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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 C:\Documents and Settin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:-\101-9I,4O-M3\QA\P-A_-DA_tereselltE*i.-lG-P--Z-S-27..Q.1}..oS--17-07cDOCS:-\DoG&\M3-E-agIeL,b,C\M3-Eag1eIAGR\P-A&DA (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 C:\Documents and Sellin s\nbaird\Local SeWn s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOC.V:\1'(}'19\4Q-M3\OA\P-A_0A{presef'lled-to-P--z-a-2-7-07+000-1.7--Q~.oGCS:\DoG&\M3-Eagle-l...,b.,G\M3--E.agle\AGR\P-A..&-OA (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 C:\Documents and SeWn s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:\1-0l914O-M3\QAlP-A_DA_Wresent6(jW-P-..-Z8-2.;z..(f1t..{}8-1-1-O.;zcDOGS,-\QoG&\M3E-ag1e-b,bC\M3-Eag1eIAGR\P-A&DA (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 C:\Documents and Sellin s\nbaird\Local SeWn s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCIJ;\l<H_9\4Q-M3\OA\P-A-DA-(ereseRted-to..P-Z-a-27-G7h08-1-7-07;OOGS;.\OeGS\M3-6<l91e-L;L;G\M3-6.\AGR\P-A&-DA (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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:.l,1-G-1-S\4G-M3\DA\P-A.DA.{i}reseflted.to..p--l-8-2-7--07-h08--1+-O-1cOO~-\DoG&\M3-Eagl&LL,G\M3Eagle\AGR\P-A-&DA (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 C:\Documents and SeWn s\nbaird\Local SeWn s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07 . DOCU;.\l(}19\4Q-M3\DA\P-A--QA{preseRteG-to-P-Z-.g-~7"(}7h08-47--07cDOGS:\DoGs~-E~Ie L,L,C\MJ-EagJe\AGR\P-A&...DA (.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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOC\J:\:t.04~\4G--M3\QA\P-A-GA-fGreseAteG4G-p..-l--8-~7-07t,{}8--:t-7-07-J)OGS~\00GsiM~E-ag.lek,L,C\MJ-€agle\A.GR\P-A&DA (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 C:\Documents and Settin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCV;.\HH9\4G-M3\DA\P-A-_0A_{Oresented-to-P-Z-8-2-7-07h08-17-07cOOGS:-\DeGs\M3-E~1e_b,L,C\M3EagJeIAGR\P-A.&-.DA (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 C:\Documents and Sellin s\nbaird\Local SeWn s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCillt019\4Q-M3\GA\P-A-_DA..{-oresenteGwP-Z-8-27-07h08-t+-0700Gs.:\DoGs\M3€agIeLl,C\MJ-€agIe\AGR\P-A&DA (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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17. 07. DOCtJ\1019\40--M3\QA\P-A_DA.tJ:>>'ssented-lG-P--Z-S-27-Q7}..oo--H-07,OOCS:-\QQGs.\M3-Eagle-LL,C\M3Eagle\A-GR\P-A-&OA (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 C:\Documents and Settin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU-;\~Gt9\40-M3\DA\P-A-GA_{eresented-tG-P..Z-il-2-7-Q.7-}...()g4+-O+7DGCSADoG&\M3--EagIeL,l,G\M3-Eag.Ie\AGR\P-A&DA (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 C:\Documents and Sellin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:.l,.lO-ls\4O-M3\GA\P-A-.DA..{-preseflted-to..p...Z-a--21-Q.7},Q84.1-07-,00GS-:-\QoGs.\M3..t;;agle-Lcl-,C\MJ..Eag1e\AGR.\P-A.&DA (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 C:\Documents and SeUinQs\nbaird\Local SeUinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU,\lOl9\40-M3\OA\P-A-0A.teresellted-lG.P--Z-8-2+"(}7~08--1-1"(}7A)Ocs..\OoG&\M3E~glelA",C\M3 Eagje\AGR\P-A.& DA (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 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU-;\1'(}1~\DA\P_A_0A-tf)fe&e!lted-to-p--z-a-2+"(}7-h004+-07,oocs.:-\DOGs.\M3-E-agleL~,C\MJ.EagjeIAGR\P-A&DA (presentee to P & Z!l 27 07).DOC 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 C:\Documents and SeWn s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:\101_9\40-M3\DA\P--ADA-{presenteG-toP-...Z,.8-27-07h08--17-07-DOGS;.