CZC_15-010_Roaring_Springs_BBQ_and_CabanasCERTIFICATE OF ZONING COMPLIANCE
REPORT
DATE: February 6, 2015
TO: Patrick Morandi
CjWEIDIZ
FROM: C.Jay Coles, Assistant City Planner
SUBJECT: Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-009
OWNER: Bowden Properties
DESCRIPTION OF APPLICANT'S REQUEST
The applicant, Patrick Morandi, requests Certificate of Zoning Compliance (CZC) and Design
Review (DES) approval to add six (6) cabanas, a barbeque area, and remodel a bathroom. The
cabanas will be 600 square feet and the barbeque area and bathroom will be 689 total square
feet.
The site is located at 400 W. Overland Road.
DECISION
The applicant's request for Certificate of Zoning Compliance and Design Review is approved
with the conditions listed in this report.
Note: This is not a building permit. Please contact Building Services at (208) 887-2211 to
verify if you need a building permit and/or inspection. Ifyou do need a building permit, you
must complete that process before you commence the use or construction. Please contact
Building Services for additional details about building permits and inspections.
Process Conditions of Approval
1. No signs are approved with this application. Prior to installing any signs on the property,
the applicant shall submit a sign permit application consistent with the standards in
UDC Chapter 3 Article D and receive approval for such signs.
2. The applicant shall complete all improvements related to public life, safety, and health
as set forth in UDC 11 -5C -3B. A surety agreement maybe accepted for other
improvements in accord with UDC 11-5C-3 C.
3. The site/landscape plan prepared by Larson Architects on January 30, 2015, labeled SP -
1.1, is approved as shown in Exhibit B.
4. The approved site plan, landscape plan and/or elevations may not be altered without
prior written approval of the City of Meridian Planning Division.
5. The elevations prepared by Larson Architects on January 23, 2015 and January 30,
2015, labeled A-1 and A-5, are approved as shown in Exhibit C.
6. The applicant shall pay any applicable impact fees prior to the issuance of a building
permit.
7. If any changes must be made to the site plan to accommodate ACHD requirements, the
applicant shall submit a new site plan to the City of Meridian Planning Division for
Conditions Document
Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-009
approval prior to issuance of the building permit.
8. The applicant shall complete all required improvements prior to issuance of a Certificate
of Occupancy. It is unlawful to use or occupy any building or structure until the
Building Official has issued a Certificate of Occupancy.
Ongoing Conditions of Approval
1. The applicant and/or assigns shall have the continuing obligation to provide irrigation
that meets the standards as set forth in UDC 11-313-6 and to install and maintain all
landscaping as set forth in UDC 11-313-5, UDC 11-313-13 and UDC 11-3B-14,
2. The applicant shall comply with the outdoor storage as an accessory use standards as set
forth in UDC 11-3A-14.
3. The project is subject to all current City of Meridian ordinances and previous conditions
of approval associated with this site (CUP -98-100 and applicable CZC approvals).
4. The issuance of this CZC does not release the applicant from any previous requirements
of the other permits issued for the site.
5. The applicant and/or property owner shall have an ongoing obligation to prune all trees
to a minimum height of six feet above the ground or sidewalk surface to afford greater
visibility of the area.
6. The applicant has a continuing obligation to comply with the outdoor lighting provisions
as set forth in UDC 11-3A-11.
7. The applicant and/or property owner shall have an ongoing obligation to maintain all
landscaping and constructed features within the clear vision triangle consistent with the
standards in UDC 11-3A-3.
8. The applicant and/or assigns shall have the continuing obligation to meet the specific
use standards for the existing outdoor recreation facility use as set forth in UDC 11-4-3-
2.
CITY COUNCIL REVIEW
The applicant or a party of record may request City Council review of a decision of the
Director. All requests for review shall be filed in writing with the Planning Division on or
before February 21, 2015, within fifteen (15) days after the written decision is issued, and
contain the information listed in UDC 11 -5A -6B.
If City Council review of the decision is not requested, the action of the Director represents a
final decision on a land use application. You have the right to request a regulatory taking
analysis under Idaho Code 67-8003.
EXPIRATION
Certificates of Zoning Compliance issued in conjunction with a proposed use shall expire if the
use has not commenced within one year of the date of issuance of the Certificate of Zoning
Compliance.
Certificates of Zoning Compliance issued in conjunction with construction or alteration of a
structure shall expire if the construction or alteration has not commenced within one year of the
date of issuance of the Certificate of Zoning Compliance.
In accord with the above provisions, the subject Certificate of Zoning Compliance is valid until
February 6, 2016.
Conditions Document 2 Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-009
EXHIBITS
A. Vicinity Map
B. Site/Landscape Plan (dated: January 30, 2015)
C. Elevations (dated: January 23, 2015 and January 30, 2015)
Conditions Document 3 Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-009
A. Vicinity Map
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Conditions Document 4 Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-009
B. Site/Landscape Plan (dated: January 30, 2015)
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Conditions Document 5 Roaring Springs BBQ & Cabanas - CZC-15-010 and DBS -15-009
C. Elevations (dated: January 23, 2015 and January
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Conditions Document 6 Roaring Springs BBQ & Cabanas - CZC-15-010 and DES -15-.009
LjQ�E IDIAN
Ftt3 01 P015 j
Planning Division
DEVELOPMENT REVIEW APPLICATION
STAFF USE ONLY:
Projectname: (Aq N*
File number(s): 152�010 - - - --
Assigned .Planner: C: Stk* (o Ie -S lated files:m�
of Review Requested (check all that
cessory Use
#MCAdministrative Design Review
❑ Alternative Compliance
❑ Annexation and Zoning
Certificate of Zoning Compliance
Comprehensive Plan Map Amendment
❑ Comprehensive Plan Text Amendment
❑ Conditional Use Permit
❑ Conditional Use Modification
Director/Commission (circle one)
❑ Development Agreement Modification
❑ Final Plat
❑ Final Plat Modification
❑ Preliminary Plat
❑ Private Street
❑ Property Boundary Adjustment
❑ Rezone
❑ Short Plat
❑ Time Extension:
Director/ Commission/Council (circle one)
❑ UDC Text Amendment
❑ Vacation:
Director/ Council (circle one)
❑ Variance
❑ Other
Applicant Information
Applicant name: p/'ct'IL(C X- 44dPLAA,0,,9 Phone: 156
Applicant address: Ida W , oIlt1 4&y.io &p Email: r,ck Lo I- a vt' h'+MS, Fowl
City: M 9P4a21AA/ state: L— Zip:
Applicant's interest in property: I(Own ❑ Rent ❑ Optioned ❑ Other
Owner name: ROALI A1d Sf'RIA,t'j S WAT1FX I °hi -ice
Owneraddress: 400 W. OI/L'I-UAA/17 KJi Email:
Phone:
City: /11,A&101 AooO State: I C2_ Zip: ?,?Coei C
Agent/Contact name (e.g., architect, engineer, developer, representative): GORNML L t9,$qKJ
Firm name: I_ANN AILC 1 McZ Phone:
Owner address: Z/D Af 'Sr Email:Gd (5,1 ,, )grsoft g4G4.4rc;,S, %rte
city: $dl S State: I A Zip:
Primary contact is: ❑ Applicant ❑ Owner VgenVContact
Subject Property Information
Location/street address: 4W W $T OVS)LLA-Al7 RI7 Township, range, section:
Assessor's parcel number(s): K+2 317 Z0_7 SO Total acreage: Zoning district:
Community Development . Planning Division ■ 33 E. Broadway Avenue, Ste. 102 Meridian, Idaho 83642
Phone: 208-884-5533 Fax: 208-888-6854 waw.meridiancityorg/plannine
4- (Rev. 06111/2014)
Project/subdivision name: _ IN tr.C_F_AJ
General description of proposed projectIrequest: A-00 (6) CASA.(AS . SAIL;" VE
Proposed zoning district(s): G•cj
Acres of each zone proposed: 116 C
Type of use proposed (check all that apply):
❑ Residential ❑ Office Arommercial ❑ Employment ❑ Industrial ❑ Other
Who will own & maintain the pressurized irrigation system in this development? It M i
Which irrigation district does this property lie within? AUE.410k Nl ANPIAO I N-iti gA-1?o,A�l
Primary irrigation source: Al M 7- Secondary: _M£Mbl AA1
Square footage of landscaped areas to be irrigated (if primary or secondary point of connection is City water):
SAM £ • NO a y'4,Ngas
Residential Project Summary (if applicable) —MAr a
Number of residential units: Number of building lots:
Number of common lots:
Number of other lots:
Proposed number of dwelling units (for multi -family developments only):
1 bedroom:
2-3 bedrooms:
Minimum square footage of structure (excl. garage):
Minimum property size (s.f):
Gross density (Per UDC ll -1A-1);
Acreage of qualified open space: _
4 or more bedrooms:
Maximum building height: _
Average property size (s.f):
Net density (Per UDC 11-1A-1):
Percentage of qualified open space:
Type and calculations of qualified open space provided in acres (Per UDC 11 -3G -3B):
Amenities provided with this development (if applicable): _
Type of dwelling(s) proposed: ❑ Single-family Detached
❑ Duplex ❑ Multi -family ❑ Vertically Integrated
Non-residential Project Summary (if applicable)
❑ Single-family Attached ❑ Townhouse
❑ Other
Number of building lots: -- Common lots: Other lots:
�aISARMS
Gross floor area proposed: logo Sr
Existing (if applicable): 3 %L' $MF1'R om S
Hours of operation (days and hours): 5 E�jd&4t • 9 ^ 10 PM Building height: Irl-
Total
rl-Total number of parking spaces provided: [p 03 Number of compact spaces provided:
Authorization
Print applicant name:
Applicant signature:
Date:
Community Development. Planning Division ■ 33 E. Broadway Avenue, Ste. 102 Meridian, Idaho 83642
Phone: 208-884-5533 Fax: 208-888-6854 www.meridiancitv.ore/olannine
-2- (Rev. 0 611 212 0 1 4)
January 29, 2015
CZC Narrative
Roaring Springs Waterpark
Cabanas, Barbeque, Bathroom Remodel & Canopy Relocations
Due to public demands Roaring Springs is proposing to upgrade the existing facility to accommodate this
demand with new amenities.
