HomeMy WebLinkAbout104-Pre-Annexation Agreement.pdf
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 1 of 14 RECORDING REQUESTED BY: CITY OF SARATOGA AFTER RECORDATION RETURN TO: CITY OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue
Saratoga, CA 95070 THIS SPACE FOR RECORDER'S USE PREANNEXATION AGREEMENT FOR RECORDATION WITH THE RECORDER’S OFFICE OF THE COUNTY OF SANTA CLARA
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 2 of 14 SOUTH THUNDER, LLC PREANNEXATION AGREEMENT THIS PREANNEXATION AGREEMENT (Agreement) is made and entered into this 20th day of
April, 2011, by and between the CITY OF SARATOGA (City), a municipal corporation of the State of California, and the SOUTH THUNDER LLC (Owner). The Owner and the City are collectively
referred to herein as the Parties. R E C I T A L S A. WHEREAS, Owner is the owner of a certain undeveloped parcel of real property (approximately 2.68 acres) located in the County of
Santa Clara within the City Sphere of Influence and Urban Service Area and more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (“Annexation
Property”), as to which property Owner has applied to the City to obtain final annexation approval; B. WHEREAS, Owner is also the owner of a certain parcel of real property (approximately
35.13 acres in size) adjoining the Annexation Property and located entirely within the City of Saratoga and more particularly described in Exhibit B, attached hereto and incorporated
herein by this reference (“Principal Property”), which said Principal Property is subject to a Williamson Act Contract which was originally entered into with the County of Santa Clara.
Pursuant to Government Code Section 51243, when the Principal Property was annexed to the City of Saratoga in 2006, the City succeeded to all rights, duties, and powers of the County
under the Contract. The Principal Property is currently developed with a single family dwelling, garage, hay barn, utility barn (with an upstairs apartment), stables, a horse riding
arena, pool house, and workshop; C. WHEREAS, Owner has submitted an integrated annexation package including but not limited to a Development Proposal seeking to obtain a Conditional
Use Permit with a Variation from Standards for its existing stables, and approval to remodel and increase the square footage of the single family dwelling located on the Principal Property
by 2907 square feet; D. WHEREAS, any approval of the Development Proposal will be materially based on a requirement that, the Development Proposal includes merger of Principal Property
and Annexation Property into a single legal parcel for planning and land use purposes (such that the development potential for a single family dwelling on the Annexation Property will
be extinguished); E. WHEREAS, Owner currently has no future plans for use or development of the Principal Property and/or the Annexation Property other than the proposed Use Permit for
existing stables and expansion of the existing single family dwelling contained in the Development Proposal; F WHEREAS, annexation of the Annexation Property to the City in accordance
with the terms of this Agreement will result in rational comprehensive planning and foster predictability, certainty, economy and efficiency in future land use planning;
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 3 of 14 G. WHEREAS, concurrent with annexation of the Annexation Property to the City, Owner shall merge the Principal Property with
the Annexation Property (by both Deed and new recorded final Parcel Map) into a single legal parcel (the “Merged Property”) for planning and land use purposes, and shall rescind the
Williamson Act Contract for the Principal Property and simultaneously re-enter a Williamson Act Contract covering the entire Merged Property, and shall apply for a Conditional Use Permit
and Variation from Standards for the benefit of the entire Development Proposal located on the Principal Property; and H. WHEREAS, the purpose of this Agreement is to set forth the City's
and Owner’s respective responsibilities and understandings in pursuing and achieving annexation of the Annexation Property and approval of the Development Proposal; hence, the Parties
intend and agree that the Annexation Property be annexed to the City subject to the following specified agreements and conditions. AGREEMENT NOW, THEREFORE, in consideration of the foregoing,
the Parties hereby agree as follows: 1. Annexation. A Resolution Initiating Annexation having been approved by the City Council, Owner and City agree that for the purposes and goals
and subject to the agreements and conditions set forth in the Recitals above, and in order to provide for rational long-term land use planning, the Annexation Property may be processed
for final annexation into the City. City agrees to take the steps necessary to achieve annexation of the Annexation Property at the soonest reasonable opportunity, including referral
of the matters in paragraph 2 below to staff and the Planning Commission. Owner hereby consents to annexation of the Annexation Property and agrees to support said annexation. 2. Application
and Approval for Use Permit for Stables and Expansion of Single Family Dwelling. The Owner agrees to formally submit a development proposal, attached hereto as Exhibit C (Development
Proposal), to the City which includes the following essential elements: a. Conditional Use Permit and Variation from Standards. The Owner shall submit a complete Application and obtain
City approval for a Conditional Use Permit for the stables and a Variation of Standards as to site area, site coverage and/or floor area for the entire Development Proposal to be located
on the Merged Property; b. Parcel Merger. The Owner shall submit to the City a complete, executed and recordation ready and acceptable Notice and Deed of Voluntary Merger for parcel
merger and otherwise promptly initiate and diligently pursue to completion all necessary steps to merge the Annexation Property with the Principal Property into a single legal parcel
(the “Merged Property”) for planning and land use purposes (such that the development potential for a single family dwelling on the Annexation Property will be extinguished). The necessary
steps for such merger shall include a new recorded final Parcel Map so long as required to be in compliance with Government Code Section 66499.20¾ and City
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 4 of 14 Code Section 14-70.080 (as now in effect or hereafter amended). The merger shall constitute a material basis of the support for
the approval of the integrated annexation package and the required findings for the Variation from Standards and the Merged Property shall not be subsequently subdivided so long as any
portion of the resulting Merged Property is subject to a Williamson Act Contract, or the City’s AP-OS overlay zoning district has not been removed by the City; c. Williamson Act Contract.
