Development Agreement - 2017 - Amend DA / Whitehorse Subdivision - 2/14/2017Recording 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=9 BONNIE OBERBILLIG
EAGLE CITY
2017-023752
03/21/2017 02:47 PM
NO FEE
11/111111 IIIIIIIIIIIIIIIIIII 111111111111111 111111
00341226201700237520090091
For Recording Purposes Do
Not Write Above This Line
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 CALLISTER, LLC, ("Owner"). Upon recordation of this
Development Agreement, that certain Development Agreement recorded in the real property records of Ada
County, Idaho, on October 30, 2009, as instrument numbers 109089345 (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 consisting of approximately 5.7
acres located at Lot 2, Block 1, Whitehorse Subdivision at 2440 North Park Lane, Eagle, Idaho ("Property"),
as specifically defined in the attached legal description (Exhibit A), and shown on the Concept Plan
(Exhibit B), which is the subject of an application for Rezone identified as Rezone Application No. RZ-
07-15; and
WHEREAS, Owner has previously been approved for a modification to the original rezone (RZ-
01-07) associated with the Property pursuant to Rezone Application No. RZ-01-07 MOD, which
modification is implemented within the Original Development Agreement and subsequently implemented
within this Development Agreement; 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 Residential Two and zoned R -2 -DA (Residential with a development agreement);
and
WHEREAS, Owner desires to develop the Property with an 10 -lot (9 -buildable, 1 -common)
residential subdivision use as generally shown on the Concept Plan (Exhibit B); and
WHEREAS, the City Council of Eagle has determined that the scope of any residential 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
Page 1 of 6
K:\Planning Dept\Eagle Applications \ SUBS \2016\C I Subdivision da cc fnl ver.docr
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 R -2 -DA (Residential with a development
agreement) 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
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 PUD and 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 II
ZONING ORDINANCE AMENDMENT
Eagle has adopted ordinances amending the Eagle Zoning Ordinance to rezone the Property to R -2 -DA,
subject to the provisions of the Original Development Agreement, and as specifically set forth previously
in Ordinance No. 625 which became effective after its passage, approval, and publication on June 23, 2009.
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, Applicant 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 density for the property shall not exceed 1.8 dwelling units per acre.
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, 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) Provide that the association for See One Subdivision shall have the duty to maintain and operate
the pressurized irrigation system for See One Subdivision and all of the common landscape areas
in the subdivision in a competent and attractive manner, including the watering, mowing,
Page 2 of 6
K \Planning Dept\Eagle Applications\ SUBS \201G\C 1 Subdivision da cc fnl ver docx
fertilizing and caring for shrubs and trees, in accordance with Eagle City Code, in perpetuity.
(b) An operations and maintenance manual for the irrigation system shall be developed by the
association that will recognize a duty by the association to maintain and operate the pump
providing water to the system, including the funding mechanism for the repair and replacement
of the pump.
3.5 Usable park amenities such as, pathways, picnic tables, gazebos and/or similar amenities as
determined by the City Council shall be provided within the open space areas. Landscape plans
showing open space amenities shall also be reviewed and approved by the Design Review Board
prior to submittal of a final development plan/final plat.
3.6 The applicant shall provide a letter from the Farmer's Union Canal Company approving of any
construction plans involving the relocation or construction of irrigation facilities currently accessing
the site and under the purview of the Company, prior to the approval of the final plat.
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 67-651 IA 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.
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.
Page 3 of 6
KiPlanning DeptlEagle Applications\SUBSI2Ol6 C I Subdivision da cc fill ver.doc.s
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;
Eagle:
City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owners: Cal lister, LLC
Attn: David Callister
Eagle, Idaho 83616
2873 West Wind Drive
Page 4 of 6
K:\Planning Dept Eagle Applications \SUJ3S\20!MC I Subdivision da cc I'nl rer.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 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 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.
Page 5 of 6
K \Planning DepIEagle Applications' SUBS'.2016..0 I Subdivision da cc fill ver docx
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATED this/y day of , 2017.
ATTEST:
`' OF EAC
G' OQ�eoRAT• ; #%
: :
S L s o
17'€ OF.0. •
Bye �V_y.-A .� f`�( _
Sharon K. Bergmann, City Cler
STATE OF IDAHO )
ss.
