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Development Agreement - 2009 - Dwayne Lingel Subd - 6/10/2009 Recording Requested By and When Recorded Return to: City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, Idaho 83616 ADA COUNTY RECORDER J. DAVID NAVARRO BOISE IDAHO 07/30/09 01:07 PM DEPUTY Bonnie Oberbillig RECORDED - REQUEST OF Eagle City AMOUNT .00 9 1111111111111111111111111111111111111 109089345 For Recording Purposes Do Not Write Above This Line DEVELOPMENT AGREEMENT This Development Agreement, made and entered into on the date as indicated herein, by and between the City of Eagle, a municipal corporation in the State ofIdaho ("Eagle"), by and through its Mayor, and Dwayne Lingel ("Applicant"). WHEREAS, the Applicant is the owner of record of certain real estate located at Lot 2, Block 1, Whitehorse Subdivision at 2440 North Park Lane, Eagle, Idaho, ("Property"), as specifically defined in the attached legal description (Exhibit A) which is the subject of an application for Rezone identified as Rezone Application No. RZ-OI-07; and WHEREAS, the proposed development includes properties within an area currently zoned RUT (Rural-Urban Transition, Ada County designation); and WHEREAS, the Applicant desires a R-2-DA (Residential-Two units per acre with a development agreement) zoning classification to develop an eight (8) lot residential subdivision use on the above described property, which is herein referred to as the "Property"; and WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have determined that allowing an R-2 zoning designation for the Property must be limited with the use of a development agreement to prevent undue damage to, and to otherwise be in harmony with, the existing community; and WHEREAS, the intent of this Development Agreement is to protect the rights of Applicant's use and enjoyment of the Property while at the same time limiting any adverse impacts 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 R-2-DA (Residential-Two units per acre with a development agreement) zoning designation for the Property with the requirements set forth in this Development Agreement; and Page 1 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc 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 This Development Agreement is made pursuant to and in accordance with the provisions ofIdaho Code Section 67-6511A and Eagle City Code, Title 8, Chapter 10. ARTICLE II ZONING ORDINANCE AMENDMENT Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the property that is the subject of the application to an R-2-DA (Residential-Two units per acre with a 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 III CONDITIONS OF DEVELOPMENT 3.1 Applicant will develop the Property subject to the conditions and limitations set forth in this Development Agreement. Further, the applicant will submit such applications regarding design review, preliminary and final plat reviews, and/or any conditional use permits, if applicable, and any other applicable applications as may be required by the Eagle City Code, which shall comply with the Eagle City Code, as it exists at the time such applications are made except as otherwise provided within this Agreement. 3.2 The density for the property shall not exceed 1.8 dwelling units per acre. 3.3 The Concept Plan (Exhibit B) represents the Owner's current concept for completion of the project. As the Concept Plan evolves, the City understands and agrees that certain changes in that concept may occur or be required. If the City determines that any such changes require additional public comment due to potential impacts on surrounding property or the community, a public hearing shall be held on any proposed changes in the Concept Plan, notice shall be provided as may be required by the City. 3.4 The conditions, covenants, and restrictions for the Property shall contain at least the following: (a) Provide that the association for Adonai Subdivision shall have the duty to maintain and operate the pressurized irrigation system for Adonai Subdivision and all of the common landscape areas in the subdivision in a competent and attractive manner, including the watering, mowing, fertilizing and caring for shrubs and trees, in accordance with Eagle City Code, in perpetuity. (b) An operations and maintenance manual for the irrigation system shall be developed by the association that will recognize a duty by the association to maintain and operate the pump providing water to the system, including the funding mechanism for the repair and replacement of the pump. Page 2 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc 3.5 Usable park amenities such as, pathways, picnic tables, gazebos