HomeMy WebLinkAbout99Sept07 CC Mtg Mins
Meridian City Council
September 7, 1999
Page 52
B. BILL GIGRAY:
1. GENERAL REPORT AND REQUEST TO REFER NEW CODE TO
PLANNING AND ZONING REGARDING ZONING ORDINANCE.
Gigray: Mr. Mayor and members of the Council I have under a general report re'.luest
that you give me authority to refer the new code to the Planning and Zoning
Commission for their advertising and public hearing because of a few provisions that
are in the zoning ordinance that are changed. I figure upon review of this matter that it
would be better to play it safe because the state law requires public hearings and review
by Planning and Zoning Commission on any changes in the zoning ordinance. There
are a couple. They're mainly technical in the zoning ordinance that would take care of
that. I think it's extremely important because we have a lot of other ordinances which
we are preparing which you are reviewing and I've requested the Clerk hold until the
new code is passed because the new code will be passed by one ordinance only and of
course it will set the section numbering and codification for which all subsequent
ordinances are passed and to avoid confusion I feel that that would be the best order to
follow that is the new code passed and then all of the subsequent ones following it. But
I didn't feel like I had authority to do anything at this point because we had had one
strategic planning meeting in which I presented an overview of the code and gave you
an outline with it. I was given no expressed direction at that point in time and in order to
get this thing moving I would strongly recommend you give me authority to refer chat to
the Planning and Zoning Commission or you could direct me directly so that they could
get moving on it and it could get back before this Council for consideration and
passage.
Corrie: Okay any comments?
Rountree: So moved.
Bentley: Second.
Corrie: Motion made and second that the request that the request for new codes for the
Planning and Zoning regarding the zoning ordinance be approved. Any further
discussion? Hearing none, all those in favor say aye.
MOTION CARRIED: ALL AYES.
Bentley: Mr. Gigray very interesting reading.
Gigray: Are you enjoying it?
Bentley: Yes.
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Meridian City Council
September 7, 1999
Page 53
Gigray: If there are things that you see in your review that really are obvious things that
need to be changed, just refer them to our office and with the permission of the Council
and the Mayor, we can go ahead and start preparing some follow up ordinances to
correct those mistakes because this maybe the best opportunity you have to go through
that whole code and you'll pick out some things that need work on.
Bentley: Mr. Mayor I would hope that the department heads would start perusing it too
so they can give us any more that needs to be corrected too.
Gigray: Has it been distributed to them yet?
Bentley: I don't know.
Corrie: (Inaudible)
Rountree: Mr. Mayor would you see that that's done and request the department heads
to take a look at those sections that impact their work?
Corrie: Okay, Mr. Gigray would you go over this - this is not on the agenda here, but
I'm going to extend the privilege on this golf course thing. We need to get probably
some agreements here. Would you go into that for us?
Gigray: Mr. Mayor and members of the Council, I was faxed a transmission from Mr.