Cabanas
Six new cabanas are proposed. These will be identical to the existing ones and will be located near the
food service area. The configuration will be three bays back to back. Lounge chair orientation will be
towards the Lazy River and the main Pool areas — north and south
The cabanas will be of steel construction with tiled walls and a copper color metal roof. Tiled accent
murals will be installed is the most visible areas.
The concrete around the cabanas will be colored.
Barbeque
A residential type BBQ will be added to the food service. The BBQ area will have surrounding counters
and food refrigeration. The counters will be white Ceaserstone and the walls below the counter will be
glazed CMU block. The hip roof above the BBQ will be metal to match the existing food service building.
We have met with Central District Health and have preliminary approval for the layout and equipment
requirements.
Bathrooms
There are bathroom facilities scattered around the waterpark. This particular location sees a higher
demand during peak hours and a line will form at the Women's restroom. To mitigate this situation,
four additional women's toilets will be added, one Men's toilet and three Men's urinals. One of the
Women's toilets will be designated as a kid's toilet.
The existing bathroom will be remodeled to match the addition.
A family restroom will be added. The family restroom will have a handicap toilet stall, a kid's toilet and a
high -low sink. Some visitors have special needs and a separate restroom will serve as the most
accommodating.
Miscellaneous
The east side fence off the food service building will be modified to include an access gate.
The Sno-cone shack will be moved to the east about 30'.
The fabric covered metal framed lounge canopies by the tide pool will be moved to the west about 30.
January 29, 2015
Design Review Narrative
Roaring Springs Waterpark
Cabanas, Barbeque, Bathroom Remodel & Canopy Relocations
Cabanas
Six new cabanas are proposed. These will be identical to the existing ones and will be located near the
food service area. The configuration will be three bays back to back. The cabanas will be of painted
steel construction with tiled walls and a copper color metal roof. Tiled accent murals will be installed is
the most visible areas.
The concrete around the cabanas will be colored- same as the existing cabanas. There will be 5'
walkway around the cabanas which will be colored concrete.
Barbeque
A residential type BBQ will be added to the food service. The BBQ area will have surrounding counters
and food refrigeration. The counters will be white Ceaserstone and the walls below the counter will be
pastel colored glazed CMU block. The hip roof above the BBQ will be blue standing seam metal to
match the existing food service building. The new hip roof will extend south and connect to the existing
roof.
Bathrooms
The bathroom addition will be charcoal colored split faced CMU to match the existing walls.
A blue standing seam fascia band will wrap the top of the CMU wall. The fascia vertical height will match
the existing food service fascia band.
The existing roof top exhaust fan will be modified to accommodate the additional area.
The bathrooms see seasonal use; they are not heated and will use the existing swamp cooler for cooling.
The family restroom will be charcoal colored split faced CMU block.
Miscellaneous
The east side fence off the food service building will be modified to include a wood access gate.
The gate will match the existing fence.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Bank of America, N.A.
Waltham Credit Services
ADA COUNTY RECORDER J. DAVID NAVARRO
-
BOISE IDAHO 05112/08 01;35 PM AMOUNT 63.00 21
Attn: Notice Desk
DEPUTY Bonnie Oberbilll0
MA6-535-02-09
RECORDED -REQUEST OF
1075 Main St.
AIIIenCe Tllle 108055636
Waltham, MA 02451
5cooT {j'7%S ff Space above this line for Recorder's Use
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This Deed of Trust Is made as of May 12, 2008, by BowDen Properties, LLC, as grantor
("Grantor"), to Alliance Title & Escrow Corp., as trustee ("Trustee"), for the benefit of Bank of America,
N.A., a national banking association, as beneficiary ("Beneficiary").
1. GRANT INTRUST.
1.1 The Property. For the purpose of securing payment and performance of the Secured
Obligations defined in Section 2 below, Grantor hereby irrevocably and unconditionally grants, conveys,
transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of
entry and possession, all estate, right, title and interest which Grantor now has or may later acquire in the
following property (all or any part of such property, or any interest in all or any part of it, together with the
Personalty (as hereinafter defined) being hereinafter collectively referred to as the "Property"):
(a) The real property located in the County of Ada, Slate of Idaho, as described
In Exhibit A hereto (the "Land");
(b) All buildings, structures, improvements, fixtures and appurtenances now or
hereafter placed on the Land, and all apparatus and equipment now or hereafter attached in any
manner to the Land or any building on the Land, including all pumping plants, engines, pipes,
ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment (collectively, the "Improvements");
(c) All easements and rights of way appurtenant to the Land; all crops growing or
to be grown on the Land (Including all such crops following severance from the Land); all standing
timber upon the Land (including all such timber following severance from the Land); all
development rights or credits and air rights; all water and water rights (whether riparian,
appropriative, or otherwise, and whether or not appurtenant to the Land) and shares of stock
pertaining to such water or water rights, ownership of which affect the Land; all minerals, oil, gas,
and other hydrocarbon substances and rights thereto in, on, under, or upon the Land;
(d) All existing and future leases, subleases, subtenancies, licenses, occupancy
agreements and concessions relating to the use and enjoyment of all or any part of the Land or
the Improvements, and any and all guaranties and other agreements relating to or made in
connection with any of the foregoing;
Idaho Deed of Trust
(e) All proceeds, including all claims to and demands for them, of the voluntary
00106
I f
or involuntary conversion of any of the Land, Improvements, or the other property described
above into cash or liquidated claims, including proceeds of all present and future fire, hazard or
! casualty insurance policies, whether or not such policies are required by Beneficiary, and all
condemnation awards or payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with any condemnation or eminent
�'D domain proceeding, and all causes of action and their proceeds for any breach of warranty,
misrepresentation, damage or injury to, or defect in, the Land, Improvements, or the other
property described above or any part of them; and
(f) All proceeds of, additions and accretions to, substitutions and replacements
for, and changes in any of the property described above.
The Property is either located within the limits of an incorporated city or village or does not exceed forty
(40) acres in size.
1.2 Fixture Filing. This Deed of Trust constitutes a financing statement filed as a fixture
filing under the Idaho Uniform Commercial Code, as amended or recodified from time to time, covering
any Property which now Is or later may become a fixture attached to the Land or any building located
thereon.
2. THE SECURED OBLIGATIONS.
2.1 Purpose of Securing. Grantor makes the grant, conveyance, transfer and
assignment set forth in Section 1, makes the irrevocable and absolute assignment set forth in Section 3,
and grants the security interest set forth in Section 4, all for the purpose of securing the following
obligations (the "Secured Obligations") in any order of priority that Beneficiary may choose:
(a) Payment of all obligations of BowDen Properties, LLC ("Obligor") to
Beneficiary arising under the following instrument(s) or agreement(s) (collectively, the "Debt
Instrument"):
(1) A certain Loan Agreement dated as of May 12, 2008, between
Obligor and Beneficiary which provides for extensions of credit In a principal amount not
exceeding Three Million Dollars and No Cents ($3,000,000.00).
