Development Agreement - 2012 - 1St Amended & Restated The Preserve (Formerly Eaglefield) - 6/19/2012 ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 25
BOISE IDAHO 08/23112 01:23 PM
DEPUTY Bonnie Oberbillig III IIIIIIIIIIIIIIIIIIIIIIIIIIIIII I III
RECORDED—REQUEST OF
Eagle City 112885358
Recording Requested By and
When Recorded Return to:
City of Eagle
660 E. Civic Lane
P.O. Box 1520
Eagle, Idaho 83616
For Recording Purposes Do
Not Write Above This Line
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This First Amended and Restated Development Agreement ("Development Agreement" or
"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 The Preserve, LLC,
("Owner"). Upon recordation of this Development Agreement, that certain Development Agreement
recorded in the real property records of Ada County, Idaho, on April 13, 2006, as instrument number
106057136 (the "Original Development Agreement") and the Development Agreement Modification
recorded in the real property records of Ada County, Idaho, on March 19, 2009, as instrument number
109031309 (the"Original Development Agreement Modification") shall be void and of no further force or
effect as to the Property,as defined below.
WHEREAS, the Owner is the developer of certain real estate located north of Highway 44 and
west of Linder Road in Eagle, Idaho ("Property"), as specifically defined in the attached legal description
(Exhibit A), which is the subject of an application for a Planned Unit Development identified as
Preliminary Development Plan and Conditional Use Permit Application for Planned Unit Developments
Applications No. PPUD-01-11 and CU-01-11;and
WHEREAS, a portion of the Property is the subject of an application for Rezone identified as
Rezone Application No. RZ-01-11; and
WHEREAS, on January 24, 2006, the City Council of Eagle approved applications for the
development of Eaglefield Estates, including annexation,rezone, conditional use,preliminary development
plan,preliminary plat, and vacation of right-of-way; and
WHEREAS, the prior owner of the Property, Eaglefield, LLC, and Eagle entered into a
Development Agreement dated March 27, 2006 and recorded April 13, 2006 in the real property records of
Ada County, Idaho as Instrument No. 106057136("Original Development Agreement");and
WHEREAS, on February 13, 2007, the City Council of Eagle approved a final development plan
and final plats for Eaglefield Estates Subdivision Nos. 1 and 2;and
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WHEREAS, Eaglefield, LLC and Eagle entered into a Development Agreement Modification
dated March 18, 2009 and recorded March 19, 2009 in the real property records of Ada County, Idaho as
Instrument No. 109031309("Original Development Agreement Modification"); and
WHEREAS, on March 22, 2011, the City Council of Eagle approved a combined preliminary
plat/final plat to resubdivide a portion of the Property as Eaglefield Estates Subdivision No. 2 and a
vacation of shared access/common driveway easements within Eaglefield Estates Subdivision No. 1;and
WHEREAS, the Property is currently zoned R-2-DA-P, R-3-DA-P, R-4-DA-P, and MU-DA-P;
and
WHEREAS, the Owner desires a R-3-DA-P, R-4-DA-P and MU-DA-P zoning classification to
develop a single-family residential development on the Property; and
WHEREAS,the Planning and Zoning Commission and the City Council of Eagle have determined
that the scope of the proposed 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 R-3-DA-P, R-4-DA-P and MU-DA-P zoning
designation for the Property with the requirements set forth in this Development Agreement;and
WHEREAS, the Owner has provided Eagle with an affidavit agreeing to submit the Property to a
Development Agreement(Exhibit E)pursuant to Eagle City Code Section 8-10-1(C)(1);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 R-3-DA-P and R-4-DA-P Districts, in accordance with Developer's
application, after recordation of, and subject to the provisions of this Development Agreement. The
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ordinance will become effective after its passage, approval, and publication and the execution and
recordation of this Development Agreement.
ARTICLE III
CONDITIONS OF DEVELOPMENT
3.1 The maximum density for the Property shall be 2.61 dwelling units per acre(371 single-family lots).
3.2 The 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.
3.3 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.
3.4 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 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.
3.5 The single-family dwellings shall be constructed in substantial conformance to"Craftsman",
"Americana", or"Ranch"styles of architecture as shown in Exhibit"C".
