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HomeMy WebLinkAbout1980-116 CRA . . I . . RESOLUTION NO. 80-116 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AUTHORIZING THE CHAIRMAN OF THE AGENCY TO EXECUTE AN AMENDMENT TO AN OWNER PARTICIPATION AGREEMENT BETWEEN SAID AGENCY AND MOHLER-VISTA BE IT RESOLVED by the Community Redevelopment Agency of the Ci ty of San ta Ana tha t the Cha irman of sa id Agency is hereby authorized to execute, on behalf of the Agency, that certain agreement entitled "First Amendment to Participation Agreement" form dated 11-4-80. ADOPTED th is 15th day of 1980, by the following vote: December AYES: MEMBERS: Griset, Serrato, Luxembourger NOES: MEMBERS: Yamamoto, Markel ABSENT: MEMBERS: Bricken, Ward 11/12/80 ~ DAVID N. REAM, Executive Director/ Recording Secretary APPROVED AS TO FORM: ~..p~ EDWARD J. CO PE Agency Legal Counsel I~! 4B . . . REL:adg 11/4/80 RECORDING REQUESTED BY: The Community Redevelopment Agency of the City of Santa Ana WHEN RECORDED, MAIL TO: Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 FIRST AMENDMENT TO PARTICIPATION AGREEMENT THIS AGREEMENT, made and entered into this day of , 1980, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CI~ OF SANTA ANA, a public body, corpo.rate and politic (hereinafter referred to as "Agency"), and MOHLER-VISTA, a general partnership organized under the laws of the State of California (hereinafter referred to as "Participant"), W-I-T-N-E-S-S-E-T-H Reci tal s: A. Agency entered into a Participation Agreement, dated February 19, 1980, with Participant by which Participant undertook to develop a site therein specified pursuant to the Redevelopment Plan of the Santa Ana Redevelopment Project. Said agreement is recorded in Book 13522, Page 1258, of the Official Records of Orange County, and is hereinafter referred to as the "Participation Agreement." B. In accordance with the terms of the :_Participation Agreement, Agency has proceeded with the acquisition of the parcels identified in Section VII.D. of tLe ca'rJ .,.,t-.,r,li.f?nt and has made calls for advances of funds , I as therein provided, in the total amount of Seven Hundred Twenty Seven Thousand Three Hundred Dollars ($727,300.00). C. Participant has failed to provide Agency with the advances of funds thus called for by Agency, in material breach of Participant's obligation to do so under the 4It Participation Agreement. 11./"- 4B D. The parties now desire to amend the Participation Agreement to provide for an extension of time . in vlhich Participant shall provide Agency wi th the funds thus called for and complete the purchase from Agency of that portion of the subject site designated as the "Sales Parcel: in the Participation Agreement, and to provide for the terms and conditions upon which the said Participation Agreement 8hall be terminated in the event of Participant's failure to do so. WHEREFORE, for and in consideration of their . mutual covenants and promises herein set forth, and subject to all the terms, conditions, limitations and other provisions of the Participation Agreement as hereby amended, the parties hereto do hereby agree as follows: 1. Section II.A. of the Participation Agreement is hereby amended to read as follows: "In accordance with and subject to all terms, covenants and conditions of this Agreement, Agency agrees to sell the Sales Parcel to Participant and Participant agrees to purchase the Sales Parcel from Agency for the total sum of Nine Hundred Fifty-Five Thousand Dollars ($955,000.00), hereinafter referred to as the 'Purchase Price.' "The said Purchase Price shall be paid into escrow . pursuant to Section II.B. of this Agreement on or before the date set for conveyance of title in Attachment No.5, attached hereto and i~corporated herein by reference, :: entitled 'Schedule of Performance.'" 2. That iJortion, entitled "Conveyance of Title to the Sales Parcel," on Pag~ 3 of Attachment No.5, enti tIed "Schedule of. Performance," of the Participation Agreement is hereby amended to read as follows: . 2. 143 48 . . . . 