Findings - PZ - 2007 - ZOA-03-06/A-14-06/RZ-16-06 Exhibits - Pre-Annexation And Development Agreement (No Signatures)
EXHIBIT "A"
PLANNING AND ZONING COMMISSION DRAFT
APPLICANT'S PROPOSED PRE-ANNEXATION AND DEVELOPMENT AGREEMENT
Recording Requested By and
When Recorded Return to:
Planning & Zoning Administrator
City of Eagle
P.O. Box 1520
Eagle, Idaho 83616
For Recording purposes
Do Not Write Above This Line
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT
by and between
CITY OF EAGLE
and
M3 EAGLE L.L.C.
TABLE OF CONTENTS
DEFINITIONS...................................................................................................................... .......................... 1
RECiTALS..................................................................................................................................................... 6
1. MASTER PLANS; PLANNING UNIT PLANS. ...................................................................................999
1.1 Conditions of Development................................................................................................. 999
1.2 Planned Unit Development.................................................................................................. 999
1.3 Planning Concept ..........................................................................................................10-W-W
1.4 Master Phasing Plan...................................................................................................... 194-9+9
1.5 Planning Unit Master Plan; Final Development Plan.....................................................202020
1.6 Allocation; Density....................................................................................................... ..202WG
1.7 Additional Property....................................................................................................... .212+2+
1.8 Term.............................................................................................................................. .212+2+
2. INFRASTRUCTURE AND SERViCES........................................................................................ 22~
2.1 Traffic & Circulation ..................................................................................................... ..22~
2.2 Water............ ................................................................................................................ .26~
2.3 Wastewater Treatment and Disposal ............................................................................282827
2.4 Storm Water Drainage................................................................................................... 30~
2.5 Public Facilities.............................................................................................................. 31 mG
2.6 Parks, Trails and Open Space.......................................................................................33~
2.7 Planning Unit Master Environmental Design .................................................................353aJ4
2.8 Construction................................................... ................................................................ 353aJ4
2.9 Infrastructure Assurance................................................................................................ 36~
2.10 Development Fee Credit; Reimbursement....................................................................36~
3. REGULATION OF DEVELOPMENT. ......................................................................................37373635
3.1 Regulation of Development....................................................................................... 37373635
3.2 Amendment................................................................................................................... 38~
3.3 No Moratorium............................................................................................................... 39~
3.4 Changes to Zoning, PUD Standards and Development Program.................................39~
3.5 Vested Rights ................................................ ................................................ ........... ..... 39~
4. ALTERNATIVES FOR FINANCING INFRASTRUCTURE IMPROVEMENTS............................39~
4.1 City Obtains Additional Funds...................................................................................... .40~
4.2 Public Financing Districts.............................................................................................. .40~
4.3 Impact Fees............................................................................................................... ....40~
5. PROJECT GOVERNANCE. ....................................................................................................... .40~
5.1 Governance Entities..................................................................................................... .40~
5.2 PUD Standards........................................................................................................... ...40~
5.3 Design Guidelines........................................................................................................ ..40~
6. COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION. .............................................414MG
6.1 Appointment of Representatives ................................................................................ ...414MG
6.2 Compliance Reviews................................................................................................... ..414MG
6.3 Agreement to Cooperate ............... ............................................................................... .414MG
6.4 Expedited City Decisions.............................................................................................. .414MG
6.5 Fees.. ...... ..... ..... ..... ...... ..... ..... ............... ...... ..... ..... ...... ..... ..... ...... ..... ................ ..... ........ .42~
6.6 Default........................................................................................................................ .... 42~
6.7 Dispute Resolution/Remedies...................................................................................... .42~
6.8 Prevailing Party.......................................................................................................... ....434M2
7. NOTICES AND FILINGS. ............................................................................................................434M2
7.1 Manner of Serving........................................................................................................ .434J42
7.2 Mailing Effective... ...... ..... .............................................................................................. .444443
8. MISCELLANEOUS. .................................................................................................................... .444443
8.1 Operations During Construction................... ................................................................ .444443
8.2 Termination Upon Sale to Public.................................................................................. .444443
8.3 Termination Upon Completion of Development ............................................................4444-13
8.4 Status Statements....................................................................................................... ..444443
8.5 Mortgage Provisions................................................................................................. .45454-14 3
9. GENERAL.......................... ......................................................................................................... .454M4
9.1 Waiver........................................................................................................................... .454M4
~:~ ~~~~~~~~.~~.:::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ::~~ ~~ ~
9.4 Exhibits and Recitals .................................................................................................... .464644-
9.5 Further Acts.................................................................................................................. .464644-
9.6 Time of Essence......................................................................................................... ...464644-
9.7 Successors and Assigns........................................................................................ ....46464 54 4
9.8 No Partnership; Third Parties................................................................. ...................... .46~
9.9 Entire Agreement.......................................................................................................... .46~
9.10 Amendment ............................................................................................................... ....46~
9.11 Construction.......................................................... ........................................... ........... ... 47 4+4a
9.12 Names and Plans......................................................................................................... .474+4a
9.13 Severability................................................................................................................4 7 47 4645
9.14 Choice of Law.............................................................................................................. ..4 74749
9.15 Recordation...................................................................................................................4 7 4749
9.16 No Developer Representations .....................................................................................474749
9.17 Good Standing; Authority.............................................................................................. .474749
LIST OF TABLES
Table 1
Table 2
Table 3
Table 4
Table 5
Table 6
Community Core Planning Area Density Allocation
Northern Residential Planning Area Density Allocation
Southern Residential Planning Area Density Allocation
Southwestern Residential Planning Area Density Allocation
Highway Mixed:Use/Business Park Planning Area Density Allocation
Project Density Allocation Summary
LIST OF EXHIBITS:
(DRAFTING NOTE: EXHIBIT F, PAGES 11 AND 12, EXHIBIT K AND EXHIBIT M HAVE BEEN
REVISED IN THIS VERSION OF THE DEVELOPMENT AGREEMENT.]
Exhibit A Legal Description and Depiction of the Property
Exhibit B M3 Eagle Sub-Area Plan Map
Exhibit C M3 Eagle Zoning Map
Exhibit D Q.9n~5,illtuai_ Outl.lne QLPUD Standards
Exhibit E PUD Conditions of Approval
Exhibit F M3 Eagle Sub-Area Plan
Exhibit F1 Community Core Planning Area
Exhibit F2 Northern Residential Planning Area
Exhibit F3 Southern Residential Planning Area
Exhibit F4 Southwestern Residential Planning Area
Exhibit F5 Highway Mixed::Use/Business Park Planning Area
Exhibit G Conceptual Development Plan
Exhibit H Master Phasing Plan
Exhibit I Regional Circulation Plan
ii
Exhibit J
Exhibit K
Exhibit L
Exhibit M
Exhibit N
Exhibit 0
Exhibit P
Master Streets & Circulation Plan
Master Public Facilities Plan
Master Parks & Trails Plan
Constrained Lands
BLM Land Exchange Map
Conceptual Outline of Restrictive Covenants (CC&Rs)
Conceptual Outline of Design Guidelines
iii
DEFINITIONS
"ACHD" is the Ada County Highway District.
"ACHD Traffic System" is roadways under the jurisdiction of Ada County Highway District.
"Additional Property" is all or any portion of real property now owned, or which may become
owned, by Developer and which is adjacent to or proximate to the Property.
"Agreement" is this Pre-Annexation and Development Agreement inclusive of all Exhibits, as
may be amended from time to time.
"Annexation Ordinance" is, or shall be, the City ordinance that duly annexes the Property into
City.
"Annexation Path" is an annexation corridor to provide contiguity between the Property and City
to enable City to annex the Property.
"Base Project Density" is the total base gross residential density for the Project, as set forth in
Table 6, prior to mitigation of slope, floodway, and habitat constraints and is 0.94 dwelling units/acre or
5,641 dwelling units. Developer will be allowed to develop the density and intensity of uses set forth in
Tables 1-6 prior to mitigation of slope, floodway, and habitat areas.
"BLM" is U.S. Bureau of Land Management.
"BLM Lands" is the lands in the Foothills Planning Area owned by BLM.
"CC&Rs" is the Covenants, Conditions and Restrictions, that shall encumber the Property and
which shall govern the Project through one or more Owners' Associations that shall establish quality
control through the Property both during development and during maturing of the community. A
conceptual outline of the CC&Rs is attached as Exhibit N.
"City" is the City of Eagle, Idaho.
"City BLM Lands" is the approximately 1,915 acres total contained in the two BLM-owned
parcels contiguous to the Southern border of the Project that, through the Federal Recreation and Public
Purpose Act, City has made application to acquire through long-term lease or purchase for the Eagle
Regional Park.
"City Representative" is the representative for City acting as liaison with Developer. The initial
City Representative is Susan E. Buxton.
"CLOMR" is the Conditional Letter of Map Revision issued by FEMA signifying its intent to revise
its floodway maps to remove areas from designated floodways.
"COMPASS" is the Community Planning Association of Southwest Idaho.
"Constrained Lands" is those lands within the Property with slopes in excess of 25%, lands
within a floodway, and lands defined as habitat areas of special concern as set forth on exhibit M.
"Date of Application" is the date Developer's applications to City for annexation, comprehensive
plan amendment, rezoning and concept development plan/conditional use permit for planned unit
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 1
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(presented \0 P 8. Z II 27 07).DOC
development in connection with the Property (collectively, the "Application") were deemed complete by
City. The Date of Application is August 23, 2006.
"Design Guidelines" is the planning, engineering, architectural, and landscape design guidelines
applicable to new construction and later modifications to the Project. A conceptual outline of the Design
Guidelines is attached as Exhibit O~.
"Developer" is M3 Eagle L.L.C., a Texas limited liability company, and all successors in title and
interest to Developer who undertake development of the Property.
"Developer Representative" is the representative for Developer acting as liaison with City. The
initial Developer Representative is William I. Brownlee.
"Development Plan" is the overall plan for the Project, which Development Plan is depicted on
Exhibit G, and which Development Plan has been approved by City in connection with Developer's
concept development plan/conditional use permit for a PUD application.
"Development Rights" is development allowed to be undertaken by Developer in accordance
with this Agreement.
"Drainage System" is a drainage and flood control system and facilities for collection, diversion,
detention, retention, dispersal, use and discharge of drain water.
"EASD" is the Eagle Architecture and Site Design Book.
"Eagle Comprehensive Plan" is, collectively, Eagle's ;w002007 Comprehensive Plan, as
omended by the Soaring 2025 Western Area Pion, anddas may be further amended from time to time.
"Eagle Fire Dlstrlcf' is the Greater Eagle Fire Protection District.
"Eagle Regional Park" is the lands City seeks to acquire from BLM (the City BLM Lands), which,
when combined with land presently owned by Developer, as more fully provided herein, would comprise
the Eagle Regional Park site, as depicted on Exhibit L.
"Economic Impact Analysis" is that certain Economic Impact Analysis & Demographic Forecast,
dated October 25,2006, and updated ........ ,lulL 2007 by Idaho Economics.
"Effective Date" is the date of publication of the ordinance adopted by City at a duly noticed and
held City Council hearing approving this Agreement.
"FEMA" is the U.S. Federal Emergency Management Agency.
"Fiber Optics Easement" is an easement within public streets for the installation, operation, and
maintenance of any public or private fiber optics or telecommunications facilities.
"Final Development Plan" is the development plan for all or a portion of a Planning Unit, which
Final Development Plan is the basis for construction and is developed based on, and consistent with, the
Planning Unit Master Plan.
"Foothills Area Plan" is the plan prepared by City for the Foothills Planninq Area. "Foothills
Plannina Area" is the area in the North EaQle Foothills comprised of approximately 35,700 acres and
generally bounded by the Ada County boundary on the north, State Highway 16 on the west, State
Highway 55 on the east, and Beacon Light Road on the south.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 2
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(presented to P 8. Z 8 27 07) DOC
"IDEQ" is the Idaho Department of Environmental Quality.
"IDFG" is the Idaho Department of Fish & Game.
"IDWR" is the Idaho Department of Water Resources.
"ITD" is the Idaho Transportation Department.
"ITD Traffic System" is roadways under the jurisdiction of lTD.
"Infrastructure Assurance" is a letter of credit or such other security acceptable to City to assure
complete installation of Public Infrastructure directly related to requested building permit or permits.
"Infrastructure Plan" is the Infrastructure Plan developed through coordinated planning, design,
engineering, construction, acquisition, installation, and/or provision of Public Infrastructure as set forth in
this Agreement and as contemplated by the Planning Unit Master Plan process.
"M3 Eagle" is the approximately 6,005 acres located in Ada County, Idaho, legally described on
Exhibit A, plus any Additional Property that may later be added to M3 Eagle. M3 Eagle is also
sometimes referred to herein as the "Project" or the "Property."
"M3 Eagle Sub-Area Plan" is that certain sub-area plan designating the planning goals and uses
for the Property as provided further in this Agreement, and as adopted by City. The Sub-Area Plan Map
is depicted on Exhibit B and the Sub-Area Plan text is set forth in Exhibits F, F1, F2, F3, F4 and F5.
"M3 Eagle Sub-Area Plan Ordinance" is, or shall be, the City ordinance that adopts the M3
Eagle Sub-Area Plan text and map designating M3 Eagle as "Foothills Residential" in the Eagle
Comprehensive Plan.
"Master Drainage Study" is that certain Preliminary Master Drainage Study, dated June 14,
2006, by Stanley Consultants Inc., with an interim update dated February 23,2007.
"Master Habitat Study" is that certain Final Habitat Study and Natural Features Analysis, dated
June 2006, by URS Corporation.
"Master Phasing Plan" is the phasing plan depicted on Exhibit H.
"Master Traffic Study" is that certain Traffic Impact Study, dated June 26, 2006, by Stanley
Consultants Inc., and the addendum thereto dated September 21,2006, and December 15,2006, and as
may be amended from time to time.
"Master Wastewater Study" is that certain Preliminary Master Wastewater Study, dated June 14,
2006, by Stanley Consultants Inc.
"Master Water Study" is the final study based on that certain Preliminary Master Potable Water
Study, dated June 14, 2006, by Stanley Consultants Inc.
"Maximum Density" is the provision for a maximum number of residential units in the Property as
provided in this Agreement. The Maximum Density is the total maximum gross residential density for the
Project after mitigation of slope, floodway, and habitat constraints and is 1.36 dwelling units/acre or 8,160
dwelling units and 245 acres of non-residential uses.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 3
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(presonted to P 8. Z !l 27 07).DOC
"Maximum Planning Area Density" is the maximum gross residential density for each Planning
Area subject to the limitation on the placement of the density within each Planning Area tJ.AWafter
mitigation efis approved for slope, floodway and habitat constraints are approved.
"Mortgage" is any lien placed upon the Project, or any portion thereof, including the lien of any
mortgage or deed of trust, as a pledge of real property to a creditor as security for performance of an
obligation or repayment of a debt.
"Municipal Water Right Application" is that certain application, filed by M3 Eagle on
November 22, 2006 with the Idaho Department of Water Resources.
"Open Space" is those lands which are: (i) owned by the Owners' Association and are
accessible to the public; (ii) owned by the Owners' Association and are not accessible to the public;
(iii) lands dedicated or donated for public and private parks and trails; (iv) landscape easements inside or
outside of public or private right of ways; (v) floodplains and floodways; (vi) equestrian centers; (vii) school
sites; (viii) vineyards and other agricultural lands; (ix) conservation easements on private lands or lots;
and (x) golf courses. The minimum Open Space within the Project shall be 25% of the Project area or
1,501 acres. The minimum amount of Open Space within any Planning Area shall be 15% of the total
gross acres of the Planning Area.
"Ordinances" is are ordinances enacted by City as more particularly referenced herein, including
the Annexation Ordinance, Rezone Ordinance and Resolutions necessary to meet the terms of this
Aqreement. M3 Eagle Sub Are3 PI3n Ordin3nce, Rezoning Ordin3nce and Pre Annex3tion Ordinance,
a~ mutually agreed upon by City 3nd Developer.
"Owners' Association" is one or more non-profit entities created or to be created by Developer,
that shall be responsible for, without limitation, the perpetual management of the Common Area, as such
is defined in CC&Rs encumbering or to encumber the Property, which management is at the expense of
the ultimate owners of the Project.
"P & Z Commission" is Eagle City Planning & Zoning Commission.
"Party or Parties" is, individually or collectively, the parties to this Agreement.
"Planning Areas" are the five individual Planning Areas that make up M3 Eagle as further
described in Exhlblt(s) F, F1, F2, F3, F4 and F5.
"Planning Unit" is a distinct parcel of land, or combination of parcels within the Property that is
linked to other Planning Units throughout the Property through an integrated circulation system and
overall thematic character that defines the Project.
"Planning Unit Developer" is the developer of all or a portion of a Planning Unit.
"Planning Unit Master Plan" is the guide to development of all or a portion of a Planning Unit
and includes, individually and collectively, a Planning Unit Master Drainage Plan, Planning Unit Master
Street & Circulation Plan, Planning Unit Master Potable Water Plan, Planning Unit Master Wastewater
Plan, Planning Unit Master Parks, Trails & Open Space Plan, Planning Unit Master Facilities Plan, and
Planning Unit Master Environmental Design Plan applicable to a particular Planning Unit M3Eter Plan or
portion thereof, and which is developed based on, and consistent with, the Project Master Plan. Planning
Unit Master Ptaf}.sPlans can represent one or more phases within a Planning Area.
"Post-Mitigation Density" is the gross density allocated to a Planning Area or the Project after
mitigation is approved for slope, floodway and habitat constraints.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 4
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(pre&ented to P & Z II 27 07).DOC
"Pre-Annexation Ordinance" is, or shall be the City ordinance that duly adopts this Agreement.
"Pre-Mitigation Density" is the gross density allocated to a Planning Area or the Project before
mitigation lli...approved for slope, floodway and habitat constraints.
"Project" is the approximately 6,005 acres located in Ada County, Idaho, legally described on
Exhibit A, plus any Additional Property that may later be added to the Project. The Project is also
sometimes referred to herein as "M3 Eagle" or the "Property."
"Project Master Plan" is the guide to development of the Project as a whole and includes,
individually and collectively, the Master Phasing Plan, Master Drainage Plan, Master Street & Circulation
Plan, Regional Circulation Plan, Master Potable Water Plan, Master Wastewater Plan, Master Parks,
Trails & Open Space Plan, Master Public Facilities Plan, and Master Environmental Design Plan.
"Property" is the approximately 6,005 acres located in Ada County, Idaho, legally described on
Exhibit A, plus any Additional Property that may later be added to the Project. The Property is also
sometimes referred to herein as "M3 Eagle" and/or the "Project."
"Public Infrastructure" is infrastructure facilities and services improvements, including, without
limitation, underlying lands that are owned or to be owned by City or third-party public service providers.
"PUD" is planned unit development.
"PUD Conditions of Approval" is the conditions of approval in connection with the concept
development plan/conditional use permit for planned unit development of the Property approved by City
and described in Exhibit E.
"PUD Standards" is-orshaflw the M3 Eagle Planned Unit Development Standards that govern
the Property, as may be amended from time to time.;. andwt;ieh6..gon9.E.?PJ..I,Lql.D.Ll!IIQE',-oL1QE:PlIQ
:?l53!J.cJ.m9-"'i. ':'lr81::jattached hereto as Exhibit D.
"Rezoning Ordinance" is, or shall be, the City ordinance that duly attaches that certain R-1-DA-P
zone to the Property.
