RES and Real Estate Purchase and Sale Agreement

Transcription

1 TO: FROM: RE: Mayor David H. Bieter Members of the City Council Doug Holloway Director RES and Real Estate Purchase and Sale Agreement DATE: April 4, 2013 ACTION REQUIRED: Approval of RES and Real Estate Purchase and Sale Agreement RECOMMENDATION: That the City Council adopt and the Mayor approve RES and the Real Estate Purchase and Sale Agreement. FISCAL IMPACT/BUDGET IMPLICATIONS: $1,900, together with due diligence (survey) and closing costs in the approximate amount of $40, BACKGROUND: The Department of Parks and Recreation staff recommends that the City Council approve the purchase of approximately 260 acres of open space located in the Boise Foothills. The property is located north of Hill Road and runs from Bogus Basin Road west to approximately 33 rd Street. This property is generally known as the Kastera property. Following the failure of the development of the property, the Foothills Conservation Advisory Commission placed the Kastera at or near the top of potential acquisitions it recommended to the Mayor and City Council. The owners of the property consist of an Idaho limited liability company, Boise Foothills, LLC, which contains approximately 40 members, as well as eleven other individuals, corporations and family trusts. Historically, the area has been a mecca for mountain bikers, walkers and runners. If approved by the Mayor and City Council, the purchase will provide near-in access and connectivity to existing Foothills land. If approved, staff will undertake additional due diligence beyond that which it already has conducted. Even so, closing is scheduled for May 15, 2013, and staff fully expects that the purchase of the property will take place on that date. ATTACHMENTS: RES and Real Estate Purchase and Sale Agreement.

2 RESOLUTION NO. BY THE COUNCIL: CLEGG, EBERLE, JORDAN, MCLEAN, QUINTANA AND THOMSON A RESOLUTION APPROVING A REAL ESTATE PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF BOISE CITY, BY AND THROUGH THE DEPARTMENT OF PARKS AND RECREATION AND BOISE FOOTHILLS, LLC; BENT S FORT INN, INC.; THE GARCIA FAMILY TRUST; PEREGO PROPERTIES, LLC; BARBARA HOKE; ROSE LIN; ARLEDGE REALESTATE CORPORATION OF COLORADO, INC.; RUTH ANN NIELSEN; RYAN A. CREER; RYAN A. CREER AND RUTH E. CREER FAMILY TRUST; CHERYL DENISE MERRICK; RONALD S. LANSING; AND THE BARBARA W. FRANZEN TRUST; FOR THE PURCHASE OF APPROXIMATELY TWO HUNDRED FIFTY-NINE AND FIFTY-SEVEN HUNDREDTHS (259.57±) ACRES OF REAL PROPERTY LOCATED IN BOISE, ADA COUNTY, IDAHO; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST SAID REAL ESTATE PURCHASE AND SALE AGREEMENT ON BEHALF OF BOISE CITY; AUTHORIZING THE MAYOR TO EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTUATE THE TERMS OF THE REAL ESTATE PURCHASE AND SALE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Real Estate Purchase and Sale Agreement by and between the City of Boise City and Boise Foothills LLC; Bent s Fort Inn, Inc.; The Garcia Family Trust; Perego Properties, LLC; Barbara Hoke; Rose Lin; Arledge Real Estate Corporation of Colorado, Inc.; Ruth Ann Nielsen; Ryan A. Creer; the Ryan A. Creer and Ruth E. Creer Family Trust; Cheryl Denise Merrick; Ronald S. Lansing; and the Barbara W. Franzen Trust; a copy of which is attached hereto and incorporated herein by reference as Exhibit A, be, and the same is hereby, approved as to both form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest to said Agreement for and on behalf of the City of Boise City. Section 3. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest all necessary documents to effectuate the terms of the Agreement. Section 4. That this Resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise City, Idaho this day of April, RES

3 APPROVED by the Mayor of the City of Boise City, this day of April, APPROVED: ATTEST: David H. Bieter Mayor Debbie Broughton Ex-Officio City Clerk

4 REAL ESTATE PURCHASE AND SALE AGREEMENT THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ( Agreement ) is made and entered into effective on the mutual acceptance of this Agreement ( Effective Date ) by and between Boise Foothills LLC (formerly known as DBSI Boise Foothills LLC), which originally took title as DBSI Hill Road 270 LLC, an Idaho limited liability company; Bent s Fort Inn, Inc., a Colorado corporation; The Garcia Family Trust, dated June 28, 1989; Perego Properties, LLC, a California limited liability company; Barbara Hoke, an unmarried woman; Rose Lin, an unmarried woman; Arledge Real Estate Corporation of Colorado, Inc., a Colorado corporation; Ruth Ann Nielsen, an unmarried woman; Ryan A. Creer, a married man and Ryan A. Creer and Ruth E. Creer as Trustee of the Ryan A. Creer and Ruth E. Creer Family Trust; Cheryl Denise Merrick, an unmarried woman; Ronald S. Lansing, a married man, and the Barbara W. Franzen Trust, dated April 18, 1982, and amended February 11, 2003 (collectively Sellers ) and the City of Boise City, an Idaho municipal corporation, 150 South Capitol Boulevard, Boise, Ada County, Idaho ( Buyer ). Boise Foothills LLC, Bent s Fort Inn, Inc., The Garcia Family Trust, Perego Properties, LLC, Barbara Hoke, Rose Lin, Arledge Real Estate Corporation of Colorado, Inc., Ruth Ann Nielsen, Ryan A. Creer, Ryan A. Creer and Ruth E. Creer, as Trustees of the Ryan A. Creer and Ruth E. Creer Family Trust, Cheryl Denise Merrick, Ronald S. Lansing, and the Barbara W. Franzen Trust and their permitted successors and/or assigns hold title to the Real Property hereinafter described as Tenants in Common and shall be referred to herein collectively as the Sellers, and City of Boise City shall be referred to herein as Buyer and Buyer and Sellers may be referred to individually as the Party or collectively as the Parties as may be appropriate under the circumstances. BACKGROUND A. The addresses and telephone numbers of the parties to this Agreement are as follows. Telephone numbers are included for information only. SELLERS REPRESENTATIVE: BUYER: Jonathan T. Kaji City of Boise City President David H. Bieter, Mayor Kaji & Associates 150 North Capitol Boulevard S. Western Avenue #15 Boise, Idaho Gardena, California Telephone: (208) Telephone: (310) ext. 222 A. Sellers own ± acres of real property located generally north of Hill Road between Bogus Basin Road and 33 rd Street in Boise, Ada County, Idaho, and more specifically described in Exhibit A attached hereto and incorporated herein by reference (the Real Property ). The Real Property is commonly addressed as 2700 Hill Road, Boise, Ada County, Idaho. Sellers also own three parcels constituting /- acres of real property adjacent to the Real Property, sometimes identified as Assessor s Parcels S , S and REAL ESTATE PURCHASE AND SALE AGREEMENT - 1