To assure compliance with this condition, the applicant shall create an architectural control committee
("ACC") as a component of the development's conditions, covenants and restrictions ("CC&R's").
Provisions regarding the creation and operating procedures of the ACC shall be included in the
CC&R's, and shall be reviewed and approved by the City prior to the approval of the first final plat.
The submittal of the building permit application to the City for each structure within the development
shall be accompanied by an approval letter from the ACC. 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 substantially conform to the design
requirements as shown on the Exhibit"C".
3.6 Final plat applications submitted in compliance with the approved preliminary plat phasing plan shall
be submitted in an orderly and reasonable manner in intervals not to exceed eighteen (18) months
following the recordation of the preceding final plat. (Such final plat applications shall be considered
for final approval without resubmission of the preliminary plat for approval). Any final plat shall be
recorded within eighteen (18) months following Eagle City Council action on the final plat; provided
however, Eagle City Council may approve the extension of such eighteen (18) month period, which
approval shall not be unreasonably withheld, for a period of time not to exceed two (2) years to
facilitate the completion of improvements required by the applicable sections of Eagle City Code. As
part of its consideration to extend the time frame in this Section, Eagle City Council may require
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applicant to adhere to subdivision ordinances and resolutions in effect at the time the extension is
requested.
3.7 The CC&R's for the Property, or the architectural design guidelines adopted pursuant to such
CC&R's, 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) All fencing adjacent to common space(with the exception of pathway lots)shall be open
fencing constructed of wrought iron or similar material to be reviewed and approved by the
Design Review and City Council.
(c) Language controlling the number of times a single elevation/design can be used within the
development and the proximity of similar elevation/designs to each other.
3.8 Prior to issuance of any building permits, the Owner shall provide proof of adequate sewer service to
the proposed residential uses in the form of a serviceability letter from Eagle Sewer District.
3.9 As required by Eagle City Code, Title 6, Chapter 5, the Property shall become part of Eagle's
municipal water system and comply with the terms of the September 13, 2005 Memorandum of
Agreement, as amended on April 3, 2008 (both of which are attached hereto as Exhibit D), and any
subsequent amendments. All water mains to be dedicated to the public shall only be constructed on
rights of way, easements, or publicly owned property. Easements or permits secured for main
extensions shall be obtained in the name of Eagle, along with all rights and title to the main, at the time
water service is prohibited. Water mains shall be extended by the owner to the boundaries of the
Property at locations where future water system extensions are expected to occur, as designated by the
City Engineer. In accordance with Eagle City Code Section 6-5-25, Owner is entitled to
reimbursement from latecomers for construction costs incurred by Owner or by its predecessors related
to extension of water lines, subject to the limitations set forth in this section. Such reimbursement is
limited to the allocable share of the design and construction of wells and related municipal water
delivery facilities' conveyed to the City by Developer that represent oversized or extended portions of
the municipal water system required to provide additional capacity to properties outside the Property or
the adjacent Legacy Development. No latecomer reimbursement is available to Developer from the
Legacy Development.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of the owner(s)of the Property agreeing to submit the Property to this Development
Agreement(Exhibit E)and to the provisions set forth in Idaho Code Section 67-6511 A and Eagle City
Code Section 8-10-1 shall be provided and is incorporated herein by reference.
1 Irrigation facilities are not included in any reimbursement.
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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, provided,however, that in the case of any such
default that cannot with diligence be cured within thirty (30) days, then the time allowed to cure such
failure may be extended for such period as may be necessary to complete the curing of the same with
diligence and continuity.
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, including
attorneys' fees and court costs.
5.3 If the term of this Development Agreement expires prior to completion of the Conditions of
Development set forth in Article III above 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 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.
ARTICLE VI
INDEMNIFICATION
Owner shall assume and pay all debts, charges, claims, damages and liabilities directly attributable to
Eagle's approval of this Agreement and shall save, hold Eagle harmless therefrom and shall indemnify and
defend and/or provide for defense against same.
ARTICLE VII
UNENFORCEABLE PROVISIONS
Subject to terms of Section 5.3 above, if any term, provision, commitment, or restriction of this 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 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(or
other appropriate party)and Eagle.
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ARTICLE VIII
ASSIGNMENT AND TRANSFER
After its execution, the Development Agreement shall be recorded in the office of the County Recorder at
the expense of 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 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 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 IX
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 dictates.
