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Development Agreement - 2023 - Linder Senior Living - Amended & Restated - 10/17/2023 ADA COUNTY RECORDER Trent Tripple 2023-059499 BOISEIDAHO Pgs=ll ANGIE STEELE 10/19/2023 03:35 PM CITY OF EAGLE, IDAHO NO FEE Recordirm Requested By and When Recorded Return to: Planning and Zoning Administrator City of Eagle P.O� Box 1520 Eagle, Idaho 83616 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 VNITERMOL":w TAIN, PACIFIC,LLC, ("Owner"). WHEREAS, Owner is the owner of record of certain real estate consisting of two (2) parcels approximately 10.45-acres located at 6910 North Linder Road and 6940 North Linder Road, Ada County Parcel, numbers S0424325802 and S0424325656("Property"), as specifically defined in the attached legal description (Exhibit A), and shown on the Concept Plan (Exhibit R), which is the site subject of applications for rezone, identified as Eagle Rezone Application Nos. RZ-02-20 and RZ-02-20 MOD, and which is subject to an application for modification of development agreement, identified as Eagle Rezone Modification Application No. RZ-20-02 MOD2; and WHEREAS, Upon recordation of this Development .Agrees neat, that certain Development Agreement recorded in the real property records of Ada County, Idaho, on October 14, 2022, as instrument number 2022-086434 (the "Original Develop-ment Agreement") shall be void and of no further force or effect oil the Properly; and WHEREAS, Owner has previously been approved for a modification to the original rezone (RZ- 02-210) associated with the Property pursuant to Rezone Application No. RZ-02-20 MOD, which modification is iniplemented within the Original Development Agreement and subsequently implemented within this Developnient Agreement; and WHEREAS, the proposed development includes properties within an area that, at the time the Original Development Agreement was recorded, was designated OD the Land Use Map of the Z* Comprehensive Plan as Neighborhood Residential and Residential Transition Overlay and zoned R-4-DA (Residential with a development agreement); and WHEREAS., Owner desires to develop the Property with senior living facility and senior cottages use as generally shown on die Concept Plan(Exhibit B)-, and WHEREAS, the City Council of Eagle has determined ined that the scope of any senior living facility project upon the Property should be limited to prevent Lmdue damage to, and to otherwise be in harmony with, the existing con-ununity; and Pa,v,e I of 8 RZ-0120 MOD'-,up—det Senio-,LMng fKawillow Rtm,DARZA• -20 MOD'LmdCT'Szni�rlliAnK DA CC:F1&V1­1k.docX WIIERE,AS, 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 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-4-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 Ainended and Re-stated 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 PLTD and conditional use process: and WHEREAS, Owner has provided Eagle with an affidavit agreeing to submit the Property to a development agreement(Exhibit Q pursuant to Eagle City Code Section 8-10-1(C)(l); and NVI-TEREFORE, Owner and the City of Eagle desire to enter into this Amended and Restated Development Agreement and for and in consideration of the rounial 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 67-6511 A and Eagle City Code,Title 8, Chapter 10, ARTIC LE 11 ZONING ORDINANCE AMENDMENT Eagle has adopted ordirlarwes amending the Eagle Zoning Ordinance to rezone the Property to R-4-DA, subject to the provisions of the Original Development Agreement, and as specifically set forth previously in Ordinance No. 890 which became effective after its passage,approval,and publication on November 23, 2 0 2 21. 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. the 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 with 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 or 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. Page 2 of 8 Klliam,wp ).pt,ragle Arp!;ca60ns,FZ&A 2020IRZ02-201MOD2,Lin dersonwr bvingrk, SepiurUvipat,-A CC FNI.STRAo— 3.3 The Senior Living Facility and a maximum of]8-Independent.Living Cottages are the only approved uses for the site. Any change of use will require a modification to this agreement prior to change of Use. 3.4 The Senior Living Facility and Independent Living Cottages shall be designed in compliance with Eagle City Code Section 8-2A. Permitted architecture styles are specifically those shown within the eagle ArcIlitecture and Site Design t I Book (EASD Book). Architecture styles and 1 wilding design elements that are not shown within the EASD Book will not be permitted. 3.5 The applicant shall submit a Design Review application for the site(as required by Eagle City Code) and shall comply with all conditions required by the City of Eagle as a part of the Design Review approval prior to issuance of a zoning certificate. 