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Development Agreement - 2020 - Hidden Pond Subdivision - 3/20/2020 ADA COUNTY RECORDER Phil McGrane 2020-039581 BOISE IDAHO Pgs=13 DAN RYALLS 04/06/2020 11:18 AM EAGLE CITY NO FEE II I II I I II I II III I II I III I II I II II I I I II I II I I II I fI III 00763444202000395810130138 Recording Requested By and When Recorded Return to: City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, Idaho 83616 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 Creek Water, LLC ("Owner"). WHEREAS, the Owner is the owner of record of certain real estate located at 1795 and 1797 West Floating Feather 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-15-18; and WHEREAS, the proposed development includes properties within an area currently zoned R-E (Residential-Estates); and WHEREAS, the Owner desires a R-3-DA-P (Residential with a development agreement—PUD) zoning classification to develop a residential 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 residential 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 Owner'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 Owner 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-3-DA-P (Residential with a development agreement—PUD) zoning designation for the Property with the requirements set forth in this Development Agreement; and WHEREAS, the Owner has provided Eagle with an affidavit agreeing to submit the Property to a Development Agreement (Exhibits B1 — B2) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by same;and Page 1 of 8 IQ'Plannn Dcpt,tiaglc AppinauonsVPrclmunaiy Development Plens,2l11S d-Iniden Pond Sob do cc In!vei,doc 1 tr WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by ft ► reference; and WHEREFORE, the Owner 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 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 R-3-DA-P (Residential with a development agreement — PUD), 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 ON DEVELOPMENT 3.1 The maximum number of dwelling units shall not exceed 8-dwelling units, including the 1-existing house (.81-dwelling units per acre). 3.2 Owner will develop the Property subject to the conditions and limitations set forth in this Development Agreement. Further, Applicant will submit such 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 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. 3.3 The Concept Plan (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. 3.4 The conditions, covenants and restrictions for the Property shall contain at least the following: (a) An allocation of responsibility for repair and maintenance of all community and privately owned landscaping, pressurized irrigation facilities, private streets, and amenities. The owner shall provide an operation and maintenance manual including the funding mechanism as an addendum to the CC&Rs and the repair and maintenance requirement shall run with the land and that the requirement cannot be modified and that the homeowner's association or other entity cannot be dissolved without the express consent of the city. (b) A requirement that the owners of Lots 12 and 13 will be responsible for the maintenance and operation of the common driveway located within Lot 1 Page 2 of 8 K[.Plannme DcpnEaale ApplicaiionsVPrcliminor Development Plans 2010 Hidden Pond Sub do cc fol i cr doe (c) A requirement for all fencing located adjacent to open space to be open-style such as wrought iron, extruded aluminum (looks identical to wrought iron), or three-rail-type decorative fencing. All other fencing (ie. dog-eared cedar fencing,vinyl, chainlink) shall be prohibited. (d) A requirement that in the event any of the CC&Rs are less restrictive than any government rules, regulations or ordinances, then the more restrictive government rule, regulation or ordinances shall apply. The CC&Rs are subject to all rules, regulations, laws and ordinances of all applicable government bodies. In the event a governmental rule, regulation, law or ordinance would render a part of the CC&Rs unlawful, then in such event that portion shall be deemed to be amended to comply with the applicable rule,regulation, law or ordinance. 3.5 Owner shall comply with all applicable Eagle Sewer District's regulations and conditions prior to the submittal of a final plat application. Prior to issuance of any building permits, Owner shall provide proof of central sewer service to the proposed residential uses. A letter of approval shall be provided to the City from the Idaho Department of Health and Welfare, Department of Environmental Quality, and/or Central District Health, prior to issuance of any building permits. 