Agreement of Lease Cherry Lane Recreation 2-01-2000RECORDED - REQULa OF
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AGREEMENT MERrD!
6N crTY
Parties: City of Meridian
Idaho Independent Bank and
Cherry Lane Recreation, Inc.
THIS AGREEMENT is made and entered into this / Sfj day
of /W�- c.an;Z by and between the City of Meridian, Idaho, a municipal
corporation, ereinafter referred to as "City", and Idaho Independent Bank, and
Idaho corporation, hereinafter referred to as `Bank", and Cherry Lane Recreation,
Inc., and Idaho corporation.
RECITALS:
1.1 WHEREAS the City of Meridian has issued a conditional use permit to
Cherry Lane Recreation, Inc. for the Golf Course Clubhouse, Parking
Lot and Temporary Clubhouse at 4200 Talamore Blvd. Meridian Idaho;
and
1.2 WHEREAS the Conditional use permit contains the following
condition:
"'1.20 The temporary clubhouse shall be used for a period
not to exceed seven (7) months from the date of this order.
Prior to moving of the temporary clubhouse, a letter of
credit or cash shall be received by the City of Meridian as a
guarantee for completion of the permanent clubhouse and
parking lot in the amount of Five Hundred Thousand and
No/100ths ($500,000.00) Dollars."; and
1.3 WHEREAS, in order to comply with condition 1.20 of the Conditional
Use Permit and to construct the improvements permitted by the
Conditional Use Permit, Cherry Lane has requested loans and other
financial accommodations from Bank which the Bank is willing to
provide upon various conditions, which conditions include as security a
leasehold deed of trust upon Cherry Lane's lessees' interest in the real
property, which is the subject of the Agreement of Lease, and in
AGREEMENT - Page
addition the Bank requires the City to agree during the term of the
leasehold deed of trust that no modifications of the Agreement of Lease
be undertaken without the City first notifying the Bank, in writing at
least 90 days prior to the effective date of any modification, of the
City's intention to modify the Agreement, and that in the event of
default by Cherry Lane under the terms of the Agreement of Lease the
City would notify the Bank of such default in writing a least 30 dans
prior to taking any action to enforce any of the City's Rights under the
Agreement of Lease, during which time the bank would have the option
to cure the default or take such other action as may be necessary to
protect the Bank's security interest in the Agreement of Lease; and
1.4 WHEREAS Meridian is willing to enter into such an agreement to
provide the Bank such notice only upon the consideration that Cherry
Lane agree that the funds received from any loan from the Bank which
is secured by the Leasehold deed of trust be used exclusively for capital
improvements in the construction of the improvements referenced in
the Conditional Use Permit and/or for meeting condition no. 1.20 of the
Conditional Use Permit, and that the Bank and Cherry Lane agree that
Meridian upon a default of Cherry Lane and foreclosure by the Bank of
the Leasehold Deed of Trust shall have the exclusive first option to
purchase from the Bank the note and all collateral, in the amount equal
to the total amount then owed to the Bank by Cherry Lane together
with all costs, expenses, and fees of the Bank which could not be
exercised until a time subsequent to the expiration of the Letter of
Credit issued by the Bank pursuant to condition no. 1.20 of the
Conditional Use Permit; and that in the event of a default and in the
event Cherry Lane fails to maintain the golf course Meridian ,upon 7
days prior written notice in the case of imminent peril with risk of loss
to fairway or greens, could elect to maintain the golf course and
premises to avoid loss of fairway or greens, and to be reimbursed for said
reasonable costs only in the event either Cherry Lane or the Bank fails
to provide written assurance to Meridian to take steps to prevent such
loss, and that the Agreement of Lease be amended to provide that lessee
shall provide proof of Casualty loss insurance for a reasonable amount
of coverage for replacement of improvements, including sprinkler
system, fairway and greens, clubhouse, parking facilities and any and all
other improvements thereon and liability insurance in an amount
commensurate with the coverage as carried by other 18 hole golf course
facilities which are privately managed in the Ada/Canyon County region
AGREEMENT - Page 2
of Idaho, and in no event less than the amount of liability provided
under the State of Idaho Tort Claims Lav presently codified at I.C. § 6-
926, or as it may be amended in the future with Meridian being
designated on said insurance coverages as a co-insured.
