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Development Agreement - 2016 - 2755 West State Street - 11/21/2016Recording Requested By and When Recorded Return to: City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, Idaho 83616 ADA COUNTY RECORDER Christopher D. Rich BOISE IDAHO Pgs=10 LISA BATT 2016-112985 EAGLE CITY 11/21/2016 03:18 PM IIIIIIIII III 11 111111111111111 IIINO FEE 00300884201601128850100101 DEVELOPMENT AGREEMENT For Recording Purposes Do Not Write Above This Line 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"), by and through its Mayor, and Richard B. and Sharon L. Terry, Inc. ("Owner"). WHEREAS, the Owner is the owner of record of certain real estate located at 2755 West State Street, Eagle, Idaho, ("Property"), as specifically defined in the attached legal description (Exhibit A) which is the subject of an application for Rezone identified as Rezone Application No. RZ-06-16; and WHEREAS, the proposed development includes properties within an area currently zoned RUT (Rural -Urban Transition — Ada County designation); and WHEREAS, the Owner desires a MU -DA (Mixed Use with a development agreement) zoning classification to develop a mixed use on the above described property, which is herein referred to as the "Property"; and WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have determined that the scope of any mixed use project upon the Property must be limited with the use of a development agreement to prevent undue damage to, and to otherwise be in harmony with, the existing community; and WHEREAS, the intent of this Development Agreement is to protect the rights of Owner's use and enjoyment of the Property while at the same time limiting any adverse impacts of the development upon neighboring properties and the existing community and ensuring the Property is developed in a manner consistent with Eagle's Comprehensive Plan and City Code; and WHEREAS, the Owner has agreed to the use restrictions and other limitations set forth herein upon the use and development of the Property and has consented to a MU -DA (Mixed Use with a development agreement) zoning designation for the Property with the requirements set forth in this Development Agreement; and WHEREAS, the Owner has provided Eagle with an affidavit agreeing to submit the Property to a Development Agreement (Exhibit C) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by same; and Page 1 of 7 KAPlanning DeptTagle AppGcationsUM&AMMA-04-16 & RZ-06-16 Terry da cc Tnl wndoc WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by reference; and WHEREFORE, the Owner and the City of 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 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 will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the Property that is the subject of the application to the Mixed Use District ("MU -DA"), 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 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 The Site Plan (Exhibit B) represents the Owner's current concept for the property. All future development of the Property will require a detailed concept plan ("Concept Plan"). Owner shall submit the Concept Plan outlining any future development as a modification to the development agreement prior to or concurrent with any future applications. The Concept Plan shall provide more detail, including but not limited to, location of roads (internal collector) within the development, lot layout, lot dimensional standards, proposed setbacks, location and size of common areas and buffer areas. The City shall hold necessary public hearings pursuant to Eagle City Code notice requirements to address the Concept Plan and any changes thereafter proposed to said plan. 3.3 The existing residential dwelling located on the property is recognized as a permitted use. 3.4 Owner shall address all site specific conditions of approval and standard conditions of approval of the parcel division application (PD -02-16) and present a mylar ready for signature by the City Clerk prior to the adoption of an ordinance for annexation and rezone of the Property. 