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HomeMy WebLinkAboutContracts & Agreements_102-99_CCv0001.pdf PRE-ANNEXATION AGREEMENT This PRE-ANNEXATION AGREEMENT ("Agreement") is made and entered into as of OctoberL9, 1999, by and between Mountainview Power Company, a Delaware corporation ("Mountainview")and the City of Redlands, a municipal corporation ("City"). RECITALS A. Mountainview is the owner of approximately 16.24 acres of real property ("Mountainview Property") located in the unincorporated territory of the County of San Bernardino adjacent to the City. The Mountainview Property is currently developed with electrical generation facilities and other improvements. B. Pursuant to the Cortese-Knox Local Government Reorganization Act of 1985, Government Code section 56000 et seq. ("Act"), the City applied to the San Bernardino County Local Agency Formation Commission ("LAFCO") for the annexation to the City of various properties including the Mountainview Property. On December 21, 1998,LAFCO adopted Resolution No.2630 entitled"A Resolution Of The Local Agency Formation Commission Of The County Of San Bernardino Making Determination On LAFCO 2839 And Approving City Of Redlands Annexation No. 76D,As Modified". Resolution No. 2630 approved the annexation to the City of unincorporated territory ("Annexation") comprising a total of approximately 82 acres("Annexation Properties"). The Mountainview Property is included within the Annexation Properties. Resolution No. 2630 also designated the City as conducting authority for further proceedings on the Annexation under the Act. C. Pursuant to section 56857 of the Act, Mountainview has requested that LAFCO reconsider and amend Resolution No. 2630 and disapprove the proposed Annexation of the Annexation Properties to the City ("Request for Reconsideration"). The Request for Reconsideration by Mountainview is based on several grounds affecting the legality and policy basis of the determinations contained in Resolution No. 2630. Pursuant to the requests of the City and Mountainview and other affected parties, the LAFCO hearing on the Request for Reconsideration by Mountainview has been continued three times and is presently scheduled for November 17, 1999. D. The City desires that Mountainview withdraw the Request for Reconsideration and consent to the Annexation of the Annexation Properties and has expressed its willingness to work with Mountainview to eliminate Mountainview's concerns with respect to the Annexation. E. Mountainview desires to work cooperatively with the City and is willing to withdraw its Request for Reconsideration and consent to the Annexation of the Annexation Properties based on the provisions of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and the covenants and conditions contained herein, the parties agree as follows: 40058169v2 1. On or about June 29, 1999, Mountainview filed with the City applications for an amendment to the City Zoning Ordinance ("Zoning Amendment") and an application for a development agreement for the Mountainview Property pursuant to Government Code section 65864 et seq. ("Development Agreement"). Mountainview may in its sole discretion revise its applications for the Zoning Amendment and the Development Agreement (collectively,the"Applications") at any time. City shall promptly review,process,hear and take final action to approve or disapprove the Zoning Amendment and Development Agreement in accordance with all procedures required by law including, without limitation, requirements for public notice, public hearing and compliance with the California Environmental Quality Act, Public Resources Code section 21000 et seq. City shall take final action either disapproving the Applications or adopting the ordinances required to approve the Applications no later than February 1, 2000. If the City has not taken such final action on or before February 1,2000 Mountainview, acting in its sole business discretion, may terminate this Agreement. 2. Mountainview shall withdraw its Request for Reconsideration of the Annexation and shall not file any protest with respect to the Annexation during conducting authority proceedings before the City provided that all of the following conditions have been satisfied: (a) City has adopted an ordinance approving the Zoning Amendment acceptable to Mountainview in its sole business discretion; (b) The time period for filing a referendum petition with respect to the ordinance adopting the Zoning Amendment has expired without any petition having been filed; (c) The statutes of limitation with respect to challenges to the ordinance adopting the Zoning Amendment (including the statutes of limitation provided under both Government Code section 65009 and Public Resources Code section 21167)have expired without any challenge having been filed; (d) The City has adopted an ordinance approving, and executed,a Development Agreement acceptable to Mountainview in its sole business discretion; (e) The time period for filing a referendum petition with respect to the ordinance approving such Development Agreement has -expired with no petition having been filed; and (f) The statutes of limitation for challenging such Development Agreement (including the statutes of limitation provided by Government Code section 65009 and Public Resources Code section 21167)have expired with no challenge having been filed. If Mountainview determines in its sole business discretion that either the Zoning Amendment or the Development Agreement as finally approved by the City is unacceptable, it may terminate this Agreement by written notice to the City: provided, however, Mountainview may not terminate this Agreement if City finally approves both the Zoning Ordinance and Development Agreement(including all incorporated land use regulations)in the identical form and content previously approved in writing by Mountainview. If a referendum petition is filed with respect to either the Zoning Amendment or the Development Agreement or if any legal 40058169v2 _2 - challenge is filed with respect to either the Zoning Amendment or the Development Agreement,the parties shall meet and confer and either Mountainview or the City may in its sole discretion elect to terminate this Agreement by written notice given to the other party, 3. Until all of the conditions set forth in Paragraph 2 above are satisfied or this Agreement is terminated as provided herein, City and Mountainview shall each request in writing that LAFCO continue any hearing with respect to the Request for Reconsideration until all such conditions have been satisfied. City and Mountainview shall also request all other affected property owners and public agencies to join in such continuance request. If LAFCO fails to grant any such requested continuance, this Agreement shall terminate forthwith and both Mountainview and the City may take any actions they deem appropriate including the filing of any legal action or proceeding. 