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the exercise by it of any other rights or remedies for the same default or any other default by another party.
5. General Provisions.
5.1 No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the City and Developer. No other parties or entities are intended to be, or shall be considered, a beneficiary of the performance of any of the parties’ obligations under this Agreement.
5.2 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or any of its terms.
Reference to section numbers are to sections in this Agreement unless expressly stated otherwise.
5.3 Interpretation. The City and Developer acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting and each represents and warrants to the other that it has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to such extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the parties hereto.
5.4 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Agreement and the remainder of the Agreement shall continue in full force and effect.
5.5 Amendments to Agreement. Any amendments to this Agreement must be in writing and signed by the appropriate authorities of the City and Developer.
5.6 Notices and Communications Between the Parties. Formal notices and communications between the parties shall be given in writing and personally served or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the parties, as designated in this Section. Such written notices and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. Any such notice shall be deemed to have been received (i) upon the date personal service is effected, if given by personal service, (ii) upon the expiration of one (1) business day, if emailed, or (iii) upon the expiration of three (3) business days after mailing, if given by certified mail, return receipt requested, postage prepaid.
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If notice is to be made to the City:
City of Watsonville
Attn: City Clerk
275 Main Street, 4th Floor
Watsonville, CA 95076
If notice is to be made to Developer:
Landco Hillcrest, LLC
Twenty Park Road
Burlingame, CA 94010
Attn: Mark Lester
5.7 Authority. The individuals executing this Agreement on behalf of Developer and the instruments referenced on behalf of Developer represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions hereof and thereof.
5.8 Counterpart Originals. This Agreement may be executed in duplicate originals, each of which is deemed to be an original.
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IN WITNESS WHEREOFF, the parties hereto have executed this Agreement for Deferral of Payment of On/Off Site Permit Fees for Stage 1 of Hillcrest Subdivision on the 26th day of March, 2022.
CITY:
CITY OF WATSONVILLE
By: _____________________________________
René Mendez, City Manager
ATTEST:
By: _________________________________
Irwin Ortiz
City Clerk
APPROVED AS TO FORM
By: __________________________________
Samantha Zutler
City Attorney
DEVELOPER:
LANDCO HILLCREST, LLC
By:_______________________________________
Name: Mark Lester
Title: Managing Member
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AMENDMENT
TO AGREEMENT FOR DEFERRAL OF PAYMENT OF ON/OFF SITE
PERMIT FEES FOR STAGE 1 OF HILLCREST SUBDIVISION
This Amendment (“Amendment”) to the Agreement for Deferral of Payment of On/Off Site Permit Fees for Stage 1 of Hillcrest Subdivision dated May 25, 2023 (“Agreement”) is entered into on June 29, 2023 by and between the CITY OF WATSONVILLE, a municipal corporation organized and existing under the laws of the State of California (“City”) and LANDCO HILLCREST, LLC, a California corporation, (“Developer”) on the following terms and conditions. City and Developer shall be referred to collectively as “parties”.
RECITALS
WHEREAS, the Parties entered into the Agreement as of May 25, 2023 to, among other things, defer certain Fees, for the On/Offsite Permit totaling $94,315, that are typically due and payable at the time the applicant submits an application to the City for the On/Offsite Permit for a period of thirty (30) calendar days; and
WHEREAS, the City issued the On/Offsite Permit on May 26, 2023 pursuant to the terms and conditions of the Agreement; and
WHEREAS, the Fees were due to the City by 5:00 p.m. on or before the Due Date identified in the original Agreement, which was Monday June 26, 2023; and WHEREAS, the Developer was unable to pay the Fees by the Due Date because of substantial delays attributable to the calamitous winter storms and ensuing unbudgeted capital costs, which strained Developer’s financial resources; and WHEREAS, the City has determined that because of the unique circumstances presented, including the need to take advantage of the summer season to commence vertical construction and the public benefits that would be derived from the continuance of the Project that the Fees should be deferred for a longer period of time to give the Developer more time to pay the Fees in two installments; and
WHEREAS, the Agreement provided that if Developer did not pay the Fees by the Due Date the On/Offsite Permit would be deemed null and void; and WHEREAS, the Parties now desire to amend the Agreement pursuant to section 5.5 of the Agreement, contingent upon Council ratification, to further defer the dates associated with payment of the Fees to allow Developer more time to pay the Fees and allow the Developer to continue to work under the On/Offsite Permit issued on May 26, 2023 and to allow payment of the Fees to be made in two installments, with the first installment of 50% of the Fees ($47,067.50) to be paid on or before July 3, 2023 and the second installment of the remaining Fees ($47,247.50) plus interest to be paid on or before September 1, 2023; and WHEREAS, the parties understand that due to the complexities of this further deferral and the change in terms of payment of the Fees, this Amendment will be presented to the Council for consideration at a public meeting on July 18, 2023. If the Council does not approve the further DocuSign Envelope ID: 52E4EA4A-E841-453A-8C57-8C90888DE113 Attachment 3
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deferral of the Fees as set forth in Sections 2 (A) and (B) of this Amendment, the Fees shall be immediately due within two (2) business days after the Council meeting and the On/Off Site Permit shall be immediately deemed null and void.
AMENDMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The parties agree that the Recitals in this Amendment are true and correct and are a substantive and integral part of this Amendment and are incorporated by reference as operative provisions of the Amendment.
2. Amendment.
A. The Parties agree that the following section 2.1 of the Agreement is amended to read in its entirety as follows:
“Section 2.1 City’s Deferral. The City agrees that Developer may defer payment of the Fees for the time periods specified in section 2.2 of the Agreement. The Fees are broken down as follows:
A. Engineering Services
Improvement plan & CC&R’s check = $ 41,471.00
Drainage Study review = $ 1,050.00
MWELO review = $ 140.00
Structural review = $ 1,150.00
Addressing fee = $ 350.00
Final Map review fees = $ 3,110.00
Final Map recordation = $ 356.00
Subdivision Agreement Preparation = $ 10,461.00
Map Processing = $ 6,225.00
B. Inspection
Inspection fee (5206) = $ 29,225.00
C. Encroachment Permit Fees $ 777.00
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Total Fees $94,315
The parties acknowledge that City normally requires the payment of all Fees at the time the project applicant submits an application to the City for an On/Offsite Permit. In this case, by virtue of this Agreement, the City will issue the On/Offsite Permit, provided all other requirements for the issuance of such On/Offsite Permit have been met, including insurance obligations, even though the Developer will not have paid the Fees. Developer will also be allowed to submit the Fees in two installment payments as described in section
2.2 of the Agreement. City shall have no obligation to issue any other permits or authorizations for any other portion of the Project until Developer has paid all other applicable fees in full, when those fees are due and payable.” B. The Parties agree that the following section 2.2 of the Agreement is amended to read in its entirety as follows:
“2.2 Payment of Fees and Interest. The Fees shall be paid in two installments by the Developer as follows:
1) First Installment of the Fees shall be paid to the City by 5:00 p.m. on or before Monday, July 3, 2023 in the amount of $47,067.50 (“First Installment”); 2) Second Installment of the Fees shall be paid to the City by 5:00 p.m. on or before Friday, September 1, 2023 in the amount of $47,067.50 (“Second Installment”).
2.2.1 The deadlines identified above for the First Installment and the Second Installment payment of the Fees may be individually and/or collectively referred to as the “Due Date.” If the Developer fails to pay either the First Installment or the Second Installment on the times/dates specified in this section, the parties agree that the On/Off Site Permit shall be deemed null and void and may no longer be utilized by the Developer for the Project.
2.2.2 In addition to the Fees, the Developer shall pay to the City interest at the rate of 5.27% on the total amount of Fees, for a total of $1,348.14 (“Interest”) on or before Friday, September 1, 2023 by 5:00 p.m. If the Developer fails to pay the Interest on or before Friday, September 1, 2023, the On/Off Site Permit shall be deemed null and void and may no longer be utilized by the Developer for the Project”
3. Further Deferral Contingent on Council Ratification. The parties agree that further deferral of the Fees and payment of the Fees in installment payments as more specifically described in Section 2 shall be contingent upon a majority of the City Council of the City of Watsonville approving/ratifying the Amendment. If a majority of the City Council fail to approve/ratify, the Due Dates identified in this Amendment shall no longer be in effect and the parties agree that the Fees and Interest will be due within two (2) business days after the Council decision and the On/Off Site Permit shall be immediately deemed null and void, until the City receives payment of the Fees and Interest.
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4. Definitions.
All definitions in the Agreement shall apply in this Amendment, unless otherwise stated or as amended herein.
5. Other Provisions Remaining in Full Force and Effect.
Except as amended above, all of the terms and conditions of the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOFF, the parties hereto have executed this Amendment on the 29th day of June, 2023.
CITY:
CITY OF WATSONVILLE
By: _____________________________________
René Mendez, City Manager
ATTEST:
By: _________________________________
Irwin Ortiz
City Clerk
APPROVED AS TO FORM
By: __________________________________
Samantha W. Zutler
City Attorney
DEVELOPER:
LANDCO HILLCREST, LLC
By:_______________________________________
Name: Mark Lester
Title: Managing Member
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