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HomeMy WebLinkAboutCC RES 09-70RESOLUTION N0.09-70 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AUTHORIZING THE CITY MANAGER OR AUTHORIZED DESIGNEE TO COORDINATE, PROCESS, AND EXECUTE THE HISTORIC PROPERTY PRESERVATION AGREEMENT ATTACHED HERETO AS EXHIBIT I WITH THE OWNER OF THE PROPERTY LOCATED AT 310 SOUTH PASADENA AVENUE, TUSTIN, CALIFORNIA. The City Council of the City of Tustin does hereby resolve as follows: WHEREAS, the State of California enacted the Mills Act (California Government Code Section 50820 et seq.), which authorizes cities to enter into contracts with the owners of qualified historic properties to provide for the use, maintenance, and restoration of such historical properties so as to retain their characteristics as properties of historical significance; and WHEREAS, the Tustin General Plan identifies the following policies related to the preservation of historic properties: 1) Encourage the restoration and rehabilitation of properties in Tustin eligible for inclusion on the National Register of Historic Places according to the rehabilitation guidelines and tax incentives of the National Trust for Historic Preservation. 2) Preserve historically significant structures and sites and encourage the conservation and rehabilitation of older buildings, sites, and neighborhoods that contribute to the City's historic character. 3) Preserve historic and architecturally significant residential properties. 4) Retain and protect significant areas of archaeological, paleontological, or historical value for education and scientific purposes; and WHEREAS, the City Council adopted Resolution No. 97-50 on June 16, 1997, and determined that the use of historic property preservation agreements in Tustin will be limited to residential properties that are not exempt from property taxation and have an "A," "B," or "C" rating in the City of Tustin Historical Resources Survey; and WHEREAS, the owner of the property located at 310 South Pasadena Avenue has submitted an application to enter into a historic property preservation agreement with the City of Tustin; and WHEREAS, the preservation of individual historic properties through the execution of historic property preservation agreements in Tustin would serve to maintain Resolution 09-70 Page 1 of 15 the historical integrity of individual structures citywide, including those within the Tustin Cultural Resources District; and WHEREAS, the preservation of important resources and neighborhoods would have beneficial indirect effects on local businesses, economic stability, and community pride; and WHEREAS, pursuant to Section 15308 (Categorical Exemptions) of the California Environmental Quality Act (CEQA), historical agreements are considered categorically exempt from the requirements of CEQA. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Tustin authorizes the City Manager or authorized designee to coordinate, process, and execute the historic property preservation agreement attached hereto as Exhibit I with the owner of the property located at 310 South Pasadena Avenue, Tustin, California. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin on the 1st day of December, 2009. ATTEST: v) Pa la Stoker, City Clerk Resolution 09-70 Page 2 of 15 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 09-70 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 1St day of December, 2009, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: Davert, Amante, Gavello, Nielsen, Palmer (5) None (0) None (0) None (0) PAMELA STOKER, City Clerk Resolution 09-70 Page 3 of 15 WHEN RECORDED MAIL TO: Director of Community Development City of Tustin 300 Centennial Way Tustin, CA 92780-3767 SPACE ABOVE THIS LINE FOR RECORDER'S USE HISTORIC PROPERTY PRESERVATION AGREEMENT This Agreement is entered into this 1 Sc day of December, 2009, by and between the City of Tustin ("City"), a municipal corporation, and Michael J. Demoratz, as Trustee of the M.J. Demoratz Trust ("Owner"). RECITALS WHEREAS, pursuant to Government Code Section 50280 et seq. (the "Mills Act"), the City of Tustin is authorized to contract with the owner of a Qualified Historical Property to restrict the use of the property and to provide for its appropriate use, maintenance and rehabilitation so that it retains its historic characteristics; and WHEREAS, the City Council has approved by resolution the use of such contracts to encourage the preservation of Qualified Historical Property in the City; and WHEREAS, the property which is the subject of this Agreement is identified as Assessor Parcel Number 401-543-13, commonly known as 310 South Pasadena Avenue, Tustin, California. A legal description of the Property is attached hereto, marked as Exhibit "A," and is incorporated herein by this reference; and WHEREAS, the property that is