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Development Agreement - 2017 - Lonesome Dove Sub 2 - 9/14/2017Recording 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=12 DAN RYALLS EAGLE CITY 2017-094389 10/04/2017 04:30 PM NO FEE 11/1111111 111111111101111111 IIIIIIIIIIIIIIIII 111 00416869201700943890120129 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 Taunton Properties, LLC ("Owner"). WHEREAS, the Owner is the owner of record of certain real estate located at the southeast and southwest corners of East Riverside Drive and South Lone Brook Way (Lot 1, Block 1, and Lot 1, Block 2, Lonesome Dove Subdivision) 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-07-16; and WHEREAS, the proposed development includes properties within an area currently zoned MU (Mixed Use); and WHEREAS, the Owner desires a MU -DA (Mixed Use with a development agreement [in lieu of a PUD) 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 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 [in lieu of conditional use permit]) zoning designation for the Property with the requirements set forth in this Development Agreement; and Page 1 of 8 KAPlanning Dept\Eagle Applications\SUBS\2016\L.onesome Dove Sub No. 2 da cc fnl ver.doc WHEREAS, the Owner has provided Eagle 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 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 Concept Plan (Exhibit "C") 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 total number of residential units on the Property shall not exceed 68 -units in the aggregate. Development of the residential portion of the Property will be permitted through the Design Review process and future conditional use permits for the residential development will not be required with the exception of height exceptions. 3.4 The setbacks shall be as follows: Street Front 18 -feet (measured from back of curb) 15 -feet (measured from back of curb) (units located adjacent to East Lone Creek Drive) Page 2 of 8 K:\Planning Dept\Eagle Applications\SUBS\2016\Lonesome Dove Sub No. 2 da cc fnl ver.doc Collector Street Side 35 -feet (measured from back of curb) (E. Riverside Drive) (an exception of 3 -feet in width for up to 50% of the structure may be permitted to provide for architectural variations for the E. Riverside Drive facing walls of the three townhomes to be located on Lots 2, 14, and 15 of Block 18) Interior Side 0 -feet Street Side 5 -feet (measured from back of curb) Side adjacent to common area 5 -feet Alley 4 -feet (measured from edge of alley) Maximum Coverage: No Maximum coverage 3.5 The conditions, covenants and restrictions for the Property shall contain at least the following: (a) An allocation of responsibility for maintenance of all community and privately owned landscaping, pressurized irrigation facilities, parking lots, and amenities. (b) A requirement insuring compliance with the Design Guidelines approved with this Agreement. (c) A requirement for all fencing within the development to be open -style such as wrought iron, extruded aluminum (looks identical to wrought iron), or three -rail -type wooden decorative fencing. All other fencing (ie. cedar fencing, vinyl, chainlink) shall be prohibited. (d) The common lot area (Lot 1, Block 18, as shown on the preliminary plat, date stamped by the city on September 22, 2016) located between the dwelling units located adjacent to the alleys shall be maintained by the owner(s) of those dwellings. 3.6 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 and commercial uses. A letter of approval shall be provided to the City from the Idaho Department of Health and Welfare, Department of Environmental Quality, and/or Central District Health, prior to issuance of any building permits. 3.7 Owner shall comply with all applicable provisions of Title 10, Flood Control, of the Eagle City Code. City of Eagle approvals shall be subject to any FEMA requirements. 3.8 Owner shall match the existing streetscape located on the south side of Riverside Drive with a minimum eight foot (8') wide tree lined landscaped strip. The landscaping, including street trees and sidewalk shall be reviewed and approved by the Design Review Board prior to submittal of a final plat application. 3.9 The multi -family dwellings shall be constructed utilizing "Northwestern" style architecture (Exhibit "D") that shall be commensurate with the architectural styles of the residential dwellings located within Lonesome Dove Subdivision. Design Review Board approval of the detailed architectural plans for the development is required prior to the issuance of building permits for the multi -family dwellings. To assure compliance with this condition, the applicant shall create an Architectural Control Committee (ACC) as a component of the development's CC&Rs. Provisions regarding the creation and operating procedures of the ACC shall be included in the CC&Rs, and shall be reviewed and approved by the City attorney prior to the approval of the first final plat. Page 3 of 8 KAPianning Dept\Eagle Applications\SUBS\2016U.onesome Dove Sub No. 2 da cc fnl ver.doc The submittal of the building permit application to the City for each building within the development shall be accompanied by an approval letter from the Architectural Control Committee. Building permit applications that do not have an approval letter attached will not be accepted. To assure compliance with the conditions of approval herein, the City reserves the right to deny, at its discretion, any building permit application that does not meet the design requirements as may be stipulated by the Eagle Design Review Board and Eagle City Council. 