HomeMy WebLinkAboutEagle Rock amended dev agmtRecording requested by:
City of Caldwell
Planning and Zoning Dept.
P.O. Box 1179
Caldwell, Idaho 83606
R34139, R34121, R34122, R34125, R34123010, R34127, R34156, and R34126 _____________________________________________________________________
For Recording Purposes Do
Not Write Above This Line
Amendment to Development Agreement
This Amendment to a Development Agreement is made and entered into this _____day of April, 2010, by and between the City of Caldwell, a municipal corporation in the State of Idaho (“City”),
by and through its Mayor, and Kay Yamamoto (Owner/Applicant/Developer), Yamamoto Farms, Inc. (Owner/Applicant/Developer), Victor Yamamoto (Owner/Applicant/Developer), Frances Yamamoto
(Owner/Applicant/Developer), Eagle Rock Partners, LLC (Owner/Applicant/Developer) and Sontag, Inc. (Owner/Applicant/Developer);
WHEREAS, the Owner/Applicant/Developer holds title to certain real estate (“Property”) located in the City and more particularly described as follows:
See Exhibit “A”, a legal description, attached hereto and incorporated herein by this reference; and
WHEREAS, Property is identified as R34139, R34121, R34122, R34125, R34123010, R34127, R34156, and R34126 as tax parcel numbers for Canyon County; and
WHEREAS, development of the Property will be as an R-1 (Low Density Residential) development; and
WHEREAS, the Property is currently zoned R-1 (Low Density Residential) in the City; and
WHEREAS, it is the intent of this Amendment to protect the rights of the Owner/Applicant/Developers’ use and enjoyment of the Property, while at the same time limiting any adverse impacts
resulting from this Amendment upon neighboring properties and the community and ensuring that any development of the Property is in a manner consistent with the City’s Comprehensive
Plan and City Code; and
WHEREAS, the City and Owner/Applicant/Developer desire to set forth herein limitations and/or conditions upon the use and development of the Property; and
WHEREAS, all capitalized terms in this Amendment not herein defined shall have those meanings designated in the City Code, the City Zoning Ordinance and the City Comprehensive Plan;
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, Owner/Applicant and Developer and the City agree as follows:
ARTICLE I
LEGAL AUTHORITY
1.1 An executed Development Agreement (“Executed Agreement”) recorded December 19, 2006 as Instrument No. 2006099937 provides for amendments to said Development Agreement as approved
by City Council following the amendment process outlined in said Development Agreement.
ARTICLE II
CONDITIONS OF THE AMENDMENT
2.1 The location and dimensions of the open space areas for Eagle Rock Subdivision shall be as depicted on attached Exhibit B (two pages).
2.2 A ten- to twelve-foot high landscaped berm shall be constructed the entire length of the Eagle Rock Subdivision’s westerly boundary for the portion of the project on the east side
of the tracks. Said berm shall be constructed on the boundary line as depicted on said attached Exhibit A. A ten- to twelve-foot high landscaped berm shall be constructed along the
eastern boundary of the three residential lots located in the southeast corner of the northwest parcel of Eagle Rock Subdivision. Said berm shall be located within a fifty-foot wide
landscape easement measured from the eastern property line of said three residential lots and going west a distance of fifty feet, all as depicted on said attached Exhibit B.
2.3 An eight-foot (8’) tall chain link fence shall be constructed on the Eagle Rock Subdivision property along the entire boundary of the Eagle Rock Subdivision where it abuts the Town
Ranch property on the west side of the tracks as depicted on said attached Exhibit A so that said fencing is in place between all of the Town Ranch property and the subdivision’s property,
including the City well lot. On the east side of the tracks an eight-foot tall chain link fence shall be constructed along the entire westerly boundary line of the subdivision from
the northern-most point south to Highway 20/26 as depicted on said attached Exhibit A so that said fencing is in place between all of the properties on the westerly boundary of the
subdivision and the subdivision property itself.
2.4 The disclosure attached to this Amendment as attached Exhibit C (three pages) shall be included in any CC&Rs that are recorded against the Property
2.5 All conditions and stipulations in said Executed Agreement are valid and binding upon the Property referenced in said Executed Agreement, unless specifically stated otherwise in
this Amendment.
