Development Agreement - 2006 - Eagle Sewer District MOD - 9/22/2006
Recording Requested By and
When Recorded Return to:
ADA COUNTY RECORDER J. DAVID NAVARRO
BOISE IDAHO 09/28106 01:52 PM
DEPUTY Vicki Allen
RECORDED - REQUEST OF
City of Eagle
AMOUNT .00
14
1111111111111111111111111111111111111
106154824
City of Eagle
P.O. Box ]520
Eagle, Idaho 836]6
For Recording Purposes Do
Not Write Above This Line
DEVELOPMENT AGREEMENT
This Development Agreement, made and entered into on the date as indicated herein, by
and between the City of Eagle, a municipal corporation in the State ofIdaho ("Eagle"), by and
through its Mayor, and the Eagle Sewer District, 44 N. Palmetto Avenue, Eagle, Idaho
("Applicant").
WHEREAS, the Applicant contracted to purchase certain real estate consisting of53.2
acres located on the south side of State Highway 44 alternative route approximately 200 feet west
of Ballantyne Road at ]993 West State Street, Eagle, Idaho, ("Property"), as specifically defined
in the attached legal description (Exhibit A) which is the subject of an application for Rezone
identified as Rezone Application No. RZ-08-05 MOD; and
WHEREAS, the proposed development includes properties within an area currently zoned
RUT (Rural Urban Transition - Ada County Designation); and
WHEREAS, the Applicant desires a PS Public/Semipublic zoning classification to develop
a wastewater treatment facility use on the above described property, which is herein referred to as
the "Property"; and
WHEREAS, the Planning and Zoning Commission and the City Council of Eagle have
determined that the scope of any wastewater treatment facility project upon the Property must be
limited to prevent undue damage to, and to otherwise be in harmony with, the existing community; and
WHEREAS, the intent of this Development Agreement is to protect the rights of Applicant's
use and enjoyment of the Property while at the same time limiting any adverse impacts of the
development upon neighboring properties and the existing community and ensuring the Property is
developed in a manner consistent with Eagle's Comprehensive Plan and City Code; and
WHEREAS, the Applicant has agreed to the use restrictions and other limitations set forth
herein upon the use and development of the Property and hai consented to a PS Public/Semipublic
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zoning designation for the Property with the requirements set forth in this Development Agreement;
and
WHEREAS, the Applicant has previously provided Eagle with an affidavit agreeing to submit
the Property to a Development Agreement pursuant to Eagle City Code Section 8-] 0-1 (C)( I); and
WHEREFORE, the Applicant and the City of Eagle desire to resolve the issues and
concerns that have arisen and for and in consideration of the mutual covenants contained herein, it
is agreed as follows:
ARTICLE I
LEGAL AUTHORITY
] . 1 Eagle will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the property
that is the subject of the application to a PS Public/Semipublic zoning designation, after
recordation of, and subject to the provisions of this Development Agreement. The ordinance
will become effective after its passage, approval, and publication and the execution and
recordation of this Development Agreement.
ARTICLE II
CONDITIONS OF DEVELOPMENT
2.1 Wastewater Treatment Facility shall be the only use permitted.
2.2 The owner shall submit a Design Review application for the site (as required by the
Eagle City Code), and shall comply with all conditions required by Eagle as a part of
the Design Review prior to the issuance of a zoning certificate.
2.3 The applicant shall construct a minimum seventy-five foot (75') wide landscaped
buffer area with a minimum ten foot (10') high berm constructed with a 3:1 slope
along State Highway 44 in accordance with ECC 8-2A-7(J)(4)(c) and a fifty foot (50')
wide landscaped buffer area adjacent to the east and west boundaries of the site.
2.4 The applicant shall submit a master site Design Review application for review and
approval by the Design Review Board prior to the commencement of any grading
and/or construction of berms on the site. Berm construction and associated
landscaping shall be completed prior to the issuance of any building permits.
2.5 A separate Design Review application shall be required for any signage for the site.
2.6 All living trees that do not encroach upon the buildable area of the lot shall be
preserved, or as otherwise determined by the City Forester. A detailed landscape plan
showing how the trees will be integrated into the landscaping areas (unless approved
for removal by the City Forester and the Design Review Board) shall be provided for
Design Review Board approval prior to the issuance of any building permits.
2.7 Landscaping and landscaped berms along the Property's frontage at ]993 West State
Street (State Highway 44) shall be completed and installed within one (]) year from
July 26, 2006, to assure adequate screening when the buildings and other components
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of the wastewater treatment facilities are subsequently constructed on the property.
