Development Agreement - 2009 - Eisenberg Preannexation And Development Agreement - 9/8/2009
Recording Requested By and
When Recorded Return to:
ADA COUNTY RECORDER J. DAVID NAVARRO
BOISE IDAHO 09/10/09 02:10 PM
DEPUTY Vlc~ Allen 11I1111111111111111111111111111111111
RECOR~ED - REQUEST OF 109105071
Eagle City
AMOUNT
.00
21
Planning and 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
This Pre-Annexation and Development Agreement (this "Agreement"), is made and entered into
on the Effective Date, by and between the City of Eagle, a municipal corporation in the State of Idaho
("Eagle") and Eisenberg Company, an Arizona corporation ("Applicant").
RECITALS
WHEREAS, Applicant is developing that certain real estate (the "Property") consisting of
approximately thirty-eight and thirty-nine one hundredths (38.39) acres located on the northeast corner of
Chinden Boulevard and Linder Road, Eagle, Idaho, as specifically defined in the attached legal
description on Exhibit A and incorporated herein and as described on Exhibit B attached hereto and
incorporated herein and as further depicted on the "Concept Plan" or the "Project", which was the
subject of an application for a comprehensive plan amendment, and an annexation and rezone with a
development agreement identified as Eagle City Files No. CPA- 5-08, A- 03-08, and RZ- 8-08; and
WHEREAS, Eagle has previously approved CPA-5-08 and adopted and published Resolution No.
09-19 to amend Eagle's Comprehensive Plan (the "Comprehensive Plan Amendment") to designate the
Property as appropriate for "Commercial" use as depicted on the Land Use Map of Eagle's
Comprehensive Plan, attached hereto and incorporated herein as Exhibit C; and
WHEREAS, Applicant and Eagle desire that the Property be annexed into the corporate limits of
Eagle and be developed as an integral part of Eagle as set forth in this Agreement; and
WHEREAS, Applicant has submitted to Eagle a duly executed application requesting an
amendment to Eagle's zoning ordinance in connection with the Property and Applicant and Eagle desire
that the Property be zoned C-3-DA (highway business district with a development agreement) to develop
the Property for commercial purposes as generally shown on the Concept Plan; and
WHEREAS, the Concept Plan and the zoning designation of C-3-DA to be contained in a
rezoning ordinance is in compliance with the Comprehensive Plan Amendment and 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, design regulations, and other matters related to the
development of the Property; and
WHEREAS, Applicant has agreed to the use restrictions and other limitations set forth herein
upon the use and development of the Property and has consented to a C-3-DA (highway business
district) zoning designation for the Property; and
WHEREAS, upon annexation of the Property, Eagle shall take steps reasonably necessary to
rezone the Property subject to the terms and conditions set forth in this Agreement, including publication
of a rezoning ordinance; and DP~::I\:~~! i: :::': ;:;-:'-~l
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PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 1 I
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WHEREAS, Applicant and Eagle are entering into this Agreement in order to facilitate the
annexation, rezoning, adoption of ordinances and development of the Property by providing for, among
other things: (i) conditions and terms in connection with the annexation, rezone and development of the
Property; (ii) permitted uses for the Property; and (iii) other matters related to the development of the
Property including the possible review and approval of the Project by Ada County; and
WHEREAS, Eagle and Applicant acknowledge that as of the Effective Date the Property is not
contiguous with Eagle's jurisdictional boundary and is zoned RUT (Rural Urban Transition) in Ada
County; and
WHEREAS, Applicant has made application to Ada County requesting that Ada County amend
the Ada County Comprehensive Plan to include the Comprehensive Plan Amendment; and
WHEREAS, Applicant has made application to Ada County requesting that Ada County approve
the Project substantially in compliance with the Comprehensive Plan Amendment and this Agreement;
and
WHEREAS, Applicant has made application to Ada County requesting that Ada County approve
the development of the Project subject to the terms and conditions of a development agreement
substantially in conformance with this Agreement to be executed by Ada County, Eagle and Applicant and
recorded in the official records of Ada County (the "Three-Party Agreement"); and
WHEREAS, Applicant and Eagle contemplate that upon Ada County approval of the Project and
the full execution and recordation of the Three-Party Agreement, the Three-Party Agreement shall govern
the development of the Project and this Agreement shall automatically terminate; and
WHEREAS, if, prior to Ada County approval of the Project and the full execution and recordation
of the Three-Party Agreement the Property becomes contiguous to Eagle and Eagle has completed the
annexation and rezoning of the Property as contemplated herein, Applicant shall withdraw Applicant's
applications in connection with the Project from Ada County and this Agreement will continue in full force
and effect; and
WHEREAS, if, post Ada County approval of the Project and the full execution and recordation of
the Three-Party Agreement the Property becomes contiguous to Eagle, Eagle shall complete the
annexation and rezoning of the Property and Eagle shall administer and enforce the development of the
Project as contemplated by the Three-Party 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)(1); and
WHEREAS, prior to the Effective Date of this Agreement, all duly noticed and necessary
meetings and public hearings have been held in connection with this Agreement, annexation and
rezoning of the Property; and
WHEREAS, Eagle has received public comment and has otherwise duly considered all such
matters in connection with this Agreement, annexation of the Property into Eagle and rezoning of the
Property.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 2
AGREEMENT
NOW, THEREFORE, Applicant and the City of Eagle desire to enter into this Agreement, and for
and in consideration of the mutual covenants contained herein, it is agreed as follows:
ARTICLE 1
LEGAL AUTHORITY
This Agreement is made pursuant to and in accordance with 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,
Chapter 10.
