Development Agreement - 2018 - Brookway Subdivision - 6/7/2018Recording Requested By and
When Recorded Return to:
City of Eagle
660 E. Civic Lane
P.O. Box 1520
Eagle, Idaho 83616
ADA COUNTY RECORDER Christopher D. Rich 2018-055093
BOISE IDAHO Pgs=28 BONNIE OBERBILLIG 06/15/2018 08:17 AM
EAGLE CITY NO FEE
1111111 111 IIII60II0I80I01501913102'28I4 I II Il III 1 111
DEVELOPMENT AGREEMENT
For Recording Purposes Do
Not Write Above This Line
This Development Agreement, made and entered into on the date as indicated herein, by and
between the City of Eagle, a municipal corporation in the State of Idaho ("Eagle"), by and through its
Mayor, and RWK Investments, LLC, Heartland Townhomes Property Management, LLC, and Kittyhawk
Investments, LLC ("Owner").
WHEREAS, the Owner are the owner(s) of record of certain real estate located on the west side of
North Lanewood Lane, approximately one half (1/2) mile north of the intersection of North Lanewood
Lane and West Floating Feather Road, Eagle, Idaho, ("Property"), as specifically defined in the attached
legal description (Exhibit A) which is the subject of an application for Rezone identified as Rezone
Application No. RZ-05-17; and
WHEREAS, the proposed development includes properties within an area currently zoned RUT
(Rural -Urban Transitional — Ada County designation); and
WHEREAS, the Owner desires a R -2 -DA -P (Residential with a development agreement — PUD)
zoning classification to develop a residential subdivision on the above described property, which is herein
referred to as the "Property"; and
WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have determined
that the scope of any residential project upon the Property must be limited with the use of a development
agreement to prevent undue damage to, and to otherwise be in harmony with, the existing community; and
WHEREAS, the intent of this Development Agreement is to protect the rights of Owner's use and
enjoyment of the Property while at the same time limiting any adverse impacts of the development upon
neighboring properties and the existing community and ensuring the Property is developed in a manner
consistent with Eagle's Comprehensive Plan and City Code; and
WHEREAS, the Owner has agreed to the use restrictions and other limitations set forth herein upon
the use and development of the Property and has consented to a R -2 -DA -P (Residential with a development
agreement — PUD) 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 B 1-3) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by
same; and
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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 a R -2 -DA -P (Residential with a development agreement — PUD) zoning
classification after recordation of, and subject to the provisions of this Development Agreement. The
ordinance will become effective after its passage, approval, and publication and the execution and
recordation of this Development Agreement.
ARTICLE III
CONDITIONS ON DEVELOPMENT
3.1 The maximum density for the Property shall be 1.71 -dwelling units per acre (105 -single-family
residential lots).
3.2 Owner will develop the Property subject to the conditions and limitations set forth in this
Development Agreement. Further, Owner will submit applications regarding design review,
preliminary and final plat reviews, and/or 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.
3.3 The Concept Plan (Exhibit C) represents the Owner's current concept for completion of the
project. As the Concept Plan evolves, the City understands and agrees that certain changes in that
concept may occur. If the City determines that any such changes require additional public
comment due to potential impacts on surrounding property or the community, a public hearing
shall be held on any proposed changes in the Concept Plan, notice shall be provided as may be
required by the City.
3.4 The conditions, covenants and restrictions for the Property shall contain at least the following:
(a) An allocation of responsibility for repair and maintenance of all community and privately
owned landscaping, pressurized irrigation facilities, and amenities. The owner shall provide an
operation and maintenance manual including the funding mechanism as an addendum to the
CC&Rs and the repair and maintenance requirement shall run with the land and that the
requirement cannot be modified ant that the homeowners association or other entity cannot be
dissolved without the express consent of the city.
(b) A requirement for all fencing located adjacent to open space and corner lots to be open -style
such as wrought iron, extruded aluminum (looks identical to wrought iron), or three -rail -type
wooden decorative fencing. All other fencing (ie. dog-eared cedar fencing, vinyl, chainlink)
shall be prohibited.
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(c) A requirement that in the event any of the CC&Rs are less restrictive than any government
rules, regulations or ordinances, then the more restrictive government rule, regulation or
ordinances shall apply. The CC&Rs are subject to all rules, regulations, laws and ordinances
of all applicable government bodies. In the event a governmental rule, regulation, law or
ordinance would render a part of the CC&Rs unlawful, then in such event that portion shall be
deemed to be amended to comply with the applicable rule, regulation, law or ordinance.
