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Application
~~E IDI~ IAN-- IDAHO MayorTammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba TRANSMITTALS TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN To ensure that your comments and recommendations will be considered by the Meridian City Council please submit your comments and recommendations to Meridian City Hall Attn: Jaycee Holman, City Clerk, by: June 29, 2010 Transmittal Date: June 8, 2010 File No.: VAC 10-005 Hearing Date: July 6, 2010 Request: Public Hearing: Vacate the public access/utility easements platted on Lots 4, 5 and 7, Block 1 of The Courtyard at Ten Mile Subdivision By: Truce, LLC Location of Property or Project: SEC of Ten Mile Road and Pine Avenue Joe Marshall (No FP) Scott Freeman (No FP) Wendy Newton-Huckabay (No FP) Michael Rohm (IVo FP) Tom O'Brien (No FP> Tammy de Weerd, Mayor Charlie Rountree, C/C Brad Hoaglun, C/C Keith Bird, C/C David Zaremba C/C Sanitary Services (No vAR, vAC, FP> Building Department/ Rick Jackson Fire Department Police Department City Attorney City Public Works /Scott Steckline City Planner Parks Department Economic Dev. (cuP oniy> Your Concise Remarks: Meridian School District (tVo FP) Meridian Post Office (FP/PP/sHP only> Ada County Highway District Ada County Development Services Central District Health COMPASS (Comp Plan only) Nampa Meridian Irrig. District Settlers Irrig. District Idaho Power Co. (FP,PP,cuP/SHP only) QW@St (FP/PP/SHP only) Intermountain Gas (FP/PP/sHP only) Idaho Transportation Dept. (IVo FP) Ada County Ass. Land Records Downtown Projects: Meridian Development Corp. Historical Preservation Comm. South of RR / SW Meridian: NW Pipeline New York Irrigation District Boise-Kuna Irrigation District City Clerk's Office • 33 E. Broadway Avenue, Meridian, ID 83642 Phone 208-888-4433 • Fax 208-888-4218 • www.meridiancity.org • E IDIAN:--~- Planning Department COMMISSION & COUNCIL REVIEW APPLICATION Type of Review Requested (check all that apply) ^ Alternative Compliance t - '` ^ Annexation and Zoning ~^~,,~. ^ Comprehensive Plan Map Amendment ^ Comprehensive Plan Text Amendment STAFF USE ONLY: ^ Conditional Use Permit 1'~~+ - ~~ . ~p,G ^ Conditional Use Permit Modification Fi a number(s): V ^ Design Review ^ Final Plat ~/ I ^ Final Plat Modification Project name: 1 K da ~~'V O~/~l5 4 ~e/t. ~~ ^ Planned Unit Development Date filed: 'Z "GO Date co ~ete:~ ^ Preliminary Plat ~ ~ Cl ^ Private Street Assigned Planner: t GL.~$"t5~1, S ^ Rezone Related files: ~' - 6,3 -~~i A'Z 'D -C$; ^ Short plat (,~ p~j_d 2O P~-03-,DlD ^ Time Extension (Commission or Council) t!~^ ^ UDC Text Amendment Hearing date:, ^ Commission Council © Vacation (Council) ^ Variance ^ Other Applicant Information Applicant name: Truce, LLC Phone: (208) 713-1363 Applicant address: 3313 W. Cherry Lane Zip: 83642 Applicant's interest in property: ©Own ^ Rent ^ Optioned ^ Other Owner name: Truce, LLC Phone: (208) 713-1363 Owner address: 3313 W. Cherry Lane Zip: 83642 Agent name (e.g., architect, engineer, developer, representative): Wayne Barber Firm name: Timberline Surveying Phone: (208) 465-5687 Address: 847 Park Centre Wav, Suite 3, Nampa, ID Zip: 83651 Primary contact is: ^ Applicant ^ Owner ^ Agent ^O Other Contact name: Shari Stiles Phone: (208) 484-0038 E-mail: douglastcampbellna,aol.com Fax: X775) 522-8631 Subject Property Information Location street address: Southeast comer of N. Ten Mile Road/W. Pine Avenue Assessor's parcel number(s): 81581790070 81581790040 and 81581790050 Township, range, section: T.3N., R.1 W., Section 11 Total acreage: 4.4 acres +/- Current land use: Vacant Current zoning district: C-N 33 E. Broadway Avenue, Suite 210 • Meridian, Idaho 83642 Phone: (208) 884-5533 • Facsimile: (208) 888-6854 • Website: www.meridiancity.org Project Description • • Project/subdivision name: The Courtyards at Ten Mile Easement Vacation General description of proposed project/request: The applicant is requesting a vacation of the public access/ utility easements to allow a property boundary adjustment to accommodate a new Chevron station. Anew cross- access easement and utility easements will be granted for sewer and water lines and public utilities. Proposed zoning district(s): C-N (existing) Acres of each zone proposed: 4.4 +/- Type of use proposed (check all that apply): ^ Residential ^D Commercial ^ Office ^ Industrial ^ Other Amenities provided with this development (if applicable): N/A Who will own & maintain the pressurized irrigation system in this development? Nampa & Meridian Irrig. Dist. Which irrigation district does this property lie within? Nampa & Meridian Irrigation District Primary irrigation source: N/A Secondary: N/A Square footage of landscaped areas to be irrigated (if primary or secondary point of connection is City water): N/A Residential Project Summary (if applicable) Number of residential units: N/A Number of building lots: Number of common and/or other lots: Proposed number of dwelling units (for multi-family developments only): 1 Bedroom: Minimum square footage of structure(s) (excl. garage): Minimum property size (s.f): Gross density (DU/acre-total land): Percentage of open space provided: Percentage of useable open space: 2 or more Bedrooms: Proposed building height: _ Average property size (s.f.): Net density (DU/acre-excluding roads & alleys): Acreage of open space: (See Chapter 3, Article G, for qualified open space) Type of open space provided in acres (i.e., landscaping, public, common, etc): Type of dwelling(s) proposed: ^Sfngle-family ^ Townhomes ^ Duplexes ^Multf-family Non-residential Project Summary (if applicable) Number of building lots: 3 Other lots: Gross floor area proposed: TBD Existing (if applicable): N/A Hours of operation (days and hours): TBD Building height: TBD Percentage of site/project devoted to the following: Landscaping: TBD Building: TBD Paving: TBD Total number of employees: TBD Maximum number of employees at any one time: TBD Number and ages of students/children (if applicable): N/A Seating capacity: N/A Total number of parking space~vided: TBD Number of compact spaces provided: TBD Authorization Print applicant name: las T. be Applicant signature: Date: ~°~~adio 33 E. Broadway Avenue, Suite 210 • Meridian, Idaho 83642 Phone: (208) 884-5533 • Facsimile: (208) 888-6854 • Website: www.meridiancity.org 2 (Rev. 11/4/08) • WRITTEN NARRATIVE PUBLIC ACCESS/UTILITY EASEMENT VACATION THE COURTYARDS AT TEN MILE SUBDIVISION Property owner Truce, LLC, is seeking to vacate the public access/utility easements on Lots 4, 5 and 7, Block 1 of The Courtyards at Ten Mile Subdivision. The existing public access/utility easements need to be vacated/relocated to accommodate the construction of a new Chevron facility at the southeast corner of W. Pine Avenue and N. Ten Mile Road. All public utilities have given consent to relinquish their easements. New cross access, City of Meridian and public utility easements will be granted. Draft copies of the cross access easement and the new City of Meridian sanitary sewer and water easement have been included in this application. Truce, LLC, will also be completing a property boundary adjustment of the referenced lots. C:\Documents and Settings\Cambell\My Documents\Courtyazds\Narrative.doc L.J EXHIBIT A • Sectian 11, T.3N., R.1 W., BM These easements are portions of Lots 4 and 7, Block 1, The Courtyards at Ten Mile Subdivision, are located in the Northwest 1/4 of the Southwest 1/4 of Section 11, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, being fuF-ther described as follows; BASIS OF BEARING: The West line of the Northwest 1/4 of the Southwest 1/4 of Section 11, Township 3 North, Range 1 West, Baise Meridian, derived from found monuments and taken as South 00°42'44" West with a distance between monuments to be 2646.35 feet. EASEMENT 1: COMMENCING at the Northwest corner of Lot 7, Block 1, The Courtyards at Ten Mile Subdivision, found in Book 89 of Plats, at Page 10414, Ada Caunty Recorder, which bears South 45°27'09" East a distance of 101.52 feet fiom the Northwest corner of said Northwest 1/4 of the Southwest 1/4 of Section 1 1, thence South 89°20'02" East along the Not-th line of said Lot 7 a distance of 72.31 feet to the POINT OF BEGINNING No. 1(POB 1), as shown on Exhibit B; thence continuing along said North line South $9°20'02" East a distance of 24.28 feet; thence South 33°52'27" East a distance of 37.89 feet; thence South 89°35'32" East a distance of 66.18 feet; thence North 00°41'42" East a distance of 10.00 feet; thence South 89°35'32" East a distance of 150.31 feet into Lot 4; thence North 00°24'28" East a distance of 20.15 feet to the No~•th line of said Lot 4; thence along said North line South 89°18'18" East a distance of 20.00 feet; thence South 00°24'28" West a distance of 20.05 feet; l_l:\T5.1 t)\11~)AFlO\~lt)A\1 Q0?~!~ C:Ul1it`I'YAI:T)S ~'f"I'I?,N i\~i l i.l;lsui•~~c::~-11.1;,(if1 i :`;\;;~11?O ~i~~is<~nif;iit.dor, • • thence South 89°35'32" East a distance of 3.71 feet to the East line of said Lot 4; thence along said East line South 00°41'42" West a distance of 17.61 feet; thence along a curve to the left with a radius of 82.00 feet, a central angle of 08°41'05", an arc length of 12.43 feet , with a chord bearing of South 03°38'SO" East, and a chord distance of 12.42 feet; thence North 89°35'32" West a distance of 242.25 feet into said Lot 7; thence South 45°54'28" West a distance of 119.54 feet; thence North 44°05'32" West a distance of 20.00 feet; thence North 45°54'28" East a distance of 115.27 feet; thence North 33°52'27" West a distance of 48.58 feet; to the POINT OF BEGINNING No. 1. Said easement contains 10,351 square feet or 0.24 act•es, more or less. EASEMENT 2: COMMENCING at the Southwest corner of Lot 7, Block 1, The Courtyards at Ten Mile Subdivision, found in Book 89 of Plats, at Page 10414, Ada County Recorder, which beats South 06°54'36" East a distance of SS3.16 feet from the Northwest corner of said Northwest 114 of the Southwest 1/4 of Section 11, the POINT OF BEGINNING No. 2(POB 2), as shown on Exhibit C; Thence along West line of said Lot 7 North 00°41'42" East a distance of 16.83 feet; thence South 89° 18' 18" East a distance of 19.36 feet; thence South 00°4I'42" West a distance of 16.83 feet to the So-.-th Line of said Lot 7; thence along said South line North 89° 18' 18" West a distance of 19.36 feet to the POINT OF BEGINNING No. 2. Said Easement contains 326 square feet or 0.01 act•es, more ot• less 11;\'l'~y•• 1 t)\lI)A11{)\f\I_)i\11 U(}'?~-I .C'OiTitTl'AitU; nT "I'ISN r\~tI1.I:\sine<<°~°\l,I:.(;~\I:`y\`>~~l-I)C) ~~~isc,inc~it.<Ic~c. • EASEMENT 3; COMMENCING at a point on the South line of Lot 7, Block 1, The Courtyards at Ten Mile Subdivision, found in Book 89 of Plats, at Page 10414, Ada County Recorder, which bears South 10°41'26" East a distance of 559.30 feet from the Northwest corner of said Northwest 1/4 of the Southwest 1/4 of Section 11, the POINT OF BEGINNING No. 3(POB 3), as shown on Exhibit C; thence North QO°41'42" East a distance of 41.13 feet; thence South 89° 18' 18" East a distance of 20.00 feet; thence South 00°41'42" West a distance of 26.45 feet to a point on a curve on the common line to Lot 6 and Lot 7; thence fiom a tangent which bears South 45°47'08" West, along said common line along a curve to the left with a radius of 7.50 feet, a central angle of 45°05'26", an arc length of 5.90 feet, with a chord bearing of South 23°14'26" West, and a chord distance of 5.75 feet; thence continuing along said common line South 00°41'42" West a distance of 9.36 feet to a point on said South line; thence continuing along said South line North 89°18'18" West a distance of 17.79 feet; to the POINT OF BEGINNING No. 3. Said Easement containing 794 square feet or 0.02 acres, more or less and Wayne K. Barber P.L.S. 8444 Timberline Surveying 847 Parkcentre Way, Suite 3 Nampa. TD 83651 (208) 465-5687 t1;\TS-it)\1[)nllO\f\T)A\i(?f.??F!~-COIJR"fl'Altl)~; ATT>:'.N \~ 111\sur~~~~y1L.1C;i1L`~\`iSN').,O -~:~~sc:n~rnt.cic~c TS-10\lDAHO\ADA\10024-C~RNARDS AT TEN MILE\dwQ\COURTYARDr~SUt~ k~tA.dw A E , ~V/ `-- ~ ~ S00°42'44"W - 2646.35' BAStS OF BEARING / M N. TEN MILE ROAD Ov _ ti~~ yti'~ N 8~ ~~ o i..i N ~ ~ti ~ ~~ 11 \ \°s _ V ~ p 0~0~ ~Z~~o xmp~~ ~z~m mz-irn~ ~om~v ~ o- D~~~z z 1~~ Q~+~~m v~°o~ n~...~v,m o,=~~ C~m-i ~ ~~ ~~zD CJOO~*~ m y~o~n~ Om~c ~o~~ °y?om z~zZ.i S q ;C G~ ~r~ ~ errs ~ ~ ... ~qg z ~ ~ri~ ~~ ~ ~'~ ~ ~ ~ ~ wGo ~`%yE O u n ~ O m ~ v ~U y 0 N. GRAY CLOUD WAY a o ~~ ( ~~ 20.40 -~ I ~~ A fll ~ N :, vo zl I ~ 3o.ao' I ~' 00 < <x ~' i ~~ / a ~~ ~ ~ rn `" / f ~ MILE m X __ _~ W • WEST Y4 CORNER SECTION 11 ~ '. ~~• ~ 1 ~ •. . ~ ~• . a .~ ~~ ~ ss~~ ~ ,1 I ja 4 EXHIBIT C 1" = 30' BLOCK ~ 0 ~ W ~ `'' ~ '• S89°18'18' 800°41'42"W ' Q ~ N z I ~ io.oo' 26.45 ' m ~ - ~ I sag°1e'1e" 19.36 • ~ ~ ~ I =5.90 , R=7.50' ° ' " O ~ Z ~ , ~„~ ' ~=45 05 26 CHORD = 823°14'26"VI/ - 5 75' ~ ~ N00°41'42"~ ~ ~ ~' . m g ~ • , . I 16.83. . o~ I cv o ~ g ~ ' • , z S00°41'42"W o- ,., ~ _ , : „-,~, B 2 • '- oPOB' 17.79' 9.36' S89°1 8'18"E - 73.37' 89°18'18 ~89°18'18"W 19.36' 8„W g„w S89°18'18"E -17.84' W. TREVA DRIVE o =COMPUTED POINT J 10 11 SOUTHWEST CORNER SECTION i 1 15 14 CITY OF MERIDIAN SEWER & WATER EASEMENTS BLOCK 1, THE COURTYARDS AT TEN MILE SUBDIVISION LOCATED IN THE NW 1/4 OF THE SW 114 OF SECTION 11, ~-E~ TOWNSHIP 3 NORTH, RANGE 1 WEST, BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO SURVEYING Ml PAR"~NI"° WA4. SQIRl}1A7141-~u1FM 61m[ • After Recording Return to: • Spink Butler, LLP P.O. Box 639 Boise, ID 83701 FOR RECORDING INFORMATION CROSS ACCESS AND PARKING EASEMENT AGREEMENT This Cross Access and Parking Easement Agreement (this "Agreement") is made this day of by (collectively, " ") and (" "). RECITALS: 1. is the owner of fee simple title to that certain parcel of real estate located in Ada County, Idaho, and legally described in Exhibit A, attached hereto and made a part hereof (hereinafter referred to as the " Lot"). 