CC Resolution 12514BEING A RESOLUTI(
THE CITY MANAGE
RESOLVE ZONING
PARSONS AVENUE
WHEREAS, Appli
California, APN 414-33-037 (1
Parsons Avenue and 1405 Pa
use designation of Professiona
ION NO. 12514
N OF THE CITY COUNCIL AUTHORIZING
1 TO EXECUTE AN AGREEMENT TO
VIOLATIONS AT 1308 AND 1336
the owner of 1308 Parson Avenue, Campbell,
rsons Avenue,") which has also been known as 1403
,venue, and which currently has a General Plan land
and zoning designation of P-O (Professional Office;)
WHEREAS, Mohammad R. Shahabi, ("Shahabi") a married man as his sole and
separate property, is the owner of that certain parcel of real property known as 1336 Parsons
Avenue, Campbell, California. APN 414-33-036 ("1336 Parsons Avenue,") which Shahabi
acquired from Applicant in or around September of 2015, and which has an General Plan
land use designation of Low Density Residential (Less than 6 units per gross acre) and a
zoning designation of R-1-6 — Single Family Residential;
WHEREAS, prior to selling 1336 Parsons Avenue to Mohammad R. Shahabi the
Patricia A. Bruce Trust A, dated 12-20-2007, and the Edward L. Bruce and Patricia A. Bruce
1993 Trust B, dated July 20, 19'93 created an easement ("Easement") burdening 1336
Parsons Avenue for ingress, egress and parking for 1308 Parsons Avenue;
WHEREAS, the City contends that use of the Easement area for ingress,
egress, and parking for 1308 Parsons Avenue is inconsistent with the underlying zoning and
General Plan land use designations;
WHEREAS, Applicant is pursuing an application for General Plan Amendment
and zoning change application to allow 1308 Parsons Avenue and a portion of 1336 Parsons
Avenue to change their respective General Plan Land Use Designations in order remedy
any inconsistency in land use and,zoning;
WHEREAS, Shahabi � wishes to proceed with a separate application for an
addition to and remodel of an existing dwelling at 1336 Parsons Avenue (the "Residential
Application;")
THEREFORE, BE ITI RESOLVED that the City Council authorizes the City
Manager to execute an Agreement substantially conforming to the attached draft with the
owners of the properties commonly known as 1308 and 1336 Parsons Avenue, Campbell
California.
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PASSED AND ADOPTED this 5thii day of November, 2019, by the following roll call vote:
AYES:
Councilmembers
NOES:
Councilmembers
ABSENT:
Councilmembers
ABSTAIN:
Councilmembers
Resnikoff, Bybee, Gibbons, Landry, Waterman
None
None
None
APPROVED:
Richard
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ATTEST:
Wendy od, City Clerk
AGREEMENT
This Agreement(the "Agreement") is entered into between PATRICIA A. BRUCE, and
GINGER McCREA,TRUSTEES OF THE PATRICIA A. BRUCE TRUST A, DATED 12-20-2007,AS TO
AN UNDIVIDED 45.021% INTEREST AND PATRICIA A. BRUCE, and GINGER McCREA, AS
TRUSTEE OF THE EDWARD L. BRUCE AND PATRICIA A. BRUCE 1993 TRUST B, DATED JULY 20
1993,AS TO AN UNDIVIDED 54.979% INTEREST("Applicant,")Mohammad R. Shahabi,
("Shahabi") and the CITY OF CAMPBELL(the "City.") Applicant, Shahabi and the City are
collectively referred to as the "Parties."
