298 Agreemnt w/ Cherry Lane Recreation
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RESOLUTION NO. 2 q B
BY: Ke/fIL girtV
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN,
SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING
THE MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AN
AGREEMENT ENTITLED "AGREEMENT", BY AND BETWEEN THE CITY
OF MERIDIAN, IDAHO INDEPENDENT BANIe, AND CHERRY LANE
RECREATION, INC., AN IDAHO CORPORATION.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
MERIDIAN, IDAHO:
WHEREAS, it is in the best interests of tl1e City of Meridia11 to e11ter il1tO al1
agreel11e11t with IDAHO INDEPENDENT BANI(AND CHERRY LANE
RECREATION, INC., all Idallo Corporation, delloted as "AGREEMENT", a copy of
w11ich is attached hereto lnarlced as Exhibit "A" to this Resolutio11, the reaS011S and
authority for which are as set fortll ill said Agree1ne11t.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL, as follows:
1. The Mayor a11d ClerIc are 11ereby aLlthorized to ellter illto a11d 011 bellalf
of the City of Meridial1 that certain agree111ellt witll IDAHO INDEPENDENT
BANI(AND CHERRY LANE RECREATION, INC., al1 Idaho Corporation, entitled
"AGREEMENT", by and between the City of Meridiall alld IDAHO
INDEPENDENT BANI(AND CHERRY LANE RECREATION, INC., all Idal10
Corporatiol1, a copy of which is attached hereto luarlced as Exhibit "A" to tllis
Resolution alld to billd this City to its terlTIS al1d COl1ditiol1S.
RESOLUTION AUTHORIZING THE MAYOR TO ENTER - PAGE I OF 2
INTO AN AGREEMENT WITH IDAHO INDEPENDENT
BANICAND CHERRY LANE RECREATION, INC.
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PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN, IDAHO, t11is
day of (iz6r?ta/ltf ,2000.
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APPROVED BY THE MAYOR OF THE CITY OF MERIDIAN, IDAHO, this
day of r.ehYkt/Vlj ,2000.
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RESOLUTION OF THE CITY OF MERIDIAN - PAGE -
AUTHORIZING THE MAYOR TO ENTER
INTO A LESSOR'S STATEMENT CONCERNING AGREEMENT OF LEASE
DATED OCTOBER 30, 1978
(
CERTIFICATE OF CLERI(
OF
THE CITY OF MERIDIAN
I, the undersigned, do hereby certify:
I. Tllat I alTI the duly appointed alld elected Clerl( of t11e City of Meridial1,
a dLlly il1corporated City operati11g Llllder the laws of the State of Ida11o, witl1 its
prillcipal office at 33 East Idaho, Meridia11, Idallo.
. 2. That as the Ci:y Clerk of this CiYr I am the cu?todian of its records and
mmutes and do hereby certIfy that on the / Y day of U.6ru-GVL-~ ,2000,
the following action has been taken and authorized: (J
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN,
SETTING FORTH CERTAlN FINDINGS AND PURPOSES; AUTHORIZING THE
MAYOR TO ENTER INTO, ON BEHALF OF SAlD MUNICIPALITY, AN
AGREEMENT ENTITLED "AGREEMENT", BY AND BETWEEN THE CITY OF
MERIDIAN AND IDAHO INDEPENDENT BANI( AND CHERRY LANE
RECREATION, INC., AN IDAHO CORPORATION.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
MERIDIAN, IDAHO:
WHEREAS, it is ill the best interests of the City of Meridiall to ellter i11to al1
agreemel1t with IDAHO INDEPENDENT BANI( AND CHERRY LANE
RECREATION, INC., an Idaho Corporation, delloted as "AGREEMENT", a copy of
whic11 is attached hereto lnarl(ed as Exhibit "A" to this Resolutiol1, tl1e reaSOl1S al1d
authority for which are as set forth i11 said Agreelnel1t.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL, as follows:
1. The Mayor and Clerl( are hereby authorized to enter illtO a11d 011 behalf
of the City of Meridian tllat certain agreeluent with IDAHO INDEPENDENT
BANI(AND CHERRY LANE RECREATION, INC., all Idaho Corporatioll, entitled
"AGREEMENT", by a11d betwee11 the City of Meridia11 al1d IDAHO
INDEPENDENT BANI(AND CHERRY LANE RECREATION, INC., an Idallo
Corporatio11, a copy of which is attached hereto lnarl<.ed as Exllibit "A" to t11is
Resolutiol1 alld to bi11d this City to its terlTIS and COllditions.