3.5 The single-family dwellings shall be constructed in substantial conformance to the styles of
architecture as shown in Exhibit "D".
To assure compliance with this condition, the applicant shall create an architectural control
committee (ACC) as a component of the development's 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 attorney 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 Architectural Control
Committee. Building permit applications that do not have an approval letter attached will not be
accepted.
To assure compliance with the conditions of approval herein, the City reserves the right to deny, at
its discretion, any building permit application that does not substantially conform to the design
requirements as shown on Exhibit "D". If a building permit is denied, the applicant shall have the
right to appeal the decision to the Eagle City Council in accordance with Eagle City Code Section
8-7-4-1.
3.6 A letter of approval shall be provided to the City from the Eagle Sewer District indicating that the
property has been annexed into the Eagle Sewer District's service boundaries prior to the submittal
of a final plat application. Owner shall comply with all applicable Eagle Sewer District's
regulations and conditions prior to the submittal of a final plat application. Prior to issuance of any
building permits, Owner shall provide proof of central sewer service to the proposed residential
use.
3.7 Owner shall provide a sport court and tot lot located within the common lots within the
development. The intent of the sports court and tot lot is to provide a venue for activities for the
residents of the development. The design and location shall be reviewed and approved by the
Eagle Design Review Board prior to submittal of a final plat application.
3.8 Owner shall submit a design review application showing at a minimum: 1) proposed development
signage, 2) planting details within the proposed and required landscape islands and all common
areas throughout the development, 3) elevation plans for all proposed common area structures and
irrigation pump house (if proposed), 4) landscape screening details of the irrigation pump house (if
proposed), 5) useable amenities such as picnic tables, covered shelters, benches, playground
equipment, gazebos, and/or similar amenities, 6) all proposed fencing throughout the development,
and 7) street lights. The design review application shall be reviewed and approved by the Eagle
Design Review Board prior to the submittal of a final plat application.
3.9 Upon review, approval, and completion of the Ada County Development Services One Time
Division application (201800014 OTD), the applicant shall provide a copy of the final approval
letter from Ada County, recorded record of survey, and warranty deed, to the city prior to the city
adopting an annexation and rezone ordinance.
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ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of the owner(s) of the Property is attached hereto and incorporated by reference herein agrees
to subject the Property to this Development Agreement (Exhibit B 1-3) and be bound thereby, and comply
with and be bound by the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code
Section 8-10-1 shall be provided and is incorporated herein by reference.
ARTICLE V
DEFAULT
5.1 In the event the Owner fails to comply with the commitments set forth herein, within thirty (30) days of
written notice of such failure from Eagle, Eagle shall have the right, without prejudice to any other
rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements
contained in this Development Agreement or to terminate the Development Agreement following the
process established in Eagle City Code Section 8-10-1, and in accordance with the notice and hearing
provisions of Idaho Code Section 67-6509. In the event this Development Agreement is terminated
pursuant to this Article 5, use of the Property shall be limited to those uses allowed within an A -R
(Agricultural -Residential) zoning designation until Eagle enacts and records an ordinance changing the
property to the A -R (Agricultural -Residential) zoning designation.
5.2 If required to proceed in a court of law or equity to enforce any provision of this Development
Agreement, the prevailing party shall be entitled to recover all direct out-of-pocket costs so incurred to
cure or enjoin such default and to enforce the commitments contained in this Development Agreement,
including attorneys' fees and court costs.
ARTICLE VI
UNENFORCEABLE PROVISIONS
If any term, provision, commitment, or restriction of this Development Agreement or the application
thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder
of this Development Agreement shall nevertheless remain in full force and effect and that portion
determined to be invalid or unenforceable shall be re -negotiated in good faith between the Owner (or other
appropriate party) and Eagle.
ARTICLE VII
ASSIGNMENT AND TRANSFER
After its execution, the Development Agreement shall be recorded in the office of the County Recorder at
the expense of the Owner. Each commitment and restriction on the development shall be a burden on the
Property, shall be appurtenant to and for the benefit of the Property, adjacent property, and other
residential property near the Property and shall run with the land. This Development Agreement shall be
binding on Owner, and the Owners its respective heirs, administrators, executors, agents, legal
representatives, successors, and assigns; provided, however, that if all or any portion of the development is
sold, the sellers shall thereupon be released and discharged from any and all obligations in connection with
the property sold arising under this Agreement. The new owner of the Property or any portion thereof
(including, without limitation, any owner who acquires its interest by foreclosure, trustee's sale or
otherwise) shall be bound by and liable for all commitments and other obligations arising under this
Agreement with respect to the Property or portion thereof.