2. is the owner of fee simple title to that certain parcel of real estate located in Ada County, Idaho, and legally described in Exhibit B, attached hereto and made a part hereof (hereinafter referred to as the " Lot"). The Lot and the Lot are sometimes referred to herein individually as the "Lot" and collectively as the "Lots." 3. and desire to agree, declare, create, receive and provide for the use and benefit of each Lot individually and for both of the Lots collectively, subject to the limitations hereinafter provided, a reciprocal, perpetual, non-exclusive easement for : (1) pedestrian and vehicular ingress, egress, passage and traffic between: (a) each of the Lots, and (b) the Lots and that certain public highway commonly known as (being contiguous to and bordering upon the Lots); and (2) parking for the Permittees (defined below) only in that portion of the Lot designated by cross-hatching on Exhibit C, attached hereto and made a part hereof (the "Parking Area"). Notwithstanding anything to the contrary herein, the Permittees may park on any portion of the Lot designated for parking by ,and the Permittees may park on any portion of the Lot, including the Parking Area, designated for parking by 4. and desire and intend that the singular or several owners of fee simple title to the Lots, mortgagees, lessees, occupants and such other persons as from time to time shall possessor acquire an interest in any Lot or any portion thereof, and all customers, employees, licensees, tenants and business invitees of such occupants and their respective successors and assigns (the Permittees) shall at all times enjoy the benefits of, and that the singular and several owners of fee simple title to the Lots (sometimes referred to herein as the "Owner" or "Owners") shall at all times hold their interests subject to, the rights, easements, privileges and restrictions hereinafter set forth. NOW, THEREFORE, in consideration of the terms of this Agreement, and in consideration of the recitals above which are incorporated below, and the premises and the mutual undertakings and agreements hereinafter contained, and agree, declare and grant as follows: CROSS ACCESS AND PARKING EASEMENT - 1 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross_Access_and_Parking_Easement_Agrmt.doc • • ARTICLE I Use, Access, Relocation and Reconfiguration 1.01 Easement. and hereby agree, declare, create and grant for the use of the Permittees, subject to all existing easements, encumbrances and restrictions of record, and subject to such reasonable rules and regulations as and may establish or impose, as an easement appurtenant to and for the benefit of the Lot and the Lot, a perpetual, non- exclusive easement upon, over and across the Easement Parcel solely for the limited purpose of: (1) pedestrian and vehicular ingress, egress, passage and traffic between: (a) each of the Lots, and (b) the Lots and that certain public highway commonly known as (being contiguous to and bordering upon the Lots); and (2) parking for the Permittees on the Parking Area ("Easement"). 1.02 Easement Parcel. The Easement shall be located over, upon and across the "Easement Parcel" which shall consist of the following: the driveway, roadway, traffic lanes and Parking Area on the Lots extending from the curb cuts allowing access to the Lot and the Lot from and extending west across the Lots. Notwithstanding anything else herein to the contrary, and hereby acknowledge that a building or buildings is or will be, and landscaping is or will be constructed on the Lots which building(s) and/or landscaping may reduce the size of the Easement Parcel located on the Lots. 1.03 Use. Use of the Easement Parcel is not hereby exclusively granted but shall be in common with the use thereof by and and their Permittees of those portions of the Lots upon which the Easement Parcel is located. and shall be entitled to use those portions of the Easement Parcel which shall lie on their Lots for those uses provided herein and for any other reasonable uses so long as such other uses do not interfere with or obstruct the use of the Easement Parcel by and and their Permittees; provided, however, the Permittees shall only be permitted to park on that portion of the Lot defined as the Parking Area. and shall specifically have the right upon those portions of the Easement Parcel which shall lie on their Lots to make any use of the subsurface of the Easement Parcel at their sole cost and expense, so long as such use does not interfere with or obstruct either or or their Permittees' use as provided herein. 1.04 Access. and ,jointly and severally, shall be obligated to maintain the curb cuts allowing access to the Lots from as a means of vehicular and pedestrian access between the respective Lots and such public right-of-way. Notwithstanding anything contained herein to the contrary, each of said means of access themselves (be they curb cuts, driveways or other means) shall be a portion of and shall be included within the Easement Parcel. 1.05 Relocation and Reconfiguration. and each shall have the right, from time to time, to relocate and/or reconfigure all or that portion of the Easement Parcel lying upon the Lot owned by or ,respectively, all at its sole cost and expense; provided, however, nothing either or does in connection with such relocation and/or reconfiguration shall: (i) permanently interfere with the free and unimpeded flow of vehicular and pedestrian traffic between the Lot and/or the Lot and/or ; or (ii) interfere with the free and unimpeded flow of permitted traffic between the Lot and/or the Lot and/or beyond the specific time reasonably required to accomplish any permitted relocation and/or reconfiguration; or (iii) permanently relocate andlor reconfigure a portion of the Easement Parcel such that the portion of the Easement Parcel on such Owner's Lot is no longer contiguous with the portion of the Easement Parcel on the other Owner's Lot and/or ARTICLE II Taxes and Maintenance 2.01 Taxes and Utilities. The Owner or Owners of each of the Lots shall be obligated to pay when due all real estate and other taxes and assessments, and all utilities' expense, if any, and any other CROSS ACCESS AND PARKING EASEMENT - 2 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross_Access_and_Parking_Easement_Agrmt.doc • • liability or expense for those portions of the Easement Parcel from time to time located on their respective Lots. 2.02 Maintenance of Easement Parcel. Each Owner shall pave, repair, and at all times maintain in good condition and provide Maintenance as hereinafter defined on those portions of the Easement Parcel which fall within that Owner's Lot. In the event the parties cannot agree on the necessity of such Maintenance, the matter may be submitted for mediation as provided below. Maintenance of the Easement Parcel shall include, without limitation: a. Maintenance, repair and replacement of the surface and subsurface of the Easement Parcel, as necessary, to maintain the Easement Parcel in a level, smooth and evenly covered condition with the types of materials and at the same grade and elevation as used by the Owner or Owners on the date of the completion of construction of the Easement Parcel, or portion thereof, except that the Owners shall be permitted to use such substitute materials as will in all respects be equal to or better than the materials originally used by the Owners with respect to quality, appearance and durability. b. Removal from the Easement Parcel of paper, rubbish, debris, ice, snow and other hazards to persons using the Easement Parcel, and washing or thoroughly sweeping paved areas as required. c. Maintenance of such appropriate parking signs and pavement markings, entrance, exit and directional signs and markers and lights so as to be uniform with those used on both Lots. d. Such painting and repainting of traffic lines and parking lines to maintain the Easement Parcel in first-class condition so as to be uniform with and provide for safe traffic flow between the Lots. All of the foregoing shall be referred to collectively herein as "Maintenance." 2.03 Mediation in the Event of Failure to Agree. In the event a disagreement arises between the Owners related to the Easement Parcel, an Owner may demand mediation and shall give written notice to that effect to the other Owner specifying in such notice the name, address, and professional qualifications of the person designated to act as mediator on behalf of the Owner requesting mediation. Within ten (10) days after delivery of such notice, the other Owner shall give written notice to the Owner desiring such mediation specifying the name, address, and professional qualifications of the person designated to act as mediator on said other Owner's behalf. If the two mediators so selected cannot agree within thirty (30) days after the appointment of the second mediator, the two mediators shall, within ten (10) days thereafter, select a third mediator. The decision of the mediators so chosen shall be given within a period of twenty (20) days after the appointment of such third mediator. Each party shall pay one- half of the fees and expenses of the mediator appointed by or on behalf of such party and the fees and expenses of the third mediator. If those receiving a request for mediation fail to appoint an mediator within the time above specified, or if the two mediators so selected cannot agree on the selection of a third mediator within the time above specified, or if the result of such mediation is unsatisfactory to one or more Owners, then any Owner may avail itself of any legal or equitable remedy available to it under Idaho law. ARTICLE III Miscellaneous 3.01 Not a Public Dedication. Nothing contained in this Agreement shall, or shall be deemed to, constitute a gift or dedication of any portion of the Lots to the general public or for the benefit of the general public or for any public purpose whatsoever, it being the intention that this Agreement will be strictly limited to and for the purposes expressed herein. Each Owner shall be permitted, from time to CROSS ACCESS AND PARKING EASEMENT - 3 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross Access_and_Parking_Easement_Agrmt.doc • time, to take whatever reasonable action it deems necessary to prevent any portion of the Easement Parcel from being dedicated or taken for public use or benefit. 3.02 Termination of Covenant Liability. Whenever a transfer of ownership of a Lot or any portion of a Lot herein burdened occurs, to the extent of the portion transferred, the liability hereunder of the transferor for breach of covenant occurring thereafter automatically shall terminate and the transferee shall become liable for the covenants and obligations herein provided from and after such transfer of ownership. 3.03 Duration. The Easement herein agreed to, created, declared and granted shall be perpetual. 3.04 Severability. 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. 3.05 Enforcement. In the event of a breach of any term, covenant, restriction or condition of this Agreement by an Owner, the other Owner or Owners 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. Further, failure by the Owners to agree upon necessary Maintenance may be submitted for mediation as set forth in Article II hereof. 3.06 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws in the State of Idaho. 3.07 Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens hereof, run with the land and are binding upon and inure to the benefit of the Owners, and the respective heirs, assigns, successors, and personal representatives of the Owners. 3.08 Notices. All notices, demands, requests, and other communications under this Agreement shall be in writing 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, by registered or certified mail, return receipt requested, or one (1) day after deposit with a nationally recognized air carrier providing next day delivery, or if sent by facsimile to the party to whose attention it is directed, addressed as follows: or at such other address or to such other party which any party entitled to receive notice hereunder designates to the other in writing as provided above. IN WITNESS WHEREOF, the parties hereto, having been duly authorized and intending to be legally bound hereby, have caused this Cross Access and Parking Easement Agreement to be duly executed the day and year first above written. CROSS ACCESS AND PARKING EASEMENT - 4 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross_Access and_Parking_Easement Agrmt.doc s add notaries By CROSS ACCESS AND PARKING EASEMENT - 5 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross_Access_and_Parking_Easement_Agrmt.doc • EXHIBIT A Lot Legal Description • CROSS ACCESS AND PARKING EASEMENT - 6 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross_Access_and_Parking_Easement_Agrmt.doc • EXHIBIT B Lot Legal Description ~J CROSS ACCESS AND PARKING EASEMENT - 7 C:\Documents and Settings\Spare PC\My Documents\COURTYARDS Cross Access_and_Parking_Easement_Agrmt.doc • EXHIBIT C Site Plan Showing Parking Area CROSS ACCESS AND PARKING EASEMENT - 8 C:\Documents and Settings\Spare PC1My Documents\COURTYARDS Cross_Access_and_Parking_Easement_Agrmt.doc • AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO COUNTY OF ADA I, Douglas T. Campbell, President of CMD, Inc., Managing Member of Truce, LLC, 3313 W. Cherry Lane, Meridian, ID 83642, being first duly sworn, upon oath, depose and say: 1. That 1 am the record owner of the property described on the attached, and I grant my permission to: Shari. Stiles Boise, Idaho to submit the accompanying application(s) pertaining to that property. 2. I agree to indemnify, defend and hold the City of Meridian and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. 3. I hereby grant permission to City of Meridian staff. to enter the subject property for the purpose of site inspections related to processing said application(s). Dated this v?-'~ day of ~7Utr~ , 2010. (Signature) SUBSCRIBED AND SWORN to before me the day and year first above written. Residing at: My Commission Expires: (Notary Public for Idaho) ADA COUNTY RECORDER J. DAVi6 NAUARRO AMOUNT 8.00 2 BOISE IDAHO O~t8109 82:18 PM RECORDED-°REDUESr OF ~~~ II~II(IIIIIIIIIiIIIIIIlOIIIIiI iil Davison Copple 1090435 i i SPECIAL WARRANTY DEED FOR VALUE RECENED, THOMAS DEVAN and SUSAN BEVAN, Grantors, do hereby convey, release, remise and forever quitclaim unto TRUCE, LLC whose address is 3649 N. Lakeharbor Lane, Boise, Idaho, 83703, all of their iyght, title and interest in certain real property situate in Ada County, Idaho, and more particularly described as: Lot 4, 5 and 7 in Block 1 of the Courtyards at Ten Mile Subdivision, according to the Plat thereof, filed ui Book 89 of Plats at Pages 10414 thru 10416, records of Ada County, Idaho. The Real Property ar its address is commonly known as 723 & 797 and TBD North Gray Cloud Way, Meridian, ID 83642. Together with any appurtenances, also known to the parties as "the Courtyard commercial prol~ny.» Grantors make no express or implied covenants or warranties of any kind except for the following: 1. Grantors have received no notice of any claims of lien against the property; 2. Property taxes are current; 3. Na work has been done on the property in the last 90 days except ins#allation of the missing 6" pipe by I-ii-Grade per the development plans; 4. Grantors have not entered into airy voluntary liens on the property (other tha,i that it has been listed as an asset on a loan application with DL Evans Bank and Grantors will e~~sure it has not been liened or clear the lien immediately) DATED this ~ day of April, 2009. QUITCLAIM DEEP - l SUSAN BEVAN STATE OF IDAHO County of Ada } } ss. On this ~ day of April, in the year of 2009, before me, ~ Me ~< <,d.y~ , a notary public, personally appeared THOMAS BEVAN, known to me r proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instru- ment, and aclaiowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in thi~~ont~~lte.~~ st above written. .•` ~ a !~ IyOT~$p ...~ AV B LtG `~~ .•' O .~ STATE OF IDAHO ) ss. Coiuzty of Ada ) Notaiy Pu 'c for Idaho Residing at 1 ~ ,Idaho My Commission Expires: ! On this t ~~ day of April, in the year of 2009, before me, U(~~C4u-~~~-Y~ , a notary public, personally appeared SUSAN BEVAN, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same. IN WITNESS WHEREOF, I have hereunto sat my hand and affixed my official seal, the day and year in this certificate first above written. •'~~~..uauaa,•.. ~' ~+•a~sa, ' ~ss,~ otary Pu lic for Idaho ~~OT,t~r ~ Residing at 1 ,Idaho "•'~ - My Commission Expires: l v, pU8 LiG .