Development Agreement - 2013 - Amended Restated DA Eagle Island Crossing (SUPERSEDED) - 7/3/2013 ADA COUNTY RECORDER Christopher D.Rich AMOUNT .00 14
BOISE IDAHO 08/06/13 08:51 AM
DEPUTY Bonnie OF III 1111111I1I1IIIIIIIIIIIIIIIIIIII
Recording Requested By and RECORDED—REQUEST OF
When Recorded Return to: Eagle City 1130$ 76
Planning and Zoning Administrator
City of Eagle
P.O. Box 1520
Eagle,Idaho 83616
For Recording Purposes Do
Not Write Above This Line
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This Amended and Restated 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 of Idaho ("Eagle") and EAGLE ISLAND CROSSING, LLC, an Idaho limited
liability company("Owner").
WHEREAS, Owner is the owner of record of certain real estate in Eagle, Idaho (the"Property")
as specifically described in the attached legal description (Exhibit "A") a portion of which has been
developed and platted as Arts West Subdivision; and
WHEREAS, Owner and its predecessors in interest have previously entered into a series of
development agreements with Eagle, consisting of the following rezoning a portion of the Property
pursuant to Rezone Application No. RZ-8-03 recorded in the real property records of Ada County, Idaho,
on January 20, 2005, as instrument number 105007541 ("2005 Development Agreement"), amended on
December 8, 2008, as instrument number 108130290("2008 Amended Development Agreement"), and
amended on January 26, 2012, ("2012 Amended Development Agreement"); and another rezoning a
portion of the Property pursuant to Rezone Application No. RZ-04-12 recorded in the real property
records of Ada County, Idaho on March 8,2013,as instrument number 113024774 ("2013 Development
Agreement") relating to that real property described as Lot 3, Block 2, Amended Plat of Flint Estates;
these agreements collectively being referred to hereafter as the"Prior Agreements";and
WHEREAS, Owner has agreed to the use restrictions and other limitations set forth herein upon
the use and development of the Property and has consented to the MU Mixed Use District("MU-DA")
zoning designation for the Property with the requirements set forth in the Prior Agreements; and
WHEREAS, Owner has to date developed the Property consistent with the provisions of the Prior
Agreements; and
WHEREAS, Owner desires to develop the Property for office, commercial, residential and open
space purposes, all as shown on the revised Concept Plan (Exhibit"B") encompassing the entirety of the
Property;and
WHEREAS, the City Council of Eagle has determined that the scope of any office, commercial
and residential project upon the Property should be limited to prevent undue damage to, and to otherwise
be in harmony with,the existing community; and
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WHEREAS, the intent of this Development Agreement is to protect the Owner's right to use,
enjoy and develop the Property while at the same time limit any adverse impacts of the development upon
neighboring properties and the existing community and ensure the Property is developed in a manner
consistent with Eagle's Comprehensive Plan and City Code;and
WHEREAS,the City Council has determined that, in accordance with Eagle City Code Section 8-
2-1, the Prior Agreements, as amended and restated by this Development Agreement, are to be used in
lieu of the PUD and conditional use process; and
WHEREAS, Owner has previously provided Eagle with affidavits agreeing to submit the
Property to a development agreement pursuant to Eagle City Code Section 8-10-1(C)(1);and
WHEREFORE, Owner and the Eagle desire to enter into this Development Agreement and for
and in consideration of the mutual covenants contained herein,it is agreed as follows:
ARTICLE I
LEGAL AUTHORITY
This Development Agreement is made pursuant to and in accordance with the provisions of Idaho Code
Section 67-6511A and Eagle City Code,Title 8,Chapter 10.
ARTICLE II
ZONING ORDINANCE AMENDMENT
Eagle has adopted ordinances amending the Eagle Zoning Ordinance to rezone the Property to MU-DA,
subject to the provisions of the Prior Agreements, and as specifically set forth previously in Ordinance
No. 492 which became effective after its passage, approval, and publication on May 23, 2005 and
Ordinance No. 693 which became effective after its passage, approval, and publication on April 8,2013.
