Recording Requested By: CITY OF SARATOGA After Recordation Return To: CITY OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 FOR RECORDATION WITH THE RECORDER S OFFICE OF THE COUNTY OF SANTA CLARA JOHN AND TARA COUCH Page 1 of 9
THIS (Agreement) is made and entered into the 7th day of March, 2012, by and between the CITY OF SARATOGA (City), a municipal corporation of the State of California, and the Couch 2010 Revocable Trust (Owner). The Agreement is made operative and effective as of March 7, 2012. The Owner and the City are collectively referred to herein as the Parties. RECITALS A. WHEREAS, Owner is the owner of a certain real property (approximately 19.25 gross acres) located in the City of Saratoga within the County of Santa Clara ("Property") and more particularly delineated in Exhibit A (Development Plans) and Exhibit A-1 (Development Proposal), attached hereto and incorporated herein by this reference, as to which property Owner has applied to the City to obtain development approval; B. WHEREAS, Government Code Sections 65864 through 65869.5 authorize the City to enter into development agreements in connection with the permitted uses, and the density, and intensity of such uses, of real property within its jurisdiction; C. WHEREAS, [T]he statement of legislative purpose in Section 65864 encourages the creation of rights and obligations early in a project to promote public and private participation during planning. Santa Margarita Area Residents v. San Luis Obispo County (2000) 84 Cal.App.4th 221, 228; D. WHEREAS, Government Code Section 65864 (c) has been held to support the concept that the scope of development agreements need not be limited to freezing land use rules but can include other promises between the municipality and the developer. Mammoth Lakes Land Acquisition v Town of Mammoth Lakes (2011) 191 Cal.App.4th 435, 444; E. WHEREAS, the Property was previously developed with a single family dwelling, detached garage, swimming pool, stable/barn, horse corral/riding arena, and horse walker area; F. WHEREAS, Owner has demolished the existing single family dwelling, swimming pool, and stable/barn; G. WHEREAS, Owner will retain the existing detached garage, horse corral/riding arena, and horse walker area; H. WHEREAS, Owner submitted an application for a subdivision of the Property into two lots with a remainder parcel, but has agreed in exchange for this Agreement not to subdivide the Property, and such agreement not to subdivide the property provides a substantial benefit to the City of Saratoga and its citizens; I. WHEREAS, Owner submitted a Design Review application for approval to construct a new single family dwelling, attached garage, basement, secondary dwelling unit, and swimming pool, located on the Property; JOHN AND TARA COUCH Page 2 of 9
J. WHEREAS, Owner has also submitted a Conditional Use Permit application and request for a Variation from Standards for excess lot coverage and floor area on the Property associated with the horse walker area, horse corral/riding arena, and future buildings, hardscape, and landscape; K. WHEREAS, Owner will be required to obtain Design Review approval for the future buildings, hardscape, and landscape; L. WHEREAS, the driveway which provided access to both the main dwelling and equestrian uses will not count towards lot coverage; M. WHEREAS, the Property will be developed as delineated in the Development Plans (Exhibit A) and Development Proposal (Exhibit A-1); N. WHEREAS, Owner agreed to include a Conservation Easement (Exhibit B) over 4.14 (gross) acres of the steepest portion of the lot ( Easement Area ), and pursuant to said agreement executed a Deed Restriction to that effect, recorded as Document No. in the office of the County Recorder, County of Santa Clara, California on ; O. WHEREAS, approval of the Development Proposal was materially based on the Conservation Easement and Agreement not to subdivide the property such that the development potential for development on the easement area and/or subdivided parcel was extinguished; P. WHEREAS, development of the Property in accordance with the terms of this Agreement will result in rational comprehensive planning and foster predictability, certainty, economy and efficiency in future land use planning; Q. WHEREAS, the purpose of this Agreement is to set forth the City's and Owner's respective responsibilities and understandings in pursuing and achieving the Development Proposal; hence, the Parties intend and agree that the Property be subject to the following specified agreements and conditions; and, R. WHEREAS, this Agreement is in conformity with the public convenience, general welfare and good land use policies. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, the Parties hereby agree as follows: 1. Subdivision. Upon approval of the development proposal, Owner agrees that the entire 19.34 acre Property will consist of one legal parcel, and that no additional, separate legal parcels may be recognized by a certificate of compliance pursuant to California Government Code Section 66499.35 based on previous patent or deed conveyances, subdivisions or surveys. Owner will not apply for or otherwise seek recognition of additional legal parcels within the JOHN AND TARA COUCH Page 3 of 9