•- ~i~'9T ~••~~~~~~~•~O ~•`•• '•••, OF 1DA,,•• QUITCLAIM DEED - 2 Annual Keport • 2. Registered Agent and Address No. C 144185 Due no later than )un 30, 2010 (NO PO BOX) Annual Report Form DOUG CAMPBELL Retum to: 3313 W CHERRY LN #438 SECRETARY OF STATE MERIDIAN ID 83642 700 WEST JEFFERSON CMD, INC. PO BOX 83720 DOUGLAS T CAMPBELL ID 83720-0080 BOISE 438 , 3313 W CHERRY LANE # MERIDIAN ID 83642 3. New Registered Agent Signature:* NO FILING FEE IF USA RECEIVED BY DUE DATE 4. Corporations: Enter Names and Business Addresses of President, Secretary, Directors and(optional) Treasurer. OfFce Held Name Street or PO Address City State Country Postal Code PRESIDENT DOUGLAS T CAMPBELL 3313 W CHERRY LANE #438 MERIDIAN ID USA 83642 5. Organized Under the laws of: 6. Annual Report must be signed.* ID Signature: Douglas T Campbell Date: 04/19/2010 C 144185 Name (type or print): Douglas T Campbell Title: President Processed 04/19/2010 * Electronically provided signatures are accepted as original signatures. http://www. sos.Idaho.gov/servlet/TransformXMLDoc?URL=%2F20100419%2FXMLPOR... 6/2/2010 • LIMITED LIABILITY COMPANY AGREEMENT OF TRUCE,LLC THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, 15 U.S.C. § 15b ET SE ., AS AMENDED (THE "FEDERAL ACT"), IN RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE FEDERAL ACT. IN ADDITION, THE ISSUANCE OF THIS SECURITY HAS NOT BEEN QUALIFIED UNDER THE IDAHO SECURITIES ACT OR ANY OTHER STATE SECURITIES LAWS (COLLECTIVELY, THE "STATE ACTS"), IN RELIANCE UPON ONE (1) OR MORE EXEMPTIONS FROM THE REGISTRATION PROVISIONS OF THE STATE ACTS. FURTHER, THIS SECURITY HAS NOT BEEN REGISTERED UNDER ANY FOREIGN SECURITIES LAW. IT IS UNLAWFUL TO CONSUMMATE A SALE OR OTHER TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN TO, OR TO RECEIVE ANY CONSIDERATION THEREFOR FROM, ANY PERSON OR ENTITY WITHOUT THE OPINION OF COUNSEL FOR THE COMPANY THAT THE PROPOSED SALE OR OTHER TRANSFER OF THIS SECURITY DOES NOT AFFECT THE AVAILABILITY TO THE COMPANY OF SUCH EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, AND THAT SUCH PROPOSED SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL SECURITIES LAWS. THE TRANSFER OF THIS SECURITY IS FURTHER RESTRICTED UNDER THE TERMS OF THE LIMITED LIABILITY COMPANY AGREEMENT GOVERNING THE COMPANY, A COPY OF WHICH IS ATTACHED HERETO. \\Hades\ProLaw\Docmnenrs\Campbell, Doug\5065-004\General\I24100_2.doc • LIMITED LIABILITY COMPANY AGREEMENT OF TRUCE, LLC THIS LIMITED, ABILITY ~ 1~ANY AGREEMENT OF TRUCE, LLC, is entered into effective as of the ~' day of , 2010, by and among AJA Holdings, LLC, an Idaho limited liability company ("AJA Holdings"), and CMD Inc., an Idaho Corporation ("CMD"). The capitalized terms used herein shall have the respective meanings assigned to such terms in Article X. ARTICLE I ORGANIZATION 1.01 Organization. The Members hereby agree to organize the Company as an Idaho limited liability company pursuant to the provisions of the Idaho Act and upon the terms and conditions set forth in this Agreement. This Agreement supersedes any prior agreements and/or understandings of the Members with respect to the matters set forth herein and set forth the relevant rights, powers, duties and obligations of the Members. In connection with the execution of this Agreement, the Managing Member are hereby authorized to execute, acknowledge and/or verify such documents and/or instruments as may be necessary and/or appropriate in order to continue the existence of the Company in accordance with the provisions of the Idaho Act. 1.02 Names and Addresses of the Initial Members The names and addresses of the initial Members and their initial Percentage Interests are set forth on Exhibit A attached hereto. 1.03 Name of Compan~gistered Office and A>;ent The name of the Company is "TRUCE, LLC" The Company's initial registered office and the name of its initial registered agent shall be set forth in the filing with the Idaho Secretary of State as required by the Idaho Act. The Managing Member may change the registered office and registered agent from time to time. 1..04 Principal Place of Business The principal office of the Company shall be at 3649 N. Lakeharbor Lane, Boise, Idaho, 83713. The Managing Member may relocate the principal office or establish additional offices from time to time. 1.05 Purpose of Business The express, limited and only purposes for which the Company is to exist are (i) to acquire certain improved and unimproved real property consisting of approximately 4.5 acres located in the County of Ada, State of Idaho (hereinafter the "Property"), as more particularly described as: \Wades\ProLaw\Documents\Campbell, Doug~5065- 004\General\124100_2.doc -1 • • Lot 4, 5 and 7 in Block 1 of the Courtyards at Ten Mile Subdivision, according to the Plat thereof, filed in Book 89 of Plats at Pages 10414 thru 10416, records of Ada County, Idaho. The real property or its address is commonly known as 723 & 797 and TBD North Gray Cloud Way, Meridian, ID, 83642 AND SAID REAL PROPERTY, with all improvements thereon, also more readily known or referred to as Courtyards at Ten Mile, The Subdivision, lots and blocks as follows: Parcel # Description 81581790010 Lot O1 BLK O1 81581790020 Lot 02 BLK O1 81581790030 Lot 03 BLK Ol 81581790060 Lot 06 BLK O1 (ii) to obtain any and all entitlements and/or other approvals necessary for the development of the Property for residential or commercial uses (collectively, the "Entitlements"), (iii) to own, hold for investment, sell, exchange, transfer or otherwise dispose of, and/or realize the economic benefit from, the Property and the Entitlements (collectively, the "Project"), and (iv) to do all things incidental to or in furtherance of the above-enumerated purposes. 1.06 Duties Between Members Each Member may engage in whatever activities such Member may choose, whether the same are competitive with the Company or otherwise, without having or incurring any obligation to offer any interest in such activities to the Company or to the other Members. Neither this Agreement nor any activities undertaken pursuant hereto shall prevent any Member from engaging in such activities. 1.07 Term of Company The Articles of Organization were filed with the Secretary of State on or about April 14, 2009, and the Company shall have perpetual duration unless terminated sooner pursuant to this Agreement. ARTICLE II MANAGEMENT OF THE COMPANY 2.01 Management b~ging Member CMD is hereby designated as the "Managing Member" of the Company. Except as set forth in Section 2.02 and Section 2.03 below or elsewhere in this Agreement, the Managing Member shall have the full and complete charge of all affairs of the Company, and the management and control of the Company's business shall rest with the Managing Member. All conveyances of title to Company property or any interest therein, loan documents, agreements, contracts and any \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\124100_2.doc -2- • and all other documents and/or instruments affecting or relating to the business and affairs of the Company shall be executed on the Company's behalf by the Managing Member alone and without execution by the other Member. The Managing Member shall devote such time to the Company as is necessary for the efficient operation of the Company's business. Nothing contained herein shall prevent the Managing Member or any of such Member's representatives, agents, employees or Affiliates from devoting time to other businesses, whether or not similar in nature to the business of the Company. 2.02 Acts Requiring Approval of Members -Unanimous Consent Notwithstanding any other provision contained in this Agreement, the Managing Member shall have no authority to bind the Company or to take action on behalf of the Company as to the following matters (collectively, the "Major Decisions") without first obtaining the unanimous approval of the Members (each Managing Member and Non-Managing Member having one vote each): (a) Financing. Obtaining any financing or refinancing for the Company in amounts exceeding fifty percent (50%) of the value of the Project. (b) Transfer of Property. Selling or otherwise transferring any Company property, real or personal. (c) Liti ag tion. Instituting, prosecuting, defending, settling, compromising and/or dismissing any lawsuit or other judicial or administrative proceedings or arbitration brought on behalf of or against the Company or the Members in connection with any activities arising out of, connected with, or incidental to, the Company. (d) Confess Judgments. Confessing a judgment against the Company. (e) Merger, Consolidation or Venture. The entry into by the Company of any merger, consolidation, partnership, joint venture, limited liability company or other material corporate transaction, unless such a transaction would reduce the Interests of the Members. (f) Bankruptcy. The voluntary entry into by the Company of any bankruptcy proceeding (including, without limitation, the entry into by the Company of any composition with creditors and/or the filing of any proceeding under the United States Bankruptcy Code). (g) Merger, Consolidation or Venture. The entry into by the Company of any merger, consolidation, partnership, joint venture, limited liability company or other material corporate transaction, that would reduce the Interests of the Members. (h) Possess Company. Property. Possessing Company property or assigning the rights of the Company in any specific Company property for other than the purposes set forth herein. \\HadesU'roLaw\Documents\Campbell. Doug\5065- 0041General\I24100_2.doc -3 LJ • (i) Extending Credit. The extension by the Company of credit or the making by the Company of any loans or becoming a surety, guarantor, endorser or accommodation endorser for any person or entity. (j) Dissolution. The dissolution or liquidation of the Company (other than any dissolution or liquidation resulting under Section 7.01). (k) Amendments to the Agreement. Any amendment to this Agreement. (1) Admission of Additional Members. The admission of any additional member into the Company as a substituted member therein, exclusive of any substituted member admitted in accordance with the provisions of Article VI. (m) Other Matters. Any other matter expressly requiring the affirmative vote of all the Members under the terms of this Agreement. Without limiting the generality of the foregoing provisions of this Section 2.03, the Managing Member shall not undertake any action, expend any sum, make any decision, give any consent, approval or authorization or incur any obligation with respect to any of the foregoing Major Decisions, unless and until the requisite consent of the Members is obtained pursuant to the provisions of this Section 2.03. 2.03 Permitted Contracts with Affiliates The Managing Member may transact business with the Company, the Members, Affiliates of the Members and/or the Company, provided that such transactions are made on terms and conditions which are consistent with the terms and conditions available from equally qualified third parties in the Ada or Canyon County markets. These permitted contracts with affiliates shall expressly include the use of legal services from Angstman, Johnson & Associates, PLLC. 2.04 Consents and Approvals Whenever a Managing Member desire to take any proposed action which requires the approval of the Members hereunder and such Managing Member seeks and requests such approval without a meeting, then such Managing Member shall give written notice thereof to the Members, describing such proposed action in sufficient detail to enable the Members to exercise an informed judgment with respect thereto. As soon as practicable thereafter, each Member shall give the Managing Member written notice that such Member either approves or disapproves the pro~osed action. If any Member fails to respond (as provided herein) on or before the tenth (10`) day following the receipt of such written notice of any such action proposed by the Managing Member, then such non-responding Member shall be conclusively presumed to have approved such action. If written notice is provided to each Member requesting approval of an action requiring approval of a majority of the Members, once sufficient votes in favor of the action have been obtained, the proposed action is approved and the Managing Member may initiate the proposed action. \\Hades\ProLaw\Documents\Campbell, Doug15065- 004\General\124100_2.doc _4 2.05 Meetings r~ Although it is the express intent of the Members that there shall not be any required (or regularly scheduled) meetings of the Members, meetings may be called by any Member for the purpose of discussing and/or voting on the matters described in Section 2.02 and/or Section 2.03 above. Any such meetings shall be held at such place (or by telephone conference), on such day and at such time as are mutually convenient for the Members. 2.06 Liability and Indemnity None of the Members nor any officer of the Company shall be liable or accountable in damages or otherwise to the Company or to the other Members for any error of judgment or any mistake of fact or law or for anything that such Member and/or officer may do or refrain from doing hereafter, except in the case of willful misconduct or gross negligence. To the maximum extent permitted by law, the Company hereby indemnifies, defends, protects and agrees to hold each Member (and each officer of the Company) wholly harmless from and against any loss, expense or damage suffered by such Member (and/or such officer) by reason of anything which such Member (and/or such officer) may do or refrain from doing hereafter for and on behalf of the Company and in furtherance of its interest; provided, however, the Company shall not be required to indemnify, defend, protect or hold any Member (and/or any such officer) harmless from any loss, expense or damage which such Member (and/or such officer) may suffer as a result of such Member's (and/or such officer's) willful misconduct or gross negligence in performing or in failing to perform such Member's (and/or such officer's) duties hereunder and/or for any acts in contravention of this Agreement. The indemnity described in the preceding sentence shall be recoverable only from the assets of the Company and not from the assets of any Member. The provisions of this Agreement, to the extent that they restrict the duties (including fiduciary duties) and liabilities of any Member (and/or any officer) otherwise existing at law or in equity, are agreed by the Members to replace such duties (including fiduciary duties) and liabilities of such Member (and/or such officer). 2.07 Fees and Reimbursements Neither the Members nor the officers of the Company (if any) or their respective Affiliates and/or representatives shall be paid any compensation for rendering services to the Company (with the exception of legal fees for legal services performed on behalf of the Company by Angstman, Johnson and Associates, PLLC). Members shall be reimbursed (without reduction to such Member's Capital Account, Initial Contribution Account and/or Additional Contribution Account) for any expenses incurred by .such Member on behalf of the Company that relate to the business and affairs of the Company. 