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HomeMy WebLinkAboutAgreement for Sewer and Water Service for Bittercreek Meadows Second AmendedADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 ~ BOISE IDAHO 06/15110 12:06 PM DEPUTY Vicki Allen RECORDED-REQUEST OF III IIIIIII'IIIIIIII~IIIIIIIIIIII I Meridian City 11 E10~5186 SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE THIS AGREEMENT is made and entered into this ~_ day of vrc. , 2010, by and between CITY OF MERIDIAN, a Municipal corporation of the State of Idaho, hereinafter referred to as "CITY", and JLJ ENTERPRISES INC. or assigns, as hereinafter defined, BITTERCREEK, LLC, or assigns, as hereinafter defined, and, the BITTERCREEK MEADOWS HOMEOWNERS ASSOCIATION, hereinafter referred to individually or collectively as "SEWER/WATER USER," Developer, or HOA. This is the second amended agreement between the parties. The prior agreements entered into October 4, 2005 (Agreement 1); and entered into May 16, 2008 (Agreement 2). THE PRIOR AGREEMENTS BETWEEN THE PARTIES ARE INCORPORATED BY REFERENCE AND ARE STILL IN FORCE UNLESS SUPERSEDED OR MODIFIED BY THIS AGREEMENT. RECITALS: 1.1 WHEREAS, "JLJ Enterprises Inc. and Bittercreek, LLC" are the developer of certain tract of land in the County of Ada, State of Idaho, more particularly described as the amended plat of BITTERCREEK MEADOWS SUBDIVISION, according to the official plat thereof recorded on the 27th day of June, 2006 in Book 95 of plats at pages 11732 through 11735, as instrument No. 106102994, hereinafter referred to as the "Property"; and 1.2 WHEREAS, CITY OF MERIDIAN, a Municipal corporation of the State of Idaho, hereinafter referred to as "CITY", and JLJ ENTERPRISES INC. or assigns, as hereinafter defined, BITTERCREEK, LLC, or assigns, as hereinafter defined, and, the BITTERCREEK MEADOWS HOMEOWNERS ASSOCIATION have previously engaged in Agreements to provide Sewer and Water Service to Bittercreek Meadows subdivision; and 1.3 WHEREAS the parties have engaged in two (prior) agreements (1) the original Memorandum of Understanding between JLJ Enterprises, Inc. and the Bittercreek Meadows HOA and the City of Meridian approved by the City of Meridian on or about October 4, 2005. This agreement is only represented for historical purposes. This agreement was superseded by Agreement 2 and (2) the Amended Bittercreek Meadows Agreement for Water and Sewer Service approved by the City of Meridian on or about May 16, 2008. 1.4 WHEREAS parties desire to agree to this Second Amended Agreement again to address the changed circumstances since Agreement 2; and 1.5 WHEREAS the parties wish to resolve any disputed claims between the parties without any finding of fault or blame attached; and 1.6 WHEREAS the parties wish to separate the two projects and allow the City to complete the sewer portion and for JLJ Enterprise Inc. to complete the water portion of SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- ~ the project independent of each other; and 2. DEFINITIONS: For all purposes of this agreement the following words, terms, and phrases herein contained in this section shall be defined and interpreted as herein provided for, unless the clear context of the presentation of the same requires otherwise: 2.1 "Agreement 1" means the original Memorandum of Understanding between JLJ Enterprises, Inc. and the Bittercreek Meadows HOA and the City of Meridian approved by the City of Meridian on or about October 4, 2005. This agreement is only represented for historical purposes. This agreement was superseded by Agreement 2. 2.2 "Agreement 2" means the Amended Bittercreek Meadows Agreement for Water and Sewer Service approved by the City of Meridian on or about May 16, 2008. This agreement superseded Agreement 1. 2.1 "City": means and refers to the City of Meridian, County of Ada, State of Idaho. 2.2 "Sewer/Water User": means and shall refer to JLJ Enterprises Inc, a, and/or the person who is the developer of the real property, the current HOA, and individual homeowners. 2.3 "Developer": means JLJ Enterprises, Inc. and Bittercreek, LLC or their successors or assigns. 2.4 "Real Property": means and shall refer to the 24 parcel(s) of real property located in the County of Ada, City of Meridian as described in the Amended Plat of Bittercreek Meadows Subdivision as recorded in the land records of Ada County, Idaho at Book 95, Pages 11732 and 11733 and by this reference incorporated herein. 2.5 "Ordinance": means and shall refer to the City's ordinances that appertain to the regulation and control and use of its Sewer/Water system presently at Meridian City Code § 9-4-26 and 9-1-16, and this definition specifically includes any prospective amendments and/or recodifications to said ordinance or any parts thereof, and shall also refer to any other ordinance of the City of Meridian governing the "Sewer/Water System". 