PZ - Road Construction Cooperative Development Agreement Updated Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
AMENDED AND RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT
AGREEMENT (this "Agreement") is made and entered into as of the date last set forth below (the
"Effective Date"), by and among 10 MILE FRANKLIN, LLC, an Idaho limited liability company (10 Mile")
and HOTEL-SLC, LLC, an Idaho limited liability company ("Hotel-SLC"). 10 Mile and Hotel-SLC are
sometimes collectively referred to as the "Parties" and individually as a "Party."
RECITALS
A. Hotel-SLC owns that certain real property legally described on Exhibit A, attached hereto and
made a part hereof(the "Hotel-SLC Property"and sometimes referred to herein as"parcel#1215131400").
B. 10 Mile owns that certain real property legally described on Exhibit B, attached hereto
and made a part hereof (the 10 Mile Property"), which 10 Mile Property is located immediately north of
the Hotel-SLC Property.
C. In April, 2021, 10 Mile made application to the City of Meridian (the "City") for
annexation, zoning, and concept plan review (collectively, the "Initial City Applications") in connection
with the 10 Mile Property for a development then known as "The Ten @ Meridian" and now known as
"Outer Banks Subdivision."
D. The concept plan associated with the Initial City Applications depicted a proposed public
road (commonly known as W. Cobalt Drive) extending from an existing approach on S. Ten Mile Road on
and over a portion of the 10 Mile Property and then extending on and over a portion of the Hotel-SLC
Property, as conceptually depicted on Exhibit C, attached hereto and made a part hereof. The portion of
W. Cobalt Drive shown on Exhibit C and located on the Hotel-SLC Property is sometimes referred to
herein as the "Off-Site Segment."
E. Hotel-SLC objected to the Initial City Applications because Hotel-SLC had not given
permission to 10 Mile to design the development of the 10 Mile Property with the Off-Site Segment on the
Hotel-SLC Property. The City acknowledged Hotel-SLC's objection and approved the Initial City
Applications on July 27, 2021, with the following condition of approval:
Prior to submittal of a preliminary plat application, the applicant [that is, 10 Mile] shall execute a
mutual agreement with the property owner of parcel #1215131400 [that is, Hotel-SLC] on the
terminus of W. Cobalt Dr. in conformance with the approved concept plan. If a mutual agreement
cannot be reached, the applicant shall design and construct the half section of W. Cobalt Dr., so
that the center line for the portion that abuts parcel #1215131400 is along the shared property
boundary, with the centerline of W. Cobalt Dr. eventually turning southwest (proceeding from east
to west)to allow for a stub in a location to be approved by ACHD.
The parties entered into that certain Road Construction and Cooperative Development Agreement, dated
August 27, 2021 (the "Original Agreement") in an attempt to reach such mutual agreement.
F. The Original Agreement stated that 10 Mile anticipated submitting a preliminary plat
application to the City in connection with the 10 Mile Property (the "Preliminary Plat Application") as
soon as practicable after the execution of the Original Agreement, and that the Preliminary Plat
Application would include preliminary road, utility and landscape design plans (the "Preliminary Design
Plans") for the Off-Site Segment. Further, the Preliminary Plat Application was to include an explanation
that the Preliminary Design Plans for the Off-Site Segment were to be reviewed by the applicable
governmental agencies (collectively, the "Governmental Agencies") as part of the Preliminary Plat
Application to ensure that the Project, including the Off-Site Segment, could and would be constructed in
the first phase of development of Outer Banks Subdivision.
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G. 10 Mile submitted the Preliminary Plat Application to the City without the Preliminary
Design Plans for the Off-Site Segment. Hotel-SLC reminded 10 Mile of 10 Mile's obligation to provide the
Preliminary Design Plans, and Hotel-SLC expressed to the City that, because such Preliminary Design
Plans had not been completed as contemplated, the hearing on the Preliminary Plat Application was best
delayed to allow review of the Preliminary Design Plans to catch up with the review of the Preliminary Plat
Application.
H. 10 Mile has requested that Hotel-SLC not object to the Preliminary Plat Application being
heard by the City's Planning & Zoning Commission ("Commission") on November 4, 2021. 10 Mile
verbally has assured Hotel-SLC that the Preliminary Design Plans will be completed, submitted, road
width has been approved and remaining elements of the Preliminary Design Plans are under review by
the applicable Governmental Agencies prior to the City's Council's review of the Preliminary Plat
Application. Hotel-SLC has agreed not to object to the Preliminary Plat Application being heard by the
Commission provided: (i) this Agreement is executed prior to the Commission hearing; (ii) the terms and
conditions of this Agreement to be completed prior to such hearing have been completed; and (iii) 10 Mile
agrees to a condition of Preliminary Plat approval that requires W. Cobalt Drive, including the Off-Site
Segment, to be completely constructed as part of the first phase of Outer Banks Subdivision.
I. The Parties desire to use good faith efforts to cooperate in order to, without limitation: (1)
provide for completion of the Preliminary Design Plans for the Project; (2) provide for the complete
construction of the Project; (3) provide for the allocation and payment of the Project Costs, defined below;
(4) contribute a portion of the Hotel-SLC Property (the "Hotel-SLC ROW")to Ada County Highway District
("ACHD"); and (4) contribute certain real property owned by 10 Mile (the 10 Mile Surplus Property") to
Hotel-SLC. The Hotel-SLC ROW and the 10 Mile Surplus Property are conceptually depicted on Exhibit
C.
J. Based upon the complexity and duration of the Project, the Parties contemplate that this
Agreement shall be modified, amended, updated and/or amended and restated as provided herein, which
may reflect updated requirements of Governmental Agencies having jurisdiction over the Project.
AGREEMENT
NOW THEREFORE, in consideration of the recitals above, which are incorporated herein, and
other good and valuable consideration, the receipt and sufficiency is hereby acknowledged, the Parties
hereby declare and agree, as follows:
1. Defined Terms.
"Construction Manager" shall mean an employee or contractor of 10 Mile, who shall coordinate
and supervise the construction of the Project and shall provide periodic status reports to 10 Mile
and Hotel-SLC.
"Engineer's Estimate" means an estimate of the Project Costs prepared by the Project
Engineer, defined below.
"Off-site Segment Improvements" means that portion of the Improvements, defined below,
associated with the Off-Site Segment.
"Project" consists of, and is defined collectively as, the design, construction and improvement of
public transportation improvements (including, without limitation, bicycle and pedestrian
improvements), utility improvements (including, without limitation, water, sewer, and storm
drainage) required by utility providers and/or the City, and landscape improvements required by
the City and/or ACHD (all of the above sometimes referred to herein as the "Improvements" or
the "Project Improvements") in connection with W. Cobalt Drive extending from the existing
approach on S. Ten Mile Road on, over, across, under and through the 10 Mile Property and the
Hotel-SLC Property, in the general location conceptually depicted on Exhibit C. The conceptual
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design of the road portion of the Project is based, in part, on 10 Mile's preliminary discussions
with ACHD and ACHD's May 17, 2021 comments in connection with the Initial City Applications,
which comments list possible findings for consideration that ACHD may identify when ACHD
reviews 10 Mile's future development applications (i.e., the Preliminary Plat Application), and
recommends that, with the future development applications, 10 Mile be required to construct a
46-foot wide collector street section with vertical curb, gutter, and 5-foot wide detached (or 7-foot
wide attached) concrete sidewalks within a 70-foot right-of-way.
