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Development Agreement - 2003 - Eagle River Sub Agreement #2 - 4/24/2003 Recording Requested By and When Recorded Return to: Planning and Zoning Administrator City of Eagle P.O. Box 1520 Eagle, Idaho 83616 ADA COUNTY RECORDER J. DAVID NAVARRO BOISE IDAHO 05/02103 08:27 AM DEPUTY Joanne Hooper RECORDED - REQUEST OF EAGLE CITY AMOUNT .00 7 1111111111I11111111111111111111111111 103073342 For Recording Purposes Do Not Write Above This Line DEVELOPMENT AGREEMENT This Development Agreement, made and entered into on the date as indicated herein, by and between the City of Eagle, a municipal corporation in the State of Idaho ("Eagle"), by and through its Mayor, and Eagle River LLC. ("Applicant"). WHEREAS, the Applicant is the owner of record of certain real estate generally located on the east side of Eagle Road approximately 800-feet south of State Highway 44, Eagle, Idaho, ("Property"), as specifically defined in the attached legal description (Exhibit A) which is the subject of an application for Rezone identified as Rezone Application No. RZ-6-02; and WHEREAS, the proposed development includes properties within an area currently zoned C-1 (Neighborhood Business District) and WHEREAS, the Applicant desires a C-3-DA (Highway Business District with Development Agreement) zoning classification for development of the site with uses outlined herein on the above described Property; and WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have determined that allowing a C-3 zoning designation for the Property must be limited with a development agreement to prevent undue damage to, and to otherwise be in harmony with the Comprehensive Plan and the existing community; and WHEREAS, the intent of this Development Agreement is to protect the rights of Applicant's use and enjoyment of the Property while at the same time limiting any adverse impacts of the development upon neighboring properties and the existing community and ensuring the Property is developed in a manner consistent with Eagle's Comprehensive Plan and City Code; and WHEREAS, the Applicant has agreed to the use restrictions and other limitations set forth herein upon the use and development of the Property and has consented to a C-3-DA (Highway Page 1 of7 C:lDocuments and SettingslCharles CarliselMy DocumentslDevelopment Agree #2.doc Business District with Development Agreement) zoning designation for the Property with the requirements set forth in this Development Agreement; and WHEREAS, the Applicant has previously provided Eagle with an affidavit agreeing to submit the Property to a Development Agreement pursuant to Eagle City Code Section 8-10-1 (C)(l); and WHEREFORE, the Applicant and the City of Eagle desire to resolve the issues and concerns that have arisen and for and in consideration of the mutual covenants contained herein, it is agreed as follows: ARTICLE I LEGAL AUTHORITY 1.1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the property that is the subject ofthe application to a C-3-DA (Highway Business District with Development Agreement) zoning designation, after recordation of, and subject to the provisions of this Development Agreement. The ordinance will become effective after its passage, approval, and publication and the execution and recordation of this Development Agreement. ARTICLE II CONDITIONS OF DEVELOPMENT 2.1 Applicant will develop the Property subject to the conditions and limitations set forth in this Development Agreement and will comply with all applicable requirements of the Development Agreement for the Eagle River Commercial Development, dated January 25, 2000, between the City of Eagle and Eagle River LLC, not including the "150,000 Specific Limitations" as set forth in said Development Agreement (recorded instrument No. 100011692). Further, Applicant will submit such applications regarding flood plain development permit review, design review, preliminary and :final plat reviews, and/or any conditional use permits, if applicable, and any other applicable applications as may be required by the Eagle City Code. 2.2 The development shall comply with the Eagle Comprehensive Plan and City Code, as they exist in :final form at the time this development agreement is approved by the City, except as otherwise provided within this agreement. Unless greater requirements are established by said Eagle Comprehensive Plan and City Code, the following conditions shall be satisfied: 2.2.1 A "Restaurant, with Drive- Thru Service," may only be allowed through the Conditional Use Permit process. 2.2.2 No portion of the Property shall be used for any of the following Commercial and/or Industrial uses: Page 2 of7 C:\Docnments and SettingslCharles CarliseIMy DocnmentslDevelopment Agree #2,doc . Aduh Business . Automotive body shop . Automotive Gas Station or Fuel Islands . Automotive Gas Station/Service Shop . Automotive, mobile home, travel trailer, and/or farm implement sales . Automotive repair . Automotive storage . Automotive washing facility . Bar . Cemetery . Convenience Store with Fuel Service . Drive-in theater . Equipment rental and sales yard . Kennel . Laundry (with drive up service) . Mortuary . Pawnshops (auto) . Shop, contractors (and/or yard) . Small engine repair (mower, chainsaws, etc.) . Storage (fenced area) . Tire shop, including recapping . Truck stop . Machine Shop . Railroad yard or shop . Terminal yard, trucking . Truck and equipment repair and sales (heavy) 2.3 All development within the Property shall be consistent with the Site Design Guidelines ("Design Guidelines") and Conceptual Plans as outlined within the Development Agreement for the Eagle River Commercial Development dated January 25, 2000, between the City of Eagle and Eagle River LLC (recorded instrument No. 100011692). 