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HomeMy WebLinkAbout050711_Easement_2701.2703-2729NBristol.pdf1 �,l V,, 4, 1 1 i RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: RED MOUNTAIN RETAIL GROUP, INC. 1234 E. 17th Street Santa Ana, California 92701 Attention: Michelle F. Bell This Document was electronically recorded by Chicago Title Commercial Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder N 1®18111111 1111113 9.00 2005000536848 11:31am 07/12/05 104 2D0 Al2 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 (SPACE ABOVE FOR RECORDER) EASEMENT AND ACCESS AGREEMENT THIS EASEMENT AND ACCESS AGREEMENT (this "Agreement') is made and entered into as of July 11, 2005, by FLORAL PARK PROMENADE, LLC, a California limited liability company ("FPP"), FLORAL PARK PROMENADE II, LLC, a California limited liability company ("FPP II"), and FLORAL PARK PROMENADE III, LLC, a California limited liability company ("FPP II1" ). RECITALS: A. FPP owns the real property located in the Clity of Santa Ana, County of Orange, State of California, as more particularly described in Exhibit A attached hereto (the "FPP Parcel'). r B. FPP II owns the real property located in the City of Santa Ana, County of Orange, State of California, as more particularly described in Exhibit B attached hereto (the "FPP II Parcel'). C>O C. FPP III owns the real property located in the City of Santa Ana, County of Orange, State of California, as more particularly described in Exhibit C attached hereto (the "FPP III r1 Parcel'). D. The FPP Parcel, FPP II Parcel and FPP III Parcel shall be sometimes individually referred to herein as a "Parcel' and collectively referred to herein as the "Parcels." FPP, FPP II and FPP III shall be sometimes collectively referred to herein as the "Owners" or individually as an "Owner." E. Owners desire to grant each other reciprocal ingress and egress easements over the Parcels on the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Grant and Description of Easements. (a) Grant. Each Owner hereby grants to the other and its tenants, subtenants, licensees, permittees, contractors, subcontractors, employees, successors and assigns (collectively, 00000742v4 "Grantees") a non-exclusive, appurtenant, perpetual easement (the "Access Easement") for the access, parking, ingress and egress of motor vehicles and pedestrians to and from and over and across, those portions of Parcels that are utilized as driveways, parking areas, traffic aisles or interior roadways (the "Access Easement Area"). (b) Loading Area. FPP and FPP II, on behalf of themselves and their respective successors and assigns, hereby agree that the portions of the FPP Parcel and FPP II Parcel designated as "FPP III - Loading/Refuse" on Exhibit D may be utilized by an Owner or occupant of the FPP III Parcel for loading or unloading purposes ("Loading Easement"), at no additional cost or expense to such Owner or occupant; provided, however, such Owner or occupant of the FPP III Parcel shall be responsible for the maintenance of the loading area. (c) Trash Enclosure. FPP and FPP II, on behalf of themselves and their respective successors and assigns, hereby agree that the portions of the FPP Parcel and FPP II Parcel designated as "FPP III - Loading/Refuse" on Exhibit D is for exclusive use by an Owner or occupant of the FPP III Parcel for purposes of access and use of an enclosure as the location for trash containers for the temporary storage and regular disposal of trash, refuse and waste materials generated by the Owner or occupant of the FPP III Parcel ("Trash Enclosure Easement"), at no additional cost or expense to such Owner or occupant; provided, however, such Owner or occupant of the FPP III Parcel shall be responsible for the maintenance of such enclosure and trash containers. The Access Easement, Loading Easement and Trash Enclosure Easement are collectively referred to herein as the "Easements." The Access Easement Area, and areas designated as "Tenant Loading' and "Trash Enclosure" are collectively referred to herein as the "Easement Areas." For purposes of the Loading Easement and Trash Enclosure Easement, the term "Grantees" shall refer only to FPP III, its tenants, subtenants, licensees, permittees, contractors, subcontractors, employees, successors and assigns. (d) Character. The Easements granted by an Owner over the other Parcels shall be appurtenant to such other Parcel(s), and may not be held, transferred, assigned, or encumbered except as an appurtenance to such other Parcel(s). The Easements granted pursuant to this Agreement shall be non-exclusive and for the use and benefit of each Grantee in