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Development Agreement - 2007 - 1St Amended DA / 410 N Linder Rd - 9/24/2007 ADA COUNTY RECORDER J, DAVID NAVARRO BOISE IDAHO 10109/07 11:07 AM DEPUTY Palli Thompson RECORDED-REQUEST OF Ci tv of Eag Ie AMOUNT .00 11 1111111111111111111111111111111111111 107139048 Recording Requested By and When Recorded Return to; Planning and Zoning Administrator City of Eagle P.O, Box 1520 Eagle, Idaho 83616 For Recording Purposes Do Not Write Above This Line FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT This Amended and Restated 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 of Idaho ("Eagle"), Walgreen Co., an Illinois corporation ("WALGREEN") and Sage Development, LLC, an Idaho limited liability company ("SAGE"), WALGREEN and SAGE are sometimes referred to herein, individually or collectively, as the context dictates, as ("Applicant"). Upon recordation of this Development Agreement, that certain Development Agreement recorded in the ~I property records of Ada County, Idaho, on April 21, 2005, as instrument number 105048971 (the "Original Development Agreement") shall be void and of no further force or effect. WHEREAS, Applicant is the owner of record of certain real estate conslstmg of approximately 13.2 acres located on the northeast comer of State Highway 44 and Linder Road at 410 N, Linder Road, Eagle, Idaho, ("Property"), as specifically described in the attached legal description (Exhibit A) and shown on the Concept Plan ("Exhibit B"), which is the subject of an application for rezone, identified as Eagle Rezone Application No. RZ-6-04 and which is subject to an application for modification of development agreement, identified as Eagle RZ-6-04 MOD; and WHEREAS, the proposed development includes properties within an area that, at the time the Original Development Agreement was recorded, were designated on the Land Use Map of the Comprehensive Plan as Commercial and zoned "RUT" (Ada County Residential Zoning Designation)"; and WHEREAS, Applicant desires to develop the Property for drugstore, bank/financial institution, and restaurant purposes as generally shown on the Concept Plan; and WHEREAS, the City Council of Eagle has determined that the scope of any drugstore, bank/financial institution, and restaurant project upon the Property should be limited to prevent undue damage to, and to otherwise be in harmony with, the existing community; and Page 1 of9 G :IKunstmanIFileslldaholEaglelClosinglDEClReviscd, DOC WHEREAS, the intent of this Development Agreement is to protect the right of Applicant to use, enjoy and develop the Property while at the same time limit any adverse impacts of the development upon neighboring properties and the existing community and ensure the Property is developed in a manner consistent with Eagle's Comprehensive Plan and City Code; and WHEREAS, 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 the "C-I-DA" (Neighborhood Business District) zoning designation for the Property with the requirements set forth in the Original Development Agreement as replaced by this Development Agreement; and WHEREAS, the City Council has determined that, in accordance with Eagle City Code Section 8-1O-l(G), the Original Development Agreement shall be replaced by this Development Agreement; and WHEREAS, Walgreen Company and Sage Development as owners of the Property have provided Eagle with affidavits agreeing to submit the Property to a development agreement pursuant to Eagle City Code Section 8-1O-1(C)(1); and WHEREFORE, Applicant and the City of Eagle desire to enter into this Development Agreement and for and in consideration of the mutual covenants contained herein, it is agreed as follows: ARTICLE I LEGAL AUTHORITY This Development Agreement is made pursuant to and in accordance with the provisions of Idaho Code Section 67-6511A and Eagle City Code, Title 8, Chapter 10. ARTICLE II ZONING ORDINANCE AMENDMENT Eagle has adopted an ordinance amending the Eagle Zoning Ordinance to rezone the Property to C-I-DA, subject to the provisions of this Development Agreement. The ordinance became effective after its passage, approval, and publication and the execution and recordation of the Original Development Agreement and will continue to be effective after the execution and recordation of this Amended and Restated Development Agreement. ARTICLE III CONDITIONS ON 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, 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 provide within this Agreement. Page 20f9 G :\Kunstman\Files\ldaho\Eagle\ClosingIDEC\Revised, DOC 3.2 The Concept Plan (Exhibit B) represents the Owner's current concept for completion of the project. As the Concept Plan evolves, the City understands and agrees that certain changes in that concept may occur or be required. 