HomeMy WebLinkAboutRUSSELL FISCHER, LP (2)RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Santa Ana
—Planning and Building Agency, M-20
20 Civic Center Plaza
PO Box 1988
Santa Ana, CA 92702
(Space above Line for Use by Recorder)
INSURANCE NOT REQUIRED N-2022-081
WORK MAY PROCEED This document is exempt from the
CLERK OF COUNCIL payment of a recording fee pursuant to
DATE: Return FULLY EXECUTED Government Code Section 27383
copy to COTC, M-30
0 (PAl;P) oAA -L CITY OF SANTAANA
PROPERTY MAINTENANCE AGREEMENT FOR CONDITIONAL USE PERMIT NO.
c 2018-18 FOR THE PROPERTY LOCATED AT 301 NORTH TUSTIN AVENUE
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rz This PROPERTY MAINTENANCE AGREEMENT (the "Agreement'), is effective
¢ upon the date of recordation of the Agreement (the "Effective Date"), and is entered into by and
between the City of Santa Ana, a municipal corporation (the "City") and Russell Fischer, LP, a
California limited partnership and/or any assigned responsible party, including, but not limited to
tenants, lessor(s), lessee(s), ground -lease holders, etc. (the "Owner"). The capitalized term
"Parties" shall be a collective reference to both City and Owner. The capitalized term "Party"
shall refer to either City or Owner interchangeably as appropriate.
RECITALS
WHEREAS, Owner seeks to develop the real property located at 301 N. Tustin Avenue in
Santa Ana, CA 400-032-03, which is more particularly described in the legal description
attached hereto as Attachment "A" and incorporated herein (the "Property");
WHEREAS, on November 23, 2016, Russell Fischer, LP, a California limited partnership
("Applicant') submitted an application to the City (the "Development Project Application"),
with written consent of the Owner, to allow drive -through window service for a restaurant use on
the Property ("Development');
WHEREAS, this Agreement pertains to the Project described in the second recital, above;
WHEREAS, the Parties seek to enter into this Agreement to ensure the proper
compliance with project approval conditions, operational restrictions, maintenance, and upkeep
of the Property, improvements, and permitted uses.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS CONTAINED HEREIN, THE CITY AND OWNER AGREE AS FOLLOWS:
SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into
the body of this Agreement by this reference.
SECTION 2. COMPLIANCE WITH APPROVED DEVELOPMENT PLANS AND
CITY CONDITIONS. This Agreement fulfills the requirement set forth in Section 5, Condition
No. 6 of Planning Commission Resolution No, 2018-28. Owner accepts and shall fulfill all
conditions of approval set forth in Planning Commission Resolution No. 2018-28. The Project
shall substantially conform with the Development Project Application and the plans contained
therein, which are on file with the City Planning and Building Agency.
SECTION 3. PROPERTY MAINTENANCE ENFORCEMENT BY THE CITY OF
A. Ongoing Operational/ Maintenance Conditions. Owner, on behalf of itself, its
successors and assigns and any owner of the Property, hereby agrees to maintain and repair the
following elements of the Property and the Project:
1. The Property shall be maintained in conformance with the standards generally applicable
to comparable retail/commercial businesses located within the City. The Development
shall comply with operational conditions of the Santa Ana Municipal Code ($AMC)
applicable during any period(s) of construction or major repair (e.g., proper screening and
securing of the construction site; implementation of proper erosion control, dust control
and noise mitigation measure; adherence to approved project phasing etc.).
2. The Development shall comply with ongoing operational conditions, requirements and
restrictions, as applicable (including but not limited to hours of operation, security
requirements, the proper storage and disposal of trash and debris, and/or restrictions on
certain uses, including uses determined by the Planning Commission in its Resolution
No. 2018-28 to be incompatible or inconsistent with any authorized uses; compliance
with applicable State and/or federal statutes and regulations, including but not limited to
compliance with statutes and regulations regarding the appropriate operating guidelines
for certain equipment (e.g., emissions standards, radio frequency emissions standards
etc.).
3. All onsite activities shall comply with the City of Santa Ana Noise Ordinance at all times.
4. The Property shall be in ongoing compliance with the approved design and construction
parameters, signage parameters and restrictions as well as landscape designs, as
applicable.