ARTICLE 2
ANNEXATION; ZONING ORDINANCE AMENDMENT; TERM
2.1 Eagle and Applicant acknowledge that the Property does not have a common boundary
with the corporate limits of Eagle as of the Effective Date. Applicant's consent to annexation and rezone
of the Property is contingent on: (1) contiguity of the Property with Eagle's jurisdictional boundary within
thirty-six (36) months of the Effective Date; or (2) Ada County's approval of development of the Property
substantially in accord with this Agreement within such thirty-six (36) month period and the recordation of
the Three-Party Agreement. Following recordation of the Three-Party Agreement within such thirty-six
(36) month period, Applicant's consent to annexation and rezone of the Property shall continue until
annexation and rezoning occurs and the applicant shall not consent to annexation to the City of Meridian
while this agreement is in effect. In the event neither occurs, this Agreement shall terminate and shall be
null and void unless such period of time is extended by Applicant at Applicant's sole and absolute
discretion by providing Eagle notice of such extension on or before the last day of such thirty-six (36)
month period. Such extension of time shall be for a minimum of twelve (12) months. Eagle shall take all
steps necessary to timely annex and rezone the Property into the corporate limits of Eagle, subject to
terms and conditions set forth in this Agreement, including publication of an annexation ordinance and a
rezone ordinance, which publication shall be contingent upon concurrent publication of all applicable
ordinances.
2.2 Term. Provided annexation and rezone of the Property has occurred as provided
immediately above, the term of this Agreement shall continue from the date of publication of the
annexation and rezone ordinances(s) in connection with the Property and shall automatically terminate on
the 10th anniversary of such date of publication without the necessity of any notice, agreement, or
recording by or between the parties. Notwithstanding anything to the contrary herein, upon the complete
execution and recordation of the Three-Party Agreement as described further herein, this Agreement
shall automatically terminate and be of no further force or effect.
ARTICLE 3
CONDITIONS ON DEVELOPMENT
3.1 The Concept Plan represents the Owner's current concept for completion of the Project.
As the Concept Plan evolves, Eagle understands and agrees that certain changes in that concept may
occur or be required. If Eagle reasonably determines that any such changes are substantial so as to
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 and notice shall be provided
as may be required by Eagle.
3.2 All development of the Property shall comply with Eagle City Code Section 8-2A (Design
Review), and be generally consistent with the Concept Plan, provided, however, it is the intent of this
Agreement to allow flexibility at the time a detailed plan and platting are submitted to Eagle so long as the
general intent of the Concept Plan and the requirements set forth in this Agreement are met. If Applicant
develops the Property prior to annexation under the jurisdiction of Ada County, the Applicant shall apply
for Design Review approval in Eagle and the County shall not issue a zoning certificate or building permit
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 3
for the Project until Eagle has provided the County with a letter of approval and/or conditions of approval
for the Project resulting from that Design Review approval.