"Project Costs" refers to all costs of completing the Project, including, without limitation: (i) all
design, permitting, construction, testing and inspection costs in connection with the Project and
utilities required by utility providers and the City; (ii) compensation for the Project Engineer and
Construction Manager; (iii) any and all legal costs of Hotel-SLC associated with the preparation,
review, negotiation and enforcement of this Agreement from and after November 1, 2021; (iv) any
and all reasonable consulting costs billed to Hotel-SLC by The Land Group from and after
November 1, 2021 associated with the Agreement and review of the Preliminary Design Plans
and Construction Drawings, defined below; and (v) all other costs related to and reasonably
necessary for completion of the Project, excluding: costs associated with any land use
development approvals in connection with Outer Banks Subdivision located on the 10 Mile
Property.
"Project Engineer" shall mean an engineer licensed in the State of Idaho and engaged by 10
Mile to manage and coordinate the design, permitting, testing, inspection and certification of the
Project.
2. Preliminary Plat. 10 Mile, at 10 Mile's sole cost and expense, shall present the
Preliminary Plat Application for Outer Banks Subdivision (the "Preliminary Plat") to the Commission on
November 4, 2021, and shall advise the Commission that: (i) 10 Mile is continuing to work with Hotel-SLC
to complete the Preliminary Design Plans for the Off-Site Segment; (ii) assuming the Commission
recommends approval of the Preliminary Plat to the City's City Council ("Council"), 10 Mile requests that
the Preliminary Plat be heard by the Council only after the Preliminary Design Plans for the Off-Site
Segment have been completed, submitted, road width has been approved, and remaining elements of the
Preliminary Design Plans are under review by the applicable Governmental Agencies; and (iii) 10 Mile
requests that the Commission adopt a condition of approval for the Preliminary Plat that requires the
Project to be completely constructed during the first phase of development of the Outer Banks
Subdivision.
3. Construction Drawings. 10 Mile shall use good faith efforts to complete, and work
diligently with the applicable Governmental Agencies in connection with approval of construction drawings
for the Project Improvements as soon as practicable following approval of the Preliminary Plat, which
construction drawings shall be designed in compliance with, without limitation, the standards of the
American Association of State Highway and Transportation Officials and the standards and specifications
set forth in the ACHD Policy Manual (the "Construction Drawings"). 10 Mile shall pay all applicable
fees in connection with review of the Construction Drawings and any related design plans in connection
with the Project Improvements. 10 Mile shall obtain any necessary third-party consents required by the
applicable Governmental Agencies for the Governmental Agencies' possession and potential use of the
Construction Drawings. In the event 10 Mile fails or neglects to perform 10 Mile's obligations hereunder,
all ownership interest in the Construction Drawings shall be transferred by 10 Mile to the applicable
Governmental Agencies at no cost to such Governmental Agencies, and such Governmental Agencies
may use the Construction Drawings for any use whatsoever including, without limitation, completion of the
Project Improvements.
4. Engineer's Estimate. Concurrently with preparation of the Construction Drawings, the
Project Engineer shall prepare a good-faith estimate of the total Project Costs in the form of the
Engineer's Estimate, with such Engineer's Estimate including, without limitation, separate line items for: (i)
engineering, design, and hard costs for the construction of the Project on the 10 Mile Property; and (ii)
engineering, design, and hard costs for the construction of the Project on the Hotel-SLC Property.
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5. Construction Contract. As soon as practicable after the Governmental Agencies have
approved the Construction Drawings, 10 Mile shall solicit a minimum of three (3) bids for construction of
the Project Improvements in compliance with the approved Construction Drawings. 10 Mile shall review
the bids with Hotel-SLC and determine the lowest responsive bidder acceptable to the applicable
Governmental Agencies. 10 Mile shall thereafter enter into a construction contract acceptable to the
Governmental Agencies and Hotel-SLC in connection with the Project Improvements (the "Construction
Contract"). 10 Mile and the Construction Manager shall provide for construction of the Project in
compliance with the Construction Contract and the Construction Drawings and shall diligently prosecute
such construction to completion. Upon execution of the Construction Contract, the Project Costs
reflected in the Engineer's Estimate, shall be inserted this Agreement as Exhibit D and a schedule for
completion of the Project shall be attached hereto as Schedule 1 (the "Project Schedule"), each via
mutually executed written amendment to this Agreement.
6. Property Dedication. Completion of the Project requires the Hotel-SLC ROW to be
dedicated to ACHD (in addition to any required dedication(s) on the 10 Mile Property) (the 10 Mile
ROW"). During development of the Construction Drawings, the Hotel-SLC ROW and the 10 Mile ROW
shall be definitively surveyed by 10 Mile and legal descriptions drafted, at 10 Mile's sole cost and expense
(collectively, the "Survey"). The Survey shall be provided to Hotel-SLC for approval, which approval shall
not be withheld, conditioned, or delayed so long as the Survey conforms with the Construction Drawings,
and the Survey shall be provided to ACHD for ACHD's approval. Following approval of the Survey by
both Hotel-SLC and ACHD, Hotel-SLC shall timely dedicate to ACHD such Hotel-SLC ROW, and 10 Mile
shall timely dedicate to ACHD such 10 Mile ROW, with warranty deed(s) (consistent in form with ACHD
Policy) to be recorded at such time as required by ACHD. In the event of any excess or unused right-of-
way, the Parties shall work with ACHD to have ACHD convey such excess or unused right-of-way,
according to law and ACHD Policy, to any property owner adjacent to such excess or unused right-of-
way.
7. License. While 10 Mile is preparing the Preliminary Design Plans, and during the term of
construction, as identified in the Project Schedule, 10 Mile and 10 Mile employees, contractors, agents,
successors, assigns and invitees (collectively, the 10 Mile Agents") shall have permission and license to
use the Hotel-SLC ROW and an area of the Hotel-SLC Property ten (10)feet beyond the Hotel-SLC ROW
(the "License Area") for, without limitation, ingress and egress on, over, across, under and through the
Hotel-SLC Property for the purpose of: delivering personal property and equipment to the Hotel-SLC
Property; testing; surveying; and for grading and construction in connection with completion of the Project
Improvements.
8. Construction Obligations. 10 Mile shall cause the work in connection with the
construction of the Project Improvements to be performed in a good workmanlike manner and in
compliance with all applicable laws, ordinances, rules, regulations and requirements of Governmental
Agencies. At all times during the performance of the work in connection with the Project Improvements,
and for at least one (1) year following the completion of such work, 10 Mile shall carry liability insurance
covering 10 Mile activities in connection with such work, as reasonably approved by Hotel-SLC. 10 Mile
shall cause Hotel-SLC to be named as an additional insured under such insurance. 10 Mile agrees to
indemnify, hold harmless and defend Hotel-SLC from and against any and all losses, damages, claims,
actions, liabilities, costs and expenses to which Hotel-SLC and/or any of the Governmental Agencies may
become subject, arising out of or based upon the work in connection with the Project Improvements due
to the negligence of 10 Mile employees, contractors, agents, successors, assigns, and invitees. 10 Mile
shall not create, or permit to be created or to remain, any mechanics' or materialmens' liens against the
Hotel-SLC Property.
