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Development Agreement - 2022 - Kody Corner Subdivision - 4/26/2022 ADA COUNTY RECORDER Phil McGrane 2022-045416 BOISE IDAHO Pgs=16 BONNIE OBERBILLIG 05/10/2022 12:20 PM CITY OF EAGLE, IDAHO NO FEE Recording Requested By and Wien Recorded Return 10: City of.Eagle 660 E. Civic Lane E.O. Bo:s 1520 Eagle, idaho g 3(s 16 —----------------------------- For Rccording Pmooses Do Not Write. Above' his Lin:, DEVELOPMENT AGREEMENT This .Development Agreement, male and entered into cm the, date a-= indicated hore:i:rl, by and t ebween the CITY O 1=.AGLE, a municipa. corporation in the State of ida,?o ("Cite""j b.y and.through it', Mayor, and'ON MVESTNIE?'T S, LLC. (`0wner"')• REICITALS Wi-1_l RI-ASS, the Owner is the o:vner of record of certain real estate idcntifi-d as Adi County parcel '.ifss. R733-12.Y0465 and R7334:370480 "Property"), as, specifically defined iii tie attached legal description ("Exhibit A) which is the sul reet of an >pplic.at on for Rezone as Rezone Al,l?lication\o. RZ-07-2)I WHEREAS', the proposed dove lopm lit irlc!udes nropt- ties within an area c.rrendy zoned R-4 (Resid ntial); and WHEREAS, the O'wric:.r de:iires a R-t>-DA (Residential with r develon- ment a;reofneI-m zoning c:lassitication to develop a re>ideniial use on ti?e above described property, z,iricli is l cr;in ieferrecl to as the "Property and WHEREAS, the. P'--u iiiiig and Zoning Commission and the City Ca_}uncil of Eagle ha-ve determined that the scope, of-any residential dev k)prne: t upon t"o. Property must be Bruited wish the use of 6,de-,'` lopment agrreemem to proven! undue dainkgo to, and to oUierwise be in ha-rrnofiy with, th,existing cornmunity; and WHE,'Rl--A s, the inte.at of this E�evelt..g.?i�rit Agrce rent is to protect riot is of"(.3wnefis use and enjoyment of the Profterty while at the: same time limiting ally adverse impa-c s of the ,level"pMent ul;on neigilborin.g properties, and the existing co .miamty and eusucing the Ero„�ert;� is developed in a nlarifl;r consistent wit' Eagle's Cc?mp clrensive Plan and City Code;,and WH REAS, the Owner has agreed to fire wr restrictions and other In-nitations set forth here' upon the u,,e and developri-ent of the Property arirl lias consented to a R-6-DA tR sidential s{itli a development aF,reeirient) :coning designation for the Propcity with the requirernenis set forth in this Development Agreoinent;and WREREAS, the Own or has provided City vvitli :in affidavit agreeing to siul;m the Erolicr€y� to a Development Agreement (Exhibit B) pursuant to Eagle City Code Section. 8-10-1(C)(1) rand be ix;urid by, same-, and page O'C's 3�`d'ia:rdr�n FF T,;lie J.3 pl' P�:u`,S BJ e.2-\r'�,iv C„rrer�cF 1�i urF.n,g fi3 i"uhy�'e,�s.S:ib Ca.:.c r.:f✓er.der. Recording Requested By and When Recorded Return to: City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, Idaho 83 616 For Recording Purposes Do Not Write Above This Line 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 ("City"), by and through its Mayor, and MJV INVESTMENTS, LLC. ("Owner"). RECITALS WHEREAS, the Owner is the owner of record of certain real estate identified as Ada County parcel Nos. R7334270465 and R7334270480 ("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-07-21; WHEREAS, the proposed development includes properties within an area currently zoned R-4 (Residential); and WHEREAS, the Owner desires a R-6-DA (Residential with a development agreement) zoning classification to develop a residential 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 residential development 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 R-6-DA (Residential with a development agreement) zoning designation for the Property with the requirements set forth in this Development Agreement;and WHEREAS, the Owner has provided City with an affidavit agreeing to submit the Property to a Development Agreement (Exhibit B) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by same; and Pagel of 8 KAPlanning DeptTagle App11cat1ons\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by reference. 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 67-6511 A 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-6-DA (Residential 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 density for the Property shall be 5.44 dwelling units per acre (I 9-single-familylots). 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 Q, the City understands and agrees that certain changes in that concept may occur. If the City determines, in its sole discretion, 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. 3.4 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, fencing, shared driveway, and amenities. The owner shall provide an operation and maintenance manual including the funding mechanism as an addendum to the CC&Rs and the repair and maintenance requirement shall run with the land and that the requirement cannot be modified ant that the homeowners association or other entity cannot be dissolved without the express consent of the city. (b) A requirement for all fencing to be installed as shown on the Concept Plan Fence Exhibit (Exhibit D). All other fencing (i.e. dog-eared cedar fencing, vinyl, chainlink) shall be prohibited. (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 Page 2 of 8 KAPlanning DeptTagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc 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. (d) Similar residential home exterior elevations shall not be used twice within a five (5) home radius of each other. 3.4 Owner shall be required to construct the residential homes to be similar in architecture as shown in Exhibit E. 3.5 Owner shall comply with all applicable Eagle Sewer District's regulations and conditions prior to the submittal of a final plat application. Prior to issuance of any building permits, Owner shall provide proof of central sewer service to the proposed residential use. 3.6 Owner shall provide a detailed arborist report and an existing tree inventory map identifying all existing trees located onsite. 