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HomeMy WebLinkAbout04/01/2008, C8 - PRE-ANNEXATION AGREEMENT PROPOSED FOR 117 SUBURBAN ROAD IN THE AIRPORT AREA. 41 COunt./iL M..unD.ea ac En as nepoM CITY O F SAN LUIS OBISPO FROM: John Mandeville, Community Development Director Prepared By: Michael Codron, Associate Planner SUBJECT: PRE-ANNEXATION AGREEMENT PROPOSED FOR 117 SUBURBAN ROAD IN THE AIRPORT AREA. CAO RECOMMENDATION Approve a pre-annexation agreement for 117 Suburban Road, located in the Airport Area. DISCUSSION On February 20, 2007, the City Council adopted a phasing plan for annexation of the Airport Area and endorsed a standard pre-annexation agreement for properties with unique circumstances (Attachment 1, City Council Minutes, 2-20-07). The City of San Luis Obispo subsequently submitted an application to the Local Agency Formation Commission (LAFCO) for annexation of the first 620 acres of land in the annexation area, including the remaining unincorporated portions of the Margarita Area.. The City's annexation request will be considered by LAFCO during a public hearing scheduled for April 17, 2008. Any pre-annexation agreements that are approved will be forwarded to LAFCO staff prior to the annexation hearing. One property owner is now requesting Council approval of a pre-annexation agreement. The property is home to Air-Vol Block, located on 117 Suburban Road. The property owner is Robert J. Miller, the longtime owner and operator of the business (Attachment 2, Vicinity Map). General Discussion of Pre-Annexation Agreements Annexation agreements have been used by the City to facilitate many of the annexations undertaken in recent years. In the past, these agreements have been used to stipulate City services that would be available to property owners upon completion of the annexation. Pre-annexation agreements for interim Airport Area annexations also allowed property owners to pre-pay water and sewer impact fees and open space in-lieu fees. In order to secure orderly and favorable annexation; pre-annexation agreements can be offered to property owners with unique circumstances such as pending applications for development in the county. The proposed pre-annexation agreement recites the current standards and codes that apply to all property in the annexation area. C�� 1 Airport Area—Air-Vol Block r-re-Annexation Agreement - Page 2 The proposed agreement also includes components that are specific to the Air-Vol Block property and issues that relate to the existing use of the sites. Pre-annexation agreements cannot be used to circumvent current codes or standards; they simply clarify how existing codes and standards would be applied relative to the property in question. The pre-annexation agreements are a benefit to property owner's because they elaborate on how the City's policies will be applied, providing more certainty regarding interpretation and application of code standards. Conditionally Allowed Uses Air-Vol Block is a concrete block manufacturer and this use is defined in the Zoning Regulations as Heavy Manufacturing. Heavy Manufacturing is conditionally allowed in the Airport Area with the approval of an Administrative Use Permit. Once annexed, the use will become legal, non-conforming until an Administrative Use Permit is obtained. As a legal, non-conforming use, the business can continue indefinitely in its current state. Proposed expansion of the existing use, however, will trigger the requirement to obtain an Administrative Use Permit. In this case, expansion of the existing use means adding floor area to one of the buildings on the property. In this case, approval of an Administrative Use Permit would eliminate the non- conforming status of Air-Vol Block. The property owners are not likely to pursue approval of an Administrative Use Permit without a requirement to do so because of permit fees and code requirements, such as frontage improvements, that are normally triggered by discretionary approvals. Air-Vol Block Agreement The Air-Vol Block agreement (Attachment 3) is consistent with the standard pre- annexation agreement endorsed by the City Council on February 20, 2007. Additional sections that pertain specifically to Air-Vol's operations include provisions regarding sewer service, storage, parking and property improvements that are anticipated in the future. The Air-Vol agreement also includes a provision that the City has conducted inspections of the property and has determined that there are no conditions or uses on the property that would be subject to cessation upon annexation. Also of concern to the property owner is the ability to continue to use well water for manufacturing purposes. The pre-annexation agreement specifies that the property owners may continue to use well water for irrigation and manufacturing, even after a connection to City water and sewer occurs. In fact, the Utilities Department has indicated that the use of ground water for manufacturing is a good use for this resource. The agreement also recites City policy regarding connections to City water and sewer service. These connections would only be required upon further development of the site, and the existing water well and septic system may be replaced if they fail. Airport Area—Air-Vol Block.-ire-Annexation Agreement Page 3 Non-Conforming Structures and Height Limitations for Manufacturing Equipment One of the issues raised by Air-Vol Block concerns replacement of structures on the property that exceed City height limitations. In comparison to County height standards, the City's standards are more restrictive with respect to fixed industrial equipment. The County also has an exception process by which the Planning Commission may authorize certain structures that exceed the height specified for a zone. The County normally allows up to 60 feet in height for non-portable equipment and other uninhabited structures located in the Industrial land use zone. The City's height limit is 35 feet, with an additional 10 feet allowed for mechanical equipment. Air-Vol Block does have equipment on their site that is taller than 45 feet. Staff is recommending that Council provide direction to staff to pursue an amendment to the Zoning