Development Agreement - 2014 - Gateway / Japheth - 2/27/2014 ADA COUNTY RECORDER Christopher D.Rich AMOUNT .00 14
BOISE IDAHO 04110/14 04:55 PM
DEPUTY Gail GarreEl
RECORDED—REQUEST OF III 1111111111111401111111111111111111
Recording Requested By and
Eagle City Recording 126827
When Recorded Return to:
City of Eagle
660 E. Civic Lane
P.O. Box 1520
Eagle, Idaho 83616
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 of Idaho ("Eagle"), by and through its
Mayor, and Japheth,LLC. ("Owner").
WHEREAS, the Owner is the owner of record of certain real estate consisting of approximately
23.98 acres generally located at the southwest corner of E. Sadie Drive and N. Echohawk Way, 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-07-13; and
WHEREAS, the proposed development includes properties within an area currently zoned R-3;
and
WHEREAS, the Owner desires a MU-DA (Mixed Use with a development agreement) zoning
classification to develop a 55 and over gated community 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 residential subdivision project upon the Property must be limited with the use of a
development agreement 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 Owner'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 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 a MU-DA (Mixed Use—with a development
agreement) zoning designation for the Property with the requirements set forth in this Development
Agreement; and
WHEREAS, the Owner has provided Eagle with an affidavit agreeing to submit the Property to a
Development Agreement (Exhibit C) pursuant to Eagle City Code Section 8-10-1(C)(1) and be bound by
same;and
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WHEREAS, all exhibits mentioned herein are attached hereto and are incorporated herein by
reference; and
WHEREFORE, the Owner 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
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 will adopt an ordinance amending the Eagle Zoning Ordinance to rezone the Property that is the
subject of the application to the MU-DA (Mixed Use— with a development agreement), 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 III
CONDITIONS OF DEVELOPMENT
3.1 The Concept Plan represents the 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 reasonably 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.
3.2 All development of the Property shall comply with Eagle City Code Section 8-2A (Design Review),
and be generally consistent with the Concept Plan; provided, however, it is the intent of this
Agreement to allow flexibility at the time a detailed plan and platting are submitted to Eagle so long
as the general intent of the Concept Plan and the requirements set forth in this Agreement are met.
3.3 Applicant will develop the Property subject to the conditions and limitations set forth in this
Agreement. Further, Applicant will submit such applications regarding 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
Agreement.
3.4 Prior to submittal of any final plat application for any portion of the Property, such portion of the
Property shall (i) be annexed into Eagle Sewer District's boundaries and shall comply with all
applicable Eagle Sewer District's regulations and conditions, (ii) have been issued any required
approval letters from Idaho Division of Environmental Quality, and/or Central District Health.
Further, prior to issuance of a building permit for any non-residential buildings that are not the
subject of a final plat application, Owners shall provide proof of adequate sewer service to the
proposed habitable buildings by causing a letter of approval to be provided to Eagle from Eagle
Sewer District.
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3.5 Internal pedestrian pathways shall be constructed of asphalt or concrete, and shall be a minimum of
6-feet in width.
3.6 Except as otherwise provided in this Agreement or by applicable ordinances, development of the
Property shall comply with Eagle's Comprehensive Plan and City Code as in effect at the time this
Agreement is recorded.
3.7 The Single Family Residential lots proposed along the south side of Sadie Drive and at the terminus
of Mariposa Drive shall be developed in conformance to an R-3 zoning designation (lot coverage
and setbacks), with a minimum lot square footage of 9,000-square feet and common area to the south
of the proposed single family lots shall be maintained by a Home Owners Association.
3.8 The Setbacks for the"Older Persons"gated community shall be:
Front: 0'
Rear: 0'
Interior Side: 0'
Street Side: 0'
Maximum Lot Covered: 100%
Maximum Height: 35'
3.9 The Setbacks for the Single Family Residential units along Sadie Drive and at the terminus of
Mariposa Drive shall follow Eagle City Code 8-2-4 that is in effect at the time of future development
submittal for an R-3 zone.
