Loading...
HomeMy WebLinkAboutMARKE AT SOUTH COAST METRO, LLC, THE (2) -2013RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: 100 PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP (RAC) )0* 2603 Main Street East Tower - Suite 1300 Irvine, CA 92614 The undersigned parties declare: N-2013-022,0011 Documentary Transfer Tax $ 0 [Consideration less than $100.00] (?vvA C2? ©•, pWA f0evelop. (2) APR 1 p 2013 MAINTENANCE AGREEMENT FOR THE MARKE APARTMENTS PUBLIC RIGHT-OF-WAY THIS MAINTENANCE AGREEMENT FOR THE MARKE APARTMENTS PUBLIC RIGHT-,91F-WAY ("Agreement") is made and entered into as of the 2f? th, day of OfJ VEAj 3E0_ , 201/ by and between THE MARKE AT SOUTH COAST METRO, LLC, a Delaware limited liability company ("Developer"), and CITY OF SANTA ANA, a municipal corporation (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 Sana Ana, County of Orange, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (the "Developer Property"). Developer has or intends to construct residential dwelling units on the Developer Property for the purposes of leasing apartments. For purposes hereof, Developer Property shall mean and refer to the real property described in Exhibit "A". B. City and Developer wish to establish maintenance obligations and to establish certain rights incidental to the public right-of-way ("ROW") within a portion of Developer Property and those portions as shown on Exhibit "B", 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: Maintenance Obligations of ROW. Developer Maintenance Area. Developer shall have the affirmative obligation at all times to cause all of the ROW, as shown on Exhibit "B" ("Developer Maintenance Areas") and those improvements set forth below ("Developer 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 Developer. Such Developer Maintained Improvements shall include, but are not limited to the following: a. Keeping the Developer Maintenance Area free from debris and obstructions; b. Repairing damage to the Developer Maintenance Area due to the elements and ordinary wear; c. Replacing as needed the enhanced paving and decorative surfaces within the Developer Maintenance Area. d. Maintaining concrete landings and other structural elements within the ROW that extend out from the Condominium Buildings located on the Developer Property. e. Removal of graffiti from enhanced paving and decorative surfaces, and restoration of enhanced paving and decorative surfaces to previous (pre-graffiti) condition. Removal and restoration must happen within 72 hours of being notified by the City. 2. City Responsibility. Curb ramp, curb and gutter, graffiti removal, weed abatement, and street trees within the wells, 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 ROW. NOTE: The City is not responsible for removal of graffiti from enhanced paving and decorative surfaces, nor restoration of enhanced paving and decorative surfaces, 3. Termination of Developer Maintenance Obligation. Developer shall have the ongoing maintenance obligation of the Developer Maintenance Areas and the Developer Maintained Improvements therein, until such time as the City, in its sole and absolute discretion, elects to maintain such area at which time the ROW shall no longer constitute a part of the Developer Maintenance Area. In such event, the City shall provide a notice of termination of the Developer Maintenance Areas and the Developer Maintained Improvements in writing to Developer. 4. Use of ROW. The parties agree that neither they nor any successor may erect a structure or conduct any activity or otherwise cause or permit any activity or situation to exist which will unreasonably inhibit or impair the use of the ROW described in this Agreement. The ROW shall be accessible by the general public. 5. 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 Developer Maintenance Areas and/or the Developer Maintained Improvements, as set forth above, then the City may deliver written notice to Developer identifying the specific defects regarding the maintenance of the Developer Maintenance Areas or Developer Maintained Improvements. Developer shall have fifteen (15) days to correct the City's concerns. Notice provided by the City shall specify the date Developer 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 Developer specifying the emergency situation must be remedied within twenty-four (24) hours. If after notice from the City, Developer 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. Developer hereby grants the City, or its assignees the right of access, ingress and egress upon and across the Developer Maintenance Area as may be necessary to complete such 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 work. Any costs incurred by the City for maintenance of the Developer Maintenance Area or the Developer Maintained improvements shall be solely borne by the Developer. The City shall provide an invoice for the maintenance cost incurred by the City to Developer. Developer shall remit payment to the City within thirty (3) 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 Developer. 