HomeMy WebLinkAboutMAIN STREET CONCOURSE 3
N-2005-117
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RECORDING REQUESTED BY:
First American Title Insurance Company
WHEN RECORDED RETURN TO:
PALMIERI, TYLER, WIENER,
WILHELM & WALDRON LLP (DGT)
2603 Main Street
East Tower - Suite 1300
Irvine, CA 92614
The undersigned parties declare:
Documentary Transfer Tax $ 0
[Consideration less than $100.00J
MAINTENANCE AGREEMENT FOR
THE CITY PLACE RESIDENTIAL PROPERTY PUBLIC RIGHT-OF-WAY
THIS MAINTENANCE AGREEMENT FOR THE CITY PLACE RESIDENTIAL PROPERTY PUBLIC
RIGHT-OF-WAY ("Agreement") is made and entered into as of the 27th day of September, 2005, by and
between MAIN STREET CONCOURSE LLC, a California limited liability company ("MSC") its successors or
assigns, and the CITY OF SANTA ANA, a municipal corporation (the "City"). MSC and the City may collectiveiy
be referred to herein as the "Party" or the "Parties".
R E C I TAL S:
A. MSC is the owner of certain real property approved for residential uses located in the City of
Santa Ana, County of Orange, State of California, more particularly described as Lots, 1, 2, 3 and 5 of Tract No.
16565, as shown on a subdivision map filed in Book _' Pages --.-.:. and _ of Miscellaneous Maps, Records
of Orange County, California (the "Property").
B. MSC intends to impose on the Property one or more Declarations of Covenants, Conditions,
Restrictions and Reservation of Easements, to be recorded in the Official Records of Orange County, as may be
further supplemented or amended (each a "Declaration"). The Declaration(s) shall establish a condominium
project as defined in California Code Section 1351, and shall invest in California nonprofit mutual benefit
corporation as defined therein (the "Association") the power and duty to manage and operate a residential
community on the property encumbered by said Declaration.
C. City and MSC wish to provide maintenance obligations and to establish certain rights incidental
to the public right-of-way ("ROW') within a portion of 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 Oblioations of ROW.
(a) Maintenance Area. MSC shall have the affirmative obligation at all times to
cause that portion of the ROW, as shown on Exhibit "A" ("Maintenance Areas ") and those improvements set
forth below ("Maintained Improvements") to be maintained in a safe condition according to reasonable street
and public right-of-way maintenance standards as set forth by the City. The costs of such maintenance shall be
exclusively borne by MSC. Such Maintained Improvements shall inciude, but are not limited to the following:
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(b) Keeping the Maintenance Area free from debris and obstructions;
(c) Repairing damage to the Maintenance Area and Maintained Improvements due
to the elements and ordinary wear;
(d) Maintain all frontage trees, landscaping, sidewaik surfaces, tree grates and
associated irrigation systems within the Maintenance Area.
2. Citv Responsibilitv. Graffiti removal and weed abatement within the ROW shall be the
responsibility of the City and the cost of such maintenance shall be borne by the City. The City shall be
responsible for the maintenance of all street lights located in the Raw.
3. Use of ROW. The Parties agree 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
unreasonably inhibit or impair the use of the ROW created in this Agreement. The ROW shall be accessible by
the general public.
4. Riaht of Citv to Remedv Failure of Maintenance Obliaation. If MSC fails to comply with
the provisions of this Agreement, including any failure to maintain the Maintenance Areas and/or the Maintained
Improvements, as set forth above, then the City may deliver written notice to MSC identifying the specific
defects regarding the maintenance of the Maintenance Areas or Maintained Improvements. MSC shall have
fifteen (15) days to correct the City's concems. Notice provided by the City shall specify the date MSC must
remedy the City's concerns in order to avoid action by the City. If the City determines a hazardous situation
exists which must be remedied immediately ("emergency situation"), then the City will provide written notice to
MSC specifying the emergency situation must be remedied within twenty-four (24) hours.
If after notice from the City, MSC fails to correct the specific defects identified in the City's notice within
the specified time period, the City shall have the right to remedy the defects. MSC hereby grants the City, or its
assignees the right of access, ingress and egress upon and across the Maintenance Area as may be necessary
to complete such work. The City may retain, at its election its own contractors, or the Association's contractors,
or other third party maintenance company to complete the work. Any costs incurred by the City for maintenance
of the Maintenance Area or the Maintained Improvements shall be solely borne by the responsible Association.
