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Development Agreement - 2022 - Pescara Estates Subdivision - 1/12/2022ADA COUNTY RECORDER Phil McGrane 2022-012130 BOISE IDAHO Pgs=19 BONNIE OBERBILLIG 02/03/2022 11:51 AM CITY OF EAGLE, IDAHO NO FEE Rccordiri .RQquestc(l By and When RecordiA Return to: City of Eagle 660 E. Civic Lane E.O. Box 1520 Eagle, Idaho 83616 ---------------- For Recording Purposes, Do Not Write AboveThis Unie DEVELOPMENT AGREEMENT This Ltevelaapnaem Agreement, made and entered into on, tlac. (late as indicated herein, by and between the CFfy OF .1=.AG11., a municipal corporation in dic State 4)f Idaho �:,5 ,�"?, by and uhroUO) its .%1ayor, and 80l BTH, I_.l C:, all Idaho I_rx:ited Liability Cc€€npany. RECITALS WI lElREAS, Ehe Owner is dig owner of record of certain r-i ,.l :state identified as Ada County parcel No. S0504212400 ("Property"), as rpcc f`ically d;-:,t ned in ;lac attached legal description (Exhibit A) wh clr is dw subject of an application for 1Rezone idea if ed as Rezone Application No. 1RZ-10-2; WHEREAS, the proposed development includes properties k3,it}sin an area currently zoned RUT {Rural-U`rba€a Transition .edit County designation)" and WIfl::l'.EAS, the O'sknea desires,a. R-E-DA (Residential-Estaate.s with ra deveo r>;a.cnt agreement) zoning clmsificat on to develop a residemW use on the above described propeovy, which is hcrei€-1 referred to as the "Property"; :arid WHE. RE: S, the Planninw and Zoning, Ctrararnissi€ari and fire City Council of Eagle have deturniinc d that the scope, of any ae.sidc r;6al development fibs>n the Ifopery must be limited with the use of a development w rcmwnt to, prevent undue darnahe v3, and to otherwise be in hxrnnony Aitfa, the existing comrnarnity, and W' 1iERE AS, the intent of this Development Agrmnent is to protect the € fights of Owner's use and emit €nent of the Proputy "',Fhile at the same € me limiting any adverse rnpacs s off the development upon neighboring prC?ponies and ft existing community wid ensuring the p€opelty is deveioped its a manner ,.—onsrste t with Eagle's Comprehensive Plan and City €`cede; and 'I-IEIREAS, the (7)wner lass agreed to the use restrictions and o is limitations set forth he'reira upon. the use and development of tt.a, Prop erty and has consented to a I; 13.E (Residential--E;stsates with a do eloprrient agreernenO zordgg' (Icsi�_rnation. for till Proporty with the requirements sit forth in this Development A reenaant; and WHEREAS, the Owner has provided Cite with an affidavit agreeing to submit the Pri"pemy to a Devefopn nt Agg eerncn (Exhibit B) pursuant to Eagle City Code Section 8-10-1(Q11) and be hots€ad by sarne, and WH IREAS, all exhibits rr entior€ed herein are iatta bed iacretc, and are incorporated he.rcin by refers<tac.e. P-3ge I of 8 3S. U'Earr,•i tt� 3]egt`cisrvlz 4^ I:^zti.,rs`.5.'E65`,2Q; ,�.,.e�e.. E.xotes�Q ;S's.�Cinrz Fiivs',O; :ir�istrac�e`J]r�el�.rraer't 9gree nenc`_Fsucara. iisstra-:3e: eEoaaaert Agree:nzn;. ens- AGREEMENT In consideration of the mutual covenants contained herein, the parties 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 The City will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the Property that is the subject of the application to the R-E-DA (Residential Estates with a development agreement), 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 ON DEVELOPMENT 3.1 The maximum gross density for the Property shall be 0.50 dwelling units per acre (8 single- family lots). 3.2 The Concept Plan (Exhibit C) 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, 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 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. 3.4 The conditions, covenants and restrictions for the Property shall contain at least the following: (a) A maintenance manual for the private street requiring the association(s) shall have the duty to maintain and operate the private street including the repair and replacement of asphalt and sidewalks, including provisions for snow removal of the road, and the planting and maintenance of the landscaped planter island within the cul-de-sac, in perpetuity. (b) A maintenance manual for the stormwater swales requiring that the association shall have the duty to maintain the swales including the maintenance and replacement of landscape material, removal of refuse, and any other maintenance required to ensure that the swales function as designed for the purpose of capturing stormwater, in perpetuity. (c) A requirement for all fencing to be installed as shown on the Fencing Plan (Exhibit D). All other fencing (i.e. dog-eared cedar fencing, chainlink) shall be prohibited. (d) A maintenance manual for the streetlight(s) requiring that the association shall have the duty to maintain and operate the light fixtures including the repair and replacement of the fixture, any associated electrical supply, and light bulbs, in perpetuity. Page 2 of 8 K;\Planning Dept\Eagle Applications\SUBS\2021\Pescara Estates\03-Working Files\01-Administrative\Development Agreement\Pescara Estates -Development Agreement doc (e) 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 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. 