"School Dlstrlcf' is the Meridian Joint School District #2.
"Sewer District" is the Eagle Sewer District.
"Star Fire District" is the Star Joint Fire Protection District.
"Submitted Materials" is all plans and other materials submitted by Developer to City or pursuant
to any zoning, platting, permit, or other governmental procedure pertaining to the development of the
Property.
"Tenn" is the duration of this Agreement as set forth herein.
"Treatment Facillty(les)" is the sewage treatment facility and delivery system that also produces
treated effluent to use for irrigation.
"Unconstrained Lands" is those lands within the Property that are not Constrained Lands plus
those lands within the Property that were Constrained Lands, but which have undergone mitigation as
approved by City.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 5
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(precentecl to P & Z !l 27 07).DOC
"Wastewater System" is a wastewater collection, storage, treatment, and disposal system to
treat and dispose of wastewater generated at the Property that includes, without limitation, Treatment
Facility(ies), major sewer lines and wastewater pumping stations, where required.
"Water System" is a water production, storage, treatment, and delivery system to serve all uses
on the Property and that includes, without limitation, wells, reservoirs, pumps, diversion structures, water
transmission and distribution pipes and related plumbing, pump houses, well houses, water treatment
facilities, water storage tanks, and pressurized irrigation systems, together with all water rights and
permits pursuant to which water, both potable and non-potable, will be diverted and used by means of the
Water System. The Water System also shall include those portions of the Wastewater System used for
the storage and delivery of treated sewage effluent for beneficial uses on the Property, and any additional
water rights or permits that may be associated with such uses.
"Zoning Administrator" is the administrator of the Eagle Planning & Zoning Department.
"Zoning Ordinance" is the zoning ordinance of City adopted and in effect on the Date of
Application.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 6
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(.presented to P 8. Z II 27 07).DOC
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION AND DEVELOPMENT AGREEMENT (this "Agreement") is entered
into by and between the CITY OF EAGLE, a municipal corporation organized and existing under the State
of Idaho, by and through its Mayor ("City") and M3 Eagle L.L.C., a Texas limited liability company
(" Developer").
RECITALS
A. Developer owns the Property, legally described and depicted on Exhibit A, which
Property consists of approximately 6,005 acres located north of the existing City in the western portion of
the North Foothills area of Ada County, Idaho.
B. Developer and City are entering into this Agreement pursuant to the provisions of: Idaho
Code, Sections 50-222; 50-301; 67-6508; 67-6511; 67-6512; and 67-6511A; and Eagle City Code, Title 8,
in order to facilitate the annexation, comprehensive planning, zoning designation, adoption and
development of the Property by providing for, among other things: (i) conditions, terms, restrictions and
requirements for the annexation of the Property; (ii) conditions, terms, restrictions and requirements for
the construction and installation of Public Infrastructure; (iii) permitted uses for the Property; (iv) density
and intensity of such uses; and (v) other matters related to the development of the Property.
C. Developer and City are entering into this Agreement for the purpose of providing
assurances to City that the Property shall be developed substantially similar to the provisions as provided
herein, for the purpose of providing important protection to the natural environment, for the purpose of
providing a viable tax base and long-term financial stability to City, and for the purpose of providing
assurances to Developer that Developer may proceed with the Development Plan substantially under the
terms hereot without encountering future changes in law that could materially affect the ability to develop
the Property under the Development Plan.
D. The development of the Property pursuant to this Agreement shall result in significant
planning and economic benefits to City and Developer by, without limitation: (i) encouraging investment
in and commitment to comprehensive planning for efficient utilization of municipal and other public
resources to secure quality planning, growth and protection of the environment; (ii) requiring development
of the Property consistent with the M3 Eagle Sub-Area Plan, the ~~oning Ordinance amendment~)rlcj
this AgreementM3n4-1he.PUD-St3ooaf4s; (iii) providing for the planning, design, engineering, construction,
acquisition, and/or installation of Public Infrastructure in order to support anticipated development of the
Property and the larger land area that includes impacts by and to the Property; (iv) increasing tax and
other revenues to City based on a strengthened tax base of improvements to be constructed on and
abGtIt in reasonable proximity to the Property; (v) creating employment through development of the
Property consistent with this Agreement; and (vi) creating quality housing, employment, recreation and
other land uses for the citizens of City on the property.
E. This Agreement shall promote and encourage the development of the Property by
providing Developer and Developer's creditors with a greater degree of certainty general assurances of
Developer's ability to timely (within reason}expeditiously and economically complete development of the
Project. The benefits to be received by City and Developer pursuant to this Agreement and the rights
granted by City and secured to Developer hereunder constitute sufficient consideration to support the
covenants and agreements of City and Developer. City recognizes and 3ck.oow~e&thatDevelopef
~e subject to substantial liability if City were to default in City's obligations ifI.-GOAAeGtmn-wltntn+s
Agfeeffient or if City were either limited or prohibited in aFI~ the PropertY-aFIG-aOO~+flg-and
publishing 311 of the Ordinances, as provided further herein.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT-7
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(prosented to P 8. Z Il 27 Q7).DOC
F. The development of the Property, which is a largely vacant area lacking in necessary
Public Infrastructure, requires the construction of substantial Public Infrastructure early in the
development process, which Public Infrastructure shall provide regional as well as local benefits.
G. Developer is willing to participate in the provision of such Public Infrastructure earlier than
otherwise necessary for Developer's development of the Property only with the assurances that
Developer shall be able to complete development of the Property as provided in this Agreement. In this
respect, the Public Infrastructure, together with the development contemplated by this Agreement, are
interdependent and altogether comprise an indivisible p.E.roject.
H. Developer and City desire that the Property be annexed into the corporate limits of City
and be developed as an integral part of City. Developer has submitted to City a duly executed application
requesting and consenting to annexation of the Property into City. City and Developer acknowledge that
the Property does not have a common boundary with City as of the Effective Date. City and Developer
shall, using good faith efforts, work together and with others to obtain an Annexation Path.
I. Upon identification of the Annexation Path, City shall take all steps necessary to annex
expeditiously the Property into the corporate limits of City, subject to the terms and conditions set forth in
this Agreement, including publication of the Annexation Ordinance~,~~I-b&.wnt+ngent
l:lpGA--GGAGlIffent publication of all of the Ordinances. City shall not take any action or enter into any
agreement with any state or local governmental entity and/or public agency that would limit City's ability to
annex the Property and City shall take any and all actions necessary to ensure that City's authority to
annex the Property is not limited or prohibited in any manner.
J. Developer's consent to annexation is contingent on identification of an Annexation Path
and adoption and publication of all of the Ordinances within a time period not to exceed 2M8 months
from the Effective Date. In the event that such Annexation Path is not identified and all of the Ordinances
are not published within such 2M8-month time period, this Agreement shall terminate and shall be null
and void unless such period of time is extended by Developer at Developer's sole and absolute discretion
by providing City notice of such extension on or before the last day of such 2M8-month period. Such
extension shall be for a minimum time period of 12 months. If the adoption and publication of all
Ordinances does not occur within such 24-month period but the Annexation Ordinance has been adopted
and published, the Property shall, upon Developer's written request, be de-annexed from City.
K. Developer and City desire that the Eagle Comprehensive Plan Map be amended to
include the M3 Eagle Sub-Area Plan Map attached as Exhibit B and the M3 Eaqle Sub-Area Plan Text
as attached hereto as Exhlblt(s) F, F1, F2, F3, F4 and F5. Developer has submitted to City a duly
executed application requesting an amendment to the Eagle Comprehensive Plan. City sh:::lll adopt the
~:p~~~~, ~~ ~~ ~~~i~r~~a~~e ~~~~e ;~:~r~~b~fa~e~~~~3a~c:h~~~ the .^~~~:~~~~np~~~~')~i~~ ~~ tRe
~:~n ~~~;~~~\~hi~h publiC:::ltion shall be contingent upon PUbliC~~~ : ;~ ~~:~r:~~c~6'
L. Developer and City desire that the Property be zoned R-1-DA-P in accordance with the
M3 Eagle Sub-Area Plan and the M3 Eagle Zoning Map, attached hereto as Exhibit C. Developer has
submitted to City a duly executed application requesting an amendment to City's Zoning Ordinance text
and map in connection with the Property. City shall adopt the Rezoning Ordinance 3t tho S:::Ime pu.l:WG
:~~~~~ ~~~oict~:: ~~~=X~~i~n Ordinance is 3ppro'lod, and shall. publish t~ ~:.~~~~~~~d~~~~ce
u u I tl f the M3 Eagle Sub Area Plan Ordinance, whfch publlGatleA sl:1all-be
contingent upon publication of :::III of the Ordin3nces.
M. The zoning designation of R-1-DA-P contained in the Rezoning Ordinance is the
appropriate zoning designation for the Property and, as subject to this Agreement, is designed to
establish proper and beneficial land use designations and regulations, densities, provisions for public
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 8
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(presented to P & Z l! 27 07).DOC
infrastructure, design regulations, procedures for administration and implementation and other matters
related to the development of the Property.
N,.QevBktpe+-ha5-SJJ.bm..ft~.tG--G+ty.a-GGf\B~tlffie-of-t-he-P.ljD-StanGaH::ls.-whlGh -P UD
Standard sattachedheretoasExhibit D.provldefor. wlthout..limitabon,.. the land use an d development
stand ardsforthezoningdesignalloH ofR_l_OA_PforHlePropertymaccordance. with theM3 Eagle Su b-
Ar&3Plan The finalPUDSlandards shall be approved by G+typnorto Developers submisSion to CAy of
theflfstPiannlngUnitMaster Plan The City shaH not unreasonably w:thhoid ItsapDfOval of the final PUD
Standards pro\l1dEHlthat tr1eflllaJPUDStandardsaregenerany conforming to the attacl1ed Exhibit D.
Where a oonfHctoccUfs.betweenUl€ Gity of Eagl€ PUD Standards and th€PUD Standan:ls. ,he pun
Standards shaH. prevail.
N. Developer and City desire that the Property be planned for development as a PUD, which
PUD shall be guided by the M3 Eagle Sub-Area Plan, the Rezoning Ordinanceilnc:i this Agreement and
thePUDStandards. Developer has submitted to City a duly executed application requesting PUD
approval for development of the Property. City shall approve the PUD and the PU.Q.-GBflGit-iOO&.m
Ap~aI-:~ the same public hearing at which this Agree~.eveG,~-GGAG+tkm&-of
A~~~~~ ;' .~~~ ~~ctive contingent upon the publication of all of the Ordi~.~lnces. The P~~ ~;"~~cms
o I I I b substantially similar In substance and form to the conditions of approv,J1 attached as
Exhibit E.
O. Prior to the Effective Date of this Agreement, all duly noticed and necessary meetings
and public hearings have been held and City has received public comment and has otherwise duly
considered all such matters in connection with: the annexation of the Property into City; the adoption of
the M3 Eagle Sub-Area Plan; Rezoning Ordinance; the PUD Conditions of Approval; and this Agreement.
P. The terms and conditions of this Agreement have undergone extensive review by City
and have been found to be fair, just and reasonable and City concludes that the public health, safety and
welfare of City's citizens shall be best served by entering into this Agreement.
Q. The annexation and development of the Property as contemplated by this Agreement
allows City to provide for high-quality development and ensure orderly, controlled and quality growth in
City. City's approval of this Agreement does not exceed City's authority under any multi-jurisdictional
agreements. In the event of conflict between this Agreement, the M3 Eagle Sub-Area Plan, Rezoning
Ordinance and the PUD Conditions of Approval, this Agreement shall control.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and agreed, and in consideration of the recitals and definitions above, which
are incorporated below, and in consideration of the premises and the mutual representations, covenants
and agreements hereinafter contained, City and Developer represent, covenant and agree as follows:
1. MASTER PLANS; PLANNING UNIT PLANS.
1.1 Conditions of Development. Developer shall develop the Property subject to the
conditions and limitations set forth in this Agreement. Further, Developer shall submit such applications
regarding design review, preliminary and final plat reviews, condominium plat reviews and/or any
conditional use permits, as and if applicable, and any other applicable applications as may be required by
the Zoning Ordinance, except as otherwise provided within this Agreement.
1.2 Planned Unit Development. Upon the annexation of the Property and adoption of all of
the Ordinances, Developer shall be authorized to implement the types of uses, densities and intensities of
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 9
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(pro&enled to P & Z il 27 07)DOC
uses as set forth in this Agreement and shall be accorded all approvals necessary to permit Developer to
implement this Agreement, subject to City's review and approvals of Planning Unit ~Developments,
Final Development Plans, site plans, subdivision plats and other similar requests in accordance with the
notice and hearing procedures of Eagle City Code; provided, however, in the case of any conflict between
such applicable code and this Agreement, the terms of this Agreement shall control.
City hereby authorizes Developer to include in Planning Unit Master Plans the types of uses that are the
same as or similar to (as reasonably determined by City's Zoning Administrator), and densities and
intensities of uses equal to or less than, those set forth in this Agreement. Development of the Property
may include, without limitation, the planning, design, engineering, construction, acquisition, installation,
and/or provision of improvements of any sort or nature, including private infrastructure and Public
Infrastructure related to development of the Property, whether located within or outside the Property.
City, having exercised City's discretion in approving this Agreement, shall cooperate reasonably in
administratively-processing the approval or issuance of such permits, plans, specifications, plats and/or
other development approvals of or for the Property as may be requested by Developer in order to
implement the Project, and which are reasonably consistent with this Agreement.
Notwithstanding anything to the contrary herein, prior to annexation and adoption ef-aU of the Ordinances,
Developer may submit to City Planning Unit Master Plans, Final Development Plans, site plans,
subdivision plats and other similar requests, which requests shall be processed in accordance with the
notice and hearing procedures of Eagle City Code:...; provided, hO\"Ie\'er, the date of approval of any such
reqUGsts shall be the d3te of annox3tion and 3doption of all of the Ordinances
1.3 Planning Concept. The Project consists of approximately 6,005 acres located north of
City. The Project is a comprehensive master planned community planned to provide a variety of
housing, jobs, recreational, educational, equestrian, open space and cultural opportunities
integrated into City"- through the adoption of City's planning v31ues and architectural char3cter.
The Project is planned for a Base Project Density of 0.94 units per gross acre, or 5,641 dwelling
units ("Pre-Mitigation Density"), and 245 acres of non-residential use. Through conversion of
Constrained Lands to Unconstrained Lands, the Maximum Density will be 1.36 units per gross
acre, or 8,160 dwelling units ("Post-Mitigation Density"), and 245 acres of non-residential use.
In the event that any of the non-residential lands within a Planning Area are developed as
residential, then the Maximum Density may be increased in accordance with the provisions of
paragraph 1.6.
M3 Eagle is being planned as five different Planning Areas, as set forth in the M3 Eagle Sub-Area
Plan, Exhibit Band Exhlblt(s) F, F1, F2, F3, F4 and F5. Each Planning Area represents a
unique design based upon: (i) topography; (ii) location within the Development Plan; (iii) existing
and planned transportation corridors; (iv) creating a balance of commercial, employment and
residential uses resulting in trip capture within the Project; (v) providing a wide array of housing
and employment options to create a true live/work environment; (vi) providing for regional and
community open space; and (vii) providing for dedication or donation of public facility sites for
schools, police and fire, parks. public and civic uses. The Conceptual Development Plan for the
Project is depicted on Exhibit G.
Within all Planning Areas a minimum of 50% of all dwelling units, and 65% of all single=family
detached lots less than 5,000 square feet, and 50% of all single=family detached lots less than
8,000 square feet shall abut some form of open space.
Community Core Planning Area
Table 1 set forth below is used to calculate the density upon the Constrained and Unconstrained Lands
within the Community Core Planning Area. Based upon the density allocations for each category, the
Pre-Mitigation Density for this area is 2.01 units/acre, or 1,277 dwelling units, and the Post-Mitigation
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -10
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(presonted to P & Z !l 27 07).DOC
Density is 2.24 units/acre, or 1,422 dwelling units. The Maximum Planning Area Density of 5.24
units/acre, or 3,335 dwelling units, can be developed within this Planning Area, but would require the
transfer of density from other Planning Area(s) to this area or conversion of commercial lands to
residential lands in accordance with paragraph 1.6. If development occurs within this Planning Area prior
to Constrained Lands becoming Unconstrained Lands, the development densities within the acres shown
as Slopes 25%+, Floodway and Habitat shall not exceed the density set forth below as Pre-Mitigation
Density until such time as all or parts of these lands become Unconstrained. As part of the Planning Unit
Master Plan process, the Developer shall identify those lands which are Constrained Lands, those lands
which are to be mitigated and those lands which will be left as Constrained Lands.
Table 1: Community Core Planning Area Density Allocation
pre-Mitigation Density Post-Mitigation Denslty*
Density Density
Acres (units/acre) Units Acres (units/acre) Units
Unconstrained 520 3 1,560 Unconstrained 579 3 1,737
Constrained Constrained
Slopes 25%+ 26 0.2 5 Slopes 25%+ 26 0.2 5
Constrained Constrained
F/oodway 90 0 - F/oodway 31 0 -
Constrained Constrained
Habitat - 0.2 - Habitat - 0.2 -
Total 636 2.46 1,565 Total 636 2.14 1,142
Commercial Commercial
Adjustment 111 -2.46 (288) Adjustment 111 -2.14 (320)
factor: factor:
Total Units: 1,211 Total Units: 1,422
Gross Density: 2.01 Gross Density: 2.24
Maximum Total Units: 3,335
Maximum Gross Density: 5.24
. Assumes City approved grading plan & standards, a CLOMR, and an approved habitat mitigation plan
The Community Core 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. This
Planning Area is the heart of the community and-will could contain the highest intensity of uses of all of
M3 Eagle. The Planning Area is planned for a mix of residential and commercial uses with a Maximum
Planning Area Density of 5.24 units/acre or 3,335 dwelling units and 117 acres of commercial land
consisting of retail and office uses. Acreage that is planned for commercial or office uses may also be
developed for residential uses in accordance with paragraph 1.6. If this occurs, the residential uses
could be developed on the commercial acreage at a Post-Mitigation Density of 2.74 units/acre for up to
320 dwelling units which would increase the Maximum Density for the Project by a corresponding
amount. Conversely, if acreage planned for residential uses is developed for commercial uses, the
Maximum Density for the project would decrease by a corresponding amount. [Note: is there a better
word/formula to use here?]
Land uses may include offices and businesses, civic uses, commercial uses, schools, and residential
neighborhoods. Neighborhood and community commercial sites are located near the western end of the
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 11
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(presented to P & Z 8 27 07).DOC
Planning Area with the highest intensity of mixed:use development located in the center. This Planning
Area may also contain resort or hotel uses and a medical office campus with a clinic or hospital.
Residential neighborhoods will contain single and multi-family homes (approximately 86% single-family
detached and attached, and 14% multi-family) with densities ranging from 6-20 units/acre. Housing
options will include apartments, townhouses, condominiums, patio homes, and high-density single-family
detached and attached homes.
