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HomeMy WebLinkAboutMACARTHUR PLACE OWNERSMAI 10, le 0 MacARTHUR PLACE LANDSCAPING AND STREET LIGHTING AGREEMENT REL: 9/20/91 THIS AGREEMENT, made and entered into this day of F 1 1 12- ­11 a .. I 199,r,1 by and between the CITY OF SANTA ANA, a municipal corporation of the State of California ("City") and MacARTHUR PLACE OWNERS ASSOCIATION, a California non-profit, mutual benefit corporation (11MPOA11). W-I-T-N-E-S-S-E-T-H Recitals: A. MPOA is a non-profit, mutual benefit corporation comprised of the associated owners of certain real property located generally on the east side of Main street between Columbine Avenue and MacArthur Boulevard and more specifically described in Exhibit A, attached hereto and incorporated herein by reference. This property constitutes the site of a proposed -mixed use development project entitled "MacArthur Place." B. The City, by its Ordinance No. NS-1941, dated January 4, 1988, adopted Specific Development Plan No. 43 for the MacArthur Place site and approved and entered into a Development Agreement with BGS Partners, a California limited partnership, for the 0 development of that project. Further, the City approved Parcel Map No. 13208 for the subdivision and development of a portion of the MacArthur Place site. C. The MacArthur Place project includes the proposed dedi- cation and improvement of public right-of-way, including streets, sidewalk, curbs, gutters, landscape areas and similar street - related improvements. D. MPOA desires to have the ability to install and maintain landscaping in the landscape areas of the public right-of-way within the property boundary line of the MacArthur Place site which may exceed or differ from standard City installation of landscaping in the public right -of --way areas of the City generally. E. MPOA likewise desires to have the ability to install and maintain street lighting in the public right-of-way within the property boundary line of the MacArthur Place site which may exceed or differ from standard City installation of street lighting in the public right-of-way areas of the City generally. F. City is willing to allow MPOA such rights subject to the conditions, limitations, and requirements hereinafter set forth. WHEREFORE, in consideration of the foregoing, the parties hereto do hereby agree as follows: 1. DEFINITIONS As used herein: (a) "Site" means the real property which is identified in Exhibit A. (b) "Landscaping's means trees, shrubs, grass, and all other E types of plant material, and related irrigation equipment. "Landscaping" also includes fountains, pools, and similar water facilities, and works of sculpture and other hard materials installed for aesthetic purposes. (c) "Street Lighting" means lighting furnished for the purpose of illuminating the public right-of-way in the MacArthur Place Site. (d) "Public Right -of -Way" means (1)' any and all real property located in the Site which is dedicated to the City of Santa Ana for right-of-way purposes, exclusive of any such areas located on the perimeter of the Site, and (2) the median to be constructed in Columbine Avenue to the north of the Site. (e) "Director" means the Executive Director of the Public Works Agency of the City, or his designated representative. 2. LICENSE TO INSTALL AND MAINTAIN LANDSCAPING The City hereby grants to MPOA a revocable license to install and maintain Landscaping and related irrigation equipment in the Public Right -of -Way, subject to the terms and conditions hereinafter set forth. 3. LANDSCAPE PLAN It is stipulated and agreed that the Director has approved those certain landscape plans for those portions of the public right of way in which the Landscaping is proposed to be installed pursuant to this Agreement, which plans are identified as sheets numbered 43 through 60 on Exhibit B. attached hereto and incorporated herein. 3 No Landscaping shall be installed in the Public Right -of -Way except in accordance with the said approved landscape plans or any subsequent modification thereof approved by the Director and all conditions, modifications, or requirements imposed by the Director in conjunction with such approval. 4. STREET LIGHTING (a) The City hereby grants to MPOA a revocable license to install, maintain, repair and replace Street Lighting in the public right -of way, subject to the terms and conditions hereinafter set forth. (b) MPOA has elected to install nonstandard Street Lighting fixtures outside of the property boundary line of the Site, along columbine -Avenue, on both the north and the south sides of the street, from Main Street to Halladay Street. MPOA shall maintain such fixtures as well as the landscape median they are installed upon, in accordance with the terms of this Agreement. (c) It is stipulated and agreed that the Director has approved those certain street lighting plans for those portions of the public right of way in which the Street Lighting is proposed to be installed pursuant to this Agreement, which plans are identified as sheets numbered 41 and 42 on Exhibit B, attached hereto and incorporated herein. Street Lighting installed by MPOA pursuant to this Agreement shall be installed only in accordance with the said approved street lighting plan or any subsequent modification thereof approved by the Director and with all conditions, modifications or requirements imposed by the Director in 4 conjunction with such approval. 