5 S , which parcels are expressly and intentionally excluded from and are not subject to this Agreement. B. Buyer desires to purchase the Real Property and Sellers desire to sell the Real Property according to the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by reference, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. AGREEMENT OF SALE AND PURCHASE. Sellers agree to sell, transfer and convey, and Buyer agrees to purchase and accept title to the Real Property, together with all appurtenances thereunto and all improvements thereon, including fences, gates and irrigation equipment, if any. This purchase and sale shall include all appurtenances to the Real Property, including all easement rights, mineral rights, water and water rights appurtenant to or used on the Real Property including, but not limited to, any right Sellers may have to receive natural flow and/or stored water delivered through any spring, ditch, canal, drain or water company s facilities, or under entitlements held by a third party for use on the Real Property, and all shares, certificates, and other documents evidencing such water rights are included in this sale to the extent they are appurtenant to the Real Property. 2. PURCHASE PRICE AND PAYMENT TERMS. The purchase price (the Purchase Price ) for the Property shall be One Million Nine Hundred Thousand Dollars ($1,900,000.00) in immediately available funds. 3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid as follows: 3.1 Deposit. Within five (5) days of the execution of this Agreement by Buyer and Sellers (the Effective Date), Buyer shall deposit with First American Title and Escrow Company, 9465 W. Emerald, Suite 260, Boise, Idaho ( Escrow Agent ) Twenty-Five Thousand Dollars ($25,000.00) (the Deposit ) as earnest money to be held for the benefit of Buyer and Sellers pursuant to the terms of this Agreement. All earnest money shall be applied to the Purchase Price and shall not bear interest. 3.2 Payment Due at Closing. At Closing, a cash payment of One Million Eight Hundred Seventy-Five Thousand Dollars ($1,875,000.00) shall be paid in immediately available funds delivered to the Escrow Agent. 4. Exclusivity. From and after the Sellers execution of this Agreement, until the earlier to occur of, (i) the closing, or (ii) the termination of this Agreement, Sellers shall, and shall cause its representatives, agents, members, financial advisors, attorneys and any other person or entity acting by, through or on behalf of Sellers to immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any other persons or entities with respect to any proposed, potential or contemplated sale of the Real REAL ESTATE PURCHASE AND SALE AGREEMENT - 2

6 Property. From and after the Sellers execution of this Agreement, until the earlier to occur of (i) the closing, or (ii) the termination of this Agreement, without the prior written consent of Buyer, Sellers will not authorize or direct any of its representatives, agents, members, financial advisors, attorneys and any other person or entity acting by, through or on behalf of Sellers to, directly or indirectly, (A) solicit, initiate or encourage any inquiries or proposals that constitute or reasonably could be expected to lead to an offer to purchase the Real Property, or, (B) engage in negotiations or discussions with any third party concerning, or provide any non-public information to any person or entity relating to, an offer to purchase the Real Property, or (C) enter into any letter of intent agreement in principle or any Purchase & Sale Agreement or other similar agreement with respect to the purchase of the Real Property. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the foregoing sentence by any representative, agent, member, financial advisor, attorney and any other person or entity acting by, through or on behalf of Sellers shall be deemed a breach of this Section 4 by the Sellers. 5. REPRESENTATIONS AND WARRANTIES; PROPERTY SOLD AS-IS Sellers Representations and Warranties. Sellers represent and warrant to Buyer that the statements in this Section 5.1 are correct as of the Sellers execution of this Agreement and will be materially correct as of closing Authority. Sellers, and the person(s) signing on behalf of Sellers, have the power and authority to execute this Agreement. Sellers have, or prior to the closing shall have, power and authority to perform their obligations hereunder. Each party acknowledges that this Agreement, even though agreed upon by the Buyer's representatives, is not binding upon the Buyer until such time as the Boise City Council approves this Agreement and authorizes the Mayor to execute and the City Clerk to attest to this Agreement on behalf of the Buyer Parties-in-Possession. Sellers warrant on or before the Effective Date the Real Property will not be subject to any leases, tenancies or rights of persons in possession, except for those peripheral encroachments, of which there are several and which are noted in various records of survey Non-Foreign Status. Sellers are not a foreign persons for purposes of IRC Prior to closing, Sellers shall execute and deliver to Escrow Agent an affidavit(s) in order to meet the Foreign Investment in Real Property Tax Act requirements of IRC No Hazardous Waste. Except as disclosed to Buyer, Sellers have not received written notice of any kind from any agency suggesting that the Real Property is or may be targeted for a Superfund cleanup. Sellers have no knowledge that the Real Property or any portion thereof, whether in or under the Real Property, have been used for the storage or disposal of, or subject to any chemicals, petroleum, or oil products, or hazardous or dangerous wastes or substances, except chemicals, products, wastes, or substances that would customarily have been used on the Real Property for the maintenance, occupancy and operation of the Real Property as agricultural grazing land. REAL ESTATE PURCHASE AND SALE AGREEMENT - 3

7 Sellers are not personally familiar with the Real Property as they live in remote locations and acquired their respective interests as Tenants in Common investors; Sellers have conducted no investigations or inspections of the Real Property No Liens. To Sellers knowledge, all persons and corporations supplying labor, materials, and equipment to the Real Property have been paid, and there are no claims of liens relating thereto No Assessments. To Sellers knowledge, there are no currently due and payable assessments for public improvements against the Real Property, and Sellers are not aware of any local improvement district or other taxing authority having jurisdiction over the Real Property in the process of formation Title. To Sellers knowledge, Sellers have good and marketable title to the Real Property No Violation of Law. Sellers have no knowledge that the Real Property violates any applicable statute, ordinance or regulation pertaining to the current use of the Real Property No Litigation or Adverse Events. To Sellers knowledge, there are no pending or threatened investigations, actions, suits, proceedings, or claims against or affecting the Real Property, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, agency, or instrumentality Condemnation. To Sellers knowledge, there is no existing, proposed, or threatened condemnation or similar proceeding affecting the Real Property. 5.2 Buyer s Representations and Warranties. Buyer represents and warrants to Sellers that the statements contained in this Section 5.2 are correct as of the Effective Date or Sellers execution of this Agreement as the case may be and will be materially correct as of closing Approval by Appropriate Officials. Subject to the conditions to closing set forth in Section 7.3, this Agreement shall be binding on the Buyer only upon approval by the Buyer s governing body and execution by its Mayor and City Clerk. Buyer shall obtain the approval of this Agreement by the Buyer s governing body, including authorization of the Mayor to execute the Agreement and the City Clerk to attest to this Agreement, and execution of this Agreement by the Mayor and attestation by the City Clerk on or before April 24, In the event such approval and execution are not obtained on or before April 24, 2013, then Sellers shall have a right to withdraw the offer presented (as the offer is described in Section 21 of this Agreement) by written notice to Buyer, and upon such withdrawal, Sellers shall have no further obligation hereunder. REAL ESTATE PURCHASE AND SALE AGREEMENT - 4