The Community Core incorporates a "New Urbanism" design concept that embodies a live/work
environment. It will have an urban feel with appropriate landscape, monumentation, signage and place-
making features integrated into the design of the area. Housing, commercial/office uses, roadways and
landscape will tefl4-tG be arranged in formal patterns with tree-lined boulevards and pedestrian scale
amenities. Major commercial development will be focused along the major east/west arterial between
State Highway 16 and State Highway 55 and at primary intersections. 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 coniunction with they City's Desiqn Review requlations and enforced through the
Owners' Association and recorded CC&Rs as well as appropriate City enforcement mechanisms.~
the notice and he3ring procedures of E3gle City Code.J]_f:?Y-Q.!Q12~L~tl.aJ.Lpr.Q.'{L~t~J~.Lty_,,-vIJb.gr3.cJiI:"9
ghJI~t(;JLr.lt:t~j'l n d hLU"...I9..?-..9~Y-~JQQmen t sIa n d.9.[l;L s fo C. C :ty !E':' leVy'J?Jl...l:LAQ,Qr:gY.2LJ.f'1._ a cCQ..r:Q.<:!t.l c;f~..~/IJh_tt..lEUl..()tI(;e:
i'l.Q.9.D.f:?SlI.!IJ.9J2!:.O ct?.Q1!re (LQ.L!;:aa.!sQltLQ od e , .QL!9Lt9 re~!.Ql9.D.Y fi.Aal p reli m i na ry p1i.3.Li:1J'.lRIQYi.3!_"-v Ith If)
tm?_Pianning Area
The center of the Community Core, the Village 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 residential lofts fronting out
onto the central park. The central boulevard will split into 2 two-lane roadways through this area.
The Community Core is planned to have four community parks as well as regional, community and
neighborhood trails. This area is also anticipated to contain a combined high school and middle school, a
separate elementary school, and a police and fire station. Big Gulch is the primary drainage area within
the M3 Eagle community. Big Gulch will be reshaped and redesigned to create a flood management
system as well as a 55-acre linear park through the center of M3 Eagle. The Big Gulch floodplain will
become the Big Gulch Community Park, containing both improved and native areas, lakes and ponds
with wetlands, play and picnic areas, and a regional trail.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -12
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(presented to P & Z !l 27 Q7).DOC
Northern Residential Planning Area
Table 2 set forth below is used to calculate the density for the Constrained and Unconstrained Lands
within the Northern Residential Planning Area. Based upon the density allocations for each category, the
Pre-Mitigation Density for this area is 1.38 units/acre, or 3,814 dwelling units, and the Post-Mitigation
Density is 1.65 units/acre, or 4,551 dwelling units. A Maximum Planning Area Density of 2.14 units/acre,
or 5,917 dwelling units, can be developed within this Planning Area, but would require the transfer of
density from other Planning Area(s) to this area or conversion of commercial lands to residential lands in
accordance with paragraph 1.6. If development occurs within this Planning Area prior to Constrained
Lands becoming Unconstrained Lands the development densities within the acres shown as Slopes
25%+, Floodway and Habitat shall not exceed the density set forth below as Pre-Mitigation Density until
such time as all or parts of these lands become Unconstrained. As part of the Planning Unit Master Plan
process, the Developer shall identify those lands which are Constrained Lands, those lands which are to
be mitigated, and those lands which will be left as Constrained Lands.
Table 2: Northern Residential Planning Area Density Allocation
Pre-Mitigation Density Post-Mitigation Density-
Density Density
Acres (units/acre) Units Acres (units/acre) Units
Unconstrained 1,844 2 3,688 Unconstrained 2,259 2 4,518
Constrained Constrained
Slopes 25%+ 911 0.2 182 Slopes 25%+ 501 0.2 100
Constrained Constrained
Floodway 5 0 - Floodway - 0 -
Constrained Constrained
Habitat 0.2 - Habitat - 0.2 -
Total 2,760 1.40 3,870 Total 2,760 1.67 4,618
Commercial Commercial
Adjustment Adjustment
factor: 40 -1.40 (56) factor: 40 -1.67 (67)
Total Units: 3,814 Total Units: 4,551
Gross Density: 1.38 Gross Density: 1.65
Maximum Total Units: 5,917
Maximum Gross Density 2.14
. Assumes City approved grading plan & standards, a CLOMR, and an approved habitat mitigation plan
The Northern Residential Planning Area contains 2,760 acres (approximately 46% of the total Property)
and is more fully described in Exhibit F2. Topographically, 67% of this Planning Area, or 1,849 acres, is
less than 25% slope. This Planning Area is planned anticipated to encompass-fef predominantly
residential use with a Maximum Planning Area Density of 2.14 units/acre or 5,917 dwelling units, and 40
acres of commercial uses planned for neighborhood office and retail uses. Acreage that is planned for
commercial land may also be developed for residential uses in accordance with paragraph 1.6. If this
occurs, the residential uses may be developed on the commercial acreage at a Post-Mitigation Density of
1.67 units/acre for up to 67 dwelling units and increase the Maximum Density for the Project by a
corresponding amount. [Note: use a different term/formula?lConversely, if acreage planned for
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 13
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(presented to P & Z II 27 07).DOC
residential uses is developed for commercial uses, the Maximum Density for the project would decrease
by a corresponding amount.
Residential neighborhoods w+u are anticipated to contain single-family homes with densities ranging from
.2 to 10 units/acre and multi-family homes with densities of 4 to 20 dwelling units/acre (approximately
97.5% single-family detached or attached and 2.5% of the homes will be multi-family).
Land use intensity will generally decrease from south to north as development moves away from the
Community Core toward the northern, eastern and western boundaries of the Planning Area. Custom lots
or lower-density neighborhoods with an average density of 1 unit per acre will be located in a transitional
zone approximately 300-1,000 feet wide at the perimeter of the Planning Area. The one-acre average
density WHlG should-be achieved through clustering. This zone will provide a transition between the low-
density neighborhoods within the Planning Area and the even lower-density adjacent lands outside of the
Property. 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 as
apflfGpriateto omit rooflines from beinQ visible aboe the natural ridQes. Homes will be located on
moderate slopes with many steeper, non-graded slopes left as open space. Design Guidelines will be
enforced through the Owners' Association and recorded CC&Rs as well as City enforcement through the
notice and hearing procedures of Eagle City Code. Developer shall provide City with grading guidelines
and hillside development standards for City review and approval, in accordance with the notice and
hearing procedures of Eagle City Code, prior to receipt of any final plat approval within this Planning
Area.
The Northern Residential Planning Area is designed to have one regional park, one community park, nine
neighborhood parks and two elementary schools. Two golf courses are also planned. The Planning Area
will also be served by non-motorized multi-use trails (separated or combined) that will link neighborhoods
with the rest of the community and planned regional open space. Trails through neighborhoods not
adjacent to public rights-of-ways or connecting to public parks may be private.
Southern Residential Planning Area
Table 3 set forth below is used to calculate the density upon the Constrained and Unconstrained Lands
within the Southern Residential Planning Area. Based upon the density allocations per each category the
Pre-Mitigation Density for this area is 0.24 units/acre, or 502 dwelling units, and the Post-Mitigation
Density is 0.73 units/acre, or 1,549 dwelling units. The Maximum Planning Area Density is 0.42
units/acre, or 893 dwelling units which is 656 dwelling units less than the Post-Mitigation Density. Any
excess density may be transferred to the Community Core Planning Area, the Northern Residential
Planning Area and/or the Highway Mixed:Use/Business Park Planning Area in accordance with
paragraph 1.6. If development occurs within this Planning Area prior to Constrained Lands becoming
Unconstrained Lands, the development densities within the acres shown as Slopes 25%+, Floodway, and
Habitat shall not exceed the density set forth below as Pre-Mitigation Density until such time as all or
parts of these lands become Unconstrained. As part of the Planning Unit Master Plan process, the
Developer shall identify those lands which are Constrained Lands, those lands which are to be mitigated,
and those lands which will be left as Constrained Lands.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 14
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Table 3: Southern Residential Planning Area Density Allocation
Pre-Mitigation Density Post-Mitigation Denslty*
Density Density
Acres (units/acre) Units Acres (units/acre) Units
Unconstrained - 1.7 - Unconstrained 751 1.7 1,277
Constrained Constrained
Slopes 25%+ 1,034 0.2 286 Slopes 25%+ 482 0.2 96
Constrained Constrained
Floodway 2 0 - Floodway - 0 -
Constrained Constrained
Habitat 1,078 0.2 216 Habitat 880 0.2 176
Total 2,114 0.14 502 Total 2,113 0.73 1,549
Commercial Commercial
Adjustment - -.14 - Adjustment - -.73 -
factor: factor:
Total Units: 502 Total Units: 1,549
Gross Density: 0.24 Gross Density: 0.73
Maximum Total Units: 893
Maximum Gross Density: 0.42
. Assumes City approved grading plan & standards, a CLOMR. and an approved habitat mitigation plan
The Southern Residential Planning Area contains 2,114 acres (approximately 35% of the total Property)
and is more fully described in Exhibit F3. Topographically, 61 % of this Planning Area is less than 25%
slope. This Planning Area is planned for residential uses with a Maximum Planning Area Density of 0.42
units/acre or 893 dwelling units.
The majority of the Planning Area is planned as custom home lots at .2 to 1 uniUacre, but will also contain
single-family detached homes with densities up to 3 units/acre. Higher density, single-family detached
homes and single-family attached homes may also exist where topography allows but in no case visible
above natural ridqelines.
The Southern Residential Planning Area has the highest concentration of steep slopes of any of the five
Planning Areas. Design and placement of homes and other structures shall be carefully integrated into
the topography, and sensitive hillside grading techniques shall be used ~ to omit rooflines
from beinq visible above natural ridqelines. Residential units and ancillary improvements within custom
lots will be restricted to development within designated building envelopes which will increase the amount
of open space within the community. Privacy walls will be minimized in favor of open or no fencing to
preserve vistas and allow wildlife movement. The Design Guidelines will dictate special standards to
minimize disturbance to the environment. The Design Guidelines will be enforced through the Owners'
Association and recorded CC&R's, as well as City enforcement through the notice and hearing
procedures of Eagle City Code. Developer shall provide City with grading guidelines and hillside
development standards for City review and approval, in accordance with the notice and hearing
procedures of Eagle City Code, prior to receipt of any final plat approval within this Planning Area.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 15
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(presented to P & Z 8 27 07).DOC
Amenities will include four neighborhood parks and community and regional open space, regional
equestrian and pedestrian trails, and a public equestrian center on the west side of Willow Creek Road.
One elementary school is also planned. The Planning Area will also be served by non-motorized multi-
use trails (separate or combined) that will link neighborhoods with the rest of the community and planned
regional open space. Trails through neighborhoods not adjacent to public right-of-way or connecting to
public parks may be private. [Note: Discuss need for connectinq of pathways for public access.] Trails
through low-density neighborhoods may be on one side of the street. A public trailhead will be located on
the east side of Willow Creek Road.
The public equestrian center, as envisioned, would be a full-service training facility with professional
management and training services. The center would be on approximately 30 to 40 acres and would
contain a covered riding arena, and turn-outs, and would provide resident and non-resident boarding
facilities for 80 to 160 horses. The facility would be would be owned and operated by the Owners'
Association or an affiliate of the community.
Developer is designating 800 acres of the Planning Area for the planned Eagle Regional Park and 80
acres located along Willow Creek Road for the Willow Creek Road Regional Open Space Corridor. As
provided further below in paragraph 2.6(c), Developer desires !Q....and shall work toward the exchange of
the 800 acres for 815 acres of BLM Lands located near State Highway 16 as set forth in Exhibit N. The
exchange would be subject to BLM designating the M3 Eagle 800 acres as open space. If the exchange
is completed, the 815 acres would become part of the Highway Mixed:Use/Business Park Planning Area
upon receiving the appropriate approvals from the-City in accordance with paragraph 1.7. If the BLM
exchange is not successful within 10 years from the date of this Agreement, M3 E3gleDeveloper will
donate the 800 acres to City for a public park. The 800 acres will be available for public use during the
exchange period with BLM as if it were part of the City of Eagle Regional Park. The 80-acre Willow Creek
Regional Open Space Corridor will be owned and maintained by the Owners' Association and will contain
regional trails for public use.
Southwestern Residential Planning Area
Table 4 set forth below is used to calculate the density upon the Constrained and Unconstrained Lands
within the Southwestern Residential Planning Area. Based upon the density allocations per each
category, the Pre-Mitigation Density for this area is 0.12 units/acre, or 48 dwelling units, and the Post-
Mitigation Density isJ .57 units/acre, or 638 dwelling units. The Maximum Planning Area Density is 0.55
units/acre, or 224 dwelling units, which is 414 dwelling units less than the Post-Mitigation Density. Any
excess density may be transferred to the Community Core Planning Area, the Northern Residential
Planning Area or the Highway Mixed:Use/Business Park Planning Area in accordance with paragraph
1.6. If development occurs within this Planning Area prior to Constrained Lands becoming Unconstrained
Lands, the development densities within the acres shown as Slopes 25%+, Floodway, and Habitat shall
not exceed the density set forth below as Pre-Mitigation Density until such time as all or parts of these
lands become Unconstrained. As part of the Planning Unit Master Plan process, the Developer shall
identify those lands which are Constrained Lands, those lands which are to be mitigated, and those lands
which will be left as Constrained Lands.
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Table 4: Southwest Residential Planning Area Density Allocation
Pre-Mitigation Density Post-Mitigation Dens/ty*
Density Density
Acres (units/acre) Units Acres (units/acre) Units
Unconstrained - 1.7 - Unconstrained 375 1.7 638
ConstnJ/ned ConstnJ/ned
Slopes 25%+ 3 0.2 1 Slopes 25%+ 3 0.2 1
ConstnJined ConstnJ/ned
F/oodway 167 0 - F/oodway 29 0 -
ConstnJ/ned ConstnJ/ned
Habitat 237 0.2 47 Habitat 0.2 -
Total 407 0.12 48 Total 407 1.57 638
Commercial Commercial
Adjustment - -.12 - Adjustment - -1.57 -
factor: factor:
Total Units: 48 Total Units: 638
Gross Density: 0.12 Gross Density: 1.52
Maximum Total Units: 224
Maximum Gross density: 0.55
. Assumes City approved grading plan & standards, a CLOMR, and an approved habitat mitigation plan
The Southwestern Residential Planning Area is planned as the first phase of M3 Eagle and consists of
407 acres (approximately 7% of the total Property) and is more fully described in Exhibit F4.
Topographically, 99% percent of this Planning Area is less than 25% slope. This Planning Area is
planned for residential uses with a Maximum Planning Area Density of 0.55 units/acre or 224 dwelling
units. De v~.19J2.E:I_ s hall.J2J:Qv i de_C.i~ttlgr:S!9J..0.9...gu id e II ne? and hill s 19..t?JLE.:.Ij.?1 0 pm e n t s t9. n d_ClJ:~J"s..fQrCi!Y
(S'2,lL~!Y__Cl...f)i:L9PP rOljE.L..lD.9CCO r.Q5l n ce _YVJ..tbJJ1.s:_QQ!.LQf'~9. h eCl.[LogJ?[Qce9.lJr.s:~QliS!91~_GltL(;.Q.dEL.P!IQUQ
LEi(:s;lQLQf a nYJirl~E12Qr.oval witomJh isJ::J.S!!l~Area_,
This Planning Area will contain 130 rural and estate-type custom homes on 1 to 10-acre lots, and 94
single-family detached homes at a density of 4 to 6 units/acre. This is intended to be an equestrian-
themed community. The equestrian lots will have irrigated pastures and open fencing to give the area a
rural feel. Development adjacent to the planned Regional Park will provide for larger setbacks.
A private equestrian center (with resident and limited outside boarding) will be part of this Planning Area
along with a ranch camp. The equestrian center will be planned for covered and uncovered riding
arenas, paddocks and 80 to 100 stalls. The ranch camp will be a park-like setting with recreational
amenities such as;~ outdoor play equipment with a western theme, camp sites for residents, tree forts and
tree swings and community play fields. The equestrian center will be professionally managed~-wi#l
trainers in cutting horse, western, and hunter/jumper riding disciplines. All costs associated with the
maintenance and operations of these areas will be borne through the Owners' Association.
This Planning Area will also be served by the Big Gulch Community Park, located mainly in the
Community Core Planning Area and a separate community park. In addition, ponds and small lakes
holding treated effluent water will be located throughout this Planning Area with some located along Big
Gulch Park. These water bodies will serve as irrigation reservoirs, community amenities, and wildlife
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habitat. In addition, there will be extensive open space on lots due to restricting development to building
envelopes which will be controlled through the CC&Rs for M3 Eagle.
This Planning Area will also include non-motorized multi-use trails that will link the neighborhoods with the
rest of the community and with regional trails within the Eagle Regional Park. Trails through
neighborhoods not adjacent to public right-of-way or connecting to public parks may be located on only
one side of the street and may be private.[Note: connectinQ of trails for public use]
Highway Mlxed:Use/Business Park Planning Area
Table 5 set forth below is used to calculate the density upon the Constrained and Unconstrained Lands
within the Highway Mixed::Use/Business Park Planning Area. Based upon the density allocations for
each category, the Pre-Mitigation Density for this area is 0 dwelling units and the Post-Mitigation Density
is 0 dwelling units 3ccounting for due to the fact that all lands within this Planning Area are planned for
non-residential uses. The Maximum Planning Area Density of 5.68 unit/acre, or 500 dwelling units, can
be developed within this Planning Area, but would require the transfer of density from other Planning
Area(s) to this area in accordance with paragraph 1.6. If development occurs within this Planning Area
prior to Constrained Lands becoming Unconstrained Lands, the development densities within the acres
shown as Slopes 25%+, Floodway, and Habitat shall not exceed the density set forth below as Pre-
Mitigation Density until such time as all or parts of these lands become Unconstrained. As part of the
Planning Unit Master Plan process, the Developer shall identify those lands which are Constrained
Lands, those lands which are to be mitigated, and those lands which will be left as Constrained Lands.
Table 5: Highway Mixed:Use
Base Planning AI1I8 Density (Pre-Mitigation) Base Planning AI1I8 Density (Post-Mltlgatlon)*
Density Density
Acres (units/acre) Units Acres (units/acre) Units
Unconstrained 82 1.7 139 Unconstrained 82 1.7 139
Slopes 25%+ 6 0.2 1 Slopes 25%+ 6 0.2 1
Floodway - 0 - Floodway - 0 -
Habitat - 0.2 - Habitat - 0.2 -
Total 88 1.60 141 Total 88 1.60 141
Commercial Commercial
Adjustment factor: 88 (141) Adjustment 88 (141)
factor:
Total Units: - Total Units: -
Gross Density: - Gross Density: -
Maximum Total Units: 500
Maximum Gross Density: 5.68
* Assumes City approved grading plan & standards, a CLOMR, and an approved habitat Mitigation Plan
The Highway Mixed::Use/Business Park Planning Area contains 88 acres (approximately 2% of the total
Property) and is described in Exhibit F5. Topographically, over 93% of the Planning Area is less than
25 % slope. Q~YS' 10 Q.~..L~llElllJ2!:.Q.y.LQs;J'~ It Y IN It r~rad In 9 .9..UJg~.lio'l es....9.!J..Q..JJJU?l<iE?-g~_vgIQ.Pm~f.:1 L~t9_r1(ji:lrcj? f() r
~~.I!Y.lQ.'!.IE'y'{llJ].<i..9J2.PrOva I. 1..Q-Eff.Q rd a n ce..,!! It h_Jh~LQotlr:;e a.!J..Q-.h e a rmgJ21:.Qce d~!ri'0~QLI;s!gl'3Gltyl~gcJE?-,JlrIO I
tQ.J.S!f.~.lI?l.Qf allY final plat aJ;lproval wltDJnJJ:ll~pla.llOJng Area [Note: All standards omit rooftops from
siQht above natural ridQelines.]The Planning Area is planned for community retail and business space and
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a fire station and will retain an existing cellular tower site. A Maximum Planning Area Density of 5.68
units/acre, or 500 dwelling units, may be transferred to this Planning Area in accordance with paragraph
1.6.
