Easement - 660 N Civic Lane - 10/21/1998DECLARATION OF RESTRICTIONS,
GRANT OF EASEMENTS
AND
OPERATING AGREEMENT
THIS DECLARATION OF RESTRICTIONS, GRANT OF EASEMENTS AND
OPERATING AGREEMENT ("Declaration") is made as of the42U day of
1998, by Eagle Village Co -Owners, specifically Oppenheimer Companies, Inc., an Idaho
corporation, Thomas Dater, Bradford P. Shaw, Kittyhawk Investments, an Idaho
partnership, and Jordan Wilcomb Company, an Idaho Partnership (collectively, "Eagle
Village"), City of Eagle, Idaho (the "City"), and Harlan Jensen ("Jensen").
I. PRELEVIINARY
1.1 Definitions:
(a) "Declarants": Eagle Village, the City and Jensen, and any successor in
interest to fee title to Parcels 2, 3, 4 and 5.
(b) "Building Area": All those areas on each Parcel on which buildings are
located, or on which buildings have been approved for locatio<by the City,
`police power capacity and not as an Owner.
(c) ("Common Area", All those areas on each Parcel which are not Building
Area together with those portions of the Building Area on each Parcel which are not from
time to time actually covered by a building or other commercial structure or which cannot
under the terms of this Declaration be used for buildings. Canopies which extend over the
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Common Area, together with any columns or posts supporting same, shall be deemed to be
a part of the building to which they are attached and not a part of the Common Area.
-<d) "Consenting Owner": The Owner of Parcel 2. In the event of
parcelization of Parcel l as set forth in Paragraph 1.4, the Consenting Owner shall remain the
owner of the resulting Parcel 2.
(e) "Lienholder": Any mortgagee under a mortgage or a trustee or
beneficiary under a deed of trust constituting a lien on any Parcel.
(f) "Medallion Eagle Professional Center": Parcels 2, 3, 4 and 5, which
shall be referred to hereinafter as "Medallion." Parcel 1 is not a part of Medallion.
(g) "Owner": The record holder of fee simple title to a Parcel, its heirs,
personal representatives, successors and assigns.
(h) "Parcel': Parcel 2, - 3, 4 or 5 as shown on Exhibit "A" and more
particularly described in Schedule I attached hereto and incorporated herein by this reference.
(i) "person": Individuals, partnerships, firms, associations, corporations,
trusts, governmental agencies, administrative tribunals or any other form of business or legal
entity.
0) "Restrictions": The easements, covenants, restrictions, liens and
encumbrances contained in this Declaration.
1.2 Purpose: The Declarants desire to develop Medallion as an integrated public
and private business and QQge irk for the mutual benefit of all real property in Medallion
and, therefore, hereby establish the Restrictions.
1.3 Declaration and Imposition of Covenants: Declarants hereby declare that
Medallion and each Parcel within Medallion, and all parts and portions thereof shall be held,
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sold conveyed, used, occupied and improved subject to the following restrictions, covenants,
easements and conditions, which are for the purposes of establishing and effecting rights and
obligations and the protection of value of Medallion and each Parcel therein, , which
restrictions, covenants, easements and conditions shall run with the land and bind each Parcel,
and shall be binding on all persons and entities having any right, title or interest in any
Parcel, and their successors and assigns, and shall inure to the benefit of each Owner thereof.
Each Owner, by accepting title to a Parcel, expressly and specifically agrees to be bound by
the covenants and restrictions herein provided.
1.4 Subdivision of Parcel 2: The Owner of Parcel 2 shall have the right, at its
election, to create from Parcel 2 additional Parcel(s) within Medallion to be designated as
Parcel 2B, 2C etc. At the request of the Owner of Parcel 2, the other Owners shall execute
an amendment to the Declaration as may be necessary to effect any such parcelization of
Parcel 2.
H. BUILDING AND COMMON AREA DEVELOPMENT
2.1 Building Location: All Building Areas on which buildings are not under
construction or existing shall be kept weed -free and clean at the Owner's sole expense until
such time as buildings are constructed thereon.
2.2 Common Area: The Common Area is hereby reserved for the sole and
exclusive use of all Owners of Medallion, their tenants, contractors, "employees, agents,
customers, licensees and invitees and the subtenants, contractors, employees, agents,
customers, licensees and invitees of such tenants. The Common Area may be used for
vehicular driving, parking, pedestrian traffic, directional signs, sidewalks, walkways,
landscaping, perimeter walls and fences, parking lot lighting, and utilities and drive through
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service facilities and for no other purpose unless otherwise specifically provided in this
Declaration. No buildings or structures shall be placed or constructed in the Common Area
except monument and directional signs (as provided in Article IV), paving, bumper guards
or curbs, landscape planters, lighting standards, perimeter walls and fences, utility pads and
equipment, sidewalks and, to the extent that they are approved by the Consenting Owner,
drive through service facilities. The Common Area shall be kept and maintained as provided
for herein. The sizes and arrangements of the Common Area improvements, including,
without limitation, service drives and parking areas, the number and location of parking
spaces, striping, traffic directional arrows and signs, concrete bumpers, parking lot lighting,
perimeter walls and fences, and landscaped areas, together with necessary planting, may not
be changed without the prior written consent of the C ns r.
