1979-0314_BEAR BRAND RANCH COMPANY_AgreementCITY COPY
AGREEMENT TO ANNEX REAL PROPERTY
This Agreement to Annex Real Property (hereinafter
"Agreement"), effective this 14thday of March
1979, is entered into by and between the City of San Juan
Capistrano (hereinafter the "City") and Bear Brand Ranch
Company-Peppertree Bend Project, a California limited part-
nership (hereinafter "BBRC"). The City and BBRC are at
times hereinafter referred to individually as a "party" and
collectively as the "parties".
R E C I T A L S
A. BBRC is the fee owner of certain real property
located in an unincorporated territory of the County of
Orange, State of California, more fully described as follows:
Being Parcel 3 in Unincorporated Territory of the
County of Orange, State of California, as shown on
the map filed in Book 115, Pages 14 and 15, of
Parcel Maps in the Office of the County Recorder
of said County, excepting therefrom that certain
portion shown on Tentative Tract Map 9390 as Lot
41 (hereinafter, the "Property").
B. BBRC intends to improve and develop the Property
by constructing thereon a country equestrian residential
community comprised of 40 single family detached Lots for
residences located on 1 to 2 acre parcels (the "Project").
To facilitate the construction of the Project, BBRC has
processed Tentative Tract 9390 to approval through the
requisite governmental agencies of the County of Orange,
California (the "County").
1
•
C. As a condition precedent to the recordation of
Tract 9390, the County requires that the Project obtain
access to and use of certain public streets located in the
City. Such access and use by the Project is contingent upon
the issuance to BBRC by the City of an Improvement Permit
relating to improvements to gain access to the public streets.
D. After review by an appointed community committee
and by the City Council, it was the decision of the City
that the Improvement Permit not issue. Further, the City
desired that modifications be made to Tract 9390 concerning
cul-de-sacing Peppertree Bend, the street within the Tract,
rather than providing for a future extension as desired by
the County to the arterial highway known as Camino del
Avion.
E. On May 24, 1978, the Orange County Planning Commission
(the "Commission") approved the modifications set forth in
Recital D above. in addition, the Commission required,
among other things, that, at approximately Lot 7 within
Tract 9390, BBRC provide a 35 -foot radius turnaround, or
provide for a future connection to a future street. Said
future street is commonly known as the Crumrine extension.
F. It is the desire of the City to annex the Property
to the City and the desire of BBRC to so annex pursuant to
the terms, covenants, conditions set forth in this Agreement
and subject to the rights of successors in ownership to BBRC
having the right to construct custom homes on the particular
lots within the Property as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing
E
Recitals and the covenants and conditions contained herein,
the parties hereby agree as follows:
1. PROCESSING OF ANNEXATION. BBRC hereby agrees that upon
fulfillment of the conditions set forth in Section 2
below, it shall commence processing of the Annexation
pursuant to the requirements of the Local Agency Forma-
tion Commission (hereinafter "LAFCO") as set forth in
Section 54790 et seq. of the Government Code of the
State of California.
2. CONDITIONS PRECEDENT TO PROCESSING OF ANNEXATION. The
duty of BBRC to initiate the processing of the Annexa-
tion with LAFCO is expressly conditioned upon the
occurrence of the following events:
(a) Issuance by the City of Improvement Permits for
those certain roadways known as "Calle Aspero" and
"Calle Ricardo" within five (5) days of execution
of this Agreement.
(b) The adoption of an Ordinance or Resolution by the
City of a pre -zoning of the Property to a zone of
100 -EL, Small Estate District, with conditions
acceptable to BBRC as evidenced in writing.
(c) An agreement being entered into between Moulton
Niguel Water District, Orange County Waterworks
District No. 4, and the City relating to water and
sewer services for the Property, which agreement
shall be acceptable to BBRC.
(d) BBRC having recorded a Notice of Completion on the
improvements to the Property including all water,
3
0
sewer and street improvements shown on the Improve-
ment Plans which are a part of the Final Tract Map
9390.
Should, however, BBRC elect to commence the processing
of the Annexation prior to the occurrence of all of the
conditions precedent set forth in Section 2(a) through
2(d) above, the City agrees that the Annexation shall
not be consummated prior to the recordation of the
Notice of Completion as set forth in Section 2(d)
above.
