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HomeMy WebLinkAboutREGO, LIESE L., TRUSTEE OF THE LIESE L. REGO FAMILY TRUSTRECORDING REQUESTED BY o AND WHEN RECORDED MAIL wwi TO: LLI Z Cn o 0 o City of Santa Ana LL N —Planning and Building Agency, M-20 20 Civic Center Plaza LU �L C a PO Box 1988 `z C3 N Santa Ana, CA 92702 Z� Cr cn r- G S GILMn �L.Cla�tf L_ CITY OF SANTA ANA � (Space N-2019A 65 Use by Recorder) This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 PROPERTY MAINTENANCE AGREEMENT FOR CONDITIONAL USE PERMIT NO. 2018-19, CONDITIONAL USE PERMIT NO.2018-20 AND VARIANCE NO.2018-11 FOR THE PROPERTY LOCATED AT 2301 NORTH TUSTIN AVENUE AND 2151 SANTA CLARA AVENUE This PROPERTY MAINTENANCE AGREEMENT (the "Agreement"), is effective upon the date of recordation of the Agreement (the "Effective Date"), and is entered into by and between the City of Santa Ana, a municipal corporation (the "City") and Liese L. Rego, Trustee of the Liese L. Rego Family Trust dated May 11, 1998, as First Amended March 16, 1999, as Second Amended February 28, 2003 and as Third Amended and Restated June 13, 2006, and/or any assigned responsible party, including, but not limited to tenants, lessor(s), lessee(s), ground - lease holders, etc. (the "Owner"). The capitalized tern "Parties" shall be a collective reference to both City and Owner. The capitalized term "Party" shall refer to either City or Owner interchangeably as appropriate. RECITALS WHEREAS, Owner seeks to develop the real properties located at 2301 North Grand Avenue in Santa Ana, CA (APN: 396-141-01) and 2151 East Santa Clara Avenue, CA (APN:396-141-07), which is more particularly described in the legal description attached hereto as Attachment "A" and incorporated herein (the "Property"); WHEREAS, on November 9, 2017, Liese L. Rego, Trustee of the Liese L. Rego Family Trust dated May 11, 1998, as First Amended March 16, 1999, as Second Amended February 28, 2003 and as Third Amended and Restated June 13, 2006 ("Applicant") submitted an application to the City (the "Development Project Application"), with written consent of the Owner, to allow the construction of a 3,567-square foot commercial building to be used as an eating establishment for Starbucks and a drive -through lane on the Property ("Development"); WHEREAS, this Agreement pertains to the Project described in the second recital, above; WHEREAS, the Parties seek to enter into this Agreement to ensure the proper compliance with project approval conditions, operational restrictions, maintenance, and upkeep of the Property, improvements, and permitted uses. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED HEREIN, THE CITY AND OWNEER AGREE AS FOLLOWS: SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into the body of this Agreement by this reference. SECTION 2. COMPLIANCE WITH APPROVED DEVELOPMENT PLANS AND CITY CONDITIONS. This Agreement fulfills the requirement set forth in Condition No. 6 of Planning Commission Resolution Nos. 2018-31, 2018-32 and 2018-33. Owner accepts and shall fulfill all conditions of approval set forth in Planning Commission Resolution Nos. 2018-31, 2018-32 and 2018-33. The Project shall substantially conform with the Development Project Application and the plans contained therein, which are on file with the City Planning and Building Agency. SECTION 3. PROPERTY MAINTENANCE ENFORCEMENT BY THE CITY OF SANTA ANA. A. Ongoing Operational/ Maintenance Conditions. Owner, on behalf of itself, its successors and assigns and any owner of the Property, hereby agrees to maintain and repair the following elements of the Property and the Project: 1. The Property shall be maintained in conformance with the standards generally applicable to comparable retail/commercial businesses located within the City. The Development shall comply with operational conditions of the Santa Ana Municipal Code (SAMC) applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.). 2. The Development shall comply with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, and/or restrictions on certain uses, including uses determined by the Planning Commission in its Resolution Nos. 2019-04 and 2019-05to be incompatible or inconsistent with any authorized uses; compliance with applicable State and/or federal statutes and regulations, including but not limited to compliance with statutes and regulations regarding the appropriate operating guidelines for certain equipment (e.g., emissions standards, radio frequency emissions standards etc.). 3. All onsite activities shall comply with the City of Santa Ana Noise Ordinance at all times. 4. The Property shall be in ongoing compliance with the approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable. 5. Ongoing maintenance, repair and upkeep of the Property and all improvements located thereupon shall be provided by the Owner (including but not limited to controls on the proliferation of trash and debris about the Property; the proper and timely removal of 2 graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, pedestrian pathways/open space areas, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable). 