2.3 Type and Design of Building:
(a) Each building in Medallion, now and in the future, shall be of first
quality construction and architecturally designed so that its exterior elevations (including,
without limitation, signs and color) will be architecturally and aesthetically compatible with
all other buildings in Medallion. No building may be constructed nor the exterior of any
existing building changed in any way (including, without limitation, signs and color) without
the prior written approval of the Consenting Owner as to the exterior elevations (including,
without limitation, signs and color) of the building to be constructed or modified and of the
landscaping to be installed and maintained. Before the construction of any building or any
modification of an existing building is commenced, sufficient information including
reasonably detailed plans and specifications and a detailed landscaping plan shall be sent to
the Consenting Owner to enable the Consenting Owner to make a reasonable determination
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as to the architectural and aesthetic compatibility and compliance with the provisions of this
Declaration of said building or modification with all other buildings in Medallion. The
Consenting Owner shall not arbitrarily or unreasonably withhold its approval of the proposed
building or modification if it is architecturally and aesthetically compatible with all other
buildings in Medallion and otherwise in compliance with the requirements of this Declaration.
The Consenting Owner must approve or disapprove the proposal within thirty (30) days after
receipt of the proposal, and, if the Consenting Owner disapproves the proposal, it shall
provide a written explanation in reasonable detail of its reasons for disapproval. If the
Consenting Owner rejects or disapproves the proposal and fails to provide such explanation
within the thirty (30) day period, the Consenting Owner shall be deemed to have approved
same provided that, when the approval was sought, the one seeking the approval stated in
writing to the Consenting Owner that, if a disapproval with explanation was not made within
the thirty (30) day period, approval would then be deemed to have been given. If the
proposal is disapproved as provided herein, then an alternate proposal may be submitted,
which alternate proposal shall be handled in the same manner as the initial proposal.
Notwithstanding anything express or implied herein, the existing building located on Parcel 5
and the proposed new Eagle City Library with Common Area improvements to be constructed
on Parcel 3 are fully approved by the Consenting Owner as they exist or are designed on the
date of this Declaration.
(b) All Common Area improvements on each Parcel not fully constructed
and in existence on the date construction of a new building on such Parcel is commenced,
shall be constructed by and at the expense of the Owner of such Parcel in conjunction with
the construction of the new building on such Parcel. Construction of the Common Area
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improvements relating to such building shall be completed prior to the first occupancy of the
new building. The plans and specifications for Common Area improvements shall be
submitted to and subject to prior approval by the Consenting Owner in the same manner as
for building plans and specifications, as provided in the preceding paragraph "a." Common
Area landscaping shall be served by a sprinkler irrigation system.
(c) Every building shall be constructed in such a manner as not to adversely
affect the fire rating of any other building in Medallion. The purpose of this subparagraph (c)
is to allow buildings built on each Parcel to be fire rated as separate and distinct units without
deficiency charge.
(d) Each Owner shall maintain or cause to be maintained the exterior of any
building located on such Owner's Parcel(s) in a quality and condition comparable to that of
first class business park development of comparable size and nature located in Ada County,
Idaho.
2.4 Construction Requirements:
(a) All work performed in the construction, maintenance, repair,
replacement, alteration or expansion of any building, sign or Common Area improvements
located in Medallion shall be effected as expeditiously as possible and in such a manner as
not to unreasonably interfere, obstruct or delay (i) access to or from Medallion, or any part
thereof, to or from any public right-of-way, or (ii) customer vehicular pdAing. Staging for
the construction, replacement, alteration or expansion of any building, sign or Common Area
improvements located in Medallion, including, without limitation, the location of any
temporary buildings or construction sheds, the storage of building materials, and the parking
of construction vehicles and equipment shall be limited to that portion of Medallion approved
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in writing by the Consenting Owner. Unless otherwise specifically stated herein, the person
contracting for the performance of such work ("Contracting Party") shall, at its sole cost and
expense, promptly repair and restore or cause to be promptly repaired and restored to its prior
condition all buildings, signs and Common Area improvements damaged or destroyed in the
performance of such work.
(b) The Contracting Party shall not permit any liens to stand against any
Parcel for any work done or materials furnished in connection with the performance of the
work described in subparagraph (a) above; provided, however, that the Contracting Party may
contest the validity of any such lien, but upon a final determination of the validity thereof,
the Contracting Party shall cause the lien to be satisfied and released of record. The
Contracting Party shall, within thirty (3 0) days after receipt of written notice from the Owner
of any Parcel encumbered by any such lien or claim of lien, cause any such outstanding lien
or claim of lien to be released of record or transferred to bond in accordance with applicable
law, failing which the Owner of said Parcel shall have the right, at the Contracting Party's
expense, to transfer said lien to bond. The Contracting Party shall indemnify, defend and
hold harmless the Owners and occupants of Medallion from any and all liability, claims,
damages, expenses (including reasonable attorney's fees and reasonable attorney's fees on any
appeal), liens, claims of lien, judgments, proceedings and causes of action, arising out of or
in any way connected with the performance of such work, unless caused' -by the negligent or
willful act or omission of the indemnified person, its tenants, subtenants, agents, contractors
or employees.
(c) The parties acknowledge and agree that incidental encroachments upon
the Common Area may occur as a result of the use of ladders, scaffolds, store front barricades
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and similar facilities in connection with the construction, maintenance, repair, replacement,
alteration or expansion of buildings, signs and Common Area improvements located in
Medallion, all of which are permitted hereunder so long as all activities requiring the use of
such facilities are expeditiously pursued to Completion and are performed in such a manner
as to minimize any interference with use of the improved Common Area or with the normal
operation of any business in Medallion.