Regulations to allow discretionary approval of increased height limits for uninhabited structures in the City's Manufacturing zone to ensure that there is a process in place to allow for replacement and upgrading of equipment on these and other sites in the annexation area. CONCURRENCES The proposed pre-annexation agreement was developed in consultation with the City Attorney's Office and the Finance Department. Both departments, as well as the Utilities and Fire Department concur with the CAO recommendation. FISCAL IMPACT There is no fiscal impact associated with approving the pre-annexation agreements. Overall, annexation of the Airport Area is expected to have a positive fiscal impact. ALTERNATIVES 1. Revise pre-annexation agreement. Direct staff to make revisions to the proposed pre-annexation agreement if there are specific changes that the Council would like to make. 2. Continue discussion. Continue consideration of the proposed pre-annexation agreement and direct staff to provide additional information to the City Council regarding the agreement at a future meeting. 3. Do not approve agreement. The Council may also choose not to approve the pre-annexation agreement for this property. This option is not recommended because the agreement is consistent with Council direction provided on February 20, 2007. � -3 Airport Area—Air-Vol Block vre-Annexation Agreement Page 4 ATTACHMENTS 1. City Council Minutes 2-20-07 2. Vicinity Map 3. Air-Vol Block Pre-Annexation Agreement T:\Attomey\Annexa6on Agreementslpm-a -agmnts(CAR).dm City Council Meeting Attachment 1/ Tuesday, February 20,20W-4:00 p.m. 6. REVIEW STEPS RELATED TO THE CITY'S PROPOSED ANNEXATION.OF THE MARGARITA AREA AND AIRPORT AREA. Community Development Director Mandeville and Associate Planner Codron presented the staff report. They and Cao Hamman,Finance Director Statler and Utilities Director Moss responded to questions. Public Comments Warren Dolezalowner of property at the intersection of Los Osos Valley Road and South Higuera Street,asked Council to consider amending CAO recommendation#3 to allow other phase 1 property owners to be included in the discussion regarding interim wastewater service as part of the annexation process. Scott.Lathroa.San Luis Obispo,explained why it would not be advantageous to include property with which he has been involved(in the vicinity of Broad Street)in the annexation process. His concerns included the timing of his project and the length of time before City sewer systems would be available. Tv Safreno.San Luis Obispo,referred to his business,Trust Automation company,located on the western comer of Tank Farm Road and the realigned Santa Fe Road. He opposed annexation because of the length of the process and lack of benefits to his project. He also expressed concern regarding the fees that would result Terry Simons representing the Damon Garcia family,explained their property Is planned to be annexed as part of phase 1 and asked that an Interim solution for the sewer services be granted as part of the development agreement Bill Almas San Luis Obispo,questioned requiring new development to pay for pre-existing conditions and problems that have not been mitigated,and suggested that creative ways need to be found to fund this Infrastructrure. Patricia Wilmore,representing Chamber of Commerce,referred to a letter from the Chamber (on file in the City Clerk's office)containing their concerns regarding fees and asking that creative fee financing or bonding be Implemented to make development feasible. John French.San Luis Obispo,expressed concern that the free structure will create a situation where properties with the same zoning could have a fee structure that is twice as large for transportation fees as a property Immediately adjacent to it. Charley Senn,San Luis Obispo,owner of property on the east side of Broad Street,expressed concern regarding the length of time it will take to accomplish the annexation and the need for the City to provide utilities for properties that will be annexed so that owners can rely on their avallibility In order to develop the property within a specific period of time. —end of public comments— Staff and Paul Hood,LAFCO Executive Officer,responded to Council's questions. Council Member Settle spoke in support of the CAO recommendation,but discussed the need to allow flexibility that would enable phase 1 property owners to receive services as soon as feasible. City Council Meeting ildaVht 1 Tuesday, February 20,2007-4:00 p.m. Vice Mayor Mulholland said she has not heard new information that would change her position of continuing to oppose annexing the Airport area. , Council Member Brown spoke in support of the CAO recommendation. Council Member Carter also spoke In support of the CAO recommendation,but wanted it to be amended to permit extending service agreements for interim wastewater service to property owners adjacent to existing infrastructure. Mayor Romero also spoke In support of the CAO recommendation and extending service agreements for interim wastewater service as noted by Council Member Carter. ACTION: Moved by Settle/Romero to: 1)Pursue annexation of Margarita Area and Airport Area properties according to the proposed phasing plan,which Identifies sub-areas that could be annexed In two or more phases. 2)Endorse the use of a standard pre-annexation agreement between the City and Interested property owners with unique circumstances. 