9. Proiect Funding. Hotel-SLC shall be responsible for that portion of the Project Costs
equal to fifty percent (50%) of the hard construction costs for that portion of the Project Improvements
located within the Hotel-SLC ROW (the "Hotel-SLC Cost Contribution"), and 10 Mile shall be
responsible for the remainder of the Project Costs (the 10 Mile Cost Contribution"). The Hotel-SLC
Cost Contribution and the 10 Mile Cost Contribution are sometimes collectively referred to herein as the
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"Cost Contributions." Within five (5) business days of execution of the Construction Contract and prior
to 10 Mile issuing a notice to proceed to the contractor pursuant to the Construction Contract, Hotel-SLC
and 10 Mile shall each deposit their respective portion of the Cost Contributions into a construction
escrow account with First American Title Insurance Company ("Escrowee"), which Cost Contributions
shall be disbursed in connection with the Construction Contract and shall not be released, in whole or
part, until the Parties are satisfied that applicable liens have been satisfied and released. The Parties
shall enter into an escrow agreement reasonably acceptable to the Parties and the Escrowee governing
the obligations of the Parties with respect to the Cost Contributions (the "Cost Contributions Escrow
Agreement"), which Cost Contributions Escrow Agreement shall otherwise be consistent with the
obligations of the Parties as provided further herein.
Notwithstanding anything to the contrary herein, on or before the execution of this Agreement, 10
Mile shall deposit with Escrowee, the sum of Two Hundred Fifty Thousand and no/100 Dollars
($250,000.00) (the "Security Deposit") to secure 10 Mile's performance of 10 Mile's obligations in
connection with this Agreement using escrow instructions substantially similar to the escrow instructions
attached hereto as Exhibit E and made a part hereof. In the event the Security Deposit, in whole or in
part, is being held by Escrowee at the time the Parties enter into the Cost Contributions Escrow
Agreement, the Escrowee shall transfer any portion of the Security Deposit held by Escrowee into the
Cost Contribution Escrow Agreement as a portion of the 10 Mile Cost Contribution. Provided further, on or
before the execution of this Agreement, Erik Pilegaard shall deliver to Hotel-SLC a guaranty substantially
similar to the guaranty attached hereto as Exhibit F and made a part hereof, personally guarantying 10
Mile's performance of 10 Mile's obligations in connection with this Agreement.
10. True-Up Contribution. If, in the course of the applicable Governmental Agency review
of the Preliminary Plat, the dimensions of W. Cobalt Drive are required to be modified by the applicable
Governmental Agency such that the right-of-way width of Cobalt Drive is widened beyond the dimensions
identified in the definition of Project (the "Initial Dimensions"), then 10 Mile shall pay to Hotel-SLC a
"True-Up Contribution" calculated, as follows: the number of additional square feet in excess of the
Initial Dimensions on the Hotel-SLC Property shall be multiplied by Eleven and No/100 Dollars ($11.00)
per square foot. The True-Up Contribution shall be paid by 10 Mile directly to Hotel-SLC concurrently
with 10 Mile's payment of 10 Mile's Cost Contribution to the Escrowee.
11. 10 Mile Surplus Property Contribution. Within five (5) business days (the "Closing
Date") of the earlier of completion of construction of the Project Improvements or recordation of a final
plat of that portion of the 10 Mile Property that includes the 10 Mile Surplus Property, 10 Mile shall convey
the 10 Mile Surplus Property to Hotel-SLC.
Such conveyance shall be subject to the following:
11.1. Title Matters. Within ten (10) business days of the Governmental Agencies'
approval of the Construction Drawings, 10 Mile shall deliver or cause to be delivered to Hotel-
SLC a commitment for an owner's title insurance policy covering the 10 Mile Surplus Property in
the amount of the fair market value of the same, with standard form coverage together with
legible copies of all documents referenced therein as exceptions, showing marketable and
insurable title to the Property to be in 10 Mile subject only to: (i) title exceptions pertaining to liens
or encumbrances of a definite or ascertainable amount that shall be removed by 10 Mile on or
before the Closing Date; (ii) standard exceptions printed by the title insurer; and (iii) title
exceptions approved by Hotel-SLC, which approval shall not be unreasonably withheld,
conditioned, or delayed (collectively, the "Permitted Exceptions"). 10 Mile and Hotel-SLC shall
reasonably cooperate, at no cost to Hotel-SLC, to resolve any unpermitted exceptions identified
by Hotel-SLC prior to the Closing Date. Hotel-SLC shall not object to any title exceptions as
identified in that certain undated title commitment no. 735017 issued by Old Republic National
Title Insurance Company and received by Hotel-SLC on August 25, 2021. The conveyance shall
be by special warranty deed, subject to the Permitted Exceptions.
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11.2. Representations by 10 Mile Regarding the 10 Mile Surplus Property. 10 Mile
further represents and warrants as to the 10 Mile Surplus Property, as follows:
11.2.1. Taxes. All business, real estate or any other taxes due and payable with
respect to the 10 Mile Surplus Property for periods prior to the Closing Date will have
been or shall be paid by 10 Mile on or before the Closing Date.
11.2.2. Legal Compliance. To 10 Mile's knowledge, the 10 Mile Surplus
Property, and the current use and operation thereof, are in material compliance with
applicable county, state and other governmental laws, ordinances, regulations, licenses,
permits and authorizations and there exists no condition with respect to 10 Mile's use,
occupancy or operation of the same that materially violates applicable environmental,
zoning, building, health, fire or other applicable law, ordinance or regulation.
11.2.3. Toxic or Hazardous Substances. To 10 Mile's knowledge without
requirement of independent investigation, no Toxic or Hazardous Substance (as defined
below) or storage tanks containing Toxic or Hazardous Substance, exist in, on, under or
about the 10 Mile Surplus Property, nor has any Toxic or Hazardous Substance
previously been in, on, under or about the 10 Mile Surplus Property (except as set forth
below). To 10 Mile's knowledge, no pending or threatened litigation, proceedings or
investigations exist before or by any administrative agency in which any person or entity
alleges the presence, release, threat of release, placement in, on, under or about the 10
Mile Surplus Property, or the generation, transportation, storage, treatment or disposal at
the 10 Mile Surplus Property of any Toxic or Hazardous Substance. For purposes of this
Agreement, the term "Toxic or Hazardous Substance" means any substance that has
been determined by any applicable regulation, law, order or rule, or any proposed
regulation, law, order or rule, promulgated by any governmental agency of appropriate
jurisdiction, in each case as may be amended, to constitute a toxic and/or hazardous
waste or toxic and/or hazardous substance or petroleum product.
11.2.4. No Mechanic's Liens. To 10 Mile's knowledge, there are no unrecorded
mechanic's or materialmen's liens or any claims for such liens that exist affecting the 10
Mile Surplus Property as of the Effective Date. As of the Closing Date, no work or
material shall be performed or furnished by 10 Mile for which payment will not have
previously been made.
The 10 Mile Surplus Property shall otherwise be in its as-is, where-is condition without warranty,
including warranties as to Hotel-SLC's intended purpose for the 10 Mile Surplus Property.
11.3. Closing. The closing of the conveyance of the 10 Mile Surplus Property shall be
conducted at the offices of Escrowee. General real estate taxes and all other levies and charges
against the 10 Mile Surplus Property for the year of the date on which the conveyance occurs
shall be prorated on the basis of the most recent ascertainable tax bills or assessments.
Standard coverage title insurance premiums and any impositions on 10 Mile on the conveyance
shall be paid by 10 Mile. Extended and/or lender coverage title insurance premiums and
endorsements, if any, shall be paid by Hotel-SLC. Escrow fees relating to the transaction
contemplated herein shall be equally divided between the Parties. All recording fees in
connection with the conveyance shall be paid by 10 Mile.