6. If the applicant and the owner of the property are different (e.g., if the applicant is a tenant or licensee of the property or any portion thereof), both the applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms. If the applicant is a sub -lessee or sub -licensee any portion of the property or any equipment located upon the property (e.g., as would be the case with a wireless carrier seeking to co -locate equipment upon an existing wireless telecommunication facility), the applicant, the primary lessee/licensee and the underlying property owner shall all be signatories to the maintenance agreement and shall all be jointly and severally liable for compliance with its terms. 7. The maintenance agreement shall further provide that any Responsible Party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under the maintenance agreement. 8. The surface of the driveways, fire lanes, vehicle parking areas, and public right-of- way areas adjacent to the Property as depicted on the Property Site Plan shall be maintained in a good and serviceable condition by the Owner, and shall be kept free of weeds, trash, or other debris. 9. The removal of solid waste, trash, or other debris from the Property shall be undertaken by a duly franchised solid waste hauler authorized to provide such services to commercial properties in the City. 10. The outdoor trash storage enclosure shall screen all trash containers from view. 11. Landscaping for the areas shown on the Property Site Plan shall be continuously maintained by the Owner as per approved landscape plans in a good condition. 12. Lighting shall be provided in all parking areas, vehicular access ways, and along major walkways, in accordance with the SAMC and approved by the Planning and Building Divisions. 13. Exterior surfaces of the Building and all other structures, fixtures, or other improvements located on the Property, shall be kept free and clear of graffiti. Graffiti shall be removed within twenty-four (24) hours following the time of its application. Graffiti shall be removed by either painting over the evidence of such graffiti with a paint that has been color matched to the surface to which it is applied or graffiti may be removed with solvents or detergents, as applicable. A failure by Owner to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property shall be deemed to be a Maintenance Deficiency as defined below in Section 7(d). 14. The vehicle parking areas shown on the Property Site Plan shall be maintained in a good condition to facilitate the efficient loading and unloading of delivery truck areas (limited to areas immediately adjacent to the Building) and parking within the American with Disabilities Act complaint vehicle parking spaces for the Building as 3 shown on the Property Site Plan. 15. Any abandoned vehicle on the Property shall be promptly removed. 16. All onsite parking spaces shall be accessible and free of obstructions and can only be used for parking of operable vehicles at all times. 17. Vehicles utilized for ingoing and outgoing deliveries to the Building shall not exceed the weight limits set forth by the Department of Transportation Federal Highway Administration applicable to Class 1 through Class 7 type- vehicles, so long as no such vehicle exceeds forty (40) feet in length. 18. The idling of vehicles, including delivery vehicles, is prohibited within the Property or adjacent streets. For purposes of this Agreement, "idling" refers to the running of a vehicle's (including those used for incoming and outgoing deliveries at the Building) engine when such vehicle is not in motion for more than five (5) minutes, including when such vehicle is parked outside the Building or otherwise stationary with the engine running. 19. All operations of any preapproved mechanical equipment shall be conducted within the Building and that all openings to the Building shall be maintained in a closed position during the usage of such mechanical equipment usage. B. Owner Confers to City Right to Conduct Maintenance and Repairs. Owner on behalf of itself, its successors and assigns hereby confers upon the City the right but not the obligation to conduct maintenance and repairs on the Property as required in Section 3(A) of this Agreement, subject to the conditions of Section 3(C). Such powers under Section 3(B) of this Agreement are conferred by Owner on the City for the benefit of the City to provide for the health, safety and welfare of all persons who use the Project or any portion thereof and other persons who reside in the vicinity of the Project and the entire City. No ownership interest in the Property or any interest in any lease, sublease, license or