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HomeMy WebLinkAboutNullification Agreement with JLJ Enterprises and Bittercreek Meadows HOA for Bittercreek Meadows Sewer and Water UserF ADA COUNTY RECORDER Christopher D. Rfch AMOUNT .00 11 BOISE IDAHO 06/23/11 08:54 AM DEPUTY Vicki Allen RECORDED-REQUEST OF III IIIIIIIIIIIII IIIIIIIIIIIIIIIII III Meridian City 111050751 NULLIFICATION AGREEMENT THIS AGREEMENT is made and entered into this 16th day of June, 2011, by and between CITY QF MERIDIAN, a Municipal corporation of the State of Idaho, hereinafter referred to as "CITY", and JLJ ENTERPRISES INC. or assigns, as hereinafter defined, BITTERCREEK, LLC, or assigns, as hereinafter defined, and, the BITTERCREEK MEADQWS HQMEQWNERS ASSQCIATIQN, hereinafter referred to individually or collectively as "SEWER/WATER USER," Developer, ar HQA. City, $ittercreek LLC, HQA, and JLJ Enterprises, Inc. may hereinafter be collectively referred to as "Parties." 1, RECITALS: 1.1; WHEREAS, "JLJ Enterprises Inc. is the developer of certain tract of land in the County of Ada, State of Idaho, more particularly described as the amended plat of BITTERCREEI~ MEADQWS SUBDIVISIQN, according to the official plat thereof recorded on the 27th day of June, 2006 in Book 95 of plats at pages 11732 through 11735, as instrument No. 106102994, hereinafter referred to as the "Property"; and 1.2 WHEREAS, CITY QF MERIDIAN, a Municipal corporation of the State of Idaho, hereinafter referred to as "CITY", and JLJ ENTERPRISES INC. or assigns, as hereinafter defined, have previously engaged in Agreements to provide Sewer and Water Service to Bittercreek Meadows subdivision; and 1.3 WHEREAS the parties have engaged in three .(prior} agreements (1) the original Memorandum of Understanding between JLJ Enterprises, Inc. and the City of Meridian approved by the City of Meridian on or about Qctaber 4, 20U~. This agreement is only represented far historical purposes. This agreement was superseded by Agreement 2 and (2) the Amended Bittercreek Meadows Agreement for water and Sewer Service approved by the City of Meridian on ar about May 16, 2008. (3) The parties then finally entered into the Second Amended Bittercreek Meadows Agreement far Water and Sewer and Water Service approved by the City of Meridian on or about June 1, 2010. Bittercreek LLC and Bittercreek Meadows HQA were added to these latter agreements for the sale purpose of understanding their responsibilities under the agreements. 1,4 WHEREAS the Parties have now determined that it is in the mutual interests of all parties to dissolve all existing agreements and obligations and for all parties to proceed in another direction for sewer and water services. 2. DEFINITIONS: For all purposes of this agreement the following wards, terms, and phrases herein contained in this section shall be defined and interpreted as herein provided for, unless the clear context of the presentation of the same requires otherwise: NULLIFICATIQN AGREEMENT BETWEEN CITY QF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADQWS HQA -1 2.1 "Agreement 1"means the original Memorandum of Understanding between JLJ Enterprises, Inc. and the City of Meridian approved by the City of Meridian on or about t~ctober 4, 20x5. This agreement is only represented for historical purposes. This agreement was superseded by Agreement 2. 2,2 "Agreement 2" means the Amended Bittercreek Meadows Agreement for Water and Sewer Service approved by the City of Meridian an ar about May 16, 2008. This agreement. superseded Agreement 1. 2.3 "Agreement 3" means the Second Amended Bittercreek Meadows Agreement for Water and Sewer Service approved by the City of Meridian on ar about June 1, 2010. 2.4 "City": means and refers to the City of Meridian, County of Ada, State of Idaho. 2.5 "SewerlWater User": means and shall refer to JLJ Enterprises Inc, and/or the person who is the developer of the real property, and the current homeowners. 2.6 "Developer": means JLJ Enterprises, Inc. or its successors or assigns. 