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DEVELOPMENT AGREEMENT BETWEEN WINDFALL HILLS L.L.C. AND CITY OF MOSCOW, IDAHO FOR WINDI<'ALL HILLS SUBDIVISION THIS DEVELOPMENT AGREEMENT BETWEEN WINDFALL HILLS L.L.C., AND CITY OF MOSCOW, IDAHa FOR WINDF LL HILLS SUBDIVISION (hereinafter "Agreement") is entered into this ! day of , , 2008, by and between WINDFALL HILLS L.L.C., at 213 South Main Stree , Moscow, Idaho, 83843, being the Developer of real property as described herein (hereinafter "DEVELOPER"), and the City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"); W I T N E S S E T H: WHEREAS, DEVELOPER understands and agrees herein to meet all the conditions contained within the Memorandum of Understanding between City of Moscow, Idaho, Michael Hoffman, DEVELOPER, Windfall Hills Subdivision, which has been entered into by DEVELOPER; WHEREAS, DEVELOPER desires to develop property to be known as Windfall Hills Subdivision in the CITY of Moscow, Latah County, Idaho; and WHEREAS, DEVELOPER understands that improvements required herein are standards required pursuant to Moscow City Code Title 5, Chapter I and are authorized by Idaho Code Section 67-6513 and Section 67-6518; and WHEREAS, DEVELOPER and CITY believe that, without the public improvements required herein, CITY would not be able to otherwise provide for mitigation of the effects of the subdivision development on the ability of CITY to deliver services without compromising quality of such service delivery to current CITY residents, or without imposing substantial additional costs upon current CITY residents to accommodate the proposed subdivision; and WHEREAS, CITY desires to ensure that public improvements consisting of water mains, fire hydrants, water services, sanitary sewer mains and stubs, storm sewer mains and stubs, storm water detention facilities, street lighting, franchise utilities, erosion control, streets, paving, curbs. traffic control devices, and sidewalks and pedestrian path are constructed; and WHEREAS, DEVELOPER understands that a waiver of public improvements is available pursuant to the Moscow City Code, hut DEVELOPER specifically does not wish to request such a waiver and wishes to enter into this Agreement; and WJNI'll'i\!J_ HI! .IS St:HlliV!SION DLVf:l_OI':V1L!\T AnRn-JvJ!-_!\-1 ---PAGE BREAK--- WHEREAS, DEVELOPER enters into this Development Agreement of DEVELOPER's own free will and accord, without coercion and without inducement and at DEVELOPER's request; and WHEREAS, DEVELOPER has read this Agreement, has understood it, and has had the opportunity to avail itself of legal and other counsel prior to entering into this Agreement and prior to signing it; NOW, THEREFORE, DEVELOPER and CITY hereby agree as follows: L PROPERTY AFFECTED: This Agreement affects property to be known as Windfall Hills subdivision within the CITY of Moscow, Latah County, Idaho, more particularly described as follows: A parcel of land located in the SW 1/4 of Section 9, T39N, R5W, RM, and being more particularly described as follows: Beginning at the Southwest Corner of said Section 9; thence along the westerly line of said Section 9, N 0°16'55" E, 793,64 feet, to the TRUE POINT OF BEGINNING: Thence continuing along said westerly line, N 0°16' 55" E, 456,89 feet; Thence departing said westerly line, N 67°28' 12" E, 179,00 feet; Thence S 89°45' 15" E, 744,93 feet, along the southerly line of W,M, Dahmen's Replat of Lot 14 & Parts of Lots 10, I I , 12, 13 & 15 of Shield's Five Acre Tract Addition To The City Of Moscow, Idaho; Thence along the southerly line of Skyview Estates Addition to the City of Moscow, ID, S 89" II' 47" E, 635,94 feet, to the southeast corner of said Skyview Estates; Thence S 89°31 '07" E, 588,11 feet; Thence N 0°03' 14" W, !56,94 feet, to the Southwest corner of Lot 5, Block 2 of Moser Estates Third Addition to the City of Moscow, Idaho; Thence along the southerly line of said Moser Estates Third Addition, S 89°32'39" E, 508,57 feet, to the southeast corner of said Moser Estates Third Addition; Thence S 0°48'25" W, !57,!6 feet, to the Center-South l/!6 (CS l/!6) Corner; Thence along the easterly line of said SW 114 of Section 9, S 0"20'01" W, 329,48 feet; Thence N 89°33'23" W, 970,20 feet; Thence N 49°03'30" W, 59,13 feet; Thence S 64"56'31" W, 89,!8 feet; Thence N 89°33'23" W, 973,45 feet, along the northerly line of the Rolling Hills Addition No, 6 To The City Of Moscow, Idaho, to the northwest corner of said Rolling Hills Addition No, 6; Thence S 46°04' 46" W, 5332 feet, along the northwesterly line of said Rolling Hills Addition No, 6; Thence departing said northwesterly line, N 48°09'15" W, 146,58 feet; Thence S 41''50'45" W, 2!0,74 feet; Thence 240,93 feet along a curve to the right, Delta= 48°26' Radius= 285,00 W!NDI'.'