planning Area with the highest intensity of mixed-use development located in the center. The central Neighborhood Center may be increased to a maximum of 95 acres and 300,000 Non-Residential Use square feet to promote and recruit additional employment opportunities that allow Eagle residents to live and work within the City of Eagle with intensity and density of use based upon Eagle City Code. This Planning Area may also contain resort or hotel uses and a medical office campus with a clinic or hospital. Residential neighborhoods are anticipated to contain single and multi-family homes with densities ranging from 2-20 units/acre. Housing options will include apartments, townhouses, condominiums, patio homes, and high-density single-family detached and attached homes. The Big Gulch Planning Area will have an urban feel at the Neighborhood Centers with appropriate landscape, monumentation, signage and place-making features integrated into the design of the area. Housing, commercial/office uses, roadways and landscape will tend to be arranged in formal patterns with tree-lined boulevards and pedestrian scale amenities. Buildings along the main arterial roadway may be close to the roadways to create pedestrian-friendly areas with sidewalks, street trees and benches. Shared surface parking areas and parking garages will be encouraged at the sides and rear of buildings or within building clusters, to reduce large areas of paving. On-street parking will be provided where sufficient right-of-way exists. Design Guidelines will be established as set forth in this Agreement, and in conjunction with City's design review regulations and enforced through the Owners' Association and recorded CC&Rs as well as appropriate City enforcement mechanisms. Clustered housing designs and placement of homes and other structures on individual lots will be carefully integrated into the topography, and sensitive hillside grading techniques will be used to ensure, to the greatest extent possible, that visual impacts of development on slopes and ridgetops is mitigated. Renderings showing examples of PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -11 compliance with the Eagle Comprehensive Plan and this Agreement. Notwithstanding the first sentence of this paragraph, in the event that contiguity of the Property with City's jurisdictional boundary is not reached within such 24-month time period, or if contiguity with City's jurisdictional boundary is reached and City fails to timely complete annexation proceedings commenced within 90 days of City's receipt of written notice of contiguity from Developer, unless such 24-month period is extended as provided further herein, the Initial Term shall automatically terminate and this Agreement shall terminate. Notwithstanding anything to the contrary herein, at any time prior to the commencement of the Extension Term, defined below, if City: i) acts in bad faith in contravention of this Agreement; or (ii) the City fails to take actions to annex the Property consistent with the terms and conditions outlined herein, Developer may withdraw Developer's consent to annexation and rezone of the Property and this Agreement shall automatically terminate. Any expenditures by Developer prior to annexation shall be at Developer's risk and at Developer's sole cost and expense. b) Extension Term. Provided annexation and rezone of the Property has occurred as provided immediately above, the extension term of this Agreement shall commence on the date of publication of the Annexation and Rezone Ordinances(s) of the Property and shall automatically terminate on the 30th anniversary of the first day of the extension term (the "Extension Term") without the necessity of any notice, agreement, or recording by or between the Parties. However, if any of the Property has not yet been developed as contemplated by this Agreement before such 30th anniversary, this Agreement shall automatically extend, without the necessity of any notice, agreement, or recording by or between the Parties, for an additional 10 years, for a total of 40 years, at which time this Agreement and the Extension Term shall automatically terminate as to the Property without the necessity of any notice, agreement, or recording by or between the Parties. The Initial Term and the Extension Term are sometimes individually or collectively, as context may dictate, referred to herein as the "Term." If Developer has proceeded in good faith but has been prevented from developing the Property, in whole or in part, within the Extension Term by circumstances beyond Developer's control, including, without limitation, failure of City to annex all or a portion of the Property, judicial injunctions, inclement weather, delays due to strikes, inability to obtain materials, civil commotion, terrorism, fire, acts of God, or delays caused by City, or other local, state or federal agencies, the Term shall be extended for an additional period of time equal to the period of such delay(s). Nothing in this Agreement shall be interpreted to preclude the Parties from extending the Term by mutual agreement or from entering subsequent development agreements or extensions thereof. 