subject to this Agreement is listed in the City of Tustin Historical Resources Survey, which satisfies the requirements of Government Code Section 50280.1 as a Qualified Historical Property; and WHEREAS, the property is residentially zoned and has an "A" and a "8" rating in the City of Tustin Historical Resources Survey, all of which satisfies the criteria established by City Council Resolution No. 97-50. WHEREAS, the City and Owner, for their mutual benefits, now desire to enter into this Agreement to limit the use of the property to prevent inappropriate alterations and ensure that the character-defining features are preserved and maintained in an exemplary manner, and to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et seq., Chapter 3, Part 2 of Division 1 of the California Revenue and Taxation Code. Resolution 09-70 Page 4 of 15 NOW, THEREFORE, based on the above recitals and the mutual promises and covenants contained herein, the parties agree as follows: AGREEMENT 1. Properyy Subject to this Agreement The property which is the subject of this Agreement is identified as Assessor Parcel Number 401-543-13, commonly known as 310 South Pasadena Avenue, Tustin, California (the "Property"). A legal description of the Property is attached hereto, marked as Exhibit "A," and is incorporated herein by this reference. 2. Definitions Except as otherwise defined herein, the following words and phrases have the following meanings: "Serve notice" means to follow the notice procedures of Section 13. "Owner" means the property owner(s) of record of the Property and includes assignees with rights of possession and successors in interest to the Owner signing this agreement. "Qualified Historical Property" means privately owned property which is not exempt from property taxation and which meets the criteria set forth in Government Code Section 50280.1. 3. Commencement, Term and Renewal of Agreement A. This Agreement shall become effective on the date first above written, and unless canceled pursuant to Section 11, shall remain in effect for a term of ten (10) years. B. Each year, upon the anniversary of the effective date of this Agreement, the term shall automatically be extended for one additional year unless written notice of nonrenewal is served as provided herein. See Section 13 for procedures on service of notice. C. If Owner or City desires in any year not to renew this Agreement, such party shall serve written notice of nonrenewal on the other party. (1) If served by Owner, notice of renewal must be served on City at least ninety (90) days prior to the annual renewal date. (2) If served by City, notice of renewal must be served on Owner at least sixty (60) days prior to the annual renewal date. Resolution 09-70 Page5of15 (3) Failure to meet the notice deadlines above will result in one year being automatically added to the term of this Agreement. D. Within fifteen (15) calendar days of the date of the City's notice of nonrenewal, Owner may make a written protest to the City. (1) Upon receipt of such protest, the City Council shall schedule a hearing on the matter prior to the annual renewal date. (2) At such hearing, Owner may present any information which Owner deems relevant. (3) Based on Owner's protest and the information presented at the hearing, the City Council may withdraw the City's notice of nonrenewal at any time prior to the annual renewal date. E. Any notice of nonrenewal which has not been withdrawn prior to the next annual renewal date, shall be recorded with the Orange County Recorder. F. After the annual renewal date, the parties may agree at any time, by written and recorded instrument, to reinstate the ten-year term of this Agreement and renewal provisions hereof. G. Unless this Agreement is otherwise canceled as provided in Section 11, after notice of nonrenewal has been served and not withdrawn, this Agreement shall remain in effect for the balance of the term remaining, including any prior renewal term. 4. Recordation of Agreement The City Clerk shall record this Agreement with the Orange County Recorder within twenty (20) days of its execution by both parties. 5. Notice to Office of Historic Preservation Owner shall provide, or cause to be provided, written notice of this Agreement to the State Office of Historic Preservation within six months of the effective date of this Agreement, which is June 1, 2010. The City shall provide owner with the applicable address. 6. Standards and Conditions for Maintenance of Property The Property shall be subject to the standards and conditions set forth in Exhibit "B", which is attached to this Agreement and incorporated herein by this reference. Owner shall comply with the standards and conditions set forth in Exhibit "B". Resolution 09-70 Page 6 of 15 7. Periodic Examination of Property Upon prior notice, Owner shall allow the reasonable periodic examination of the interior and exterior of the premises of the Property by representatives of City, the Orange County Assessor, the State Department of Parks and Recreation, and the State Board of Equalization, as may be necessary to determine Owner's compliance with the terms of this Agreement. 