ARTICLE III
AFFIDAVIT OF PROPERTY OWNERS
3.1 An affidavit of the Owners of the Property agreeing to submit the Property to this Amendment and to the provisions set forth in Idaho Code Section 67-6511A is incorporated herein
by reference.
ARTICLE IV
DEFAULT
4.1 Upon a breach of this Amendment, either of the parties in any court of competent jurisdiction, by action or proceeding at law or in equity, may secure the specific performance of
the covenants and agreements herein contained, may be awarded damages for failure of performance of both, or may obtain rescission, disconnection, and damages for repudiation or material
failure of performance. Before any failure of any party to this Amendment to perform such party’s obligations under this Amendment, the party claiming such failure shall notify, in
writing, the party alleged to have failed to perform of the alleged failure and shall demand performance. No breach of this Amendment may be found to have occurred if performance has
commenced to the complete and full satisfaction of the complaining party within thirty (30) days of the receipt of such written notice.
4.2 The parties hereto may, in law or in equity, by suit, action, mandamus or any other proceeding, including, without limitation, specific performance, enforce or compel the performance
of this Amendment; provided, however, that Owner/Applicant/Developer agrees that it will not seek, and does not have the right to seek, to recover a judgment for monetary damages against
City or any elected or appointed officials, officers, employees, agents, representatives, or attorneys on account of the negotiation, execution or breach of any of the terms and conditions
of this Amendment. In the event of a judicial proceeding brought by any party to this Amendment against the other party for enforcement or for breach of any provision of this Amendment,
the prevailing party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful party of all costs and expenses, including reasonable attorneys’ fees incurred
in connection with such judicial proceeding.
4.3 In the event of a material breach of this Amendment, the parties agree that each shall have thirty (30) days after delivery of notice of said breach to correct the same prior to
the non-breaching party’s seeking the remedies provided herein; provided, however, that in the case of any such default which cannot with diligence be cured within said thirty (30) day
period, if the defaulting party shall commence to cure the same within such thirty (30) day period and thereafter shall prosecute the curing of same with diligence and continuity, the
time within which such failure may be cured shall be extended for such period as may be necessary to complete the curing of the same with diligence and continuity.
ARTICLE V
UNENFORCEABLE PROVISIONS
5.1 If any provision of this Amendment or the application of any provision of this Amendment to a particular situation is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, such provision shall be disregarded and this Amendment shall continue in effect. However, if such provision is not severable from the balance of the Amendment so that
the mutually dependent rights and obligations of the parties remain materially unaffected, this Amendment shall become void unless the portion of this instrument determined to be invalid
or unenforceable is re-negotiated in good faith between the Owner/Applicant/Developer and the City as an amendment to the Amendment to the Development Agreement processed in accordance
with the notice and hearing provisions of Idaho Code Section 67-6509.
ARTICLE VI
ASSIGNMENT AND TRANSFER
6.1 After its execution, the Amendment shall be recorded in the Office of the County Recorder by the City Clerk.
6.2 Each commitment and the restrictions on the development shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property and shall run with the land.
6.3 This Amendment shall be binding on the Owner/Applicant/Developer, and his/her/their respective heirs, administrators, executors, agents, legal representatives, successors, and/or
assigns; provided, however, that if all or any portion of the development is sold, the sellers shall thereupon be released and discharged from any and all obligations in connection
with the Property sold arising under this Amendment, and such obligations shall be automatically adopted by the buyer of the same.
6.4 The new owner of the Property or any portion thereof (including, without limitation, any owner who acquires its interest by foreclosure, trustee’s sale or otherwise) shall be liable
for all commitments and other obligations arising under this Amendment with respect to the Property or portion thereof.
ARTICLE VII
GENERAL MATTERS
7.1 Amendments. Any alteration or change to this Amendment shall be made only after complying with the notice and hearing provisions of the Idaho Code Section 67-6509.
7.2 Paragraph Headings. This Amendment shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience only and
shall not constitute a portion of this Amendment. As used in this Amendment, masculine, feminine, or neutral gender and the singular or plural number shall each be deemed to include
the others wherever and whenever the context so dictates.
