Development Agreement - 2016 - Amended & Restated DA Eagle River Apts MOD 3 - 2/3/2016Recording Requested By and
When Recorded Return to:
Planning and Zoning Administrator
City of Eagle
P.O. Box 1520
Eagle, Idaho 83616
ADA COUNTY RECORDER Christopher D. Rich 2016_011066
BOISE IDAHO Pgs =10 CHE FOWLER 02/09/2016 02:37 PM
CITY OF EAGLE NO FEE
1111111111111111111111111
00192249201600110660100106
For Recording Purposes Do
Not Write Above This Line
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This Amended and Restated 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 "), and RIVERSIDE DRIVE EAGLE, LLC, ( "Owner"). Upon
recordation of this Development Agreement, that certain Development Agreement, recorded in the real
property records of Ada County, Idaho, on August 30, 2011, as instrument number 111052582 (the
"Original Development Agreement ") shall be void and of no further force or effect.
WHEREAS, Owner is the owner of record of certain real estate consisting of approximately 5.38
acres generally located on the south side of East Riverside Drive approximately 300 -feet east of East Shore
Drive at 827 East Riverside Drive, Ada County Parcel #S0516131225, ( "Property "), as specifically defined
in the attached legal description (Exhibit A), and shown on the Concept Plan (Exhibit B), which is a portion
of the site subject of an application for rezone, identified as Eagle Rezone Application No. RZ -14 -06 and
RZ -14 -06 MOD, and which is subject to an application for modification of development agreement,
identified as Eagle Rezone Modification Application No. RZ -14 -06 MODS (River's Edge Apartments);
WHEREAS, the property located directly to the east of the Property consists of approximately
18.58 acres and is generally located on the south side of East Riverside Drive approximately 100 -feet west
of South Lone Brook Way, Ada County Parcel #S0516131325, which was subject of an application for
rezone, identified as Eagle Rezone Application No. RZ- 14 -06, RZ -14 -06 MOD, and RZ -14 -06 MOD2. On
November 25, 2014, the Eagle City Council approved RZ -14 -06 MOD2 (aka Eagle Lofts Subdivision).
This action created a stand -alone development agreement for the site and removed it from the site plan
associated with Eagle Rezone Application No. RZ -14 -06 and RZ -14 -06 MOD. The Development
Agreement associated with RZ -14 -06 MOD2 was recorded in the real property records of Ada County,
Idaho, on February 24, 2015, as instrument number 2015- 014072;
WHEREAS, rezone application RZ -14 -06 MOD3 (River's Edge Apartments) and rezone
application RZ -14 -06 MOD2 (Eagle Lofts Subdivision) are governed by separate development agreements
as identified above;
WHEREAS, the proposed development includes properties within an area that, at the time the
Original Development Agreement was recorded, was designated on the Land Use Map of the
Comprehensive Plan as Mixed Use and zoned MU -DA (Mixed Use with a development agreement);
WHEREAS, Owner has developed the Property with an 80 -unit (6- buildings) multi - family
residential apartment complex identified as Eagle Design Review Application No. DR- 67 -13;
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WHEREAS, the Design Review Board of Eagle approved the Eagle Design Review Application
No. DR -67 -13 to construct six apartment buildings and clubhouse for Eagle River Apartments for Thomas
Hill on February 27, 2014;
WHEREAS, Owner desires setback modifications for Building 2 and for the two carport structures
as generally shown on the Concept Plan (Exhibit B);
WHEREAS, the City Council of Eagle has determined that the scope of any residential project
upon the Property should be limited to prevent undue damage to, and to otherwise be in harmony with, the
existing community;
WHEREAS, the intent of this Amended and Restated Development Agreement is to protect the
Owner's right to use, enjoy and develop the Property while at the same time limit any adverse impacts of
the development upon neighboring properties and the existing community and ensure the Property is
developed in a manner consistent with Eagle's Comprehensive Plan and City Code;
WHEREAS, Owner have agreed to the use restrictions and other limitations set forth herein upon
the use and development of the Property and has consented to the Mixed Use District ( "MU -DA ") zoning
designation for the Property with the requirements set forth in the Original Development Agreement as
replaced by this Amended and Restated Development Agreement;
WHEREAS, the City Council has determined that, in accordance with Eagle City Code Section 8-
2-1, the Original Development Agreement, as amended and restated by this Development Agreement, are
to be used in lieu of the PUD and conditional use process;
WHEREAS, Owner have provided Eagle with affidavits agreeing to submit the Property to a
development agreement (Exhibit C) pursuant to Eagle City Code Section 8- 10- 1(C)(1); and
WHEREFORE, Owner and the City of Eagle desire to enter into this Amended and Restated
Development Agreement 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 has adopted ordinances amending the Eagle Zoning Ordinance to rezone the Property to MU -DA,
subject to the provisions of the Original Development Agreement, and as specifically set forth previously
in Ordinance No. 662 which became effective after its passage, approval, and publication on July 24, 2011.