common with the granting Owner and its licensees, permittees, successors, and assigns. This Agreement is not intended to grant a fee interest in the Parcels, nor is it intended to be a lease or a license. perpetuity. (e) Duration. The Easements granted in this Agreement are granted in (f) No Impediments to Use. No wall, barrier, building, fence, plant, structure, improvement, or other obstacle or impediment shall be constructed upon the Parcels that would materially and adversely affect the use of the Easement Areas as provided herein by any Grantee. An Owner may adopt reasonable rules and regulations consistent with this Agreement pertaining to the use of the driveways, loading areas, trash enclosure area, parking areas, traffic aisles, and interior roadways upon their own portion of the Parcels and the Grantees shall observe such rules and regulations. Such rules and regulations may include, without limitation, rules and regulations relating to the installation of speed and traffic control and directional facilities, provided such uses do not interfere with pedestrian or vehicular ingress and egress as provided herein. (g) Not a Public Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Easement Area to the general public or for the 00000742v4 Z_ general public or for any public purpose whatsoever, and this Agreement shall be strictly limited to, and for, the purposes expressed herein. No individual shall be deemed to have acquired a prescriptive easement, easement by implication, or any other right, title, or interest as a result of the use of the Easement Area or the grant of the Easements granted herein. 2. Maintenance Requirements. Each Owner shall operate and maintain, or cause to be maintained, the Easement Area on its Parcel in good and clean condition and repair, including, but not limited to, any asphalt, paving, sidewalks, directional signs, ramps, driveways, striping, curbs, gutters, traffic islands, lighting facilities, landscaping, sprinklers, drainage facilities, public utilities, or any other improvements that may from time to time be erected within the Easement Area. The costs of maintaining the Easement Area on each Owner's Parcel shall be borne by such Owner. Any and all utility lines and connections on or below the surface of a Parcel shall be maintained, repaired and replaced, as necessary, at the sole cost and expense of the Owner under whose Parcel such utility lines and connections are located. Any Owner conducting any maintenance, repairs or replacements shall, at its sole cost and expense, repair any damage caused to the paving, curbs and driveways in the Easement Area resulting from such maintenance, repair and replacement. 3. Failure to Maintain. In the event of a failure by either Owner or its respective successors or assigns to maintain the Easement Area as required by this Agreement, after thirty (30) days written notice from the non -defaulting Owner to cure such default, the non -defaulting Owner, at its option, shall be permitted to cure the default at the defaulting Owner's expense, or to bring legal action to force the defaulting Owner to perform. The amounts reasonably expended by the non -defaulting Owner in curing the default or in bringing a specific performance action shall immediately become due and payable by the defaulting Owner, together with interest thereon at the rate of ten percent (10%) per annum. 4. Reservation of Rights. Each Owner reserves the right (a) to construct or demolish any improvement on its respective portion of the Parcels, (b) to adopt reasonable rules and regulations consistent with this Agreement pertaining to the use of the driveways, traffic aisles, interior roadways and parking stalls upon its Parcel, which rules and regulations shall be binding on the Grantees, and (c) to eject, or cause the ejection from the Easement Area on its Parcel of any person or persons not authorized, empowered or privileged to use the same pursuant to the terms of this Agreement. Each Owner retains any and all rights not specifically granted herein. Notwithstanding the foregoing, any non-use of the Parcel, Loading Area, Trash Enclosure, Easements or Easement Areas shall not confer or be deemed to grant any prescriptive rights. 5. Insurance. Each Owner shall procure and maintain a commercial general liability policy which shall protect the Owner and its respective officers, employees, and agents from claims, losses, or damages for any claims arising out of acts or omissions occurring on the Easement Area. All such policies shall name the other Owner and, if specified and requested by the other Owner, all parties holding ownership interests in the Parcels, as additional insureds. 