MERGER AGREEMENT (proposed)
This AGREEMENT, dated this ___ day
of _____, 2005 is entered into by and between Western Land Company, LLC, an
Idaho Limited Liability Company (hereinafter referred to as “
WITNESSETH:
WHEREAS, Duquette Pines, Division No. 1 is a platted subdivision as shown on Instrument No. 76381, Boise County Recorder’s Office, and is subject to the Declaration of Covenants, Conditions and Restrictions, Duquette Pines, Division No. 1 recorded on April 21, 1971 as Instrument No. 76383 in the Boise County Recorder’s Office; and
WHEREAS Duquette Pines, Division No. 2 is a platted subdivision as shown on Instrument No. 90161, Boise County Recorder’s Office, and is subject to the Declaration of Covenants, Conditions and Restrictions, Duquette Pines, Division No. 2 recorded on April 5, 1977 as Instrument No. 86073 in the Boise County Recorder’s Office; and
WHEREAS, Duquette Pines, Division No. 3 is a platted subdivision as shown on Instrument No. 91626, Boise County Recorder’s Office, and is subject to the Declaration of Covenants, Conditions and Restrictions, Duquette Pines, Division No. 3 recorded on April 26, 1979 as Instrument No. 91627 in the Boise County Recorder’s Office; and
WHEREAS, the Board is a Homeowners’ Association which was established by the aforementioned Declaration of Covenants, Conditions and Restrictions, Duquette Pines, Division No. 1, and governed by the aforementioned Declarations of Covenants, Conditions and Restrictions, Duquette Pines, Division Nos. 1, 2 and 3; and
WHEREAS, the Board has the powers to enforce the Covenants, Conditions and Restrictions of Duquette Pines Subdivision Nos. 1, 2 and 3, and such other powers as are granted by those Declarations of Covenants, Conditions and Restrictions and as are provided by existing law; and
WHEREAS, Western Land owns the platted subdivision property described and shown on Instrument No. 184014, Boise County Recorder’s Office and in Exhibit A attached hereto which is immediately adjacent to Duquette Pines Subdivision Nos. 1, 2 and 3; and
WHEREAS, Western Land’s platted and subdivided property as shown in Instrument No. 184014, Boise County Recorder’s Office is labeled as Duquette Pines, Division No. 4; and
WHEREAS, lots in Duquette Pines, Division No. 4 are subject to the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Duquette Pines, Division No. 4 recorded on January 15, 2002 as Instrument No. 184261 in the Boise County Recorder’s Office; and
WHEREAS, the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Duquette Pines, Division No. 4 contemplates the potential annexation of Duquette Pines, Division No. 4 into the Board; and
WHEREAS, Duquette Pines, Division No. 4 shares amenities and facilities with Duquette Pines, Division Nos. 1, 2, and 3; and
WHEREAS, both the Board and Western Land wish for Duquette Pines, Division No. 4 to be governed by the Board; and
WHEREAS, the Board and Western Land wish to merge Duquette Pines, Division No. 4 with Duquette Pines, Division Nos. 1, 2, and 3; and
WHEREAS, the Board will hold a regular meeting or a special meeting of the Members thereof called for the purpose of amending Article VI of the Duquette Pines Architectural Control Board, Inc. dba Duquette Pines Homeowners Association Bylaws (hereinafter the “Bylaws”) to include the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Duquette Pines, Division No. 4 recorded on January 15, 2002 as Instrument No. 184261 in the Boise County Recorder’s Office; and
WHEREAS this agreement is contingent on the successful adoption of the proposed amendment of the Bylaws discussed immediately hereinabove.
NOW, THEREFORE, in consideration of the following mutual covenants and agreements between the parties, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Annexation of Duquette Pines, Division No. 4. Duquette Pines, Division No. 4, through this
agreement, is annexed into the Board as is contemplated by Section 1.3 of the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Duquettte Pines, Division No. 4.
2.
3. Covenants, Conditions, Restrictions,
and Easements. The Declaration of
Protective Covenants, Conditions, Restrictions, and Easements for Duquette
Pines, Division No. 4 recorded on January 15, 2002 as Instrument No. 184261 in
the
4. Bylaws. The Board Bylaws shall govern property use and shall be enforceable against Duquette Pines, Division No. 4 property owners, just as they govern property use and are enforceable against Duquette Pines, Division No. 1, 2, and 3 property owners. Duquette Pines, Division No. 4 property owners shall share all the rights, privileges and constraints, as provided by the Bylaws, as are granted and placed upon Duquette Pines, Division No. 1, 2, and 3 property owners.
