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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