3.6 Owner shall provide a 30-foot wide landscaped buffer located adjacent to the entirety of the east property line. Also, the Owner shall provide a vegetative hedge with a mix of 80% evergreen columnares for year-round coverage, with alternating shrubs for diversity between North Cherub Avenue and North Linder Road,- planting, shall be installed at a minimurn 4-feet in height and shall be double-rowed in strategic locations.The associated landscape plan shall be reviewed and approved by the Design Review Board and City Council prior to issuance.of a zoning certificate 3.7 The C: _proposed building height of the Senior Living Facility building shall not exceed 5 1-feet in height, All mechanical units associated with the facility shall be roof mounted and screened from view. 3.8 Owner shall construct a minimum six foot (6') wide detached sidewalk along North Linder Road. The. sidewalk should be constructed prior to issuance of a certificate of occupancy for any building located on the Property. 3.9 Owner shall provide a lot line a4justment application to combine the two (!I) parcels into a single parcel. The lot line adjustment application shall be reviewed and approved prior to the City Clerk signing the record of survey. Upon the City Clerk's signature of the lot line adjustinent record of ,survey, Owner shall provide a recorded copy of the record of survey prior to issuance of any zoning certificates. 3.10 Owner shall comply with all applicable Eagle Sewer District's regulations and conditions prior to the issuance of any building permits. A letter of approval shall be provided to the City from the Eagle Sewer District,prior to issuance of any building pern-sits. 1,11 Owner shall provide a report or analysis of any proposed changes to wetlands located on the Property and any such change shall be contingent upon approval by the Army Corps of Engineers.Idaho Fish & Game Department fil'applicable), the Idaho Department of Water Resources (if-applicable), Ada County,and any other appropriate goviernmerital agencies,and shall be in accordance with the Eagle Comprehensive Plan and City Code.Owner agrees all development and improvement of the-Property shall comply with rules and regulations pertaining to regulated wetlands. In the event development is proposed within the regulated wetlands Owner shall provide documentation of an approved 404- Permit for any work within any wetlands on site prior to the City issuing a zoning certificate for the Property, 3.12 Owner shall have the duty to maintain and operate all the common landscape areas in a competent and attractive manner, including the watering,mowing,fertilizing and caring for shrubs and trees, in accordance with Eagle City Code,in perpetuity. 3.13 All parking associated with the Senior Living Facility and Independent Living Cottages shall only be allowed in the designated parking areas located onsite. Page 3 of 8 K:'PIamh)g Dept'Eagle N240ID2 Linder SenwrLi,,Ing fk,,Wflk­ MOD?Lind:�Semor UvmgDA CC FNL VER.d­ 3,14 Owner shall comply with all requirements of the Ada County Highway District, including but not limited to approval of the drainage systern,curbs,gutters,streets and sidewalks. A letter ofapproval from the Ada County Highway District shall be submitted to the City prior to issuance of a Certificate of Occupancy. .1 5 The Property is located within the Meridian Rural Fire District. Owner sh�I co ply t al n 11 rn wi h I requirements of the Meridian Rural Fire District. One set of building plans shall be submitted to the Meridian Rural Fire District for review and approval. An approval letter from the Meridian Rural Fire District shall be submitted to the City prior to issuance of any zon-ing certificates, ARTICLE IV AIVIDAVITOF PROPERTY OWNERS Affidavit of the Owner is attnhed hereto and incorporated by reference herein agrees to subject the Property P to this Development Agreement (Exhibit C'l 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 8-1 0-1 shall be provided and is incorporated herein by reference, i%RTICLE V DEFAULT 5.1 In the even-,the Owners fall to comply with the commitments set forth herein,withirithirty(30)days of written notice of such failure from Eagle,Eagle shall have the right,without prejudice to any other prq rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement or to terr-ninaie the Development Agreernent 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 erkjoin such default and to enforce the cora-mitments contained in this Development Agreernent, 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 4the property shall be limited to those uses allowed within an. A-R. (Agri cultural-Residential) zoning designation until Eagle enacts and records an ordinance ebanging the property to the A-R(Agricultural-Residential) zoning designation. ARTICLE VI UNENFORCEABI.,E PROVISIONS Subject to terms of Section.5.3 above,if any term,provision,commitment,or restriction of+,,his Agreement or the application thereof to any party or circumstances shall,to any extent,be held invalid or unenforceable, the