7.3 Choice of Law. This Amendment shall be construed in accordance with the laws of the State of Idaho in effect at the time of the execution of this Amendment. Any action brought
in connection with this Amendment shall be brought in a court of competent jurisdiction located in Canyon County, Idaho.
7.4 Notices. Any notice which a party may desire to give to another party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail,
return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery service to the party to whom the notice is directed at the address of such party
set forth below:
Caldwell: City of Caldwell
Planning and Zoning Department
P.O. Box 1179
Caldwell, ID 83606
Owner/Applicant/Developer: Kay Yamamoto
20294 Midland Blvd.
Caldwell, ID 83605
Yamamoto Farms, Inc.
20294 Midland Blvd.
Caldwell, ID 83605
Victor Yamamoto
8801 Joplin Rd.
Caldwell, ID 83605
Frances Yamamoto
20294 Midland Blvd.
Caldwell, ID 83605
Owner/Aplicant/Developer: Sontag, Inc.
9650 Gateway Dr., Ste. 203
Reno, NV 89521
Eagle Rock Partners, LLC
9650 Gateway Dr., Ste. 203
Reno, NV 89521
Or such other addresses and to such other persons as the parties may hereafter designate. Any such notice shall be deemed given upon receipt if by personal delivery, forty-eight (48)
hours after deposit in the United States mail, if sent by mail pursuant to the foregoing, or twenty-four (24) hours after timely deposit with a reputable overnight delivery service.
7.5 Merger and Integration. This writing embodies the whole Amendment. There are no promises, terms, conditions, or obligations other than those contained in this Amendment. All previous
and contemporaneous communications, representation, or agreements, either verbal or written, between City and Owner/Applicant/Developer are superseded by this Amendment.
7.6 Third party Beneficiaries. Nothing contained herein shall create any relationship, contractual or otherwise, with, or any rights in favor of, any third party.
7.7 Changes in State and Federal Law. This Amendment shall not preclude the application of changes in state or federal laws or regulations to the Property. In the event such law prevents
or precludes compliance with one or more provisions of this Amendment, City and Owner/Applicant/Developer shall meet and confer to determine how provisions of this Amendment would need
to be modified or suspended in order to comply with the law and shall prepare and process the necessary amendment(s) to this Amendment.
7.8 Effective Date. This Amendment shall be effective upon the date of recordation. The City shall deliver to each of the parties hereto a recorded and fully executed copied original
of this Amendment.
IN WITNESS WEREOF, the parties have executed this Amendment.
DATED this ____ day of _________________, 2010
CALDWELL:
CITY OF CALDWELL, a municipal corporation organized and existing under the laws of the State of Idaho
By:_________________________, Mayor
ATTEST:
_____________________________, City Clerk
DATED this ____ day of _________________, 2010
STATE OF IDAHO )
: ss.
County of Canyon )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared Garret L. Nancolas, known or identified to me to be
the Mayor of the City of Caldwell and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that said City executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for Idaho
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Yamamoto Farms, Inc.
By:
Its:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared known or identified to me to be the Owner/Applicant/Developer
referenced herein and the person authorized to execute the foregoing instrument on behalf of Yamamoto Farms Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Kay Yamamoto
By:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared Kay Yamamoto known or identified to me to be the Owner/Applicant/Dev
eloper referenced herein and the person authorized to execute the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Victor Yamamoto
By:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared Victor Yamamoto known or identified to me to be the
Owner/Applicant/Developer referenced herein and the person authorized to execute the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Sontag, Inc.
By:
Its:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared known or identified to me to be the Owner/Applicant/Developer
referenced herein and the person authorized to execute the foregoing instrument on behalf of Sontag, Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Eagle Rock Partners, LLC
By:
Its:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared known or identified to me to be the Owner/Applicant/Developer
referenced herein and the person authorized to execute the foregoing instrument on behalf of Eagle Rock Partners, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________
OWNER/APPLICANT/DEVELOPER:
Frances Yamamoto
By:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2010, before the undersigned notary public in and for the said state, personally appeared Frances Yamamoto known or identified to me to be the
Owner/Applicant/Developer referenced herein and the person authorized to execute the foregoing instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year first above written.
____________________________________
Notary Public for _____________________
Residing at:__________________________
My Commission Expires:_______________