6. Indemnification. Each Owner shall indemnify, defend (with counsel reasonably acceptable to the indemnified party) and hold the other harmless from and against any and all liability, loss, damage, cost or expense (including, but not limited to, reasonable attorneys' fees and court costs) arising from, or in connection with, the indemnifying Owner's use of the Easement Area on the other Owner's Parcel. ooaoo742v4 -3- 7. Mortgagee Protection. A breach of any of the terms, conditions, covenants or restrictions of this Agreement shall not defeat or render invalid the lien of any deed of trust or mortgage made in good faith and for value, but each such term, condition, covenant or restriction shall be binding upon and effective against any person who acquires title to, or any interest in, the Parcels. 8. Sale of Fee Title. In the event any Owner shall convey its fee interest in all or any portion of the Parcels, the conveying Owner shall be automatically freed and released from and after the date of such transfer or conveyance of all liabilities, respecting the performance of the restrictions, covenants, or conditions contained in this instrument thereafter to be performed with respect to that portion of the Parcels which is conveyed, and the new Owner shall be liable from and after the date of such transfer or conveyance, it being intended that the restrictions, covenants, or conditions contained in this instrument shall be binding upon the Owners of the Parcels affected hereby only during such time as they own the same, provided that the conveying Owner shall remain liable for any actions taken prior to the date of the conveyance. 9. Recordation of Agreement. This Agreement shall be recorded in the Official Records of Orange County, California, and shall serve as notice to all parties succeeding to the interest of the parties hereto that their use of the Parcels shall be benefited and/or restricted in the manner herein described. 10. Enforcement. Except as specifically limited by the terms of this Agreement, any party to this Agreement shall have the right to enforce, by proceedings at law or in equity, all restrictions, conditions, covenants, easements, and reservations now or hereafter imposed or created by the provisions of this Agreement, or any amendment thereto, including the right to prevent the violation of any such restrictions, conditions, covenants, easements, or reservations and the right to recover damages for such violation. 11. Cumulative Remedies. All rights, options, and remedies of the parties under this Agreement are cumulative, and no one of them shall be exclusive of any other, and the parties hereto shall have the right to pursue any one or all of such rights, options, and remedies, or any other remedy or relief which may be provided by law, whether or not stated in this Agreement. 12. No Waiver. Failure by any party hereto to enforce any covenant, condition or restriction herein contained, shall not be deemed a waiver of such right on any such future breach of the same or any other covenant, condition, or restriction contained herein. 13. Notices. Any notice that any Owner may desire to give to the other Owner must be in writing and may be given by personal delivery, by overnight courier delivery or by mailing the same by registered or certified mail, return receipt requested, to the party to whom the notice is directed at the address of such party hereinafter set forth, or at such other addresses as the parties may hereinafter designate in writing. Any notice given by mail shall be deemed given forty-eight (48) hours after such notice is deposited in the United States Mail, addressed as provided, with postage fully prepaid; notice by overnight courier service (e.g., Federal Express) shall be deemed given the next business day after deposited with the courier service. 000o0742v4 4_ If to FPP: c/o Red Mountain Retail Group, Inc. 1234 E. 17th Street Santa Ana, California 92701 Attention: Michael H. Mugel If to FPP II: c/o Red Mountain Retail Group, Inc. 1234 E. 17th Street Santa Ana, California 92701 Attention: Michael H. Mugel If to FPP III c/o Red Mountain Retail Group, Inc. 1234 E. 17th Street Santa Ana, California 92701 Attention: Michael H. Mugel 14. Miscellaneous. The Owners intend that the covenants, conditions and restrictions contained herein shall be enforceable as equitable servitudes and shall constitute covenants, the burdens and benefits of which shall run with the land and bind successive owners, all within the contemplation and for the purposes of Section 1468 of the California Civil Code. This Agreement contains