8. Furnishing Information Owner shall furnish City with any and all information requested by City, which may be necessary or desirable to determine Owner's compliance with this Agreement. 9. Enforcement of Agreement In lieu of and/or in addition to any provisions to cancel this Agreement, City may bring an action in court to enforce this Agreement, including, but not limited to, an action to enforce this Agreement by specific performance or by injunction. If the City determines there is a violation of the provisions of this Agreement by Owner, and City decides to enforce rather than cancel the Agreement, City shall send written notice to Owner in accordance with Section 13. If such violation is not corrected to the reasonable satisfaction of the City within thirty (30) days after the date the notice of violation is sent by mail, or within such longer period of time as specified or agreed to by City, then City may, without further notice, declare a default under the terms of this Agreement and bring any action necessary to specifically enforce the obligations of Owner under this Agreement, including, but not limited to, bringing actions for specific performance or injunctive relief. 10. Binding Effect on Successors and Assigns/Covenants Run with the Land A. This Agreement is binding upon and inures to the benefit of all successors in interest to Owner, to Owner's assigns and all person acquiring any part or portion of the Property, whether by operation of law or otherwise. B. The Owner hereby subjects the Property to the covenants, reservations and restrictions as set forth in this Agreement, including Exhibit "B". City and Owner hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors and assigns in title or interest to the Property. Each and every contract, deed or other instrument hereinafter executed, covering or conveying the Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other Resolution 09-70 Page 7 of 15 instrument. City and Owner hereby declare their understandings and intents that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that the value of the Owner's legal interest in the Property may be affected thereby. City and Owner hereby further declare their understandings and intents that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the historic characteristics and significance of the Property for the benefit of the public and Owner. 11. Cancellation of Agreement A. City may cancel this Agreement if it determines, after a duly noticed public hearing as provided herein, that Owner has committed any of the following acts: (1) Owner has failed to maintain, restore or rehabilitate the Property in accordance with the terms, standards and conditions set forth in Exhibit "B". (2) Owner has allowed the Property to deteriorate to the point that it no longer meets the City's standards for a Qualified Historical Property. (3) Owner has violated one or more provisions of this Agreement. An Owner who does not occupy the Property, shall, nevertheless be responsible at all times under this Agreement, for the condition of the Property and compliance with this Agreement. B. City shall serve written notice of proposed cancellation on Owner stating the grounds for cancellation and setting a public hearing date on the matter. Notice of the hearing shall also be sent by U.S. mail to the last known address of each owner of Qualified Historical Property in the City, and shall be published pursuant to Government Code Section 6061. C. Upon cancellation of this Agreement as provided in Subsection A, above, Owner shall pay a cancellation fee of 12'/2 percent of the current fair market value of the Property, as determined by the County Assessor as though the property were free of the contractual restriction. The cancellation fee shall be paid to the County Auditor in the manner prescribed by the County Auditor D. City may also cancel this Agreement, at Owner's request, if the Property is acquired in whole or in part by eminent domain or by an entity authorized to exercise the power of eminent domain, and if City determines that such acquisition frustrates the purpose of this Agreement. Under these circumstances, no cancellation fee shall be imposed upon Owner. Resolution 09-70 Page 8 of 15 E. City may also cancel this Agreement, at Owner's request, if so much of the Property has been destroyed, in whole or in part and that, in the sole opinion of the City, the historic value of the Property has been destroyed. Under these circumstances, no cancellation fee shall be imposed upon