HomeMy WebLinkAboutC-3590 - Pre-Annexation Agreement (for Santa Ana Heights)8Z
�o
$o
00
m
U
0
2
3
41
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PRE- ANNEXATION AGREEMENT
THIS AGREEMENT, is entered into the 62" day of , 2002 by and
between the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter
referred to as "COUNTY ", the ORANGE COUNTY DEVELOPMENT AGENCY, a public body
corporate and politic, hereinafter referred to as the "AGENCY ", and the CITY OF NEWPORT BE.
a charter city, hereinafter referred to as "CITY".
RECITALS:
WHEREAS, the Board of Supervisors of the COUNTY acting pursuant to the Community
Redevelopment Law ( "CRL ") has adopted a redevelopment plan (the "Redevelopment Plan") for a
portion of the unincorporated territory of the COUNTY known as Santa Ana Heights ( the
unincorporated territory governed by the Redevelopment Plan is referred to in this Agreement as the
"Project Area "); and
WHEREAS, under the CRL, the AGENCY is responsible for implementing and administering
the Redevelopment Plan; and
WHEREAS, the COUNTY has adopted the Santa Ana Heights Specific Plan to regulate land use
and zoning within the Project Area (the "Specific Plan"); and
WHEREAS, the Redevelopment Plan specifies that the land uses permitted in the Project Area
will be those set out in the Specific Plan; and
and
WHEREAS, in August 2000 the CITY amended its General Plan to include the Specific Plan;
WHEREAS, the AGENCY and COUNTY desire that the land use and zoning regulations of the
Specific Plan continue in effect in order to encourage development in the Project Area that will generate
sufficient tax increment revenues to repay the redevelopment bonds issued by the AGENCY to finance
capital projects in the Santa Ana Heights Project Area, and meet the AGENCY's obligation to
to the repayment of the COUNTY'S bankruptcy recovery bonds in accordance with the provisions of
Health and Safety Code Sections 33670.9 and 33670.95; and
758108\780800.4
d
o=
ZW
8o
00
00
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
r
•
WHEREAS, the CITY is proposing to annex and/or reorganize currently unincorporated
territories adjacent to or within the CITY'S western and northern sphere of influence, including a
portion of the Project Area (the portion of the Project Area proposed to be annexed to the CITY is
referred to in this Agreement as the "Annex Area "); and
WHEREAS, if the Annex. Area is annexed to the CITY, the COUNTY and the AGENCY desire
assurances from the CITY that the land use regulation applicable to the Annex Area will remain as
specified in the Specific Plan and that the CITY will not amend the Specific Plan or its General Plan as
they pertain to the Annex Area without the COUNTY and AGENCY'S prior written consent; and
WHEREAS, after annexation, the CITY desires that the AGENCY cooperate with the CITY in
acquiring land for and constructing a fire station in the Project Area; and
WHEREAS, the COUNTY and the CITY intend that, upon the effective date of the annexation
of the Annex Area to the CITY, and the CITY providing local municipal services to the Annex Area,
the property tax sharing between the COUNTY and the CTTY shall be 70% of the current COUNTY
General Fund share of the 1% basic property tax levy to the CITY, and 30% to the COUNTY during
the time the AGENCY continues to receive tax increment from the Annexed Area pursuant to Health
and Safety Code Section 33670, and, once the AGENCY is no longer receiving tax increment from the
Project Area, the COUNTY and CITY shall thereafter share the property tax that the COUNTY would
have received if the annexation had not occurred, based on the allocation set out in the Master
Property Tax Agreement between the CITY and the COUNTY, to wit: 51.9378°% to the CTTY and
48.0622% to the COUNTY. In addition to the above, the CITY shall receive 100°% of the property tax
revenues from the Annexed Area that, absent annexation, would have been apportioned to the Orange
County Library District and the Orange County Fire Authority; and
WHEREAS, AGENCY is desirous of purchasing a parcel of improved real property in the
Project Area, for purposes of a.community center, which property will be turned over to the CITY upon
the completion of the annexation of the Annex Area by the CITY; and
758k08\1 6D800.4
1
2
3
4
5
6
7
8
9
10
11
Ed 12
Z
z 13
Z�
00 14
0 15
�U
16
0
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS, CITY agrees to accept title to the property that AGENCY acquires for a
center, and thereafter use and maintain the property as a community center, and, upon CITY's
acceptance of title, CITY shall pay all use and maintenance costs connected therewith.