This Deed of Trust also secures payment of all obligations of Obligor under the Debt Instrument
which arise after the Debt Instrument is extended, renewed, modified or amended pursuant to
any written agreement between Obligor and Beneficiary, and all obligations of Obligor under any
successor agreement or instrument which restates and supersedes the Debt Instrument in Its
entirely;
(b) Payment and performance of all obligations of Grantor under this Deed of
Trust;
(c) Payment and performance of all obligations of Obligor under any Swap
Contract with respect to which there is a writing evidencing the partles' agreement that said Swap
Contract shall be secured by this Deed of Trust. "Swap Contract" means any document,
instrument or agreement with Beneficiary, now existing or entered into in the future, relating to an
interest rate swap transaction, forward rate transaction, Interest rale cap, floor or collar
transaction, any similar transaction, any option to enter into any of the foregoing, and any
combination of the foregoing, which agreement may be oral or In writing, including, without
!imitation, any master agreement relating to or governing any or all of the foregoing and any
related schedule or confirmation, each as amended from time to time; and
(d) Payment and performance of all future advances and other obligations that
Grantor (or any successor in Interest to Grantor) or Obligor (if different from Grantor) may agree
Idaho Deed of Trust -2- Oeloe
O
to pay and/or perform (whether as principal, surety or guarantor) to or for the benefit of
Beneficiary, when a writing signed by Grantor (or any successor in interest to Grantor) evidences
said parties' agreement that such advance or obligation be secured by this Deed of Trust.
This Deed of Trust does not secure any obligation which expressly states that it is unsecured, whether
<� contained In the foregoing Debt Instrument or in any other document, agreement or instrument.
2.2 Terms of Secured Oblloations. All persons who may have or acquire an interest In
all or any part of the Property will be considered to have notice of, and will be bound by, the terms of the
Debt Instrument described in Paragraph 2.1(a) and each other agreement or Instrument made or entered
into In connection with each of the Secured Obligations. These terms include any provisions in the Debt
Instrument which permit borrowing, repayment and reborrowing, or which provide that the Interest rate on
one or more of the Secured Obligations may vary from time to time.,
3. ASSIGNMENT OF RENTS.
3.1 Assignment. Grantor hereby irrevocably, absolutely, presently and unconditionally
assigns to Beneficiary all rents, royalties, issues, profits, revenue, income and proceeds of the Property,
whether now due, past due or to become due, including all prepaid rents and security deposits
(collectively, the "Rents"), and confers upon Beneficiary the right to collect such Rents with or without
taking possession of the Property. In the event that anyone establishes and exercises any right to
develop, bore for or mine for any water, gas, oil or mineral on or under the surface of the Property, any
sums that may become due and payable to Grantor as bonus or royalty payments, and any damages or
other compensation payable to Grantor in connection with the exercise of any such rights, shall also be
considered Rents assigned under this Paragraph. THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN
ASSIGNMENT FOR SECURITY ONLY.
3.2 Grant of License. Notwithstanding the provisions of Paragraph 3.1, Beneficiary
hereby confers upon Grantor a license ("License") to collect and retain the Rents as they become due
and payable, so long as no Event of Default, as defined In Paragraph 13.2, shall exist and be continuing. If
an Event of Default has occurred and is continuing, Beneficiary shall have the right, which it may choose
to exercise in Its sole discretion, to terminate this License without notice to or demand upon Grantor, and
without regard to the adequacy of the security for the Secured Obligations.
O4. GRANT OF SECURITY INTEREST.
4.1 Grant of Security Interest. Grantor grants to Beneficiary a security interest in, and
pledges and assigns to Beneficiary, all of Grantor's right, title and interest now or hereafter acquired in
and to all of the following described personal property (collectively, the "Personalty"):
(a) All tangible personal property of every kind and description, whether stored
on the Land or elsewhere, Including, without limitation, all goods, materials, supplies, tools,
books, records, chattels, furniture, fixtures, equipment, and machinery, and which In all cases is
(I) used or useful or acquired in connection with any construction undertaken on the Land or the
maintenance of the Land and the Improvements, or (Ii) affixed or Installed, or to be affixed or
Installed, in any manner on the Land or the Improvements;
(b) All crops growing or to be grown on the Land (including all such crops
following severance from the Land); all standing timber upon the Land (including all such timber
following severance from the Land); all water and water rights (whether riparian, approprlative, or
otherwise, and whether or not appurtenant to the Land) and shares of stock pertaining to such
water or water rights, ownership of which affect the Land; and all architectural and engineering
plans, specifications and drawings, and as -built drawings which arise from or relate to the Land or
the Improvements;
Idaho Deed of Trust -3- 06/06
(c) All general intangibles and rights relating to the Property, Including, without
limitation, all permits, licenses and claims to or demands for the voluntary or involuntary
conversion of any of the Land, Improvements, or other Property into cash or liquidated claims,
proceeds of all present and future fire, hazard or casually Insurance policies, whether or not such
policies are required by Beneficiary, and all condemnation awards or payments now or later to be
made by any public body or decree by any court of competent jurisdiction for any taking or in
connection with any condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any breach of warranty, misrepresentation, damage or Injury to, or defect In,
the Land, Improvements, or other Property or any part of them;
(d) All deposit accounts from which Grantormay from time to time authorize
Beneficiary to debit payments due on the Secured Obligations; all rights and Interests under all
Swap Contracts, including all rights to the payment of money from Beneficiary under any such
Swap Contracts; and all accounts, deposit accounts, and general intangibles, including payment
intangibles, described in any such Swap Contracts;
(e) All substitutions, replacements, additions, accessions and proceeds for or to
any of the foregoing, and all books, records and files relating to any of the foregoing, including,
without limitation, computer readable memory and data and any computer software or hardware
reasonably necessary to access and process such memory and data.
5. RIGHTS AND DUTIES OF THE PARTIES,
5.1 Representations and Warranties. Grantor represents and warrants that Grantor
lawfully possesses and holds fee simple title to all of the Land and the Improvements, unless Grantor's
present Interest in the Land and the Improvements is described in Exhibit A as a leasehold interest, in
which case Grantor lawfully possesses and holds a leasehold Interest in the Land and the Improvements
as stated in Exhibit A.
5.2 Taxes Assessments Liens and Encumbrances. Grantor shall pay prior to
delinquency all taxes, levies, charges and assessments, including assessments on appurtenant water
stock, imposed by any public or quasi -public authority or utility company which are (or if not paid, may
become) a lien on all or part of the Property or any interest in It, or which may cause any decrease in the
/ value of the Property or any part of it. Grantor shall immediately discharge any lien on the Property which
UBeneficiary has not consented to in writing, and shall also pay when due each obligation secured by or
reducible to a lien, charge or encumbrance which now or hereafter encumbers or appears to encumber all
or part of the Property, whether the lien, charge or encumbrance is or would be senior or subordinate to
this Deed of Trust.
5.3 Damages and Insurance and Condemnation Proceeds.
(a) Grantor hereby absolutely and irrevocably assigns to Beneficiary, and
authorizes the payor to pay to Beneficiary, the following claims, causes of action, awards,
payments and rights to payment (collectively, the "Claims"):
(1) all awards of damages and all other compensation payable directly or
indirectly because of a condemnation, proposed condemnation or taking for public or
private use which affects all or part of the Properly or any Interest In It;
(ii) all other awards, claims and causes of action, arising out of any
breach of warranty or misrepresentation affecting all or any part of the Property, or for
damage or injury to, or defect In, or decrease in value of all or part of the Property or any
interest in It
(III) all proceeds of any insurance policies payable because of loss
sustained to all or part of the Property, whether or not such insurance policies are
Idaho Deed of Trust A. 06/06
required by Beneficiary; and
(iv) all Interest which may accrue on any of the foregoing.
(b) Grantor shall immediately notify Beneficiary in writing if:
(i) any damage occurs or any Injury or loss Is sustained to all or part of
the Property, or any action or proceeding relating to any such damage, injury or loss Is
commenced; or
(ti) any offer is made, or any action or proceeding is commenced, which
relates to any actual or proposed condemnation or laking of all or part of the Property.