Property based on certificates of compliance or any other authority other than provided for herein. The term subdivision shall include, but not be limited to, the creation of a life or future estate in a portion of the Property, the conveyance of a portion of the Property for any purpose (including acquisition of all or any portion thereof by a public entity, other than property interests already owned or required to be dedicated by the City), or any subdivision as defined by the Subdivision Map Act, California Government Code Section 66000 et seq. Any land transferred by lot line adjustment shall remain subject to the terms of this Agreement, and shall not carry with it any rights to development density. Any subdivision, lot line adjustment or other division of the Property, other than provided for herein, are strictly prohibited by this Agreement. Owner understands that by agreeing to the terms of this Agreement, the City of Saratoga may deny approval of any subdivision or lot line adjustment, including a tentative map or a parcel map for which a tentative map was not required. 2. Application and Approval for Development Proposal. The Owner has formally submitted to the City Development Plans (Exhibit A) and a Development Proposal (Exhibit A-1) and is incorporated herein by this reference, which included the following essential elements: a. Conditional Use Permit and Variation from Standards. Owner shall obtain City approval for a Conditional Use Permit and a Variation of Standards as to lot coverage and floor area for the equestrian uses as they relate to the entire Development Proposal to be located on the Property; b. Design Review/Building Permit: Owner shall be required to obtain a Design Review Approval for the development proposal and a Building Permit(s) as required by the City Code for implementation of the project once approved; c. Deed Restriction Recordation. Owner shall record this Agreement in the Official Records of the County of Santa Clara, California and Owner shall provide an endorsed copy of this instrument to the City of Saratoga prior to issuance of building permits for the project referenced in RECITAL A above. The City may re-record this Agreement whenever re-recording is determined by the City as necessary or convenient to preserve City s rights in this Agreement. The terms and conditions of the agreement shall run with the land which is to be developed and shall be binding upon the successor in interest of the applicant. The permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes are specified in Exhibit A-1. 3. Process. The City staff and Planning Commission reviewed the Development Proposal submitted under Paragraph 2 above at its regular meeting on February 8, 2012, and made recommendations to the City Council which approved the Agreement (including but not limited to the Development Proposal) at its regular meeting on March 7, 2012. JOHN AND TARA COUCH Page 4 of 9
4. Term. This Agreement shall be dated, the rights, duties and obligations of the Parties hereunder shall be effective, and the Term shall commence, as of the Effective Date. This Agreement shall remain effective until such time as the Parties agree the Development Proposal does not require any variation from standards to comply with the City Code in effect at the time of execution of this Agreement. 5. Legal Action. Any party may, in addition to any other rights or remedies herein provided, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation hereof, enforce by specific performance the obligations and rights of the Parties hereto or obtain any other remedy consistent with this Agreement. In no event shall any party be entitled hereunder to monetary damages for any action or inaction of another party hereunder, including breach of contract. Nothing in this Section shall be deemed to limit any party's rights under the Tort Claims Act or the City's right to collect fees allowable and otherwise due and payable or to impose penalties for violations of City Plans, Ordinances or Regulations. 6. Attorneys Fees and Costs. If legal action by any party is brought because of a breach of this Agreement, or to enforce a provision of this Agreement, each party shall bear their own attorneys fees and costs. 7. Controlling Law. This Agreement shall be construed and enforced in accord with the laws of the State of California. 8. No Joint Venture or Partnership. The Parties hereby renounce the existence of any form of joint venture or partnership between any or all of the Parties and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making any or all of the Parties joint venturers or partners. Further, the Owner is not an agent of the City. 9. Agreement By Owner to Indemnify, Hold Harmless and Defend City as to Action(s) Challenging Approval of this Agreement and All City Actions Processed Prior To Or Concurrently With The Agreement and as to Damage From Performance of Work Authorized by Any Of Such Actions. Other than legal proceedings caused by acts or omissions of the City that constitute an Event of Default by the City under this Agreement, Owner (or Owner's successor(s) performing work described in Subsection b. below) hereby agrees to defend, indemnify and hold the City and its officers, officials, boards, commissions, employees, agents and volunteers (collectively "City") harmless from and against: a. any and all claims, actions or proceedings to attack, set aside, void or annul any action by City concerning this Agreement, or any of the proceedings, acts or determinations taken, done or made prior to or concurrently with this Agreement; b. any losses arising out of or in connection with, or caused on account of, (i) any City Approval with respect to Owners Property, and (ii) any litigation or other proceeding challenging or involving any City approval (any permit or other approval required by the City), or CEQA compliance, or conformance with, or implementation of any of the foregoing; and JOHN AND TARA COUCH Page 5 of 9