2. INFRASTRUCTURE AND SERVICES. The Parties acknowledge that a general intent of this Agreement is for Developer to provide for its proportionate share of the Public Infrastructure which will be set forth by coordinated planning, design, engineering, construction, acquisition, installation, and/or provision of Public Infrastructure as contemplated by the Planning Unit Master Plan process and as otherwise described herein. Various public facilities and services as identified in this Agreement and to be identified in the Planning Unit Master Plan(s) shall be sited, provided, maintained and operated in accordance with this Agreement or in accordance with separate agreements with other governmental or quasi-governmental entities. City and Developer recognize that a proportionate share of the costs associated with the development of the Property and Public Infrastructure shall be borne by Developer and third-party owners of Property within the development and that many necessary elements of Public Infrastructure should be provided and/or maintained by other governmental or quasi-governmental entities, and not by City, and that Developer may enter into separate agreements with such other entities. For clarification, the Parties make specific note of and acknowledge the following: 2.1 Traffic & Circulation. a) Ada County Highway District; Idaho Transportation Department. Improvements to the ACHD and/or ITD Traffic System, as applicable, within the Project shall be provided at the direction of ACHD, ITD or some other legally-constituted entity with jurisdiction over the ACHD Traffic System and/or the ITD Traffic System. Unless City has such jurisdiction, City shall not be PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 21 responsible for any approvals or access permits required or construction or maintenance costs associated with the ACHD Traffic System and/or the ITD Traffic System, within the Project. b) Regional Circulation Plan; Master Traffic Study; Master Streets & Circulation Plan. Conceptual locations of major roadways within the Property and the North Eagle Foothills Planning Area are provided in the Regional Circulation Plan, attached hereto as Exhibit I. Developer is working with City, ACHD, ITD, BLM and adjacent property owners to adopt a regional roadway network plan to serve as a template to guide the Master Streets & Circulation Plan, to be developed based on the Master Traffic Study, the Planning Unit Master Plans and construction of the arterials generally along the alignments shown in the Regional Circulation Plan or as determined by the Agency having jurisdiction. Developer will work with the aforementioned agencies and others to determine the appropriate funding mechanisms to provide future funding to mitigate the proportionate impact of the development of the Property on the existing ACHD Traffic System and/or ITD Traffic System. Developer and City shall cooperate to achieve approval by ITD and/or ACHD of the circulation interrelationship between the ACHD Traffic System and the ITD Traffic System, such as the location of highway interchanges and/or roundabouts, as reflected in the proposed Master Streets & Circulation Plan attached hereto as Exhibit J. The western primary entry may be proposed as an interchange or roundabout on State Highway 16. c) ACHD Traffic System. Prior to and following annexation, Developer, with consultation with ACHD, will design, engineer, construct, acquire, install, permit and dedicate the ACHD Traffic System within and/or proportional to the Project's impacts in accordance with the Master Streets & Circulation Plan, Planning Unit Master Streets & Circulation Plans and the Phasing Plan and all planning and study documents of ACHD. Any expenditures incurred by Developer prior to annexation shall be at Developer's risk and at Developer's sole cost and expense. d) ITD Traffic System. Prior to and following annexation, Developer, with consultation with ITD, will design, engineer, construct, acquire, install, permit and dedicate the ITD System within and/or adjacent and/or proportional to the Project's impacts in accordance with the Master Streets & Circulation Plan, Planning Unit Master Streets & Circulation Plans and Phasing Plan and all planning and study documents of lTD. City and Developer shall cooperate in pursuit of funding from or authorized by the State of Idaho for the construction of Developer's proportionate share of necessary improvements to the ITD System (which improvements may include, without limitation, interchanges, roundabouts, traffic signals, turning lanes and frontage roads) required to implement this Plan. Any expenditures by Developer prior to annexation shall be at Developer's risk and at Developer's sole cost and expense. e) Planning Unit Master Streets & Circulation Plan. A detailed analysis of the ACHD Traffic System within the Project and the ITD Traffic System within and/or adjacent to the