Loading...
Development Agreement - 1997 - Albertsons 1997 - 8/26/1997 Recording Requested By and When Recorded Return to: Mark Butler - Planning and Zoning Administrator CITY OF EAGLE P.O. Box 477 Eagle, Idaho 83616 SPACE ABOVE TInS LINE FOR RECORDER'S USE ONLY #1101; Eagle - Gas (#182; Eagle, ID) 9/10/97 DEVELOPMENT AGREEMENT This Development Agreement, made and entered into this ~ day of Åltllld- , 1997, by and between the City of Eagle, a municipal corporation in the State of Id~e"), by and through its Mayor, and Albertson's, Inc. ("Property Owner"). WHEREAS, the Property Owner is owner of record of certain real estate located at 434 S. Eagle Road, Eagle, Idaho ("Property"), which is more particularly described on Schedule "A" attached hereto and made a part hereof by this reference, and which is the subject of an application for rezone in Eagle, identified as Rezone Application No. RZ-5-96; and WHEREAS, the Property includes properties within an area currently zoned A (Agricultural); and WHEREAS, the Property Owner desires to develop a parking lot and fuel island with canopy on the Property; and WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have determined that the scope of any commercial project upon the Property must be limited to prevent undue damage and to otherwise be in harmony with existing development; and WHEREAS, the intent of this Development Agreement is to protect the rights of Property Owner's use and enjoyment of the Property for the purpose of developing a parking lot and fuel island with canopy while at the same time ensuring the Property is developed in a manner consistent with Eagle's Design Review Ordinance and Comprehensive Plan; and WHEREAS, the Property Owner has agreed to the use restrictions and other limitations set forth herein upon the use and development of the Property and has requested a C-2 (General Business District) zoning designation for the Property; and G, ICll ENTlOOO13122710EVAGMT . 04 WHEREAS, the owner of the Property has previously provided Eagle with an affidavit agreeing to submit the Property to a development agreement pursuant to Eagle City Code Section 8-1O-1(C)(1); and WHEREFORE, Property 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 1.1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the Property that is the subject of the application to the requested C-2 (General Business District) zoning designation, 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 n CONDITIONS OF DEVELOPMENT 2.1 The two existing Scots pine trees located on the Property shall not be removed and shall be protected and maintained to allow continued undisturbed growth until such time as the right-of-way for the realigned east/west roadway (Plaza Street) is dedicated to the Ada County Highway District. The realigned roadway, as approved by the City of Eagle Planning and Zoning Commission and City Council on June 30, 1997, shall be located so as to permit the preservation of the four trees north of the Albertson's supermarket site which lies immediately to the north of the Property (Two Catalpas, one Oak, and one Maple), and the real property devoted thereto shall be sufficient to accommodate any Plaza Street construction activity (or any other construction activity) so as to avoid its occurring within the drip line of any of the four trees. 2.2 The Property Owner shall agree to standard terms and conditions of annexation into the Eagle Sewer District, and any other terms or conditions of the Eagle Sewer District Board (i.e., currently only one building is permitted until the remainder of the site is annexed into the Sewer District boundaries - per Eagle Sewer District). 2.3 The Property Owner shall submit a Design Review application 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 certificate of occupancy. 2.4 The Property Owner understands that Eagle is in the process of revising its Comprehensive Plan and is aware that this site (and general area) is intended to be within a Central Business District shown within the new Comprehensive Plan, and agrees to permit Eagle to rezone this Property to CBD (Central Business District) along with the proposed Comprehensive plan amendments. 2 G, ICLlENTIOOO13122710EVAGHT. 04 The Property Owner also understands that the proposed use (fuel island with canopy) is currently a permitted use in the applicable zoning district (C-2) in the CB area, but may be a prohibited use within the CBD zoning district in the future. If the use becomes prohibited, the use would be permitted to continue under the regulations within Eagle City Code governing nonconforming uses as long as a Design Review application was received by Eagle, prior to adoption of any new applicable CBD regulations. 2.5 The development shall comply with the Zoning Code, as it exists in final form at the time an application for construction and/or improvement, or change in use is made. 2.6 The Property Owner agrees to apply for Council approval of a lot split for this parcel to become a legal parcel of record prior to Eagle publishing the ordinance for the rezone. 2.7 The development on the Property is subject to the following further conditions: (a) The kiosk building to be located on the site shall not exceed 400 square feet of floor area. (b) The merchandizing, display, sale or storage of retail goods (other than fuels) shall not be permitted outside of the said kiosk building on the Property. (c) Only the following categories of products may be sold from the development on the Property: (1) Gasoline, diesel oil, automotive products (such as oil, windshield wiper fluid, air fresheners, additives); (2) containers; (3) apples); (4) (5) (6) and (7) Beverages in packages not larger than six-packs or two liter Immediately consumable products (such as doughnuts, muffins, Candy and snacks; Tobacco products; Checkout stand items (such as newspapers, lottery tickets, aspirins); Charitable fundraising products. 