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Deferred Agricultural Mitigation Agreement - Las Animas Development, LLC I "-- RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: DOCUMENT: 19484291 Pages: 1 : City of Gilroy Attn: Rhonda Pellin, City Clerk 7351 Rosanna Street Gilroy, CA 95020 11111111111111111111,11, III Fees. Taxes. Copies AMT PAID 37 00 37 00 REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City ROE j:j 011 6/26/2007 2:55 PM SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR DEFERRED AGRICULTURAL MITIGATION BY AND BETWEEN THE CITY OF GILROY AND LAS ANIMAS DEVELOPMENT, LLC THIS DEFERRED AGRICULTURAL MITIGATION AGREEMENT ("Agreement") by and between the City of Gilroy, a California municipal corporation ("City"), and Las Animas Development, LLC, a California limited liability company, ("Developer"), is entered into this '7 'HLdOjj % M f+ (1 ) 2007 ("Effective Date"). RECIT ALS A. By its Resolution number 2004-45, the Gilroy City Council approved an Agricultural Mitigation Policy to Implement the General Plan 2020 Environmental Impact Report ("EIR") Partial Mitigation Measure 4.4-A for Significant Environmental Impacts on Agricultural Uses. This Agreement is entered into pursuant to the terms of that Policy. B. The EIR would otherwise have required the mitigation to take place at the first application to convert agricultural property to an urbanized use, but the Agricultural Mitigation Policy allows a deferral of the fulfillment of the mitigation, in this instance by payment of a fee, by entering into this Agreement establishing the timing and specific criteria for the mitigation. C. Section 1.02(B) (3) of said Policy allows mitigation to be accomplished by specific methods, among which is the payment of certain in-lieu fees based on the appraised fair market value of development rights in certain agricultural areas, which IVPAPP1690188.6 042707-04706091 -1- are identified in Figure 4.4-2 and Table 4.4-5 of the City of Gilroy's General Plan 2020 EIR, and payment of all normal and customary administrative and transactional fees of the City charged on a cost recovery basis. The City has determined, based on the location of and the relatively small number of acres of prime agricultural land that is being displaced, that this project is eligible for mitigation by in-lieu fees. D. Developer is proposing an industrial development on approximately twenty-seven and 50/100 (27.50) acres of real property located within the city limits of the City of Gilroy. E. The proposed development will cause the loss of approximately twenty- seven and 50/100 (27.50) acres of agricultural land that is currently in a Williamson Act Contract as described in the EIR for the project. F. By its Resolution number 2005-51, the Gilroy City Council approved certain findings concerning significant effects, mitigation measures and alternatives and made a statement of overriding considerations for the Las Animas pre-zoning and annexation of parcels designated with Assessor's Parcel Numbers 835-05-005, -006, - 007, -008 and -009. G. Resolution 2005-51 found that early cancellation of the Williamson Act contract would be considered an unavoidable significant impact, requiring partial mitigation in conformance with General Plan 2020 EIR Agricultural Partial Mitigation Measure 4.4-A. H. Developer is seeking early cancellation of the Williamson Act contract, and the property is therefore subject to the requirement to mitigate the development's impact on the protected lands. I. The size of the area of the property requiring mitigation will be determined with the processing of the first tentative map for the Property or, if no map is required, upon the receipt of the application for the first discretionary approval required for the Project (or, if no discretionary approval is required, upon the application for the first building permit), based upon the calculation of developable area as set forth in the Agricultural Mitigation Policy. NOW, THEREFORE, in consideration of the foregoing recitals and of the covenants and conditions contained herein, the Parties agree as follows: IVPAPP1690188.6 042707-04706091 -2- 1. Definitions. Agricultural Mitigation Fee: shall have the meaning set forth in Section 2 herein. CEQA: shall mean the California Environmental Quality Act. Developable Area: shall have the meaning set forth in Section 3 herein. EIR: shall mean an Environmental Impact Report. Policy: shall mean the Agricultural Mitigation Policy adopted by the City Council of the City of Gilroy by Resolution number 2004-45. Project: shall