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Pre-Annexation Agreement
This Pre -Annexation Agreement (”Agreement”) is made and entered into this _____ day of ______________, by and among the City of Visalia, a charter law city (“City’) and
______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (hereinafter “Owners”):
RECITALS
WHEREAS, Owners are the record owners of a portion of property, currently located in the unincorporated area of the C ounty of Tulare, legally described in Exhibit A and depicted in Exhibit B, which are attached hereto and incorporated herein by reference (hereinafter referred to as the “Property”); and
WHEREAS, the Property is adjacent to and contiguous to the existing corporate boundary of the City, but is not situated within the limits of any municipality; and
WHEREAS, Owner s desires to have the Property anne xed to the City and to have the Propert y zoned as R-1-20 ( Single Family Residential, 20 ,000 sq uare foot minimum site area) , which would permit the Property to be used for Ver Low Density Residential use; and
WHEREAS, the Property consists of approximately 69.35 acres, and no electors reside thereon; and
WHEREAS, proper applications have been filed with the City for approval of the annexation, tentative subdivision map, tentative parcel map , and conditional uses as may be required for the Property; and
WHEREAS, the City has, by a resolution requesting initiation of proceedings to annex territory (“Resolution”) adopted on __________________, initiated proceedings to annex the Property; and
WHEREAS, finding adoption of Resolution No. ___________________ initiating annexation requires entry into this Annexation Agreement prior to the City submitting an application to the Loca l Area Formation Commission to commence the proposed annexation; and
WHEREAS, Owners acknowledges that during the term of this Agreement the Property will be subject to all ordinances, resolutions, and other regulations of the City, as they may be amended from time to time, as well as state and federal statutes and regulations, as they may be amended.
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WHEREAS, the City is authorized by its police powers to protect the health, safety and welfare of the community, and is entering into this Agreement and executing such authority for said purpose; and
WHEREAS, nothing contained in this Agreement shall constitute a waiver of the City’s legislative, governmental, or police powers to promote and protect the health, safety and welfare of the City and its inhabitants, no r shall this Agreement prohibit the enactment or increase by town of any tax, fee, or charge.
NOW, THEREFORE, in consideration of the above Recitals and the following Covenants, it is agreed by and between the parties as follows:
I. AGREEMENT
A. Parties. The parties to this Agreement are the City and Owners.
B. Incorporation of Recitals . The parties confirm and incorporate the foregoing Recitals into this Agreement.
C. Purpose/Limits of Agreement. A specific purpose of this Agreement is to set forth specific terms and conditions of annexation of the Property to City.
II. TERMS AND CONDITIONS OF ANNEXATION; PURPOSE OF
AGREEMENT
Generally, each party to this Agreement is benefited and burdened by detachment from the County and annexation to the City. Owners will obtain a variety of services from City and City will obtain additional tax revenues. City has adopted ordinances , regulations, and policies concerning design, improvement, construction, development and use of property within the City .