If Beneficiary chooses to do so, It may In its own name appear In or prosecute any action or
proceeding to enforce any cause of action based on breach of warranty or misrepresentation, or
for damage or Injury to, defect in, or decrease In value of all or part of the Property, and it may
make any compromise or settlement of the action or proceeding. Beneficiary, if It so chooses,
may participate in any action or proceeding relating to condemnation or taking of all or part of the
Property, and may join Grantor in adjusting any loss covered by insurance.
(c) All proceeds of the Claims assigned to Beneficiary under this Paragraph shall
be paid to Beneficiary. In each Instance, Beneficiary shall apply those proceeds first toward
reimbursement of all of Beneficiary's costs and expenses of recovering the proceeds, including
attorneys' fees. Grantor further authorizes Beneficiary, at Beneficiary's option and In
Beneficiary's sole discretion, and regardless of whether there is any impairment of the Property,
(1) to apply the balance of such proceeds, or any portion of them, to pay or prepay some or all of
the Secured Obligations in such order or proportion as Beneficiary may determine, or (ii) to hold
the balance of such proceeds, or any portion of them, in an Interest-bearing account to be used
for the cost of reconstruction, repair or alteration of the Property, or (iii) to release the balance of
such proceeds, or any portion of them, to Grantor. If any proceeds are released to Grantor,
neither Beneficiary nor Trustee shall be obligated to see to, approve or supervise the proper
application of such proceeds. If the proceeds are held by Beneficiary to be used to reimburse
Grantor for the costs of restoration and repair of the Property, the Property shall be restored to
the equivalent of Its original condition, or such other condition as Beneficiary may approve in
writing. Beneficiary may, at Beneficiary's option, condition disbursement of the proceeds on
Beneficiary's approval of such plans and specifications prepared by an architect satisfactory to
Beneficiary, contractor's cost estimates, architect's certificates, waivers of liens, sworn statements
of mechanics and materlalmen, and such other evidence of costs, percentage of completion of
construction, application of payments, and satisfaction of liens as Beneficiary may reasonably
require,
5.4 Insurance. Grantor shall provide and maintain in force at all limes all risk property
damage insurance (including without limitation windstorm coverage, and hurricane coverage as
applicable) on the Property and such other type of insurance on the Property as may be required by
Beneficiary in its reasonable judgment. At Beneficiary's request, Grantor shall provide Beneficiary with a
counterpart original of any policy, together with a certificate of insurance setting forth the coverage, the
limits of liability, the carrier, the policy number and the expiration date. Each such policy of Insurance
shall be In an amount, for a term, and in form and content satisfactory to Beneficiary, and shall be written
only by companies approved by Beneficiary. In addition, each policy of hazard insurance shall include a
Form 4388FU or equivalent loss payable endorsement in favor of Beneficiary.
5.5 Maintenance and Preservation of Prooerty.
(a) Grantor shall keep the Property in good condition and repair and shall not
commit or allow waste of the Property. Grantor shall not remove or demolish the Property or any
part of it, or alter, restore or add to the Property, or Initiate or allow any change in any zoning or
Idaho Deed of Trust -5- 05!05
P
other land use classification which affects the Property or any part of it, except with Beneficiary's
express prior written consent in each instance.
(b) If all or part of the Property becomes damaged or destroyed, Grantor shall
promptly and completely repair and/or restore the Property in a good and workmanlike manner in
accordance with sound building practices, regardless of whether or not Beneficiary agrees to
disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction
under Paragraph 5.3.
(c) Grantor shall not commit or allow any act upon or use of the Property which
would violate any applicable law or order of any governmental authority, whether now existing or
later to be enacted and whether foreseen or unforeseen, or any public or private covenant,
condition, restriction or equitable servitude affecting the Property, Grantor shall not bring or keep
any article on the Property or cause or allow any condition to exist on it, if that could invalidate or
would be prohibited by any Insurance coverage required to be maintained by Grantor on the
Property or any part of it under this Deed of Trust.
(d) If Grantor's interest in the Property is a leasehold interest, Grantor shall
observe and perform all obligations of Grantor under any lease or leases and shall refrain from
taking any actions prohibited by any lease or leases. Grantor shall preserve and protect the
leasehold estate and its value.
. (e) If the Property is a condominium, Grantor shall observe and perform all
obligations of Grantor under the recorded covenants, conditions, and restrictions applicable to the
Property, and under the bylaws of the condominium association and any rules or regulations
thereunder. As appropriate, the requirements under this Deed of Trust relating to maintenance of
Insurance and the preservation and maintenance of the Property may be performed by the
condominium association on behalf of Grantor.
(f) If the Property is agricultural, Grantor shall farm the Property in a good and
husbandlike manner. Grantor shall keep all trees, vines and crops on the Property properly
cultivated, irrigated, fertilized, sprayed and fumigated, and shall replace all dead or unproductive
trees or vines with new ones. Grantor shall prepare for harvest, harvest, remove and sell any
crops growing on the Property. Grantor shall keep all buildings, fences, ditches, canals, wells
and other farming Improvements on the Property In first class condition, order and repair.
(g) Grantor shall perform all other acts which from the character or use of the
Property may be reasonably necessary to maintain and preserve its value.
5.6 Releases. Extensions. Modifications and Additional Security. Without affecting the
personal liability of any person, including Grantor (or Obligor, if different from Grantor), for the payment of
the Secured Obligations or the lien of this Deed of Trust on the remainder of the Property for the unpaid
amount of the Secured Obligations, Beneficiary and Trustee are respectively empowered as follows:
(a) Beneficiary may from time to time and without notice:
(1) release any person liable for payment of any Secured Obligation;
(ii) extend the time for payment, or otherwise alter the terms of payment,
of any Secured Obligation;
(iii) accept additional real or personal property of any kind as security for
any Secured Obligation, whether evidenced by deeds of trust, mortgages, security
agreements or any other instruments of security; or
(Iv) alter, substitute or release any property securing the Secured
Idaho Dead of Trust •6. 06106
Obligations.
(b) Trustee may perform any of the following acts when requested to do so by
Beneficiary in writing:
i
of it; (i) consent to the making of any plat or map of the Properly or any part
(If) join in granting any easement or creating any restriction affecting the
Property;
(iii) join in any subordination or other agreement affecting this Deed of
Trust or the lien of it; or
(Iv) reconvey the Property or any part of it without any warranty.
5.7 Reconveyance. When all of the Secured Obligations have been paid in full and no
further commitment to extend credit continues, Trustee shall reconvey the Properly, or so much of it as is
then held under this Deed of Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally entitled thereto," and the
recitals of any matters or facts shall be conclusive proof of their truthfulness. Neither Beneficiary nor
Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
5.8 Compensation and Reimbursement of Costs and Expenses.
(a) Grantor agrees to pay fees In the maximum amounts legally permitted, or
reasonable fees as may be charged by Beneficiary and Trustee when the law provides no
maximum limit, for any services that Beneficiary or Trustee may render in connection with this
Deed of Trust, including Beneficiary's providing a statement of the Secured Obligations or
Trustee's rendering of services in connection with a reconveyance. Grantor shall also pay or
reimburse all of Beneficiary's and Trustee's costs and expenses which may be incurred In
rendering any such services.
O(b) Grantor further agrees to pay or reimburse Beneficiary for all costs, expenses
and other advances which may be incurred or made by Beneficiary or Trustee to protect or
preserve the Property or to enforce any terms of this Deed of Trust, Including the exercise of any
rights or remedies afforded to Beneficiary or Trustee or both of them under Paragraph 6.3,
whether any lawsuit is filed or not, or In defending any action or proceeding arising under or
relating to this Deed of Trust, including attorneys' fees and other legal costs, costs of any sale of
the Property and any cost of evidence of title.
(c) Grantor shall pay all obligations arising under this Paragraph immediately
upon demand by Trustee or Beneficiary. Each such obligation shall be added to, and considered
to be part of, the principal of the Secured Obligations, and shall bear Interest from the date the
obligation arises at the rate provided in any instrument or agreement evidencing the Secured
Obligations. If more than one rate of interest is applicable to the Secured Obligations, the highest
rale shall be used for purposes hereof.
5.9 Exculpation and Indemnification.
(a) Beneficiary shall not be directly or indirectly liable to Grantor or any other
person as a consequence of any of the following:
(1) Beneficiary's exercise of or failure to exercise any rights, remedies or
powers granted to it in this Deed of Trust;
Idaho Deed of Trust -7- 00100
O
(ii) Beneficiary's failure or refusal to perform or discharge any obligation
or liability of Grantor under any agreement related to the Property or under this Deed of
Trust;
(iii) Beneficiary's failure to produce Rents from the Property or to
perform any of the obligations of the lessor under any lease covering the Property;
(iv) any waste committed by lessees of the Property or any other parties,
or any dangerous or defective condition of the Property; or
(v) any loss sustained by Grantor or any third party resulting from any
act or omission of Beneficiary in operating or managing the Property upon exercise of the
rights or remedles afforded Beneficiary under Paragraph 6.3, unless the loss is caused
by the willful misconduct and bad faith of Beneficiary.