The City shall provide an invoice for the maintenance cost incurred by the City to MSC. MSC shall remit
payment to the City within thirty (30) days from receipt of the invoice. The Parties agree that any maintenance
undertaken by the City under this section shall not terminate the maintenance obligation of MSC.
5. Indemnification. MSC hereby covenants and agrees to indemnify, defend, 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 with or
related to any of the following: (i) any lawsuit, arbitration, administrative proceeding or other legal action
concerning the operation, maintenance or construction of the Maintenance Area and the Maintained
Improvements by MSC and/or its agents and, (ii) any breach by MSC or the Association of any of its obligations
under this Agreement.
6. Termination of Maintenance Obliaation. MSC shall have the ongoing maintenance
obligation of the Maintenance Areas and the Maintained Improvements therein, until such time as the City, at its
sole and absolute discretion, elects to maintain such area at which time the ROW shall no longer constitute a
part of the Maintenance Area. In such event, the City shall provide a notice of termination of the Maintenance
Areas and the Maintained Improvements in writing to MSC.
7. Assianment. MSC shall have the right, upon written notification to the City, to assign
any or all of its rights and obligations set forth in this Agreement to an Association. MSC hereby covenants and
warrants for itself and its successors and assigns, that, except as otherwise provided for herein, conveyance of
any interest in the Property shall constitute an assumption by any successors, assigns or transferees of MSC, of
the obligations under this Agreement. Upon such conveyance, the Association shall assume all rights and
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obligations of MSC set forth in this Agreement, and MSC shall thereafter have no further rights, liabilities or
obligations under the Agreement and shall be released from all such provisions hereunder.
8. Successors and Assians. This Agreement shall run with the land and shall be binding
upon and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of MSC 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 Property and the ROW. The land ("Benefited Land") benefited by the
covenants contained in this Agreement is the Property 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 upon personal delivery or as of the second business day after mailing in the United States registered
or certified mail, return receipt requested, postage prepaid, addressed as follows or to such other address or to
such other person as the party may designate in writing to the other parties:
If to MSC: If to Association:
Main Street Concourse LLC Association for Tract 16565
Bisno Development Company LLC Bisno Development Company LLC
1801 Century Park East #2240 1801 Century Park East #2240
Los Angeles, California 90076 Los Angeles, California 90076
Alln: Robert Bisno Alln: Robert Bisno
If to City:
City of Santa Ana
Planning Division- Planning Manager
Public Works - City Engineer
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Additionally, 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
Planning Division _ Planning Manager 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 Property. No breach
of this Agreement shall invalidate the lien of any first deed of trust encumbering the Property.
12. Headinas. 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 Counteroart. 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.
SIGNATURES ON FOLLOWING PAGE
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9123/2005
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth below.
Dated:
MAIN STREET CONCOURSE LLC,
a California limited liability company
By: EMG - Main Street Concourse LLC,
a California limited liability Its Manager
By: BDC LLC,
a California limited liability company
Its Manager
By: Bisno Developm ompany LLC,
a California Ii a liability ompany
Its Manag
Robert Bisno
Manager
By:
Name:
Its:
IIMSC"
Dated:
CITY OF SANTA ANA,
a municipal corporation
ATTES< ~
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PATRie.... HEALY . -. 0
Clerk of the Council
Da.-
DAVID N. REAM
City Manager
APPROVED AS TO,FORM:
,
JOSEPH W. FLETCHER
City Attorney
APPROVAL:
I1CITYtI
STATE OF CALIFORNIA
COUNTY OF I(J/lJ7!lPdr.u
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On- \l("fJl/l1P1 ;:)7 ,2005, before me,
PUBLIC"
:zJ/f'.(j/f ;})/hLlrJ-Jf ,jfkht{li ,
name, title of office(.: e.g., "JAN OE, NOTARY
personally appeared
#Ok/'! I/, ~',),(j(J
name(s) of signer(s)
rIi personally known to me OR [] proved to me on the basis of satisfactory evidence) to be the person(s}
'hose 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.
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STATE OF CALIFORNIA
COUNTY OF
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On
, 2005, before me,
name, title of officer - e.g., "JANE DOE, NOTARY
PUBLIC"
personally appeared
name(s} of signer(s}
[] personally known to me OR [ ] 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.
WITNESS my hand and official seal.
Signature
EXHIBIT "A"
MAINTENANCE AREA
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