1.5 WHEREAS Bank and Cherry Lane are agreeable to the consideration-?
required by Meridian
2. DEFINITIONS:
2.1 Conditional Use Permit: means and refers to that certain Conditional
Use Permit which was issued by the City of Meridian to Cherry Lane
Recreation, Inc., an Idaho Corporation for the construction, use and
maintenance of a Golf Course Clubhouse, Parking Lot and Temporary
Clubhouse at 4200 Talamore Blvd, Meridian Idaho in City of Meridian
Case No. CUP -99-009, as may be amended from time to time.
2.2 Meridian: means and refers to the City of Meridian, a municipal
corporation having as its principle address 33 E. Idaho, Meridian, ID
83642.
2.3 Bank: means and refers to the Idaho Independent Bank, an Idaho
corporation with its principle address at 317 N. 9`h Ave., Boise, ID
83702.
2.4 Cherry Lane: means and refers to Cherry Lane Recreation, Inc., an
Idaho corporation with its principle offices at 4200 W. Talamore,
Meridian ID 83642.
2.5 Agreement of Lease: means and refers to that certain Agreement of
Lease by and between Meridian and Cherry Lane dated October 3,
1978.
2.6 Leasehold Deed of Trust: means and refers to that Certain Leasehold
Deed of Trust by and between Bank and Cherry Lane which secures the
Bank's loan to Cherry Lane in the leasehold interest of Cherry Lane to
the Agreement of Lease.
2.7 Golf Course: means and refers to the golf course which has been
developed and is the subject of the Agreement of Lease.
AGREEMENT - Page 3
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein, the parties agree as follows:
3. INCORPORATION OF RECITALS:
3.1 That the above recitals are contractual and binding and are incorporated
herein as if set forth in full.
4. AGREEMENT BETWEEN BANK, CHERRY LANE AND MERIDIAN:
The provisions of this section shall be binding upon Bank, Cherry Lane and
Meridian as follows:
4.1 During the term of the Leasehold Deed of Trust no modifications of the
Agreement of Lease shall be under taken without Meridian first
notifying the Bank, in writing at lease 90 days prior to the effective date
of any modification, of the City's intention to modify the Agreement of
Lease, and that in the event of default by Cherry Lane under the terms
of the Agreement of Lease, Meridian shall notify the Bank of such
default in writing at least 30 days prior to taking any action to enforce
any of Meridian's rights under the Agreement of Lease, during which
time the bank is given the option to cure the default or take such other
action as may be necessary to protect the Bank's security interest in the
Agreement of Lease. No modification of the Agreement of Lease nor
any right of default of the Agreement of Lease shall accrue to Meridian
until this provision has been complied with.
4.2 Meridian shall have the exclusive first option to purchase from the bank
the note and all collateral, in the amount equal to the total amount then
owed to the Bank by Cherry Lane together with all costs, expenses, and
fees of the Bank. This option to purchase may be exercised at any time
subsequent to the expiration of the letter of credit issued by the bank
pursuant to condition number 1.20 of the conditional use permit but
must be exercised prior to 3:00 p.m. Mountain time, on the business
day prior to the date of any scheduled foreclosure sale. In the event
Meridian determines to exercise its option as provided herein, it shall
deliver the option price in cash to bank by no later than 3:00 p.m.,
Mountain time, on the business day prior to any scheduled foreclosure
sale. The Bank shall give Meridian notice of foreclosure and of date of
sale which shall include notice of this exclusive first option. Meridian
may file a request for a copy of notice of default or notice of sale,
AGREEMENT - Page 4
r
pursuant to I.C. § 45-1511, and the Bank shall provide Meridian with
the necessary information on the recording of the Leasehold Deed of
Trust to enable Meridian to so file the request for notice and the Bank
shall also cause Meridian to receive notice in the manner provided for ill
I.C. § 45-1505 at the address of Meridian herein provided even in the
event Meridian fails to record a tequest for notice.