This Planning Area will combine highway-oriented commercial, retail, office and business park uses to
capitalize on its adjacency and visibility from the regional transportation corridor, the planned interchange
on State Highway 16, and the State Highway 16 to State Highway 55 arterial roadway. The site may also
include high density single- and multi-family homes and hotel uses. Eventually, this area will be the
gateway to M3 Eagle with appropriate landscape, entry and place-making features integrated into the
design of the area with appropriate buffering along State Highway 16.
Access to this area will be by a future grade-separated interchange on State Highway 16 which will be
two miles north of a planned future interchange on State Highway 16 and Beacon Light Road. This
access will also serve as a primary entry into the community as well as connect to the primary five-lane
arterial that is proposed to serve as a connection between State Highway 16 and State Highway 55.
Developer desires to initiate a land exchange in connection with 800 acres of land within the Property, as
set forth in Exhibit N, for 815 acres of BLM Lands located along the western border of the Project
adjacent to this Planning Area. As provided further in paragraph 1.7, if Developer is successful in the
BLM exchange, Developer will file an amendment to the M3 Eagle Sub-Area Plan and this Agreement to
incorporate the Additional Property into the Project and this Planning Area may be expanded to include
such Additional Property. It is envisioned that this Additional Property would contain approximately 2.0
dwelling units per gross acre for Unconstrained Lands, and 0.2 dwelling units per gross acre for
Constrained Lands, and no density for lands within a floodway. The area would also contain civic and
educational uses and up to 25% of the area as mixed=use development and a minimum of 25% of the
area as Open Space. This Additional Property would expand upon the commercial and employment
center in this Planning Area and at the primary entry to the community and provide easy access and
visibility from the highway corridor.
Table 6: Project Density Allocation Summary
pre-Mitigation Density Post-Mitigation Density Maximum
Planning Area
Density
Planning Area Residential Non- Units Gross Residential Non- Units Gross Units Gross
Acres Residential Density Acres Residential Density Density
Acres Acres
Community 519 117 1,277 2.01 519 117 1,422 2.24 3,335 5.24
Core
Northern 2,720 40 3,814 1.38 2,720 40 4,551 1.65 5,917 2.14
Southern 2,114 - 502 0.24 2,114 - 1,549 0.73 893 0.42
Southwestern 407 - 48 0.12 407 - 638 1.57 224 0.55
Highway - 88 - - - 88 - - 500 5.68
Mixed Use
Totals 5,760 245 5,641 0.94 5,760 245 8,160 1.36
1.4 Master Phasing Plan. The development planned for the Property, including the Public
Infrastructure, is contemplated to progress in phases (that may be non-contiguous) and accomplished
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over an estimated 20 years as described in the Master Phasing Plan for the Project attached as
Exhibit H. The 20-year estimate is based..Qll the COMPASS model, however, Project build-out may
occur sooner based on the historical growth within Eagle. The Master Phasing Plan is designed to
accommodate the development of the Property from the west to the east, which will initially concentrate
the movement of traffic toward State Highway 16. The Master Phasing Plan may be modified by
Developer based upon changing residential and non-residential real estate market conditions, industry
factors, and/or business considerations and the subjugation of Additional Property to this Agreement.
The exact boundaries of each phase shall be established in the Planning Unit Master Plan process set
forth in this Agreement. Any such modification(s) shall not necessitate a formal amendment to this
Agreement-H+Gilldmg4ne...p-IJDStaOO-ar46, but shall be retained in City's official file for the Property. The
following table is an example of the timing for each phase of development using the COMPASS growth
model:
Phase Planning Area Projected Start Date
1 Southwestern 2009-2010
2 Northern, Community Core 2013
3 Northern, Community Core, Highway 2015
4 Southern, Community Core, Highway 2018
5 Northern, Community Core, Highway 2020
6 Northern, Community Core, Southern, Highway 2022
7 Northern, Community Core, Southern, 2024
8 Northern, Community Core 2026
9 Community Core 2028
1.5 Planning Unit Master Planj Final Development Plan. Each Planning Unit Master Plan
shall be based on the Planning Area Plans set forth in Exhlblt(s) F, F1, F2, F3, F4 and F5 and the
Conceptual Development Plan set forth in Exhibit G. The Conceptual Development Plan will be updated
when necessary to reflect modifications or to refine phasing within the respective Planning Unit Master
Plans. It is not necessary for Planning Unit Master Plans to encompass the same geographical area as a
Planning Area. A Planning Unit Master Plan should reflect the area within the Project that the Planninq
Unit Developer is proposing to subdivide through a Final Development Plan. The Planning Unit Master
Plan may address a portion of a Planning Area or Planning Unit, a complete Planning Area or Planning
Unit, or more than one Planning Area or Planning Unit. The Planning Unit Master Plan shall be filed with
the Zoning Administrator for review as to completeness and compliance with the requirements of this
Agreement. Thereafter, the Planning Unit Master Plan and Final Development Plan shall be reviewed by
the Planning & Zoning Commission for recommendation to City Council in accordance with the notice and
hearing procedures of Eagle City Code. If the PI::mning Unit M3ster Plan ::md Fin31 Development PI3n are
substanti311y in conform3nce with this Agreement, the Pkmning 8. Zoning Commission and City Council
shall not withhold 3pproval.
1.6 Allocation; Density. This Agreement provides for a Maximum Density of 1.36
units/acre, or 8,160 dwelling units, and a maximum of 245 acres of non-residential uses within the
Property. Notwithstanding anything to the contrary herein, Developer shall have the right to allocate
residential density and/or commercial acreage as set forth on Tables 1~, and the Development Rights
associated with such residential density and/or commercial acreage, from Planning Area(s) or Planning
Unit(s) to other Planning Area(s) or Planning Unit(s) at any time, and Developer may allocate any unused
residential density or commercial acreage originally allocated to a Planning Area or Planning Unit to
another Planning Area or Planning Unit in the event that the preliminary or final platting of a Planning
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Area or Planning Unit results in unused residential density and/or unused commercial acreage, provided
such allocation: {lLdoes not exceed the Maximum Planning Area Density and Maximum Density,JUl
does not alter or waive the development standards,~ and illJl.does not allow a use otherwise prohibited,.Qi
material chanqe to this Aqreement without prior amendment to this Agreement as required by Eaqle City
Code and compliance with the notice and hearinq requirements thereof. The allocation of residential
density and/or commercial acreage between Planning Areas and Planning Units is consistent with City's
planning efforts to encourage planning flexibility based on physical and market conditions while protecting
private property rights. Developer shall deliver notice to City that an allocation of residential density or
commercial acreage shall be made from one Planning Area or Planning Unit to another Planning Area or
Planning Unit and shall provide City with a statement of the number of residential units per gross acre
and/or commercial acreage being allocated. Any such allocation shaUmay not necessitate a formal
amendment to this Agreement, but shall be retained in City's official file for the Property. Regardless of
any allocation of residential density and/or commercial acreage between Planning Area(s) or Planning
Unit(s), Developer shall not exceed the (i) Maximum Planning Area Density; (ii) the Maximum Density for
the Property~ and (iii) the Maximum non-residential acreage allowed for the Property or chanqe of
permitted use/density in any zone without prior amendment of this Agreement s set forth in Eaqle City
Code.
1.7 Additional Property. Recognizing the uniqueness of each planned unit developmeflt
planninq area herein, Eagle City Code, Title 8, Chapter 6 allows for the inclusion of Additional Property
within such a into a planned unit development, thus providing for its expansion in area. In the event
Developer acquires Additional Property, and desires to subject such Additional Property to the benefits
and obligations of this Agreement, Developer may request that City annex the Additional Property into the
corporate boundaries of City (if such Additional Property is not already within the City's corporate
boundaries). City shall reasonably consider an amendment to this Agreement adding such additional
residential density and/or commercial uses and intensities that are consistent with any zoning or plan
approvals for the Additional Property. Without limitation: (a) tlhe addition of such Additional Property
may increase the Maximum Density (including the Additional Property) and alter other development
parameters in connection with the Property by the amount of dwelling units and commercial acreage
allowed pursuant to the existing entitlement on the property to be annexedi-~ (b) City andUpon annexation
(a leqislative proceedinq) of said Additional Property, Developer shall apply to the City for allocation of
cooper3te in order for the Additional Property to receive the necessary land use approvals, including any
necessary amendment to this Agreement,-fG1--tlhe amendment to this Agreement may include alternative
plans and land use designations.:..-; (d) the pl3ns and land use designations 3pproved for 3ny Additional
Property shall thereafter apply to the Addition31 Property; 3nd (e) Developer shall have the right to mm!Y.
for the allocation of allocate residential density and/or commercial acreage, and the Development Rights
associated with such residential density and/or commercial acreage, from existing Planning Areas or
Planning Units to the Additional Property in the manner set forth in paragraph 1.6 above.
1.8 Term. The Term of this Agreement shall commence on the Effective Date and shall
automatically terminate on the 30th anniversary of the first day of the 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, an additional 10 years, for a total of 40 years, at which time this Agreement shall automatically
terminate as to the Property without the necessity of any notice, agreement, or recording by or between
the Parties. If Developer has proceeded in good faith but has been prevented from developing the
Property, in whole or in part, within the 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, 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.
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2. INFRASTRUCTURE AND SERVICES.
The Parties acknowledge that a general intent of this Agreement is to provide for the Public
Infrastructure to be developed through coordinated planning, design, engineering, construction,
acquisition, installation, and/or provision of Public Infrastructure as set forth in this Agreement and as
contemplated by the Planning Unit Master Plan process described herein. City acknowledges that the
need for Public Infrastructure is substantially offset or accounted for by virtue of the accommodations and
facilities contemplated by the Project Master Plans and this Agreement. 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 service providers. City and Developer recognize that the majorIty of the <iI/eel
costs associated with the development of the Property shall be borne by Developer and third-party
owners of Property within the development and that many necessary elements of Public Infrastructure
shattshould be provided by other governmental or quasi-governmental entities, and not by City. 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, as applicable. Unless City has such jurisdiction, City shall
not be responsible for any construction or maintenance costs associated with the ACHD Traffic System
and/or the ITD Traffic System, as applicable within the Project.
(b) Regional Circulation Plan; Master Traffic Study; Master Streets &
Circulation Plan. Conceptual locations of major roadways within the Property and the Foothills Area
Plan area are provided in the Regional Circulation Plan, attached hereto as Exhibit I. The Regional
Circulation Plan includes rights-of-way within BLM Lands. Reasonable requirements as may be imposed
by BLM in exchange for such rights-of-way shall be observed met by Developer, ACHD and/or ITD as
applicable. The Regional Circulation Plan is intended to plan for shall identify regional east/west arterials
to connect two major corridors of the ITD Traffic System, State Highway 16 and State Highway 55, and to
plan for other regional roadways to connect the Property to the existing ACHD and/or ITD Traffic
Systems. 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. Developer is also
working with the aforementioned agencies and others to determine the appropriate funding mechanisms
to provide future funding to mitigate the impact of the development of the Property on the existing ACHD
Traffic System and/or ITD Traffic System. Following annexation and adoption of all Ordinances, City and
Developer shall use all good faith efforts to work together and with ACHD, ITD and other applicable
agencies to ensure that impact fees or similar funding mechanisms are implemented to assist in funding
the costs in connection with the regional roadway network serving the Property and other properties until
such time as the regional roadway network improvements are included in ITD and ACHD Capital
Improvement Programs (CIP's), which City and Developer expect to occur as soon as practicable after
the M3 ComprehensiveEaqle Sub-Area Plan is adopted. At the request of Developer, City shall provide
written and verbal support 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 Master Streets & Circulation Plan.
The Master Streets & Circulation Plan for the Property, attached hereto as Exhibit J, is based on
traffic analyses of the existing and proposed ACHD Traffic System and the Master Traffic Study, which
Master Traffic Study describes the two pnn12HVTQjC1L entries and several S€co'\:Jary entries that
provide access to the Project. The western primary entry may be proposed as an interchange or
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roundabout on State Highway 16, which State Highway 16 is planned as a fGufmulti-lane freeway
controlled access roadway that would carry a significant amount of the Project's traffic. The eastern
primary entry is proposed to be from State Highway 55 310ng a new minor arterial that continues 3S the
central roadway through the Property. An eastern s(,;,condaryentry shaH L1J.i3}'_be via the reconsiruct.CHi
Willow Creek Road a5 acol;ec:or roan.
(c) ACHO Traffic System. Following annexation and adoption of atIthe Ordinances,
Developer mayshall design, engineer, construct, acquire, install, permit and dedicate the ACHD Traffic
System within the Project in accordance with the Master Streets & Circulation Plan and Planning Unit
Master Streets & Circulation Plans. The phasing of the Project's development shall dictate the timing of
such ACHD Traffic System components. Upon dedication of any portion of the ACHD Traffic System to
ACHD, Developer shall provide to ACHD all applicable as-built drawings, operation and maintenance
manuals and operation records. The City shall take all actions necessary to work with COMPASS and
ACHD and other applicable agencies to cause the amendment to the CIP for ACHD to include the streets
and rights-of-way for Property.
(d) ITO Traffic System. Following annexation and adoption of althe Ordinances,
Developer, after consultation with ITD, may design, engineer, construct, acquire, install, permit and
dedicate the ITD System within and/or adjacent to the Project in accordance with the Master Streets &
Circulation Plan and Planning Unit Master Streets & Circulation Plans. City sRaUshould cooperate with
Developer in pursuit of funding from or authorized by the State of Idaho for the construction of necessary
improvements to State Highway 16 (which improvements may include, without limitation, interchanges,
roundabouts, traffic signals, turning lanes and frontage roads). The phasing of the Project's development
shall dictate the timing of such ITD Traffic System components. Upon dedication of any phase of the ITD
Traffic System to ITD, Developer shall provide to ITD all applicable as-built drawings, operation and
maintenance manuals and operation records. The City shall take all take all actions necesf;ary to
WGFkshould cooperate with COMPASS and ITD to cause the amendment to the CIP for ITD to include the
Property.
In no case can the Proiect qo forward absent the completion of adequate road/traffic facilities as
required by the City. If said road facilities cannot be constructed, the Proiect residential and non-
residential densities shall be decreased commensurate with the carrinQ capacity of the road facilities
approved by either ACHD or ITD as applicable and constructed by Developer
(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 to ACHD and/or ITD, as appropriate. Each Planning Unit Master
Streets & Circulation Plan shall be prepared taking into account the Master Streets & Circulation Plan,
and any amendments thereto. 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.
In addition, the following provisions shall apply:
(i) The phased development of the street network internal to the Project shall be based on
actual traffic volumes on arterial and collector streets within the Property and the Project shall
be monitored on a typical weekday (Tuesday, Wednesday, or Thursday) in July of each year
until build-out of the Project. Similarly, arterial and major collector street intersections within
the Project shall be monitored annually until build-out of the Project to evaluate intersection
delays and the potential need for signalization at such intersection(s).
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 23
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(pre&enled to P g, Z !! 27 07).DOC
(ii) The staged improvement of roadways shall be a function of the ultimate classification of a
roadway segment and the traffic volumes recorded. As allowed by either ACHD or ITD as
applicable. As allowed by either ACHD or ITD, as applicable:+!he threshold volume that
would trigger the need to design an additional on-site roadway segment or improvement is
when 80% of the design capacity of the existing roadway is met or as otherwise required by
ACHD or ITD, whichever is applicable. The threshold volume that would trigger the need to
construct or improve an on-site roadway segment is when 90% of the design capacity of the
existing roadway is met. Once thfsese threshold~ fsare met, Developer may, for example,
and without limitation,seek to add additional lanes until the ultimate roadway geometry is met
and/or may seek to add another roadway to divert traffic from the existing roadway segments.
The foregoing notwithstanding and, subject to approval by ACHD and/or ITD, as applicable,
Developer would not be obligated to construct or improve a roadway segment if Developer
can demonstrate to ACHD or ITD's satisfaction (as applicable) that traffic expected to be
generated from the remaining development of the Property or portion thereof shall not cause
the design capacity of the existing roadway segment to be exceeded. Such demonstration
might, for example, '.....ithou~ be a result of reducing or reallocating density or
relocating uses as permitted by this Agreement.
(iii) All private roads and/or rights-of-way within the Property shall be constructed by Developer to
ACHD and/or ITD, as applicable, standards and maintained by Developer and/or an Owners'
Association; provided, however, in certain areas, Developer may Qesifeseek approval from
the City to install private roads which are not to ACHD standards or are not paved to preserve
a rural character. Developer reserves the right to seek approval to limit access through
access control structures, to private roads within the Property, and the right to determine the
location of curb cuts, provided a qualified engineer determines that their location does not
present a significant hazard. Developer shall have the right to retain ownership of private
roads and/or rights-of-way. Some or all of private roads and/or rights-of-way may be
conveyed to one or more Owners' Associations. Developer shall have the right may seek
City approval to install access control structures within the medians of the private roads
and/or rights-of-way at any portion of the Property. Developer shall grant to the appropriate
service providers license for police, fire, ambulance, garbage collection, water or sewer line
installation and repair, and other similar public purposes, over such private roads and/or
rights-of-way. Developer shall have the right to name private streets and any new public
s~r:~:: a contin~ation of an alre3dy n3med publiC street. Developer shall have the right
t----.--,-€ the continuation of any roadway as It runs through the Property. Developer IS not
;e~~i~~ t~ connect or continue outside streets through the Property unless indicated on the
M3ster Streets & Circulation PI3n and Planning Unit Master Streets & Circulation Plans.
Application for private streets shall be made to the City at the same time as preliminary plat
application is filed.
(iv) Subject to 2.1 (f) below, 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. In no instance
may City issue buildinq permits for any phase prior to adequate road facilities beinq
constructed to the capacity required for full build-out of that phase.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 24
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(pro&ented to P &. Z 8 27 07).DOC
(viDeveloper shall have the right to determine the designation of addfes.se~rtie&-in
the Property after consultation with the appropriate government31 entities and U"s. Posta!