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STATE OF IDAHO,
: SS.
COllnty of Ada,
On this day of F~in fA.- CiA ~ , in the year 2000, before me,
Sheib E. ri~ Lf a Notary Public, appeared WILLIAM
G. BERG, R., lmown or ide11tified to nle to be the City Clerl<. of the City of
Meridiall, Ida11o, tl1at executed the said il1stnllne11t, a11d acl<l1owledged to l11e tl1at 11e
executed the san1e on behalf of the City of Meridiall.
(SEAL)
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( RECOHDED - REQUEST OF
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100017942
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ADA CUUNTY RECORDER
J~ D,l\V~O Nt,V/\HF:O
P Ci J ~ ::. f C /; : i 0
AGREEMENT
MERIDIAN CITY
City of Meridian
Idaho Independent Banl( and
Cherry Lane Recreation, Inc.
THIS AGREEMENT is made and entered into this / S-I;? day
of fi?.6rtUV/,te ;20017, by and between the City of Meridian, Idaho, a municipal
corporatioll, erei11after referred to as "City", al1d Idaho Indepe11de11t Bank, a11d
Ida110 corporatio11, 11ereil1after referred to as "Baluc", and CherlY Lane Recreatiol1,
II1C., al1d Ida110 corporatio11.
Parties:
1. RECITALS:
1.1 WHEREAS the City of Meridiall has issued a conditiol1al use perlllit to
Cherry La11e Recreatio11, Inc. for tl1e Golf Course Clubhouse, Parl<.illg
Lot and Telnporary Clubhouse at 4200 Talal110re Blvd. Meridial1 Idal1o;
al1d
1.2 WHEREAS the COllditiollal use per111it COl1taillS the followil1g
COl1dition:
L~'1.20 The telTIpOrary clubl10use shall be used for a period
110t to exceed seve11 (7) 11l011tllS frol11 t11e date of this order.
Prior to 1110vil1g of tl1e telllporalY club110use, a letter of
credit or casl1 shall be received by tIle City of Meridial1 as a
guara11tee for COll1pletiol1 of tl1e perll1al1ellt clubhouse a11d
parld11g lot il1 tl1e alTIOU11t of Five HU11dred Thousa11d al1d
No/IOOths ($500,000.00) Dollars."; a11d
1.3 WHEREAS, il1 order to COlllply"ritI1 COl1ditioll 1.20 of the C011ditiol1al
Use Perlnit a11d to C011struct t11e illlprovell1el1ts per111itted by t11e
C011ditiol1al Use Perll1it, C11erry Lalle 11as requested loalls alld otl1er
fi11a11cial aCCOll11TIodatio11s froll1 Ba111( ,vl1icl1 the Ba111c is willil1g to
provide UpOl1 ,rarious C011ditiol1S, "rllicI1 cOl1ditio11s il1clude as seCllrity a
leasellold deed of trust Up011 Cl1erlY La11e's lessees' il1terest il1 t11e real
property, ~r11ich is the subject of tIle Agreell1e11t of Lease, al1d i11
AGREEMENT - Page 1
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additioll the Banl( reqLIires the City to agree during the terl11 of t11e
leasehold deed of trust that no modifications of the Agreement of Lease
be undertalcen vvithoLlt t11e City first notifying the Banl(, in vvriting at
least 90 days prior to the effective date of any modification, of the
City's intention to 1110dify the Agreement, and that i11 t11e evel1t of
default by Cherry Lane under the ternlS of the Agreelne11t of Lease t11e
City WOLIld notify the Banl( of StIch defaLllt in "vriting a least 30 days
prior to taldng any action to enforce any of the City's Rights LInder t11e
Agreement of Lease, during which tilne the banl( vVOLlld have the option
to cure the default or tal(e such other action as may be necessary to
protect the Banl('s seclIrity interest in the Agreelnent of Lease; and
1.4 WHEREAS Meridian is vvilling to enter into SLICh an agreel1lent to