\DOGs\M3-E-agleh,LG\M3-Eag.lelAGR\P-A-&DA (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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 16 C:\Documents and Settinas\nbaird\Local Settinas\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU-,\1~9\4.0-M3\DA\P-A_GA'ft)l'ese!lted-t(}-P--Z-S-2+-Q.7-M)8--1-1-01,00GS;.\DoGs'IM3-E-agle-L,h,C\M3.Eag1eIAGR\P-A&GA (presented to P & Z II 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -17 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:.1,1{}1.9\40-M3\DA\P-A.DA-{presemee.toP...Z.a-27-07M}8-H-07,.QOGs;'\DoGs\M3-Eagle.L,L,G\M3Eagle\AGR\P-A~...DA (presented to P & Z II 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -18 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCWl(}t9\4Q.-M3\DA\P-A_.QA.{.prese1lted-lo..p--l-a--27--Q.7+.-08-l1~GGS;.\DoGs\M~Eagl&L-k,GW3-EagJe\A.GR\P-A.&.DA (presented to P & Z !l 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 19 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOClJ:\101914O-M3\OA'IP-A-..IJA-{eresented-tG.P--.Z-S-2-7--07h08-17-07,.IJQGS:.\IJoG&\M3Eagle-k.LG\M3.EagJeIAGRIP-A-.&.OA (presented to P 8. Z !l 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 20 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCUc.l,.1-OW\4Q-M3iQA\P-A--DA.{.&resented-to-P--Z-S-2+-07H)8-+7-0-7.,ooGS-:-\Doo&\M&€agle.L,h,CW3€ag1e\AGR\P-A.&DA (presented to P & Z 8 27 07).DOC 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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 21 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08.17. 07 .DOCU;.l,..'\.o.1-9\4Q-M~\QA\P-A~~-P_U_2-7-{f7+..08-:t+--O+JX)Cs;'\DeGs\M3-.eagle-l.-h,C\M3.Eagle\AGR\P-A&.DA (presented to P & Z 8 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 22 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCu:.w>>-9'4Q-.Ma\DA'P-A_.DA-{-f.')reseflteG.to-P--Z-~7-O+h0847-07,OOGS;\DoGs\M3-Eagle.L~,G\M3EagleIAGR\P-A8.DA (presented to P 8. Z II 27 07).DOC 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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented 10 P Z 8-27-07 08-17- 07. DOCtJ.:\lOl9\4O-M3\OA\P-A_DAtOresellleGro-P.-Z-S-27-07t.-08-17-07c00G&\DeGs\M3-.eagIe-L-b.C\M3Eagle'AGR\P-A&.DA (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 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCUA1(}.1-9'\4G-M3\OA\P-A-.QA.{i'>resented-t(}P..Z...a-2+~7},084+-07-,.QGGS;.\DoGs\M3-fiiagl&h,h,.c\MJ.€ag1e~~-A.&-DA (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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:\:I.Q.UMO-M3\QA\P-A__DA..{i*'e5eIltea-te-P--Z.s-21-07H18A+-WcDOcs.:\DoG&\M3.eagl&LLG\M3.eag1eV>.GR\P-A-&.DA (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 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:\1Q-1-9\40-M3\DA\P-A_DA{-j)resemeGt(}-P--z-.a-27-(}A-004+-O+~.\D00&\M3-.€agle-b.-L,G\M3-€agJe\AGR\P-A.&-OA (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 C:\Documents and Sellin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOC\J:+1-0-1-9\4G-M3\OA\P-A-!)A..{f)m&ef'lted-to-P--Z..a-27-47M)8-1~OOGS-M)oGs.\M3€ag\e-LL,C\M3-€ag1e\AGR\P-A.&DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 28 C:\Documents and Settin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU;\~(}l9\4Q.-M3\DA\P-A--DA-{oresellled-tG-P--~-8-2.7--(}7h08--17-l.}7c'DOGS~\DoGs\M35agle--hcLG\M3EagleIAGR\P--A&mDA (presented to P 8. Z !l 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 29 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOC\j:\~.O+9\4O-M3\DA\P-A_-DA-{oresemed-tG-P-l-S-27-w:t.-G8-'\.7-07,.oGGS:\DoG&\M3EagIeL,LG\M3Eagle'>AGR\P-A.