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 Provide a reciprocal cross-access agreement between Parcel 2 and Parcel 3 (parcels as shown on Record of Survey No, 5499, Instrument No. 101079595) within the Property and provide a cross-access agreement with the adjacent property to the east. The cross- access agreements shall be reviewed and approved by the Zoning Administrator and shall be recorded in the Ada County Recorder's office prior to the City issuing a zoning certificate for this site, 3.4 The Commercial area is to be developed with a combination of retail/restaurant/drugstore uses allowed within Eagle City Code Section 8-2-3 "Official Schedule of District Regulations" under the C-l zoning designation (except as limited in Section 3.10, below). Buildings up to a maximum of 25,000 square feet each are permitted for this area. A conditional use permit shall be required for all commercial buildings exceeding 15,000 square feet in size with the exception of the Drugstore with single lane drive up service and Banks/financial institutions (with drive up service) shall not require a conditional use permit. 3.5 Except for the limitations and allowances expressly set forth above and the other terms of this Agreement, the Property can be developed and used consistent with the C-l District land uses allowed by the Eagle City Code Section 8-2-3 "Official Schedule of District Regulations", existing at the time a design review application or conditional use permit application (whichever the case may be) is made for individual building use. All uses shown as "P" permitted under the C-l zoning designation within Eagle City Code Section 8-2-3 "Official Schedule of District Regulations," shall be considered permitted uses and all uses shown as "c" conditional uses under the C-l zoning designation shall require a conditional use permit, except that a Drugstore with single lane drive up service, Banks/financial institutions (with drive up service), and Retail sales (general) located within buildings less than 15,000 square feet in size shall not require a conditional use permit. In addition to all other uses prohibited within said section of Eagle City Code and on the entire Property as noted above, the following uses shall also be prohibited on the Property: · Adult Business; · Automotive gas station or fuel islands; · Automotive washing facility; . Cemetery; · Convenience store with fuel service; · Equipment Rental and Sales Yard; . Kennel; · Laundry with drive up service; Page 3 of9 G :IKunstmanIFileslldaholEagIeIClosingIDEC\Revised, DOC · Live entertainment events; · Nursery, plant materials; · Personal wireless facilities (height over 35 feet); · Small Engine Repair; · Storage (fenced area); 3.6 The Property shall be limited to no more than one (1) access point onto State Highway 44, subject to the review and approval of the Idaho Transportation Department prior to submitting a preliminary plat application or issuance of a Zoning Certificate for the construction of buildings, whichever comes first. 3,7 Provide a 20-foot wide landscape buffer and a CMU fence eight feet (8') in height, (in conjunction with the existing berm, and vinyl fence) along the entire northern boundary of the Property. With regard to tree planting only, the buffer area shall be designed in compliance with ECC Section 8-2A-7 (J)(4)(a), 3.8 The applicant shall submit a design review application for the site showing at a minimum: 1) proposed development signage, 2) planting details within the proposed and required landscape islands and all common areas throughout the development, 3) landscape screening details and buffering adjacent to Senora Creek Subdivision 4) elevation plans for all proposed common area structures and irrigation pump house (if proposed), 5) landscape screening details of the irrigation pump house (if proposed), 6) useable amenities such as covered shelters, benches, gazebos, and/or similar amenities, The design review application shall be reviewed and approved by the Eagle Design Review Board and Eagle City Council prior to the submittal of the final plat or prior to the issuance of a Building Permit application, whichever comes first. 3.9 The bank and drugstore drive thru lanes shall be located on the east side of the buildings with the lanes of travel facing north thus allowing for the building(s) adjacent to the north boundary, landscaped internal parking islands, and required buffering adjacent to Senora Creek Subdivision to screen the headlights and visibility from the residents living within Senora Creek Subdivision. 