HomeMy WebLinkAbout102-1. Amendment to Subdivision Improvement Agreement.pdf
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 1
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
AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT AND TO DEFER IMPROVEMENTS CONDITIONED UPON DRAINAGE MAINTENANCE COVENANT
THIS AGREEMENT is entered into effective ________ (“Effective Date”) by and
among the Balu and Mohini Balakrishnan Trust dated June 9, 1993 (hereinafter referred to as “Owner” and/or “Subdivider,” (“Subdivider” by virtue of being assignee of the “Previous Owners” Mostaan Parviz and Ouraie Farzaneh, who in turn were assignees of the “Original
Subdivider” Thomas E. Burke and Hope E. Burke 1985 Trust – which status Owner hereby
acknowledges) and the City of Saratoga (hereinafter referred to as “City”) with reference to
property known as Assessor’s Parcel Numbers: 503-78-033, 503-78-035, 503-78-036, and 503-78-037 and 503-78-038 (“Original Subdivision”), as described in more detail in Exhibit A hereto. Currently parcel 503-78-036 is the only developed parcel (“Developed Parcel”).
Currently parcels 503-78-037 and 503-78-039 (the latter being the combination of original
parcels 503-78-033, 503-78-035 and 503-78-038) remain undeveloped (the “Undeveloped
Parcels”).
RECITALS
WHEREAS, in connection with the development of the subdivision of the Property
(hereinafter also known as “subject subdivision”), the Original Subdivider previously filed with the City of Saratoga Community Development Director a tentative map of said subdivision
(referenced by the City as SD 95-004), which said tentative map was duly approved by City by
Resolution Number SD 95-004 dated July 24, 1996; and
WHEREAS, the Original Subdivider previously filed with the City of Saratoga City Clerk a parcel map or final map (hereinafter “Map” as applicable) of the subject subdivision,
which said Map was duly approved by the City Council on July 16, 1997; and
WHEREAS, Owner/Subdivider has previously executed and recorded a Subdivision
Improvement Agreement effective December 31, 2007 and recorded October 30, 2008 as Document # 20033350, attached as Exhibit B hereto; and
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WHEREAS, Section 3(f) of the Subdivision Improvement Agreement requires
Owner/Subdivider to furnish to the City improvement security, as required by Section 5 of the
Subdivision Improvement Agreement and by City Code Section 14-60.020; and
WHEREAS, the subject subdivision was created in 1997 but only one parcel, 503-78-
036, the Developed Parcel, has been developed and only subdivision improvements (e.g., road,
utilities) related to the developed property have been constructed; and
WHEREAS, the Owner/Subdivider purchased the Developed Parcel (503-78-036) in 2006 from someone other than the Original Subdividers; and
WHEREAS, the Original Subdivider sold the Undeveloped Parcels 505-78-037 and 503-
78-039 to Previous Owners, with the Previous Owners assuming the responsibility for the
subdivision improvements related to the Undeveloped Parcels; and
WHEREAS, the Owner subsequently purchased the Undeveloped Parcels (505-78-037
and 503-78-039) from the Previous Owners in January of 2008; and
WHEREAS, the Previous Owners, in conjunction with the sale of the Undeveloped Parcels to Owners, requested release of their improvement security and their Subdivision
Improvement Agreement, and prior to such release, the City required the Owner to execute and
record a new Subdivision Improvement Agreement (which Owner did as described above, and
attached hereto as Exhibit B) and to furnish the required improvement security (which Owner
provided in the form of a letter of credit); and
WHEREAS, the Subdivision Improvement Agreement and Owner/Subdivider’s
improvement security have been extended one or more times; and
WHEREAS, Owner lives in the single-family dwelling on the Developed Parcel (503-78-036) and the Undeveloped Parcels (505-78-037 and 503-78-039) in the subject subdivision
remain vacant and Owner represents that it does not have any intention to develop either of the
Undeveloped Parcels in the foreseeable future; and
WHEREAS, Owner has requested City to defer the requirements that Owner construct all required Works of Improvement under Section 3 and furnish the improvement security under
Sections 3(f) and 5 of the Subdivision Improvement Agreement; and
WHEREAS, City is willing to amend the Subdivision Improvement Agreement to defer
the requirement that Owner construct all required Works of Improvement under Section 3 and the requirement that Owner furnish the improvement security under Sections 3(f) and 5 of that
Agreement in accordance with the terms and conditions set forth herein; and
WHEREAS, the City and Owner/Subdivider agree as a condition of approval of this
Amendment, that Owner is responsible at all times for maintenance of the storm drainage system on the Developed and Undeveloped Parcels, pursuant to the Drainage Maintenance Covenant,
attached as Exhibit C hereto.
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 3
AGREEMENT TO AMEND
NOW, THEREFORE, in consideration of the above RECITALS and the mutual promises
and covenants of the parties hereto, the Subdivision Improvement Agreement of the Owner recorded October 30, 2008 as Document# 20033350 is amended as follows:
1. Deferral of Obligation to Construct Works of Improvement. Owner of the Property
as subdivided continues to have the obligation to carry out, complete and maintain the
Works of Improvement in accordance with the Subdivision Improvement Agreement recorded October 30, 2008 as Document# 20033350; however, such obligation is
hereby deferred until Owner or future owner(s) of any of the Undeveloped Parcels
develops one or more of the Undeveloped Parcels.