3) Endorse discussions with the Fiero Lane Mutual Water Company to allow for Interim wastewater service as part of the an process, based on the policy advantages to the City and the unique circumstances applying to this area. 4)Directed staff to return with an analysis of what would be Involved In extending service agreements for Interim wastewater service, in addition to Flero Lane Mutual Water Company,to property owners adjacent to existing infrastructure;motion carried 4:1 (Mulholland opposed). There being no further business to come before the City Council,Mayor Romero adjourned the meeting at 11:10 p.m.to Tuesday,March 6,2007,In the Council Chamber,990 Palm Street, San Luis Obispo. Audrey Hoo r City Clerk ilf APPROVED BY COUNCIL: 03106107 1 SUBURBAN - AttaChrr2076-352-050 = cyupars.lmsA w �� ——— `I� I J � it r, I CITY OF SAN LUIS OBISPO he information contained in this database is intended for informational use only. This information is provided for the convenience of users,but GEODATA SERVICES oes not necessarily constitute precise property ownership or legal descriptions of any property,and should not be relied upon as an official 955 MORRO STREET roperty record.The City of San Luis Obispo makes every effort to ensure the accuracy of this data;however,the accuracy of this material is SAN LUIS OBISPO,CA 93401 of guaranteed and users assume responsibility for independent verification of any and all information contained herein prior to use or reliance pon such information for any official purpose.The City San Luis Obispo disclaims any responsibility or liability for any direct or indirect 805 781-7167 mages resulting from the use of this data. /19/2008 11:58 1 Attachmew 3 DRAFT 3/20/08 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo City Clerk's Office 990 Palm Street San Luis Obispo, CA 93401-3249 APN: PRE-ANNEXATION AGREEMENT BY AND BETWEEN THE CITY OF SAN LUIS OBISPO AND THE MILLER FAMILY TRUST THIS AGREEMENT is dated, for reference purposes only, as of February , 2008, and is entered into by and among the CITY OF SAN LUIS OBISPO, a chartered municipal corporation, (hereinafter referred to as "CITY") whose mailing address is 990 Palm Street, San Luis Obispo, California 93401; and Robert J. Miller,Trustee of the Miller Family Trust (hereinafter referred to as "OWNER") whose mailing address is 23358 Jefferson Point Road NE, Kingston, Washington 98346, pursuant to the authority of the City Charter and the Cortese- Knox-Hertzberg Local Government Reorganization Act of 2000 as set forth in Sections 56000 et. seq. of the California Government Code. Unless otherwise provided herein, CITY and OWNER shall be hereinafter referred to collectively as the "Parties" and singularly as a"Party." RECITALS WHEREAS, Robert.J. Miller,Trustee of the Miller Family Trust is the OWNER in fee of certain real property in an unincorporated area of the County of San Luis Obispo, commonly known as _(street address) , APN# , (the "Property") a legal description of which is attached hereto as Exhibit A and incorporated herein; and WHEREAS, the CITY, by vote of its City Council on May 1, 2007 on File No.: ANNX 172-05 has proposed that the Property be annexed to the City of San Luis Obispo along with other properties in the AASP; and WHEREAS, the Airport Area Specific Plan (AASP) and the related Facilities Masters Plans have been adopted for the purpose of identifying appropriate land uses for the Property and other properties within the annexation area; and WHEREAS, the AASP identifies the infrastructure needed to serve existing and/or future development of the Property, including, but not limited to, utilities, water and sewer service, roadways, bikeways, transit lines, and drainage improvements, and includes mechanisms to -1- C�-g 873665.7 11903.002 1tacbment 3 finance these public improvements; and WHEREAS, upon annexation the Property is entitled to the same level of police and fire protection that is available to other new users in the city and subject to the same laws,rules, regulations; and WHEREAS, to provide for the city's orderly growth and development, consistent with the General Plan, the PARTIES anticipate that the Property will be annexed to the city pursuant to terms and procedures of the California Government Code 56000 et seq; NOW THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, PARTIES agree as follows: 1. RECITALS. The foregoing Recitals are made as part hereof and incorporated by this reference. 2. CITY FINDINGS. The CITY finds and determines that, as of the effective date of this Agreement, the conditions, limitations and rights imposed by this Agreement: A. Are not detrimental to the health, safety or welfare of persons working or living at the site ("Property") or within the vicinity of the Property; B. The use of the Property as provided in this Agreement does not jeopardize persons or property within or adjacent to the Property; and C. Does not damage the resources of the Property and/or its surroundings. 3. ANNEXATION OF THE ANNEXED PROPERTY. CITY shall apply for and diligently pursue annexation of the Annexed Property subject to the following: A. URBAN SERVICES. Upon annexation, the Property shall be entitled to the full range of CITY services, including but not limited to water and sewer services,police and fire protection, and general government services, some of which are described below in more detail, to the same extent and subject to the same conditions and restrictions as other new users. Fire Protection and Police Service. Except as provided herein, CITY agrees to provide fire protection and police service to the Property subject to the same laws, rules, and regulations applicable to other similarly situated property within the City. Water Service. CITY agrees to provide water service, as available, for fire fighting and domestic purposes to the subject property upon request of OWNER, subject to the same laws, rules, regulations, and fees applicable to other new users -2- 873665.7 11903.002 CO . �ttachment in the City under similar circumstances. Use of on-site ground water for potable or non-potable uses may continue for on-site development indefinitely,provided applicable State, County and City standards are met. Even if and when OWNER requests potable water service for domestic purposes, including the office, the OWNER may in his/her sole discretion continue to use groundwater from the well for manufacturing, landscaping and other non-potable purposes. If the water well must be abandoned, the OWNER shall comply with applicable State and County regulations regarding well abandonment. However, the OWNER may drill a new well at his/her sole expense. Sewer Service. CITY agrees to provide sanitary sewer service, as available, to the subject property upon request of the OWNER subject to the same laws, rules, regulations, and fees applicable to other new users in the City under similar circumstances. Use of existing on-site septic systems may continue, including the right to expand, maintain