Development Agreement - 2013 - Eagle Island Crossing/Assisted Living (SUPERSEDED) - 3/5/2013 ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 11
BOISE IDAHO 03/08/13 08:30 AM
DEPUTY Vicky Bailey
RECORDED—REQUEST OF 1111111111111111111111111111111111111
Eagle City 113024774
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 Eagle Island Crossing,LLC. ("Owner").
WHEREAS,the Owner is the owner of record of certain real estate located at 3605 West Flint
Drive,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-04-12; and
WHEREAS,the proposed development includes properties within an area currently zoned A-R
(Agricultural-Residential up to one(1)unit per five(5)acres);and
WHEREAS,the Owner desires a MU-DA(Mixed Use with a development agreement)zoning
classification to develop an assisted living facility and senior housing 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 assisted living 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 MU-DA(Mixed Use with a development
agremment)zoning designation for the Property with the requirements set forth in this Development
Agreement;and
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WHEREAS, the Owner has provided Eagle with an affidavit agreeing to submit the Property to a
Development Agreement (Exhibit C) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by
same;and
WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by
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 Mixed Use District ("MU-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 The Concept Plan (Exhibit B) represents the Owner's current concept for completion of the
Project. As the Concept Plan evolves, the City understands and agrees that certain changes in that
concept may occur or be required. If the City determines that any such changes require additional
public comment due to potential impacts on surrounding property or the community, a public
hearing shall be held on any proposed changes in the Concept Plan and notice shall be provided as
may be required by the City.
3.2 Owner will develop the Property subject to the conditions and limitations set forth in this
Development Agreement. Further, Owner 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 Owner shall submit a Design Review application for the site(as required by Eagle City Code)
and shall comply with all conditions required by the City of Eagle as a part of the Design Review
prior to receiving a Certificate of Occupancy for any structure constructed on the site.
3.4 Development of the Property will be permitted through the Design Review process and future
conditional use permits for the assisted living facility (nursing/convalescent home) and the 23-
residential cottages will not be required, excluding any height exceptions that may be requested.
Height exceptions shall require a conditional use permit.
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3.5 The assisted living facility (nursing/convalescent home) shall be architecturally designed to be
compatible to the commercial buildings located within Art's West Subdivision.
3.6 The residential cottages shall be architecturally designed to be similar in appearance to the
residential dwellings located within The Crossing Cottages Condominiums.
3.7 The foundations of the two-family residential cottages shall be spaced no less than 10-feet from the
adjacent residential cottage and no less than 15-feet from the assisted living facility.
3.8 The setbacks for all structures shall be measured from the perimeter of the property with West
Flint Drive(north property line)being considered the street that the front setback will be measured
from.
3.9 The Owner shall be required to provide sidewalks and vertical curbing (as shown on the Concept
Plan) throughout the development prior to issuance of a Certificate of Occupancy for either the
assisted living facility or any of the proposed residential cottages.
3.10 The Owner shall be required to remove the existing structures located on the site prior to the
commencement of construction of the proposed improvements to the site.
3.11 The 23-residential cottages shall be limited to "older persons" (55 and over — as defined by the
federal fair housing act of 1999,or any subsequent revision thereof).
3.12 The Owner shall comply with all requirements of the Ada County Highway District(ACHD).
3.13 The Owner shall enter into a formalized agreement with the adjacent property owner to the west
(Kim and Sherry Washburn) approving the construction of a six-foot (6') high fence to provide
buffering adjacent to the common property line located on the western boundary of the site.
3.14 The City of Eagle shall notify the adjacent neighbor to the west located at 3855 West Flint Drive,
prior to the Design Review Board meeting date for the Design Review Board's review of the site
plan and proposed building architecture.
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 (Exhibit C) and be bound thereby, and comply
with and be bound by the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code
Section 8-10-1 shall be provided and is incorporated herein by reference.
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.
5.2 If required to proceed in a court of law or equity to enforce any provision of this Development
Agreement,Eagle shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin
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such default and to enforce the commitments contained in this Development Agreement, including
attorneys' fees and court costs.