NOW THEREFORE, in consideration of the above recitals and of the mutual covenants and for
other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the
COUNTY, AGENCY and CITY agree as follows:
1. OBJECTIVES AND INTENT.
1.1. Objectives. The objectives of this Agreement are:
1.1.1 Ensure that after the annexation of the Annex Area by the City, the land use and
zoning regulations of the Specific Plan are.not be amended by the CITY without
the prior written consent of the COUNTY and the AGENCY.
1.1.2. Preserve the AGENCY'S tax increment revenues from the Annex Area after its
annexation by the CITY in order to repay the AGENCY'S redevelopment bonds
issued to finance Project Area capital projects and contribute to the repayment of
the COUNTY'S bankruptcy recovery bonds.
1.1.3 Provide AGENCY cooperation and contribute AGENCY funding for the
acquisition of land, (or provide AGENCY land, if suitable), for, and construction
of, a fire station in the Annex Area after its annexation to the CITY.
1.1.4 To provide the Santa Ana Heights and Newport Beach residents with a suitable
community center to use for community activities and programs. .
1.2. Intent. The COUNTY, AGENCY and CITY, through this Agreement, intend to
establish the rights, obligations and duties of each of them after the CITY'S annexation of the Annex
Area in order to accomplishment the objectives of this Agreement.
2. AMENDMENT OF THE SPECIFIC PLAN WITHOUT WRITTEN CONSENT OF
COUNTY AND AGENCY.
758W6 \160800.4
d
Z
oZ
H 0
mg
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
E
0
2.1. After the CITY's annexation of the Annex Area, the CITY shall not amend its General
Plan as it pertains to the Annex Area or the Specific Plan without the prior written consent of the
COUNTY and the AGENCY. The CITY also agrees that in the event of any conflict between the
Redevelopment Plan and the CITY's General Plan or Specific Plan with regard to land uses or other
zoning or land use regulation, the Redevelopment Plan shall prevail. Determinations as to whether such
conflicts exist and their resolution shall be made by the AGENCY. COUNTY and AGENCY recognize
that CITY's current effort to revise CITY's General Plan ( "Update ") for entirety of Newport Beach may
include the Annex Area. CITY agrees that CITY's Update, where it applies to the Annex Area, shall be
submitted to COUNTY and AGENCY for review and approval.
3. VARIATION FROM MASTER PROPERTY TAX AGREEMENT.
3.1. The provisions of the Master Property Tax Agreement between the COUNTY and the
CITY notwithstanding:
(a) The COUNTY and the CITY agree that, upon the effective date of the annexation
of the Annex Area to the CITY, and the CITY providing local municipal services to the Annex Area,
the property tax sharing between the COUNTY and the CITY shall be 70% of the current
(preannexation) COUNTY General Fund share of the I% basic property tax levy to the CITY, and
30% to the COUNTY during the time the AGENCY continues to receive tax increment from the
Annexed Area pursuant to Health and Safety Code Section 33670; provided, however, in the event the
CITY, in violation of Section 2 above, amends its General Plan or Specific Plan without the prior
written consent of the AGENCY and the COUNTY, then the property tax sharing between the
COUNTY and the CITY shall be 30% of the current (preannexation)COUNTY General Fund share of
the I% basic property tax levy to the CITY, and 70% to the COUNTY.
(b) Once the AGENCY is no longer receiving tax increment from the Project Area, the
COUNTY and CITY shall thereafter share the property tax that the COUNTY would have received if
the annexation had not occurred, based on the allocation set out in the Master Property Tax Agreement
between the CITY and the COUNTY, to wit: 51.9378% to the CITY and 48.0622% to the COUNTY,
provided, however, in the event the CITY, in violation of Section 2 above, amends its General Plan or
758\08116 800.4
1 Specific Plan without the prior written consent of the AGENCY and the COUNTY, then the property
2 tax sharing between the COUNTY and the CITY shall be 30% of the current
3 (preannexation)COUNTY General Fund share of the I% basic property tax levy to the CITY, and 70%
4 to the COUNTY.
5 (c) In addition to the above, the CITY shall receive 100% of the property tax
6 revenues from the Annexed Area that, absent annexation, would have been apportioned to the Orange
7 County Library District and the Orange County Fire Authority.
8 (d) COUNTY and AGENCY agree, from the effective date of this Agreement
9 forward, AGENCY shall not issue redevelopment bonds backed by tax increment revenue from
10 territory that includes the Annex Area unless the bonds terminate before 2036.
