Development Agreement - 2006 - Terrazza At Eagle River - 8/29/2006
Recording Requested By and
When Recorded Return to:
ADA COUNTY RECORDER J. DAVID NAVARRO
BOISE IDAHO 09/28/06 01:52 PM
DEPUTY Vicki Allen
RECORDED - REQUEST OF
City of Eagle
AMOUNT
.00
15
1111111111111111111111111111111111111
106154826
City of Eagle
P.O. Box ]520
Eagle, Idaho 83616
For Recording Purposes Do
Not Write Above This Line
DEVELOPMENT AGREEMENT
This Development Agreement, made and entered into on the date as indicated herein, by
and between the City of Eagle, a municipal corporation in the State ofIdaho ("Eagle"), by and
through its Mayor, and Eagle Partners, LLC, an Idaho limited liability company ("Applicant").
WHEREAS, the proposed development includes properties within an area currently
designated on the Land Use Map of the Comprehensive Plan as Mixed Use and Floodway; and
WHEREAS, the Applicant is the owner of record of certain real estate located southeast
of Merrill Park and adjacent to the southern boundary of Merrill Park approximately 250 feet east
of the intersection of Shore and Riverside Drive, Eagle, Idaho, ("Property"), as specifically
defined in the attached legal description (Exhibit A) which is the subject of an application for
Rezone identified as Rezone Application No. RZ-OI-06; and
WHEREAS, the proposed development includes properties within an area currently
zoned "Residential Urban Transitional" ("RUT") an Ada County zoning designation; and
WHEREAS, the Applicant desires a MU-DA (Mixed Use with a Development
Agreement) zoning designation to develop the Property into a mixed use project containing
commercial, retail, residential, and open space as generally shown on the Concept Plan attached
hereto as Exhibit C ("Concept Plan"); and
WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have
determined that the scope of any Mixed Use project upon the Property must be limited to prevent
undue damage to, and to otherwise be in harmony with, the existing community; and
WHEREAS, the intent of this Development Agreement is to protect the rights of
Applicant's use and enjoyment of the Property while at the same time limiting any adverse impacts
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of the development upon neighboring properties and the existing community and ensuring the
Property is developed in a manner consistent with Eagle's Comprehensive Plan and City Code; and
WHEREAS, the Applicant has agreed to the use restrictions and other limitations set forth
herein upon the use and development of the Property and has consented to a MU-DA (Mixed Use
with Development Agreement) zoning designation for the Property with the requirements set forth
in this Development Agreement; and
WHEREAS, the Applicant has previously provided Eagle with an affidavit agreeing to
submit the Property to a Development Agreement pursuant to Eagle City Code Section 8-10-
1(C)(1); and
WHEREFORE, the Applicant and the City of Eagle desire to resolve the issues and
concerns that have arisen and for and in consideration of the mutual covenants contained herein,
it is agreed as follows:
ARTICLE I
LEGAL AUTHORITY
1.1 This Development Agreement is made pursuant to and in accordance with the provisions
ofIdaho Code Section 67-6511A and Eagle City Code, Title 8, Chapter 10.
ARTICLE II
ZONING ORDINANCE AMENDMENT
2.1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the
Property that is the subject of the application to the Mixed Use District ("MU-DA"), after
recordation of, and subject to the provisions of this Development Agreement. The
ordinance will become effective after its passage, approval, and publication and the
execution and recordation of this Development Agreement.
ARTICLE III
CONDITIONS OF DEVELOPMENT
3.1 Applicant will develop the Property subject to the conditions and limitations set forth in
this Development Agreement. Further, Applicant will submit such applications regarding
design review, preliminary and final plat reviews, condominium plat reviews and/or any
conditional use permits, if applicable, and any other applicable applications as may be
required by the Eagle City Code, which shall comply with the Eagle City Code, as it
exists at the time such applications are made except as otherwise provided within this
Agreement.