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 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.
9.5 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
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Owner: The Preserve,LLC
1859 S. Topaz Way, Suite 200
Meridian, Idaho 83642
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.
9.6 Effective Date. This Development Agreement shall be effective upon the signing and execution of this
Agreement by both parties.
9.7 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.
9.8 Effect on Prior Agreements. Owner and Eagle desire and agree that, for the purposes of the Property,
this Development Agreement shall amend and restate the Original Development Agreement and the
Original Development Agreement Modification, such that, as to the Property, these prior agreements
shall be wholly replaced and have no further effect upon the effective date of this Development
Agreement. This Development Agreement shall not replace the Original Development Agreement or
the Original Development Agreement Modification for any real estate other than the Property. In no
case does this agreement modify nor terminate the September 13, 2005 Memorandum of Agreement or
its April 3,2008 Amendment which are both incorporated herein by reference as Exhibit D.
IN WITNESS WHEREOF,the parties have executed this Development Agreement.
DATED this !R day of\,{l.076, 2012.
CITY OF EAGLE, a municipal corporation organized
and e t isting under the law• the State of Idaho
By. Imo:_ • A _�� i ,
• es D. Reynolds,M.yorl
ATTEST:
.••• - E A G '••,
Sharon K. Bergmann, City Clerk 11; R A
• 'SS O i-,•••e'' •• i V0 • -k•• L •s •
CV 1.
.` ••.ok PO g N.•• tr'
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The Preserve, LLC,an Idaho limited liability company
By: Coleman Homes, LLC, Manager
Thomas Coleman, Executive Vice President
STATE OF IDAHO )
: ss.
County of Ada )
On this /9 day of /')-e_, , 2012, before the undersigned notary public in and for
the said state,personally appeared JAMES D. REYNOLDS, known or identified to me to be the Mayor of
the City of Eagle and the person who executed the foregoing instrument on behalf of said City and
acknowledged to me that said City executed the same.
IN WITNESS WHE' • " ' `.. - . -unto set my hand and seal the day and year first above
written. .() •...N
•a I ,23 'x, ' 'Sr ary Publ f%f r Idaho aalto
,.. ��' .,.iding at: °lt L,r7Q
4v ` Commission Expires:
* ..e.•'� �t $ti STAlt,*gyp
•
/
STATE OF IDAHO )
1
: ss. --'---„�
County of Ada ) N
f" , A.
On this 13 day of JU n 2. , 2012, befe the underMgAd notary public in and for
the said state,personally appeared THOMAS COLEMAN, kno or identified to me to be the Executive
Vice President of Coleman Homes, LLC,the owner of the propert eferenced eiein and the person who
executed the foregoing instrument. `.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the d.y and year first above
written. wow
41 tiOTARI, o n�0'blic.for I•ahoo
1 x.40 lR Residing at:
* My Commission Expires: '3—"Lb--1-7
OF I.••.•'• Page 8 of 9
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INDEX OF EXHIBITS
A - Legal Description of Property
B - Concept Plan of Property
C - Typical Housing Styles
D - Memorandum(s)of Agreement for Eagle Municipal Water
E - Affidavit of Owner Agreeing to Submit Property to Development Agreement
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EXHIBIT "A"
• January 14, 2011
DESCRIPTION FOR THE PRESERVE SUBDIVISION
A parcel of land being Lots 4 and 5, and portions of Lots 1, 2, 3. 6, 7, 8 and the vacated rights-
of-way of Newell's Acreage, as filed in Book 6 of Plats at Page 248,records of Ada County, Idaho,
and the SW 1/4 of the NE 1/4 of Section 11, T. 4N., R. 1W., B.M., Eagle, Ada County, Idaho more
particularly described as follows:
Commencing at the N '/4 corner of said Section 11, from which the NE corner of said Section
11 bears South 89°19'36"East, 2644.52 feet;
Thence along the North-South centerline of said Section 11 South 00°31'16"West, 1321.29
feet to the NW corner of the SW 1/4 of the NE 1/4 of said Section 11, the REAL POINT OF
BEGINNING;
Thence along the northerly boundary line of the SW 1/4 of the NE 1/4 of said Section 11 South
89°22'12"East, 1321.32 feet to the NE corner of the SW 1/4 of the NE 1/4 of said Section 11;
Thence along the easterly boundary of the SW 1/4 of the NE 1/4 of said Section 11 South
00°33'39" West, 1320.24 feet to the SE corner of said SW % of the NE 1/4;
Thence along the west boundary line of the NE 1/4 of the SE 1/4 of said Section 11 South
00°40'44' West, 541.00 feet to a point on the northerly boundary of Eaglefield Estates Subdivision No.