ARTICLE III
CONDITIONS ON DEVELOPMENT
3.1 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 review, and/or any conditional
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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 the Agreement.
3.2 The Concept Plan (Exhibit B) represents the Owner's current concept for completion of the River's
Edge Apartments, a multi - family residential 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, and
notice shall be provided as may be required by the City.
3.3 The total number of residential units on the Property shall not exceed 80 -units in the aggregate.
Development of the residential portion of the Property will be permitted through the Design Review
process and future conditional use permits for the residential development will not be required
excluding any height exceptions that may be requested. Height exceptions shall require a conditional
use permit.
3.4 Owner shall have the duty to maintain and operate all of the common landscape areas in a competent
and attractive manner, including the watering, mowing, fertilizing and caring for shrubs and trees, in
accordance with Eagle City Code, in perpetuity.
3.5 Owner shall have the duty to maintain and operate all of the drive aisles and parking areas including
the repair and replacement of asphalt and sidewalks
3.6 The Concept Plan shows the locations for all buildings within the development. The Setbacks shall
be as follows:
Front (adjacent to Riverside Drive)
Rear (southern property line)
Side (east property line)
Side (west property line)
Maximum coverage
20 -feet
50 -feet
1 -foot (carport only)
17 -feet (Building 2)
20 -feet (remaining structures)
20 -feet
5 -feet (carport only)
50%
3.7 Owner shall provide a minimum 10 -foot wide asphalt public pathway located along the southern
boundary of the site. The asphalt pathway shall be located within a 16 -foot wide easement dedicated
to and accepted by Eagle. Upon completion of the asphalt public pathway Owner shall enter into a
Pathway Permanent Easement Agreement with Eagle.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
Affidavits of the Owner 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 Owners fail 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
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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
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 Headingss. 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
Owners: Riverside Drive Eagle, LLC
Thomas D. Hill
3330 East Louise Drive, Suite #300
Meridian, Idaho 83642
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, Owners agree 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
Owners an estimate for the anticipated attorney fees and engineering fees associated with this
Agreement. The Owners 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 Owners for such fees, adjusting the estimates as appropriate. The Owners shall make
payments for such fees as incurred by Eagle and as invoiced to the Owners or, if Owners have made a
cash deposit with Eagle, Eagle may draw on the deposit to pay its invoice. If the financial assurance
deposited by Owners is in the form of a letter of credit, and if the Owners fail 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
Owners. 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 Owners 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
Owners 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 Owners fail to comply with the terms and conditions hereof in any material
respect, the City may, without further notice to Owners, exercise any or all of the following
remedies.
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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 day of 1 , 2016.
CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the
State of Idaho
By:
Stan Ridgeway, Mayor
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ATTEST:
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By. Sharon K. Bergmann, City Cler °'� E OF .pP••••
STATE OF IDAHO
ss.