Nothing con tained in this Agreement shall constitute a waiver of City’s legislative, governmental, or police powers to promote and protect the health, safety, and welfare of City and its inhabitants, nor shall this Agreement prohibit the enactment or increase by City of any tax or fee. The purpose of this Agreement is to spell out additional conditions to which Owner s will be subject following annexation and prior to development within the City due to the burden placed on City by Owners desired annexation:
A. Water Acquisition Policy: Although City’s current water service provider, California Water Service, continues to issue will -serve letters, City’s Council is aware of the steadily decreasing level of water in the City’s underground water aquifers and has determined that increasing development is contributing to this serious problem. Therefore, City’s Council has studied the issue and investigated possible solutions in order that it may continue to assure citizens that there will be water available to serv e the c ommunity’s needs. City’s Council is actively engaged in water replenishment activities with the Kaweah Delta Water 3 of 9
Conservation District and it has adopted a policy, as set forth in Chapter
16.54 of the Visalia Municipal Code, which requires annexa tion applicants to convey title to water rights to City upon annexation and/or to pay a fee to City (pursuant to an adopted fee schedule) so that City may acquire water for groundwater replenishment and storage in order to serve new development that comes with an nexation, including development of the Property (the “Water Acquisition Policy”). Therefore, Owners agrees that, at the time that LAFCO issues a Certificate of Completion finalizing the annexation (and upon the running of all applicable statutes of limitation related thereto), Owners will comply with the Water Acquisition Policy by entering into an agreement with City to either (i) convey to City those water rights vested in the Property, if any, (ii) agree to pay City a fee in lieu thereof, (iii) agree to some combination of an in lieu fee payment and water right conveyance, or (iv) to comply by any other method allowed by the Water Acquisition Policy, provided that such agreement includes a condition precedent requiring City’s water supplier to ag ree to serve the Property with potable water in amount sufficient to meet Owners reasonably anticipated total water demand for the Property, as determined by a valid water supply assessment prepared pursuant to California Water Code § 10910 et seq. No pos t-annexation permit or entitlement approvals concerning the Property will be issued by City unless and until Owners comply with the Water Acquisition Policy in a manner consistent with this subsection II(A). Owner s agree that it shall identify all water r ights w hich, to the best of Owners knowledge, have been used by Owners or its agents in connection with the Property, regardless of whether they are considered “vested” in the Property, and shall comply with the Water Acquisition Policy by entering into an agreement with City to convey such rights, if any, to City. City shall cooperate with Owner s in valuing such water rights for the purposes of determining the amount of offset to be applied against the in lieu fee as required pursuant of the Water Acquisi tion Po licy. Owner s further agrees that City shall have first right of refusal in acquiring upon mutually acceptable terms any water rights that Owner s own that may be in addition to those required to meet Owner s obligations under the Water Acquisition Po licy. City agrees that water rights need not be conveyed and in lieu fees shall not be made payable until City’s issuance of a building permit covering the Property and, in the event Owners apply to City for its approval of multiple building permits covering the Property, City agrees such water rights conveyance or fee payment obligation shall be allocated on a pro rata basis to each phase of development covered by each building permit, with conveyance of water rights or payment to be made on a per building permi t basis upon City’s issuance of each building permit covering the Property.
B. General Plan Maintenance Fee: On June 21, 2004, the City adopted (by Resolution 2004-63, as corrected) a General Plan Maintenance Fee.
Owners agree that, at the time LAFCO issues a Certificate of Completion finalizing the annexation (and upon the running of all applicable statutes of limitation related thereto), Owners will enter into an agreement with City to pay the General Plan Maintenance Fee in an amount equal to 4 of 9
$427 per acre and no post-annexation permit or entitlement approvals concerning the Property will be issued unless and until said agreement is executed. City agrees that such fee shall not be made payable until City’s issuance of one or more building permits covering the Property and, in the event Owners apply to City for its approval of multiple building permits covering the Property, City agrees such fee payment obligation shall be allocated on a pro rata basis to each phase of development covered by each building permit, with payment to be made on a per building permit basis upon City’s issuance of each building permit covering the Property. Owners satisfaction of its obligations under this Section II(B) will satisfy any and all of Owners obligations related to and arising under the General Plan Maintenance Fee.
C. Plan For Providing Services. The parties agree to cooperate in, and to take such actions as may be necessary to ensure, the diligent preparation of a Plan For Providing Services to the Property, to be submitted to LAFCO along with City’s annexation application, in accordance with Cortese-Knox-Hertzberg Act requirements.
Developer understands and agrees that building permits and other entitlements for development on the Property will not be is sued unless and until each and every condition herein is met.
III. TERM
The term of this Agreement shall become effective when fully executed by the parties hereto ( the “Effective Date”) and continue for a period of twenty (20) years. This Agreement shall te rminate if (a) the annexation proceedings are terminated for any reason; or (b) the completion of the annexation (recordation of a Certificate of Completion) does not occur on or before one (1) year from the Effective Date. Any indemnification provision i ncluded herewith shall survive termination and continue until expiration of the statute of limitations applicable to the subject matter thereof.
