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HomeMy WebLinkAboutSANTA ANA APARTMENTS LLCRECORDING REQUESTED BY: Santa Ana Apartments LLC WHEN RECORDED RETURN TO: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 �J Return FULLLY EXECUTED DEC 19 N8 Copy to COTC, M-30 MAINTENANCE AGREEMENT N-2023-347 o. VWP (3) FOR ARTISAN PUBLIC RIGHT-OF-WAY THIS MAINTENANCE AGREEMENT FOR ARTISAN PUBLIC RIGHT-OF-WAY ("Agreement'l is made and entered into as of Z 2023, by and between SANTA ANNA FIRST STREET LLC, a California limited liability company ("First Street'l and SANTA ANA APARTMENTS LLC, a Nevada limited liability company ("Apartments" and together with First Street, the "Developer'l, and CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City'. Developer and the City may collectively be referred to herein as the "Party" or the "Parties." RECITALS: A. Developer is the owner of certain real property located in the City of Santa Ana, County of Orange, State of California, more particularly described as Parcels 1 and 2 as shown on Parcel Map Number 82-887, as shown on a subdivision map filed in Book 181, Pages 11 and 12, of Parcel Maps, Records of Orange County, California, as modified by that certain Lot Line Adjustment No. 2018-01 filed as Instrument Number 2020000662930 in the Records of Orange County, California, incorporated herein by reference (the "Developer Property'. Developer intends to develop the Developer Property as part of a residential/commercial/mixed-use community to be commonly known as "Park on First" B. City and Developer wish to establish maintenance obligations and to establish certain rights incidental to the public right-of-way ("ROW'I near portions of the Developer Property as shown on Exhibit "A," attached hereto and incorporated herein. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Maintenance Oblieations of ROW. A. Developer Responsibility. "Maintenance Area" means the private street entrance decorative pavement, parkway and sidewalk within the ROW which are generally -1- depicted on Exhibit "A," attached hereto and incorporated herein. The "Maintenance Area Improvements" means decorative pavement, parkway, parkway landscape, sidewalk, streettrees, street tree wells, irrigation improvements and storm drain improvements within the Maintenance Area. The costs of such maintenance shall be exclusively borne by Developer. Developer shall perform the following with respect to the Maintenance Area and Maintenance Area Improvements: (i) The Maintenance Area shall be kept in a safe condition according to reasonable street and public right-of-way maintenance standards set forth by the City. (ii) Keep the Maintenance Area reasonably free of plant and landscape debris and other obstructions, (iii) Repair damage to the Maintenance Area due to the elements of ordinary wear and remove graffiti. (iv) Maintain and replace the street trees and parkway landscape within the Maintenance Area. Maintenance shall include, without limitation, watering, fertilization, mowing, edging, trimming of grass, tree and shrub pruning as needed and as requested by the City, and shaping of trees and shrubs to maintain a healthy, natural appearance, safe street conditions and visibility, replacement, as needed, of all dead plant materials, control of weeds and double staking for support of trees. Maintenance Area at all times shall be landscaped and have street trees. Street trees must be approved by the City. (v) Weed abatement. All fertilizers, pesticides, and other materials shall be applied in accordance with all applicable laws, ordinances and regulations pertaining to the use and application of such substances. (vi) Maintain the decorative pavement in a safe and walkable condition. B, City Remonsibility, The Cityshall maintain the curb and gutter, curb ramp and street lights in a good condition of maintenance and repair. 2, Termination of Developer Maintenance Obligation. Developer shall have the ongoing maintenance obligation of the Maintenance Area and Maintenance Area Improvements until such time as the City, in its sole and absolute discretion, elects to maintain such area at which time the applicable area shall no longer constitute a part of the Maintenance Area. In such event, the City shall provide a recordable notice of termination of this Agreement in writing to Developer. 