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3.2 The Concept Plan date stamped by the City on May 19, 2006, represents the Owner's
current concept for completion of Terrazza at Eagle River a residential
condominium/townhouse development. As the Concept Plan evolves, the City
understands and agrees that certain changes in that concept may occur. If the City
determines that any such changes require additional public comment due to potential
impacts on surrounding property or the community, a public hearing shall be held on any
proposed changes in the Concept Plan, notice shall be provided as may be required by the
City.
3.3 All buildings shall be designed in compliance with Eagle City Code Section 8-2A.
Permitted architecture styles are specifically those shown within the Eagle Architecture
and Site Design Book (EASD Book). Architecture styles and building design elements
that are not shown with the EASD Book will not be permitted.
3.4 The applicant shall submit a Design Review application for the site (as required by Eagle
City Code) and shall comply with all conditions required by the City of Eagle as a part of
the Design Review prior to issuance of a zoning certificate.
3.5 Development of the Property will be permitted through the Design Review process and
future conditional use permits for the residential development will not be required
excluding any height exceptions that may be requested. Height exceptions shall require a
conditional use permit.
3.6 The conditions, covenants and restrictions for the Property shall contain at least the
following:
(a) Provide that the association(s) shall have the duty to maintain and operate all of
the common landscape areas in the subdivision and access easement to the
subdivision in a competent and attractive manner, including the watering,
mowing, fertilizing and caring for shrubs and trees, in accordance with Eagle City
Code, in perpetuity.
(b) A requirement insuring compliance with Mediterranean design consistent with the
attached elevations (Exhibit "D") approved with this Agreement and as approved
with Design Review.
(c) A requirement for all fencing within the development to be open-style three foot
(3') high wrought iron fencing. All other fencing (i.e. cedar fencing, vinyl,
chainlink) shall be prohibited.
(d) Parking shall only be allowed in the designated parking areas or the garage units
of the residential dwellings.
(e) A requirement stating the maintenance of the access easement from East Riverside
Drive shall be the responsibility of the Terrazza at Eagle River.
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3.7 The applicant shall place a note on the condominium plat that all common areas are to be
owned and maintained by the Owners Association(s) for the development. The applicant
shall provide a copy of the CC&Rs (which shall include a similar statement regarding the
common areas) for review and approval by the City attorney prior to the approval of a
condominium plat.
3.8 As provided by the applicant, "Mediterranean Theme" shall be the required architecture
standard for the development. Architectural examples of the above descriptive language
are attached hereto as Exhibit D. Eagle Design Review Board and Eagle City Council
approval of the detailed architectural plans of the structures, landscaping and any
proposed signage for the development is required prior to the issuance of any building
permits. To assure compliance with this condition, the applicant shall create an
architectural control committee (ACe) as a component of the development's CC&R's.
Provisions regarding the creation and operating procedures of the ACC shall be included
in the CC&R's, and shall be reviewed and approved by the City attorney prior to the
approval of a condominium plat or issuance of a zoning certificate, whichever occurs
first.
The submittal of a building permit application to the City for all buildings within the
development shall be accompanied by an approval letter from the Architectural Control
Committee. Building permit applications that do not have an approval letter attached will
not be accepted.
3.9 Provide a site plan for Design Review approval showing pedestrian pathways to be located
on both sides of the driveway throughout the development prior to submitting a Design
Review application.
3.10 The Conceptual Plan shows the locations for all buildings within the development. The
Setbacks shall be as follows:
.
Front (North Property Line)
Sides (East and West Property Line)
Rear (South Property Line)
20 Feet
15 Feet
20 Feet
.
.
3.1] The applicant's property shall be annexed into the Eagle Sewer District's service
boundaries and shall comply with all applicable Eagle Sewer District's regulations and
conditions prior to the issuance of any building permits. A letter of approval shall be
provided to the City from the Idaho Department of Health and Welfare, Division of
Environmental Quality, and/or Central District Health, prior to issuance of any building
permits.