\IJ, 1-l!IL\ St'BD!VJSJ(l'4i)LVU_()f'\H:NT AGRELI\.-JENT PN;E2or9 ---PAGE BREAK--- feet, Chord= 233.82 feet, and a Chord Bearing= S 66°03'50" W; Thence N 89"43'05" W, 69.81 feet, to the TRUE POINT OF BEGINNING. Parcel contains 22.90 acres, more or less. II. PUBLIC IMPROVEMENTS: DEVELOPER agrees to install, at DEVELOPER's expense, public improvements and appurtenances required by Moscow City Code Sections 5-l-4 and 5-1-5 including, but not limited to, water mains, fire hydrants, water services, sanitary sewer mains and stubs, storm sewer mains and stubs, storm water detention facilities, street lighting, franchise utilities, erosion control, streets, paving, curbs, traffic control devices (to include stop ,;igns, street signs, etc.), sidewalks, and pedestrian paths; all in accordance with CITY Standards duly adopted by Resolution of the City Council and in accordance with approved engineering plans. IlL TERM: This Agreement shall remain in full force and effect in accordance with all of its terms and conditions as follows: A. Until all public improvements have been completed and accepted by CITY; and B. Until the warranty period for public improvements has expired; and C. Until all development fees, as required and assessed by CITY, have been paid in full. IV. CITY'S COVENANT: CITY shall issue building permits to DEVELOPER's property only after the following has occurred: A. Payment of all applicable developmental fees required and assessed by CITY; and B. CITY has determined that the construction of all required public improvements is complete or after adequate security, as described in Moscow City Code Sections 5- l-10 and as described in Sections VI, VII and VIII herein, has been provided to ensure construction and warranty repairs of the required public improvements; and C. Compliance with applicable CITY permit issuance requirements. ---PAGE BREAK--- V. DEVELOPER's COVENANT: 523845 A. DEVELOPER agrees to construct, at DEVELOPER's expense, the public improvements described in Section II of this Agreement, all in accordance with CITY approved engineering design plans, to CITY standards, during and under the terms of this Agreement; and B. DEVELOPER agrees to furnish to CITY, at DEVELOPER's expense, engineering design plans (for the required public improvements) prepared by an Idaho Licensed Professional Engineer. Such plans shall be approved by the Moscow CITY Engineer prior to beginning any public improvements construction. C. DEVELOPER agrees that DEVELOPER shall construct the public improvements described in Section II of this Agreement, within nine months from the date of the issuance of the first building permit in the development; and D. DEVELOPER agrees that DEVELOPER shall abide by each and every condition and requirement contained within the Memorandum of Understanding between City of Moscow, Idaho, and Michael Hoffman, DEVELOPER, Windfall Hills Subdivision. which has been entered into between DEVELOPER and CITY and which has been approved by City Council; and E. If DEVELOPER fails to complete installation of the required public improvements within nine months from the date of the issuance of the first building permit, to CITY standards and as per the approved plans, CITY shall revoke occupancy of the entire development and shall revoke any applicable permit issued to DEVELOPER by CITY. VI. SECURITY FOR IMPROVEMENTS: In lieu of DEVELOPER's construction and installation of all public improvements required herein and CITY'S acceptance of such for ownership and maintenance, CITY agrees that, upon receipt of the adequate security described in Moscow City Code Section 5-1-10, it will issue building permits (upon payment of all CITY development fees and satisfaction of Moscow City Code requirements) for DEVELOPER's development. If DEVELOPER fails to complete installation of the public improvements as required by CITY within nine months from the date of the issuance of the first building permit in the development, CITY may attach the security and cause the improvements to be made or CITY may cause improvements to be made and attach a lien on the property in the amount of CITY expense incurred as a result of DEVELOPER's failure to comply with this Agreement. Any engineering or construction costs in excess of the security shall be borne by DEVELOPER. Any additional construction services shall be performed subject to the laws of the State of Idaho relative to public works contracting and bidding. .I_S SL'Bl)!