12. Future Development of Hotel-SLC Property. By entering into this Agreement, Hotel-
SLC recognizes and agrees that 10 Mile makes no representations or warranties regarding the possibility
of future modifications of applicable requirements of governments having jurisdiction, including, without
limitation, the City or ACHD, in connection with any future development of the Hotel-SLC Property.
13. Notices. Any and all notices, demands, requests or other communications required
under this Agreement, shall be in writing and shall be deemed properly served or delivered, if delivered by
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hand to the party to whose attention it is directed, or when sent, three (3) business days after deposit in
the U.S. mail, postage prepaid, certified mail, return receipt request, or one (1) day after deposit with a
nationally recognized air carrier providing next day delivery, or if sent via electronic transmission, when
received, addressed as follows:
For 10 Mile: For Hotel-SLC:
c/o Erik Pilegaard c/o Brian G. Black
837 Jefferson Blvd. 16155 N. High Desert Street
West Sacramento, CA 95691-3205 Nampa, Idaho 83687
erik(a)elkventures.net bgblack(a)ameritel inns.com
With a copy to: With a copy to:
Clark Wardle, LLP Butler Spink, LLP
c/o Hethe Clark c/o JoAnn Butler
251 E. Front Street, Suite 310 967 E. Parkcenter Blvd. #313
Boise, Idaho 83702 Boise, Idaho 83706
hclarkCcDclarkwardle.com ibutler(a)butlerspink.com
Either Party shall give notice to the other party of any change of their address for the purpose of this
section by giving written notice of such change to the other in the manner herein provided.
14. Default; Cure. Failure or unreasonable delay by any Party to perform or otherwise act in
accordance with any term or provision of this Agreement for a period of thirty (30) days following written
notice thereof from the other Party (the "Cure Period") (three (3) business days following any failure to
make a monetary payment, including Cost Contribution per Section 7 hereof), shall constitute a default
under this Agreement; provided, however, that if the failure or delay is such that more than thirty (30)
days would reasonably be required to perform such action or comply with any term or provision hereof,
then such Party shall have such additional time as may be reasonably necessary to perform or comply so
long as such Party commences performance or compliance within such 30-day period and diligently
proceeds to complete such performance or fulfill such obligation (the "Extended Cure Period"). The
written notice provided for above shall specify the nature of the alleged default and the manner in which
said default may be satisfactorily cured, if possible. In the case of any such default that cannot with
diligence be cured within the Cure Period or the Extended Cure Period, then the time allowed to cure
such failure shall be extended for such period as may be necessary to complete the curing of the same
with diligence and continuity. Subject to Section 1.6 below, in the event either Party fails or neglects to
perform its obligations under the terms and provisions of this Agreement in the time and manner required
herein, the other Party hereto shall be entitled to all remedies available at law or in equity.
15. Miscellaneous Provisions.
15.1. Representations and Warranties. Hotel-SLC represents and warrants that it has
full power and authority to enter into this Agreement and complete the transactions identified
herein. 10 Mile represents and warrants that it has full power and authority to enter into this
Agreement and complete the transactions identified herein including, without limitation, the
conveyance of the 10 Mile Surplus Property identified herein.
15.2. Entire Agreement. This Agreement sets forth the entire understanding of the
Parties with respect to the matters set forth in this Agreement as of the Effective Date; it
supersedes all prior oral or written agreements of the Parties as to the matters set forth in this
Agreement; and it cannot be altered or amended except by an instrument in writing, signed by the
Parties.
15.3. Modifications. Based upon the complexity of the Project, the Parties contemplate
that this Agreement shall be modified, amended, updated and/or amended and restated to reflect
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changing conditions, and as the Project design is reviewed and approved by the applicable
Governmental Agencies. No modifications, amendments, updates and/or amendments and
restatements shall be effective unless in writing and signed by the Parties.
15.4. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their successors and assigns. This Agreement shall not confer
any rights or remedies upon any person other than the Parties and their respective successors
and assigns. Any assignment of this Agreement shall not relieve the assigning Party of its
obligations hereunder.
15.5. Severability; Construction. If any term or provision of this Agreement, to any
extent, shall be held invalid or unenforceable, the remaining terms and provisions hereof shall not
be affected thereby, but each such remaining term and provision shall be valid and enforced to
the fullest extent permitted by law. The rule of strict construction does not apply to this
Agreement. This Agreement shall be given a reasonable construction so that the intentions of the
parties to confer a useable right of enjoyment, as provided herein, are carried out.
15.6. Dispute Resolution. In the event a disagreement arises between the Parties in
connection with this Agreement, the Parties agree to first engage in good-faith mediation. The
Parties agree to appoint a mediator within thirty (30) days of written demand for mediation by
either Party, and to complete the mediation within forty-five (45) days of the appointment of the
mediator. If the result of the mediation is unsatisfactory to either Party, then such Party may avail
itself of any other remedies provided in this Agreement or at law or equity.
15.7. Enforcement; Attorneys' Fees. In the event of a breach of any term, covenant,
restriction, or condition of this Agreement by any Party, the other Party shall have, in addition to
the right to collect damages, the right to enjoin such breach or threatened breach in a court of
competent jurisdiction. In the event a Party initiates or defends any legal action or proceeding in
any way connected with this Agreement, the prevailing Party in any such action or proceeding (in
addition to any other relief that may be granted, whether legal or equitable), shall be entitled to
recover from the losing Party in any such action or proceeding its/their reasonable costs and
attorneys' fees, including on appeal. All such costs and attorneys' fees shall be deemed to have
accrued on commencement of any legal action or proceeding and shall be enforceable whether
or not such action or proceeding is prosecuted to judgment.
15.8. Brokers. No brokers are involved in this transaction. In the event a claim for a
brokerage commission is made against either Party, such Party shall indemnify, defend, and hold
the remaining Party harmless from such claims.
15.9. Time of Essence. All times provided for in this Agreement or in any other
instrument or document referred to herein or contemplated hereby for the performance of any act
will be strictly construed, it being agreed that time is of the essence of this Agreement.
15.10. Waiver. The waiver by any Party of any right granted to it under this Agreement
is not a waiver of any other right granted under this Agreement, nor may any waiver be deemed
to be a waiver of a subsequent right obtained by reason of the continuation of any matter
previously waived.
15.11. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Idaho.
15.12. Counterparts; Electronic Signatures. This Agreement may be executed in
counterparts, each of which is deemed an original, but all of which constitute one and the same
instrument. The signature pages may be detached from each counterpart and combined into one
instrument. This Agreement may be signed and delivered by pdf or other electronic means,
either of which will be effective as an original.
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-8
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
15.13. Exhibits. All Exhibits, Schedules and/or Figures to this Agreement are
incorporated by reference and made a part of this Agreement as if the Exhibits, Schedules and/or
Figures were set forth in their entirety in this Agreement; provided, however, if there is any conflict
between the Exhibits, Schedules and/or Figures attached hereto and the provisions of this
Agreement, the terms of this Agreement shall govern.
15.14. Further Acts and Cooperation. Each Party shall deliver to the other Party, from
time to time, such further information, plans, instruments, records, or other documents or
assurances as may be reasonably necessary to give full effect to this Agreement and to allow
each Party fully to exercise such Party's obligations and enjoy such Party's rights accorded by
this Agreement.
15.15. Unavoidable Delays. Each Party shall be excused from further performance
under this Agreement as a consequence of any delays or defaults in the performance of this
Agreement unavoidably caused by the act of any governmental authority, the act of any public
enemy, acts of God, nature, war, war defense condition, strikes, walkouts or other causes beyond
the control of the Party whose performance is impaired.