3.12 Applicant shall provide a report or analysis of any proposed changes to wetlands located
on the Property and any such change shall be contingent upon approval by the Army
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Corps of Engineers, Idaho Fish & Game Department (if applicable), the Idaho
Department of Water Resources (if app 1 icable), Ada County, and any other appropriate
governmental agencies, and shall be in accordance with the Eagle Comprehensive Plan
and City Code. Applicant agrees all development and improvement of the Property shall
comply with rules and regulations pertaining to regulated wetlands.
3.13 Applicant shall provide and construct, in accordance with the provisions of Eagle City
Code Section 9-4-1-6, a minimum twelve foot (12') wide asphalt public pathway along
the portion of the Property adjacent to the Boise River. The specific location and design
of the pathway shall be approved by the City of Eagle Park and Pathway Development
Committee prior to submittal of a design review application. The asphalt pathway shall be
located in a recorded easement or easements dedicated to and accepted by Eagle as
provided in Eagle City Code Section 9-4-1-6(E) (2). The instrument number of the
recorded easement or easements shall be referenced on the face of the plat for Terrazza
Condominiums, upon recordation ofthe condominium plat(s) wherein the pathway is
located. Other than any pathways approved by Eagle, development within the Floodway
and the open space area between Terrazza at Eagle River and the Boise River shall be
prohibited.
3.14 Applicant shall provide a center common area plaza as generally depicted on the Concept
Plan. The intent of the plaza is to become a focal point of the development with an
adequate area for gathering, a water feature, benches, seat walls, and omamentallighting
to create a sense of place and identity for the core area of the development. The
landscaping may include shrubs, flowers, water features, etc., and shall be reviewed and
approved by the Eagle Design Review Board and Eagle City Council prior to the issuance
of a zoning certificate.
3.15 Provide plans showing outdoor lighting details for review and approval by the Zoning
Administrator with the submittal of a Design review application. The plans shall show
how the lights will facilitate the "Dark Sky" concept of lighting.
3.16 The applicant shall provide documentation of an approved 404-Permit for work within any
wetlands on site prior to the City issuing a zoning certificate for the property.
3.17 Applicant shall provide pedestrian and bicycle public access from Riverside Drive to the
paved greenbelt pathway along the Boise River and as required in the Eagle
Comprehensive Plan and to be reviewed and approved by the Eagle Parks and Pathway
Development Committee and the Design Review Board prior to the issuance of a zoning
certificate for the property.
3.18 The Property is designed to allow for access connecting this Property to East Riverside
Drive utilizing an existing perpetual access easement which crosses near the east end of
Reid Merrill Park and East Riverside Drive. As shown on the Concept Plan, the easement
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will be improved with an access drive, landscape island, overflow parking for Reid
Merrill Park and extensive landscaping. The existing Ballantyne Canal shall be piped and
covered to accommodate parking for Reid Merrill Park adjacent to the entrance driveway.
Maintenance of the easement shall be conducted by Applicant and/or the owners'
association ofTerrazza at Eagle River. The applicant shall provide a note on the plat
stating the maintenance of the access easement from East Riverside Drive shall be the
responsibility of the Terrazza at Eagle River.
3.19 City of Eagle approvals shall be subject to any FEMA requirements.
3.20 The applicant shall tile the Ballantyne Irrigation Ditch within the subject property and
access easement as required by the Ballantyne Irrigation Ditch Company prior to the
issuance of a zoning certificate.
3.21 Applicant needs to submit letters from the Eagle Water Company and the Department of
Environmental Quality (Boise Regional Office) indicating potable water service has been
approved to serve the site prior to the issuance of a building permit for the property.
3.22 All construction equipment stored on the site shall be removed prior to the City recording
the ordinance for the annexation of the property.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
4.1 An affidavit of all owners of the Property agreeing to submit the Property to this
Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A and
Eagle City Code Section 8-10-1 shall be provided and is incorporated herein by reference.
