Loading...
Deferred Agricultural Mitigation Agreement - Monterey Road Investment Group, LLCRECORDING REQUESTED BY: City of Gilroy WHEN RECORDED, MAIL TO: ) Shawna Freels City Clerk ) City of Gilroy ) 7351 Rosanna Street ) Gilroy, CA 95020 ) DOCUMENT: 21530694 Pages: 13 Fees.... No Fees Taxes.. Copies. AMT PAID REGINA ALCOMENDRAS RDE # 007 SANTA CLARA COUNTY RECORDER 2/08/2012 Recorded at the request of 10 :52 AM City RECORDED WITHOUT FEE PER CALIFORNIA GOVERNMENT CODE SECTIONS 6103 & 27383 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) AGREEMENT FOR DEFERRRED AGRICULTURAL MITIGATION BY AND BETWEEN THE CITY OF GILROY AND MONTEREY ROAD INVESTMENT GROUP, LLC RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Gilroy Attn: Shawna Freels, City Clerk 7351 Rosanna Street Gilroy, CA 95020 SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR DEFERRED AGRICULTURAL MITIGATION BY AND BETWEEN THE CITY OF GILROY AND MONTEREY ROAD INVESTMENT GROUP, LLC THIS DEFERRED AGRICULTURAL MITIGATION AGREEMENT ( "Agreement ") by and between the City of Gilroy, a California municipal corporation ( "City "), Monterey Road Investment Group LLC, a California limited liability company, ( "Owner"), is entered into this 2vi ( "Effective Date ") RECITALS 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 ILAC1847423.2 1 122011 - 04706089 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. Owner is proposing a housing and neighborhood - serving commercial development on approximately twenty (20) acres of real property located in the City of Gilroy. The legal description for this property is attached hereto as Exhibit "A ". E. The proposed development will cause the loss of approximately twelve and 2/100 (12.2) acres of prime agricultural land as determined during the final project application process, although described in the EIR for the project as seventeen (17) acres. The property is therefore subject to the requirement to mitigate the development's impact on agricultural resources. F. Owner has applied to the City for a zone change of the property from Open Space to Commercial Industrial and for a tentative map to subdivide the property into seventeen (17) lots for commercial and industrial uses. G. The size of the area of the property requiring mitigation will be determined with the processing of the first tentative map for the property, 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: 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. 1LAC1847423.2 122011 - 04706089 2 Project: shall mean a commercial and industrial development as described in the EIR entitled "Monterey Road Commercial Center and Fortino Zone Change and Subdivision EIR." Property: shall mean Owner's property consisting of approximately twenty(20) acres, located in the City of Gilroy, which Property is further described in the attached Exhibit /.\ Required Mitigation Areas: shall mean those certain agricultural areas identified in Figure 4.4 -2 and Table 4.4 -5 of the City of Gilroy's General Plan 2020 EIR. 2. Agreement to Pay Agricultural Mitigation Fee. Owner 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, and designated "Prime" or lands of "Statewide Importance" by the State Department of Conservation as shown on their latest "Important Farmland Map, 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. It shall also include costs of program administration in purchasing and monitoring of conservation easements by City- approved agencies that establish such easements in the Preferred Preservation Area with funds from the City's in -lieu fee program as described in Section 1.02(E) of the Policy. 3. Determination of Developable Area. Upon issuance of the tentative map, 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 that portion of the Property being converted from UC1847423.2 3 122011 - 04706089 agricultural use to a non - agricultural use, 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. Concurrently with the filing of an application to the City for the first tentative map in connection with the Property, City shall require Owner to pay a deposit of no less than Fifteen Thousand Dollars ($15,000.00) to be used toward costs of the appraisal and City costs in connection therewith. The City shall use an appraiser who has an MAI designation with experience in appraising properties in the South County area. Upon 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 Owner 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 Owner, minus the deposit, after completion of the appraisal. Owner shall pay said costs within ten (10) days of receiving such invoice from City. 5. Calculation and Payment of Agricultural Mitigation Fee. After completion of the appraisal, City will calculate the Agricultural Mitigation Fee and provide Owner with its written determination thereof. Payment of the Agricultural Mitigation Fee shall be made a condition of the tentative map, to which condition Owner consents and agrees not to object, appeal, or protest. Owner shall pay the Agricultural Mitigation Fee, minus any unused and unencumbered deposits made by Owner to City, prior to City's approval of the first final map for the Property. Adjustment of the 1LAC1847423.2 4 122011 - 04706089 Agricultural Mitigation Fee established hereunder is limited by the Policy to no more than every two years. 6. Termination of Agreement. (a) Termination: This Agreement shall terminate, at the option of City in its sole discretion, on the occurrence of any of the following events: (1) Bankruptcy or insolvency of Owner. (2) Assignment of this Agreement by Owner without consent of City. (b) Owner Default. Should Owner 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 Owner. 