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ARTICLE VIII
GENERAL MATTERS
8.1 Amendments. Any alteration or change to this Development Agreement shall be made only after
complying with the notice and hearing provisions of Idaho Code Section 67-6509, as required by Eagle
City Code Section 8-10-1.
8.2 Paragraph Headings. This Development Agreement shall be construed according to its fair meaning
and as if prepared by both parties hereto. Titles and captions are for convenience only and shall not
constitute a portion of this Development Agreement. As used in this Development Agreement,
masculine, feminine or neuter gender and the singular or plural number shall each be deemed to
include the others wherever and whenever the context so dictates.
8.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the
State of Idaho in effect at the time of the execution of this Development Agreement. Any action
brought in connection with this Development Agreement shall be brought in a court of competent
jurisdiction located in Ada County, Idaho.
8.4 Legal Representation. Both the Owner and Eagle acknowledge that they each have been represented
by legal counsel in negotiating this Development Agreement and that neither party shall have been
deemed to have been the draftor of this Development Agreement.
8.5 Notices. Any notice which a party may desire to give to another party must be in writing and may be
given by personal delivery, by mailing the same by registered or certified mail, return receipt requested
postage prepaid, or by Federal Express or other reputable overnight delivery service, to the party to
whom the notice is directed at the address of such party set forth below;
Eagle: City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owners: RWK Investments, LLC
Attn: Bob Kelez
7847 South Pheasant Wood Drive
Sandy, Utah 84073
Heartland Townhomes Property Management, LLC
Attn: John A. Laude, Sr.
9839 West Cable Car Street, Suite 101
Boise, Idaho 83709
Kittyhawk Investments, LLC
Attn: Terry Hayden
779 East State Street
Eagle, Idaho 83616
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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8.6 Financial Assurance. In addition to the other remedies afforded Eagle herein, Owner agrees to provide
adequate financial assurance to Eagle, to secure the payment of any deferred balance of the attorney fees
and the engineering fees, together with interest accrued thereon. Eagle shall provide to the Owner an
estimate for the anticipated attorney fees and engineering fees associated with this Development Agreement.
The Owner shall provide a cash deposit, letter of credit or a bond in the amount of the estimated fees
associated with the work undertaken pursuant to the terms of this Development Agreement. Thereafter,
Eagle shall bill Owner for such fees, adjusting the estimates as appropriate. The Owner shall make
payments for such fees as incurred by Eagle and as invoiced to the Owner or, if Owner has made a cash
deposit with Eagle, Eagle may draw on the deposit to pay its invoice. If the financial assurance deposited by
Owner is in the form of a letter of credit, and if the Owner fails to make payment for such fees when actually
incurred by Eagle and invoiced, then following thirty (30) days of written notice of such failure from Eagle,
Eagle may draw upon the financial assurance provided by the Owner. Thereafter, if the then current
estimated fees still to be paid exceeds the amount of the then current balance of the financial assurance
(whether it be in the form of a cash deposit or a letter of credit),the Owner shall replenish the financial
assurance and shall become current as to all outstanding fees owed. Upon payment in full of all attorney fees
and engineering fees, Eagle shall release to the Owner the unused portion of the cash deposit or the letter of
credit, as applicable. Eagle's draw upon the financial assurance under this Section shall not preclude it from
exercising any of the other rights and remedies afforded it in Article V or in Section 8.7.
8.7 Default. In the event Owner fails to comply with the terms and conditions hereof in any material
respect, the City may, without further notice to Owner, exercise any or all of the following remedies.
A. Withhold the issuance of any building permit or certificate of occupancy of any structure located
within the Project;
B. Withhold the connection of water, sewer or electric service to any property located within the
Project;
C. Refuse to accept public ownership and maintenance of public improvements within the Project and
record a notice of such action with the Ada County Recorder's Office;
D. Issue a stop work order for any building under construction within the Project;
E. Withhold reimbursement of Project surety/financial guarantee of performance collected pursuant
to Section 9-4-2-2 of the City Code;
F. Bring an action for damages, injunctive relief, specific performance or any other remedy available
at law or in equity;
All of the above remedies are cumulative and to the extent not wholly inconsistent with each other,
may be enforced simultaneously or separately, at the sole discretion of the City.
8.8 Effective Date. This Development Agreement shall be effective upon the signing and execution of this
Development Agreement by both parties.
8.9 Authority to Enter Into Aereement: By the execution and delivery of this Development 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
Development Agreement and so bind their respective parties.
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IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATED this I day o.