2.08 Designation of Officers The Managing Member may, from tune to time, designate officers of the Company and delegate to such officers such authority and duties as the Managing Member may deem advisable and may assign titles (including, without limitation, president, vice-president, secretary and/or treasurer) to any such officer. Unless the Managing Member otherwise determines, if the title assigned to an officer of the Company is one commonly used for officers of a business \\Hades\ProLaw~Documents\Campbell, Doug~5065- 004\General\124100_2.doc -5 • • corporation formed under the Idaho Corporations Code, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are customarily associated with such office pursuant to the Idaho Corporations Code. Any number of titles may be held by the same officer. Any officer to whom a delegation is made pursuant to the foregoing shall serve in the capacity delegated unless and until such delegation is revoked by a majority of the Managing Member or such officer resigns. ARTICLE III MEMBERS' CONTRIBUTIONS TO COMPANY 3.01 Initial Capital Contributions Concurrently with the execution and delivery of this Agreement, the Members shall be obligated to make the capital contributions disclosed on Schedule 3.01 attached hereto. Any and all contributions made by the Members to the capital of the Company pursuant to this Section 3.01 shall be credited to the respective Capital Accounts and Initial Contribution Accounts of the Members as and when such contributions are made. 3.02 Intentionally Left Blank. 3.03 Additional Capital Contributions If contributions in excess of the initial contributions set forth in Section 3.01 are required for the Project, or if the Company otherwise has insufficient funds to meet its current or projected financial requirements, then CMD shall be obligated to contribute to the capital of the Company, in cash, an amount sufficient to satisfy such deficit. At no time shall AJA Holdings be required to contribute additional capital to the Company. Any and all contributions made to the capital of the Company by any Member pursuant to this Section 3.03 shall be credited to the Capital Account and Additional Contribution Accounr_ of such Member as and when any such additional contribution is made. 3.04 Remedy For Failure to Contribute Capital If CMD (the "Non-Contributing Member") fails to contribute all or any portion of the capital contribution required to be made by CMD pursuant to Section 3.03 ("Delinquent Contribution"), within thirty (30) days after a determination that the additional contributions are due, then AJA Holdings (the "Contributing Member") shall have the right to select one (1) or more of the following options in the manner set forth below in this Section 3.04: (a) Default Loan. AJA Holdings inay advance to the Company, in cash and in proportion to their respective Percentage Interests (or in such different proportions as such Members may otherwise determine), an amount equal to the Delinquent Contribution, and such advance shall be treated as anon-recourse loan ("Default Loan") by AJA Holdings to CMD, bearing interest at a rate equal to the lesser of (i) the greater of the prevailing US Bank commercial reference (prime) rate plus three (3) percentage points, adjusted and compounded on the first day of each month during the term of such Default Loan or ten percent (10%) per annum, or (ii) the maximum, nonusurious rate then \\Hades\ProLaw\DocumentslCampbell, Doug~5065- 004\General\124100_2.doc _6 • • permitted by law for such loans. Each Default Loan shall be due six (6) months from the date such loan was advanced. As of the effective date of any advance of a Default Loan, CMD shall be deemed to have contributed an amount equal to the principal amount of such Default Loan to the capital of the Company, and each of the Capital Account and the Additional Contribution Account of CMD shall be credited with a like amount. Notwithstanding the provisions of Articles V and VII, until any and all Default Loans advanced to CMD are repaid in full, CMD shall draw no further distributions from the Company, and all cash or property otherwise distributable with respect to CMD's Llterest shall be distributed to AJA Holdings, who advanced the Default Loan(s) to CMD, in proportion to (and as a reduction of) the outstanding balance of any and all such Default Loans (together with any and all accrued and unpaid interest thereon), with such funds being applied first to reduce any and all interest accrued on such Default Loan and then to reduce the principal amount thereof. Any amounts so applied shall be deemed, for all purposes under this Agreement, to have been distributed to CMD and applied by CMD to repay such outstanding Default Loan(s). In order to secure the repayment of any and all Default Loans made on behalf of CMD, CMD hereby grants a security interest in favor of AJA Holdings' advancing such Default Loan(s) in and to CMD's Interest in the Company, and hereby irrevocably appoints AJA Holdings, and any of AJA Holdings' respective agents, partners, trustees, officers, or employees, as CMD's attorney-in-fact, with full power to prepare, execute, acknowledge, and deliver, as applicable, all documents, instruments, and/or agreements memorializing and/or securing such Default Loan(s) including, without limitation, such Uniform Conunercial Code financing and continuation statements, pledge and/or security agreements, mortgages and other security instruments as may be reasonably appropriate to perfect and continue such security interest in favor of AJA Holdings. If, upon the maturity of any Default Loan (taking into account any agreed upon extensions thereof), any principal thereof and/or accrued interest thereon remains outstanding, AJA Holdings may elect any one (1) of the following options: (i) to renew such Default Loan (or portion thereof) pursuant to the terms and provisions of this Section 3.04(a) for an additional term of six (6) months; (ii) to contribute all or any portion of such outstanding principal of and accrued, unpaid interest on such Default Loan (or portion thereof) to the capital of the Company and dilute the Percentage Interest of CMD pursuant to the provisions of Section 3.04(b); or (iii) to institute legal (or other) proceedings against CMD to collect such loan which may include, without limitation, foreclosing upon the security interest granted above. AJA Holdings may elect any of the options set forth in the irmnediately preceding sentence by giving written notice of such election to CMD within thirty (30) daysa following such maturity date. (b) Application of Provisions. If AJA Holdings advances any amount to the Company pursuant to this Section 3.04 but fails to specify which of the foregoing options it has elected within ten (10) days after the effective date that AJA Holdings snakes such advance, then AJA Holdings shall be deemed to have elected the option set forth in Section 3.04(a) above with respect to such advance. \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\ 124100_2.doc -7 - • • 3.05 Capital Contributions in General Except as otherwise expressly provided in this Agreement, (i) no part of the contributions of any Member to the capital of the Company may be withdrawn by such Member, (ii} no Member shall be entitled to receive interest on such Member's contributions to the capital of the Company, (iii) no Member shall have the right to demand or receive property other than cash in return for such Member's contribution to the Company, and (iv) no Member shall be required or be entitled to contribute additional capital to the Company other than as permitted or required by this Article III. ARTICLE IV ALLOCATION OF PROFITS AND LOSSES 4.01 Allocations of Income and Gain All income and gain attributable to the operation or sale of the Project or other assets of the Company shall be allocated to the Members in the same manner as cash is to be distributed pursuant to Section 5.01. 4.02 Allocations of Net Loss All Net Losses attributable to the operation of the Company shall be allocated to the Members according to the following schedule: (a) First, to the Members in proportion to their respective Percentage Interests until such losses equal the outstanding balance of each Member's positive Additional Contribution Account balance; (b) Second, to the Members in proportion to their respective Percentage Interests until such losses equal the outstanding balance of each Member's positive Initial Contribution Account balance; and (c) Thereafter, 11 remaining Net Losses shall be allocated r_o the Members in proportion to their respective Percentage Interests. 4.03 Special Allocations Notwithstanding any other provisions of this Agreement, no allocation of Net Losses shall be made to any Member to the extent such an allocation would cause a, or increase the, deficit balance standing in such Member's Capital Account (in excess of such Member's allocable share of partnership and/or partner minimum gain and after taking into account any adjustments set forth in Treasury Regulation Section 1.704(b)-1(b)(2)(ii)(d)) and any such Net Losses shall instead be allocated to the Members based upon their respective "interests" in the Company as determined in accordance with Treasury Regulation Section 1.704-1(b). In addition, items of income and gain shall be specially allocated to the Members in accordance with the qualified income offset provisions set forth in Treasury Regulation Section 1.704- 1(b)(2)(ii)(d). Notwithstanding any other provision in this Article IV, (i) any and all "partnership nonrecourse deductions" (as defined in Treasury Regulation Section 1.704- \Viades\ProLaw\Documents\Campbell, Doug\5065- _ 004\General\ 124100_2.doc -g • • 2(b)(1)) of the Company for any fiscal year or other period shall be allocated to the Members in proportion to their respective Percentage Interests; (ii) any and all "partner nonrecourse deductions" (as such term is defined in Treasury Regulation Sections 1.704-2(i)(2)) attributable to any "partner nonrecourse debt" (as such teen is defined in Treasury Regulation Section 1.704-2(b)(4)) shall be allocated to the Member that bears the "economic risk of loss" (as determined under Treasury Regulation Section 1.752-2) for such "partner nonrecourse debt" in accordance with Treasury Regulation Section 1.704-2(i)(1); (iii) each Member shall be specially allocated items of Company income and gain in accordance with the partnership minimum gain chargeback requirements set forth in Treasury Regulation Sections 1.704-2(f) and 1.704-2(g); and (iv) each Member with a share of the minimum gain attributable to any "partner nonrecourse debt" shall be specially allocated items of Company income and gain in accordance with the partner minimum chargeback requirements of Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(i)(5). For purposes of determining the Members' respective shares of Company nonrecourse liabilities pursuant to Section 752 of the Code and the Treasury Regulations promulgated thereunder, (i) a Member's Interest in Company profits shall be deemed to include the allocable share of minimum gain (as determined under Treasury Regulation Section 1.704-2(g)), Code Section 704(c) gain and any Net Profits allocable to such Member pursuant to this Article IV, and (ii) such Company profits shall be deemed allocable to the Members in the following order of priority: (a) first, to the Members to the extent of, and in proportion to, their respective allocable shares of minimum gain, (b) second, to the Members to the extent of, and in proportion to, their respective shares of Code Section 704(c) gain, (c) third, to the Members to the extent of, and in proportion to, their respective negative Capital Account balances, if any; and (d) thereafter, to the Members in proportion to their respective Percentage Interests. 4.04 Curative Allocations The allocations set forth in Section 4.03 (the "Regulatory Allocations") are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.04. Therefore, notwithstanding any other provision of this Article IV (other than the Regulatory Allocations), the Managing Me>nber shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner he determines appropriate so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Sections 4.01 and 4.02. In exercising his discretion under this Section 4.04, the Managing Member shall take into account future Regulatory Allocations under the first two (2) sentences of Section 4.03 that, although not yet made, are likely to offset other Regulatory Allocations previously made under the provisions of Section 4.03. 4.05 Differing Tax Basis; Tax Allocation The Members shall cause depreciation and/or cost recovery deductions and gain or loss with respect to each item of property treated as contributed to the capital of the Company to be allocated among the Members for federal income tax purposes in accordance with the principles 1\blades\ProLaw\Documents\Campbell, Doug15065- 004\General\ 124100_2.doc -9 of Section 704(c) of the Code and the Treasury Regulations promulgated thereunder, and for state income tax purposes in accordance with comparable provisions of the Idaho Revenue & Taxation Code, as amended, and the regulations promulgated thereunder, so as to take into account the variation, if any, between the adjusted tax basis of such property and its book value (as determined for purposes of the maintenance of Capital Accounts in accordance with this Agreement and Treasury Regulation Section 1.704-1(b)(2)(iv)(g)). ARTICLE V DISTRIBUTIONS 5.01 Distribution of Cash Flow Subject to Section 5.02, Cash Flow of the Company shall be distributed to the Members in accordance with the following guidelines and terms: (a) AJA Holdings' membership interest in the Company is based on Angstman, Johnson & Associates, PLLC's ("AJA"), past representation of CMD and Doug Campbell individually against Tom Bevan, Susan Bevan and other defendants with regard to CMD and Campbell's claims alleged in Ada County Case No. CV OC 0703893 (including any matter consolidated with that case). Under the terms of the "Contract for Legal Services", CMD and/or Campbell was obligated to pay the following: (i) AJA shall be paid the GREATER of one third (33.33%) of the gross amount of any judgment or award obtained at trial, in settlement, or otherwise, OR the full amount of all hourly attorney and paralegal fees incurred up through September 12, 2008, calculated at AJA's full hourly rates, plus all attorney and paralegal fees incu>red from September 12, 2008, calculated at one half AJA's full hourly rates. (ii) To the extent AJA is entitled to 33.33% of value of any settlement, Campbell and CMD are entitled to credit for amounts previously paid to AJA for work incurred in the prosecution of the matter. (b) Pursuant to that agreement Campbell and/or CMD has made some payment to AJA for legal services incurred. Additionally, the legal representation continues and has not yet terminated. (c) Accordingly, in the event of distributions from the Company, such distributions shall be as follows: (i) First, to the Members in proportion to, and to the extent of, the positive balances standing in their respective Additional Contribution Accounts, if any; (ii) Thereafter, to the Members according to the following formula, illustrated by the attached and incorporated exhibit labeled Exhibit 5.01(c)(ii) and entitled "Fee Calculation -Campbell v. Bevan 5065-004 and 5065-10." \\Hades\ProLaw\Documents\Campbell, DougL5065- 004\General\124100_2.doc -1 ~- • • Proceeds will be distributed according to this formula following each sale of any portion of the Courtyards at Ten Mile property: A. The proceeds, net of the payment actually due Tom Bevan for a release of the property is determined. ("Cash to Distribute") B. Add to the Cash to Distribute, a proportional amount of the sum of $100,000.00 based upon the ratio of square footage of property sold to the total square footage of the Courtyards at Ten Mile property originally held by the Company. This sum is the "Total Distribution." C. Except as provided in subpart E below, AJA shall receive 33.33% of the Total Distribution, less, a proportional amount of the sum of $143,838.26' based upon the ratio of square footage of property sold to the total square footage of the Courtyards at Ten Mile property originally held by the Company. If this amount results in a negative number, AJA receives nothing, but shall not owe any money or have any obligation to make any additional capital contribution. D. Except as provided in subart E, below, Campbell shall receive 66.67% of the Total Distribution plus the proportional amount of the sum of $143,838.26 based upon the ratio of square footage of property sold to the total square footage of the Courtyards at Ten Mile property originally held by the Company that is not paid to AJA. E. If, at the time of distribution, the total amount of fees actually incurred by AJA are greater that the total sum of 33.33% of the Total Distribution, any prior distributions, and the value of the remaining portion of the Courtyards at Ten Mile property, calculated at a value equal to the per square foot price of the most recent sale or offer on any portion of the Courtyards at Ten Mile property, then AJA shall be paid a proportional amount of the sum of the total legal fees ' This sum is believed by the parties to this Agreement to be the actual amount paid, as of March 24, 2010 by CMD to Angstman Johnson and Associates, PLLC, toward legal fees and costs incurred in Ada County Case No. CV OC 0703893 entitled Cm~zpbell, and CMD, Inc v. Bevan, et. al. However, should such actual amount of payments total a different sum, the parties agree that the actual sum will be used in place of $143,838.26 for purposes of all calculations of distributions in this Subpart 5.01(c)(ii). \\Hades\ProLaw\Documents\Campbell, Doug15065- 004\GeneralU 24100_2.doc -11- • • based upon the ratio of square footage of property sold to the total square footage of the Courtyards at Ten Mile property originally held by the Company, and then less, a proportional amount of the sum of $143,838.26 based upon the same ratio. 