HomeMy WebLinkAboutCONTEMPO GROUP, LLC, THE AND THE PLACE BANQUET HALL, LLCRECORDING REQUESTED BY
AND WHEN RECORDED MAIL Recorded in Official Records, Orange County
TO; Hugh Nguyen, Clerk-Recorder
lRecorder
City of Santa Ana I t� l 1111111I I��� I �II� I I II III II I I !I NO FEE
Planning and Building Agency, M-20 $ R 0 0 1 3 s 9 9 7 2 1 $
20 Civic Center Plaza 202200027553411:32 am 08/11/22
PO Box 1988 376 RWlA Al2 13
Santa Ana, CA 92702 0.00 0.00 0.00 0.00 36.00 0.00 0,000,000.00 0.00
Return FULLY EXECUTED (Space above Line for Use by Recorder)
Copy to COTC M-30
This document is exempt from the 1"
r.,e payment of a recording fee pursuant to
Government Code Section 27383
N-2022-213
CITY OF SANTA ANA
PROPERTY MAINTENANCE AGREEMENT FOR CONDITIONAL USE PERMIT
NOS. 2019-33 AND 2019-34 FOR THE PROPERTY LOCATED AT 1602 EAST FIRST
PBA(ki., �\��� STREET
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"), The Contempo Group, LLC,
a California limited liability company ("Owner"), and The Place Banquet Hall, Inc., a California
corporation ("Tenant" or "Applicant"), and/or any assigned responsible party, including, but not
limited to tenants, lessor(s), lessee(s), ground -lease holders, etc. The capitalized term "Parties"
shall be a collective reference to both City and Owner. The capitalized term. "Party" shall refer to
either City or Owner or Tenant interchangeably as appropriate.
RECITALS
WHEREAS, Owner and Tenant seek to develop the real property located at 1602 East First
Street in Santa Ana, CA APN 011-154-39, which is more particularly described in the legal
description attached hereto as Attachment "A" and incorporated herein (the "Property");
WHEREAS, on September 13, 2019, Applicant submitted an application to the City (the
"Development Project Application"), with written consent of the Owner, to allow operation of a
banquet hall and a Type 47 (beer, wine, and distilled spirits) alcoholic beverage control license on
the Property ("Development");
WHEREAS, this Agreement pertains to the Development 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. 11 of
Planning Commission Resolution No. 2019-47 and the requirement set forth in Condition No. 11
of Planning Commission Resolution No. 2019-48.Owner accepts and shall fulfill all conditions of
approval set forth in Planning Commission Resolution No(s). 2019-47 and 2019-48. 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. DEVELOPMENT MAINTENANCE ENFORCEMENT BY THE CITY
OF SANTA ANA.
A. Ongoing Operational/ Maintenance Conditions. Owner and Applicant, on behalf of
themselves, their successors and assigns, hereby agrees to maintain and repair the following
elements of the Development:
1. The Development 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 proj ect 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
No(s). 2019-47 and 2019-48 to 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 Development 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 Development and all improvements
located thereupon shall be provided by the Owner or Tenant (including but not limited to
controls on the proliferation of trash and debris about the Development; the proper and
timely removal of 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).
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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 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 Development as depicted on the Development Site Plan attached
hereto as Attachment "B" 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 Development 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 Development 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 the building depicted on the Development Site Plan
(`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 or Tenant to remove graffiti within
twenty-four (24) hours following its application on any structure, fixture or other
improvement located on the Development shall be deemed to be a Maintenance
Deficiency as defined below in Section 7(d).
14. The vehicle parking areas shown on the Development 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 shown on the
Development Site Plan.
15. Any abandoned vehicle on the Development 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 Development
or adjacent streets. For purposes of this Agreement, "idling" refers to the naming 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 and Tenant
on behalf of themselves, their successors and assigns hereby confers upon the City the right but
not the obligation to conduct maintenance and repairs on the Development 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 and Tenant on the City for the benefit of the City
to provide for the health, safety and welfare of all persons who use the Development or any portion
thereof and other persons who reside in the vicinity of the Project and the entire City. No ownership
interest in the Development, Property or any interest in any lease, sublease, license or sublicense
of the Property or Development 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 and Tenant 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 Development or enforce any provision or conditions of approval of a
building or development permit issued for the Development 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 or Tenant 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 and Tenant, as provided in Section 13 of this Agreement.