mean an industrial development as described in the EIR entitled "Las Animas Annexation and Pre-zoning". Property: shall mean Developer's property consisting of approximately twenty-six and 75/100 (26.75) acres, located within the city limits of the City of Gilroy and within its sphere of influence, which Property is further described in the attached Exhibit A. 2. Aareement to Pay Aaricultural Mitiaation Fee. Developer agrees to pay City an "Agricultural Mitigation Fee" in accordance with the terms herein in an amount equal to the fair market value of development rights on agricultural property, located within the "Preferred Preservation Area" as defined in Section 1.01 of the Policy, that is similar in agricultural quality to the current quality of the property, that is, prime farmland with a soils Storie rating of 85, which land shall be known as the "Mitigation Land." The required mitigation shall be based on a one-acre to one-acre ratio for the agricultural land lost in the Developable Area of the Project. The Fee shall also include payment to the City for an appraisal of the Mitigation Land as further described in Section 4 below, and all normal and customary administrative and transactional fees, including staff time and attorneys' fees, incurred by the City and charged on a cost recovery basis. 3. Determination of Developable Area. Upon issuance of the tentative map, or, if no map is required upon the receipt of the application for the first IVPAPP1690188.6 042707-04706091 -3- discretionary approval required for the Project (or, if no discretionary approval is required, the application for the first building permit), City shall determine the total acreage of the Developable Area upon which the Agricultural Mitigation Fee shall be based. The Developable Area shall be established by calculating the total acreage of the Property covered by the Williamson Act contract, and subtracting the acreage dedicated to the following uses therefrom: a. Lands dedicated for lanes, median islands, bike lanes and pedestrian facilities which qualify for reimbursement of funding from the City's Traffic Impact Fund and are not required solely due to the proposed Project; and b. Any area intended for City public facilities as set forth in the City's General Plan or Parks Master Plan, that is adjacent to City roads and with nearby City infrastructure that can serve the Project. 4. Appraisal. City shall require Developer to pay a deposit of no less than Five Thousand Dollars ($5000) to be used toward costs of the appraisal, and City costs in connection therewith, concurrently with the filing of an application to the City for the first tentative map in connection with the Property, or, if no map is required, upon the filing of the application for the first discretionary approval required for the Project or, if no discretionary approval is required, upon the application for the first building permit. The City shall give the Developer a list of not fewer than two (2) eligible appraisers who have an MAl designation and experience in appraising properties in the South County area, from which list Developer may select the appraiser. Prior to approval of the first tentative map, City shall cause the appraiser to determine the fair market value of the development rights for the Mitigation Land. City, at City's sole option, (i) may, from time to time, require a further deposit or deposits from Developer to cover the price of the appraisal and all administrative and transactional fees, including staff time and attorneys' fees, incurred by the City on a cost recovery basis; or (ii) bill the aforementioned costs to the Developer, minus the deposit, after completion of the appraisal. Developer shall pay said costs within ten (10) days of receiving such invoice from City. IVPAPP1690188.6 042707-04706091 -4- 5. Calculation and Payment of Aaricultural Mitiaation Fee: Waiver of Protest of Condition and Waiver of Time Limits. After completion of the appraisal, City will calculate the Agricultural Mitigation Fee and provide Developer with its written determination thereof. Adjustment of the Agricultural Mitigation Fee established hereunder is limited by the Policy to no more than every two (2) years. Payment of the Agricultural Mitigation Fee shall be made a condition of the tentative map for the Project, payable prior to City's approval of the first final map for the Property, or, if no map is required, prior to the first discretionary approval or, if no discretionary approval is required, prior to the first building permit. Developer shall be permitted to