5. Ongoing maintenance, repair and upkeep of the Property and all improvements located
thereupon shall be provided by the Owner (including but not limited to controls on the
proliferation of trash and debris about the Property; the proper and timely removal of
graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or
weathered buildings, structures and/or improvements; the timely maintenance, repair and
upkeep of exterior paint, parking striping, pedestrian pathways/open space areas, lighting
and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom
fixtures, landscaping and related landscape improvements and the like, as applicable).
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6. If the applicant and the owner of the property are different (e.g., if the applicant is a
tenant or licensee of the property or any portion thereof), both the applicant and the
owner of the property shall be signatories to the maintenance agreement and both shall be
jointly and severally liable for compliance with its terms. If the applicant is a sub -lessee
or sub -licensee any portion of the property or any equipment located upon the property
(e.g., as would be the case with a wireless carrier seeking to co -locate equipment upon an
existing wireless telecommunication facility), the applicant, the primary lessee/licensee
and the underlying property owner shall all be signatories to the maintenance agreement
and shall all be jointly and severally liable for compliance with its terms.
7. The maintenance agreement shall further provide that any Responsible Party responsible
for complying with its terns shall not assign its ownership interest in the property or any
interest in any lease, sublease, license or sublicense, unless the prospective assignee
agrees in writing to assume all of the duties and obligations and responsibilities set forth
under the maintenance agreement.
8. The surface of the driveways, fire lanes, vehicle parking areas, and public right-of-way
areas adjacent to the Property as depicted on the Property Site Plan shall be maintained in
a good and serviceable condition by the Owner, and shall be kept free of weeds, trash, or
other debris.
9. The removal of solid waste, trash, or other debris from the Property shall be undertaken
by a duly franchised solid waste hauler authorized to provide such services to commercial
properties in the City.
10. The outdoor trash storage enclosure shall screen all trash containers from view.
11. Landscaping for the areas shown on the Property Site Plan shall be continuously
maintained by the Owner as per approved landscape plans in a good condition.
12. Lighting shall be provided in all parking areas, vehicular access ways, and along major
walkways, in accordance with the SAMC and approved by the Planning and Building
Divisions.
13. Exterior surfaces of the Building and all other structures, fixtures, or other improvements
located on the Property, shall be kept free and clear of graffiti. Graffiti shall be removed
within twenty-four (24) hours following the time of its application. Graffiti shall be
removed by either painting over the evidence of such graffiti with a paint that has been
color matched to the surface to which it is applied or graffiti may be removed with
solvents or detergents, as applicable. A failure by Owner to remove graffiti within
twenty-four (24) hours following its application on any structure, fixture or other
improvement located on the Property shall be deemed to be a Maintenance Deficiency as
defined below in Section 7(d).
14. The vehicle parking areas shown on the Property Site Plan shall be maintained in a good
condition to facilitate the efficient loading and unloading of delivery truck areas (limited
to areas immediately adjacent to the Building) and parking within the American with
Disabilities Act complaint vehicle parking spaces for the Building as shown on the
Property Site Plan,
15. Any abandoned vehicle on the Property shall be promptly removed.
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16. All onsite parking spaces shall be accessible and free of obstructions and can only be
used for parking of operable vehicles at all times.
17. Vehicles utilized for ingoing and outgoing deliveries to the Building shall not exceed the
weight limits set forth by the Department of Transportation Federal Highway
Administration applicable to Class 1 through Class 7 type- vehicles, so long as no such
vehicle exceeds forty (40) feet in length.
18. The idling of vehicles, including delivery vehicles, is prohibited within the Property or
adjacent streets. For purposes of this Agreement, "idling" refers to the running of a
vehicle's (including those used for incoming and outgoing deliveries at the Building)
engine when such vehicle is not in motion for more than five (5) minutes, including when
such vehicle is parked outside the Building or otherwise stationary with the engine
running.
19. All operations of any preapproved mechanical equipment shall be conducted within the
Building and that all openings to the Building shall be maintained in a closed position
during the usage of such mechanical equipment usage.
