Loading...
HomeMy WebLinkAbout102-Attachment 1 - Pre-Annexation Agreement.pdf GARROD TRUST PREANNEXATION AGREEMENT   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 PREANNEXATION AGREEMENT FOR RECORDATION WITH THE RECORDER’S OFFICE OF THE COUNTY OF SANTA CLARA GARROD TRUST PREANNEXATION AGREEMENT   Page 2    DRAFT FOR DISCUSSION ONLY GARROD TRUST PREANNEXATION AGREEMENT THIS PREANNEXATION AGREEMENT (“Agreement”) is made and entered into this __day of ___________, 2011 by and between the CITY OF SARATOGA (City), a municipal corporation of the State of California and the Garrod Trust (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 parcel of real property (approximately 68 acres) developed with a Winery/Equestrian Facility 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”) which said Property is subject to a Williamson Act Contract with the County of Santa Clara dated December 24, 2001 and pursuant to Government Code Section 51243, if the Annexation Property is annexed to the City of Saratoga in 2011, the City will succeed to all rights, duties, and powers of the County under the 2001 Williamson Act Contract. B. WHEREAS, Owner is also the owner of a certain parcel of real property (approximately 51 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 with the City of Saratoga executed November 21, 1970. The Principal Property is currently developed with three dwelling units, a hay barn, miscellaneous covered horse paddocks, horse riding academy/day camp buildings, and metal shop and an administrative office. C. WHEREAS, Owner currently has no future plans for new or expanded use or development of the Property which will be in the City of Saratoga after the 2011 Annexation (approximately 119 acres – “ Resulting Property” or “Property”) D. 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. E. WHEREAS, both Owner and City desire to restrict the use of the Resulting Property to agricultural, open space and uses compatible thereto; and GARROD TRUST PREANNEXATION AGREEMENT   Page 3    F. 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; hence, the Parties intend and agree that the annexation of the Annexation Property 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 on November 17, 2010, 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 to obtain recommendations thereon. Owner hereby consents to annexation of the Annexation Property and agrees to support said annexation. 2. Application and Approval for Development Agreement and Use Permit for Winery/Equestrian Facility. The Owner agrees to formally submit a proposal, attached hereto as Exhibit C (Proposal), to the City which includes the following essential elements: a. Development Agreement and Conditional Use Permit (including request for Variation from Standards). The Owner shall submit a complete Application and obtain City approval for a Development Agreement and Conditional Use Permit for the Winery/Equestrian Facility and a Variation of Standards as to site area, site coverage and/or floor area for the entire Proposal to be located on the Resulting Property; b. Determination of Conformity/Legal Nonconformity Status. The Owner shall submit a complete application and obtain City determination as to Conformity/Legal Nonconformity Status of all Uses and Structures on the resulting Property. c. Williamson Act Contract. The Owner shall submit a complete application and obtain City approval to rescind the Williamson Act Contract on the Annexation Property (68 acres) and the Principal Property (51 acres) and simultaneously re-enter a Williamson Act Contract covering the entire Resulting Property (approximately 119 acres), which Williamson Act Contract shall include the Winery/Equestrian Facility and all other existing uses and structures as compatible uses; d. Agricultural Preserve/Open Space Overlay Zoning. Owner shall submit a complete application and obtain City approval to add Agricultural Preserve-Open Space (“AP-OS”) overlay zoning to the Annexation Property (which overlay zoning already exists on the Principal Property currently in the City). GARROD TRUST PREANNEXATION AGREEMENT   Page 4    3. Final Annexation Process and Determination of Conformity. The City staff and Planning Commission shall review the 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. Garrod Trust may unilaterally withdraw from the Preannexation Agreement and refuse annexation of the Annexation Property at any time within 72 hours of the vote by the City Council on said Annexation if the City Council does not prior thereto or concurrently therewith: (a) Determine and establish pursuant to City Code Section 15-65.035 that all structures and all uses in existence on the Annexation Property as of the Final Annexation Approval shall have conforming status as a condition of such Annexation; (b) Approve a Development Agreement for the Principal Property already in the City which establishes that all structures and all uses in existence on the Principal Property as of the Effective Date of the Development Agreement shall have conforming status; and (c) Approve a Use Permit for the entire resulting post-Annexation Garrod Trust Property authorizing all uses and structures in existence as of the date of approval of such Use Permit. The City General Plan and Hillside Specific Plan establish goals and polices applicable to annexations which are relevant to the Garrod Trust integrated annexation