and/or similar amenities as determined by the City Council shall be provided within the open space areas. Landscape plans showing open space amenities shall also be reviewed and approved by the Design Review Board prior to submittal of a final development plan/final plat. 3.6 The developer shall provide 3-inch minimum caliper shade-class trees (landscape plan to be reviewed and approved by the Design Review Board) along the side of the street that has a sidewalk within this development. Trees shall be placed at the front of each lot generally at each side property line and the drive aisles, or as approved by the Design Review Board. The trees shall be located in an 8-foot wide landscape strip between the 5-foot wide concrete sidewalk and the curb. Prior to the City Clerk signing the final plat the applicant shall either install the required trees, sod, and irrigation or provide the City with a letter of credit for 150% of the cost of the installation of all landscape and irrigation improvements. Trees shall be installed prior to obtaining any occupancy permits for the dwelling units. A temporary occupancy may be issued if weather does not permit landscaping. 3.7 The applicant shall provide a letter from the Farmer's Union Canal Company approving of any construction plans involving the relocation or construction of irrigation facilities currently accessing the site and under the purview of the Company, prior to the approval of the final plat. 3.8 Place a note on the final plat which states that the subdivision shall comply with Idaho Code Section 31-3805 concerning irrigation water. 3.9 Provide a cross-access agreement between the applicant and the adjoining property owner to the north where the off-site pressurized irrigation storage pond serving the property is proposed to be located. The cross-access agreement shall be in perpetuity and provide an easement for maintenance of the off- site pressurized irrigation storage pond. ARTICLE IV AFFIDA VIT OF PROPERTY OWNERS An affidavit of all owners of the Property agreeing to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511 A and Eagle City Code Section 8-10-1 shall be provided and is incorporated herein by reference. ARTICLE V DEF AUL T 5.1 In the event the Applicant fails to comply with the commitments set forth herein, within thirty (30) days of written notice of such failure from Eagle, Eagle shall have the right, without prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement or to terminate the Development Agreement following the process established in Eagle City Code Section 8-10-1. 5.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, Eagle shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorneys' fees and court costs. Page 3 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc 5.3 If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument shall terminate and the zoning of the property shall revert to the A-R (Agricultural-Residential) zoning designation unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the Applicant (or other appropriate party) and Eagle as an amendment to the Development Agreement processed in accordance with the notice and hearing provisions ofIdaho Code Section 67-6509, as required by Eagle City Code Section 8-10-1. ARTICLE VI UNENFORCEABLE PROVISIONS If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument shall terminate and the zoning of the property shall revert to the A-R (Agricultural- Residential) zoning designation unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the Applicant (or other appropriate party) and Eagle as an amendment to the Development Agreement processed in accordance with the notice and hearing provisions ofIdaho Code Section 67-6509, as required by Eagle City Code Section 8-10-1. ARTICLE VII ASSIGNMENT AND TRANSFER After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of the Applicant. Each commitment and restriction on the development shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property, adjacent property, and other residential property near the Property and shall run with the land. This Development Agreement shall be binding on the Applicant and owners, and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided, however, that if all or any portion of the development is sold, the sellers shall thereupon be released and discharged from any and all obligations in connection with the property sold arising under this Agreement. The new owner of the Property or any portion thereof (including, without limitation, any owner who acquires its interest by foreclosure, trustee's sale or otherwise) shall be liable for all commitments and other obligations arising under this Agreement with respect to the Property or portion thereof. ARTICLE VIII GENERAL MATTERS 8.1 Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions ofIdaho Code Section 67-6509, as required by Eagle City Code Section 8-10-1. 