Project and the ultimate design and locations of streets and circulation improvements shall be consistent with the Master Streets & Circulation Plan and further defined in each Planning Unit Master Streets & Circulation Plan, which analysis shall be submitted and approved by ACHD and/or ITD, as appropriate. Each Planning Unit Master Streets & Circulation Plan shall be prepared and approved by City taking into account the Master Streets & Circulation Plan, and any amendments thereto and the recommendations of ACHD and/or ITD, as applicable. Each Planning Unit Master Streets & Circulation Plan shall address any increase or decrease in traffic volumes from other Planning Unit Master Plans and the particular Planning Unit being planned that may occur as development progresses and densities and intensities are rearranged. f) Phased Construction. Developer and/or ACHD and/or ITD shall construct or arrange for the construction of, in phases, and in accordance with the Master Streets & Circulation Plan and the Planning Unit Master Streets & Circulation Plan: streets, roadways and sidewalks to be used for motorized vehicular traffic for ingress and egress to, through, within and from the Project; parking; pedestrian, bicycle and/or other facilities to be used for non-motorized vehicular traffic for ingress and egress to, through, within and from the Property; street lighting with underground electric service distribution; all striping, traffic signals, street sign posts, street name signs, stop signs, speed limit signs, and all other directional/warning/advisory traffic signage as may be reasonably required. City shall not PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 22 of occupancy for any phase prior to Developer's completion of the Water System and irrigation facilities for service of that phase. As part of the conveyance of any phase or portion of the Water System to City, Developer shall provide City with all applicable as-built drawings, operation and maintenance manuals, operation records, and water right records and other necessary information. d) Planning Unit Master Water Plan. A detailed analysis of the Water System for each Planning Unit shall be completed and submitted to City. e) Assured Water Supply. For each Planning Unit Master Water Plan, Developer shall submit evidence that Developer has secured adequate surface and/or ground water right(s) for the Water System, sufficient for all irrigation, aesthetic, amenity, potable and/or recreational use in connection with the development of each Planning Unit (unless Developer is entitled to a waiver as provided by City Code). As part of the construction of the Water System and conveyance to City, Developer shall transfer, conveyor assign (on a phase by phase basis) ground water right(s) to City for inclusion in City's municipal water supply system; provided however, Developer shall not conveyor assign more ground water right(s) than necessary to serve the Project as it is being developed and City shall not use any of the water transferred under such rights to serve any other properties unless City demonstrates to Developer that City has obtained adequate water rights to serve the Project and such other properties. City shall cooperate with Developer, at no cost to City, to assist Developer in Developer's obtaining all permit(s) and licenses for water rights sufficient to serve the Property as the Property is developed in accordance with this Agreement. If any transfer, amendment or other proceedings are required under Idaho Code or IDWR rule or policy for the water rights necessary to serve the Project, City shall cooperate with developer in Developer's efforts to obtain all necessary permits and approvals from IDWR, including, without limitation, approvals in connection with Mitigation that may be required. Developer shall have the right to file for a municipal water right prior to the annexation. As set forth in this Agreement, it is City's and Developer's intent to have City be the water service provider and not have a PUC regulated provider serve the Property. f) Reimbursement. If Developer, at Developer's cost and expense, develops major water facilities, such as major production wells, water storage tanks or reservoirs (but excluding local service and distribution lines) for the Project, which reasonably has been determined by City to benefit properties other than the Property, or if City requires Developer to develop a portion of the Water System in excess of that necessary to serve the Project so as to allow City to serve other properties, City and Developer shall, in good faith, enter into an agreement to the effect that the portion of the costs in connection with such development of the Water System for properties other than the Property shall be reimbursed to Developer from the service connection charges collected from such other benefited property owners who otherwise have not paid or contributed their proportionate share toward development of the Water System ("Water Reimbursement Agreement"). Such Water Reimbursement