RECITALS
WHEREAS, Applicant is the owner of 1308 Parson Avenue, Campbell, California,APN
414-33-037 ("1308 Parsons Avenue,") which has also been known as 1403 Parsons Avenue and
1405 Parsons Avenue, and which currently has a General Plan land use designation of
Professional Office and zoning designation of P-O (Professional Office;)
WHEREAS, Mohammad R. Shahabi, ("Shahabi") a married man as his sole and separate
property, is the owner of that certain parcel of real property known as 1336 Parsons Avenue,
Campbell, California. APN 414-33-036 ("1336 Parsons Avenue,") which Shahabi acquired from
Applicant in or around September of 2015, and which has an General Plan land use designation
of Low Density Residential (Less than 6 units per gross acre) and a zoning designation of R-1-6
—Single Family Residential;
WHEREAS, prior to selling 1336 Parsons Avenue to Mohammad R. Shahabi the Patricia
A. Bruce Trust A, dated 12-20-2007, and the Edward L. Bruce and Patricia A. Bruce 1993 Trust
B, dated July 20, 1993 created an easement("Easement") burdening 1336 Parsons Avenue for
ingress, egress and parking for 1308 Parsons Avenue, the location of the Easement being as set
forth in Exhibit A attached to this Agreement;
WHEREAS, the City contends that use of the Easement area for ingress, egress, and
parking for 1308 Parsons Avenue is inconsistent with the underlying zoning and General Plan
land use designations;
WHEREAS, Applicant has applied for a pre-application to authorize the initiation of a
General Plan Amendment application to allow 1308 Parsons Avenue and a portion of 1336
Parsons Avenue to change their respective General Plan Land Use Designations from
Professional Office and Low-Density Residential (Less than Six Units per Gross Acre)to
Neighborhood Commercial in order to progress (the"Commercial Application")which seeks to
remedy an inconsistency in land use and zoning;
WHEREAS, Shahabi wishes to proceed with a separate application for an addition to and
remodel of an existing dwelling at 1336 Parsons Avenue (the "Residential Application;")
WHEREAS, the City is agreeable to allow Shahabi to proceed with his Residential
Application while the Applicant is also processing its application, subject to the terms set forth
below;
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NOW, THEREFORE, the Parties, in consideration of the mutual covenants contained
herein, hereby agree:
TERMS AND CONDITIONS
1. Defined Terms. For the purpose of this Agreement the capitalized terms set forth
herein shall have the following meanings:
A. "Agreement" shall mean this contract embodying the rights and
obligations of the Parties hereto;
B. "Applicant" shall mean PATRICIA A. BRUCE, and GINGER McCREA,
TRUSTEES OF THE PATRICIA A. BRUCE TRUST A, DATED 12-20-2007,AS TO AN
UNDIVIDED 45.021% INTEREST AND PATRICIA A. BRUCE, and GINGER McCREA, AS
TRUSTEE OF THE EDWARD L. BRUCE AND PATRICIA A. BRUCE 1993 TRUST B,
DATED JULY 20 1993, AS TO AN UNDIVIDED 54.979% INTEREST;
C. "City" shall mean the City of Campbell, a Municipal Corporation, within
the County of Santa Clara, State of California;
D. "Commercial Application" shall mean the applications and permits
required to be submitted by the Applicant to bring the use of the Easement area into compliance
with General Plan, zoning and Municipal Code provisions of the City, including, but not limited
to, any lot line adjustments, General Plan and zoning designation changes, Conditional Use
Permits, Site and Architectural Review Permits, building permits, or variances
E. "Easement" shall mean the easement recorded by Applicant prior to
selling 1336 Parsons Avenue to Shahabi which burdens 1336 Parsons Avenue for ingress, egress
and parking for 1308 Parsons Avenue;
F. "Effective Date" shall mean the first date by which this Agreement has
been signed by all Parties;
G. "Parties" shall mean Applicant, Shahabi and the City collectively;
H. "Residential Application" shall mean the building permit(BLD2017-
00190) submitted on February 17, 2017 for the addition to and remodel of an existing dwelling
on 1336 Parsons Avenue;
I. "Shahabi" shall mean Mohammad R. Shahabi, a married man who is the
owner of 1336 Parsons Avenue;
J. "Subject Properties" shall mean 1308 Parsons Avenue and 1336 Parsons
Avenue collectively.
K. "1308 Parsons Avenue" shall mean the parcel of real property located at
1308 Parsons Avenue in Campbell, California, Santa Clara County Assessor's Parcel Number
414-33-037;
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L. "1336 Parsons Avenue" shall mean the parcel of real property located at
1336 Parsons Avenue in Campbell, California, Santa Clara County Assessor's Parcel Number
414-33-036.
