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Agreement for Donation of Real Property - Reta Huskey Park at Isola Creek Sub No. 4 with Toll ID I, LLCAGREEMENT FOR DONATION OF REAL PROPERTY R.eta Huskey Park at Isola Creels Subdivision No 4 This Donation Agreement (this "Agreement") is made and entered into this day of December, 2016 (the "Effective Date") between Toll ID I LLC, an Idaho limited liability company ("Donor"), and the City of Meridian, an Idaho municipal corporation ("City"). RECITALS A. Donor owns that certain real property located in Ada County, Idaho legally described in Exhibit A attached hereto (the "Property" or "Real Property"). B. The Property is the future Lot 28 in Block 5 of Isola Creek Subdivision No. 4 (the "Subdivision'). Donor has received preliminary plat approval for the Subdivision by City and is presently in the process of finalizing the final plat for the Subdivision. C. City desires to acquire the Property to develop a public park. D. Donor desires to donate the Property to City, subject to City's acceptance thereof as provided herein, to make a charitable donation to further City's goal of developing a public park. E. Donor and City desire to enter into this Agreement to memorialize and implement the terms of their mutual agreement with respect to the donation and acceptance. AGREEMENT NOW, THEREFORE, in consideration of the recitals above (which are incorporated herein by this reference) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Donor and City agree as follows: I . DONATION. Promptly after recording the final plat for the Subdivision, and subject to the terms and conditions of this Agreement, Donor will execute and deliver to Titleone Corporation, 1101 W. River Street, Suite 201, Boise, Idaho 83702; Attn: Scott Darling; 208-287.5300; sdarling@titleonecorp.com ("Escrow Agent") a gift deed for the Property in the form attached hereto as Exhibit B (the "Gift Deed") and notify City thereof. City will have a period of thirty (3 0) days after receipt of Donor's notice (the "Acceptance Period") to accept the Gift Deed as provided in Section 6.1. 2. AGREEMENT OF CHARITABLE CONTRIBUTION. If City accepts the Gift Deed, City understands that Donor may be entitled to claim a charitable contribution deduction under Code § 170 for the fair market value of the Property, It is further agreed and understood that City has not provided, and will not be required to provide, any goods, services or other thing of value to Donor in connection with this transaction. This Agreement and the related documents will be deemed a contemporaneous written acknowledgment for purposes of the substantiation requirements of Code § 170 and Treas. Reg. § 1.170A -13(f). City agrees to provide further information or documentation as Donor may reasonably request from time to time in order to claim a charitable deduction under Internal Revenue Code § 170, and to IRS Form 8283, Noncash Charitable Contribution Form, to acknowledge receipt of the Property. 3. PROPERTY CONVEYED AS -IS. If City accepts the Gift Deed, City understands, acknowledges and agrees that the Property is conveyed to, and accepted by, City in its "AS IS" condition with all faults, known or unknown, and without any representation as to quality or fitness of any kind and WITHOUT WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER WHATSOEVER, Thus, City acknowledges that Donor has made no representation or warranty of any kind in connection with any matter relating to the condition, value, fitness, or City's intended use of the Property upon which City has relied directly or indirectly for any purposes except as expressly set forth in this Agreement. City further acknowledges that DONATION AGREEMENT PAGE I OF 8 13952653.5 [7476-901 it may conduct or have the opportunity to conduct its own inspection of the Property as provided in this Agreement or otherwise, and City is relying solely upon its own inspection in determining to receive and accept the Property. City understands that the consequences of the foregoing is that should City suffer any damages relating to the Property, City will be precluded from making any claim against Donor and the other parties released herein, regardless of whether City knew those claims existed as of the date hereof. After the Effective Date of this Agreement, the City and the City's authorized representatives shall have reasonable access to the Property. 