Insinger who represents the Lessee in Cherry Lane Recreation, Inc and have requested
and stated in his letter which I believe you have in your packet a revised Estoppel
agreement or certificate to be executed by the City Council and requested that that
come before the City Council and I'm referring to his letter dated September 3rd and
then there was an accompanying Lessor's Estoppel Certificate with it. I had to review
that Estoppel Certificate. It still in my view in part three and in part four and in part
seven has some matters that I think are beyond what at least at this stage of the game I
would recommend that the Council authorize part three says the Lessee is not in default
and as of this date is current in all of its financial obligations under said lease and lessor
has not made and does not now make any claim that lessee is in any default and then
in part four it says lessee is exclusively entitled to all of the rights and subject to all of
the obligations of the lessee under the lease consistent with all terms and conditions
therein and any and all agreements with New Pacific or any other person or entity which
might otherwise impact or impair lessee's interest in the lease or the property subject
thereof have been terminated. No person or entity other than the lessee has rights or
ability to serve or obtain any title or interest in the lease or the property except with
lessee's consent which shall be at lessee's sole discretion and then seven it says
lessee and its officers direct or his agents attorneys, insurers or lenders shall have the
right to rely on all matters certified to herein as of this date and lessor shall be estopped
from subsequently asserting any contrary position except as to events which m&y occur
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Meridian City Council
September 7, 1999
Page 54
here after. I felt that that language still was so all inclusive that I would not recommend
that the City Council execute such a document. I have prepared a memo. I undsrstand
that Recreational Properties, Inc is in a tough position out there trying to figure out a
way to provide at least a statement from the City as to the conditions for which exist with
that lease agreement. In my memo I first point out to the Council that you're under no
legal obligation to execute such a certificate. There are many instances where you're a
lessee and you're leasing some property say for instance in a shopping center and the
lessor for their own financial purposes will require you as of the terms of the lease
agreement to execute Estoppel Certificates and you do see those in lease agreements
from time to time. That's not a part of any relationship that we're in. Secondly the
proposed certificate in my view could only prevent potentially the City making a claim
that otherwise it might have which the bank or the lessee in the first instance or their
insured and as you can see in part seven any of those people could raise that as a
defense that the City would be esstopped from even raising such a claim and what I felt
in order to speed this along would be for your consideration the possibility of the City
issuing a lessor statement concerning the lease agreement and that that statement
which is for your consideration before you acknowledging that the lease agreement that
was dated the 3rd of October, 1978 between the City and Cherry Lane RecreatiC'I' that
it's in full force and effect. There have been no subsequent amendments or
modifications other than the nine holes of golf which have been added and l'n1
paraphrasing here, you've got it in front of you that the real property which is subject to
the lease is duly annexed into the City. The legal description of the real property we
have attached. We've already executed one document to that affect. The Cherry Lane
Recreation Inc an Idaho Corporation lessee is exclusively entitled to all of the rights,
duties and responsibilities of the lease under the terms of the lease provisions and are
required that said rights, duties and responsibilities may only be so held by Cherry Lane
Recreation Inc without the written permission of the City to do otherwise. And that the
City hasn't transferred or assigned its interest. That's what part five is about and that in
part six that Cherry Lane Recreation Inc is current in its performance of the rental
payment provisions of the lease and that the City has not caused to be served nor does
it have any present plans to cause to be served upon Cherry Lane Recreation Inc any
notice of default of the terms of the lease including any present claim of indemnification
as far as the City of Meridian is presently aware and that this statement is being issued
by reason of the lessee's request for a lessor's Estoppel certificate which by the terms
of the lease the lessor is not obligated to execute as a courtesy to the lessee t~is
statement is being issued under the authority of the City Council action and then it
would propose this date. And so I prepared that for your consideration knowing that this
matter is belabored. I certainly would understand that probably the language of the
Estoppel Certificates are not the original of Cherry Lane Recreation Inc but and I'm
probably not - it's something to do with some requirements of lending or otherwise and
who knows where it was originally drafted. I wanted to be able to provide the Council
and Mayor with at least my advice as to what possibly the City could do with short
notice at this point and I just get it to you for your consideration also so that we honor
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Meridian City Council
September 7, 1999
Page 55
the request that at least you have an opportunity to review this as requested by Cherry
Lane Recreation, Inc.
Corrie: Council wish to issue the statement concerning the agreement?
Bentley: That would be my preference to issue that.
Corrie: Any further discussion?
Rountree: Mr. Mayor on item seven this sixth word should be by. In refer to attachment
or exhibit A, Exhibit A is not identified. I assume it's the legal description. Is that the
intent? I'm talking about the Lessor's statement concerning agreement. It talks about
Exhibit A. It shows a legal description. It appears that legal description is encompassing
the original nine holes. The latest date is September 8, 1977 so it doesn't include the
remainder of the 18 holes of golf. With those two items I'm in agreement that it looks to
me like this is probably a better form for the City to move on as opposed to the Estoppel
Certificate.
Bird: Mr. Mayor, I agree with Charlie. This Estoppel thing I do not like but I have a
question. Will this agreement that we are proposing to give to Wally is that going to be
satisfactory for the lenders? I mean I think it's the lenders that are making us or is
having him want us to sign this Estoppel certificate.
Corrie: That's correct. I don't know whether it is or not. That would be up to the bank.