2. Settlement Terms
A. On or before , Applicant shall prepare and execute, and record,
a quit claim deed that releases a sufficient portion of the Easement to allow 1336 Parsons to
satisfy the dimensional requirements (including but not limited to setbacks)pursuant to the
Campbell Municipal Code to allow the Residential Application to proceed; and Applicant shall
relocate all fences as necessary to be consistent with the required dimensions. The Parties
currently believe that said portion of the Easement is 316 square feet. However, the actual area
necessary could change significantly based on the exercise of the City's discretion as provided in
paragraph J of section 4 of this Agreement. Should that amount of land change materially,
Applicant shall have the option to terminate this Agreement, ab initio;
B. On or before , Applicant shall submit to the City a
Commercial Application that is fully complete, including the payment of all fees and the
submittal of all required supporting documents and information;
C. Before or concurrent with the submission Commercial Application, Applicant
shall prepare and execute, in recordable form, a quitclaim deed quit claiming the remaining
portion of the Easement back to 1336 Parsons Avenue, which shall be held by the City Attorney
for the City, until such time as the conditions for the recording thereof pursuant to Paragraph 2.D
have been satisfied. If, however, the Commercial Application is approved, then the City shall
return the unrecorded quitclaim deed to the Applicant who may thereafter destroy same;
D. If(a) Applicant fails to submit a Commercial Application that is fully complete
by , 2019, or (b) the Commercial Application is subsequently withdrawn by
the Applicant or subsequently deemed withdrawn by the City (in accordance with Campbell
Municipal Code section 21.38.040), or (c) the Commercial Application is denied, and the
Applicant has either exhausted all available appeals, including any right as Applicant may have
to challenge the City in the Superior Court for the County of Santa Clara, or if the time to bring
any such appeal or review has run, then the City Attorney shall record the quitclaim deed
referenced in Paragraph 2.C, and Applicant shall remove the existing commercial improvements
in the easement area, and relocate the fence to the property line within days from
the occurrence of(a), (b) or (c) of this Paragraph, whichever is earlier;
E. Shahabi shall permit the Applicant to remove the existing commercial
improvements in the easement area, and relocate the fence to the property line
within days from the occurrence of(a), (b) or (c) of this Paragraph, whichever is
earlier ;
F. Applicant shall pay the City's legal cost and any code enforcement costs
associated with the review and enforcement of this Agreement or any violation of the Campbell
Municipal Code occurring at 1308 Parsons Avenue or within the Easement area within thirty
(30) days of being invoiced by City;
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G. Concurrently with the execution of this Agreement, Applicant will make a cash
deposit to the City to cover the aforementioned costs and costs associated with the removal of the
improvements and the relocation of the fence, legal costs, and staff time. The amount of such
deposit shall be $50,000 dollars. Any unused portion of the deposit would be returned to the
owner of 1308 Parsons within thirty days of the final approval of the Commercial Application or
within thirty days of the time the quitclaim deed referenced in Paragraph 2.C. above is recorded.
3. Representations and Warranties.
A. Applicant represents and warrant to the City and Shahabi that the persons
executing this Agreement on behalf of Applicant are authorized to do so and Applicant has not
heretofore assigned or transferred any rights in 1308 Parsons to any third party.
B. The City represents and warrants to Applicant and Shahabi that the
persons executing this Agreement on behalf of the City are authorized to do so and that
thereafter, this Agreement shall be binding on the City.
C. Shahabi represents and warrants to Applicant and City that the persons
executing this Agreement on behalf of himself are authorized to do so and that thereafter, this
Agreement shall be binding on him.
4. Miscellaneous.
A. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and assigns.
B. Construction and Enforceability. This Agreement is the product of
negotiations between the Parties and shall not be construed strictly for or against either Party,
regardless of which Party may have actually drafted it. If any provision of this Agreement shall
be held to be invalid or legally unenforceable, it shall be adjusted rather than voided, if possible,
in order to give effect to the intent of the Parties, and all other provisions of this Agreement shall
continue in full force and effect to the extent permitted by law.
C. Further Assurances. The Parties agree, without further consideration,to
execute and deliver such other documents and to take such other actions as may be necessary to
effectuate the terms of this Agreement.
D. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which shall constitute one agreement binding on all
the Parties hereto, notwithstanding that all the Parties are not signatories to the original or the .
same counterpart.
E. Entire Agreement. This Agreement sets forth the entire understanding of
the Parties in connection with the subject matter hereof. None of the Parties hereto has made any
statement, representation or warranty in connection herewith, which has been relied upon by the
Parties hereto or which has acted as an inducement for the Parties to enter into this Agreement,
except those expressly set forth herein.
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F. Amendments. This Agreement may not be altered, amended, or modified,
or otherwise changed in any respect whatsoever, except by a writing duly executed by authorized
representatives of the Parties hereto.
G. Independent Judgment. The Parties agree that, prior to the execution of
this Agreement, they have apprised themselves of sufficient relevant data, through resources of
their own selection, in order that they may exercise their judgment in an educated manner in
deciding whether to execute this Agreement.