2.5 Casualty and Condemnation: In the event all or any portion of any building
in Medallion is (i) damaged or destroyed by fire or other casualty, or (ii) taken or damaged
as a result of the exercise of the power of eminent domain or any transfer in lieu thereof, the
Owner of such building shall promptly restore or cause to be restored the remaining portion
of such building or, in lieu thereof, shall remove or cause to be removed the damaged portion
of such building together with all rubble and debris related thereto. All Building Areas on
which buildings are not reconstructed following a casualty or condemnation shall be graded
or caused to be graded by the Owner thereof to the level of the adjoining property and in
such a manner as not to adversely affect the drainage of Medallion or any portion thereof,
shall be kept weed free and clean at the Owner's sole cost and expense until buildings are
reconstructed thereon.
2.6 Indemnification: Each Owner hereby agrees to indemnify, defend and hold
harmless the other Owners and occupants from and against any and all liability, claims,
damages, expenses (including reasonable attorney's fees and reasonable attorney's fees on any
appeal), judgments, proceedings and causes of action, for injury to or death of any person or
damage to or destruction of any property occurring in the interior of any building constructed
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on the indemnifying Owner's Parcel, unless caused by the negligent or willful act or omission
of the indemnified person, its tenants, subtenants, agents, contractors or employees.
M. EASEMENTS
3.1 Ingress, Egress and Parking: Each Owner, as'grantor, hereby grants to the
other Owners, their respective tenants, contractors, employees, agents, customers, licensees
and invitees, and the subtenants, contractors, employees, agents, customers, licensees and
invitees of such tenants, and there is hereby created .and reserved, for the benefit of each
Parcel belonging to the other Owners, as grantees, a nonexclusive easement for ingress and
egress by vehicular and pedestrian traffic and vehicular parking upon, over and across that
portion of the Common Area located on the grantor's Parcel(s), except for those areas devoted
to drive through customer service facilities. The reciprocal rights of ingress and egress set
forth in this Section 3.1 shall apply to the Common Area for each Parcel as such area shall
be increased pursuant to Section 2.2 above. The cross -access easements hereby created
cannot be terminated or dissolved without the prior express written consent of the City of
Eagle, Idaho.
3.2 Utility Lines and Facilities:
(a) Each Owner, as grantor, hereby grants to the other Owners, for the
benefit of each Parcel belonging to the other Owners, as grantees, and there is hereby created
and reserved a nonexclusive easement under, through and across the Common Area of the
grantor's Parcel(s) for the installation, 'operation, maintenance, repair and replacement of
water drainage systems or structures, water mains, sewers, water sprinkler system lines,
telephones, electrical conduits or systems, gas mains and other public or private utilities. All
such systems, structures, mains, sewers, conduits, lines and other utilities shall be installed
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and maintained below the ground level or surface of such easements except for ground
mounted electrical transformers and such other facilities as are required to be above ground
by the utility providing such service (including temporary service required during the
construction, maintenance, repair, replacement, alteration or expansion of any buildings or
improvements located in Medallion). The installation, operation, maintenance, repair and
replacement of such easement facilities shall not unreasonably interfere with the use of the
improved Common Area or with the normal operation of any business in Medallion. The
grantee shall bear all costs related to the installation, operation, maintenance, repair and
replacement of such easement facilities, shall repair to the original specifications any damage
to the Common Area resulting from such use and shall provide as -built plans for all such
facilities to the Owners of all Parcels upon which such utility lines and facilities are located
within thirty (30) days after the date of completion of construction of same.
(b) At any time and from time to time the Owner of a Parcel shall have the
right to relocate on its Parcel any utility line or facility installed pursuant to the foregoing
grant of easement which is then located on the land of such Owner, provided that any such
relocation (i) shall be performed only after sixty (60) days' notice of the Owner's intention
to undertake the relocation shall have been given to the Owner of each Parcel served by the
utility line or facility, (ii) shall not unreasonably interfere with or diminish utility service to
the Parcels served by the utility line or facility, (iii) shall not reduce or unreasonably impair
the usefulness or function of the utility line or facility, (iv) shall be performed without cost
or expense to the Owner or occupant of any other Parcel, and (v) shall provide for the
original and relocated area to be restored to a condition at least equivalent to that which
existed prior to such relocation. The Owner performing such relocation shall provide as -built
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plans for all such relocated utility lines and facilities to the Owners of all Parcels served by
such utility lines and facilities within thirty (30) days after the date of completion of such
relocation.
(c) Each Owner agrees to grant such additional easements as are reasonably
required by any public or private utility for the purpose of providing the utility lines and
facilities described herein provided such easements are not otherwise inconsistent with the
provisions of this Declaration.
IV. OPERATION OF COMMON AREA
4.1 Parking: There shall be no charge for parking in the Common Area without
the prior written consent of the Consenting Owner or unless otherwise required by law.
4.2 Employee Parking: Anything in this Declaration to the contrary
notwithstanding, areas to be used for motor vehicle parking by employees of occupants of
Medallion may be designated within Medallion from time to time with the prior written
consent of the Consenting Owner. In the event employee parking areas are designated as
provided herein, then employees of any Owner or occupant of any part of Medallion shall use
only those portions of the Common Area designated for such motor vehicle parking purposes.
The authority herein granted shall be exercised in such manner as not to discriminate against
any Owner or occupant of Medallion.
4.3 Signs:
(a) The Owner of each Parcel (subject to governmental approval and
provided the amount of signage otherwise permitted by governmental authority to the Owner
or occupant of Parcel 2 is not adversely affected thereby) shall have the right to erect a
monument sign not exceeding ten (10) feet in height or one hundred (100) square feet in total
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size on such Owner's Parcel at a location approved by the Consenting Owner, subject to prior
approval of the design of such sign by Consenting Owner. Such signs shall comply with any
sign criteria adopted by the Consenting Owner, and all applicable laws, ordinances and
regulations, including, without limitation, the process of design review by the City acting in
its police power capacity and not as an Owner. The cost of constructing, installing,
maintaining, repairing and replacing such monument sign structure shall be paid by the Owner
of the Parcel on which the sign is constructed.
