Development Agreement - 1995 - Albertson's/Eagle & Second - 12/12/1995 9600 `i526
ADA CO. RECORDER
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BOiSE ii)
Recording Requested By and BOISE TITLE
When Recorded Return to: 96 JflN 17 P(l 4 12
L/
Barbara Montgomery F E(3 OC=i
REC3i.JCO .;T
City Clerk ••• •,--
.::;EST OF
City of Eagle
P.O. Box 477 1966001106
Eagle,Idaho 83616
For Recording Purposes Do
Not Write Above This Line
#01X0, NEC Eagle & Hwy 44/55 Bypass
Eagle, ID
Draft: 11/14/95
DEVELOPMENT AGREEMENT
This Development Agreement, made and entered into this /2day of•Ne-vombcrr,1995,
by and between the CITY OF EAGLE, a municipal corporation in the State of Idaho ("Eagle"),
by and through its Mayor, and ALBERTSON'S,INC., a Delaware corporation(the "Applicant").
WHEREAS, the Applicant has executed options to acquire and will acquire fee title to
certain real estate (the "Property") on Eagle Road which is the subject of an application for
rezone in Eagle, identified as Rezone Application No. ERZ-3-95, and
WHEREAS the Applicant desires to develop a commercial retail project(and in particular,
a full service grocery store/supermarket) on the Property, more particularly described in
Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, the intent of this Development Agreement is to protect the rights of
Applicant's use and enjoyment of the Property for the purpose of developing it into a commercial
retail development while at the same time limiting potential adverse impacts of the commercial
development upon residential property owners near the Property and ensuring the Property is
developed in a manner consistent with Eagle's plan for locating commercial development and
recognition of the Property as abutting a significant approach to Eagle, all as reflected in Eagle's
Comprehensive Plan; and
G:\EUENT\00013\227\DEVAIa.STN
1966 J01107
WHEREAS,the Applicant 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 C-2 zoning
designation for the Property;
THEREFORE, for and in consideration of the mutual covenants contained herein, it is
agreed as follows:
ARTICLE 1
LEGAL AUTHORITY
1.1 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 2
ZONING ORDINANCE AMENDMENT
2.1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the
Property to a C-2 District, 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. This Development Agreement shall automatically
terminate and be of no further force and effect if the Property has not been rezoned C-2 within
one hundred eighty (180) days of the date hereof, or in the event the Applicant does not acquire
fee title to the Property within one hundred eighty (180) days.
ARTICLE 3
CONDITIONS ON DEVELOPMENT
3.1 Applicant will develop the Property as represented in the rezone application,
including the Preliminary Development Plan submitted with the rezone application (a copy of
which is attached hereto as Exhibit "B"), subject to the conditions set forth in this Development
Agreement. Further, Applicant will submit such applications regarding design review as are
required by the Eagle City Code.
3.2 The commercial•development shall comply with the proposed Design Review
Ordinance, as it exists at the time an improvement is made. Unless greater requirements are
established by said ordinance, the following conditions shall be satisfied:
3.2.1 Landscaping. The Property shall have no less than twelve percent (12%)
of its area in landscaping. The landscaping shall be a mixture of deciduous shade trees,
flowering trees, conifer trees, planter beds and lawn areas. There shall be no less than
one (1) two (2) inch (or larger) caliper tree located every forty (40) feet along the
perimeter excluding entryways of the Property. Within the parking area a landscaped
planter shall be provided with a minimum of two(2) two (2) inch(or larger) caliper trees
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19660011.0E
for every twenty (20) parking stalls. Landscaping will include grass-covered berms
between two and one-half(2Y2)feet and three(3)feet in height along Eagle Road and 2nd
Street frontages. A masonry fence shall be constructed on the berm behind the
Albertson's store, and a wood fence shall be constructed along the North boundary line
to provide visual screening for the adjacent property. An underground irrigation system
shall be installed in the landscape areas. Landscaping shall be installed before any
building receives an occupancy permit. Perimeter yards, berms, buffers, landscaping and
screening shall be constructed in accordance with the Landscape Plan (attached hereto as
Exhibit "C" and made a part hereof by this reference) submitted to and approved by
Eagle.