2.8 Prior to the issuance of building permits the applicant shall provide a written statement
addressing how odors will be mitigated with the assurance that the selected effiuent
treatment process will not produce objectionable odors.
2.9 All buildings shall be designed in compliance with Eagle City Code Section 8-2A.
Permitted architecture styles are specifically those shown within the Eagle
Architecture and Site Design Book (EASD Book). Architecture styles and building
design elements that are not shown with the EASD Book will not be permitted.
2. ] 0 The applicant shall have an on-site meeting with the City Forester to survey all existing
trees. Subsequent to the on-site meeting, construction fencing shall be installed
(pursuant to the City Forester's direction) to protect all trees that are to be preserved,
prior to the commencement of any construction on the site.
2.]] The Applicant shall submit, as may be determined by the Flood Plain Administrator, a
Flood Plain Development Permit in compliance with all rules, regulations and ordinances as
required by Title 10, Flood Control, of the Eagle City Code.
2.]2 The site shall be limited to no more than one access point onto State Highway 44, subject
to the review and approval of the Idaho Transportation Department. If a the realignment of
the intersection of Ba1Iantyne Road and State Highway 44 occurs before Design Review
approval the west entrance to the size should be aligned with that intersection.
2. ] 3 Prior to the City issuing a Zoning Certificate for approval of the site redevelopment plan
(final building, site, civil, and landscape plans) all existing buildings shall be removed from
the site.
2. ] 4 The applicant shall obtain a demolition permit for the removal of any structures from the
site.
2. ] 5 The development area (lot coverage) shaII not exceed 500/0 of the site.
2.]6 All site lighting is to be shielded to direct all light downward and not project
horizontally onto any public right of way, private street, or onto the property line of
any residentially zoned parcel of land or parcel of land used for residential purposes.
All lights shall be approved as to location design and intensity by the Design Review
Board.
2.] 7 Construct a minimum six-foot (6') wide asphalt pathway along the frontage of the site
adjacent to State Highway 44 prior to the issuance of any occupancy permits for the
site. Plans for the pathway shall be submitted to the Parks & Pathway Development
Committee for a recommendation to the Council.
2. ] 8 No signs are proposed with this application. A separate design review application is
required for the approval of any signs.
2.19 Plans shall be submitted to the Design Review Board for review and approval prior to
the issuance of any building permits.
2.20 Building setbacks shall be as follows:
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Front Setback: 75-feet
Rear Setback: O-feet
Side Setback: 50-feet
ARTICLE III
AFFIDAVIT OF PROPERTY OWNERS
3.] An affidavit of all owners of the Property agreeing to submit the Property to this Development
Agreement and to the provisions set forth in Idaho Code Section 67-65]]A and Eagle City
Code Section 8-] 0-] shall be provided and is incorporated herein by reference.
ARTICLE IV
DEFAULT
4.1 In the event the Applicant fails to comply with the commitments set forth herein, within thirty
(30) days of written notice of such failure from Eagle, Eagle shall have the right, without
prejudice to any other rights or remedies, to cure such default or enjoin such violation and
otherwise enforce the requirements contained in this Development Agreement or to terminate
the Development Agreement following the process established in Eagle City Code Section 8-
10-1.
4.2 Ifrequired to proceed in a court oflaw or equity to enforce any provision of this
Development Agreement, Eagle shall be entitled to recover all direct out-of-pocket costs so
incurred to cure or enjoin such default and to enforce the commitments contained in this
Development Agreement, including attorneys' fees and court costs.
ARTICLE V
UNENFORCEABLE PROVISIONS
5.] If any term, provision, commitment, or restriction of this Development Agreement or the
application thereof to any party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument shall terminate and the zoning of the property
shall revert to the PS Public/Semipublic zoning designation unless the portion of this
instrument determined to be invalid or unenforceable is re-negotiated in good faith between the
Applicant (or other appropriate party) and Eagle as an amendment to the Development Agreement
processed in accordance with the notice and hearing provisions ofIdaho Code Section 67-
6509, as required by Eagle City Code Section 8-10-1.
ARTICLE VI
ASSIGNMENT AND TRANSFER
6.] After its execution, the Development Agreement shall be recorded in the office of the County
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Recorder at the expense of the Applicant. Each commitment and restriction on the
development shall be a burden on the Property, shall be appurtenant to and for the benefit of
the Property, adjacent property, and other residential property near the Property and shall run
with the land. This Development Agreement shall be binding on the Applicant and owners,
and their respective heirs, administrators, executors, agents, legal representatives, successors,
and assigns; provided, however, that if all or any portion of the development is sold, the
sellers shall thereupon be released and discharged from any and all obligations in connection
with the property sold arising under this Agreement. The new owner of the Property or any
portion thereof (including, without limitation, any owner who acquires its interest by
foreclosure, trustee's sale or otherwise) shall be liable for all commitments and other
obligations arising under this Agreement with respect to the Property or portion thereof
ARTICLE VII
GENERAL MATTERS
7.] Amendments. Any alteration or change to this Development Agreement shall be made only
after complying with the notice and hearing provisions ofIdaho Code Section 67-6509, as
required by Eagle City Code Section 8-10-].