5.02 Limitations on Distributions Notwithstanding any other provision contained in this Agreement, the Company shall not make a distribution of Cash Flow (or other proceeds) to any Member if such distribution would violate the Idaho Act or any other applicable law. 5.03 In-Kind Distribution Assets of the Company (other than cash) shall not be distributed in kind to the Members without the prior written approval of all of the Members. If any assets of the Company are distributed to the Members in kind, then for purposes of this Agreement, such assets shall be valued on the basis of the agreed upon fair market value thereof (without taking into account Section 7701(g) of the Code) on the date of distribution, and any Member entitled to any interest in such assets shall receive such interest as atenant-in-common with the other Members so entitled with an undivided interest in such assets in proportion to their respective Capital Accounts (after taking into account all Capital Account adjustments, including any book-up or book-down caused by such distribution) or as such Members may otherwise jointly agree. Upon such distribution, the Capital Accounts of the Members shall be adjusted to reflect the amount of gain or loss that would have been allocated to the Members pursuant to the appropriate provisions of this Agreement had the Company sold the assets being distributed for their agreed upon fair market value (taking into account Section 7701(g) of the Code) immediately prior to their distribution. 5.04 Shared Priorities If there is more than one Member or assignee who is entitled to the same priority of distribution and there is not enough cash available for distribution to cover all distributions in that priority category, the cash available for distribution shall be distributed to the Members and/or assignees entitled to distribution within that priority category in the relationship which each of the Member's and/or assignee's respective claims in that priority category bear to the total claims of all Members and/or assignees in that priority category. ARTICLE VI RESTRICTIONS ON TRANSFERS OF COMPANY INTERESTS 6.01 Limitations on Transfer No Member shall be entitled to sell, exchange, assign, transfer, or otherwise dispose of, pledge, hypothecate, encumber or otherwise grant a security interest in, directly or indirectly, all or any part of such Member's Interest or withdraw or retire from the Company, without the prior written consent of all of the other Members, which consent may be withheld in each such other Member's sole and absolute discretion. Any attempted transfer, encumbrance or withdrawal in \U-lades\ProLaw\Documents\Campbell, Daug~5065- 004\General\124100_2.doc -12 • • violation of the restrictions set forth in this Article VI shall be null and void ab initio and of no force or effect. 6.02 Right of First Refusal If any Member desires to transfer all or any portion of such Member's Interest in the Company (the "Offered Interest"), then such Member shall give written notice ("Offering Notice") to the other Members of such transferring Member's intention to so transfer. The Offering Notice shall specify the identity of the proposed transferee, the consideration the transferring Member intends to receive for the Offered Interest and the terms upon which such transferring Member intends to so transfer. For a period of thirty (30) days following the effective date of the Offering Notice, each non-transferring Member shall have the right to purchase all, but not less than all, of the Offered Interest for the purchase price and on the terms stated in the Offering Notice. If more than one (1) non-transferring Member elects to purchase the Offered Interest, then such purchasing non-transferring Members shall purchase the Offered Interest in proportion to their respective Percentage Interests (or in such different proportions as such Members may otherwise determine). If any non-transferring Member elects to purchase the Offered Interest, then the transfer of the Offered Interest to such non-transferring Member shall be closed and consummated at the principal office of the Company in Idaho on the ninetieth (90th) day following the effective date of the Offering Notice. If all of the non-transferring Members fail to timely and validly elect to purchase the Offered Interest, then the transferring Member shall have the right for one hundred twenty (120) days after the effective date of the Offering Notice to make the proposed transfer to the transferee identified in the Offering Notice for the price and on the terms set forth in the Offering Notice. If such proposed transfer is not made to the proposed transferee during such 120-day period, the transferring Member's right to transfer its Offered Interest shall automatically cease, and the provisions of Section 6.01 and this Section 6.02 shall once again be operative relative to any subsequent proposed transfer of such transferring Member's Interest in the Company. 6.03 Admission of Substituted Members; Assi ig lees If any Member transfers such Member's Interest to a transferee in accordance with Section 6.01 or 6.02, then such transferee shall be entitled to be admitted into the Company as a substituted member and this Agreement shall be amended in accordance with the Idaho Act to reflect such admission, provided that: (i) aMajority-in-Interest of the non-transferring Members shall reasonably approve the form and content of the instrument of transfer; (ii) the transferor and transferee named therein shall execute and acknowledge such other instruments as a Majority-in-Interest of the non-transferring Members may deem reasonably necessary to effectuate such admission; (iii) the transferee in writing accepts and adopts all of the terms and conditions of this Agreement, as the same may have been aniended; and (iv) the transferor pays, as aMajority-in-Interest of the non-transferring Members may reasonably determine, all reasonable expenses incurred in connection with such admission, including, without limitation, legal fees and costs. An assignee of an Interest who does not become a substituted member shall have no right to require any information or account of the Company's transactions, to inspect the Company books, or to vote on any of the matters as to which a Member would be entitled to vote under this Agreement. An assignee shall only be entitled to share in such Net Profits and Net \\Hades\ProLaw\Documents\Campbell, Doug~5065- 004\General\124100_2.doc -13- • Losses, to receive such distributions, and to receive such allocations of income, gain, loss, deduction or credit or similar items to which the assignor was entitled, to the extent assigned. 6.04 Election• Allocations Between Transferor and Transferee Upon the transfer of the Interest of any Member or the distribution of any property of the Company to a Member, the Company may file, in the reasonable discretion of the Managing Member, an election in accordance with applicable Treasury Regulations, to cause the basis of the Company property to be adjusted for federal income tax purposes as provided by Sections 734 and 743 of the Code. Upon the transfer of all or any part of the Interest of a Member as hereinabove provided, Net Profits and Net Losses shall be allocated between the transferor and transferee on the basis of the computation method which in the reasonable discretion of the Managing Member, is in the best interests of the Company, provided such method is in conformity with the methods prescribed by Section 706 of the Code and Treasury Regulation Section 1.706-1(c)(2)(ii). 6.05 Partition No Member shall have the right to partition any assets of the Company or any interest therein, nor shall a Member make application or proceeding for a partition thereto and, upon any breach of the provisions of this Section 6.05 by any Member, the other Members (in addition to all rights and remedies afforded by law or equity) shall be entitled to a decree or order restraining or enjoining such application, action or proceeding. No Member shall file a lis pendens or any other document affecting title to the premises or the ability of the Company to transfer its real property. In the event a Member files a lis pendens or other such document, the Company shall be entitled to have an immediate order fioin a court of competent jurisdiction issued removing such lis pendens or other document from the public records and declaring the same null and void ab initio. 6.06 Waiver of Withdrawal and Purchase Rights Each Member hereby waives any and all rights such Member inay have to withdraw and/or resign from the Company pursuant to the Idaho Act and hereby waives any and all rights such Member may have to receive the fair value of such Member's Interest in the Company upon such resignation and/or withdrawal. ARTICLE VII DISSOLUTION AND WINDING UP OF THE COMPANY 7.01 Dissolution of the Company In the event of any Member's bankivptcy, retirement, resignation, expulsion or other cessation to serve or the admission of any new Member into the Company, the Company shall not dissolve, but the business of the Company shall continue without interruption and without any break in continuity. The Company shall be dissolved upon the first to occur of: (i) the sale, transfer or other disposition by the Company of all or substantially all of its assets and the collection by the Company of any and all Cash Flow derived therefrom; (ii) the affirmative \\Hades\ProLawlDocuments\Campbell, Doug\5065- 004\General\I24100_2.doc -14- election of all of the Members to dissolve the Company; or (iii) the entry of a decree of judicial dissolution pursuant to Section 30-6-701 of the Idaho Act. 7.02 Winding_Up of the Company Upon the Liquidation of the Company caused by other than the termination of the Company under Section 708(b)(1)(b) of the Code (in which latter case the Company shall remain in existence in accordance with the provisions of such Section of the Code), the Managing Member shall proceed to the winding up of the affairs of the Company and the assets shall be liquidated as promptly as consistent with obtaining a fair value therefore. During such winding up process, the Net Profits and Net Losses shall continue to be shared by the Members in accordance with this Agreement. Any proceeds remaining following the liquidation of the assets of the Company shall be applied and distributed by the Company on or before the end of the taxable year of such Liquidation or, if later, within ninety (90) days after such Liquidation, in the following order: (a) First, to creditors of the Company, including, without limitation, any Members that are creditors, all in the order of priority as provided by law; (b) Second, to establishing any reserves which the Managing Member deem necessary, in its reasonable discretion, for any contingent, conditional or unmatured liabilities or obligations of the Company; and (c) Third, to the Members in proportion to, and to the extent of, the positive balance standing in each such Member's Capital Account (after taking into account all Capital Account adjustments for the taxable year of such Liquidation). (d) The balance, if any to the Members in proportion to their respective Percentage Interests. Any reserve withheld pursuant to Section 7.02(b) shall be distributed as soon as practicable, as determined in the reasonable discretion of the Managing Member, to the Members in as provided in Sections 7.02(c) and 7.02(d), as applicable. 7.03 Negative Capital Account Restoration No Member shall have any obligation whatsoever upon the Liquidation of such Member's Interest, the Liquidation of the Company or in any other event, to contribute all or any portion of any negative balance standing in such Member's Capital Account to the Company, to the other Members or to any other person or entity. ARTICLE VIII BOOKS AND RECORDS 8.01 Books of Account and Bank Accounts The fiscal year and taxable year of the Company shall be the year ending December 31. The Company books and records shall be maintained on a cash or accrual basis, as determined \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\ ] 24100_2.doc -15 - • • by the Managing Member. During normal business hours at the principal office of the Company in Idaho all of the following shall be made available for inspection and copying by all of the Members at their own expense for any reason reasonably related to each such Member's Interest in the Company: (i) true and full information regarding the status of the business and financial condition of the Company, (ii) a current list of the name and last known business, residence or mailing address of each Member, (iii) a copy of this Agreement, the Articles of Organization and all amendments thereto, (iv) the amount of cash and a description and statement of the agreed value of any other property or services contributed by each Member to the capital of the Company and which each Member has agreed to contribute in the future, and (v) the date upon which each Member became a Member of the Company. All receipts, funds and income of the Company shall be deposited into a bank account selected by the Managing Member and disbursements from such account may be made only upon the signature of the Managing Member, or either of them, or such officer(s) of the Company designated by the Managing Member. 