3.10 The conditions, covenants, and restrictions recorded against all portions of the property shall contain
at least the following provisions:
• An allocation of responsibility for maintenance, in perpetuity, of all community and privately
owned landscape and amenities,pressurized irrigation, parking lots, and private road;
• Establishment of an architectural control board for all buildings prior to building permit;
• An allocation of responsibility for the operations and maintenance of the pressurized irrigation
system for the Property.
3.11 The applicant shall place a note on the final plat that all common areas are to be owned and
maintained by the Owners Association(s) for the development. The applicant shall provide a copy of
the CC&Rs (which include a similar statement regarding the common areas)for review and approval
by the City attorney prior to the approval of the first final plat. The CC&Rs shall provide that the
association(s) shall have the duty to maintain and operate all of the common landscape areas in the
subdivision in a competent and attractive manner, including the watering, mowing, fertilizing and
caring for shrubs and trees, in accordance with Eagle City Code, in perpetuity. The conditions,
covenants, and restrictions shall be reviewed and approved by the City Attorney for both form and
content to assure compliance with the conditions required herein, prior to the issuance of a building
permit.
3.12 The applicant shall place a requirement within the development's CC&R's indicating that the
residential use of this development shall be for Housing for Older Persons, and private roads will not
be allowed unless this restriction is in place. The CC&R's shall be reviewed and approved by the
City attorney prior to the approval of the final plat application.
3.13 The pressure irrigation system has been proposed as a shared system between the City of Eagle and
WyCliffe and Gateway Developments. The use of the water by the City is intended to be used on the
property known as Guerber Park. The developers of the two subdivisions have met with the City and
are in process of formulating an agreement to establish the responsibilities of each party. The current
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plan is to combine the available irrigation water shares from the three parties into one delivery to the
pump station that is located within the common area for WyCliffe. The pumping system will be
analyzed to determine necessary upgrades to meet the combined demands for Wycliffe, Gateway,
and Guerber Park. A distribution system will be designed with adequate capacity to serve the entire
area. The timing of the upgrades and demarcation of each developer's and the City's responsibilities
will be established in the agreement. This approval is contingent upon the successful execution of an
agreement by all parties included in the discussion so long as approvals from Farmers Union Ditch
Co., Ltd. and Boise Valley Irrigation Ditch Co. can be acquired. If approvals are granted then the
developers of Wycliffe and Gateway are obligated to deliver irrigation water to Guerber Park. The
discussion contemplates the City acting as the management entity for the pressurized irrigation
system. The agreement is intended to specify that both developments will be provided necessary
irrigation water to fulfill the needs of their respective developments commensurate with the existing
irrigation water shares that they each own and contribute for use on the properties described in this
paragraph in a cooperative matter as, or substantially similar to, a lateral users association.
3.14 The owner/developer is encouraged to develop the pathway system providing reasonable access to
Guerber Park.
3.15 The owner/developer is encouraged to work towards designing the homes on the south side of Sadie
Drive such that the height of the homes are as low as possible if that includes working on grading
such that they could be lowered that would be encouraged.
ARTICLE IV
AFFIDAVIT OF PROPERTY OWNERS
An affidavit of the owner(s) of the Property 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.
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.
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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 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 bound by and liable for all commitments and other obligations arising under this
Agreement with respect to the Property or portion thereof.
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;
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Eagle: City of Eagle
660 E. Civic Lane
Eagle, Idaho 83616
Owner: Japheth, LLC
971 E. Winding Creek Dr., Ste 117
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 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 Grant of Security Interest. Owner hereby grants a lien to secure the payment of any deferred balance
of the attorney fees and the engineering fees, together with interest accrued thereon. In the event
Owner fails to pay such fees, the City may without prior notice, foreclose this Agreement as a
mortgage in accordance with the mortgage foreclosure laws of the State of Idaho. Upon request of
Owner, the City will execute and deliver a partial release of the lien created herein against any
property located within the Project upon payment by Owner of that portion of such fees which bears
the same ratio to the then remaining unpaid balance of such fees as the acreage of land to be released
bears to the total acreage of land utilized to compute the amount of the required fees. Upon request
of Owner, the City will by written agreement, subordinate the lien created hereby to any mortgage,
deed of trust or other security device required to secure the payment of any loan or advance made to
Owner for the sole purpose of financing the construction of improvements upon the subject property;
provided however that the financing institution entity shall first warrant and represent in writing that
it understands that the contemplated loan or advances will be used solely for the construction of
improvements upon the land and that it will take reasonable precautions usual and customary to the
financing and lending industry to ensure that the loan proceeds or advances will not be used for any
other purpose. Any prepayments made pursuant to this provision shall be applied in inverse
chronological order against the regularly scheduled payments set forth herein, and such payment
shall not release Owner of any obligation to make the next regularly scheduled payment.
