Development Agreement - 2009 - Walgreen Cottonwood - 10/22/2009
ADA COUNTY RECORDER J. DAVID NAVARRO
BOISE IDAHO 10/22/09 01:41 PM
DEPUTY Lila Ball
RECORDED-REQUEST OF
Eagle City
AMOUNT
.00
10
1111111111111111111111111111111111111
109119970
Recording Requested By and
When Recorded Return to:
City of Eagle
660 E. Civic Lane
P.O. Box 1520
Eagle, Idaho 83616
F or 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 ofldaho ("Eagle"), by and through its
Mayor, and Cottonwood Eagle Road, LLC ("Applicant").
WHEREAS, the Applicant is the owner of record of certain real estate located at 235,247,265,
and 403 South Eagle Road, 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-I0-08; and
WHEREAS, the proposed development includes properties within an area currently zoned R-4
(Residential up to four units per acre maximum); and
WHEREAS, the Applicant desires a CBD-DA (Central Business District with a development
agreement) zoning classification to develop a commercial 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 the scope of any commercial project upon 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 CBD-DA (Central Business District
with a development agreement) zoning designation for the Property with the requirements set forth in this
Development Agreement; and
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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
WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by
reference; and
WHEREFORE, the Applicant and the City of Eagle desire to resolve the issues and concerns that
have arisen and for and in consideration ofthe 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 of Idaho 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 the Central Business District ("CBD-DA"), 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 Eagle hereby acknowledges that the attached Site Plan (Exhibit "B") and Building Elevation
Plans (Exhibit "C") 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. 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.
3.2 The commercial buildings shall be constructed utilizing "Prairie School" style architecture
(Exhibit "C") and shall be required to meet the design review requirements as set forth in
Eagle City Code and the Eagle Architecture and Site Design book. Eagle Design Review
Board and Eagle City Council approval of the detailed architectural plans for the development
is required prior to the issuance of building permits for commercial/retail buildings.
3.3 Except for the limitations and allowances expressly set forth within and the other terms of this
Agreement, the Property can be developed and used consistent with the Central Business
District land uses allowed by the Eagle City Code Section 8- 2-3 "Official Schedule of
District Regulations", existing at the time a design review application or conditional use
permit application (whichever the case may be) is made for individual building use.
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3.4 The applicant shall remove all residences and any accessory (secondary) structures from the
site prior to the issuance of any building permits for the site. Demolition permits shall be
obtained prior to the removal of said buildings.
3.5 The applicant shall submit a Lot Line Adjustment application and record of survey showing
the formation of two (2) buildable parcels, one (1) community events gathering space parcel,
and one (1) ingress/egress access parcel, to be reviewed and approved by the Zoning
Administrator and City Engineer, and subsequently recorded prior to the issuance of a zoning
certificate.
3.6 The development is to incorporate public art, water features, or other features of interest and
pedestrian amenities, which encourage pedestrian use (i.e.: outdoor drinking fountains,
benches, tables, etc.).
3.7 The applicant shall submit a design review application showing at a minimum: 1) proposed
development signage, 2) planting details within the proposed community events gathering
space, 3) footprints of proposed buildings to make a determination regarding, 4) landscape
screening details within the twenty foot (20') wide buffer area adjacent to the western
boundary line showing the landscaping to comply with the buffer requirements for a
commercial use adjacent to a residential use. The design review application shall be reviewed
and approved by the Eagle Design Review Board and Eagle City Council prior to the issuance
of a zoning certificate.
3.8 The building shown on the concept plan as Retail shall not exceed 14,900 square feet in size
and the building shown as Restaurant/Shops shall not exceed 13,840 square feet in size.
3.9 A drugstore with drive-thru service shall be a permitted use on this site and the drugstore
drive-thru lane shall be located on the west side of the building with the lane of travel facing
south thus allowing for the landscaped internal parking islands, and building located off-site to
the south to shield lights and noise from vehicles utilizing the drive-thru service facility.
3.10 The future building on this site shall be connected to the public water system prior to the
issuance of a Certificate of Occupancy. Documentation from Eagle Water Company indicating
that potable water service has been approved to serve the site shall be provided to the City
prior to the issuance of a zoning permit.
3.11 Prior to issuance of any building permits, applicant shall provide proof of central sewer service
(Eagle Sewer District) to the proposed commercial uses.
3.12 Existing access points to the property from Eagle Road are temporary and shall be removed at
such time that access on the northern portion of the site is completed. The applicant shall
provide a cross access agreement with the adjacent property owners to the north and south.
The cross access agreement shall contain language for the removal of all existing access points
upon completion of the access located on the northern portion of the property. The cross
access agreement shall be reviewed and approved by the City Attorney and shall be executed
and recorded prior to the adoption of the ordinance to rezone the property.
3.13 Because of the unique nature of this development the applicant should work with the City
Forester regarding the removal and replacement of the existing trees at the replacement size as
required per Eagle City Code or provide compensation to the City Tree Fund at a valuation
rate to be determined by the City Forester and approved by the City Council prior to the
issuance of a zoning certificate for construction of commercial buildings on the site.
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3.14 The applicant shall abandon and remove all existing wells and septic systems prior to the
issuance of zoning certificates for construction of new buildings on site. Central District
Health Department approval is required for the abandonment of existing wells and septic
systems.