Grantor hereby expressly waives and releases all liability of the types described above, and
agrees that no such liability shall be asserted against or Imposed upon Beneficiary.
(b) Grantor agrees to Indemnify Trustee and Beneficiary against and hold them
harmless from all losses, damages, liabilities, claims, causes of action, Judgments, court costs,
attorneys' fees and other legal expenses, cost of evidence of title, cost of evidence of value, and
other costs and expenses which either may suffer or Incur in performing any act required or
permitted by this Deed of Trust or by law or because of any failure of Grantor to perform any of Its
obligations. This agreement by Grantor to indemnify Trustee and Beneficiary shall survive the
release and cancellation of any or all of the Secured Obligations and the full or partial release
and/or reconveyance of this Deed of Trust.
5.10 Defense and Notice of Claims and Actions. At Grantor's sole expense, Grantor
shall protect, preserve and defend the Property and title to and right of possession of the Property, and
the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under It,
against all adverse claims. Grantor shall give Beneficiary and Trustee prompt notice In writing if any claim
is asserted which does or could affect any of these matters, or if any action or proceeding Is commenced
which alleges or relates to any such claim.
5,11 Substitution of Trustee. From time to time, Beneficiary may substitute a successor
to any Trustee named in or acting under this Deed of Trust in any manner now or later to be provided at
law, or by a written instrument executed and acknowledged by Beneficiary and recorded in the office of
the recorder of the county where the Property is situated. Any such instrument shall be conclusive proof
of the proper substitution of the successor Trustee, who shall automatically upon recordation of the
instrument succeed to all estate, title, rights, powers and duties of the predecessor Trustee, without
conveyance from it,
5.12 Representation and Warranty Regarding Hazardous Substances. Before signing
this Deed of Trust, Grantor researched and Inquired into the previous uses and ownership of the
Property. Based on that due diligence, Grantor represents and warrants that to the best of its knowledge,
no hazardous substance has been disposed of or released or otherwise exists in, on, under or onto the
Property, except as Grantor has disclosed to Beneficiary in writing. Grantor further represents and
warrants that Grantor has compiled, and will comply and cause all occupants of the Property to comply,
with all current and future laws, regulations and ordinances or other requirements of any governmental
authority relating to or imposing liability or standards of conduct concerning protection of health or the
environment or hazardous substances ("Environmental Laws"). Grantor shall promptly, at Grantor's sole
cost and expense, take all reasonable actions with respect to any hazardous substances or other
environmental condition at, on, or under the Property necessary to (i) comply with all applicable
Environmental Laws; (ii) allow continued use, occupation or operation of the Property; or (III) maintain the
fair market value of the Property. Grantor acknowledges that hazardous substances may permanently
Idaho Deed of Twst -8• 06106
and materially impair the value and use of the Property. "Hazardous substance" means any substance,
material or waste that is or becomes designated or regulated as "toxic; "'hazardous," "pollutant," or
"contaminant" or a similar designation or regulation under any current or future federal, state or local law
(whether under common law, statute, regulation or otherwise) or Judicial or administrative interpretation of
\ such, including without limitation petroleum or natural gas.
i )
5.13 Site Visits. Observation and Testing. Benef clary and its agents and
representatives shall have the right at any reasonable time, after giving reasonable notice to Grantor, to
enter and visit the Property for the purposes of performing appraisals, observing the Property, taking and
removing environmental samples, and conducting tests on any part of the Property. Grantor shall
reimburse Beneficiary on demand for the costs of any such environmental investigation and testing.
Beneficiary will make reasonable efforts during any site visit, observation or testing conducted pursuant
this Paragraph to avoid interfering with Grantors use of the Property. Beneficiary is under no duty,
however, to visit or observe the Property or to conduct tests, and any such acts by Beneficiary will be
solely for the purposes of protecting Beneficiary's security and preserving Beneficiary's rights under this
Deed of Trust. No site visit, observation or testing or any report or findings made as a result thereof
("Environmental Report") (1) will result In a waiver of any default of Grantor; (ii) impose any liability on
Beneficiary; or (Iii) be a representation or warranty of any kind regarding the Property (including its
condition or value or compliance with any laws) or the Environmental Report (Including its accuracy or
completeness). In the event Beneficiary has a duty or obligation under applicable laws, regulations or
other requirements to disclose an Environmental Report to Grantor or any other party, Grantor authorizes
Beneficiary to make such a disclosure. Beneficiary may also disclose an Environmental Report to any
regulatory authority, and to any other parties as necessary or appropriate in Beneficiary's judgment.
Grantor further understands and agrees that any Environmental Report or other information regarding a
site visit, observation or testing that is disclosed to Grantor by Beneficiary or its agents and
representatives is to be evaluated (including any reporting or other disclosure obligations of Grantor) by
Grantor without advice or assistance from Beneficiary.
6. ACCELERATING TRANSFERS DEFAULT AND REMEDIES.
6.1 Accelerating Transfers
(a) "Accelerating Transfer" means any sale, contract to sell, conveyance,
encumbrance, or other transfer, whether voluntary, Involuntary, by operation of law or otherwise,
of all or any material part of the Property or any interest in it, including any transfer or exercise of
any right to drill for or to extract any water (other than for Grantor's own use), oil, gas or other
hydrocarbon substances or any mineral of any kind on or under the surface of the Property. If
Grantor is a corporation, "Accelerating Transfer" also means any transfer or transfers of shares
possessing, In the aggregate, more than fifty percent (50%) of the voting power. If Grantor is a
partnership, "Accelerating Transfer' also means withdrawal or removal of any general partner,
dissolution of the partnership under applicable law, or any transfer or transfers of, in the
aggregate, more than fifty percent (50%) of the partnership Interests. If Grantor is a limited
liability company, "Accelerating Transfer" also means withdrawal or removal of any managing
member, termination of the limited liability company or any transfer or transfers of, in the
aggregate, more than fifty percent (60%) of the voting power or in the aggregate more than fifty
percent of the ownership of the economic Interest in the Grantor,
(b) Grantor agrees that Grantor shall not make any Accelerating Transfer, unless
the transfer is preceded by Beneficlary's express written consent to the particular transaction and
transferee. Beneficiary may withhold such consent in its sole discretion. If any Accelerating
Transfer occurs, Beneficiary In its sole discretion may declare all of the Secured Obligations to be
immediately due and payable, and Beneficiary and Trustee may invoke any rights and remedies
provided by Paragraph 6.3 of this Deed of Trust.
6.2 Events of Default. The occurrence of any one or more of the following events, at the
Idaho Deed of Trust -9- - 06/06
option of Beneficiary, shall constitute an event of default ("Event of Default") under this Deed of Trust;
(a) Obligor falls to make any payment, when due, under the Debt Instrument
(after giving effect to any applicable grace period), or any other default occurs under and as
defined in the Debt Instrument or In any other instrument or agreement evidencing any of the
Secured Obligations and such default continues beyond any applicable cure period;
(b) Grantor Tails to make any payment or perform any obligation which arises
Under this Deed of Trust;
(c) Grantor makes or permits the occurrence of an Accelerating Transfer in
violation of Paragraph 6.1;
(d) Any representation or warranty made In connection with this Deed of Trust or
the Secured Obligations proves to have been false or misleading in any material respect when
made;
(e) Any default occurs under any other deed of trust on all or any part of the
Property, or under any obligation secured by such deed of trust, whether such deed of trust is
prior to or subordinate to this Deed of Trust; or
(f) An event occurs which gives Beneficiary the right or option to terminate any
Swap Contract secured by this Deed of Trust.
6.3 Remedies. At any time after the occurrence of an Event of Default, Beneficiary and
Trustee shall be entitled to invoke any and all of the rights and remedies described below, as well as any
other rights and remedies authorized by law. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of remedies.
(a) Beneficiary may declare any or all of the Secured Obligations to be due and
payable Immediately, and may terminale any Swap Contract secured by this Deed of Trust in
accordance with its terms.
