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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 Page 1 of 11 K:\Plalll1ing Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 d,,, fi",' '" dno 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. Page 2 of II K:\Planning Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 d,,, "00' w, duo 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. Page 3 of 11 K:\Planning Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 d,,, "M' YO, duc 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 Page 4 of 11 K:\Planning DeptlEagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 <lac< fin" '" do' 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 Page 5 of II K:\Planning Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 da" fi", '" doc 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. Page 6 of 11 K:\Planning Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 d,,, ",,' '" do, 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. Page 7 of II K:lPlalUling Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 d,,, fio.l '<, doo 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. Page 8 of 11 K:\Planning Dept\Eagle Applications\RZ&A \2006\A-0 1-06 & RZ-O 1-06 <L" Coal w' doc 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 ""...... .... ...... -{ 0 F f'''l ...... f. ........ 1/( " c.; ..- -.... l o\l.rol<-i;....~ .... .e, ~.. * : : : : --.... :* : \ \~nSEAL_~i j ~ tJ' e.o '''-, ~ ~ ~ ":"ou-rt,OJl.1o.0.:' .." '1,. ............v...... .." Ii OF \1> ~.,.. ','......"...... By: Eagle Partners, LLC, an Idaho limited liability company ominiums, L.L.c., n Idaho limited Page 9 of II K:\Planning Dept\Eagle Applications\RZ&A \20061A.0 1.06 & RZ-O 1.06 d,,, fi,,,[ m doc 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. ,.". .....,., ....., ~ \\ ER l. ...... ..' ~!:.--...... . .s. )0.... ~ ~I'-_.t () \ ! k' llOT"'..... ~ '\ : ...., r : \ --(JBL\C j ~ ffl", .. --,. ~ '\.'. "'1'... ~O .~ ......'! 0 F It)"",'" ,..,..........' jltdhtv ~ Notary Public for Idapo , :J( Residing at flrv1lLttf . My commission expires I f.e / ?u/ ;,';;" , ( . 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. ",........... ~~ - -I J L ...'~\\\\R L. b.... . 11. ex o' ~~ .." ~' <q J-. I~ ~ Not,ryPUbl;d~I~ ,1111 i ~OT A_,. Residing at ?l . I ... i My commission expires: CD I ;;;D( / A $ ( Page 10 of II K:\Planning Dept\Eagle Applications\RZ&A\2006\A-0 1-06 & RZ-O 1-06 d"or.,,' m do, 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. t Notary Public for Idah~. J.d. Residing at 'iJni'n..tit, , My commission expires:' 1/30 I( ;;.. I f Page 11 of 11 K:\Planning Dept\Eagle Applications\RZ&A \20061A-0 1-06 & RZ-O 1-06 d"di",' ,,,doc RSCEIVJ;:O ~: r"~,',:O Ci~"'y /.~ L:~Gd= IDAHO SURVEY GROUP Ft:'., t " ,.--~ ...i.;, I ,: L~",J 14 0 East Watertower St. Su e 150 M ridian. Idaho 83642 File: 0: P ne (208) 846-8570 ax (208) 884-5399 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. ? r 0 f e s s ion a I l and Sur v e v (} ~. s ~ · : i~ Ii 5.~~i. ~ ___ ~~ ;/ IS:' ~- ~ f - . i!i;j ! ~~9 ~di (~"""'I I' "-------------------------- ", e ~ l~~~ ---- ---!~~~ -------.L"zn.,,",".oos-~l ~; _ h _ ~'iII '. 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