3 G,IClIENTlOOO13122il[JEVAGMT 04 ARTICLE III AFFIDAVIT OF PROPERTY OWNERS 3.1 An affidavit of all owners of the Property agreeing to submit the Property to this Development Agreement and to 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 IV DEFAULT 4.1 In the event the Property 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. 4.2 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 V UNENFORCEABLE PROVISIONS 5.1 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 instrument shall terminate and the zoning of the Property shall revert to A (Agricultural). ARTICLE VI ASSIGNMENT AND TRANSFER 6.1 After its execution, the Development Agreement shall be recorded in the office of the County Recorder at the expense of the Property 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 property near the Property and shall run with the land. This Development Agreement shall be binding on the Property 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 liable for all commitments and other obligations arising under this Development Agreement with respect to the Property or portion thereof. 4 G, 1(11 ENTlOOO131 22710EVAGMT. 04 ARTICLE VII GENERAL MA TIERS 7.1 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. 7.2 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 neutral gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 7.3 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. 7.4 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: Mark Butler Planning and Zoning Administrator City of Eagle 310 E. State Street Eagle, ID 83616 Property Owner: Albertson's, Inc. 250 Parkcenter Blvd. P.O. Box 20 Boise, ID 83726 Attention: Legal Department 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. 7.5 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto of a fully executed original of this Development Agreement. 5 G... 1(11 ENTlOOO13\ 22710EVAGMT . 04 IN WITNESS WHEREOF, the parties have executed this Development Agreement. DATED this --J4- day of ~ 1997. CITY OF EAGLE, a municipal corporation organized and existing under the laws of the State of Idaho By: ayor ATTEST: ;;(,: /' ,~,~~n:~~.^,.,~. " ,., ."~""':'\ <,' , , ..: . , .' lflÞ4-<.-fL ~.. l:ity tìerk . , " . " , " :", <.::' "'J;,.,;,.;." ;:;.., DATED this ~ day of ¥¡z¿ru./¡~. 1997. ALBERTSON'S, INC., a Delaware corporation ¿:J.Rf By: ~~rL Name: o13&¡¿ T K.. ~IJ).'KS Its: G-/li}uß ~ fJ., ÆE~ L EsT/f-re 6 G, ICII ENTI 00013\2271[J[VAGMT, 04 STATE OF IDAHO ) ) ss. ) County of Ada On this ~ day of ~~r , 1997, before me, b; r V') a Notary Public in and for said State, personally appeared Rick Yzagu e, known or identified to me to be the Mayor of the City of Eagle, the municipality that executed the within instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate flfst above written. Ji~tI~ Residing at ÆL/1 q , My commission expires /~ ~.§/ tJ.::2 STATE OF IDAHO ) ) ss. ) County of Ada OnthiS~daYOfÞ~tt , 1997, beforeme,~E:øJl¡'AJe Ïh./J1llJ'Jð/JA-t...D , a Notary Public in and for said tate, personally appeared I!!..o/J££ 7 1(. 8¡:¡¡OKS , known or identified to me to be the GlliJuP V. Ai i!.E:AL éSTIT-T£, of Albertson's, Inc., the . owner of the Property referenced herein and the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ... JoJ.,t,uu"1ë ...~ MI't -~Y~þ . Àfc ~"'- .;y.Ù ."..""~ ./). -", ~ .,.. . e. I . ¥,~ .- ,,~ './" .0. S '-'/..' , T i , ",' i '-;,; . "'. ,,(\ \ (." "" Q . :°: . ,'.,~ ~Ch. Cj)~ :: -. : ~., ",:; ~ -/ h ' .. ... .,'" . ~ * ~J I, f. ; ': .,' .' ~y!i N ary Pubhc for Idaho .. {/) .. . ." '. ~ ~ ?, ~,,~. ..""'<'C ,~:: Residing at V11LA-u~ - "";: ~15:¿;F~'~~) t"....-:'" My commission expires ~ - I JIll ~~.. ""'IIIi.t'~ 7 G, 1(IIENTIOOO13122710EVAGMT. 04 SCHEDULE "A" LEGAL DESCRIPTION OF PROPERTY TO BE REZONED -;f) September 10, 1997 A parcel ofland in the Northwest Quarter of the Northwest Quarter of Section 16, Township 4 North, Range 1 East of the Boise Meridian, Ada County, Idaho; more particularly described as follows: BEGINNING at the Northwest comer of said Section 16; thence South 89°52'48" East 413.00 feet along the northerly line of said Section 16; thence South 00055'4T' West 150.00 feet and parallel with the westerly line of said Section 16; North 89°52'48" West 413.00 feet to a point on the westerly line of said Section 16; thence North 00°55'47" East 150.00 feet along said westerly line to the POINT OF BEGINNING. Said parcel contains 61,944 square feet more or less. AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO ) ) ss. ) County of Ada ¡¿Elf L I, 1lot3££T K. I3AAJKS , the G/lbulJ v'. f'..ESVrr6 of Albertson's, Inc., 250 Parkcenter Boulevard, Boise, Idaho 83706, being flfSt duly 'sworn upon oath, depose and say: 1. That I am the G/JjJuP v,P.. (¿£ilL ESTltT6J for Albertson's, Inc., and that I make this . affidavit for and on behalf of Albertson's; 2. That Albertson's, Inc. is the owner of the Property described on the attached, and Albertson's, Inc. agrees to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1; 3. That Albertson's, Inc. agrees to indemnify, defend and hold the City of Eagle and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. DATED this -.LL day of ,Lf~ 1997. A ß~MrL I<..oI3Eß..T k. ß/fAJKS' , Gl<.tJú fJ v, f'.~ Albertson's, Inc. B;¡-/JTG SUBSCRIBED AND SWORN to before me the day and year first above written. t:':~~ ~'IUU.,~#. ~,~-r¿. M. Me #""~ "Á-\.\." ....... bo ~ " .,~ .. '.. -.. (l(~ ~T:::" ;"';t\ Q ~~::r I~~ ; * ~.. Pt.. ~;c.. \ "-' ... -,'<: i! Residing at ~ Idaho ':;. (]"I ."', ..~,. íJ ;: '" -1 ' ""'" /:1 >""08.~"~ <;:: ..i' My CommIssIon ExpIres: eX.. -tJ / - q? "'t ' E a F \~v \ ..,~" 't"I"n.Qt'.'~" (seal) THIS AFFIDAVIT OF LEGAL INTEREST shall be attached to and be an integral part of that certain Development Agreement executed by and between Albertson's, Inc. and the City of Eagle, dated , 1997.