\'lS!ON I )f-.V!:!lH'MI'Xf PAOL 4 or 9 ---PAGE BREAK--- VII. FORM OF SECURITY: 523845 DEVELOPER agrees to provide security for the public improvements in the amount to be determined by the CITY Engineer. This security shall be in the form of cash, construction bond, irrevocable letter of credit from a certified bank or financial institution, or such other form of security acceptable to CITY. Such security shall be provided to CITY prior to the issuance of building permits by CITY. The security must be effective for a minimum period of one year from the date of the issuance of the first building permit in the development. If this security is in the form of an irrevocable letter of credit or bond, the secured improvements shall be constructed at least ninety (90) days prior to the expiration date of the security. If the public improvements identified and described in Section II are not completed within nine months from the issuance of the first building permit in the development, CITY may claim the security and complete the said improvements. The amount of the security may, from time to time, be modified as deemed appropriate by the CITY Engineer as conditions warrant. If for any reason the security for such improvements shall be withdrawn by DEVELOPER or the security or financial institution, or the value or terms thereof shall be compromised in any way, CITY shall immediately cease issuing building permits and shall revoke any building permits and/or occupancy permits issued pursuant to the terms contained herein, and further, DEVELOPER shall hold CITY harmless for any and all causes of action or damages alleged to have been sustained because of the revocation of such building permits. If any building permits and/or occupancy permits are revoked pursuant to this Section, such building permits and/or occupancy permits shall be re-issued upon receipt by CITY of new or additional security as required herein. VIII. WARRANTY A. All required public improvements once constructed and accepted by CITY for ownership and maintenance shall remain free of defects in materials and workmanship for a period of one year following the date of CITY's written acceptance of such required public improvements warranty period). B. DEVELOPER shall be responsible for correcting any and all deficiencies which occur within the one ( l) year warranty period. C. Prior to issuance of any building permit in the development, a warranty Security or performance bond in the amount of fifteen percent ( 15%) of the estimated value of the required public improvements, as determined by the CITY Engineer, shall be furnished to CITY by the DEVELOPER. This warranty Security shall be held by the CITY, or name the CITY as a holder of the warranty or as the beneficiary of the bond, and shall be in effect for a minimum period of one year from the date of CITY's written acceptance of the public improvements described in Section II of this Agreement. W!NIJL'\L!. SUBDIVISION DLVF!DP!vlf_:'\-1 AtH-I.ELMI·.!'·tl PNiL 5 01-9 ---PAGE BREAK--- D. If DEVELOPER fails to correct all deficiencies within a reasonable amount of time, CITY may claim the warranty Security and correct the deficiencies. E. The warranty Security may be in any form allowed under Section VII of this Agreement. IX. PARKLAND DEDICATION: Prior to construction of the subdivision, DEVELOPER agrees to voluntarily dedicate as parkland for the Windfall Hills subdivision to the CITY of Moscow, Idaho as shown on the plat attached as Exhibit two parcels totaling approximately 0.86 acres, appearing on the attached plat as Tract and Tract In addition, DEVELOPER agrees to provide a payment in lieu of parkland dedication of Three Thousand Two Hundred Forty Dollars (S3,240). Said parkland dedication and payment shall satisfy all parkland dedication required in Moscow CITY Code Section 5-J-5(F) for the Windfall Hills subdivision. X. STREET TREES: DEVELOPER agrees to voluntarily contribute to CITY Fifteen Thousand Nine Hundred Dollars ($15,900) to be placed in a street tree fund to be distributed to Jot owners in the Windfall Hills subdivision for the purchase of street trees in such Subdivision. The street tree fund amount for this subdivision (as calculated by CITY pursuant to Resolution No. 2000-02) shall be provided to the homeowner of subdivision lot or Jots for the purchase of street trees to be planted in said subdivision Jot or lots, in accordance with current CITY of Moscow Standard Specifications and Drawings. Payment of the street tree fund amount shall be received by CITY prior to issuance of any building permits in the subdivision. XL PHASING ALLOWED: Pursuant to the approval of the Moscow CITY Council, DEVELOPER may develop the real property