1. '. "CONVEYANCE OF TITLE TO THE SALES PARCEL "Opening of Escrow. Agency sh~ll open escrow for conveyance of the Sales Parcel. Deposit of Deed in Escrow. Agency shall deposit the deed to the "Sales Parcel in ~scrow. Conveyance of Title. Agency shall convey title to Partici- pant and Participant shall accept conveyance of the Sales Parcel. Participant must have obtained building permits and financing documentation available for concurrent recordation with Agency deed to Sales Parcel. Commencement of New Construction. Part.ic ipant shall commence construction of the improvements. Completion of New Construction. Participant shall complete construction of the improve- ments. Within 5 days after Agency has completed clearance of the Sales Parcel, in accord with Section II.L. Not later than 5 days prior to the date for conveyance of the Sales Parcel. On or before April 1, ji";} 1981, or within 30 days after opening of escrow, whichever is later. LrJ J,:..J Within 30 days after conveyance of the title to the Sales Parcel. FJ.!{) Within 360 days after commencement of con- struction." 3. The first sentence of Section II.B. of the Participation Agreement is hereby amended to read as follows: "Agency agrees to open escrow for the Sales Parcel with an escrow agent ('Escrqw Agent'), which shall be Safeco Title Insurance Co., 825 North Broadway, Santa Ana, California, within the time provided therefor in Attachment No.5, entitled 'Schedule of Performance.' II 4. Section V.A. of the Participation Agreement ~s hereby amended by adding a paragraph thereto, which paragraph reads as follows: "'Jotwithstcnding any, other provision of this I Section, in the event that title to the Sales Parcel is not conveyed to Participant on or before the date set for such conveyance in Attachment No.5, entitled 'Schedule of Performance,' due to failure or delay by Participant in the performance of any term or provision of this Agreement, then 1~4 3. 4" r I REL:adg 11/4/80 RECORDING REQUESTED BY: The Community Redevelopment of the City of Santa Ana . WHEN RECORDED, MAIL TO: Agency Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 FIRST AMENDMENT TO PARTICIPATION AGREEMENT THIS AGREEMENT, made and entered into this day of , 1980, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic (hereinafter referred to as "Agency"), and MOHLER-VISTA, a general partnership . organized under the laws of the State of California (her~inafter referred to as "Participant"), W-I-T-N-E-S-S-E-T-H Reci tal s : A. Agency entered into a Participation Agreement, dated February 19, 1980, with Participant by which Participant undertook to develop a site therein specified pursuant to the Redevelopment Plan of the Santa Ana Redevelopment Project. Said agreement is recorded in Book 13522, Page 1258, of the Official Records of Orange County, and is hereinafter referred to as the "Participation . Agreement. II B. In accordance with the terms of the __Participa tion Agreement, Agency has proceeded wi th the acquisition of the parcels identified in Section VII.D. of tLe ca'rJ ',,"'.,r,li,ent and has made calls for advances of funds , I as therein provided, in the total amount of Seven Hundred Twenty Seven Thousand Three Hundred Dollars ($727,300.00). C. Participant has failed to provide Agency with the advances of funds thus called for by Agency, in material breach of Participant's obligation to do so under the 4It Participation Agreement. 11./"- 4B r . D. The parties now desire to amend the Participation Agreement to provide for an extension of time . in which Participant shall provide Agency with the funds thus called for and complete the purchase from Agency of that portion of the subject site designated as the "Sales Parcel: in the Participation Agreement, and to provide for the terms and conditions upon which the said Participation Agreement shall be terminated in the event of Participant's failure to do so. WHEREFORE, for and in consideration of their mutual covenants and promises herein set forth, and subject to all the tel~s, conditions, limitations and other provisions of the Participation Agreement as hereby amended, . the parties hereto do hereby agree as follows: 1. Section II.A. of the Participation Agreement is hereby amended to read as follows: "In accordance with and subject to all terms, covenants and conditions of this Agreement, Agency agrees to sell the Sales Parcel to Participant and Participant agrees to purchase the Sales Parcel from Agency for the total sum of Nine Hundred Fifty-Five Thousand Dollars ($955,000.00), hereinafter referred to as the 'Purchase.Price.' "The said Purchase Price shall be paid into escrow . pursuant to Section II.B. of this Agreement on or before the date set for conveyance of title in Attachment No.5, attached hereto and i~corporated herein by reference, entitled 'Schedule of Performance.'" 