Bird: Yeah, that's what I'm asking. Does Wally know?
Corrie: I don't know. That would be a bank decision; is that correct Mr. Gigray?
Gigray: Mr. Mayor and members of the Council, obviously what the bank will accept is
up to them. What I was trying to do is provide a mechanism where we could speed
information and also give the bank some assurance that Cherry Lane is not subject of
any present move to put them in default that they're in the lease that this is the 18 holes.
We'll double check this description. That's a very good point, but we filed a very recent
document that's identified with that entire 18 holes is and I think it should give the bank
the basic information that they should be I think are trying to get in the Estoppel
Certificate. I tried to make this as broad as possible getting what I was seeing the bank
was asking to try to assist in this matter, but yet I mean -you know I can understand if
you're on the other side you want all the guarantees in the world and just say there's
just no way, no way any claim could ever be made and we want to be able to prrJtect
ourselves and our insurers and on and on and on. Weill can't recommend to you that
we do that. At the same point I think it's fair to say these are the people, they're leasing,
they've paid their obligation, we don't have any defaults out there, we're not planning
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Meridian City Council
September 7, 1999
Page 56
any at this point. We're not requiring any indemnification. I would hope that this would
work out all the way around.
Corrie: Any other questions? I'll entertain a motion on the Lessor's statement to be
signed as written and with the correction of the -
Rountree: Mr. Mayor I move that we approve the Lessor's statement concerning
agreement of lease dated October 30, 1978, concerning the Cherry Lane Recreation
Inc. and that we authorize the Mayor to sign.
Bentley: Second.
Corrie: Motion made by Mr. Rountree second by Mr. Anderson to approve the lessor's
statement concerning the agreement of lease dated October 30, 1978 and the Mayor to
sign. Any further discussion? Hearing none, all those in favor of the motion say aye.
MOTION CARRIED: ALL AYES.
C. KENNY BOWERS:
1. UNION CONTRACT.
Bowers: Mayor Corrie and City Council members, I have nothing new on the union
contract at this time. The union negotiation committee wants to meet one more time.
They found a discrepancy in the contract. They want to meet one more time. Any
comments on that?
Anderson: Is that regarding the issue that we talked about yesterday?
(Inaudible)
2. TRANSFER OF PROPERTY.
Bowers: The next item is the transfer and sale of the property at 716 N. Meridian Road
from Meridian Rural Fire Protection District to the City of Meridian. I believe you have
the agreement of transfer of real property in your box and probably have a resolution
probably in front of you also. This is the agreement the City and the Rural has come
together. Both attorneys have worked very hard back and forth to get the wording right
that each one of them wanted and for the $90,000 from the City of Meridian to the
Meridian Rural Fire Protection District. Also it was put in the Valley News. Will got it in
for two weeks. So it was advertised for two weeks.
interoffice
M E M O R A N D U M
To: Mayor Robert D. Come and Council
From: Wm. F. Gigray, III
Subject: LESSOR'S ESTOPPEL CERTIFICATE
Date: September 7, 1999
Dear Mayor Corrie and Council:
S E P - ~ 1999
Please find attached, with this memo, a copy of a fax transmission,
including a letter from John Insinger, attorney for Cherry Lane Recreation, Inc., and a
proposed Lessor's Estoppel Certificate. I do not recommend the City execute the
"Lessor's Estoppel Certificate" for the following reasons:
1. There is no legal obligation to do so; and
2. The proposed Certificate can only prevent the City from malting
a legal claim it might otherwise have up to the date of execution;
and
3. If the Lessee is giving any security in the Lease Agreement to any
lender this could be an invalid assignment of the Lessee's interest
in, and to, the Lease without the City's consent; and
4. On the other hand, the City could provide, as a courtesy, a
statement of the present circumstances of the Lease and of the
City's intentions relative thereto as an aid to the situation. I
have therefor prepared such a Statement which is enclosed for
your consideration.