8 Acceptance of Property. Buyer acknowledges and agrees that, except for the specific representations and warranties expressly set forth in Section 4.1 above, the closing conditions set forth in Section 7.3 and the Warranty Deed(s) Sellers will issue pursuant to Section 5.3 below, Buyer is purchasing the Property subject to the provisions set forth in Section 5.3 below. 5.3 Property Sold As-Is. Buyer acknowledges that it has been afforded the right and opportunity to enter upon the Real Property and make such tests and inspections of the Real Property as Buyer desires, including, but not be limited to, those related to soils, environmental issues, pests (including wood-destroying pests), molds and allergens (including toxic and illness-causing molds, fungi, spores, allergens, pollens and other botanical substances) and engineering matters. Buyer acknowledges that some conditions that may be material to Buyer may not be discoverable without inspections and/or testing from qualified professionals. Buyer further acknowledges that Sellers and their agents, attorneys, employees make no representations or warranties (express or implied), except as set forth in Section 5.1 above, with respect to, and shall have no liability to Buyer for (a) the condition of the Real Property or any buildings, structures or improvements included therein, or the suitability, habitability, merchantability or fitness of the Real Property for Buyer s intended uses, or for any use whatsoever; (b) the Real Property s compliance with any applicable building, environmental, safety, zoning or fire laws or regulations or with respect to the existence of or compliance with any required permits, if any, of any governmental agencies; and (c) any other matter relating to the condition of the Real Property. Buyer warrants to Sellers that Buyer will make all of the investigations and inspections Buyer deems necessary in connection with its purchase of the Real Property and Buyer will be deemed to have approved without reservation all aspects of this transaction, including but not limited to the physical condition of the Real Property and the use, title and the financial aspects of the operation of the Real Property. Buyer agrees that Buyer is acquiring the Real Property in a where-is as-is condition, with all faults with respect to any and all facts, circumstances, conditions and defects, whether known or unknown, relating to the Real Property. Buyer expressly understands and acknowledges that it is possible that problems, conditions or claims may exist with respect to the Real Property unknown to Buyer and that Buyer explicitly took such into account in determining the purchase price for the Real Property, and that a portion of such consideration, having been bargained for between the parties with the knowledge of the possibility of such unknown problems, conditions or claims. Buyer agrees to reaffirm its acknowledgment of the contents of this Section 5.3 at closing and to confirm that it has relied upon no representations of Sellers or their agents, attorneys or employees in connection with its acquisition of the Real Property. 6. TITLE AND TITLE INSURANCE. 6.1 Title Commitment. Within five (5) calendar days of the Sellers execution of this Agreement, Sellers shall procure a title commitment for the Real Property issued by the Escrow Agent. Within ten (10) calendar days following receipt thereof, Buyer shall either approve in writing the exceptions contained in said title report or specify in writing any exceptions to which Buyer reasonably objects. If Buyer objects to any exceptions, Sellers shall, within ten (10) calendar days of receipt of Buyer s objections, deliver to Buyer written notice REAL ESTATE PURCHASE AND SALE AGREEMENT - 5

9 that either (i) Sellers will, at Sellers expense, attempt to remove the exception(s) to which Buyer has objected before the Closing, or (ii) Sellers are unwilling or unable to eliminate said exception(s). Sellers failure to so notify Buyer within such ten (10) day period shall be deemed to be delivery of written notice that Sellers are unwilling or unable to remove said exceptions. In the event Sellers either gives Buyer written notice that it cannot cure or remove the objections to which Buyer objected, or fails to give Buyer any such written notice, Buyer may elect to terminate this Agreement and receive back the entire Earnest Money, in which event Buyer and Sellers shall have no further obligations under this Agreement; or, alternatively, Buyer may elect to purchase the Real Property subject to such exception(s). Buyer shall provide Sellers with written notification of Buyer s election within five (5) calendar days of its receipt (or deemed receipt) of Sellers s notice. Buyer s failure to provide any written notification of election within such time shall be deemed an election by Buyer to purchase Property, subject to such exception(s). 6.2 Title Insurance. As soon as it is available after Closing, Sellers, at Sellers cost, will provide to Buyer an ALTA standard coverage title insurance policy (the Title Policy ) pursuant to the title commitment provided by the Escrow Agent, dated as of the closing and insuring Buyer in the amount of the Purchase Price against loss or damage by reason of defect in Buyer s title to the Real Property subject to the printed exclusions and exceptions shown on the title commitment or appearing in the policy form and real property taxes and assessments that are not delinquent. 6.3 Conveyance Documents. At closing, Sellers shall execute and deliver or shall cause to be executed and delivered to Buyer a Warranty Deed conveying good and marketable title to the Real Property in the form attached hereto as Exhibit B. 7. CLOSING AND RELATED MATTERS. 7.1 Closing Date. The closing shall take place on or before May 15, 2013, or such other time as the Parties may agree in writing ( Closing Date ). 7.2 Escrow Closing. The closing of the sale of the Property shall take place at the office of the Escrow Agent. On or before the Closing Date, Buyer and Sellers shall deposit in escrow with Escrow Agent all instruments, documents and monies (payable in cash by wire funds or official bank check), and closing instructions necessary to complete the transaction in accordance with this Agreement. The Escrow Agent s closing fees shall be divided and paid equally by Buyer and Sellers. Ad valorem and similar taxes, if any, with respect to the Real Property, utility charges and other expenses and rents with respect to the Real Property shall be prorated between the parties. Buyer shall pay for any title insurance desired by Buyer in addition to that provided by Sellers pursuant to Section 6.2 above. Buyer and Sellers shall each pay onehalf (½) the escrow fees of the Escrow Agent. All other expenses not specifically referenced in this Agreement and incurred by Sellers or Buyer with respect to this transaction shall be borne and paid exclusively by the Party incurring the same, without reimbursement Conditions to Closing. REAL ESTATE PURCHASE AND SALE AGREEMENT - 6

