Development Agreement - 2016 - Amended-Restated DA/55 & Hill Rd - 11/21/2016Recording 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
BOISE IDAHO Pgs=g LISA BATT 2016-112982
EAGLE CITY 11/21/2016 03:18 PM
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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 JAPHETH, LLC, ("Owner"). Upon recordation of this
Development Agreement, that certain Development Agreement recorded in the real property records of Ada
County, Idaho, on February 8, 2000, as instrument number 100009656 (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 located at 2805 and 2809 East Hill
Road ("Property"), as specifically defined in the attached legal description (Exhibit A), and shown on the
Concept Plan (Exhibit B), which is the site subject of an application for rezone, identified as Eagle Rezone
Application No. RZ-06-99 and which is subject to an application for modification of development
agreement, identified as Eagle Rezone Modification Application No. RZ-06-99 MOD; and
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 Commercial and zoned C -3 -DA (Highway Business District with a development
agreement); and
WHEREAS, Owner desires to develop the Property with a convenience store with fuel service use
as generally shown on the Concept Plan (Exhibit B); and
WHEREAS, the City Council of Eagle has determined that the scope of any convenience store with
fuel service project upon the Property should be limited to prevent undue damage to, and to otherwise be
in harmony with, the existing community; and
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 General Business District ("C -3 -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; and
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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 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 67-6511A and Eagle City Code, Title 8, Chapter 10.
ARTICLE H
ZONING ORDINANCE AMENDMENT
Eagle has adopted ordinances amending the Eagle Zoning Ordinance to rezone the Property to C -3 -DA,
subject to the provisions of the Original Development Agreement, and as specifically set forth previously
in Ordinance No. 365 which became effective after its passage, approval, and publication on February 10,
2000.
ARTICLE III
CONDITIONS OF 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 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.
3.2 Owner shall complete the Design Review process for the site (as required by the Eagle City Code), and
shall comply with all conditions required by Eagle as a part of the design review prior to issuance of a
building permit.
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 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 and notice shall be provided as may be required by the City.
3.4 Owner shall provide a recorded cross access easement for the parcel to the east to use the parcel for
access to the public streets prior to issuance of a building permit.
3.5 Owner shall provide an approved Idaho Transportation Department access permit to allow access to
State Highway 55 prior to construction of improvements on the Property.
3.5.1 The access to State Highway 55 shall be right -in only and shall be located in proximity to the
southwest comer of the site.
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3.5.2 Owner shall comply with all requirements of the Idaho Transportation Department, including
but not limited to approval of drainage systems, curbs, gutters, streets, and sidewalks.
3.6 Owner shall provide a landscape buffer area located adjacent to SH -55 and East Hill Road. The
landscaped buffer area shall consist of a three foot (3') high landscaped berm (measured from the
centerline of SH -55 and East Hill Road). The berm area shall be landscaped with the following plants
per one hundred (100) linear feet of right of way: two (2) shade trees, three (3) evergreen trees, and
twenty four (24) shrubs. Each required shade tree may be substituted with one (1) floweringlornamental
tree, provided that not more than fifty percent (50%) of the shade trees are substituted. The landscape
plan shall be reviewed and approved by the Design Review Board prior to the issuance of a zoning
certificate.
3.7 Owner shall comply with all requirements of the Ada County Highway District, including but not
limited to approval of drainage systems, curbs, gutters, streets, and sidewalks.
3.8 The canopy associated with the fuel islands shall be architecturally compatible with the convenience
store. The proposed architecture of the fuel canopy shall be reviewed and approved by the Design
Review Board prior to the issuance of a zoning certificate.
3.8.1 The canopy associated with the fuel islands or signage contained within the canopy associated
with the fuel islands shall not be internally ifluminated.
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
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.
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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 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;
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Eagle: City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owner: Japheth, LLC
Attu: Douglas B. Clegg
971 East Winding Creek Drive, Suite 117
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 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 94-2-2 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.
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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 , 2016.
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ATTEST:
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Sharon K. Bergmann, City C irk
STATE OF IDAHO )
ss.
County of Ada )
CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the
State of o
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By-
Stan
yStan Ridgeway, Mayor
Ow
By:
On this _,J_ day of NC V eta h�!2016, before the undersigned notary public in and for the said
state, personally appeared DOUGLAS B. CLEGG, known or identified to me to be the Managing Member
of JAPHETH, 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 and and seal the day and year first above
written.
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Nql� Notary Public for Idaho
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EXHIBIT "A"
LEGAL DESCRIPTION
A portion of the Southeast Quarter of Section 10, Township 4 North, Range 1 East, Boise Meridian, Ada
County, Idaho, being more particularly described as follows:
COMMENCING at the Southeast corner of said Section 10; thence
North 89041'34" West, 1114.06 feet along the Southerly boundary of the Southeast Quarter of said
Section 10; thence
North 0017'54" East 318.02 feet to the REAL POINT OF BEGINNING; thence
North 86031'25" West 99.92 feet; thence
North 12013'28" East, 150.32 feet to the Southeasterly right of way of Hill Road; thence
South 75°18'11" East, 70.93 feet along the Southeasterly right of way of Hill Road; thence
South 00°17'54" West 134.98 feet to the REAL POINT OF BEGINNING.
EXCEPT right of way for Hill Road and State Highway 55.
Pile Number: 01096-6237
Warranty Deed ID
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EXHIBIT "B"
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EXHIBIT "C"
Affidavit of DOUGLAS B. CLEGG on behalf of Japheth, LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
ss.
County of Ada )
DOUGLAS B. CLEGG, who being first duly sworn under oath, deposes and says:
1. I am DOUGLAS B. CLEGG, who is the Managing Member of Japheth, LLC, whose
mailing address is 971 East Winding Creek Drive, Suite 117, Eagle, ID, 83616 ("Japheth,
LLC").
2. Japheth, LLC, is the fee simple owner of the parcel of real property described on Exhibit 1,
attached hereto (the "Property").
3. Japheth, 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 3 day of ®1/D 0*,&a , 2016 by and between the
City of Eagle, a municipal corporation in the State of Idaho, and Douglas B. Clegg,
Japheth, LLC (the "Agreement").
DATED this 3 day of PVYVI-kG1-, 2016.
By: Japheth,
By:
SUBSCRIBED AND SWORN to before me this
QQ'' ptARy'
PUBLkG;..
OF
Managing Member
day of Ph'&0k, 2016.
Notary Public for Idaho
Residing at Ca Idaho
My Commission expires 9 R o
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