3.10 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, 3.11 The current use of the Property (agricultural with ancillary commercial horse breeding and boarding) may continue until such a time that design review application is approved for redevelopment of the site. Prior to the City issuing a Zoning Certificate for approval of the site redevelopment plan (final building, site, civil, and landscape plans) the current use as described herein shall be removed in its entirety including all existing buildings and structures. 3.12 Upon redevelopment of the site all buildings shall be set back a minimum of thirty feet (30') from State Highway 44 and Linder Road (not including right-of-way). 3,13 Construct a minimum six-foot (6') wide meandering asphalt pathway along the frontage of the site adjacent to State Highway 44 (on the north side of the Middleton Mill Canal) prior to the issuance of any occupancy permits for the site. Page 4 of9 G :\Kunstman IFiles\IdaholEagle\ClosingIDEClRcvised,DOC 3.14 Construct a minimum five-foot (5') wide meandering concrete sidewalk along the frontage of the site adjacent to Linder Road prior to the issuance of any occupancy permits for the site. 3.15 The hours of operation for businesses located within the development shall be limited to 6:00 AM to 11:00 PM. ARTICLE IV AFFIDA VIT OF PROPERTY OWNERS 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 DEFAULT 5.1 In the event Applicant or any successor 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 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. However, if a default occurs after the Property is divided, any termination shall only affect the lot or parcel in default and shall not affect other portions of the Property. 5.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, the enforcing party 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 attorney's fees and court costs. 5.3 If any term, provision, commitment, or restriction of this Development Agreement or the application thereof incorporated for the benefit of Eagle shall be held invalid or unenforceable and not voluntarily adhered to by Applicant and their successors notwithstanding any such invalidity or unenforceability, the remainder of this instrument shall terminate and the zoning of the Property (except that portion thereof for which a plat has been recorded or which has otherwise been improved in accordance with the provisions of this Development Agreement) 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 Applicant (or other appropriate party) and Eagle as an amendment to this Development Agreement processed in accordance with the notice and hearing provisions of Idaho Code ~ 67- 6509 and Eagle City Code Section 8-10-1. Page 5 of9 G :\KunstmanIFi les\JdaholEagle\Closing\DEClRevised.DOC ARTICLE VI UNENFORCEABLE PROVISIONS Subject to terms of Section 5,3 above, 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 nevertheless remain in full force and effect and that portion determined to be invalid or unenforceable shall be re-negotiated in good faith between Applicant (or other appropriate party) and Eagle. ARTICLE VII ASSIGNMENT AND TRANSFER After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of Applicant. Each commitment and restriction contained herein shall be a burden on the Property and shall be appurtenant to and for the benefit of the Property and shall run with the land. This Development Agreement shall be binding on Eagle and 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 Property is divided, each owner of a legal lot shall only be responsible for duties and obligations associated with an owner's parcel and shall not be responsible for duties and obligations or defaults as to other parcels or lots within the Property, 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 Development Agreement with respect only to such owner's lot or parcel. 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 of Idaho Code Section 67- 6509, as required by Eagle City Code Section 8-10-1. 8.2 Exceptions and Variances. Nothing in this Development Agreement shall be construed to prevent Applicant, nor shall Applicant otherwise be prevented, from seeking, by appropriate application thereof, approval for such waivers, exceptions or variances as may be authorized by the provisions of the Eagle City Code, 8.3 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 60f9 G:IKunstman IFi leslldaholEaglelClosinglDEClRevised, DOC 8.4 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Idaho 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. 8.5 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 310 E. State Street Eagle, Idaho 83616 Walgreen: Walgreen Co. Attn: Robert M, Silverman 104 Wilmot Road, MS#1420 Deerfield, IL, 60015 Sage: Sage Development, LLC Attn: Jason Bennett 205 N. 10th Street, Suite 200 Boise, ill 83702 or such other addresses and to such other persons as the parties may hereafter designate as provided herein. Any such notice shall be deemed delivered upon personal delivery twenty-four (24) hours after deposit with Federal Express or other reputable overnight delivery service, or three (3) days after deposit in the United States mail, if sent by mail pursuant to the foregoing. 