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 which trees will be incorporated into the design of the subdivision and which trees will be removed prior to removal of the trees. No trees shall be removed from the site prior to city approval of a tree removal plan. 3.7 Owner shall submit a design review application showing at a minimum: 1) proposed development signage, 2) planting details within the common areas throughout the development, 3) elevation plans for all proposed common area structures and irrigation pump house (if proposed), 4) landscape screening details of the irrigation pump house (if proposed), 5) proposed useable amenities such as picnic tables, covered shelters, benches, gazebos, and/or similar amenities, 6) all proposed fencing throughout the development, 7) cluster mail box, and 8) street lights. The design review application shall be reviewed and approved by the Eagle Design Review Board prior to the submittal of a final plat application. 3.8 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. 3.9 Owner shall work with the City to establish a Conservation and Education Program (CEP)Funding Plan associated with Kody Corner Subdivision. The CEP Funding Plan shall be executed by the Owner and City prior to the City Clerk signing the final plat. 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 67-6511 A 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 Page 3 of 8 KAPlanning DeptTagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc 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 R-4 (Residential) zoning designation until City enacts and records an ordinance changing the property to the R-4 (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 City. 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. Page 4 of 8 KAPlanning Dept\Eagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc 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 83 616 Owner: MJV Investments, LLC Attn: Mike Groff 1111 East Pennsylvania Avenue Boise, ID 83 706 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. Page 5 of 8 KAPlanning DeptTagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc 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. 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 thiz day of 4n 2022. CITY OF EAGLE, a municipal corporation organized and existing_uader the laws of the State of Idaho By ���.••�'' JasonPierce,Mayor •` tip%•' '•• '•. 4racy ST. 'T • 10 r _ born Ci C 1"' &fc ����,•'10 •, STP��.•' Page 6 of 8 �. g KAPlanning Dept �;�\S S\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc STATE OF IDAHO ) : ss. County of Ada ) On this`dew day of , 2022, before the Y undersigned notary public in and for g the said state, personally appeared JASON PIERCE, known and 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 my hand and seal the day and year first above written. CSE �.•'�,�•.••'"''••��'r '•., Notar ublic for Idaho G •• :��'* 01 i �401A R Y Residing at. `11 , • �•.. My Commission Expires: 2 2 L45 • to •*00 °4r1n40 ``�•0 �- '.� 41 to �'�► ••sees•• i��JJJ/11 ♦ MJV INVESTMENTS,LLC, an Idaho limited liability company r: By: r Mike Groff, Mana ing Member STATE OF IDAHO ) ss. County of Ada ) On this day of j1 , 2022, before the Y undersigned notary public in and for g the said state, personally appeared M KE GROFF, known and identified to me to be a Managing Member of MJV INVESTMENTS, LLC, 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. •�,.• CSE ••��� Notar ublic for � •,.sees.�"R '•. Residing at: �A �- e r g -ftpTARy'•;c!�'; My Commission Expires: Z.{p 2.5 i • w!'r r � PUBL00 I 0 0 ;�i cl • ,�� Page 7 of 8 KAPlanning DeptTagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc INDEX OF EXHIBITS A - Legal Description B - Affidavit of Owner C - Concept Plan D - Fencing Plan E - Building Elevations Page 8 of 8 KAPlanning DeptTagle Applications\SUBS\2021\Kody Corner Sub\Working File\Kody Corner Sub da cc fnl ver.doc Exhibit "A" A parcel of land, being all of Cots 3 and 4, Block 4 of Randall Acres Subdivision No. 15, recorded in Book 16 of Plats at Pages 1040 through 1041 Records of Ada County, lying within the Northeast Quarter of the Northwest Quarter of Section 15, Township 4 North, Range 1 East, Boise Meridian, Ada County, Idaho, being more particularly described as follows: BEGINNING at the southeasterly corner of Lot 3, Block 4, Randall Acres Subdivision No. 15, monumented by a found 1/2" rebar with plastic cap stamped "PLS 5082", from which the northeasterly corner of Lot 4, Block 4said subdivision, monumented by a set 5/8" rebar with plastic cap stamped "LRG PLS 12464", bears North 00°16'28" East, 602.83 feet; Thence along the northerly right-of-way of E. Elliot Street, North 65°14'17" West, 349.98 feet to a found 1/2" rebar; Thence North 24054'56" East, 225.10 feet to a found 1/2" rebar with plastic cap stamped "LS 4347"; Thence North 27016'16" West, 286.03 feet to the southerly right-of-way of East Syringa Street; Thence along said southerly right-of-way, South 89039'13" East, 356.92 feet to its' intersection with the westerly right-of-way of South Parkinson Street, monumented by a set 5/8" rebar with plastic cap stamped "LRG PLS 12464"; Thence along said westerly right-of-way, South 00016'28" West, 602.83 feet to the POINT OF BEGINNING. Containing 152,329 square feet or 3.497 acres, more or less. EXHIBIT "B" Affidavit of MIKE GROFF on behalf of MJV INVESTMENTS LLC AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ) ss. County of Ada ) MIKE GROFF, who being first duly sworn under oath, deposes and says: 1. am MIKE GROFF, who is a Managing Member of MJV Investments, LLC, whose mailing address is 1111 East Pennsylvania Avenue, Boise, ID 83 706 ("MJV Investments,LLC"). 2. MJV Investments, LLC, is the fee simple owner of the parcel of real property described on Exhibit A(the "Property"). 3. MJV Investments, LLC, authoriz the submission of the Property to certain Development Agreement dated the day of , 2022 pursuant to the provisions set forth in Idaho Code Section 67-651 lA and Eagle City Code Section 8-10-1, by and between the City of Eagle, a municipal corporation in the State of Idaho, and Mike Groff, MJV Investments, LLC (the "Agreement"). DATED this day of Mot , 2022. By: MJV Investments, LLC By: ; Y Mike Groff,Managing Member SUBSCRIBED AND SWORN to before me this day of A 2022. �•'``� CSEIV6* •. 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