3.15 The development shall comply with the Eagle City Code, as it exists in final form at the time
an application is made and the conditions within this agreement shall be satisfied.
3.16 Applicant shall comply with all requirements of the Ada County Highway District (ACHD) as
applicable including but not limited to location of ingress/egress access point(s), and
pedestrian facilities in proximity to E. Plaza Drive.
3.17 The applicant shall show that adequate parking is provided based on the size and uses
proposed for the buildings to be constructed on the site. If adequate onsite parking does not
exist the applicant shall work with the adjacent property owners to establish ajoint/collective
parking facility pursuant to Eagle City Code.
3.18 A letter of approval shall be provided to the City from Drainage District No.2 approving any
encroachments of the District's facilities. The applicant shall also provide a copy of any
License Agreement associated with the site prior to the issuance of building permits.
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
DEFAULT
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 oflaw 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.
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 R-4
(Residential up to four units per acre maximum) 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.
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ARTICLE VI
UNENFORCEABLE PROVISIONS
Subject to terms of Section 5.3 above, if any term, provision, commitment, or restriction of this Agreement
or the application thereofto 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 Applicants
(or other appropriate party) and Eagle.
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 ofldaho 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.
8.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the
State ofldaho 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;
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Eagle:
City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owner:
Cottonwood Eagle Road, LLC
Old Mill Corporate Center
6350 South, 3000 East, Suite 510
Salt Lake City, UT, 84121
Or such other address and to such other persons as the parties may hereafter designate. Any such
notice shall be deemed given upon receipt if by 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.
8.8 Authority to Enter Into Agreement: By the execution and delivery of this Agreement by the parties,
and the performance of their covenants and obligations therein, the parties acknowledge such action
has been duly authorized by all necessary corporate (or LLC) action, and necessary corporate (or LLC)
resolution(s) have been executed for the undersigned representatives to sign this Agreement and so
bind their respective parties.
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
M '~oo9
DA TED this ~ day of . ;-We&:-
By:
Phil
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STATE OF IDAHO )
: ss.
County of Ada )
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On this A day of -+0 ~v ,2008, 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.
~i~n. m ~~::~r;:~::~ I have hereoo~~:~eal ~:~ above
I ':, ..... >.. I " 0 ry PublIc for Ida 0 rt. . J . ,
: l ~ 0 r i\ ' \ ':;, Residing at: Ck. ~fLci...~
~.: _e_ : ~ My Commission Expires: - _ 2-0{ If'
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STATE OF IDAHO )
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County of Ada )
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On this ~ day of Ol~ 0 b <--v- ,~, before the undersigned notary public in and for
the said state, personally appeared CHAD CHRISTENSEN, known or identified to me to be the President
of Cottonwood Eagle Road, LLC, 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.
l.~+J ~~ ~"-y-
Notary blic for Ida 0
Residing at: ~ t:...-...--.. La .
My Commission Expires: m~ i 'do. ,?"'o \ 4-
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RECEIVED & FILED
CITY OF EAGLE
AUG 2 , 2008
EXHIBIT A
LEGAL DESCRIPTION:
The South 45 feet of the following described tract:
File:
Route to:
Parcel I:
Commencing at a point on the East line of Section 8, Township 4 North, Range 1 East, Boise
Meridian, Ada County, Idaho, 417.2 feet North of the Southeast corner of said Section 8, the
POINT OF BEGINNING; thence South along the East line of said Section 8 a distance of 89 feet;
thence West 322 feet to a point on the Easterly bank of the drain ditch; thence North 32057' East
along the Easterly bank of said drain ditch, a distance of 107 feet, more or less, to a point due
West of the point of beginning; thence East 265 feet, more or less, to the point and place of
beginning.
Parcel II:
That portion of the Southeast Quarter of Section 8, Township 4 North, Range 1 East, Boise
Meridian, Ada County, Idaho, more particularly described as follows:
Commencing at the section corner common to Sections 8,9,16 and 17, Township 4 North, Range
1 East, Boise Meridian, which point is marked by an iron rod; thence North along the Section line
328.2 feet, to the REAL POINT OF BEGINNING; thence West 322 feet to an iron bolt on the
Southeasterly bank of the drainage ditch; thence South 32055' West 59.6 feet to an iron bolt;
thence South 32057' West 29.80 feet to a point; thence East a distance of 373,50 feet to a point
on the section line; thence North a distance of 75.00 feet to the PLACE OF BEGINNING.
Parcel III:
Commencing at the corner of Sections 8,9, 16 and 17, Township 4 North, Range 1 East, Boise
Meridian, Ada County, Idaho; thence North along the section line a distance of 178,20 feet to a
point, the REAL PLACE OF BEGINNING; thence West a distance of 415.60 feet to a iron pin; thence
North 32057' East a distance of 89.40 feet to a point; thence
East a distance of 373.50 feet to a point on the section line; thence
South a distance of 75 feet to the PLACE OF BEGINNING.
LESS AND EXCEPTING therefrom that portion of said property conveyed to State of Idaho, Idaho
Transportation Department, by Warranty Deed, recorded December 5, 1994, as Instrument No.
94105846, records of Ada County, Idaho.
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