Agreement shall have a duration of sufficient time following completion of the portion of the Water System for which reimbursement is sought with such time to be mutually agreed between Developer and City but in no event less than ten (10) years. Such Water Reimbursement Agreement shall provide, in part, that: (i) interest be paid to Developer at the then applicable municipal bond rate; (ii) City shall charge an administrative fee for handling the accounting, auditing, and payment of the reimbursement payments to be made to Developer; iii) the Water Reimbursement Agreement shall be binding on Developer and City and their respective successors and assigns; and (iv) the Water Reimbursement Agreement may be recorded as an encumbrance against the benefited property(ies). g) Water User Charges. Upon development and conveyance of the Water System to City of the Water System and compliance with paragraph 2.2(c) above, City shall provide water service to the Property in quantity and quality sufficient to satisfy the potable water needs of the Project as and when required in connection with the development of the Property, subject to any water disruption or degradation of water quality or quantity that is outside the control of City and further subject to City's reasonably enacted and imposed standard terms and conditions of delivery. All water service using the Water System shall be metered. City shall receive no fee for water service until, and only if, City accepts ownership of and operational responsibility for the Water System, after which time City shall be entitled to collect such fees for water service. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 24 2.4 Storm Water Drainage. a) Ada County Highway District. Post-development storm water management includes drainage collection, diversion, detention, retention, dispersal, use and discharge, which shall be provided by ACHD or some other legally-constituted public or private provider allowed to operate in City entity with jurisdiction over the Drainage System. Unless City has such jurisdiction, City shall not be responsible for any approval, construction, collection, conveyance or maintenance costs associated with the Drainage System within the Project. b) Master Drainage Study; Master Drainage Plan. Developer shall complete the Master Drainage Plan, based on the Master Drainage Study to describe pre-development drainage characteristics of the Property and a conceptual hydrologic and hydraulic analysis of the Property's existing and proposed Drainage System. In connection with such Planning Unit Master Drainage Plan, Developer shall determine the applicable 1 OO-year floodway elevations for the Property and shall obtain from FEMA a Conditional Letter of Map Revision ("CLOMR") that adjusts the floodway boundaries as and if appropriate. City shall use all good faith efforts to cooperate with Developer in connection with Developer's applications to FEMA to modify relevant flood maps to reflect actual conditions. c) Assured Drainage. In connection with each Planning Unit Master Drainage Plan, concurrently with the submittal of a Final Development Plan in connection with each Planning Unit or portion thereof, Developer shall submit evidence that the Drainage System is adequate to satisfy all proposed uses in connection with the development of such Planning Unit or portion thereof. d) Drainage Re-use. City acknowledges Developer's intention to retain rights, title and interest in any and all of drainage on the Property (for irrigation or aquifer recharge purposes). City acknowledges that Developer may be using drainage water for irrigation of Open Space and potentially recharging the aquifer, both of which uses will be subject to applicable governmental agency approvals. 2.5 Public Facilities. a) Police. Police protection is provided to City under contract with Sheriff of Ada County ("Sheriff') through contractual arrangement between Ada County and City. City shall provide police protection services to the Property as developed on the same basis as is provided to other residents and businesses within City. Following annexation, Developer shall contribute 1 site (not to exceed 1 acre) for the construction of a police station in accordance with the Master Parks, Trails and Public Facilities Plan, attached as Exhibit K, which defines a general location. Such site shall be combined with a fire station site. The final location is subject to Developer, Sheriff, and Fire District approval. Such police station shall be identified on the Final Development Plan in connection with the applicable Planning Unit Master Plan or portion thereof. Developer shall cooperate with City and Sheriff in determining Developer's proportionate share of funds in connection with construction of such site, facility equipment, personnel and operations, but not to exceed $1,000,000.00 unless Developer's proportionate share exceeds such monetary amount, said additional amount shall be paid by Developer (the "Police Fees"); provided however, City and Developer acknowledge