and repair the existing septic systems,including but not limited to the leach lines, at the option of OWNER, for approved on-site development,provided applicable State, County and City Health Department standards are met. Use of on-site septic systems, including the right to expand, maintain and repair existing septic systems, shall continue, at the option of OWNER, for approved on-site development, provided applicable discharge standards are met. In the event of abandonment of septic system(s), OWNER shall comply with applicable State and County regulations regarding septic tank repair or abandonment. If the septic system fails, OWNER has the option of installing a new septic system instead of connecting to the City's sewer system. B. EXISTING AND FUTURE DEVELOPMENT. Subject to OWNER's rights and CITY's obligations and limitations as identified in this Agreement, further development of the Property shall be subject to City policies that would be applied to other properties in the City under similar circumstances,including, but not limited to, the General Plan, Airport Specific Plan and other provisions of the Municipal Code and State laws. Non-Conforming Uses. Existing uses that were established but that do not conform to the list of allowed uses provided in the AASP, or the City's Zoning Regulations, shall be allowed to continue indefinitely. When a non-conforming use ceases for a period for six (6)months, the non-conforming status will be lost and the new use must conform to the list of allowed uses, as applied to other properties with the same zoning regulations. With the approval of Administrative Use Permit, one non-conforming use shall be allowed to be replaced with any other non-conforming use, provided the Hearing Officer determines that the new use has similar or less severe impacts on its surroundings in terms of noise, traffic, parking demand hours of operation and visual incompatibility. A non-conforming single-family home may be continued without limitation. -3- 873665.7 11903.002 C(J - 10 Attachment3 Expansion of Existing Uses. With the approval of an Administrative Use Permit, expansion of the existing use shall be allowed, provided the Hearing Officer determines that the new use has similar or less severe impacts on its surroundings in terms of noise, traffic, parking demand hours of operation and visual incompatibility. Non-Conforming Structures. The existing structures (office buildings, warehouses and manufacturing buildings), lawfully existed on the date of annexation, and may be used indefinitely by OWNER and its successors in interests including the right to maintain and make reasonable repairs to such structures and to replace the structures consistent with city regulations. Changes to structural elements, interior partitions or other nonstructural improvements and repair may be made to any of the structures. C. COMPLIANCE WITH CITY STANDARDS. Once annexed, the property will be subject to the same rules, regulations, laws, fees, and taxes that would be applied to other properties, residences,businesses, and customers in the City under similar circumstances including, but not limited to the Building Code, Fire Code, environmental regulations (California Environmental Quality Act), fees, taxes (including business taxes and utility user taxes) and other provisions of the Municipal Code and State laws subject to the clarifications set forth in this Agreement. D. STORAGE. Owner's existing storage practices, to the extent that they conflict with City standards, shall be considered a legal non-conforming use and OWNER shall be allowed to continue storing its materials and products consistent with its existing storage practices. E. PARKING. The current onsite parking practices for employees and customers shall be continued as long as it is consistent with existing practices. The CITY has inspected the site and agrees that the current parking practices are consistent with current codes and regulations, and unless OWNER or a successor in interest substantially expands the operation, there is no need for additional parking spaces or to change the parking arrangement. F. PROPERTY IMPROVEMENTS. At the time of future development or redevelopment, it shall be the responsibility of OWNER to install and/or pay for improvements and fees, which may be required by permit, law, rule, or regulation. 4. CITY INSPECTIONS. The CITY police, fire,public works, community development and utilities departments (including code enforcement) have inspected the Property and have determined that the structures and uses are legal as of the effective date of the annexation. 5. ZONING. The PARTIES acknowledge that the current use and structures on the Property, as of the effective date of the annexation are permitted uses or legally nonconforming -4- 873665.7 11903.002 'Attachment 3 uses on the Property. The zoning for the Property will be Manufacturing-Specific Plan as described in Section 4.2.3 and Table 4.3 of the Airport Area Specific Plan and is hereby incorporated herein. The zoning allows for assembly, fabrication, storage and distribution, and sales and service type uses. Any proposed amendments to the Airport Area Specific Plan, in the zoning or changes in the permitted uses in the Manufacturing-Specific Plan OWNER shall receive notice and hearing as set forth in the State Zoning Law (Government Code section 65850 et seq) as may be amended from time to time. 6. WAIVER OF PROTEST. In exchange for the CITY'S promises and covenants contained in this Agreement, OWNER expressly waives for itself and its successors, transferees, assignees, and subsequent purchasers of the Property, or any portion thereof, the right to challenge or contest the validity of the annexation. 7. GOOD FAITH. Where the terms of this Agreement provide for action to be based upon opinion,judgment, approval,review or determination of either party hereto, such terms are not intended to and shall never be construed to permit such opinion,judgment, approval, review or determination to be arbitrary, capricious or unreasonable. The CITY and the OWNER shall each act in good faith in performing their respective obligations as set forth in this Agreement. 