described herein in three Phases. No building permit shall be issued for any phase of this subdivision development until after all public improvements related to each preceding phase of this development are completed, installed, and accepted by CITY in accordance with this Agreement. The paved pedestrian path generally along the east side of Mountain View Road within the Subdivision shall be constructed in Phase 1 of the subdivision development. The above ground improvements for the extension of Janson Street from the north border of the Windfall Hills subdivision to the intersection of Damon Street with the existing Janson Street shall he constructed in Phase 2 of the subdivision development. W!NDI-AL!Î H!!.l>i Sl!HD!V!S!ON !)LVIJDP\--JENT AGR!-.f:MIX! PAnL 6 or 9 ---PAGE BREAK--- All proposed phasing of this subdivision development has been submitted and approved of prior to the execution of this Agreement as shown on Exhibit and shall not be modified unless agreed in writing and specifically approved of by CITY Council. Separate construction plans and specifications shall be prepared and shall be submitted for each Phase in this subdivision. XII. AS-CONSTRUCTED DRAWINGS: DEVELOPER agrees to furnish, prior to acceptance by CITY of the public improvements as required herein, one set of complete, Mylar, final as-constructed drawings for the public improvements described herein, unless such requirement is waived by the CITY Engineer. Xlll. FAILURE TO COMPLY: DEVELOPER agrees to pay all expenses incurred by CITY in enforcing this Agreement. XIV. BINDING ON HEIRS. ASSIGNS AND PURCHASER: This Agreement shall be binding upon the heirs, assignees of the parties, and subsequent purchasers of and/or within the propeny described herein. XV. OCCUPANCY: DEVELOPER agrees that no person shall be allowed to occupy any pan of the development for any purpose until the described public improvements are completed and accepted by CITY for maintenance or as otherwise provided for by a subsequent development agreement between the panics. XVI. VENUE AND ATTORNEY FEES: The pmties agree that, should any provision of this Agreement be litigated in the future, venue for such litigation shall be with the District Court of the Second Judicial District of the State of Idaho in and for the County of Latah. XVII. MODIFICATION: DEVELOPER and CITY agree that the provisions of this Agreement may be modified only upon request of DEVELOPER accompanied by a complete set of development plans, and acceptance of such modification by the Moscow CITY Council or by a subsequent development agreement between the parties. XVJII. COVENANTS TO RUN WITH LAND: \V!NDh\LL HILLS SLBD!VISJON I)LVI- !.OPMENT AURLUvHN! ---PAGE BREAK--- This Agreement shall run with the land affected hereby, as shall all covenants contained berein, and shall be to tbe benefit of CITY, its successors and assigns. This Agreement shall be recorded with the Latah County Recorder. XIX. NOTICES: Any notice required or called for by this Agreement shall be deemed served upon the party to whom it is sent when delivered by certified or registered United States mail to the following addressed: DEVELOPER: Windfall Hills, LLC 213 S. Main Street Moscow, ID 83843 Attn: Michael J. Hoffman Phone: (208) 882-7788 CITY: Nancy Chaney, Mayor City of Moscow P 0 Box 9203 Moscow, ID 83843 Phone: (208) 883-7000 Facsimile: (208) 883-7018 XX. UNDERSTANDING: DEVELOPER has read and understood this Agreement and the contents thereof and has had the opportunity to avail itself of legal and of other counsel before entering into this Agreement and before signing it, and hereby enters into it voluntarily, willingly, and without inducement. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective the date first above written. DEVELOPERS: CITY Windfall Hills, LLC. City of Moscow, Idaho Michael Hoffman, Managing Member WINDFALl_ HILL'> SUBDIVISION J)EVUDP\1EN"l A(JRU-A1Lr'-r! P NiL R OF 9 ---PAGE BREAK--- STATE OFIDAHO ) ) ss: COUNTY OF LATAH ) On this J7't!J day of u tct= , 2008, before me, the undersigned, a Notary in and for said State, personally appear d Mtchael Hoflman, known to me to be the Manager oi WINDFALL HILLS L.L.C., the Idaho limited liability company whose name is subscribed person named above and acknowledged to me that he executed the foregoing document as the duly authorized representative for DEVELOPER and has the legal authority to bind DEVELOPER to the duties and obligations contained in this Agreement. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein above written. L NOTARY PUBLIC W Residing AJ/a :/.eft My Commission _ _ _ L HILLS SUBDIVISION !WVU.OPMFJ\T AUR!+MEN'J PNor9or9