(A) Amendment or cancellation by mutual consent.
(1) Any development agreement may be amended or canceled in whole or in part, by the mutual consent of the parties to the agreement or their successors in interest. Any party can initiate the amendment or cancellation of a development agreement. The procedure for an amendment or cancellation shall be the same as the procedures for approval. The findings required for amendment or cancellation shall be the findings specified in § 19.11.008(B) or in any applicable county regulations in effect at the time the ordinance authorizing the amendment or cancellation is adopted. A review of a requested amendment shall be limited to consideration of those elements proposed to be added or changed, or of any elements affected by such changes.
(2) The issuance of any land use approval permit which requires a change in any vested element of the development agreement shall require an amendment to the development agreement for the change to be vested. The Director of Planning shall make the determination as to whether an amendment is necessary.
(B) Modification or termination because of non- compliance.
(1) Developer default. Failure or unreasonable delay by the developer to perform any term or provision of the development agreement shall constitute a material breach (default) of the development agreement. Except in cases where the developer’s breach of the development agreement presents a threat of imminent harm to the public, the Planning Director shall give the developer not less than 30 days notice of default in writing specifying the nature of the alleged default and the manner in which the default may be satisfactorily cured. A developer shall within the 30-day period cure the default or provide evidence providing that the developer in fact was never in default. If, within the 30-day period, the developer either does not cure the default or does not provide sufficient evidence to prove that the developer was never in default, it shall be irrefutably presumed that the developer was, and remains, in default. After the expiration of the 30-day period, in the event developer remains in default, the county, at its option, may institute legal proceedings for specific performance or for other injunctive or declatory relief to enforce the agreement. As an alternative to this default procedure, the county may hold a compliance review pursuant to this chapter.
(2) County default.
(a) In the event the county defaults under the terms of the development agreement as to the developer, the developer shall not be obligated to proceed with or complete the improvements required under the development agreement, or any phase thereof, nor shall resulting delays in the developer’s performance constitute grounds for termination or cancellation of the development agreement.
(b) However, the developer may not suspend the developer’s obligations as specified herein until 30 days after developer notifies Planning Director in writing of county’s default, the nature thereof and of developer’s intent to suspend developer’s obligation. Within the 30-day period, county may comply with its obligations or may demonstrate that it never failed to comply with the development agreement.
(c) Alternatively, the developer, at the developer’s option, may institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement. However, the developer shall not file any legal proceedings with a court or other tribunal until the developer applies with the Planning Commission for a determination of county’s default. The developer shall have the burden of proving the county’s default before the Planning Commission which shall conduct a public hearing before making a determination.
(1966 Code, § 6A.05-11) (Ord. 653, § 1(part))