the entire agreement of the parties hereto relating to the rights herein granted and the obligations herein assumed. If any clause, sentence, or other portion of the terms, conditions, covenants and restrictions of this Agreement shall become illegal, null, or void for any reason, or be held by a court of competent jurisdiction to be so, the remaining portion will remain in full force and effect. The Owners shall in no event be deemed to be partners of one another by reason of the terms of this Agreement. In the event of any dispute between the parties hereto involving the performance or interpretation of the covenants or conditions contained in this Agreement or arising out of the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, expenses and costs, including costs on appeal and costs in any bankruptcy proceeding (including any post -petition proceedings). Each individual executing this Agreement represents that he or she is duly authorized to execute and deliver this Agreement on behalf of the party for which he or she is signing, and that this Agreement is binding upon the party for which he or she is signing in accordance with its terms. This Agreement is deemed to have been made in the State of California, and its interpretation, its construction and the remedies for its enforcement or breach are to be applied pursuant to, and in accordance with the laws of the State of California for contracts made and to be performed therein. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 15. Amendments. This Agreement may be amended by, and only by, a written agreement signed by all the Owners, and shall be effective only (a) upon the City of Santa Ana's written approval, and (b) when recorded in the county and state where the Parcels are located. Except for the City of Santa Ana's prior written approval, no consent to the amendment of this Agreement shall ever be required. 00000742v4 -5- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. FLORAL PARK PROMENADE, LLC, a California limited liability company By: Michael H. Mugel Managing Member FLORAL PARK PROMENADE II, LLC, a California limited liability company By: -- —1 Michael H. Mugel Managing Member FLORAL PARK PROMENADE III, LLC, a California limited liability company By.a Michael H. Mugel Managing Member 00000742v4 6_ STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On this 1 Ith day of July, 2005, before me, Michelle F. Bell a Notary Public in and for said State, personally appeared Michael H. Mugel, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacities and that by his signatures on the instrument the person or entity upon which the person acted, executed the instrument. WITNESS my hand and official seal. =Vjftmic Notary Public 1[62g7 My Commission expires: December 03, 2006 00000742v4 �_ EXHIBIT A FPP PARCEL BEING A PORTION OF PARCELS 2 AND 3 OF LOT LINE ADJUSTMENT NO. LL 87-1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS RECORDED JANUARY 5, 1988 AS INSTRUMENT NO. 88-003319 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 2, SAID POINT BEING ON THE EASTERLY LINE OF BRISTOL STREET; THENCE SOUTH 89E53'50" EAST 537.78 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL 2; THENCE SOUTH OOE01'52" WEST 398.03 FEET; THENCE NORTH 89E53'50" WEST 99.76 FEET; THENCE SOUTH OOE06'10" FEET; THENCE NORTH 89E53'50" WEST 170.69 FEET; THENCE SOUTH OOE06'10" WEST 24.39 FEET; THENCE NORTH 89E53'50" WEST 141.49 FEET TO THE EASTERLY LINE OF BRISTOL STREET; THENCE NORTH OOE14'50" EAST 335.921 FEET ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING. 0000074204 EXHIBIT B FPPIIPARCEL BEING A PORTION OF PARCELS 2 AND 3 OF LOT LINE ADJUSTMENT NO. 87-1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS RECORDED JANUARY 5, 1988 AS INSTRUMENT NO. 88-003319 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 3, SAID POINT ALSO BEING ON THE NORTHERLY LINE OF MEMORY LANE; THENCE ALONG SAID NORTHERLY LINE NORTH 89E53'50" WEST 389.61 FEET; THENCE LEAVING SAID NORTHLY LINE NORTH OOE14'50" EAST 150.00 FEET; THENCE NORTH 89E53'50" WEST 8.51 FEET; THENCE NORTH OOE06'10" EAST 24.39 FEET; THENCE SOUTH 89E53'50" EAST 170.69 FEET; THENCE SOUTH OOE11'36" WEST 96.50 FEET; THENCE SOUTH 89E53'50" EAST 190.33 FEET; THENCE NORTH OOE06' 10" EAST 10.00 FEET; THENCE SOUTH 89E53'50" EAST 99.76 FEET; THENCE SOUTH OOE01'53" WEST 87.89 FEET TO THE NORTHERLY LINE OF MEMORY LANE AND THE POINT OF BEGINNING. 00000742v4 EXHIBIT C FPP III PARCEL PARCEL 1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 81, PAGES 16, 17 AND 18 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. 00000742v4 EXHIBIT D LOADING/REFUSE AREA Loading/Refuse Cm 000007azva