Service personnel.
ivHiY; .... Developer mayshall reserve, prior to dedication to ACHD and/or ITD, as applicable, in any
public street on the Property, a Fiber Optics Easement. Developer and ACHD and/or ITD, as
applicable, shall establish the procedures for coordinating the location of facilities in the Fiber
Optics Easement and nearby public utility easements and the procedures and standards for
maintenance and repair of facilities located in the Fiber Optics Easement. Any construction
or maintenance activities conducted within the Fiber Optics Easement shall be subject to
obtaining any necessary encroachment permit from ACHD and/or ITD, as applicable. A Fiber
Optics Easement may be established prior to dedication of any public right-of-way that
Developer determines shall contain a Fiber Optics Easement. ACHD and/or ITD, as
applicable, and Developer shall be required to restore to substantially original condition any
facilities damaged by either Developer or ACHD and/or ITD, as applicable, in exercising their
respective rights to use, in Developer's case, the Fiber Optics Easement, and, in ACHD's
and/or ITD's case, the public rights-of-way. Neither City nor ACHD nor ITD shall take any
action that may frustrate Developer's ability to utilize the Fiber Optics Easement for the
installation, operation, and maintenance of any public or private fiber optics or
telecommunications facilities located in the Fiber Optics Easement. Such facilities may
connect to facilities external to the Property. Developer shall have the exclusive right to
select providers of fiber optics and telecommunications services in connection with the
Project.
t:~':~:lJJY.\l
~~~~t~r;r ~~:~~~~ceive from ACHD or ITD, as appropriate: written certific3tion of imP:~~ ~::
~I :~~~ ~~~I~~;~~:5ements d~e to Devoloper, .and a written certification of the Impact fees
r J ents established for the PrOject, which shall not be modified dUring the
Term hereof provided there is no material change in the Project[Not part of the City's
jurisdiction.l
(I) Reimbursement. If Developer, at Developer's cost and eXflBA6&;-4e-vekJ.ps-any:
~~~~~~~~ :f~~~ ;~~:~ ~r~em an?/or the IT~ Traffic System within or outside ~;~~.~~~~~t'1\~h~
::~= iQ:'" e applicable Traffic System reasonably has boen deter~l~ e~ ^.GFlQ
:;,;;; ~~' :;::~,:; 10 bonefit properties olherlhon Ihe Property, Of if ACHD and/or ITD, o~
:~::a I ,r ~ IF 'Ioper to develop a portion of the applicable TraffiC System ~ ~~G~SS of that
~c~i:~y ~~ ~~rve the Pr~ject so as to enable A~HD and/or ITD, as appli~able, to serve.otMF-}}ropeffie&,
;~; ~~:t ~ D, as applicable, and Developer, In good faIth, shall negotiate and enter Into an
r m the effect that all or a portion of the costs in connection with such de'lelopment4tJ:l.e
applicable Traffic System shall be credited to Developer in connection with future impactfee.&-fgr-sin1Har
funding mechanisms) or shall be reimbursed to Developer from the impact f~ef-stmitaf-fUflGifl9
~~~~:=~~~I~t~ from such other benefiting property owners '""ho othel'\vise tlaveoot-.paid-{)f
~~~~~~~~~~ A;r~~:;' ;hare to'Nard. dev~lopment of the applicable Traffic System ("!r.affic
=~::::'llII;;O' . '). Such TraffiC Reimbursement Agreement shall have a duration that ends
~:~= ~~~~ ;~ i~~~~ f;~~:9 completion of the portion of the applicable Tr3ffic System for ~Nhich
=:~;;:;; , t, ~ t; when Developer has been fully reimbursed for costs In connectl~
~~'fl~lJ~~A~~ ;;i:~~on of the applicable Traffic System th3t benefits properties o~~:~ ~~~~~~;
;;;6:;~ ;;;;' ~"u;;j=r~nl Agreement oholl ffiprovide, Wilhe"llimllelio~.' .~ h";,~~: ":: ~id
~~~~: ~iG~ .h p Icable mUnicipal bond rate for the City of Eagle; ililprovlde, h~~~:r. ~:~
;;; ';;;; ~:;;;'dI~ ~ Ii; ~=Iica.le, or Ihe City if ilm.eo over Iho Elree"" oholl charge 0 1 % ~dmin~rotivo
;;: ;;;~;'~ n ,e G ntmg, auditing, and payment of the reimbursement payments to be made to
~;~~~~~; ~b~s~~~~g ~ ~eloper and ACHD 3nd/or ITD, as app!icable, and thei~r~~~~
5 I; a be recorded as an encumbr3nce 3g3mst the benefited propert,(les) [Not
part of City's iurisdiction.]
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 25
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(presented to P 8. Z il 27 07).DOC
2.2 Water.
(a) Water Provider. As provided further herein, City, or some other legally-
constituted public or private provider(s) allowed to operate in City, shall be responsible for the operation,
maintenance, and replacement of the Water System. If City is the provider, City shall provide water to the
Property from the Water System on the same basis as City provides water to other residents and
businesses in City.
(b) Master Water Study; Master Water Plan. Developer is conducting a regional
water study to determine the extent and sustainability of water sources and water rights that may be used
to serve the Property, which study is sometimes referred to herein as the Master Water Study. The
Master Water Study shall provide the basis for the Master Water Plan. The Master Water Plan to be
developed based on the Master Water PtanStudyshall provide a master plan of the general locations of
the Water System. As provided further herein, Developer will develop water conservation criteria for
landscape and irrigation to be included in the Design Guidelines.
(c) Water System. Following annexation and adoption of alHhe Ordinances,
Developer shall design, engineer, construct, install, permit and dedicate the Water System in accordance
with the terms of this Agreement, the Master Water Plan and Planning Unit Master Water Plans,
applicable federal, State and local laws, and professional regulations and standards including the
Recommended Standards for Water Works: Great Lakes-Upper Mississippi River Board of State Public
Health and Environmental Managers, 2003. In designing and constructing the Water System, Developer
shall consult regularly with City and, construct the water system to the City'S standards a&~pr.of}Fj.ate;
seek-.Grtfs ~~i~ and comment.construct the water system to the City's standards---Gevelopef-aRd-Gfty
:h:I~~~~P~ fu th~ g~~atest practicable extent v:ith the go;)1 of ensuring that all necessary water rights
r re r the Water System, and that the Water System can be permitted ;)nd operated In
conjunction with existing and planned water facilities of the City. Wherever possible, Developer and City
should cooperate to share facilities such as storage reservoirs, emergency back-up power generators,
and similar facilities. The Project, in conjunction with other developments, may also be served by a
surface or ground water treatment plant located within or outside of the Property. The phasing of the
Project's development shall dictate the timing and location of the Water System components and specify
those phases or portions of the Water System to be dedicated to and operated by City or other provider.
The City shall not issue any buildinq permits for any phase prior to Developer's completion of water
facilities sufficient to serve that ~hase of the ~ro~ect. Prior to dedication of any ph;)se or portion of the
Water System to City or other f) evider, City r ther provider, as applicable shall submit reasonably
acceptable e'.'idence to Developer that City or other provider, as applicable,llas-tfle-teGhf\.i{;aI.,-finaRGJ.a.I
and managerial capacity to operate any such phase or portion of the Water System. Prior to dedication of
any phase or portion of the Water System to City or other provider, Developer shall provide City or such
other provider with all applicable as-built drawings, operation and maintenance manuals, operation
records, and water right records and information.
(d) Planning Unit Master Water Plan. A detailed analysis of the Water System for
each Planning Unit Master Plan shall be completed with the submission to City of a Planning Unit Master
Water Plan that conforms to the Master Water Study and the Master Water Plan.
(e) Assured Water Supply. In connection with each Planning Unit Master Water
Plan, and t,EifOf':, '"'20ghiD:::::nE'L.\:\lIUJJtf,,submittal of a Final Development Plan in connection with each
Planning Unit r\i~asjer Piap or portion thereof, Developer shall submit evidence that Developer has
secured adequate surface and/or ground water right(s), or entitlements to receive and use water, to
satisfy all irrigation, aesthetic, amenity, potable and/or recreational use in connection with the
development of such Planning Unit Master Pian or portion thereof (unless Developer is entitled to a
waiver as provided by City Code). If any transfer, amendment or other proceedings are required under
Idaho Code or IDWR rule or policy for City's use of such water to serve the Project, Developer shall
cooperate fully with City in City's efforts to obtain all necessary permits and approvals from IDWR
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 26
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(presented to P 8. Z !l 27 07).DOC
lnclu~wlthout limitation. aQ.provals in connection with mitiqation at Developer's sole expense. Subject
to the terms of this Agreement, including those set forth in section 2.2(h), below, and also subject to that
certain Declaration of Covenants, Restrictions and Easements, dated January 23, 2006, between
Developer's predecessor in interest and property owners in the vicinity of the Property, Developer shall
transfer, conveyor assign ground water right(s) to City for inclusion in City's existing municipal water
supply system but not prior to the adoption and publication of aI.\.-ef the Ordinances, and the annexation
being finalized without appeal; provided however, notwithstanding anything to the contrary herein or in
Eagle City Code, in the event the Developer conveys such water rights to City, City shall not use any of
the water transferred under such rights to serve any other properties unless the City provides evidence to
Developer, which evidence must be accepted, in writing, by Developer, that City has obtained adequate
rights from IDWR to serve the Project and such other properties. Such ground water right(s) shall be
valid existing ground water right(s) that are decreed or licensed by IDWR, and/or rights to divert and use
water pursuant to a valid IDWR permit, unless IDWR or any competent reviewing court has not yet acted
upon or finally approved Developer's water permit application, in which case Developer shall conveyor
assign its interest under such application that pertains to such Planning Unit Master Plan. City shall
cooperate with Developer, at no cost to City, to assist Developer in obtaining a permit(s) and licenses for
water rights sufficient to serve the Property, in connection with the Property, or portions thereof, as the
Property is developed in accordance with this Agreement. Developer shall have the right to file for a
municipal water right prior to the adoption and publication of all-ef the Ordinances. Notwithstanding the
foregoing, the Developer shall secure an approved water right to serve as an adequate water supply for
its first Planning Unit Master Plan within 10 years from the effective date of this Agreement or this
Agreement shall terminate.
(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 or develops any portion of the Water System, 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 enable City to serve other properties, City and Developer shall, in good faith, enter into an
agreement to the effect that a\k)f_-a 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 that ends the later of: 0110
years following completion of the portion of the Water System for which reimbursement is sought; illl0f
when Developer has been fully reimbursed for costs in connection with development of ;:my portion of the
Water System th3t benefits properties other than the Project. Such Water Reimbursement Agreement
shall provide, without limitation, that: Olinterest be paid to Developer at the then applicable municipal
bond rate; illlCity shall charge a 1 % administrative fee for handling the accounting, auditing, and
payment of the reimbursement payments to be made to Developer; ilillJhe Water Reimbursement
Agreement shall be binding on Developer and City and their respective successors and assigns; and {jy}
be recorded as an encumbrance against the benefited property(ies).
(g) Water User Charges. Upon dedication to City of the Water System and
compliance with subsection 2.2(e) above, City shall serve water to the Property in quantity and quality
sufficient to satisfy the contemplated present and future domestic, municipal, commercial, industrial and
irrigation demands for water at the Property as and when required in connection with the development of
the Property, subject to any cause of water disruption or degradation of water quality 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 uses on the Property using the City Water System shall be metered at
hOOkUP.::~~c~ build out. Water user charges established by resolution of City CouncH-sRall-be-fe\4ewed
~~ ~o:;:~~. ~~; ;~d ;h~1I reflect the octual costs of operation, mointenanco, replacement, financing.aM
~~~I -= ;:~~~ 't~ c:nectlon With the 'Nater System commens~r~te '.'11th acceptable m3rket pFaGtlGeS
c J roup the actu31 costs 3ssoclated With providing such w3ter ser'lIces and to
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 27
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(presented to P & Z il 27 07).DOC
eRGOurage water conservation. City shall receive no water user charges 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 water user charges for water service.
(h) Alternative Water Service. Developer has explored, and is continuing to
explore, in conjunction 'A'ith the Master Water Study, several alternatives--fGf-tRa--f.}f{w-isiGR--ofwat8r-fGf-tlS8
:~~ ~~ :va~t~r ~ystem, including the prima'!' alternative for the use of ground .'-vater from on site afld--off-
\. I \;l Imate o..vnershlP of water nght(s) and the \Nater System by City. The Parties, fGf-8
permd not to exceed 36 months from the Effective Date, shall, in good faith, explore developiflg.-the
SOUf-Gef~ :~~~; t~ ~~~~e the.Water System If City and Developer fail to obtain-aG~te-sGur.ce(-&)
of supply t 'h rty Within such 36_month time penod (unless such penod of time :: :~~~nde~
~ ~~:~:~:':.~;'Ioper'. .ole and al>6ol"'o discre'ion by providing City notice of 6U~,::~~~~::::: or
f y such 36_month time penod), and such water service IS available from a third f:laFty
~;~~~' ~~:~o~:~~loper s.hall have th~ right, at Developer's option, to seek and .enter int~ on.~ ;c:"'~~
~ .e " "er service from a private water company (or multiple companies) tha~~: :~bject tG
=~~~h;;~~::: I~:; P~bliC Utilities Commi.sion; or '0 create." private water sys~,:, ~ ~~~.projeCI In
::;~;:~ . ~\ t, I : (I shall not veto or object to the expansion of the certificate of convenience and
~~~~;~l~f~ ~;fvha~lh: ~ri:~te water company(ies) to i~.clude the Property; (ii) shall not prote~~~;
;;::;'; : : ~' t r 'stem for the PrOJect; and (III) shall take the steps necessary to permit such
i' ;t; \I;;~~ c~mpany(ieS) to locate facilities in the publiC rights of way held by City by, '1iithout
limitation, license, agreement, or, if necessary, by franchise. The Developer aqrees to be included inot
the City Water System and further aqrees not to seek other water service providers either public or private
unless or until the City refuses to serve the Property
2.3 Wastewater Treatment and Disposal.
(a) Eagle Sewer District. Sanitary sewer collection, treatment and disposal shall be
provided by Sewer District or some other legally constituted public or private provider allowed to operate
in City. The Developer aqrees to annex to Eaqle Sewer District and further aqrees not to seek other
sewer treatment services unitl or unless Eaqle Sewer refuses to serve the proiect. Unless City becomes
such provider, City shall not be responsible for any treatment, maintenance or costs associated with
sanitary sewer collection, treatment and disposal in connection with the Project.
(b) Master Wastewater Study; Master Wastewater Plan. Developer has
completed the Master Wastewater Study and Master Wastewater Plan. The Master Wastewater Plan, to
be developed based on the Master Wastewater Study shall provide general locations of the major
wastewater infrastructure needed to provide service for the Property.
(c) Wastewater System. Following annexation and adoption of all Ordinances,
Developer shall, in conjunction with Sewer District, design, engineer, construct, install, permit and
dedicate the Wastewater System in accordance with the Master Wastewater Plan and Planning Unit
Master Wastewater Plans and in accord with the State of Idaho Water Quality Standards and Wastewater
Treatment Requirements standards and regulations. The Treatment Facility, as part of the Wastewater
System, shall be located either on the Property or at an off-site location to which Developer shall
construct connecting sewer lines. If an on-site Treatment Facility is used, it shall be designed to provide
preliminary, primary, secondary and tertiary wastewater treatment, and wastewater may be pumped to
on-site storage ponds prior to use for irrigation. Irrigation, to the extent possible, will be provided with
such treated effluent. Such Treatment Facility shall be designed to produce an effluent suitable for
irrigation of golf courses, parks, streetscapes, and other landscaped areas in conformance with all
applicable governmental re-use regulations; provided, however, treated effluent shall be used only in
such manner as may be approved in writing by Developer, City, Sewer District, IDEQ and any other
applicable governmental agency. Gravity sewer systems shall be used wherever possible, but if
topography renders gravity systems infeasible, in Developer's civil engineers' reasonable discretion, then
Developer shall be permitted to use low-pressure sewer systems and/or lift stations located, sized and
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designed based on the area served by such lift station. In the event that a low-pressure system and/or lift
station is proposed, such system or station, as applicable shall meet the design standards of Sewer
District and require the approval of Sewer District, which approval shall not be unreasonably withheld.
Wastewater treatment shall generate residuals that require disposal, which disposal shall be off-site. The
phasing of the Project's development shall dictate the timing and location of the Wastewater System
components. Upon dedication of any phase of the Wastewater System to Sewer District, Developer shall
provide Sewer District with all applicable as-built drawings, operation and maintenance manuals and
operation records.
(d) Planning Unit Master Wastewater Plan. A detailed analysis of the Wastewater
System for each Planning Unit Mostor Plan shall be completed with the submission to Sewer District of a
Planning Unit Master Wastewater Plan that conforms to the Master Wastewater Study and the Master
Wastewater Plan.
(e) Assured Treatment Facilities. In connection with each Planning Unit Master
Wastewater Plan, submittal of a Final Development Plan in connection
with each Planning Unit 1\!lasterPlan or portion thereof, Developer shall submit evidence that the
Wastewater System is adequate to satisfy all proposed uses in connection with the development of such
Planning Unit Master Pfanor portion thereof. A letter of approval shall be provided to City from the Idaho
Department of Environmental Quality and/or Central District Health, or other applicable governmental
agency, prior to issuance of any certificate of occupancy.
(f) Reimbursement. If Developer, ot Developer's cost ond expense, develops major
wastewateF-faGilities, such as Treatment Plant(s) and associated equipment (but~10c;31 serviGe
o;:s~~~r~~~~~~ ~nes) for the Project, or develops any portio.n of the Wostewoter System, which.