H. Governing Law. This Agreement shall be construed and enforced
pursuant to the laws of the State of California.
I. Venue. This Agreement was executed in Santa Clara County, California,
and any action arising out of this Agreement shall be filed in a court of competent jurisdiction in
Santa Clara County, California.
J. Exercise of Lawful Discretion. The City shall process the applications
referenced in the Agreement diligently and in good faith in compliance with all applicable laws;
but the Parties acknowledge and agree that the City has not committed itself to act in any
particular way on the applications, and that nothing contained in this Agreement shall be
construed to limit in any way the lawful discretion of City, including its staff, Planning
Commission and City Council in acting on the applications, including without limitation,the
right to approve, condition or deny the application in accordance with applicable law.
K. Right of Entry. Agents of the City shall have the right to enter the Subject
Properties upon twenty-four hours advanced notice to inspect them for compliance with this
Agreement and the applicable provisions of the Campbell Municipal Code, as well as to enforce
the provisions of this Agreement, including but not limited to the relocation of the fences and the
removal of commercial improvements in the Easement area.
L. Indemnity.
Applicant agrees to indemnify, defend and hold harmless the City, its officers, agents and
employees to the fullest extent allowed by law from any and all claims, actions, causes of action,
losses, damages, liabilities and costs of every nature, including all claims, actions, causes of
action, losses, damages, liabilities for property damage, bodily injury, or death, and all costs of
defending any claim, action or cause of action (including reasonable attorney's fees and cost of
suit), caused by, arising out of, or resulting from, or alleged to have been caused by, arise out of,
or result from, in whole or in part, Applicant's performance of this Agreement, except for any
claims, actions, causes of action, losses, damages, costs or liabilities proximately caused by the
sole negligence or willful misconduct of City. The foregoing indemnity provision is intended to
fully allocate Applicant's and City's risk of liability to third-parties; and there shall be no rights
to indemnity or contribution, in law or equity or otherwise between them that are not set forth in
• this section. The Applicant waives all rights to subrogation for any matters covered by this
provision. The responsibility of Applicant for such defense and indemnity obligations as set
forth in this provision shall survive the termination or completion of this Agreement for the full
period of time allowed by law.
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Shahabi agrees to indemnify, defend and hold harmless the City, its officers, agents and
employees to the fullest extent allowed by law from any and all claims, actions, causes of action,
losses, damages, liabilities and costs of every nature, including all claims, actions, causes of
action, losses, damages, liabilities for property damage, bodily injury, or death, and all costs of
defending any claim, action or cause of action (including reasonable attorney's fees and cost of
suit), caused by, arising out of, or resulting from, or alleged to have been caused by, arise out of,
or result from, in whole or in part, Shahabi's performance of this Agreement, except for any
claims, actions, causes of action, losses, damages, costs or liabilities proximately caused by the
sole negligence or willful misconduct of City. The foregoing indemnity provision is intended to
fully allocate Shahabi's and City's risk of liability to third-parties; and there shall be no rights to
indemnity or contribution, in law or equity or otherwise between the parties that are not set forth
in this section. Shahabi_waives all rights,to subrogation for any matters covered by this
provision. The responsibility of Applicant and Shahabi for such defense and indemnity
obligations as set forth in this provision shall survive the termination or completion of this
Agreement for the full period of time allowed by law.
5. Notices. Any notice required to be given under this Agreement shall be in
writing, delivered by personal delivery or regular mail along with a courtesy email. Notices shall
be addressed to each Party as follows:
To Applicant:
Charles S. Bronitsky, Esq.
Law Offices of Charles S. Bronitsky •
533 Airport Blvd., Suite 105
Burlingame, CA 94010
Email: charlie@charlieblaw.com •
To Shahabi:
To the City:
Community Development Director
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City of Campbell
70 N. First Street
Campbell, CA 95008
Email: PaulK@cityofcampbell.com
Date: July_, 2019 THE PATRICIA A. BRUCE TRUST A, DATED
12-20-2007
By:
Date: July_, 2019 THE EDWARD L. BRUCE AND PATRICIA A.
BRUCE 1993 TRUST B, DATED JULY 20, 1993
By:
Date: July_, 2019 CITY OF CAMPBELL, CALIFORNIA
By:
Date: July _, 2019 MOHAMMAD R. SHAHABI
By:
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