15.16. No Partnership. This Agreement shall not be interpreted or construed to create
an association,joint venture, agency relationship, or partnership between the Parties or to impose
any partnership obligation or partnership liability upon either Party. Neither Party shall have any
right, power, or authority to enter into any agreement or undertaking for, or act on behalf of, or to
act as or be an agent or representative of, or to otherwise bind, the other Party.
15.17. Recording. A memorandum of this Agreement, substantially similar to the
memorandum, attached hereto as Exhibit G and made a part hereof(the "Memorandum"), shall
be signed by the Parties on or before the Effective Date and recorded in the public records of Ada
County, Idaho as soon as practicable on or after the Effective Date. Simultaneous with execution
of such Memorandum, 10 Mile and Hotel-SLC shall deliver a termination of the Memorandum in
recordable form to the Escrowee, substantially similar to the termination, attached hereto as
Exhibit H and made a part hereof, to be held in escrow pending the completion of the
construction of the Project Improvements and acceptance of the Project Improvements by the
applicable Governmental Agencies.
[signature page follows]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-9
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
10 Mile and Hotel-SLC each have been duly authorized to execute this Amended and Restated
Construction and Cooperative Development Agreement to be effective as of the Effective Date and each
Party agrees to be bound by the terms and conditions set forth herein.
HOTEL-SLC: 10 MILE:
Hotel-SLC, LLC, 10 Mile Franklin, LLC,
an Idaho limited liability company an Idaho limited liability company
Authenti By: Franklin Mile Managers, LLC
33ylaZ qta& Its: Manager
By:
IT nan . lac , Manager By: Sunny Cove, LLC
11/03/2021 Its: AN�anqager
Date: r &Wtwm
By: z
1MW1EHd%tW, Manager
11/03/2021
Date:
By: Elk-1 Managers, LLC
Its: Manager
By. rAuthenti
Y&#aa d
11/&*RitegaaFd;Manager
11/03/2021
Date:
SCHEDULE AND EXHIBITS:
Exhibit A— Legal Description of Hotel-SLC Property
Exhibit B — Legal Description of 10 Mile Property
Exhibit C — Depiction of the Project and 10 Mile Surplus Property
Exhibit D — Project Costs and Cost Contributions
Exhibit E— Escrow Instructions
Exhibit F— Personal Guaranty
Exhibit G— Memorandum
Exhibit H — Termination of Memorandum
Schedule 1 — Construction Schedule
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-10
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT A
Legal Description of Hotel-SLC Property
The South One-Half of the Northeast Quarter of Section 15, Township 3 North, Range 1 West, Boise
Meridian, Ada County, Idaho.
LESS AND EXCEPTING that portion described in Second Judgment and Decree of Condemnation in
favor of The State of Idaho Transportation Board recorded August 15, 2012, as Instrument No.
112082280, Ada County Records.
ALSO LESS AND EXCEPTING that portion deeded to Ada County Highway District in Warranty Deed
recorded August 15, 2012, as Instrument No. 112082492, Ada County Records.
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT A-1 of 1
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT B
Legal Description of 10 Mile Property
T H;E 10 AST M ER IDIAN
CITY OF MERIDIA44 ANNEXATION
YM N9I I'd 'if the NF114 of SeLtIM 16, 7 W.A IW., A.M.. Ciry of Mwd an, Ada Caas+tp,
vjm3 rove P�artcu and descnfsea as folcws-
BEmINIVNO al NF- kor of"id rnt on 1,�frorn which the N1/4 corner of Laid tectlon
'5 oea-s NEB 624920"V=.26AD.72 feet
hence Werg the Eaai boundary Inn of aard Section 15 Souah 01Y 33'116"Wo:%I, 1 320.00
fee.o, N1f16 wm+ar of Reid eecliom 15q
hence aloM*m Aaut bourtdary line of ire NE114 of the NE1A of said gealion 19 North
89,1$0="V'm7 . 1,921 18 rtm(Lo:PIV NE111-9 of mid swtAupl 1S. ■
tl�ew,a aderg We Weet bowKiiAry line,¢f NE 14 of the NE 1 Jed of said Section 15 N orth
WNW'Eat 1 326.D6 f9010 t E i o 16 ct>mor of"id Gorton 15;
mince warp zho Main beur-amy+ line of raid man 15 Souih W15'23'ESL, 1,120.37
f*I■t�t� F�EAL DINT r�F �EI:�N�IING. nt��ning�0.�3 �crx�s. mars ar ler�,
772
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT B-1 of 1
Authentisign ID:009C7EF8-60A1-4519-81 BA-FB9B1979622F
EXHIBIT C
Preliminary Depiction of the Project and 10 Mile Surplus Property
l ,10 ■ !l .
— \
_ r .
Q - --
Cobalt Drive m-:-14
noQ$"AM
cubmit a"
F u4Hu€Fwns.cn �SO AM
d Cabo Dfte 11tlrr1 Censroelw
Cotrin n 9L LW d-d
Ful Vfrdn
97.8%
Dwm od!*%vmkvoon 22MS SF 8&4%d uw rnm
-pru%9wv"mW
Initial concept design with a 46-foot wide collector street section with vertical curb, gutter, and 5-foot wide
detached (or 7-foot wide attached) concrete sidewalks within a 70-foot right-of-way
Blue areas shown above to be dedicated to ACHD by Hotel-SLC; Pink areas shown above to be
dedicated to ACHD by 10 Mile. The 10 Mile Surplus Property is shown above in orange.
Specific legal descriptions and acreages to be inserted into this Exhibit C by written amendment upon
preparation of the Survey, as further set forth in Section 6, above.
As the Preliminary Design Plans for the Project Improvements are compiled this Exhibit C shall be
amended.
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT C-1 of 1
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT D
Project Costs and Cost Contributions
[to be inserted once prepared in accordance with Section 5]
10 Mile Hotel-SLC
Item Unit Unit Cost Quantity Cost($) Quantity Cost($)
Project Total $ $
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT D-1 of 1
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT E
Escrow Instructions
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made as of the day of
November, 2021 (the "Effective Date"), among First American Title Insurance Company
("Escrow Agent"), Hotel-SLC, LLC, an Idaho limited liability company ("Hotel-SLC"), and 10
Mile Franklin, LLC, an Idaho limited liability company (10 Mile"). Escrow Agent, Hotel-SLC and
10 Mile are collectively referred to herein as the "Parties" and each is individually referred to
herein as a "Party."
RECITALS
A. Hotel-SLC and 10 Mile are parties to that certain Amended and Restated Construction
and Cooperative Development Agreement, dated as of November , 2021 (the "Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them
in the Agreement.
B. As provided in the Agreement, the Parties shall enter into this Escrow Agreement
establishing an escrow to hold an amount equal to Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) (the "Security Deposit") to secure 10 Mile's performance of 10 Mile's obligations in
connection with the Agreement.
C. 10 Mile and Hotel-SLC have agreed that Escrow Agent shall hold in escrow(the
"Security Deposit Escrow")the Security Deposit (sometimes referred to herein as the"Security
Deposit Funds").
D. 10 Mile and Hotel-SLC are entering into this Escrow Agreement with Escrow Agent
for the purpose of instructing Escrow Agent as to the administration of the Security Deposit Escrow and
the disbursement of the Security Deposit Funds.
NOW, THEREFORE, Escrow Agent, 10 Mile and Hotel-SLC hereby agree and covenant as
follows:
1. Appointment of Agent.
(a) 10 Mile and Hotel-SLC hereby appoint Escrow Agent to act as escrow agent for the
Security Deposit Escrow and to act in accordance with the provisions of this Escrow Agreement, and
Escrow Agent hereby accepts such appointment.