and agree that such Police Fees paid in connection with non- capital improvements are intended to be and shall be a one-time payment meant to cover that initial period of time when ad valorem taxes have not yet been collected to cover the costs of such non-capital improvements. Any contribution by Developer shall be contingent upon: (i) review and approval of construction; (ii) 180 days notice provided to Developer by City or the Sheriff; and (iii) evidence that the demand for such facility is based upon the demand created by the Project. Such buildings shall be designed to be consistent with the requirements necessary to provide service to the Project. Design of the facility shall be consistent with the EASD and the Design Guidelines, and shall be reviewed for approval by Developer and City in accord with the notice and hearing procedures of Eagle City Code. In the event that impact fees are implemented in connection with police service, Developer shall receive a credit against such impact fees equal to that portion of the Police Fees paid for capital improvements (as defined in Idaho Code ~ 67-8203). PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 26 b) Fire and Emergency Services. Fire and emergency services are now provided to City by Eagle Fire District and Star Fire District (individually, the "Fire District" and collectively, the "Fire Districts"). Unless City becomes the entity responsible, City shall not be obligated to provide fire services to the Property. Fire water flows shall be provided by the Water System and all fire protection infrastructure will be designed and constructed in conjunction with each Fire District and in accord with all applicable governmental regulations and adopted uniform fire codes. Hydrant locations will be determined following consideration of, without limitation, accessibility, obstructions, building proximity, driveway entrances, signs and light poles. Developer, in consultation with the Fire Districts, and prior to submittal of a Final Development Plan in connection with the first Planning Unit Master Plan or portion thereof, shall develop a wildfire management plan for implementation within such Fire Districts. Following annexation, Developer shall contribute 1 site (not to exceed 1 acre of land per site and in addition to the fire station site combined with the police station site referenced in paragraph 2.5(a) above) for construction of the fire station in accordance with the Master Parks, Trails and Public Facilities Plan, attached as Exhibit K, which defines a general location. The final location is subject to Developer, applicable Fire District and Sheriff approval. Such fire station shall be identified on the Final Development Plan in connection with the applicable Planning Unit Master Plan or portion thereof. Developer shall cooperate with City and the Fire Districts in determining Developer's proportionate share of funds in connection with construction of such site, facility equipment, personnel and operations, not to exceed $1,000,000.00 unless Developer's proportionate share exceeds such monetary amount said additional amount shall also be paid by Developer (the "Fire Fees"); provided however, City and Developer acknowledge and agree that such Fire Fees paid in connection with non-capital improvements are intended to be and shall be a one-time payment meant to cover that initial period of time when ad valorem taxes have not yet been collected to cover the costs of such non-capital improvements. Any contribution by Developer shall be contingent upon: (i) review and approval of construction budgets; (ii) 180 days notice provided to Developer by City or Fire District(s); and (iii) evidence that the demand for such facility is based upon the demand created by the Project. Such buildings shall be designed to be consistent with the requirements necessary to provide service to the Project. Design of the facility shall be consistent with the EASD and the Design Guidelines, and shall be reviewed for approval by Developer and City in accord with the notice and hearing procedures of Eagle City Code. In the event that impact fees are implemented in connection with fire service, Developer shall receive a credit against such impact fees equal to that portion of the Fire Fees paid for capital improvements (as defined in Idaho Code ~ 67-8203). c) Schools. Public education is provided by the School District. City shall not be obligated to provide public education service to the Property. Developer has, and shall continue to work diligently with School District to ensure that the educational needs of Property residents are met. In furtherance of meeting educational needs, Developer may participate with School District in enhancing the technology in one or more schools constructed by School District on the Property. Developer generally has identified potential school sites within the Project, as depicted on the Master Parks, Trails and Public Facilities Plan, attached as Exhibit K, to accommodate the needs of students generated as a result of the