~ ,~ een determined by Sewer Dlstnct to benefit properties other thon the Property, or If
:~~ ~~t;~~~eq~ireS De~eloper to develop ;3 portion of the VVostewoter System in excess of that
s:: s , rv the PrOject so os to enable Sewer Dlstnct to serve other properties, Developer and
::: ~~~~~fi~ good faith, shall enter into on agreement to the effect thot 311 or 0 portion of the costs in
f ~ . G ~ ' th such excess de'lelopment of the 'Nastewater System shall be reimbursed to Developer
~~: ~~ :~ce connection charges collected from such other benefiting property owners who other.\'ise
'/ t i or contributed their proportionate share to'.'Iard development of the Waste'Nater System
twastewater Reimbursement Agreement"). Such 'Nast8\vater Reimbursement Agreement-sha\.Wla.lJe
~~duration that ends the loter of: ill 1 0 yeors following completion of the portion of the Wastewater
i~~~:fi~ E~~h reimbursement is sought; or @ when Developer has been fully ~eimbursed for costs in
tl "I development of any portion of the Wastewater System that benefits properties otheF--tRafl
~~~~:~:t. ;~~~ 'Nastewater Reimbursement Agreemen.t shall: ill provi?e, without IimitatiGn,-tflat .
t P e Developer at the then applicable muniCipal bond r3te; @ prOVIde that Sewer DlstRGt
shall charge a 1 % administrative fee for handling the accounting, auditing, and paymef1t of the
f€imbursement payments made to Developer; ilill be binding on Developer and Sewer .QistfiGt-aA4-theif
respective successors and assigns; and .l!:Yl be recorded as an encumbrance agaiR-st--tAe-gefIef+ted
property(ies). [NOT THE CITY'S JURISDICTION]
{gllfL......Wastewater User Charges. Upon transfer to Sewer District of the Waste\'Ioter
~, SeVier District shall provide sanitary sewer service to the Property sufficient to satisfy-ttle
GGAtemplated-pfesent and future domestic, municipal, commefSial. and industRal-tlemaMs-fef-saMafY
sewerserviGe-at-the--Property as and when required in connection with the develOf}meRt-of-the-P-rof)8rty;
~~~~~~t~~ ~~y ~~u;: of sanitary sewer service disruption that is outside the control of Sewor D.istrict 3nd
;;:11::1 ~..b ct 'lieI' Dlstnct's reoson3bly enocted and Imposed standord terms and condltf~~~ ~f
;:~';:;' :f:.,~: UGer Gharges e6.abl;Ghed by rewlu';o" of t~e Sewer Di.',;.' shall be ~~^~~ ~
;;I~~~~ ~ . all reflect the octuol costs of oper3t1on, m:lIntenonce, replacement, fln:::mcmg and
~;;I ;t'~;;;' s;~;e;~;;)ge in connection with the Wastewater System commensurote with occeptoble
rk actlces and as necessory to recoup the actual costs assocloted With prOViding such ~3~:,~~
se'Ner services. Sewer District Sh311 receive no sanitary sewer user ch3rges for sonitary sewer ~er./ice
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(preseRted to P 8. Z B 27 07).DOC
until, and unless, Sewer District accepts ownership of and operational responsibility for the Wastewater
System and the Developer is reimbursed for any applicable costs, after which time Sewer District-sRaJ+-De
entitled to such sanitary sewer user charges for water service. [NOT THE CITY'S JURISDICTION1
!!:!1wL_Alternate Wastewater Service. Developer aqrees to annex into the Eaqle
Sewer District and further aqrees not to seek other sewer treatment services either public or private
unless Eagle Sewer District refuses to serve the property. Developer has explored,~R9--to
ffi(plore, in conjunction viith the Master \^/astewater Study, several alternatives fOf-t.Re-provisioo.ef
sanitary sewer service for the Property, including the primary alternative of annexation of-tM-Pfe.pefty.ffi.t0
tA: ~~~~ ~;~~~~ ~nd the use of on site and off si.te waste'liater treatment facihties-aRd ultimate
~ n ,. , /' aste'N3ter Systom by Sewer Dlstnct. The P3rtles, for a penod not to exceed 36
,~th; fro~ the Effective Date, shall, in good faith, explore the fe3sibility of 3nnexation of the Property
~: ~;:r District and the use of on site and off site Treatment Facilities within Sewer District to serve
:: :~: ;:~ as proposed for development in an effort to re3ch a mutu311y agreeable 3greement in
~~~;~~~~t~ ~ii~ ~h ;~nexation 3nd the w3~te\'.'3ter System. l\ copy of such agreement, if 3ny, shaU be
~;~~:;;;; I;'/:~ ~eveloper. If Sewer Dlstnct 3nd Developer fall to reach 3greeme~ ~~ ~~ ar;e~I:
::n ';~ ;';;dJ~~; T.?~Di;;'riCI;.lh31311 effluenl generalion ic the proporty of the Project and the. uw of
:: ~t~ d=:;~~I: . r tment FaCilities Within Sewer Dlstnct to serve the Property 3S developed Within
:~~~ ~~I ~:~~;.~~e P;~i~~ .~nless such period of time is extended by Developer at Developer's sole and
;~o;l~ ~. ~ I by r 'I ng Sewer Dlstnct notice of such extension on or before the 13st day of such
~~~~~~~ ~~: ~~~i;d), then, without limitation, Developer s~311 have the right, at Developer's option, to
r I to one or more agreements for sower service from a third party provider or to create a
~~~~ru~:Zt~~~de p~~~te sanitary se'N~r system in accordance with applicable laws: In either such-eveRt,
~=;' ,~: (I) II not veto or object to the expansion of such third party proViders to serve the
~ rt ;(ii) ~h~il not protest the creation of a community wide water system; and (iii) shall take-tAe-stef}6
~~~~~~i ~.~~~i~:~.~ther third party providers to locate facilities in the rights of way held by~ef
;;:1;- " . I h tit I n, license or agreement Developer retains the nght, at De':~~~e~'8 ~~~~' to
:;i;~ 3 ~~~ ~t3ble 'N~ter ~yste~ th3t .utilize~ efflu~nt and other non pot3ble w3ter co~~~: ~~ serve
;;'~;~~~~f~~~f the Project, Includl.ng, Without Iimlt3t1on, supplYing w3ter for golf course Irrigation,
I mon are3 landscaping, 3nd storage of such non pot3ble ,....ater effluent In lakes, streams
or ponds.
iiHh} Re-use Water. The Developer is entitled to retain rights, title and interest in any
and all of its Re-use Water (for irrigation or aquifer recharge purposes) which is generated from any
Wastewater System constructed by the Developer. The City acknowledges that the-Developer will be
using the Re-use Water for irrigation of its Open Space and potentially recharging the aquifer. both of
which uses will be subject 10 IDEO approvals.
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 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.
(c) Drainage System. Following annexation and adoption of all Ordinances,
Developer, after consultation with ACHD, shall design, engineer, construct, acquire, install, permit and
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(pre&ented to P & Z II 27 (7).DOC
dedicate the Drainage System in accordance with the Master Drainage Plan and Planning Unit Master
Drainage Plans. The Drainage System shall be designed to utilize the existing washes for storm water
conveyance. In addition, 100:year storm water flows leaving the Property shall be maintained at or below
the existing peak flow rates. Storm water detention/retention basins shall be utilized to maintain the pre-
development peak flows and to accommodate the increased one hundred-year runoff volume due to
development. Minor maintenance of the Drainage System shall be conducted by Developer and/or an
Owners' Association; major maintenance of the Drainage System shall be conducted by ACHD, as shall
be further described in a mutually-agreed agreement between Developer and ACHD. The phasing of the
Project's development shall dictate the timing and location of the Drainage System components. Upon
dedication of any phase of the Drainage System to ACHD, Developer shall provide ACHD with all
applicable as-built drawings, operation and maintenance manuals and operation records.
(d) Planning Unit Master Drainage Plan. A detailed analysis of the Drainage
System for each Planning Unit shall be completed with the submission to ACHD of a Planning Unit
Master Drainage Plan that conforms to the Master Drainage Plan and the Master Drainage Study.
In connection with such Planning Unit Master Drainage Plan planning, Developer shall establish the
applicable 100-year floodpl3in ::md 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. The 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.
(e) Assured Drainage. In connection with each Planning Unit Master Drainage
Plan, andb8forec;.Qflcur.L<:!El~y~v.1b.Jb.~ submittal of a Final Development Plan in connection with each
Planning Unit MasterP\anor 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 ~\!la;;tei
pjanor portion thereofasrequlFed by th;s Agreernent.
(f) Reimbul'8ement. If Developer, 3t Developer's cost and expense, develops any
~:t~: ~;~~:~ge System, which development reasonably has been determiReG-Gy-AGMG-te-beflefit
~o~::: h 0 . the Property, or If ^CHD requires Developer to develop 3 POrtIO~ o~~~~ ~I~~~:
~~:~~~ ~~~~~~~~h~~ ::ss~ry to serve the. Project so as to enable ACHD to s:r~~~:h::~.~P~~~~~'
=1: r oct.. faith, Sh311 enter Into on agreement to the effect that 311 or ~ ~~~ ~ tl:1e
~;;'" ~~ ~~~cti;~ with such development of the Drainage System Sh311 be reimbursed to Developer
~~:~I ~~~~~~~~~~~~g~S ~ollect.ed from such other benefited property owners who otherwi~e h3ve not
t e 13 oportlon3te share toward development of the Dr3lnage Syste,:, ~ '~~:~.age
::,-:~:.:::;t ~~.m.RI.). Such Drainage Reimtlurcement P,groement shall hay. a durati~ Illat
::: ::= ~o: 0 . years follOWing completion of the portion of the Drainage System for v:hlch
~~::~~~;~~~~' i~ S?~g:~; ~r ~ when ~eveloper has been full~ reimbursed for costs in connec.tion with
~~:;;~. . f ny 0 0 e he Drainage System th3t benefits properties other than the PrOject. Such
~e~~~ ~~~i~~~j~ment ~greement.s~all: ..ill provide,.v/ithout limitation, that interest be paid to
f:} t n applicable mUnicipal bond rate; {ill proVide th3t ,l\CHD shall charge a 1 %
~~~~:~~~ f:~~~~a~ling the accounting, auditing, and payment of. the reimbursement payments.te
e' ; be binding on Developer and ACHD and their respective successors and
assigns; and iJY.l be recorded as an encumbrance against the benefited property(ies).[NOT IN THE
CITY'S JURISDICTION.l
2.5 Public Facilities.
(a) Police. Police protection is provided to City by the Sheriff of Ada County
(USherlff") 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 and adoption of all Ordinances, Developer shall contribute
one site (not to exceed 1 acre) for the construction of a police station in accordance with the Master
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(presented to P & Z 8 27 07).DOC
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 M3 Eagle, 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 its proportionate share of funds in connection with construction of such site and facility, but
not to exceed $1,000,000. Any contribution by Developer shall be contingent upon: (i) review and
approval of construction budgets not to be unreosonably withheld; (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.
(b) Fire and Emergency Services. Fire and emergency services are now provided
to City by Eagle Fire District and Star Fire District (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 community-wide 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 both Star and Eagle 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 Districts. Following
annexation and adoption of all Ordinances, Developer shall contribute! 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 subsection 2.5(a) above) for the construction of tJ]g fire station in accordance with the Master Public
Facilities Plan, attached as Exhibit K, which defines a general location. The final location is subject to
M3 Eagle, 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 its proportionate share of funds in connection
with construction of such site and facility, not to exceed $1,000,000. Any contribution by Developer shall
be contingent upon: (i) review and approval of construction budgets not to be unreosonably withheld;
(ii) 180 days notice provided to Developer by City or the Sheriff Fire District: 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.
(c) Schools. Public education is provided by 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. I:
ttJ:S'J0.9tl:1':;:JQ.9YJ!J..QO.S',QLDJ.QL~5_(;1'..c..QgJ.?.~~Qm;JrLJ.~:JE:g!2.Y..;:;.(;hQQU11~t flc,;t,QI, tl]~.PxoP to.rty .... Developer
generilllY...has identified potential school sites within the Project, as depicted on the Master 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 ~J::!fLQ.locationancl:?ill?<;:ifiQ..number of the school sites
be subject to approval by M3 Eagle 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. [Is M3 still Qoinq to build the first school.]
Following annexation and adoption of all Ordinances, 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
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(presented to P & Z 8 27 07).OOC
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
~jr,ilj(:ci(ln(j contain the acreage needed to locate a public school or schools within the Property
consistent with the typical acreage for such schools presently found in School District. The final number
of school sites, the type of schools and their locations shall be identified in the appropriate Planning Unit
Master Plan. Developer shall identify the site(s) on a plat or scaled drawing at the time the site(s) is
offered to School District. If School District does not accept the offered site(s) within 2 years of the
original offer, the offer shall terminate and Developer shall have no further obligation to offer property to
School District thereafter. Design of any school and school grounds shall be consistent with the EASD
and the Design Guidelines, and shall be reviewed for approval by Developer. Notwithstanding the above,
Developer may also provide sites for private school facilities which mayor may not affect the number of
public school sites needed on the Property in connection with the Project.
(d) Library and Other Municipal Services. Library and other municipal services
presently are provided by City. City shall provide library and such other municipal services to the
Property on the same basis as is provided to other residents and businesses within City. The Eagle
Public Library Strategic Plan, FY 2005/06 to FY 2009/10, adopted by City Council in 2005, plans for City
to secure a West End branch library site in FY 2009/10. Developer shall offer to City up to a four-acre
site (subject to actual needs and based upon an approved site plan) for donation to City, with utilities
stubbed, or to be stubbed, to such site to accommodate the development of the type of library and other
municipal services necessary to serve the community at a location to be mutually agreed upon between
City and Developer, or the-Developer shall have the right to incorporate the space necessary to
accommodate these uses into buildings geffig-built by the-Developer within the Village Core. Property
As of the Effective Date, it is planned that such site would be located within the
Community Core Planninq Area. Design of any library shall be consistent with the EASD and the Design
Guidelines, and shall be reviewed for approval by Developer.
2.6 Parks, Trails and Open Space.
(a) Master Parks, Trails and Open Space Plan. The Project will contain Open
Space, totaling a gross minimum acreaqe of ~O% of the Project area, to meet a variety of active and
passive recreational needs. In addition, each Planning Area shall contain a minimum of 15% of its total
gross acres as open Space. A Master Parks, Trails and Open Space Plan for the Project is shown on
Exhibits L, which depicts the intent to link neighborhoods and Planning Areas to various common areas
and recreational uses. The pathways and trails will be within and through Planning Areas and may be
located along open space corridors and near or adjacent to community streets and roads. Pathways and
trails may also utilize drainage ways and dry gulches between common areas and neighborhoods or may
be combined with the drainage system for the Project. The parks and trails shown on Exhibit L will be
either (i) owned by the Owners' Association~ owned by City. Developer will submit to tJ::le-City a
more detailed Master Parks, Trails and Open Space Plan onorbBfof€C;;9JJS;lj.LCQi1tIL'JVI:I:IXJt? submittal of
the FJ:1.i!LQQ\LQiQPJJJfntEJgLfQIJf}f,'Jirst Planning Unit Master Plan or portion thereof.
(b) Planning Unit Master Parks, Trails and Open Space Plan. A Planning Unit
Master Parks, Trails and Open Space Plan shall be submitted as part of the Planning Unit Master Plan
that generally conforms to the Master Parks, Trails and Open Space Plan.
(c) Eagle Regional Park and Willow Creek Open Space Corridor. City has
applied to acquire 1,915 acres of BlM lands for the proposed Eagle Regional Park, which 1,915 acres
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(presented to P &. Z 8 27 07).DOC
are contiguous to the southern border of the Project. The purpose of the City's acquisition of BlM lands
is to create ef-a regional park that would preserve open space in the vicinity for trails and other
recreational enjoyment, buffer neighboring properties, and create and/or improve wildlife habitat by
providing a wildlife mitigation corridor in and through the vicinity. Subject to (i) City completing City's
acquisition of BlM lands~ (ii) annexation of the Project and adoption of all of the Ordinances~ and
(iii) failure of tJ::le-Developer to complete the BlM Exchange as described below in paragraph (d)
Developer will donate approximately 800 acres of private land to City, as set forth in exhibit p~, which
when combined with the City BlM lands, will create the Eagle Regional Park totaling 2,715 acres. Those
800 acres contain important wildlife habitat and vegetative communities and are located adjacent to that
portion of the Project planned for low-density residential neighborhoods and open space. The two
portions of the Park (that is the 1,915 acres and the 800 acres) would be connected by open space at
least 100 feet in width. In addition, Developer will create a tract to be maintained by the Owners'
Association of approximately 80 acres of private land as part of the Willow Creek Open Space Corridor.
Developer will work with and assist City on itS.City'S planning of the Park and Open Space Corridor with
such improvements as trailheads, trails, lookouts and fencing along this boundary, including providing, at
no expense to City, underlying topographical data, planning data and biological and wildlife studies. Any
lands donated to City for the regional park shall be donated at fair market value by Developer and shall
not be accounted for as part of the Open Space requirements for the Project.
(d) BLM Exchange. In an attempt to prevent fraqmentatlon of open sNCC~The
Developer has filed a request with BlM to exchange approximately BOO_acres of its-Developer's
lands for tM-815 acres of BlM lands. The exchange would be subject to BlM designating the M3 Eagle
..__acres as open space. The Partlf,'S ac~.oowlecig~J-,t]~"?..QP..Lqis~~.<ilLJ~9..Ltt}~-Q~Y~lQJ2~r:g.'t!.[l~g
.."...E.QL~? m9.LQ~.J(~,~o$ than the appraised vaILJ~-9i. theJ2lh'l-owned 815 aC[~s I n thsU~..vEntJhe f?1c..M=
9~il~.9 815 acres is ?Rr.'LsU?f~::j at ali.lgher value than the Dev~JQQer"owD.s(L_......EQr~~.DevS'l()P.ELs~h.aJl
inc.LLL@additional. contiquous acres of Developer-owned landyi:tLi suct.'.........._~? to b..dD.gJ..ll~EP..Qr?'?e,Q
y.SlI~Je of the Developer-owned lands to rouqhly the appraised value of the BLM-owned 81~?g~_?-,__ln the
event that the exchange is completed, the 815 acres presently owned by BLM would become Additional
Property as defined herein and become a part of the Highway Mixed=Use/Business Park Planning Area
upon receiving the appropriate approvals from the City. In the event that the BlM exchange is not
completed within 10 years from the date of this Agreement, Developer will donate the gOO ___acres to
City. The M3 Eagle 800..._acres will be available for public use during the pending exchange as if it
were a part of the Eagle Regional Park. The City agrees that it will reasonably cooperate as necessary to
accommodate this transaction.
(e) Reimbursement. If Developer, at Developer's cost and expense, develops any
portion of Developer's land for public park(s), public open space, regional trails or publicly dedicated
equestrian center or contributes to the improvements to the Eagle Regional Park, City, upon approval of
the improvement costs ("Approved Park Costs"), shall either credit or reimburse Developer from park
impact fees collected at the time of a building permit (or similar funding mechanisms) from each home
that is permitted within the Project ("M3 Eagle Park Impact Fees") until such time as Developer is paid in
full for such Approved Park Costs. City and Developer shall work to mutually track such Approved Park
Costs and receipt and repayment of the M3 Eagle Park Impact Fees on a quarterly basis ("Park
Reimbursement Agreement"). Such Park Reimbursement Agreement shall have a duration that-eOOs
the later of: ill 1 0 years following completion of the portion of the applicable Park System for which
reimbursement is sought~~ or ill} when Developer has been fully reimbursed for costs in connection with
development of any portion of the applicable Park System that benefits properties other than the Project.
Such Park Reimbursement Agreement shall: ill provide, without limitation, that interest be paid to
Developer at the then applicable municipal bond rate; ill} provide that City shall charge a 1 %
administrative fee for handling the accounting, auditing, and payment of the reimbursement payments to
be made to Developer; illll be binding on Developer and City and their respective successors and
assigns; and llYl be recorded as an encumbrance against the benefited property(ies). As an alternative
to the reimbursement of Approved Park Costs, City and Developer may enter into an agreement whereby
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Developer is credited for park impact fees if Developer develops any of the park, open space or trail
improvements listed above within a timeframe acceptable to City.
(I) Maintenance of Regional Open Space. The Developer acknowledges the
significance of the public regional open space being created in the foothills and agrees to cooperate with
tJ::le-City to establish an ongoing funding mechanism which is applicable to all residential and non:
residential lands, homes or buildings within City limits and aqrees to impose a %25 transfer feed per lot
sold or resold in the Property to be placed in a dedicated fund for the operation and maintenance of the
parks, pathways, trails and open space on the property. This funding mechanism shall nOf-ge-berAe
~by this Project f-or the benefit of any lands owned by the City or any conservation agency-er-greup
appointed by the City as stewards for its lands.
(g) Mutual Cooperation. City and Developer shall each use all good faith efforts to
support each and every exchange of lands between Developer and BLM and/or City and BLM.
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 PUDStandards Qeslqn GUldellilesand 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.
(b) Slgnage. Signage shall be coordinated throughout the entire Property, with
different areas within a Planning Unit Master Plan 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.
(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.
(d) Mitigation Plans. Mitigation Plans that address development within Constrained
Lands shall by submitted by Developer for approval by City. City may coordinate, cooperate, and consult
with other agencies for the review of the mitigation plans, but such agencies shall not have approval
authority over the plans. The Base Density (Pre-Mitigation) 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 Effective Date and following annexation and publication of all
of the Ordinances, 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 naitve and existinq plant cover to
maintain as much habitat for qame and non-qame wildlife as possible. in compliance 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
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(presented to P & Z 8 27 07).DOC
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 upon
and completion of such construction, repair or maintenance. To the extent permitted by law and subject
to obtaining an encroachment permit from City (or other applicable governmental jurisdiction), the prior
dedication of any easements or rights-of-way shall not affect or proscribe Developer's right to construct,
install, and/or provide Public Infrastructure thereon or thereover. City, as necessary to implement the
installation of Public Infrastructure, shall cooperate reasonably with and assist in: (a) the abandonment of
any unnecessary public rights-of-way or easements currently located on the Property and not otherwise
used or required by other members of the public; (b) the acquisition and/or condemnation of any
necessary public rights-of-way or easements not currently located on the Property and required to be
consistent with the Planning Unit Master Plans or provide access to the Property pursuant to the Planning
Unit Master Plans; and (c) submitting requests or filing applications, or entering into intergovernmental
agreements with appropriate governmental entities regarding the abandonment or acquisition of public
rights-of-way or easements necessary to develop the Property.