IV. DEFAULT, REMEDIES AND ENFORCEMENT
In the event of breach or default of any term, condition, covenant or oblig ation of this Agreement by either party, the other party may exercise any rights available at law or in equity, including an action for specific performance or other injunctive relief, and all such remedies shall be cumulative. This Agreement shall be enforceable, unless lawfully terminated or cancelled, by any party to the Agreement or any party’s successor in interest, notwithstanding any subsequent changes in any applicable law adopted by the City which alters or amends the laws, ordinances, resolutions , rules or policies frozen by this Agreement.
V. INDEMNIFICATION
Owners agree to indemnify and hold harmless City and the City’s officers, employees, agents, and contractors, from and against all liability, claims, 5 of 9
causes of actions, and demands, including attorney’s fees and court costs, which arise out of or are in any manner connected with this Agreement or its operation, or with any other action annexation or other action determined necessary or desirable by the City in order to effectuate the annexation of Owners property, or which are in any manner connected with the City’s enforcement of this Agreement. Owner s further agree to investigate, handle, respond to, and to provide defense for and defend against or at the City’s option to pay the attorney’s f ees and court costs, which arise out of or are in any manner connected with this Agreement or its operation.
VI. MISCELLANEOUS
a. Binding Effect/Covenants to Run With Land. The Parties hereto agree to be bound by this Agreement. This Agreement shall be bindin g upon and shall inure to the benefit of the heirs, transferees, successors and assigns of the part ies hereto. The terms and conditions stated herein shall constitute covenants running with the land.
b. Assignment. Neither party shall assign, delegate or t ransfer their rights and duties in this Agreement without the written consent of the other party.
c. Authorized Signatory. The individuals executing this Agreement, by their signature hereto, declare that they are authorized to, and have the legal power, ri ght and actual authority to bind the party to the terms and conditions of this Agreement.
d. Notices. All notices under this Agreement shall be effective upon personal delivery to City, or Owners, as the case may be, three (3) business days after deposit in the Un ited States Mail, postage fully prepaid, addressed to the respective parties as follows:
To the City: City Manager
City of Visalia
220 N. Santa Fe Street
Visalia, CA 93291
With Copy to: Kenneth J. Richardson
City Attorney
Peltzer & Richardson
3746 West Mineral King
Visalia, CA 93291
To Owners: _________________________
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Or such other address as the parties may from time to time designate by giving notice as required hereunder.
e. Entire Agreement . This Agreement represents the entire agreement between the City and Owners as to its subject matter and no prior oral or written understanding shall be of any force or affect.
f. Amendment. No part of this Agreement may be modified without the written consent of both parties.
g. Headings. Section headings are provided for organizational purposes only and do not in any manner affect the scope, meaning, or intent of the provisions under the heading.
h. No Third Party Beneficiaries Intended . Except as provided herein, the parties of this Agreement do not intend to provide any other party with any benefit or enforceable legal or equitable right or remedy.
i. Exhibits and Recitals . The r ecitals and any exhibits to this Agreement are fully incorporated by reference and are integral parts of this Agreement.
j. Conflict With Laws or Regulations /Severability. This Agreement is subject to all applicable laws and regulations. If any provision (s) of this Agreement is found by any court or other legal authority, or is agreed by the parties, to be in conflict with any code or regulation governing this subject, the conflicting provision(s) shall be considered null and void. If the effect of nulli fying any conflicting provision is such that a material benefit of the Agreement to either party is lost, the Agreement may be terminated at the option of the effected party. In all other cases, the remainder of the Agreement shall continue in full force and effect.
k. Waiver. A waiver of any breech of this Agreement by any party shall not constitute a continuing waiver or a waiver of any subsequent breech of the same or any other provision of this Agreement.
l. Choice of Law - Venue. This Agreement shall b e governed by the laws of the State of California and any questions arising hereunder shall be 7 of 9
construed or determined according to such law. Venue for any legal action arising from or in connection with this Agreement or the Property shall be in Tulare County, California.
m. Attorneys Fees . In the event either party commences any action, arbitration or legal proceedings for the enforcement of this Agreement, the prevailing party, as determined by the court or arbitrator, shall be entitled to recovery of its reasonable fees and costs, including attorneys fees, court costs and arbitration costs incurred in the action brought thereon.