subtract any unused and unencumbered deposits previously made by Developer to City from such payment. Developer consents and agrees not to object to, appeal, or protest any of the conditions and/or payments referenced in this paragraph. Developer hereby waives any permit review timelines established under the Permit Streamlining Act or the Subdivision Map Act with respect to each and every map, permit or discretionary approval that triggers the obligation hereunder for City to calculate the Agricultural Mitigation Fee for this Project. No such map, permit or other approval shall be deemed approved by operation of law in connection with the Project. This waiver shall no longer apply once the Agricultural Mitigation Fee for the entirety of the Project has been paid in full. 6. Termination of Aareement. (a) Termination: This Agreement shall terminate, at the option of City in its sole discretion, on the occurrence of any of the following events: Bankruptcy or insolvency of Developer. Assignment of this Agreement by Developer without consent of City. Developer Default. Should Developer default in the performance of this Agreement or materially breach any of its provisions, City, at City's option, may terminate this Agreement by giving written notification to Developer. Effect of Termination. If this Agreement is terminated for any reason, if the termination occurs after the Developer has paid to City all costs of the appraisal and related City expenses described in paragraph 4 above and the appraisal has been completed, then the full Agricultural Mitigation Fee is due and payable to City within IVPAPP1690188.6 042707-04706091 -5- thirty (30) days of City's notice to Developer of the amount of the Fee. If such payment is not timely made, or if termination occurs prior to the completion of the appraisal process, then City shall not be obligated following termination to accept receipt of such payment as full mitigation for the conversion of those certain agricultural lands to an urbanized use, and City shall be free thereafter not to issue any permits, maps or other approvals without requiring full mitigation for the loss of the agricultural lands. Nothing contained herein shall constrain the City or limit the City's discretion under CEQA or the City's General Plan 2020 EIR or the Project's EIR to require full mitigation of the loss of the agricultural lands. 7. Amendments or Modifications. No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. 8. Assianment. This Agreement shall be binding upon and inure to the benefit of each party hereto and their respective heirs, executors, personal representatives, successors and assigns; provided, however, that Developer shall not assign its rights under this Agreement before completion of construction of the Project and any attempt to do so shall be void and of no force or effect. Notwithstanding the foregoing prohibition on assignment, Developer shall have the right to assign its rights under this Agreement at any time to a developer which has approximately the same or greater experience, financial ability, and capability to complete the Project, upon the consent of the City, which consent shall not be unreasonably withheld. Developer shall promptly upon request by City furnish all documents or other information requested by City in order to evaluate the requested assignment. Any assignee shall agree in writing in form acceptable to the City to be bound by all provisions of this Agreement, as well as any other conditions that City may reasonably require. Any assignment made without the City's consent shall be null and void. 9. Attorneys' Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to all costs and reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. IVPAPP1690188.6 042707-04706091 -6- 10. Indemnitv. Developer shall indemnify, protect, defend with counsel of City's choice, and hold harmless City, its officers, officials, employees or agents thereof, from any and all claims, actions, suits, proceedings, or judgments against the City and any of its officers, officials, employees, or agents thereof, to attack, set aside, void or annul, an approval of the City, including actions approved by the voters of the City, concerning this Agreement. 11. Captions and Headinas. The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall neither be considered nor referred to for resolving questions of interpretation. 