3.2.2 Lighting. All parking lot and area lighting for this Property will be Metal
Halide Lighting of no more than 1,000 watts contained in a shoebox fixture (or similar
cut-off fixture) installed on poles no higher than thirty (30) feet on the perimeter of the
Property and no higher than forty (40) feet on the interior of the Property. No "cobra"
type light fixtures shall be allowed. No Cor-ten light poles shall be allowed. The lighting
shall provide minimum one (1) foot candle maintained at grade level, and minimum two
(2)foot candles maintained illumination on all vehicle and pedestrian entrances to the site,
at on-site vehicle intersections and at building entrances.
3.2.3 Signage. Business identification and building signs shall be allowed which
conform to the approved plans for the Property. Applicant shall be allowed one (1) free-
standing sign, not more than twenty (20) feet in height with no more than fifty (50)
square feet of signage space on each face. Such sign may be internally (indirectly)
luminated. No sign shall be higher than the roof line of any building, nor shall any sign
be animated or audible.
3.2.4 Noise Restrictions. Applicant shall comply with the applicable local noise
ordinance. All public announcements, paging systems and music systems that can be
heard outside the commercial building shall not exceed 67 dBA from any location more
than fifty (50) feet outside of the Property.
3.2.5 Design,Height,and Location of Building. The design of the building shall
be in context with the "turn of the century" architecture. The building shall be
constructed of concrete masonry and brick masonry with corbeling at the building corners
and parapets. Arched masonry openings would be provided for both a covered colonnade,
as well as glazed openings.
(a) The building on the Property shall be of first quality construction
and architecturally designed so that its exterior will be architecturally and
aesthetically compatible and harmonious with the Design Review Guidelines of the
City of Eagle.
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19660U1109
(b) The building shall not have more than one story (with a mezzanine
permitted), and shall not exceed forty (40) feet in height, including rooftop
mechanical fixtures and equipment and screening for the same, if any.
(c) The building shall be of the size and location as generally depicted
on the Exhibit "B" attached hereto, unless otherwise approved by the Design
Review Committee or the Eagle City Council.
(d) All of the foregoing shall be constructed and maintained in
accordance with all local, state and federal laws, rules and regulations applicable
thereto.
3.2.6 Service Facilities. All service facilities shall be attractively screened from
second street with a three (3) foot high landscaped berm and a six (6) foot high masonry
fence. Applicant shall use a fully self-contained trash compactor for all trash and refuse.
There shall be no outside or open dumpster. Fire hydrants, transformers, light poles, or
other vertical obstructions shall not be located in or near turning radius of service
vehicles. Required ramps to rear entrances not to exceed 1:12 (8%). Applicant shall
provide a natural dock(no truck well) for delivery vehicle use. All of the foregoing shall
be located as generally shown on Exhibit "B" attached hereto.
3.2.7 Site Plan and Parking. The development on the Property shall provide for
two-way drive aisles with 60 degree angle parking and ten (10) foot wide parking stalls.
There shall be no less than 4.5 parking stalls per 1,000 square feet of building area. The
main drive aisle width shall be no less than thirty (30) feet in width. The curb cut width
at each entrance shall be no less than thirty-six (36) feet in width. The Site Plan shall
conform to all ADA standards. There shall be no wheel stops. All service and main
customer traffic aisles to be heavy duty paving. Manhole covers, catch basin, and clean-
out boxes shall not be located in traffic aisles or entry ramp areas. All of the foregoing
shall be located as generally shown on Exhibit "B" attached hereto.
3.2.8 Maintenance. The Applicant shall maintain or cause to be maintained the
Property in good and clean condition and repair, said maintenance to include the
following: maintaining the exterior of any building located on the Property; maintaining,
repairing and resurfacing when necessary all paved surfaces, removing all snow, papers,
debris, filth and refuse to the extent reasonably necessary to keep the Property in a clean
and orderly condition; and maintain all landscaped areas, including repairing and
replacing, when necessary, sprinkler systems and water lines and replacing shrubs and
other landscaping as is reasonably necessary.