(b) There shall be no other signs, except directional signs, such entry way
sign for identification of Medallion as the Consenting Owner may determine to erect in the
Common Area, an easement for which is hereby granted and recorded, and business
identification signs on buildings, in Medallion. All exterior building signs shall be restricted
to identification of the businesses or services located or provided therein. No exterior
building sign shall be placed on penthouse walls, extend above the building roof or be painted
on the exterior building surface. No exterior building or free-standing sign shall utilize
flashing, moving or audible lights or appurtenances.
4.4 Protection of Common Areas: Each Owner shall have the right to take such
steps as it deems necessary to prevent those persons not authorized by this Declaration to use
the Common Area from using the Common Area for ingress, egress and parking.
4.5 Hazardous Materials: No Owner of any Parcel shall cause or knowingly
permit any "Hazardous Materials" (.as hereinafter defined) to be stored, released, disposed of,
produced or otherwise to exist in Medallion in violation of any law, rule, regulation, or
ordinance, now or at any time in effect. "Hazardous Materials" is herein defined as
underground storage tanks, or any hazardous substances, materials, pollutants, contaminants
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or hazardous wastes as defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), Resource Conservation and Recovery Act ("RCRA"),
as amended, or any other similar local, state or federal law, rule, regulation or ordinance,
including, without limitation, asbestos, PCB's, petroleum and petroleum products, and
urea -formaldehyde. Without limiting the generality of any provision of this Declaration or
any of the remedies set forth in this Declaration, any Owner of any Parcel violating the
foregoing provision shall indemnify, defend, and hold harmless all other Owners and
occupants in Medallion from and against any and all damages, fines, penalties, liabilities,
claims, diminution in value, expenses (including, without limitation, response costs,
monitoring costs, attorneys' fees and attorneys' fees on appeal), judgments, proceedings and
causes of action, losses, costs and penalties (collectively, "Environmental Damages") incurred
by such other Owners and occupants as a result of the indemnifying Owner's default
hereunder.
V. RESTRICTIONS ON USE
5.1 Restrictions on Use: No part of Medallion, 'or any Parcel, shall be used as a
bar, tavern, cocktail lounge (provided, however, that restaurants with cocktail lounges and
restaurants which otherwise serve alcohol are specifically permitted), adult book or adult
video store, automotive maintenance or repair facility, warehouse, car wash, entertainment
or recreational facility; a gas or service station unless a part of a convenience store; for the
renting, leasing or selling of or displaying for the purpose of renting, leasing or selling of any
boat, motor vehicle or trailer; for industrial purposes; or for any other use determined by the
Consenting Owner to be incompatible and inconsistent with a first class business park
development. For the purpose of this Declaration, the phrase "entertainment or recreational
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facility" shall include, without limitation, a bowling alley, dance hall, billiard or pool hall,
massage parlor, game parlor or video arcade (which shall be defined as any store containing
more than six [6] electronic games).
80(3
Conditional Use Restrictions: No part of Medallion shall be used as a training
or educational facility, for retail sale of goods or as a theater, skating rink or studio without
the prior written consent of the Consenting Owner. The phrase "training or educational
facility" shall include, without limitation, a beauty school, barber college, reading room, place
of instruction or any other operation catering primarily to students or trainees as opposed to
customers.
5.3 Driveup and Drive Through Facilities: No vehicular driveup or drive through
customer service facility shall be located in Medallion unless the Consenting Owner has first
given its written consent. The drive through customer service facility currently located on
Parcel 4 is permitted and approved.
5.4 Public Buildings Approved. The Declarants and each of them acknowledge,
agree and represent that the location of a public library, a city hall and municipal offices on
Parcel 3 are all permitted and approved uses.
VI. COMMON AREA MAINTENANCE
6.1 Maintaining the Common Area: The operation, cleaning, maintenance, repair,
replacement and insurance of the Common Area on each Parcel shall -Ge undertaken and
effected by the Owner of that Parcel, at its own expense, at all times in good and clean
condition and repair, said maintenance to include, without limitation, the following:
(a) Maintaining, repairing and resurfacing, when necessary, all paved
surfaces in a level, smooth and evenly covered condition with the type of surfacing material
14 GACLI M0000nOISNOEGIM-a
originally installed or such -substitute as shall in all respects be equal or superior in quality,
use and durability; and restriping, when necessary;
(b) Removing all snow, papers, debris, filth and refuse and thoroughly
sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly
condition;
(c) Maintaining, repairing and replacing, when necessary, all traffic
directional signs, markers and lines;
(d) Operating, maintaining, repairing and replacing, when necessary, such
artificial lighting facilities as shall be reasonably required;
(e) Maintaining all landscaped areas; maintaining, repairing and replacing,
when necessary, automatic sprinkler systems and water lines; and replacing shrubs and other
landscaping as is necessary;
walls;
(f) Maintaining, repairing and replacing, when necessary, all Common Area
(g) Maintaining, repairing and replacing, when necessary, all storm drains,
sewers and other utility lines and facilities not dedicated to the public or conveyed to any
public or private utility which are necessary for the operation of the buildings and
improvements located in Medallion (with the cost of all such items being allocated between
the Owners of each Parcel based on the relative Building Areas of d1 buildings and
improvements serviced or to be serviced by said facilities.