3.3 Applicant will develop the Property subject to the conditions and limitations set forth in
this Agreement. Further, if Applicant develops the Property following annexation into Eagle, Applicant will
submit applicable applications regarding floodplain 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 Eagle City Code, which shall comply with Eagle City Code, as it exists
at the time such applications are made except as otherwise provided within this Agreement.
3.4 Notwithstanding anything to the contrary herein, all commercial uses proposed for the
Property listed below are considered permitted uses and shall not be subject to Eagle's conditional use
permitting process.
USES
Food and bevera e sales
Fuel cell
Gasoline or diesel fuel sales facility
(Automotive gas station or fuel islands) (Automotive
as station/service sho
Health clubs, s as, wei ht reduction salons
Hotel or motel
Kennel, commercial
Laboratories
Laundromat
Laund with drive u
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 4
Office, business and professional
Plant materials
3.5 Deliveries shall be conducted from the hours of 7:00am to 10:00pm all other operations
of the site shall comply with Eagle City Code Section 4-9.
3.6 The dimensional standards to be used at Eagle Island Marketplace will be those of Eagle
City as shown in the following table. Although the applicant may make application to Ada County if
necessary, such application will include a proposed development agreement with the County that would
request that the development standards to be used will be those of Eagle, into which this Property will
eventually be annexed.
Dimensional Standards of the City of Eagle and Ada County
. DIMENSIONAL.STANDARDS ... . .....;ctTYOFEAGLEl'.t.. I.t.../ .\ADACOUNTY .. ............
Standard Abutting
Residential
Front yard setback 0 35' 50'
Side street setback 0 35' 50'
Interior side yard setback 0 35' 50'
Rear yard setback 0 35' 50'
Maximum Lot Covered (percent) 92% 50%
Minimum Lot Area (Acres or 1,300 - -
Square Feet)
Minimum Lot Width 25' - -
Maximum Height 35' 50' -
Property size - 100,000 -
sq. ft.
Minimum street frontage - 600' -
Minimum property depth - 200' -
3.7 The following table demonstrates that parking at Eagle Island Marketplace exceeds the
requirements of Eagle's Code. Please note that the parking schedule below uses the most intensive use
scenario for the buildings.
Parking Schedule
PAD.#. BUILDING SQ. I PARKING P~RKlNG~rl()PER ..... .. PROPOSED USE J
..... I'. ........
... . .. . FT. STALLS .. SQ. FT. .. ..... ..J . ........ ..
1 7,800 39 5 per 1000 Retail/Restaurant
2 18,806 95 5.05 per 1000 Retail/Restaurant
3 4,000 34 8.5 per 1000 Retail/Restaurant / Drive-thru
4 10,933 54 4.94 per 1000 Retail/Restaurant
5 5,400 28 5.1 per 1000 Retail/Restaurant
6 8,876 48 5.40 per 1000 Retail/Restaurant
7 8,500 53 6.24 per 1000 Retail/Restaurant
8 5,160 37 7.2 per 1000 Retail/Restaurant
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 5
PAD........ ......BUJLDINGSQ~ . ....~.\RKING. . .~A,RI<It1I(;RAlJQ PER . . PROPOSEDUSEi.
.. q, FT~ . ..STALI..S ...SQ:FT:.'.....:. .. .... >--.;>; .
.' ... ., .. .... .. .... ..... ...