3.2.9 Use Limitations. The following land uses shall be prohibited upon the
Property: bar, tavern, billiard or pool hall, massage parlor, cocktail lounge (except if
incidental to a restaurant use), adult book or adult video store or other adult sex shop,
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196600111U
automotive maintenance or repair facility, car wash, machine shop, mini storage,
warehouse or industrial uses, or facility for the renting, leasing, selling, or displaying of
any motor vehicle, boat, recreational vehicle, trailer, camper, mobile home or industrial
or farm equipment.
3.2.10 Adjacent Property Development. To the extent such requirements may be
imposed by Eagle within its legal authority and discretion,the real property lying adjacent
to the Property on the North and South shall be subject to the same landscaping and
design requirements,the use limitations, and the other requirements and limitations made
applicable by this Development Agreement to the Property.
3.2.11 Truck Traffic Restriction. Applicant shall require all Albertson's delivery
trucks delivering goods to the store to enter and exit the store property from Eagle Road,
and shall prohibit such trucks from using Second Street (except directly behind
Albertson's development) for ingress or egress until such time as Second Street is
improved as a collector street and the removal or elimination of this restriction is
approved by Eagle.
3.2.12Future Road Right-of-Way. Albertson's shall reserve a future road
right-of-way sixty (60) feet in width over and across a portion of the "Canal Spillway
Parcel" (shown as "Future Road Right-of-Way" on Exhibit "B"attached hereto), and shall
dedicate for free that right-of-way at such time as the Ada County Highway District
determines to construct a new roadway utilizing the described Future Road Right-of-Way.
3.2.13 ACHD Requirements. Albertson's shall comply with Ada County Highway
District("ACHD")requirements as set forth in the ACHD Development Services Division
Development Application Report, approved by the ACHD Commission November 8,
1995.
ARTICLE 4
AFFIDAVIT OF PROPERTY OWNERS
4.1 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 5
DEFAULT
5.1 In the event Applicant 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
- 5 G:\a1ENT\OD0131u7\DEV .51H
19660011.11
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(providing Eagle prevails in such action), including attorneys' fees and
court costs.
ARTICLE 6
UNENFORCEABLE PROVISIONS
6.1 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 remain applicable,binding, and in full force
and effect.
ARTICLE 7
ASSIGNMENT AND TRANSFER
7.1 After its execution, the Development Agreement shall be recorded in the office of
the County Recorder at the expense of the Applicant. 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 commercial 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
Agreement with respect to the Property or portion thereof.
ARTICLE 8
SUBSEQUENT ALTERATIONS
8.1 Nothing in this Development Agreement shall be deemed to bar or prohibit
remodeling of portions of the building to be constructed or other improvements on the Property,
or reconfiguration or alterations to the parking areas, drive aisles, landscaping or other
improvements of the Property after the initial construction and landscaping as contemplated by
the Application and supporting documentation is completed and an Occupancy Permit is issued
to the Applicant, provided that any such alterations are in compliance with all then applicable
Zoning Ordinances and the then applicable Design Review Ordinance of Eagle.
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•
•
1966001119
ARTICLE 9
GENERAL MATTERS
9.1 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.
9.2 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
indicates.
9.3 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.
9.4 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: Clerk of the City of Eagle
P. O. Box 477
Eagle, Idaho 83616
Attention: Barbara Montgomery
Applicant: Albertson's, Inc.
250 Parkcenter Blvd.
P.O. Box 20
Boise, Idaho 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.
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G:\CEIEHT\OOOIa\227\DEVAGR.5TH
• • 1966001113
9.5 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.
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATED this h.. day of November, 1995.
CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the
State of Idaho
By:
Steve Guerber, Mayor
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ity Clerk � : .
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DATED this if day of , 1995.
ALBERTSON'S, INC., a Delaware corporation
William H. Arnold, Vice President
Real Estate Law
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•
• 1966001114
STATE OF IDAHO )
) ss.