4. in making prior requests for continuance of the LAFCO hearing on the Request for Reconsideration and in making future requests for continuance of such LAFCO hearing,the City and Mountainview have mutually relied,and will rely, on the continuance request of the other party and intend to waive the time limit set forth in section 56857 of the Act. Accordingly,neither Mountainview nor the City shall file or maintain any legal action or proceeding based in any way upon any claimed violation of the time limit set forth in section 56857 of the Act. The provisions of this Paragraph shall survive the termination of this Agreement. 5. Any and all notices, demands or other communications required or desired to be given hereunder by either party shall be in writing and shall be validly given or made to the other party if given by personal delivery,telex, facsimile, telegram, or if deposited in the United States mail,certified or registered, postage prepaid, return receipt requested. If such notice, demand or other communication be given by personal delivery, telex, facsimile, or telegram, notice shall be conclusively deemed made at the time of such delivery. If such notice, demand or other communication be given by mail, it shall be conclusively deemed given 48 hours after the deposit thereof in the United States mail addressed to the other party to whom such notice,demand or other communication is to be given as hereinafter set forth: To City: City of Redlands 35 Cajon Street P.O. Box 3005 Redlands, California 92373 Attn: City Manager Fax: (909)798-7510 With a copy to: City of Redlands 35 Cajon Street P.O. Box 3005 Redlands, California 92373 Attn: City Attorney Fax: (909) 798-7595 40058169v2 - To Mountainview: Mountainview Power Company 2570 San Bernardino Avenue San Bernardino, California 92408 Attn: Scott A. Noll Fax: (909) 478-7910 With a copy to: Pillsbury Madison& Sutro LLP 650 Town Center Drive, 7th Floor Costa Mesa, California 92626-7122 Attn: Robert L. Klotz, Esq. Fax: (714) 436-2800 Either party hereto may change its address for purposes of receiving notices,demands and other communications as herein provided by written notice given in the manner aforesaid to the other party or parties hereto. 6. This Agreement shall,in all respects,be governed by the laws of the State of California. 7. Each of the parties hereto shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of its obligations hereunder and to carry out the intent of the parties hereto. 8. If any action at law or equity, including any action for injunctive or declaratory relief, is brought to enforce or interpret the provisions of this Agreement,the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which it may be entitled. 9. No amendment, change or modification of this Agreement shall be valid unless in writing and signed by both of the parties hereto. 10. This Agreement may be executed in any number of counterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. No delay or omission of City or Mountainview to exercise any right or power arising upon the occurrence of any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Agreement to City and Mountainview may be exercised from time to time and as often as may be deemed expedient. 12. Neither party shall do anything which shall have the affect of harming or injuring the right of the other party to receive the benefits of this Agreement. Each party shall refrain from doing anything which would render its performance under this Agreement impossible or impracticable. Each party shall do everything which this Agreement contemplates that such party shall do to accomplish the objectives and purposes of this Agreement. 40058169v2 -4 - 13. By the execution hereof, City confirms and acknowledges that City,acting through its City Council, have complied in full with all legal requirements and procedures required to make this a valid Agreement. Persons executing this Agreement on behalf of City warrant and represent that they have the authority to execute this Agreement and represent they have the authority to bind City to performance of its obligations hereunder. 14. Persons executing this Agreement on behalf of Mountainview warrant and represent that they have the authority to execute this Agreement and represent they have the authority to bind Mountainview to performance of its obligations hereunder. 15. Mountainview may assign this Agreement at any time in its sole business discretion. 16. Each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement. Any party may initiate any judicial action or proceeding to cure, correct or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation of this Agreement,including without limitation actions or proceedings requesting declaratory relief, specific performance and relief in the nature of mandamus. All remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy. The parties acknowledge and agree that specific performance and other non-monetary relief are appropriate remedies for the enforcement of this Agreement and shall be available to all parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below. Dated: November 29, 1999 CITY OF REDLANDS, a municipal corporation By: MAYOR ATTEST- By. Lk A2 CiTy -�CERR V0 City of Redlands 40058169v2 -5 APPROVED AS TO FORM: CITY ATTORNEY Date: MOUNTAINVIEW POWER COMPANY, a Delaware corporation By: Name: L Wo�l Its: ImandQf y- t E- 11 rtl 40058169%,2 -6 -