3. PROCESSING OF THE ANNEXATION. BBRC and the City agree
to diligently process the Annexation to completion. In
doing so, the City shall authorize and instruct personnel
of the City to assist BERC and its principals, employees,
and agents in the processing of the Annexation with
LAFCO, the City and all applicable agencies and districts
which are or may become a part of the Annexation process.
4. IMPROVEMENT OF CALLE ASPERO. BBRC agrees to improve
Calle Aspero by widening and paving said street between
the boundary of Tract 7112 to a point approximately
100' east of Paseo Monte Vista, which improvements
shall be accomplished within the standards of the City
for commuter streets. The improvement to Calle Aspero
shall be the only City required improvements relating
to the development of the Project, and shall be accom-
plished by BBRC during the construction of the off-site
improvements to the Property. The City shall reimburse
BBRC,the sum of Twenty Five Thousand Dollars ($25,000)
or fifty precept (50%) of the cost of such improvement
4
to Calle Aspero, whichever sum shall be lesser, within
ten (10) days after the effective date of the Annexa-
tion. The City shall complete the necessary acts to
obtain the right-of-way for such improvement and shall
inform BBRC when the entire right-of-way has been
obtained.
5. TERMINATION OF ANNEXATION PROCESSING. The City shall
not enact any law, ordinance, resolution or regulation
of any kind or nature which would inhibit, delay, or
negate the right of BBRC or its successors -in -interest
to construct on the Property single family residences
and appurtenances thereto. Should such an event occur,
BBRC may terminate this Agreement by delivering written
notice to the City. Alternatively, should BBRC fail to
perform under this Agreement, the City may terminate
this Agreement by delivering written notice to BBRC.
Upon delivery of such Notice, this Agreement shall be
of no further force or effect, regardless of the stage
of processing, and either respective party shall have
no duty to continue the processing of the Annexation.
Further, should the Annexation not be completed within
six (6) months after delivery of application to LAFCO,
either party shall have the right to terminate this
Agreement.
6. RIGHTS TO CONSTRUCT RESIDENCES. Provided that BBRC
has performed hereunder, the parties hereby acknowledge
that upon execution of this Agreement, BBRC and its
successors -in -interest shall be deemed to have obtained
a vested right to construct residences and appurtenances
5
thereto on the Project in accordance with the plans
approved pursuant to Section 7 below. The parties
agree that such vested rights shall exist notwithstanding
any existing statutory or case law in the State of
California, or the adoption of any statutory or case
law subsequent to the execution of this Agreement.
However, the City shall not be responsible for any
laws, regulations, or ordinances, imposed by other
governmental agencies beyond the control of the City
which affect the legal ability of the City to issue
Building Permits for the construction of the residences.
The parties further acknowledge that BBRC has agreed to
enter into this Agreement in reliance upon obtaining
such vested rights to improve the Property.
7. ISSUANCE OF BUILDING PERMITS. BBRC acknowledges and
agrees that the issuance of grading permits and building
permits with regard to the construction of residences,
accessory buildings, driveways, improvements and amenities
(collectively the "Improvements") on a particular Lot,
shall be subject to the review of the Environmental
Review Board in accordance with the Land Use Management
Code of the City, as it relates to (a) the grading plan;
(b) applicable building code; and (c) conformance with
the zoning called for in this Agreement.
Subject to such requirements of the Land Use
Management Code, the design of the Improvements, siting
of the Improvements and landscaping to be made to a
particular Lot within the Project, shall be subject to
the review and approval of the Architectural Review
11
Committee of the Peppertree Bend Homeowners Association,
Inc., and pursuant to the requirements of the Declaration of
Covenants, Conditions and Restrictions affecting the
Property, and shall not be subject to review and approval
by the City, or its agencies. It is acknowledged and
agreed that the City shall issue the respective grading
and building permits for construction of the Improvements
upon its review and approval of specific matters set
forth in this Section 7. Should the City, or any
agency, commission or representative thereof, fail to
act in accordance with this Section 7 in the issuance
of grading permits and building permits, BBRC and its
successors and assigns, shall have the immediate right,
without further administrative review or appeal, to
commence legal action in the appropriate court of law
or equity to enforce their rights hereunder.
8. PURCHASE OF LOTS WITHIN PROPERTY. It is acknowledged
and agreed that BBRC may enter into deposit receipts,
purchase agreements, and escrow instructions relating
to the purchase of a particular Lot within the Property
by a third party prior to the consummation of the
Annexation.
