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HomeMy WebLinkAboutHERITAGE VILLAGE OC LLC (2) -2016 Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder III 45.00 RECORDING REQUESTED BY AND , , 1III1IIIIIIIIIIIIIIIIIIIIIII10aII1 , $ WHEN RECORDED MAIL TO: 2016000336219 12:53 pm 07122116 CITY kl"'40dAl2 F13= 13 CITY OF SANTA ANA CLEFT o.00 O.bo 0.00 0.00 36.00 0.00 0.00 0.00 CLERK OF THE COUNCIL 20 CIVIC PARK PLAZA(M-30) SANTA ANA,CA 92701 LIEN AGREEMENT Fidelity National Title Insurance Company has recorded this instrument by request as an accommodation only and has not examined it for regularity and sufficiency or as its effect upon the title to any real property that may be described therein. This page is added to provide adequate space for recording information 1-1 GlasV%A6°� °2� -Its RECORDED AS A BENEFIT TO THE CITY OF SAN'T'A ANA WHEN RECORDED RETURN TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M -30) Santa Ana, CA 92741 LIEN AGREEMENT N -2016 -097 (lbove Space forReeorder's Use Only) As Subdivision Improvement Security for Vesting Tentative Tract Map No. 201-03 (County Map No. 17962) THIS LIEN AGREEMENT ( "Lien Agreement') is entered into this Vay of.Iune 2016, . by and among the City of Santa Ana, a charter city and municipal corporation duly organized under the laws of the State of California ( "City ") and Heritage Village OC LLC, a Delaware limited liability company ( "Owner"). RECITALS A_ Owner has applied to City for approval of a Final Map for Vesting Tentative Tract Map No. 2015 -03 (County Map No. 17962) referred to herein as "Map," pursuant to Section 34 of the City's Municipal Code (`Subdivision Code "). B, Owner is required to enter into a subdivision improvement agreement with City to construct certain improvements as a condition of City's approval of said Map. C. Owner is required by the Subdivision Code and the Subdivision Map Act (Gov. Code, § §66462 and 66499) to provide security satisfactory to the City to secure its improvement obligations. D. City is authorized to accept the security proposed by Owner, known as a lien agreement, as security under the provisions of Government Code Section 66499 (a)(4)and finds that it would not be in the public interest to require the installation of the required improvements sooner than two years after the recordation of the map, E. The lien agreement satisfies the requirement to enter into a subdivision improvement agreement. 11143-'4 -1 0C P 10.};;- x ➢IU��adYn- tji)nvcdkvcd NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. Owner's Performance and Obligations. A. Owner hereby grants to City, in accordance with the terms and conditions of this Lien Agreement, a lien upon the property ( "Property ") described in Exhibit "A" attached hereto, as security for construction of the improvements ( "Improvements ") specified in Exhibit "B ", in the estimated amounts to complete such Improvements. This lien secures said obligation and the remedies provided herein for breach of said obligation. B. For so long as title to the Property remains subject to this Lien Agreement, Owner shall not: (1) request issuance by the Department of Real Estate of the Final Subdivision Public Report for the Property; or (2) sell or permit the sale of any lot shown on the Map to any entity other than one with which the Owner is in common control or in which the Owner retains primary operational and managerial control and retains at least 51% interest at all times. C. As a condition of obtaining a building permit from the City for any construction on the Property, Owner shall substitute other forms of security reasonably satisfactory to City in place of this Lien Agreement, including, without limitation, letters of credit (as applicable, the "Replacement Security ") along with an executed replacement Subdivision Improvement Agreement between Owner and the City. The City agrees that, within the first two years from recordation of this Lien Agreement, substitution by Owner of bonds, letters of credit and /or cash in the aggregate amount of Five Million Dollars ($5,000,000), or such lesser amount based on a calculation of 160% of the cost estimate approved by the City based on the final construction documents and plans prepared and submitted by the Owner for said Improvements, is satisfactory to and approved by the City as Replacement Security. If the substitution occurs more than two years from the recordation date of this Lien Agreement, the amount of the Replacement Security shall be 160% of the cost estimate approved by the City based on the final construction documents and plans prepared and submitted by the Owner for said Improvements. Any required