Mou/Moa - 2007 - Memorandum RE Cash Deposit As Security For Performance - 9/19/2007MEMORANDUM OF AGREEMENT
RE CASH DEPOSIT AS SECURITY FOR PERFORMANCE
THIS MEMORANDUM OF AGREEMENT ("Memorandum") made and entered into
this _ day of September 2007, by and between the City of Eagle, a municipal corporation
("City") and P.O. Ventures, Inc., an Idaho corporation, ("Developer").
In mutual consideration of the covenants contained herein, the City and Developer agree
as follows:
1. Definitions. "Improvements" shall mean landscaping, drainage and irrigation,
and sprinkler facilities in the North Echohawk Way right-of-way or the common area located
east of North Echohawk Way and west of Highway 55, including drainage, piping, other
underground structures, the concrete stamped fence at the top of the berm located in the common
area, picnic benches and tables, funscape playground equipment, trees, shrubs, grass and other
landscaping improvements located in the common area and in the North Echohawk Way right-
of-way, and surface and subsurface drainage facilities located in the common area
"Remedial Work" shall mean the repair or removal of any Improvements,
including the repair of any failed drainage systems in the common area, the removal of dead or
damaged trees or shrubs, the replacement of such improvements, including the replanting of
trees, shrubs and other landscaping.
"Bank" shall mean Syringa Bank, the issuer of the Letter of Credit.
"Letter of Credit" shall mean Letter of Credit No. 300011 in favor of Syringa
Bank in the original amount of $592,898, and subsequently reduced to $127,218.61.
"Cash Deposit" shall mean Developer's deposit of Forty Thousand Dollars
($40,000.00) in the form of cash or other immediately available funds with the City, or in
such bank account as the City Clerk for the City may direct the Developer.
2. While the Developer has satisfactorily completed a majority of the Improvements
required as a component of Ringo Ridge Subdivision No. 2, and as identified in the Ringo Ridge
Subdivision Agreement dated December 13, 2005, as modified by that certain Agreement dated
June 27, 2006, for which Developer posted the Letter of Credit in the amount of $592,898, and
subsequently reduced to $127,218.61, some of the improvements remain unfinished. Therefore,
in addition to ensuring the Improvements are installed, constructed and maintained as required
by the City's existing approvals, the Developer also agrees to the following:
a. Complete construction of the sidewalk to the basketball court and play
area located on the common lot in Phase II no later than April 30, 2008;
MEMORANDUM RE CASH DEPOSIT AS SECURITY FOR PERFORMANCE -1
b. Replace dead and missing trees in Phase I as required on the City -
approved landscape plan to the City's satisfaction by November 1, 2007;
c. Repair the retaining wall located near the south end of and on the east side
of N. Echohawk Way so water does not leach through said wall by April 1, 2008.
d. Unless previously provided, provide engineering certification to the City
stating that all required drainage facilities in the Arbor Ridge Subdivision (aka Ringo Ridge
Subdivision) have been constructed in compliance with the approved plans and specifications by
April 1, 2008;
e. Complete the Place "grasscrete" paver driveway in the common area in
Phase II as set forth in the ACHD-approved plans by April 30, 2008;
f. Repair the south end of the berm near the ITD drainage facility to the
City's reasonable satisfaction by April 1, 2008;
g. Fine -grade, gravel, and maintain, in a weed -free and tidy manner the area
along State Highway 55 between the toe of the slope of the required berm to the edge of
pavement by April 1, 2008, provided the City obtains a permit from Idaho Transportation
Department for improvements within the right-of-way; and
h. Mitigate track out and restrict construction times (i.e., 8 a.m. to 6 p.m.) for
placement of the remaining fill in the north portion of the common area in Phase VI along N
Echohawk Way prior to undertaking such work.
3. To facilitate and ease the City's access to funds should any of the trees and shrubs
previously planted die or should any Improvements fail or not meet the specifications of the
City's approvals of the Arbor Ridge Subdivision (aka Ringo Ridge Subdivision), and in order to
facilitate Developer's access to other funds reserved by the Letter of Credit to complete any
remaining Improvements, the Letter of Credit previously provided to the City shall be
surrendered and released, and Developer shall make the Cash Deposit with the City.