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VII. GENERAL PROVISIONS
7.1 Covenants Run With the Land: Each Restriction on each Parcel shall be a
burden on that Parcel, shall be appurtenant to and for the benefit of the other Parcels and each
part thereof and shall run with the land.
7.2 Successors and Assigns: This Declaration and the Restrictions created hereby
shall inure to the benefit of and be binding upon the Declarants, their heirs, personal
representatives, successors and assigns, and upon any person acquiring a Parcel, or any
portion thereof, or any interest therein, whether by operation of law or otherwise; provided,
however, that if any Owner sells all or any portion of its -interest in any Parcel, such Owner
shall thereupon be released and discharged from any and all obligations as Owner in
connection with the property sold by it arising under this Declaration after the sale and
conveyance of title but shall remain liable for all obligations arising under this Declaration
prior to the sale and conveyance of title. The new Owner of any such Parcel or any portion
thereof (including, without limitation, any Owner who acquires its interest by foreclosure,
trustee's sale or otherwise) shall be liable for all obligations arising under this Declaration
with respect to such Parcel or portion thereof after the date of sale and conveyance of title.
7.3 Duration: Except as otherwise provided herein, the term of this Declaration
shall be for sixty-five (65) years from the date hereof. Notwithstanding the foregoing, upon
the expiration of such sixty-five (65) year term, the term of this Declaration shall
automatically and without notice be extended for five (5) successive terms of ten (10) years
each (each 10 year term being referred to herein as a "renewal term") unless no later than
thirty (3 0) days prior to the expiration of the initial 65 year term or renewal term then in
effect (as applicable) the Owners of the Parcels containing ninety percent (90%) of the total
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square footage of Building Area in Medallion duly execute, with acknowledgment, an
agreement terminating this Declaration and record the same in the Official Records of Ada
County, Idaho, in which event, this Declaration shall terminate upon the expiration of the
initial 65 year term or renewal term then in effect (as applicable).
7.4 Injunctive Relief: In the event of any violation or threatened violation by any
person of any of the Restrictions contained in this Declaration, any or all of the (other)
Owners shall have the right to enjoin such violation or threatened violation in a court of
competent jurisdiction. The right of injunction shall be in addition to all other remedies set
forth in this Declaration or provided by law.
7.5 Modification and Termination: This Declaration may not be modified in any
respect whatsoever or terminated, in whole or in part, except with the consent of the Owners
of the Parcels containing ninety percent (90%) of the total square footage of Building Area
in Medallion at the time of such modification or termination, provided that the Owner of
Parcel 3 is among those consenting to the modification or termination, and then only by
written instrument duly executed and acknowledged by all of the required Owners and
recorded in the real property records of Ada County, Idaho. No modification or termination
of this Declaration shall affect the rights of any Lienholder unless the Lienholder consents
in writing to the modification or termination.
7.6 Not a Public Dedication: Nothing herein contained shall be deemed to be a
gift or dedication of any portion of Medallion to the general public or for the general public
or for any public purpose whatsoever, it being the intention of the parties that this Declaration
shall be strictly limited to and for the purposes herein expressed. The parties recognize that
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Parcel 3 is owned by the City to be used for public buildings. Public access to such buildings
shall be regulated by the City.
7.7 Breacli Shall Not Permit Termination: It is expressly agreed that no breach
of this Declaration shall entitle any Owner to terminate this Declaration, but such limitation
shall not affect in any manner any other rights or remedies which such Owner may have
hereunder by reason of any breach of this Declaration. Any breach of this Declaration shall
not defeat or render invalid the lien of any mortgage or deed of trust made in good faith for
value, but this Declaration shall be binding upon and be effective against any Owner whose
title is acquired by foreclosure, trustee's sale or otherwise.
7.8 Default: A person shall be deemed to be in default of this Declaration only
upon the expiration of thirty (30) days from receipt of written notice from any Owner
specifying the particulars in which such person has failed to perform the obligations of this
Declaration unless such person, prior to the expiration of said thirty (30) days, has rectified
the particulars specified in said notice of default. However, such person shall not be deemed
to be in default if such failure (except a failure to pay money) cannot be rectified within said
thirty (30) day period and such person is using good faith and its best efforts to rectify the
particulars specified in the notice of default.
7.9 Notices:
(a) All notices given pursuant to this Declaration shall be in writing and
shall be given by personal delivery, by United States mail or by United States express mail
or other established express delivery service (such as Federal ;Express), postage or delivery
charge prepaid, return receipt requested, addressed to the Owner of the Parcel at the following
addresses:
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Eagle Village: Eagle Village Co -Owners
c/o Oppenheimer Development Corporation
877 Main Street, No. 750
Boise, ID 83702
City: City of Eagle, Idaho
310 East State Street
Eagle, ID 83616
Jensen: Harlan Jensen
P.O. Box 1245
Burley, ID 83318
The person and address to which notices are to be given may be changed at any time by any
parry upon written notice to the other parties. All notices given pursuant to this Declaration
shall be deemed given upon receipt.
(b) For the purpose of this Declaration, the term "receipt" shall mean the
earlier of any of the following: (i) the date of delivery of the notice or other document to
the address specified pursuant to subparagraph (a) above as shown on the return receipt,
(ii) the date of actual receipt of the notice or other document by the person or entity specified
pursuant to subparagraph (a) above, or (iii) in the case of refusal to accept delivery or
inability to deliver the notice or other document, the earlier of (A) the date of the attempted
delivery or refusal to accept delivery, (B) the date of the postmark on the return receipt, or
(C) the date of receipt of notice of refusal or notice of nondelivery by the sending party.