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 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;
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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.
IN WITNESS WHEREOF,the parties have executed this Development Agreement.
DATED this o?7 day of F ,2014.
CITY OF EAGLE, a municipal corporation organized
. \existing under the l�+ of the State of Idaho
ill: ,k71". ...- 9
J
ames D. Reynolds,tMay
ATTEST:
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w1—C o /2----111. 1d....1�a! AL!
Sharon K. Bergmann,City Cl: k
44 0a11u,.••,.
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•• LI o�Q �' Douglas B prg,Managing Member•
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:* S4N.09 •tsI
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STATE OF IDAHO )
: ss.
County of Ada
On thisol7 day of A.47/4 ,2014,before the undersigned notary public in and for
the said state,personally appeared JAMES 1i. 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.
• „
410
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151.44.11611 • k&I dir 0.0 4, )
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Notary P /i f daho f i .14014,6) 1.1
Residing .4.4 ,41/ / *1 *
My Commissi■ Expires: 0/ o/41, P "tC,
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STATE OF IDAHO )
: ss.
County of Ada
—
On this ei" day of kebrUaf'1 , 2014, before the undersigned notary public in and for
the said state, personally appeared DOUGLAS B. CLEGG, known or identified to me to be the managing
member ofJapheth,LLC and the persons who executed the foregoing instrument.
IN WITNESS WHEREOF,I have hereunto set my hand and seal the day and year first above
written.
D 0#, dieakokl
A R
Notary Public for Idaho
z. oi •
E * • ::: Residing at: /J1c ZcIiiLio
= : :
: My Commission Expires: 9/q,/9
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CY OF EA�LIc
EXHIBIT A RECEIVIT
OCT 102013
FOX Land Surveys, Inc. Rut
Rooute to:.
1515 South Shoshone St. A Boise Idaho A 83705 A 208-342-7957 A 208-342-7437 FAX
PROPERTY DESCRIPTION
A PARCEL OF LAND BEING PART OF
THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 10,
TOWNSHIP 4 NORTH, RANGE 1 EAST, BOISE MERIDIAN,
CITY OF EAGLE,ADA COUNTY, IDAHO
A parcel of Land being Part of the Northwest '/4 of the Southeast 1/4 of Section
10, Township 4 North, Range 1 East, Boise Meridian, City of Eagle, Ada County,
Idaho, more particularly described as follows;
A. COMMENCING at the found Brass Cap Monument marking the Center of Section
10, from which the found Aluminum Cap Monument marking the East Quarter
Corner of Section 10 bears South 89°31'25" East, a distance of 2670.72 feet;
B. thence along the East West Center Line of Section 10, South 89°31'25" East, a
distance of 1082.60 feet to the TRUE POINT OF BEGINNING;
C. thence continuing along said Center Line South 89°31'25" East, a distance of
196.26 feet to its intersection with the Center Line of Highway 55;
D. thence along said Center Line, South 01°10'11"West, a distance of 1320.03 feet to
its intersection with the south 1/16th line of Section 10;
E. thence along said 1/16th line North 89°07'20"West,a distance of 1283.10 feet to the
Center South 1/16th Corner of Section 10;
F. thence along the north south Center Line of Section 10, North 01°21'30" East, a
distance of 716.07 feet to found 5/8 inch rebar with plastic cap stamped "FLSI PLS
7612" marking the southeasterly corner of Lot 1, Block 2, Ringo Ridge Estates
Subdivision No. 1;
G. thence along the easterly boundary of Said Lot the following two courses and
distances:
H. North 27°24'09" East, a distance of 24.37 feet to a found 5/8 inch rebar with plastic
