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HomeMy WebLinkAboutZON-01-14 Ashley ManorMay 19, 2014 Ashley Manor Development Agreement Case No. ZON-01-14 (0.26 Acres) Recording requested by: City of Caldwell Planning & Zoning Department P.O. Box 1177 Caldwell, Idaho 83605 ________________________________________________________________________ For Recording Purposes Do Not Write Above This Line Development Agreement Ashley Manor IDA Properties, LLC This Development Agreement made and entered into this ____ day of __ _____, 2014, by and between the City of Caldwell, a municipal corporation in the State of Idaho (“Caldwell”), by and through its Mayor, and Ida Properties, LLC (“Applicant”). WHEREAS, the Applicant is the owners of record of certain real estate (The Subject Property) located in the City’s area of impact and contiguous to the City of Caldwell and more particularly described as follows: See Exhibit “A”, a legal description, attached hereto and incorporated herein by this reference; and WHEREAS, the Property is the subject of an application for rezone identified as Case Number ZON-01-14; and WHEREAS, the property is currently zoned by the City of Caldwell as R-1 Single-Family Residential; and WHEREAS, the property is currently classified as Low Density Residential on the Caldwell Comprehensive Plan Map; and WHEREAS, the property is proposed to be rezoned to R-2 Medium Density Residential; and WHEREAS, the property is proposed to be classified as Medium Density Residential on the Comprehensive Plan Map; and WHEREAS, it is the intent of this Development Agreement to protect the rights of the Applicant’s use and enjoyment of the Property, while at the same time limiting any adverse impacts resulting from the rezone and development of this property upon neighboring properties and the community and ensuring the property is developed in a manner consistent with Caldwell’s Comprehensive Plan and City Code; and WHEREAS, Caldwell and Applicant desires to set forth herein limitations and/or conditions upon the use and development of the Property; and WHEREAS, all capitalized terms in this Development Agreement not herein defined shall have those meanings designated in the Caldwell City code, the Caldwell Zoning Ordinance, and the Caldwell Comprehensive Plan; WHEREAS, the rezone is subject to a development agreement; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, Applicant and Caldwell agree as follows: ARTICLE I LEGAL AUTHORITY 1.1 Caldwell will adopt an ordinance to rezone the Property subject to the provisions of this Development Agreement and provided the Applicants are the owners of the Property. This Development Agreement shall be signed before an affirmative Order of Decision by the Mayor and City Council permitting the rezone will be signed into effect by the Mayor. The ordinance will become effective after its passage, approval, and publication. ARTICLE II CONDITIONS OF THE REZONE 2.1 The Property shall be utilized in the fashion and according to the terms set forth in the development application ZON-01-14 to include the following conditions: All future development applications for the subject property must meet all requirements of the Caldwell City code in effect at the time of application. If the City of Caldwell has established a design review process at the time of submittal of development application(s) for the subject property, the applicants will be required to go through the design review process. In the event the property’s legal description is discovered to be in error, the applicants will be responsible for assuming the measures necessary to provide the City with an accurate legal description. Planned and future development shall be consistent with the City of Caldwell Comprehensive Plan. Any flexibility granted shall be consistent with the interests of the City of Caldwell and in substantial compliance with said Plan. The entire development shall be subject to the laws and requirements of State and City Code. The assisted living facility is approved for up to 13 beds. As a material part of this Development Agreement, the Parties acknowledge that the rezoning of the property to R-2 Medium Density Residential is for the sole purpose of allowing an assisted living facility for up to 13 beds and not for the purpose of constructing, using or engaging in any land use associated with R-2 Medium Density Residential zoning. Any permitted uses in the R-2 Medium Density Zone, other than a single family dwelling and open space, shall be required to obtain a special use permit. At such time that the Caldwell Zoning Ordinance is amended to allow this use in the R-1 zone with a special use permit that this zoning classification (R-2) through a public hearing process will go back to R-1 at no cost to the applicant. The above development agreement conditions are in addition to the regulations provided for in the zoning district. ARTICLE III AFFIDAVIT OF PROPERTY OWNERS 3.1 An affidavit of the owners of the Property agreeing to submit the Property to this Development Agreement and to the provisions set forth in Idaho Code Section 67-6511A is incorporated herein by reference. ARTICLE IV DEFAULT 4.1 In the event the Applicant fails to comply with the commitments set forth herein, within sixty (60) days of written notice of such failure from Caldwell, Caldwell shall have the right, without prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement. 4.2 If required to proceed in a court of law or equity to enforce any provision of this Development Agreement, the prevailing party shall be entitled to recover all direct out-of-pocket costs so incurred to cure or enjoin such default and to enforce the commitments contained in this Development Agreement, including attorneys’ fees and court costs as the Court shall determine. ARTICLE V UNENFORCABLE PROVISIONS 5.1 If any term, provision, commitment, or restriction of this Development Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument shall terminate and the zoning of the property shall revert to the city of Caldwell’s original land designations as set forth in the Comprehensive Plan Map, unless the portion of this instrument determined to be invalid or unenforceable is re-negotiated in good faith between the applicant (or other appropriate party) and Caldwell as an amendment to the Development 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 Development Agreement shall be recorded in the office of the County Recorder at the expense of the Applicants. 6.2 Each commitment and the restriction on the development shall be a burden on the Property, shall be appurtenant to and for the benefit of the Property, adjacent property, and other residential property near the Property and shall run with the land. 6.3 This Development Agreement shall be binding on the Applicants and owners, and their respective heirs, administrators, executors, agents, legal representatives, successors, and assigns; provided, however, that if all or any portion of the development is sold, the sellers shall thereupon be released and discharged from any and all obligations in connection with the property sold arising under this Agreement, 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 Agreement with respect to the Property or portion thereof. ARTICLE VII GENERAL MATTERS 7.1 Amendments. Any alteration or change to this Development Agreement shall be made only after complying with the notice and hearing provisions of the Idaho Code Section 67-6509. 7.2 Paragraph Headings. This Development Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. Titles and captions are for convenience only and shall not constitute a portion of this Development Agreement. As used in this Development Agreement, masculine, feminine, or 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 Development Agreement shall be construed in accordance with the laws of the State of Idaho in effect at the time of the execution of this Development Agreement. Any action brought in connection with this Development Agreement shall be brought in a court of competent jurisdiction located in 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 deliver, by mailing the same by registered or certified mail, return receipt requested postage repaid, 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: Caldwell Planning & Zoning Department P.O. Box 1177 Caldwell, Idaho 83605 Phone: 455-3021 Fax: 455-3050 Owners: Ida Properties, LLC P.O. Box 1176 Meridian, Idaho 83680 Phone: (208) 376-7298 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 send by mail pursuant to the foregoing, or twenty-four (24) hours after timely deposit with a reputable overnight delivery service. 7.5 Effective Date. This Development Agreement shall be effective after delivery to each of the parties hereto of a fully executed original of this Development Agreement. IN WITNESS WEREOF, the parties have executed this Development Agreement. DATED this ____ day of _________________, 20__ 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 _________________, 20__ STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 20__, before the undersigned notary public in and for the said state, personally appeared Garret L. Nancolas, known or identified to me to b 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:_______________ APPLICANT: Ida Properties, LLC By:__________________________ By:__________________________ STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 20__, before the undersigned notary public in and for the said state, personally appeared ____________________ , known or identified to me to be the property owner referenced herein and the person who executed the foregoing instrument on behalf of Ida Properties, LLC. 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:_______________