7.2 Paragraph Headings. This Development Agreement shall be construed according to its fair
meaning and as if prepared by both parties hereto. Titles and captions are for convenience
only and shall not constitute a portion of this Development Agreement. As used in this
Development Agreement, masculine, feminine or neuter gender and the singular or plural
number shall each be deemed to include the others wherever and whenever the context so
dictates.
7.3 Choice of Law. This Development Agreement shall be construed in accordance with the laws
of the State of Idaho in effect at the time of the execution of this Development Agreement.
Any action brought in connection with this Development Agreement shall be brought in a
court of competent jurisdiction located in Ada County, Idaho.
7.4 Legal Representation. Both the Applicant and Eagle acknowledge that they each have been
represented by legal counsel in negotiating this Development Agreement and that neither
party shall have been deemed to have been the draftor of this agreement.
7.5 Notices. Any notice which a party may desire to give to another party must be in writing and
may be given by personal delivery, by mailing the same by registered or certified mail, return
receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery
service, to the party to whom the notice is directed at the address of such party set forth
below;
Eagle:
City of Eagle
660 East Civic Lane
Eagle, Idaho 836] 6
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Applicant:
Eagle Sewer District
44 North Palmetto Ave.
Eagle, Idaho 83616
Or such other address and to such other persons as the parties may hereafter designate. Any
such notice shall be deemed given upon receipt ifby personal delivery, forty-eight (48) hours
after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-
four (24) hours after timely deposit with a reputable overnight delivery service.
7.6 Effective Date. This Development Agreement shall be effective upon the signing and
execution of this agreement by both parties.
7.7 Termination. This agreement terminates upon completion of Conditions of Development or
after 7 -years after the Effective Date, whichever occurs first.
IN WITNESS WHEREOF, the parties have executed this Development Agreement.
DATED this ~ day o~ 2006.
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CITY OF EAGLE, a municipal corporation
organized and existing under the laws of the State of
Idto
By:
ATTEST:
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- Sharoh. K. Bergmann, City CI k
"APPLICANT"
EAGLE SEWER DISTRICT
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By:
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Michael Gifford
Its: Chairman
ATTEST:
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County of Ada )
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On this U ~iy of~l?bVvL~ ,2006, before the undersigned notary public in and for
the said state, personally appeared NANCY C. MERRILL, known or identified to me to be the
Mayor of the City of Eagle and the person who executed the foregoing instrument on behalf of
said City and acknowledged to me that said City executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first
above written.
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STATE OF IDAHO )'
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County of Ada )
On this (2"'C\ day of>y ptc'i l\~:Lr , 2006, before me, a Notary Public for the State
ofIdaho, personally appeared MICAHEL GIFFORD and LYNN MOSER, known or identified to
me, to be the Chairman and Secretary, respectively, of EAGLE SEWER DISTRICT, and the
persons who executed the instrument on behalf of said corporation, and acknowledged to me that
such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
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EXHIBIT "A"
ADA COlllrTY RECOllDEIl J. lJAVlD NAVARRO
.OISE IIMHO 17/2111lU OUt All
DEPUTY WlAI An.
IlECQlDED - IIEQUEST Of
nr.. I De An."
AIIIUNT Zl.110
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Recording Requested By And
When Recorded Mail To:
I.
Darin DeAngeli
Ahrens & DeAngeli, p.l.l.c.
P.O. Box 6561
Boise, Idaho 83707-6561
APR 2 8 2005
File:
Route to:
TRtJS'tD r S DEED
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Alice E. Tomlinson, Trustee of The Alice E. Tomlinson
Trust, U!T!A dated October 5, 1990, as amended on September 29,
1993, and April 23, 2004, hereinafter referred to as the
"Grantor," hereby grants, transfers and conveys to Tomlinson
Management, LP, an Idaho limited partnership, hereinafter
referred to as the "Grantee," whose mailing address is 3025 S.E.