8.02 Tax Returns and Financial Statements Within sixty (60) days after the close of each fiscal year, the Managing Member shall cause to be prepared and timely filed and distributed to each Member, at the expense of the Company, all required federal and state Company tax returns. CMD is hereby designated as the "tax matters partner" of the Company in accordance with Section 6231(a)(7) of the Code and the Treasury Regulations promulgated thereunder. ARTICLE IX MISCELLANEOUS 9.01 Notices All Notices or other communications required or permitted hereunder shall be in writing, and shall be delivered or sent, as the case may be, by any of the following methods: (i) personal delivery, (ii) overnight commercial carrier, (iii) registered or certified mail, postage prepaid, return receipt requested, or (iv) telegraph, telex, telecopy, or cable. Any such notice or other communication shall be deemed received and effective upon the earlier of (a) if personally delivered, the date of delivery to the address of the person to receive such notice; (b) if delivered by overnight commercial carrier, one (1) day following the receipt of such communication by such carrier from the sender, as shown on the sender's delivery invoice from such carrier; (c) if mailed, on the date of delivery as shown by the sender's registry or certification receipt; (d) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid; or (e) if given by telex or telecopy, when sent. Any notice or other communication sent by cable, telex, or telecopy must be confirmed within forty-eight (48) hours by letter mailed or delivered in accordance with the foregoing. Any reference herein to the date of delivery, or giving, or effective date, as the case may be, of any notice or communication shall refer to the date such communication becomes effective under the terms of this Section 9.01. Any reference herein to the date of receipt shall refer to the date such communication is actually received, which shall be deemed to be the date such recipient executes the registry or certification receipt or the actual receipt if no registry or certification receipt is executed. Any such notice or other communication so delivered shall be addressed to the party to be served at the address for such \\HadeslProLaw\Documents\Campbell, Dougl506S- 004\General\ 124100_2.doc -16- • • party set forth on Exhibit A attached hereto. Such addresses may be changed by giving written notice to the other parties in the manner set forth in this Section 9.01. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of notice or other communication sent. 9.02 Construction of A~reement• Misc• Attorney Fees; Further Assurances The Article and Section headings of this Agreement are used herein for reference purposes only and shall not govern, limit, or be used in construing this Agreement or any provision hereof. Time is of the essence of this Agreement. The provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of Idaho all rights, duties, obligations and remedies shall be governed by the Idaho Act without regard to principles of conflict of laws. If any proceeding is brought by any Member against any other Member that arises out of or is connected with this Agreement, then the prevailing Member in such proceeding shall be entitled to recover reasonable attorneys' fees and costs. Each Member agrees to perform any further acts, and to execute and deliver (with acknowledgment, verification, and/or affidavit, if required) any further documents and instruments, as may be reasonably necessary or desirable to implement and/or accomplish the provisions of this Agreement and the transactions contemplated herein. Subject to the restrictions set forth in Article VI and Section 9.03, this Agreement shall inure to the benefit of and shall bind the parties hereto and their respective personal representatives, successors, and assigns. Any agreement to pay any amount and any assumption of liability herein contained, express or implied, shall be only for the benefit of the Members and their respective successors and assigns, and such agreements and assumptions shall not inure to the benefit of the obligees of any indebtedness or any other party, whomsoever, deemed to be a third-party beneficiary of this Agreement. Where the context so requires, the use of the neuter gender shall include the masculine and fenunine genders, the masculine gender shall include the feminine and neuter genders, and the singular number shall include the plural and vice versa. Every provision of this Agreement is intended to be severable. This Agreement contains the entire understanding between the parties hereto with respect to their relative rights, duties and obligations as Members of the Company and supersedes any prior or contemporaneous understanding, correspondence, negotiations or agreements between them with respect thereto. No alteration, modification or interpretation hereof shall be binding unless in writing signed by all of the Members. This Agreement lnay be executed in multiple counterparts, all of which, taken together, shall constitute one (1) and the same Agreement binding upon the parties hereto. Each Member acknowledges that (i) each Member is of equal bargaining strength; (ii) each Member has actively participated in the drafting, preparation and negotiation of this Agreement; and (iii) any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, any portion hereof or any amendments hereto. 9.03 Investment Representations Each Member agrees as follows with respect to investment representations: (a) General Securities Representations. Each Member understands: \\Hades\ProLaw\Documents\Campbell, Doug15065- 004\General\124100_2.doc ~ 17 • (i) That the interests in the Company evidenced by this Agreement have not been registered under the Securities Act of 1933, 15 U.S.C. § 15b et seg., the Idaho Securities Act or any other state securities laws (the "Securities Acts") because the Company is issuing interests in the Company in reliance upon the exemptions from the registration requirements of the Securities Acts providing for issuance of securities not involving a public offering; (ii) That the Company has relied upon the representation made by each Member that such Member's Interest in the Company is to be held by such Member for investment; and (iii) That exemption from registration under the Securities Acts would not be available if any Interest in the Company was acquired by a Member with a view to distribution. Each Member agrees that the Company is under no obligation to register the Interests in the Company or to assist the Members in complying with any exemption from registration under the Securities Acts if the Member should at a later .date wish to dispose of such Member's Interest in the Company. (b) Acquisition for Own Account. Each Member hereby represents to the Company that such Member is acquiring such Member's Interest in the Company for such Member's own account, for investment and not with a view to or for resale in connection with, any distribution thereof. No other person or entity has any interest in or right with respect to the Interest issued to such Member, nor has such Member agreed to give any person or entity any such interest or right in the future. (c) No Public Market. Each Member recognizes that no public market exists with respect to the Interests and no representation has been made that such a public market will exist at a future date. (d) No Solicitation. Each Member hereby represents that such Member has not received any advertisement or general solicitation with respect to the sale of the Interests. (e) Due Investi ag tion. Before acquiring any Interest in the Company, each Member has investigated the Company and its business and the Company has made available to each Member all information necessary for the Member to make an informed decision to acquire an Interest in the Company. Each Member considers itself to be a person or entity possessing experience and sophistication as an investor adequate for the evaluation of the merits and risks of the Member's investment in the Company. (f) Survival of Representations. Each Member understands the meaning and consequences of the representations, warranties and covenants made by such Member set forth herein and that the Company has relied upon such representations, warranties and covenants. Each Member hereby indemnifies, defends, protects and holds wholly free and harmless the Company (and the other Members) from and against any and all losses, damages, expenses or liabilities arising out of the breach and/or inaccuracy of any such \\Hades\ProLaw\Documents\Campbell, Doug~5065- 004\GeneralU 24100_2.doc ' 1 g- representation, warranty and/or covenant. All representations, warranties and covenants contained herein and the indeinrtiification contained in this Section 9.03(f) shall survive the execution of this Agreement and the liquidation of the Company. (g) Rescission. If the Company discovers any breach and/or inaccuracy of any of the representations, warranties and/or covenants contained herein by any Member, and such breach and/or inaccuracy is deemed material in a court of law, the Company may, at the Company's election, rescind the issuance of the Interest in the Company issued to such Member. Upon any such rescission by the Company, any such Member shall be conclusively presumed to have immediately transferred such Member's Interest in the Company to the Company and to have withdrawn from the Company. 9.04 Waiver of Conflict Interest The Company and each Member are not represented by separate counsel; provided, however, in connection with the Exclusive Right to Negotiate and the drafting and negotiation of this Agreement, Angstman, Johnson, and Associates, PLLC., (and not the Company or any other Member), have been represented separately by Angstman, Johnson and Associates, PLLC. The attorneys, accountants and other experts who perform services for any Member may also perform services for the Company. To the extent that the foregoing representation constitutes a conflict of interest, the Company and each Member hereby expressly waive any such conflict of interest. Members of the Company are legal clients of Wyatt Johnson, T. J. Angstman, and/or Angstman, Johnson and Associates PLLC. The Idaho Rules of Professional Conduct are applicable every time that a lawyer enters into a business transaction with a client or former client. I.R.P.C. 1.8 provides, as follows: (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client, and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation. While entering into this business transaction is not prohibited by the rules, it does require that certain, more complete, disclosures be made to members who are current or former clients of Wyatt Johnson, T. J. Angstman or Angstran, Johnson and Associates PLLC than in an ordinary business transaction, and that the transaction be fair to such current or former clients. One public policy and reasons why such a rule exists are that situations where attorneys are entering into business transactions with their clients can involve inadequate or unclear disclosure by the attorney, division of the attorney's loyalties, attorney advice that is not based on the client's best \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\124]00_2.doc -19- • • interest, or a marked disparity in sophistication in business or legal matters between the attorney and the client. The rule is designed to make sure that attorneys do not exploit their clients in any of these respects. Obviously, all of the foregoing are risks of this contemplated transaction and reasons why it could be disadvantageous to current and former clients of Wyatt Johnson, T. J. Angstman, or Angstman, Johnson and Associates PLLC. The advantages of the contemplated transaction would be participation in a potentially lucrative business opportunity. However, the proposed business venture is not without risk. There is substantial risk that the property will not receive needed additional entitlements or approvals or that financing for the project will be unavailable on terms that are advantageous to the Company. Further, there may be no market for the finished developed lots. As a result, it is possible to lose a part of or all of a member's capital contribution. Further, loss of the capital contribution does not absolve CMD from the obligation to pay legal fees due and owing to Wyatt Johnson, T.J. Angstman or Angstman, Johnson & Associates, PLLC. Further, although this transaction is designed to effectuate payment of fees that are due and owing to Angstman, Johnson, and Associates, PLLC for prior legal representation to CMD, the focus of this business transaction discussed above, from this point foivvard, is separate and apart from legal representation as a client of Wyatt Johnson, T. J. Angstman, or Angstman, Johnson and Associates PLLC. In negotiating this transaction, Angstman Johnson and Associates, PLLC is not representing CMD's interests. CMD acknowled;eed that it is and has been expressly advised to seek i~zdepende~zt legal counsel or other financial or business counsel re~ardin~ this transaction. If either party feel rushed, discuss this fact with your independent attorney as there is no reason to rush this decision. Again, Wyatt Johnson, T. J. Angstman, and Angstman, Johnson and Associates PLLC are not representing CMD's interests in this matter, but looking out for their own business interests. if CMD or AJA Holdings does not understand any portion of tl-iis agreement, that fact should be discussed with each other and their independent legal counsel. Failure to discuss any misunderstanding or questions of understanding of the terms of this Operating Agreement shall be deemed to be complete understanding of its terms. By signing below, CMD agrees and consents to the terms of this business transaction as set forth in this Agreement. 9.05 Licensed Agents. Some or all of the members of the entities identified herein as Members are licensed real estate agents in the State of Idaho. ARTICLE X DEFINITIONS 10.01 Additional Contribution Account The term "Additional Contribution Account" means with respect to each Member, the amount of money contributed or deemed contributed by such Member to the capital of the Company pursuant to Sections 3.03 or 3.04, as applicable, and decreased by the amount of money distributed or deemed distributed by the Company to such Member pursuant to Sections \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\ 124100_2.doc -20- • • 3.04 and/or S.O1(a) and the agreed upon fair market value of any property distributed to such Member by the Company (net of liability secured by such distributed property that such Member is considered to assume or take subject to under Section 7S2 of the Code) pursuant to Section S.O1(a). 10.02 Affiliate The term "Affiliate" means any person or entity which, directly or indirectly through one (1) or more intermediaries, controls or is controlled by or is under common control with another person or entity. The term "control" as used herein (including the terms "controlling," "controlled by," and "under common control with") means the possession, direct or indirect, of the power to (i) vote fifty-one percent (S 1%) or more of the outstanding voting securities of such person or entity, or (ii) otherwise direct management policies of such person by contract or otherwise. 