(b) Escrow Agent shall hold and disburse the Security Deposit Funds in accordance with
the terms and conditions of this Escrow Agreement. If there is any conflict between the terms and
conditions of the Agreement and the terms and conditions of this Escrow Agreement, this Escrow
Agreement shall govern. Except as expressly set forth herein, the Agreement is unmodified and shall
continue in full force and effect in accordance with its terms.
2. Disbursement of the Security Deposit Funds.
(a) Escrow Agent shall hold the Security Deposit Funds in an interest-bearing account,
subject to 10 Mile providing Escrow Agent with a completed IRS Form 1-9 and paying the applicable
fee(s)for an interest-bearing account. Escrow Agent shall not commingle the Security Deposit Funds with
any other funds held by Escrow Agent. Any interest earned on the Security Deposit Funds shall belong to
10 Mile and shall be disbursed from time to time to, or as directed by, 10 Mile, and Hotel-SLC shall not
have any right hereunder to object to the same. 10 Mile shall be responsible for all taxes due, if any, on
all interest earned on the Security Deposit Funds. Except as provided further herein, 10 Mile and Hotel-
SLC each shall be responsible for one-half of all costs and fees of Escrow Agent in administering this
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT E-1 of 5
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
Escrow Agreement and the disbursement of the Security Deposit Funds.
(b) In the event of default under the Agreement, upon written demand from Hotel-SLC to
Escrow Agent, subject to the provisions of Section 2(d) below, Escrow Agent is authorized to disburse the
Security Deposit Funds, less Escrow Agent's fees, to Hotel-SLC.
(c) In the event Escrow Agent has not disbursed the Security Deposit Funds to Hotel-SLC
under Section 2(b) above, and the Parties have established a Cost Contributions Escrow Agreement with
Escrow Agent(as described further in Section 9 of the Agreement), Escrow Agent is authorized to
disburse the Security Deposit Funds, less Escrow Agent's fees, into such Cost Contributions Escrow as a
portion of the 10 Mile Cost Contribution and this Escrow Agreement shall, at such time, terminate.
(d) If any Party makes a written demand upon Escrow Agent for disbursement of Security
Deposit Funds, Escrow Agent shall promptly give written notice to the other Party of such demand. If
Escrow Agent does not receive a written notice disputing such demand from such other Party within two
(2) business days after the delivery of such written notice, then Escrow Agent is hereby authorized to
deliver the Security Deposit Funds in question in the amount demanded to the Party making the demand.
If Escrow Agent receives a written notice of dispute within such period, then Escrow Agent shall make no
disbursement of the disputed Security Deposit Funds except as follows: (i)to the Party that originally
demanded such Security Deposit Funds if and when Escrow Agent receives written notice from the
objecting Party withdrawing its objection; (ii) in accordance with a written instruction signed by all Parties
directing disbursement of such disputed Security Deposit Funds or any portion thereof; or(iii) in
accordance with a final judgment or order of a court of competent jurisdiction that cannot be appealed
and that directs disbursement of such disputed Security Deposit Funds or any portion thereof.
3. Concerning Escrow Agent.
(a) Escrow Agent shall not have any duties or responsibilities to the Parties with respectto
the Security Deposit Funds except those set forth herein and shall not incur any liability in acting in
accordance with the provisions hereof.
(b) Upon Escrow Agent's disbursement of the Security Deposit Funds in accordancewith
the provisions of this Escrow Agreement, the Security Deposit Escrow shall immediately terminate and,
except for any liabilities accruing hereunder prior to such disbursement, Escrow Agent shall have no
further obligations or liabilities hereunder.
(c) Escrow Agent shall be entitled to rely upon any order,judgment, certification, demand,
notice, instrument or other writing delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof.
Escrow Agent may act in reliance upon any instrument or signature reasonably believed by Escrow Agent
to be genuine and may, unless Escrow Agent has reason to believe otherwise, assume that any person
purporting to give Escrow Agent notice or receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly authorized to do so.
(d) Nothing contained in this Escrow Agreement shall prevent Escrow Agent, upon advice
of Escrow Agent's counsel, from complying with: (i) any federal, state or local law; (ii) any order of a court
of competent jurisdiction; or(iii)the terms of any stay imposed in a bankruptcy or insolvency proceeding
or otherwise.
(e) In the event of litigation between Hotel-SLC and 10 Mile with respect to the Security
Deposit Funds, Escrow Agent shall deliver the Security Deposit Funds to the clerk of the court in which
such litigation is pending. The plaintiff in such litigation shall provide Escrow Agent with prompt written
notice of the commencement of such litigation. Upon Escrow Agent's depositing all Security Deposit
Funds with a court in accordance with this Section 3(e), the Security Deposit Escrow shall terminate and,
except for any liabilities accruing hereunder prior to such deposit, Escrow Agent shall have no further
obligations or liabilities hereunder.
(f) In the event that the Parties give Escrow Agent conflicting instructions with respect to
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT E-2 of 5
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
the Security Deposit Escrow or disbursement of Security Deposit Funds, Escrow Agent may request the
Parties to provide Escrow Agent with joint written instructions signed by both Parties resolving such
conflict and, if the Parties fail to give such joint instructions within five (5) business days after Escrow
Agent's request therefor, Escrow Agent may, at its option, commence an action in interpleader against
the Parties in the Fourth Judicial District state court in Idaho and deposit all of the Security Deposit Funds
with such court. Upon Escrow Agent's depositing all Security Deposit Funds with the court in accordance
with this Section 3(f), the Security Deposit Escrow shall terminate and, except for any liabilities accruing
hereunder prior to such deposit, Escrow Agent shall have no further obligations or liabilities hereunder.
Escrow Agent shall be entitled to recover from the Parties (who shall be jointly and severally liable
therefor) all costs and expenses, including reasonable attorneys' fees, incurred by Escrow Agent in
connection with any such interpleader action or with any other litigation between the Parties (provided
that, as between Hotel-SLC and 10 Mile, the non-prevailing Party shall be solely responsible for payment
of such costs and expenses of Escrow Agent).
(g) The Parties shall jointly and severally indemnify, defend and hold Escrow Agent
harmless from and against any and all claims, liability, loss, cost and expense, including reasonable
attorneys' fees and court costs (collectively, "Claims") arising from the performance of Escrow Agent
hereunder, except to the extent any such Claims arise from Escrow Agent's material breach of Escrow
Agent's obligations hereunder or Escrow Agent's gross negligence, bad faith or misconduct.
4. Notices. All notices, demands, requests and other communications by any Party shall be in
writing and either personally served or sent by regular United States mail, postage prepaid, or by email
transmission to the authorized representative of the Party or Parties to be notified at the Party's or
Parties'address set forth below, and shall be deemed properly served or delivered, if delivered by hand to
the Party to whose attention it is directed, or when sent, three (3) days after deposit in the U.S. mail,
postage prepaid, certified mail, return receipt requested, or one (1)day after deposit with a nationally
recognized air carrier providing next day delivery, or if sent via email transmission, when received. Any
Party may change such Party's address at which the Party is to receive notices by giving notice to the
other Parties as provided herein.