3.5 Owner shall provide a detailed arborist report and a tree inventory map identifying all existing trees located on site. The report shall identify, at a minimum, species, size, and health of the trees. The arborist report and map shall be provided with the submittal of a design review application. Owner shall provide a narrative indicating how the trees will be incorporated into the design of the subdivision (or mitigated if approved for removal) prior to removal of the trees. No trees shall be removed from the site prior to city approval of a tree removal and replacement plan. 3.6 In conjunction with 3.5 above, all living trees shall be preserved, unless otherwise determined by the City Council upon recommendation by the Design Review Board. A detailed landscape plan showing how the trees will be integrated into the open space areas (unless approved for removal and mitigation) shall be provided for Design Review Board approval prior to the submittal of the final plat application. 3.7 Owner shall provide an executed Idaho Transportation Department Traffic Mitigation Agreement to the City prior to the City Clerk signing the final plat. 3.8 The owner shall connect the subject property to central water service prior to the City Clerk signing the final plat. 3.9 The single-family dwellings shall be constructed in substantial conformance to the styles of architecture as shown in Exhibit "E". 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 final plat. The submittal of the building permit application to the City for each structure 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. To assure compliance with the conditions of approval herein, the City reserves the right to deny, at its discretion, any building permit application that does not substantially conform to the design requirements as shown on the Exhibit "E". If a building permit is denied, the applicant shall have the right to appeal the decision to the Eagle City Council in accordance with Eagle City Code Section 8-7-4-1. 3.10 To allow for the future installation of municipal fiber-optic cable, the applicant shall be required to install two (2) one inch and a quarter (1 '/4") fiber-optic conduit lines along both sides of all public streets. Upon completion of the installation of the municipal fiber-optic conduit lines, the applicant shall provide GIS coordinates of the locations of the municipal fiber-optic conduit lines. The municipal fiber-optic conduit lines shall be installed, GIS coordinates provided, and the fiber-optic conduit lines shall be dedicated to the City prior to the City Clerk signing the final plat. Page 3 of 8 K \Planning Dept\Eagle Applications\SUBS\2021\Pescara Estates\03-Working Files\01-Administrative\Development Agreement\Pescara Estates -Development Agreement doc 3.11 The applicant shall provide a letter stating that all existing structures have been removed from the site and that the septic system and well have been abandoned prior to the City Clerk signing the final plat. 3.12 Owner shall place a 4'x8' subdivision sign(s) containing information regarding the proposed development. The subdivision sign(s) shall be located along each roadway that is adjacent to the Property. The subdivision sign(s) shall be located on the Property outside of the public right-of- way and remain clearly visible from the roadway. 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 B) 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 City, City 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, City 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 RUT (Rural -Urban Transition — Ada County Designation) zoning designation until City enacts and records an ordinance changing the property to the R-E-DA (Residential -Estates with a development agreement) 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 City. Page 4 of 8 K:\Planning Dept\Eagle Applications\SUBS\2021\Pescara Estates\03-Working Files\01-Administrative\Development Agreement\Pescara Estates -Development Agreement doc 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 Owner, and its 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 Representation. Both the Owner and City 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; City: City of Eagle 660 E. Civic Lane Eagle, ID 83616 Owner: 801 BTH, LLC 13967 W Wainwright Drive, Suite 102 Boise, Idaho 83713 Page 5 of 8 K:\Planning Dept\Eagle Applications\SUBS\2021\Pescara Estates\03-Working Files\01-Administrative\Development Agreement\Pescara Estates -Development Agreement doc 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 City herein, Owner agrees to provide adequate financial assurance to City, to secure the payment of any deferred balance of the attorney fees and the engineering fees, together with interest accrued thereon. City 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, City shall bill Owner for such fees, adjusting the estimates as appropriate. The Owner shall make payments for such fees as incurred by City and as invoiced to the Owner or, if Owner has made a cash deposit with City, City 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 City and invoiced, then following thirty (30) days of written notice of such failure from City, City 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, City shall release to the Owner the unused portion of the cash deposit or the letter of credit, as applicable. City'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 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 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 Attorney. The prevailing party in any claims or disputes arising out of this Agreement shall be entitled to recover reasonable attorney's fees in addition to other relief which a court of competent jurisdiction may award. 