9 Retail I Restaurant I Drive-thru. I
5,600 23 5.0 per 1000 Bank
10 7,000 59 Retail I Restaurant I Drive-thru. I
8.43 per 1000 Bank
11 Retail I Restaurant I Drive-thru. I
4,000 24 6.0 per 1000 Bank
12 Retail I Restaurant I Drive-thru. I
4,000 20 5.0 per 1000 Bank
13 9,600 55 5.62 per 1000 Retail I Restaurant
14 10,257 64 6.24 per 1000 Retail I Restaurant
15 20,198 72 4 per 1000 Retail
16 30,029 106 4 per 1000 Retail
17 17,886 163 4 per 1000 Retail
18 188,115 724 4 per 1000 (Store/Mez) Retail I Grocery I Pharmacy
4 per 1000 (Garden Drive-thru I Remote Drive-up
Center) ATM
Fuel Island 173 4 1 per 2 gas pumps
Lift Station TBD 2 2 per station
Retail I Grocery I Pharmacy
4.38 stalls per 1000 Drive-thru I Remote Drive-up
TOTALS 366,333 SQ. ft. 1604 stalls SQ. ft. avg. ATM
Footnote:
Required Ratio by use per EaQle Cit Code:
Retail 1 stall per 250 s. f. or 4 per 1000
Restaurant 1 stall per 150 s.f. or 6.67 per 1000
Restaurant wi Drive-thru. 1 stall per 200 s.f. or 5 per 1000
Bank 1 stall per 200 s.f. or 5 per 1000
3.8 The design of the parking stalls and drive aisles is very important to the overall site
design of Eagle Island Marketplace. As compared to the design standards of Eagle, the parking design
standards in Ada County reflect a much greater tolerance for impervious surface. This is not optimal for a
well-designed, pedestrian-friendly marketplace. Although application may be made to Ada County, the
Applicant will utilize Eagle's parking standards and will request that the parking design standards of Eagle
are approved. The following table identifies the parking design standards of Eagle as compared to those
of Ada County:
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 6
Parking Design Standards (Eagle and Ada County)
City of Eagle Parking Dimension Standards for Standard Vehicles:
'W W goo Parallel
9'0" 9'0" 9'0" 9'0"
13'0" 10'0" 9'0" 23'0"
15'0" 18'0" 19'0" 23'0"
13'0" 17'0" 24'0"
City of Eagle Parking Dimension Standards for Compact Vehicles:
690 goo Parallel
8'0" 8'0" 8'0"
11 '0" 9'0" 8'0" 19'0"
11 '0" 14'0" 15'0" 19'0"
12'0" 15'0" 22'0"
Ada County Parking Dimension Standards:
Parking Angle ..... 00 .. 300 450 600 900
Stall Width 9'0" 9'0" 9'0" 9'0" 9'0"
Curb Length 23'0" 18'0" 12'9" 10'5" 9'0"
Stall Depth 9'0" 17'8" 20'5" 21 '1 0" 20'0"
One-Way Driving Aisle 12'0" 11 '0" 13'0" 16'0" 22'0"
Two-Way Driving Aisle 25'0" 25'0" 25'0" 25'0" 25'0"
3.9 All development of the Property shall be consistent with Landscape Guidelines, site
Design Guidelines, and Architectural Guidelines compiled in connection with the Eagle Design Review
Process, and shall be generally consistent with the Concept Plan, provided that the development
guidelines do not conflict with Section 3.2 of this Agreement. The Applicant shall submit a Design Review
site layout and landscape application for the site, and shall comply with all conditions required by Eagle
as part of Design Review prior to submittal of final plat.
3.10 Provide a master sign plan (MSP) which includes exhibits and guidelines necessary to
achieve a visually coordinated, balanced and appealing signage environment for this development. The
MSP shall include monument and wall sign styles, themes, and locations. It is the intent for the MSP to
govern all signage within the development in accordance with Eagle City Code 8-2A. The MSP shall be
reviewed and approved by the Design Review Board prior to the issuance of a zoning certificate.
3.11 The applicant's property shall be annexed into Eagle Sewer District's boundaries and
shall comply with all applicable Eagle Sewer District's regulations and conditions prior to the submittal of a
final plat application. A letter of approval shall be provided to Eagle from the Idaho Department of Health
and Welfare, Division of Environmental Quality, and/or Central District Health, prior to approval of the final
plat. Prior to issuance of a Certificate of Occupancy, Applicant shall provide proof of adequate sewer
service to the proposed habitable buildings by causing a letter of approval to be provided to Eagle from
Eagle Sewer District.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT-7
3.12 The conditions, covenants, and restrictions recorded against all portions of the property
shall contain at least the following provisions:
An allocation of responsibility for maintenance, in perpetuity, of all community and
privately owned landscape and amenities;
Establishment of an architectural control board for all buildings prior to building permit:
An allocation of responsibility for the operations and maintenance of the pressurized
irrigation system for the Property.
The conditions, covenants, and restrictions shall be reviewed and approved by the City Attorney for both
form and content to assure compliance with the conditions required herein, prior to the issuance of a
Certificate of Occupancy.
3.13 Applicant will construct improvements and satisfy all conditions required by the Ada
County Highway District and the Idaho Transportation Department prior to the issuance of any Certificate
of Occupancy for any building within the development. If Applicant submits for a Design Review
application prior to ITD/ACHD access being granted all access points and associated site design features
including but not limited to landscaping, circulation, drive aisles, pedestrian connectivity, turning
movements, site signage and parking configuration for the southeastern portion of the site must be
reviewed by the Design Review Board and approved by the Eagle City Council prior to issuance of a
zoning certificate for the site.