ARTICLE V
DEF AULT
5.1 In the event the Applicant fails to comply with the commitments set forth herein, within
thirty (30) days of written notice of such failure from Eagle, Eagle shall have the right,
without prejudice to any other rights or remedies, to cure such default or enjoin such
violation and otherwise enforce the requirements contained in this Development Agreement
or to terminate the Development Agreement following the process established in Eagle City
Code Section 8-10-1.
5.2 If required to proceed in a court of law or equity to enforce any provision of this
Development Agreement, Eagle shall be entitled to recover all direct out-of-pocket costs so
incurred to cure or enjoin such default and to enforce the commitments contained in this
Development Agreement, including attorneys' fees and court costs.
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ARTICLE VI
UNENFORCEABLE PROVISIONS
6.] If any term, provision, commitment, or restriction of this Development Agreement or the
application thereof to any party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument shall terminate and the zoning of the property
shall revert to the A-R (Agricultural-Residential) zoning designation unless the portion of
this instrument determined to be invalid or unenforceable is re-negotiated in good faith between
the Applicant (or other appropriate party) and Eagle as an amendment to the Development
Agreement processed in accordance with the notice and hearing provisions of Idaho Code
Section 67-6509, as required by Eagle City Code Section 8-]0-1.
ARTICLE VII
ASSIGNMENT AND TRANSFER
7. I After its execution, the Development Agreement shall be recorded in the office of the County
Recorder at the expense of the Applicant. Each commitment and restriction on the
development shall be a burden on the Property, shall be appurtenant to and for the benefit of
the Property, adjacent property, and other residential property near the Property and shall run
with the land. This Development Agreement shall be binding on the Applicant and owners,
and their respective heirs, administrators, executors, agents, legal representatives, successors,
and assigns; provided, however, that if all or any portion of the development is sold, the
sellers shall thereupon be released and discharged from any and all obligations in connection
with the property sold arising under this Agreement. The new owner of the Property or any
portion thereof (including, without limitation, any owner who acquires its interest by
foreclosure, trustee's sale or otherwise) shall be liable for all commitments and other
obligations arising under this Agreement with respect to the Property or portion thereof.
ARTICLE VIII
GENERAL MATTERS
8.1 Amendments. Any alteration or change to this Development Agreement shall be made only
after complying with the notice and hearing provisions ofIdaho Code Section 67-6509, as
required by Eagle City Code Section 8-10-1.
8.2 Paragraph Headings. This Development Agreement shall be construed according to its fair
meaning and as if prepared by both parties hereto. Titles and captions are for convenience
only and shall not constitute a portion of this Development Agreement. As used in this
Development Agreement, masculine, feminine or neuter gender and the singular or plural
number shall each be deemed to include the others wherever and whenever the context so
dictates.
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8.3 Choice of Law. This Development Agreement shall be construed in accordance with the
laws of the State ofIdaho in effect at the time of the execution of this Development
Agreement. Any action brought in connection with this Development Agreement shall be
brought in a court of competent jurisdiction located in Ada County, Idaho.
8.4 Legal Representation. Both the Applicant and Eagle acknowledge that they each have been
represented by legal counsel in negotiating this Development Agreement and that neither
party shall have been deemed to have been the draftor of this agreement.
8.5 Notices. Any notice which a party may desire to give to another party must be in writing and
may be given by personal delivery, by mailing the same by registered or certified mail, return
receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery
service, to the party to whom the notice is directed at the address of such party set forth
below;
Eagle:
City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owner:
River View Condominiums, L.L.C.:
1045 W. Ancona Avenue, Suite 140
Eagle, ill 83616
Phone: (208) 938-6037
Fax: (208) 938-6034
Malletta & Brownstone LLC:
13095 N Andy's Gulch
Boise, ill 83703
Phone: (208) 938-5115
Fax: (208) 229-0629
Phone: (406) 541-9000
Fax: (406) 541-9001
With a copy to:
Brownstone Capital, Inc.