2. Deferral of Improvement Security Requirement. The requirement that Owner of the Property as subdivided furnish to the City the improvement security required by Sections 3(f) and 5 of the Subdivision Improvement Agreement, recorded October 30,
2008 as Document# 20033350, is hereby deferred until Owner or future owner(s) of
any of the Undeveloped Parcels develops one or more of the Undeveloped Parcels.
3. No Obstruction or Interference. Owner agrees that any and all construction or
improvement (other than the repaving and maintenance of the existing driveway on
the Developed Parcel that is shared by the subdivided parcels) on the subject
subdivision which would obstruct or interfere in any way with installing the Works of
Improvement is precluded absent an Encroachment Permit duly obtained from the City, and if, in any event, any obstruction, interference or encroachment as to any
Work of Improvement intended to be installed occurs, the same shall be eliminated
before the start of development of any one or more of the Undeveloped Parcels at
Owner’s sole expense. “Interfere” as used in this Section shall include any adverse
impact on adequate access for installation and maintenance of the Works of Improvement as determined in the sole discretion of the City.
4. Indemnification. Owner herby agrees to indemnify, defend and hold harmless the
City, its officers, officials, boards, commissions, employees, agents and volunteers
from and against any and all claims, demands, actions, costs, expenses or liabilities arising from or resulting in any manner from the use, erection, construction or
maintenance of any obstruction, interference or encroachment into any area where
any Work of Improvement is intended to be installed, accessed or maintained, or the
failure to comply with any term or condition of any Encroachment Permit or this
Agreement, or the action(s) of the City in authorizing Owner to occupy any portion of the subject subdivision without completion of any or all Works of Improvement, or in
executing this Agreement or in issuing any related Encroachment Permit.
5. Agreement Binding on Successors of Undeveloped Parcels and Any Successor of
Undeveloped Parcels Required to Execute Acknowledgment. This Amendment to the Subdivision Improvement Agreement shall be binding upon the successors and
assigns of Owners and future owner(s) of the Undeveloped Parcels. Owner shall
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 4
inform potential buyers of any of the Undeveloped Parcels of land of the obligations
on successors and assigns created by this Agreement. Each successive owner shall
provide a copy of the executed Subdivision Improvement Agreement and the
Amendment thereto to each successor owner of any of the Undeveloped Parcels who shall execute an acknowledgment of his/her acceptance of the rights and
responsibilities under the Subdivision Improvement Agreement and this Amendment
thereto, pursuant to the form provided in Exhibit D attached hereto.
6. All Other Provisions Remain in Full Force and Effect. All provisions of the Subdivision Improvement Agreement effective December 31, 2007 and recorded October 30, 2008 as Document# 20033350 which are not expressly and directly
modified by this Amendment shall remain in full force and effect.
7. Authority to Execute. Each of the signatories hereto warrants and represents that he or she has the authority to sign this Agreement and to bind any party on whose behalf said signature is made and/or to bind any property with respect to which said
signature is made.
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 5
IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereto
on December ____, 2011.
Date _________ Owner/Subdivider: Balu and Mohini Balakrishnan Trust
dated June 9, 1993
______________________________
Balu Balakrishnan, individually and as Co-Trustee
______________________________
Mohini Balakrishnan, individually and as Co-Trustee
Date__________________ City of Saratoga
By: __________________________ Dave Anderson,
City Manager
Attachments: Exhibit A – Legal Description of Property Exhibit B – Subdivision Improvement Agreement
Exhibit C – Drainage Maintenance Covenant
Exhibit D – Acknowledgment of Acceptance of the Rights and Responsibilities
under the Subdivision Improvement Agreement
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 6
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.)
ACKNOWLEDGEMENT
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)
ACKNOWLEDGEMENT
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.
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 7
Signature ______________________________ (Seal)
ACKNOWLEDGEMENT
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)
[Seal]
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 8
EXHIBIT A [INSERT PROPERTY DESCRIPTION]
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 9
EXHIBIT B [INSERT SUBDIVISION IMPROVEMENT AGREEMENT]
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EXHIBIT C [INSERT DRAINAGE MAINTENANCE COVENANT]
Amendment to Subdivision Improvement Agreement (Balakrishnan Trust) Page 11
EXHIBIT D
ACKNOWLEDGMENT OF ACCEPTANCE OF THE RIGHTS AND
RESPONSIBILITIES UNDER THE ATTACHED SUBDIVISION IMPROVEMENT AGREEMENT AND THIS AMENDMENT THERETO I, _______________________________ (name of purchaser of parcel of property in the subject
subdivision shown on parcel map or final map (hereinafter “Map” as applicable) of the subject
subdivision, which said Map was duly approved by the City Council Resolution No. SD 95-004 dated July 16, 1997 creating parcels known as Assessor’s Parcel Number(s): 503-78-033, 503-
78-035, 503-78-036, 503-78-037, and 503-78-038 as described in more detail in Exhibit A hereto
(the “Property”), do hereby acknowledge that I accept the rights and responsibilities under
that Subdivision Improvement Agreement effective December 31, 2007 and recorded
October 30, 2008 as Document# 20033350 and under the Amendment thereto executed effective __, 20__ and recorded __, 20__ as Document # __________. A copy of such
Agreement and Amendment thereto is attached and I understand that the same shall be binding
upon me and on my successors and assigns.
IN WITNESS WHEREOF, this instrument has been duly executed by Purchaser as set forth below.
PURCHASER:
Date: __________________________________
By: ___________________________________
Name: _________________________________
Its: ____________________________________
Attachments: (1) Subdivision Improvement Agreement (2) Amendment to Subdivision Improvement Agreement