4. DUE DILIGENCE. From and after the Effective Date, City may, at is sole cost and expense, inspect the Property as the City deems appropriate, including an environmental audit for the purpose of determining the nature and extent of any hazardous substances, hazardous waste, petroleum, or underground storage tanks on the Property. Any environmental audit, if obtained by City, will be conducted in substantial compliance with the American Society for Testing and Materials (ASTM) Standard E 1527-05 or its replacement. If City objects to any matters identified in its inspections or in any environmental audit, City will notify Donor of its disapproval, which notice will specify the disapproved matters. Within ten (10) days after the receipt of the objection notice, Donor will either (a) correct the disapproved matters, (b) give reasonable written assurances to Donor will correct disapproved matters will be on or before the expiration of the Acceptance Period, or (c) notify City that Donor is not willing or able to remove the disapproved matters. City need not accept the Gift Deed if matter disapproved by City is not corrected before the expiration of the Acceptance Period; provided, however, City may elect to waive its objection and accept the Gift Deed. If City fails to accept the Gift Deed, City will restore any damage or disfigurement caused by City's inspections. 5. TITLE REVIEW. From the Effective Date, City may, at is sole cost and expense, obtain a commitment for title insurance ("Commitment") for the Property issued by Escrow Agent on such terms as City may desire. If City objects to any matters identified in the Commitment, City will notify Donor of its disapproval, which notice will specify the disapproved matters. Within five (5) days after the receipt of the objection notice, Donor will either (a) remove the disapproved matters, (b) give reasonable written assurances to Donor will remove disapproved matters will be removed on or before the expiration of the Acceptance Period, or (c) notify City that Donor is not willing or able to remove the disapproved matters. City need to accept the Gift Deed if matter disapproved by City cannot be removed before the expiration of the Acceptance Period; provided, however, City may elect to waive its objection and accept the Gift Deed. 6. ACCEPTANCE; CLOSING 6.1 Acceptance. During the Acceptance Period, City may accept the Gift Deed by delivering a notice to Donor and Escrow Agent that the City desires to accept the donation and proceed to closing (the "Acceptance Notice"). If City fails to accept the donation within the Acceptance Period for any reason, then Escrow Agent will return the Gift Deed to Donor and this Agreement will terminate. City and Donor may extend the Acceptance Period by written agreement. 6.2 Closing. The closing will occur at Escrow Agent's office on any day convenient for Donor, City and Escrow Agent, but not later than ten (10) days after City's delivery of the Acceptance Notice. On or before closing, Donor and City will provide and execute any documents reasonably requested by Escrow Agent or the other party to close the donation as provided herein. City will be responsible for payment of any of Escrow Agent's closing fees. 6.3 Title Insurance. If City accepts the Gift Deed, the City may, at its cost, purchase an owner's policy of title insurance in such amount and in such form as City desires. Donor agrees to execute any affidavit reasonably required by Title Company for issuance of such policy, while giving effect to the provisions of this Agreement. DONATION AGREEMENT PAGE 2 OF S 13052653-5 t7476 -9D] 6.4 Taxes. City and Donor acknowledge that Donor, pursuant to Idaho Code § 50- 1380, will pay all real property taxes assessed against the Property for the calendar in which the Plat is recorded, and any prior years. If Donor provides the Gift Deed to Escrow Agent during any subsequent calendar year, then Donor will pay to City, at closing, the amount identified by Escrow Agent as the Donor's share of the real property taxes for the Property for the then current calendar year, prorated as of the date Donor provided the Gift Deed to Escrow Agent. City will pay the real property taxes for the then calendar year when due. If the real property taxes for the then current calendar year have not been calculated, Escrow Agent will estimate the real property taxes based on the prior calendar year's levy rate multiplied by the market value of the Property declared by City for the title policy issued pursuant to Section 6.3 (or, if none, Donor's reasonable estimate of the market value of the Property). 