development of the Property using School District's student generation rates to determine the probable number of sites. The specific location, specific number of school sites and types of schools (i.e., elementary, middle and high schools) will be subject to approval by Developer and School District. The school sites will be shown as being dedicated to School District on an applicable Planning Unit Master Plan by Planning Unit Master Plan basis. Following annexation, Developer shall use good faith efforts to enter into an agreement with School District to contribute the necessary school sites to School District to accommodate for the development of schools in accordance with the Master Public Facilities Plan and applicable Planning Unit Master Plan. Developer shall coordinate a demographic study with School District to determine the demonstrated need for a school site caused by students generated from households within the Property. Developer shall contribute the school sites pursuant to the findings of such demographic study. Provided such a need is demonstrated and that such school site would predominantly serve students generated from the Property, Developer shall offer a site (or sites) for donation to School District on a free and clear basis in the appropriate number of acres, typical for a particular type of school (e.g., high school, middle school or grade school) and utilities stubbed to the site to accommodate the development of the type of public school planned. The site or sites shall contain the acreage needed to locate a public school or schools PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 27 2.7 Planning Unit Master Environmental Design Plan. (a)Landscape.All development of the Property shall be landscaped and meet or exceed the landscape requirements in the PUD Standards and/or Design Guidelines and shall,if necessary,include a threatened or endangered plant relocation program and revegetation guidelines.A landscape plant list shall be included in the Design Guidelines.Developer shall identify an Owners' Association or other entity to accept the ownership and maintenance of landscaping and irrigation systems. All Landscape guidelines shall be reviewed and approved by the Eagle Design Review Board prior to adoption by the City of Eagle. (b)Signage.Signage shall be coordinated throughout the entire Property,with different areas within a Planning Unit potentially having particular signage themes.These areas may include urban,mixed-use entertainment areas,employment and commercial areas,parks and recreation areas,residential villages,residential hillsides,resort areas,pathways and trails,public and private roadways,and areas for temporary directional signage.Although there may be individual signage themes within different areas of the Property,continuity in appearance shall be recognizable through the use of color,material,form and character.All signage design shall conform to the regulations and procedures contained in the PUD Standards and/or the Design GUidelines.All Sign Standards shall be reviewed and approved by the Eagle Design Review Board prior to adoption by the City of Eagle. (c)Lighting.A Lighting Plan shall incorporate "Dark Sky"design principles to reduce excessive light levels,light trespass and glare and to promote dark skies,to the extent possible. Lighting criteria will be established through the Design Guidelines.All lighting standards shall be reviewed and approved by the Eagle Design Review Board prior to adoption by the City of Eagle. (d)Habitat Mitigation Plan.A Habitat Mitigation Plan that addresses development within Constrained Lands,as generally identified on Exhibit M as Habitat Areas of Special Concern,shall be prepared by Developer in cooperation with City.The Habitat Mitigation Plan shall identify areas where Mitigation is required,the type of Mitigation actions,if any,required,and the rationale for such actions. City and Developer may coordinate,cooperate,and consult with other agencies in the development and review of the Habitat Mitigation Plan,but approval authority for the Habitat Mitigation Plan shall rest solely with City based on standards commensurate with such Habitat Mitigation Plan(s)and based on findings that demonstrate a rational nexus.Nothing in the Habitat Mitigation Plan may be construed as either incorporating state and/or federal standards and/or regulations that are not applicable to the Property or otherwise conferring any approval authority for the Habitat Mitigation Plan to any state or federal agency. The Habitat Mitigation Plan shall be submitted to City prior to Developer's submission to City of the first Planning Unit Master Plan.Implementation of such Habitat Mitigation Plan shall be on a Planning Unit by Planning Unit basis.The Pre-Mitigation Density for any Planning Area shall not be increased until such Mitigation Plans are approved. 