0\.:AG4F
6�4 •�i
.0 R.
•i• •••�PTgtlKlw��i Q"
ATTEST: ••••• ,r44 Es%
O� s
Sharon K. Bergmann, City Cler
CITY OF EAGLE, a municipal corporation organized
and existing under the jos of thptate of Idaho
By:
Stan Ridgeway, Mayor
OWNERS:
RWK Investments, LLC
By:
Bob Kelez, M
Heartland Townhome
By:
John A Laude, Sr., Manag
roperty
Kittyhawk
By:
Terry Hayden,, Mtanaging tuber
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nagement LLC
STATE OF 1I HO )
ess.
County of-A&
On this dayof v l
, 2018, before the undersigned notary public in and for
the said state, pers nally appeared• OB KELEZ, known or identified to me to be the Manager of RWK
INVESTMENTS, LLC, owner(s) of the property referenced herein and the persons who executed the
foregoing instrument.
written.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
MICHELLE BOMBARD
Notary Pubfc State of Utah
My Commission Expires on:
January 29, 2019
Comm. Number: 681338
STATE OF IDAHO )
ss.
ito'.-1115,6020
Notary Publi for Idaho
Residing at:DAVIS'
My Commission Expires:
County of Ada )
On this 2 5 day of nil A , 2018, before the undersigned notary public in and for
the said state, personally appeared JOHN A. LAUDE, SR., known or identified to me to be the Manager of
HEARTLAND TOWNHOMES PROPERTY MANAGEMENT, LLC, owner(s) of the property referenced
herein and the persons who executed the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
Notary Public for Idaho
Residing at: E 0 4,t
My Commission Expires: r3 / 6
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INDEX OF EXHIBITS
A - Legal Description
B 1-3 - Affidavit(s) of Owner
C - Concept Plan
D Residential Elevations
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STATE OF IDAHO )
: ss.
County of Ada )
,n
On this V day of fYl GLV , 2018, before the undersigned notary public in and for
the said state, personally appeared TRRY HAYDEN, known or identified to me to be the Managing
Member of KITTYHAWK INVESTMENTS, LLC, owner(s) of the property referenced herein and the
persons who executed the foregoing instrument.
written.
IN WITNESS WHEREOF, I have hereunto set m and seal the day and year first above
kAk.
i tart' Public • Id .
Residing at: �, G 1 U 1111 v
My Commission Expires: .3 -9-202-3
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(JIM EXHIBIT A
J•U•B ENGINEERS, INC.
'ANTES
Brookway Subdivision
Eagle Annexation
Boundary Description
Project Number 10-17-010 October 25, 2017
THE
LANGDON
GROUP
GATEWAY
MAPPING
INC.
A parcel of land situated in Government Lot 3 and the southeast quarter of the northwest quarter of
Section 2, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho, and being more
particularly described as follows:
Commencing at the northwest corner of Section 2, Township 4 North, Range 1 West, Boise Meridian;
Thence S89°13'56"E, 1321.72 feet along the north line of Government Lot 4 to the northwest corner of
Government Lot 3;
Thence S00°53'27"W, 834.77 feet along the west line of Government Lot 3 to the POINT OF BEGINNING:
Thence N72°53'11"E, 1257.97 feet to the west line of the north 500 feet of the east 125 feet of
Government Lot 3;
Thence S00°56'08"W, 51.49 feet along the west line of the north 500 feet of the east 125 feet of
Government Lot 3 to the southwest corner thereof;
Thence S89°13'56"E, 125.00 feet along the south line of the north 500 feet of the east 125 feet
of Government Lot 3 to east line of Government Lot 3;
Thence S00°56'08"W, 868.89 feet along the east line of Government Lot 3 to the northeast
corner of the southeast quarter of the northwest quarter;
Thence continuing S00°56'08"W, 1323.88 feet along the east line of the southeast quarter of the
northwest quarter the southeast corner thereof;
Thence N89°17'12"W, 1319.63 feet along the south line of the southeast quarter of the
northwest quarter to the southwest corner thereof;
Thence N00°53'27"E, 1324.82 feet along the west line of the southeast quarter of the northwest
quarter to the southwest corner of Government Lot 3;
Thence N00°53'27"E, 534.43 feet along the west line of Government Lot 3 to the POINT OF
BEGINNING.
The above-described parcel contains 62.60 acres, more or Tess.
Page 1 of 1
a 250 S. Beechwood Avenue, Suite 201, Boise, ID 83709 p 208-376-7330 f 208-323-9336 w www.iub.com
EXHIBIT "B1"
Affidavit of BOB KELEZ on behalf of RWK Investments, LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF UTAH
) ss.