3.6 Owner shall provide a detailed arborist report and a tree inventory map identifying all existing trees located on-site. The report shall identify, at a minimum, species, size, and health of the trees. The arborist report and map shall be provided with the submittal of a design review application. Owner shall provide a narrative indicating how the trees will be incorporated into the design of the subdivision or mitigated prior to removal of the trees. No trees shall be removed from the site prior to city approval of a tree removal and replacement plan. 3.7 In conjunction with 3.6 above, all living trees that do not encroach upon the buildable area on any lot shall be preserved, unless otherwise determined by the Design Review Board. A detailed landscape plan showing how the trees will be integrated into the open space areas (unless approved for removal and mitigation by the Design Review Board) shall be provided for Design Review Board approval prior to the submittal of a final plat application. 3.8 Owner shall submit a design review application showing at a minimum: 1) proposed development signage, 2) planting details within the proposed common areas throughout the development, 3) elevation plans for all proposed common area structures and irrigation pump house (if proposed),4) landscape screening details of the irrigation pump house (if proposed), 5) useable amenities such as picnic tables, covered shelters, benches, gazebos, and/or similar amenities, The design review application shall be reviewed and approved by the Eagle Design Review Board prior to the submittal of a final development plan/final plat applications. 3.9 The existing home (Lot 13, Block 1) may continue the use of the existing well, however, in the event the well fails Owner shall be required to connect to the central water system. Owner shall provide a water stub-out for public water to the existing home prior to the issuance of any building permits for the subdivision. 3.10 Owner shall place a 4'X 8' subdivision sign containing information regarding the proposed development. The subdivision sign shall be located on the Property adjacent to West Floating Feather Road. Page 3 of 8 lU'Planning Dept AEagle Applications APrc6minaly Dcvclopntcnt Plans 2018 I-liddcn Pond Sub da cc fill ver.doc ARTICLE IV AFFIDAVIT OF PROPERTY OWNERS An affidavit of the owner(s) of the Property is attached hereto and incorporated by reference herein agrees to subject the Property to this Development Agreement (Exhibits B1 — B2) and be bound thereby, and comply with and be bound by the provisions set forth in Idaho Code Section 67-651 1A 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 Owner 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. In the event this Development Agreement is terminated pursuant to this Article 5, use of the Property shall be limited to those uses allowed within an R-E (Residential-Esates) zoning designation until Eagle enacts and records an ordinance changing the property to the R-E (Residential-Estates)zoning designation. 5.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, Eagle the prevailing party 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 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 Development Agreement 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 the Owner(s) (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 Owner. 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 Owner, and its 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 bound by and liable for all commitments and other obligations arising under this Agreement with respect to the Property or portion thereof. Page 4 of 8 K.APlannme DeptvEaglc ApplicationsAPreliunnary Development Plots"018'Hiddcn Pond Soh do cc In!vcr.doc 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 of Idaho 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 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 Owner 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: Creek Water, LLC Attn: Herman and Susan Banos P.O. Box 1575 Eagle, Idaho 83616 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 Financial Assurance. In addition to the other remedies afforded Eagle herein, Owner agrees to provide adequate financial assurance to Eagle, to secure the payment of any deferred balance of the attorney fees and the engineering fees, together with interest accrued thereon. Eagle shall provide to the Owner an estimate for the anticipated attorney fees and engineering fees associated with this Agreement. The Owner shall provide a cash deposit, letter of credit or a bond in the amount of the estimated fees associated with the work undertaken pursuant to the terms of this Agreement. Thereafter, Eagle shall bill Owner for such fees, adjusting the estimates as appropriate. The Owner shall make payments for such fees as incurred by Eagle and as invoiced to the Owner or, if Owner has made a cash deposit with Eagle, Eagle may draw on the deposit to pay its invoice. If the financial assurance deposited by Owner is in the form of a letter of credit, and if the Owner fails to make payment for such fees when actually incurred by Eagle and invoiced, then following thirty (30) days of written notice