2.8 Construction.To the extent Developer develops the Property,the Parties shall have the right and the obligation,at any time after the commencement of the Extension Term,to dedicate land, subject to City's or other applicable governmental jurisdiction's acceptance,and/or construct or cause to be constructed and installed any or all portions of the Public Infrastructure that relates to the segments of the Property developed by Developer.All such construction performed by Developer shall be performed to minimize disturbance to native and existing plant cover outside of areas being developed.Developer shall comply with all applicable requirements,standards,codes,rules,or regulations of City and in compliance with all applicable permit requirements,standards,codes,rules or regulations of:(a)the State of Idaho;(b)the United States of America;and (c)other applicable governmental agencies. Developer shall have the right,upon receipt from City (or other applicable governmental jurisdiction,as may be applicable)of an appropriate encroachment permit,to enter and remain upon and cross over any City-held (or other applicable governmental jurisdiction,as may be applicable)easements or rights-of-way to the extent reasonably necessary to facilitate such construction,or to perform necessary maintenance or repairs of such Public Infrastructure,provided that Developer's use of such easements and rights-of- way shall not impede or adversely affect City's use and enjoyment thereof and provided that Developer shall substantially restore such easements and rights-of-way to their condition prior to Developer's entry PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -30 Design Review Board prior to review by the P & Z Commission and approved by the City Council in accord with the notice and hearing procedures of Eagle City Code. Such Design Guidelines may be reviewed and approved separately or in connection with the Final Development Plan for the first Planning Unit or portion thereof. Upon approval, this Agreement shall be amended to include the Design Guidelines, as approved. In the event of any conflicts between the Design Guidelines and the EASD and/or City Code, Section 8-2A-5, the Design Guidelines shall prevail. In the event that City fails to approve the Design Guidelines then Developer shall have the right to develop the Property in accordance with the adopted EASD or City Code, Section 8-2A-5, as may be amended from time to time. 5. COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION. 5.1 Compliance Reviews. As long as Developer owns any of the Property, Developer's Representative shall meet with City's Representative at least once per year during the Term, to review development completed in the prior year and the development anticipated to be commenced or completed in the ensuing year. Developer shall be required to provide City with such information as may reasonably be requested including: acreage of the Property sold in the prior year; acreage of the Property under contract; the number of certificates of occupancy issued in the prior year; the number of certificates of occupancy anticipated to be issued in the ensuing year; and Development Rights allocated in the prior year and anticipated to be allocated in the ensuing year. 5.2 Agreement to Cooperate. In the event of any legal or equitable action or other proceeding instituted by a third-party or other governmental entity or official challenging the validity of any provision of this Agreement, the Parties hereby agree to cooperate in defending such action or proceeding. City and Developer may agree to select mutually agreeable legal counsel to defend such action or proceeding with the parties sharing equally in the cost of such joint counsel, or each party may select its own legal counsel at each party's expense. All other costs of such defense(s) shall be shared equally by the parties. Each party shall retain the right to pursue its own independent legal defense. 5.3 Default. Failure or unreasonable delay by either Party to perform or otherwise act in accordance with any term or provision of this Agreement for a period of 30 days following written notice thereof from the other Party (the "Cure Period"), shall constitute a default under this Agreement; provided, however, that if the failure or delay is such that more than 30 days would reasonably be required to perform such action or comply with any term or provision hereof, then such Party shall have such additional time as may be reasonably necessary to perform or comply so long as such Party commences performance or compliance within such 30-day period and diligently proceeds to complete such performance or fulfill such obligation (the "Extended Cure Period"). The written notice provided for above shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured, if possible. In the event a default of Developer is not cured within the Cure Period or the Extended Cure Period, if applicable, the zoning of that portion of the Property related to such default shall convert to the A-R (Agricultural-Residential) zoning designation. In the event a default of City is not cured within the Cure Period or the Extended Cure Period, if applicable, upon written notice from Developer, City shall take all steps to immediately de-annex the Property and this Agreement shall automatically terminate. 