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HomeMy WebLinkAboutEnochs amendment CC ODRecording requested by: City of Caldwell Planning and Zoning Dept. P.O. Box 1179 Caldwell, Idaho 83606 ________________________________________________________________________ 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 22nd day of September, 2008, by and between the City of Caldwell, a municipal corporation in the State of Idaho (“City”), by and through its Mayor, and Schuyler Enochs, as Trustee of The Schuyler and Lou Ann Enochs Family Trust (“Owner/Applicant/Developer”) and Brett Bauscher (“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, the Property is identified as R35756 and R3575601 as a tax parcel number for Canyon County; and WHEREAS, development of the Property will be as a C-2 (Community Commercial) development; and WHEREAS, the Property is currently zoned C-2 (Community Commercial) in the City; and WHEREAS, it is the intent of this Amendment to protect the rights of the Owner/Applicant/Developer’s 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/Developer and the City agree as follows: ARTICLE I LEGAL AUTHORITY 1.1 An executed Development Agreement dated May 15, 2000 provides for amendments to said Development Agreement as approved by City Council following the amendment process outlined in said Development Agreement. This Amendment shall be signed and delivered to the Caldwell Planning and Zoning Department within 20 days of the approving City Council public hearing, and prior to the Mayor’s signing of the affirmative Order of Decision, or the application requesting an amendment shall become null and void. ARTICLE II CONDITIONS OF THE AMENDMENT 2.1 Item E(1)(B) shall be deleted in its entirety from the executed Development Agreement dated May 15, 2000 (see Exhibit “B”) and hereinafter referred to as Executed Agreement. 2.2 Item E(3)(A) from said Executed Agreement shall be changed to read as follows: “The Property shall have two full vehicular accesses. One full access shall be the existing full access from South 10th Avenue that currently provides access to Canyon Small Animal Hospital addressed as 4023 South 10th Avenue. The second full access shall be from Brian Avenue. In addition to these said two full accesses, there shall be one right-in/right-out-only access from South 10th Avenue at a location that meets all City spacing requirements and standards and one emergency-vehicle-access-only from Brian Avenue located at the north end of the Property which shall meet all City spacing requirements and standards. No other vehicular accesses shall be allowed on the Property unless otherwise approved by City Council after amending this Amendment following the public hearing process as outlined in Section 10-03-03 of City Code. a. Truck service and/or truck delivery vehicles are prohibited from using the access on Brian Avenue. Appropriate signage indicating such prohibitions shall be placed at the Brian Avenue approach. b. A cross-access easement shall be provided across the entire subject property which includes the Canyon Small Animal Hospital. c. The emergency only access at the north end of Brian Avenue shall be provided with a fire-department approved breakable only. Said emergency only access shall only be utilized by City emergency personnel and no one else. Appropriate signage indicating such prohibitions shall be placed at the said access. d. All conditions of approval as noted in the Order of Decision for Case No. SUB-192P-08 shall be met. 2.3 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. 2.4 All development of the Property shall be in compliance with all City Codes, state and federal regulations that are in effect upon the date of any application submittal. In the event of inconsistencies, the strictest condition shall apply. 2.5 All items listed in the Order of Decision under Item 2.5.3 under Engineering Department comments shall be accomplished, installed and constructed for each applicable phase prior to submittal of any final plat applications (unless a letter of credit has been submitted and approved by the Engineering Department for said item(s)). 2.6 A revised landscaping plan shall be submitted to the Planning and Zoning Department showing all the required landscaping along Ustick Road, South 10th Avenue and Brian Avenue as noted in Item 2.5.4 of the Order of Decision. Fencing shall be prohibited along the east boundary of the Property. Said revised plan shall be approved by the Planning and Zoning Department and the landscaping on said plan shall be installed, by phase, prior to submittal of any final plat application for the applicable phase. (Except that where weather makes installation impossible, a letter of credit shall be established for the landscaping and the Planning and Zoning Department shall determine an appropriate deadline for installation of said landscaping. In no case shall any permanent certificate of occupancy be issued prior to installation of all landscaping, as inspected and approved by the Planning and Zoning Department.) 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: Schuyler R. Enochs, as Trustee of The Schuyler & Lou Ann Enochs Family Trust 18785 Weitz Rd. Caldwell, ID 83607 Brett Bauscher 3001 Ray Caldwell, ID 83605 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 _________________, 2008 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 _________________, 2008 STATE OF IDAHO ) : ss. County of Canyon ) On this ____ day of __________________, 2008, 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: The Schuyler & Lou Ann Enochs Family Trust By: Schuyler R. Enochs Its: Trustee STATE OF _________________ ) : ss. County of __________________ ) On this ____ day of __________________, 2008, before the undersigned notary public in and for the said state, personally appeared Schuyler R. Enochs, trustee of the Schuyler and Lou Ann Enochs Family Trust U/T/A dated September 18, 1986 (incorrectly referred to as “The Schuyler & Low Ann Enochs Family Trust in Instrument No. 9225647 recorded in the Canyon County Recorder’s Office on November 12, 1992), known or identified to me to be the Trustee of the Owner/Applicant/Developer referenced herein and the person who executed the foregoing instrument on behalf of The Schuyler and Lou Ann Enochs Family Trust. 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: Brett Bauscher By: ______________________________ STATE OF _________________ ) : ss. County of __________________ ) On this ____ day of __________________, 2008, before the undersigned notary public in and for the said state, personally appeared Brett Bauscher, known or identified to me to be the Owner/Applicant/Developer referenced herein and the person who executed 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:_______________