10 Buyer s Closing Conditions. Buyer s obligation to close the transaction described in this Agreement is subject to the satisfaction, or the written waiver by Buyer, at or prior to closing (or such earlier date as may hereinafter be provided), of the following conditions precedent: Environmental Assessment. Buyer has conducted a Level 1 environmental assessment and has determined it is satisfied with the environmental condition of the property, and the closing shall be conditioned upon there being no changes to the environmental condition of the Real Property. Buyer shall satisfy or waive this condition on or before April 30, Soils Testing. That Buyer be satisfied with the results of such soils tests, studies and investigations as it may elect to pursue at its cost. Buyer shall satisfy or waive this condition on or before April 30, Sellers Deliveries. Sellers have delivered and have timely deposited with Escrow Agent all of the documents this Agreement requires and those the Escrow Agent requires as set forth in the preliminary title commitment for delivery to Buyer at closing Representations and Warranties. The representations and warranties of Sellers contained in this Agreement were true and correct when made and continue to be true and correct on the Closing Date, subject to any corrections or disclosures made in writing to Buyer by Sellers based on information received after Sellers execution of this Agreement Sellers Closing Conditions. Sellers obligation to close the transactions described in this Agreement is subject to the satisfaction or the written waiver by Seller, at or prior to Closing, of the following conditions precedent: Receipt of Purchase Price. Buyer shall have delivered to Escrow Agent the balance of the Purchase Price required to close Buyer Deliveries. Buyer has delivered and has timely deposited with Escrow Agent all of the documents this Agreement requires for delivery to Sellers at closing Representations and Warranties. The representations and warranties of Seller contained in this Agreement were true and correct when made and continue to be true and correct on the Closing Date, subject to any corrections or disclosures made in writing to Buyer by Sellers based on information received after the Effective Date Title Policy. The Escrow Agent shall have irrevocably committed to issue the Title Policy. REAL ESTATE PURCHASE AND SALE AGREEMENT - 7

11 Approval by the City Council. As provided in Section of this Agreement, the Buyer s governing board shall have approved this Agreement by a duly enacted resolution and ratification of the Mayor s authority to execute this Agreement Right to Structure Exchange. Sellers (or their affiliates) may at their option effect the sale of the Real Property through a Section 1031 tax-deferred exchange, in which event the Buyer shall cooperate to that end and execute such documents as may be necessary therefor, provided that the Closing Date is not delayed, and that the Buyer incurs no additional expense. 7.4 Risk of Loss, Condemnation. Risk of loss of or damage to the Real Property shall be borne by Sellers until the Closing Date. 7.5 Study Copies to be Provided. Buyer shall provide to Sellers, within ten (10) days of Buyer s receipt of the same, a complete unredacted copy of (a) the Environmental Assessment obtained as provided in Section hereinabove (if any); (b) the Soils Testing reports obtained as provided in Section hereinabove (if any); and (c) any other studies, surveys or report with regard to the Real Property and obtained by Buyer in conjunction with proceeding under this Agreement. If the Real Property is or becomes the subject of any condemnation proceeding prior to closing, Buyer may, at its option, terminate this Agreement by giving notice of such termination to Sellers on or before the Closing Date, and upon such termination this Agreement shall be of no further force or effect; provided, however, that Buyer may elect to purchase the Real Property, in which case the Purchase Price shall be reduced by the amount of any condemnation award received by Sellers at or prior to closing. On closing, Sellers shall assign to Buyer all Sellers rights in and to any future condemnation awards or other proceeds payable or to become payable by reason of any taking. Sellers agree to notify Buyer of eminent domain proceedings within five (5) days after Sellers learn thereof. 8. STATUTORY NOTICE. The Real Property described in this Agreement may not be within a fire protection district protecting structures. The Real Property is subject to land use laws and regulations which, in farm or forest zones, may not authorize siting or construction of a residence. Before signing or accepting this instrument, the Buyer should check with the appropriate city or county planning department to verify approved uses and existence of fire protection for structures. 9. BROKERAGE Indemnification and Hold Harmless. Except as provided below, both Sellers and Buyer attest they have not used a real estate broker in this transaction. To the extent allowed under Idaho law, Sellers agree to indemnify and hold Buyer harmless from and against any and all liabilities, demands, claims, actions or causes of action, losses, damages, costs and expenses (including reasonable attorneys fees) sustained or incurred by Buyer and resulting from brokerage commissions asserted by any party as a result of dealings by Sellers claimed to REAL ESTATE PURCHASE AND SALE AGREEMENT - 8

12 give rise to such brokerage commission in the course of this transaction. To the extent allowed under Idaho law, Buyer agrees to indemnify and hold Sellers harmless from and against any and all liabilities, demands, claims, actions or causes of action, losses, damages, costs and expenses (including reasonable attorneys fees) sustained or incurred by Sellers and resulting from brokerage commissions asserted by Buyer s broker or any person or entity as a result of dealings by Buyer claimed to give rise to such brokerage commission in the course of this transaction. 9.2 Exception A. Sellers acknowledge broker Bill Middleton of Sage Properties ( Middleton ) (1603 North 16 th Street, Boise, Idaho 83703) has from time to time represented the Sellers as a broker attempting to market and sell the Real Property on Sellers behalf. The nature of that relationship is disputed. The Sellers and Middleton have entered into a separate agreement to resolve their differences and settle any claims Middleton may have. The Buyer is not a party to such agreement, and the matter is solely between Sellers and Middleton. REPRESENTATION CONFIRMATION: Check one (1) box in Section 1 below and one (1) box in Section 2 below to confirm that in this transaction, the brokerage(s) involved had the following relationship(s) with Buyer and Sellers. Section 1: Buyer s Broker: None A. [ ] The broker working with Buyer is acting as an AGENT for Buyer. B. [ ] The broker working with Buyer is acting as a LIMITED DUAL AGENT for Buyer, without an ASSIGNED AGENT. C. [ ] The broker working with Buyer is acting as a LIMITED DUAL AGENT for Buyer, with an ASSIGNED AGENT. D. [ ] The broker working with Buyer is acting as a NONAGENT for Buyer. Section 2: Sellers Broker: None A. [ ] The broker working with Sellers is acting as an AGENT for Sellers. B. [ ] The broker working with Sellers is acting as a LIMITED DUAL AGENT for Sellers, without an ASSIGNED AGENT. C. [ ] The broker working with Sellers is acting as a LIMITED DUAL AGENT for Buyer, with an ASSIGNED AGENT. REAL ESTATE PURCHASE AND SALE AGREEMENT - 9