3, Use of ROW. The ROW shall be accessible by the general public, Developer agrees that neither they nor any successor may erect any structure or conduct any activity or otherwise cause or permit any activity or situation to exist that will inhibitor impair the use of the ROW except temporarily as may be reasonably necessary for Developer to perform any work required under this Agreement. Except for work to be performed pursuant to this Agreement, Developer shall not perform any improvement work or similar activity within the ROW unless it has first been approved by the City. 4. Right of City to Remedy Failure of Maintenance Obligation. If Developer fails to comply with the provisions of this Agreement, including any failure to maintain the -2- Maintenance Areas and/or the Maintenance Area Improvements, as set forth above, then the City may deliver written notice to Developer identifying the specific defects regarding the maintenance of the Maintenance Areas or Maintenance Area Improvements ("Defects Notice'l. The Defects Notice shall specify the date by which Developer must remedy the specific defects identified in the Defects Notice in order to avoid action by the City, which date, except in the case of an emergency situation, shall be no less than thirty (30) days after Developer's actual receipt of the Defects Notice. If the City determines a hazardous situation exists which must be remedied immediately ("emergency situation', then the City will provide written notice to Developer specifying the emergency situation must be remedied within forty-eight (48) hours or such other time as may be mutually agreed upon by the Parties, if after notice from the City Developer fails to correct the specific defects identified in the Defects Notice within the time period specified in the Defects Notice, the City shall have the right to remedy the specific defects identified in the Defects Notice. City or its assignees shall have the right of access, ingress and egress upon and across the Maintenance Areas as may be necessary to complete such remedial work, The City may retain, as its election, its own contractors, or the Developer's contractors, or other third party maintenance company to complete the remedial work. Any actual costs incurred by the City for the remedial work needed to remedy the specific defects identified in the Defects Notice shall, unless patently unreasonable, be borne solely by the Developer. The City shall provide a written itemized invoice and back-up documentation for such costs (e.g., documentation evidencing the number of worker hours spent performing the remedial work, receipts for the purchase of any materials or lease of any equipment needed to perform the remedial work, mechanics' lien releases, etc.) to Developer within thirty (30) days' after the completion of the remedial work. Developer shall remit payment to the City within thirty (30) days from Developer's receipt of the invoice and back-up documentation. The Parties agree that any remedial work undertaken by the City under this section shall not terminate the maintenance obligations of Developer under this Agreement, 5. Indemnification, To the fullest extent allowed by law, Developer hereby covenants and agrees to indemnify, defend (with legal counsel selected by Developer and reasonably acceptable to City), and hold City, its officers, agents, and employees harmless from and against any and all claims, damages (including damage to property and injury to persons), demands, losses, obligations, judgments, liabilities, costs and expenses (including, without limitation, attorneys' and other fees) arising from or in any way connected to any injury to persons or damage to property caused by the negligence or willful misconduct of Developer or its agents during any installation or maintenance activities by Developer or its contractors or agents in the Maintenance Area. 6, Assignment: Developer shall have the right, upon written notice to the City, to assign all of Developer's rights and obligations set forth in this Agreement to a homeowners association ("Associa ion' formed to manage the residential project to be constructed on the Developer Property or to any third party that purchases the Developer Property ("Successor Owner'). Developer hereby covenants and warrants for itself, and for its successors and assigns, that any deed or other instrument conveying fee title to any portion of the Developer Property to the Association or a Successor Owner shall expressly state and require that the Association or Successor Owner assume all of the Developer's obligations under this Agreement. Upon the recording of any Declaration of Covenants, Conditions and Restrictions for Developer Property or -3- deed conveying the Developer Property to a Successor Owner, and after assigning Developer's rights and obligations under this Agreement to the Association or a Successor Owner, the Association or the Successor Owner shall have all rights and obligations of Developer set forth in this Agreement, and Developer shall thereafter have no further rights, liabilities or obligations under this Agreement and shall be automatically released from all liability under this Agreement. The written notice of the assignment to the Association or a Successor Owner of the Developer's rights and obligations under this Agreement shall contain appropriate contact information for the Association or Successor Owner, including, without limitation, the Association or Successor Owner's property manager's name, telephone number, address, the effective date of the assignment of the Developer's rights and obligations to the Association or Successor Owner, and a recorded copy of this deed or instrument assigning