6.5 Financial Encumbrances. On or before closing, Seller agrees to discharge any mortgage, deed of trust or mechanic's lien claim against the Property arising by, from or through Donor. If, after closing, City receives any notice of any mortgage, deed of trust or mechanic's lien claim with respect to the Property that arises by, from or through Donor, then will promptly notify Donor. Donor will promptly discharge (or cause to be bonded over, in the case of any claim of mechanic's lien that Donor reasonably elects to dispute) the same and provide City with evidence of its release. 7. DEFAULT. Neither party shall be deemed to be in default under this Agreement unless the non -defaulting party first provides the defaulting party with a written notice of default (which notice shall describe the alleged default with particularity) and a period of ten (10) days to cure such default. In the event of any default, the nondefaulting party may enforce any right or remedy available at Iaw or equity, including specific performance. In the event any action is filed to enforce this Agreement, the prevailing party in the action will be entitled to recover the cost of the action, including attorneys' fees. 8. GENERAL 8.1 Entire Agreement. This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter hereof. No extension, change, modification or amendment to or of this Agreement of any kind whatsoever will be made or claimed by Donor or City, and no notice of any extension, change, modification or amendment made or claimed by Donor or City will have any force or effect whatsoever unless the same will be endorsed in writing and be signed by the party against which the enforcement of such extension, change, modification or amendment is sought, and then only to the extent set forth in such instrument. 8.2 Severabili1y. In the event any term or provision of this Agreement will be held illegal, invalid or unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement will not be affected thereby. Each remaining term and provision will be valid and will remain in full force and effect. 8.3 Governing Law. This Agreement will be construed and interpreted in accordance with, and will be governed by, the laws of the State of Idaho. 8.4 Incorporation by Reference. All of the exhibits attached to this Agreement and all documents in the nature of such exhibits, when executed, are by this reference incorporated in and made a part of this Agreement. 8.5 Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. In this Agreement and all exhibits hereto, the words "including" will be construed to include "without limitation." [ end of text; signature page follows l DONATION AGREEMENT PAGE 3 OF 8 ]3052653-5[7476-90] DATED as of the Effective Date. "Donor" ATTEST: Ci Clerk DONATION AGREEMENT 13052653-5(7476-901 TOLL ID I LLC, an Idaho limited liability company By: V \ Thomas M. Coleman, Jr. Division President CITY OF MERIDIAN, an Idaho municipal corporation By: / �— Tammy deee d Mayor CC'rvuf o jD W m � IAIV41 SEAL PAGE 4 OF 8 EXHIBIT A LEGAL DECRIPTTON OF THE PROPERTY Description for Meridian City Park Lot Proposed Lot 2.8 Block 5: Isola Creek Subdivision No. 4 A parcel of land located in the SW'/4 of Section 35, TAN., RAW., B.M., Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the West 114 corner of said Section 35, from which the SW corner of said Section bears South 00`53'07" West, 2643.59 feet; thence along the West boundary of said SW South 00°53'07" West, 1534.59 feet to a point on the centerline of Five Mile Creek; thence along said centerline South 46°21'53" East, 68.09 feet to the POINT OF BEGINNING; Thence leaving said centerline North 00°53'07" East, 128.03 feet; Thence South 61002'44" East, 146.38 feet; Thence South 56°58'40" East, 56.98 feet; Thence South 51 055'29" East, 95.78 feet; Thence South 66°44'55" East, 92.52 feet; Thence South 76016'47" East, 145.48 feet; Thence South 80°38'53" East, 84.69 feet; Thence South 89°40'28" East, 205.98 feet; Thence North 00°19'32" East, 25.77 feet; Thence North 55028'44" East, 276.37 feet; Thence North 00°39'48" East, 35.55 feet; Thence North 31049'25" West, 152.99 feet to a point on a curve; Thence 140.05 feet along the arc of a non -tangent curve to the right, said curve having a radius of 575.00 feet, a delta