5. SUBSEQUENT MODIFICATIONS (a) In the event that, subsequent to the approval of a landscape plan and the installation of Landscaping in the Public Right -of -Way area to which it pertains, there occurs any conflict with the plan as approved or any of the following adverse effects: (1) Cracking, splitting or uplifting of surface right- of-way improvements, or interference with underground sewers, storm drains, water lines or other underground utility lines due to root growth of Landscaping, (2) Interference with the visibility of traffic signs and other traffic control devices, (3) Excessive water run-off on public streets and sidewalks, (4) Excessive leaf or blossom deposits on public streets, (5) Any other effect which would create an unreasonable risk of'damage or injury to persons or property, (6) Any conflict with any other requirement of this Agreement, whether or not addressed at the time of plan approval, the Director may, in his reasonable discretion, direct MPOA to modify the Landscaping in order to bring it into compliance with the plan approval or in order to avoid the continuation of such adverse effects, and MPOA shall comply with such direction. (b) Any modification and/or additions to the Street Lighting 5 made by MPOA shall be made in conformance with City -established plans and specifications. Approval of such modification and/or additions must first be obtained from the Director, in his reasonable discretion, before any permits will be issued for such modification or additions. (c) In the event of any dispute between MPOA and the Director concerning the propriety of any condition or requirement of the Director regarding the Landscaping or the Street Lighting, the parties shall make a good faith effort to resolve such dispute. In the event, however, that such resolution does not occur, the decision of the Director, in his reasonable discretion, shall control. 6. COSTS (a) All costs of installation and maintenance of (i) Landscaping in the Public Right -of -Way during the period in which this Agreement remains in effect, including costs of water (but not including watering of trees), electricity and replacement landscaping and (ii) the Street Lighting installed by MPOA pursuant to this Agreement, including, but not limited to, electrical bills and charges, shall be borne by MPOA. (b) If, at any time while this Agreement remains in effect, the Site is included within an assessment district created by the City to assess any maintenance costs of Landscaping and/or Street Lighting against the properties benefitted thereby, the City shall not assess costs attributable to maintenance of Landscaping in the Public Right -of -Way or of Street Lighting installed by MPOA 9 pursuant to this Agreement, as applicable, against properties located in the Site. 7. INITIAL INSTALLATION MPOA shall install Landscaping in any area of the Public Right -of -Way designed and intended for such purpose not later than 60 days following the issuance by the City of a certificate of occupancy for any building on a building site adjacent to such portion of the Public Right -of -Way. This requirement shall not apply to Landscaping areas located on the opposite side of the street from the subject building. �• MAINTENANCE STANDARDS (a) MPOA shall maintain all Landscaping installed in the Public Right -of -Way in a healthy and attractive condition, free of weed overgrowth, debris and other matter which is unsightly or unsafe. All dead trees and shrubbery shall be promptly removed. All cuttings, weeds, leaves and other debris shall be properly disposed of. Each party shall comply with all the rules and the regulations of the Water Quality Control Board concerning the drainage of these landscape areas (medians and parkways) into the City's storm drain system, with regard to the irrigation performed by such party under this Agreement. Each party is responsible for monitoring the amount of chemicals from these landscape areas to the City's storm drain system, as required by the National Pollutant Discharge Elimination System (NPDES) and as regulated by the Water Quality Control Board, with regard to the irrigation performed by such party under this Agreement. ri (b) MPOA shall maintain and repair the Street Lighting installed by MPOA pursuant to this Agreement in good working order and condition. (c) The maintenance responsibilities of the parties to this Agreement are summarized in Exhibit C, attached hereto and incorporated herein. 9. WATER MPOA shall install an irrigation system or systems sufficient to water the Landscaping, except for any trees, ,installed by MPOA in the Public Right -of -Way. The City shall, at its sole cost and expense, irrigate the trees installed in the Public Right -of -Way. Water service installations for Landscaping in the Public Right -of - Way shall be designed so that they may be metered for City water use billing purposes separate and apart from other private water uses in the Site while this Agreement remains in effect and so that they may form part of the general public landscaped area irrigation system of the City in the event this Agreement is terminated. 