sublicense of the Property shall be conveyed unless the prospective recipient of such interest agrees in writing to assume all duties, obligations, and responsibilities set forth in this Agreement. C. City Right to Enforce. The right and power of the City to enforce the maintenance, repair and replacement obligations of Owner shall not be deemed to arise by virtue of this Section 3 alone. Any provision of this Agreement to the contrary notwithstanding, the City may, by public nuisance abatement proceeding, and/or by the initiation of an action at law or in equity, notwithstanding this Section 3, enforce the law as relates to the abatement or elimination of a public nuisance at the Property or enforce any provision or conditions of approval of a building or development permit issued for the Property by the City. It shall be presumed that the City is proceeding under the general municipal policy powers reserved to the City under this Section 3(C) if the City issues a written notice of "Maintenance Deficiency" as this term is defined in Section 3(D) of this Agreement. D. Notice of Maintenance Deficiencies. Upon any failure by Owner to perform any of the maintenance and repair obligations referenced in Section 3(A) (such failure hereinafter referred to as a "Maintenance Deficiency"), the City shall issue written notice of such Maintenance Deficiency to Owner, as provided in Section 13 of this Agreement. E. Maintenance Deficiencies. Owner shall comply with any issuance of a Notice of Maintenance Deficiency within the timeframe specified by the Code Enforcement Division to 4 cure the Maintenance Deficiency identified in such Notice. Within the timeframe specified by the Code Enforcement Division in the notice of a Maintenance Deficiency, Owner may submit a written request to the City seeking additional time to cure the Maintenance Deficiency. Each such written request for additional time shall describe and specify in detail (i) which tasks require additional time to complete the cure of the Maintenance Deficiency and the reason why such additional time is needed under the circumstances; (ii) what steps Owner have already taken to commence the cure of the Maintenance Deficiency. The City, in its reasonable discretion, may grant, conditionally grant or deny any written request for additional time as determined by the Code Enforcement Manager. The City shall be under no obligation to consider untimely submitted time extension requests or requests which fail to provide any of the information required above. F. Removal of Graffiti. Owner, on behalf of itself, its successor and assigns hereby further covenants and agrees in favor of the City to keep the exterior surfaces of all structures, fixtures or other improvements located on the Property free and clear of graffiti. Graffiti shall be removed within twenty-four (24) hours following the time of its application. A failure by Owner to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property shall be deemed to be a Maintenance Deficiency for which no further notice under Section 3(D) needs to be given by the City. G. City May Cure Maintenance Deficiency. In the event Owner fails to cure a Maintenance Deficiency within the time allowed, the City may initiate a public hearing pursuant to Section 41-651 of the Santa Ana Municipal Code. At such a public hearing the City shall consider such evidence and testimony of interested persons as may be relevant to the matter. If upon the conclusion of a public hearing, the City makes a written finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the maintenance and repair obligations referenced in Section 3(A) of this Agreement, the City shall have the right to record the notice described in Section 3(I) of this Agreement and thereafter the City may enter upon or otherwise access the Property for the purpose of curing the Maintenance Deficiency without further notice to Owner. 2. The foregoing notwithstanding, the City, without notice to Owner, shall have the right to enter the Property and remove graffiti, solid waste, trash, or other debris under the following two circumstances: (i) a failure by Owner to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property that is visible from an adjacent or contiguous public right-of-way; or (ii) a failure by Owner to remove the accumulation of solid waste, trash, or other debris that is visible for a duration of twenty-four (24) hours from an adjacent or contiguous public right-of-way or from a designated fire lane on the Property. Any sum expended by the City for the removal of graffiti, solid waste, trash, or other debris pursuant to this Section 3(G)(2) of the Agreement shall become a lien on the Property in accordance with Section 3(H) and the City shall have the right to enforce such lien in the manner provided in Section 3(I). H. City's Lien Authority. Any sums expended by the City in enforcing, maintaining, repairing