City approvals shall not be unreasonably withheld. D. Even if Owner has not applied for or been issued a building permit for construction on the Property, Owner shall provide the Replacement Security within two (2) years following the date of recordation of the Map. The City may grant extensions of time in its sole discretion. II. City's Performance and Obligations. A. Following the City's receipt of the Replacement Security, the Property shall be automatically released from this Lien Agreement. Promptly upon Owner's request, the City shall execute any necessary release or other document to enable Owner or its transferee to clear the Property's record of title of this Lien Agreement and any lien herein imposed. B. In no instances shall this Lien Agreement compel the City to construct the required Improvements. I I I1334.0 UUC 3779��- OnOb- /0- 0- tU /wcdlwrA -Z- BI. Effect of Lien Agreement. A. From the date of recordation of this Lien Agreement, a lien shall attach to the Property which shall have the priority of a judgment lien in an amount necessary to complete the agreed to improvements and discharge all obligations contained in the Subdivision Improvement Agreement. Under no circumstances shall the City agree to subordinate the lien. B. This Lien Agreement shall expire upon the City's receipt of the Replacement Security (the "Termination Date "), at which point the City shall take the action required to release the lien of record, as contemplated in Section II.A above. IV. Events of Default. Upon the occurrence of any one of the following events prior to the Termination Date, Owner shall be deemed in default hereunder: A. Failure by Owner to provide the Replacement Security within the time allotted and as prescribed by this Lien Agreement, B. Filing of any proceedings or action by or against Owner to declare Owner bankrupt or to appoint a receiver or trustee for Owner or to reorganize Owner or to make an assignment for the benefit of creditors or to do anything else of a similar nature or purpose under any state or federal bankruptcy or insolvency laws, if such proceedings or actions are not discharged within sixty (60) days. C. Levy of any attachment or writ of execution against Owner and the Property whereby the Property is taken or occupied or attempted to be taken or occupied by someone other than Owner and such attachment or execution is not released within (60) days. D. Sale of any lot shown on the Map, except as provided in subparagraph I(B) above. E. Request by Owner of issuance by the Department of Real Estate of the Final Subdivision Public Report for the Property. F. Breach by Owner of any other term or condition of this Lien Agreement or Owner's failure to fully and faithfully discharge its obligations hereunder within the time specified herein. All references to Owner in this section shall be deemed to include Owner's successors, assignees and transferees. V. City's Remedies. Upon Owner's receipt of written notice from the City of such default of any of the events described in Section IV above, and the failure of Owner to commence to cure or to cure such default within thirty (30) days, or in the event that the Owner commences to cure such default within such thirty (30) days but fails to complete such cure within ninety (90) days of receipt of written notice or as soon as practicable thereafter if such breach cannot reasonably be cured within such ninety (90) day period despite Owner's diligent efforts provided that Owner II14333. Ill f0(' 372949 - 00005 /0- u -0o /wrdnvd -3- diligently pursues such cure to completion, the City may declare a breach of this Lien Agreement by giving written notice to Owner, and thereafter the Owner shall initiate proceedings for reversion of the Property within the land division to acreage, at the expense of Owner, in accordance with the provisions of the Subdivision Map Act. The City may also elect to pursue any one or more of the following remedies in lieu of instituting proceedings for reversion: A. Enforce this lien by appropriate action in court or as provided by law and in the event the enforcement is by action in court, the Owner agrees that the amount of said lien shall include reasonable attorneys' fees which shall be taxed as a cost in any suit for such enforcement; B. Estimate the cost of the work required to complete the Improvements and foreclose said lien in said amount; C. Pursue any other remedy, legal or equitable, for the foreclosure of a lien. Owner, its heirs and assigns, shall pay reasonable attorneys' fees to be taxed as a cost in said proceedings. D. In the event that the City pursues any of the above remedies, the Owner agrees