4.3 In the event of a default of the Leasehold deed of trust by Cherry Lane
and in the event Cherry Lane fails to maintain the golf course Meridian
upon 7 days prior written notice to Bank and that Cherry Lane in the
case of imminent peril of risk of loss to fairway or greens Meridian has
elected to maintain the golf course and premises to avoid loss of fairway
or greens and shall be reimbursed for said reasonable costs, but only in
the event either Cherry Lane or the Bank fails to provide written
assurance to Meridian to take steps to prevent such loss. Meridian shall
provide written notice of costs incurred under this section to Bank and
Cherry Lane which shall then become due and payable within 30 days
of the date of written notice. Any sum so paid by bank to Meridian
shall be immediately due and owing by Cherry Lane to Bank and until
paid to Bank, shall be secured by leasehold deed of trust granted by
Cherry Lane in favor of the Bank.
5. AGREEMENT BETWEEN CHERRY LANE AND MERIDIAN: The
provisions of this section shall be binding upon Cherry Lane and Meridian as
follows:
5.1 The funds received from any loan from the Bank which is secured by
the Leasehold deed of trust will be used exclusively for capital
improvements in the construction of the improvements referenced in
the Conditional Use Permit and/or for meeting condition no. 1.20 of the
Conditional Use Permit, and Cherry Lane shall provide written proof at
such time written request made by Meridian for such information to the
Bank of the application of said fund as herein provided and Cherry
Lane herein agrees that the Bank may provide such information to a
duly authorized agent of Meridian. Request for such written proof made
by Meridian shall be directed to Cherry Lane with a copy to the Bank
and Cherry Lane shall respond within 21 days of the date of the request.
In the event Meridian determines there has been a default of this
section, it shall notify Cherry Lane and the Bank in writing of the claim
of default and Cherry Lane shall have 30 days from the date of Notice
AGREEMENT - Page 5
f
to cure the default. In the event the default is not cured, the Bank shall
release all such information to Meridian.
6. INSURANCE: The provisions of this section shall be binding upon Cherry
Lane and Meridian and shall serve as an amendment to their Agreement of
Lease as follows. +
6.1 Agreement of Lease be and is hereby amended to provide that lessee
shall provide proof of Casualty Loss Insurance for a reasonable amount
of coverage for replacement of improvements, including sprinkler
system, fairway and greens, club house, parking facilities and any and all
other improvements thereon and liability insurance in an amount
commensurate Nvith the coverage as carried by other 18 hole golf course
facilities which are privately managed in the Ada/Canyon County region
of Idaho, and in no event less than the amount of liability provided
under the State of Idaho Tort Claims Law presently codified at I.C. § 6-
926, or as it may be amended in the future with Meridian being
designated on said insurance coverages as a co-insured and certificates of
such insurance coverage provided to Meridian.
7. DEFAULT:
7.1 A default of this agreement by the Bank is a failure to provide Meridian
notice of Foreclosure of the Leasehold deed of trust and or a failure to
pay reasonable costs incurred by Meridian pursuant to section 4 of this
agreement.
7.2 A default of this agreement by Cherry Lane is a failure to apply funds
obtained from the Bank for the Loan and/or supply information as
required in section 5.1 and/or a failure to pay reasonable costs incurred
by Meridian pursuant to section 4.3 of this agreement and a default of
requirement to carry insurance pursuant to section 6 of this agreement.