The Owner shall submit a complete application and obtain City approval to rescind the Williamson Act Contract on the Principal Property and simultaneously re-enter a Williamson Act Contract
covering the entire Merged Property, which Williamson Act Contract shall include the stables and all other existing uses as compatible uses and shall be substantially in the form attached
hereto as Exhibit D; d. Agricultural Preserve/Open Space Overlay. Owner shall submit a a complete application and obtain City approval to add AP/OS overlay zoning to the entire Merged
Property; and e. General Plan Amendment for Annexation Property. Owner shall submit a complete application and obtain City approval to amend the current Hillside Open Space (H-OS) Pre-General
Plan designation on the Annexation Property to a post-annexation General Plan designation of Residential Hillside Conservation (RHC); and f. Design Review/Building Permit: Owner shall
be required to obtain a Design Review Approval for the expansion of the single family dwelling and a Building Permit(s) as required by the City Code for implementation of the Development
Proposal once approved. Owner shall have the option of submitting applications for Design Review and Building Permit as part of the Development Proposal, or may alternatively submit
those applications subsequent, and subject, to approval of the Annexation. 3. Final Annexation Process. The City staff and Planning Commission shall review the Development Proposal Proposal
submitted under Paragraph 2 above and make recommendations to the City Council which shall take such action thereon, and such action as to Final Annexation, as it deems to be in the
best interests of the City. 4. Survival of Rights and Obligations. The rights and obligations of the Parties as set forth in this Agreement shall survive annexation of the Annexation
Property to the City. 5. Termination of Agreement. This Agreement shall have no further force and effect and each Party shall be released from the obligations set forth herein in the
event that annexation of the Annexation Property to the City has not become final (including an executed LAFCO Certificate of Completion) within twelve (12) months after the effective
date of this Agreement. 6. Legal Action. Any party may, in addition to any other rights or remedies herein provided, institute legal action to cure, correct, or remedy any default, enforce
any covenant or agreement
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 5 of 14 herein, enjoin any threatened or attempted violation hereof, enforce by specific performance the obligations and rights of the
Parties hereto or obtain any other remedy consistent with this Agreement. In no event shall any party be entitled hereunder to monetary damages for any action or inaction of another
party hereunder, including breach of contract. Nothing in this Section shall be deemed to limit any party’s rights under the Tort Claims Act or the City’s right to collect fees allowable
and otherwise due and payable or to impose penalties for violations of City Ordinances. 7. Attorneys Fees and Costs. If legal action by any party is brought because of a breach of this
Agreement, or to enforce a provision of this Agreement, each party shall bear their own attorneys fees and costs. 8. Controlling Law. This Agreement shall be construed and enforced in
accord with the laws of the State of California. 9. No Joint Venture or Partnership. The Parties hereby renounce the existence of any form of joint venture or partnership between any
or all of the Parties and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making any or all of the Parties joint venturers
or partners. Further, the Owner is not an agent of the City. 10. Agreement By Owner to Indemnify, Hold Harmless and Defend City as to Action(s) Challenging Approval of Annexation, this
Preannexation Agreement and All City Actions Processed Prior To Or Concurrently With The Annexation and as to Damage From Performance of Work Authorized by Any Of Such Actions. Owner
(or Owner’s successor(s) performing work described in Subsection b. below) hereby agrees to defend, indemnify and hold the City and its officers, officials, boards, commissions, employees,
agents and volunteers (collectively “City”) harmless from and against: a. any and all claims, actions or proceedings to attack, set aside, void or annul any action by City on the subject
Annexation, or any of the proceedings, acts or determinations taken, done or made prior to or concurrently with said Annexation; and b. any and all claims, demands, actions, expenses
or liabilities arising from or in any manner relating to the performance of the construction, installation, alteration or grading work by the Owner, or by Owner’s successor(s), or by
any person acting on their behalf, authorized by any City action described in subparagraph 10.a. above. Owner’s obligations under subparagraph 10 above shall prevail over any other provision
in this Preannexation Agreement. 11. Cooperation in the Event of Legal Challenge. In the event of any administrative, legal or equitable action or other proceeding instituted by a third
party, governmental agency or official challenging the validity of any provision of this
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 6 of 14 Agreement or the integrated annexation proceedings described herein, the Parties shall cooperate in defending the action or proceeding.