13 D. [ ] The broker working with Sellers is acting as a NONAGENT for the Sellers. Each party signing this document confirms that he or she has elected the relationship confirmed above. EACH PARTY UNDERSTANDS THAT HE OR SHE IS A CUSTOMER AND IS NOT REPRESENTED BY A BROKER UNLESS THERE IS A SIGNED WRITTEN AGREEMENT FOR AGENCY REPRESENTATION. 10. NOTICES. All notices and demands that any Party is required or may desire to give to the other Party under any provision of this Agreement shall be in writing and delivered to each party at the addresses set forth below or to such other addresses as either party may designate by written notice pursuant to this Section 10. Each such notice and demand shall be deemed given or made as follows: (a) if sent by hand delivery or electronic mail, upon delivery; (b) if sent by mail, upon the earlier of the date of receipt or three (3) days after deposit in the U.S. Mail, First Class and postage prepaid; or (c) if sent by overnight mail, upon the earlier of receipt or the day after deposit with the overnight carrier. If to Sellers: If to Buyer: John Kaji City of Boise City President Director Kaji & Associates Department of Parks and Recreation S. Western Avenue # Royal Boulevard Gardena, California Boise, Idaho Telephone: (208) with a copy to: City of Boise City Legal Department Post Office Box 500 Boise, Idaho (208) COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall constitute an original, but all together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement via facsimile transmission shall be as effective as delivery of an original signed copy. 12. ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the Parties with respect to the subject matter of this Agreement. No extension, change, modification or amendment to or of this Agreement of any kind whatsoever shall be made or claimed by Sellers or Buyer, and no notice of any extension, change, modification or amendment made or claimed by Sellers or Buyer shall have any force or effect whatsoever unless the same shall be endorsed in writing and be signed by the Party against which the enforcement of such extension, change, modification or amendment is sought, and then only to the extent set forth in such instrument. REAL ESTATE PURCHASE AND SALE AGREEMENT - 10

14 13. CAPTIONS. The captions at the beginning of the several sections, respectively, are for convenience in locating the context, but are not part of the text. 14. SEVERABILITY. In the event any term or provision of this Agreement shall be held illegal, invalid or unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement shall not be affected thereby, but shall be valid and shall remain in full force and effect. 15. GOVERNING LAW. This Agreement shall be interpreted and construed in accordance with the laws of the State of Idaho, without regard to its principles of conflicts of laws, and with the same force and effect as if this Agreement had been fully executed and performed therein. 16. ADDITIONAL ACTS. Each Party agrees to take such other actions and to execute and deliver such further documents as may reasonably be required to consummate this transaction, and to afford each other reasonable cooperation towards that end. 17. ASSIGNMENT; BINDING EFFECT. Buyer may not assign this Agreement without the prior written consent of Sellers, which consent may be withheld in Sellers sole discretion. This Agreement will be binding upon and inure to the benefit of the respective Parties, and their permitted successors, and assigns. 18. REMEDIES. In the event Sellers default in the performance of any Sellers obligations under this Agreement through no fault of Buyer, Buyer shall have the right to seek specific performance against the Sellers. If Buyer defaults in the performance of any of Buyer s obligations and fails to close the contemplated sale through no fault of Sellers, Sellers sole and exclusive remedy is retention of the Earnest Money. 19. WAIVER. Waiver of performance of any provision of this Agreement shall not be a waiver of, nor prejudice, the Party s rights otherwise to require performance of the same provision or any other provision. 20. TIME OF THE ESSENCE. Time is of the essence in this Agreement, including but not limited to the Closing Date referenced in Section 7.1 herein. The time in which any act required under this Agreement is to be performed shall be computed by excluding the first day and including the last day. If the last day is a legal holiday, then the time for performance shall be the next subsequent business day. 21. ACCEPTANCE; EFFECTIVE DATE. Sellers signatures hereon constitute an offer to sell the Property to Buyer on the terms and conditions set forth herein. Delivery of such offer shall be effective upon personal delivery to Buyer or Buyer s attorney. The Effective Date of this Agreement shall be the date that this Agreement is fully executed by the Buyer and Sellers. As provided in Section hereinabove, if Buyer s governing body has not approved and Buyer has not fully executed this Agreement by close of business on April 24, 2013, this offer shall be withdrawn. REAL ESTATE PURCHASE AND SALE AGREEMENT - 11

15 IN WITNESS WHEREOF, the undersigned have duly executed this Agreement effective as of the dates set forth below. [End of text; signatures on following page] REAL ESTATE PURCHASE AND SALE AGREEMENT - 12

16 BUYER: City of Boise City David H. Bieter Mayor ATTEST: Debbie Broughton Ex-Officio City Clerk SELLERS: Boise Foothills LLC By: Robert C. Weiss Managing Member Bent s Fort Inn, Inc. By: The Garcia Family Trust Trustee REAL ESTATE PURCHASE AND SALE AGREEMENT - 13

17 Perego Properties, LLC By: Member Barbara Hoke Rose Lin Arledge Real Estate Corporation of Colorado, Inc, By: Its: Ruth Ann Nielsen Ryan A. Creer Ryan A. Creer and Ruth E. Creer Family Trust Ryan A. Creer Trustee REAL ESTATE PURCHASE AND SALE AGREEMENT - 14

18 Ruth E. Creer Trustee Cheryl Denise Merrick Ronald S. Lansing Barbara W. Franzen Trust By: Trustee Exhibits Exhibit A Property Depiction and Legal Description Exhibit B Warranty Deed REAL ESTATE PURCHASE AND SALE AGREEMENT - 15

19 EXHIBIT B WARRANTY DEED (NOT FOR EXECUTION) When recorded, please return to: J. Patrick Riceci City of Boise Legal Department Post Office Box 500 Boise, Idaho WARRANTY DEED FOR VALUE RECEIVED, the Boise Foothills LLC (formerly known as DBSI Boise Foothills LLC, who originally took title as DBSI Hill Road 270 LLC), an Idaho limited liability company; Ben s Fort Inn, Inc., a Colorado corporation; The Garcia Family Trust dated June 28, 1989; Perego Properties, LLC, a California limited liability company; Barbara Hoke, an unmarried woman; Rose Lin, an unmarried woman; Arledge Real Estate Corporation of Colorado, LLC, a Colorado corporation; Ruth Ann Nielsen, an unmarried woman; Ryan A. Creer, a married man and Ryan A. Creer and Ruth E. Creer as Trustee s of the Ryan A Creer and Ruth E. Creer Family Trust, dated December 11, 2009; Cheryl Denise Merrick, an unmarried woman; Ronald S. Lansing, a married man; and Barbara W. Franzen Trust dated April 18, 1982 and amended in its entirety on February 11, 2003; all as Tenants in Common, holders of undivided interests equal to 100% of the Property, collectively the Grantors, whose address is c/o Susan Eastlake, Medlin, Beveridge & Eastlake, Certified Public Accountants, ParkCenter Pointe, 1509 Tyrell Lane, Suite 130 Boise, Idaho 83706, do hereby grant, bargain, sell and convey unto the City of Boise City, an Idaho municipal corporation, whose address is 150 South Capitol Boulevard, Boise, Idaho ( Grantee ), all of Grantor s right, title and interest in and to that certain premises specifically described on Exhibit A ( Real Property ), which exhibit is attached hereto and made a part hereof; TO HAVE AND TO HOLD the Real Property, together with all appurtenances unto Grantee, and Grantee s successors and assigns forever. Grantor does hereby covenant to and with Grantee, that Grantor is the owner in fee simple of the Real Property; that the Real Property is free from all encumbrances created or suffered by Grantor, except those made, suffered or done by Grantee, and except the following: (a) general taxes and assessments, including utility assessments for the current year, which are not yet due and payable, and will be prorated between Grantor and Grantee as of the date of execution of this deed; (b) any easements, restrictions and conditions, and matters of record, or shown on the recorded plat, if any, for the Real Property or that may be determined by an REAL ESTATE PURCHASE AND SALE AGREEMENT - 16

