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HomeMy WebLinkAboutMAIN STREET CONCOURSE 2 , 0; PvJ~ U:-,I-ev~ffut') N-200S-119 , COpy RECORDING REQUESTED BY: First American Tille Insurance Company WHEN RECORDED RETURN TO: PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP (DGT) 2603 Main Street East Tower - Suite 1300 Irvine, CA 92614 The undersigned parties declare: Documentary Transfer Tax $ 0 [Consideration less than $100.00] MAINTENANCE AGREEMENT FOR THE CITY PLACE COMMERCIAL PROPERTY PUBLIC RIGHT-OF-WAY THIS MAINTENANCE AGREEMENT FOR THE CITY PLACE COMMERCIAL PROPERTY PUBLIC RIGHT-OF-WAY ("Agreement") is made and entered into as of the 27th day of September, 2005, by and between MAIN STREET CONCOURSE LLC, a California limited liability company ("MSC") its successors or assigns, and the CITY OF SANTA ANA, a municipal corporation (the "City"). MSC and the City may collectively be referred to herein as the "Party" or the "Parties". R E C I TAL S: A. MSC is the owner of certain real property located in the City of Santa Ana, County of Orange, State of California, more particuiarly described as Lot 4 otTract No. 16565, as shown on a subdivision map filed in Book _, Pages _ and _ of Miscellaneous Maps, Records of Orange County, California (the "Property"). B. The Property shall be developed into a commercial and retail shopping area and be conveyed to a person or persons that shall hold record fee title to all or any portion of the Commercial Property ("Owner"). Any and all of the right, powers and obligations of MSC contained herein may be assigned to an Owner, provided that such Owner assumes the duties of MSC as provided herein and such Owne~s assumption of rights and obligations are identical to and those assumed by MSC herein. Such Owner shall have the right to delegate all or any portion of such Owner's rights and obligations as set forth in this Agreement to a lessee under a lease or a contract purchaser under an agreement to purchase. C. City and MSC wish to provide maintenance obligations and to establish certain rights incidental to the public right-of-way ("ROW') within a portion of Property as shown on Exhibit "A", attached hereto and incorporated herein. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Maintenance Obliaations of ROW. (a) Maintenance Area. MSC shall have the affirmative obligation at all times to cause that portion of the ROW, as shown on Exhibit "A" ("Maintenance Areas ") and those improvements set forth below ("Maintained Improvements") to be maintained in a safe condition according to reasonable street and public right-of-way maintenance standards as set forth by the City. The costs of such maintenance shall be F:\REAL\622\33634001\Maintenance Agmts with City\Grant Esmt & Maint - City rev6 (Commercial).doc 9/19/2005 exclusively borne by MSC or the Owner upon conveyance of the Property. Such Maintained Improvements shall include, but are not limited to the following: (b) Keeping the Maintenance Area free from debris and obstructions; (c) Repairing damage to the Maintenance Area and Maintained Improvements due to the elements and ordinary wear; (d) Maintain all frontage trees, tree grates and associated irrigation systems within the Maintenance Area. 2. Citv ResDonsibilitv. Graffiti removal and weed abatement within the ROW shall be the responsibility of the City and the cost of such maintenance shall be borne by the City. The City shall be responsible for the maintenance of all street lights located in the ROW. 3. Use of ROW. The Parties agree that neither they nor any successor may erect any structure or conduct any activity or otherwise cause or permit any activity or situation to exist that will unreasonably inhibit or impair the use of the ROW created in this Agreement. The ROW shall be accessible by the general public. 