(b) Beneficiary may apply to any court of competent Jurisdiction for, and obtain
appointment of, a receiver for the Property.
i
(c) Beneficiary, in person, by agent or by court-appointed receiver, may enter,
take possession of, manage and operate all or any part of the Property, and in its own name or In
the name of Grantor sue for or otherwise collect any and all Rents, including those that are past
due, and may also do any and all other things In connection with those actions that Beneficiary
may in its sole discretion consider necessary and appropriate to protect the security of this Deed
of Trust. Such other things may include; entering Into, enforcing, modifying, or canceling leases
on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; completing any unfinished construction; contracting for and making
repairs and alterations; performing such acts of cultivation or irrigation as necessary to conserve
the value of the Property; and preparing for harvest, harvesting and selling any crops that may be
growing on the property. Grantor hereby irrevocably constitutes and appoints Beneficiary as its
attorney-in-fact to perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with laking these measures, Including
endorsement of Grantor's name on any instruments. Grantor agrees to deliver to Beneficiary all
books and records pertaining to the Property, including computer -readable memory and any
computer hardware or software necessary to access or process such memory, as may
reasonably be requested by Beneficiary in order to enable Beneficiary to exercise Its rights under
this Paragraph.
(d) Either Beneficiary or Trustee may cure any breach or default of Grantor, and
Idaho Deed of Trust -10• 06/06
If it chooses to do so In connection with any such cure, Beneficiary or Trustee may also enter the
Property and/or do any and all other things which it may in its sole discretion consider necessary
and appropriate to protect the security of this Deed of Trust. Such other things may include:
appearing In and/or defending any action or proceeding which purports to affect the security of, or
the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary's
or Trustee's sole judgment Is or may be senior in priority to this Deed of Trust, such judgment of
Beneficiary or Trustee to be conclusive as among the parties to this Deed of Trust; obtaining
Insurance and/or paying any premiums or charges for insurance required to be carried under this
Deed of Trust; otherwise caring for and protecting any and all of the Property; and/or employing
counsel, accountants, contractors and other appropriate persons to assist Beneficiary or Trustee.
Beneficiary and Trustee may take any of the actions permitted hereunder either with or without
giving notice to any person.
(e) Beneficiary may bring an action In any court of competent jurisdiction to
foreclose this instrument or to obtain specific enforcement of any of the covenants or agreements
of this Deed of Trust.
(f) Beneficiary may cause the Property which consists solely of real property to
be sold by Trustee as permitted by applicable law. Before any such trustee's sale, Beneficiary or
Trustee shall give such notice of default and/or sale as may then be required by law. When all
time periods then legally mandated have expired, and after such notice of sale as may then be
legally required has been given, Trustee shall sell the Property, either as a whole or In separate
parcels, and In such order as Trustee may determine, at a public auction to be held at the time
and place specified in the notice of sale. Neither Trustee nor Beneficiary shall have any
obligation to make demand on Grantor before any trustee's sale. From time to time in
accordance with then applicable law, Trustee may, and in any event at Beneficiary's request
shall, postpone any trustee's sale by public announcement at the time and place noticed for that
sale. At any trustee's sale, Trustee shall sell to the highest bidder at public auction for cash in
lawful money of the United States, or such other form of payment satisfactory to Trustee. Any
person, including Grantor, Trustee or Beneficiary, may purchase at the trustee's sale to the extent
permitted by then applicable law. Beneficiary shall have the benefit of any law permitting credit
bids. Trustee shall execute and deliver to the purchaser(s) a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or implied. The
recitals in any such deed of any matters or facts, including any facts bearing upon the regularity
or validity of any trustee's sale, shall be conclusive proof of their truthfulness. Any such deed
shall be conclusive against all persons as to the facts recited in it.
(g) Beneficiary may proceed under the Uniform Commercial Code as to all or
any part of the Personally, and In conjunction therewith may exercise all of the rights, remedies
and powers of a secured creditor under the Uniform Commercial Code. When all time periods
then legally mandated have expired, and after such notice of sale as may then be legally required
has been given, Trustee may sell the Personalty at a public sale to be held at the time and place
specified In the notice of sale. It shall be deemed commercially reasonable for the Trustee to
dispose of the Personalty without giving any warranties as to the Personally and specifically
disclaiming all disposition warranties. Alternatively, Beneficiary may choose to dispose of some
or all of the Property, in any combination consisting of both personal property and real property, in
one sale to be held in accordance with the law and procedures applicable to real property, as
permitted by Article 9 of the Uniform Commercial Code. Grantor agrees that such a sale of
personal property together with real property constitutes a commercially reasonable sale of the
personal property.
6.4 Aoolication of Sale Proceeds and Rents.
(a) Beneficiary and Trustee shall apply the proceeds of any sale of the Property
in the following manner: first, to pay the portion of the Secured Obligations attributable to the
Idaho Dead of Trust it. 06/06
costs, fees and expenses of the sale, including costs of evidence of title in connection with the
sale; and, second, to pay all other Secured Obligations in any order and proportions as
Beneficiary in its sole discretion may choose, The remainder, if any, shall be remitted to the
person or persons entitled thereto.
(b) Beneficiary shall apply any and all Rents collected by it, and any and all
sums other than proceeds of any sale of the Property which Beneficiary may receive or collect
under Paragraph 6.3, in the following manner: first, to pay the portion of the Secured Obligations
attributable to the costs and expenses of operation and collection that may be Incurred by
Trustee, Beneficiary or any receiver; and, second, to pay all other Secured Obligations in any
order and proportions as Beneficiary In Its sole discretion may choose. The remainder, If any,
shall be remitted to the person or persons entitled thereto. Beneficiary shall have no liability for
any funds which it does not actually receive.
7. MISCELLANEOUS PROVISIONS
7.1 No Waiver or Cure.
(a) Each waiver by Beneficiary or Trustee must be In writing, and no waiver shall
be construed as a continuing waiver. No waiver shall be Implied from any delay or failure by
Beneficiary or Trustee to take action on account of any default of Grantor. Consent by
Beneficiary or Trustee to any act or omission by Grantor shall not be construed as a consent to
any other or subsequent act or omission or to waive the requirement for Benefictar/a or Trustee's
consent to be obtained In any future or other instance.
(b) If any of the events described below occurs, that event alone shall not cure
or waive any breach, Event of Default or notice of default under this Deed of Trust or invalidate
any act performed pursuant to any such default or notice; or nullify the effect of any notice of
default or sale (unless all Secured Obligations then due have been paid and performed); or Impair
the security of this Deed of Trust; or prejudice Beneficiary, Trustee or any receiver In the exercise
of any right or remedy afforded any of them under this Deed of Trust; or be construed as an
affirmation by Beneficiary of any tenancy, lease or option, or a subordination of the lien of this
Deed of Trust:
(t) Beneficiary, its agent or a receiver takes possession of all or any part
of the Property;
(li) Beneficiary collects and applies Rents, either with or without taking
possession of all or any part of the Property;
(Ili) Beneficiary receives and applies to any Secured Obligation
proceeds of any Property, including any proceeds of insurance policies, condemnation
awards, or other claims, property or rights assigned to Beneficiary under this Deed of
Trust;
(Iv) Beneficiary makes a site visit, observes the Properly and/or
conducts tests thereon;
(v) Beneficiary receives any sums under this Deed of Trust or any
proceeds of any collateral held for any of the Secured Obligations, and applies them to
one or more Secured Obligations;
(vi) Beneficiary, Trustee or any receiver performs any act which it is
empowered or authorized to perform under this Deed of Trust or invokes any right or
remedy provided under this Deed of Trust; or
Idaho Oeed of Trust •12- - 06/06
(vii) Any notice of default and election to sell under this Deed of Trust is
cancelled.
7.2 Powers of Beneficiary and Trustee.
i
(a) Trustee shall have no obligation to perform any act which it is empowered to
perform under this Deed of Trust unless it is requested to do so in writing and is reasonably
t indemnified against loss, cost, liability and expense.
(b) Beneficiary may take any of the actions permitted under Paragraphs 6.3(b)
and/or 6.3(c) regardless of the adequacy of the security for the Secured Obligations, or whether
any or all of the Secured Obligations have been declared to be immediately due and payable, or
whether notice of default and election to sell has been given under this Deed of Trust.
(c) From time to time, Beneficiary or Trustee may apply to any court of
competent jurisdiction for aid and direction in executing the trust and enforcing the rights and
remedies created under this Deed of Trust. Beneficiary or Trustee may from time to time obtain
orders or decrees directing, confirming or approving acts in executing this trust and enforcing
these rights and remedies.