1, as filed for record in Book 100 of Plats at Page 13150, records of Ada County, Idaho;
Thence along the northerly and westerly boundary of said Eaglefield Estates Subdivision No. 1:
Thence North 89°24'33" West, 146.74 feet to a point on a curve,
Thence 219.55 feet along the arc of a non-tangent curve to the right, said curve having a
radius of 175.00 feet, a delta angle of 71°52'55", and a long chord bearing South 80°23'05"
West, 205.43 feet;
Thence South 32°50'26"West, 103.13 feet;
Thence North 57°09'34"West, 126.70 feet;
Thence South 32°50'26" West, 105.00 feet;
Thence South 59°03'26" West, 92.55 feet;
Thence South 65°21'31" West, 76.41 feet;
Thence South 77°29'31" West, 55.48 feet;
Thence North 86°52'27" West, 55.51 feet;
Thence North 72°20'41" West, 69.93 feet;
Thence North 80°14'44" West, 106.79 feet;
Thence North 29°11'03" West, 119.60 feet;
Thence North 78°19'01"West, 361.79 feet;
Thence South 37°56'52"East, 57.63 feet;
10061 0\100610-PRESERVE-DES.doc
Thence South 47°08'34"East, 126.92 feet;
Thence South 05°13'17"East, 129.88 feet;
Thence South 35°44'59" West, 102.32 feet;
Thence South 04°13'39" West, 78.55 feet;
Thence South 04°20'41" West, 131.56 feet;
Thence leaving said boundary South 14°01'46" West, 50.70 feet to the northwest corner of Lot
27, Block 12 of said Eaglefield Estates Subdivision No. 1, said point being on the westerly boundary of
said subdivision;
Thence along said westerly boundary South 00°36'42" West, 154.91 feet to a point on the
southerly boundary of said Newell's Acreage Subdivision;
Thence along said southerly boundary North 89°26'33" West, 1278.70 feet to the SW corner of
said Newell's Acreage Subdivision;
Thence along the west boundary of said Newell's Acreage Subdivision North 00°32'09"East,
1323.19 feet to the NW corner of said Newell's Acreage Subdivision;
Thence along the North boundary of said Newell's acreage Subdivision South 89°26'00"East,
1313.09 feet to the Center 1/4 corner of said Section 11;
Thence along the North-South centerline of said Section 11 North 00°31'16"East,
1321.29 feet to the REAL POINT OF BEGINNING. Containing 99.52 acres,more or less.
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EXHIBIT "D"
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement ("MOA") is made and entered into this l 3 - day of
September, 2005, between the CITY OF EAGLE ("CITY") and EAGLEFIELD, LLC
("EAGLEFIELD") to document the development of water rights and wells for the proposed
Eaglefield Subdivision located in Ada County, Idaho ("Eaglefield Subdivision" or
"Subdivision"). The purpose and objective of this MOA is to require EAGLEFIELD to acquire
sufficient municipal water.rights and develop sufficient wells to deliver municipal water to the
Eaglefield Subdivision in compliance with and consistent with the intent City of Eagle
Ordinance No. 479.