2.6 "Policy/Regulations": means and shall refer to any City Council enacted policy and/or regulation of its Sewer/Water system. 2.7 "Sewer/Water System": means and shall refer to the City's Sewer/Water system. NOW THEREFORE, in consideration of the covenants and conditions set forth herein, the parties agree as follows: SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 2 3. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and are incorporated herein as if set forth in full. 4. PROVISIONS OF SEWER AND WATER LINES: 4.1. SEWER SERVICE 4.1.A In Agreement 2 the parties anticipated the construction of the pressure sewer line and water line extension to be completed jointly by December 31, 2009. The parties now must separate the projects with revised start and completion dates. The parties now agree to extend the completion date of the sewer project to March 31, 2011. (See Agreement 2, Section 4.2.G.) 4.1.B. In Agreement 2 the City anticipated assigning the sewer portion of the construction of the joint project to the Developer. The City hereby revokes that assignment and will construct the remainder of the sewer lines through its own means. There are no shared costs of this project any longer. (See Agreement 2, Section 4.1.D.) 4.2. WATER SERVICE 4.2.A. In Agreement 2 the Developer was responsible to install a water main and accompanying water line extensions at Developer's sole cost in coordination with the City's sewer lift station and line extension project earlier noted within 12 months of approved and permitted plans but by no later than December 31, 2009. The parties now agree to extend the date of completion from December 31, 2009 to six (6) months from substantial completion of the sewer line project (not lift station substantial completion) but no later than June 30, 2011. (See Agreement 2 -Section 4.2.G.) 4.2.B. The parties agree that the projects do not need to be coordinated jointly. Each party is free to complete their assigned projects independently. 4.2.C. If Developer wishes to coordinate the water main and water line extensions with the City's sewer line project he must provide a performance completion bond to the City for the installation of the water main and accompanying water line extensions by June 1, 2010. Failure to provide a performance completion bond by that date shall be a bar to coordinating the projects jointly. 4.2.D. If the Developer wants to be reimbursed for the project pursuant to the City's ordinance then a request and Reimbursement Agreement must be completed prior to the start of construction. The Developer shall enter into a reimbursement agreement with the City in accordance with the ordinance in effect at the time of the execution of the agreement and prior to the start of construction. 4.2.E. Developer withdraws his Notice of Default filed by his counsel of record on or about March 11, 2010. The City and Developer mutually waive any additional claims, if SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 3 any, against each other, that may have arisen or exist prior to the execution of this Agreement as it relates to this property. 5. DEFAULT: Any failure to perform the terms and conditions of this agreement shall be a default. Either party shall be entitled to reasonable damages including attorney's fees. 6. REMEDIES: 6.1 This Agreement shall be enforceable in any court of competent jurisdiction by either "City" or JLJ Enterprises, Bittercreek, LLC, Bittercreek Meadows Homeowner's Association, or by any successor or successors in title or by the assigns of the parties hereto. Enforcement may be sought by an appropriate action at law or in equity to secure the specific performance of the covenants, agreements, conditions, and obligations contained herein. In addition, remedies available to the City include those provided pursuant to the ordinance regulating and controlling the use of the City's Sewer/Water system presently codified as Meridian City Code §9-4-26 and §9-1-16 and any subsequent ordinance or any parts thereof which empower the City of Meridian to govern the Sewer/Water system. 6.2 In the event of a default, written Notice of Default shall be served and defaulting-party shall then have thirty (30) days after delivery of notice of default to correct the same before the non-defaulting party may seek any remedy provided for herein. Notice of Default does not excuse performance of the balance of any terms and conditions of the Agreement unless the default is such to negate continued performance. 