7.10 Waiver: The failure of a person to insist upon strict performance of any of the
Restrictions contained herein shall not be deemed a waiver of any rights or remedies that said
person may have, and shall not be deemed a waiver of any subsequent breach or default in
the performance of any of the Restrictions contained herein by the same or any other person.
19 6:%cu8mo=noM.Q4
7.11 Attorney's Fees: In the event any person initiates or defends any legal action
or proceeding to enforce or interpret any of the terms of this Declaration, the prevailing party
in any such action or proceeding shall be entitled to recover from the losing party in any such
action or proceeding its reasonable costs and attorney's fees (including its reasonable costs
and attorney's fees on any appeal).
7.12 Severability: If any term or provision of this Declaration or the application
of it to any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Declaration or the application of such term or provision to persons or
circumstances, other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Declaration shall be valid and shall be
enforced to the extent permitted by law.
7.13 Not a Partnership: The provisions of this Declaration are not intended to
create, nor shall they be in any way interpreted or construed to create, a joint venture,
partnership, or any other similar relationship between the parties.
7.14 Third Party Beneficiary Rights: This Declaration is not intended to create,
nor shall it be in any way interpreted or construed to create, any third party beneficiary rights
in any person not a party hereto unless otherwise expressly provided herein.
7.15 Captions and Headings: The captions and headings in this Declaration are
for reference only and shall not be deemed to define or limit the scope or intent of any of the
terms, covenants, conditions or agreements contained herein.
7.16 Construction: In construing the provisions of this Declaration and whenever
the context so requires, the use of a gender shall include all other genders, the use of the
singular shall include the plural, and the use of the plural shall include the singular.
20 G.%M10M0000TO MCREST.04
7.17 Joint and Several Obligations: In the event any party hereto is composed of
more than one person, the obligations of said party shall be joint and several.
7.18 Recordation: This Declaration shall be recorded in the office of the recorder
of Ada County, Idaho.
EXECUTED as of the day and year first above written.
City of Eagle, Idaho
By:
Its: Mayo
ATTEST:
EAGLE VILLAGE: Oppenheimer Companies, Inc.
174
Kittyhawk Investments,
an Idaho partnership
By
21 SACLI na000 MOE0 sr.aa
STATE OF IDAHO )
) ss.
County of Ada )
On this day of October, 1998, before me,
a Notary Public in and for said State, personally appeared t '
known or identified to me to be the of the CYy o agle, Idaho, the
City that executed the within instrument or Wtie person who executed the instrument on behalf
of said City, and acknowledged to me that such City 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.
Residing at
My commission
STATE OF IDAHO )
) ss.
County of Ada )
On this XV -0 day of October,1998, before me,
a Notary Public in and for said State, •sonally appeared I '.
known or identified to me to be the of peen eim • Co anies,
Inc., the corporation that executed the within instrument or the person who executed the
instrument on behalf of said corporation, and acknowledged to me that such corporation
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
Notary'
upblipfor •Ida'hc
Residing te„
Mycommission expires
23 s:�acexnoaoonaoea�sr.at
STATE OF IDAHO )
ss.
County of Ada )
On this day of October, 1998, before me, ,
a Notary Public in and for said State, personally appeal d Thoma ter, known or
identified to me to be the person whose name is subscribed to a foregoinV instrument, and
acknowledged to me that he 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.
A" 50.0 —
Notaryublic for o6 - .
Residing a
My commissionexpires 12e �°i9
STATE OF IDAHO )
) ss.
County of Ada )
On this day of October, 1998, before me, '
a Notary Public in and for said State, personally appeare Bradfor S w, -known or
identified to me to be the person whose name is subscribed to -4e foregoing ihstrument, and
acknowledged to me that he 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.
A'L r.
n
otary blic for I
Residing '
My commission expires
24 &%CLI lmOMACMDEME5r.04
STATE OF IDAHO )
) ss.
County of Ada )
On this day of October, 1998, before me,;
a notary public in and for said state, personally appeared - - ` ,
known or identified to me to be one of the partners of a partnership of Jor n Wilcomb
Company, and the partner or one of the partners who subscribed said partnership name to
the foregoing instrument, and acknowledged to me that he executed the same in said
partnership name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
Notary kublic for Idah
Residing
My commission expires
STATE OF IDAHO )
) ss.
County of Ada )
On thise&y of October, 1998, before me (rt/62L 2
a notary p blic i and for said state, personally appeared
known or identified tome to be one of the partners of
the partne ship of Kittyhawk Investments, and the partner or one of the partners who
subscribed said partnership name to the foregoing instrument, and acknowledged to me that
he executed the same in said partnership name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
L �DY
U
«° js0
pT Ale
1'UBLt
3P
of
My commission expires
25 GACUBM00MOMBEGIM0e
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SCHEDULE. I
' (Legal Description of Parcels)
/M"�TICA\
PARCEL 2
ENGENEERS • SURVEYCOS•
MCCARTER • TULLER * CHRONIC, INCORPORATED
707 N. 27rr{. S T . SO+SE. CAHO 83702 (208)345-0780 FAX (20$1343-3967
Legal Description
Parcel No. 2
Oppenheimer Companies et al
Eagle, Idaho
Beginning at the South I/; Corner, Section 9,. T.4N., R.l E., B.M., Ada County, Idaho; thence
North 00°03'50" East along the North-South center section line, 922.19 feet to a % inch iron
'pin on the northerly right -of -Way of State Highway 44; thence- continuing North 00'03'50"
East along said North-South center section line, 378.12 feet to a point;. thence North
89056'10" West, 32.00 feet to a % inch iron pin, the REAL POINT OF BEGINNING.