8. REMEDIES:
8.1 In the event of default of Bank no foreclosure sale shall occur in the
event of a notice default and in the event of failure to pay reasonable
costs as provided in Section 4.3, the amount of costs plus interest at the
statutory rate from the date of notice of the amount of costs incurred
was given by Meridian.
AGREEMENT - Page 6
8.2 In the event of default of Cherry Lane, it shall hold the Bank harmless
from any claim herein of default by Meridian, and in the event of a
failure to apply funds received from the Bank from the loan and or to
provide information as provided in section 5. 1, Cherry Lane shall be in
default of the Agreement of Lease and in the event of failure to pay
► reasonable costs as provided in Section 4.3, the amount of costs plus
interest at the statutory rate from the date of notice of the amount of
costs incurred was given.
9. GENERAL PROVISIONS
Section 9.1: Non -Waiver. The failure of a party hereto to insist upon
strict performance of observance of this agreement shall not be a waiver
of any breach of any terms or conditions of this agreement by any other
party.
Section 9.2: Conflicts of Agreement with Applicable Law. In the event
any provision or section of this agreement conflicts with applicable law,
or is otherwise held to be unenforceable, the remaining provisions shall
nevertheless be enforceable and carried into effect.
Section 9.3: Attorneys Fees. In the event any litigation arising under,
or as a result of, this agreement or arising from any of the acts to be
performed hereunder or the alleged breach of this agreement, except for
an agreed declaratory judgment action sought to clarify the
responsibility and or authority of the "Parties hereunder, the prevailing
party shall recover its costs and reasonable attorneys' fees.
Section 9.4: Idaho Law. This agreement shall be governed and
interpreted by the laws of the State of Idaho.
Section 9.5: No Assignment. No party may assign this agreement or
any interest therein.
Section 9.6: Notices. All notices, requests, demands and other
communications under this agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served
personally on the party to whom notice to be given, or on the third day
after mailing, if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid, and unless either
AGREEMENT - Page 7
party should notify the other of a change of address, properly addressed
as follows:
City of Meridian
Attention: City Cleric
331E. Idaho
Meridian ID 83642
Idaho Independent Bank
317 N. 9`h Ave.
Boise ID 83702
Cherry Lane Recreation, Inc.
4200 W. Talamore
Meridian ID 83642
Section 9.7: This agreement shall be executed by the "Parties" in three
(3) counterparts, and each such counterpart shall be deemed an
"original'.
Section 9.8: Requirement for Recordation: City may record either a
memorandum of this Agreement or this Agreement, and submit proof of
such recording to the parties.
AGREEMENT - Page 8
IN WITNESS WHEREOF, the parties have executed this Agreement at ,Ada
County, Idaho, the date written below.
Attest:
ITY CLERK
BY RESOLUTION NO. 2 Lb
AGREEMENT - Page 9
CITY OF MERIDIAN
By: A'
YOR R BERT D. CORRIE
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Cherry Lane Recreation, INC.
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By: ,
Wallace D. Lovan
By:
Venita I. Lovan
ACKNOWLEDGMENTS
STATE OF IDAHO)
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On this f sr day ofl Gl/i ' , in the year dao , before me,
a Notary Public, personally appeared Robert D. Corrie and William G. Berg, Jr.,
known or identified to me to be the Mayor and Clerk, respectively, of the City of
Meridian, who executed the instrument or the person that executed the
instrument of behalf of said City, and acknowledged to me that such City executed
the same.
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AGREEMENT - Page 10
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STATE OF IDAHO)
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On this
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Notary Public, personally appeared Wallace D. Lovan and Venita I. Lovan, known
or identified to me to be the 261-e}2Y of Cherry
Lane Recreation, Inc. respectively, and acknowledged to me that they executed the
same as P2 Ef (0CAc.r and SEG/2ff z-,9 YO of Cherry Lane
Recreation, Inc.