2.7 "Real Property": means and shall refer to the real property located in the County of Ada, as described in the Amended Plat of Bittercreek Meadows Subdivision as recorded in the land records of Ada County, Idaho at Book 95, Pages 11732 and 11733 and by this reference incorporated herein. 2.8 "Ordinance": means and shall refer to the City's ordinances that appertain to the regulation and control and use of its Sewer/Water system presently at Meridian City Code § 9-4-26 and 9-1-16, and this de~initian specifically includes any prospective amendments and/or recodificatians to said ordinance or any parts thereof, and shall also refer to any other ordinance of the City of Meridian governing the "Sewerlwater System". 2.9 `iPolicylRegulatio~s": means and shall refer to any City Council enacted policy and/ar regulation of its Sewer/Water system. 2.10 "Sewer/Water System": means and shall refer to the City's Sewer/Water system. NtJW THEREp'CJRE, inconsideration of the covenants and conditions set forth herein, the parties agree as follows: 3. INCORPORATION OF RECITALS: That the above recitals are contractual and binding and are incorporated herein as if set forth in full. NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOWS ~IOA - 2 4. PROVISIONS OF SEWER AND WATER LINES: 4.1. SEWER SERVICE In Agreement 2 the parties anticipated the construction of the pressure sewer line and water line extension to be completed jointly by December 31, 2009 and then ultimately extended to March 30, 2011. The parties now agree to dissolve all agreements and release all parties from the performance as described in Agreement 2. 4.2. WATER SERVICE In Agreement 2 the Developer was responsible to install a water main and accompanying water line extensions at Developer's sole cost in coordination with the City's sewer lift station and line extension project earlier noted within 12 months of approved and permitted plans but by no later than December 31, 2009 and then ultimately extended to June 30, 2011. The parties now agree to dissolve all agreements and release all parties from the performance as described in Agreement 2. 5. CONDITIONS FOR DISSOLUTION 5.1 The City shall rescind its acceptance of the drinking water well and well lot and revert the ownership of the well lot and well back to the Bittercreek Meadows Water ~ Sewer users Association, an Idaho non-profit corporation ("BWSA") by quitclaim deed free of any encumbrances. The City shall also transfer ownership of the water right associated with the well to BWSA at its own expense. tJnce the conveyance is recorded by the City of Meridian, then the operation and maintenance of the well and well lot shall become the sole responsibility of BWSA. BWSA and the H{JA will enter into a separate agreement for maintenance and operation of the existing water and sewer services. 5.2 The City shall rescind its acceptance of the lot designated for the lift station as contemplated by Agreement 2 and revert the ownership back to JLJ Enterprises by quitclaim deed free of any encumbrances created by the City. 5.3 The City shall remit to the current Bittercreek property owners all fees received by the City pursuant to Agreement 2 far water and sewer connections and meters in the amount of $50,183.00 according to Attachment A of this Agreement as consideration for the terms, conditions and releases set forth herein. 5.4 The City shall remit Four Hundred and Thirteen Thousand Three Hundred Forty Seven Dollars and fifty four cents x$413,347.54) to JLJ Enterprises as consideration for the terms, conditions and releases set forth herein. 5.5 All parties mutually release each other from any further obligation to build, construct, pay for, and/or maintain any sewer or water service line to the City of Meridian. NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOWS HOA - 3 S.6 The Consent to Annexation and all related documents previously recorded shall be released by the City of Meridian at its expense. 