4. Riaht of Citv to Remedv Failure of Maintenance Obliaation. If MSC fails to comply with the provisions of this Agreement, including any failure to maintain the Maintenance Areas and/or the Maintained Improvements, as set forth above, then the City may deliver written notice to MSC identifying the specific defects regarding the maintenance of the Maintenance Areas or Maintained Improvements. MSC shall have fifteen (15) days to correct the City's concerns. Notice provided by the City shall specify the date MSC must remedy the City's concerns in order to avoid action by the City. If the City determines a hazardous situation exists which must be remedied immediateiy ("emergency situation"), then the City will provide written notice to MSC specifying the emergency situation must be remedied within twenty-four (24) hours. If after notice from the City, MSC fails to correct the specific defects identified in the City's notice within the specified time period, the City shall have the right to remedy the defects. MSC hereby grants the City, or its assignees the right of access, ingress and egress upon and across the Maintenance Area as may be necessary to complete such work. The City may retain, at its election its own contractors, or MSC's contractors, or other third party maintenance company to complete the work. Any costs incurred by the City for maintenance of the Maintenance Area or the Maintained Improvements shall be solely borne by the responsible Owners. The City shall provide an invoice for the maintenance cost incurred by the City to MSC. MSC shall remit payment to the City within thirty (30) days from receipt of the invoice. The Parties agree that any maintenance undertaken by the City under this section shall not terminate the maintenance obligation of MSC. 5. Indemnification. MSC hereby covenants and agrees to indemnify, defend, and hold City, its officers, agents, and employees harmless from and against any and all claims, damages (including damage to property and injury to persons), demands, losses, obligations, judgments, liabilities, costs and expenses (including, without limitation, attorneys' and other fees) arising from or in any way connected with or related to any of the following: (i) any lawsuit, arbitration, administrative proceeding or other legal action concerning the operation, maintenance or construction of the Maintenance Area and the Maintained Improvements by MSC and/or its agents and, (iI) any breach by MSC of any of its obligations under this Agreement. 6. Termination of Maintenance Obliaation. MSC shall have the ongoing maintenance obligation of the Maintenance Areas and the Maintained Improvements therein, until such time as the City, at its sole and absolute discretion, elects to maintain such area at which time the ROW shall no longer constitute a part of the Maintenance Area. In such event, the City shall provide a notice of termination of the Maintenance Areas and the Maintained Improvements in writing to MSC. 7. Assianment. MSC shall have the right, upon written notification to the City, to assign any or ail of its rights and obligations set forth in this Agreement to an Owner. MSC hereby covenants and warrants for itself and its successors and assigns, that, except as otherwise provided for herein, conveyance of -2- F:\REAL\622\33634001\Maintenance Agmts with City\Grant Esmt & Maint - City rev6 (Commercial).doc 9/19/2005 any interest in the Property shall constitute an assumption by any successors, assigns or transferees of MSC, of the obligations under this Agreement. Upon such conveyance, such Owner shall assume all rights and obligations of MSC set forth in this Agreement, and MSC shall thereafter have no further rights, liabilities or obligations under the Agreement and shall be released from all such provisions hereunder. 