B. Owner Confers to Ci!y Right to Conduct Maintenance and Repairs Owner on
behalf of itself, its successors and assigns hereby confers upon the City the right but not the
obligation to conduct maintenance and repairs on the Property as required in Section 3(A) of this
Agreement, subject to the conditions of Section 3(C). Such powers under Section 3(B) of this
Agreement are conferred by Owner on the City for the benefit of the City to provide for the
health, safety and welfare of all persons who use the Project or any portion thereof and other
persons who reside in the vicinity of the Project and the entire City. No ownership interest in the
Property or any interest in any lease, sublease, license or sublicense of the Property shall be
conveyed unless the prospective recipient of such interest agrees in writing to assume all duties,
obligations, and responsibilities set forth in this Agreement.
C. City Rieht to Enforce. The right and power of the City to enforce the
maintenance, repair and replacement obligations of Owner shall not be deemed to arise by virtue
of this Section 3 alone. Any provision of this Agreement to the contrary notwithstanding, the
City may, by public nuisance abatement proceeding, and/or by the initiation of an action at law
or in equity, notwithstanding this Section 3, enforce the law as relates to the abatement or
elimination of a public nuisance at the Property or enforce any provision or conditions of
approval of a building or development permit issued for the Property by the City. It shall be
presumed that the City is proceeding under the general municipal policy powers reserved to the
City under this Section 3(C) if the City issues a written notice of "Maintenance Deficiency" as
this term is defined in Section 3(D) of this Agreement.
D. NQJice of Maintenance Deficiencies Upon any failure by Owner to perform any
of the maintenance and repair obligations referenced in Section 3(A) (such failure hereinafter
referred to as a "Maintenance Deficiency"), the City shall issue written notice of such
Maintenance Deficiency to Owner, as provided in Section 13 of this Agreement.
E. Maintenance Deficiencies. Owner shall comply with any issuance of a Notice of
Maintenance Deficiency within the timeframe specified by the Code Enforcement Division to
cure the Maintenance Deficiency identified in such Notice. Within the timeframe specified by
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the Code Enforcement Division in the notice of a Maintenance Deficiency, Owner may submit a
written request to the City seeking additional time to cure the Maintenance Deficiency. Each
such written request for additional time shall describe and specify in detail (i) which tasks
require additional time to complete the cure of the Maintenance Deficiency and the reason why
such additional time is needed under the circumstances; (ii) what steps Owner have already taken
to commence the cure of the Maintenance Deficiency. The City, in its reasonable discretion, may
grant, conditionally grant or deny any written request for additional time as determined by the
Code Enforcement Manager. The City shall be under no obligation to consider untimely
submitted time extension requests or requests which fail to provide any of the information
required above.
F. Removal of Graffiti. Owner, on behalf of itself, its successor and assigns hereby
further covenants and agrees in favor of the City to keep the exterior surfaces of all structures,
fixtures or other improvements located on the Property free and clear of graffiti. Graffiti shall be
removed within twenty-four (24) hours following the time of its application. A failure by Owner
to remove graffiti within twenty-four (24) hours following its application on any structure,
fixture or other improvement located on the Property shall be deemed to be a Maintenance
Deficiency for which no further notice under Section 3(D) needs to be given by the City.
G. City May Cure Maintenance Deficiency.
1. In the event Owner fails to cure a Maintenance Deficiency within the time
allowed, the City may initiate a public hearing pursuant to Section 41-651 of the
Santa Ana Municipal Code. At such a public hearing the City shall consider such
evidence and testimony of interested persons as may be relevant to the matter. If
upon the conclusion of a public hearing, the City makes a written finding that a
Maintenance Deficiency exists and that there appears to be non-compliance with
the maintenance and repair obligations referenced in Section 3(A) of this
Agreement, the City shall have the right to record the notice described in Section
3(I) of this Agreement and thereafter the City may enter upon or otherwise access
the Property for the purpose of curing the Maintenance Deficiency without further
notice to Owner.
2. The foregoing notwithstanding, the City, without notice to Owner, shall have the
right to enter the Property and remove graffiti, solid waste, trash, or other debris
under the following two circumstances: (i) a failure by Owner to remove graffiti
within twenty-four (24) hours following its application on any structure, fixture or
other improvement located on the Property that is visible from an adjacent or
contiguous public right-of-way; or (ii) a failure by Owner to remove the
accumulation of solid waste, trash, or other debris that is visible for a duration of
twenty-four (24) hours from an adjacent or contiguous public right-of-way or
from a designated fire lane on the Property. Any sum expended by the City for the
removal of graffiti, solid waste, trash, or other debris pursuant to this Section
3(0)(2) of the Agreement shall become a lien on the Property in accordance with
Section 3(H) and the City shall have the right to enforce such lien in the manner
provided in Section 3(I).
