Loading...
Development Agreement - 2017 - Coast To Coast RZ-02-03-MOD3 - 6/8/2017Recording 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=8 BONNIE OBERBILLIG EAGLE CITY 2017-054204 06/15/2017 08:03 AM NO FEE 1111111111111111111111111111111111111111111111111 00374040201700642040080083 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 PREMIER INDUSTRIAL, LLC ("Owner"). Upon recordation of this Development Agreement, that certain development agreemen/(s), recorded in the real property records of Ada County, Idaho, on April 13, 2006, as instrument number 106057133 (the "Original Development Agreement") and certain Development Agreement Modificatioji�, recorded in the real property records of Ada County, Idaho, on September 8, 2014, as instrument numbeV2014-073009 (the "Modified Development Agreement") shall be void and of no further force or effect. WHEREAS, the Owner is the owner of record of certain real estate consisting of 1.51 -acres located at 112 East Riversedge Drive, Eagle, Idaho, (Lot 49, Block 1, Coast to Coast Subdivision), ("Property"),and shown on the Concept Plan (Exhibit A) which is a portion of the site subject of an application for rezone, identified as Eagle Rezone Application No. RZ-02-03, RZ-02-03 MOD1, and RZ-02-03 MOD2, and which is subject of an application for modification of development agreement, identified as Eagle Rezone Modification Application No. RZ-02-03 MOD3; and WHEREAS, the proposed development includes properties within an area currently zoned MU - DA (Mixed Use with a development agreement); and WHEREAS, the Owner desires to develop a commercial use on the above described property, which is herein referred to as the "Property"; and WHEREAS, the City Council of Eagle have determined that the scope of any commercial 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, all exhibits mentioned herein are attached hereto and are incorporated herein by reference; and WHEREFORE, the Owner and the City of Eagle desire to enter into this Development Page 1 of 7 K:\Planning Depaagle Applications\RZ&A\2003\RZ-02-03 MOD3 da cc fnl ver2.docx Agreement and for its consideration of the mutual covenants 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 67-651 1A and Eagle City Code, Title 8, Chapter 10. ARTICLE II ZONING ORDINANCE AMENDMENT Eagle has adopted an ordinance amending the Eagle Zoning Ordinance to rezone the Property to MU -DA, subject to the provisions of this Development Agreement. Ordinance #542 became effective after its passage, approval, and publication June 20, 2006, and the execution and recordation of the Original Development Agreement, subsequent modifications, and Ordinance #542 will continue to be effective after the execution and recordation of this Development Agreement. 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 A) 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 Lot 49, Block 1, shall be permitted a maximum of 16,000 square feet of commercial building area, which may include up to two, two (2) story structures. Notwithstanding the foregoing, upon development, the site shall comply in all respects with the minimum parking requirements identified within Eagle City Code Title 8 Chapter 4. 3.5 All MU (Mixed Use) zoning district uses shown as permitted in Eagle City Code Section 8-1-2 and the following conditional uses in Eagle City Code shall be permitted on Lot 49, Block 1: Arts and Crafts shows Bed and Breakfast Facility Microbrewery It is acknowledged that a Restaurant is a permitted use within the MU zoning district and that a Bar is permitted within the Restaurant, as allowed by definition of Restaurant pursuant to Eagle City Code Section 8-1-2. 3.6 The City is permitted to construct an access point from East Riversedge Drive to Lot 49, Block 1, in accordance with all requirements of the Ada County Highway District for public vehicle access to the temporary parking area located on Lot 49, Block 1. The City shall coordinate the location of the access point with Owner prior to construction. Page 2 of 7 K:\Planning Dept Eagle Applications\RZ&A\2003\RZ-02-03 MOD3 da cc fail ver2.docx 3.7 The City is permitted to construct a gravel parking area to accommodate eight (8) temporary parking spaces for public parking upon Lot 49, Block 1, for access to the Boise River and the public pathway along the river. The City shall coordinate the location of the parking spaces upon Lot 49 with Owner prior to construction. The City and Owner agree that the eight (8) temporary parking spaces will be replaced by four (4) exclusive river/pathway access paved parking spaces upon development of the commercial use on Lot 49. The Owner will be responsible for the construction of the four (4) exclusive river/pathway access paved parking spaces with development of Lot 49. The Owner agrees to coordinate the location of the four (4) exclusive river/pathway access paved parking spaces with the City during the design review application process for the development of Lot 49. 3.8 The City will install signage on Lot 49, Block 1, indicating that the eight (8) temporary parking spaces are available for public use for access to the Boise River and pathway along the river. ARTICLE IV AGREEANCE OF PROPERTY OWNERS The owner(s) of the Property agrees to subject the Property to this Development Agreement 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. 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. and in accordance with the notice and hearing provisions of Idaho Code Section 67-6509. In the event this Development Agreement is terminated pursuant to this Article 5, 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. 5.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, Eaglethe prevailing party 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 (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 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 Page 3 of 7 K:\Plenning Dept\Esgle Applications \RZ&A\22003\RZ-02-03 MOD3 d8 cc fol ver2.docx 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 Owner: Premier Industrial, LLC Attn: Steve Peel 11299 Bass Lane Caldwell, Idaho 83605 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 Page 4 of 7 K:\Planning Dept\Eagle Applications\RZ&A\2003\R2-02-03 MOD3 da cc fnl ver2.docc 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 fmancial 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 fmancial 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 fmancial 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; 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 (Q day of Jug— , 2017. ATTEST: 0.1 EAGLE• and existi under th= of t :, State of Idaho By: :U * • • .r '' V CITY OF EAGLE, a municipal corporation organized Stan Ridgeway, Mayor Page 5 of 7 KAPlanning Dept\Eagle Applications\RZ&A\2003\RZ-02-03 MODS da cc fnl ver2 docx aron . Bergmann, City Cler OWNER: Premier Industrial, LLC Page 6 of 7 K. \Planning Dept\Eagle Applications RZ&A(2003\RZ-02-03 MOD3 da cc fnl ver2 docx STATE OF IDAHO . ss. County of Ada On this day of � , 2017, before the undersigned notary public in and for the said state, personally appeared STEVE PEEL, known or identified to me to be a Member of PREMIER INDUSTRIAL, LLC, 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 • • • v-,••° L Notary Pufic fo Idaho TAR ;r. Residing at / �0 Y My Commissio Expires: d! J/ . ,r• far• (, o pUBV� I r2�a021 sag gPo„s TEOF1� ••......... 0- Page 7 of 7 K \Planning Dept\Eagle Applications \ Z&A\2003\RZ-02-03 MODS da cc fnl ver2 docx X A vr cliuLt DEC 1 5 2016 File: Route to• 4.401,4 ',. et .14". 'n741 i 01111"4 ; .141 IF hl/iiri' '' * ; OPP INV 'eF/ 10, garfill6a esoN-c...- Olei 14111:11ZIA14411":,,niiic /,' /.. .11 \ -"a° imir.'... qi.-- • • , • 10. isiej, r- ' • _4 Or 44:".efa b• c",... ' 54cA :iktli , 11.:.* ',1rii k TAD ENGINEERS