Owner. City may cancel this Agreement, at Owner's request, if the Property is damaged by fire, earthquake, or other Act of God or accidental cause to the extent that the then fair market value of the structure is reduced by 51 percent or more; or (2) 51 percent or more of the structure's floor area is destroyed or irreparably damaged; or (3) 51 percent or more of the structure's historic features are destroyed or irreparably damaged; or (4) the cost to the Owner (exclusive of insurance proceeds) to restore the structure to its prior condition would exceed $10,000.00. Owner shall reimburse City for all expenses incurred by City in determining the extent of damage or destruction. If the Owner desires to cancel this Agreement under this Section, written notice shall be given to the City within 90 days after such damage or destruction occurs. In the event the Owner desires to cancel this Agreement due to the circumstances outlined above, owner or City may request a hearing before the City Council to determine (a) the extent of diminution of value, (b) the extent of the damage or destruction to the floor area of said Structure, and/or (c) extent of damage or destruction to the character defining features of said structure. 12. Waiver The waiver by City of the performance of any covenant or condition of this Agreement shall not be considered a waiver of subsequent performance of that or any other covenant or condition of this Agreement. 13. Notice Any notice required to be given pursuant to this Agreement shall be sent by certified mail, postage prepaid, return receipt requested, addressed as follows or addressed as later specified by either party: To City: City of Tustin Community Development Department Attn: Director of Community Development 300 Centennial Way Tustin, CA 92780 To Owner: Michael J. Demoratz 310 South Pasadena Avenue Tustin, CA 92780 Resolution 09-70 Page 9 of 15 Notice shall be deemed sent or "served" upon the date of deposit in the United States Mail. 14. Fee to Administer Mills Act Program At the time established by City Council resolution, Owner shall pay City a fee, established by City Council resolution, pursuant to Government Code Section 5028.1. This fee is to cover City's costs of administering the Mills Act Program in the City. 15. Defense. Indemnification and Hold Harmless A. Owner shall defend, indemnify and hold harmless City, its officials, employees, and agents against and from all claims arising from Owner's performance under this Agreement, or from any activity, work, or omissions by Owner or caused by Owner in connection with this Agreement. B. Owner shall further defend, indemnify and hold harmless City, its officials,employees, and agents against and from all costs, attorneys fees, and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. In case of any action or proceeding brought against City by reason of such claim, Owner, upon notice from City, shall defend same at Owner's sole expense by counsel satisfactory to City. 16. Entire Agreement This Agreement and the Exhibits attached hereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, and agreements whether oral or written. 17. Amendment This Agreement shall only be amended by written instrument, signed by both parties and recorded in the Office of the Orange County Recorder. 18. Miscellaneous Provisions A. None of the terms, provisions or conditions contained in this Agreement shall be deemed to create a partnership, a joint venture, or a joint enterprise between the parties hereto. B. This Agreement shall be construed in accordance with the laws of the State of California. C. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by a Court of competent jurisdiction or by subsequent Resolution 09-70 Page 10 of 15 preemptive legislation, the validity and enforceability of the remaining provisions shall not be affected. D. Owner understands that it is Owner's responsibility to apply for the reassessment of valuation afforded by this Agreement pursuant to Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code. 19. Authority to Enter Agreement Each person executing this Agreement warrants that they have the authority to enter into this Agreement on behalf of the party for whom they sign. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CITY OF TUSTIN Approved as to Form City Attorney Date: By: Owner By: By: SIGNATURES ARE TO BE NOTARIZED IF THIS CONTRACT IS PROPOSED TO BE SIGNED BY THE PROPERTY OWNER'S AGENT, THE CITY WILL REQUIRE WRITTEN EVIDENCE OF THE AGENT'S AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE OWNER. THE WRITTEN EVIDENCE MUST BE REVIEWED AND APPROVED BY THE CITY ATTORNEY. Resolution 09-70 Page 11 of 15 EXHIBIT "A" LEGAL DESCRIPTION Parcel 2, in the City of Tustin, County of Orange, as per plat recorded in Book 26 of Parcel Maps, Page 46, in the Office of the County Recorder of said County. Except therefrom that portion of said land as conveyed to the State of California, in Grant Deed recorded November 29, 1989, as Instrument No. 89-646885, official records. Resolution 09-70 Page 12 of 15 EXHIBIT "B" HISTORICAL PROPERTY PRESERVATION TERMS, STANDARDS AND CONDITIONS To have a baseline for comparison when future maintenance or alterations are being evaluated and for reconstruction of portions in the event of a disaster, Owner shall create a black and white 35 mm photographic portfolio showing all elevations of all buildings and structures from at least three angles, all character- defining exterior details, and other details of special interest. A copy of the portfolio shall be submitted to the Community Development Department within one year of the effective date of this Agreement. All structures, the entire grounds, and all major landscape features shall be included in the portfolio and copies of existing site plans, floor plans, architectural elevations and historical photographs that may be in Owner's possession. 2. Owner shall preserve, maintain, and, if indicated in the schedule for repair and rehabilitation, restore or rehabilitate Property and its character-defining features, notably the general architectural form, style, materials, design, scale, proportions, organization of windows, doors, and other openings, textures, details, mass, roof line, porch and other aspects of the appearance of the exterior to the satisfaction of City. 3. All changes to Property and any structures thereon shall comply with applicable City specific plans, City regulations and guidelines, and conform to the rules and regulations of the Office of Historic Preservation of the California Department of Parks and Recreation, the U.S. Secretary of the Interior's Standards for Rehabilitation and the State Historical Building Code. 4. City shall be notified by Owner of changes to character-defining exterior features prior to their execution, such as major landscaping projects, exterior door replacement or exterior alterations requiring a building permit. 5. City shall be notified prior to the exterior non-emergency repair and rehabilitation of any structure on the Property. 6. The following are prohibited without the prior written consent of the City: Demolition of any structure on the Property. Exterior alterations or additions not in keeping with the standards listed above. Resolution 09-70 Page 13 of 15 7. The following are prohibited at any time: Dilapidated, deteriorating or unrepaired structures such as fences, roofs, doors, walls and windows; Storage of scrap lumber, junk, trash, debris, discarded or unused objects such as cars, appliances or furniture; Stagnant water and unfilled excavations; Any other device, decoration, structure or vegetation which is unsightly by reason of its height, condition or inappropriate location, as determined by city. 8. Landscaping shall be maintained in a manner so as to enable the public to see the historic features of the Property from the street and shall be watered and maintained in accordance with recognized landscaping practices. 9. Owner shall make improvements to the property as described in the following schedule for repair and rehabilitation, unless changes to the schedule are approved in writing by the City and Owner. Unless indicated otherwise, the improvements noted in the schedule may be completed prior to the year indicated and shall be completed to the satisfaction of the City no later than one year following the year indicated. Schedule for Repair and Rehabilitation Year 1: Submit plans, obtain a permit and certificate of appropriateness, and pass the required inspection for all desired fountains that were installed without permits; or remove the fountains. Year 1: Construct the improvements included in Combination Building Permit C09- 0342, including but not limited to a new two-car garage and the restoration of a two-car garage in the carriage house, and pass all required inspections. (Shall be completed in Year 1) Year 1: Submit plans, obtain a certificate of appropriateness and permit, and pass the required inspection for the trellis fencing (refuse area and rear yard) that was constructed without a building permit; or reduce the height to a maximum of six (6) feet, or remove the structures. Year 1: Submit plans, obtain a certificate of appropriateness and permit, and pass the required inspection for the pedestrian gate in the side yard; or remove the gate. Year 2: Paint the trim on the main house and carriage house. Resolution 09-70 Page 14 of 15 10.Owner shall provide the City with a written annual report which specifies actions taken by Owner to fulfill the requirements of the Agreement. The annual report shall be submitted to the City on an annual basis at times specified by the City. Resolution 09-70 Page 15 of 15