provide the Banlc SLICh notice only llpon the consideration that Cherry
Lane agree that the funds received from any loan from the Banl( vvhich
is seclIred by the Leasehold deed of trLIst be Llsed exclusively for capital
improvements in the constrLlction of the improvelnents referel1ced in
the Conditional Use Permit and/or for meeting condition no. 1.20 of the
Conditional Use Permit, and that the Banl( and Cherry Lane agree that
Meridian upon a default of Cherry Lane and foreclosLlre by the Banlc of
the Leasehold Deed of Trust shall have the exclusive first option to
purchase froln the Bank the note and all collateral, in the an1ou11t eqtIal
to the total amount then owed to the Banl( by Cherry Lane together
vvith all costs, expenses, and fees of the Banl( vvhich could not be
exercised until a time subseqLlent to the expiration of the Letter of
Credit issued by the Banl( pursuant to condition no. 1.20 of the
Conditional Use Permit; and that in the event of a default and in the
event Cherry Lane fails to Inaintain the golf course Meridian ,upon 7
days prior written notice in the case of immi11ent peril with risl( of loss
to fairvvay or greens, could elect to maintain the golf course a11d
premises to avoid loss of fairway or greens, and to be reilnbursed for said
reasonable costs only in the event either Cherry Lane or the Banl( fails
to provide written assurance to Meridian to tal(e steps to prevent SLICh
loss, and that the Agreement of Lease be amended to provide that lessee
shall provide proof of CaslIalty loss insurance for a reasonable amOLlnt
of coverage for replacement of improvements, including sprinlder
system, fairway and greens, clubhouse, parl<.ing facilities and any and all
other improvements thereon and liability insLlrance in an alTIOunt
COffilnenSLIrate vvith the coverage as carried by other 18 hole golf COlIrse
facilities which are privately l11anaged in the Ada/Canyon COll11ty regiol1
AGREEMENT - Page 2
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of Idaho, and in no event less than the amount of liability provided
tInder the State of Idaho Tort Claims Law presently codified at I.C. S 6-
926, or as it may be alnended in the future vvith Meridian being
designated on said insLIrance coverages as a co-insured.
1.5 WHEREAS Banl( and Cherry Lane are agreeable to the C011sideratiol1
required by Meridian
2. DEFINITIONS:
2.1 Conditional Use Permit: l1leans and refers to that certai11 Conditio11al
Use Pem1it vvhich vvas issued by the City of Meridian to Cherry Lal1e
Recreation, Inc., an Idaho Corporation for the construction, LIse and
maintenance of a Golf Course ClubhoLlse, Parldng Lot and Temporary
Clubhouse at 4200 Talamore Blvd, Meridian Idaho in City of Meridian
Case No. CUP-99-009, as may be amended from time to time.
2.2 Meridian: means and refers to the City of Meridian, a municipal
corporation having as its principle address 33 E. Idaho, Meridian, ID
83642.
2.3 Banl(: means and refers to the Idaho Independent Banl(, an Ida110
corporation with its principle address at 317 N. 9th Ave., Boise, rD
83702.
2.4 Cherry Lane: means and refers to Cherry Lane Recreation, Inc., an
Idaho corporation vvith its principle offices at 4200 W. Talamore,
Meridian ID 83642.
2.5 Agreement of Lease: means and refers to that certain Agreement of
Lease by and between Meridian and Cherry Lane dated October 3,
1978.