6. Indemnification. Developer 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 claim lawsuit, arbitration, administrative proceeding or other legal action concerning the operation, maintenance or construction of the Developer Maintenance Area and the Developer Maintained Improvements by Developer and/or its agents and, (ii), any breach by Developer of any of its obligations under this Agreement. 7. Assignment, Developer shall have the right, upon written notification to the City, to assign all of its rights and obligations set forth in this Agreement to the Association defined in the Declaration of Covenants, Conditions and Restrictions for the Marke Development. Developer hereby covenants and warrants for itself and its successors and assigns, that, except as otherwise provided for herein, conveyance of any interest in the Developer Property to the Association shall constitute an assumption by any successors, assigns or transferees of Developer, of the obligation under this Agreement. Upon recording the Declaration for Developer Property, the Association 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 the Agreement and shall be released from all such liability hereunder. The notice shall contain, but is not limited to, the Association's name, telephone number, address, effective date and a recorded copy of this agreement. 8. Successors 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 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 either party may designate: If to Developer: The Marke at South Coast Metro, LLC 4901 Birch Street Newport Beach, California 92660 Attention: Peter Zak 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 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. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth below. Dated: - v2-0 !v THE MARKS AT SOUTH COAST METRO, LLC, a Delaware limited liability company By: The Marke Partners, LLC, a Delaware limited liability company, its Sole Member By: The Marke Investors, LLC, a Delaware limited liability company, its Sole Member By: Lyon Integral MacArthur Place, LLC, a Delaware limited liability company, its Managing Member By: Lyon Housing (MacArthur Place) XLII, LLC, a Delaware limited liability company, its Managing Member N? Name:FfGLAKT of cCl?.3 r, rr?xM Title: Resiidgr * ATTEST: M a.i.,e fo •/`/?i/-tGy MARIA, D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BA Ledy istant City Attorney Ass RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director, P VA "CITY" Interim City Manager CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of Orange SS City of Santa Ana On this 8th day of April, 2013, before me, Maria D. Huizar Notary Public, personally appeared Kevin O'Rourke who proved to me on the basis of satisfactory evidence to be the person/persons whose riara/namescts/are subscribed to the within instrument and ac nowledged to me that 67she/they executed the--same int?'ta/her/their C. t capacities c?pae y/capacities and that bycnisther/th-eir sin - isi r9atures on the instrument the Pers9/per-sons, or the entity upon behalf of which the ersdri/persons acted, executedi'th_e?instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL Witness my hand and official seal. MARIA D. HUIZAR .?? 