remainder of this instrwrient 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)(orcither appropriate party) and Eagle. Page 4 of 8 K i famin 2-24 MOD2 Linder Snwr Uvit,g fkz Wlirw Runlf)A,167­(Q-10 MIN L g Dep-'Eagle Applkatiom,RZ&A,2024RZ-o indw Smot Living DA CC FNLV7,Rdaex ARTICLE VII ASSIGNMENTAND 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 or, 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 frorn any and all obligations in connect-on with the property sold arising under this AgTeement. The new owner of the Property or any portion thereof(including, without limitation, any owner who acqiiii-es its interest by foreclosure., trustee's sale or otherwise)shall be bound by and liable for all commitments and otber obligations arising under this Agreement with respect to the,Property or portion thereof. ARTICLE VIII GENERAL MATTERS 8.1 A-mendments, 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 Para2ra-piLlIgIdLU.,�. This Development Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convemence only and shall not constitute a portion of this Development Agreement, As used in this Development Agreement, masculine, ferninine or neuter gender and the singular or plural number shall each be deetned to include the others wherever and whenever the context so dictates. 83 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Idaho in effect at the 'lime of the execution of this Developtnent 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 Le-aal 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 beer, deemed to have been the draftor of this agreement. 8.5 Notices, Any notice which a party may desire to give to another party inust 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: Intermountain Pacific, LLB' Attn: Aaron Elton 2541 East Gala Street, Suite 3 10 Meridian, Idaho 836421 Page 5 of 8 K Plamirqg Dqit',Eagle Applicat-mvAMA,2020 RZ-4)2-20 M01132 Llnd,Scnlor Living fka Willow MOD2'Unde,Snin,t,mrg DA U,RNE VERAx,. 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 prasuant to the foregoing, or Mventy-four(24) hours after titnely deposit with a reputable overnight delivery service. 8.6 Firi-micial Assurance. In addition to the, other remedies afforded Eagle herein, Owners agree to provide adequate financial assurance to Eagle, to secure the pa yment ayment of any def eed balance of the attorney fees and the engineering fees, together with interest acenied thereon. Eagle shall provide to the Oivners an estirnate 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 arnount of the estimated fees associated with the work undertaken pursuant to the terms of this Agreement. nereafter, Eagle shall bill 0-wriers for such fees, a4justing the estirnates as appropriate,. The Owners shall make pay rents 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 de-posit to pay its invoice. If the financial assurance deposited by Owners is in the forin 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 Ov,mers. 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 Onvners 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, arty of the other rights and remedies afforded it in Article V or in Section 8.7. 83 Default. In the event Owners fail to comply with the tetras and conditions he in any material respect,the City may, without ftirther notice to Owners,exercise any or all of the folioNving remedies. A. Withhold the issuance of any building perinit 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. Re ftise 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 Developruent 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 val I 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 Develop-nnent Agreement shall be effective upon the signing and execution of this agreement by both parties. Page 6 of 8 K Narming Dcpt\Eag;e Applico-oms RZ&A\110110%R-1.02-20 M4D-7,Lind" &Iwillow Run DA k-Z-0220 MOD2 Lindet Senior Living])ACC FNL VER.Aoc. 8.9 Authontv to Enter Into Aarelement: By the execution and delivery of this Agreement by the parties, and the pefformance of their covenants and obligations therein, the parties acknowledge such action has been duly authorized by all necessary corporate (or LLQ 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. 8,10 Tern-tination: 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 this day of CITY OF EAGLE, a municipal corporation organized I and existing air he,laws of the State of Idaho Bv: son rce MTayor ATTES'F: 445 J, Ti�cy E. 00--WCAY Clerk % 'use,'`- STATE OF IDAHO ss. County of Ada On this day of in the year before tree,the undersigned, a Notary Public in and for said State,personally appeared JASON PIERCE,known to me to be the MAYOR of said municipal corporation that executed this instrument and the persons who executed the said inst-ument on behalf of said corporation, and acknowledged to me that such corporation executed the same. In witness whereof. I have hereunto set ray hand and affixed my official seal the day and year first written. 