430 N. Ryman, 2nd Floor
Missoula, MT 59802
Fax: (406) 541-9001
Or such other address and to such other persons as the parties may hereafter designate. Any
such notice shall be deemed given upon receipt ifby personal delivery, forty-eight (48) hours
after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-
four (24) hours after timely deposit with a reputable overnight delivery service.
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8.6 Effective Date. This Development Agreement shall be effective upon the signing and
execution of this agreement by both parties.
8.7 Termination. This agreement terminates upon completion of Conditions of Development or
after 7-years after the Effective Date, whichever occurs first.
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATEDthis~q daYOf~2006.
CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the State of
Idaho
ATTEST:
>>(-+-ca }L (~~
Shar6n K. Bergmann, City lerk
errill, MtYOr
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By:
Eagle Partners, LLC, an Idaho limited liability
company
ominiums, L.L.c.,
n Idaho limited
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STATE OF IDAHO )
) ss.
County of Ada )
On thisc21 day of () I , (,u J ,2006, before me, the undersigned, a Notary
Public in and for said State, ~Ily appeared Nancy C. Mernll, known or Identified to me to
be the Mayor of the City of Eagle, the municipal corporation that executed the instrument or the
person who executed the instrument on behalf of said municipal corporation, and acknowledged
to me that such municipal corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary Public for Idapo , :J(
Residing at flrv1lLttf .
My commission expires I f.e / ?u/ ;,';;"
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STATE OF IDAHO )
) ss.
County of Ada )
On this~ay of !lt~J , 2006, before me, the undersigned, a Notary
Public in and for said State, perso Ily appeared John B. Malletta, known or Identified to me to
be a Member of Malletta & Brownstone, LLC, the Idaho limited liability company that executed
the within and foregoing instrument, or the person who executed the instrument on behalf of said
Idaho limited liability company, and acknowledged to me that such Idaho limited liability
company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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STATE OF IDAHO )
) ss.
County of Ada )
On this ~ay of (),il CJ1A g- , 2006, before me, the undersigned, a Notary
Public in and for said State, ~lJy appeared Shannon Robnett, known or Identified to me to
be the Project Manager of River View Condominiums, L.L.c., the Idaho limited liability
company that executed the within and foregoing instrument, or the person who executed the
instrument on behalf of said Idaho limited liability company, and acknowledged to me that such
Idaho limited liability company executed the same.
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Notary Public for Idah~. J.d.
Residing at 'iJni'n..tit, ,
My commission expires:' 1/30 I( ;;..
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File:
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P ne (208) 846-8570
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EXHIBIT "A"
Project No. 04-00]
March ]4,2005
Eagle River 5.85 Ac. Parcel Description
A parcel ofland lying in Government Lot 3, Section 16, Township 4 North,
Range] East, Boise Meridian, Ada County, Idaho, more particularly described as
follows:
Commencing at the Northeast corner of Government Lot 3 (Center-North ]/16
corner), Section 16, Township 4 North, Range I East, B.M., Thence South 00046'13",
West] 90.95 feet along the East line of Government Lot 3 to the REAL POINT OF
BEGINNING of this description;
Thence continuing South 00046' 13" West 457.4] feet along the East line of
Government Lot 3 to a point;
Thence South 67044'36" West 421.41 feet to a point;
Thence South 8301] '50" West 93.00 feet to a point;
Thence North 0] 038'17" West 23.28 feet to a point;
Thence North 00059'44" East 471.87 feet to a point;
Thence North 43015'18" East 103.60 feet to a point;
Thence North 66024'04" East 137.93 feet to a point;
Thence North 89032'44" East 283.60 feet to the REAL POINT OF
BEGINNING of this description;
Together with a perpetual easement as described in that certain Quitclaim Deed,
Instrument No. 8013655 which was intended to correct that certain perpetual easement as
described by Quitclaim Deed, Instrument No. 7963004.
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