to waive any applicable statute of limitations and any other time - related defense with respect to the enforcement of this Lien Agreement so long as this Lien Agreement has not been terminated. The Owner agrees that it shall not plead, assert, or otherwise raise any Statutes of Limitation applicable to the enforcement of this Lien Agreement during the term of the Lien Agreement. This Lien Agreement constitutes a valid and effective written agreement to waive the statute of limitations pursuant to Section 360.5 of the California Code of Civil Procedure. VI. General Provisions. A. Recordation. This Lien Agreement shall be recorded by Owner with the County Recorder immediately following execution of this Lien Agreement indexed by (1) all parties hereto, and (2) all parties having any record title interest in the subject real property, pursuant to Government Code Section 66436, acknowledging subordination of their interests to this Lien Agreement. B. Entire Agreement. This Lien Agreement together with all exhibits and other agreements expressly referred to herein, constitutes the entire agreement between the parties with respect to the subject matter contained herein. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are superseded. C. Further Assurances. The parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Lien Agreement and the intentions of the parties. D. Governing Law. This Lien Agreement shall be governed, interpreted, construed and enforced in accordance with the laws of the State of California, with venue in Orange County. 111434 G V(]C 373942- OOOpSdi -0- OOlmrd!wrd -4- E. Headings. The captions and Section headings used in this Lien Agreement are inserted for convenience of reference only and are not intended to define, limit or affect the construction or interpretation of any term or provision hereof. F. Modification, Waiver. No modification, waiver, amendment or discharge of this Lien Agreement shall be valid unless the same is in writing and signed by all parties. G. No Other Inducement. The making, execution and delivery of this Lien Agreement by the parties hereto has been induced by no representations, statements, warranties or agreements other than those expressed herein. H. Severability. If any term, provision, covenant or condition of this Lien Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Lien Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Lien Agreement shall be valid and enforceable to the fullest extent permitted by law. I. Counterpart. This Lien Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, taken together, shall be deemed one document. [Signature Page Follows] 11 14',-'4,,l OC -5- IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first hereinabove written. "OWNER" Heritage Villa C LL a Delaw limited liability company By: N e: Andrew Colquitt Title: Authorized Party ATTEST: �- '/f��l� -� tom• /�� Maria D. Huizar, Clerk of thL Council APPROVED AS TO FORM: Sonia Carvalho, City Attorney B Y Lisa StorcGiCity Attorney n ia3_40 37 -94 ?.. ........ -6- CITY OF SANTA ANA David Cavazos, CALIFORNIA ALL-PURPOSE 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 On ju� before me, Date Here Insert Name and Title of the Officer personally appeared CAyA7- -66 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personK whose name(sf is1we subscribed to the within instrument and acknowledged to me that he /sheAhey executed the same in his/b®rrtheirauthorized capacity(ies), and that by his /her404eir signature4 on the instrument the person(S; or the entity upon behalf of which the person(,$)"acted, executed the instrument. ROSA A.FLORES "• Commission # 2057129 z ° Notary Public • California i orange County n e My Comm. Expires Feb 7,.2099 r Place Notary Seal Above 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 C( , Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact • Trustee ❑ Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — ❑ Limited ❑ General • Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: _ : c. ��s- c,c.- cc;cuu•�- c.�= aux;cc,ce �:Yc�c.�,�,•cz,�c:c.•u�. ice° czz�- cQ- z. �c�z. ?> c^ cc.�,�.2;c�c._c.•�c.�.�;zc.�.