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Development Agreement - 2013 - Lockey Subdivison - 3/29/2013 ADA COUNTY RECORDER Christopher D.Rich AMOUNT .00 9 BOISE IDAHO 08/06113 08:51 AM DEPUTY Bonnie Oberbillig II I 1 1 11 1 11 11 1 11 11 1 1 11 1 1 111111U I I III Recording Requested By and RECORDED—REQUEST OF 1108277 When Recorded Return to: Eagle City 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 Somerset Farms,Inc. ("Owner"). WHEREAS, Somerset Farms,Inc.,is the owner of record of certain real estate located at 3633 W. Beacon Light 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-06- 07;and WHEREAS, the proposed development includes properties within an area currently zoned RUT (Rural-Urban Transition-Ada County designation);and WHEREAS, the Owner desires a R-2-DA (Residential-Two units per acre with a development agreement)zoning classification to develop a thirty-three(33)lot residential subdivision use on the above described property,which is herein referred to as the"Property";and WHEREAS,the Planning and Zoning Commission and the City Council of Eagle have determined that allowing an R-2 zoning designation for the Property must be limited with the use of a development agreement to prevent undue damage to,and to otherwise be in harmony with,the existing community;and WHEREAS, the intent of this Development Agreement is to protect the rights of 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-2-DA (Residential-Two units per acre with a development agreement) zoning designation for the Property with the requirements set forth in this Development Agreement;and WHEREAS, the Owner has previously provided Eagle with an affidavit (Exhibit C) agreeing to submit the Property to a Development Agreement pursuant to Eagle City Code Section 8-10-1(C)(1);and Page 1 of 6 K:\Planomg Dept\E°6k Appticatiom\SUBS\2007\Cockuy Sub da cc fvl ver.doc 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 an R-2-DA (Residential-Two units per acre with a development agreement) zoning designation, after recordation of, and subject to the provisions of this Development Agreement. The ordinance will become effective after its passage, approval, and publication and the execution and recordation of this Development Agreement. ARTICLE III CONDITIONS OF DEVELOPMENT 3.1 The maximum overall density of the property shall not exceed 1.60 units per acre. 3.2 The Concept Plan(Exhibit B)represents the Owner's current concept for completion of the project. As the Concept Plan evolves, the City understands and agrees that certain changes in that concept may occur or be required. If the City determines that any such changes require additional public comment due to potential impacts on surrounding property or the community, a public hearing shall be held on any proposed changes in the Concept Plan,notice shall be provided as may be required by the City. 3.3 Owner will develop the Property subject to the conditions and limitations set forth in this Development Agreement. Further, Owner 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. ARTICLE IV AFFIDAVIT OF PROPERTY OWNERS An affidavit of the owner of the Property agreeing to submit the Property to this Development Agreement and to 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 Page 2 of 6 K:\Planning Dept\Eagle Applications\SUBS\2007\Lockey Sub da cc fnl vet doc rights or remedies,to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement or to terminate the Development Agreement following the process established in Eagle City Code Section 8-10-1. 5.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement,Eagle shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorneys' fees and court costs. 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 Owner 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 of Idaho Code Section 67-6509,as required by Eagle City Code Section 8-10-1. Page 3 of 6 K:\Plamnmg Dept Eagle Appbcationa\SUBS\200TLockey Sub dace flit ver.doc 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: Somerset Farms,Inc. Attn:Paul E.Johnson,Vice President 99 East State Street,Suite 200 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 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. Page 4 of 6 K:\Plannmg Dept\Eagle Applications\SUBS\2007\Luckey Sub da cc fol ver.doc IN WITNESS WQHEREOF,the parties have executed this Development Agreement. DATED thisc2 W/HEREOF, of TVk y ,2013. •.. ...Z O F E,q CITY OF EAGLE,a municipal corporation organized Gti.•.••""••.Cl :P and;existing under laws of the State of Idaho * GOR OI�q i,'•:.. B �.