12. Entire Aareement. This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the mitigation of the loss of agricultural lands and contains all the covenants and agreements between the parties with respect thereto. Notwithstanding the above, this Agreement does not supersede any agreements or requirements which may have been, or will be, in the future, required of the parties pursuant to CEQA or other governing laws. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. 13. Governina Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. 14. Notices. All notices necessary or convenient to be given hereunder shall be given in writing by personal delivery, or by facsimile (with copy of such notice sent not later than the next day by U.S. mail or overnight private courier in accordance with the provisions herein), or by U.S. mail, or by overnight private courier. Facsimile notices shall be deemed received on the day sent if sent prior to 5:00 p.m. Pacific Time on a business day or, if sent after 5:00 p.m. Pacific Time or on a non-business day, then the notice will be deemed received on the next business day. Notice by U.S. mail shall be deemed received IVPAPP1690188.6 042707-04706091 -7- on the third business day following deposit into the U.S. mail. Overnight couriered notices shall be deemed received the next business day following delivery to the private courier. Mailed or couriered notices shall be addressed as set forth below, but either party may change its address by giving written notice thereof to the other in accordance with the provisions of this Article. To City: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attention: City Administrator Facsimile: (408) 846-0500 To Developer: Las Animas Development, LLC 350 Buena Vista Avenue P.O. Box 1772 Gilroy, CA 95021-1772 Attention: Augustine Melia Facsimile: (408) 848-1589 15. Time of the Essence. All dates and times referred to in this Agreement are of the essence. 16. Waiver. Developer agrees that waiver by City of anyone or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 18. Amendments. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. 19. Severabilitv. If any provision of this Agreement is, or hereinafter is adjudged by a court of competent jurisdiction to be, for any reason void, unenforceable or invalid, the remainder of this Agreement shall be and remain in full force and effect, except that if Developer's payment obligations under this Agreement are determined to be void, unenforceable or invalid, then this Agreement shall be deemed terminated. IVPAPP1690188.6 042707-04706091 -8- 20. Presumptions. The parties hereto have read this Agreement and have had the opportunity to have counsel of their own review and advise them with regard to the contents hereof. As a result, this Agreement shall be interpreted and construed only by the contents hereof and there shall be no presumption or standard of construction in favor of or against either party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. DEVELOPER: CITY: LAS ANIMAS DEVELOPMENT, LLC A California limited liability company BY:~~ Name: gustine Melia Title: Managing Member Social Security or Taxpayer Identification Number: 71 -OS-G.o q 0 9 t, Appr~ved as to Form 7'\ 1J~ Linda Callon City Attorney Attes~ . \::/\,. ...lft{~"(r' Rhonda Pellin City Clerk d, ' \ ; A'~-{ t<.. IVPAPPI690188,6 042707-04706091 -9- STATE OF CALIFORNIA COUNTY OF ~(\+a Che(\. } ss. ? -.l..~" (\o<A~'1 ".. 0\ ./-'A-personally CAPACITY CLAIMED BY SIGNER On Mo,,! I 1..00~, before me, bp(,{C\<JZP. / ' I' appearedA-I A ~ iI'-\- , ("Ie 1"\ e I C" ~ personally known to me -OR- D 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. - ~ - - ~ - - - -.~ ESPERANZA ORTI~'?l r ta commllSlOf'l/l 1597321 " 3. NotarY PubI\C . CaHfomlO ~ ! Santa Clara county L _ _ ~~:.~~2~~ IVPAPP1690188_6 042707-04706091 WITNESS my hand and official seal. r:~~ ,(1\~ SIGN REOFN T RY -10- Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. D INDIVIDUAL D CORPORATE OFFICERS(S) Title(s) D PARTNER(S) D LIMITED D GENERAL D ATTORNEY-IN-FACT D TRUSTEE(S) D GUARDIAN/CONSERVATOR D OTHER: SIGNER IS REPRESENTING: Name of Person( s) or Entity( ies) STATE OF CALIFORNIA ) )ss. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: Agreement for Deferred Agricultural Mitigation by and between the City of Gilroy and Las Animas Development, LLC On May 29,2007, before me, Rhonda Pellin, Notary Public, personally appeared Jay Baksa personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and of~cial seal. J" / drhtl/ ) ,cC i(" Signature of Notary P~blic J.......-..-..-..-..-..-..-..-..-..-..- RHONDA PElLlN - Commission # 1581056 ~ i Me> Notary Public - Callfomla f Santa Clara County - MyComm. Exp/resJun 19, 2 per GC Sec. 40814; CC Sec. 1181 (Notary Seal)