10. STREET MAINTENANCE It is understood that the City will be responsible for maintenance of street pavement, gutters, curbs, sidewalks, storm drains, sewers and water lines located in the Public Right -of -Way following their initial construction and acceptance by the City, subject to the following rights and responsibilities of MPOA while this Agreement remains in effect: M OA ��cs (a) If. `; desires to resurface and/or reconstruct street pavement, gutters, curbs, or sidewalks in advance of the City's 9 standard schedule of maintenance, MPOA may do so provided such work is done in accordance with plans and specifications approved by the Director and that the cost of the work is borne by MPOA. (b) MPOA shall promptly repair, at its own cost, any damage to street pavement, gutters, curbs, sidewalks or utility lines in the Public Right -of -Way caused by root growth of vegetation installed by MPOA. 11. TRAFFIC CONTROL DEVICES The City reserves the exclusive right to install and maintain traffic and parking devices, including, but not limited to, signs and curb markings, in the Public Right -of -Way (except for such installations as MPOA may be required to provide or fund as part of the conditions of approval of development of the site.) 12. NONCOMPLIANCE In the event of any noncompliance by MPOA with the terms and conditions of this Agreement, the Director shall serve written notice of such noncompliance on MPOA specifying the nature thereof and the actions necessary to cure such noncompliance. The Director may further specify such time period as he, in his reasonable discretion, deems appropriate to complete such cure, based upon the risk► if any, to the public health or safety and upon the complexity of the work involved in effecting such cure. In the absence of any such specification, the period for completing such cure shall be 30 days, or such longer period as may be required for MPOA to diligently proceed to complete such cure. If MPOA fails to complete such cure within the applicable time period, or in the 9 event MPOA cannot complete such cure within the applicable time period, if MPOA fails to diligently proceed to complete such cure, then the City may do so, and MPOA shall be liable to the City for the cost thereof. Without limitation on other available remedies, (i) the City may add any such liability to the City t s water use billings for water service to Landscaping in the Public Right -of - Way, and all remedies for nonpayment of charges for water usage shall likewise apply to nonpayment of liability incurred under this section; and (ii) the City reserves the right to make emergency repairs to the Street Lighting system as it may deem necessary for the immediate protection of the public health and safety, and MPOA agrees to reimburse the City for any cost and expense incurred in effecting such repairs. 13. TERMINATION (a) The City may terminate this Agreement either as to Landscaping or as to Street Lighting or as to both Landscaping and Street Lighting, and thereby revoke the license granted under section 2 hereinabove and/or the license granted under section 4 hereinabove upon a determination by the City Council that MPOA has demonstrated a pattern of noncompliance with the terms and conditions of this Agreement or that such termination is necessary for the protection of the public health or safety. No such determination shall be made by the City Council unless MPOA has first been given the opportunity to be heard by the City Council on the question of whether this Agreement should be terminated by the City. This Agreement shall not otherwise be terminated except upon 10 the mutual consent of the parties hereto. (b) In the event of termination of this Agreement as to Landscaping, MPOA shall have no further right, title or interest in Landscaping or irrigation systems installed in the Public Right -of - Way, which shall thereafter be solely under the control of the City. In the event of termination of this Agreement as to Street Lighting, MPOA shall have no further right, title or interest in Street Lighting installed by MPOA pursuant to this Agreement, which shall thereafter be solely under the control of the City. 14. INDEMNIFICATION FOR DANGEROUS CONDITIONS (a) Except as otherwise provided in subsection (b) of this section, MPOA shall indemnify and save harmless the City and its officers, agents, and employees from and against any and all claims or liabilities arising out of any dangerous condition of public property (as defined in California Government Code section 830) caused by any Landscaping or Street Lighting improvement installed by MPOA pursuant to this Agreement or by the failure of MPOA to maintain any such Landscaping or Street Lighting improvement in the manner necessary to avoid such dangerous condition of public property. (b) The obligation of MPOA under subsection (a) of this section shall not apply if the condition which is the source of the liability for which indemnification is demanded by the City pursuant to this section was created at the express request of the Director. Otherwise, the obligation of MPOA under subsection (a) of this section shall apply regardless of whether or not the 11 Director approved plans which allowed such condition to exist or whether or not the Director sent any direction to MPOA pursuant to section 5 of this Agreement or has sent any notice to MPOA under section 12 of this Agreement with reference to such condition. 