9. CLOSE OF ESCROW OF LOTS. BBRC agrees that it shall not
close any escrow with such third parties and convey
title to any Lots within the Property prior to the
Annexation of the Property or the termination of the
Annexation proceeding pursuant to this Agreement.
10.. NOTICES. All notices required to be given under this
Agreement shall be in writing and shall be transmitted
7
either by persoal hand delivery or throut the faci-
lities of the United States Post Office, postage prepaid,
certified or registered mail, return receipt requested.
Any such notice shall be effective upon delivery, if
hand delivered, and forty-eight (48) hours after dispatch,
if mailed in accordance with the above. Notices to the
respective parties shall be sent to the following
addresses unless written notice of a change of address
has been given pursuant hereto:
IF TO BBRC:
Bear Brand Ranch Company
250 Newport Center Dr.
Suite M-100
Newport Beach, CA 92660
WITH A COPY TO:
Terry C. Hackett
Hackett & Tucker
250 Newport Center Drive #305
Newport Beach, CA 92660
IF TO THE CITY:
The City of San Juan Capistrano
Mr. Tom Merrell, Planning Dept.
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
11. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto and supersedes any
prior or concurrent written or oral agreement between
said parties concerning the subject matter contained
herein. There are no representations, agreements,
arrangements, or understandings, oral or written,
between or among the parties hereto, relating to the
subject matter contained in this Agreement, which have
not been fully expressed herein.
12. BINDING EFFECT. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties
hereto and their respective legal representatives,
successors and assigns.
P9
'13. WAIVER. No waiver of any breach or default of this
Agreement by any party hereto shall be considered to be
a waiver of any prior, concurrent or subsequent breach
or default of this Agreement.
14. AMENDMENT. This Agreement may only be amended by the
written consent of all of the parties to this Agreement
at the time of such amendment.
15. TIME OF ESSENCE. Time is the essence of this Agreement
and the provisions contained herein and each and every
provision hereof.
16. GOVERNING LAW. Subject to the specific terms of this
Agreement, the validity, interpretation and performance
of this Agreement shall be controlled by and construed
under the laws of the State of California.
17. ATTORNEYS FEES. Should any dispute arise between the parties
hereto or their legal representatives, successors or
assigns concerning any provision of this Agreement
or the rights and duties of any person in relation thereto
the party prevailing in such dispute shall be entitled,
in addition to such other relief that may be granted,
to a reasonable sum as and for their or his or its attorneys
fees and legal costs in connection with such dispute whether
such action is legal or equitable in nature.
18. INTEREST ON OBLIGATIONS. Should either party fail to
make payment of any sums payable pursuant to this Agreement,
at the time or date set forth herein, interest shall
accrue on such obligation at the rate of ten percent
(10%) per annum, until such obligation is paid in full.
2
19. PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine
or neuter, singular or plural, as the identity'of
the person, persons, entity or entities may require.
20. CAPTION HEADINGS. Captions at the beginning of each
numbered section or paragraph of this Agreement are
solely for the convenience of the parties hereto
and shall not be deemed part of the context of this
Agreement.
21. NEGOTIATED TRANSACTION. The provisions of this Agree-
ment have been negotiated by all of the parties hereto
and said Agreements shall be deemed to have been drafted
by all such parties.
22. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an
original of•this Agreement, but such counterparts,
when taken together, shall constitute but one
agreement.
23. RIGHT TO ENFORCE AGREEMENT. Upon the breach of any
term of this Agreement, either party shall have the
right to specifically enforce the terms hereof.
Accordingly, should the City have fulfilled the terms
of this Agreement and BBRC should fail or refuse to
consummate the Annexation pursuant to the terms hereof,
the City shall have the full right and authority to
initiate and/or complete the Annexation and to that
extent, BBRC waives its right to protest such Annexation.
•
In witness hereof, this Agreement is executed as of the
date first set forth hereinabove.
BBRC:
THE CITY:
Bear Brand Ranch Company- The City of San Juan Capistrano
Peppertree Bend Project, -
a California limited partnership By: ��r �-
KENNETH E. F IES
By: Bear Brand Ranch Company, Its Mayor
a California limited
partn ship y:
B Its Ci Clerk
Robert . Hill,
General Partner e�
By:�.._tf/�rl APPROVED AS TO FORM:
Obert L. Wish, an
individual General
Partner ge
21MES S. OKAZAKI, TY ATTORNEY
11