HomeMy WebLinkAbout1901 E. FIRST STREET OWNER LLC (3) - 2015A- 2014 -279A
EXEMPT FROM RECORDING FEES PURSUANT TO GM CODE § 6109
DEVELOPMENT MPACI` FEE DEFERRAL AGREEMENT
between
THE CITY OF SANTA ANA
a charter city and municipal corporation of the State of California
and
1901 FIRST STREET OWNER, LLC,
a Delaware limited liability company
[Dated as of February 10, 20151
VVI901 First Fee Deferra1.021015
DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
1. PARTIES AND EFFECTIVE DATE.
1.1 This Development Impact Fee Deferral Agreement ( "Agreement") is entered into
on this 10th day of February, 2015, by and between the City of Santa Ana, a charter city and
municipal corporation of the State of California ( "City "), and 1901 FIRST STREET OWNER,
LLC, a Delaware limited liability company ( "Owner "). City and Owner are sometimes
individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Owner is the owner of that certain real property in the City of Santa Ana,
California, which is more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference ( "Property "). Owner intents to develop a market -rate residential project
on the Property; and
2.2 The City currently requires the payment of various development impact fees for
all market -rate residential projects to help address the impacts of new development; and
2.3 On December 2, 2013, the City Council adopted Ordinance No. NS -2 855
( "Development Impact Fee Deferral Ordinance ") to allow for the deferral of certain development
impact fees for market -rate residential and non - residential projects; and
2.4 City and Owner desire to execute this Agreement to defer certain development
impact fees applicable to the Property and either place a lien on the Property or provide an
irrevocable letter of credit from the Owner to secure payment of these fees, pursuant to the terms
and conditions set forth herein.
3. TERMS
3.1 Deferral of Development Impact Fees.
3.1.1 Deferral of Development Impact Fees. Pursuant to the Development
Impact Fee Deferral Ordinance and subject to the limitations set forth in this Agreement,
payment on all development impact fees set forth in Exhibit `B" attached to this Agreement and
incorporated herein by this reference ( "Subject Fees ") shall be deferred for each residential
building constructed on the Property until prior to the final inspection or issuance of a temporary
certificate of occupancy or final certificate of occupancy for the new building or structure on the
Property, or one (1) year from the date of issuance of the building permit for the Property,
whichever comes first ("Deferral Period "). City and Owner acknowledge and agree that the
City Council may, in its sole and absolute discretion and during a regular, regular adjourned, or
special rneeting of the City Council, extend the deadline for payment of the Subject Fees to any
period greater than twelve (12) months without obtaining the approval of Owner or an
amendment or modification of this Agreement. Any extension granted by the City Council
pursuant to this Section 3.1.1 shall automatically be deemed to be part of the "Deferral Period"
for purposes of this Agreement.
3.1.2 Payment of Subject Fees. Owner, or its successor in interest to the
Property or any portion thereof, shall be liable for the payment of the Subject Fees pursuant to
this Agreement. The Subject Fees for a residential building constructed on the Property shall be
due and payable at the termination of the Deferral Period. No certificate of occupancy shall be
issued for that building or any portion thereof unless and until all Subject Fees are paid in full.
Notwithstanding any other provision to the contrary, the deferred impact fees not paid at the
time of building permit issuance shall be subject to interest on unpaid fees at the annual rate of
interest that the City earns on its investment of pooled funds, which shall accrue from the date of
issuance of the initial building permit until the deferred impact fees and all accrued interest is
paid.
3.1.3 Subject Fees Amount. Except as may otherwise be provided for by a
statutory development agreement for the Property, as approved by the City, the amount of the
Subject Fees for each residential building to be developed on the Property shall be determined
according to the rate of the Subject Fees adopted by the City and in effect on the date when the
building permit for the residential building was issued by the City. Upon issuance of each
building permit, the City shall complete and attach the form set forth in Exhibit "B" to this
Agreement to reflect the amount of the Subject Fees applicable at the time of issuance of that
building permit and attach a copy of the building permit, which shall collectively thereafter be
incorporated as part of this Agreement.