ARTICLE III
CONDITIONS ON DEVELOPMENT
3.1 Owner will develop the Property subject to the conditions and limitations set forth in this
Development Agreement. Further, Owner, as applicable will submit such applications
regarding floodplain development permit review, design review, preliminary and final plat
reviews, and/or any conditional use permits, if applicable, and any other applicable
applications as may be required by the Eagle City Code, which shall comply with the Eagle
City Code, as it exists at the time such applications are made except as otherwise provided
within this Development Agreement.
3.2 The Concept Plan represents Owner's current concept for completion of the project. As the
Concept Plan evolves, Eagle understands and agrees that certain changes in that concept may
occur or be required. If Eagle determines that any such changes require additional public
comment due to potential impacts on surrounding property or the community, a public
hearing shall be held on any proposed changes in the Concept Plan and notice shall be
provided as may be required by Eagle.
3.3 Owner shall submit a Design Review application for the site(as required by Eagle City Code)
and shall comply with all conditions required by Eagle as part of the Design Review prior to
receiving a Certificate of Occupancy for any structure constructed on the site.
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3.4 The Owner shall comply with all requirements of the Ada County Highway District
("ACHD").
3.5 The development shall include a cross-access agreement between all lots included within the
Property. Access to State Highway 44 shall be taken via the previously constructed
signalized access at Fisher Park Way as previously approved ACHD and the Idaho
Department of Transportation. All private streets shall be approved by the City of Eagle Fire
Department.
3.6 The following are conditions imposed on the proposed residential cottages and assisted living
facility (the "Residential Area") identified in the Concept Plan as the proposed and existing
buildings and adjoining improvements identified as Buildings D, G, RI, R2, R3, R4, R5, R6,
R7, R8, R9, R10, R11, R12, R13. In addition to assisted living facility(nursing/convalescent
home) and related facilities permitted within the Residential Area, up to 50 attached and
detached residential cottages shall be permitted within the Residential Area. Development of
the Residential Area will be permitted through the Design Review process. Future
conditional use permits for the assisted living facility (nursing/convalescent home) and
residential cottages authorized hereunder will not be required.
3.7 In accordance with Eagle City Code Section 8-2-1, this Development Agreement is
considered in lieu of the PUD (except as conditioned below). Except for the limitations and
allowances expressly set forth herein below in Section 3.17, and in the other terms of this
Development Agreement, the uses which are shown as permitted (P) or conditional (C) uses
under the Mixed Use Zoning designation with Eagle City Code Section 8-2-3 "Official
Schedule of District Regulations"shall be considered permitted uses on the Residential Area.
3.8 The assisted living facility (nursing/convalescent home) shall be architecturally designed to
be compatible to the commercial buildings located within Arts West Subdivision.
3.9 The attached residential cottages shall be architecturally designed to be similar in appearance
to the existing detached residential cottages previously constructed on Lot 9, Block 1, Arts
West Subdivision and shall be developed in phases as determined appropriate by Owner.
3.10 The foundation of any residential cottage shall be spaced no less than 10-feet from the
foundation of any adjacent attached or detached residential cottage and no less than 15-feet
from the foundation of the assisted living facility.
3.11 The Owner shall be required to provide sidewalks and vertical curbing (as shown on the
Concept Plan) throughout the Residential Area. Prior to the issuance of a Certificate of
Occupancy for either the assisted living facility or any of the proposed residential cottages,
the sidewalks and vertical curbing shall be installed in the phase, in accordance with Section
3.9, in which the building seeking the Certificate of Occupancy is located.
3.12 The Owner shall be required to remove the existing structures located on the Residential Area
prior to the commencement of construction in the Residential Area, provided, however that
the existing residential cottages designated on the Concept Plan as E.1 and E.2 shall remain.
3.13 The Owner shall enter into a formalized agreement with the owners of the adjacent property
to the west, located at 3855 West Flint Drive, approving the construction of a six-foot (6')
high fence to provide a buffer on the common property line located on the western boundary
of the Property.
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3.14 Eagle shall notify the adjacent neighbor to the west, located at 3855 West Flint Drive,prior to
the Design Review Board meeting date for the Design Review Board's review of the site plan
and proposed building architecture.
3.15 The following are conditions imposed on the proposed commercial development area
("Commercial Area") identified in the Concept Plan as the proposed and existing buildings
and adjoining improvements identified as Buildings A, B, Cl, C2, F, I, J, K, L, M, N, 0, P,
Q, and R. All buildings require the approval of the Design Review Board. The design of the
buildings shall incorporate residential elements to ensure compatibility with surrounding
uses. All building shall be designed in accordance with the Eagle Architectural and Site
Design book as set forth in Eagle City Code Section 8-2A.