7.3 Nonborrower Grantor.
(a) If any Grantor ("Nonborrower Grantor") is not the Obligor under the Debt
Instrument described in Paragraph 2.1(a), such Nonborrower Grantor authorizes Beneficiary to
perform any of the following acts at any time, all without notice to Nonborrower Grantor and
without affecting Beneficiary's rights or Nonborrower Grantor's obligations under this Deed of
Trust:
i
(t) Beneficiary may alter any terms of the Debt Instrument or any part of
it, including renewing, compromising, extending or accelerating, or otherwise changing
the time for payment of, or increasing or decreasing the rate of interest on, the Debt
Instrument or any part of it;
(11) Beneficiary may take and hold security for the Debt Instrument,
accept additional or substituted security for the Debt Instrument, and subordinate,
exchange, enforce, waive, release, compromise, fail to perfect, sell or otherwise dispose
of any such security;
(iii) Beneficiary may apply any security now or later held for the Debt
Instrument in any order that Beneficiary in its sole discretion may choose, and may direct
the order and manner of any sale of all or any part of it and bid at any such sale;
(Iv) Beneficiary may release Obligor of Its liability for the Debt Instrument
or any part of It;
(v) Beneficiary may substitute, add or release any one or more
guarantors or endorsers of the Debt Instrument; and
(vi) Beneficiary may extend other credit to Obligor, and may take and
hold security for the credit so extended, whether or not such security also secures the
Debt Instrument.
(b) Nonborrower Grantor waives:
(i) Any right it may have to require Beneficiary to proceed against
Obligor, proceed against or exhaust any security held from Obligor, or pursue any other
Idaho Deed of Trust -13- 06106
remedy in Beneficiary's power to pursue;
(it) Any defense based on any legal disability of Obligor, any discharge
or Ilmitation of the liability of Obligor to Beneficiary, whether consensual or arising by
operation of taw or any bankruptcy, reorganization, receivership, insolvency, or
debtor -relief proceeding, or from any other cause, or any claim that Nonborrower
Grantor's obligations exceed or are more burdensome than those of Obligor;
(iii) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance
of this Deed of Trust and of the existence, creation, or incurring of new or additional
Indebtedness of Obligor, and demands and notices of every kind;
(Iv) Any defense based on or arising out of any defense that Obligor
may have to the payment or performance of the Debt Instrument or any part of it; and
(v) Until the Secured Obligations have been paid and performed In full,
all rights of subrogation, reimbursement, indemnification and contribution (contractual,
statutory or otherwise), including any claim or right of subrogation under the Bankruptcy
Code (Title 11 of the U.S. Code) or any successor statute, all rights to enforce any
remedy that the Beneficiary may have against Obligor, and all rights to participate in any
security now or later to be held by Beneficiary for the Debt Instrument.
(c) Nonborrower Grantor assumes full responsibility for keeping informed of
Obligor's financial condition and business operations and all other circumstances affecting
Obligor's ability to pay and perform Its obligations to Beneficiary, and agrees that Beneficiary shall
have no duty to disclose to Nonborrower Grantor any Information which Beneficiary may receive
about Obligor's financial condition, business operations, or any other circumstances bearing on
its ability to perform.
(d) No provision or waiver in this Deed of Trust shall be construed as limiting the
generality of any other provision or waiver contained in this Deed of Trust.
(e) For purposes of this Paragraph 7.3, all references to the Debt Instrument
shall also include any instrument or agreement executed by Obligor subsequent to the date of
this Deed of Trust which is secured by this Deed of Trust in accordance with the provisions of
Paragraphs 2.1(c) and 2.1(d).
7.4 Merger. No merger shall occur as a result of Beneficiary's acquiring any other estate
in or any other lien on the Property unless Beneficiary consents to a merger in writing.
7.5 Joint and Several Liability. If Grantor consists of more than one person, each shall
be jointly and severally liable for the faithful performance of all of Grantor's obligations under this Deed of
Trust.
Idaho. 7.6 Applicable Law. This Deed of Trust shall be governed by the laws of the Stale of
7.7 Successors in Interest. The terms, covenants and conditions of this Deed of Trust
shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties.
However, this Paragraph does not waive the provisions of Paragraph 6.1.
7.8 Dispute Resolution Provision. This paragraph, including the subparagraphs below, is
referred to as the "Dispute Resolution Provision." This Dispute Resolution Provision Is a material
inducement for the parties entering into this agreement.
Idaho Deed of Trust •14• - 06106
(a) This Dispute Resolution Provision concerns the resolution of any
controversies or claims between the parties, whether arising in contract, tort or by statute,
Including but not limited to controversies or claims that arise out of or relate to: (i) this agreement
(including any renewals, extensions or modifications); or (ti) any document related to this
agreement (collectively a "Claim"). For the purposes of this Dispute Resolution Provision only,
the term "parties" shall include any parent corporation, subsidiary or affiliate of Beneficiary
involved In the servicing, management or administration of any obligation described or evidenced
by this agreement.
(b) Al the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code)
(the "Act'). The Act will apply even though this agreement provides that it is governed by the law
of a specified state,
(c) Arbitration proceedings will be determined in accordance with the Act,
the then -current rules and procedures for the arbitration of financial services disputes of the
American Arbitration Association or any successor thereof ("AAA"), and the terms of this Dispute
Resolution Provision. In the event of any Inconsistency, the terms of this Dispute Resolution
Provision shall control. If AAA Is unwilling or unable to (i) serve as the provider of arbitration or
(it) enforce any provision of this arbitration clause, Beneficiary may designate another arbitration
organization with similar procedures to serve as the provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless
otherwise required by law, in any U.S, state where real or tangible personal property collateral for
This credit is located or if there is no such collateral, in the state specified in the governing law
section of this agreement. All Claims shall be determined by one arbitrator; however, if Claims
exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be
decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of
the demand for arbitration and close within ninety (90) days of commencement and the award of
the arbitrator(s) shall be Issued within thirty (30) days of the close of the hearing. However, the
arbitrator(s),-upon a showing of good cause, may extend the commencement of the hearing for
up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of
reasons for the award. The arbitration award may be submitted to any court having jurisdiction to
be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any
Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the
application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration
provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set
forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (I) exercise self-
help remedies, such as but not limited To, setoff; (ii) initiate judicial or non -judicial foreclosure
against any real or personal property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act In a court of law to obtain an interim remedy, such as but not limited to, injunctive relief,
writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the
right of any party, including the suing party, thereafter to require submittal of the Claim to
arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an
individual basis without resort to any form of class or representative action (the "Class Action
Waiver"). Regardless of anything else In this Dispute Resolution Provision, the validity and effect
Idaho Deed of Trust .1s- 06/06
of the Class Action Waiver may be determined only by a court and not by an arbitrator. The
parties to this Agreement acknowledge that the Class Action Waiver is material and essential to
the arbitration of any disputes between the parties and is nonseverable from the agreement to
arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the
parties' agreement to arbitrate shall be null and void with respect to such proceeding, subject to
the right to appeal the limitation or Invalidation of the Class Action Waiver. The Parties
acknowledge and agree that under no circumstances will a class action be arbitrated.
(i) By agreeing to binding arbitration, the parties irrevocably and voluntarily
waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without
Intending in any way to limit this agreement to arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such
Claim. This waiver of jury trial shall remain In effect even if the Class Action Waiver is limited, voided
or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL
BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS
AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE
EXTENT PERMITTED BY LAW.
7.9 Interpretation. Whenever the context requires, all words used in the singular will be
construed to have been used in the plural, and vice versa, and each gender will include any other gender.
The captions of the sections of this Deed of Trust are for convenience only and do not define or limit any
terms or provisions. The word "include(s)" means "include(s), without limitation," and the word "Including"
means "including, but not limited lo." The word "obligations" is used in its broadest and most
comprehensive sense, and Includes all primary, secondary, direct, indirect, fixed and contingent
obligations. It further includes all principal, Interest, prepayment charges, late charges, loan fees and any
other fees and charges accruing or assessed at any time, as well as all obligations to perform acts or
satisfy conditions. No listing of specific Instances, Items or matters in any way limits the scope or
generality of any language of this Deed of Trust. The Exhibits to this Deed of Trust are hereby
incorporated in this Deed of Trust.
7.10 in -House Counsel Fees. Whenever Grantor is obligated to pay or reimburse
Beneficiary or Trustee for any attorneys' fees, those fees shall Include the allocated costs for services of
in-house counsel to the extent permitted by applicable law.