thence continuing North 89'56'10" West, 250.00 feet to an iron pin;
thence North 00°03'50" East 380.00 feet parallel with the North-South center section
line to a point;
thence North 89°4$'34" West, 244.78 feet to a point;
thence South 00°02'30" West 305.00 feet to a % inch iron pin
thence North 89°57'30" West, 15.00 feet to a % inch iron pin;
thence South 00°02'30" West, 314.97 feet to a % inch iron pin on the northerly right-
of-way of State Highway 44;
thence along said northerly right-of-way of said State Highway 44 on a curve to the
right, 515.31 feet to an iron pin on the westerly right-of-way of North Palmetto
Avenue, said curve having a central angle of 04°25'34", a radius of 6.671.05 feet, a
tangent of 257.81 feet, and a Iong chord of 515.23 feet which bears South 75'45'35"
East;
thence North 00°03'50" East, 297.64 feet along the westerly right -of --way of said North
Palmetto Avenue to an iron Pin:
thence South 89°56'10" East along said right -of -Way 10.00 feet to an iron pin;
thence North 00°03'50" East 67.98 feet to the REAL POINT OF BEGINNING.
Joh No. 97-488 t'a�e • I of 2
Apnl 14- 1998
i%AWP5 tx97-&MP2.L 6C
Said parcel contains a calculated area of 244, 293 square feet.
Saving and excepting the following:
Beginning at the South 1/< Corner of Section 9, T.4N., R.1E., B.M., Ada County, Idaho;
thence North 00°03'50" East, 922.19 feet along the North-South center section line to a %
inch iron pin on the northerly right-of-way of State Highway 44; thence 375.02 feet along a
curve to the left to an iron pin, said curve having a central angle of 03°13'15", a tangent of
18756 feet, a radius of 6,671.05 feet, and a Iong chord of 374.97 feet which bears North
74'46'50" West; thence North 00009'20" West, 54.29 feet to a point (record North 00°00'00"
East); thence North 89'4733" West, 6.03 feet (record South 90°00'00" West) to the REAL
POINT OF BEGINNING.
thence North 89°5To0" West, 62.62 feet to a point, (record South 89°50'40" West);
thence North 00°03'00" East, 104.60 feet to a point, (record North 00°09'20" West);
thence South 89°5 T 00" East, 62.62 feet to a point, (record North 89050'40" East);
thence South 00°03'00" West, 104.60 feet to the point of beginning, (record South
00'09'20" East);
Containing a calculated area of 6,550 square feet
Saving and accepting easements of record or in use.
Said parcel 2 comprises an adjusted calcu
Subject to easements of record or in use.
Job M% 91.386
April 13. 1998
AA*# P.L197-4"P2.Lc%
quare feet.
j PARCEL
8egir'.ninq at a railroad spike marking the'Northwest corner of the said
SIW 1/4 of SatZion 9;
thence North 88°58'02" -East 2,654.24 feet along the Northerly boundary of
the said Sit 1/4 of Section 9 to a brass cap marking the Northeast corner of
the said SW 114 of Section 9;
thence South 0°01'20" west 1,716.74 feet along the Easterly boundary of
the said Si: 1/4 of Section 9 to an iron pin marking a point of beginning of
curve'an the northerly right -of lav Line of State Highway NO. 44;
thence Northwesterly along the said Northerly right-af-way.lire of State
Highway No. 44 along a curve to the Left 560.39 feet, said curve having a
cantral angle of 4448'47" a radius of 6,6T1.05 feet, tangents of 290.36 feat
.and a Long chord of S60.Z3 feet bearing North 75°47142" west to a point on
crave, also said point being the RFAL POINT of 3EGZWLVG;
thence cancinuinq Northwesterly along• the said Northerly ri;ht-e:-way
line of State Highway No. 44 along a crave to the left•L39.33 feet, said curve
craving a central. angle of 1°11'48" a radius of 6,671.05 feet, tangents of
69.57 feet and a long chord of 139.33 feet bearing North 78047'59" west to an
iron pin marking a point of ending of curve, which is also a point of beg,«ening
of curve;
thence northeasterly along a curve' to 'the left 35.IZ `eet, said curve
having a central angle of 100°36107", a radius of 20.00 fe-t, tangents of
24.09 fe_c and a long chord of 30.78 feet bearing hhorth 50°18'04" East to an
iron pin marking a point of tangent;
thence north 0°00100" East I40.ZZ feet to an iron pin;
hence South 90°00'00" west 145.00 feet to an iron pin marking a ?cizc on
the Easterly right-of-way Line of Stiernan way;
r_ -thence :forth 0°00'00" East 71.40 feet along the said Easter)
crit -of -Mt of Stieraan Wav to an icon pin marking a point of curve;
thence Mcrtirwestarly along the said Easterly right-a:-wav l«'re of Suerman
wav along a curve to the left 54.18 feet, said curve having a cincral angle of
15100100", a radius of Z10.00 feet, tangents of ZT.65 feet and a long chord of
54.3Z feet beavLaq Ncrti 72:0100" west to an iron pin, marking
a point of
tangent;
thence North 15°00'00" west 4,78.83 feet along the said _aster!_.- right-
of-vay line of Sterman Way to an iron pin marking a point of curre; •
thence northwesterly along the said Easterly right-afwav line o: Stierman
way along a curve to the left 45.54 feet, said curve having a cent:aL angle of