5.4 Dispute Resolution/Remedies. a) Process. Notwithstanding anything to the contrary herein, if an event of default is not cured within the Cure Period or the Extended Cure Period, if applicable, the non-defaulting Party may initiate the process by providing written notice initiating the process to the alleged defaulting Party. Within 15 days after delivery of such notice, each Party shall appoint one person to act as mediator on behalf of such Party and notify the other Party. Within 15 days after delivery of such notice, the persons appointed shall themselves appoint one person to serve as the sole mediator. The mediator shall set the time and place of the mediation hearing and shall give reasonable notice of the hearing to the Parties. The Parties may agree to hold the hearing by telephone. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 34 Eagle community will be located within the Planning Area to meet the housing demands of employees who work there. This housing location will encourage walking to and from work, as well as shorter vehicle trips, further reducing traffic. Desion The Big Gulch Planning Area will have an urban feel at the neighborhood centers with appropriate landscape, monumentation, signage and place-making features integrated into the design of the area. Housing, commercial/office uses, roadways and landscape will tend to be arranged in formal patterns with tree-lined boulevards and pedestrian scale amenities. Buildings along the main arterial roadway may be close to the roadways to create pedestrian-friendly areas with sidewalks, street trees and benches. Shared surface parking areas and parking garages will be encouraged at the sides and rear of buildings or within building clusters, to reduce large areas of paving. On-street parking will be provided where sufficient right-of-way exists. The architectural character will create an interesting visual experience as one travels through the community. The central neighborhood center will be designed using a main street concept, with an 8-acre community park around which the highest density of commercial and residential development will be located. This area will have businesses, restaurants, civic uses and possibly residential lofts fronting out onto the central park. Parking will be located at the interior of the parcels to create a pedestrian-friendly environment. The central boulevard will split into 2 two-lane roadways through this area. BIG GULCH AREA 636 AC. 1,891 UNITS, 2.97 DUlAC. 500 RESORT-HOTEL ROOMS 100 AC. COMMERCIAL 167 AC. COMMUNITY OPEN SPACE = 26.3% II/ustration of the planned uses within the Big Gulch Planning Area. This area will serve not only M3 Eagle but other areas within the greater foothills and help reduce vehicle trips leaving the area. EXHIBIT F1 - 2 C:\Documents and Settings\judyb\Local Settings\Temporary Internet Files\Content.Outlook\72X338CQ\Exhibits to P-A DA (revised 11-29-07).doc EAGLE - PHASE 5 Years 18-20 Summary Narrative Phase 5 encompasses a small portion of the Northern Residential Planning Area, the eastern half of the Southern Residential Planning Area and the easternmost portion of the Big Gulch Planning Area. This phase also contains the southern third of the Highway/Mixed Use Planning Area which is planned for an office park. This phase is planned to contain all single family units with the Southern Planning Area comprised of estate type custom lot neighborhoods. One elementary school and one high school will be needed in this phase with the location subject to the review and approval of the School District. The high school will share the same site as the middle school built in Phase 4. Infrastructure improvements include collector roads and a municipal water well. Amenities consist of 60 acres of Community Open Space including community and neighborhood parks, the completion of the Big Gulch linear Open Space, and other natural and improved Open Space. This phase will also contain the site for a public equestrian center along Willow Creek Road. Land Uses Total Acreage: 989 Single Family Detached Units: 281 Single Family Attached Units: 0 Multi-Family Units: 0 Total Units: 281 Retail Space: 200,000 s.f. Office Space: 150,000 s.f. Total Commercial: 350,000 s.f. Schools:1 elementary school and 1 high school (high school to be located with the middle school in the Phase 4 area) Parks/Open Space:60 acres of community open space consisting of 50 acres of improved open space (2 community parks, 1 neighborhood park, the Big Gulch linear open space, and trails) and 10 acres of natural open space Other:A public equestrian center site Cumulative Area:6,005 acres Cumulative Units:7,153 units Cumulative Commercial:1,195,000 s.t. Cumulative Open Space:2,402 acres Cumulative Open Space as a % of Total Area: 40% EXHIBIT H - 25 C:\Documents and Settings\judyb\Local Settings\Temporary Internet Files\Content.Outlook\72X338CQ\Exhibits to P-A DA (revised 11-29-07).doc