angle of 13'57'19", and a long chord bearing North 49'24'10" East, 139.70 feet to a point of tangency; Thence North 56022'50" East, 114.96 feet to a point of curvature; Thence 163.59 feet along the arc of a curve to the right, said curve having a radius of 275.00 feet, a delta angle of 34005'00", and a long chord bearing North 73°25'20" East, 161.19 feet; Thence South 00046'25" West, 777.89 feet to a point on the centerline of Five Mile Creek; Thence along said centerline: Thence North 82°34'53" West, 988.72 feet to a point of curvature; Thence 114.41 feet along the arc of a curve to the right, said curve having a radius of 181.00 feet, a delta angle of 36°13'00", and a long chord bearing North 64°28'23" West, 112.51 feet to a point of tangency; Thence North 46°21'53" West, 249.44 feet to the POINT OF BEGINNING, EXCLUDING THEREFROM: A parcel of land located in the SW % of Section 35, T.4N., RAW., B.M., Meridian, Ada County, Idaho, more particularly described as follows: 150121-PARK.DE&DOCX DONATION AGREEMENT PAGE 5 OF 8 €3052653-5 [7476-901 Commencing at the West 114 corner of said Section 35, from which the SW corner of said Section bears South 00053'07" West, 2643.59 feet; thence along the West boundary of said SW'/4 South 0053'07" West, 1534.59 feet to a point on the centerline of Five Mile Creek; thence along said centerline South 46°21'53" East, 68.09 feet; thence leaving said centerline North 00053`07" East, 128.03 feet; thence South 61002'44" East, 146.38 feet; thence South 1314'30" West, 70.85 feet to the POINT OF BEGINNING," Thence South 46021'53" East, 40.00 feet; Thence South 43°38'07" West, 24.00 feet; Thence North 4621'53" West, 40.00 feet; Thence North 43038'07" East, 24.00 feet to the POINT OF BEGINNING. Said exclusion parcel containing 960 SF, more or less. Proposed City Park Lot containing 387,798 SF or 8.90 acres, more or less. DONATION AGREEMENT PAGE 6 OF 8 13052653-5[7476-901 When recorded, please return to: Meridian City Clerk 33 East Broadway Avenue Meridian, Idaho 63642 EXHIBIT B FORM GIFT DEED GIFT DEED Toll ID I LLC, an Idaho limited liability company ("Grantor") hereby grants and conveys unto the City of Meridian, an Idaho municipal corporation, whose current mailing address is 33 E. Broadway Avenue, Meridian, Idaho 83642 ("Grantee"), all of Grantor's right, title and interest in that certain real property Iocated in Ada County, Idaho, legally described as ("Property"): Lot 28 in Block 5 of Isola Creek Subdivision No. 4, according to the official plat thereof recorded in the real property records of Ada County, Idaho. TO HAVE AND TO HOLD the Property, with its easements, water and water rights, and all other rights and appurtenances unto Grantee, and Grantee's successors and assigns forever. SUBJECT TO the lien of real property taxes for the then current calendar year not yet due and payable, all matters of record or appearing from a careful inspection of the land, and anything made, done or suffered by Grantee. GRANTOR: TOLL ID I LLC, an Idaho limited liability company STATE OF IDAHO ss. County of Ada [signature lines removed from proposed form] On this day of , in the year of 201_, before me, a notary public, personally appeared Thomas M. Coleman Jr., known or identified to me to be the Division President of Toll ID I LLC, an Idaho limited liability company, the company that executed the instrument on behalf of said company and acknowledged to me that such company executed the same in said company name. `signature lines removed from proposed form ] Notary Public for Idaho Residing at: My commission expires: DONATION AGREEMENT PAGE 7 OF 8 13052653-5 [747690] ACCEPTANCE The undersigned Grantee hereby agrees to accept title to the Property described in the Gift Deed. Dated this day of , 201 CITY OF MERIDIAN, an Idaho municipal corporation [ signature lines removed from proposed form J STATE OF IDAHO ) ) ss. County of Ada } On this day of , 2016, before me, , a Notary Public in and for said State, personally appeared Tammy de Weerd and C.day Coles, known or identified to me to be the Mayor and the City Clerk, respectively, of the City of Meridian, and the persons who executed the instrument on behalf of said City, and acknowledged to me that such City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. [signature lines removed from proposed form J Notary Public for Idaho Residing at: My commission expires: DONATION AGREEMENT PAGE 8 OF 8 13052653-5 [7476-90)