11 The CITY recognizes and acknowledges that so long as the AGENCY receives tax increment
h 12 pursuant to Health and Safety Code Section 33670, the forgoing allocation of property taxes between
Z
Z 13 the COUNTY and CITY applies only to those property taxes allocable to the COUNTY and CITY
U0 14 pursuant to subsection (a) of Health and Safety Code Section 33670 and that the balance of the
,z 15 property taxes form the Annex Area will be allocated to the AGENCY as tax increment pursuant to
0
p,p 16 subsection (b) of Health and Safety Code Section 33670.
0
17 4. AGENCY COOPERATION TO ACQUIRE AND CONSTRUCT A FIRE STATION IN
18 SANTA ANA HEIGHTS.
19 4.1. After the annexation of the Annex Area by the City, the AGENCY shall cooperate with
20 and assist the CITY in locating and financing the acquisition of suitable land for a fire station to serve
21 Santa Ana Heights, adjacent unincorporated areas (via mutual and automatic aid), and John Wayne
22 Airport.
23 4.2. After annexation of the Annex Area by the CITY, the AGENCY shall cooperate and
24 assist the CITY in financing the construction of a fire station to serve Santa Ana Heights, adjacent
25 unincorporated areas (via mutual and automatic aid), and John Wayne Airport.. After its construction,
26 the CITY, at its sole cost, will equip and operate the fire station.
27 4.3. The parties understand and agree that the AGENCY's financing of the costs of the land
28 for and construction of the fire station is subject to and will require public hearings and the making of
7sawe\1e0e00.4
d
z
Z
$o
OV
m
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0
findings pursuant to Health and Safety Code Sections 33445 and 33679 and that they will cooperate to
hold the requisite hearings and make the findings before the Board of Supervisors of the COUNTY and
City Council of the CITY so as to satisfy the requirements of Health and Safety Code Section 33445 an
33679.
5. AGENCY COOPERATION TO PROVIDE LAND FOR COMMUNITY CENTER
5.1. After the annexation of the Annex Area by the CITY, the AGENCY shall cooperate with
and assist the CITY in locating and financing the acquisition of suitable land for a community center to
serve the Annex Area as well as the balance of the Project Area.
5.2. Once the property for the community center property has been identified, acquired by the
AGENCY and conveyed to the CITY, the CITY will, at the CITY's sole cost, make all improvements to
that property necessary for its use as a community center and shall operate the property as a community
center. The AGENCY deed of the property to the CITY shall contain a right of reverter giving the
AGENCY the right to revest title to the property in the AGENCY in the event the CITY fails to operate
the property as a community center for a period of at least six consecutive months.
5.3. The parties understand and agree that the AGENCY's financing of the costs of the land
for the community center is subject to and will require the making of findings pursuant to Health and
Safety Code Section 33445 and that they will cooperate to facilitate the making of the requisite findings
before the Board of Supervisors of the COUNTY and City Council of the CITY so as to satisfy the
requirements of Health and Safety Code Section 33445.
6. MISCELLANEOUS PROVISIONS
6.1. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties with respect to the
stated herein. All previous proposals, offers, discussions, preliminary understandings, and other
relative to this Agreement, oral or written, are hereby superseded, except to the extent
they have incorporated into this Agreement. No exceptions, alternatives or substitutes of any of the
conditions and/or provisions of this Agreement shall be considered valid unless specifically
in writing by both parties.
7581081160800.4
s
0z
zo
00
R
00
m
0
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15.
16
17
18
19
20
21
22
23
24
25
26
27
28
6.2. Amendments.
0
No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be
binding on either of the parties.
6.3. Consent To Breach Not Waiver.
No term or provision of this Agreement shall be deemed waived and no breach excused,
unless such waiver or consent shall be in writing and signed by the party claimed to have waived or
consented.
Any consent by any party to, or waiver of, a breach by the other, whether express or
implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent
breach.
6.4. Specific Performance.
The parties acknowledge that monetary damages would be inadequate to remedy any
breach of this Agreement by either party. Accordingly, the parties agree that any breach of this
Agreement shall entitle the non - breaching party to file an action for specific performance in a court of
competent jurisdiction. In no event shall either party be liable for monetary damages in the event of a
breach of this Agreement.
6.5. Counterparts.
This Agreement may be executed by the parties in counterparts, which counterparts shall
be construed together and have the same affect as if all of the parties had executed the same instrument.