10.03 Agreement The term "Agreement" means this Limited Liability Company Agreement of TRUCE, LLC. 10.04 Budget The term "Budget" shall mean a budget prepared by line item of all costs incurred and/or to be incurred to complete the Project in accordance with the Plans. lO.OS Capital Account The term "Capital Account" means with respect to each Member the amount of money contributed or deemed contributed by such Member to the capital of the Company, increased by the agreed upon fair market value at the time of contribution of all property contributed or deemed contributed by such Member to the capital of the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Section 7S2 of the Code), the aggregate amount of all Net Profits allocated to such Member, and any and all items of gross income or gain specially allocated to such Member pursuant to Section 4.03, and decreased by the amount of money distributed or deemed distributed to such Member by the Company (exclusive of any guaranteed payment within the meaning of Section 707(c) of the Code paid to such Member), the agreed upon fair market value at the time of distribution of all property distributed to such Member by the Company (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to under Section 7S2 of the Code), the amount of any Net Losses charged to such Member, and any and all partnership and/or partner "nonrecou>tse deductions" specially allocated to such Member pursuant to Section 4.03. 10.06 Cash Flow The term "Cash Flow" means the excess, if any, of all cash receipts of the Company as of any applicable determination date in excess of the sum of (i) all cash disbursements (inclusive of any guaranteed payment within the meaning of Section 707(c) of the Code paid to any \\Hades\ProLaw\Documents\Campbell, Doug~5065- 004\General\124100 2.doc -21- • • Member and any reimbursements made to any Member, but exclusive of distributions to the Members in their capacities as such) of the Company prior to that date, plus (ii) any reserve, determined in the reasonable discretion of the Managing Member, for anticipated cash disbursements that will have to be made before additional cash receipts from third parties will provide the funds therefore. Cash Flow shall be determined and distributed on a quarterly basis or at such other times as the Managing Member determine that funds are available therefore, taking into account the reasonable business needs of the Company; provided, however, that the Managing Member shall make at least annual distributions of Cash Flow for Tax Profits as provided in Section 5.01(a). 10.07 Code The term "Code" means the Internal Revenue Code of 1986, as heretofore and hereafter amended from ti>!ne to time (and/or any corresponding provision of any superseding revenue law). 10.08 Company The term "Company" means the limited liability company created pursuant to the filing of Articles of Organization with the Idaho Secretary of State in accordance with the provisions of the Idaho Act and governed by this Agreement. 10.09 Intentionally Left Blank. 10.10 Contributing Member(s) The terms "Contributing Members" and "Contributing Member" are defined in Section 3.04. 10.11 Default Loan The term "Default Loan" is defined in Section 3.04(a). 10.12 Delinquent Contribution The term "Delinquent Contribution" is defined in Section 3.04. 10.13 Entitlements The term "Entitlements" is defined in Section 1.05. 10.14 Idaho Act The term "Idaho Act" >tneans the Idaho Limited Liability Company Act as set forth in Title 30, Chapter 6 of Idaho Statutes, as hereafter amended from time to time. \\Hades\ProLaw\Documents\Campbell, Doug~5065- 004\General\124100 2.doc -22- • • 10.15 Initial Contribution Account The term "Initial Contribution Account" means with respect to each Capital Member, the amount of money contributed or dee>ned contributed by such Member to the capital of the Company pursuant to Sections 3.01 and decreased by the amount of money distributed or deemed distributed by the Company to such Member pursuant to Section 5.01(b) and the agreed upon fair market value of any property distributed to such Member by the Company (net of liability secured by such distributed property that such Member is considered to assume or take subject to under Section 752 of the Code) pursuant to Section 5.01(b). 10.16 Interest The term "Interest" means in respect to any Member, all of such Member's right, title and interest in and to the Company, including, the Net Profits, Net Losses, Cash Flow and capital of the Company, all voting rights, and any and all other interests therein. 10.17 Liquidation The term "Liquidation" means (i) in respect to the Company the earlier of the date upon which the Company is terminated under Section 708(b)(1) of the Code or the date upon which the Company ceases to be a going concern (even though it may continue in existence for the purpose of winding up its affairs, paying its debts and distributing any remaining balance to its Members), and (ii) in respect to a Member wherein the Company is not in Liquidation, means the liquidation of a Member's Interest in the Company under Treasury Regulation Section 1.761- 1(d). 10.18 Major Decisions The term "Major Decisions" is defined in Section 2.03. 10.19 Majority-in->1lterest The term "Majority-in-Interest" means with respect to any relevant group of Members, greater than fifty percent (50°Io) of such Members in terms of Percentage Interests. 10.20 Managing Member Tl~e term "Managing Member" is defined in Section 2.01. 10.21 Member(s) The term "Members" means, collectively, the initial members of the Company identified in Exhibit A and any substitute and additional members admitted as provided in this Agreement; the term "Member" means any one (1) of the Members. \\Hades\ProLaw\Docwnents\Campbell, Doug\S06S- 004\General\I24I00_2.doc -23- • 10.22 Net Profits and Net Losses The terms "Net Profits" and "Net Losses" mean, for each fiscal year or other period, an amount equal to the Company's taxable income or loss, as the case may be, for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss and deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss); provided, however, for purposes of computing such taxable inco><ne or loss, (i) such taxable income or loss shall be adjusted by any and all adjustments required to be made in order to maintain Capital Account balances in compliance with Treasury Regulation Sections 1.704-1(b), and (ii) any and all items of gross income or gain and/or partnership and/or partner "nonrecourse deductions" specially allocated to any Member pursuant to Section 4.03 shall not be taken into account in calculating such taxable income or loss. 10.23 Non-Contributing Member The term "Non-Contributing Member" is defined in Section 3.04. 10.24 Non-Mara find Member The term "Non-Managing Member" means all Members other than the Managing Member. 10.25 Offered Interest The term "Offered Interest" is defined in Section 6.02. 10.26 Offering Notice The term "Offering Notice" is defined in Section 6.02. 10.27 Option Contract The term "Option Contract" is defined in Section 1.05. 10.28 Percentage Interest The term "Percentage Interest" means with respect to each Member, the percentage set forth opposite such Member's name on Exhibit A attached hereto under the column labeled "Percentage Interest," subject to adjustment pursuant to Section 3.04(b). 10.29 Plans The term "Plans" is defined in Section 2.11. 10.30 Project The term "Project" is defined in Section 1.05. \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\124100 2.doc -24- 10.31 Property The term "Property" is defined in Section 1.05. 10.32 Re ulatory Regulations The term "Regulatory Regulations" is defined in Section 4.04. .10.33 Securities Acts The term "Securities Acts" is defined in Section 9.03(a)(i). 10.34 Treasury Re ulation The term "Treasury Regulation" means any proposed, temporary, and/or final federal income tax regulation promulgated by the United States Department of the Treasury as heretofore and hereafter amended from time to time (and/or any corresponding provisions of any superseding revenue law and/or regulation). IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. CMD, Inc: i' B y: Doug Campbell AJA Holdings, LLC By: Angstm Its: Managi By: \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\124]00 2.doc _25_ • • EXHIBIT A NAMES, ADDRESSES AND PERCENTAGE INTERESTS OF THE MEMBERS Names and Addresses of the Members AJA Holdings, LLC 3649 N. Lakeharbor Lane Boise, Idaho 83713 CMD, Inc. 3313 W. Cherry Lane, # 438 Meridian, Idaho 83642 Totals: Percentage Interest 33.33% 66.67% 100.000% \\HadesV'roLaw\Documents\Campbell, DougL5065- 0041General\124100 2.doc '26' • Schedule 3.01 • NAMES, ADDRESSES AND CAPITAL CONTRIBUTIONS OF THE MEMBERS Names and Addresses of the Members AJA Holdings, LLC 3649 N. Lakeharbor Lane Boise, Idaho 83713 CMD, Inc. 3313 W. Cherry Lane, # 438 Meridian, Idaho 83642 Initial Contribution The cost of preparing this Agreement. The "Property" as defined in Paragraph 1.05 of this Agreement Schedule 3.0] \\Hades\ProLaw\Documents\Campbell, Doug\5065- 004\General\124100_2.doc ' 1' • • AFFIDAVIT OF LEGAL INTEREST STATE OF IDAHO COUNTY OF ADA I, Douglas T. Campbell, President of CMD, Inc., Managing Member of Truce, LLC, 3313 W. Cherry Lane, Meridian, Idaho 83642, being first duly sworn, upon oath, depose and say: That I am the record owner of the property described on the attached, and I grant my permission to: Shari Stiles Boise, Idaho to submit the accompanying application(s) pertaining to that property. 2. I agree to indemnify, defend and hold the City of Meridian and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. 3. I hereby grant permission to City of Meridian staff to enter the subject property for the purpose of site inspections related to processing said application(s). Dated this ~.f/~day 2010. (Signature) SUBSCRIBED AND SWORN to before me the day and ye first above written. °'®. -~ ~~ ~r~N ~;~ AR®~ K (Notary Public or Idaho) T®1 ~R~ `~UB~ CR Residing at: ~~~~J l' ~~ ~,.~, '~AHp _/ My Commission Expires: ~~/~~ / mil//<j~ O PINE 81561790020 I 181581790030 1~ J ~`~~. z w ~ ~ ~ ~,~~ C 81581790070 ~'~ C' o C r UNION PACIFIC RR 114A17QCTu C?~F Rio. t032i20B8 1TtUN 11~~ ~ I 1" = 80' U ~20~ 48' i'//1 TEN MILE STUB DRAIN W.PlNEAVENtlF~ `1 N89'2oro2w-z54s.z3' `~ 99°20'02"W -130.02' ^-~"" N88°50'00"E - 250.13' 3 ""' - 4s.5r 4o.or 123.44' c2 LANDSCAPE~FER °~ ~ LANDSC/1PE BUFFER 012.2r N89'20'02'W • f]~ 2T ~ Z .__. N m ~ °i ye'`% ~_ _ N ~ ~11 ~ ~ 89'18'S8'W ii ~i z /~ Q ( 70.00'/ w ACCESSlUTIL171ES~ ~ EASE61ENf ' 4 m ~ 25.29` jjj/j J ' q ~ $ N89'irlb'W ~ ~ W~ V' 2$.30' O YI Z I M ~~ ~~ ~ ~ ~~ O~ r Nb a a ~' ~ m $ z 48' o `a RIGHT- '~ OF-WAY j 70.00'/ 0 AccESSnmLmes~ EASEMENT ~~ °, ar N69'1898'W 27.03' BLOCK i 0 l! Etl19 E iet ~o+w et~OG.o 10 1607 E71V°OTE 1]S 1077 69PElWSY W 1]07 MSf]O Stw l21 mm ESr+'Srr.1Y W sx EaoE~~°nv 10• H i~'"" 1 °$ ~ ~ 3 ~) ~ ' ' Z e ~ 9 18'18 E 20.08' a ~ Q b ~ °r ~ I$ 1a ~ ~ ~ .J V 2 ~ F . ~~ ~ ~ ~ P .~ !~ ® z1~ z7' 27' N59'1e'18w 98.29'• to ~4 ~Q ~,~!?~ ~~~ ~~_ ~;~A 5.37' ///IANeDSf,APE E 104.76' ~~i ~\6 g~ 55.00'~L25 BUFFER 110.54' 8 CAS '18'18'E-170.81' r` N ~~ .~..~ ® PLAITED EASEMENT TO BE VACATED VACATION DISPLAY MAP OF THE COURTYARDS AT TEN MILE SUBDIVISION LOTS 4, 5, & 7, BLOCK 1, LOCATED IN THE NW 1!4 OF THE SW 1/4 OF SECTION 11, TOWNSHIP 3 NORTH, RANGE 1 WEST, BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO • ~ W. PINE AVENUE O - -' w I z I PROPOSED PARCEL 1 1.08 ac. 47,209.83 sq.ft. I I I I IO --- PROPOSED PARCEL2 0.83 ac. 36,130.59 sq.ft. PROPOSED PARCEL 3 1.89 ac. 82,177.22 sq.ft. I O s BL K 4 RECORD OF SURVEY -PROPERTY BOUNDARY ADJUSTMENT LOTS 4, 5, AND 7, BLOCK 1, THE COURTYARDS AT TEN MILE SUBDIVISION LOCATED IN THE NW 1/4 OF THE SW 1/4 OF SECTION 11, TOWNSHIP 3 NORTH, RANGE 1 WEST, BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO T, ®I i I • ~_ ~ BA515 OF BEARING UNPLA7TE0 N. TEN MILE ROAD faoo•sr ' socg ' n' ~ ]0.57,06' Or'Oat N~~~ i i - ~~ ]9' fA4f OF S[CnON UxSE IS ME PgETCNPiNE --'~-------^- Y ~ ACNO PIGM-OP-MnY. iNE a0u1MNC M.CO~LSSM1 x ~ 3N11 31! NOIldItl0530 'f1031 ~ ~ •- ]S' 6 OEFD[e t0 N:NO PER IMST.SNO. 10106D]IS uneven wa e _ c~• n 1 r~ ~g 1 s ~p G .. 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M ~A ~ s~ ~~ A ym 0 ~. p TT~ O ~~ mw~ ~' o r~t ~-.~ ~+~ 0 ~~~ ~,. ~~~ . ~~~~ ~~o ~ f~l ~ ~m A ~ . 0 Frd V i 1 ~. r~~~ V1- M-w~i .~ ~J • • of Meridian Pre-application IYleetin~ Notes Date: ~/- ~ - ~~ ProjecfilSnbdivision Name: _ ~ 64 ~ a µs ><~/~• ~ S ~ -~ ~~~ />rl ~ ~~ ' ApplicantlContact: ~6 ka Ca ~ p !o e N - City Staff: ~~ Ie a : t~ _ Location: 5.&C o,~ r7-~,,,, ,d(, ~ d p;,,~ ,r~uP Existing Zoning: C - ~ Contiguous and Within. AOI (AZ only): ~ Proposed Zoning: !~ _ Nwnber of Units and/or Lots: NA Property Size: _t ~/ ~~e~ ~ Dwelling Type (ifresidential): ,~A Surrounding Uses: 2~ s ;~,1: a ~ ~ ' Comprehensive Plan Designation(s): /~t ~ xe~ ~ ~e ,e,~.n ,,.., ' ~ ~ Street Buffers and/or Land jJse Buffers: ~A , - r Open Space/Amenities/Pathways: ,/A Street System/Stub Streets/Access: _ N~ . Sewer and Water Service: Topography/Hydrology/FloodplainIssnes: Canals/Ditches!!rrigation and/or Hazards: History: _.2-03-ob.q ~ CUP-o3- ozo P~- 6'j-oGU ; F/'-03-~6y Cr0~4-~'/03/~~//y2) Additional Meeting N -~Sts~o~t.~ fP•~rYla~~ ADO~OAPv r•o ., Jo(~,rs ~c Other Agencies/Depax-tments to Contact'(circle): Ada County Highway District Nampa and .Meridian Irrigation P tment S~ o~ S,~e~,~~;-t. Idaho Transportation Department Settlers Irrigation ~blic Works DeQartme Sanitary Services Corporation Fire Department. Building Department Central District Health Police Department Other: Applications Required (circle all that apply): Accessory Use Design Review Short Plat Alternative Compliance Final Plat Modification Time Extension Annexation Misc.'~DA Modification) C Text Amendment Certificate of Zoning Compliance Planned Unit Development ~acatio ~t 5g9 • ~o Comp Plan Map Amendment Preliminary Plat Variance Comp Plan Text Amendment ~ Private, Street Other: Conditional Use Permit Rezone Additional Pre-Application Conference (circle one): Required Not Required Anticipated Submission Date: Anticipated Hearing Date: ~ o •~ /~ .~ Qs~,~~ ~ D-~ ---~`~'_ NOTES: i) Applicants are required to hold a neighborhood meeting, in accordance with UDC 11-5A-5C, pri~o~r o submittal of an application requiring a public hearing (eaceptvacation and short plat). 