•• • :• es D.Reynold Mayor E • ATTEST: .: ,• •••.PoR ��.•A�� •© •; 9 ••....•• .• •• 4 .,',,TE OF 19',•*�. -�'�� .LP,ft:.&t Sharon K.Bergmann,City lerk Owner: Somerset Farms,Inc By: r i. `' <ul ohns t 1,V. e President STATE OF IDAHO ) : m County of Ada ) On this a-7 day of r1441.1 ,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 hereunto set my hand and seal the day and year first above written. �e OSB Rey 0 At 162)/x)-(_____ ra "C 0 I V C •Lary Publi i ,r aho '� k # r z . Residing at % _ `,__,l< to `4� My Commission Expires: 40/ � O/s $,_ STATS,,to*' hssass0I ass Page 5 of 6 K:\Plamm5 DcW\E*Applications SUBS N.2007\Lockry Sub do cc thi ver.doc STATE OF IDAHO ) : ss. County of Ada ) /01 On this.2 li day of / ,2013,before the undersigned notary public in and for the said state,personally appeared PA E.JOHNSON,known or identified to me to be the Vice President for Somerset Farms,Inc,owner 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. .��‘\ / rPFP S.Mc®F‘�11 ,.. _�1,U I .(A. :. Li.!%•i ---,..c,... , T A .41 11 Notary Public for o o • r�.• `�O 4 111 Residing at: /2 : —40.... My Commission Expires: -10 6 A 'l 0B1.\G . ,�dg ioP_ Page 6 of 6 K.\Plannmg Dept\Eagle Applications\SUBS\2007\Luckey Sub de cc fel ver.doc Affidavit of PAUL E.JOHNSON on behalf of Somerset Farms,Inc. AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ) ss. County of Ada ) PAUL E.JOHNSON,who being first duly sworn under oath,deposes and says: 1. I am Paul E. Johnson,who is the Vice President of Somerset Farms,Inc.,whose mailing address is 99 Fast State Street,Suite 200,Eagle,ID,83616("Somerset Farms,Inc."). 2. Somerset Farms,Inc., is the fee simple owner of the parcel of real property described on Exhibit 1,attached hereto(the"Property"). 3. Somerset Farms, Inc., 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 , 2013 by and between the City of Eagle, a municipal corporation in the State of Idaho,and Somerset Farms,Inc.(the"Agreement"). DATED this 2#' ay of /774-Y ,2013. S. M Q •' A • �� By: Somerset Farms,Inc. co: kN: 9 ypti •--% • • 'O0BL�G By: .>.,/r ' err:" ( �� ohn�n'ice President ,` SUBSCRIBED AND SWORN to before me this 7 day of 1,41 _ ,2013. JO) :414/ IL _ .�. .4 A J r No —Public or II . Residing at `- & Idaho My Commission expires (�`! t Li Page 1 of 1 K:\Planning Dept\F gle Applications\SUBS12OO7 Lockey Sub da affidavf.doc RECEIVED& FEED CITY OF EAGLE E 711 7:13 T•O ENGINEERS JUN 2 0 2013 CONSULTING ENGINEERS,SURVEYORS AND PLANNERS Fi e: I 332 N.BROADMORE WAY SUITE 101 , +� NAMPA,IDAHO 83687 208-442-6300•FAX 208-466-0944 - ,F / ins S6'0 Project: 130001 VOc 4.Date: June 20, 2013 . 6 ®Page: 1 of 1 �,O0-/e- • Exhibit "A " 8RO` Lockey Subdivision This parcel is situated in the E. 1/2 of Government Lot 2 of Section 1, Township 4 North, Range 1 West of the Boise Meridian, Ada County, Idaho and is more particularly described as follows: COMMENCING at an aluminum cap monument marking the northwest corner of said Government Lot 2, said point being referenced in Corner Perpetuation and Filing, Instrument No. 96001258, Records of Ada County; thence along the north boundary of the W. '/2 of said Government Lot 2, A) S.89°13'23"E., 660.46 feet to found 5/8-inch iron pin marking the northwest corner of the E. 1/2 of said Government Lot 2,being the POINT OF BEGINNING; thence along the north boundary of the E. 1/2 of said Government Lot 2, B) S.89°13'39"E., 660.46 feet to a 5/8-inch iron pin marking the northeast corner of said Government Lot 2, also being the northwest corner of Tamara Place Subdivision, on file in Book of Plats No. 58, Pages 5538 through 5539, Records of Ada County; thence along the east boundary of said Government Lot 2 and the west boundary of said Tamara Place Subdivision, 1) S.00°53'33"W., 1342.97 feet (of record 1342.62 feet) to a 5/8-inch iron pin marking the southwest corner of said Tamara Place Subdivision, also being the northeast corner of Tabasco Subdivision, on file in Book of Plats No. 81, pages 8777 through 8778 and the northwest corner of Henry's Subdivision, on file in Book of Plats No. 88, pages 10,039 through 10,040, Records of Ada County; thence along the north boundary of said Tabasco Subdivision, 2) N.89°12'49"W., 660.73 feet to the southeast corner of Whitehorse Subdivision, on file in Book of Plats No. 80, pages 8618 through 8619; thence along the east boundary of said Whitehorse Subdivision and the west boundary of the E. 1/2 of said Government Lot 2, 3) N.00°54'15"E., 1342.82 feet to the POINT OF BEGINNING. 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