RECITALS
WHEREAS, EAGLEFIELD is in the process of developing and seeking to annex the
Eaglefield Subdivision into the CITY; and
WHEREAS, the Eaglefield Subdivision will require municipal water and accompanying
wells to serve the residential development in the Subdivision; and
WHEREAS, to facilitate annexation of the Eaglefield Subdivision into the CITY and the
development of the Subdivision, EAGLEFIELD is required to acquire and develop sufficient
water rights and wells for the purpose of serving the Subdivision in order to comply with City
Ordinance No. 479; and
WHEREAS, the CITY has filed an application for a water sight No. 63-32090 that is
agreed to be sufficient for the Eaglefield Subdivision; and
WHEREAS, EAGLEFIELD has thoroughly reviewed that application, the protests to the
application, and is fully aware of the steps and procedures necessary to license the application,
PAGE 1 of 4
EXHIBIT "F"
09/13/2005 TUE 02:53 FAX C�7j. 003/008
and comply with City Ordinance No. 479, and agrees the application would best meet the needs
of the Eaglefield Subdivision; and
WHEREAS, EAGLEFIELD has determined that it is in its best interest to use the CITY's
application in order to meet EAGLEFIELD's obligations to provide potable water for the
Eaglefield Subdivision pursuant to City Ordinance No.479; and
WHEREAS, the CITY has agreed to allow EAGLEFIELD to utilize the CITY'S
application in order to acquire the necessary water rights for the Eaglefield Subdivision as set
forth in the application_
NOW THEREFORE, the CITY and EAGLEFIELD agree as follows:
I. The CITY shall proceed to license the CITY's application No. 63-32090.
EAGLEFIELD agrees to pay the CITY for the services of appropriate experts and counsel to
take all steps necessary to complete licensing of the application including meeting any
requirements required by the Idaho Department of Water Resources. Title to the water ri l-il
� g .
shall remain in the CITY's name.
2. EAGLEFIELD agrees to cooperate in all respects with the CITY in the licensing
procedure and to execute such documents as are deemed necessary by the CITY in its sole
discretion to complete the development of the water right, the development of wells, and the
conveyance of any interest in land necessary to accomplish the objectives of this MOA.
EAGLEFIELD further acknowledges the interest of the CITY in the application and agrees to
take all steps necessary to protect and defend the CITY's interest in the application.
EAGLEFIELD further agrees to enter into a Joint Defense Agreement with the CITY with regard
to any legal proceedings involved in processing the application and to take all actions necessary
to protect communications between the CITY and EAGLEFIELD as appropriate, including all
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09/13/2005 TUE 02:53 FAX a004/008
communications between and among counsel and other parties representing the CITY and
EAGLEFIELD.
3. EAGLEFIELD shall, at its own expense, develop wells designed to meet all
municipal well requirements in accordance with all applicable laws and regulations and transfer
the same to the CITY. The municipal wells and their construction shall be subject to the
approval of the CITY Engineer consistent with City Ordinance No. 479.
4. Upon the signing of this MOA, EAGLEFIELD will take all steps necessary to
guarantee that it has the authority with respect to the land where the point(s) of diversion of
water-right application No. 63-32090 are located to convey such land to the CITY for the well
site and any easements necessary to provide water delivery from the well(s) to the Eaglefield
Subdivision or to otherwise connect to the CITY water system as determined by the CITY
Engineer and shall convey such Iands to the CITY upon notice by the CITY. Proof of such
authority shall be provided to the CITY.
5. EAGLEFIELD understands and'agrees that licensing of the municipal water right
and transfer of the municipal wells and necessary easements as set forth above are an absolute
condition for approval of the final plat of the Eaglefield Subdivision, and the CITY Clerk will
not sign the final plat until the water right is licensed and wells are completed, all necessary
interests conveyed to the CITY, the water right and wells are ready and able to deliver water to
the Subdivision, and all costs and expenses owed to the CITY pursuant to Ordinance 479 have
been paid to the CITY and others. EAGLEFIELD further understands and agrees that the above
described water right and municipal wells, as approved by the CITY, the Idaho Depaxment of
- Water Resources and the Department of Environmental Quality, shall be the means by which
Eaglefield Subdivision is supplied potable water.
}
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09/13/2005 TUE 02:53 FAX [j005/008
6. Where appropriate, the CITY will consider whether a cash bond, irrevocable
letter of credit, or similar instrument may be acceptable to the CITY to guarantee performance by
EAGLEFIELD.
7. EAGLEFIELD understands and agrees that this MOA may be incorporated into a
development agreement between the CITY and EAGLEFIELD as part of the rezone approval
process.
8. Each party signing below attests and declares under penalty of perjury that the
party has authority to sign on behalf of the indicated entity or entities, and that the nor-CITY
• entities are bound by this MOA.