3.16 The development shall include a minimum forty-foot (40') wide buffer unless a twenty foot
(20') wide landscape buffer is approved (pursuant to Eagle City Code 8-3-3 D) for any
commercial uses located adjacent to any property with a residential zoning designation.
3.17 In accordance with Eagle City Code Section 8-2-1,this development agreement is considered
in lieu of the PUD (except as conditioned below). Except for the limitations and allowances
expressly set forth above and the other terms of this Development Agreement,the uses which
are shown as permitted (P) or conditioned(C) uses under the Mixed Use Zoning designation
with Eagle City Code Section 8-2-3 "Official Schedule of District Regulations" shall be
considered permitted uses in the Commercial Area, except that the following uses shall be
prohibited:
Mobile home(single unit primary residence)
Mobile home(single unit temporary living quarters)
Mobile home park
Animal shows or sales
Automotive washing facility
Bar
Cabinet shop
Cemetery
Circuses and carnivals
Christmas tree sales
Commercial entertainment facilities(indoor)-Note,see Section 3.20
below
Commercial entertainment facilities(outdoor)-Note, see Section 3.20
below
Drive-in theater
Equipment rental and sales yard
Hardware store
Hotel
Horticulture(General)
Industry
Kennel
Live entertainment events-Note, see Section 3.20 below
Mobile office
Mortuary
Motel
Parking lot, parking garage commercial
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Personal wireless facilities(height-over 35 feet)
Research Activities
Riding academies'/stables
Roadside Stand(Temporary Structure)
Sign shop, including painting
Small engine repair(mower,chainsaw,etc)
Storage(enclosed building)
Storage(fenced area)
Street fair
Trade fair
Upholstery shop
Woodworking shop
3.18 A restaurant with drive-thru(limited to one of the following: coffee,yogurt/ice cream, or deli
sandwich shop), which use is prohibited use within said section of Eagle City Code, shall be
permitted with this Development Agreement on Lot 3, Block 2, Arts West Subdivision also
identified as Building L.
3.19 Any building with a proposed drive-thru shall be designed in such a way as to compliment
the overall character of the development, and design styles exceeding the standard utilitarian
look of a building with a drive-thru shall be required. The Owner shall also provide a
minimum forty-eight inch (48') high berm, decorative block wall, cultured stone, decorative
rock or similarly designed concrete wall, landscaping, or combination thereof within the
buffer area adjacent to the drive thru lane to reduce the impact of the vehicles utilizing the
drive thru lane.
3.20 The following uses may be allowed as permitted uses on Lots 10 and 11, Block 1, and Lot 2,
Block 2,all in Arts West Subdivision:
Commercial entertainment facilities(indoors)
Commercial entertainment facilities(outdoors)
Live entertainment events
3.21 Lots 1 and 2, Block 1,and Lot 2,Block 2,_of the Amended Plat of Flint Estates Subdivision
shall be permitted for development of a residential subdivision not to exceed three(3)
dwelling units per acre.The residential subdivision shall be submitted as a Planned Unit
Development(PUD).
3.22 The setbacks for all structures located on Lot 3, Block 2,of the Amended Plat of Flint Estates
Subdivision shall be measured from the perimeter of the property with West Flint Drive
(north property line)being considered the street that the front setback will be measured from.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of the Owner is attached hereto and incorporated by reference herein agrees to subject the
Property to this Development Agreement (Exhibit C) and be bound thereby, and comply with and be
bound by the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code Section 8-10-1
shall be provided and is incorporated herein by reference.
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ARTICLE V
DEFAULT
5.1 In the event the Owner 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.
5.2 If required to proceed in a court of law 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.
5.3 If the terms of this Development Agreement expires prior to completion of the Conditions of
Development or without an amendment to this Agreement for its extension being in process
in accordance with the notice and hearing provisions of Idaho Code Section 67-6509, as
required by Eagle City Code Section 8-10-1,use of the property shall be limited to those uses
allowed within an A-R (Agricultural-Residential) zoning designation until Eagle enacts and
records an ordinance changing the property to the A-R (Agricultural-Residential) zoning
designation.