3.14 In addition to the sidewalks proposed around the perimeter of the development (see
Concept Plan), the applicant will design the proposed interior parking lot pathways (sidewalks) to provide
optimum pedestrian interconnectivity to all portions of the site which should reduce the need to drive from
store to store and should promote enhanced pedestrian movement within the site. The site is to be
designed with shelters, "kiosks" pergolas, etc, in strategic locations to provide refuge and visual relief to
pedestrians traversing the parking lot. The concrete sidewalks along Linder Road and Chinden
Boulevard shall be a minimum of 6-foot wide and configured in a meandering pattern compliant with all
ADA requirements.
3.15 The Applicant shall construct outdoor plaza areas in strategic locations within the
development and in front of the buildings to accommodate and facilitate gathering points for users of the
development. These plaza areas shall include items such as seating areas, art work, fountains,
landscaping, drinking fountains, bike racks, or similar features designed and displayed in a manner that
lends to establishing a common theme or identity to the development.
3.16 Due to the high visibility of the Chinden Boulevard and Linder Road intersection, special
attention shall be given to the configuration and position of the buildings abutting the roadways. Buildings
should be designed to be positioned at varied distances from the abutting roadways to provide
modulation, and building footprints and fenestrations are encouraged to be irregular to inspire greater
creative designs. All lots and buildings shall be configured to screen any and all loading areas and trash
enclosures from view as seen from residential uses or public roadways. Building placement shall be
designed such that parking areas are not concentrated between the buildings and the abutting roadways.
The parking areas depicted on the Concept Plan are not considered to be concentrated between the
buildings and the abutting roadways. The side of any buildings facing the roadways shall be provided
with architectural design elements and architectural relief, as may be approved by the Eagle Design
Review Board.
3.17 All buildings shall be set back a minimum of 105-feet from the centerline of Chinden
Boulevard to accommodate future corridor widening. Buildings shall be setback a minimum of 25-feet
from the new right-of-way line on Linder Road to provide for landscaping and potential roadway widening.
3.18 The development shall include buffers pursuant to Eagle City Code 8-3-3 D. All service
areas (loading bays, trash compactors, etc) shall be designed to lessen impacts (noise, glare, odors, etc)
upon adjacent residential uses. The storage of materials, packing supplies, and merchandise is
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 8
prohibited within the service-drive aisle and service areas. Tasteful displays of merchandise may be
permitted outdoors if approved through a development application.
3.19 The remote A TM and pharmacy shall be designed to be aesthetically pleasing and fit
within the context of the project and the City of Eagle and be shielded by landscaping, berming, and/or
the siting of other buildings within the development to reduce visibility and the impacts of noise,
headlights and glare from the exterior of the site. The remote ATM's location and siting standards are to
be provided to the Eagle Design Review Board for their review and recommendation in conjunction with
the required submittal for the site.
3.20 The Applicant shall provide for and include a cross access agreement between all lots
within the development to provide and facilitate shared access to the public rights-of-way. The cross
access agreement shall be reviewed and approved by the City Attorney for both form and content prior to
issuance of a zoning certificate. The cross access agreement shall be executed and recorded prior to the
issuance of a zoning certificate.
3.21 The applicant shall act in compliance with the intent of the Comprehensive Plan
Amendment. The terms of this Agreement regarding access meet the intent of the Comprehensive Plan
Amendment.
3.22 The Applicant shall provide bus stops as may be required by Eagle.
3.23 The entry feature shown on the Concept Plan (northeast corner of the intersection of
Chinden and Linder) shall be designed with features and elements that promote and continue the identity
and character established by other entry features located within Eagle. The specific design of the entry
feature shall be reviewed and approved by the Design Review Board and the Eagle City Council prior to
the issuance of a zoning certificate. The entry feature shall be installed prior to the issuance of a
Certificate of Occupancy for any building within the development. Upon completion, ownership of the
entry sign shall be conveyed to Eagle. Recordable provisions for the perpetual location and maintenance
of the entry sign shall be provided to Eagle. Such provisions shall be reviewed and approved by the City
Attorney prior to recordation. Such provisions shall be recorded prior to the issuance of a Certificate of
Occupancy.