00% N, o t Aai. I bfic Residing at, 4o PUBLIC, f ` ,on- My Commission Expires: N Of 08#0864 Page 7 of 8 K,Phnnjng Depf,E,,gle Applwaions,RZ&A UQOAZ-02-20 MOM Linde-,Stnto:Living fIn Willow MOM U der Stnior Living,DA C'CFNL VERAoc, OWNER: INTERMIOUNTAIN PACIFIC, LLB' An Idaho limited liability company Bv: Aaron Elton,Manager STATE OF IDAHO :Ss. Coijnq,,,)f Ada On this dad of (D7-Ad- 2023.before the undersigned notary publile in and for the said state., personally appeared AARON ELTON, known or identified to me to be the MANAGER of INTERMOUNTAIN PACIFIC, LLC, the owners of the p.-,,)I--)crty referenced herein and the persons who executed the fore,,,oing instrument. UNI FITNESS WHEREOF, I have hereunto set my band and sea] the day and year first above written. 4 rotary, u for Idaho EMILY NUNN , Notary Public-State of Idaho Residing My Commission Ey s: AhA l Commission Number 20232064 My commission Expires May 8, 2029 Page 8 of 4 Exhibit "A" a T,O I1KN1W*f*M FILED Project No. 190609 CITY OF EAGLE Date, February 6, 2020 FEB 1 Z 2020 Page 1.of I DESCRIPTION OF LAND File;_ Ada County Parcels S0424325656 and S0424325802 Route to: A parcel of land being all of Ada County Parcels S0424325656 and S0424325802 and the easterly right-of- way of North 'Linder Road, adjacent thereof, located in the NIWI/4 of the SWI/4 of Section 24,Township 4 North, Range I West, Boise Meridian,Ada County, Idaho, more particularly described as follows: COMMENCING at the northwest corner of said NWI/4 of the SWI/4(west one-quarter corner of said Section 24),from which the southwest corner of said Section 24 bears 5.00*47'16"W., 2647.08 feet; thence, along the westerly boundary of said 1L W1/4 of the SWI/4, A) S,00-47'16-W,, 459,15 feet to the prolongation of the southerly boundary of Gated Garden Subdivision Phase 1, recorded in Book 112 of Plats at Pages 16322-16326,records of Ada County,, Idaho;thence along said prolongation and said southerly boundary,the following courses: 1) S,89-00'50"E,,86.82 feet to the beginning of a tangent curve;thence, 2) Easterly along said curve to the right, having a radius of 100,00 feet,an arc length of 35e57 feet,through a central angle of 20122'48'and a long chord which bears S,79OOa49"E.,3538 feet;thence,tangent from said curve, 3) S,68-50'08-E., 531,13 feet to the westerly boundary of said Gated Garden Subdivision Phase 1;thence., leaving said southerly boundary, along said westerly boundary, 4) &00-51'55'W, 669,63 feet to the southwestern-most corner of said Gated Garden Subdivision Phase I and the northerly boundary of Lazy I,Subdivision, recorded in Book 103 of Plats at Pages 13931-13933, records of Ada County,Idaho;thence along said boundary, 5) N,89-32'27-W,, 618.64 feet to the westerly boundary of said NW1/4 of the SW1/4;thence, along said boundary, 6) N.00-47'16"E., 864,67 feet to the POINT OF BEGINNING. CONTAINING, 11,131 acres, more or less. SUBJECT TO, all Record Documents, 13765 / This description is for the purposes of Annexation and Rezoning only and is not to be used for the conveyance or transfer of title. 00M 332 N 11hum!r208)4A2 iOD I a-A U0F)466,094A. Aviation 4-,Ampoftaftn I EW.LiDeveloPmert I Aria,P'6051 I Water Resok?rCes I Siwvcyi�ng 1 Un40XCaPeArChAerAvm EXHIBITT" all A I Hit -� CIRO A W1- —W -VmEi T NOW IN A 19 al WIN OPEN nr, Sm g tq Ag � Nr ,N -p tows W -Q, ma 4 RAWO iu J?V, It Sri all. OEM. gala -T! NO -A --g I- Al low-Down na" A ,MP -0 64031 sul v49 3 A 'tN 2,v U, --A,A�Alf, .0 iota! 0 S-2 r VIRR 5 von 3Pn -Q, S, PIZ 3� EXHIBIT "C" Affidavit of AARON ELTON on behalf of Intermountain Pacific,LLC(an Idaho limited liability company) AFFIDAVIT OF LEGAL INTEREST STATE OF IDAI-10 :ss. County of Ada AARON ELTON,who being first duly sworn under oath.,deposes and says: 1. 1 arn AARON ELTON, who is the Manager of Intermountain Pacific, LLC, whose mailing address is 2451 Gala Street, Suite 310, Street, Meridian, Idaho 83642 ("Intermountain Pacific,LLC"). 2. Intermountain Pacific, LLC is the fee simple owner of the parcel of real property described on Ey-hibit A.attached hereto(the"Property"). 3. Intermountain Pacific, L-1C, authorizes the submission of the Propeily to certain Development Agreement dated the - day of 2023 pursuant to the provisions set ft;rthlirl Idaho Code Sec"t'i-o"'n"67-651.IA and Eagle City Code Section 8-10-1,by and between the City of Eagle, a inimicipal corporation in the State oJoLldaho, and Aaron Elton, Intermountain Pacific, LLC(the"Agreement"). 41— DATED this 5 day of'.__. ov*C 2-02 3 By. 1INTER1zfOIJN TAINT PACIFIC, LLC an Idaho limited liability company 114 By: Aaron.Elton,Manager SUBSCRIBED AND SWORN to before me this .....day of 2023. J Notary PulgiFfor Idaho EMILY NUNIN Notary Pubuc-state'of'4�daLhic Residing at _J�JC- -)c&, Idaho 1c, �2 Hum", r-1.0232064 My Commission expires My Commission Expires May 2029 Page I of I RZ&A,202flU-02-20VOID2 Lifldfl Senior l—mpfks WiflowRvr,DkI miler SenjoT Living EXf-IBITC.8ce