2.9 Infrastructure Assurance. It shall be a condition to the issuance of a building permit or
permits that City shall have been provided with assurance of adequate infrastructure in accordance with
City's existing policies for the amount of such assurances. The Infrastructure Assurance(s) shall be
reduced accordingly as construction of the infrastructure subject to such assurance is completed. Within
20 days from City's approval of the particular completed Public Infrastructure for which City has required
and Developer has provided Infrastructure Assurance, City shall release (or, in the case of a letter of
credit, accept a substitute letter of credit) such assurance, in whole or in part as may be appropriate
under the circumstances.
:.t10De'.'elopment Fee Credit; Reimbursement. Notwithstanding anytl+ing-to-the--GOOtrary--hefeH+;
tM-f4.IDHG-.lnfrastructure to be provided by Developer shall confer a benefit-Grl-the-Property..an4,..ffi-certam
instances, may confer a benefit on land areas outside the Property. In recognition of Sl:lGh-OeReHts-l:~-the
P-roperty, City (or other applicable governmental entity with jurisdiction over any portion Gf...tj:H;~-POOiG
Infrastructure) shall take into account and credit Developer dollar for dollar against the sum-total-.of-all
development fees, now existing or adopted by City (or other applicable governmental entity with
jurisdiction over any portion of the Public Infrastructure) in the future, owed by Developer or anticipated
builders/residents on the Property. Such credit shall equal the sum of all costs associated with
~o~;tructing, acquiring, and/or installing the Public Infrastructure, including, v.'ithout limitation, costs for
design, engineering, surveying, permits, taxes, fees, bonds, labor, moteriols, land ond construction
administration. Any credits shall be freely assignable by Developer. Developer and City (or other
;p~Ii~;bie government-31 entity with jurisdiction over ony portion of the Public Infrastructure) shall compute
the credits outstanding on a quarterly basis. Alternotively, ot Developer's sole election, City (or other
~~P~:b~~overnmental entity with jurisdiction over any portion of the Public Infrastructure) shall collect
v pet fees from de'lelopment on the Property ond reimburse to Developer such fees as would
otherwise have been the subject of credits.
In recognition of such benefits to lond areas outside of the Property, City (or other applicable
governmental entity with jurisdiction over ony portion of the Public Infrastructure) sholl take into occount
and reimburse Developer dollar for dollar against the sum totol of all of Developer's costs and expenses
~~~:~~ed ~/ith constr~cting, a~quiring, and/or !nstalling such Public Infrastructure, includin~, without
,I.a ,c sts f{)r deSign, engineering, surveYing, permits, taxes, fees, bonds, labor, materials, land ~lnd
~~:~~~i.: ~~ministration in connection ~/ith Public Infrastructure benefiting such .other land areas. Any
nib sements may be freely aSSignable by Developer. Developer and City (or other applicable
~~v;~~mcnt31 entity with jurisdiction over any portion of the Public Infr3structure) Sh311 compute the
reimbursement outstanding on a quarterly basis. This section shall survive the ter-minatieA--Gf-this
Agreement-
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(pre&ented to P & Z 827 07),DOC
3. REGULATION OF DEVELOPMENT.
3.1 Regulation of Development.
(a) Applicable Rules. The ordinances, rules, regulations, permit requirements,
development fees, other infrastructure fees, exactions, other requirements, and/or official policies
however denominated, applicable to and governing the development of the Property shall be those that
are existing and in force as of the Date of Application, as may be mutually amended by this Agreement.
City shall not amend this Agreement without written appro'/al of Developer ::md the Owners' Association
Except as otherwise expressly provided in this Agreement, City shall not impose or enact any additional
conditions, zoning or other exactions, requirements, dedications, development or other fees, rules or
regulations applicable to or governing the development of the Property, including any requirement for the
dedication of land or property, or the payment of fees or money for the planning, design, engineering,
construction, acquisition, improvement, or provision of Public Infrastructure to lessen, offset, mitigate, or
compensate for the burdens of the development of the Property on City, City having acknowledged that
all such burdens have been considered and are adequately accounted for by the conditions to
development of the Property set forth in this Agreement.
(b) Permissible Additions to the Applicable Rules. Except as otherwise provided
in this AqreementNot\vithstanding the provisions of subsection (a) above, City may enact the following
provisions, and take the following actions, which shall be applicable to and binding on the development of
the Property~~ provided, hO'Never, City shall use City's best efforts to alleviate any adverse mateAffi
impacts to development of the Property associated with such actions and shall provide Gev~-with-aR
epportunity to suggest methods of enacting and implementing such provisions to the Pr~
(i) future land use ordinances, rules, regulations, permit requirements, other
requirements and official policies of City that are consistent with the express provisions of
this Agreement, and not contrary to the existing land use regulations applicable to and
governing the development of the Property, provided that such land use ordinances,
rules, regulations, permit requirements, other requirements, and official policies shall, to
the extent applicable, not involve the modification of any factual determinations of City
memorialized in this Agreement and shall not materially impair Developer's ability to
develop the Property in the manner provided in this Agreement;
(ii) other future land use ordinances, rules, regulations, permit requirements,
development fees, other requirements, and/or official policies that Developer may agree,
in writing apply to the development of the Property;
(iii) future land use ordinances, rules, regulations, permit requirements, other
requirements and official policies of City enacted as necessary to comply with mandatory
requirements imposed on City by state or federal laws and regulations, court decisions,
and other similar superior external authorities beyond the control of City; provided,
however, that in the event any such mandatory requirement prevents or precludes
compliance with this Agreement, such affected provisions of this Agreement shall be
modified as may be necessary to achieve the minimum permissible variance from the
terms of this Agreement in order to achieve compliance with such mandatory
requirement. To the extent such compliance requires any discretionary factual
determination by City, such determinations shall be consistent with City's findings
memorialized in this Agreement;
(iv) future land use and other ordinances, rules, regulations, permit
requirements, other requirements and official policies of City of uniform application
throughout City and reasonably necessary to alleviate legitimate threats to public health
and safety, provided that such land use ordinances, rules, regulations, permit
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requirements, other requirements and official policies shall, to the extent applicable, not
involve the modification of any material factual determinations of City memorialized in this
Agreement; and
(v) future updates of, and amendments to, existing building, plumbing,
mechanical, electrical, dangerous buildings, drainage, and similar construction and safety
related codes, such as the Uniform Building Code, which updates and amendments are
generated by a nationally recognized construction/safety organization, such as the
International Conference of Building Officials, or by the state or federal governments.
(c) Effect of Future Laws. In the event state or federal laws or regulations are
enacted after the Date of Application and/or the decisions are issued by a court of competent jurisdiction
which prevent or preclude compliance with one or more provisions of this Agreement (individually or
collectively, "New Law"), the provisions of this Agreement shall be modified or suspended as may be
necessary to comply with such New Law. ImmediatelyAs soon as reasonably necessary. after enactment
of any such New Law, Developer and City shall meet and confer in good faith in order to agree upon such
modification or suspension or challenge to such New Law based on the effect such New Law would have
on the purposes and intent of this Agreement. During the time that the Parties are conferring on such
modification or suspension or challenge to the New Law, the parties may take reasonable action to
comply with such New Law. Should the Parties be unable to agree to a modification or suspension, either
may petition a court of competent jurisdiction for an appropriate modification or suspension of this
Agreement. In addition, Developer and City each or together shall have the right to challenge the New
Law preventing compliance with the terms of this Agreement. In the event that such challenge is
successful, this Agreement shall remain unmodified and in full force and effect.
Nothing in this Agreement shall be interpreted as relieving Developer of any obligation that Developer
may have, either currently or in the future, to comply with all applicable governmental rules and
regulations enacted by entities other than City that apply to the Property, provided that, to the extent such
compliance involves factual findings or discretionary determinations by City, all such findings and/or
discretionary determinations shall be consistent with City's findings and determinations memorialized in
this Agreement.
3.2 Amendment. City and Developer acknowledge that amendments to this Agreement may
be necessary or appropriate from time to time~. When the Parties agree that an amendment is necessary
or appropriate, the Parties shall, unless otherv:ise required by applicable law as established in this
Agroement or by state or federal statute, effectuate minor amendments, described below, administratively
approved by the Zoning Administrator. Such amendments, after execution, shall be attached to this
Agreement as an addendum and become a part thereof. The approval of such minor amendments shall
not necessitate f-o rm::l I amendment of this Agreement. but shall be retained in City's official file for the
Property. All ~amendments, described below, to this Agreement shall be reviewed by the P & Z
Commission and approved by City Council in accord with the notice and hearing procedures of Eagle City
Code. The Parties shall cooperate in good faith to agree upon and use reasonable efforts to process any
minor or major amendments to this Agreement.
The f-ollowing are major amendments:
(HA change to any of the ::Ipproved land use design::ltions ::IS guided by the M3
Eagle Sub /\rea Plan, and/or as provided in the Development Plan, the Zoning
Ordinonce, the PUD St::lndords or this Agreement.
W1UL__/\ny substantial alteration to tho list of permitted uses of the Property set
forth in the Development PI3nPUD St3nd::lrds and/or this /\groemont ond os rooson3bly
deemed to be substantial by the Administrator.
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(presented to P & Z 827 07).DOC
(;j,)An increase in the Maximum Density or Maximum Planning Area-Gefl6i.t.y;
{iv/Modification to the Development Plan or this Agreement to comply with
amendments to the Zoning Ordin3nce or any future ordinance adopted by City 3fter the
Date of Application, as and if applicable.
(v)Amendment of the Project or any Planning Areas to include Additional lands.
The follO\ving are minor 3mendments:
{i)Any-minor alteration to the list of permitted uses-ef...tl::le.-P.f~y--set-fofth.iA-the
Development PlanPUD Standards or this Agreement, as reasonably deemed to be I1'IffiGf
by the Zoning Administrator.
{,j)Any ~allocation of residential density or commercial acreage between
Planning Areas or Planning Unit Master Plan(s) so long as the Maximum Planning Area
Density or Maximum Density allowed per this Agreement is not exseeGe4
3.3 No Moratorium. For the Term of this Agreement, no moratorium, future o~
:so~~~~~~ther land use rule or regulation imposing a Iimit3tion on the development or the rate, timing
s of the development, of the Property or any portion thereof shall apply to or govern the
Ge~~~n~;~t ~~.~: :roperty whether affecting land use permits, subdi~ision plats, building permits;. .
oc e I r other entitlements to use Issued or granted by City, except as otherwise provlcled-ffi
this Agreement. Nothing in this section shall prohibit City from withholding the issuanGe4GeFti.f~Gate8.-o.f
~ for a structure to be occupied if the Public Infrastructure improvements set forth in-tA-is
Agreement, Planning Unit Master Plans, and Final Development Plans required to serve-the-~Ie
~f-tI:le Property on 'Nhich a structure to be occupied is to be located are not in place priGr-te
occup3tion of such structure.
3,AChanges to Zoning, PUD Standards and Development Proqram. For the Term of this Agreement, City
shall not initiate any changes or modifications to the PUD Standards or the zoning designations
applicable to the Property, except at the request of the owner of the portion of the Property for which such
change is sought. Any such request for change shall be processed in the manner then set forth By Eaqle
City Code or applicable law.in the PUD Stand3rds or the Zoning Ordin3nce for 3mendments. Any
~~~~~~ ~r :itfications to the PUD Stand.ards, or this Agreement or the zoning or 13nd use d:.~~~t~~s
I It' part of the Property In which Developer h3S 3 real property Interest that are Inltl3tcd by
City shall become effective only upon Developer's written consent. Nothing in this section shall be
deemed to require City approval of requested changes to the zoning or land use designations applicable
to this Property after adoption and publication of all of the Ordinances. City Sh311 not t3ke ony 3ction
without the 3pprov31 of Developer to reduce or increase the Maximum Density. The approval of any
Planning Unit Master Plan(s) or Final Development Plan(s) which contain less density than is allocated to
that Planning Unit Master Plan shall not have the effect of reducing the Project's overall Maximum
Density but Developer shall be able to reallocate such density in accordance with this Agreement.
3J1Vested Rights. For the Term of this Agreement, Developer sholl h3ve a vested right to
~~~~~~p ~:~ ~;~perty !n 3ccord3nc~ with th!s A.greement, the M3 E3gle Sub Areo PI3n 3nd/or the Zoning
;=~r:;' h1s section Sh311 survive termination of thiS Agreement. The determlnotlons of City
;;; ~~~~j~~~~ :~~: Ag~eement: together wit.h the a~sura~ces provided to De'/eloper in this Agreement,
;~~.. , ~ n, a e bargolned for and In conslderotlon for the undertakings of Developer set forth
~~;~I ~~~ ~o~:mPlated by t~is Agr~ement, and 3re intended to be and have been relied upon by
'I t 'eloper's detriment In undertaking the obligations of Developer under thIS Agreement.
4. ALTERNATIVES FOR FINANCING INFRASTRUCTURE IMPROVEMENTS.
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4.1City Obtains Additional Funds. If City, alone or in conjunction '.'lith other public bodies,
obtains State, federal or other funds specifically designated for the planning, de6ign,€-Agffieefffi~h
construction, installation, acquisition, or provision of any portion of the Public Infrastructure, including
Public Infrastructure that is within the jurisdiction of the State, ACHD, or public bodies either together with
or independent of City, such funds (and/or land, if applicable) shall be applied to, or made available for,
the planning, design, engineering, construction, acquisition, installation and/or provision (as applicable) of
such Public Infrastructure. [CAN'T BIND FUTURE CITY COUNCILS RE: APPROPRIATIONS.l
4,2Publit: Financing Districts. Upon Developer's 'Nritten request, City shall favorably consider
approV~1 of the formation of one or more community infrastructure districts or service-ar-eas, as maybe,
fro~ ti e to time, authorized by state statute for the purpose of financing the cost of construction of all Of
any portion of the public infrastructure improvements for the development of the Project (a6 such
community infrastructure improvements are defined or described in such state statute) (any such district,
service area or other source of development financing being referred to hereinafter as an "Alternative
Fi~~~~i;gvehiCle") if, and only if, City shall have reasonably determined that: (i) the participation of City
~a~~ ~~ter~~~ve Financing Vehicle will no.t hav.e an ~dverse. effect upon City, including City's bonding
c t '; (I e obligations of the Alternative Financing Vehicle '1.'111 not constitute general obligations of
City or a lien on any revenues or other assets of City; and (iji) City will not incur any significant
;dm;;i~r;tive obligations in connection with the ongoing operations of the Alternative Financing Vehicle,
with City agreeing, to the maximum extent permissible under applic3ble law, to governance of the
Alternative Financing Vehicle as set forth in the state statute.
4.:lmpact Fees. City shall use good faith efforts to develop impact fees for capital improvements
~ff~t~nt~~~~ ~ith public f3cilitje~ such as, without limitation, the \~Vater System.. City shall use good faith
9. ~ r Into one or more Intergovernmental agreements With publiC service prOViders as may be
fr~; ti~e -to time authorized by state statute in connection with the imposition and collection of impact
fee&.
5. PROJECT GOVERNANCE.
5.1 Governance Entities. Developer shall create appropriate entities including, without
limitation, a non-profit Owners' Association, and record CC&Rs consistent with this Agreement which bind
all present and future owners within the Project and provide for the perpetual support and maintenance of
the Project's governance entities, processes and common areas and to establish quality control
throughout the Property both during development and during maturing of the community after the last
house is built. A conceptual outline of the CC&Rs for the Project is attached as Exhibit N. Developer
shall provide City with a draft set of CC&Rs submittal of the Final
Development Plan for the first Planning UnH-fv'lasterPlan or portion thereof.
5.2 PUD Standards Enforceable planninq standards shall be applicable to all development
\lIdt0nJtl~..PLQQ~!:!Y"--LtJclu9lD.9- bOJ.h new 9gn?tructiQI1 and later modifications The~fl~.El..~1~me.o~JQJ2~
i~Qgressed In the PUD Stan<lSl.LC;!$ for the Proiect are deSCribed in Exhibit D Th~ PUD ;3taodard..?_shailJ2g:
cJ..lli..tll.!.9J!9J.b.9 ldL1J.9.l!~jQ9thilis area that comprises the Project, and shall meetand enhanCEL!ll~"'p_llQ
Standards set forth in City Code. Chapter 6. and shall be reviewed by the P & Z ~omJDi~".IQ.Q3_fl9
ill2Qroved bV the City Council in accord with the notice and hearinq procedures of Eagle City-Code ~
event of any conflicts between the PUD Standards and the City Code. Chapter 6. th~ PUD Standards
shall prevail Developer shall provide City with a draft set of PUD Standards within 18 months of the
EJfe~:t!v~?J201~of this Aqreement. The final PUD Standards shall be approved bv City ill cor~rH.tct:,J: '/..:t'
U1C1FI"}"lU2:~Y1?lqp!m~mE!5~r:.fouhe JJr:?..LEiannlfill. Unit QLpqrti,'211til'2:LeClf [NEED TO CALL THIS
SOMETHING ELSEl
5.3 Design Guidelines. Enforceable planning, engineering, architectural and landscape
design guidelines, including, without limitation, mass grading guidelines and water conservation
techniques, shall be applicable to all development within the unique foothills area that comprises the
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Property, including both new construction and later modifications. The general elements to be addressed
in the Design Guidelines for the Project are described in Exhibit O~. The Design Guidelines shall be
distinct to the Project, but shall meet and enhance the design standards set forth in the EASD and City
Code, Section 8-2A-5 and shall be reviewed by the Design Review Board PI~~QrJ.QJ.GY.I~~\IQYJbq.E(x?
C::Qm:n~.~lQ.r.land approved by the City Council in accord with the notice and hearing procedures of Eagle
City Code. 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. Developer shall provide City with a draft set of
Design Guidelines within 18 months of the this Agreement. The final Design
Guidelines shall be approved by City on or before
for the first Planning Unit for the Projeotqf pqrtHin thereof. [Need NBS to
review].
6. COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION.
6.1 Appointment of Representatives. To further the commitment of the Parties to
cooperate in the implementation of this Agreement, City shall designate and appoint a City
Representative and Developer shall designate and appoint a Developer Representative. City or
Developer may change their respective Representative at any time, but each Party shall have a current
active Representative appointed for discussion and review as further detailed in this Agreement. The
Representatives shall be available at all reasonable times to discuss and review the performance of the
Parties to this Agreement and the development of the Property pursuant to the approved PUD Standards
~l~SLR_~?I.grr G.\J.lQ.elines. The Representatives may recommend amendments to this Agreement which
may be agreed upon by the Parties.
6.2 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.
6.3 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.
6.4Expedited City Decisions. City shall review all decisions and/or approvals (even prior to
annex3tion of the Project) by applicable governmental entities in connection with dovelopment of the
Project. City acknowledges the necessity for expeditious review by City of &uch decisions and/or
approvals by such governmental entities and expeditious review of all Submitted Materials. Developer
must be able to proceed rapidly with the development of the Property and th3t, accordingly, an expedited
City review and land development and construction inspection proce&& is necessary. Accordingly, if at
any time Developer reasonably believes that 3n impasse has been reached with City &taff on any issue
affecting the Property, Developer shall have the right to immediately appeal to City Council for an
expedited decision pursuant to this section. Developer recognizes that staffing changes and empkl.yee
workloads may make the timeframes detailed in this section impractical; provided, however, too
timeframes set forth in this section shall be adheFed to as closely as is ~GHGa+-under the circum&taflCe&,
elft-faiJ.ufe.to adhere strictly to such timeframes shall not constitute a default under--this-A9feeffien-t.