County of Ada
CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the
State of Idaho
By: (
Stan Ridgeway, Mayor
1
Owner: /
Callister/LLC�
By:
avis CaI anaging Member
On this day of F-e6,‘,/� , 2017, before the undersigned notary public in and for
the said state, personally appeared DAVID'CALLISTER, to be the Managing Member of CALLISTER,
LLC, known or identified to me to be the owner of the property referenced herein and the person who
executed the foregoing instrument.
written.
IN WITNESS WHEREOF, I have hereunto set my hand al seal the day and year first above
Notary Public for Idaho
Residing at: ;v9,),A- Co.,.. -
My Commission Expires: /0/3494a,
Page 6 of 6
K Planning Dept.Eaule Applications:SUI3S.2016•rI Subdivision da cc liil ver docs
EXHIBIT "A"
TOOTH!
CON
boise@toengrco.com
Project No: 06250
Date: January 4, 2007
Page: 1 of 1
[PANYl-
ts
LOT 2 IN BLOCK 1 OF WHITEHORSE SUBDIVISION, ACCORDING TO THE OFFICIAL
PLAT THEREOF, FILED IN BOOK 80 OF PLATS AT PAGE 8618, OFFICIAL RECORDS
OF ADA COUNTY, IDAHO.
CONTAINING: 5.70 acres, more or less.
SUBJECT TO: All Covenants, Rights, Rights -of -Way, Easements of Record and any other
Encumbrances.
The property described herein should be in compliance with all applicable zoning regulations. Toothman-Orton Engineering Co. assumes no
liability for current or future compliance with county or city zoning ordinances and/or restrictions.
G:\06250\WPfilcs\Applications\Legal Description Dwayne Lingel Subdivision.doc
BOISE • COEUR d'ALENE • CALDWELL
If warn
110000
.� 10:40-0, -Mr
'or
,.a I ,.r
,ar
udWOE Cf e ,? v 4,..8.r rmrtJ�
9Wf•Llr Tit r . yr anao awn 'r p�iaj ra�na. W_
MO WOW
r arra Ya•. M a,.aiarm
YOE�
aa�
0„
97' RIGHT—OF—WAY ROAD SECTION (TYPICAL)
WAIL ars
,T ,x,,,,. 1 PRELIMINARY PLAT FOR
CI SUBDIVISION
ST MOM
WM. (nr)
r ar 3/r 00 aaso
mw4
ria ne non Oolong
.m=o, w.,al
aa.mmaa..I
1010•100 ION I
,o
R
0
I
xl
i (
YM.
It '.au W.soi.
IW.
- 0 G-0--0-0 0 0 -0--0-
W. TABASCO TRAIL LANE (PRIVATE
f �—
Moen 10
Eon* dr
own Yr
LEGEND
.s_ MOM,
aaa
11010a-10.
-
MOM not or arse„
TOM= Ma . awn
--- p namm aao =r
—�„OR-- nom= .t_ Ur
MOO=.a. a.. ac
100•0119 TOM 0401
• no=m .War MA WMYL
O nom= aum onllu ran
1001•0111 a.o MO a®C MO
• raduw .uo aurPliteoso 0.00-0P,
0 -
=ranuaWta,w
yonno MOO.
WORM
P
PRELIMINARY PLAT FOR
SHEET 2 OF 2
EXHIBIT "C"
Affidavit of DAVID CALLISTER on behalf of Callister, LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO
) ss.
County of Ada
DAVID CALLISTER, who being first duly sworn under oath, deposes and says:
1. I am David Callister, who is the Managing Member of Callister, LLC, whose mailing
address is 2873 West Wind Drive, Eagle, ID, 83616 ("Callister, LLC").
2. Callister, LLC, is the fee simple owner(s) of the parcel of real property described on
Exhibit 1, attached hereto (the "Property").
3. Callister, LLC, authorizes the submission of the Property to certain Development
Agreement dated the (.( day of , 2017 pursuant to the provisions set forth in Idaho
Code Section 67-651 IA and Eagle City Code Section 8-10-1, by and between the City of Eagle, a
municipal corporation in the State of Idaho, and David Callister (the "Agreement").
DATED this / S day of r� , 2017.
By: Calli
By: 1
David Callister/, Managing Member
SUBSCRIBED AND SWORN to before me this , ' . •f , 2017.
' ST ECx••,*
•
Notablic for Idaho
Residing at ,4dA COvU Idaho
My Commission expires io%/(ej
Page 1 of 1
K tPlanning Dept'•Eagle Applicatio6SU3S12OI6 C 1 Subdivision da affidavit doc