8. Successors and Assians. This Agreement shall run with the land and shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of MSC and the City. The covenants, conditions and restrictions set forth in this Agreement shall constitute equitable servitudes which shall run with the land. 9. Affected and Benefited Land. The land ("Affected Land") affected by the covenants contained in this Agreement is the Property and the ROW. The land ("Benefited Land") benefited by the covenants contained in this Agreement is the Property and the ROW. 10. Notices. Unless otherwise provided in this Agreement, all notices, demands, or other communications given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been given upon personal delivery or as of the second business day after mailing in the United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows or to such other address or to such other person as the party may designate in writing to the other parties: If to MSC: Main Street Concourse LLC Bisno Development Company LLC 1801 Century Park East #2240 Los Angeles, California 90076 AlIn: Robert Bisno If to City: City of Santa Ana Planning Division- Planning Manager Public Works - City Engineer 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 11. Lender Protection. Nothing in this Agreement shall be construed as giving any party priority over the rights of beneficiaries of first deeds of trust encumbering any portion of the Property. No breach of this Agreement shall invalidate the lien of any first deed of trust encumbering the Property. 12. Headinas. The titles or headings of the sections of this Agreement are not a part of the Agreement and shall have no effect upon the construction of or interpretation of this Agreement. 13. Execution in Counteroart. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. SIGNATURES ON FOLLOWING PAGE -3- F:\REAL\622\33634001\Maintenance Agmts with City\Grant Esmt & Maint - City revS (Commercial).doc 9/19/2005 IN WITNESS WHEREOF. the Paltlll$llenllO have executed jlli$ AgreeMenlll$ set forth belOW~ Oaled: 41-,)ro(' MAIN STREET CONCOURSE LLC. a Califomia IroiIed IlabiIi\y compal11 By: EMG - Main Street ~ U~C. a California firoiled liability Its Manaser By: Bce LtC. a Calilllmis timiled liabilily company Its MaIlag$r By: BlsnO De Company LLC. a California iJiIy compal11 Its Man Robert Bisno Manager "USe" 0aIed: CITY OF SANTA ANA. a mtJnldpal COfPOI'811on CITY OF SANTA ANA ATTEST: DAVID N. REAM City Manager PATRICIA E. HEAlY Clerk of the CoIlncll AI'l'ROVED AS TO FORM: JOSEPH W. flETCHER ClIy Morney By: Kylee O. OlIo Assistanl CiIy AlIomey RECOMMENDED FOR APPROVAL: stephen G. Hardlllg Deputy CiIy Manager for Deveiopment $eMces "Crrr IN WITNESS WHEREOF. the Parties hereto have executed this Agreement as set forth below~ IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth below. Dated: ~-;;7-0S: MAIN STREET CONCOURSE LLC, a California limited liability company By: EMG - Main Street Concourse LLC, a California limited liability Its Manager By: BDC LLC, a California limited liability company Its Manager By: Bisno Develop t Company LLC, a California rite lability company Its Mana Robert Bisno Manager lIMSC" Dated: CITY OF SANTA ANA, a municipal corporation ATTEST: ~AANA ( t2, DAVID N. REAM City Manager ------ ~~~ PATRICIA E. HEALY Clerk of the Council APPROVED AS 1;0 FORM: JOSEPH W. FLETCHER City Attorney APPROVAL: "CITY" STATE OF CALIFORNIA COUNTY OF IJIH/I!f'k ) ) ss: ) On ~);fJl-e/7Jbl1 d'l, 2005, before me, PUBLIC" ;2)#$/1 d)/I1?fSJ/t; /lJ;f-4/'1 . name, title of officer - e.g., "JAN DOE, NOTARY personally appeared J;1;krl /I ~S;V~ name{s) of signer{s) M personally known to me OR [ ] proved to me on the basis of satisfactory evidence) to be the person(s) ~hose 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 behaif of which the person(s) acted, executed the instrument. WITa:~'"7J::; . Signature ).~ ~ ~ ~ ::~2:25~ I I Notary I'UbIIC . Call/OmlO ~ Alarne!Ia CounIy - _ _ t. ~~:.~~2~~1 all';'7/Zoo? STATE OF CALIFORNIA COUNTY OF ) ) ss: ) On , 2005, before me, name, title of officer - e.g., "JANE DOE, NOTARY PUBLIC" personally appeared name(s) of signer(s) [] personally known to me OR [ ] 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. WITNESS my hand and official seaL Signature EXHIBIT "A" MAINTENANCE AREA ~ ~ m ;::0 o ~ ~ ~ ~ ~ ~ ---- r~.-- -"_..._- -_....~...". "-='. ..." -'-"" -);l1J1llSTREET . r n I I I i \ i . ~.~. ,~~ ~' 1'1" "~<><><><><>~~<><><><><> ~ I: lit ~ <> <> <> <> 0 D <> <> <> <> <>~ i 11 ! :" i J <> <> <> <> <> ~ ~ <> <> <> <> <> c9 ~I i / ~ . . H H~~~~: ~/ .. 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