ms~Z:\Worlc\M\Meridian 15360M\CherrvLane Land Exchange\MavorCouncilEstopCert090799.Mem
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Fisch, Gass ~ Insinger
JAbtES E. RTSCH 407 WEST JEFFERSON STREET •~ Y~Ol'~1~
DAVID D. GOSS BOISE, IDAHO 83702 (2U8) 345-9974
~. Jviiii ii~.C.l: ~~vU:~
~'• JOHN THIEL mrT TT . t7
i r.L~r ~~
~.arrxEvv J. cusTa-vi;L ~ (ZUS) 345-9982
FACSIMILE C~~K SIiEE 1'
Page 1 of : 4
Date: 9 / 3 / 9 9
Please deliver the faIIowing pQ~;
To: William F. Gigray III
466-4405
From: R. John Insinger
Re: City of Meridian & Cherry Lane Recreation
C4NFIDENTIALIT~' NOTICE: This rn~tssage is jor the c~odusive use of the individfral or entity
w :'.TS~ ii .'.$ ~•~~•PM°~,,..a .~w~ io .vs~~ir~o ~h~~~ ~f yn~i s~ ~r~f1 /~~ n~a jai ~r ~w i~w~~ ,rw nr .~ar ~1
of the addrrsa~e,e responsible for deliverrseg it to ,the" add~+esstt, please da not read use, diarlase, copy
or dista'ibute this message and do not take any action in nuance upon it. If you have recrived
thus message u ernvr, please notify us immediately by telephone (caUts!) to arrange far iLs return.
We do not iat~end by waive any attarnry/diem or work prodifd piivilegt by tltt transmission of this
message.
Commet:ts:
Original documents will:
(~! Follow by regular mail.
() Follow by Federal Faprexs.
() Be hard delivered.
() Not be sent:
ljyou have problems receiving any pages, please calf the about number and speak to
Melanie 7lrankyou.
L.:a v. ..C~3
RISCM. DOSS 6i INSINGER
JAM C, t, o1~CM
D~viD O. 6099 X07 WEST JfccE RSON STgEET
s, Jp MN ~H3inG EP
w. ,~pHN rNi6L 6015 E. IOAMO 93702
~+.~TTUEw r. pu 3rwE~
TELEPHONE
czoei a.s•ea7+
TeLae~x
12091 3+5.0982
September 3, 1999
V7A FAX: 466-d405 AND FIRST CLASS MAIL
Mr. William F. Gigray III
WHITE, PETERSON, PRUSS,
MORROW 8t GIGRAY
P.O. Box 247
Nampa, Idaho 83653 -
RE: City of Meridian and Cherry Lane Recreation, Inc.
Conditional Use Permit No. 99-009
Dear Bill:
In the interest of time my client has been able to modify original Item Nos. 3, 4 and 7 in the Lessor's
Estoppel Certificate we forwarded you earlier. Enclosed for your review please find a revised version
of the Estoppel Certificate, which modifies and consolidates the original Items 3 and 4, and
substantially shortens the original Item No. 7, which is now numbered 6.
I would appreciate your reviewing this at you earliest convenience, in hopes that it can be presented
to the City Council next Tuesday for approval and signature. Thank you for your assistance in this
r?oArd.
Very Truly Yours,
This letter is being seat b3' desktop facsimile
And it therefore does not contain an original
Signature.
R. JOI-IN INSINGER
R3I:min
Enclosure
cc: Idaho Independent Bank
Cherry Lane Recreation
LESSOR'S ESTOPPEL CERTIFICATE
The City of Meridian, a municipal corporation of the State of Idaho, the Lessor under that
certain Agreement ofLease dazed October 30, 1978 (hereafter the "Lease"), by and between the City
of Meridian as the Lessor (hereafter "Lessor") and Cherry Lane Recreation, Inc., an Idaho
corporation as Lessee (hereafter "Lessee"), which Lease concerns the real property (the "Property")
which is described and set forth on Exhibit A attached hereto and incorporated herein, hereby certifies
all the following:
1. The October 30, 1978 Lease is in full force and effect, with no subsequent amendments
or modifications thereto and remains fully enforceable; and has been amended in effect by the
addition of the second nine (9) golf holes (which now total eighteen (18) holes on the Property) by
Lessee with Lessor's consent and approval. All the real property associated with the said second nine
(9) holes has been made and is a part of the Property subject of the Lease as originally executed. As
so arn_ended by the additional nine holes property, the Lease remains fully enforceable and has not
been otherwise amended or modified.