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H. City's Lien Authori . Any sums expended by the City in enforcing, maintaining,
repairing or replacing, curing any element of the Property of the Project as authorized in Section
3 for which a Maintenance Deficiency has been declared by the City to exist under Section 3(G),
shall become a lien on the Property. The powers conferred upon City pursuant to this Section
3(H) are in addition to all other remedies which the City may have to enforce this Agreement, or
any building or development project permit under other law including public nuisance abatement
proceedings or any other action at law or equity,
I. Enforcement of Liens by the City.
The rights conferred upon the City by Owner under Section 3 of this Agreement
expressly include the power to establish and enforce a lien or other encumbrances
against the Property or any portion thereof, subject to all then existing other liens
and encumbrances on the Property, in an amount reasonably necessary to
reimburse the City for its reasonable costs of the necessary and reasonable costs
incurred by the City under Section 3(G) to restore the Property and the Project to
the maintenance standard required under this Section 3, including reasonable
attorney's fees and costs of the prevailing party associated with the correction of
the Maintenance Deficiency in connection with such action. If the amount of any
such lien as relates to a Maintenance Deficiency is not paid within thirty (30)
calendar days after written notice by the City to Owner, demanding such payment,
the City shall have the right to enforce its lien in accordance with the statutory
authority referenced under this Section 3(I)(1), The prevailing party in a
collection or other lien enforcement action authorized by this Section 3(I) shall
also have the right to collect its reasonable attorney's fees, costs and expenses
associated with any action or proceeding to enforce or defend its rights hereunder.
2. In the event that the City makes a written finding that a Maintenance Deficiency
exists on the Project as provided in Section 3(G), then in addition its lien powers
under Section 3(I)(1), the City may record a notice of correction of Maintenance
Deficiency be recorded against the Property. Such a notice of Maintenance
Deficiency shall refer to Section 3(G) of the Agreement, be signed by the
Executive Director of the Planning and Building Agency and shall have a duration
following the date of its recordation until such date the Maintenance Deficiency is
corrected.
J. No approval by Owner shall be necessary for the City to establish and foreclose a
lien for non-payment of amounts expended by the City to cure a Maintenance Deficiency under
Section 3 of this Agreement. No failure by the City to enforce any default pertaining to the
maintenance, repair or replacement of any element of the Property or the Project under Section 3
shall be deemed to be a waiver of the right or power of the City to enforce any subsequent
default thereof by Owner.
K. Priority of City Ordinances and Other Laws. Notwithstanding any provision in
this Agreement to the contrary, the approval and acceptance of this Agreement by the City shall
not be deemed a waiver or release of any applicable provision of any building permit or other
development project permit issued by the City for the improvement of the Project on the
Property, or of any other applicable ordinance or law or the general police power of the City. In
the event of any conflict or inconsistency between any provision hereof and any ordinance, law,
or the general police power of the City, the latter shall prevail,
SECTION 4. TERMINATION of AGREEMENT. This Agreement shall terminate and
be of no further force or effect upon the mutual written termination of this Agreement by Owner
and City.
SECTION 5. LEGAL ADVICE. Each Party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they do so
with full knowledge of any right which they may have; they have received independent legal
advice from their respective legal counsel as to the matters set forth in this Agreement, or having
knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and
they have freely signed this Agreement without any reliance upon any agreement, promise,
statement, or representation by or on behalf of the other Party, or in their respective agents,
employees or attorneys, except as specifically set forth in this Agreement, and without duress or
coercion, whether economic or otherwise.
SECTION 6, REPRESENTATION AND WARRANTIES OF OWNER.
Owner represents and warrants for the benefit and reliance for the City as follows:
A. Owner validly exists under the laws of the State of California and is authorized to
conduct business in California and is authorized to carry on its business being conducted as
contemplated in this Agreement;
B. Owner has the power and authority to enter into this Agreement;
C. This Agreement shall be a legal, valid and binding obligation of Owner,
enforceable against Owner and its successors and assigns in interest in the Property, and each
portion thereof, in accordance with its terms, subject to bankruptcy and other equitable
principles.