8,6 Effective Date. This Development Agreement shall be effective upon recordation of a fully executed and notarized original of this Development Agreement. IN WITNESS WHEREOF, the parties have executed this First Amended and Restated Development Agreement. DATED thisJ/- day of ~2007. CITY OF EAGLE, a municipal corporation organized and existing under the laws of the State of Idaho Page 7 of9 G ;IKunstmanIFileslldaholEaglelClosinglDEClRevised, DOC "","" ......... So".. ~ EAGl. .... .f'" -\. 0 ....000... ~ .... f ~.'/~ollA1'/.. \ .. CJ:o~ J- : .. 0 . : : C,; 41/.411 _ : . . ...... s- \" c.~~\~..~i ':. e."... ~ ~~.. ."''-' ~ ..fORPO........^~.", .., ~l' ....... '\ V ",,'II #####, -1 TE 0 f ........~ .',',.......', A TrEST: STATE OF IDAHO ) : ss. County of Ada ) On this d:L day of , 2007, before the undersigned notary public in and for the said state, personally ap eared NANCY C. MERRILL, known or identified to me to be the Mayor of the City of Eagle and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that said City executed the same, IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. ....,......,..... ~oJhM ,}~ .. of'" ".:tl\ER I.. .'...., '^ ~ .. ~ .. -S-J- ". . I ~ OT ... <' \ Notary Public for Ida~ i 11 ~.tJ- \tt'> ~ Residing at: ~~ . i Ii -.- : ~ My Commission Expires: tgl)o ) Ib<. \... ClBL\C: = I '\ ";>' -".: .. ....r ~ ... .., "l; ..... ~ 0 ~~.. ......,.., OF Il) ~ ......~ ""'''''''''' Page 8 of9 G :\Kunstman\Fi les\ldaholEagle\ClosingIDEC\Revised. DOC STATE OF ILLINOIS) ) ss. County of Lake ) On this ! <! (/f- day of So/Ji ~ h ~ , 2007, before me, the undersigned, a Notary Public in and for said State, personally appeared Robert M, Silverman, known or identified to me to be the Divisional Vice President of Walgreen Co., an Illinois corporation that executed the within and foregoing instrument, or the person who executed the instrument on behalf of said Illinois corporation, and acknowledged to me that such Illinois 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. ~ I C I AL SEA L " SEA TRICE MAHLUM NOTARY PUBLIC, STATE Of ILLINOIS MY COMMISSION EXPIRES 11/16/2010 ~ ~~ Notary Public or Illinois A / Residing at C!aj-rt'L L/VJ cc--l-vtul'L- My commission expires: 1/ /tvjd..tJIU STATE OF ) ) ss. County of _ ) On this A day of ~lef~1) ,2007, before me, the undersigned, a Notary Public in and for said State, perso ally appeared Jason Bennett, known or Identified to me to be a Managing Partner of Sage Development, 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. 1 I: Notary Public for Residing at My commission expires: Page 9 of9 G :\Kunstman IFi les\IdaholEagle\Closing\DEC\Revised, DOC -/ <J EXHIBIT "A" LEGAL DESCRIPTION Order No,; 106046398 A Parcel of land being a portion of Lot 2 of Compton Andrews Tract, a subdivision, as filed for record in Ihe office of the Ad. County Recorder, BoiSe, Idaho, in Book 5 of Plats at page 223 and a portion of lhe Northwest quarter of the Southwest quarter of Section 12, Township 4 North, Range I West, Boise Meridian, Ada County, Idaho, as shown on Record of Survey No, 5499, ftled for record in the ofl1ce of the Ad. County Recorder, Boise, Idaho under Instrument No, 101079595, and mOrt particularly described as follows: Commencing at an aluminum cap marking the West '" corner of said Section 12; thence along the West boundary of said Section 12 South 00'49'31 West 983,15 reet to an iron pin marking the Point of Beginning; thence leaving said West boundary along a line Southerly of and parallel 10 the East-West center of Section line of said Section 12 South 89'20'28" East 4 75,00 feet 10 an iron pin; thence at right angles South 00'39'32" West 267,9J feet to an iron pin; thence at right angles South 89'20'28" East 121,95 reet 10 an iron pin; thence at right angles South 00'39'32" West 368,58 feel to a point on a curve on the North right-of-way line of State Highway 44; thence along said North right-of-way line along the arc of a curve to the left baving a radius of 22978.31 feel, a central angle of 01'12'44'" a length of 486,1 0 feet and a long chord bearing South 79'35'33" West 486.10 feet to a point of ending of curve; thence continuing North 46'30'01" West 131.96 feet 10 an iron pin on the West boundary of said Lot 2; thence along said West boundary North 00'49'31" East 300.78 feet to an iron pin mlU'king the Northwest corner of said Lot 2; thence along the extended North boundary of said Lot 2 North 89036'06" West 25.00 reet to an iron pin on said West boundary of Section 12; thence along said West boundary North 00'49'31" East 339.41 feet to the Point of Beginning. 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