3.24 The maximum total square footage of all buildings located within the development is
366,333 square feet.
3.25 The development shall be limited to three (3) drive-thru restaurants, one (1) pharmacy
drive-thru, one (1) bank (including drive-thru), one (1) remote drive-up ATM, and one (1) fuel service
station. The City may place reasonable limits on the hours of operation of all drive-thru uses to ensure
compatibility with adjacent uses.
3.26 Individual buildings located in the south portion of the development along Chinden
Boulevard shall not exceed 9,600 square feet (as proposed on the site plan). Additional uses and
expansion of individual buildings may be permitted if a modification to this application is applied for and
approved by Eagle.
3.27 All land uses approvals are predicated on the applicant utilizing only one access point on
to US 20/26.
3.28 The applicant understands the City prefers and will recommend to ACHD that a collector
road be located on this site, or to the north of this property to connect Linder Road and Meridian Road
north of State Highway 20/26 consistent with the City's Comprehensive Plan. Eagle understands that
ACHD has exclusive jurisdiction over this matter and will determine the optimal location of the collector
consistent with ACHD policy. The Applicant does not waive its right to advocate for its preference with
ACHD.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 9
3.29 The applicant recognizes the City's desire that the Chinden Boulevard and Linder Road
intersection to be constructed as seven-lane sections including right turn lanes in all directions.
3.30 The Applicant shall work with the three (3) residential neighbors immediately west of the
Property to design a landscape buffer on such neighbors lots for visual screening that contains evergreen
trees with a height of six (6) to seven (7) feet (at the time of planting) located approximately fifteen (15)
feet apart.
3.31 If the northern collector, as referenced in Section 3.28, is not located on this property the
Applicant shall work with the neighbors immediately north of the Property to locate vehicular and
pedestrian cross access to the north approximately as shown on the Concept Plan. The opening and use
of such cross access requires: a mutually acceptable restriction and easement agreement ("REA")
between the owners; a traffic study prepared by the northern neighbors determining that such cross
access will not pose safety or security issues for the residents and/or patrons of either the northern
property or the Property; and Eagle shall have approved the annexation, rezone and development
agreement for the development of the northern property, which development at the time of such approval
shall be substantially in such detail as found in the Concept Plan and this Agreement.
3.32 If the northern collector, as referenced in Section 3.28, is not located on this property the
Applicant shall work with the neighbors immediately east of the Property to locate vehicular and
pedestrian cross access to the east approximately as shown on the Concept Plan. The opening and use
of such cross access requires: a mutually acceptable REA between the owners; a traffic study prepared
by the eastern neighbor determining that such cross access will not pose safety or security issues for the
residents and/or patrons of either the eastern property or the Property; and Eagle shall have approved the
annexation, rezone and development agreement for the development of the eastern property, which
development at the time of such approval shall be substantially in such detail as found in the Concept
Plan and this Agreement.
ARTICLE 4
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of all owners of the Property agreeing to submit the Property to this
Agreement and to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section
8-10-1 has been provided and is incorporated herein by reference.
ARTICLE 5
DEFAULT
5.1 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 thirty (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 thirty (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 reasonably necessary to perform or comply so long as such party
commences performance or compliance within such thirty (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 Applicant 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 convert to RUT (Rural Urban Transitional) if the Property is under the jurisdiction of Ada
County and to the MU (Mixed Use) zoning designation if the Property is under the jurisdiction of City and
no future development of the Property shall be permitted unless and until city and Applicant (or
Applicant's successors or assigns) enter into a development agreement governing development of the
Property in compliance with any and all applicable ordinances then adopted by City. Due diligence in
curing a default shall be determined by the non-defaulting party in the reasonable exercise of such non-
defaulting party's discretion.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 10
5.2 Dispute Resolution 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 mediation process by providing written notice initiating the process to the
alleged defaulting party. Within fifteen (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 fifteen (15) days
after delivery of such notice, the persons appointed shall themselves appoint one person to serve as the
sole mediator. The mediator shall set the time and place of the mediation hearing and shall give
reasonable notice of the mediation to the parties. The parties may agree to hold the mediation session(s)
by telephone. Each party shall pay one-half of all fees and costs associated with the mediation process.