8. SUCCESSORS,HEIRS,AND ASSIGNS. This Agreement shall be recorded with the County Recorder and remain in effect and run with the Property until the termination or modification of the Agreement. The covenants established in this Agreement shall be binding on the Property, for the benefit and in favor of the CITY and the OWNER and any successor in interest to the Property (or any part of thereof). This Agreement is binding upon and shall inure to the benefit of the successors and assigns of the Parties. 9. COST OF ANNEXATION. CITY, without reimbursement from OWNER, shall bear the full cost of annexation, including but not limited to LAFCO costs, impact fees, (if any), compliance with the California Environmental Quality Act (CEQA) and other regulatory requirements. 10. AMENDMENTS,TIME EXTENSION OR CANCELLATION. This Agreement may be amended, extended, or canceled at any time by mutual written consent of the PARTIES or their successors in interest. 11. DEFAULT; ATTORNEY FEES. Each Party shall have the right, if this Agreement or any of its covenants is breached, to exercise all rights and remedies and to maintain any actions or suits in law or in equity or other property proceedings to enforce the curing of such breach, to which it may be entitled. Notwithstanding the foregoing, if a Party contends that another Party is in default hereunder such Party shall give ten (10) days written notice to cure the claimed default to the party allegedly in default. In the event of any controversy, claim, or dispute relating to this Agreement or the breach thereof,the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney's fees and costs. -5- 873665.7 11903.002 1 J �1 Attachment 3 12. GOVERNING LAW. This Agreement shall be construed and interpreted in accordance with and governed by the Constitution and laws of the State of California. 13. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original, and which shall together constitute but one and the same instrument. 14. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, or sent by registered or certified mail, postage prepaid, return receipt requested, or overnight courier, or facsimile, and shall be deemed received upon the earlier of(a) if personally delivered, the date of delivery to the address of the person to receive such notice, (b) if mailed, four(4)business days after the date of posting by United States Post Office (provided that the sender has in its possession the return receipt to prove actual delivery), (c) if given by overnight courier, upon receipt by the person to receive such notice (provided that the sending party receives a confirmation of actual delivery from the courier), or (d) if sent by facsimile, when sent unless sent after 5:00 PM at the place of sending in which case the notice shall be deemed received at 9:00 AM on the next business day. Any notice or other communication sent by facsimile must also be delivered by personal delivery, United States mail or overnight courier in accordance with the foregoing and such notice or communication must be personally delivered, deposited in the United States mail, or delivered to the overnight courier service within twenty-four(24) hours of the sending of the facsimile: To Owner: Trustee of the Miller Family Trust Attn: Robert J. Miller 23358 Jefferson Point Road NE Kinston, WA 98346 With a copy to City: City of San Luis Obispo Ann: 990 Palm Street San Luis Obispo, CA 93401 Facsimile No.: With a copy to: City of San Luis Obispo Attention: City Attorney 990 Palm Street San Luis Obispo, CA 93401 Facsimile No.: 805=781-7409 -6- 873665.7 11903.002 Attachment 3 Notice of change of address shall be given by written notice in the manner detailed in Section 14. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice or communication sent. 15. TERM OF AGREEMENT. The term of this Agreement shall begin upon the effective date of the annexation. The Agreement shall remain in effect until modified or terminated by mutual written consent of the PARTIES. In the event, the annexation shall not become effective for any reason whatsoever, this Agreement shall terminate and have no force and effect, as if, it had never been entered into by the PARTIES. -7- 873665.7 11903.002 Attachment 3 IN WITNESS WHEREOF, this agreement is executed on the date stated-above at San Luis Obispo, California. ALL SIGNATURES MUST BE NOTARIZED OWNERS BY: CITY OF SAN LUIS OBISPO, Chartered Municipal Corporation BY: Mayor David F. Romero ATTEST: BY: City Clerk Audrey Hooper APPROVED AS TO FORM: BY: tomey Jonathan Lowell -8- 873665.7 11903.002 n Q ,� Attachment 3 STATE OF ) ss COUNTY OF ) On 2008, before me, a Notary Public in and for said State, personally appeared personally known to me (or 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 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. WITNESS my hand and official seal. Signature STATE OF ) ss COUNTY OF ) On 2008, before me, a Notary Public in and for said State, personally appeared personally known to me (or 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 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. WITNESS my hand and official seal. Signature -9- 873665.7 11903.002 Attachment STATE OF ) ss COUNTY OF ) On 2008, before me, a Notary Public in and for said State, personally appeared and 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 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. WITNESS my hand and official seal. Signature STATE OF ) ss COUNTY OF ) On 2002, before me, a Notary Public in and for said State, personally appeared and or 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 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. WITNESS my hand and official seal. Signature -10- 873665.7 11903.002 �� Attachment EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [ATTACHED] 873665.7 11903.002 cq - 12 RECEIVE iiii�IiIIIIIII�IIIIII�IV��IIIIIU APR 01 7008 r - council memoianoLI ITY CLERK city of san Luis oBispo, community 6evelo ment be atttment DATE: April 1, 2008 TO: City Council RED FILE ME RITEM AGENDA VIA: Ken Hampian, CAO DATE # � FROM: John Mandeville, Community Development Dire IV1111 BY: Michael Codron, Associate Planner SUBJECT: Agenda Item C8: Minor revisions to pre-annexation