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Development Agreement - 2016 - Liberty Park MOD - 2/23/2016Recording 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 201 6 - 023970 BOISE IDAHO Pgs =14 BONNIE 03/23/2016 04:06 PM EAGLE CITY NO FEE 111111111111 111111111111111111 1111111111111111111 00206528201900239700140445 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 LIBERTY PARK, LLC, an Idaho limited liability company ( "Owner "). WHEREAS, Owner is the owner of record of certain real estate consisting of approximately 3.79 - acres generally located at the southeast corner of W. Flint Drive and N. Park Lane, Ada County Parcel R2860500072 ( "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portion of the site subject ofan application for rezone, identified as Eagle Rezone Application No. RZ -08 -03 which is superseded by Rezone Application No. RZ -0I -15 and subsequently modified by a Development Agreement Modification, identified as Eagle Rezone Modification Application No. RZ -0 1 -15 MOD; and WHEREAS, Owner and its predecessors in interest have previously entered into a series of development agreements with Eagle, consisting of the following rezoning a portion of the Property pursuant to Rezone Application RZ -08 -03 recorded in real property records Ada County, Idaho, on January 20, 2005, as instrument number 105007541 ( "2005 Development Agreement "), amended on December 8, 2008, as instrument number 108130290 ( 112008 Amended Development Agreement "), amended on January 26, 2012, as instrument number 112007678 ( "2012 Amended Development Agreement ") and amended on August 6, 2013, as instrument number 113089276 ( "2013 Amended Development Agreement ") these agreements collectively being referred to hereafter as the "Prior Agreements "; and WHEREAS, upon recordation of this Development Agreement, that Condition of Development #3.21 of certain Prior Agreements recorded in the real property records of Ada County, Idaho, on August 6, 2013, as instrument number 113089276 (the "2013 Amended Development Agreement "), associated with Property, shall be void and of no further force or effect. WHEREAS, the proposed development includes properties within an area that, at the time the Prior Agreements were 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); and WHEREAS, Owner desires to develop the Property with an 21 -lots (14- residential, 2- commercial, and 5- common) subdivision use as generally shown on the Concept Plan (Exhibit B); and WHEREAS, the City Council of Eagle has determined that the scope of any commercial and residential project upon the Property should be limited to prevent undue damage to, and to otherwise be in harmony with, the existing community; and [''age 1 of 9 A (Planning DeptTagle Applicatiun%lSUl3S40 I$Wbeny Park Sub do cc fal ver ducx 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; and 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 this Amended and Restated Development Agreement; and WHEREAS, the City Council has determined that, in accordance with Eagle City Code Section 8- 2-1, the Amended and Restated Development Agreement, is to be used in lieu of the PUD and conditional use process; and 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 -6511 A 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. 492 which became effective after its passage, approval, and publication on May 23, 2005. ARTICLE III CONDITIONS ON DEVELOPMENT 3.1 The maximum density for the Property shall be 3.69 dwelling units per acre. 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 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. 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. 3.4 In accordance with ECC Section 8 -2 -1, this Development Agreement is considered in -lieu of a PUD (except as conditioned below). Except for the Iimitations and allowances expressly set forth Page 2 of 9 K Manning DcptTagle ApplicationsWEM- 1013%ibcny Park Sub da cc Ad scr doca herein below, and in other terms of this Development Agreement, the uses which are shown as permitted (P) or conditional (C) uses under the Mixed Use zoning designation within Eagle City Code Section 8 -2 -3 "Official Schedule of District Regulations' shall be considered Permitted on Lots 2 and 3, Block 1, except the following uses shall be prohibited: Mobile home (single unit primary residence) Mobile home (single unit temporary living quarters) Mobile home park Animal shows or sales Automotive washing facility Bar Cabinet shop Cemetery Circuses and carnivals Christmas tree sales Commercial entertainment facilities (indoors) Commercial entertainment facilities (outdoors) Drive -in theater Electronic sales, service, or repair shop Equipment rental and sales yard Farmer's markets (outdoor) Hardware