20 inspection of the Real Property; (c) building, zoning and other applicable ordinances and regulations and instruments of the County of Ada, State of Idaho. IN WITNESS WHEREOF, Grantors have caused their names to be hereunto subscribed on the date below each of their names. GRANTORS: Boise Foothills LLC, an Idaho limited liability company By: Robert C. Weiss, Managing Member Bent s Fort Inn, Inc., a Colorado corporation By: The Garcia Family Trust, dated June 28, 1989 By: REAL ESTATE PURCHASE AND SALE AGREEMENT - 17

21 Perego Properties, LLC By: Guy Perego Member Barbara Hoke Rose Lin Arledge Real Estate Corporation of Colorado, Inc., a Colorado corporation, By: Ryan A. Creer REAL ESTATE PURCHASE AND SALE AGREEMENT - 18

22 Ryan A. Creer and Ruth E. Creer Family Trust, dated December 11, 2009 Ryan Creer, Trustee Ruth E. Creer, Trustee Cheryl Denise Merrick Ronald S. Lansing Barbara W. Franzen Trust dated April 18, 1982 and amended in its entirety on February 11, 2003 Trustee REAL ESTATE PURCHASE AND SALE AGREEMENT - 19

23 State of Arizona ) County of ) ) ss. The foregoing instrument was acknowledged before me this day of, 2013, by Robert C. Weiss, Managing Member of Boise Foothills, LLC, an Idaho limited liability company, on behalf of the limited liability company. Notary Public Print Name: My Commission Expires: State of Colorado ) ) ss. County of ) The foregoing instrument was acknowledged before me this day of, 2013, by of Bent s Fort Inn, Inc., a Colorado corporation, on behalf of the corporation. Name Title Serial Number, If Any REAL ESTATE PURCHASE AND SALE AGREEMENT - 20

24 State of California ) ) ss. County of ) On the day of, 2013, before me, a Notary Public in and or said state personally appeared, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public for California Residing at (Seal) State of California ) ) ss. County of ) On the day of, 2013, before me, a Notary Public in and or said state personally appeared Guy Perego, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public for California Residing at REAL ESTATE PURCHASE AND SALE AGREEMENT - 21

25 State of California ) ) ss. County of ) On the day of, 2013, before me, a Notary Public in and or said state personally appeared Barbara Hoke, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public for California Residing at (Seal) State of California ) ) ss. County of ) On the day of, 2013, before me, a Notary Public in and or said state personally appeared, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public for California Residing at (Seal) REAL ESTATE PURCHASE AND SALE AGREEMENT - 22

26 STATE OF FLORIDA ) ) ss. County of ) The foregoing instrument was acknowledged before me this day of, 2013 by, as of Arledge Real Estate Corporation of Colorado, a Colorado corporation, on behalf of the corporation. He is personally known to me and has produced as identification. Notary Public Printed Name: My Commission Expires: Commission #: State of Utah ) ) ss. County of ) On this day of, in the year 2013, before me, a notary public, personally appeared, Ruth Ann Neilsen, proved on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument, and acknowledged she executed the same. WITNESS my hand and official seal. Notary Public Residing at: My Commission Expires: REAL ESTATE PURCHASE AND SALE AGREEMENT - 23

27 State of Utah ) ) ss. County of ) On this day of, in the year 2013, before me, a notary public, personally appeared, Ryan A. Creer, proved on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument, and acknowledged he executed the same. WITNESS my hand and official seal. Notary Public Residing at: My Commission Expires: State of Utah ) ) ss. County of ) On this day of, in the year 2013, before me, a notary public, personally appeared, Ryan A. Creer and Ruth E. Creer, Trustees of the Ryan A. Creer and Ruth E. Creer Family Trust, proved on the basis of satisfactory evidence to be the persons whose names are subscribed to this instrument, and acknowledged they executed the same as Trustees of the Ryan A Creer and Ruth E. Creer Family Trust. WITNESS my hand and official seal. Notary Public Residing at: My Commission Expires: REAL ESTATE PURCHASE AND SALE AGREEMENT - 24

28 STATE OF FLORIDA ) ) ss. County of ) The foregoing instrument was acknowledged before me this day of, 2013 by, who is personally known to me and has produced as identification. Notary Public Printed Name: My Commission Expires: Commission #: State of Arizona ) ) ss. County of ) The foregoing instrument was acknowledged before me this 2013, by Ronald S. Lansing. day of, Notary Public Print Name: My Commission Expires: REAL ESTATE PURCHASE AND SALE AGREEMENT - 25

29 State of California ) ) ss. County of ) On the day of, 2013, before me, a Notary Public in and or said state personally appeared, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public for California Residing at (Seal) REAL ESTATE PURCHASE AND SALE AGREEMENT - 26