12. Notices. All notices or communications required hereunder between the Parties shall be in writing and may be given either personally, by overnight carrier, or by first class mail,
addressed to the party intended to be notified. The notice shall be deemed to have been given and received on the date delivered in person, or the date of delivery receipt from the overnight
carrier, or five days after deposit with the United States Post Office. Any Party hereto, by giving ten (10) days written notice to the other, may designate any other address as substitution
of the address to which the notice or communication shall be given. Notices or communications shall be given to the Parties at the addresses set forth below until duly changed as set
forth above. City of Saratoga South Thunder LLC/Owner City Clerk Brooks & Hess City of Saratoga William Brooks 13777 Fruitvale Avenue 577 Salmar Avenue, Second Floor Saratoga, CA 95070
Campbell San Jose, CA 95008 Copy to: Richard S. Taylor City Attorney City of Saratoga Shute Mihaly & Weinberger LLP 396 Hayes Street San Francisco, CA 94102 13. Miscellaneous. a. Successor
and Assigns. The covenants, terms, conditions and restrictions of this Agreement shall apply to, bind and inure to the benefit of successors in interest of the Parties hereto, including
heirs, assigns, representatives, executors, administrators and all other parties, whether they succeed by operation of law or voluntary acts of the City or Owner. All such successors
in interest shall be bound to every provision in this Agreement, whether or not this Agreement is referred to in the instrument by which such successors in interest acquire an interest
in Owner’s Properties or any thereof b. Parties in Interest. This Agreement is entered only for the benefit of the Parties executing this Agreement and not for the benefit of any other
individual, entity or person.
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 7 of 14 c. Amendment of Agreement. This Agreement may be amended, but only in writing by mutual agreement of the original Parties or
their successors in interest. d. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remaining provisions of this Agreement shall continue in full force and effect, unless the provision held invalid forms a material consideration of this Agreement. e. Change in Law.
If a subsequent change occurs in federal or state laws or regulations which precludes compliance with a provision of this Agreement, that provision shall be modified or suspended only
to the extent necessary to comply with the federal or state law or regulation. f. Enforceability. Unless this Agreement is amended or terminated pursuant to the provisions of this Agreement,
this Agreement shall be enforceable by any party hereto notwithstanding any change hereinafter enacted or adopted in any applicable General Plan or Specific Plan, zoning ordinance, subdivision
ordinance or any other land use or building ordinance. g. Entire Agreement. This Agreement, and the conditions referred to herein, and the exhibits attached hereto, constitute the entire
understanding and agreement of the parties and supersedes all negotiation(s) or previous agreement(s) of the parties with respect to all or part of the subject matter hereof. No alteration
or variation of this instrument shall be valid or binding unless contained in a duly executed written amendment to this Agreement. h. Captions. The captions in this Agreement have been
inserted solely for convenience or reference and are not a part of this instrument and shall have no effect upon construction or interpretation. IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed by their respective representatives as follows: CITY OF SARATOGA, CALIFORNIA a Municipal Corporation Approved as to Form: ___________________________
By: ________________________ Richard Taylor, City Attorney Dave Anderson, City Manager ATTEST: ___________________________ Ann Sullivan, City Clerk
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 8 of 14 South Thunder, LLC, Owner By:___________________ [Authorized Signatory] Approved as to Form: By:______________________ William
T. Brooks, Esq. INSTRUCTIONS This Agreement shall be recorded. Owner(s) signature(s) must each be acknowledged by a notary. Inform the notary that the acknowledgement is for an instrument
to be recorded (California Civil Code §1169, et seq.)
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 9 of 14 State of California ) County of ) On ______________________________________ before me, , personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify
under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________
(Seal)
SOUTH THUNDER, LLC PRE-ANNEXATION AGREEMENT Page 10 of 14 State of California ) County of ) On ______________________________________ before me, , personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify
under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________
(Seal)
EXHIBIT A Legal Description of Annexation Property
EXHIBIT B Legal Description of Principal Property
EXHIBIT C Development Proposal
EXHIBIT D Williamson Act Contract (Merged Property)