agreement Minor revisions are proposed to the pre-annexation agreement that is the subject of agenda item C8 to incorporate the term"operations," as follows. Section 3.A, Sewer Service. ... Use of on-site septic systems, including the right to expand, maintain and repair existing septic systems, shall continue, at the option of OWNER, for approved on-site development operations and uses... Section 3.B, Non-Conforming Uses. Existing operations and uses that were established but that do not conform to the list of allowed uses provided in the AASP... Section 3.13, Storage. Owners' existing storage practices, to the extent that they conflict with City standards, shall be considered a legal non-conforming use and OWNER shall be allowed to continue storing its materials and products consistent with its existing storage operations and practices. The changes are intended to insure that the agreement recognizes the way the business operates in addition to the use of the property. The City Attorney's Office concurs with the change. The revised agreement, signed by the property owner, Robert J. Miller, is attached. COUNCIL TCDD DIR �01CAO ZFIN DIR .CACAO X FIRE CHIEF ®'ATTORNEY ZPW DIR OeCLERK/ORIO ZPOLICE CHF ❑ D T EA 2'REC DIR J'UTIL DIR Z HR,�DIP G:NCD-PLANNMCODRON W ASPlanne zation\air-volredfile.doc RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo City Clerk's Office 990 Palm Street San Luis Obispo, CA 93401-3249 APN: 076-352-0505 076-352-051, 076-352-017 PRE-ANNEXATION AGREEMENT BY AND BETWEEN THE CITY OF SAN LUIS OBISPO AND THE MILLER FAMILY TRUST THIS AGREEMENT is dated, for reference purposes only, as of April 1, 2008, and is entered into by and among the CITY OF SAN LUIS OBISPO, a chartered municipal corporation, (hereinafter referred to as "CITY") whose mailing address is 990 Palm Street, San Luis Obispo, California 93401; and Robert J. Miller,Trustee of the Miller Family Trust(hereinafter referred to as "OWNER")whose mailing address is 23358 Jefferson Point Road NE, Kingston, Washington 98346, pursuant to the authority of the City Charter and the Cortese-Knox- Hertzberg Local Government Reorganization Act of 2000 as set forth in Sections 56000 et. seq. of the California Government Code. Unless otherwise provided herein, CITY and OWNER shall be hereinafter referred to collectively as the "Parties"and singularly as a"Party." RECITALS WHEREAS, Robert J. Miller, Trustee of the Miller Family Trust is the OWNER in fee of certain real property in an unincorporated area of the County of San Luis Obispo, APN Nos. 076-352- 050, 076-352-051 and 076-352-017, (the "Property") a legal description of which is attached hereto as Exhibit A and incorporated herein and WHEREAS, the CITY, by vote of its City Council on May 1, 2007 on File No.: ANNX 172-05 has proposed that the Property be annexed to the City of San Luis Obispo along with other properties in the AASP; and WHEREAS, the Airport Area Specific Plan (AASP) and the related Facilities Masters Plans have been adopted for the purpose of identifying appropriate land uses for the Property and other properties within the annexation area; and WHEREAS, the AASP identifies the infrastructure needed to serve existing and/or future development of the Property,including, but not limited to, utilities, water and sewer service, roadways, bikeways, transit lines, and drainage improvements, and includes mechanisms to finance these public improvements; and WHEREAS, upon annexation the Property is entitled to the same level of police and fire protection that is available to other new users in the city and subject to the same laws, rules, regulations; and -1- 873665.7 11903.002 WHEREAS, to provide for the city's orderly growth and development, consistent with the General Plan,the PARTIES anticipate that the Property will be annexed to the city pursuant to terms and procedures of the California Government Code 56000 et seq; NOW THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, PARTIES agree as follows: 1. RECITALS. The foregoing Recitals are made as part hereof and incorporated by this reference. 2. CITY FINDINGS. The CITY finds and determines that, as of the effective date of this Agreement, the conditions, limitations and rights imposed by this Agreement: A. Are not detrimental to the health, safety or welfare of persons working or living at the site ("Property") or within the vicinity of the Property; B. The use of the Property as provided in this Agreement does not jeopardize persons or property within or adjacent to the Property; and C. Does not damage the resources of the Property and/or its surroundings. 3. ANNEXATION OF THE ANNEXED PROPERTY. CITY shall apply for and diligently pursue annexation of the Annexed Property subject to the following: A. URBAN SERVICES. Upon annexation, the Property shall be entitled to the full range of CITY services, including but not limited to water and sewer services, police and fire protection, and general government services, some of which are described below in more detail, to the same extent and subject to the same conditions and restrictions as other new users. Fire Protection and.Police Service. Except as provided herein, CITY agrees to provide fire protection and police service to the Property subject to the same laws, rules, and regulations applicable to other similarly situated property within the City. Water Service. CITY agrees to provide water service, as available, for fire fighting and domestic purposes to the subject property upon request of OWNER, and is subject to the same laws, rules,regulations, and fees applicable to other new users in the City under similar circumstances. Use of on-site ground water for potable or non-potable uses may continue for on-site development indefinitely, provided applicable State, County and City standards are met. Even if and when OWNER requests potable water service for domestic purposes, including the office, the OWNER may in his/her sole discretion continue to use groundwater from the well for manufacturing, landscaping and other non-potable purposes. If the water well must be abandoned, the OWNER shall comply with applicable State and County regulations regarding well abandonment. However, the OWNER may drill