30 File Number: ALTA Commitment (6/17/06) SCHEDULE C Legal Description: A parcel of land being all of the West half of the Southwest quarter of Section 27, and a portion of the following: South half of Section 28, and Northeast quarter of the Northeast quarter of Section 33; and the West half of the Northwest quarter of Section 34, Township 4 North, Range 2 East, Boise Meridian, Ada County, Idaho, being more particularly described as follows: Beginning at an aluminum cap marking the Northwest corner of the Southwest quarter of said Section 27, from which corner, a brass cap marking the center of said Section 27 bears South 89 01'31" East, feet; thence, along the Northerly line of said Southwest quarter South 89 01'31" East, feet to the East 1/16 corner of said section; thence, along the Easterly line of said West half of the Southwest quarter South 01 16'33" West, feet to a brass cap marking the Southeast corner of said West half; thence, along the Easterly line of the West half of the Northwest quarter of Section 34 South 00 18'31" West, feet to a 5/8 inch rebar marking the Northwest 1/16 corner of said Section 34; thence North 89 41'01" West, feet to a point on the Easterly line of a certain parcel of land as shown on Record of Survey No. 4517; thence, along the exterior boundary line of said parcel the following courses: North 00 18'31" East, feet; thence North 89 29'48" West, feet; thence South 00 18'31" West, feet; thence South 89 29'48" East, feet; thence South 14 44'58" West, feet; thence South 25 50'30" East, feet; thence South 01 20'06" West, feet; thence South 37 43'41" East, feet; thence, continuing along said boundary South 89 14'53" East, feet to the Northwesterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said exterior boundary line along the Westerly line of said parcel and a parcel of land as described in Instrument No , Records of Ada County, Idaho South 00 19'09" West, feet to the Northeasterly corner of that certain parcel of land as shown on Record of Survey No. 4216; thence, along the exterior boundary line of said parcel the following courses: North 89 22'00" West, feet; thence North 42 13'30" East, feet to an angle point on the Easterly line of Lot 10, Lancaster Terrace Subdivision Unit No.1, according to the official plat thereof filed in Book 12 of Plats at Page 716, Records of Ada County, Idaho; thence, leaving said exterior boundary line along said Easterly line of said lot the following courses: North 00 42'52" East, feet; thence North 37 03'38" West, feet to a non-tangent point on a curve on the Northeasterly right-of-way line of North Hillway Drive; thence, leaving said Easterly line along said right-of-way line the following courses: Northwesterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 58 01'43", and a chord bearing and distance of North 00 34'24" West, feet; thence, tangent from said curve North 29 35'15" West, feet to the beginning of a tangent curve; thence Northwesterly along said curve to the left having a radius of feet, an arc length of feet, through a central angle of 25 25'42", and a chord bearing and distance of North 42 18'06" West, feet to a point of reverse curvature; thence Northwesterly along said curve to the right having a radius of feet, an arc length of 3.92 feet, through a central angle of 00 36'27", and a chord bearing and distance of North 54 42'43" West, 3.92 feet to the most Southerly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said right-of-way line along the Easterly line of said parcel North 00 57'35" East, feet to the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly line of said parcel North 27 22'17" West, feet to the most Easterly corner of Lot 2, Block 4 of Lancaster Terrace Subdivision Unit No. 2, filed in Book 17 of Plats at Pages 1117and 1118, Records of Ada County, Idaho; thence, along the Easterly line of said Lot 2 North 22 00'17" West, feet to a non-tangent point on a curve on the Easterly right-of-way line of North Terrace Way; thence, along said right-of-way line the following courses: Northwesterly along said curve to the left having a radius of feet, an arc length of 9.89 feet, through a central angle of 16 10'59", and a chord bearing and distance of North 29 59'55" West, 9.85 feet to a found 5/8 inch rebar marking a point of reverse curvature; thence Northwesterly along said curve to the right having a radius of feet, an arc length of feet, through a central angle of 66 22'54", and a chord bearing and distance of North 04 53'57" West, feet; thence, tangent from said curve North 28 17'29" East, feet to the beginning of a tangent curve; thence 10

31 File Number: ALTA Commitment (6/17/06) Northeasterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 56 08'18", and a chord bearing and distance of North 00 13'20" East, feet; thence, tangent from said curve North 27 50'49" West, feet to the beginning of a tangent curve; thence Northwesterly along said curve to the left having a radius of feet, an arc length of feet, through a central angle of 19 50'10", and a chord bearing and distance of North 37 45'54" West, feet to a found 5/8 inch rebar marking the most Southerly corner of Lot 3, Block 1 of Lancaster Terrace Subdivision Unit No. 3, as filed in Book 53 of Plats at Pages 4738 and 4739, Records of Ada County, Idaho, thence, along the exterior boundary line of said Lancaster Terrace Unit No. 3, the following courses: North 42 19'30" East, feet to a found 5/8 inch rebar; thence North 31 56'00" West, feet to a found 5/8 inch rebar marking the most Easterly corner of a parcel as described in Instrument No , Records of Ada County, Idaho; thence, leaving said Unit No. 3 exterior lines along the exterior boundary of said parcel the following courses: North 07 36'17" West, feet; thence South 77 13'43" West, feet; thence South 23 57'32" West, feet to a point on the Easterly line of the Amended Plat of Lancaster Terrace Subdivision Units 1 & 2, filed in Book 16 of Plats at Pages 1076 and 1077, Records of Ada County, Idaho, being a non-tangent point on a curve on the Easterly right-of-way line of North Hillway Drive; thence, along said right-of-way line the following courses: Northwesterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 36 30'33", and a chord bearing and distance of North 03 10'39" West, feet; thence, non-tangent from said curve North 21 24'50" West, feet to the beginning of a tangent curve; thence Northwesterly along said curve to the right, having a radius of feet, an arc length of feet, through a central angle of 27 05'18", and a chord bearing and distance of North 07 52'12" West, feet; thence, tangent from said curve North 05 40'27" East, feet to the beginning of a tangent curve; thence Northwesterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 88 50'00", and a chord bearing and distance of North 38 44'32" West, feet to a found 5/8 inch rebar; thence, tangent from said curve North 83 09'32" West, feet to the Southeasterly corner of a parcel of land as described in Instrument No , Records of Ada, County, Idaho; thence, along the Easterly line of said parcel North 10 45'50" East, feet to the Northeasterly corner of Lot 22, Block 1 of said Amended Plat of Lancaster Terrace Subdivision, Units 1 & 2; thence, along the Northerly and Northwesterly lines of said Block 1, the following courses: North 83 00'45" West, feet; thence North 80 23'41" West, feet to a found 1/2 inch rebar; thence South 85 04'24" West, feet to a found 1/2 inch rebar; thence South 66 13'14" West, feet to a found 5/8 inch rebar; thence South 41 17'25" West, feet; thence South 19 48'35" West, feet to a point on the northerly line of Lot 16, Block 1 of said subdivision; thence, leaving said Northerly and Northwesterly lines along said Northerly line North 77 52'55" West, feet to a found 5/8 inch rebar marking the Northeasterly corner of Lot 1, Block 5 of North Mountain Subdivision Unit No. 1, filed in Book 30 of Plats at Pages 1830 and 1831, Records of Ada County, Idaho; thence, along the Northerly line of said subdivision the following courses: North 77 52'55 West, feet; thence North 75 14'17" West, feet; thence South 83 21'57" West, feet to a point on the Easterly line of Terrace Ridge Townhouses, filed in Book 36 of Plats at Page 3086 and 3087, Records of Ada County, Idaho; thence, leaving said Northerly line along said Easterly line and the Easterly line of Terrace Ridge Subdivision, filed in Book 55 of Plats at Pages 4970 and 4971, Records of Ada County, Idaho, the following courses: North 06 38'27" West, feet; thence North 00 29'49" East, feet to a found 5/8 inch rebar marking the Southeasterly corner of Lot 5, Block 1 of North Mountain Subdivision Unit No. 2, filed in Book 45 of Plats at Pages 3639 and 3640, Records of Ada County, Idaho, also marking the most Southerly corner of a parcel of land as described in Instrument No ; thence, along the Easterly line of said parcel and Assessor s Parcel No.'s S & S North 12 18'49" East, feet to a found 5/8 inch rebar marking an angle point on the Easterly line of North Mountain Subdivision No. 3, filed in Book 70 of Plats at Pages 7135 and 7136, Records of Ada County, Idaho; thence, along said Easterly line North 12 20'26" East, feet to a point on the Southerly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the exterior boundary of said parcel through the following courses: South 89 12'34" East, feet; thence North 00 47'26" East, feet; thence North 89 12'34" West, feet to the Easterly line of said North Mountain Subdivision No. 3; thence, leaving said exterior boundary along said Easterly line North 12 20'26" East, feet to a found 5/8 inch rebar marking the Northeasterly corner of said subdivision; thence, along the Northerly line of said subdivision 11