County of Salt Lake
BOB KELEZ, who being first duly sworn under oath, deposes and says:
1. I am BOB KELEZ who is the Manager of RWK Investments, LLC., whose mailing
address is 7847 South Pheasant Wood Drive, Sandy, Utah 84073 ("RWK Investments, LLC").
2. RWK Investments LLC is a fee simple owner of a portion of the parcel of real property
described on Exhibit A, attached hereto (the "Property").
3. RWK Investments, LLC authorizes the submission of the Property to certain
Development Agreement dated the j 4 day of !'/t ■ , 2018 pursuant to the provisions set
forth in Idaho Code Section 67-6511A and Eagle City Coe Section 8-10-1, by and between the City of
Eagle, a municipal corporation in the State of Idaho, and Bob Kelez, RWK Investments, LLC (the
"Agreement").
DATED this ` - day of Ma \,) , 2018.
By: RWK Investments, LLC
By:
Bob Kelez, Manager
SUBSCRIBED AND SWORN to before me this 11- day of
rAA_ CEIU.d V70/701200-0
Notary Public for Utah
Residing at Da VI , Utah
PublicMy Commission expires 24. 2019
MICHELLE
ph ryELLE elate oB a
My Commission Expires on:
January 29, 2019
Comm. Number: 681338
2018.
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K:•.Planning Dept•Eagle Applications Preliminary Development Plans 2017Broolcway Sub da affidavit Kelez doe
EXHIBIT "B2"
Affidavit of JOHN A. LAUDE, SR. on behalf of Heartland Townhomes Property Management,
LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO
) ss.
County of Ada
JOHN A. LAUDE, SR., who being first duly sworn under oath, deposes and says:
1. 1 am JOHN A. LAUDE, SR. who is the Manager of Heartland Townhomes Property
Management, LLC., whose mailing address is 9839 West Cable Car Street, Suite 101, Boise, ID 83709
("Heartland Townhomes Property Management, LLC").
2. Heartland Townhomes Property Management, LLC is a fee simple owner of a portion of
the parcel of real property described on Exhibit A, attached hereto (the "Property").
3. Heartland Townhomes Property Management, LLC authorizes the submission of the
Property to certain Development Agreement dated the a5 day of / r , 2018 pursuant to
the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1, by and
between the City of Eagle, a municipal corporation in the State of Idaho, and John A. Laude, Sr.,
Heartland Townhomes Property Management, LLC (the "Agreement").
DATED this I rjr day of Mil 7 , 2018.
By: Heartland Tow
LLC
By:
John A. Laude,
bperty Management,
anager
SUBSCRIBED AND SWORN to before me this 15 day of IY) ay , 2018.
r3D i,1_
Notary Public for Idaho
Residing at B o 1 'it -Idaho
/My Commission expires �� a40 [q
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Fv Planning Dept Eagle Applications.Preliminary Development Plans .0 1 T Brookway Sub da affidavit Laude doc
RECEIVED & FILED
CITY OF EAGLE
MAY 1 7 2018
File:
Route to:
EXHIBIT "B3"
Affidavit of TERRY HAYDEN on behalf of Kittyhawk Investments, LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO
) ss.
County of Ada
TERRY HAYDEN, who being first duly sworn under oath, deposes and says:
1. I am TERRY HAYDEN who is the Managing Member of Kittyhawk Investments,
LLC., whose mailing address is 779 East State Street, Eagle, ID 83616 ("Kittyhawk Investments,
LLC").
2. Kittyhawk Investments, LLC is a fee simple owner of a portion of the parcel of real
property described on Exhibit A, attached hereto (the "Property").
3. Kittyhawk Investments, LLC autho ' es the submission of the Property to certain
Development Agreement dated the / f qday of Ma ,ii , 2018 pursuant to the provisions set
forth in Idaho Code Section 67-6511A and Eagle City Cofle Section 8-10-1, by and between the City of
Eagle, a municipal corporation in the State of Idaho, and Terry Hayden, Kittyhawk Investments, LLC (the
"Agreement").
DATED this day of
7
, 2018.
By: Kittyhawk Investments, LLC
By:
T
rry Ha de , ManagThg Member
SUBSCRIBED AND SWORN to before me this day of
NOTAR y tit
gab. 411.
•
41>N1.3118L1CAh
%, OF 19'
N tary Public for Ica. o
esiding at E L ' Idaho
My Commission expires `41-'driii
, 2018.
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