HomeMy WebLinkAboutCastle Peak #3 amended Dev AgmtRecording requested by:
City of Caldwell
Planning and Zoning Dept.
P.O. Box 1179
Caldwell, Idaho 83606
R3433901000
_____________________________________________________________________
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 ___________________, 201___, by and between the City of Caldwell, a municipal corporation in the
State of Idaho (“City”), by and through its Mayor, and Parkland Development LLC (Applicant);
WHEREAS, the Applicant 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 R3433901000 as tax parcel number for Canyon County; and
WHEREAS, the Property is the subject of an application for rezone identified as Case Number ZON-92-13; and
WHEREAS, the property is currently zoned by the City of Caldwell as R-1 Single-Family Residential and C-1 Neighborhood Commercial; and
WHEREAS, the property is currently classified as Low Density Residential and Commercial 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 An executed Development Agreement (“Executed Agreement”) recorded as Instrument No. 200510496 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 Item No. 2.1, LL in said aforementioned Executed Agreement shall be deleted in its entirety and shall be replaced with the following: “The Parties acknowledge that the rezoning of
the property to R-2 Medium Density Residential is for the sole purpose of lot size adjustments and not for the purpose of constructing, using or engaging in any land use associated
with R-2 Medium Density Residential zoning. The applicant intends to construct and allow others to construct single-family residential dwellings on the lots within Castle Peak Subdivision
#3. Any permitted uses in the R-2 Medium Density Zone, other than for a single family dwelling and open space, shall be required to obtain a special use permit.”
2.2 Item No. 2.1, MM in said aforementioned Executed Agreement shall be deleted in its entirety and shall be replaced with the following: “The applicant shall construct an 8-foot wide
paved pathway along the Noble Drain with 5 feet of landscaping on either side for a total of 18 feet. The pathway and landscaping shall be placed within a common lot. The pathway
and landscaping shall extend the entire length of the subject property along the south side of the Noble Drain. The applicant has the choice to either: construct the entire pathway
with the first phase of the development; OR construct approximately the west
half of the pathway with the first phase of development and construct the remaining east half of the pathway in conjunction with the second phase of development.”
2.3 Item No 2.1 NN shall be added to said aforementioned Executed Agreement and shall read as follows: “The applicant shall construct a pedestrian bridge across the Noble Drain to provide
pedestrian access to Castle Peak Subdivision #2 and Castle Peak Subdivision #3. The pedestrian bridge shall be located approximately midway between Smiley Peak Avenue and Santa Anna
Avenue, more or less in alignment with the common lot, Lot 12 Block 10 of Castle Peak Subdivision #2. The applicant shall provide a paved pathway to the pedestrian bridge from Colorful
Drive to the north to the required pathway on the south side of the Noble Drain. The pedestrian bridge shall be constructed prior to signatures on the final plat of phase 2 of Castle
Peak Subdivision No. 3.”
2.4 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 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 Amendment.
4.2 If required to proceed in a court of law or equity to enforce any provision of this Amendment, 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 Amendment, including attorneys’ fees and court costs as the Court shall determine.
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 Applicant, 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: Caldwell Planning & Zoning Department
P.O. Box 1177
Caldwell, Idaho 83605
Phone: 455-3021
Fax: 455-3050
Applicant: Parkland Development Inc.
Gregory B. Johnson
P.O. Box 344
Meridian, ID 83680
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 Applicant 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 _________________, 2014
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 _________________, 2014
STATE OF IDAHO )
: ss.
County of Canyon )
On this ____ day of __________________, 2014, 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:_______________
APPLICANT:
Parkland Development Inc.
By:
Its:
STATE OF _________________ )
: ss.
County of __________________ )
On this ____ day of __________________, 2013, before the undersigned notary public in and for the said state, personally appeared known or identified to me to be the Applicant
referenced herein and the person authorized to execute the foregoing instrument on behalf of Parkland Development 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:_______________