ARTICLE VI
UNENFORCEABLE PROVISIONS
Subject to terms of Section 5.3 above, if any term, provision, commitment, or restriction of this
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 nevertheless remain in full force and effect and that
portion determined to be invalid or unenforceable shall be re-negotiated in good faith between Owner(s)
(or other appropriate party)and Eagle.
ARTICLE VII
ASSIGNMENT AND TRANSFER
After its execution,the Development Agreement shall be recorded in the office of the County Recorder at
the expense of the Owner. 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 Owner 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 bound by and liable for all commitments and other obligations arising under this
Agreement with respect to the Property or portion thereof.
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ARTICLE VIII
GENERAL MATTERS
8.1 Amendments. Any alteration or change to this Development Agreement shall be made only after
complying with the notice and hearing provisions of Idaho Code Section 67-6509,as required by
Eagle City Code Section 8-10-1.
8.2 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.
8.3 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.
8.4 Legal Representation. Both the Owner 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.
8.5 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 E. Civic Lane
Eagle, Idaho 83616
Owner: Eagle Island Crossing, LLC
Attn: J.Thomas Ahlquist
850 West Main Street
Boise, ID 83702
Or such other address and to such other persons as the parties may hereafter designate. Any such
notice shall be deemed given upon receipt if by 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.
8.6 Financial Assurance. In addition to the other remedies afforded Eagle herein, Owner agrees to
provide adequate financial assurance to Eagle,to secure the payment of any deferred balance of the
attorney fees and the engineering fees, together with interest accrued thereon. Eagle shall provide to
the Owner an estimate for the anticipated attorney fees and engineering fees associated with this
Agreement. The Owner shall provide a cash deposit, letter of credit or a bond in the amount of the
estimated fees associated with the work undertaken pursuant to the terms of this
Agreement. Thereafter, Eagle shall bill Owner for such fees, adjusting the estimates as
appropriate. The Owner shall make payments for such fees as incurred by Eagle and as invoiced to
the Owner or, if Owner has made a cash deposit with Eagle,Eagle may draw on the deposit to pay its
invoice. If the financial assurance deposited by Owner is in the form of a letter of credit, and if the
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Owner fails to make payment for such fees when actually incurred by Eagle and invoiced, then
following thirty (30) days of written notice of such failure from Eagle, Eagle may draw upon the
financial assurance provided by the Owner. Thereafter, if the then current estimated fees still to be
paid exceeds the amount of the then current balance of the financial assurance (whether it be in the
form of a cash deposit or a letter of credit),the Owner shall replenish the financial assurance and shall
become current as to all outstanding fees owed. Upon payment in full of all attorney fees and
engineering fees, Eagle shall release to the Owner the unused portion of the cash deposit or the letter
of credit, as applicable. . Eagle's draw upon the financial assurance under this Section shall not
preclude it from exercising any of the other rights and remedies afforded it in Article V or in Section
8.7.
8.7 Default.In the event Owner fails to comply with the terms and conditions hereof in any material
respect,the City may,without further notice to Owner,exercise any or all of the following
remedies.
A. Withhold the issuance of any building permit or certificate of occupancy of any structure
located within the Project;
B. Withhold the connection of water, sewer or electric service to any property located within the
Project;
C. Refuse to accept public ownership and maintenance of public improvements within the
Project and record a notice of such action with the Ada County Recorder's Office;
D. Issue a stop work order for any building under construction within the Project;
E. Withhold reimbursement of Project surety/financial guarantee of performance collected
pursuant to Section 8.6 of this Development Agreement and Section 9-4-2-2 of the City
Code;
F. Bring an action for damages, injunctive relief, specific performance or any other remedy
available
at law or in equity;
All of the above remedies are cumulative and to the extent not wholly inconsistent with each
other,may be enforced simultaneously or separately,at the sole discretion of the City.
8.8 Effective Date. This Development Agreement shall be effective upon the signing and execution
of this agreement by both parties.
8.9 Authority to Enter Into Agreement: By the execution and delivery of this Agreement by the
parties, and the performance of their covenants and obligations therein, the parties acknowledge
such action has been duly authorized by all necessary corporate (or LLC)action, and necessary
corporate (or LLC) resolution(s) have been executed for the undersigned representatives to sign
this Agreement and so bind their respective parties.