3.1.4 Obligation for Payment of Subject Fees. Owner hereby acknowledges
and agrees that Owner's obligation to pay the Subject Fees shall continue and remain an
obligation of Owner, as well as (jointly and severally) any successors in interest of Owner,
including, without limitation, any successor in interest to the Property or any portion of the
Property. Without limiting the nature of the foregoing, any Subject Fees that remain unpaid
following the time that they are required to be paid may be collected by the City as a personal
obligation of the Owner, or any successor of Owner, as a special assessment against the property
(collected at the same time and in the same manner as ad valorem property taxes), or by any
combination of the foregoing.
3.1.5 Processing Fee. A processing fee in the amount of five hundred and
forty -three dollars and forty -five cents ($543.45) shall be paid by the Owner based upon the
estimated costs for processing, administering, tracking and collecting the Subject Fees. The
processing fee shall be paid by Owner as a condition precedent to the City approving this
Agreement.
3.2 Covenant of Owner. Owner covenants that he, she or it is eligible to enter into
this Agreement and has fulfilled the requirements for approval of deferral of all Subject Fees as
set forth in the Development Impact Fee Deferral Ordinance. Should Owner and/or the Property
be deemed at any time prior or subsequent to execution of this Agreement to be ineligible for a
deferral of Subject Fees pursuant to the Development Impact Fee Deferral Ordinance, regardless
of whether Owner intentionally or unintentionally misrepresented to the City that Owner was
eligible for a deferral of Subject Fees, City may terminate this Agreement and require all Subject
Fees to be immediately paid in full.
3.3 Recordation of Agreement. Upon the execution of this Agreement, the City
shall cause this Agreement to be recorded in the Official Records of the County of Orange,
California. All costs assessed by the County of Orange for recordation of this Agreement shall
be paid by the Owner.
3.4 Lien against Property. From and after its execution, this Agreement shall
contractually bind Owner to pay all Subject Fees as provided in this Agreement, and shall
constitute a lien against the Property in an amount equal to the total Subject Fees, pursuant to
Government Code section 66007(c)(2). Upon payment to City of the total amount of the Subject
Fees for the Property, City shall, at the request of the Owner, execute and record in the Official
Records of the County of Orange, California, a release of the lien from the Property in
substantially the form of Exhibit "C" which is attached hereto and incorporated herein by this
reference. At the request of the Owner, the City shall deliver a copy of the executed and
recorded release of the lien to Owner.
3.5 Covenants Run With Land. Notwithstanding Section 3.6, each and all of the
promises, covenants and conditions of this Agreement and all liens against the Property subject
to this Agreement shall, as provided in Government Code section 66007, run with the Property
and shall be binding upon all parties having or acquiring any right, title or interest in or to the
Property or any portion thereof.
3.6 Sale of Property. Pursuant to Government Code section 66007(c)(3), Owner
shall notify City in writing within two (2) business days of the opening of any escrow for the sale
or transfer of all or any portion of the Property. Owner additionally covenants and agrees to
provide a written copy of the escrow instructions to City stating that the Subject Fees shall be
paid from the sale proceeds of the Property held in escrow prior to disbursement of the sale
proceeds to the new owner of the Property.
3.7 Invalidity of Lien. The invalidity or unenforceability of any lien provided for
under this Agreement shall not affect the contractual obligation of Owner to pay any and all
Subject Fees for the Property, nor shall the sale, lease or any encumbrance of the Property
release the Owner of this contractual obligation.