2. All the Property subject of the Lease upon which all eighteen (18) golf holes and the
related golf course facility operated by Lessee has been duly annexed into the City of Meridian. A
complete legal description of the Property subiect of the Lease is attached hereto and incoroorated
herein by reference.
3. The Lessee is not in default, and as of this date is current in all its financial obligations ~ j~f
under said Lease, and Lessor has not made, and does not now make any claim that Lessee is in ~` "
default.
4. The Lessee is exclusively entitled to all the rights and subject to all obligations ofthe ~~
Lessee under the Lease, consistent with all terms and conditions therein. An_y and all agreements with.
r1~ ~ Pacific or arty ocher person or entity which might otherwise impact or impair Lessee's interest in
the Lease or the property sub}ect thereof have been terminated, no person or entity other than Lessee
has rights or ability to secure or obtain any title or interest in the Lease or the Property except with
Lessee's consent, which shalt be at Lessee's sole discretion.
5. Lessor has not transferred, assigned or pledged its interest as landlord in the said Lease,
and is the sole person or entity holding the Lessor's interest in the Lease and the subject real property;
6. Lessor presently makes no claims against Lessee for any indemnification.
7. Lessee and its officers, directors, agents, attorneys, insurers or lenders shall have the right
to rely on all matters certified to herein as of this date, and Lessor shall be estopped from
subsequently asserting any contrary position except as to events which may occur hereafter.
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Dated ibis day of , 1999.
Attest:
City Clerk
STATE OF IDAHO )
:ss
County of Ada )
ROBERT CORRIE, Mayor
On this day of , in the year 1999, before personally appeared
Robert Cowie, known or identified to me to be the Mayor of the City of Meridian that executed the
said instrument, and acknowledged to me that such he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public for Idaho
Resid•;ng at
My Commission Expires:
CITY OF MERIDIAN
by
interoffice
M E M O R A N D U M
To: John Insinaer (via facsimile)
cc: Mayor Robert D. Come and Council
From: Wm. F. Gigray, III
Subject: LESSOR'S STATEMENT CONCERNING AGREEMENT
Date: September 7, 1999
John:
Please find attached, to this memo, a copy of my memo to the Mayor
and City Council, and a copy of the Lessor's Statement.
Please note that I have reviewed your requested fax, dated September 3,
1999, and enclosed Estoppel Certificate regarding this matter. I am not comfortable
recommending to the Council that the same be executed. In order to assist in this
matter, I have prepared a "Lessor's Statement Concerning Agreement of Lease Dated
October 30, 1978," which is enclosed along with your request with my
recommendations. This matter will have to be placed on the agenda by the Mavor.
Hopefully this will resolve the situation.
msg/Z:\Worlc\MWleridian I5360Nt\ChemLane Land Exchange~lnsinger090799 Mem
LESSOR'S STATEMENT CONCERNING AGREEMENT
OF LE.=~SE DATED OCTOBER 30, 1975
The Cite or V(eridian does hereby state the foilo~~~in` concerning that Ce:-tain
.~gree,nent or Lease dated the 3rd day or October. 1978, by and bet~yeen the City of
,Meridian, as Lessor, and Cherry Lane Recreation, Inc., an Idaho Corporation. as
Lessee. (hereinafter referred to as Lease.
1. The Lease is in full force and effect. ~yith no subsequent amendments or
modifications other than the addition of a second nine (9) holes of golf. which are
now subject to the terms and conditions or the Lease.
_'. The real propem~, which is subject to the Lease, has been duly annexed
into the City of Meridian.
~. The Leal description of the real property, which is subject to the Lease,
is attached to this statement marked Exhibit ":~", and by this reference incorporated
herein.
-?. Che_^v Lane Recreation, Inc.. an Idaho Corporation. (Lessee), is
exclusively entitled to all the rights, duties and responsibilities of the Lessee under
the terms and conditions or the Lease. and the provisions or the Lease reouire that
said rights. duties and responsibilities may only be so izeid by Cherry Lane
Recreation. Inc. «~ithout the «7itten permission of the City of itileridian to do
~ther«•ise.