County of Ada
Owner:
Riverside Drive Eagle, LLC
By:
Thom D. Hill, Managing Member
On this day of V4�0w� , 2016, before the undersigned notary public in and for the said
state, personally appeared THOMAS D. HILL, known or identified to me to be the Managing Member of
Riverside Drive Eagle, LLC, that executed the within and foregoing instrument, or the person who executed
the instrument on behalf of said limited liability company, and acknowledged to me that such limited
liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
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I., EXHIBITA
TitleOne
a Nile •e�"esc"�"'row co
Order Number. 13225208
WARRANTY DEED
For Value Received,
Sea 2 Sea, LLC, an Who limited liability company, the Grantor, does hereby grant, bargain sell and
convey unto, Riverside Drive Eagle, LLC, an Idaho limited liability company; whose current address is
33301:. Louise Dr., Ste. 300, Meridian, ID 83642, the Grantee, the following described premises, In Ada
County, Idaho, To Wit:
This parcel Is situated in a portion of Government Lot 2 of Section 16, Township 4 North, Range 1
East of the Boise Meridian, City of Nagle, Ada County, Idaho and Is more particularly described as
follows:
Beginning at the Northwest comer of said Government Lot 2; thence along the North boundary of
said Government Lot 2
SoutknO62'53" East,. 231,85. feet ;_thence_leaving_said.North boundary
South 00 007'07" West, 5,03 feet; thence
South 88 037`33" East, 72.79 feet; thence
South 00022'09" West, 150.97 feet; thence
South 89037'51" East, 107.72 feet; thence
South 00°22'09" West, 475.90 feet to a point on the Mean High Water Line of the Boise River per
State of Idaho Disclaimer No. 73; thence along said Mean High Water Line
North 70 659'32" West, 75.48 feet; thence
North 05 °28'26" West, 34.22 feet; thence
South 89117'32" West, 68.07 feet; thence continuing
South 75 014'38" West, 283.69 feet to a point on the West boundary of said Government Lot 2; thence
along said West boundary
North 0046'13" East, 648.05 feet to the Point of Beglnning.
TO HAVE AND TO HOLD the said premises, with their appurtenances unto the said Grantee, Its heirs and
asspns forever. And the said Grantor does hereby covenant to and with the said Grantee, that Grantor Is
the owner in fee simple of said premises; that they are free from all encumbrances EXCEPT those to which
this conveyance Is expressly made subject and those made, suffered or done by the Grantee; and subject to
all existing patent reservatlons, easements, rights) of way, protective covenants, Zoning ordinances, and
applicable building codes, laws and regulations, general taxes and assessments, Including irrigation and
utlilty assessments (if any) for the current year, which are not due and payable, and that Grantor will warrant
and defend the same from all lawful claims whatsoever. Whenever the context so requires, the singular
number includes the plural.
Dated: 12/19/2013
Wamnty Dead
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RIVER'S EDGE APARTMENTS
EAGLE, IDAHO
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EXHIBIT "C"
Affidavit of THOMAS D. HILL on behalf of Riverside Drive Eagle, LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
ss.
County of Ada )
THOMAS D.HILL, who being first duly sworn under oath, deposes and says:
1. 1 am THOMAS D. HILL, who is a Managing Member of Riverside Eagle, LLC, whose
mailing address is 3330 East Louise Drive, Suite #300, Meridian, ID, 83642 ( "Riverside
Drive Eagle, LLC ").
2. Riverside Drive Eagle, LLC, is the fee simple owner of the parcel of real property
described on Exhibit 1, attached hereto (the "Property ").
3. Riverside Drive Eagle, 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 , 2016 by
and between the City of Eagle, a municipal corporation in the State of Idaho, and Thomas
D. Hill, Riverside Drive Eagle, LLC (the "Agreement').
DATED this 2R day of 112016.
By: Riverside Drive Eagle, LLC
By:
omas D. Hill, Managing Member
SUBSCRIBED "Q SWORN to before me this day o 016.
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