6.3 In the event the performance of any covenant to be performed hereunder by either "JLJ Enterprises Inc." or "City" is delayed for causes which are beyond the reasonable control of the party responsible for such performance, which shall include, without limitation, acts of civil disobedience, strikes or similar causes, third party or outside agency delay, the time for such performance shall be extended by the amount of time of such delay. "Time of delay" as used herein is to be defined by the party suffering the delay. 7. NOTICES: 7.1 Any notice desired by the parties and/or required by this Agreement shall be deemed delivered if and when personally delivered or three (3) days after deposit in the United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY: City Clerk City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 PROPERTY OWNERS: JLJ Enterprises Inc. & Bittercreek, LLC and SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 4 Rob McCarvel 3891 Daisy Creek Street Bittercreek Meadows HOA President Meridian, Idaho 83642 with copy to: Public Works Director City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 with copy to: Trout, Jones, Gledhill, Fuhrman, and Gourley P.A. Attn: Stephen J. Gledhill P.O. Box 1097 Boise, ID 83701 7.2 A party shall have the right to change their address by delivering to the other party a written notification thereof in accordance with the requirements of this section. 7.3 City and Developer agree to advise current residents and owners within Bittercreek Meadows of the Agreements herein, and HOA agree to modify as necessary, the Conditions, Covenants and Restrictions of Bittercreek Meadows to effect the terms of this Agreement. ATTORNEY FEES: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorney's fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 9. TIME IS OF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of and a default under this Agreement by the other party so failing to perform. Any extension of any time lines may be for by acts of God, war, delays beyond control of the City, delay caused by third parties and/or agencies. SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 5 10. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs, successors, assigns and personal representatives, including "City's" corporate authorities and their successors in office. This Agreement shall be binding on the owner of the property, each subsequent owner and each other person acquiring an interest in the Property. Nothing herein shall in any way prevent sale or alienation of the Property, or portions thereof, except that any sale or alienation shall be subject to the provisions hereof and any successor owner or owners shall be both benefited and bound by the conditions and restrictions herein expressed. 11. INVALID PROVISION: If any provision of this Agreement is held not valid by a court of competent jurisdiction, such provision shall be deemed to be excised there from and the invalidity thereof shall not affect any of the other provisions contained herein. 12. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, condition and understandings between JLJ Enterprises Inc., Bittercreek, LLC, and Bittercreek Meadows Homeowner's Association and "City" relative to the subject matter hereof, and there are no promises, agreements, conditions or understanding, either oral or written, express or implied, between JLJ Enterprises Inc. and "City", other than as are stated herein or the exhibits or agreements referenced herein. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by them or their successors in interest or their assigns, and pursuant, with respect to "City", a duly adopted resolution of "City". 13. TERMINATION: At such time as the "Real Property" is annexed into the City, this agreement shall terminate except for any default that exists at such time shall still be enforceable pursuant to the terms of this agreement. 14. EFFECTIVE DATE: This Agreement shall be effective at such time as all parties have executed this Agreement. SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 6 ACKNOWLEDGMENTS IN WITNESS WHEREOF, the parties have herein executed this agreement and made it effective as hereinabove provided. Dated this ~ day of ~vv~e-- , 2010. Bittercreek M~ddows HOA By_7]...,.L -l~d,.!'~...w _.yy1~~ 7_ IL..~_: + jyyvi~ ~' -Vl~ ~C~/~~s CITY OF MERIDIAN By: --~cc~c-- MAYOR TA " MY DE WEERD ATTEST: LMAN, CITY ~ M F :. o ~x EAL = '` O `~ ~ ~~ SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- ~ PROPERTY OWNER STATE OF IDAHO ) County of Ada . ss. On this ~ day of , in the year 2010, before me, the undersigned, a Notary Public, personallyed, JAMES L. JEWETT, known or identified to me to be the President of JLJ Enterprises Inc., Managing Member of Bittercreek, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. ~....... .""