c. any and all claims, demands, actions, expenses or liabilities arising from or in any manner relating to the performance of the construction, installation, alteration or grading work by the Owner, or by Owner's successor(s), or by any person acting on their behalf, authorized by any City action described in subparagraph 9.a. above. Owner's obligations under subparagraph 9 above shall prevail over any other provision in this Agreement. 10. Cooperation in the Event of Legal Challenge. In the event of any administrative, legal or equitable action or other proceeding instituted by a third party, governmental agency or official challenging the validity of any provision of this Agreement or the proceedings described herein, the Parties shall cooperate in defending the action or proceeding. 11. Notices. All notices or communications required hereunder between the Parties shall be in writing and may be given either personally, by overnight carrier, or by first class mail, addressed to the party intended to be notified. The notice shall be deemed to have been given and received on the date delivered in person, or the date of delivery receipt from the overnight carrier, or five days after deposit with the United States Post Office. Any Party hereto, by giving ten (10) days written notice to the other, may designate any other address as substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the Parties at the addresses set forth below until duly changed as set forth above. City Clerk City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 John and Tara Couch/Owner 15001 Montalvo Road Saratoga, CA 95070 Copy to: Richard S. Taylor City Attorney, City of Saratoga Shute Mihaly & Weinberger LLP 396 Hayes Street San Francisco, CA 94102 12. Miscellaneous. a. Successor and Assigns. The covenants, terms, conditions and restrictions of this Agreement shall apply to, bind and inure to the benefit of successors in interest of the Parties hereto, including heirs, assigns, representatives, executors, administrators and all other parties, whether they succeed by operation of law or voluntary acts of the City or Owner. All such successors in interest shall be bound to every provision in this Agreement, whether or not this Agreement is referred to in the instrument by which such successors in interest acquire an interest in Owner's Properties or any thereof. JOHN AND TARA COUCH Page 6 of 9
b. Construction of Agreement... All of the provisions of this Agreement have been negotiated at arms-length between the parties and after advice by counsel and/or other representatives chosen by each party, and the parties are fully informed with respect thereto. Therefore, this Agreement shall not be construed for or against either party by reason of the authorship or alleged authorship of any provisions hereof, or by reason of the status of either party. c. Amendment of Agreement. This Agreement may be amended, but only in writing by mutual agreement of the original Parties or their successors in interest. d. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, unless the provision held invalid forms a material consideration of this Agreement. e. Change in Law. If a subsequent change occurs in federal or state laws or regulations which precludes compliance with a provision of this Agreement, that provision shall be modified or suspended only to the extent necessary to comply with the federal or state law or regulation. f. Enforceability. Unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereinafter enacted or adopted in any applicable General Plan or Specific Plan, zoning ordinance, subdivision ordinance or any other land use or building ordinance. g. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of an event of default shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omission by a party to take any action with respect to such event of default. h. Entire Agreement. This Agreement, and the conditions referred to herein, and the exhibits attached hereto, constitute the entire understanding and agreement of the parties and supersedes all negotiation(s) or previous agreement(s) of the parties with respect to all or part of the subject matter hereof. No alteration or variation of this instrument shall be valid or binding unless contained in a duly executed written amendment to this Agreement. i. Captions. The captions in this Agreement have been inserted solely for convenience or reference and are not a part of this instrument and shall have no effect upon construction or interpretation. JOHN AND TARA COUCH Page 7 of 9
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective representatives as follows: CITY OF SARATOGA, CALIFORNIA a Municipal Corporation Approved as to Form: By: Dave Anderson, City Manager Richard Taylor, City Attorney ATTEST: Crystal Morrow, City Clerk By: John Couch, Couch 2010 Revocable Trust By: Tara Couch, Couch 2010 Revocable Trust Approved as to Form: JOHN AND TARA COUCH Page 8 of 9
State of California County of } ss. JOHN AND TARA COUCH ACKNOWLEDGMENT On, before me, Notary Public, personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of } ss. ACKNOWLEDGMENT On, before me, Notary Public, personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature JOHN AND TARA COUCH Page 9 of 9