5.7 The City will transfer, release or reinstate any easement that was created or modified as part of any of the agreements referenced or recited herein to BWSA. 5.8 JLJ will modify the existing Covenants, Conditions and Restrictions of the HOA to remove any obligations running from the City to the real property. 6. RELEASE OF ALL CLAIMS, DUTIES OR REQUIREMENTS All parties agree to release all claims, real or imagined as contemplated by this Agreement and all prior agreements; and any and all duties ar requirements of any party as contemplated by the prior agreements 7. NOTICES: Any notice desired by the parties andlor required by this Agreement shall be deemed delivered if and. when personally delivered or three ~3~ days after deposit in the United States Mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY; City Clerk City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 PROPERTY OWNERS: JLJ Enterprises Inc. & Bittercreek, LLC and James L. Jewett 2U40 S Eagle Rd Meridian iD 83642 Bittercreek Meadows HOA President Meridian, Idaho 83642 with copy to: Public Works Director City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 8. ATTORNEY FEES: with copy to: Trout, Jones, Gledhill, Fuhrman, and Gourley P.A. Attn: Stephen J. Gledhill P.O. Box 197 Boise, ID 83701 Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be NULLIFICATION AGREEMENT BET'4'~EEN CITY OF tVIERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOWS HOA - 4 granted, to court casts and reasonable attorney's fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 9. TIME IS GF THE ESSENCE: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of and a default under this Agreement by the other party sa failing to perform. Any extension of any time lines maybe for by acts of God, war, delays beyond control of the City, delay caused by third parties andlor agencies. 10. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to the benepit of the parties' respective heirs, successors, assigns and personal representatives, including "City's" corporate authorities and their successors in office. This Agreement shall be binding on the owner of the property, each subsequent owner and each other person acquiring an interest in the Property. Nothing herein sha11 in any way prevent sale or alienation of the Property, or portions thereof, except that any sale ar alienation shall be subject to the provisions hereof and any successor owner or owners shall be both benefited and bound by the conditions and restrictions herein expressed. 11. INVALID PROVISION: If any provision of this Agreement is held not valid by a court of competent jurisdiction such provision shall be deemed to be excised there from and the invalidity thereof shall not affect any of the other provisions contained herein. If this Agreement is adjudged or rendered null and void in its entirety, the agreements referenced in the recitals herein shall be of full force and effect. 12. FINAL AGREEMENT: This Agreement sets forth all promises, inducements, agreements, conditions and understandings between JLJ Enterprises lnc., Bittercreek, LLC, and Bittercreek Meadows Homeowner's Association and "City" relative to the subject matter hereof, and there are na promises, agreements, conditions or understanding, either oral or written, express or implied, between the parties, other than as are stated herein ar the exhibits or agreements referenced herein. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by them or their successors in interest or their assigns, and pursuant, with respect to "City", a duly adopted resolution of "City". NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOWS HOA - 5 13. EFFECTIVE DATE: This Agreement shall be effective at such time as all parties have executed this Agreement and the Agreement is approved by the City Council of the City of. Meridian. 