SECTION 7. COVENANT OF OWNER. Owner declares that the Project and the
Property shall be held, conveyed, leased, used, and improved subject to the provisions of this
Agreement and this Agreement is expressly declared to be for the benefit of the Project and the
Property and the abutting public rights -of -way. The Property maintenance covenants of Owner in
favor of the City which arises under this Agreement shall run with and burden the Property and
shall be binding upon all persons having or acquiring any right or title in the Property, including
any leasehold interest, or any part thereof, and the successors and assigns of each of them,
including Applicant.
SECTION 8. TIME OF THE ESSENCE: TERM OF AGREEMENT. Time is expressly
made of the essence with respect to the performance by City and Owner of each and every
obligation and condition of this Agreement.
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SECTION 9. ATTORNEY'S FEES. In addition to any other remedies provided herein
or available under applicable laws, if either Party to this Agreement commences an action
against the other Party arising out of, or in connection with this Agreement, the prevailing Party
shall be entitled to recover from the losing Party its costs of suit, including, but not limited to, its
reasonable attorney's fees, expert witness fees, and costs of investigation.
SECTION 10. INTEGRATION. This Agreement contains the entire understanding
between the Parties relating to the transaction contemplated by this Agreement, except as
otherwise provided. All prior contemporaneous agreements, understandings, representations and
statements, oral or written, are merged in this Agreement and shall be of no further force or
effect. Each Party is entering into this Agreement based solely upon the representations set forth
herein and upon each Party's own independent investigation of any and all facts such Party
deems material. This Agreement constituted the entire understanding and agreement of the
Parties, notwithstanding any previous negotiations or agreements between the Parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
SECTION 11. SEVERABILITY. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
SECTION 12. AMENDMENT. No amendment, modification or supplement of this
Agreement shall be valid or binding unless executed in writing and signed by both Parties,
subject to City approval. The requirement for written amenchnents, modifications or
supplements cannot be waived and any attempted waiver shall be void and invalid.
SECTION 13. NOTICES. All notices pennitted or required under this Agreement shall
be given to the respective Parties at the following addresses, or at such other address as the
respective Parties may provide in writing for this purpose:
OWNER:
Russell Fischer, LP, a California
limited partnership
Russell Fischer, LP
c/o Chase Russell
16061 Beach Boulevard
Huntington Beach, CA 92648
Attn:
CITY:
City of Santa Ana
Planning and Building Agency, M-20
PO Box 1988
Santa Ana, CA 92702
(714)647-5804
PlanningDepartment@santa-ana.org
SECTION 14. COUNTERPARTS. This Agreement shall be executed in three (3)
original counterparts each of which shall be of equal force and effect. One fully executed
original counterpart shall be delivered to Owner and the remaining two original counterparts
shall be retained by the City.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as evidenced
by the signatures of the authorized officers of each of them.
CITY
City of Santa Ana, a municipal
corporation
By:�
Kristine Ridge
City Manager
ATTEST _
OWNER
Russell Fischer, LP, a California limited
partnership
By:
Name: fibs f-, R,gSX/,A—
Title:
Daisy Gomez j4���
Clerk of the Council """� APPLICANT - Execution required by
Planning Commission Resolution No. 2018-28
IN
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Title:
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ACKNOWLEDGMENT
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 Orange
On �N& �� ,before me,
Deanne K Dodge-Krows, Notary
personally appeared VI lU Est �V �`�(✓ 1
who proved to me on the basis of satisfactory evidence to be the person("hose namewis/ara
subscribed to the within instrument and acknowledged to me that he/she4hey-executed the same in
his/her/their authorized capacity4es), and that by his/her/their signature(e"n the instrument the
personal or the entity upon behalf of which the personker 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.
/�, DEANNE K. DODGE•KROWS
WITNESS my hand a fficial seal. _ / COMM. k2318077
NOTARY PUBLIC-CALIFORNIA
z
ORANGE COUNTY
'�vMy Comm. Expires Jan. 8, 2024
Signature (Seal)
[NOTARIZED SIGNATURES REQUIRED]
Attachment "A"
Legal Description of the Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN TILE CITY OF SANTA ANA, IN ,MR COUNTY OF
ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOL I OW S:
PARCEL 1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN ,1,�$Z,jL K 6 PAGE 27 OF PARCEL MPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN(s): 400-032-03
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