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IN WITNESS WHEREOF,the parties have executed this Development Agreement.
DATED this day of au,,,7 ,2013.
,,`"'tA" CITY OF EAGLE,a municipal corporation
,.`'`** v‘•S; ' ?.,7;`'• organized and existing under the laws of the
State of Idaho
•
•� era:"� •,.� L "
+''?,`• *•"��? ? J.,-•s D. Reynolds,May.r I
rrr O f: I
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ATTEST:
By: . / g ,.,�..
Sharon K. Bergmann, City Clerk
EAGLE ISLAND CROSSING, LLC, an Idaho
limited liability company
By: Ahlquist Development, LLC, an Idaho limited
liability company,
Its: Manager
J.Thomas Alquist
Its: Member
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STATE OF IDAHO )
: ss.
County of Ada )
On thisday of ,2013,before the undersigned notary public in and for
the said state,personally appeared JAMES D. REYNOLDS,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.
��*eesrrwr.�.�
�. «�««mW r Notary Public for Idaho //-
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Residing at: �/\ L
r. '>, My Commission Expires: Z.-(42 —
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STATE OF IDAHO )
: ss.
County of Ada )
On this 2.. day of \)‘A,1, ,2013, before the undersigned notary public in and for
the said state,personally appeared J.THOMAS AHLQUIST,known or identified to me to be a member
of Ahlquist Development,LLC,the manager of Eagle Island Crossing, LLC,the owners of the property
referenced herein and the personswho executed the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above
written.
,,�11111111//� ��,t�A/I /� (,(� /A
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-NAP Residing at: 1W4 a ta,0 t
My Commission Expires: 1,5 It10t1
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INDEX OF EXHIBITS
A - Legal Description
B - Concept Plan
C - Affidavit of Owner
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EXHIBIT A
Lots 3, Block 2 of Amended Plat of Flint Estates,according to the official plat thereof,filed in Book 45 of
Plats at Page(s)3713 and 3714,official records of Ada County, Idaho;and
Lots 1 through 11,Block 1 and Lots 1 through 6,Block 2,Arts West Subdivision,according to the
official plat thereof recorded in the official records of Ada County, Idaho,on January 29,2009,in Book
102 of Plats at 13506 through 13510,as Instrument No. 109009804;and
Lots 7 through 10,Block 2,Arts West Subdivision No.2,being a resubdivision of Lot 6, Block 2 of Arts
West Subdivision,according to the official plat thereof recorded in the official records of Ada County,
Idaho,on July 9,2009,in Book 102 of Plats at 13626 through 13628,as Instrument No. 109080722.
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Affidavit of J.THOMAS AHLQUIST on behalf of Eagle Island Crossing,LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
) ss.
County of Ada )
J. THOMAS AHLQUIST,who being first duly sworn under oath,deposes and says:
1. I am J. Thomas Ahlquist, who is the a Member of Ahlquist Decelopment, LLC, a
Manager of Eagle Island Crossing, LLC whose mailing address is 850 West Main Street, Boise, ID,
83702("Eagle Island Crossing,LLC").
2. Eagle Island Crossing, LLC, is the fee simple owner of the parcel of real property
described on Exhibit 1,attached hereto(the"Property").
3. Eagle Island Crossing, LLC, authorizes the submission of the Property to certain
Development Agreement pursuant to the provisions set forth in Idaho Code Section 67-6511 A and Eagle
City Code Section 8-10-1 dated the day of , 2013 by and between the City of Eagle, a
municipal corporation in the State of Idaho, and J. Thomas Ahlquist, Ahlquist, LLC, a Manager of Eagle
Island Crossing, LLC,(the"Agreement").
DATED this, '`-day of dU t 2013.
By: EAGLE ISLAND CROSSING,LLC,an
Idaho limited liability company
By:Ahlquist Development,LLC,an
Idaho li 'ted liability company,
Its: Man.=er
J.Thomas Ahlquist
Its: Member
SUBSCRIBED AND SWORN to before me this 2- day of J L( 111 ,2013.
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Notai Publ. fo da •
ta;!y Residing at a V l Idaho
My Commission expires )101 1
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