5. Amendment of Bylaws. The Board will hold a regular meeting or a special meeting of the Members thereof for the purpose of amending Article VI of the Bylaws to include the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Duquette Pines, Division No. 4 recorded on January 15, 2002 as Instrument No. 184261 in the Boise County Recorder’s Office. The act of amending the Bylaws will be conducted in accordance with Article XII of the Bylaws and will result in the annexation of Duquette Pines, Division No. 4 by the Board. This agreement is contingent on the successful adoption of the proposed amendment.
6. Common Area. Common area shall mean all real property (including any improvements thereto) within the Properties which is available for common use and enjoyment of the owners of lots within the Properties, including roads and central water system facilities and equipment. Common area in Duquette Pines, Division No. 4 shall become the common area of Duquette Pines, Division Nos 1, 2, 3, and 4 and all common area of Duquette Pines, Division Nos. 1, 2, and 3 shall likewise become the common area of Duquette Pines, Division Nos. 1, 2, 3, and 4. Common area shall be held by the Board for the benefit of the property owners. The parties specifically agree that a purpose for which common area is held is to provide a location for future wells necessary to serve Duquette Pines residents.
7. Interim Advisory Panel. An Interim Advisory Panel (“IAP”) will be formed, consisting of three (3) Duquette Pines, Division No. 4 property owners. The IAP will consult with the Board on matters concerning Duquette Pines, Division No. 4. The IAP provides representation of the Duquette Pines, Division No. 4 property owners’ interests regarding Duquette Pines, Division No. 4 issues such as building permits and land use. The IAP will exist until the next scheduled Board Officer elections. Once the upcoming Board Officer elections are finalized, the IAP will cease to exist.
8. Provision of Water. Notwithstanding any provision of this Agreement, it is specifically understood and agreed by both parties hereto that water from the water diversion and delivery system owned and operated by the Board will be provided only to those lots in Duquette Pines, Division No. 4 that are specified in paragraph 5 of the Agreement recorded as Instrument number 196103 in the offices of the Boise County Recorder.
9. Fees and Costs. In the event that a party hereto shall be required to secure legal services or advice to enforce any of their respective rights, duties or obligations hereunder, with or without litigation, the successful party with respect to such enforcement shall be entitled to recover, in addition to all other remedies, reasonable attorney fees and costs.
10. Binding Effect of Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors, assigns, heirs, executors, administrators and representatives. This Agreement shall be recorded in the Boise County Recorder’s Office.
11. Exhibits. All exhibits referenced herein and attached hereto are incorporated into and made a part of this Agreement as if expressly and fully set forth in the body of this Agreement.
12. Amendment of Agreement Terms. The parties understand and acknowledge that after the execution and implementation of this Merger Agreement, Western Land Company, LLC intends to dispose of all lots and all interest in the property referenced in Exhibit A attached hereto. Therefore, the terms of this Agreement, while binding upon the parties hereto, will eventually be binding only upon the owners of lots within Duquette Pines, Division Nos. 1, 2, 3, and 4. Accordingly, the parties hereto agree that after Western Lands, LLC disposes of any and all interest within Duquette Pines Division No. 4, the terms of this Agreement may be amended upon a recommendation by the Duquette Pines Architectural Control Board of Directors, and approval of 60% of the lot owners present at any regularly scheduled member meeting, or at a special meeting called for that purpose, provided however that members are provided at least ten (10) days notice of the Board’s recommended amendments before any vote is held on such amendments.
13. Duplicate Originals. This Agreement shall be executed in duplicate originals, with each page, including exhibits, initialed by each party, and each party shall retain one (1) original of the Agreement.
14. Recordation. This Agreement shall be recorded in the office of the Boise County Recorder upon its execution.
15. Entire Agreement. This Agreement, including the recital hereinabove set out, constitutes the entire agreement of the parties hereto with respect to the matters contained herein, and no prioer agreement, communication, or understanding pertaining to any such matter, shall be effective for any purpose.
IN WITNESS WHEREOF, the parties hereto have dated and set their hands.
DATED this ___ day of _______________, 2005.
Western Land Co.
_______________________________
Brad C. Stone, Member
DATED this ___ day of _______________, 2005.
Duquette Pines Architectural Control Board, Inc.
______________________________
Brent Adamson, President
STATE OF
) ss.
County of ______________ )
On this ___ day of ______, 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared Brad C. Stone known or proven to me to be a member of Western Land Company, the Idaho Limited Liability Company whose name is subscribed to the foregoing instrument, and acknowledged to me that Western Land Company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written.
_______________________________
(SEAL) Notary
Public for
Residence: ______________________
My commission expires: ___________
STATE OF
) ss.
County of ______________ )
On this ___ day of ______, 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared Brent Adamson known or proven to me to be the president of Duquette Pines Architectural Control Board, Inc., the Idaho Non-Profit Corporation whose name is subscribed to the foregoing instrument, and acknowledged to me that said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written.
_______________________________
(SEAL) Notary
Public for
Residence: ______________________
My commission expires: __________ _