Such Cash Deposit, or any portion of such Cash Deposit, may be accessed by the City at
any time between the effective date of this Memorandum and March 1, 2009, if upon twenty (20)
business days written notice to Developer, the City reasonably determines that any of the
Improvements have failed, died or otherwise do not meet the specifications of the City's
approvals of the Arbor Ridge Subdivision (aka Ringo Ridge Subdivision). In that event, City is
at liberty to hire, contract or employ any third -party to undertake the replanting or other remedial
work, and may use all or a portion of such Cash Deposit to do so. All Improvements the City, in
its reasonable discretion, determines require replacement shall be completed in a first class
condition and all trees replaced shall be "Full Canopy No. 1" trees.
4. Developer hereby grants the City, or any employee, contractor or third -party who
undertakes such remedial work, a license to go upon Developer's lands or lands owned by the
Arbor Ridge Homeowners Association, Inc.
MEMORANDUM RE CASH DEPOSIT AS SECURITY FOR PERFORMANCE - 2
5. Syringa Bank shall be released from the Letter of Credit when Developer deposits
the Cash Deposit for the benefit of the City, whereupon the City shall immediately notify
Syringa Bank in writing of such deposit, and which shall be accomplished by the Bank
delivering to the City its check in the amount of $40,000, and simultaneously retrieving the
original Letter of Credit.
6. The Cash Deposit and the continuing warranties under this Agreement shall
constitute satisfaction of the Developer's obligation of completing common area improvements
and, thus, there is no longer an impediment to the City's approval of the plat for Ringo Ridge
Subdivision No. 3, and the City shall sign the plat and release such lots for sale provided that
Developer agrees that this Memorandum does not waive the City's ability to enforce Eagle City
Code and the approved Findings of Fact and Conclusions of Law for the Arbor Ridge
Subdivision and subsequent design review and final plat approvals for all phases including Ringo
Ridge Subdivisions No. 3. Additionally, Developer shall be responsible for maintaining and
irrigating the common area until June 30, 2009 or upon transfer of the Common Area to the
Homeowner's Association, whichever occurs later.
7. Developer agrees to provide a copy of this Memorandum to any purchaser of any
lot in Ringo Ridge Subdivisions No. 3. The City may include a copy of this Memorandum with
any Building Permit issued for Ringo Ridge Subdivision No. 3.
8. The City and the Developer both acknowledge that they have been represented by
legal counsel and have negotiated this Memorandum. Neither party shall have been deemed to
have been the draftor of this Memorandum.
9. This Memorandum shall be binding upon and inure to the benefit of the heirs,
successors, agents, employees and assigns of the parties.
10. Any and all remedies provided for enforcement of the provisions of this
Memorandum are cumulative and not exclusive, and the prevailing party shall be entitled to
pursue either the rights enumerated in this Memorandum or remedies authorized by law, or both.
The prevailing party shall be entitled to any costs or expenses, including attomey fees, mediation
fees, arbitration fees, and related court costs, incurred by it in enforcing any terms of this
Memorandum, or in pursuing any legal action for the enforcement of the its rights.
11. This Memorandum shall be recorded and run with the land against the property
known and identified as Ringo Ridge Subdivision No. 3.
IN WITNESS WHEREOF, the undersigned have executed this Memorandum as of the
date first above written.
P.O. VENTURES, INC. THE CITY OF EAGLE,
an Idaho corporation a municipal corporation
By
Bruce Patterson Nancy C. Merrill
Its: President Its: Mayor
MEMORANDUM RE CASH DEPOSIT AS SECURITY FOR PERFORMANCE - 3
ATTEST:
Sharon K. Bergmann
Its: City Clerk
STATE OF IDAHO )
)ss.
County of Ada )
On this ) G day of , 2007, before me, a Notary Public in and for said
state, personally appeared Bruce Patterson, known or identified to me, to be the person whose
name is subscribed to the within instrument, and acknowledged to me that he executed the same.
„SI4134 RIBED AND SWORN to before me this n day of. S1— v 2007.
,4.C,,,d7
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e
,s'• sPATB UQ •...
STATE OF IDAHO
)ss.
County of Ada
Notary Public for Idaho
Residing at (.irNomnc� h
Commission Expires ' (o •ZU-OP
On this day of . 2007, before me, a Notary Public in and for said
state, personally appeared Nancy C. Merrill, known or identified to me, to be the person whose
name is subscribed to the within instrument, and acknowledged to me that she executed the
same.
SUBSCRIBED AND SWORN to before me this day of . 2007.
Notary Public for Idaho
Residing at
Commission Expires
MEMORANDUM RE CASH DEPOSIT AS SECURITY FOR PERFORMANCE - 4