14, NQTICE QF DEFAULT AND CLAIM; Upon acceptance and execution of this Agreement by the parties hereto, the Notice of Default and Notice of Claim filed by the HOA on May 19, 2011 are deemed withdrawn. NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADUWS HOA - 6 ACKNOWLEDGMENTS IN WITNESS'VVHEItEOF, the parties have herein executed this agreement and made it effective as hereinabove provided. Dated this 1 nth day of June, 2011. ~LJ En erprises -''' By Ja es L. ew it's President ~~ ,~ B'tt rcreek, LLC, a 'solved Idaho limited liability co any by Jam L. ewett, its Statutory Trustee By erc~ k Meadows OA B Jam L. J i s President CITY QF MERIDIA~t By: MAYOR Y DE WEERD ATTEST: ,,>'~~'``'''~ ~~ ~~~~~~~~~~~ ~~~ 4~~~~~ ~d ~ O~ ® `,~ :• r ,.. J C OLMAN, CITY CL~~tKK ~ ~~ ~fi~ a r . ~ {\ ~ ~ ~~~ ~~ i r'9 Y~ ~~ ~~ .~~ R ' ~k~ r / ~ ti f1 F jAr~' „ 1> v R ~'~~~:Rit~~~~~5 NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOWS HOA - 7 -kip S-FR~ bf NE~rtt~M} ~v-I~ STATI" ~r Try ~ T T/l l I SS. On this ~~t~ day of ~.TU-~,~ , in the year 2011, before me, the undersigned, a Notary Public, personally appeared, JAMES L. JEWETT, known or identified to me to be the President of JLJ Enterprises Inc. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate Ilrst above written. ~,,, ~~ ~w d,,~,,,,, .~r- .M~..~~ • S L ~;~~~~ ~ fir? ~'~t~4E~ ,~~: <~ ,,,~~~~~~~,,~ Notary Puo~~c, State of N~vad~ ~ ,~ Notary Public for I~~r ~ Appantment Ho. 11 488 ~~ ~ ,.~ , . ,, ~ ,' ~ MY qpp~. Ex~re~ Hov 22, 2014 Residing at: ~ My Commission Expires: l~ ''~'~ S~t~ v~ N-~~~ S ) ss. County of ~~ ) n hi ~ ~~ d of ~ ~- in the ear 2011 b fore me the !ts ay y c , undersigned, a Notary Public, personally appeared, JAMES L. JEV~'ETT, known or identified to me to be the Statutory Trustee of Bittercreek, LLC. IN WITLESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. . ~,,,u,,,(G~L. ~S . ~ ~ .`~-,. BRIEItE BROWNIES ~~. Not~~y Public, 5t~tte at ~r Notary Public for die ~~u ` Appo~trtNnt No.11.4408~1 ~,/ Residing at: ' ~ a . ~ ~PPt• E# Nov 22, 2011 NIy Commission Expires: 1 ~~ STATE OF ~~ ) C c„ : SS. County of Ad:c~' ) On this day of ~~'~~,, , in the year 2011, before me, the undersigned, a Notary P lic, personally appeared, James L Jewett, known or identified to me to be and President of Bittercreek Meadows Homeowner's Association, who executed the NULLIFICATION AGREEMENT BETWEEN CITY QF MERIDIAN AND JI,J ENTERPRISES AND BITTERCREEK MEADUW S HUA - $ instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. (SE } ~ ~~ '~ ~ ~. BRiELI.E BROWNIES ~;; Notary Public, state a~ Nevada Nota Public fob 1~~~ ~. , - • ~ Appoiotrnent No. 11.4488.1 ~ ov 22 2014 Residin at: V N/ ~., ,.; , , My Appt. Expires N g My Commission Expires:~i STATE OF~~~~~~~l `~ako ss. County of Atli ~,) P~~0. On this day of , in the year 2411, before me, the undersigned, a Notary Public, personally appeared TAMMY LSE ~V'EERD and JAYCEE HOLMAN, known or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the instrument or the persons that 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. ~MM~M~• . ~,,. ~ ,,gyp , (SE,~~' ~A p ~' ~a ~ ~`~ ary Public for t k0 ~W ~ . ~' ~ ~ Residing at: ~,~r~,1 o~,r~ ~1~ M ~` ~ • ~ +~ • ~ ~~;~ ~': My Commission Expires: • ~ ~~••r~• NULLIFICATION AGREEMENT BETWEEN CITY OF MERIDIAN AND JLJ ENTERPRISES AND BITTERCREEK MEADOW S HOA - ~ STATE OF IDAHO ) County of Ada ) : ss. On this day of , in the year 2011, before e, the undersigned, a Notary Public, personally appeared, James L Jewett, known or identifie to me to be and President of Bittercreek Meadows Homeowner's Association, who executed e instrument. IN WITNESS WHEREQF, I have hereunto set my hand and lxed my official seal, the day and year in this certificate first above written. (SEAL) STATE OF IDAHO ) : ss. County of Ada ) 0 My Commissio xpires: Notary Public for Id Residing at: an this ____.~___ day , in the year 20l 1, before me, the undersigned, a Notary Public, pe orally appeared TAMMY DE WEERD and JAYCEE H4LMAN, known or identifie to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the ' strument or the persons that executed the instrument on behalf of said City, and acknowled d to me that such City executed the same. IN W NESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and y in this certificate first above written. 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