of such failure from Eagle, Eagle may draw upon the financial assurance provided by the Owner. Page 5 of 8 K`Planning Dept VEagle ApphcabonsVPrchtn nary Development Plans,201 S\Hidden Pond Sob do cc tnl rer_doc Thereafter, if the then current estimated fees still to be paid exceeds the amount of the then current balance of the financial assurance (whether it be in the form of a cash deposit or a letter of credit), the Owner shall replenish the financial assurance and shall become current as to all outstanding fees owed. Upon payment in full of all attorney fees and engineering fees, Eagle shall release to the Owner the unused portion of the cash deposit or the letter of credit, as applicable. Eagle's draw upon the financial assurance under this Section shall not preclude it from exercising any of the other rights and remedies afforded it in Article V or in Section 8.7. 8.7 Default. In the event Owner fails to comply with the terms and conditions hereof in any material respect, the City may, without further notice to Owner, exercise any or all of the following remedies. A. Withhold the issuance of any building permit or certificate of occupancy of any structure located within the Project; B. Withhold the connection of water, sewer or electric service to any property located within the Project; C. Refuse to accept public ownership and maintenance of public improvements within the Project and record a notice of such action with the Ada County Recorder's Office; D. Issue a stop work order for any building under construction within the Project; E. Withhold reimbursement of Project surety/financial guarantee of performance collected pursuant to Section 9-4-2-2 of the City Code; F. Bring an action for damages, injunctive relief, specific performance or any other remedy available at law or in equity; All of the above remedies are cumulative and to the extent not wholly inconsistent with each other, may be enforced simultaneously or separately, at the sole discretion of the City. 8.8 Effective Date. This Development Agreement shall be effective upon the signing and execution of this agreement by both parties. 8.9 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. 8.10 Termination: If a final plat associated with the Property is not recorded, this agreement shall terminate 5-years after the Effective Date. Page 6 of 8 IC manning DcpdEaglc ApphcanonsVPi chnunary Development Plans 20IS\Hiddon Pond Sub da cc Irl vcr_doc IN WITNESS WHEREOF, the parties have executed this Development Agreement. *2010 DATED this 20 day of kkotIA , fl-t . CITY OF EAGLE, a mu . ' al corporation organized and ext ting under the aws of the ate of Idaho By: Jasc erce,Mayor T: 4.1) rtVA ,- Sharon K.Blgtfii11:°10tty Clerk 45) k . ecfr ��04, '& OWNER: .i..- .. ( C.) •VORA �fi .� Creek Water,LLC - +� , . r: -�� SEAL/ S ,i'1"ZG .4 44 °; ?n, W. Ba 4, Manager ,,AIP By: / Susan G. Barros, anager STATE OF IDAHO ) : ss. County of Ada ) 20 On this 2D day of_ tk-DL►T -- , 20\2, before the undersigned notary public in and for the said state,personally appeared HERNAN W. BARROS, known or identified to me to be a Manager of Creek Water, LLC, owners of the property referenced herein and the persons who executed the foregoing instrument. IN WITNESS WHEREOF, I have hereunto set hand and seal the day and year first above written. ,,,,,,suii,,,,, C, L Public f+ - da Nn ARy.01 E Residing at: . .r •. i g...) pUI3L1C My Commission Expires: Jb�2 /22 ,\.� Se1, l , •..erl .of i9 �' ►,,,,/iiinew, Page 7 of 8 IG,Planuina Dc1 t Eagle Appltcanons;Prchmtna, Dcr clopment Plans,20 Iii Hidden Pond Sob do cc fi5I cer.doe STATE OF IDAHO ) : ss. County of Ada ) 7)0 On this 2O day of IluxYGL- , 213-1,9.,before the undersigned notary public in and for the said state, personally appeared SUSAN G. BARROS, known or identified to me to be a Manager of Creek Water, LLC, owners of the property referenced herein and the persons who executed the foregoing instrument. IN WITNESS WHEREOF, I have hereunto my hand and seal the day and year first above written. .....H..qy.• dit ,,.'qr t� ••., a U- �t ,� 1.r % . u,K••.l Wary Public for dah r 4t' •d • ! �nTaR�. _� Residing at: YWdel*1 R , 1 t� • My Commission Expires: �6 � , , • f... • • • r pv > �4 s 0 Page 8 of 8 K:,Plannine DeptlEaale ApplicationsTi elunmaty Development Plans_UIS Hidden Pond Sob da ce fil ver.doc Exhibit "A" RECEIVED& FILED CITY OF EAGLE NOV 1 5 2018 DESCRIPTION FOR File: 1795 & 1797 FLOATING FEATHER ROAD Route to: EAGLE, IDAHO A parcel of land located in the NE 1/4 of the NE 1/4 of Section 7, T.4N., R.1E., B.M., Eagle, Ada County, Idaho more particularly described as follows: Commencing at the NE corner of said Section 7 from which the N1/4 corner of said Section 7 bears South 89°27'52"West, 1321.49 feet; thence along the North boundary line of said Section 7 South 89°2T52" West, 300.01 feet to the NW corner of Covenant Hill Subdivision as filed Book 95 of Plats at Pages 11,635 through 11,639, records