store Horticulture (general) Hospital Hotel Industry Kennel Laboratories Laundromat Laundry (with drive up service) Live entertainment events Mobile office Mortuary Motel Parking lot, parking garage commercial Personal wireless facilities (height — over 35 feet) Research Activities Retail sales (general) Riding academies /stables Roadside Stand (temporary structure) Sign shop, including painting Small engine repair (mower, chainsaws, etc.) Storage (enclosed building) Storage (fenced area) Street fair Trade fair Upholstery shop Woodworking shop 3.5 The Owner shall submit a Master Design Review site layout and landscape application for Lots 2 & 3, Block 1, and shall comply with all conditions required by Eagle as part of the Design Review prior to the issuance of a building permit. Page 3 of 4 K V11anning Dept1Fag1e AppliealionsLSUM.Z j151Li" Patk Sub da tt fnl ver docx 3.6 The single- family dwellings shall be constructed utilizing "Craftsman" style architecture (Exhibit D). The design of commercial buildings shall incorporate residential elements to ensure compatibility with surrounding uses. All commercial buildings shall be designed in accordance with the Eagle Architecture and Site Design book (EASD) as set forth in Eagle City Code Section 8 -2A. Eagle Design Review Board approval of the detailed architectural plans for the development is required prior to the issuance of building permits for commercial buildings, pumphouse for irrigation, and gazebos. To assure compliance with this condition, the applicant shall create an architectural control committee (ACC) as a component of the development's CC &Rs. Provisions regarding the creation and operating procedures of the ACC shall be included in the CC &Rs, and shall be reviewed and approved by the City attorney prior to the approval of the first final plat. The submittal of the building permit application to the City for each building within the development shall be accompanied by an approval letter from the Architectural Control Committee. Building permit applications that do not have an approval letter attached will not be accepted. 3.7 Excluding the residential portion of the subdivision, all buildings require the approval of the Design Review Board. The design of the buildings shall incorporate residential elements to ensure compatibility with surrounding uses. All buildings shall be designed in accordance with the Eagle Architecture and Site Design book (EASD) as set forth in Eagle City Code Section 8 -2A. 3.8 The setbacks (measured from the property line) shall be as follows (including commercial): Front: 20- feet/living area, 25- feet/garage (front load) Rear: 15 -Feet Side: 5 -Feet (first story) / (additional 3 feet per story, measured to the second story) Street Side: 20 -feet Lot 2 -5, Block 2 Front 20 -feet (Measured from property line dividing shared driveway)* Rear 15 -feet Side 5 -feet Street side 12.5 -Feet (south property line) *All garages shall take access from the shared driveway 3.9 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, and amenities. The owner shall provide an operation and maintenance manual, for the pressurized irrigation facilities, including the funding mechanism as an addendum to the CC &Rs and the repairand maintenance requirement shall run with the land and that the requirement cannot be modified and that the homeowners association or other entity cannot be dissolved without the express consent of the city. (b) 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 other similar decorative style fencing. All other fencing (i.e. cedar fencing, vinyl, chain link) shall be prohibited. The residential lot located adjacent to the commercial lots is permitted to have solid fencing located adjacent to the west property line and not to encroach into the front yard. (c) 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 Page 4 of 9 K'.Planniog MPIltagtc ApplicalionsWDSL^DIiSl.ibeny Park Sub da cc fn] ver dom 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. 3.10 A License Agreement from Ballantyne Ditch Company shall be provided for all improvements within their easement area prior to the City Clerk signing the final plat. 3.11 A letter of approval shall be provided to the City from the Eagle Sewer District indicating that the property has been annexed into the Eagle Sewer District's service boundaries prior to submittal of the Final plat application. 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 -651 IA 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 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 S -10 -I, 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. Page 5 of 9 K tiPlaaning DMWagle AppliationslSUBSL'015lLiberly Park Sub da cc rnl ver docx ARTICLE VII ASSIGNMENT AND TRANSFER Afler 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 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 Re resentation. 