3.10 Owner shall provide premium trash service (as identified in the city's contract with Republic Services) for the residential units that are accessed from private alleys that do not include a turnaround or to which Republic Services will not provide standard service. 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 67-6511A 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. 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, the 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 Page 4 of 8 K:\Planning Dept\Eagle Applications\ SUBS\2016\Lonesome Dove Sub No. 2 da cc fnl ver.doc 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. 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: Taunton Properties, LLC Attn: Peter Taunton 1181 Hesse Farm Road Chaska, Minnesota 55318 With a copy to: Cynthia A. Melillo, PLLC 8385 West Emerald Street Boise, Idaho 83704 Page 5 of 8 K:\Planning Dept\Eagle Applications\SUBS\2016\Lonesome Dove Sub No. 2 da cc fnl ver.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, 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; 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) Page 6 of 8 K:\Planning Dept\Eagle Applications\SUBS'2OI6ILonesome Dove Sub No. 2 da cc fill ver.doc resalution(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 daypl;�, 2017. ifej:S•,�Q oR ar tj /.'; Armor— ATTEST: • "••bInses.0*• k-Y�-CdrT` �f Sharon K. Bergmann, City C rk STATE OF IDAHO ) ss. CITY OF EAGLE, a municipal corporation organized and existing under the laws of the State of Idaho By: Stan Ridgeway, Mayor Owner. Taunton Properties, LLC By: tc/ Peter Taunton, Managing Member County of Ada ) On this day of6e.Ae. , 2017, before the undersigned notary public in and for the said state, personally appeared PETER TAUNTON, known to me to be the Managing Member of TAUNTON PROPERTIES, LLC, identified to me to be the owners of the property referenced herein and the persons who executed the foregoing instrument. written. IN WITNESS WHEREOF, 1 have hereunto set my hand and seal the day and year first above JESSICA JILL PARKS Notary Public Notafy Public orMingesota State of Minnesota Residing at: 51CQt My Commission Expires January 31, 2020 My Commission Expires: 7i0CAVI •2D Q Page 7of8 KVI.mu u g [kpt5f agk Applx•ionstSUBSVI )1611. nemob pose Sub F4o Je &, fnI str.doc INDEX OF EXHIBITS A - Legal Description B - Affidavit of Owner C - Concept Plan D Residential Elevations Page 8 of 8 KAPlanning Dept\Eagle Applications\SUBS\2016\Lonesome Dove Sub No. 2 da cc fnl ver.doc EXHIBIT "A" LEGAL DESCRIPTION LOT 1, BLOCK 1 AND LOT 1, BLOCK 2, LONESOME DOVE SUBDIVISION Page 1 of 1 K:\Planning Dept\Eagle Applications\ SUBS\2016\Lonesome Dove Sub No. 2 legal description.doc EXHIBIT "B" Affidavit of PETER TAUNTON on behalf of Taunton Properties, LLC STATE OF MINNESOTA County of Carver AFFIDAVIT OF LEGAL INTEREST PETER TAUNTON, who being first duly sworn under oath, deposes and says: 1. 1 am PETER TAUNTON, who is the Managing Member of Taunton Properties, LLC, whose mailing address is 1181 Hesse Farm Road, Chaska, MN, 55318 ("Taunton Properties, LLC"). 2. Taunton Properties, LLC, is the fee simple owner of the parcel of real property described on Exhibit 1, attached hereto (the "Property"). 3. Taunton Properties, LLC, authorizes the submission of the Property to certain Development Agreement pursuant to the provisions set forth i aho Code Section 67-6511A and Eagle City Code Section 8-10-1 dated the '0 day of , 2017 by and between the City of Eagle, a municipal corporation in the State of Idaho, and Peter Taunton, Taunton Properties, LLC (the "Agreement"). DATED this 25 day of , 2017. By: Taunton Properties, LLC By: & iht Peter Taunton, Managing Member SUBSCRIBED AND SWORN to before me this tit, day of JESSICA JIU. PARKS Notary Public State of Minnesota My Commission Expires January 31, 2020 2017. Notary Publi for�ti�ti nesota Residing at trot-Sk.A. , Minnesota My Commission expires 1• • 2132.o Page 1 of 1 K Spinning pept\Eagle Appl ationalSllaSL0161F.onnomc Dove Sub No 2 da affidavit. dot Lonesome • ‘ONIMMME:.-ilignaii.71101411168a.M6,8661MMAMMINOnommmmii.„_ .41gro. 16 17 18 PHASE 2 SITE OPEN SPACE LONESOME DOVE PHASE 2 SITE AREA - 4.36 ACRES COMMON AREA - 0.92 ACRES PERCENT OF THE SITE AS COMMON AREA - 21.1% TOTAL LOTS - 75 RESIDENTIAL LOTS -68 COMMON AREA LOTS -7 OVERALL SITE OPEN SPACE LONESOME DOVE PHASE J AND 2 SITE AREA - 41 9 ACRLS COMMON AREA - 205 ACRES PERCENT OF THE SITE AS COMMON AREA - 49% RENNISONEN EXHIBIT "D" 0