5.3 Prevailino Party. 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.
ARTICLE 6
UNENFORCEABLE PROVISIONS
6.1 If any term, provision, commitment, or restriction of this Agreement or the application
thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder
of this instrument shall nevertheless remain in full force and effect and that portion determined to be
invalid or unenforceable shall be re-negotiated in good faith between Applicant (or other appropriate
party) and Eagle.
ARTICLE 7
ASSIGNMENT AND TRANSFER
7.1 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.
Applicant'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 Applicant's rights and obligations hereunder, except an assignment for collateral
purposes only, Applicant's liability under this Agreement shall terminate. Nothing in this Agreement shall
operate to restrict Applicant's ability to assign less than all of Applicant'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. Applicant shall provide Eagle with written notice of
any assignment of Applicant's rights or obligations to such owners' association within a reasonable period
of time following such assignment. Notwithstanding any other provisions of this Agreement, Applicant may
assign all or part of Applicant's rights and duties under this Agreement as collateral to any financial
institution from which Applicant has borrowed funds for use in developing the Property.
7.2 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.
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 11
7.3 Eagle shall, upon written request of Applicant, execute appropriate and recordable
evidence of termination of this Agreement if Eagle has determined reasonably that Applicant has fully
performed Applicant'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 Eagle, and the
recordation of the final plat in connection therewith, Eagle 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.
ARTICLE 8
GENERAL MATTERS
8.1 Entire Aoreement. 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 modification
or amendment to this Agreement of any kind whatsoever shall be made or claimed by Applicant or Eagle
shall have any force or effect whatsoever unless the same shall be endorsed in writing and signed by the
party against which the enforcement of such modification or amendment is sought, and then only to the
extent set forth in such instrument. Such approved amendment shall be recorded in the Official Records
of Ada County, Idaho. Any alteration or change to this Agreement shall be made only after complying
with the notice and hearing provisions of Idaho Code Section 67-6509, as required by Eagle Code
Section 8-10-1.
8.2 Exceptions and Variances. Nothing in this Agreement shall be construed to prevent
Applicant, nor shall Applicant otherwise be prevented from seeking, by appropriate application thereof,
approval for such waivers, exceptions or variances as may be authorized by the provisions of the Eagle
City Code.
8.3 Paraoraph Headinos. 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.
8.4 Choice of Law. This Agreement shall be construed in accordance with the laws of the
State of Idaho in effect at the time of the execution of this Agreement. Any action brought in connection
with this Agreement shall be brought in a court of competent jurisdiction located in Ada County, Idaho.
8.5 Notices. Any notice that 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
With copy to:
Susan E. Buxton
Moore Smith Buxton & Turcke, Chtd.
950 W. Bannock Street, Suite 520
Boise, Idaho 83702
Applicant:
Eisenberg Company
Attn: Craig Eisenberg, President
2231 E. Camelback Road, Suite 215
Phoenix, AZ 85016
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -12
With Copy to:
JoAnn C. Butler
Spink Butler, LLP
251 East Front Street, Suite 200
Boise, Idaho 83702
or such other addresses and to such other persons as the parties may hereafter designate as provided
herein. Any such notice shall be deemed delivered upon personal delivery twenty-four (24) hours after
deposit with Federal Express or other reputable overnight delivery service, or three (3) days after deposit
in the United States mail, if sent by mail pursuant to the foregoing.
8.6 Effective Date. This Agreement shall be effective upon the recordation of this Agreement.
8.7 Waiver. No delay in exercising any right or remedy shall constitute a waiver by either
party thereof, and no waiver by Eagle or Applicant 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.
8.8 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.
8.9 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 above shall be deemed to have been incorporated herein with the same force and effect as if fully
set forth in the body hereof.
8.10 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.
8.11 Time of Essence. Time is of the essence in implementing the terms of this Agreement.
8.12 No Partnership; Third Parties. It is hereby specifically understood, acknowledged and
agreed that neither Eagle nor Applicant 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 Applicant and Eagle. 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.
8.13 Construction. All parties hereto have either been represented by separate legal counsel
or 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.
8.14 Force Maieure. If Applicant has proceeded in good faith but has been prevented from
developing the Property, in whole or in part, by circumstances beyond Applicant's control, including,
without limitation, failure of Eagle to annex all or a portion of the Property, judicial injunctions, inclement
weather, delays due to strikes, inability to obtain materials, civil commotion, terrorism, fire, acts of God, or
delays caused by Eagle, 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 - 13
8.15 Good Standinq; Authoritv. Each of the parties represents to the other that: (a) Applicant
is a Arizona limited liability company duly qualified to do business in Idaho; (b) Eagle 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.