cap stamped "FLSI PLS 7612";
I. North 04°47'04" East, a distance of 93.01 feet to a found 5/8 inch rebar with plastic
cap stamped "FLSI PLS 7612" marking its intersection with the southerly Right-of-
Way of East Sadie Drive;
J. thence North 10°52'15" West, a distance of 25.00 feet to the center line of East
Sadie Drive intersecting at a radial angle in a curve to the right;
K. thence along said center line the following seven courses and distances:
L. along a curve to the right having a length of 82.56 feet, a radius of 300.00 feet, a
central angle of 15°46'05", tangents of 41.54 feet and a long chord of which bears
North 87°00'48" East, a distance of 82.30 feet to a point of tangency;
M. South 85°06'09" East, a distance of 263.13 feet to the beginning of a curve to the
left;
N. along a curve to the left having a length of 97.08 feet, a radius of 300.00 feet, a
central angle of 18°3225", tangents of 48.97 feet and a long chord of which bears
North 85°37'38" East, a distance of 96.65 feet to a point of tangency;
O. North 76°21'26" East, a distance of 27.30 feet to an angle point;
P. North 76°20'03" East, a distance of 172.23 feet to the beginning of a curve to the
right;
Q. along a curve to the right having a length of 52.72 feet, a radius of 260.00 feet, a
central angle of 11°37'01", tangents of 26.45 feet and a long chord of which bears
North 82°08'34" East, a distance of 52.63 feet to a point of tangency;
R. North 87°57'04"East, a distance of 136.68 feet to its intersection with the center line
of North Echohawk Way at a non-radial angle in a curve to the right;
S. thence along said center line and curve to the right having a length of 124.74 feet, a
radius of 200.00 feet, a central angle of 35°44'06",tangents of 64.47 feet and a long
chord of which bears North 01°47'23" East, a distance of 122.73 feet;
T. thence South 70°20'34" East, a distance of 25.00 feet to the easterly Right-of-Way
of North Echohawk Way;
U. thence South 65°39'17" East, a distance of 117.92 feet to an angle point;
V. thence North 20°27'55" East, a distance of 355.36 feet to the TRUE POINT OF
BEGINNING.
Containing 1,254,785 square feet (28.805 acres) more or less.
Subject to existing easements and rights-of-way as any may exist, of record and not of
record.
Refer to the attached sketch.
Any modification of this description shall render it null and void.
Fox Land Surveys, Inc. ��% �
Thomas A. Judge, Project Manager, PLS 13934 - / / 1
. k4 4, 1),
END OF DESCRIPTION q 0�`Opp
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EXHIBIT C
Affidavit of DOUGLAS B.CLEGG on behalf of Japheth,LLC
AFFIDAVIT OF LEGAL INTEREST
STATE OF IDAHO )
) ss.
County of Ada )
DOUGLAS B.CLEGG,who being first duly sworn under oath,deposes and says:
1. I am Douglas B. Clegg, who is the Managing Member of Japheth, LLC, whose mailing
address is 971 E.Winding Creek Dr.,Ste 117,Eagle,ID,83616("Japheth,LLC").
2. Japheth,LLC,is the fee simple owner of the parcel of real property described on Exhibit
A,attached hereto(the"Property").
3. Japheth, LLC, authorizes the submission of the Property to certain Development
Agreement pursuant to the provisions set forth in Idaho Code Section 67-6511A and Eagle City Code
Section 8-10-1 dated the t' day of(V1flY , 2014 by and between the City of Eagle, a municipal
corporation in the State of Idaho,and Douglas B.Clegg,Japheth,LLC(the"Agreement").
DATED this 6.1.4 day of/ rC&. ,2014.
By: Japheth,L
By:
Dougla : legg, anaging Member
SUBSCRIBED AND SWORN to before me this tc, day of filarch ,2014.
7.)
as t7;-X - CI
, •• .Nq
.• �O ' Notary blic for Idaho
Residing at Ea /C ,Idaho
O T A R y'• = My Commission expire 9/911
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