•oo•1,C,A `T p~r•. (SEAL) ~•~;~pTAR~•~•~ • ~ • • ~ ~, • • pCh3L1G,,4o. •~'~; ~'E OF t~; • •...... STATE OF IDAHO ) . ss. County of Ada ) Public for Id Residing at: l~u~ ~ ~~Q~o My Commission Expires: Iav~ ~ , ay t ~ On this day of _~ ; in t~h~ye~r ~ 010, before me, the undersigned, a Notary Public, personally appei~d, R ' ' ` ^ ~~cnown or identified to me to be and President of Bittercreek Meadows Homeowner's Association, who executed the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and,year,ti,this certificate first above written. y/ a, F ~ (SEAL) ~ ~~:~' ~, ~ 1 ,~_. ~ F - `~ ~, ~, _ otary Public for Idaho ,,~, ~ , ~ Residing at: 1`' (), SP ~'~ t My Commission Expires: c3 3 - ~ ~ n. ~,,.Q~~~=°'~.~.. ~~ .~.~~ `~ `4 J'`l~JJJJJlta:! ~ `~.,?St5U444`~"'• tf! SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 8 STATE OF IDAHO ) . ss. County of Ada ) On this ~_ day of ~ v ~~ , in the year 2010, before me, the undersigned, a Notary Public, personally appeared TAMMY DE WEERD and JAYCEE HOLMAN, known or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the instrument or the persons that executed the instrument on behalf of said City, and acknowledged to me that such City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. ~ZCA Jp~.~ (SEA ~pTA,4,~„<'Ct'~.: . ~ ~ . . ~ ~ . • ` • ~•;~'F - t,~~~~~•i `• ,. " .. ~®tary Public for dah Residing at: ~ vr~ , ~~,~ o My Commission Expires: ~Q,r, ~~ SECOND AMENDED BITTERCREEK MEADOWS AGREEMENT FOR SEWER AND WATER SERVICE- 9 - ADA EoDAHO 07lO6h0E02 26 pVMID NAVARRO AMOUNT 13.00 Z BDIS III IIIIIIIIIIIIIIIIIIIIIIIIIIIIII I III ~ DEPUTY Lisa Batt • RECORDED-REQUEST OF 110~3~62~~1 Pioneer RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Meridian 33 East Broadway Avenue Meridian, ID 83642 C~~~\~R' (Space Above For Recorder's Use) GIFT WARRANTY DEED THIS GIFT WARRANTY DEED is made this ~rday of ~t~'1 ~-~-. 20~, between JLJ ENTERPRISES, INC. ("Grantor") and THE CITY OF MERIDIAN, whose current address is 33 E. Broadway Ave., Meridian, Ada County, Idaho 83642 ("Grantee") FOR GOOD AND AVALUABLE CONSIDERATION, Grantor does hereby grant, bargain, sell and convey to Grantee all of the real property located in the County of Ada, State of Idaho, commonly described as the well lot in the Bittercreek Meadows Subdivision, and more particularly described as: Lot 7, Block 1, of the Amended Plat of Bittercreek Meadows Subdivision recorded with the Ada County recorder's office as Instrument No. 106102994 on or about the 27th day of June, 2006 together with the well, pump house, appurtenances, and water right as further defined as that permit to appropriate water as issued through the State of Idaho Department of Water Resources, as Permit No. 63-31957, (hereafter, the "Premises"). TO HAVE AND TO HOLD the Premises, with their appurtenances unto the said Grantee, its heirs and assigns forever. And the said Grantor does hereby covenant to and with the said Grantee, that it is the owner in fee simple of the Premises; that they are free from all encumbrances, protective covenants, zoning ordinances, and that Grantor(s) will warrant and defend the same from all lawful claims whatsoever. GIFT WARRANTY DEED - 1 JLJ reserves unto itself, its assigns, and/or the Bittercreek Meadows Homeowner's Association the pressurized irrigation pumps and system, and access to the pressurized irrigation system included on the said parcel in conjunction with the Homeowner's Association's duty to maintain landscaping on the well lot and common areas within Bittercreek Meadows Subdivision. IN WITNESS WHEREOF, Grantor has caused its name to be subscribed to this Gift Warranty Deed on this~~day of DC~~6Ec~ , 20 a9. GRANTOR: STATE OF IDAHO ) ss. County of Ada ) ~~ ''\\ On the ~~ day of V~`~e- 20 ~u , before me, the undersigned, a Notary Public in and for said State, personally appeared James L. Jewett, known or identified to me to be the President of JLJ ENTERPRISES, INC., the Idaho corporation that executed the within and foregoing instrument, or the person who executed the instrument of behalf of said Idaho corporation, and acknowledged to me that such Idaho corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ~.....~~ .•~c.A aQ~-••. . . `.• o~"R~ ~~i,-,~ ~ ~~ ~ ~ ~ • ~~~'~ ~ ~~ •~~•~~~~ ary Public fo Idaho Re iding at: l~vr~~,~ ,~ 11~ Commission Expires:~L7 ~ ~, mac, ~ ~-~ GIFT WARRANTY DEED - 2 JLJ ENTERPRISES, INC. An Idaho Corporation OWNER'S POLICY OF TITLE INSURANCE ~*** * * Policy Number OX 4 3 6 5 0 4 ~ * Issued by Old Republic National Title Insurance Company ~ * Any notice of claim and any other notice or statement in writing required to be given to the * * * Company under this Policy must be given to the Company at the address shown in Section 18 of the Conditions. COVERED RISKS SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation (the "Company") insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 1. Title being vested other than as stated in Schedule A. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from: (a) A defect in the Title caused by (i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation; (ii) failure of any person or Entity to have authorized a transfer or conveyance; (iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered; (iv) failure to perform those acts necessary to create a document by electronic means authorized bylaw; (v) a document executed under a falsified, expired, or otherwise invalid power of attorney; (vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic means authorized bylaw; or (vii) a defective judicial or administrative proceeding. (b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. (c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. 3. Unmarketable Title. 4. No right of access to and from the Land. 5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to ~a) the occupancy, use, or enjoyment of the Land; (b) the character, dimensions, or location of any improvement erected on the Land; (c) the subdivision of land; or (d) environmental protection if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent of the violation or enforcement referred to in that notice. Countersigned: OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY A Stock Company 400 Second Avenue South, Minneapolis, Minnesota 55401 (612) 371-1111 Authorized Officer or ii tensed Agent gy f~J President Attest ~~ Secretary ORT Form 4309 ALTA Owners Policy of Title Insurance 6-17-06 ~Qi~~4c4c~~~~~Qc~t~ ~~~9c~~~~~~4t~~~ 4c4c9ctk4c~~~4c4c~~~4c~ ~4c~~4c~4cRc~~~~4c4t 4c~4c~~~4c~4c4~4i~4c4c~~~~~~~~4c~~~4i~~~4c4c~~ OLD REPUBLIC TITLE INSURANCE COMPANY OWNERS POLICY Policy No.: 0X436504 Name and Address of Title Insurance Company: Old Republic National Title Insurance Company 400 Second Avenue South Minneapolis, MN 55401 File No.: 31.7299 Address Reference: 4898 S. Bittercreek Ave, Boise, Idaho 83642 Date of Policy: July 6, 2010 at 2:26:00 PM Amount of Insurance: $10,000.00 Premium Amount: $200.00 Total Amount: $200.00 1. Name of Insured: City of Meridian 2. The estate or interest in the Land that is insured by this policy is: Fee Simple 3. Title is vested in: The City of Meridian 4. The land referred to in the Policy is described as follows: Lot 7, Block 1, Amended Plat of Bittercreek Meadows Subdivision, according to the plat thereof, filed in Book 95 of plats at pages 11732 thru 11735, records of Ada County, Idaho. Schedule A a e l of l a e(s) ORT Form 4309 A Schedule A for ALTA Owners Policy of Title Insurance 6-17-07 ~~4c4c4c~4i~4c4t~~~~~c~~~~;~g~q~~~~~~~~~~~~~~~~~ ~~~~~~~~~~~~4~c~~~K~~~~~~~~~~~~~~~ 4i~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~4~ OLD REPUBLIC TITLE INSURANCE COMPANY OWNER'S POLICY Schedule B File No.: 317299 Policy No.: 436504 EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees or expenses that arise by reason of: General Exceptions: 1. Rights or claims of parties in possession not shown by the public records. 2. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey or inspection of the premises including, but not limited to, insufficient or impaired access or matters contradictory to any survey plat shown by the public records. 3. Easements, or claims or easements, not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or Acts authorizing the issuance thereof; (c) water rights, claims to title to water, whether or not the matters excepted under (a), (b), (c) are shown by the public records. 6. Taxes or special assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices to such proceedings, whether or not shown by the records of such agency or by the public records. Special Exceptions: General taxes for the year 2010, which are liens, are not yet due and payable. 2. Real property taxes which may be assessed, levied and extended on any "subsequent and/or occupancy roll" with respect to improvements completed during the year which escaped assessment on the regular assessment roll, which are not yet due and payable. Schedule A a e l of 4 a e(s) ORT Form 4309 B Schedule B for ALTA Owners Policy of Title Insurance 6-17-07 ~~~~~~~~~~~~~~4c~k~%~'~~~~~~~~~~~~~~~ ~~~4c~~~~~k4c9c~k~~~~~~~Qt~~~~~4c4c4c~~~4c~4'c 3. Liens, fees and charges for trash services as provided by Ada County Ordinance No. 467 amending Title 5, Chapter 2, Section 4 of Ada County Code (208-287-6800). 4. Sewerage charges and special assessment powers of the City of Meridian. 5. Liens and assessments of the following district and the rights and powers thereof as provided by law. District: Nampa Meridian Irrigation District (466-7861) 6. Rights of way for ditches, tunnels and telephone and transmission lines constructed by Authority of the United States, as granted to the United States under the provisions of Section 58-604 Idaho Code 1947. 