3.8 Rights Not Granted Under Agreement. This Agreement is not, and shall not be
construed to be, an approval or a granting of any right or entitlement (vested or otherwise) by
City concerning any development on the Property, or any other project, development or other
construction by Owner within the City. This Agreement does not, and shall not be construed to,
exempt Owner from paying any fees for any entitlements, permits, licenses or other approvals
that may be required by the City or other public entity with jurisdiction over the Property at the
time required by the City or other public entity with jurisdiction over the Property, or any other
project development or other construction by Owner. This Agreement does not, and shall not be
construed to, exempt Owner from any requirement to obtain permits or other discretionary or
non - discretionary approvals as may be necessary for the development, maintenance or operation
of the development on the Property or any other project, development or other construction by
Owner within the City. This Agreement does not, and shall not be construed to, exempt Owner
or the Property from the application or exercise of the City's or any of its related agencies'
power of eminent domain or its police powers, including, but not limited to, the regulation of
land uses, and the taking of any actions necessary to protect the health, safety and welfare.
3.9 Cumulative Remedies. The rights or remedies of the City, as provided in this
Agreement, or pursuant to any applicable laws, rules or regulations, may be pursued singly,
successively, together or otherwise against the Property, Owner or its transferees, at the sole
discretion of the City. The City's failure to exercise any such right or remedy shall in no event
be construed as a waiver or release of such rights or remedies, or of the right to exercise them at
any later time.
3.10 Indemnification. Owner agrees to indemnify, defend and hold harmless the City,
its elected officials, officers, agents and employees from and against all claims, demands, costs,
damages, liabilities and obligations of any kind or nature arising out of the deferral provided by
the Development Impact Fee Deferral Ordinance to Owner, this Agreement, or both, including
without limitation, all costs of collection, including actual attorneys' and expert witness fees.
311 Successors and Assigns. Owner may not assign this Agreement, in whole or in
part, without the prior written consent of the City, which may be given, withheld or conditioned
in the City's sole and absolute discretion. Any attempt to assign this Agreement without the
City's prior written consent shall be null and void. This Agreement shall be binding on any and
all permitted successors and assigns of Owner.
3.12 Governing Laws. This Agreement shall be governed by the laws of the State of
California, without regard to the conflict of laws principles. The Superior Courts of the State of
California in the County of Orange, California, shall have exclusive jurisdiction of any litigation
between the City and Owner arising out of this Agreement. Owner hereby expressly waives the
provisions of any federal or state law providing for a change of venue to any other state court or
to federal district court, due to any reason whatsoever, including, without implied limitation, the
fact that the City is a party to this Agreement, due to any diversity of citizenship between the
City and Owner, or due to the fact that a federal question may be involved. Without limiting the
generality of the foregoing, Owner expressly waives, to the maximum legal extent, the benefit of
California Code of Civil Procedure Section 394 and all other state and federal statutes and
judicial decisions of similar effect. Unless otherwise noted in this Agreement, all terms shall
have the meaning ascribed to that term in the Fee Deferral Ordinance.
3.13 Notices. All notices required to be delivered under this Agreement or applicable
law shall be delivered by personal delivery, express mail or by United States mail, certified,
postage prepaid. Notices personally delivered or delivered by express mail shall be deemed
received upon receipt. Notices delivered by certified mail shall be deemed received the earlier of
three (3) days following deposit of such notice with the United Sates Postal Service or actual
receipt. Notices shall be sent as follows:
To City: City of Santa Ana
c/o Clerk of the Council
20 Civic Center Plaza
P.O. Box 1988
Santa .Ana, CA 92702 -1988
telefacsimile (714) 647 -6956
With copy to: Executive Director of PBA
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 973 -1461
and City Attorney
City of Santa Ana
20 Civic Center Plaza (lvl -29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
To Owner: 1901 First Street Owner, LLC
Attention: General Counsel
4901 Birch Street
Newport Beach, CA, 92660
3.14 Attorneys' Fees and Costs. Should the City or Owner bring any action or
proceeding against the other, and if such action or proceeding is related to the interpretation or
enforcement of this Agreement or in any way relates to or arises due to the existence of this
Agreement, then the prevailing party in that action or proceeding shall be entitled to recover
from the nonprevailing patty, in addition to all other relief to which the prevailing party may be
entitled, its actual litigation costs and attorneys' and expert witness fees. The "prevailing party"
shall be as determined by the court in accordance with the provisions of California Code of Civil
Procedure Section 1032. Recoverable litigation costs and attorneys' fees include those incurred
by the prevailing party in the enforcement of any judgment or other judicial order, and during the
defense of any appeal taken from such underlying judgment or other judicial order.