LAG FIELD, LLC
Idaho ' •-:ted Liability Company
By:
Peter Harris,Manager
For the CITY OF EAGLE
By: Iii >_d
N- CY ME' " L15,-
Ma, or of Ci of Eagle
Attest:
SHARsN$ERGMAN . oR0► � •
City Clerk G 44 T •
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PAGE 4 of 4
•
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rant vuurnl T rttsunutn J. uxvw NA MMI/ APr1UUNT .UU 4
BOISE IDAHO 64108/08 01:07
DEPUTY PaHi Thompson
RECORDED-REQUEST OF
City of Eagle 108040318
FIRST AMENDMENT TO
MEMORANDUM OF AGREEMENT
'tom' THIS FIRST AMENDMENT TO MEMORANDUM OF AGREEMENT is made the
day of- ` , 2008 ("Amendment"), by and between the City of Eagle ("City"), an Idaho
municipal corporation located in Ada County, Idaho, and Eaglefield, LLC, ("Eaglefield") an
Idaho limited liability company, collectively referred to here as ("Applicant" or "Eaglefield");
the Applicant and the City may be referred to herein as the "parties" or a"party", as the case may
be.
RECITALS
A. Applicant and the City negotiated and executed a Development Agreement dated March
27, 2006, recorded as Instrument No. 106057136 in Ada County, Idaho, which
incorporated the September 13, 2005, Memorandum of Agreement as Exhibit F as part
thereof;
B. The parties desire to amend the Memorandum of Agreement to accommodate the signing
and filing of a final plat(s) based on water rights rentals duly issued to the City through
the Idaho Water Bank which is administered by the Idaho Department of Water
Resources until such time as the water right licenses required by the Memorandum of
Agreement are completed as set forth in the Memorandum of Agreement; and
C. Any reference to EAGLEFIELD as set forth in the Memorandum of Agreement dated
September 13, 2005, and in this Amendment, includes and implies any heirs, successors
in interest, agents, employees and assigns thereof.
AGREEMENT
NOW THEREFORE, for valuable consideration, which the parties hereby acknowledge
and agree has been provided, the parties agree as follows:
Section 1. Amendment to Paragraph 5 of the Memorandum of Agreement. Paragraph 5 is
amended as follows:
EAGLEFIELD understands and agrees that licensing of the municipal water right and transfer of
the municipal wells and necessary easements as set forth above are an absolute condition for
approval of the final plat of the Eaglefield Estates Subdivision, which is that real property subject
to the Development Agreement dated March 27, 2006, recorded as Instrument No. 106057136,
Ada County Recorder's Office, and any amendments thereto, and the CITY Clerk will not sign
any final plat until the water right is licensed and wells are completed, all necessary interests
conveyed to the CITY, the water right and the wells are ready and able to deliver water to the
Subdivision, and all costs and expenses owed pursuant to Ordinance 479 have been paid to the
CITY and others. EAGLEFIELD further understands and agrees that the above described water
right and municipal wells, as approved by the CITY, the Idaho Department of Water Resources
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and the Department of Environmental Quality, shall be the means by which Eaglefield Estates
Subdivision is supplied potable water; provided, however, the CITY Clerk may sign a final
plat(s) under terms and conditions acceptable to the CITY, in its sole discretion, which provide
for the use of water rights leased by the Applicant to the Idaho Water Bank for use by the City as
a temporary measure to provide potable water to the real property subject to the March 27, 2006,
Development Agreement and any amendments thereto. However, no obligation of
EAGLEFIELD under the Memorandum of Agreement or this Amendment may be or is waived,
minimized or terminated in any manner by the use of said water rights leases for a temporary
water supply. Further, conveyance of the municipal wells and necessary easements, and payment
of all funds, as set forth in this MOA remain absolute conditions precedent to the CITY Clerk
signing any fmal plat. The terms and acceptability of any lease and use of the leased water rights
shall be in such amounts and under such terms and conditions as may be determined by the CITY in the CITY'S sole and absolute discretion. EAGLEFIELD is obligated to pay all fees
associated with the leased water rights received through the Idaho Water Bank.
Section 2: New Paragraphs to be Added to the Memorandum of Agreement:
9. Subject to the City's alternatives and conditions set forth in paragraph 5, the City may
also, at its sole discretion, approve alternative methods of complying with this Agreement as a
temporary measure to provide potable water to the real property in order to allow the City Clerk
to sign the fmal plat(s).