2. That iJortion, entitled "Conveyance of Title to the Sales Parcel," on Pag~ 3 of Attachment No.5, entitled "Schedule of .Performance," of the Participation Agreement is hereby amended to read as follows: . 2. 143 48 . . . . 1 ( "CONVEYANCE OF TITLE TO THE SALES PARCEL "Opening of Escrow. Agency sh~ll open escrow for conveyance of the Sales Parcel. Deposit of Deed in Escrow. Agency shall deposit the deed to the "Sales Parcel in ~scrow. Conveyance of Title. Agency shall convey title to Partici- pant and Participant shall accept conveyance of the Sales Parcel. Participant must have obtained building permits and financing documentation available for concurrent recordation with Agency deed to Sales Parcel. Commencement of New Construction. part.icipant shall commence construction of the improvements. Completion of New Construction. Participant shall complete construction of the improve- ments. Within 5 days after Agency has completed clearance of the Sales Parcel, in accord with Section II.L. Not later than 5 days prior to the date for conveyance of the Sales Parcel. On or before April 1, (.;) 1981, or within 30 days after opening of escrow, whichever is later. ..1-.r) . . Within 30 days after conveyance of the title to the Sales Parcel. plIO Within 360 days after commencement of con- struction." 3. The first sentence of Section II.B. of the Participation Agreement is hereby amended to read as follows: "Agency agrees to open escrow for the Sales Parcel with an escrow agent ('Escrqw Agent'), which shall be Safe co Title Insurance Co., 825 North Broadway, Santa Ana, California, within the time provided therefor in Attachment No.5, entitled 'Schedule of Performance.'" 4. Section V.A. of the Participation Agreement ~s hereby amended by adding a paragraph thereto, which paragraph reads as follows: "~otwithstanding an~ other provision of this I Section, in the event that title to the Sales Parcel is not conveyed to Participant on or before the date set for such conveyance in Attachment No.5, entitled 'Schedule of Performance,' due to failure or delay by Participant in the performance of any term or provision of this Agreement, then 1~4 3. 4" r I Participant shall be in default under this Agreement and . Agency shall be entitled to exercise any of the rights and remedies available to A~ency without any requirement of notice of default by Agency to Participant and without any right of Participant to cure, correct or remedy such defau"l t." 5. Paragraph 2 of Section V.D. of th~ , Participation Agreement is hereby amended to read as follows: "2. Termination by Agency "( a) In the event that prior to conveyance of title to the Sales Parcel: . (i) Participant, or any successor in interest assigns or attempts to assign this agree- ment or any rights herein, without written consent of Agency; or (ii) There is a substantial change in ownership of Participant, contrary to the provisions of Section ~.A. hereof; or (iii) Participant does not submit con- struction drawings and ,related documents as required by this agreement in satisfactory form or in the manner or by the dates provided . in this agreement; or ( iv) If Participant is not diligent in pursuing a deteLTIination regarding zoning in compliance with Section II.K. herein; thcn A~ency's obligations :under this agrcement, and any or I all rights of Participant or its successors in interest therein may, at the option of Agency, be terminated by Agency. . 4. 145 48 . . . . . " (b) In the event that title to the Sales Parcel is not conveyed to Participant on or before the date set for such conveyance in Attachment No. 5 entitled, 'Schedule of Performance,' by reason of Participant's delay or failure in the performance of any term or condition of this Agreement, Agency shall immediately be released from any obligation under this Agreement to'convey the said Sales Parcel to Participant and Participant shall immediately be obligated to assign, transfer, or convey to. Agency all its rights, title and interest in the Parcels comprising the Participation Parcel. Participant shall assign its interest in Participant's contracts to purchase such parcels and its rights under cor- responding escrow arrangements to Agency, unless, as to any such parcel, Participant has at such time acquired title to such parcel, or such assignment / -- requires the consent of the seller and such consent is not immediately forthcoming, in either of which event Participant shall promptly proceed to acquire title to such parcel and shall immediately convey the same to Agency by grant deed, in return for which Agency shall pay to Participant a purchase price equal to the price by which Participant purchased such parcel. "(c) IN THE EVENT THAT AGENCY'S OBLIGATIONS TO PROCEED WITH THE CONVEYANCE OF THE SALES PARCEL TO PloRTICIPANT IS TERlllNATED DUE 'ro PAR'rrCIPANT'S DEFAUUr UNDER EITHER PARAGRAPH (a) or (b) OF THIS SECTION, AGENCY MAY RETAIN THE ENTIRE DEPOSIT REQUIRED BY HEREINBELOW SECTION VI.A. AS LIQUIDATED DAMAGES AND AS ITS PROPERTY WITHOUT ANY REDUCTION, OFF~ET, OR RECOUPMENT WHATSOEVER. AGENCY AND PARTICIPANT AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT 5. 