15. OTHER INDEMNIFICATION PROVISIONS (a) Except where the -indemnification provisions of section 14 of this Agreement control, MPOA shall indemnify and save harmless the City and its officers, agents and employees from and against any and all claims or liabilities arising out of any negligent or wrongful conduct of MPOA, its officer, agents, employees, contractors or subcontractors pursuant to this Agreement. (b) Except where the indemnification provisions of section 14 of this Agreement control, the City shall indemnify and save harmless MPOA and its officers, agents, and employees from and against any and all claims or liabilities arising out of any negligent or wrongful conduct of the City, its officer, agents, employees, contractors or subcontractors pursuant to this Agreement. 16. ASSIGNMENT MPOA may not assign or delegate any of its rights or obligations under this Agreement without the consent of the City expressed in a resolution or minute order of its City Council. 17. REPRESENTATIVES AND NOTICE The representatives of the respective parties who are authorized to administer this Agreement and to whom formal notices, demands and communications shall be given are as 12 follows: The City: Executive Director Public Works Agency City of Santa Ana P.O. Box 1988 - M20 Santa Ana, CA 92701 MPOA: MacArthur Place Owners Association c/o Brookfield Development, Inc. 3 Imperial Promenade Suite 100 Santa Ana, CA 92707 The City shall also endeavor to send a copy of any notice sent to MPOA to MPOA's attorneys at the following address, but failure to do so shall not affect the effectiveness or time of the notice sent to MPOA: Pillsbury, Madison & Sutro Suite 800 650 Town Center Drive Costa Mesa, CA 92626-1925 Attention: John C. Garrett, Esq. Formal notices,. demands and communications to be given hereunder by any party shall be made in writing and may be effected by .personal delivery, or by registered or certified mail, postage prepaid, return receipt requested. Notices which are properly mailed shall be deemed communicated 48 hours after the date of mailing. If the name of the person designated to receive the notices, demands or communications or the address is changed, written 13 notice shall be given, in accord with this section, within five days of said change. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Oa ice C. Guy Clerk of the Counci�v CITY OF SANTA ANA by LDah-el H. Yo g Mayor A P P . ......... MacARTHUR PLACE OWNERS ASSOCIATION State of California ss. County of Orange 4A On this �13A-J-day of '—WLaA-1e—L .1 oA year before me in the Council Clerk of Council or Deputy Clerk of the Council of the City Of S ta a Council " " v �n 6 n a Ana personally appeared 0 the y 0' es " , 0 m Is - ona ' known ' e (or 0 me n he basis e 'Iden e) me ro v 'a per 0 t 0 s u f c be the son who executed this instrument as 01 t it� � f S 0to me that t _ ed he Santa Ana and ackn ledged to me that the City of Santa Ana executed it, W SEP i i "?1' 13T 7 3FOO44PLD SANITA AHR 714 433 23-33 72496e9286-� P.2/2 o f . 1 r* 2 shT. NO, DESCRIPMN STRIPING F4A1VS 31 COL UU&NE A WiVUE AND IMPER)AL PROMENADE A IES77C DRJVF hZS T, MAL FS77C DRIVE EAST AND MA C,577C DRl'VE ii MAIN STREET 33A MACARTHUR SOULEVARD SANITARY SE*ER PLAN AND PRO LE J4 WACARTHUR 80U4.EVAR.0-4fNc' "A ' STA, 10+ X 7:0 57A. 1,7+3, G0 34 IMPERIAL. PROMENADE ZINC -A- STA, 17+6.9 . t0 TO STA. 24+ 70 id aAX577C DRIVE'-L NE 3" STA, 5+47.96 TO STA, 16+8().83 37 RECENCY SOULEVARD-LINE" C' STA. 9+3C, 00 TO M. 16+47, 29 3a IWACART?�UR SCULEVARp-SEWR TRAF`M CONTROL FLAN } .39 WACAR-rHU i' BOULEVARD-56)ffr? TRAF"F"IC CONMCL PLAN --STAGE ONE' 40 YACM7HUR 80ULEVARQ-SEWR TRA-77C CON7RCL PLALN-SWZ TWO STREET LIGH77NG PLANS 41 STREET LIGHPNC AND ELE'CMCAL CONDUIT R,LAtw 42 STRZZT L1CN?:NC AND Ed,EC7RICA4 CONCU11 T PLAN LANDSCAPING PLANS 417 LANDSCAPE PLAN - MASS77C DRtw 44 4ANDSCAff PLAN - REGENCY BCCII..c" YARD AND .WAX377r, DRIVr *,EST 45 LANDSCAPE PLAN - IMPERIAL PROWENADE 46 LANDE'C.APE PLAN - ,UA-CS710 ORhS EAST 47 LANDSCAPE PLAN - Ca UV61NC A �CNUE $'rA. t ' t 0 S7A. .22+ LANDSCAPE PLAN - C . JUBWE A VENUE STA. 22+00 00 M TRA07 BWAMARY .49 LANDSCAPE ALA.N - MAIN STMEE'T DSCAI�E �Ei"Ai�.a'�+G.�RT�l�1#s BOILEi�ARD 5 L,INV5G�le 11�RI�.7 54 r' TIN,PA, I f/-' Grp hf/f � i1L11 I 7 W -- 1A11e4l'T�4�f EXHIBIT 8 EXHIBIT C SUMMARY OF THE LANDSCAPING AND STREET LIGHTING MAINTENANCE RESPONSIBILITIES OF THE PARTIES TO THE MaCARTHUR PLACE LAND- SCAPING AND STREET LIGHTING AGREEMENT Street Landscaping M e d i a n S t r e e t (right -of - Landscap,ina Liahtincx way other than median) Imperial MPOA MPOA MPOA Regency MPOA MPOA MPOA, Majestic MPOA MPOA MPOA MacArthur SA - SA/SCE Main SA SA SA/SCE Columbine SA MPOA MPOA* * North and south sides