�� ©2014 National Notary Association , www.NationaiNotary.org • 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907 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 Orange On June 29, 2016 before me, Katherine J. Butler, Notary Public (insert name and title of the officer) personally appeared Andrew W. Colquitt who proved to me on the basis of satisfactory evidence to be the on(s) whose name(s) sere subscribed to the within instrument and acknowledged to me that�he /they executed the same in i l er /their authorized capacity(ies), and that by�/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. KATHERINE J.9 Tl,ER Commission # 2083148 WITNESS my hand and official seal. Notary Public • Ca1110MIa § Na z Orange County M Comm. Ex ires Sap 25, 2018♦ Signature �` �At (Seal) 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 On , before me, (insert name of notary) Notary Public, personally appeared who 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 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. (Seal) 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 On , before me, (insert name of notary) Notary Public, personally appeared who 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 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. (Seal) 1114314 11,0C 37913- 1PI'lo.0 -0, A,,,davrd -7- EXHIBIT "A" Legal Description of the Property ALL OF LOTS 1, 2, 3, 4, A AND B, INCLUSIVE, AS SHOWN IN TENTATIVE AND FINAL TRACT MAP NUMBER 17962 (CITY TRACT MAP NUMBER 2015 -03), IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA. 1114314,71 )C 3]2942- 0D110id1- 6-0l,,,d /,,d -8- EXHIBIT "Bil The Improvements' S. Prly t"treet Impmaem ents .,uanory wi .,nrtPnC icml 1 �mrtaaxe'.mm R >crxrr. err bme a,wn c ps,A ss.cwm 2 C>mrtuc 111ir_ei"'k L5, 100 SF SUU I], 1MA 3ID --t2 S'ACOwr L" base :r 1, rep,r B7 )00 5% .b:A c'_JCQ 11 a:on.mr[ 5 ¢moor ontr_. -rer l "L'bar 11.390 51 'N1:iG a 19, 5 .10 5 . -chic[ p CC MVaw a x...... a EA $1. al00 a ]3,091]0 c.nmo rsigneaz rntl mF ^i 1 I 3,0_ FF 5 CF, 0 i Cpnxrtucrsveetli ghe 15 Ea 120..10 s LSS,0 33rt e[p/aurg artlrvnqln0 1 c. :15pro.G1 $ o00 9ubmtal £ )es. m¢ob 2. Rellread GRSSIng Impm..em uenvry Vmc n11r mm 1 c >nmoc[Imlxw3ma:b 1 Ls L..MD0 791,U0aw 'Raffic control 1 FS $3e R9g0 31A111A Ilbl4l l $ ¢310¢0.00 3. Public 3eruec Imprnvemen is nAry unit Vn¢_ i _ io21 l S-1 :oN IF ;-0, 00 a ].GU eery 1 12W IF 3.,II1,t newer manrde a La Sa M,00 18,0.GF ,enrtr cl12'INLIrk 1117117¢lnc xartruifn dpavement 1,31) I S1..00 3 11 3.om o.:_ uer l ncral hnus mnnz4len x F 31 5`D, 00 13. "1 69reaiinW e�isongn'a J�JZ L E] .2- '.YQil1 ?,9.,10 AberJ- 3ezong ill ",ewer mai_, t L: 34,,]V],N r 4, F. 1A 3 inrvvucCl'cc srar 5"bxu 51. 3F OLti 3ubto<el $ 314, O60.W 4. Public Street Improvements (Dyer Rd. Rep eving) �1a i r n, V6e Jmt .ma Pa1.,J0 Tool Swint PS r : 2 namma en.ungaCpareminc 0'0 IF I, IF. 3 Canxvucta "L[ory 3'1e ,_ ..,IC. xpF, 41,010 1, S700 a .1, ill Fri CF, ...... L F, 51, A. 11 12 OF1. s I", aane am servsr,ne 1 LS .51.1r S sso01. Subtatol S 432,HOS.W 5, Public Street Imp mvements (Red Hill Aua Repaving) rt mlo, In" .�u ue 13110 ioNl _J wt 1A6 F 5', 2 ?emo':e =. v i atln; AL p Iv a menr ., IF $[00 > i6,02AW 3 COnsvuc [ I r 11 wer 5' 11, cr — aol:. repot .,lll IF S.00 a 1e3,81r1 C11 1 Ce,uvuc[.blptn 1 i L3 SlIllo]U il.l."I 5 In" °da", an4 ,,,iwving 1 IS 10.1.1., 3 R Subtotal $ ]31330.ee 1114',24 "1()( '�' 173932- 11(111(L /i40- olv"dnvid EXHIBIT 11611 The Improvements 6. Public Street Improvements (Medlen Landscaping on Dyer Rd.) nary umr uat Fnce Taml L Ramwe ani5hnde45�aF1'g nn ndgl rton N, 61T Y 1200 a 1)d]2.T1 ��nsrtuc!9m�gV1tN VSn- and- spe,;'nieallon 3,6F5 91 $],W 5 50 IQ SuFtotol 5 ]0..1)9.00 ]. Storm Di alit ConneW on to County Main in Red H111 Ave. Oaan i �_m 1nr Pnce Teel Np and 1. Ln 111 $2Me.]o 5 2non;J _�n_uaR5m RC9 aanreaaen L Ea g5ro.00 a Sa50r1S, anmra_¢ .Im'.n) t,pva�n_c.tomJr3ner6nl! ., E0. $aOro.G9 a S.9L99] Snhtotal f 166gnW O. Public Water wRbin Privet. Street Improvements Cuanop m r, use mm. 1ae:ell ¢ "le!IgNan[ D E¢ ,u _ a a0g99ro 2!r52A u g— yahr! a a 111.11 11 -11 maa 9arh(I :w pr1-1,r sa Fa $3i SA99 ozAWm �n—I L'ICrvarer m,, i-N IY 51@,99 a 21]IL4 G] 51n5.11 R "Ol bmrJ -x¢n Mw: dNd I En $Er)T10 g9WW hi_11 L "'al "<t6`tea mF "r 1Wnd. ] Ea $y]WL+1 ..... ImeF i2 ",ff ^r 1 mruatblocu 1 Ee i,1N,LO a 1,00am n,oll J2 otPO wltlt _ "ao, —creel la ,o 2 EH $].9C9.00 S3CCPW 99rt�115'scMCerIS.m =re: ] EA $10 MW $ ;OCRR�➢ 191rvvall3 "a¢r9aewi N-11 L E.4 59.9C9g0 a 399C!'9 111rvail P'servlce vlki meter _ f0. $A.000.'JO 16.OU0rp 1211um111'1ernccwi melee J EP Vt..." '23910/0 Euhr¢tol 5 A3 L.vnR 9. Misc. Gnann r. mt ron- me rmd'm mnwllFtr +_.>ah -,.el 1 s1e 9,nee 19,aotm _reeowaacn 1 LS >15,9R]a9 5 1s,9ww 9uhrntal { EG96G.99 nml $ zrt"ctorr 20% PRELI M.ENGR. SAl A13 L i CONSTR ENGR. a 121 t67 Final T,W $ 9�]99,9ES.. USE $ 5,0001000.00 AS FINAL ESTIMATE The unit counts and costs displayed above our based on a conceptual description of the improvements. Some quantities may change and it is likely all the costs will change when Heal drawings for each of the improvements are completed. In addition, the contingency amounts will be reduced. 11 Ia324011OC 37-942-1), 00510- 0- OILw1(1 /w,d