1974202 Commission # Si nature of Nota Notary Public - California 9 rY 1 Orange county M C mm. Ex ices r 5 2098 CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING: ? Individual(s) _ ? Corporate _ ? Officers Title(s) ? Partner(s) ? General Partner of a Limited ? Partnership ? Attorney-in-Fact ? Trustee (s) ? Subscribing Witness ? Guardian/Conservator ? Other: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: TITLE OR TYPE OF DOCUMENT: MAINTENANCE AGREEMENT FOR THE MARKEE APARTMENTS PUBLIC RIGHT OF WAY NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of yao_2e? ?S t ec,274Z13before me, &e-r, SI/Ri ley, Xg7G y On V Aj le Here Ina rt ame and Title of the fficer personally appeared who proved to me on the basis of satisfactory evidence to be the persoriXwhose naml is/aca= subscribed to the within instrument and acknowledged to me that he/sht4rey executed the same in his/heotheir authorized capacity? K and that by his/herfthtefr signatureN on the instrument the person(, or the entity upon behalf of which the person(K'acted, executed the instrument. - ETERI GALLEY Commission M 1872646 a a Notary Public - California a Z Orange County My Comm. Ex Tres Jan 2, 2094 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: (s r 12,1 c _ Place Notary Seal and/or Stamp Above T ?/ ^ I Slgnat otary Public ®P I I ?/ YFiL- Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ? Corporate Officer - Title(s): ? Individual ? Partner- ? Limited ? General ? Attorney in Fact ? Trustee ? Guardian or Conservator ? Other: Signer Is Representing Number of Pages: Signer's Name: Corporate Officer - Title(s): ? Individual WINEM Top of thumb hero ? Partner - ? Limited ? General Top of thumb here ? Attorney in Fact ? Trustee ? Guardian or Conservator ? Other: Signer Is Representing: 92UU8 Nalonal Notary Aesocianon•vabU Le auto AVG,, Y.U. aox 24()21 Gnatewortn, UA 91319-2402•w .NatlonalNOlarymg lem#5907 Reorder! Gall Toll-Fres 1-800-876-6827 [INSERT NOTARY] GOVERNMENT CODE 27361-7 I CERTIFY UNDER THE PENALTY OF PERJURY THAT THE NOTARY ACKNOWLEDGEMENT ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READ AS FOLLOWS: NAME OF NOTARY: DATE OF COMMISSION EXPIRES: COUNTY IN WHICH BOND IS FILED: COMMISSION #: MANUFACTURER/VENDOR NO.: DATE: ORANGE, CALIFORNIA PLACE OF EXECUTION EXHIBIT "A" DEVELOPER PROPERTY LOT 1 OF TRACT NO. 16626, IN THE CITY OF SANTA ANA, AS PER MAP RECORDED IN BOOK 894, PAGE(S) 32 THROUGH 34 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. EXHIBIT "B" DEVELOPER MAINTENANCE AREAS c m m o. m c ,ro v a 6 m ¢r a i ro v U ro c c 'm CONSENT CALENDAR Motion; Remove the Ward 6 representative tuna the EPIC Commission MOTION: Tinajero VOTE: AYES: NOES ABSTAIN: ABSENT SECOND: Alvarez Alvarez, Benavides, Bustamante, Sarmiento, Tinajero, Pulido (6) Martinez (1) None (0) None (0) 13.E. APPOINTMENT Motion: Appoint Eva Lombardo to the Personnel Board nominated by Mayor Prey Torn Alvarez as the Ward 6 representative for a full terms expiring December 0, 2000. (replacing R. Maci-etad) CLERK OF THE COUNCIL POSTING REPORT The following notices were posted pursuant to the Maddy Act. Board and Commission resignations are posted on the door of the Council Chambers at 22 Civic Center Plaza. Boards/Commission Resignation Effective, Posted Time 15,A, Camel ®, Motas, Community Redevelopment/Housing Commission 11/26/07 11/26107 4,40 p,m. 15.B. Nancy Quarles, Workforce Investment Board 11/12/07 11/26/07 4:40 p,m. FINAL MAP NOTIFICATIONS Pursuant to Section 34-163 of the Santa Ana Municipal Codo, the City Engineer has received this Final Map and is in the process of reviewing; the map for final approval. The City Engineer shall approve or disapprove the reap within 10 days of this City Council meeting. 17.A. FINAL TRACT MAP NO. 16626 ® 101 E. SANDPOINTE AVENUE CITY COUNCIL. MINUTES 381 DECEMBER 3, 2007 CONSENT CALENDAR Motion: Receive and file. MISCELLANEOUS ADMINISTRATION 19.A, CLOSED SESSION REPORT Motion: Approve settlements: Martinez vs, City of Santa Ana - Case No, ANA 147453, Compromise and Release $37,500 zastrow vs. City of Santa Ana ® Case No, RIV0024107, Compromise and Release $12,500 Cooper vs. City of Santa Ana, Case Nos. ANA 0364614, ANA 0287954, Compromise and Release $35,000 Jose Hernandez vs. City of Santa Ana, Case Nos. ANA 0162543; 0241326; 0240698; 0241327, Compromise and Release $65,000 City of Santa Ana vs. Villa OCSC Case No.07CL00368, Accept $9,505.00 in settlement of subrogation claim 19.13. EXCUSED ABSENCES - None 19.C. COMMUNITY REDEVELOPMENT AGENCY ANNUAL REPORT FOR FY 20062007 Motion: Receive and file the Community Redevelopment Agency Annual Report for FY 2006-2067 consisting of: 1. The Annual Audit Report as preparz? by Moreland & Associates Inc. 1 The Annual Report of Financial Transactions. 3. Housing and Community Development Report of Housing Activity of Community Redevelopment Agencies. 4. Annual Statement of Indebtedness. 19.D, WORKFORCE INVESTMENT ACT ANNUAL PLAN MODIFICATION FOR FISCAL YEAR 2007-08 CITY COUNCIL AG5Nr3A 382 DECEMBER 3, 2007