2.6 Leasehold Deed of Trust: means and refers to that Certain Leasehold
Deed of Trust by and between Banl( and Cherry Lane which secures the
Banl('s loan to Cherry Lane in the leasehold interest of Cherry La11e to
the Agreen1ent of Lease.
2.7 Golf Course: means and refers to the golf course vvhich has beel1
developed and is the subject of the Agreement of Lease.
AGREEMENT - Page 3
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NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein, the parties agree as follovvs:
3. INCORPORATION OF RECITALS:
3.1 That the above recitals are contractual and bi11ding and are incorporated
herein as if set forth in full.
4. AGREEMENT BETWEEN BANI(, CHERRY LANE AND MERIDIAN:
The provisions of this section shall be binding Llpon Banl(, Cherry Lane and
Meridian as follovvs:
4.1 During the term of the Leasehold Deed of TnIst no nlodifications of tIle
Agreemellt of Lease shall be under tal(ell vvithout Meridian first
notifying the BanIe, in writing at lease 90 days prior to the effective date
of any modification, of the City's intention to modify the Agreement of
Lease, and that in the event of default by Cherry Lane under the tern1S
of the Agreement of Lease, Meridian shall notify the Banl( of such
default in writing at least 30 days prior to taldng any action to enforce
allY of Meridian's rights under the Agreement of Lease, dLIring vvllich
time the banl( is given the option to cure the defaLllt or talce sLIch other
action as may be necessary to protect the Banl('s security illterest in t11e
Agreement of Lease. No lTIodification of the Agreement of Lease nor
any right of default of the Agreement of Lease shall accrue to Meridian
until this provision has been complied with.
4.2 Meridian shall have the exclusive first option to purchase from the banl(
the note and all collateral, in the amount equal to the total alnount thel1
ovved to the Banlc by Cherry Lane together vvitl1 all costs, expe11ses, al1d
fees of the Balll(. This option to purchase may be exercised at any time
subsequent to the expiration of the letter of credit issued by the banlc
pursuant to condition number 1.20 of the conditional use permit but
must be exercised prior to 3:00 p.m. Mountain time, on the business
day prior to the date of any scheduled foreclosure sale. In the event
Meridian determines to exercise its option as provided herein, it shall
deliver the option price in cash to banl( by no later than 3:00 p.m.,
Mountain time, on the business day prior to any schedllled foreclosLlre
sale. The Banl( shall give Meridian notice of foreclosLlre and of date of
sale which shall include notice of this exclusive first option. Meridian
may file a reqllest for a copy of notice of default or notice of sale,
AGREEMENT - Page 4
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pursuant to I.C. S 45-1511, and the BanIe shall provide Meridian vvit11
the necessary inforlnation on the recording of the Leasehold Deed of
Trust to enable Meridian to so file the request for notice a11d the Ba111(
shall also cause Meridian to receive notice in the manner provided for i11
I.C. S 45-1505 at the address of Meridian herein provided even in t11e
event Meridian fails to record a request for notice.
4.3 In the event of a default of the Leasehold deed of trLlst by Cherry La11e
and in the event Cherry Lane fails to maintain the golf course Meridian
upon 7 days prior written notice to Banle and that Cherry Lane in the
case of imminent peril of risl( of loss to fairway or greens Meridian has
elected to maintain the golf COLlrse and premises to avoid loss of fainvay
or greens and shall be reimbursed for said reasonable costs, bLlt 011ly in
the event either Cherry Lane or the BanIe fails to provide vvritten
assurance to Meridian to taI<.e steps to prevent such loss. Meridian shall
provide vvritten notice of costs incurred under this section to Banl( alld
Cherry Lane which shall then become due and payable within 30 days
of the date of vvritten notice. Any sum so paid by banle to Meridian
shall be immediately due and owing by Cherry Lane to Banle and llntil
paid to Banl(, shall be secured by leasehold deed of trust granted by
Cherry Lane in favor of the Banl(.