or replacing, curing any element of the Property of the Project as authorized in Section 5 3 for which a Maintenance Deficiency has been declared by the City to exist under Section 3(G), shall become a lien on the Property. The powers conferred upon City pursuant to this Section 3(H) are in addition to all other remedies which the City may have to enforce this Agreement, or any building or development project permit under other law including public nuisance abatement proceedings or any other action at law or equity. I. Enforcement of Liens by the City. 1. The rights conferred upon the City by Owner under Section 3 of this Agreement expressly include the power to establish and enforce a lien or other encumbrances against the Property or any portion thereof, subject to all then existing other liens and encumbrances on the Property, in an amount reasonably necessary to reimburse the City for its reasonable costs of the necessary and reasonable costs incurred by the City under Section 3(G) to restore the Property and the Project to the maintenance standard required under this Section 3, including reasonable attorney's fees and costs of the prevailing party associated with the correction of the Maintenance Deficiency in connection with such action. If the amount of any such lien as relates to a Maintenance Deficiency is not paid within thirty (30) calendar days after written notice by the City to Owner, demanding such payment, the City shall have the right to enforce its lien in accordance with the statutory authority referenced under this Section 3(I)(1). The prevailing party in a collection or other lien enforcement action authorized by this Section 3(I) shall also have the right to collect its reasonable attorney's fees, costs and expenses associated with any action or proceeding to enforce or defend its rights hereunder. 2. In the event that the City makes a written finding that a Maintenance Deficiency exists on the Project as provided in Section 3(G), then in addition its lien powers under Section 3(I)(1), the City may record a notice of correction of Maintenance Deficiency be recorded against the Property. Such a notice of Maintenance Deficiency shall refer to Section 3(G) of the Agreement, be signed by the Executive Director of the Planning and Building Agency and shall have a duration following the date of its recordation until such date the Maintenance Deficiency is corrected. J. No approval by Owner shall be necessary for the City to establish and foreclose a lien for non-payment of amounts expended by the City to cure a Maintenance Deficiency under Section 3 of this Agreement. No failure by the City to enforce any default pertaining to the maintenance, repair or replacement of any element of the Property or the Project under Section 3 shall be deemed to be a waiver of the right or power of the City to enforce any subsequent default thereof by Owner. K. Priorit of Ordinances and Other, Laws. Notwithstanding any provision in this Agreement to the contrary, the approval and acceptance of this Agreement by the City shall not be deemed a waiver or release of any applicable provision of any building permit or other development project permit issued by the City for the improvement of the Project on the Property, or of any other applicable ordinance or law or the general police power of the City. In the event of any conflict or inconsistency between any provision hereof and any ordinance, law, or the general police power of the City, the latter shall prevail. 3 SECTION 4. TERMINATION of AGREEMENT. This Agreement shall terminate and be of no further force or effect upon the mutual written termination of this Agreement by Owner and City. SECTION 5. LEGAL ADVICE. Each Party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or having knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and they have freely signed this Agreement without any reliance upon any agreement, promise, statement, or representation by or on behalf of the other Party, or in their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. SECTION 6. REPRESENTATION AND WARRANTIES OF OWNER. Owner represents and warrants for the benefit and reliance for the City as follows: A. Owner validly exists under the laws of the State of California and is authorized to conduct business in California and is authorized to carry on its business being conducted as contemplated in this Agreement; B. Owner has the power and authority to enter into this Agreement; C. This Agreement shall be a legal, valid and binding obligation of Owner, enforceable against Owner and its successors and assigns in interest in the Property, and each portion thereof, in accordance with its terms, subject to bankruptcy and other equitable principles. SECTION 7. COVENANT OF OWNER. Owner declares that the Project and the Property shall be held, conveyed, leased, used, and improved subject to the provisions of