8.2 Paragraph Headings. This Development Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience only and shall not constitute a portion of this Development Agreement. As used in this Development Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. Page 4 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc 8.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Idaho in effect at the time of the execution of this Development Agreement. Any action brought in connection with this Development Agreement shall be brought in a court of competent jurisdiction located in Ada County, Idaho. 8.4 Legal Representation. Both the Applicant and Eagle acknowledge that they each have been represented by legal counsel in negotiating this Development Agreement and that neither party shall have been deemed to have been the draftor of this agreement. 8.5 Notices. Any notice which a party may desire to give to another party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery service, to the party to whom the notice is directed at the address of such party set forth below; Eagle: City of Eagle 660 E. Civic Lane Eagle, Idaho 83616 Owner: Dwayne Lingel 9344 West Cory Lane Boise, Idaho 83704 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. 8.6 Effective Date. This Development Agreement shall be effective upon the signing and execution of this agreement by both parties. 8.7 Termination. This agreement terminates upon completion of Conditions of Development or after 7- years after the Effective Date, whichever occurs first. IN WITNESS WHEREOF, the parties have executed this Development Agreement. Page 5 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc I(.~ \ DA TED this ~ day ofJ..LL~~ , 2009. ""......... " '1'<< "" ~ EAG{ ~### ,," ~\ O.........li' ',- .. ...... .. ~ $ ,t... ~O\\A r~.. ~ :,./~ ....~ ="":0 \: : . u .' -. - : : ' 1( -~: 0 : ': ... S<l ~v"':.... : .. .. ~ ,9........ ':. . ;~ .......: ':. ... ('OR P09. to.. L"\ ~ .: #.. J' ........ '\ v .... "'.... 7'.<\ TE O~ "..... .... .-' ",,,......,. By: ATTEST: ~~ Dwayne Lingel STATE OF IDAHO ) : SS. County of Ada ) On this I'{)~y of ~~ ,2009, before the undersigned notary public in and for the said state, personally appeared PHIL BANDY, known or identified to me to be the Mayor of the City of Eagle and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that said City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written ",,,nu.,,,, . .'..,'.. "" \\ 0 R 7 0, \1 ........ ..' <t \ ........ ',. .... (l~'" .0. ..", ~ '."V . . ~ .. -, · ~ J" y. .. : v-;" .- '\. r, '.. .- 4. :. .. .....0 .,.... : . ~ , ~ : : :,. : .. . '>. .. to ~ \-ll'" PU .~. .. "& ." .. il't'; ,. J',. ,".t4-,.' "" I, ''';'' ( , STATE OF IDAHo''''''}"' v " Page 6 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc : ss. County of Ada ) On this ~ day ofJ\.A...r1e:.. ,2009, before the undersigned notary public in and for the said state, personally appeared DWAYNE LINGEL, known or identified to me to be the owners of the property referenced herein. and the persons who executed the foregoing instrument. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. ~~ Not Public daho Residing at: ~t:.,M. lo. My Commission Expires: \\A~ \ 1. , '2.0 14- Page 7 of7 K:\Planning Dept\Eagle Applications\SUBS\2007\Dwayne Lingel da cc fnl ver.doc Project No: 06250 Date: January 4,2007 Page: 1 of 1 TOOTHMAN-ORTON ENGINEERING COMPANl:j"'-"RECEIVED & FILED CONSULTING ENGINEERS, SURVEYORS AND PLANNERS CITY OF EAGLE 9777 CHINDEN BOULEVARD i BOISE, IDAHO 83714-2008 : JAN 1 0 2007 208-323-2288 . FAX 208-323-2399 1 boise@toengrco,com i File: ! Route to: I EXHIBIT A ANNEXATION, REZONE AND PRELIMINARY PLAT DESCRIPTION OF DWAYNE LINGEL SUBDIVISION LOT 2 IN BLOCK 1 OF WHITEHORSE SUBDIVISION, ACCORDING TO THE OFFICIAL PLAT THEREOF, FILED IN BOOK 80 OF PLATS AT PAGE 8618, OFFICIAL RECORDS OF ADA COUNTY, IDAHO. CONTAINING: 5.70 acres, more or less. SUBJECT TO: All Covenants, Rights, Rights-of-Way, Easements of Record and any other Encumbrances. The property described herein should be in compliance with all applicable zoning regulations, Toothman-Orton Engineering Co, assumes no liability for current or future compliance with county or city zoning ordinances and/or restrictions, G:\06250\WPfiles\Applications\Legal Description Dwayne Lingel Subdivision,doc 1 BOISE . COEUR d'ALENE . CALDWELL Ow ':1....1 t= -~ - IJ..<( ~ ~u.l ("'oi @IJ.. _ >O/';:I!' Ui~ i ~5 a: ~ r-< ...... 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