5. AGREEMENT BETWEEN CHERRY LANE AND MERIDIAN: The
provisions of this section shall be binding upon Cherry Lane and Meridial1 as
follows:
5 .1 The funds received froIn any loan from the Banle vvhich is secured by
the Leasehold deed of trust will be used exclusively for capital
improvelnents in the construction of the improvements referenced in
the Conditional Use Permit and/or for meeting condition no. 1.20 of the
Conditional Use Permit, and Cherry Lane shall provide writte11 proof at
such time written request made by Meridian for such information to the
Bank of the application of said fund as herein provided and Cherry
Lane herein agrees that the Banl, may provide such information to a
duly authorized agent of Meridian. Reqllest for such written proof made
by Meridian shall be directed to Cherry Lane with a copy to the Banlc
and Cherry Lane shall respond vvithin 21 days of the date of the request.
In the event Meridian determines there has beell a default of this
section, it shall notify Cherry Lane and the Banl<. in vvriting of the clailTI
of default and Cherry Lane shall have 30 days from the date of Notice
AGREEMENT - Page 5
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to cure the default. In the event the default is not cured, the BanI( s11all
release all such infor111ation to Meridian.
6. INSURANCE: The provisions of this section shall be binding upon C11erry
Lane and Meridian and shall serve as an amendment to their Agree11le11t of
Lease as follovvs.
6.1 Agreement of Lease be and is hereby amended to provide that lessee
shall provide proof of CaSLlalty Loss Insurance for a reasonable amOLlnt
of coverage for replacement of improvements, including sprinlder
system, fairvvay and greens, clLlb house, parldng facilities and any and all
other improvelnents t11ereo11 and liability insurance in an alnOLlnt
comn1ensurate vvith the coverage as carried by other 18 hole golf course
facilities vvhich are privately mal1aged in the Ada/Canyon County regiol1
of Idaho, and in no event less than the amOLlnt of liability provided
under the State of Idaho Tort Claims Law presently codified at I.C. ~ 6-
926, or as it may be amended in the future with Meridian being
designated on said insurance coverages as a co-insured and certificates of
such insurance coverage provided to Meridian.
7. DEFAULT:
7.1 A default of this agreement by the Banl( is a failure to provide Meridian
notice of Foreclosure of the Leasehold deed of trLlst and or a failure to
pay reasonable costs incurred by Meridian pursuant to section 4 of this
agreement.
7.2 A default of this agreelnent by Cherry Lane is a failure to apply fllnds
obtained frOITI the Banl, for the Loan and/or supply information as
required in section 5.1 and/or a failure to pay reasonable costs incllrred
by Meridian pursuant to section 4.3 of this agreement and a defaLllt of
requirement to carry insurance pursLlant to section 6 of this agreelnent.
8. REMEDIES:
8.1 In the event of default of BanI, no foreclosllre sale shall occur in the
event of a notice default and in the event of failure to pay reasonable
costs as provided in Section 4.3, the amount of costs pILLS interest at the
statutory rate froITI the date of notice of the amOLlnt of costs inC1..1rred
vvas given by Meridian.
AGREEMENT - Page 6
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8.2 In the eve11t of default of Cherry Lane, it shall hold the Banl( harnlless
from any claim herein of default by Meridian, and in the event of a
failure to apply funds received froITI the BanI, from the loan and or to
provide informatio11 as provided in section 5.1, Cherry Lane shall be il1
default of the Agreelnent of Lease and in the event of failLlre to pay
reasonable costs as provided in Section 4.3, the alTIOLl11t of costs pIlls
interest at the statlltory rate from the date of notice of the amOl.111t of
costs incurred vvas given.
9. GENERAL PROVISIONS
Section 9.1 : Non-Waiver. The failure of a party hereto to insist UpOll
strict perforlnance of observance of this agreelnent shall not be a vvaiver
of any breach of any ter111S or conditions of this agreement by a11Y other
party.
Section 9.2: Conflicts of Agreement vvith Applicable Law. In the event
any provision or section of this agreement conflicts with applicable lavv,
or is otherwise held to be unenforceable, the remaining provisions shall
nevertheless be enforceable and carried into effect.