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. Assignment. 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 Owner 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, Owner 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. Owner 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. TAM847423.2 122011 - 04706089 5 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. 10. Indemnity. Owner 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 Headings. 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 Agreement. 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 supercede 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 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. 1AC1847423.2 6 122011 - 04706089 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 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 Owner: Monterey Road Investment Group LLC, a California limited liability company 430 First St., Suite A Gilroy, CA 95020. Fax: 408 - 847 -8134 15. Time of the Essence. All dates and times referred to in this Agreement are of the essence. 16. Waiver. Owner agrees that waiver by City of any one 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. ILAC1847423.2 122011 - 04706089 7 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. Severability. 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 Owner's payment obligations under this Agreement are determined to be void, unenforceable or invalid, then this Agreement shall be deemed terminated. 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. H IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written below. OWNER: CITY: Monterey Road Investment Group LLC, a CITY GILROY California limi d liab' ompany y: By: B Name: Mar Hewel Name: Thomas J. Haglund Title: Its Managing Member Titlp: City Administrator Date: 3_ -1 2— Date: )1 1 ?z (Z' ILAC1847423.2 122011 - 04706089 g Social Security or Taxpayer Identification Number: -55-1 - Ob - 9(?z-L- 1LAC1847423.2 122011 - 04706089 Approved as to Form 6,. Lin a Callon City Attorney STATE OF CALIFORNIA %�� ss. COUNTY OF --, l On y� befpre me,' t YICAa j Q impersonally appeared r Y 1L u )c I , ❑ personally known to me -OR- M' INGA ALONZO Commission at 1931989 Notary Public - California = Santa Clara County My Comm. Expires Apr 15.2015 1LAC1847423.2 122011 - 04706089 proved to me on the basis of satisfactory evidenc to be the person(*, whose name(a*e subscribed to the within instrument and acknowledged to me that executed the same in @hihe heir authorized capacity(i)i ), and that by his /her /their signature(,K) on the instrument the person(, or the entity upon behalf of which the person(sX acted, executed the instrument. WITNESS my hand and official seal. U F 11112TIM4 1 I, • • • 1� 10 CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICERS(S) L Title(s) PARTNER(S) ❑ LIMITED ❑ GENERAL ATTORNEY -IN-FACT TRUSTEE(S) GUARDIAN /CONSERVATOR OTHER: SIGNER IS REPRESENTING: Name of Person(s) or Entity(ies) STATE OF CALIFORNIA /� i COUNTY OF f�A C- Goa ss. On 11 I Z , before we , 1 ngCt„A10 hZ:D personally appeared :Thonci�5 S. boat nd ❑ personally known to me -OR- INGA ALONZ0 Commission # 1931909 r' Notary Public • California Santa Clara County M Comm. Expires A r 15, 2015 ILAM847423.2 122011 - 04706089 proved to me on the basis of satisfactory evidence to be the person(�6 whose name(%) is are subscribed to the within instrument and acknowledged to me that heefhey+- executed the same in t ker,ltkei authorized capacity(ik), and that by his Gr4heir signature(4 on the instrument the person(, or the entity upon behalf of which the personA acted, executed the instrument. WITNESS my hand and official seal. �J"bq? a&4&— "ATURE OF NO RY 11 CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICERS(S) C Title(s) PARTNER(S) ❑ LIMITED ❑ GENERAL ATTORNEY -IN -FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: SIGNER IS REPRESENTING: Name of Person(s) or Entity(ies) r • r EXHIBIT A The land referred to is situated in the County of Santa Clara, City of Gilroy, State of California, and is described as follows: Parcel One: Parcel One, as shown on that Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California on February 20, 1990, in Book 610 of Maps, Page 48. Excepting therefrom an 112. interest in and to the water well site being more particularly described as follows: Beginning at a point which bears South 180 14' 17" East 243,90 feet; South 201 30' 59" East, 45.00 feet, and North 690 29' 01" East, 15.00 feet form an iron pipe marking the Southwesterly corner of that certain Parcel A of land as shown on a Parcel Map of a "Portion of Lot 2 of Subdivision of Thomas Rea, Las Animas Ranch Lots 53 and 54, recorded in Book F of Maps at Page 24, Santa Clara County Records" as said Map was recorded September 6, 1978 in Book 426 of Maps at Page 1, Santa Clara County Records; thence North 691 29'01" East, 20.00 feet; North 200 30' 59" West, 20.00 feet; South 691 29' 01" West 20.00 feet; and South 200 30' 59" East 20.00 feet to the point of beginning. Parcel Two: An easement for ingress and egress over that portion of Parcel 2 designated and delineated as "Ingress and Egress easement for benefit of Parcel 1" on that Parcel Map filed for record in the Office of the Recorder of the County of Santa Clara, State of California on February 20, 1990, in Book 610 of Maps, Page 48, APN: 841 -31 -021