32 File Number: ALTA Commitment (6/17/06) North 86 39'34" West, feet to a found 5/8 inch rebar marking the Northwest corner thereof; thence, along the Westerly line of said subdivision South 27 20'26" West, feet to a found 5/8 inch rebar, marking the most Westerly corner of Lot 1, Block 4 of said North Mountain Subdivision Unit No. 2; thence, along said Westerly line and the Westerly line of Pine Terrace Subdivision, filed in Book 52 of Plats at Pages , Records of Ada County, Idaho South 27 17'42" West, feet to an angle point thereon; thence, along the Southerly and Westerly lines of said Pine Terrace Subdivision the following courses: South 56 03'36" East, feet; thence South 13 10'57" West, 5.86 feet to the Northeasterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said Southerly and Westerly lines along the Northerly line of said parcel and the Northerly line of North 26th Street, as described in Book 514 of Plats at Page 107, Records of Ada County, Idaho North 56 03'36" West, feet to a point on the Easterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho, as shown on Record of Survey No. 3773, Records of Ada County, Idaho; thence, along the exterior boundary lines of said parcel the following courses: North 13 57'39" East, feet; thence North 67 59'01" West, feet; thence South 14 00'05" West, feet to the Northerly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said exterior boundary lines along said Northerly line North 68 01'21" West, feet to a non-tangent point on a curve on the Easterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho, and as shown on Record of Survey No. 1533, Records of Ada County, Idaho; thence, along said Easterly line the following courses: Northeasterly along said curve to the right having a radius of feet, an arc length of feet, through a central angle of 07 26'40", and a chord bearing and distance of North 25 09'35" East, feet; thence, non-tangent from said curve North 28 46'12" East, feet to a point on the Southerly right-of-way line of North 27th Street; thence, leaving said Easterly line along the most Easterly right-of-way line of said street North 20 07'40" East, feet to a point on the Northerly right-of-way line of said street; thence, along said right-of-way line the following courses: North 69 52'20" West, feet to the beginning of a non-tangent curve: thence Northwesterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 25 13'04", and a chord bearing and distance of North 81 39'50" West, feet to a point of compound curvature; thence Southwesterly along said curve to the left, having a radius of feet, an arc length of feet, through a central angle of 35 45'05", and a chord bearing and distance of South 67 51'05" West, feet to a point on the Easterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said right-of-way line along the Easterly line of said parcel North 08 35'17" East, feet to a point on the Southwesterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along said Southwesterly line South 54 43'45" East, feet to the most Southerly corner of said parcel; thence, along the Southeasterly line thereof North 21 51'15" East, feet to a point on the Southwesterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along said Southwesterly line South 49 43'45" East, feet to the most Southerly corner thereof; thence, along the Southeasterly line of said parcel North 40 16'15" East, feet to the most Easterly corner thereof; thence, along the Northeasterly line of said parcel North 49 43'45" West, feet to a found 5/8 inch rebar marking an angle point on the Southeasterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along said Southeasterly line North 41 44'15" East, feet to a found 5/8 inch rebar, marking the most Easterly corner thereof; thence, along the Northeasterly line of said parcel North 48 15'45" West, feet to a point on the Southeasterly right-of-way line of North 28th Street; thence, along said right-of-way line the following courses: North 41 43'03" East, feet; thence North 48 16'57" West, feet; thence South 41 43'03" West, feet to a found 3/4 inch iron pipe marking the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said right-of-way line along the Northeasterly line of said parcel North 48 22'36" West, feet to a found 3/4 inch iron pipe marking the most Northerly corner thereof; thence, along the Northwesterly line of said parcel South 41 42'53" West, feet to a found 3/4 inch iron pipe marking the most Northerly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northwesterly line of said parcel South 39 00'53" West, feet to the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly and Northwesterly lines of said parcel the following courses: North 60 47'02" West, feet; thence South 71 59'43" West, feet to a found Iron Bolt; thence 12

33 File Number: ALTA Commitment (6/17/06) South 37 10'59" West, feet to a found 5/8 inch rebar marking the most Easterly corner of a parcel of land conveyed to Ada County Highway District by Deed Instrument No , Records of Ada County, Idaho; thence, along the exterior line of said parcel the following courses: North 42 04'58" West, feet; thence South 33 42'29" West, feet; thence, along the Northwesterly line of Ussery Street South 36 25'02" West, to the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly line of said parcel North 42 04'58" West, feet to the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly line of said parcel North 53 37'11" West, feet to a found 5/8 inch rebar marking the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly line of said parcel North 42 46'58" West, feet to the most Easterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, along the Northeasterly line of said parcel and the Northeasterly and Northwesterly lines of a parcel of land as described in Instrument No , Records of Ada County, Idaho the following courses: North 41 29'58" West, feet; thence South 36 25'02" West, feet to a point on the Northeasterly right-of-way line of West Hill Road; thence, leaving said Northeasterly and Northwesterly line along said right-of-way line the following courses: North 42 14'29" West, feet; thence North 56 45'51" West, feet; thence North 50 40'24" West, feet; thence, leaving said right-of-way line North 46 20'57" West, feet to a point on the Easterly line of Cushman Heights Subdivision, filed in Book 48 of Plats at Pages 3946 and 3947, Records of Ada County, Idaho; thence, along said subdivision the following courses: North 00 32'08" East, feet; thence North 46 32'24" East, feet; thence North 00 32'24" East, feet; thence North 71 22'01" West, feet to the Southwesterly corner of a parcel of land as described in Instrument No , Records of Ada County, Idaho; thence, leaving said subdivision along the Easterly line of said parcel, the Easterly line of West Scenic Drive, and the Easterly line of a parcel of land as described in Instrument No , Records of Ada County, Idaho North 00 32'08" East, feet to a point on the Northerly line of the Southwest quarter of said Section 28; thence, along said Northerly line South 89 19'28" East, feet to a found aluminum cap marking the Northeast corner of said Southwest quarter of Section 28; thence, along the North line of the Southeast quarter of said section South 89 19'48" East, feet to the Point of Beginning. 13

34