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Development Agreement - 1995 - Underdahl Property Eagle Chinden (SUPERSEDED) - 7/12/1995Recording Requested By and When Recorded Return to: Barbara Montgomery City Clerk City of Eagle P.O. Box 477 Eagle, Idaho 83616 950���E�S � kq 0-T 9 Z-1 95 AUG 33 FEE! DEVELOPMENT AGREEMENT ORIGINAL For Recording Purposes Do Not Write Above This Line This Development Agreement, made and entered into this day o , 1995, by and between the CITY OF EAGLE, a municipal corporation to the to o Idaho ("Eagle"), by and through its Mayor, and WESTERN REALTY ADVISORS, I C., an Idaho corporation and BRYCE UNDERDAHL and VIOLET UNDERDAHL (collectively "Applicants"). f V` ,'d Cl. WHEREAS, Bryce and nderdahl are owners of record of certain real estate on the corner of Eagle Road and Chinden Boulevard Bich is the subject of an application for rezone in Eagle, identified as Rezone Application N.and WHEREAS, the proposed development includes properties both within the area under the rezone application as well as adjacent land currently zoned C-2; and WHEREAS, the Applicants desire to develop a commercial retail project on the two above described parcels, more particularly described on Exhibit "A" attached hereto and made a part hereof, the combination of which are herein referred to as the "Property"; and WHEREAS, the Planning and Zoning Comission and the City Council of Eagle have determined that the scope of any commercial retail project upon the Property must be limited to prevent undue damage and to otherwise be in harmony with existing residential development; and WHEREAS, the intent of this Development Agreement is to protect the rights of Applicants' use and enjoyment of the Property for the purpose of developing it into a commercial retail development while at the same time limiting the adverse impacts of the commercial development upon residential property owners near the Property and ensuring the Property is DEVELOPMENT AGREEMENT - Page 1 wi. developed in a manner consistent with Eagle's plan for locating commercial development and recognition of the Property as abutting a significant approach to Eagle, all as reflected in Eagle's Comprehensive Plan; and WHEREAS, the Applicants have agreed to the use restrictions and other limitations set forth herein upon the use and development of the Property and have consented to a C-1 zoning designation for the rezoned part of the Property; and WHEREFORE, Applicants and 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 1.1 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 2.1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the property that is the subject of the application to a C-1 District, 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 Applicants will develop the Property as represented in the rezone application, including the concept plan, subject to the conditions set forth in this Development Agreement. Further, Applicants will submit such applications regarding design review and any conditional use permits as are required by the Eagle City Code. 3.2 The commercial development shall comply with the proposed Design Review Ordinance, as it exists in draft or final form at the time an improvement is made. Unless greater requirements are established by said ordinance, the following conditions shall be satisfied: 3.2.1 LandsWing. Applicants will install berms, decorative masonry walls, and such other landscaping so as to buffer neighboring properties from undue noise and visual eyesore associated with commercial development. Landscaping will include grass -covered berms between two feet (2') and four feet (4') in height along Eagle and Chinden roads, landscaped with 2" caliper or larger trees every twenty feet (20'), all as approved by the DEVELOPMENT AGREEMENT - Page 2 O� Parks Committee. Said landscaping shall be installed prior to any buildings being constructed. In the parking area, a planter landscaped with at least one (1) 2" caliper tree every twenty (20) parking spaces and at the end of each parking aisle shall be installed. 3.2.2 Lighting. All parking lot and area lighting for the commercial development will be by high pressure sodium lighting of no more than 250 watts contained in a shoe boxfixture (or similar cut off fixture) installed on poles no higher than fifteen feet (15') on the perimeter of the Property; except that with the approval of the Design Review Committee interior poles may be as high as twenty feet (20'). 3.2.3 Signa. Freestanding signs shall consist of no more than three (3) freestanding, monument signs, each not more than eight feet (8') in height with no more than 50 square feet of signage space. Such signs may be indirectly illuminated. No sign shall be higher than the roofline of any building or be animated, directly illuminated, or audible. 3.2.4 Noise Restrictions. All public announcements, paging systems, and music systems that can be heard outside shall not exceed 67 dBA from any location more than 50 feet outside of the commercial development. 3.2.5 Design. Height, and Location of Building (a) Each building in the commercial development shall be of first quality construction and architecturally designed so that its exterior (including, without limitation, material and color) will be architecturally and aesthetically compatible and harmonious with other buildings in the commercial development. Such construction shall conform to a "country store" design as generally depicted in the application. (b) No building shall have more than one story, and shall not exceed twenty- eight feet (28') in height, including rooftop mechanical fixtures and equipment and screening for same, but excluding architectural treatments, which shall not exceed thirty- five feet (35') in height. The height of any building constructed on a separate pad fronting Eagle and/or Chinden is further limited to a height not to exceed twenty feet (20'), including rooftop mechanical fixtures and equipment and screening for same, but excluding architectural treatments, which shall not exceed twenty-five feet (25') in height. All rooftop mechanical fixtures and equipment shall be adequately screened so as not to be visible from the ground at a distance of 200 yards from the base of the building. (c) All buildings shall be of the size and in the location generally depicted in the concept plan presented as part of the application, unless otherwise approved by the Design Review Committee and City Council. 