7. Terms and provisions set forth in Ditch Use and Rotation Agreement between the parties herein named. Between: Grant B. and Carrol D. Richards, husband and wife; and William E. and Glenda L. Englund, husband and wife Dated: November 21, 1994 Recorded: November 22, 1994 Instrument No.: 94102798 Affects: All Lots Terms and provisions set forth in Road Use and Maintenance Agreement between the parties herein named. Between: Grant B. and Carrol D. Richards, husband and wife; and William E. and Glenda L. Englund, husband and wife Dated: November 21, 1994 Recorded: November 22, 1994 Instrument No.: 94102799 Affects: All Lots 9. Terms and provisions set forth in agreement between the parties herein named. Between: JLJ Enterprises, Inc., Bittercreek Meadows Subdivision HOA and The City of Meridian Dated: October 4, 2005 Recorded: November 10, 2005 Instrument No.: 105170902 Amended May 22, 2008 as Instrument No. 108059993 Affects: All lots 10. Covenants, conditions, restrictions and easements as set forth on the face of the plat. 11. Liens, dues and /or assessments owing the association herein named which may have heretofore attached pursuant to the terms and provisions of covenants, conditions and restrictions imposed upon said premises. Association: Bittercreek Meadows Subdivision Homeowners Association, Inc. Schedule A a e 2 of 4 a e(s) ORT Form 4309 B Schedule B for ALTA Owners Policy of Title Insurance 6-17-07 (~1~?\ /~,'1$\ 1\ 1\ 1\ j~1~j\ 1\ L(,1~$\ a~ /~'i~$\ .ate j~i$~. /1',i$)~ f~~~.}~ i.. ~. ~ ~ < _ - _ _ _ _ _ ~(-$_ - - t(,"-~~~! /~'`$ ~('$ (~}j (\"~ A.\. 1.0.~~. .i~.. ~_ .A.\. ~. .A\.~ .1.\ A\. .A\. ..j J1(\'.'$~©~~.~%~S$\. (l'~~j.(~'.A~. f\. .!.\.~(\'~~~. 1\. if,~~.~f,."1~~~l. ~j,',1~}\ ~(~~y ~(,',$~~ /~,'. _ ..~~y (\'~ /`',~~} ~ ~\ ~ .. li. ~. ~. 7\ 1, 1.1 ~ 1\. ~. ~. ~ 1.~. l.\ 11. ~,Et .ll /~'j~ry. lti. ~ 1.\ (~'I~p}\ 1.\ i\ .1\ (~1~}\ ~ (~'~$ 12. Terms and provisions of letter from Central District Health Department Dated: October 31, 2005 Recorded: May 26, 2006 Instrument No.: 106083884 Affects: All lots 13. Terms and provisions set forth in Consent to Annex ti. Between: JLJ Enterprises, Inc., and the City of Me 'di Dated: July 18, 2006 Recorded: July 20, 2006 Instrument No.: 106116165 Affects Lots 1 thru 14 and 16 thru 27 in Block 1 n~ Notification between the parties herein named. Lot 1 in Block 2 and Lot 1 in Block 3 of Amended Bittercreek Meadows Sub. 14. Terms and provisions ofNon-Building Agreement Between: City of Meridian, and JLJ Enterprises, I~ Dated: July 18, 2006 Recorded: July 20, 2006 Instrument No.: 106116166 Affects Lots 1 thru 14 and 16 thru 27 in Block 1 the parties herein named. Lot 1 in Block 2 and Lot 1 in Block 3 of Amended Bittercreek Meadows Sub. 15. Terms and provisions set forth in Non-Occupancy Between: City of Meridian and JLJ Enterprises, Ir Dated: July 18, 2006 Recorded: July 20, 2006 Instrument No.: 106116167 Affects Lots 1 thru 14 and 16 thru 27 in Block 1 Amended Bittercreek Meadows Sub. between the parties herein named. Lot 1 in Block 2 and Lot 1 in Block 3 of 16. Covenants, Conditions, Restrictions and Easy Dated: Not disclosed Executed by: JLJ Enterprises, Inc., an Idaho Recorded: July 20, 2006 Instrument No.: 106116168 Amendment to said covenants Recorded: May 21, 2008 Instrument No.: 108059558 Schedule A 3 of 4 ORT Form 4309 B Schedule B for ALTA Owners Policy of Title Insurance 6-1 '~ /~,',j~~J~ _~. ~Tl Z\ 1\ 1\ li At i\ It 1\ 1~ is i ~. .a. a. i. t i. ~ ~ ~ ~ ~ ~ ~. ~ - - _ ._ _ , _ - - - - ~. ~~~. ~. ~. 17. Terms and provisions set forth in Agreement for Hookup to the City of Meridian's Sewer/Water System Outside the City Limits, between the parties herein named. Between: City of Meridian, and JLJ Enterprises, Inc. Dated: August 23, 2006 Recorded: August 24, 2006 Instrument No.: 106137050 Amended May 22, 2008 as Instrument No. 108059793 18. Terms and Conditions of the Coonsent to Annexation Notification, recorded July 20, 2006 as Instrument No. 106116165. 19. Bittercreek Meadows Development Agreement; Private Non-Regulated Utilities in ACRD Right-of--Way Terms and provisions set forth in agreement between the parties herein named. Between: Ada County Highway District and JLJ Enterprises, Inc. Dated: December 6, 2007 Recorded: December 26, 2007 Instrument No.: 107169403 END OF EXCEPTIONS NOTE: THERE IS NO NOTICE OF RECORD AND THEREFORE NO SEARCH HAS BEEN MADE FOR ANY UNPAID ASSESSMENTS, CHARGES OR FEES FOR SEWER, WATER, GARBAGE, IRRIGATION AND OTHER POSSIBLE UTILITY SERVICES. Schedule A a e 4 of 4 a e(s) ORT Form 4309 B Schedule B for ALTA Owners Policy of Title Insurance 6-17-07 CONDITIONS AND STIPULATJONS 1. DEFINITION OF TERMS The following terms when used in this policy mean: (a) "Amount of Insurance": The amount stated in Schedule A, as may be increased or decreased by endorsement to this policy, increased by Section 8(b-, or decreased by Sections 11 and 12 of these Conditions. (b) "Date of Policy": The date designated as "Date of Policy" in Schedule