10. Applicant waives any claims it may have or which may arise in the future against the
City regarding this Agreement. Applicant further agrees to hold the City harmless from any and
all claims that may be brought or prosecuted against the City by any third-party or subsequent
owner(s) of lots in the final plat or plats signed by the City Clerk.
11. Any individual or officer signing this Agreement represents that he or she is properly
acting as an agent of any named organization and is vested with all necessary authority to
execute this Agreement on behalf of the named organization and to bind said organization, heirs,
agents, employees, successors in interest, and assigns to it terms. Reference to EAGLEFIELD
includes and shall bind any heirs, successors in interest, agents, employees, and assigns which
have been or shall be included in the development of the real property subject to the March 27,
2006 Development Agreement and its amendments, and the September 13, 2005 Memorandum
of Agreement and its amendments. This amendment to the September 13, 2005 Memorandum of
Agreement is hereby made part of the March 27, 2006 Development Agreement as referenced in
that document.
12. Any dispute, difference, claim or disagreement arising under or with respect to this
Agreement, including the meaning or construction thereof, shall be referred to a three (3)-
member arbiter panel selected in accordance with the rules of the American Arbitration
Association ("AAA"). Such dispute, difference, claim or disagreement shall be settled by
arbitration in accordance with the then prevailing commercial rules of the AAA, and judgment
upon award rendered by the panel may be entered in the Fourth Judicial District of the State of
Idaho. .
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13. Except as provided herein, this Amendment shall not be construed to constitute a waiver
of any rights or claims of the parties, including any subrogated claims.
14. This Agreement or any section thereof shall not be construed against any party due to the
fact that said Agreement or any section thereof was drafted by said party.
Section 3. Full Force and Effect. Except as modified herein, all terms and conditions of the
Memorandum of Agreement shall remain in full force and effect. In the event of any conflict
between the Memorandum of Agreement and this Amendment, the language of the
Memorandum of Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above
written.
CITY OF EAGLE
_____":„_4,.,</..„ :4,„ ..____,„
1 . .
Phil Bandy,
MAYOR '/
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: Sharon K. Bergmann o � �
CITY CLERK "" ,••;ORPOOL•• t.4o
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STATE OF IDAHO isrrra&ttt+�'
: ss.
County of Ada )
On this day of 1A,.FC: , 2008, before the undersigned notary p ublic in and
for the said state, personally appeared PHIL BANDY, known or identified to me to be the Mayor
of the City of Eagle and the person who executed the foregoing instrument on behalf of said City
and acknowledged to me that said City executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first
above written.
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EAGLEFJELD, LLC
•An Idal o/L mited Liability Company
By:
Peter Harris, Manager
STATE OF IDAHO )
: ss.
County of Ada )
On this 3 '-day of { , 2008, before the undersigned notary public in and
for the said state, personally appeared PETER HARRIS, MANAGER, EAGLEFIELD,LLC,
known or identified to me to be the owner of the property referenced herein and the person who
executed the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first
above written.
001•111•••„4 „..(1/
e"1" o :iy Public for Idaho
Residing at:
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EXHIBIT "E"
Affidavit of Thomas Coleman on behalf of The Preserve,LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
) ss.
County of Ada )
THOMAS COLEMAN,who being first duly sworn under oath,deposes and says:
1. I am Thomas Coleman, who is the Executive Vice President of The Preserve, LLC,
whose mailing address is 1859 South Topaz Way, Suite 200, Meridian, ID, 83642 ("The Preserve
LLC").
2. The Preserve, LLC, is the fee simple owner of the parcel of real property described on
Exhibit 1,attached hereto(the"Property").
3. The Preserve, LLC, authorizes the submission of the Property to certain Development
Agreement pursuant to the provisions set forth in Idaho Code Section 67-651 IA and Eagle City Code
Section 8-10-1 dated the day of , 2012 by and between the City of Eagle, a municipal
corporation in the State of Idaho, and Thomas Coleman, The Preserve,LLC(the"Agreement").
•DATED this 1r day of ,2012.
The Preserve,LLC,an Idaho limited liability company
By: Coleman
`Homes LLC,Manager\-IVK... ._
Thomas Coleman,Executive Vice President
SUBSCRIBED AND SWORN to before me this d day of viAlikift ,2012.
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