a new well at his/her sole expense. -2- 873665.7 11903.002 Sewer Service. CITY agrees to provide sanitary sewer service, as available, to the subject property upon request of the OWNER subject to the same laws,rules, regulations, and fees applicable to other new users in the City under similar circumstances. Use of existing on-site septic systems may continue, including the right to expand, maintain and repair the existing septic systems, including but not limited to the leach lines, at the option of OWNER, for approved on-site development, provided applicable State, County and City Health Department standards are met.. Use of on-site septic systems, including the right to expand, maintain and repair existing septic systems, shall continue, at the option of OWNER, for approved on-site operations and uses, provided applicable discharge standards are met. In the event of abandonment of septic system(s), OWNER shall comply with applicable State and County regulations regarding septic tank repair or abandonment. If the septic system fails, OWNER has the option of installing a new septic system instead of connecting to the City's sewer system. B. EXISTING AND FUTURE DEVELOPMENT. Subject to OWNER's rights and CITY's obligations and limitations as identified in this Agreement, further development of the Property shall be subject to City policies that would be applied to other properties in the City under similar circumstances, including, but not limited to, the General Plan, Airport Specific Plan and other provisions of the Municipal Code and State laws. Non-Conforming Uses. Existing operations and uses that were established but that do not conform to the list of allowed uses provided in the AASP, or the City's Zoning Regulations, shall be allowed to continue indefinitely. When a non- conforming use ceases for a period for six (6) months, the non-conforming status will be lost and the new use must conform to the list of allowed uses, as applied to other properties with the same zoning regulations. With the approval of Administrative Use Permit, one non-conforming use shall be allowed to be replaced with any other non-conforming use, provided the Hearing Officer determines that the new use has similar or less severe impacts on its surroundings in terms of noise, traffic, parking demand hours of operation and visual incompatibility. A non-conforming single-family home may be continued without limitation. Expansion of Existing Uses. With the approval of an Administrative Use Permit, expansion of the existing use shall be allowed, provided the Hearing Officer determines that the new use has similar or less severe impacts on its surroundings in terms of noise, traffic, parking demand hours of operation and visual incompatibility. Non-Conforming Structures. The existing structures (office buildings, warehouses and manufacturing buildings), lawfully.existed on the date of annexation, and may be used indefinitely by OWNER and its successors in interests including the right to maintain and make reasonable repairs to such structures and to replace the structures consistent with city regulations. Changes to structural elements, interior partitions or other nonstructural improvements and repair may be made to any of the structures. -3- 873665.7 11903.002 C. COMPLIANCE WITH CITY STANDARDS. Once annexed,the property will be subject to the same rules, regulations, laws, fees, and taxes that would be applied to other properties,residences,businesses, and customers in the City under similar circumstances including, but not limited to the Building Code, Fire Code, environmental regulations (California Environmental Quality Act), fees, taxes (including business taxes and utility user taxes) and other provisions of the Municipal Code and State laws subject to the clarifications set forth in this Agreement. D. STORAGE. Owner's existing storage practices, to the extent that they conflict with City standards, shall be considered a legal non-conforming use and OWNER shall be allowed to continue storing its materials and products consistent with its existing storage operations and practices. E, PARKING. The current onsite parking practices for employees and customers shall be continued as long as it is consistent with existing practices. The CITY has inspected the site and agrees that the current parking practices are consistent with current codes and regulations, and unless OWNER or a successor in interest substantially expands the operation, there is no need for additional parking spaces or to change the parking arrangement. F. PROPERTY 11"ROVEMENTS. At the time of future development or redevelopment, it shall be the responsibility of OWNER to install and/or pay for improvements and fees, which may be required by permit, law, rule, or regulation. . 4. CITY INSPECTIONS. The CITY police, fire, public works, community development and utilities departments(including code enforcement) have inspected the Property and have determined that the structures and uses are legal as of the effective date of the annexation. 5. ZONING. The PARTIES acknowledge that the current use and structures on the Property, as of the effective date of the annexation are permitted uses or legally nonconforming uses on the Property. The zoning for the Property will be Manufacturing-Specific Plan as described in Section 4.2.3 and Table 4.3 of the Airport Area Specific Plan and is hereby incorporated herein. The zoning allows for assembly, fabrication, storage and distribution, and sales and service type uses. Any proposed amendments to the Airport Area Specific Plan, in the zoning or changes in the permitted uses in the Manufacturing-Specific Plan OWNER shall receive notice and hearing as set forth in the State Zoning Law(Government Code section 65850 et seq) as may be amended from time to time. 6. WAIVER OF PROTEST. In exchange for the CITY'S promises and covenants contained in this Agreement, OWNER expressly waives for itself and its successors, transferees, assignees, and subsequent purchasers of the Property, or any portion thereof, the right to challenge or contest the validity of the annexation. 