Section 9.3: Attorneys Fees. In the event any litigation arising under,
or as a result of, this agreement or arising from a11Y of the acts to be
performed hereunder or the alleged breach of this agreelnent, except for
an agreed declaratory jLldgtnent action sought to clarify the
responsibility and or authority of the "Parties" hereunder, the prevailing
party shall recover its costs and reasonable attorneys' fees.
Section 9.4: Idaho Law. This agreement shall be governed and
interpreted by the laws of the State of Idaho.
Section 9.5: No Assignment. No party may assign this agreement or
any interest therein.
Section 9.6: Notices. All notices, requests, demands and other
communications under this agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served
personally on the party to vvhom notice to be given, or on the third day
after mailing, if mailed to the party to vVhOlTI notice is to be given, by
first class Inail, registered or certified, postage prepaid, and unless either
AGREEMENT - Page 7
party should notify tIle other of a change of address, properly addressed
as follows:
City of Meridian
Attention: City Clerl(
33 E. Idaho
Meridian ID 83642
Idaho Independent Banl(
3.17 N. 9th Ave.
Boise ID 83702
Cherry Lane Recreation, Inc.
4200 W. Talamore
Meridian ID 83642
Section 9. 7: This agreement shall be executed by the "Parties" in three
(3) counterparts, and each such counterpart shall be deemed an
"original".
Section 9.8: Requirement for Recordation: City may record either a
memorandum of this Agreement or this Agreement, and subnlit proof of
such recording to the parties.
AGREEMENT - Page 8
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IN WITNESS WHEREOF, the parties have executed this Agreement at ,Ada
COLlnty, Idaho, the date written below.
CITY OF MERIDIAN
Attest:
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BY RESOLUTION NO. ~I 0
IDAHO INDEPENDENT BANI(
By: -(~4Ii/ .
Cherry Lane Recreation, INC.
By:
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Wallace D. Lovan
By: {~~c:rz/~
Venita I. Lovan
AGREEMENT - Page 9
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ACKNOWLEDGMENTS
STATE OF IDAHO)
:ss
Coun ty of Ada
On this /Sf- day of Feb1LlMt;[ , in the year atJo , before me,
a Notary Public, personally appeared Robert D. Corrie and William G. Berg, Jr.,
known or identified to me to be the Mayor and Clerk, respectively, of the City of
Meridian, who executed the instrument or the person that executed the
instrument of behalf of said City, and acknowledged to me that such City executed
the same.
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COUNTY OF ADA )
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NothbliC for Idaho
Commission expires: 1/217/00
On this srd day of Marc-h , in the year ..2000 , before me, a
Notary Public, personally appeared 8t.fYl1;f;l. }.IlA-J--j-/'5@Y) ,known or identified to
me to be the Via frl5,'dmt c+ ;V]antlqbtDf the Idaho Independent Bank, and
acknowledged to me that he executed the instrument as ViC-l- fre-5/d~trf of )l[C[Yl~
of such bank. .
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AGREEMENT - Page 10
~~~
Notary Public for Idaho
Commission expires: /0/'2'7 ):;..00.3
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STATE OF IDAHO)
:ss
COUNTY OF ADA)
On this 9' G day of FeKJteU.4f'Z '/ , in the year 2OcJO, before me, a
Notary Public, personally appeared Wallace D. Lovan and Venita I. Lovan, known
or identified to me to be the fl/l6~ (.oaf/and .> Ec..I2ern-~y of Cherry
Lane Recreation, Inc. respectively, and acknowledged to me that they executed the
same as P;z e.J{OEF-<:r and S e c./l.cr;q~y of Cherry Lane
Recreation, Inc.
(SEAL)
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Notary Public for Idaho
Commission expires: /0/ 1-7/-:2-00 3
ey /Z: \ Work\M\Meridian 15360M\ Cherry Lane Estates \ CityBankRec.Agr
AGREEMENT - Page 11