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: Liberty Park, LLC G. Gregory Hall 7521 North Grand Ridge Lane 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. Page 6 of 9 K Tlanning DepAlIngle ApplicalionrlSUIiSCOISH.ibcrty Lark Sul: do cc fnl ver docx 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. 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; Al I 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 Authoritv 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 7 of 9 K Thnning DeptE4c ApplicaiionslSUIi51IMTibcmy Pack Sub da cc rnl w docx IN WITNESS WHEREOF, the parties have executed this Development Agreement. DATED this L3 day of r x2016. 0,•,��� CITY OF EAGLE, a municipal corporation 10 organized and existing under the laws of the G� �VOR,4p State of Idaho V ,GAP �r By. ,�• 44•�r Stan Ridgeway, Mayor ATTEST: B Sharon K. Bergmann, City Clerk Owner: Liberty ark, L By: G. Gregory Hall, Mle6ger STATE OF IDAHO ss. County of Ada ) On this 21 day of a , 2016, before the undersigned notary public in and For the said state, personally appeared G. G EGORY HALL, known or identified to me to be a Member of LIBERTY PARK, 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 written. Notary Public for Id Residing at:= My Commission Expires: DEANNAFDERSTER Notary Public State of Idaho Page 8 of 9 K \Planning DcpllCaglc Apphca jonsWUSL015Tiberty Park Sub da cc fn1 vcr dm day and year first above INDEX OF EXHIBITS A - Legal Description B - Concept plan C - Affidavit of Owner D - Typical Housing Styles Page 9 of 9 K TIAnning MptT-ASIe AppItcalionsMBSL20151Liberty Park Sub da u Fni ver dacz EXHIBIT "A" Warrior Park Subdivision A parcel of land being a portion of Lot 2, Block 2 of the Amended Plat of Flint Estates as filed in Book 45 of Plats at pages 3713 and 3714, records of Ada County, Idaho located in the NW 114 of the SE 114 of Section 12, Township 4 North, Range 1 West, Boise Meridian, Eagle, Ada County, Idaho being more particularly described as follows: Commencing at the C114 corner of said Section 12 from which the E114 corner of said section 12 bears South 89 °47'01" East, 2644.64 feet; Thence along the North -South centerline of said Section 12 South 00 °00' 29" West, 906.27 feet; Thence leaving said North -South centerline South 89 °59'31" East, 13.03 feet to the SW comer of said Lot 2, said point being the REAL POINT OF BEGINNING; Thence along the exterior boundary line of said Lot 2 the following 5 courses and distances: Thence North 00 °14'01" East, 209.83 feet; Thence 31.23 feet along a curve to the right, said curve having a radius of 20.00 feet, a central angle of 89 028'52" and a long chord of 28.16 feet which bears North 44 °58'27" East; Thence North 89 042'53" East, 359.00 feet; Thence 91.63 feet along a non - tangent curve to the left, said curve having a radius of 500.00 feet, a central angle of 10 030'00" and a long chord of 91.50 feet which bears North 84 °27'53" East; Thence North 79 °1144" East, 220.90 feet; Thence leaving said exterior boundary line South 04 °50'44" East, 272.43 feet to a point on the South boundary line of said Lot 2; Thence along said South boundary line South 89 01010" West, 710.90 feet to the REAL POINT OF BEGINNING. Contains 3.79 acres, more or less. ( V °7729 d' ia1�l15 gT�OF1OP ��RYf.G� LKM11i11 0 t j s = n !31 ��. µ i J F f 1p i i M I -W iII - .. I Y ft. EXHIBIT "C" Affidavit of G. GREGORY HALL on behalf of Liberty Park, LLC AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO } } ss. County of Ada ) G. GREGORY HALL, who being first duly sworn under oath, deposes and says: 1 am G. GREGORY HALL, who is a Member of Liberty Park, LLC, whose mailing address is 7521 North Grand Ridge Lane, Eagle, ID, 83616 ( "Liberty Park, LLC "). 2. Liberty Park, LLC, is the fee simple owner of the parcel of real property described on Exhibit I, attached hereto (the "Property "). 3. Liberty Park, LLC, authorizes the submission of the Property to certain Development Agreement pursuant to the provisions set forth in Idaho Code Section 67 -6511 A and Eagle City Code Section 8 -I0 -1 dated the 7,4 day of 4 , 2016 by and between the City of Eagle, a municipal corporation in the State of Idaho, and G. Gregory Hall, Liberty Park, LLC (the "Agreement "). DATED this Z3 day of )C:;rlj 2016. By: Liberty Park, LC By: G. Gregory Hall, a ber SUBSCRIBED AND SWORN to before me this ;2-3 day of DEANNA FOERSTER Notary Public F'-_ State of Idaho Notary Public for ldahoC Residing at My Commission expires Page 1 of 1 K \Planning Depl\Eagle ApplicaliunASUBSUDMLibeny Park Sub da affidavit doc 2016. Idaho EXHIBIT "D • � f ML �- .a . ©. }' > ¥ ¥Oki, - #��