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Development Agreement - 2017 - Senora Creek Subdivision No 3 - 4/11/2017Recording 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=9 BONNIE OBERBILLIG EAGLE CITY 2017-032370 04/14/2017 09:43 AM NO FEE 1111111111111111111111111 111 111111111111111111111 00350523201700323700090091 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 MM&T Holdings, LLC ("Owner"). WHEREAS, the Owner is the owner of record of certain real estate located at 725 North Park Lane, 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-08-16; and WHEREAS, the proposed development includes properties within an area currently zoned R -E (Residential Estates); and WHEREAS, the Owner desires a R -3 -DA (Residential with a development agreement) zoning classification to develop a residential subdivision 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 subdivision 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 R -3 -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 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 6 K\Plaming Dept\Eegle Applications \SUBS\2016\Senora Creek Sub No. 3 da cc fel ver.docx 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 R -3 -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 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 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. 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 The maximum density for the Property shall be 2.54 units per acre (twelve (12) single-family lots). 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 Page 2 of 6 K:\Plannmg Dept\Eagle Applications \SUBS\2016\Senora Creek Sub No. 3 da cc fill ver.docx 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. ARTICLE VI UNENFORCEABLE PROVISIONS If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this Development Agreement 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 the 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 Paraeranh Headines. 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 3 of 6 K:\Planoing DepA agle Applications \SUBS12016\Senora Creek Sub No. 3 da cc fill ver.docx 8.4 Leeal 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: Owner: City of Eagle 660 E. Civic Lane Eagle, Idaho 83616 MM&T Holdings LLC Attn: Dave Turner 10248 Turner Drive Middleton, Idaho 83644 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 Page 4 of 6 K:\Planning Dept\Eagle Applications \.SUBS\2016\Senora Creek Sub No. 3 da cc fid ver.docx 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 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 Aereement: 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 Anr. ATTEST: Sharon K. Bergmann, City Clerk , 2017. CITY OF EAGLE, a municipal corporation organized and exisgnder s the State 9f Idaho By: Stan Ridgeway, Mayor sssssssssssssssss .•`'� OF EAC c•� D4Q�R`9�� S EA •''•.1PEOFXIC).••'� ''�11II sSIII06 Page 5 of 6 K:\Plannmg Dept\Eagle Applications \SUBS\2016\Senora Creek Sub No. 3 da cc fol ver. docx STATE OF IDAHO ss. County of Ada MM&T HOLDINGS, LLC, an Idaho Limited Liability Company, By: Its member, DT Investments, Inc. an Idaho corporation By: / Dade W. 'Ifurner, President On this 7I day of WAY(. 1,Th , 2017, before the undersigned notary public in and for the said state, personally appeared DAVE W. TURNER, known or identified to me to be the President of DT INVESTMENTS, INC., an Idaho corporation, a member of MM&T HOLDINGS LLC, an Idaho limited liability company, MM&T HOLDINGS LLC being the limited liability company that executed the foregoing instrument and acknowledged to me that MM&T HOLDINGS LLC executed the same. written. IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above +� P �.,� Notary Public for Idaho r Residing MyCommission Expires: }_ , Z �� Z LNA IG•• Page 6 of 6 K.