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AGREEMENT - Page 11
RESOLUTION NO. 2 ?tq
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN,
SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING
THE MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AN
AGREEMENT ENTITLED "AGREEMENT", BY AND BETWEEN THE CITY
OF MERIDIAN, IDAHO INDEPENDENT BANK, AND CHERRY LANE
RECREATION, INC., AN IDAHO CORPORATION.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
MERIDIAN, IDAHO:
WHEREAS, it is in the best interests of the City of Meridian to enter into an
agreement with IDAHO INDEPENDENT BANK AND CHERRY LANE
RECREATION, INC., an Idaho Corporation, denoted as "AGREEMENT", a copy of
which is attached hereto marked as Exhibit "A" to this Resolution, the reasons and
authority for which are as set forth in said Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL, as follows:
1. The Mayor and Cleric are hereby authorized to enter into and on behalf
of the City of Meridian that certain agreement with IDAHO INDEPENDENT
BANK AND CHERRY LANE RECREATION, INC., an Idaho Corporation, entitled
"AGREEMENT", by and between the City of Meridian and IDAHO
INDEPENDENT BANK AND CHERRY LANE RECREATION, INC., an Idaho
Corporation, a copy of which is attached hereto marked as Exhibit "A" to this
Resolution and to bind this City to its terms and conditions.
RESOLUTION AUTHORIZING THE MAYOR TO ENTER — PAGE 1 OF 2
INTO AN AGREEMENT WITH IDAHO INDEPENDENT
BANK AND CHERRY LANE RECREATION, INC.
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PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN, IDAHO, this
day or 2000.
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APPROVED BY THE MAYOR OF THE CITY OF MERIDIAN, IDAHO, this
day of `i/ L a-1 &f 2000.
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RESOLUTION OF THE CITY OF MERIDIAN — PAGE —
AUTHORIZING THE MAYOR TO ENTER
INTO A LESSOR'S STATEMENT CONCERNING AGREEMENT OF LEASE
DATED OCTOBER 30, 1978
CERTIFICATE OF CLERK
OF
THE CITY OF MERIDIAN
I. the undersigned, do herebv certify:
1. That I am the duly appointed and elected Cleric of the City of Meridian,
a duly incorporated City operating under the laws of the State of Idaho, with its
principal office at 33 East Idaho, Meridian, Idaho.
2. That as the Citv Clerk of this Citv, I am the custodian of its records and
minutes and do hereby certify that on the �� day of ���—rc , 2000,
the following action has been taken and authorized:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN,
SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING THE
MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AN
AGREEMENT ENTITLED "AGREEMENT", BY AND BETWEEN THE CITY OF
MERIDIAN AND IDAHO INDEPENDENT BA1NK AND CHERRY LANE
RECREATION, INC., AN IDAHO CORPORATION.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
MERIDIAN, IDAHO:
WHEREAS, it is in the best interests of the City of Meridian to enter into an
agreement with IDAHO INDEPENDENT BANK AND CHERRY LANE
RECREATION, INC., an Idaho Corporation, denoted as "AGREEMENT", a copy of
which is attached hereto marked as Exhibit "A" to this Resolution, the reasons and
authority for which are as set forth in said Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL, as follows:
I. The Mayor and Cleric are hereby authorized to enter into and on behalf
of the City of Meridian that certain agreement with IDAHO INDEPENDENT
BANK AND CHERRY LANE RECREATION, INC., an Idaho Corporation, entitled
"AGREEMENT", by and between the City of Meridian and IDAHO
INDEPENDENT BANK AND CHERRY LANE RECREATION, INC., an Idaho
Corporation, a copy of which is attached hereto marked as Exhibit "A" to this
Resolution and to bind this City to its terms and conditions.
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STATE OF IDAHO,
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County of Ada,
On this Sr day of Aga Ll ' , in the year 2000, before me,
a Notary Public, appeared WILLIAM
G. BERG, JR., known or identified to me to be the City Cleric of the City of
Meridian, Idaho, that executed the said instrument, and acknowledged to me that he
executed the same on behalf of the City of Meridian.
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