A. (c) "Entity": A corporation, partnership, trust, limited liability company, or other similar legal entity. (d) "Insured": The Insured named in Schedule A. (i) The term "Insured" also includes (A) successors to the Title of the Insured by operation of law as distinguished from purchase, including heirs, devisees, survivors, personal representatives, or next of kin; (B) successors to an Insured by dissolution, merger, consolidation, distribution, or reorganization; ICI successors to an Insured by its conversion to another kind of Entity; (D) a grantee of an Insured under a deed delivered without payment of actual valuable consideration conveying the Title (1) if the stock, shares, memberships, or other equity interests of the grantee are wholly-owned by the named Insured, (2) if the grantee wholly owns the named Insured, (3) if the grantee is wholly-owned by an affiliated Entity of the named Insured, provided the affiliated Entity and the named Insured are both wholly-owned by the same person or Entity, or (4) if the grantee is a trustee or beneficiary of a trust created by a written instrument established by the Insured named in Schedule A for estate planning purposes. (ii) With regard to IA-, (B-, (C-, and (D) reserving, however, all rights and defenses as to any successor that the Company would have had againstany predecessorlnsured. (e) "Insured Claimant": An Insured claiming loss or damage. (f) "Knowledge" or "Known": Actual knowledge, not constructive knowledge or notice that may be imputed to an Insured by reason of the Public Records or any other records that impart constructive notice of matters affecting the Title. (g) "Land": The land described in Schedule A, and affixed improvements that by law constitute real property. The term "Land" does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is insured by this policy. (h) "Mortgage": Mortgage, deed of trust, trust deed, or other security instrument, including one evidenced by electronic means authorized by law. (i) "Public Records": Records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. With respect to Covered Risk 5(d-, "Public Records" shall also include environmental protection liens filed in the records of the clerk of the United States District Court for the district where the Land is located. (j) "Title": The estate or interest described in Schedule A. (k) "Unmarketable Title":Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of the Title or lender on the Title to be released from the obligation to purchase, lease, or lend if there is a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE The coverage of this policy shall continue in force as of Date of Policy in favor of an Insured, but only so long as the Insured retains an estate or interest in the Land, or holds an obligation secured by a purchase money Mortgage given by a purchaser from the Insured, or only so long as the Insured shall have liability by reason of warranties in any transfer or conveyance of the Title. This policy shall not continue in force in favor of any purchaser from the Insured of either (i) an estate or interest in the Land, or (ii) an obligation secured by a purchase money Mortgage given to the Insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The Insured shall notify the Company promptly in writing (i) in case of any litigation asset forth in Section 51a- of these Conditions, (ii) incase Knowledge shall came to an Insured hereunder of any claim of title or interest that is adverse to the Title, as insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if the Title, as insured, is rejected as Unmarketable Title. If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company's liability to the Insured Claimant under the policy shall be reduced to the extent of the prejudice. 4. PROOF OF LOSS In the event the Company is unable to determine the amount of loss or damage, the Company may, at its option, require as a condition of payment that the Insured Claimant furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance, or other matter insured against by this policy that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. 