6.6. Further Actions and Instruments.
Each of the parties shall cooperate with and provide reasonable assistance to the other to
the extent contemplated by this Agreement to achieve the objectives of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with acknowledgement or
affidavit if reasonably required, and file or record instruments and writing. The parties shall also take
any action as may be reasonably necessary under the terms of this Agreement to cant' out the intent and
to achieve the objectives of this Agreement.
6.7. Indemnification.
7561081160800.4
H
8Z
�a
zo
$0
�z
04
m
0
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0
0
CITY shall defend, indemnify, and hold harness the COUNTY, the AGENCY, and its
officers, employees and agents with respect to any claim, damage, loss, cause of action, lawsuit or
proceeding that arises out of or is in any way related to any act or omission by CITY or its officers,
employees or agents in the performance or non - performance of any duty or obligation pursuant to this
Agreement. COUNTY and AGENCY shall defend, indemnify, and hold harmless the CITY and its
officers, employees and agents with respect to any claim, damage, loss, cause of action, lawsuit or
proceeding that arises out of or is in any way related to any act or omission by COUNTY, AGENCY or
its officers, employees, or agents in the performance or non - performance of any duty or obligation
pursuant to this Agreement.
6.8. General Law and Venue.
This AGREEMENT has been negotiated and executed in the state of California and shall
be governed by and construed under the laws of the state of California. In the event of any legal action
to enforce of interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
located in Orange County, California, and the parties hereto agree to and do hereby submit
to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore,
parties specifically agree to waive any and all rights to request that an action be transferred for trial to .
another county.
6.9. Waiver of Jury.
Each party acknowledges that it is aware of and has had the opportunity to seek advice of
counsel of its choice with respect to its rights to trial by jury, and each party, for itself and its
creditors, and assigns, does hereby expressly and knowingly waive and release all such rights to trial by
in any action, proceeding or counterclaim brought by any party hereto against the other (and/or
against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to
any matters whatsoever arising out of or in any way connected with this Agreement and/or any other
claim of injury or damage.
6.10. Heading/Severability.
75W8\1 6080D.4
d
UZ
0o
00
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
•
•
The various headings and numbers herein, the grouping of provisions of this Agreement
into separate clauses and paragraphs, and the organization hereof are for the purpose of convenience
only and shall not limit or otherwise affect the meaning hereof.
If any term, covenant, condition or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
6.11. Interpretation.
This Agreement has been negotiated at arm's length and between persons sophisticated
and knowledgeable in the matters dealt with in this Agreement. In addition, each party had been
represented by experienced and knowledgeable independent legal counsel of their own choosing or has
knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so.
Each party further acknowledges that they have not been influenced to any extent whatsoever in
executing this Agreement by any other party hereto or by any person representing them, or both.
Accordingly, any rule or law (including California Civil Code Section 1654) or legal decision that woul
require interpretation of any ambiguities in this Agreement against the party that has drafted it is not
applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner
to effect the purpose of the parties and this Agreement.
6.12. Authority.
The parties to this Agreement represent and wan-ant that this Agreement has been duly
authorized and executed and constitutes the legally binding obligation of their respective organization
entity, enforceable in accordance with its terms.
//
11
//
75aW+60800.4
2
3
4
5
6
7
8
9
10
11
12
8� 13
U0 14
o° 15
wS
16
0
17
18
19
20
21
22
23
24
25
26
27
28
0
i
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year dated below.
I DATED:
�- j- 1 II
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIR OF THE BOARD AND THE
CHAIR OF THE BOARD ACTING AS THE
ORANGE COUNTY DEVELOPMENT AGENCY
DARLENE J. SI OOM
Clerk of the Board of Supervisor
County of Orange, California
APPROVED AS TO FORM:
COUNTY COUNS L
By
Robert L. Austin, Deputy
DATED:, 2002
DATED: I , 2002
758108\160800.4
COUNTY OF ORANGE, a political
subdivision of the State of California
r
1
.,�. /` / d6z
hair of Its Board of
"COUNTY"
and
DATE / O 2002
ORANGE UNTY
DEVELOPMENT AGENCY, a public body
corporate and politic
By �
Chair of Its Board of Supervisors, Acting
as the chair of the Board of the Orange County
Development Agency
"AGENCY"
'�' :r •
0
Mayor of the City of Newport Beach
1
2
APPRO D AS TO FORM:
3
By
4
City Attorney for the City of
Newport Bea
5
DAI 2002
6
7
8
9
10
11
12
85
13
�a
Z0
00
14
15
00
16
0
17
18
19
20
21
22
23
24
25
26
27
28
758\081160800A
0
Mayor of the City of Newport Beach