2.4 Applicant will comply with all rules, regulations and ordinances of Eagle per the terms of this Agreement including, but not limited to, applications for development permits as required by Title 10, Flood Contro~ of the Eagle City Code. ARTICLE III AFFIDAVIT OF PROPERTY OWNERS 3.1 An affidavit of all owners of the Property agreeing to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1 shall be provided and is incorporated herein by reference. Page 3 of7 C:\Docnments and SettingslCharles CarliselMy DocumentslDevelopment Agree #2.doc ARTICLE IV DEFAULT 4.1 In the event the Applicant fails to comply with the commitments set forth herein, within thirty (30) days of written notice of such failure from Eagle, Eagle shall have the right, without prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement or to terminate the Development Agreement following the process established in Eagle City Code Section 8- 10-1. 4.2 Ifrequired to proceed in a court oflaw or equity to enforce any provision ofthis Development Agreement, Eagle shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorneys' fees and court costs. ARTICLE V UNENFORCEABLE PROVISIONS 5.1 If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder ofthis instrument shall terminate and the zoning ofthe property shall revert to the C-I (Neighborhood Business District) zoning designation unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the Applicant (or other appropriate party) and Eagle as an amendment to the Development Agreement processed in accordance with the notice and hearing provisions ofldaho Code Section 67-6509, as required by Eagle City Code Section 8-10-1. ARTICLE VI ASSIGNMENT AND TRANSFER 6.1 After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense ofthe Applicant. Each commitment and restriction on the development shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property, adjacent property, and other residential property near the Property and shall run with the land. This Development Agreement shall be binding on the Applicant and owners, and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided, however, that if all or any portion ofthe development is sold, the sellers shall thereupon be released and discharged from any and all obligations in connection with the property sold arising under this Agreement. The new owner of the Property or any portion thereof (including, without limitation, any owner who acquires its interest by foreclosure, trustee's sale or otherwise) shall be liable for all commitments and other obligations arising under this Agreement with respect to the Property or portion thereof. Page 4 of7 C:\Documents and SettingslCharles CarliseIMy Documents\Development Agree #2.doc ARTICLE VII GENERAL MATTERS 7.1 Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions ofldaho Code Section 67-6509, as required by Eagle City Code Section 8-10-1. 7.2 Paragraph Headings. This Development Agreement shall be construed according to its fair meaning and as ifprepared by both parties hereto. Titles and captions are for convenience only and shall not constitute a portion of this Development Agreement. As used in this Development Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 7.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State ofldaho in effect at the time ofthe execution of this Development Agreement. Any action brought in connection with this Development Agreement shall be brought in a court of competent jurisdiction located in Ada County, Idaho. 7.4 Legal Representation. Both the Applicant and Eagle acknowledge that they each have been represented by legal counsel in negotiating this Development Agreement and that neither party shall have been deemed to have been the draftor of this agreement. 7.5 Notices. Any notice which a party may desire to give to another party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery service, to the party to whom the notice is directed at the address of such party set forth below; Eagle: Planning and Zoning Administrator City of Eagle P.O. Box 1520 Eagle, Idaho 83616 Owners: Eagle River LLC 3101 N. Central Avenue, Suite 1390 Phoernx, Arizona 85012 Or such other address and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt ifby personal delivery, forty-eight (48) hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty- four (24) hours after timely deposit with a reputable overnight delivery service. 7.6 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto ofa fully executed original of this Development Agreement. Page 5 of7 C:lDocuments and SettingslCharle' CarliselMy Documents\Development Agree #2.doc IN WITNESS WHEREOF, the parties have executed this Development Agreement. 1/1, iJ., DATED this ~ day of I r/i I ,2003. ..."......... ~..... OF BAO.....#.CITY OF EAGLE, a municipal corporation /;~~...........!~ &~anized and existing under the laws of the State of I CJ ... ~VORAl-~". Idi 0 : I c.P '. ... . . ~ . : . ...... : . . * . -. . '\ \~ SBAL~:oBYl " .. 0. .A~ .."": .: ~ .p ..~ I? Po R t- "... '",r .: ATTEST. .'#..)'><i ........ ~ ~ ...... . ..... 1'E OF \ ~~~~.. 1 ~ (;;;:'" '-' ,~~ ~ Sharon K. Moore, City cI;kl d~ By: Charles Carlise, Authorized Signatory STATE OF IDAHO) : ss. County of Ada) On thisa1- day of Apn'/ , 2003, before the undersigned notary public in and for the said state, personally appeared NANCY C. MERRILL, known or identified to me to be the Mayor ofthe City of Eagle and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that said City executed the same. STATE OF IDAHO) : ss. County of Ada) Page 6 00 C :\Documents and SettingslChane' CaniseIMy Documents\Development Agree #2.doc On this ~y of () '''YI' 2003, befure the undersigned notary public in and for the said state, personally ap~ES CARLISE, known or identified to me to be an authorized signatory of the property referenced herein and the person who executed the foregoing instrument. seal the day and year first IN WITNESS WHEREOF, I have here above written. Notary ublic Residing at: My Commission Expires: Page 7 of7 C :\Documents and SettingslCharles CarliseIMy Documents\Development Agree #2.doc