8th Avenue, Portland, Oregon 97202, the following described real
property, situated in Ada County, State of Idaho, to wit:
The Southwest Quarter of the Southeast
Quarter; West half of the Southeast Quarter
of the Southeast Quarter of Section 7,
Township 4 North, Range 1 East, Boise
Meridian, Ada County, Idaho.
Together with Cert. No. 299 for one share of
New Dry Creek Ditch Company.
LESS AND EXCEPTING THEREFROM:
That portion conveyed to the State of Idaho
by instrument recorded August 1, 1956 under
instrument no. 398307, more particularly
described as follows:
A strip of land being all that portion of the
West half Southeast quarter Southeast quarter
of Section 7, Township 4 North, Range 1 East,
TRUSTEE'S DEED-l
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Boise Meridian, lying Northerly of a line
parallel with and 60.0 feet distance
Southerly from the following described
centerline of Highway as surveyed and shown
on the plat of State Highway No. 44 - Project
No. S-3748 (4) Highway Survey on file in the
office of the Department of Highways of the
State of Idaho. Beginning at Station
851+15.0 of the said Highway Survey, which
station is a point on tangent approximately
1,358.0 feet North and 1,320.0 feet East from
the South quarter corner of Section 7,
Township 4 North, Range 1 East, Boise
Meridian: thence North 88004' East 659.0 feet
to Station 857+74.0 of said Survey, which
station is a point on tangent approximately
1,357.0 feet North and 660.0 feet West from
the Southeast corner of said Section 7.
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FURTHER LESS AND ACCEPTING THEREFROM:
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A parcel of land being on both sides of the
centerline of State Highway No. 44 (Eagle
Alternate Rt.), Project No. F-3271(033)
Highway Survey, as shown on the plans
thereof, now on file in the office of the
Idaho Transportation Department, and being a
portion of SI/2SEI/4 of Section 7, Township 4
North, Range I East, Boise Meridian,
described as follows, to-wit:
Commencing at the South
7, Township 4 North,
Meridian:
1/4 corner of Section
Range 1 East, Boise
thence North 1011' OS" East along the West
line of the SE1/4 of said Section 7, a
distance of 1272.31 feet to a point on the
Southerly right of way line of existing State
Highway No. 44:
thence North 89"41'30" East along said
existing Southerly right of way line 704.08
feet to a point 60.0 feet Southerly from
Station 845+00 of State Highway No. 44 (Eagle
TRUSTEE'S DEED-2
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Al ternate Rt. ) ,
Highway Survey
Beginning;
Project
and being
No.
the
F-3271 (033)
Real Point
thence continuing North 89041'40w East along
said existing Southerly right of way line
772.77 feet to a point in a line parallel
with and 70.0 feet Northeasterly from the
centerline and radially from Station
852+63.93 of said State Highway No. 44
Highway Survey;
thence Southeasterly along said parallel line
being a 2,361.83 foot radius curve Right (the
long chord of which bears South 67056' 07"
East - 269.86 feet) an arc length of 270.0
feet to a point opposite Station 855+25.93 of
said State Highway No. 44, Highway Survey;
thence North 47006'49" East - 151.81 feet to
a point in said existing Southerly right of
way line;
thence North 89041' 30 n East along the said
existing Southerly right of way line 139.84
feet to a point in the East line of the
Wl/2SE1/4SEl/4 of said Section 7;
thence South 1025' 55" West along said East
line 38.04 feet to a point in a line parallel
with and 60.0 feet Easterly from the
centerline and radially from Station 2+78.69
of the Connector Road Survey as shown on the
plans of said State Highway No. 44, Highway
Survey;
thence Southwesterly along said last parallel
line being a 240.0 foot radius curve Left
I the long chord of which bears South
42022'53" West - 121.11 feet) an arc length
of 122.43 feet to a point opposite Station
1+25.65 of said Connector Road Survey;
thence South 6056'00" East - 70.26 feet to a
point in a line parallel with and 70.0 feet
TRUSTEE'S DEED-3
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Northeasterly from the centerline
radially from Station 857+20.70 of said
Highway No. 44 Highway Survey;
and
State
thence Southeasterly along said last parallel
line being a 2,361.83 foot radius curve Right
(the long chord of which bears South
58050'24" East - 79.63 feet) an arc length of
79.64 feet to a point in the said East line
and being opposite Station 857+97.34 of said
State Highway No. 44, Highway Survey;
thence South 1025' 55" West along said East
line 188.51 feet to a point in a line
parallel with and 90.0 feet Southwesterly
from the centerline and radially from Station
858+97.53 of said State
Highway no. 44, Highway Survey;
thence Northwesterly along said last parallel
line being a 2201.83 foot radius curve Left
(the long chord of which bears North
72050'22" West - 1321.94 feet) an arc length
of 1342.65 feet to a point opposite Station
845+00 of said State Highway No. 44, Highway
Survey;
thence North 0018'28" West - 30.0 feet to the
Real Point of Beginning;
State Highway No. 44 Highway Station
Reference: 845+00 to 858+97.53.