8.9 Effective Date. This Development Agreement shall be effective upon the signing and execution of this agreement by both parties. Page 6 of 8 KAPlanning Dept\Eagle Applications\SUBS\202 I Tescara Estates\03-Working Files\01-Administrative\Development Agreement\Pescara Estates -Development Agreement doc 8.10 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. 8.11 Termination: If the Property is not developed as conditioned herein, this agreement shall terminate 5-years after the Effective Date. IN WITNESS WHEREOF, the parties have executed this Development Agreement. DATED this day of022. CITY OF EAGLE, a municipal corporation organized and existing under the laws of the State of Idaho By: 7a"erce, Mayor A TEST: �..•' p,GLE ••� . as racy E. s rn, City C "t* : 'k :,, 5"'t ", A01 BTH, LLC, an Idaho L' ited�Liability Company STA` B Todd Amyx, Me r STATE OF IDAHO ss. County of Ada On this 40 day of _ . QLU_"r , 2022, before the undersigned notary public in and for the said state, personally appeared TOD❑ A YX, known and identified to me to be a member of 801 BTH, LLC, an Idaho Limited Liability Company, known or identified to me to be the owners 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. j SHCRI HORTON COMMISSION #38flW2 Notary a Ic fo I aho NOTARY PUBLIC Residing at- STATE OF 0AH(Q My Commission Expires: — t MY C(D MISStON EXPIRE �[S Page 7 of 8 K V Tanning Dept\Eagle App1ications\SUBS\2021\Pescara Estates\03-Working Files\01-Administradve\Development Agreement\Pescara Estates -Development Agreement doc INDEX OF EXHIBITS A - Legal Description B - Affidavit of Owner C - Concept Plan D - Fencing Plan E - Building Elevations Page 8 of 8 K:\Planning Dept\Eagle Applications\SUBS\2021\Pescara Estates\03-Working Files�01-Administrative\Development Agreement\Pescara Estates -Development Agreement, doc RECEIVED & FILED CITY OF EAGLE Exhibit "A" MAY 2 7 2021 Legal Description File: -- Route to Pescara Estates Subdivision A parcel of land being a portion of Government Lot 3, Section 4, Township 4 North, Range 1 East, Boise Meridian, Ada County, Idaho, being more particularly described as follows: BEGINNING at an Aluminum Cap monument marking the northeast corner of said Government Lot 3 (1/4 Corner) of Section 4, from which a Brass Cap monument marking the northwest corner of said Section 4 bears N 89050'53" W a distance of 2649.53 feet; Thence along the easterly boundary of said Government Lot 3, also being the westerly boundary of Los Luceros Acres Subdivision as shown in Book 32 of Plats on Pages 1969 thru 1970, records of Ada County, Idaho, S 0024'39" E a distance of 1289.46 (formerly 1281.25 feet) to a point on the northerly boundary of said Los Luceros Acres Subdivision; Thence along said northerly boundary N 89°36'22" W a distance of 662.40 feet to a point marking the southeasterly corner of Springhaven Subdivision as shown in Book 104 of Plats on Pages 14203 thru 14205, records of Ada County, Idaho; Thence along the easterly boundary of said Springhaven Subdivision the following described courses: Thence N 0024'02" W a distance of 862.25 feet to a point; Thence S 89052'27" E a distance of 331.16 feet to a point; Thence N 0025'28" W along said easterly boundary and the extension thereof a distance of 424.26 feet to a point on the northerly boundary of said Government Lot 3; Thence along the said northelry boundary S 89°50'53" E a distance of 331.15 feet to the POINT OF BEGINNING. This parcel contains 16.36 acres and is subject to any easements existing or in use. Clinton W. Hansen, PLS CN�,L LANOS Land Solutions, PC �� T E & May 19, 2021 a 11118 CP [�TT� 0 F O/V W HP Beacon Light Property (`J-' Land Surveying and Consulting Job No. 20-81 Page 1 of 1 Data and Deed Call Listing of File: 20-81 Beacon Light Property Legal Description.des Tract 1: 16.357 Acres: 712499 Sq Feet: Closure = n44.1642e 0.00 Feet: Precision >1/999999: Perimeter = 3901 Feet 001=s0.2439e 1289.46 002=n89.3622w 662.40 003=n0.2402w 862.25 004=s89.5227e 331.16 005=n0.2528w 424.26 006=s89.5053e 331.15 RECEIVED $ FILED CITY OF EAGLE MAY z t 2021 File: Exhibit `B" Affidavit of TODD AMYX AFFIDAVIT OF LEGAL INTEREST STATE OF 1DAHO ) ss. County of Ada ) TODD AMYX, who being first duly sworn under oath, deposes and says: 1. I am TODD AMYX, Member of 801 BTH, LLC, an Idaho Limited Liability Company, whose mailing address is 13967 W Wainwright Drive, Boise, 1D 83713 ("Owner"). 2. 801 BTH, LLC is the fee simple owner of the parcel of real property described on Exhibit 1, attached hereto (the "Property"). 3. I, TODD AMYX, am the duly appointed official of 801 BTH, LLC and authorize the submission of the Property to certain Development Agreement pursuant to the provisions set forth in Idaho Code Section 67-651 ]A and Eagle City Code Section 8-10-1. DATED this 1:31 day of , 2022. SUBSCRIBED AND SWORN to before ►►►1►111111111111►p,I EQrA ZY P4, M�j��zz�� �tF�Gc•. MY COMMISSION EXPIRES 8-16-2024 rfe OF OW� •,► I ON N �Il ►►�`� By: Owner By: Todd Amyx, Member, 801 BTW, ILC 31 day of V41;'v 2022. 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