&-DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 30 C:\Documents and Sellin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17. 07. DOClli't{}.19\40-M3\DA\P-A-...QA..fGreseflted-.to..p...~7M)a-4+--07cOOGS~M3-€agI&bl,G\M~.€.\AGR\P-A.&DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 31 C:\Documents and Sellin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOC~+1-().1.~\QA\P-A._.QA-H>reseffied-tG.p-Z-~7+J}8--~+-O+.J}QG&.\DoG&\M3-Eagle-U,C.\M3.EaglelJ\.GR\P-A.&.QA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 32 C:\Documents and Sellin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z B-27-07 OB-17- 07. DOCU:\.iO-1-9\4O-M3\QA\P-A_DA.tt>resellted-to.P-l-a--2+-Q.7-H}8-H-G+7DGG&\DoG&\M3.Eagl&.L,LG\M3..EagJeIA-GR\P-A..&.DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 33 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU+1o.19\40-M3\OA\P-A-GA-t&resented-.tG-P-l-8-2+-m..0841"(}1,OO~:\OoG&\M3-E-agle-LL,G\M3EagJe\AGR\P-A-&OA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 34 C:\Documents and Settin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU;\~-9\4O-M3\0A\P-A-OM&reseRleG-to-P-__Z..a_2+"(}7H}8-l-7-O+J)QG.S,\bleG&\M3-Eag.Ie-L,LG\M3-E-agle\AGR\P-A&-DA (presented to P & Z il 27 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 35 C:\Documents and SettinQs\nbaird\Local SettinQs\Ternporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:\lo.1-9\4Q-M3\OA\P-A-0A{~resemedID..P--l-8-21..(}1-H)g.....11"(}1,OOCS:-\OoG&\M3-Eagle-l-,h,G\M3-EagJe\AGR\P-A-&.oA (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- PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 36 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:\~~\4O-M3\OA\P-A-...QA..teresefl.teG-to..P._l-a_2+-07}..08-.H"'(}1-,OQGS.;\OoGs-\M3.eag'le-l.-,L,G\M3E-agle\AGR\P-A&-.DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 37 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCUXl-o.W\4O-M~OA\P-A-OA-{l)fesemeGtG-P--Z-$-2+-(}7-hOO-11..(}1,.QOGS;.\OoG&\M3-E~lelA",cG\M3EagJe\AGR\P-A&-l)A (presented to P & Z 8 27 07).DOC 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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 38 C:\Documents and SettinQs\nbaird\Local Settinas\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:\1.Q..W\40-M3\OA\P-A-OA-tereseA-Ied-.tG-P-Z-S-2-74i'},.OO-11-Olc.DOGS:-\DGGs\MJ-E-agle.h-,t-,C\M3Eagle\AGR\P-A&mDA (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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 39 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07 ,DOCIJ.:\101_9\4Q-.M3\OA.\P-A-GA-{-oresenteG-to-P-~.8-2-7-07t,00+7~00Gs;'\0eGs.\M3-E~le-L~..c\M3Eagle\AGR\P-A.&..DA (presented to P & Z 827 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 40 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:+10lS\40-M3\OA\P-A-_0A.(-ere&efIteG-to.p.--l-a-21..(}7H}8-~+-01.,OOGS-!\DoG&\M~-Eagle--bLG\Ma-EagJe\AGR\P-A-&DA (pree:ented to P & Z il 27 07).DOC 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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 41 C:\Documents and SetlinQs\nbaird\Local SetlinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU;\H}:1.9\4O-M3\l)A\P-A-.OMere&eflteG-tG--P--l...s-2-7..(}7H}8-tU7~\DoGs\M3E~le-bJ",G.\M3EagJe\AGR\P-A&DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 42 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOC\J.:.l,.~'(}~.9\4O-M3\0A\P-A..QA..t&re&eflted-tG-P--b8-2-7"(}A-OO-l1"(}7~\D0cs\M3Eagle.Lb..c\M3.EagJelA-(;R\P-A&DA (presented to P & Z 8 27 07).DOC 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. ~.$,!~~1..... Prevailing Party. If..e+tMf-J.)afty.-.