3.15 Entire Agreement. This Agreement constitutes the entire agreement of City and
Owner and supersedes all previous agreements, oral or written, on the subject matter of this
Agreement.
3.16 Modification, This Agreement may be amended or modified only by an
agreement in writing signed by each of the parties hereto.
3.17 Headings. Section headings contained in this Agreement are for convenience
only, and shall not impact the construction or interpretation of any provision.
3.18 Severability. If any provision or clause of this Agreement or any application of it
to any person, firm, organization, partnership or corporation is held invalid, such invalidity shall
not affect any other provision of this Agreement, and the Agreement shall be construed as if such
provisions or clauses did not exist.
3.14 Time is of the Essence. Time is of the essence in this Agreement.
3.20 No Third Party Beneficiaries, This Agreement and the performance of the
City's and Owner's obligations hereunder are for the sole and exclusive benefit of the City and
Owner. No person or entity who or which is not a signatory to this Agreement shall be deemed
to be benefited or intended to be benefited by any provision hereof, and no such person or entity
shall acquire any rights or causes of action against either the City or Owner hereunder as a result
of the City's or Owner's performance or nonperformance of their respective obligations under
this Agreement.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
E IU-117 IP
MAPJA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
City Attoyney ti
CITY OF SANTA ANA
DAVID CAVAZOS
City Manager
1901 FIRST STREET OWNER, LLC, a
Delaware limited liability company
Ryan o ge I Name: /Yi,kc Z asf�/�
Assistant C Aitbrney Title: $nor ei! r J c� / a'tk -.9 /vt %
RECOMMENDED FOR APPROVAL:
VINCE FRt SO
Interim Exe ne •ector — PBA
0
CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On February 11, 2015, before me, Maria D. Huizar, Notary Public personally appeared
David Cavazos, City Manager, who proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
I certify under PENALTY OF PERJURY
foregoing paragraph is true and correct.
MANIA D, HUIZAR
Commission S 1974202
Notary Public • California
U - - - - - orenge county
co m. EEx�s A r 5 2016
(Seal)
CAPACITY CLAIMED BY SIGNER:
❑
Individual(s)
❑
Corporate
❑
Officers
under the laws of the State of California that the
WITNESS my hand and official seal.
Signature
SIGNER IS REPRESENTING:
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE
BELOW: RE: 1901 FIRST STREET OWNER, LLC,
TITLE OR TYPE OF DOCUMENT: DEVELOPMENT IMPACT FEE DEFERRAL
AGREEMENT
NUMBER OF PAGES: DATE OF DOCUMENT:
SIGNER (S) OTHER THAN NAMED ABOVE:
Title(s)
❑
Partner(s)
❑
General Partner of a Limited
❑
Partnership
❑
Attorney -in -Fact
❑
Trustee (s)
❑
Subscribing Witness
❑
Guardian /Conservator
❑
Other:
under the laws of the State of California that the
WITNESS my hand and official seal.