/~
I -
~ Tine City of ~(eridian flan not Lransterred. assigned or pied7ed its
~n~eres~ in. and Lo. Lhe Lea~z v1- Cne real UroUerty. ~•~'hic;l ~s su~ieL:L Lc~ Lire I_e::~e oti~er
L[lall Crle Lease :CSelt.
c~. Cherr.' Lane Recreation. Inc.. an Idaho COCUOraL1UIl. ~Lessee~, is current
~n its performance or Lhe rent payment pro~~isions of the Lease and the CIL~' has not
caused Lo be served. nor does it hay-e am' present plans to cause Lo be se:-~~ea. LLUOn
Cilerr-~• Lane Recreation. Inc. any notice of defauiL of Lhe terms of Lile Luse.
including any present Maim of indemnification as tar as Lhe City of Meridian is
presently aware.
,~. Tilis statement is be~na issued b~ reason of the Lessees !-eouesL for a
Lessor s ~stouUe= Ce= ~iticaLe. «~hich by Lhe terms or Lne Luse the Lessor is not
obligated Lo execute. :~.s a courtesy to Lhe Lessee this state:lzent is bein~~ issued under
Lile authority of Lne City Council action on Lhe ~ Lh day or September. 1999.
Dated tills ~ Cil aa~' Ot Sc-'ULelilber, 1999.
B~•:
flavor
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By:
L1L'~' ~ler~\
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nav:-g ~ ceac=a. ang:e o: =~o°i0'_ ~ :ac_us oc _-x.00 ----, ~ua;e..
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:o a ?oia: oc andRg o_ c--se; .
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c l :-J e ;
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3 e-• ~ -
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having a c_.._r~_ an%1-`.10- -`...1 _°__ besriig ;for-- _~ -. '_~' .as:
C ~ Ju .2e _ anC c _0:15 .. ..- _ -
:O.a Gel^: G: enG1n5 0: CIIr':ei
:hence :ior:i ~~°00'OG' ;:es: 'e,..~ :_-- .o a po=.._,
' Ues: .ov.00 - :o z point;
_iencs ;fort., 07°G~ OG" ----
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::fence No-_- w°3G'OG' yes: __ .=5 ---- -o a pe_..:,
.:iencs for:i ~~°00'00' mss: °0.00 .___ cG a poi...,
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chenc_ ,.or:.. .Z°00'OG"~as: '_°C. 00 :~__ :o a •pcin:;
:aenc_ ;:ar_., .'°~G'00" aes: _i0.00 ____ :o a pot.. ,
:;lane Sou:.. 00"°00'OC' ties: ?c,.00 ---: co z poi... ~r.._-:g :he
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aor::ieas: corae_ of :he SW iii of ::1e safe Sec:lon ,
:hence .7ar_.. i.°'G'OC' .:es:_SC.00 ~2e: :G a pc:c:,
J
_.._..c_ ;:o-:.. 4G°OC'Gv" 'yes: ~u.00 gee- =o z ?oi.._~
tae..^.c_ Sou:.. ._°59 0_" ,lest 'C.00 .2e_ :o a po.--,
R
J-:~-- =N~~N~c=.=. IN`. ~o~ F..~.un wo.a • aow., ~a.no e>>es
nev_seG. .4p:__ 1~, _9JS
. "'. Area
age. ~ - C~e.--y :.tine Vi:la;e :_.aice n ~.iLL000L'Se s end ~oL'
Cou_ses i0 a_3
c:~ence Sou['~_`°00'00" (~es~ 0~.'_9 'ee_ :o a point on ~'ne sale
Ncr_he_iy bouncary of cne Y '_i'' o; :he S i/= a~ Sec_ior, 3;
;he^.ce ~ort^ 0°°'_5'Oo" rest '_5<.Si :eec along cae said Norcner~y
oouaca_y o: ~.._ \ _ _ o. one S i /? o: Section ~ .o Che ?oiac o= Segi.^^.-
.._:g, coa?rising iJ.75 aces, Wore o: less.
?re?tired by:
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Gary ... ~denspie? , L.S.