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HomeMy WebLinkAboutRAR2-651 SUNFLOWER OWNER, LLCRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Santa Ana —Planning and Building Agency, M-20 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder �11111111111EI111111111111111111�11111111111111111111 �111111 NO FEE *$ R 0 0 1 4 2 2 6 4 4 2 $ * 20230000472612:32 pm 03101/23 63 RW11AA12 12 0.00 0.00 0.00 0.00 33.00 0.00 0.000.000.00 0.00 Return FULLLY EXECUTED (Space above Line for Use by Recorder) Copy to COTC, M-30 �1 This document is exempt from the � payment of a recording fee pursuant to Government Code Section 27383 nn� N-2023-045 CITY OF SANTA ANA PROPERTY MAINTENANCE AGREEMENT FOR GENERAL PLAN AMENDMENT NO.2019-01 AND AMENDMENT APPLICATION NO.2019-01 FOR THE PROPERTY 0; MA (Ali p) 6A 2— LOCATED AT 651 WEST SUNFLOWER AVENUE FEB 2 8 2023 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 RAR2-651 Sunflower Owner, LLC, a Delaware limited liability company and its successors and assigns (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 651 West Sunflower Avenue in Santa Ana, CA (APN: 410-111-02), which is more particularly described in the legal description attached hereto as Attachment "A" and incorporated herein (the "Property"); WHEREAS, on May 29, 2018, Owner's affiliate, Legacy Partners, LLC, submitted an application to the City (the "Development Project Application"), to allow the construction of a 226-unit multi -family residential development on the Property (the "Project"). The apartment building within the Project shall be referenced herein as the "Building"; 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, Project 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 9(i) of the Specific Development Plan No. 94 for the Project. Owner accepts and shall fulfill all conditions of approval set forth in City Council Resolution No. 2019-048 and City Council Ordinance NS- 2968. 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 SANTA ANA. 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 multi -family residential developments located within the City. The Project shall comply with operational conditions of the Santa Ana Municipal Code (SAMC) 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 Project shall comply with (a) ongoing operational conditions, requirements, and restrictions, as applicable, imposed by the City Council, as listed in City Council Resolution No. 2019-048 and Ordinance NS-2968, respective to the project's entitlements and (b) applicable state and/or federal 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). 6. Intentionally deleted. 7. Owner shall not transfer its ownership interest in the fee title to the Property unless the prospective transferee agrees in writing to assume all of the duties and obligations and responsibilities of Owner set forth under this Agreement. 8. The surface of the driveways, fire lanes, vehicle parking areas, and public right-of-way areas located on the Property 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 on the Property shall be continuously maintained by the Owner as per approved landscape plans in agood 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 3(D). 14. The vehicle parking areas on the Property, including within the multi -level parking structure, 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 Americans with Disabilities Act complaint vehicle parking spaces for the Building. 15. Any abandoned vehicle on the Property shall be promptly removed. 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 City 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 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 Right 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. Notice 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 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; and (ii) what steps Owner has 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 0 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 successors 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. 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(G) 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). H. Citv's Lien Authority. Any sums expended by the City in enforcing, maintaining, repairing or replacing, or curing any element of the Property or 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. 1. 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 to its lien powers under Section 3(1)(1), the City may record a notice of Maintenance Deficiency 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 within which the Maintenance Deficiency must be corrected. Upon a correction of the Maintenance Deficiency referenced in a recorded notice, the City shall cause a notice of such correction to be recorded. 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. Priori1y 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: it has carefully read this Agreement, and in signing this Agreement, it does so with full knowledge of any right which it might have; it has received independent legal advice from its 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 it has freely signed this Agreement without any reliance upon any agreement, promise, statement, or representation by or on behalf of the other Party, or its 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 its formation 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; and 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, subj ect 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 arise 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 ground leasehold interest (but excluding any tenants under residential apartment leases), or any part thereof, and the successors and assigns of each of them. 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. SECTION 9. ATTORNEYS' 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 attorneys' 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 constitutes 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 subj ea 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 approval by the City Manager or his or her designee. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid. SECTION 13. NOTICES. All notices permitted 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: RAR2-651 Sunflower Owner, LLC c/o Legacy Partners Residential Development LLC 5141 California Avenue, Suite 100 Irvine, CA 92617-3050 Attn: Timothy I. O'Brien 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] N-2023-045 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: ZC ity Manager Kr Is}7ne 2id9C ATTEST: By: = Clerk t Council OWNER RAR2-651 Sunflower Owner, LLC, a Delaware limited liability company By: Legacy Partners Residential Development LLC.4a Delaware limited liability company its Authorized Agent M Namk_TXnothy J. O'Brien Title: Senior Managing Director [NOTARIZED SIGNATURES REQUIRED] 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 ) SS. COUNTY OF 165f w ' v'u — a notary public personally appeared :tj wou1 , rt u , oA e rA . , who proved to me on the basis of satisfactory evidence to be the per on(s) whose name(%) is/arse subscribed to the within instrument and acknowledged to me that he/sWthey executed the same in his/lwr/ther authorized capacity(its), and that by his/h*r/thbir signature(o on the instrument the person(), or the entity upon behalf of which the personO 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 WITNESS my hand and official seal. ImahYL06—I(Seal) Signature of Notary 10 Notary Publk - California Orange County *My Commission # 2364762 Comm, Expires Jul 8, 2025 + CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A nota rypubl is 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 Californiiaa� f� p County of^ O yr�r► 2�, A , (�� }� �/r l p On V)I n1 gweL3 before me, m� CJr7l I I� 1 11��4""' "1 T"' 15 , Date �(''n f,� /� n , /►,p Here Insert Name and Title o e Officer personally appeared 1\Y '�+�► W Ivl01al C Names) of Signer(s) who 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. HOLL! NICOLE SAFRAN :: Notary Public • Califofnia G c•.- Orange County i� Commission .i 2427750 Cc *. Expires Nov 22, 2026 Place Notary Seal and/or Stamp 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 Signature VNotgry Public 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: Document Date: 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: 02019 National Notary Association NumberofPages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Attachment "A" Legal Description of the Property All that certain real property situated in the County of Orange, State of California, described as follows: THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE LAND ALLOTTED TO JAMES MCFADDEN, IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK B OF JUDGEMENTS OF THE 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, IN THE CITY OF SANTAANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE LAND DESCRIBED IN THE DEED RECORDED JULY 5, 1966 IN BOOK 7979 PAGE 946 OF OFFICIAL RECORDS, OF SAID ORANGE COUNTY; THENCE ALONG THE SOUTH LINE OF SAID LAND, NORTH 89410'33" WEST 600.00 FEET TO THE EAST LINE OF THE LAND DESCRIBED IN THE DEED RECORDED OCTOBER 29, 1953 IN BOOK 2604, PAGE 17 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE ALONG SAID EAST LINE SOUTH 0040' 10" WEST 260.54 FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT NORTHERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTH LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID PARALLEL LINE, SOUTH 89°40'33" EAST, 600.00 FEET; THENCE NORTH 0040' 10" EAST 260.54 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN ON A MAP FILED IN BOOK 19, PAGE 24 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. APN: 410-111-02 Also known as: 651 West Sunflower Avenue in Santa Ana 12