[end of text]
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 14
IN WITNESS WHEREOF, the parties have executed this Pre-Annexation and Development
Agreement.
ATTEST:
DATED this e.tfr. day of ~r- ,2009.
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CITY:
City of Eagle, a municipal corporation
organized and existing under the laws of the
State a
By:
Phil Bandy, Mayor
DEVELOPER:
Eisenberg Company, an Arizona corporation
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STATE OF IDAHO )
) ss.
County of Ada )
On this L day of \.~~k 2009, before the undersigned notary public in and for the
said state, personally appeared HIL 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.
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. IN WITNESS WHEREOF, I have hereunto et my hand and se I the day and year first ~,Qe"&N * ...,
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PRE-ANNEXATION AND DEVELOPMENT AGREEMENT - 15
STATE OF IDAHO )
) ss.
County of Ada )
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On this ~ day of uG \~ ' 2009, before me, the undersigned, a Notary
Public in and for said State, personally a eared CRAIG F. EISENBERG, known or Identified to me to be
the President of Eisenberg Company, the Arizona corporation that executed the within and foregoing
instrument, or the person who executed the instrument on behalf of said Arizona corporation, and
acknowledged to me that such Arizona 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.
Schedule of Exhibits
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Exhibit A:
Exhibit B:
Exhibit C:
Legal Description of the Property
Concept Plan
Eagle Comprehensive Plan Land Use Map
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT -16
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
March 7, 2008
Project No. 07172
Legal Description
Lazy P Subdivision Boundary
38.39 Acres
Exhibit "An
A tract of land situated in a portion of the Southwest One Quarter of the Southwest One
Quarter of Section 24, Township 4 North, Range 1 West, Boise Meridian, Ada County,
Idaho, described as follows:
Commencing at a found Brass Cap monumenting the West One Quarter Corner of said
Section 24, thence following the westerly line of the Southwest One Quarter of said
Section 24, South 00047'25" West a distance of 2,647.18 feet to a found Aluminum Cap
monumenting the Southwest Corner of said Section 24, which bears
North 89022'32" West a distance of 2,669.63 from a found 5/8-inch steel pin
monumenting the South One Quarter Corner of said section 24;
Thence leaving said westerly line, North 29031'43" East a distance of 68.63 feet to a
found 1/2-inch steel on the easterly right-of-way line of Linder Road and being the
POINT OF BEGINNING;
Thence following said easterly right-of-way line, North 00047'25" East a distance
of 1,263.53 feet to a found 5/8-inch steel pin on the northerly line of the
Southwest One Quarter of the Southwest One Quarter of said Section 24;
Thence leaving said easterly right-of-way line and following said northerly line,
South 89032'03" East a distance of 1,300.46 feet to a point being the Northeast
Corner of said Southwest One Quarter of the Southwest One Quarter of said
Section 24;
Thence leaving said northerly line, and following the easterly line of said
Southwest One Quarter of the Southwest One Quarter of Section 24,
South 00043'59" West a distance of 1,287.22 feet to a point on the northerly right-
of-way line of West Chinden Boulevard (U.S. Highway No. 20 and 26);
Thence leaving said easterly line, and following said northerly right-of-way line,
North 89022'32" West a distance of 1,254.75 feet to a found 5/8-inch steel pin;
EXHIBIT A - 1
Thence following said northerly right-of-way line, 26.86 feet along the arc of a
circular curve to the right, said curve having a radius of 62,544.45 feet, a central
angle of 00001'29", a chord bearing of North 89022'32" West, and a chord
distance of 26.86 feet to a found 5/8-inch steel pin;
Thence following said northerly right-of-way line, North 44021'14" West a
distance of 28.39 feet to the POINT OF BEGINNING.
The above-described tract of land contains 38.39 acres, more or less, subject to all
existing easements and rights-of-way
Prepared By: THE LAND GROUP, INC.
462 E. SHORE DRIVE, SUITE 100
EAGLE, IDAHO 83616
208-939-4041
208-939-4445 (FAX)
EXHIBIT A - 2
EXHIBIT B
CONCEPT PLAN
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