7. GOOD FAITH. Where the terms of this Agreement provide for action to be based upon opinion,judgment, approval, review or determination of either party hereto, such terms are not intended to and shall never be construed to permit such opinion,judgment, approval, review or -4- 873665.7 11903.002 determination to be arbitrary, capricious or unreasonable. The CITY and the OWNER shall each act in good faith in performing their respective obligations as set forth in this Agreement. 8. SUCCESSORS,HEIRS,AND ASSIGNS. This Agreement shall be recorded with the County Recorder and remain in effect and run with the Property until the termination or modification of the Agreement. The covenants established in this Agreement shall be binding on the Property, for the benefit and in favor of the CITY and the OWNER and any successor in interest to the Property (or any part of thereof). This Agreement is binding upon and shall inure to the benefit of the successors and assigns of the Parties. 9. COST OF ANNEXATION. CITY, without reimbursement from OWNER, shall bear the full cost of annexation, including but not limited to LAFCO costs, impact fees, (if any), compliance with the California Environmental Quality Act(CEQA) and other regulatory requirements. 10. AMENDMENTS,TIME EXTENSION OR CANCELLATION. This Agreement may be amended, extended,_or canceled at any time by mutual written consent of the PARTIES or their successors in interest. 11. DEFAULT; ATTORNEY FEES. Each Party shall have the right, if this Agreement or any of its covenants is breached,to exercise all rights and remedies and to maintain any actions or suits in law or in equity or other property proceedings to enforce the curing of such breach,to which it may be entitled. Notwithstanding the foregoing, if a Party contends that another Party is in default hereunder such Party shall give ten (10) days written notice to cure the claimed default to the party allegedly in default. In the event of any controversy, claim, or dispute relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses; attorney's fees and costs. 12. GOVERNING LAW. This Agreement shall be construed and interpreted in accordance with and governed by the Constitution and laws of the State of California. 13. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original, and which shall together constitute but one and the same instrument. 14. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, or sent by registered or certified mail,postage prepaid,return receipt requested, or overnight courier, or facsimile, and shall be deemed received upon the earlier of(a) if personally delivered, the date of delivery to the address of the person to receive such notice, (b) if mailed, four(4)business days after the date of posting by United States Post Office (provided that the sender has in its possession the return receipt to prove actual delivery), (c) if given by overnight courier, upon receipt by the person to receive such notice (provided that the sending party receives-a confirmation of actual delivery from the courier), or (d) if sent by facsimile, when sent unless sent after 5:00 PM at the place of sending in which case the notice shall be deemed received at 9:00 AM on the next business day. Any notice or other communication sent by facsimile must also be delivered by personal delivery, United States mail or overnight courier in accordance with the foregoing and such notice or communication must be -5- 873665.7 11903.002 5_873665.711903.002 personally delivered, deposited in the United States mail, or delivered to the overnight courier service within twenty-four(24) hours of the sending of the facsimile: To Owner: Trustee of the Miller Family Trust Attn: Robert J. Miller 23358 Jefferson Point Road NE Kinston, WA 98346 To City: City of San Luis Obispo Attn: Audrey Hooper, City Clerk 990 Palm Street San Luis Obispo, CA 93401 Facsimile No.: With a copy to: City of San Luis Obispo Attention: City Attorney 990 Palm Street San Luis Obispo, CA 93401 Facsimile No.: 805-781-7409 Notice of change of address shall be given by written notice in the manner detailed in Section 14. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice or communication sent. 15. TERM OF AGREEMENT. The term of this Agreement shall begin upon the effective date of the annexation. The Agreement shall remain in effect until modified or terminated by mutual written consent of the PARTIES. In the event, the annexation shall not become effective for any reason whatsoever; this Agreement shall terminate and have no force and effect, as if the PARTIES had never entered into it. -6- 873665.7 11903.002 IN WITNESS WHEREOF,this agreement is executed on the date stated-above at San Luis Obispo, California. ALL SIGNATURES MUST BE NOTARIZED OWNER$ CITY OF SAN LUIS OBISPO, Chartered Municipal Corporation BY: Mayor, David F. Romero ATTEST: BY: City Clerk,Audrey Hooper APPROVED AS TO FORM: BY: City A mey, Jonathan Lowell -7- 873665.7 11903.002 y CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California - County of �t-'v� © ral1� On D3 -2jb -2008 before me, .�I Citi 11 C3Y Lf� . O 1 .tiv Date Here Insert Name and Title of Me Officer personally appearedOIt� Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(4 whose nameX is/�/e subscribed to the within instrument and acknowledged to me that he/sVelthoy executed the same in his/tyaF/tf/r authorized capacity(ijj, and that b his/i}Xr�r signatureXon the 017 1 instrument the person(, or the entity upon behalf of M�Cww� M Vudfo.Cam 1. which the persoq(4acted, executed the instrument. fon lull OONpo COwdy 111WIMMI110MOeolffoll I I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS m h o is Signature Place Notary Seal Above Sign o ublic OPTIONAL Though the information below is not required by law,it may prove valuable to s relyr n t document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document n n Title or Type of Document: Document Date: -C3 • '2---�3 7_CO2) Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—El Limited ❑ General ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee Top of thumb here F1 Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsrvorth,CA 91313-2402•w .NationaiNotaryorg Item 95907 Reorder:Call Toll-Fee 1-800.876-6827 EXMIT A LEGAL DESCRIPTION OF PROPERTY [ATTACHED] 873665:7 11903.002