n. No Agency, Joint Venture or Partnership . It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Owner s and that Owners are not an agent of City. City and Owners hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection therewith shall be construed as making City and Owner s joint venturers or partners.
o. Excusable Delays; Extension of Time of Performance. In the event of delays due to strikes, inability to obtain materials, civil commotion, fire, war, terrorism, lockouts, third-party litigation or other legal challenges regarding the annexation, riots, floods, earthquakes, epidemic, quarantine, freight embargoes, failure of contractors to perform, or other circumstances beyond the reasonable control of the parties and which cause substantially interferes with the ability of either party to perform its obligations under this Agreement, then the time for performance of any such obligation shall be extended for such period of time as the cause of such delay shall exist but in any event not longer than for such period of time.
p. Further Assurances. The parties will execute and deliver, upon demand by the other party, such further documents, instruments and conveyances, and shall take such further actions as su ch othe r party may request from time to time to document the transactions set forth herein.
q. Recordation of Agreement; Counterparts. This Agreement, or an abstract of its material terms and conditions shall be recorded by either party in the Official Records of the Tulare County Recorder. This Agreement may be executed in counterparts and, when all counterparts are combined, shall constitute a single agreement.
r. Future Development Impact Fees. The Owners hereby acknowledge that the City may, from time to time, adopt additional development impact fees at some time in the future after annexation of the Property. The Owners hereby agree that, in the event that the City adopts an ordinance imposing a development impact fee, in accordance with applicable legal requirements, prior to issuance of a vesting project approval for development of any portion of the Property, Owners will be subject to the 8 of 9
requirements of such citywide development impact fee program to the extent applicable at the time Owners seek a vesting project approval for a project on the Property. This provision is not intended to retroactively subject the Property to additional annexation-related fees that may be adopted in the future.
s. Prezoning. City agrees to promptly process and, after City completes and adopts its environmental review, consider Owners application to prezone the Property, as required by the Cortese-Knox-Hertzberg Act’s prezoning requirements. The Single Family Residential, 20,000 square foot minimum lot size (R-1-20) zoning designation is the adopted prezoning for the Property, in accordance with Visalia Municipal Code Chapter
17.12 and Section 17.06.050(A), which section states that all territory which is annexed into the City shall be classified to the zone as indicated on the Visalia General Plan land use map, as adopted by the City (the “Prezoning”). The Single Family Residential, 20,000 square foot minimum lot size zoning designation permits residential land uses, as specified by the City of Visalia Municipal Code. Upon execution of this Agreement, City shall use its best efforts to (i) promptly complete its environmental review of the Project and consider its adoption thereof, and (ii) complete its preparation of the proposed prezoning contemplated by this subsection II(E) and consider its approval thereof. If City approves the prezoning contemplated by this subsection II(E), the terms and conditions of such prezoning shall be included in City’s application to LAFCO for the annexation of the Property to City, which application shall promptly be submitted to LAFCO by City.
t. Development Impact Fees: The Owners shall pay all applicable development impact fees for any subsequent development on the Property at the time that building permits are issued, or prior to issuance of final occupancy, if applicable, at the discretion of the Community Development Director, or as may be required by ordinance. A list and amount of development impact fees can be located in the City’s current version of the Development Fee Schedule.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth next to their signature.
CITY
Date: ____________ By: _________________________________ Leslie Caviglia, City Manager
Attest:
Date: ____________ By: _________________________________ Michelle Nicholson, City Clerk
Approved as to Form:
Date: ____________ By: _________________________________ Kenneth J. Richardson , City
Attorney
OWNERS
Date: ____________ By: ________________________________ ______________________________
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Date: ____________ By: ________________________________ ______________________________
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Date: ____________ By: ________________________________ ______________________________
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Date: ____________ By: ________________________________ ______________________________
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F:\Client Files\Visalia, City of, 700\701-00 COMMUNITY DEVELOPMENT\701-01 Planning\Memos & Correspondence\Model Annexation Agreement 10-1-04.doc