&l1aU-4ef.ayIt-hel:eURGef-Clff~fay.lt-is-GUfeG-witR the assistance of an attorney (acting as other than mediator) for either p3rty and before the cost of a suit te~~, a~ ~ p3rt of curing such default, the reasonable attorneys' fees and direct our! of pocket costs . c db' he non defaulting party shall be reimbursed to the non defaulting party upon dem3nd. In the event that either party to this Agreement shall file suit or action at law or equity to interpret or enforce this Agreement, the unsuccessful party to such litigation agrees to pay to the prevailing party all costs and expenses including reasonable attorneys' fees incurred by the prevailing party. Similarly, all fees and costs associated with an appeal to any appellate court thereafter, including, without limitation, the prevailing Party's attorneys' fees, shall be paid by the non-prevailing party. 7. NOTICES AND FILINGS. 7.1 Manner of Serving. All notices, filings, consents, approvals and other communications provided for herein or delivered in connection herewith shall be validly delivered, filed, made, or served if in writing and delivered personally or delivered by a nationally recognized overnight courier or sent by certified United States Mail, postage prepaid, return receipt requested, if to: City: City Council City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, ID 83616 with a copy to: Susan E. Buxton Moore Smith Buxton & Turcke, Chtd. 950 W. Bannock, Suite 520 Boise, ID 83702 Developer: M3 Eagle L.L.C. 4350 E. Camelback Road, #E260 Phoenix, AZ. 85018 Attn: William Brownlee PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 43 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:.\4.o19\4O-M3\OA\P-A-GA-t&re&ef1.leG-tG-P-..z-$-2+..(}1~:t1"(}1cOOGS;\DOGs\M3-Eagle-Ll,.G\MJ.Eag1e\AGR\P-A&DA (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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 44 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOC\J:-\4o.1S\4O-M3\OA\P-A-.OM-Greseffied..tG-P-l~A-08-1+"(}'1~M3.eagle--L-L,G\MJ-EagJe\AGR\P-A-&OA (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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 45 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCIJ.;\..1Gl9\40-M3\OA\P-A-...QA..t&reseflted-tG..p...z-S-2+-47-H)a-:t+~\DoG&\M3-Eagl&L.b,G\M3EagJe\AGR\P-A.&OA (pree:ented to P & Z 8 27 07).DOC 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~ PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 46 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- O? DOCUc.\4~.g\4O-M3\OA\P-A-GA-{f)resellleG.W-P-~-21..(}A0841"(}1,OOGSADoG&\M3-Eagle-b,l*~E-agle\AGR\P-A&.OA (presented to P & Z 8 27 07).DOC 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. PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 47 C:\Documents and SettinQs\nbaird\Local SettinQs\Temporarv Internet Files\OLK39A\P-A DA (presented to P Z 8-27-07) 08-17- 07. DOCU:+1G1-9\4Q-M3\OA\P-A_GA-tDre&eIlted-.tG-P--Z-S-2-7-01}...oo-1+-01,OOG&..\DOG&\M3-E8ftle-LLG\M3.Eagle\AGR\P--A.&.OA (presented to P & Z 827 07).DOC 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 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 48 C:\Documents and Sellin s\nbaird\Local Settin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:-\4o.1-9\4O-M3\OA\P-A-.DA~resented-tG..p-.l..a-2-7-G+}...os-1-7"(}'7-A)O~.\D9G&\M3Eag.le-l..-LG\M3-EagJe\AGR\P-A.&DA (presented to P & Z 827 07).DOC 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: PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 49 C:\Documents and Settin s\nbaird\Local Sellin s\Tem ora Internet Files\OLK39A\P-A DA resented to P Z 8-27-07 08-17- 07. DOCU:+1o.19\4O-M3\OA\P-A--DA..{.p~Eld-lG.p-.l-8-2-7"(}7-H)841"(}1,OOcs..\OoG&\M3-€-agle-k,L,G\M3EagJe\AGR\P-A-&..OA (presented to P &. Z il 27 07).DOC