package Application. General Plan (“GP”) Policy LU 14.1 provides that: “Land shall not be annexed to Saratoga unless it … is determined by the city that public services can be provided without unreasonable cost to the City and dilution of services to existing residents. Similarly, Goal 5 of the Hillside Specific Plan (“HSP”) is that “[d]evelopment and maintenance of public services shall minimize financial risks to the City and shall be equitable to all citizens of Saratoga.” As part of the Final Annexation Approval, Garrod Trust hereby agrees to take all reasonable actions within its power and to endeavor to assure that the following benefits accrue to the City. With regard to minimized financial risk (HSP Goal 5), avoidance of disproportionate financial risk to the City will be accomplished by Garrod Trust providing reasonable stabilization services (such as clearing of minor slides and repair of culverts) for the annexation-related geological hazard risks to the City regarding Mt. Eden Road as identified by the Geotechnical Survey already conducted at the expense of the Garrod Trust. The County has also committed to provide some funding or services for repair and maintenance of Mt. Eden Road and Garrod Trust support the City in obtaining such funding or services. The County’s road annexation policies include the agreement to resurface roads that are to be annexed from the County to another public agency. Instead of the County performing this road resurfacing work prior to the annexation of approximately 2,075 feet of Mount Eden Road, the County has agreed to pay to the City $25,000 for the cost of resurfacing. In addition, the Geotechnical Evaluation of Roadway Conditions identified at least two roadway drainage GARROD TRUST PREANNEXATION AGREEMENT   Page 5    facilities that require repair. The County has indicated that this work will be paid for by the County and performed by County roadway crews. The County has estimated that their costs to pay for the repairs would be approximately $40,000. HSP Goal 5 that the annexation be equitable to all citizens of Saratoga is supported by fact that the portion of the Property proposed to be annexed will bring with annually $750,000 to $1,000,000 in gross revenues, as estimated by Garrod Trust which hereby commits to use all reasonable efforts to continue to bring in such revenues or more. The City receives 1 cent of the 9.25 cents in sales tax collected on every taxable dollar – meaning the City would receive approximately $7,500 to $10,000 per year in additional revenues. This also supports the GP LU 14.1 determination that public services can be provided without unreasonable cost to the City and dilution of services to existing residents. Analysis of whether this determination can be made is in the context of the fact that the public services which are provided by the City are already being provided to nearly half of the Garrod Trust Property. Since Saratoga is a “contract city” for most public services, the primary services for the Property to be annexed will remain essentially the same. Garrod Trust shall provide other benefits to the City and the public by providing public trail and restroom access. 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 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. GARROD TRUST PREANNEXATION AGREEMENT   Page 6    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 ventures 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. Owner 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: any and all claims, actions or proceedings to attack, set aside, void or annul any action by City on the subject annexation of the Annexation Property, or any of the proceedings, acts or determinations taken, done or made prior to or concurrently with said annexation: and 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 Agreement or the annexation and related 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 Garrod Trust City Clerk 22600 Mt. Eden Road City of Saratoga Saratoga, CA 95070 13777 Fruitvale Avenue Saratoga, CA 95070 Jan Garrod Office: (408) 867-9527 GARROD TRUST PREANNEXATION AGREEMENT   Page 7    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 heirs, representatives, successors, executors, or assigns shall be bound to every provision in this Agreement, whether or not this Agreement is referred to in the instrument by which such heirs, representatives, successors, executors, or assigns 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. c. Amendment of Agreement. This Agreement may be amended 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 the regulations of a federal or state agency which prevents or 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 supersede all negotiations or previous agreement of the parties with respect to GARROD TRUST PREANNEXATION AGREEMENT   Page 8    all or part of the subject matter hereof. No alteration or variation of this instrument shall be valid or binding unless contained in an 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 Garrod Trust, Owner By:______________________ [Authorized Signature] GARROD TRUST PREANNEXATION AGREEMENT  EXHIBIT A Legal Description of Annexation Property (Approximately 68 acres) GARROD TRUST PREANNEXATION AGREEMENT  EXHIBIT B Legal Description of Property in City Prior to 2011 Annexation (Approximately 51 acres) GARROD TRUST PREANNEXATION AGREEMENT  EXHIBIT C Proposal