Hotel-SLC: 10 Mile:
c/o Brian G. Black c/o Erik Pilegaard
16155 N. High Desert Street 837 Jefferson Blvd.
Nampa, Idaho 83687 West Sacramento, CA 95691-3205
bgblack(@ameritelinns.com erik(a)elkventures.net
With a copy to: With a copy to:
JoAnn C. Butler Clark Wardle, LLP
Butler Spink, LLP c/o Hethe Clark
967 E. Parkcenter Blvd., #313 251 E. Front Street, Suite 310
Boise, ID 83706 Boise, Idaho 83702
Ibutler(c)butlerspink.com hclark(cDclarkwardle.com
Escrow Agent:
Tami DeJournett-Albert
First American Title Insurance Company
2150 S. Bonito Way, Suite 100
Meridian, ID 83642
tdalbert(a)firstam.com
5. Governing Law; Jury Trial. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho applicable to agreements made and to be performed
entirely within such state, without regard to the conflicts of law principles of such state. Escrow Agent and
the Parties each waive their right to a trial by jury in any action arising under this Escrow Agreement.
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT E-3 of 5
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
6. Successors. This Escrow Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the Parties; provided, however, that except as expressly provided
herein as to Escrow Agent, this Escrow Agreement may not be assigned by any Party without the prior
written consent of the Parties; and provided further, however, this Escrow Agreement is not intended to
and shall not give benefits, rights, privileges, actions and/o remedies to any person other than the Parties
hereto as a third party beneficiary or otherwise.
7. Entire Agreement. This Escrow Agreement, together with the Agreement, contains the entire
agreement and understanding between the Parties and Escrow Agent with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such subject matter.
8. Amendments. Except as expressly provided in this Escrow Agreement, no amendment,
modification, termination or cancellation of this Escrow Agreement shall be effective unless such shall be
in writing and signed by each of the Parties hereto.
9. Counterparts Signatures. This Escrow Agreement, and any amendment hereto, may be
executed in any number of counterparts and by each Party hereto on separate counterparts, each of
which when so executed and delivered shall be deemed an original and all of which taken togethershall
constitute but one and the same instrument.
10. Attorneys' Fees. If any action or proceeding is commenced by any Party to enforce or
interpret such Party's rights under this Escrow Agreement or to collect damages as a result of the breach
of any of the provisions of this Escrow Agreement, then the prevailing Party or Parties in such action or
proceeding shall be entitled to reasonable attorney fees and costs incurred in connection with such action
prior to and at trial
and on any appeal therefrom. Notwithstanding the foregoing to the contrary, the terms of Section 3(f)shall
prevail with respect to Escrow Agent.
[Signatures on Following Page]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT E-4 of 5
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
IN WITNESS WHEREOF, the Parties hereto having been duly authorized have executed and
delivered this Escrow Agreement as of the Effective Date.
Hotel-SLC: 10 MILE:
Hotel-SLC, LLC, an Idaho limited liability company 10 Mile Franklin, LLC, an Idaho limited liability
company
By: By: Franklin Mile Managers, LLC
Brian G. Black, Manager Its: Manager
By: Sunny Cove, LLC
Its: Manager
ESCROW AGENT:
By:
First American Title Insurance Company Mark Engstrom, Manager
By: By: Elk-1 Managers, LLC
Tami DeJournett-Albert Its: Manager
By:
Erik Pilegaard, Manager
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT E-5 of 5
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT F
Personal Guaranty
GUARANTY AND SURETYSHIP AGREEMENT
FOR VALUE RECEIVED, the undersigned ("Guarantor") hereby absolutely, unconditionally and
irrevocably guarantees the full and prompt payment and performance and discharge of all obligations,
undertakings, covenants, commitments, and liabilities of 10 Mile Franklin, LLC, an Idaho limited liability
company ("10 Mile") to Hotel-SLC, LLC, an Idaho limited liability company ("Hotel-SLC") under and
pursuant to that certain Amended and Restated Construction and Cooperative Development Agreement,
dated as of November , 2021 (the "Agreement"). Capitalized terms used in this Guaranty and
Suretyship Agreement (the "Guaranty"), and not otherwise defined, shall have the meanings ascribed to
them in the Agreement.
1. Nothing shall discharge or satisfy the liability of Guarantor hereunder, except the full
performance of all of 10 Mile's obligations, undertakings and liabilities under the Agreement. The
obligations and commitments of Guarantor hereunder shall be absolute, irrevocable and unconditional.
Guarantor hereby authorizes Hotel-SLC, in its sole and absolute discretion, at any time after the
occurrence of an event of default under the Agreement, to proceed under this Guaranty against
Guarantor for the full performance of 10 Mile's obligations under the Agreement and/or to Hotel-SLC, with
or without Hotel-SLC taking any action against 10 Mile or any other obligor with respect to 10 Mile's
obligations under the Agreement, and whether or not Hotel-SLC has proceeded against 10 Mile.
2. At any time and from time to time, without terminating, affecting or impairing the validity of
this Guaranty or the obligations of Guarantor hereunder, Hotel-SLC may deal with 10 Mile in the same
manner and as fully as if this Guaranty did not exist and shall be entitled, among other things, to grant to
10 Mile such extension or extensions of time to perform, or to waive any obligation of 10 Mile to perform,
any act or acts as may seem advisable to Hotel-SLC.
3. The validity of this Guaranty, the obligations of Guarantor hereunder and the rights of
Hotel-SLC to enforce this Guaranty by proceedings, whether by an action at law, suit in equity or
otherwise, shall not be terminated, affected or impaired by reason of any filing by or against 10 Mile of a
petition under any bankruptcy or reorganization law or for the appointment of a receiver, trustee or
liquidator, or any application for a moratorium or for an arrangement with 10 Mile's creditors or a material
part thereof, or the making by 10 Mile of a general assignment for the benefit of creditors, or the taking by
10 Mile of any action for the purpose of effecting any of the foregoing, or any proceedings, or any
assignment by Hotel-SLC of any interest in the Agreement or this Guaranty.
4. The validity of this Guaranty and the obligations of Guarantor hereunder shall not be
terminated, affected or impaired by reason of: (i) any compromise, alterations, renewal, extension,
modification, amendment, termination or other charge of, or any waiver, consent, release (including any
release of 10 Mile) or other action or omission or failure to act in respect of, any of the terms, covenants
or conditions of the Agreement, any of the transactions contemplated thereby, or any of the documents
referred to therein or any amendment, or change order thereto; (ii) any assignment by any person of any
person of any interest under the Agreement, any of the transactions contemplated thereby, or any of the
documents referred to therein; or (iii) any election of remedies by any person or the exercise by any
person of, or any waiver or failure to enforce, any of the rights or remedies provided in the Agreement or
otherwise.
5. The covenants and agreements of Guarantor in this Guaranty shall not be terminated,
affected or impaired by reason of the existence, or the terms or provisions, of any other guaranty or
guarantees to Hotel-SLC of the obligations of 10 Mile under the Agreement by any other guarantor or any
other agreement or agreements to which 10 Mile or any other guarantor shall be a party and,
notwithstanding any such guarantees, agreements, terms or provisions, the obligations of Guarantor shall
be as herein expressed.
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT F-1 of 2
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
6. Hotel-SLC may proceed to protect and enforce any or all of its rights under this Guaranty
by suit in equity, action at law or by other appropriate proceedings, whether for the specific performance
of any covenants or agreements contained in this Guaranty, or otherwise, or to take any action authorized
or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts
and things required to be performed hereunder by Guarantor. Each and every remedy shall, to the extent
permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or
hereafter existing at law or in equity.