3.2.6 Service Facilities. All service facilities, including without limitation, trash and bottle storage areas, shall be adequately screened from adjacent properties and DEVELOPMENT AGREEMENT - Page 3 t0 roads with masonry walls not less than six feet (6') in height. A masonry wall not less than eight feet (8') in height shall be constructed behind the loading docks located to the rear of the in-line or primary building to screen the loading dock areas from adjacent properties. 3.2.7 Use Limitations. The following land uses shall be prohibited upon the Property in both the C-2 and C-1 Zoning Districts: bar, tavern, billiard or pool hall, massage parlor,cocktail lounge (except if incidental to a restaurant use), adult book or adult video store or other adult sex shop, automotive maintenance or repair facility, car wash, machine shop, mini storage, warehouse or industrial uses, or facility for the renting, leasing, selling, or displaying of any motor vehicle, boat, recreational vehicle, trailer, camper, mobile home or industrial or farm equipment. 3.2.8 Store and Delivery Hours. No business in the commercial development shall be open for business to the public between the hours of 12:00 midnight to 6:00 a.m. No deliveries or service trucks may be permitted in the commercial development after 8:00 p.m. or before 6:00 a.m. on weekdays and between the hours of 6:00 p.m. to 8:00 a.m during weekends and holidays. ARTICLE IV AFFIDAVIT OF PROPERTY OWNERS 4.1 An affidavit of all owners 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 Applicants 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. DEVELOPMENT AGREEMENT - Page 4 Lt1� ARTICLE VI UNENFORCEABLE PROVISIONS 6.1 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 instrument sball terminate and the zoning of the property shall revert as set forth in the above Article. ARTICLE VII ASSIGNMENT AND TRANSFER 7.1 After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of the Applicants. Each commitment and restriction on the commercial 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 Applicants and owners, and their respective hens, administrators, executors, agents, legal representatives, successors, and assigns; provided, however, that if all or any portion of the commercial 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 tate 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 Arnendments. 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. 9,2 Paragcoh Ekadings. 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 Agreememt 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 . 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 tfie party to whom the notice is directed at the address of such patty set forth below. DEVELOPMENT AGREEMENT - Page 5 Eagle: Attention: Applicants: Attention: 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. 8.5 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto of a fully executed original of this Development Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement. DATED this 2-1 day of , 1995. CITY OF EAGLE, a municipal corporation organized and existing under the laws of the State of Idaho By: �� Steve Guerber, Mayor DEVELOPMENT AGREEMENT - Page 6 U0 DATED this day of , 1995. WESTERN REALTY ADVISORS, INC., an Idaho corporation By: DATED this/ day of , 1995. Bryce Underdahl DATED this 12 day of , 1995. tl Violet Underdahl DEVELOPMENT AGREEMENT - Page 7 STATE OF IDAHO ) . ss. COUNTY OF ADA) On this 7 day of , 1995, before the undersigned notary public in and for the said state, personally appeaj STEVE GUERBER, 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 above written. Notary Public Residing at: My Commission STATE OF IDAHO ) ss. COUNTY and seal the day and year first ho `1 - ires:��_9i OF ADA ) On this _tL day o , 1995 bef r the undersigned notary public in and for the Le' state, personally ap ed ,known or identified to me to be the ' of Western ealty, and the person who executed the foregoing instrument on behalf of said Corporation and acknowledged to me that said Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written. _ Residing at: -4:L My Commission DEVELOPMENT AGREEMENT - Page 8 STATE OF IDAHO ) : ss. COUNTY OF ADA ) On this _L,4_ day o 1995, before the undersigned notary public in and for the said state, personally ap B E UNDERDAHL, known or identified to me to be the person who executed the fore oing ins ment and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day,ap-.year.first above written. '.t i �. N Public Id . � Residing at: ; }' •s• My Commission Exp es: n . r n STATE OF IDAHO) : ss. COUNTY OF ADA ) On this L day of, 1995, before the undersigned notary public in and for the said state, personally appeared Vi t UNDERDAHL, known or identified to me to be the person who executed the foregoing instrument and acknowledged to me that she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and seal �e day and year first above written. 1 . p lic for daho My Commission cpires: lb _ 3- ` Y� w DEVELOPMENT AGREEMENT - Page 9 SOUTH PORTION OF UNDERDAHL PROPERTY A parcel of land located in the Southwest quarter of the Southwest quarter of Section 21, Township 4 North, Range 1 East, of the Boise Meridian, Ada County, State of Idaho, described as follows: Commencing at the section corner common to Sections 20, 21, 28 and 29, Township 4 North, Range 1 East, Boise Meridian; Thence North 89°48' East, along the section line common to Sections 21 and 28, a distance of 760.20 feet to a point; Thence North 0000' West - 40.00 feet to a point; Thence North 6° 40' West - 3.02 feet to a point, marking the REAL POINT OF BEGINNING; Thence South 89'48' West - 458.65 feet to a point; Thence North 0`00' West - 15.00 feet to a point; Thence South 89'48' West - 10.00 feet to a point; Thence North 0`00' West - 472.60 feet to a point; Thence North 89418' East - 391.58 feet to a point: Thence South 29'23' East - 51.72 feet to a point: Thence South 6'40' East - 445.28 feet to the POINT OF BEGINNING. The above described parcel contains 4.91 acres, more or less, and is a portion of property conveyed to Bruce H. Underdahl ano Violet M. Underdahl by Deed Instrument No. 8339530, recoros of Ada County, Idaho. Loveless Engineering August 21, 1995