this Agreement and this Agreement is expressly declared to be for the benefit of the Project and the Property and the abutting public rights -of -way. The Property maintenance covenants of Owner in favor of the City which arises under this Agreement shall run with and burden the Property and shall be binding upon all persons having or acquiring any right or title in the Property, including any leasehold interest, or any part thereof, and the successors and assigns of each of them, including Applicant. SECTION 8. TIME OF THE ESSENCE: TERM OF AGREEMENT. Time is expressly made of the essence with respect to the performance by City and Owner of each and every obligation and condition of this Agreement. SECTION 9. ATTORNEY'S FEES. In addition to any other remedies provided herein or available under applicable laws, if either Party to this Agreement commences an action against the other Party arising out of, or in connection with this Agreement, the prevailing Party shall be entitled to recover from the losing Party its costs of suit, including, but not limited to, its reasonable attorney's fees, expert witness fees, and costs of investigation. SECTION 10. INTEGRATION. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement, except as otherwise provided. All prior contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Party is entering into this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deems material. This Agreement constituted the entire understanding and agreement of the Parties, notwithstanding any previous negotiations or agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. SECTION 11. SEVERABILITY. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. SECTION 12. AMENDMENT. No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to City approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid. SECTION 13. NOTICES. All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose: OWNER: The Liese L. Rego Family Trust P.O. Box 1493 Tustin, CA 92780 CITY: City of Santa Ana Planning and Building Agency, M-20 PO Box 1988 Santa Ana, CA 92702 (714)647-5804 PlanningDepartment@santa-ana.org SECTION 14. COUNTERPARTS. This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. One fully executed original counterpart shall be delivered to Owner and the remaining two original counterparts shall be retained by the City. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 8 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as evidenced by the signatures of the authorized officers of each of them. CITY City of Santa Ana, a municipal The Liese L. Rego Family Trust corporation sy: City Manager DAISYGOMEZ CLERK OF THE COUNCIL sy: v ll Name: l.._, zso Title:/fly/ r p ) [NOTARIZED SIGNATURES REQUIRED] SEE ATTACHED CALIFORNIA ACKNOWLEDGEMENT Attachment "A" Legal Description of the Property All that certain real property situated in the County of Orange, State of California, described as follows: THAT PORTION OF LOT 5 IN BLOCK B OF THE A. B. CHAPMAN TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 102, PAGE 15 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: PARCEL 1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 31 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN:396.141-01 AND PARCEL It IN THE CITY OF SANTA ANA, COUNTY''OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 60, PAGE 41 OF PARCEL MAPS RECORDS OF SAID ORANGE COUNTY. APN: 396-141-07 10 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 September 4, 2019 before me, Rosa A. Flores, Notary Public (insert name and title of the officer) personally appeared Kristine Ride who proved to me on the basis of satisfactory evidence to be the person,( whose name(s is -/are subscribed to the within instrument and acknowledged to me that-be/shekhey executed the same in his/her/their authorized capacity(iesj, and that by his/her/their signature(o) on the instrument the person(sl, or the entity upon behalf of which the person) 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 `ft"/ A- A . „. ROSA A. FLORES Notary PubG<- California Orange County Commission • 2228450 My Comm. Expires Feh 7, 2022 ' (Seal) I I " I , -I 1 .1 1 1 . � I Ij -, CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT (CALIFORNIA CIVIL CODE § 1189) 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 August 29, 2019 before me, Sherry Pillarella, Notary Public (Date) (Here Insert Name and Title of the Officer) personally appeared Liese L. Rego 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. SHERRY PILLARELIA Notary Public - California WITNESS hand`and official seal. € ; y Orange county Comm.xpink Oct 9 °`" My o. Expires Oct 16, 2022 f Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION Description of Attached Document Title or Type of Document: Property Management Agreement Document Date: Number of Pages: Signer(s) Other Than Named Above: Additional Information: revision date 01/01/2015