5.3 If the terms of this Development Agreement expires prior to completion of the Conditions of
Development or without an amendment to this Agreement for its extension being in process in
accordance with the notice and hearing provisions of Idaho Code Section 67-6509, as required by
Eagle City Code Section 8-10-1,use of the property shall be limited to those uses allowed within an A-
R(Agricultural-Residential) zoning designation until Eagle enacts and records an ordinance changing
the property to the A-R(Agricultural-Residential)zoning designation.
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 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 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 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 bound by and 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 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.
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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: Eagle Island Crossing,LLC
Attn: J. Thomas Ahlquist
850 West Main Street
Boise,ID 83702
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. 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.
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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 8.6 of this Development Agreement and 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.
IN WITNESS WHEREOF,the parties have executed this Development Agreement.
DATED this 5 day of Mdrtk,2013.
CITY OF EAGLE, a municipal corporation organized
andi isting under the l/ of the State of Idaho
B . ,
James D. Reynolds, . or
ATTEST:
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Sharon Bergmann,City Clerk G •• 4 o �.i Tom•�R
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EAGLE ISLAND CROSSING,LLC, an Idaho limited
liability company
By: Ahlquist Development,LLC, an Idaho limited
liability company,
Its: Mana r
J. Thomas Ahlquist
Its: Member
STATE OF IDAHO )
): ss.
County of Ada )
On this day of Iv1QYC.,L- ,2013,before the undersigned notary public in and for
the said state,personally appeared JAMES D. REYNOLDS,known or identified to me to be the Mayor of
the City of Eagle and the person who executed the foregoing instrument on behalf of said City and
acknowledged to me that said City executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand and seal the day and year first above
written. ,•��swims i
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1 If4o" R Y '; -4c 'Notary Pu t i o. Idal /• $esiding a
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STATE OF IDAHO )
): ss.
County of Ada )
On this ' day of Ha/Vail ,2013, before me, .U/1 ( e' ►V t vLI et
a Notary Public in and for said State, personally appeared i d i A/ (,mown or identified to
me to be one of the members of Ahlquist Development, L.L.C., an Idaho •ted liability company, a
manager of Eagle Island Crossing, LLC, an Idaho limited liability company, who subscribed said
company's name to the foregoing instrument, and acknowledged to me that he executed the same in said
company's name.
IN WITNESS WHEREOF,I have hereunto set my hand and seal the day and year first above
written. ������,���Il••ll/��� qtfrtvtAi)/(Alivicu-m-
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EXHIBIT "A"
LEGAL DESCRIPTION
Lot 3 in Block 2, of the AMENDED PLAT OF FLINT ESTATES, according to the official plat
thereof, filed in Book 45 of Plats at Page(s) 3713 and 3714, official records of Ada County,
Idaho.
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Exhibit "C"
Affidavit of J.THOMAS AHLQUIST on behalf of Eagle Island Crossing,LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
) ss.
County of Ada )
J. THOMAS AHLQUIST,who being first duly sworn under oath,deposes and says:
1. I am J. Thomas Ahlquist, who is the a Member of Ahlquist Decelopment, LLC, a
Manager of Eagle Island Crossing, LLC whose mailing address is 850 West Main Street, Boise, ID,
83702("Eagle Island Crossing,LLC").
2. Eagle Island Crossing, LLC, is the fee simple owner of the parcel of real property
described on Exhibit 1,attached hereto(the"Property").
3. Eagle Island Crossing, 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 day of kagAA, 2013 by and between the City of Eagle, a
municipal corporation in the State of Idaho, and J. Thomas Ahlquist, Ahlquist, LLC, a Manager of Eagle
Island Crossing,LLC, (the"Agreement").
DATED this 14 day of M kY vV` ,2013.
By: EAGLE ISLAND CROSSING,LLC,an
Idaho limited liability company
By: Ahlquist Development,LLC,an
Idaho limited liability company,
Its: anager
J. Thomas Ahlquist
Its: Member
SUBSCRIBED AND SWORN to before me this y- day of l�a,14 2013.
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