7.11 Waiver of Marshalino. Grantor waives all rights, legal and equitable, it may now or
hereafter have to require marshaling of assets or to direct the order in which any of the Property will be
sold in the event of any sale under this Deed of Trust. Each successor and assign of Grantor, including
any holder of a lien subordinate to this Deed of Trust, by acceptance of its interest or lien agrees that it
shall be bound by the above waiver, as if it had given the waiver itself.
7.12 Severability. If any provision of this Deed of Trust should be held unenforceable or
void, that provision shall be deemed severable from the remaining provisions and in no way affect the
validity of this Deed of Trust except that if such provision relates to the payment of any monetary sum,
then Beneficiary may, at Its option, declare all Secured Obligations immediately due and payable.
7.13 Notices. Grantor hereby requests that a copy of notice of default and notice of sale
be mailed to it at the address set forth below, That address is also the mailing address of Grantor as
debtor under the Uniform Commercial Code. Beneficlarys address given below is the address for
Beneficiary as secured party under the Uniform Commercial Code.
Idaho Deed of Trust .16• 06106
Addresses for Notices to Grantor:
BowDen Properties, LLC
400 W. Overland Road
Meridian, ID 83642-8105
Address for Notices to Beneficiary:
Bank of America, N.A.
Waltham - Credit Services
Attn: Notice Desk
MA6-535-02-09
1075 Main St.
Waltham, MA 02451
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first
above written.
GRANTOR:
BowDen Properties, LLC
By:
pie "_ M (Seal)
Patrick Morandi, General Manager
Idaho Deed of Trust -17- 06/06
State of spas' }
County of A aa.. !
On this day of , 200_, before me,
a Notary Public in and for said State, personally
appeared known or identified to be the
Ge.,. -r 44......�_ of —4 .....o'„ die h'., � 41.r— , or the person who executed
the instrument on behalf of said
executed the same.
and acknowledged to me that such entity
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seat the dale and year in
this certificate first above written.
v� •%
.a �aT"Rr e
O.
e,�9TE OF1V NpOee
Notary Public for X40.4„
Residing at ✓lo,;g X"Q,
My commission expires Jia, b?
Idaho Deed of Trust As. 06106
EXHIBIT A TO DEED OF TRUST
Exhibit A to DEED OF TRUST executed as of May 12, 2008, by BowDen Properties, LLC as.
"Grantor" to Alliance Title & Escrow Corp. as 'Trustee" for the benefit of Bank of America, N.A., a national
banking association, as "Beneficiary."
Street Address of Prcpertv
400 W. Overland Road, Meridian, ID 83642-8105
Description of Proved
See attached description consisting of, page(s),
Idaho Deed of bust
-19•
06106
EXHIBIT "A"
Parcel 1:
A parcel of land being a portion of Lots 2 and 3 in Block 1 of Interstate Center, a subdivision,
according to tite official plat thereof as filed in the records of Ada County, Idaho, which portion
is all of said lots lying West of Blue iViarlin Lane, and which is more particularly described as
follows:
Commencing at the Southwest corner of said Lot 2; thence
North 01 903111" East 280.18 feet to a point; thence
North 00013137" West 84.85 feet to a point; thence
South 89046'23" East 295,48 feet to a poiut; thence
South 00013137" West 365.00 feet to a point; thence
North 89°46'23" West 298.85 feet to the POINT OF BEGINNING.
Parcel 2:
A parcel of land being part of Lots 2, 3, 23 and 24 In Block I of Interstate Center, a subdivision,
according to the official plat thereof as filed in the records of Ada County, Idaho, which parcel
is more particularly described as follows:
Commencing at the Northwest corner of said Lot 3; thence
South 89°46'23" East 295.48 feet to a point lying on the Westerly boundary of the private road
easement for Blue Marlin Lane as shown on said plat, said point being the REAL. POINT OF
BEGINNING; thence
South 00013'37" West 365,00 feet along said private road boundary to a point; thence
South 89°46'23" East 60.00 feet to a point tying on the Easterly boundary of the private road
easement for Blue Marlin Lane as shown on said plat; thence
North 00°13'37" East 496.01 feet to a point of curve; thence along a curve to the right, said
curve having a central angle of 44024'55", a radius of 20.00 feet, and a long chord bearing
North 22°26'05" East 15.12 feet to a point of curve; thence along a curve to the left, said curve
having a central angle of 90°00'00", a radius of 50.00 feet, and a long chord bearing
North 00°21'28" West 70.71 feet to a point; thence
South 44138132" West 50.00 feet to a point lying on the centerline of said private road; thence
South 00°13'37" West 180.00 feet to a point; thence
North 89°46'23" West 30,00 feet to the REAL. POINT OF BEGINNING.
Parcel 3:
All of lots 7, 9, 19 through 22, and 25 through 28 in Block 1 of Interstate Center a subdivision,
according, according to the official plat thereof, records of Ada County, Idaho;
AND
Part of Lots 23 and 24 in Block 1 of Interstate Center, a subdivision, according to the Official
Plat thereof, Records of Ada County, Idaho, which part is more particularly described as
follows:
COMMENCING at the Northeast corner of said Lot 23; thence
South 00013'37" West 545.00 feet to a point; thence
North 89046123" West 160.00 feet to a point; thence
North 00013137" East 496.01 feet to a point of curve; thence along a curve to the right, said
curve having a central angle of 44024155", a radius of 20.00 feet, and a long chord bearing
North 22026'05" East 15.12 feet to a point of curve; thence along a curve to the left, said curve
having a central angle of 44024155", a radius of 50.00 feet, and a long chord bearing
North 22026105" East 37.80 feet to a point; thence
South 89046123" East 140.00 teet to the POINT OF BEGINNING;
AND
Part of Lot 5 in Block 1 of Interstate Center, a subdivision, according to the official plat
thereof, records of Ada County, Idaho, which part is more particularly described as follows;
COMMENCING at the Southeast corner of Lot 5; thence
North 89046123" West 199.99 feet to a point of curve; thence along a curve to the left, said
curve having a central angle of 4503510.5", a radius of 50.00 feet, and a long chord bearing
North 22033'55^ West 38.74 feet to a point of curve; thence along a curve to the left, said curve
having a central angle of 44024'55", a radius of 20.00 feet, and a long chord bearing
South 6733'5611 East 15.12 feet to a point; thence
South 89°46'23" East 201.00 feet to a point; thence
South 00013137" West 30.00 feet to the POINT OF BEGINNING.
AFFIIDAVIT OF LEGAL INTEREST
STATE OF IDAHO
COUNTY OF ADA
v`owr"kr Sr -(AF 00 W. Dvwt�J Q,
(na ) (address)
(city) (state)
being first duly sworn upon, oath, depose and say:
That I am the record owner of the.property described on the attached, and I grant my
permission to:
(�6�'vle � La/`Sa � 2to .yfaiv*rji .1�- �3o±se, �'o!. ►3P
r� foo W • C7v�✓lam,-� � ../✓�.�,i«Q��-�1�
(name) (address)
to submit the accompanying application(s) pertaining to that property.
2. I agree to indemnify, defend and hold the City of Meridian and its employees harmless
from any claim or liability resulting from any dispute as to the statements contained
herein or as to the ownership of the property which is the subject of the application.
3. I hereby grant permission to City of Meridian staff to enter the subject property for the
purpose of site inspections related to processing said application(s).
Dated this Zcl day of J cwwr 20 1-5
(Signature)
SUBSCRIBED AND SWORN to before me the day and year first above written.
o pA BO°j°°y
e (Notary Public for Idaho)
�OTAV o
e °
Residing at: do, a c
• ° My Commission Expires:
Community Development n Planning Division ■ 33 E. Broadway Avenue, Ste. 102 Meridian, Idaho 83642
Phone: 208-884-5533 Fax: 208-888-6854 ��w% v.meridiancity.org/planning
Brad Marczuk
From:
Terri Ricks <tricks@meridiancity.org>
Sent:
Thursday, January 29, 2015 8:13 AM
To:
Brad Marczuk
Subject:
AV: 400 W. Overland Rd.
1/29/15 Address Verification: Roaring Springs Bathroom Remodel & Barbeque
Address: 400 YJ OVERLAND RD, MERIDIAN, ID 83642
j Save Reset Cancel Help I =
Parcel Detail r District -
Parcel
iistrict-Parcel#= Parcel Status • Primary
R4239770750 Ena5led .,.Yes
Lot Block Subdivision
h INTERSTATE CENTER
Terri Ricks
Addressing Specialist
City of Meridian Land Development
208-887-2211
tricks@meridiancity.org
1
Roaring Springs Waterpark - Google Maps Page 1 of 1
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