\Plannmg Dept\Eagle Apphcanons\SUBS\2016\Senora Creek Sub No 3 da cc fnl ver docx EXHIBIT "A" July 24, 2016 DESCRIPTION FOR SENORA CREEK SUBDIVISION NO. 3 A resubdivision of Lot 12, Block 10 of Senora Creek Subdivision No. 2 as is filed in Book 100 of Plats at Pages 13,111 through 13,117, records of Ada County, Idaho, located in the SE 1/4 of the NW 1/4 of Section 12, T.4N., R.1W., B.M., Eagle, Ada County, Idaho more particularly described as follows: Commencing at the N1/4 comer of Section 12 from which the NW comer of said Section 12 bears North 89°22'37" West, 2,641.62 feet; thence along the North-South centerline of said Section 12 South 00°32'05" West, 1,320.14 feet to the C -N 1/16 comer of said Section 12, thence leaving said North-South boundary line North 89°21'33" West, 48.15 feet to the NE comer of said Lot 12., said point being the REAL POINT OF BEGINNING; thence along the East boundary line of said Lot 12 South 00°40'05" West, 330.18 feet to the SE Corner of said Lot 12, thence along the South Boundary line of said Lot 12 North 89°20'39" West, 622.81 feet to the SW comer of said Lot 12; thence along the West boundary line of said Lot 12 North 00°3742" East, 330.02 feet to the NW comer of said Lot 12, said point also being on the South boundary line of Ray's Acres Subdivision as is filed in Book 30 of Plats at Pages 1,890 and 1,891 records of Ada County, Idaho; thence along the North boundary line. of said Lot 12 and the South boundary line of said Ray's Acres Subdivision South 8971'33" East, 623.04 feet to the REAL POINT OF BEGINNING.. Containing 4.72 acres, more or less. it0 Y 14' r " EXHIBIT - . •Z• .4- 'rn': 1171 • — , ,-,' kil • •••., .....—,,—,,, - t. I -1- dfa,1111- i ••I' : 1 . 1 -,•-•t r''!1••.I:-.•‘''4*.T9,- -47-4=. --1k2 - — f, , , S ••• • • #-F--'r itil • ',;.! I-. ! ,..•,. 7 I • i ',.) •_ 0 .... :.- ‘i p• .1 : I • • .; .. r L . !• .I._ 1 _,,.S 41 , . "":.•• , se .:. ? i; • .LI.i.'• C .• \t--- .1 -'s *t - rv,. .• • • .v ' i, 1., i tiC .. ',k )" 41 V 1 • - ' - 1 Et 1. .e..• : • "7"..''. - ' '' ' li i I ...-, It s I - .., .a' . • I' ' I. 11 — '.•Vi'4 '' • A-1-:1 ag, _. 1 i , •,...7!1i, 4. `', ' 4,1 • 1/ -I" '''• . i'r :' . -1•7, - : :••• Alt _ '.....1 , L : u tim : ;41 J 1 .I1 i,..61 - t., • ' ; I . e 1 , , 7 6 rl''-:' i .: f„ - ..., • ..1!-r .., -.' it,z p • t•, -;..i -1 .,... 1 1 ..w 1. ''i. i'r. i , .11.4. •••,.! \ : 1 f" i• • .' I . 3 1 r ,. ..,i , . ek: i : '1... - ,, ! r::, ' " -1 : .:, • ii I: 4 .•• = ei t, ' •is L : 11': 1.•,. I i., : 1 1 Ir`.1,•-- 1 4 ,....... s..- . , .1 ' • , ,,;),°,1 . :; .r:: , • i or, , 1 i , i ,,T.- 7 :,7 • . / ,.., it It 11 ),-;,,, • f 1 , t, •.-. , - II ;I: tc . _4,---_ r v';' : 4 : - t• . .. . i','T SA . 55. :T..577.,5 . -----:- .., :r55.455A-,47,1 '••44.-` rR ._._.• A i i t 1,, t.14114 i i. '1! r. _••,-; , t .. fp,..! , 5 I e-MgiiN 6 ri li q 1 EXHIBIT "C" Affidavit of DAVE W. TURNER on behalf of MM&T Holdings, LLC AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ss. County of Ada DAVE W. TURNER, who being first duly sworn under oath, deposes and says: RECEIVED & FILED CITY OF EAGLE MAR 2 7 2017 File: Route to: 1. I am DAVE W. TURNER, who President of DT Investments, Inc., a member of MM&T Holdings, LLC, whose mailing address is 10248 Turner Drive, Middleton, ID, 83644 ("MM&T Holdings, LLC"). 2. MM&T Holdings, LLC, is the fee simple owner of the parcel of real property described on Exhibit 1, attached hereto (the "Property"). 3. MM&T Holdings, LLC, authorizes the submission of the Property to certain Development Agreement pursuant to the provisions seorth in I,Caho Code Section 67-6511A and Eagle City Code Section 8-10-1 dated the Z,7 day of /"VA-co/VI , 2017 by and between the City of Eagle, a municipal corporation in the State of Idaho, and Dave W. Turner, MM&T Holdings, LLC (the "Agreement"). DATED this 2) day of KA -rt. -A". , 2017. By: MM&T Holdings, LLC By: �r 1 Dave WJTurner, President SUBSCRIBED AND SWORN to before me this 2.1 day of tk alk , 2017. ``,�11111111/,41 2„... ���A Hv'�0• •- Q ' i 10 or no go alb 01. Ob 4. O4:491* t1,4, E O�,OP`��. 111111 Notary Public for Idaho Residing at ;OQ bv„ i a N. Idaho My Commission expires no -k-- 1 . Page 1 of 1 K \Planning Dept\Eagle Applications \ SUBS12016\Senora Creek Sub No. 3 da affrdavit.docx