HomeMy WebLinkAbout1901 E. FIRST STREET OWNER LLC -2016RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
1901 FIRST STREET OWNER, LLC
A DELAWARE LIMITED LIABILITY CO.
4901 BIRCH STREET
NEWPORT BEACH, CA 92660
Certified to be a true and correct
Copy mAINTETIA4.4 f; /gC1K�,P. 1
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MAINTENANCE AGREEMENT
Fidelity National Title Insurance Company
has recorded this instrument by request as an
accommodation only and has not examined
it for regularity and sufficiency or as its effect
upon the title to any real property that may be
described therein.
This page is added to provide adequate space for recording information
1-1
RECORDING REQUESTED BY:
1901 First Street Owner, LLC,
a Delaware limited liability company
4901 Birch Street
Newport Beach, CA 92660
WHEN RECORDED RETURN TO:
1901 First Street Owner, LLC,
a Delaware limited liability company
4901 Birch Street
Newport Beach, CA 92660
2 0 2616 N-2016-006
MAINTENANCE AGREEMENT
FOR NINETEEN01 APARTMENTS PUBLIC RIGHT-OF-WAY
THIS MAINTENANCE AGREEMENT FOR NINETEEN01 APARTMENTS PUBLIC RIGHT-OF-WAY
("Agreement") is made and entered into as of November, 2015, by and between 1901 First Street
Owner, LLC, a Delaware limited liability company ("Developer"), 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 at 1901 East First Street in the City of
Santa 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:
1. 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 Areas 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.
f. Maintenance of the trees and landscaping within that portion of Cabrillo Park
Drive shown on Exhibit "B".
g. Installing, maintaining and replacing tree grates for right-of-way street trees,
and planting, maintaining and replacing street trees that are surrounded by the
tree grates installed by Developer. Street trees must be approved by the City.
2. City Responsibility. Curb ramp, curb and gutter, 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 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 any
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 (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 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 First Street.
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 obligations under this Agreement. Upon recording the
Declaration for Developer Property, and after assigning Developer's rights and
obligations under this Agreement to the Association, 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:
1901 First Street Owner, LLC
4901 Birch Street
Newport Beach, California 92660
Attention: Cynthia Eppeldauer
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:
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By
Jose ndoval
Chief/Assistant City Attorney
MENDED,FOR APPROVAL:
utive Director, PWA
1901 First Street Owner, LLC
a Delaware limited liability company
By:
Name: &1iC �!
"DEVELOPER"
CITY OF SANTA ANA,
a municipal corporation
CITY OF SANTA ANA
David Cavazos
City Manager
"CITY"
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
,),U 0,,(0c1Jd n�, e ,� !j��
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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 Lr C(/) 9 )
ge—
1
On lU(1VIMbW- �� /S` before me, Aphanli_ -Tnhc
Date Here Insert Name and Title orthe Officer
personally appeared f I !4 {n Pf4IW'
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware
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.
am
NNSON
2049571
i "® California z
Oranunty
Dec 6, 2017 J
Place Notary Seal Above
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}mQ} t y��
Signatur of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:/Vara 4a ce /qDocument Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
92014 National Notary Association • www.NationalNotay.org • 1 -800 -US NOTARY (1-800-876-6827) Item 45907
Isk4"
DEVELOPER PROPERTY
LOT 1 OF TRACT NO. 17610, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP FILED IN BOOK 939, PAGES 1 THROUGH 3, INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT `B"
DEVELOPER MAINTENANCE AREAS
MEMORANDUM
Edwin "William" Galvez, City Engineer
To: Public Works Agency
Anderson Chrysostomo, PE, PLS
From: Public Works Agency
t�l
Date: December 9. 2015
N-2016-006
Subject: PUBLIC RIGHT-OF-WAY MAINTENANCE AGREEMENT AT 1901 EAST FIRST
STREET
On November 18, 2013, a development project currently known as Nineteen01
Apartments (previously known as Lyon Apartments) received entitlements by the
City Council to re -develop the property at 1901 East First Street. The site is located
on the north side of First Street at the northeast corner of First Street and Cabrillo
Park Drive, generally bounded on the west by the Santa Ana (1-5) Freeway and the
east by the Costa Mesa Freeway (SR -55).
The project is currently in the building construction phase, which consists of a 254 -
unit condominium development with 2,400 square feet of retail space within four
separate buildings. The permit for the construction of public improvements has also
been issued. The project will initially operate as an apartment complex, with units
available for rent. The parking will be accommodated by an existing four -level
parking structure that served the previous development. The two-story, 75,300
square foot building was demolished to accommodate this project.
As part of the project, the public sidewalk along the project frontage on First Street
will be improved with decorative surfaces, as proposed by the developer. The
developer has full understanding this type of improvement will be maintained by the
developer and its successors. Through a Maintenance Agreement, attached, the
maintenance responsibilities are clearly identified, which such agreement is
recorded against the property.
The agreement has been signed by the City Attorney's office and now require
signature by the Executive Director of Public Works Agency.
Thank you.
Ext. 5838