of Ada County, Idaho, said point being the REAL POINT OF BEGINNING; thence along the exterior boundary line of said Covenant Hill Subdivision the following 3 courses and distances: thence South 01°09'32"West, 726.04 feet; thence North 89°27'52" East, 300.01 feet; thence South 01°09'18"West, 593.93 feet to the N1/16 corner of said Section 7; thence along the South boundary fine of the NE 1/4 of the NE 1/4 of said Section 7 South 89°26'42"West, 225.00 feet to the SE corner of Lockwood Subdivision as filed Book 85 of Plats at Pages 9,546 through 9,548, records of Ada County, Idaho; thence along the easterly boundary line of said Lockwood Subdivision the following 9 courses and distances: thence North 00°00'26" East, 50.32 feet; thence 255.18 feet along the arc of a non-tangent curve to the right, said curve having a radius of 267.50 feet, a central angle of 54°3922" and a long chord which bears North 41°01'23"West, 245.61 feet; thence North 13°10'31"West, 146.14 feet; thence North 15°53'43"West, 201.02 feet; thence North 33°06'57"West, 175.62 feet; thence 67.41 feet along the arc of a curve to the right, said curve having a radius of 236.88 feet, a central angle of 16°18'15" and a long chord which bears North 24°57'50" West, 67.18 feet; thence North 12°49'30"West, 32.91 feet; Page 1 of 2 thence South 89'5934East, 23.55 feet; thence North 00032'56" West, 56.95 feet; thence continuing along the easterly boundary line of said Lockwood Subdivision and the northerly extension thereof North 03°27'07" East, 453.45 feet to a point on the North boundary line of said Section 7; thence along said North boundary line North 89°2752" East, 243.18 feet to the REAL POINT OF BEGINNING. Containing 9.85 acres, more or less. ik • ;10,i-et:r 4...f- t: IY 1 7729 4).1 944-4 G.C Page 2 of 2 EXHIBIT"B1" Affidavit of HERNAN W.BARROS on behalf of Creek Water, LLC AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ) ss. County of Ada HERNAN W. BARROS,who being first duly sworn under oath, deposes and says: 1. I am HERNAN W. BARROS, who is a Manager of Creek Water, LLC, whose mailing address is P.O. Box 1575, Eagle, Idaho, 83616 ("Creek Water, LLC"). 2. Creek Water, LLC, is the fee simple owner of the parcel of real property described on Exhibit A, (the"Property"). 3. Creek Water, LLC, authorizes the submission of the Property to certain Development Agreement pursuant to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1 dated the tay of r t}! , 20I=.by and between the City of Eagle, a municipal corporation in the State of Idaho, and Hernan W. Barros, Creek Water, LLC. (the"Agreement"). DATED this 20 day of Mottrek 20 ') By: Creek Water, LL y. B • b/ / -n an W. :.r os, Manager SUBSCRIBED AND SWORN to before me this 2o day of A 10, , 20X ��114111111JII, • ,•�,��� 11 1+.• otary Puhli or Idah - O7 �A.1n. t1 R�� Residing at 1 U -leo • My Commission expires in1.24 v Page 1 of 1 K:'d'lannmg Dept:EagIe Appl Lit om;ProInn tnanv DcvclopinoN PlaunA30 I A'I ltdden Pond Sob da affid:n h tt I,don EXHIBIT"B2" Affidavit of SUSAN G. BARROS on behalf of Creek Water, LLC AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ss. County of Ada SUSAN G. BARROS, who being first duly sworn under oath, deposes and says: 1. I am SUSAN G. BARROS, who is a Manager of Creek Water, LLC, whose mailing address is P.O. Box 1575,Eagle,Idaho, 83616 ("Creek Water, LLC"). 2. Creek Water, LLC, is the fee simple owner of the parcel of real property described on Exhibit A, (the"Property"). 3. Creek Water, LLC, authorizes the submission of the Property to certain Development Agreement pursuant to the provisions set forth in Idaho Code Section V-65 11 A and Eagle City Code Section 8-10-1 dated the /0 day of °# .fit , 20 `by and between the City of Eagle, a municipal corporation in the State of Idaho, and Susan G. Barros, Creek Water, LLC. (the"Agreement"). DATED this 20 day of , 20' By: Creek Water, LLC By: 41/41I Susan G. Barron anagen SUBSCRIBED AND SWORN to before me this 20 day of , 20Nk, Atvui ;• � 40 sO IARr ; = Notary Public for Ids a Z - Residing at g41 C1.1 CI•0-- Idaho PGELIC My Commission expires 1 NV-21-2,-2,_ dk . 1? °j •.•• " Page 1 of 1 K`Planning Dept'Eagle.Applicmums'Prchminaiy DC clopuient Plans'201A IIiddcn Pond Sub da affidavit 132,doc PRELIMINARY PLAT FOR HIDDEN POND SUBDIVISION __.___ A PARCEL OF LAND LOCATED WITHIN THE NE 1/4 OF THE NE 1/4 SECTION 7, l _ a n 11 0 TAN., R 11, B.M., EAGLE, ADA COUNTY, IDAHO l._ (.2 .4 " li 2019 i . f---) . 0 i- 2'.:S ' r 1 ) r I __ ••_ •_ - / _ _ _ . sm'IYw .rfI � • 7 a. I I r f I�- ' s PR0ELT WE rI I II I , / ; I 31 I r I I I sg R I I al`'Y; 'I '. "_'' '� i Ir VICINITY MAP 1 r qty V 1 l._ . 1 .1 I I S ! ! ) n `, #li �,..wrr I ,,. �' 9 i R 1d 66Ne11AL LQGPNU _.._ _ .YmA1`:nl•"1 I ,art I.+, I I., ...IW~`' 'w:w.�.. II + 1 •II wnn.Yr .� . �.. 2\ • ..m..i - vm�r.lwsw. _ �d1 �.'.r• Sr wr— Ila it 3' y ^i..��. �p Yt II I"� �:;11 I .1111 3 t; wm. 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