The area above described contains
approximately 3.95 acres.
The bearings as shown in the above land
description, unless otherwise noted, are from
the Idaho Plane Coordinate System, based on
the transverse mercator projection for the
West Zone of Idaho.
Any right of way fencing to be constructed is
not necessarily intended to designate the
property line and any variance between the
TRUSTEE'S DEED-4
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location of right of way fencing and the
actual property line as herein described
shall not be construed as a modification or
alteration of this description.
FURTHER LESS AND ACCEPTING THEREFROM:
EAST PARCEL:
Map), COMMENCING
1, T4N RIE 8.M.,
THEN S 1030'44" W, 1332.91 feet,
PARCEL 50507449035 (Per ITD
at the E 1/4 corner of Sec.
THEN S 1030'44" W, 36.86 feet to a point
on the south R-O-W for W State St.,
THEN S 89048'53" W, 530.38 feet,
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THEN 136.95 feet along a curve to the
left whose long chord bears 73025'33" W,
135.10 feet, whose radius is 240 feet
and delta is 32041'39" to the TRUE POINT
OF BEGINNING,
THEN 122.44 feet along a curve to the
left whose long chord bears 42022'29" W,
121.12 feet, whose radius is 240 feet
and delta is 29013'50",
THEN S 06056'12" E, 70.27 feet,
THEN 79.63 feet along a curve to the
right whose long chord bears S 58050'22"
E, 79.62 feet, whose radius is 2361.83
feet and delta is 01055'54",
THEN N 01025'55" E, 200.49 feet to the
TRUE POINT OF BEGINNING.
Compiled from data of record, with bearings
rotated to Idaho State Plane Coordinate
System Grid North basis.
TRUSTEE'S DEED-5
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WEST PARCEL:
COMMENCING at
R1E B.M.,
50501449065 (Per ITD Map),
the E 1/4 corner of Sec. 7, T4N
THEN S 01030'44", w, 1332.91 feet,
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THEN
point
St. ,
S 01030'44" W,
on the south
36.86 feet
R-O-W for W
to a
State
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THEN S 89048'53" W, 799.19 feet to the
TRUE POINT OF BEGINNING,
THEN S 89048'53" W, 361.33 feet,
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THEN 270.00 feet along a curve to the
right, whose long chord bears S
67056'07" E., 269.86 feet, whose radius
is 2,361.83 feet and delta is 06033'00",
THEN N 47006'49" E, 151. 81 feet to the
TRUE POINT OF BEGINNING.
Compiled from date of record.
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TOGETHER WITH all improvements, easements,
hereditaments, and appurtenances thereto, and
all tenements, revisions, remainders,
rights-of-way and water rights in anywise
appertaining to the property herein
described.
SUBJECT TO taxes and assessments for the year
2004 and all subsequent years, and to such
rights, easements, liens, encumbrances,
covenants, rights-ai-way, reservations,
restrictions, and zoning regulations as
appear of record or based upon the premises,
and to any state of facts an accurate survey
or inspection of the premises would show.
The Grantor executes
fiduciary capacity. Any further
against the aforenamed trust.
this instrument solely in its
recourse hereunder is to be only
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TRUSTEE'S DEED-G
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DATED this -1--
day of ~ LL~ e.- , 2004.
The Alice E. Tomlinson Trust, U/T/A
dated October 5, 1990, as
amended on September 29, 1993,
and April 23, 2004
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By:
Alice E. Tomlinson, Trustee
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STATE OF OREGON
M.lL. __1_ S5.
County of 1.!J.illIJ,lllU'1 )
On this ~ day , in the year
2004, before me, 'k. , a Notary Public,
personally appeared Al ce E. Tomlinso as Trustee of The Alice E.
Tomlinson Trust, U/T/A dated October 5, 1990, as amended on
September 29, 1993, and April 23, 2004, known or identified to me
to be the person whose name is subscribed to the within
instrument, and acknowledged to me that she executed the same for
and on behalf of said trust.
(SEAL)
~r; Public for.or~
Commission expires:. /8/ ;;z.nOCQ
. OFFICiAl SEAL
EILEEN II O'REILLY
. NOTARYPUBU~EGON
COMMISSION NO. 381311
UY COMUISSION EXPIRES SEPT 11, 2001
TRUSTEE'S DEED-7
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