4F \4~ r TO FIX ACTUAL DAMAGES IN CASE OF PARTICIPANT'S DEFAULT AND THAT THE AMOUNT OF SAID DEPOSIT IS A REASONABLE . ESTIMATE OF AGENCY'S DAMAGES. PARTICIPANT RECOGNIZES THAT PARTICIPANT'S PROMPT PURCHASE OF THE SALES PARCEL AND DEVELOPMENT OF THE SITE IN ACCORDANCE WITH THIS AGREEMENT ARE OF CRITICAL IMPORTANCE TO AGENCY'S ABILITY TO CARRY OUT ITS OTHER ACTIVITIES WITHIN THE REDEVELOPMENT PROJECT BY FINANCING FROM THE TAX IN- CREMENT WHICH WILL BE GENERATED BY THIS DEVELOPMENT PURSUANT TO CALIFORNIA HEALTH & SAFETY CODE SECTIONS 33670 et s~q. PARTICIPANT FURTHER RECOGNIZES THAT THE AMOUNT OF THE GOOD FAITH DEPOSIT IS BASED NOT ONLY UPON THE PURCHASE PRICE AS SET FORTH IN THIS t AGREEMENT, BUT ALSO UPON AGENCY'S INVESTMENT IN THE SALES PARCEL WHICH INCLUDES, IN ADDITION TO LAND VALUE, THE VALUE OF THE IMPROVEMENTS WHICH AGENCY IS TO ACQUIRE, DEMOLITION COSTS, RELOCATION COSTS, AND AGENCY'S COSTS OF FINANCING THE ACQUISITION AND CLEARANCE OF THE'SALES PARCEL." This section is separately approved by the parties to this Agreement in accordance with California Civil Code section 1677: . AGENCY: PARTICIPANT: . :"\ By By Chairman By --Exec-Lit i-ve--b-i r'e'ctor- By 6. Section VII.~. of the Participation Agreement is hereby amended by adding two paragraphs thereto, which paragraphs read as follows: . 6. I (j '") 4B r . . "Notwithstanding the above provisions of this Section, Agency agrees to waive its remedies for Participant's default in failing to provide advances of funds in response to Agency's calls for such advances made prior to the date of execution of this First Amendment to Participation Agreement and to make no further calls for such advances prior to the date of conveyance of title, in return for Participant's payment to Agency of interest at the rate of one,percent (1%) per month on the amounts of such previously called for advances, said interest to cover the period from August 21, 1980 to the date of conveyance of . title. The parties hereby stipulate that the amounts of such previously made calls for advance payments is Seven Hundred Twenty-Seven Thousand Three Hundred Dollars ($727,300.00). Payment by Participant to Agency of Fifty Three Thousand Eight Hundred Twenty Dollars ($53,820.00), representing $727,300.00 x 1% per month, covering the period_ from August 21, 1980 to April 1, 1981 shall be a precondition to the effectiveness of this 'First Amendment to Participation Agreement,' and by its execution hereof, Agency acknowledges the receipt of such payment. . "In the event that title to the Sales Parcel is conveyed to Participant prior to April 1, 1981, Participant shall be ~ntitle~ to receive from Agency a return of interest equal in amount to one percent (1%) of $727,300.00 multipli~'d by the number of months or portion thereof by I which the date of such' conveyance precedes April 1, 1981. . 7. 4B \48 . Payment of such return shall be made together with payment of the return of the 'good faith deposit' in accordance with . Section VI .A." 7. Part VII of the Participation Agreement is hereby amended by adding a Section VII.E. thereto, which Secti~n reads as follows: "E. Participant's Option to Extend Date of Conveyance of Title. Participant may make cash payment directly to Agency on or before April 1, 1981, in the amount of seven hundred twenty seven three hundred dollars ($727,300.00), in which event the date for conveyance of title shall be extended from April 1, 1981 to August 1, 1981 and the amount . of such payment shall be set off against the purchase price to be paid to Agency for the Sales Parcel through escrow. Agency shall open escrow promptly following receipt of such II payment if it has not already done so. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA ATTEST: By CHAIRMAN . DAVID N. 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