3.5 The existing home may continue the use of the existing well and septic system, however, in the event the existing well or septic system fail Owner shall connect to the respective central service if facilities are available for connection. If central services are not available, Owner shall be permitted Page 2 of 7 10Planning DeptTagle Applications=&A\2016W-04-16 & RZ-06-16 Terry da cc 8il ver doc to re -construct the well and/or septic system and utilize said facilities until such time as central services become available. 3.6 A letter of approval shall be provided to Eagle from the Eagle Sewer District indicating that the property has been annexed into the Eagle Sewer District's service boundaries prior to future development of the property for uses other than one (1) new single-family residence. Owner shall provide proof of adequate sewer service for all proposed structures (other than one (1) new single- family residence) by causing a letter of approval to be provided to Eagle from the Eagle Sewer District. Prior to issuance of a building permit for a single-family residence, Owner shall provide proof of approval for an_adequate septic system by causing a letter of approval to be provided to Eagle from the Central District Health Department and/or IDEQ. As such time as Eagle Sewer District facilities are available for connection, the single-family residence shall be required to connect to said facilities. 3.7 Owner shall be required to provide central water for all future development of the Property for uses other than one (1) new single-family residence, which shall be allowed to utilize a well for water service until such time as central services are available. 3.8 Owner shall comply with Eagle City Code Title 10, Flood Control in regard to development within an Area of Special Flood Hazard (ASFH). 3.9 All access to future development of Property shall be in conformance with the State Street/SH-44 corridor management plan. 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 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 Owner fails 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 - Page 3 of 7 KAPlanning Dept\Eagle Apphcations\RZ&A\2016W-04-16 & RZ-06-16 Terry da cc fnl ver.doc 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 Applicant 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. Page 4 of 7 K:\Pknning ing Dept\Eagle ApplicationsW&A\2 MA -04-16 & RZ-06-16 Terry da cc 9il ver.doc 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 Owner: Richard B. and Sharon L. Terry 2755 West State Street 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, Owner agrees 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 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, Eagle shall bill Owner for such fees, adjusting the estimates as appropriate. The Owner shall make payments for such fees as incurred by Eagle and as invoiced to the Owner or, if Owner has made a cash deposit with Eagle, Eagle 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 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 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, Eagle shall release to the Owner 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 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; Page 5 of 7 KVIanning Dept\Eagle AppGcetionARZ&A\2016 A -04-I6 & RZ-06-16 Terry da cc 6d ver doc 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 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 / fr day ofA oviOM�f 16. CITY OF EAGLE, a municipal corporation organized and a istin nder.thvs o the State of Idaho B. �- Y Stan Ridaeway. �av�r ATTEST: �••�.L OF.�""A. C:; 4 Z. �QORA ASharon. Bergmann, City Clerk $ v •' •�' Attxerc�;i�'� Page 6 of 7 K \Pkrw g DeptlEagle Apphceoons\RZ&A\2016W-04-16 & RZ-06-16 Terry da cc fnl ver doc STATE OF IDAHO SS. County of Ada ) Owner: By: — ch d B . Terry By: Sharon L. Terry On this day of �._ �, , 2016, before the undersigned notary public in and for the said state, personally appeared RICHARD B. and SHARON L. TERRY, known or identified to me to be the owners of the property referenced herein and the persons who executed the foregoing instrument. written. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above •••••"11184••• ••.• GRAB •i- & T/Vr v ••• Notary P lic for Idaho 0TXRy Residing at: SAAk, I li _ •i My Commission Expires: S PUBL�G 'rO ��'••qTE OV -•••� Page 7 of 7 K \Plarn g Dept\Eagle App6cations\RZ&AMMA-04.16 & RZ-06.16 Terry da cc fnl ver doc I m1g] 9233 WEST STATE STREET f BOISE, ID 83714 j 208.639.6939 1 FAX 208.639.6930 October 26, 2016 Project No.: 16-051 Dick and Sharon Terry Exhibit A OVERALL BOUNDARY DESCRIPTION A parcel of land being a portion of Government Lot 5 of Section 7, Township 4 North, Range 1 East, Boise Meridian, City of Eagle, Ada County, Idaho and being more particularly described as follows: Commencing at an aluminum cap marking the northeast corner of said Government Lot 5, thence following the northerly line of said Government Lot 5, S89°08'28"W a distance of 1,320.48 feet to an aluminum cap marking the northwest corner of said Government Lot 5; Thence leaving said northerly line and following the westerly line of said Government Lot 5, 501'0844"W a distance of 29.80 feet to a set 5/8 -inch rebar on the southerly right-of-way line of W. State Street (S.H. 44) and being the POINT OF BEGINNING. Thence leaving said westerly line and following said southerly right-of-way line, N89"41'32"E a distance of 336.41 feet to a set 5/8 -inch rebar; Thence leaving said southerly right-of-way line, S01"0654"W a distance of 875.63 feet to a point; Thence 585°38'52"W a distance of 142.28 feet to a point; Thence N79°06'08"W a distance of 198.00 feet to a point; Thence N01"08'44"E a distance of 847.18 feet to the POINT OF BEGINNING. Said parcel contains 6.740 acres, more or less, and is subject to all existing easements and/or rights-of-way of record or implied. LA N0� x124591 of in•201(i., ENGINEERS I SURVEYORS I PLANNERS www.kmengllp.com e l?g?Lixa Mild 31lS MES 41 31DV3 1S31ViS'M SSLZ to w O z EXHIBIT "B" O O W Z N Q W Q W J ) � % a Q U U U N Z O C LL O O ? W Z 7 a W W j 1 x (7 W x J m Q If) Loo i Z 0 Fr z J to w O z EXHIBIT "B" MH4S,90.L I II i r IK� FUTURE OLD ANTICIPATED VALLEY ROAD RIGHT-OF-WAY N I N z 3 v I U w Q +1 9 n W _ U \ 5 7 vl Im2 mQ -m\\\ is a z_ :3— co m z I Nom,Bt'L4 3„44,E U Q W l7K v ULLU w¢ a z v z°d LL W m o °' � K CL := Z N~W O I a I 119' L Cc lu u Q I m O CL v Wdl 11IXIT'OE'dW019M0 910EM/0l'H3UH31 A113M'9M0'NVU 31151509i\S1I9IHR3\0V0\I509t\4 W Z z J Q W Q W J ) � % a Q U U V a LL O Z Z I� N /1 ? W Z 7 . U d W W j 1 x (7 W x J m Q If) N i Z J Fr z J O z O 7 > j O O O O 7 O O mQ m Q zW W O U N (nW p U Z 4 lwi ®®® ° 1 I 1 I I I 1 1 iI z I I I J I I MH4S,90.L I II i r IK� FUTURE OLD ANTICIPATED VALLEY ROAD RIGHT-OF-WAY N I N z 3 v I U w Q +1 9 n W _ U \ 5 7 vl Im2 mQ -m\\\ is a z_ :3— co m z I Nom,Bt'L4 3„44,E U Q W l7K v ULLU w¢ a z v z°d LL W m o °' � K CL := Z N~W O I a I 119' L Cc lu u Q I m O CL v Wdl 11IXIT'OE'dW019M0 910EM/0l'H3UH31 A113M'9M0'NVU 31151509i\S1I9IHR3\0V0\I509t\4 EXHIBIT "C" Affidavit of RICHARD B. AND SHARON L. TERRY AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ss. County of Ada ) says: RICHARD B. AND SHARON L. TERRY, who being first duly sworn under oath, deposes and We are Richard B. and Sharon L. Terry, whose mailing address is 2755 West State Street. 2. Richard B. and Sharon L. Terry are the fee simple owner(s) of the parcel of real property described on Exhibit 1, attached hereto (the "Property"). 3. Richard B. and Sharon L. Terry authorizes the submission of the Property to certain Development Agreement dated the __Za day of ft',Ti]%II--- , 2016 pursuant to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1, by and between the City of Eagle, a municipal corporation in the State of Idaho, and Richard B. and Sharon L. Terry (the "Agreement'). DATED this day of bfj,y� , 2016. By: Richard B. and Sharon L. Terry By: chard B. Terry, Owder By: 'e. AZ04e Sharon L. Terry, Owner SUBSCRIBED AND SWORN to before me this 7,1 day of , 2016. •.••` i1 GRA# '••.y �' ••' -VARY* s� Notary blic for Idaho �O Residing at,Idaho �•• My Commission expires �D g % f'UB0 jj�0 �? ' q TE OF ..•` •,,����������'�����, Page 1 of 1 K \Planning Dept\Eagle Apphcanons RUM201MA-04-16 & RZ-06-16 Terry da affidavit. doc