L1°ZZ150", a radius of 230.00 feet, tangents of ZZ.9Z feet and a long chord of
45.61 feet bearing :forth, Z0°4l'Z5" west to an iron pin marking the Scut!%uesterly
carne: of Lzc L of 3lock I of Eagle Village Subdivision, as filed for record
in the of:ice of the Ada County aecorder, 3aise, Idaho in Sock 40 of Plats at
pages 3304 and 3305;
thence `forth 61°321Z0" East 30.50 =eat (formerly described as 30.02 feet)
along the Southerly boundary of the said Zagle village Subdivision to a point;
thence South 84°23' S0" cast ZOL.19 feet along the said Southerly boundary
of the Zagla Village Subdivision to a point.-
thence
oint;thence north 39°53' S5" East 161.27 feet along the said Southerly boundary
Of the Eagle 7iLage Subdivision to a point;
thence South 0°00100" west 305.00 feet to a point;
thence South 90°00'00" west 15.00 feet to a point;
:.hence South 0°00'00" west 314.97 feet to the point of beginninq, com-
prising 3.7_3 acres, more or less,
PARCEL 4
A parcel of land being a portion of tlae• !;W 1/4 of
R.IE., B.H., Eagle, Ada County, Idaho and a„tr,. Section
follows: particularly described as,
Beginning at a railroad spike- marking the NortllweSL corner of the said SW
1/4 of Section 9;
thence Norch 88°58'02" East 2,654.24 fret alon
the said SW 1/4 of Section 9 to a brass ralt markingthe Northerly boundary of
the said SW 1/4 of Section 9; the IJ�rtheast corner of
thence South 0°01'20" West 1,716.74 fre•L along the Easterly boundary of
the rightjid SW 114 o
af-way line Of State Highway f Section 9 Lo 1Ho. 144• of l,eninning of curve on the Northerly
thence Northwesterly along the said Nurilte•rly right -of -Way line of State
Highway No. 44 along a curve to the left 607.12 feet, said curve having a
•central angle of 6°00'35", a radius of 6,671.05 fe•e•L, tangents of 350.18 feet
and a long chord of 699.40 feet bearing North 76023'35." West to a point of
ending of curve, also said point being the REAL. POINT 4F BEGINNING;
thence continuing Northwesterly along the• said Hartherly right-of-way
line of State Iiighway No. 44 along a curve Lo Lite- left 126.59 feet, said curve
having a central angle of 1°05'14", a radius of 6,671.05 feet, tangents of
63.30 feet and a long chord of 126.59 feet hearing North 79*56'30" West to a
Point of reverse curve;
thence continuing Northwesterly along cite Fns Lrrly right-of-way line of
Stierman Way along a curve to the right 28.09 fea•L, said curve having a cen-
tral angle of 80°29'07", a radius of 20.00 feet, Langeents of 16.93 feet and a
long chord of 25.84 fret bearing North 40014133" ti+e•sL to a point of Langent;
thence North 0°00'00" East 118.05 fret along the said r".asterly right-of-
way line of Sherman Way Lo a point;
Lhenee North 90°00'00" East 165.00 feet, tet :a 3toint;
thence South 0'00'00" West 140.2 fret aloetg a 1 it:c Easterly of and
parallel With Lhe said Easterly right, -of -way line of Stierman Way to a point
of beginning of curve;
thence: Southwesterly along a curve to the right 35.12 feet said curve
having a eeatral angle of 100°36'07",• a "Illus of 20.00 feet, tangents of
24.09 feet and a long chord of ;10.78 fret he•-tring SOeeLll 50018'04" '.lest to the _
point of beginning, comprising 0.56I acre (24,449.29 square feet), more or
less.
1 -U -B ENGINEERS, Inc. 150 Scum 8".ftMoa Avenue. Stylet _
ease. Nano 83709
Project: 8349-04 PA►RL $
Date: July 30, 1982
DESCRIPTION FOR
WAY STATION PIZZA BUILDING PAD
EAGLE VILLAGE CENTER - OPPENHEIMER PROPERTY
A PORTION OF THE SW 1/4, SECTION 9,
T.4N., R.lE., B.M.,
EAGLE, ADA COUNTY, IDAHO
A parcel of -land being a portion of the SW 1/4 of Section 9, T.4N.,
R.lE., B.M., Eagle, Ada County, Idaho and more particularly described as
follows:
Beginning at a brass cap marking the Northwest corner of the said SW 1/4
of Section 9;
thence North 88058102" East 2,654.24 feet along the Northerly boundary of
the said SW 1/4 of Section 9 to a brass cap marking the Northeast corner of
the said SW 1/4 of Section 9;
thence South 0001120" West 1,716.74 feet along the Easterly boundary of
the said SW 1/4 of Section 9 to an iron pin marking a point of beginning of
curve on the Northerly right-of-way line of State Highway No. 44; • .
thence Northwesterly along the said Northerly right-of-way line of State
Highway No. 44 along a curve to the left 375.95 feet, said curve having a cen-
tral angle of 311314411, a radius of 6,671.05 feet, tangents of 188.02 feet and
a long chord of 375.90 feet bearing North 75000111" West to an iron pin marking
a point of ending of curve;
thence North 0000'001, East 54.29 feet to a point;
thence South 9000010011 West 6.03 feet to a point, also said point being
the REAL POINT OF BEGINNING;
thence South 8905014011 West 62.62 feet to a point;
thence North 0°09120" West 104.60 feet to a point;
thence North 8905014011 East 62.62 feet to a point;'
thence South 0°09120" East 104.60 feet to the point of beginning, compris-
ing 0.1504 acre (6,551 square feet), more or less.
JRS/DWS/GLR/GLR:dm
Prepared by:
J -U -B ENGINEERS, INC.