7. If 10 Mile or Guarantor should at any time become insolvent or make a general
assignment for the benefit of creditors, or if any petition in bankruptcy or any insolvency or reorganization
proceedings shall be filed or commenced by, against or in respect of 10 Mile or Guarantor, which is not
dismissed in ninety (90) days, any and all obligations of Guarantor hereunder shall, at Hotel-SLC's option,
forthwith become due and payable without notice or demand.
8. Guarantor further promises to pay all reasonable expenses incurred by Hotel-SLC in
connection with the enforcement of this Guaranty and any obligations due and payable hereunder,
including attorney's fees.
9. No modification, rescission, waiver, forbearance, release or amendment of any provisions
of this Guaranty shall be made, except by written agreement duly executed by Guarantor and Hotel-SLC.
All remedies under this Guaranty shall be cumulative and not alternative. Any failure of Hotel-SLC to
exercise any right hereunder shall not be construed as a waiver of the right to exercise that right or any
other right, at any time and from time to time thereafter. Guarantor hereby waives presentment, demand
for payment, protest, notice of protest, notice of dishonor, and any or all other notices or demands except
as otherwise expressly provided for herein. This Guaranty shall be binding upon Guarantor's heirs,
successors and assigns and shall inure to the benefit of the heirs, executors, successors and assigns of
Hotel-SLC.
10. This Guaranty may not be assigned by Guarantor without Hotel-SLC's prior written
consent. No assignment of this Guaranty shall relieve Guarantor from any liability or obligations
hereunder, unless consented to by Hotel-SLC. This Guaranty shall be governed by the laws of the State
of Idaho. Guarantor hereby consent to the jurisdiction of the courts of the State of Idaho sitting in Ada
County with respect to any matter concerning this Guaranty and waives the right of trial by jury in the
event of litigation involving this Guaranty.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty and Suretyship
Agreement, as of November_, 2021.
Erik Pilegaard
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT F-2 of 2
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EXHIBIT G
Memorandum
After Recording
Return to:
Butler Spink, LLP
967 E. Parkcenter Blvd. #313
Boise, Idaho 83706
FOR RECORDING INFORMATION
MEMORANDUM
BY THIS MEMORANDUM (the "Memorandum") entered into as of this day of November
2021, Hotel-SLC, LLC, an Idaho limited liability company, having an address at 16155 N. High
Desert Street, Nampa, ID 83687 ("Hotel-SLC'), and 10 Mile Franklin, LLC, an Idaho limited liability
company, having an address at 837 Jefferson Blvd., West Sacramento, CA 95691 (10 Mile"), declare
and agree as follows:
(i) 10 Mile owns that certain real property legally described on Exhibit A, attached hereto
and made a part hereof(the 10 Mile Property").
(ii) Hotel-SLC owns that certain real property legally described on Exhibit B, attached hereto
and made a part hereof(the "Hotel-SLC Property").
(iii) Upon and subject to the agreements, covenants and conditions set forth in that certain
Amended and Restated Construction and Cooperative Development Agreement, dated November _
2021 (the "Agreement"), Hotel-SLC and 10 Mile have agreed to have Improvements constructed on both
the 10 Mile Property and the Hotel-SLC Property, and 10 Mile has agreed to convey to Hotel-SLC a
portion of the 10 Mile Property.
(ii) The Parties have the right to record this Memorandum pursuant to the Agreement for the
purpose of placing the public on notice of the Agreement, all of the provisions of which are incorporated
herein by reference with the same force and effect as if herein set forth in full. Nothing contained in this
Memorandum is intended to or does modify or expand in any way any of the terms or provisions of the
Agreement, and the Agreement shall determine and govern the rights and duties of Hotel-SLC and 10
Mile in all respects.
(iii) Capitalized terms not defined herein shall have the meaning found in the Agreement.
[signatures follow]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT G-1 of 2
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
IN WITNESS WHEREOF, the Parties have executed this Memorandum as of the date first written above.
HOTEL-SLC: 10 MILE:
Hotel-SLC, LLC, an Idaho limited liability company 10 Mile Franklin, LLC, an Idaho limited liability
company
By: Franklin Mile Managers, LLC
By: Its: Manager
Brian G. Black, Manager
By: Sunny Cove, LLC
Its: Manager
By:
Mark Engstrom, Manager
By: Elk-1 Managers, LLC
Its: Manager
By:
Erik Pilegaard, Manager
STATE OF IDAHO )
)ss.
County of Ada )
This record was acknowledged before me on 2021 by Brian G. Black as Manager of Hotel-
SLC, LLC.
Signature of notary public
My Commission Expires:
STATE OF )
)ss.
County of )
This record was acknowledged before me on 2021 by Mark Engstrom, Manager of Sunny
Cove, LLC, Manager of Franklin Mile Managers, LLC, Manager of 10 Mile Franklin, LLC.
Signature of notary public
My Commission Expires:
STATE OF )
)ss.
County of )
This record was acknowledged before me on 2021 by Erik Pilegaard, Manager of Elk-1
Managers, LLC, Manager of 10 Mile Franklin, LLC.
Signature of notary public
My Commission Expires:
[ATTACH EXHIBITS A& B]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT G-2 of 2
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
EXHIBIT H
Termination of Memorandum
After Recording
Return to:
Butler Spink, LLP
967 E. Parkcenter Blvd. #313
Boise, Idaho 83706
FOR RECORDING INFORMATION
TERMINATION OF MEMORANDUM
BY THIS TERMINATION OF MEMORANDUM entered into as of this day of
2021, Hotel-SLC, LLC, an Idaho limited liability company, or its nominee ("Hotel-SLC"), and 10 Mile
Franklin, LLC, an Idaho limited liability company (10 Mile")declare and agree as follows:
Hotel-SLC and 10 Mile executed a certain Memorandum, dated November—, 2021 and
recorded such Memorandum in the real property records of Ada County, Idaho on November_, 2021,
as Instrument No. . The parties wish to terminate and discharge the Memorandum of record
by the recording of this Termination of Memorandum to be recorded in the real property records of Ada
County, Idaho.
HOTEL-SLC: 10 MILE:
Hotel-SLC, LLC, an Idaho limited liability company 10 Mile Franklin, LLC, an Idaho limited liability
company
By: Franklin Mile Managers, LLC
By: Its: Manager
Brian G. Black, Manager
By: Sunny Cove, LLC
Its: Manager
By:
Mark Engstrom, Manager
By: Elk-1 Managers, LLC
Its: Manager
By:
Erik Pilegaard, Manager
[notaries follow]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT H-1 of 2
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
STATE OF IDAHO )
)ss.
County of Ada )
This record was acknowledged before me on 2021 by Brian G. Black as Manager of Hotel-
SLC, LLC.
Signature of notary public
My Commission Expires:
STATE OF )
)ss.
County of )
This record was acknowledged before me on 2021 by Mark Engstrom, Manager of Sunny
Cove, LLC, Manager of Franklin Mile Managers, LLC, Manager of 10 Mile Franklin, LLC.
Signature of notary public
My Commission Expires:
STATE OF )
)ss.
County of )
This record was acknowledged before me on 2021 by Erik Pilegaard, Manager of Elk-1
Managers, LLC, Manager of 10 Mile Franklin, LLC.
Signature of notary public
My Commission Expires:
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-EXHIBIT H-2 of 2
Authentisign ID:009C7EF8-60A1-4519-81BA-FB9B1979622F
SCHEDULE1
Estimated Schedule for Completion of the Project.
[to be inserted once prepared in accordance with Section 5]
AMENDED&RESTATED CONSTRUCTION AND COOPERATIVE DEVELOPMENT AGREEMENT-SCHEDULE 1 -1 of 1