E. Maintenance Deficiencies. Owner and Tenant shall comply with any issuance of a
Notice of Maintenance Deficiency within the timeframe specified by the Code Enforcement
Division to 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 or
Tenant 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 and
Tenant have already taken to commence the cure of the Maintenance Deficiency. The City, in its
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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 and Tenant, on behalf of themselves, their successors 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 Development free and clear of graffiti.
Graffiti shall be removed within twenty-four (24) hours following the time of its application. A
failure by Owner or Tenant to remove graffiti within twenty-four (24) hours following its
application on any structure, fixture or other improvement located on the Development 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 and Tenant fail 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 or Tenant.
2. The foregoing notwithstanding, the City, without notice to Owner or Tenant, shall
have the right to enter the Development and remove graffiti, solid waste, trash, or
other debris under the following two circumstances: (i) a failure by Owner or
Tenant to remove graffiti within twenty-four (24) hours following its application
on any stricture, fixture or other improvement located on the Development that is
visible from an adjacent or contiguous public right-of-way; or (ii) a failure by
Owner or Tenant 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 Development.
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 Development as authorized in Section 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 Linder 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 and Tenant 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 amotmt 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
Development 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 and Tenant,
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 Development 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 or Tenant 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. Priority of City 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 Development, 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.
L.
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.
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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 Development 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 Development and
the abutting public rights -of -way. The Development maintenance covenants of Owner in favor of
the City which arises under this Agreement shall rim 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:
®WNER:
The Contempo Group LLC
1370 Jet Stream Dr., Suite 100
Attn: Manager
TENANT:
The Place Banquet Hall, Inc.
12052 Jennifer Lane
Garden Grove CA 92840
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]
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N-2022-213
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.
COWA
City of Santa Ana, a municipal
corporation
By: �;9"
Kristine Ridge
City Manager
ATTEST:
By: / D -A `
Clerk of the Council „u
OWNER
The Contempo Group LLC,
a California limited liability company
By:
Name: Justin Blomberg
Title: Manager
APPLICANT - Execution required by
Planning Commission Resolution No(s). 2019-
47 and 2019-48.
The Place Banquet Hall, Inc.,
a California corporation
By:
/—�/ Z—"—
Narne:
Title: ✓CL z �.
[NOTARIZED SIGNATURES REQUIRED]
0
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�l`
On () 1,\AI-u , before me,
Notary Public, personally appeared OVA r
the basis of satisfactory evidence to be the pers
within instrument and acknowledged t ett h
authorized capacity(i4� ,, and that by is *t�Jei
or the entity upon behalf of which the person(<a
un v a
aatQ who proved tome on
whose name is subsc ' ed to the
ey executed a same in i tr�7ttrreir lth,�
aturW on the instrument the person,
, 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
IAN GELGA00
`" � COMM. lf2368156 �
-,�., = Notary Public California o
M�Comm. Expires July 2� 8, 28?5�
WITNESS my nd official seal.
Signature of Notary
(Acknowledgment on following page)
12
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
Before me, the undersigned, personally appeared Justin Blomberg, Manager of The Contempo
Group LLC, a California limited liability company, who acknowledged that he did sign the
foregoing Property Maintenance Agreement on behalf of The Contempo Group LLC and that the
same is his free act and deed.
In Testimony Whereof, I have hereunto affixed my name and official seal this E 4 day of July,
2022. 6mly
otary Public
My Commission Expires:
-' IIIIA IA A6�N TAPE-Fl a�A4J®
votary Public- Michigan
Macomb Cqunty
+My Cornm. expires i� as
10
Attachment "All
Legal Description of the Property
All that certain real property situated in the County of Orange, State of California, described as
follows:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, IN THE COUNTY
OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 2, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A
MAP FILED FOR RECORD IN BOOK 109 PAGE 44 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID ORANGE COUNTY.
APN: 011-154-39, 011-154-10 AND 011-154-38
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Attachment `B"
Development Site Plan
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