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(presented to P & Z !l 27 07).DOC
If the issue on which an impasse has been reached is an issue where a final decision can be
reached by City staff, City Council shall give Developer a final decision 'Nithin 15 days after Developer's
request for an expedited decision. If the issue on which an impasse has been reached is one where a
final decision requires :3ction by City Council, City Council sh:311 be responsible for scheduling a City
Council hearing on the issue within 15 days after Developer's request for an expedited docision; provided,
however, th:3t if the issue is appropriate for review by City's Planning & Zoning Commission, the matter
shall be submitted to the Planning & Zoning Commission, first (within such 15 d:3Ys), :3nd then to City
C~~nCil. Both P:3rties sh:311 continue to use reason:3ble good fJith efforts to resolve any imp3sse pending
:3 'J ~~~h expedited decision. Notwithstanding anything contained herein to the contrary, in the event City
does n~t have a sufficient number of personnel to implement the expedited development review process
~ih: .~~p~dited land development and. construction inspection services,. Developer m3Y elect to. pay the
L I ~u 'ed by City for such private, Independent consultants and :3dvlsors which may be retained by
~t~, ~~ ~~CeSS3ry, to :3ssist City in the revie'N and/or inspection process; provided, however, that such
ns I a s shall take instructions from, be controlled by, and be responsible to, City and not Developer.
6.5M.........Fees. Except as set forth in this Agreement, no new, increased or additional impact or
development fees or costs may be imposed by City regarding the development of the Project.
~Ai6.5 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 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 revert to the A-R (Agricultural-Residential) zoning designation.
!!.I~&..._Dlspute 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 mediators. 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.
(b) Hearing. The Parties have structured this dispute resolution process with the
goal of providing for the prompt and efficient resolution of all disputes falling within the purview of this
process. The hearing of any dispute shall commence as soon as practicable, but in no event later than
30 days after selection of the mediator. This deadline can be extended only with the consent of both
Parties, or by decision of the panel upon a showing of emergency circumstances. Proceedings shall be
under the control of the mediator and as informal as practicable. The mediator shall determine the nature
and scope of discovery, if any, and the manner of presentation of relevant evidence consistent with the
deadlines provided herein, and the Parties' objective that disputes be resolved in a prompt and efficient
manner. No discovery may be had of privileged materials or information. In order to effectuate the
Parties' goals, the hearing, once commenced, shall proceed from business day to business day until
concluded, absent a showing of emergency circumstances. The mediator shall, within 15 days from the
conclusion of any hearing, issue its decision. The decision shall be rendered in accordance with the
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Agreement and the laws of the State of Idaho. If those receiving a request for mediation fail to appoint a
mediator within the time above specified, or if the two mediators so selected cannot agree on the
selection of a third mediator within the time above specified, or if the result of such mediation is
unsatisfactory to one or more Parties, then any Party may avail itself of any legal or equitable remedy
available under Idaho law.
(c)
mediation process.
Fees. Each Party shall pay one-half of all fees and costs associated with the
(d) Condemnation. The process and remedies set forth herein shall not apply to an
action to condemn or acquire by inverse condemnation all or any portion of the Property, and in the event
of any such action, Developer shall have all rights and remedies available to it at law or in equity.
~.$,!~~1..... Prevailing Party. If..e+tMf-J.)afty.-.&l1aU-4ef.ayIt-hel:eURGef-Clff~fay.lt-is-GUfeG-witR
the assistance of an attorney (acting as other than mediator) for either p3rty and before the cost of a suit
te~~, a~ ~ p3rt of curing such default, the reasonable attorneys' fees and direct our! of pocket costs
. c db' he non defaulting party shall be reimbursed to the non defaulting party upon dem3nd. In the
event that either party to this Agreement shall file suit or action at law or equity to interpret or enforce this
Agreement, the unsuccessful party to such litigation agrees to pay to the prevailing party all costs and
expenses including reasonable attorneys' fees incurred by the prevailing party. Similarly, all fees and
costs associated with an appeal to any appellate court thereafter, including, without limitation, the
prevailing Party's attorneys' fees, shall be paid by the non-prevailing party.
7. NOTICES AND FILINGS.
7.1 Manner of Serving. All notices, filings, consents, approvals and other communications
provided for herein or delivered in connection herewith shall be validly delivered, filed, made, or served if
in writing and delivered personally or delivered by a nationally recognized overnight courier or sent by
certified United States Mail, postage prepaid, return receipt requested, if to:
City:
City Council
City of Eagle
660 E. Civic Lane
P.O. Box 1520
Eagle, ID 83616
with a copy to:
Susan E. Buxton
Moore Smith Buxton & Turcke, Chtd.
950 W. Bannock, Suite 520
Boise, ID 83702
Developer:
M3 Eagle L.L.C.
4350 E. Camelback Road, #E260
Phoenix, AZ. 85018
Attn: William Brownlee
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(pre&ented to P &. Z 8 27 07).DOC
with a copy to:
Dana Stagg Belknap
Gallagher & Kennedy
2575 E. Camelback Road, Suite 1100
Phoenix, AZ 85016
and a copy to:
JoAnn C. Butler
Spink Butler, LLP
251 E. Front Street, Suite 200
PO Box 639
Boise, ID 83701
or to such other addresses as either Party hereto may from time to time designate in writing and delivery
in a like manner.
7.2 Mailing Effective. Notices, filings, consents, approvals and communication given by
mail shall be deemed delivered immediately if personally delivered, 24 hours following deposit with a
nationally recognized courier, or 72 hours following deposit in the U.S. mail, postage prepaid and
addressed as set forth above.
8. MISCELLANEOUS.
8.1 Operations During Construction. Developer intends to, and hereby does, reserve
mineral and/or royalty rights on minerals located on or under the Property. Mining (for purposes of on-site
material usage), blasting and batch plant operations shall be allowed on-site during construction of the
Project [NEED A CUP HEREl. The location of such operations shall be subject to reasonable review and
approval by the appropriate governmental agencies that have jurisdiction over such operations. Portions
of the Property not currently under development may be used for agricultural purposes.
8.2 Termination Upon Sale to Public. Except as otherwise provided herein, this
Agreement is not intended to and shall not create conditions or exceptions to title or covenants running
with the Property beyond the development of the Property. Therefore, in order to alleviate any concern
as to the effect of this Agreement on the status of title to any portion of the Property, this Agreement shall
terminate without the necessity of any notice, agreement or recording by and/or between the Parties in
connection with any lot that has been finally subdivided and individually (and not in "bulk") leased (for a
period of longer than one year) or sold to the end-purchasers or users thereof (a "Public Lot") and
thereupon such Public Lot shall be released from and no longer be subject to or burdened by the
provisions of this Agreement.
8.3 Termination Upon Completion of Development. City shall, upon written request of
Developer, execute appropriate and recordable evidence of termination of this Agreement if City has
determined reasonably that Developer has fully performed Developer's obligations under this Agreement
in connection with all or a portion of the Property. Upon final approval of any detailed phase of the
Property, or portion thereof, by City, and the recordation of the final plat in connection therewith, City
shall, as soon as practicable, execute and record an appropriate instrument of release of the Agreement
in connection with such phase of development of the Property.
8.4Status Statements. Any Party (the "Requesting Party") may, at any time, and from time-tG
ti-me,gdeeli~e~V::ritten notice to any other Party requesting such other Party (the "Providing Party") tG
~~:~~~~ :r~ti~j.~~3~' to th~ knowledge ~f the Providing P3rty: (3) this Agreement is in full ~~~.~~~ '
I I bllg3tlon of the Portles; (b) thiS Agreement has not been 3mended or modified either
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(pre&ented to P &. Z 8 27 07).DOC
orally or in writing, and if so amended, identifying the amendments; (c) the Requesting Pafty-is-AOt-ffi
default in the performance of its obligations under this Agreement, or-i-t in default, to descri-be.thBreinthe
nature and amount of any such defaults; and whether, to the knowledge of the Provid~~IIe-At
h::ls occurred or failed to occur which, with the passage of time or the giving of notice, or both, '....ould
constitute a default and, if so, specifying each such event (a "Status Statement"). A Party receiving a
request hereunder sh::lll execute and return such Status St::ltement 'Nithin 10 days following the receipt
thereof. City sh::lll have the right to execute ::lny Status Statement requested by Developer ~
City acknowledges that a Status Statement hereunder may be relied upon by tr::lnsferees and
mortgagees. City shall have no liability fm monetary d::lmages to Developer, ::lnd tr::lnsferee or
mortgagee, or any other person in connection with, resulting from or based upon the issuance of any
Status Statement hereunder.
8.5Mortgage Provisions.
(a) Mortgagee Protection. This Agreement sh::lll be superior and senior to ::lny future
lien placed upon the Property, or any portion thereof, including the lien of any Mortgage-.-However, 00
breach hereof shall invalidate or impair the lien of any Mortgage made in good faith aoo-fol:.value.,aoo
any acquisition or acceptance of title or ::lny right or interest in or with respect to the Property, or any
portion thereof, by a mortgagee (herein defined to include a beneficiary under a deed of trust), whether
under or pursuant to ::l mortgage foreclosure, trustee's sale or deed in lieu of foreclosure or trustee's sale,
or otherwise, shall be subject to all of the terms and conditions contained in this Agreement. No
mortgagee shall h::lve an obligation or duty under this .'\greement to perform Developer's obligations or
other affirmative covenants of Developer hereunder, or to guarantee such perform::lnce; except that to-the
extent that any covenant to be performed by Developer is a condition to the perf-ormance of a covenant
by City, the performance thereof shall continue to be a condition precedent to City's performance
hereunder.
{b)8ankruptcy. If any mortgagee is prohibited from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by
any court of competent jurisdiction or by reason of any action by ::my court having jurisdiction of any
bankruptcy or insolvency proceeding in'.'olving Developer, the times specified above for commencing or
prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition, provided
that such mortgagee is proceeding expeditiously to terminate such prohibition and in no event for a period
longer than 2 years.
9. GENERAL.
9.1 Waiver. No delay in exercising any right or remedy shall constitute a waiver by either
Party thereof, and no waiver by City or Developer of the breach of any covenant or condition of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any
other covenant or condition of this Agreement.
9.2 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and the same instrument. The
signature pages from one or more counterparts may be removed from such counterparts and such
signature pages all attached to a single document so that the signatures of all Parties may be physically
attached to a single document.
9.3 Headings. This 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 Agreement. As used in this 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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9.4 Exhibits and Recitals. Any exhibit attached hereto shall be deemed to have been
incorporated herein with the same force and effect as if fully set forth in the body hereof. The Recitals set
forth at the beginning of this Agreement are hereby acknowledged and incorporated herein and the
Parties hereby confirm the accuracy thereof. The Definitions set forth prior to the Recitals are hereby
acknowledged and incorporated herein.
9.5 Further Acts. Each of the Parties shall promptly execute and deliver all such documents
and perform all such acts as reasonably necessary, from time to time, to carry out the matters
contemplated by this Agreement.
9.6 Time of Essence. Time is of the essence in implementing the terms of this Agreement.
9.7 Successors and Assigns. The burdens of this Agreement are binding upon, and the
benefits inure to, all successors in interest of the Parties to this Agreement and constitute covenants that
run with the land. Developer's rights and obligations hereunder shall only be assigned to a person or
entity that has acquired the Property, or a portion thereof, and shall be assigned by a written instrument,
recorded in the official records of Ada County, Idaho, expressly assigning such rights and obligations. In
the event of a complete or partial assignment of Developer's rights and obligations hereunder, except an
assignment for collateral purposes only, Developer's liability under this Agreement shall terminate.
Nothing in this Agreement shall operate to restrict Developer's ability to assign less than all of Developer's
rights and obligations under this Agreement to those persons or entities that acquire any portion of the
Property. Notwithstanding the foregoing, the ongoing ownership, operation and maintenance obligations
in connection with this Agreement may be assigned to an Owners' Association. Developer shall provide
City with written notice of any assignment of Developer's rights or obligations to such Owners' Association
within a reasonable period of time following such assignment. Notwithstanding any other provisions of
this Agreement, Developer may assign all or part of Developer's rights and duties under this Agreement
as collateral to any financial institution from which Developer has borrowed funds for use in developing
the Property.
9.8 No Partnership; Third Parties. It is hereby specifically understood, acknowledged and
agreed that neither City nor Developer shall be deemed to be an agent of the other for any purpose
whatsoever. It is not intended by this Agreement to, and nothing contained in this Agreement shall,
create any partnership, joint venture or other arrangement between Developer and City. No term or
provision of this Agreement is intended to, or shall, be for the benefit of any third-party, person, firm,
organization or legal entity not a party hereto, and no such other third-party, person, firm, organization or
legal entity shall have any right to cause of action hereunder.
9.9 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter hereof. All prior and contemporaneous agreements,
representations and understandings of the Parties, oral or written, are hereby superseded and merged
herein. No modrffcatlonoramendmenttothisAgr€€mentofanykind. whatsoever shaH be made or
claimed by DevelGper or Glty shal1 have any force oreffectwhat&O€verunlessthe samesllall.. be
endofsedin wrrtingandsigned.. by the Party agamstwhlchtR€ enforcement of such modification or
amendment_.js-5OUf}ht-aJ1d.thel+-Ol1-ly--tG--th€-B~t.seUGAA.jH..SUch.if:l&tfuHlent-.Such.aPPf{)ved
amendment-shafl..~..j.f1.tJ:;.e...GffiBfa.l...ReGOfd.&-of..Ma-GDur1tY7'-I43ho-Any-afteratjon.Grchange. to
th.j.SAg+eememsh.al-l-l;}e.~-after-'GOrr+p+y+ng-w+th-.the-nGt+Geaoo..h€aHng.pn}Vi&j{)ns..of IDaho Code
Sect.j.on67....ft5W-a&..fBql:Hredby-GityGo{\e-Secttor+-8-+O-1
9.10 Amendment. No modification or amendment to thiS Aqreement of any-kind what?Q_~'{~C
,?haJLbe made or claimed by Developer or City shall have any force or effect whatsoev~l...lJJllE::ss tlJfL~Qrrl~
shall be endorsed in writinq and signed by the Party aqainst which the enforcement of $uch 1lJ.Q..(;@CSlJ10n
or amendment is souqht and then only to the extent set forth in such instrument Such apQ.!Qved
amendment shall be recorded in the Official Records of Ada County, Idaho Any alteration or cl~anqe to
tilLs Agreeme!}t shall be made only after complying with the notice and hearinq proviSions of Idaho Cod~
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9.S'~Q!!.Q1l67 -_6509. as requi[edJ2y~tty Code Section 8~ 1 0-1 TtHS Agreernentconstitutes the entire
agreement between the Parttes peftajning tG thesub;eGtmatterhereofAHprlGrand Gontem poraneolJs
agreements; representations and ..understandingsof.theParties Gralorwrjtten. are hereby superseded
and merged herein
9.11 Construction. All Parties hereto have either been represented by separate legal
counselor have had the opportunity to be so represented. Thus, in all cases, the language herein shall
be constructed simply in accord with its fair meaning and not strictly for or against a Party, regardless of
whether such Party prepared or caused the preparation of this Agreement.
9.12 Names and Plans. Developer shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, designs and work products of every nature at any time
developed, formulated or prepared by or at the request of Developer in connection with the Property and
the Project; provided, however, that in connection with any conveyance of portions of the Property to City,
such rights pertaining to the portions of the Property so conveyed shall be assigned to City to the extent
that such rights are assignable.
9.13 Severability. If any provision of this Agreement is declared void or unenforceable, such
provision shall be severed from this Agreement, which shall otherwise remain in full force and effect. If
any applicable law or court of competent jurisdiction prohibits or excuses one Party from undertaking any
contract commitment to perform any act hereunder, then the other Party may, at such other Party's sole
discretion, terminate this Agreement or proceed with that portion of the Agreement not prohibited by law.
It is the Parties' express intention that the terms and conditions be construed and applied as provided
herein, to the fullest extent possible. It is the Parties' further intention that, to the extent any such term or
condition is found to constitute an impermissible restriction of the police power of City, such term or
condition shall be construed and applied in such lesser fashion as may be necessary to not restrict the
police power of City.
9.14 Choice of Law. This Agreement shall be construed in accordance with the laws of the
State of Idaho in effect on the Date of Application. Any action brought in connection with this Agreement
shall be brought in a court of competent jurisdiction located in Ada County, Idaho.
9.15 Recordation. After its execution, this Agreement shall be recorded in the office of the
Ada County, Idaho Recorder at the expense of Developer. Each commitment and restriction on the
Project shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property and
shall run with the land. This Agreement shall be binding on Developer and owners, and their respective
heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided,
however, that if all or any portion of the Project is sold, the sellers shall thereupon be released and
discharged from any and all obligations arising under this Agreement in connection with the portion of the
Property sold. 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.
9.16 No Developer Representations. Nothing contained herein shall be deemed to obligate
Developer to complete any part or all of the development of the Property in accordance with this
Agreement, the Development Plan or any other plan, and this Agreement shall not be deemed a
representation or warranty by Developer of any kind whatsoever.
9.17 Good Standing; Authority. Each of the Parties represents to the other that:
(a) Developer is a Texas limited liability company duly qualified to do business in Idaho; (b) City is a
municipal corporation duly qualified to do business in the State of Idaho; and (c) the individual(s)
executing this Agreement on behalf of the Parties are authorized and empowered to bind the Party on
whose behalf each such individual is signing.
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IN WITNESS WHEREOF, the Parties hereto, having been duly authorized, have executed this
Pre-Annexation and Development Agreement to be effective on the Effective Date.
CITY:
M3 EAGLE:
CITY OF EAGLE, IDAHO, a municipal corporation
organized and existing under the laws of the State
of Idaho
M3 Eagle L.L.C., a Texas
limited liability company
By: M3 BUILDERS, L.L.C., an Arizona
limited liability company, its Manager
By:
Nancy C. Merrill, Mayor
By: The M3 Companies, L.L.C., an Arizona
limited liability company, its sole member
Attest:
By:
William I. Brownlee, Member
Sharon K. Bergmann, City Clerk
APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been reviewed by
the undersigned attorney, who has determined that
it is in proper form and within the power and
authority granted under the laws of the State of
Idaho to City of Eagle.
Attorney for City of Eagle
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STATE OF IDAHO )
) ss.
County of Ada )
On this _ day of ,2007, before me, the undersigned, a Notary
Public in and for said State, personally appeared Nancy C. Merrill, 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.
Notary Public for Idaho
Residing at
My commission expires:
STATE OF IDAHO )
) ss.
County of Ada )
On this _ day of ,2007, before me, the undersigned, a Notary
Public in and for said State, personally appeared William I. Brownlee, member of The M3 Companies,
L.L.C., an Arizona limited liability company, known or identified to me to be the Manager of M3 Eagle
L.L.C., the limited liability company that executed the instrument, or the person who executed the
instrument on behalf of said limited liability company, and acknowledged to me that such 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.
Notary Public for Idaho
Residing at
My commission expires:
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