2) Except for UDC Teat Amendments, Comprehensive PIaa Text Amendments, Comprehensive Plan Map Amendment initiated by the City, Short PIat, and Vacation applications, aIl'other • applications requiring a public hearing shall be posted in accordance with UDC 11-SA-5 D. 3) The information provided during this meeting is based on current City Code and Comprehensive PIan. Any subsequent changes to City Code and/or the Comprehensive PIan may affect your submittaIand/or application. This pre-application meeting shat! be valid for 4 months. ~~E- ' /U~ ~ ~o U e..r ,,1: ~ •' c~J ~t.a_ ~ ~cC 1- , 1 r ~ ~ t - /l a / ~_ !oe_e n c A r ~,l'. ~ ~ ~c.0~ Cv+ ~n ' •S ,' r~ • • ~~Pl'~INER® An IDACORP Company IDAHO POWER COMPANY Partial Release of Easement WHEREAS, by subdivision plat recorded in Plat Book 89, on Pages 10414-10416 as Instrument Number 104117476, in the records of Ada County, State of Idaho, The Courtyards at Ten Mile Subdivision granted to IDAHO POWER COMPANY an easement (the "Easement"} for the construction, operation and maintenance of certain power line facilities upon the following premises located in Ada County, State of Idaho, to-wit: The Courtyards at Ten Mile Subdivision - a Portion of the NWI/4 of the SWI/4 of Section 11, Township 3 North, Range 1 West, Boise Meridian Meridian, Ada County, Idaho 2004. AND, WHEREAS, it is no longer necessary or desirable that a certain portion of the Easement be retained. NOW, THEREFORE, in consideration of the premises, IDAHO POWER COMPANY does hereby release and abandon that certaui portion of the Easement over the following described lands: The public utility easements referenced in lots 4, 5 and 7 of block one of the Courtyards at Ten Mile Subdivision and varies in widfh,from five feet (S) to seventy feet (70 ). ALL RIGHTS and privileges under the above-described document in and to the remaining lands covered by the Easement and any and all prescriptive or other rights the Grantee has acquired through occupancy and use over time of said remaining lands shall remain and continue in the Grantee and shall not be affected in any way hereby. [Signature Appears on Next Page • • Partial Release of Easement TBR-OOl3 Courtyards at Ten Mile Subdivision Page 2 of 2 IN WITNESS WHEREOF, IDAHO POWER COMPAiVY has caused these presents to be executed by its proper officers thereunto duly authorized this 1 rst day of June, 2010. IDAHO POWEAt By: Scott Johnson;~Right-of Way Leader STATE OF IDAHO ) ss. COUNTY OF ADA ) On this lrst day of June, 2010 before me Tracy Ragan, a Notary Public, personally appeared Scott Johnson, Right-of--Way Leader of the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same as the free act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. .. .jam ~o7'q,pr~ ~ N ry Public ~~ S *••~ ~ Residing at: e(.~~ ~,S•••'°UB L1G .•: ,= My Commission Expires on: 1 ~ 5 S CAB LEONE Watch us make you smile. April 14, 2010 Shari Stiles 613 Franklin Park Drive Boise, Idaho 83709 • 2101 East Karcher Rd. Nampa, Idaho 83fi87 PH: 208.455.5579 Fax: 208.455.5556 RE: Vacation of utility easements: Lots 4, 5 and 7 Block 1 of The Courtyards at Ten Mile Sub. Dear Shari, This letter is in response to a request from you regarding the proposed vacation of Lots 4, 5 and 7 Block 1 of The Courtyards at Ten Mile Subdivision. Cable One currently has no facilities located within the existing easement and has no objections to the proposed vacation. We orily ask that Cable One be provided copies of the new easements once they have been established. Included is a map of the azea that shows the location of Cable One facilities. Should you have any further questions please call me at 455-5553. Sincerely, ~- Jay Presher New Development Lead Cable ONE 0 V I 1 ~ ^ 454' ~~ ~~ o ~~ ~~ ~ ~ ~.. 1 O 16.2 1 ' Q s ~ '~ ~ 16.8 Q 0-1 ,~.o o ~ e, , ~a ; 1 i_ 1 n n n ~ ~ ~ ~ irn i - ~ ~ i 2 Z 14 2 - ,w G ~ ~ oo ' ; 7 z t . rn ~ ~ ~ ._ - t ~L ~ j ~ ~ A Bt, L5 20 3 3 ~ M 682 i i ~ ~ ~ ,. 14 1 ~ ' ~~ - `` ~ / g - ' 6 ~ •~30372 8 ~ 80'. 1 c~ ~~,~.~,• c O . ~ ~ gy-~,b / , 3043 g ~ ~ A ~ ,~0~ 1 3049 30 ~ ~ p 3057 30 _~_~..----------------- ------~ ~ 0 3C - ~ -~-~----~_ -_--__--_-_-- 3C 41 1: , • • INTERMCJUNTAIN GAS COMPANY A Subsidiary of MDU Resources Group, Inc. 555 SOUTH COLE ROAD • P.O. BOX 7608 BOISE, ID 83707-1608 (208)377-6000 • FAX (208)377-6867 www.intgas.com April 15, 2010 CMD Shari Stiles 3313 W Cherry Lane Meridian, ID 83642 RE: Vacation of a portion of The Courtyards at Ten Mile Enclosed is a map of The Courtyards with the gas lines showing. I will need an easement for the gas line in Lot 7 B1. If there are any questions call Mishelle Singleton at 377- 6863. Thank you for your time and consideration in this matter. Sincerely, Mishelle Singleton Engineering Tech. • • IMS Map: 1-804-66 (N GRAY CLOUD WY) _ -~.. _ ~ ~~ ri_ a u,, ~ ., la.; _ u w ~~ rni~ ~vi_ ~,~~ ~ i ,. ~, .. _ j __ ~ ~• 0.0 ,.~~k T , - - - _ I ~_ ~ ~ ~ I ~, ~ 9 i i -\~ - - -----i,~~ ~ ~ , f I I i ~ I ~~ ~~~ ti " i : I ~\ ,y LIOJI !L: ,,, _ ;,,; i - o ~; z i ~~~~ " I i ;: _ ' I ~ ~ ~ r ~~00-a I , ~ 59 ~~ ~ w.., i I ~_ ~ ~ ~ ~ i pis ie i ~'~ FI I/~ r r l ~ r, v m ~ I I ~ )~39 4 13 ~.'-7a - ~~ I ~ ~'' / ~ i~ ~ ~ ° I ~ I , v '~ m m //,_ 'S7i,9 41! ~ a ii, ~ ~n i~ ~. -1_ - /" '~~W NIAf,f~ElH I T _ _ _.. _._ __. ,,, \ ~ I u 3 Y - - F ni ~ f, r ? J~) (I. '~ _\ / U (\V f t\ 1. ~ I ~J ~ fV ~ N _ ` ' ,. , ~ n I _ ~ _ _ _-__.___._._. ~- f v r ?J .____ .. .__ N L~.1 ~. J ~ ~ J V7 (T \ ___ _ ~~ 2) al -~~~ (ll f.l S tV U~ nl 1 `~ N ~ I fi ~ CO N 4' rl _ - . _ I ~ e. w r~rva r~~ ' Sys \~~ ~+ -_ h00 Thu Apr 15 09:31:42 MDT 2010 • • aprlt of S~r~!ic~ April 19, 2010 Shari Stiles 613 Franklin Park Dr Boise,lD 83709 RE: Vacation of utility easements Lots 4, 5 & &n Block 1 The Courtyards at Ten Mile Meridian, ID Dear Ms Stiles: Reference is made to your request for Qwest to vacate the utility easements on the above referenced lots. I have enclosed a map indicating the general vicinity of Qwest owned facilities. These facilities were placed in developer provided trench on the northerly side of the property and should be witinin the landscape parcels with the exception of the north entrance. However, the only way to determine the exact location is to contact Digline and have the cable located. As to the remainder of the platted easements, Qwest has no facilities in those locations and we have no objections to the that portion of requested easement vacation. Please call me if you have any questions. Sincerely, ~,~~~~.. Qwest Communications Janet Sanchotena Senior Design Engineer 1315 W Amity Rd Boise, ID 83705 208-385-2344 208-385-2417 Fax W a[fe ] ,~: m / j ~F N / m L6L c)I Im' ~ E w i AINO 5350dNlld NOI1tl;lOl a0.i MOB /~ j ~ / , ~ ~ ~ -~ z ///J ~ m ,ti o. 3 \/ 2 ~ ~9~F,~ I -'n'`°9 ~ ~ m N m y o~p'`,1 4. 659 n ~ ''. /2-F ~p~ o o '. ti`s _ __ - n I ~ ~ s b5L 94L OfL ZZL 989 9G9 p 0 ~ N' i __.. ~I7~~o ag •' 'I OSL `~ ~ Zl vii 24L Bt( 91 MN 0`Y 1•&9 0 / u BJ BBt ~ M gOZ o° ~--~. C~pISC' NAY ~( r ~, cc~F, ------~ II ~ ~~s °r fu ~\ ~\ ~ e, V 1., ~ a a s ~ 9 o < ~, qV° ~ g~~ -v 4 c U `1 O ~ y r C ~ V '- a .. G N ~1 z r, 1 °' a ~ ~ _ ~=y ~ ~nV--moo [CTS 9] ~ ~ ---a ~ [GT40] -~ $ L a e - ~e[>I~] -- e a ~ o rn ~ O I ~ " ~~ 021 3lIW N31 N ~' ~ LD ~ llON- S,~ 9 W O .f N T _v o ~ N In ~ ~ N U n' c o N ~ ~ w ~ O O = U 2 Z 0 1 ~ ~ r p W 4 Q ~ T Z n w o v ~ v Z C O 'C U 0. ~~~ \ ~ ~ Q~~SS ~9 ~ ~, ~`~ . ~~a51~ ~ l\ l e C~ • SANITARY SEWER AND WATER MAIN EASEMENT THIS INDENTURE, made this _ day of , 2010, between Truce, LLC, the parties of the first part, and hereinafter called the Grantors, and the City of Meridian, Ada County, Idaho, the party of the second part, and hereinafter called the Grantee; WITNESSETH: WHEREAS, the Grantors desire to provide a sanitary sewer and water main right-of--way across the premises and property hereinafter particularly bounded and described; and WHEREAS, the sanitary sewer and water is to be provided. for through underground pipelines to be constructed by others; and WHEREAS, it will be necessary to maintain and service said pipelines from time to time by the Grantee; NOW, THEREFORE, in consideration ofthe benefits to be received by the Grantors, and other good and valuable consideration, the Grantors do hereby give, grant and convey unto the Grantee the right- of-way for an easement for the operation and maintenance of sanitary sewer and water mains over and across the following described property: (SEE ATTACHED EXHIBITS A, B and C) The easement hereby granted is for the purpose of construction and operation of sanitary sewer and water mains and their allied facilities, together with their maintenance, repair, replacement and additional connection. thereto of water or sanitary sewer mains at the convenience ofthe Grantee, with the free right of access to such facilities at any and all times. TO HAVE AND TO HOLD, the said easement and right-of--way unto the said Grantee, its successors and assigns forever. IT IS EXPRESSLY UNDERSTOOD AND AGREED, by and between the parties hereto, that after making repairs or performing other maintenance or making subsequent connections to the sanitary sewer or water line, Grantee shall restore the area of the easement and adjacent property to that existent prior to undertaking such repairs and maintenance. However, Grantee shall not be responsible for repairing, replacing or restoring anything placed within the area described in this easement that was placed there in violation of this easement. THE GRANTORS hereby covenant and agree that they will not place or allow to be placed any permanent structures, trees, brush, or perennial shrubs or flowers within the azea described for this easement, which would interfere with the use of said easement, for the purposes stated herein. The Courtyards at Ten Mile Sanitary Sewer and Water Main Easement Page 1 THE GRANTORS hereby covenant and agree with the Grantee that should any part of the right-of- way and easement hereby granted shall become part of, or lie within the boundazies of any public street, then, to such. extent, such right-of--way and easement hereby granted which lies within such boundary thereof or which is a part thereof, shall cease and become null and void and of no further effect and shall be completely relinquished. THE GRANTORS do hereby covenant with. the Grantee that they are lawfully seized and possessed of the aforementioned and described tract of land, and that they have a good and lawful right to convey said easement, and that they will warrant and forever defend the title and quiet possession thereof against the lawful claims of all persons whomsoever. IN WITNESS WHEREOF, the said parties of the first part have hereunto subscribed their signatures the day and year first herein. above written. GRANTOR: TRUCE, LLC Douglas T. Campbell, President of CMD, Inc. Managing Member STATE OF IDAHO ) ss County of Ada ) On this day of , 2010, before me, the undersigned, a Notary Public in and for said State, personally appeazed Douglas T. Campbell, known or identified to me to be the President of CMD, Inc., Managing Member of Truce, LLC, the limited liability company that executed the within instrument, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year fist above written. NOTARY PUBLIC FOR IDAHO Residing at: Commission Expires: The Courtyards at Ten Mile Sanitary Sewer and Water Main Easement Page 2 GRANTEE: CITY OF MERIDIAN Tammy de Weerd, Mayor Attest by Jaycee L. Holman, City Clerk Approved By City Council On: STATE OF IDAHO ) ss County of Ada ) ~J On this day of , 201.0, before me, the undersigned, a Notary Public in and for said State, personally appeared TAMMY DE WEERD and JAYCEE L. HOLMAN, known to me to be the Mayor and City Clerk, respectively, of the City of Meridian, Idaho, and who executed the within instrument, and acknowledged to me that the City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) NOTARY PUBLIC FOR IDAHO Residing at: Commission Expires: The Courtyards at Ten Mile Sanitary Sewer and Water Main Easement Page 3 • RADIUS NOTICE REPORT FILE NAME: court 08-Just-2010 Owners Owner Address BALL LYMAN G JR 2>32~ DESERT SPRINGS CIR BALL NANCY M STAR ID 83669-0000 Property Address: court BALL LYMAN G JR 2532 DESERT SPRINGS CIR BALL NANCY M STAR, ID 83669-0000 Property Address: court BUECHE KURT D 2711 ABEJORRO ST SCOTT RICHARD W CARLSBAD, CA 92009-0000 Property Address: court BUECHE KURT D 2711 ABEJORRO ST SCOTT RICHARD W CARLSBAD. CA 92009-0000 Property Address: court . CALLISTER DAVID M 2873 W WIND DR CALLISTER BECKY EAGLE. ID 83616-0000 Property Address: court CANTERBURY COMMONS LLC PO BOX 267 EAGLE. ID 83616-0000 Property Address: court CENTRAL VALLEY BAPTIST CHURCH OF ME 600 N TEN MII.E RD MERIDIAN. ID 83642-0000 Property Address: court COURTYARD AT TEN MILE RESIDENTIAL SU 4202 N MARCLIFFE AVE BOISE. ID 83704-0000 Property Address: court COURTYARD AT TEN MILE RESIDENTIAL SU 4202 N MARCLIFFE AVE BOISE. ID 83704-0000 Property Address: court 1 Owners Owner Address COURTYARD AT TEN MILE RESIDENTIAL SU Property Address: COURTYARD AT TEN MILE RESIDENTIAL SU Property Address: COURTYARDS PROPERTY OWNERS ASSOCI Property Address: COURTYARDS PROPERTY OWNERS ASSOCI Property Address: COURTYARDS PROPERTY OWNERS ASSOCI Property Address: <~' COURTYARDS PROPERTY OWNERS ASSOCI ;w.~~ Property Address: FERRIS PETER J DONG LING LI Property Address: FERRIS PETER J DONG LING LI Property Address: GOMES ANTHONY B JEW-GOMES MINII F Property Address: GOMES ANTHONY B JEW-COMES MIMI F Property Address: X202 N MARCLIFFE AVE BOISE. ID 83704-0000 court 4202 N MARCLIFFE AVE BOISE. ID 83704-0000 court X202 N MARCLIFFE AVE BOISE. ID 83704-0000 court X202 N MARCLIFFE AVE BOISE, ID 83704-0000 court X202 N MARCLIFFE AVE BOISE, ID 83704-0000 court 4202 N MARCLIFFE AVE BOISE, ID 83704-0000 court ~ 105 BOUNTY LN CULVER CITY, CA 90230-0000 court 5105 BOUNTY LN CULVER CITY, CA 90230-0000 court 370 WILD ROSE CIR PINOLE. CA 94564-0000 court 370 WILD ROSE CIR PINOLE. CA 94564-0000 court 2 Owners Owner Address LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: LIBERTY PARTNERS INC Property Address: 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN, ID 83646-5302 Court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 4190 N STAR RD MERIDIAN, ID 83646-5302 court 4190 N STAR RD MERIDIAN, ID 83646-5302 court 4190 N STAR RD MERIDIAN. ID 83646-5302 court 3 Owners Owner Address LIBERTY PARTNERS INC Property Address: MANCUSO MARIETTA C MANCUSO ANGELO J Property Address: MANCUSO MARIETTA C MANCUSO ANGELO J Property Address: MORK BRUCE MORK JOSEPHINE GOMES Property Address: MORK BRUCE MORK JOSEPHINE GOMES Property Address: MORK BRUCE ELDON MORK JOSEPHINE GOMES Property Address: MORK BRUCE ELDON MORK JOSEPHINE GOMES Property Address: NAMPA & MERIDIAN IRRIGATION DISTRICT Property Address: RAIN FALL LP Property Address: RAIN FALL LP Property Address: 4190 N STAR RD MERIDIAN. ID 83646-5302 court PO BOX 2526 SANTA ROSA; CA 95405-0526 court PO BOX 2526 SANTA ROSA; CA 95405-0526 court 786 WIDGEON ST FOSTER CITY, CA 94404-0000 court 786 WIDGEON ST FOSTER CITY; CA 94404-0000 court 786 WIDGEON ST FOSTER CITY, CA 94404-0000 court 786 WIDGEON ST FOSTER CITY, CA 94404-0000 court 1503 1ST ST S NAMPA, ID 83651-4395 court 1115 BURROWS ST SAN FRANCISCO, CA 94134-0000 court 1115 BURROWS ST SAN FRANCISCO, CA 94134-0000 court 4 Owners Owner Address RODRIGUEZ MIGUEL RODRIGUEZ SHASTA Property Address: SAEPHAN YEN SAEPHAN KEVIN FOW Property Address: SHAUL RODNEY D SHAUL TAMARA N Property Address: SOMMERSBY 2 SUB PROPERTY OWNERS AS Property Address: SOMMERSBY 2 SUB PROPERTY OWNERS AS Property Address: SOMMERSBY 2 SUB PROPERTY OWNERS AS Property Address: SOMMERSBY 2 SUB PROPERTY OWNERS AS Property Address: TRUCE LLC Property Address: TRUCE LLC Property Address: TRUCE LLC Property Address: 864 N BRITT PL MERIDIAN, ID 83642-0000 court 1041 E LENDING WAY SACRAMENTO, CA 9831-0000 court 77~ N TEN MILE RD MERIDIAN. ID 83642-476 court 3681 N LOCUST GROVE RD STE 100 MERIDIAN_ ID 83646-0000 court 3681 N LOCUST GROVE RD STE 100 MERIDIAN. ID 83646-0000 court 3681 N LOCUST GROVE RD STE 100 MERIDIAN. ID 83646-0000 court 3681 N LOCUST GROVE RD STE 100 MERIDIAN, ID 83646-0000 3649 N LAKEHARBOR LN BOISE_ ID 83703-0000 3649 N LAKEHARBOR LN BOISE, ID 83703-0000 3649 N LAKEHARBOR LN BOISE. ID 83703-0000 court court court court 5 Owners Owner Address VIPER INVESTMENTS LLC PO BOX 369 MERIDIAN. ID 83680-0000 Property Address: court