Signature
SIGNER IS REPRESENTING:
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE
BELOW: RE: 1901 FIRST STREET OWNER, LLC,
TITLE OR TYPE OF DOCUMENT: DEVELOPMENT IMPACT FEE DEFERRAL
AGREEMENT
NUMBER OF PAGES: DATE OF DOCUMENT:
SIGNER (S) OTHER THAN NAMED ABOVE:
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Q` — nn Cf Q )
On Eq 61,U � (O, ao15 before me, t\V�
insert name and title of the officer)
personally appeared Mrchacnl l mf n'\t' --t1 Q1r'"
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare
subscribed to the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
STEPHANIE
Canrnlnloa I MOM
r' Notary POW • clNfwfol
M Comm Co"
cae A 1
EXHIBIT "A" TO
DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
Legal Description of Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 15 OF THE MAYBURY TRACT, IN THE CITY OF SANTA ANA, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 36,
PAGE 65 OF MISCELLANEOUS MAPS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL NO. 1 AS SHOWN ON A MAP FILED IN BOOK 9S, PAGE 30 OF PARCEL MAPS.IN THE
OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, AS AMENDED BY
A CERTIFICATE OF CORRECTION, RECORDED OCTOBER 20,1977IN BOOK 12424PAGE 543 OF
OFFICIALRECORDS.
EXCEPTING THEREFROM THAT PORTION OF PARCEL 1, AS SHOWN ON A MAP FILED IN
BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
ORANGE COUNTY, CALIFORNIA, SITUATED IN TIME CITY OF SANTA ANA, COUNTY OF
ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE
SOUTHERLY LINE OF SAID PARCEL I NORTH 890 31'52" EAST 34,14 FEET; THENCE NORTH
450 19' 14" WEST 38.26 FEET TO A LINE PARALLEL WITH AND 7.00 FEET EASTERLY FROM
THE WESTERLY LINE OF SAID PARCEL 1; THENCE SOUTH 890 49' 39" WEST 7.00 FEET TO
SAID WESTERLY LINE; THENCE ALONG SAID WESTERLY LINE SOUTH 00 10' 21" EAST 27.18
FEET TO THE POINT OF BEGINNING, AS GRANTED TO THE CITY OF SANTA ANA, IN DEED
RECORDED SEPTEMBERIS, 1990AS INSTRUMENT NO .90- 493896,OFOFFICIALRECORDS.
APN: 400- 081 -08
Exhibit A
EXFIIBIT "B" TO
DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
Subject Fees for Building Permit Nos, 10180341, 10180345, 10180476,
10180477, 10182564, 10182569 and 10183875 through 10184139
The following development impact fees imposed upon the Property or portion thereof by
the City of Santa Ana upon issuance of City of Santa Ana Building Permit Nos. 10180341,
10180345, 10180476, 10180477, 10182564, 10182569 and 10183875 through 10184139 shall be
deferred pursuant to the terms and conditions of this Agreement:
(1) Parks Acquisition and Development Fees in the amount of $925,630.12.
(2) Drainage Area Master Plan Fees in the amount of $ N /A.
(3) Transportation System Improvement Fees (TSIP) in the amount of $ N /A.
(4) Major Thoroughfare and Bridge Fees in the amount of $ N /A.
(5) Fire Facilities Fees in the amount of $292,659.90.
(6) Sewer Connection Fees in the amount of $435,468.33.
Exhibit B
EXMBIT "C" TO
DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
Form Release of Lien
[Attached behind this cover page]
Exhibit C
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE § 6103
RELEASE OF LIEN FOR PAYMENT OF DEVELOPMENT IMPACT FEES
The City of Santa Ana, a charter city and municipal corporation of the State of California,
does hereby release that certain real property, as further described in Exhibit 1 attached to this
Release, from the lien for payment of certain development impact fees as created by the
Development Impact Fee Deferral Agreement entered into on February 10, 2015, by and
between the City of Santa Ana and 1901 FIRST STREET OWNER, LLC_, a Delaware limited
liability company, which was recorded on , as Document Serial No.
Official Records of the County of Orange, California ( "Agreement ").
This release pertains only to the property described above and
other propert(ies) identified in the Agreement. This release of lien is
pursuant to the provisions of California Government Code section 66007.
Dated:
CITY OF SANTA ANA
IC
Attest:
City Clerk
City Manager
C -1
does not extend to any
executed and recorded