5. DEFENSE AND PROSECUTION OF ACTIONS (a) Upon written request by the Insured, and subject to the options contained in Section 7 of these Conditions, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the Insured to object for reasonable cause) to represent the Insured as to those stated causes of action. It shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs, or expenses incurred by the Insured in the defense of those causes of action that allege matters not insured against by this policy. (b) The Company shall have the right, in addition to the options contained in Section 7 of these Conditions, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable to the Insured. The exercise of these rights shall not bean admission of liability or waiver of any provision of this policy. If the Company exercises its rights under this subsection, it must do so diligently. (c) Whenever the Company brings an action or asserts a defense as required or permitted by this policy, the Company may pursue the litigation to a final determination by a court of competent jurisdiction, and it expressly reserves the right, in its sole discretion, to appeal any adverse judgment or order. Page 3 CONDITIONS AND STIPULATIONS (con't- 11. LIABILITY NONCUMULATIVE The Amount of Insurance shall be reduced by any amount the Company pays under any policy insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject, or which is executed by an Insured after Date of Policy and which is a charge or lien on the Title, and the amount so paid shall be deemed a payment to the Insured under this policy. 12. PAYMENT OF LOSS When liability and the extent of loss or damage have been definitely fixed in accordance with these Conditions, the payment shall be made within 30 days. 13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT (a) Whenever the Company shall have settled and paid a claim under this policy, it shall be subrogated and entitled to the rights of the Insured Claimant in the Title and all other rights and remedies in respect to the claim that the Insured Claimant has against any person or property, to the extent of the amount of any loss, costs, attorneys' fees, and expenses paid by the Company. If requested by the Company, the Insured Claimant shall execute documents to evidence the transfer to the Company of these rights and remedies. The Insured Claimant shall permit the Company to sue, compromise, or settle in the name of the Insured Claimant and to use the name of the Insured Claimant in any transaction or litigation involving these rights and remedies. If a payment on account of a claim does not fully cover the loss of the Insured C-aimant, the Company shall defer the exercise of its right to recover until after the Insured Claimant shall have recovered its loss. (b) The Company's right of subrogation includes the rights of the Insured to indemnities, guaranties, other policies of insurance, or bonds, notwithstanding any terms or conditions contained in those instruments that address subrogation rights. 14. ARBITRATION Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("Rules"-. Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured. All arbitrable matters when the Amount of Insurance is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent jurisdiction. policy, this policy shall be construed as a whole. (b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim shall be restricted to this policy. (c) Any amendment of or endorsement to this policy must be in writing and authenticated by an authorized person, or expressly incorporated by Schedule A of this policy. (d) Each endorsement to this policy issued at any time is made a part of this policy and is subject to all of its terms and provisions. Except as the endorsement expressly states, it does not (i) modify any of the terms and provisions of the policy, Iii) modify any prior endorsement, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. 16. SEVERABILITY In the event any provision of this policy, in whole or in part, is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision or such part held to be invalid, but all other provisions shall remain in full force and effect. 17. CHOICE OF LAW; FORUM (a) Choice of Law: The Insured acknowledges the Company has underwritten the risks covered by this policy and determined the premium charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation, rights, remedies, or enforcement of policies of title insurance of the jurisdiction where the Land is located. Therefore, the court or an arbitrator shall apply the law of the jurisdiction where the Land is located to determine the validity of claims against the Title that are adverse to the Insured and to interpret and enforce the terms of this policy. In neither case shall the court or arbitrator apply its conflicts of law principles to deter- minethe applicable law. (b- Choice of Forum: Any litigation or other proceeding brought by the Insured against the Company must be filed only in a state or federal court within the United States of America or its territories having appropriate jurisdiction. 18. NOTICES, WHERE SENT Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at 400 Second Avenue South, Minneapolis, Minnesota 55401-2499. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CON- TRACT (a) This policy together with all endorsements, if any, attached to it by the Company is the entire policy and contract between the Insured and the Company. In interpreting any provision of this Page 5