the Developer's rights and obligations to the Association or Successor Owner, 7. Insurance. Prior to undertaking performance of any work under this Agreement, the Developer, its successors and assigns, shall maintain and shall require its subcontractors, if any, to obtain and maintain commercial general liability insurance naming City, its offcers, employees, agents, volunteers and representatives as additional insured(g) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death, resulting therefrom and damage to property, resulting from any act or occurrence arising out of the Developer, its successors and assigns, operations in the performance of this Agreement, including, without limitation, acts involving vehicles, The amounts of insurance shall not be less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 inthe aggregate. To the extent broader coverage and/or higher limits than the minimum required are obtained, the requirements of this Section shall apply to such insurance policy. Such insurance shall (a) name City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by City; and (c)contain standard separation of insureds provisions. 8. Suess rs and Assigns, This Agreement' shall run with the land and shall be binding upon and shall insure to the benefit of the heirs, executors, administrators, successors and assigns of the Developer and the City. The covenants, conditions and restrictions set forth in this Agreement shall constitute equitable servitudes which shall run with the land. 9. Affected and Benefited Land. The land ("Affected Land') affected by the covenants contained in this Agreement is the Developer Property and the ROW, The land ("Benefited Land') benefited by the covenants contained in this Agreement is the Developer Properly and the ROW. 10. Notices. Unless otherwise provided in this Agreement, all notices, demands, or other communications given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been given and received upon personal delivery or as of the second business day after mailing in the United States by registered or certified mail, return receipt requested, postage prepaid, addressed as follows or to such other address or to such other person (e.g., Association or the Association's property manager) as either party may designate in a written notice to the other party: .q. If to Developer: Santa Ana Apartments LLC 1370 Jet Stream Drive, Suite 100 Henderson, Nevada 89052 Attn: Jeff Troesh 1f to CijY City of Santa Ana Executive Director of Public Works Agency 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 Additionally, if applicable, the Association shall file annually the names, addresses and telephone numbers of at least one member of its Board of Directors, and if applicable, a manager of the Association with the City's Public Works Agency for the purpose of contacting the Association in the case of emergency or in those cases where the City has an interest in violations of this Agreement. 11. Lender Protection. Nothing in this Agreement shall be construed as giving any party priority over the rights of beneficiaries of first deeds of trust encumbering any portion of the Developer Property. No breach of this Agreement shall invalidate the lien of any first deed of trust encumbering the Developer Property. 12, Headings. The titles or headings of the sections of this Agreement are not a part of the Agreement and shall have no effect upon the construction of or interpretation of this ;Agreement. 13. Execution in Counterpart. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. -5- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. CITY OF SANTA ANA Tom Hatch Interim City Manager APPROVED AS TO FORM Sonia R. Carvalho Citv Attomev � "` Jose Montoya Assistant City Attorney RECOMMENDED FOR APPROVAL bil Saba (1 Executive Director Public Works Agency ATTEST Zgcrkr DEVELOPER SANTA ANNA FIRST STREET LLC, a California limited liability company By: Name: Jeffr roesh Its: President of Real Estate SANTA ANA APARTMENTS LLC, a Nevada h ' e li ility company By: Name: Jeffrey Troesh Its: President of Real Estate in A notary public or other officer completing this certificate verifies roily 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 On //'�-.� 3 , before me, ffl. ' /��pw_� a Notary Public, personally appeared ✓ �s i'2«i W. 'C 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. WITNESS my hand and official seal. Kota ublic (SEAL) KEN M. KNAM a' COmmI' No.24254pg NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY C"MWJ pn E1Q) w November 7, 2020 -7- A notary public or other officer completing this certificate serif es 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 S1) On //o%- .7 3, before me,a Notary Public, personally appeared e y .4 Po is 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. 1 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. Notary F blic (SEAL) KEN M. KNARA a' Commtsslon No. 2425409 a NOTARY PUBLIC CALIFORNIA SAN DIEGO COUNTY Commission Ew* November 7, 2026 In EXHIBIT "A" z EXHIBIT "A"