County of Ada )
On this // day of_4P,(1_,& ../ 995, before me, �-'h�e v aNit-Lb , a
Notary Public in and for said State, personally appeared William H. Arnold, known to me to be
Vice President, Real Estate Law of Albertson's, Inc., the corporation that executed the within
instrument or the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
WITNESS MY HAND and official seal hereto affixed the day, month and year in this
certificate first above wri wualks, *�
M. Mc ‘
4;6 °°°°° C *
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No Pub is fo the State of Idaho
* • P U B L\G * Residing at JA74f , L91/11-46
My Commission Expires •- -O/_9 y'
STATE OF IDAHO )
) ss.
County of Ada ) 11
On this / day of , 1995, before me'bo...r a. ,
a Notary Public in and for said State, personally appeared �S'-�e,Oe , known
or identified to me to be the kio .o r of CITY OF EAGLE, the municipal corporation that
executed the within instrument or the person who executed the instrument on behalf of said
municipal corporation, and acknowledged to me that such municipal corporation 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.
Notary Public St of 'o .'
Residing at G_ g
My Commission Expir* ( 3-9 t•
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•
COMPOSELE LEGAL DESCRIPTION
ALBERTSON S EAGLE,IDAHO PARCEL
A parcel of land located in the SW 1/4 of the SW 1/4 of Section 9,Township 4 North,
Range 1 East of the Boise Meridlae being more particularly described as follow
Commencing at the Southwest corner of said Section 9; thence South 89'52'48`East
65.00 feet along the South rime of said Section 9 to the TRUE POINT OF BEGINNING
being on the Easteriright ofway line of State Highway 55(Eagle Road)as desc lbed by
Warranty Deed to the STATE OF IDAHO,IDAHO TRANSPORTATION DEPART ENT recorded October 11, 1994 as Instrument No.94090844,Ada Coaniy
Deed Records; thence North 02'39''47'West 355.88 feet along said Easterly right ofway
line to a point on the south line ofthat tract of land described by Warranty Deed to
. Mcbael A.Wortman recorded November 21, 1980 as Instrument No. 8055247,Ada
County Deed Records; thence tracing said South line South 89°52148"East 570.49 feet
to the Southeast corner of said Wortman tract thence North 01°OI 3 I"East 347.18 feet
. along the Westerly Hue of that tract of land described by Warranty Deed to Fred Venable •
: recorded December 15, 1972 as InsrrumeatNo.829823,Ma County Deed Records to
the censer line of a drain ditc% thence South 86'43154"East 87.60 feet along said(Itch
center line to the Westerly right of way line of Second Street as described by Warranty •
Deed to ADA COUNTYIAGHWAYDISTRICT recorded January 30, 1981 as:
In.s ument No.8104341,Ada County Deed Records; thence South 01'01'54 West
707.86 feet along said Westerly right ofway fine to a point on the South line of said
Section 9; thence North 89'52'48"West 635.00 feet along'the south line of said Section
9 to the point of beginning.
Said parcel of land containing 5.98 acres more or less.
The basis of bearing of this description is per Project No.F 3271(033)a highway survey
now on filein the office of the IDAHO TRANSPORTAIION DEPARTMENT and all
• other information is from record data
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AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
) ss.
County of Ada )
I, WILLIAM H. ARNOLD, Vice President, Real Estate Law, Albertson's, Inc., 250 Parkcenter
Boulevard, Boise, Idaho 83706, being first duly sworn upon oath, depose and say:
1. That I am the Vice President, Real Estate Law, 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 12th day of December, 1995.
William H. Arnold, Vice President, Real Estate Law
SUBSCRIBED AND SWORN to before me the day and year first above written.
*00suacrisiv,
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SOTAR o r t Llat Pi ¶1)i •C`PGIA
N Pu lic for State of Idaho
pL, Ltd' ,t ;. Residing at C't AM t.f t__— , Idaho
*;`� ' d e-mm..Expiration Date: „4-t1/- 99
ogr4'r0F1�'�ove
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 l�eee�,,,.`„r lZ , 1995.