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HomeMy WebLinkAboutBrookhurst & Adams, LLC - 2006-12-18CITY OF HUNTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK February 8, 2007 Business Properties Development Company 17631 Fitch Irvine, CA 92516-6021 Attn: Mr. Charles G. Ball Dear Mr. Ball: CALIFORNIA 92648 Per your request, enclosed are two fully executed Agreements Containing Covenants Affecting Real Property Concerning Maintenance of Public Improvements for the Beachmont Plaza Shopping Center. Sincerely, /'j tJn . Flynn City Clerk JF:pe Enclosure: Agreements Ufollowup:agrmtltr (Telephone: 714536-5227) j, "t& CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE. CITY CLERK JOAN L. FLYNN CITY CLERK December 27, 2006 Tom Daly O. C. Clerk — Recorder 12 Civic Center Plaza., Rm. 101 Santa Ana, CA 92701-4057 Attn: Document Examiner Enclosed please find five identical, original Agreement Containing Covenants Affecting Real Property Concerning Maintenance of Public Improvements (Beachmont Plaza Shopping Center) that need to be recorded with the same recordation number on all five agreements. Sincerely, Joan L. Flynn City Clerk JF:pe Enclosures RE: Beachmont Plaza Shopping Center Brookhurst & Adams, LLC (Telephone: 714-536-5227) BUSINESS PROPERTIES DEVELOPMENT COMPANY 17631 FITCH IRVINE, CALIFORNIA 92614-6021 (949) 474-8900 FAX (949) 474-8936 cb bp4pacbell.net September 12, 2006 Travis Hopkins, City Engineer PUBLIC WORKS City of Huntington Beach 2000 Main St. Huntington Beach, CA 92648 Re: CUP No. 01-5I/EPA No. 02-091TPM No. 2003-137 NEC Brookhurst & Adams Huntington Beach, CA Dear Mr. Hopkins: Transmitted are five (5) originally executed Maintenance Agreement for the traffic signal for subject project. Please have two (2) fully executed copies returned to me. If you have any questions as to the above information please do not hesitate to contact me at (949)474- 8900 ext. 314 at via e-mail at the address listed above. Very truly yours BUSINESS PROPERTIES for BROOKST & ADAMS, LLC ChVesG.-lBall cc: L. C. Smull, BROOKHURST & ADAMS, LLC Bruce A. Cowgill, BROOKHURST & ADAMS, LLC Jeffrey M. Oderman, Esq, Rutan & Tucker Leone Mulvihill, Deputy City Attorney Jeff Guth, Ralphs PHOENIX OFFICE 8024 NORTH 24TH AVENUE, SUITE 310, PHOENIX, ARIZONA 85021 - (602) 995-9113 - FAX (602) 995-0809 Council/Agency Meeting Held: 42 Deferred/Continued to: ;Approved ❑ Conditionally Approved ❑ Denied t/!:�city CI " 's ig atureJ Council Meeting. Date: 12/18/2006 Department ID Number: PW 06-081 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND COUNCIL MEMBERS SUBMITTED BY: PFVIELOP CULBRETH- F , . ITY M I RATOR PREPARED BY:�ROBERT F. BEARDSLEY, PE, DIRECT R OF PU C �QRK�S�� SUBJECT: Approve Maintenance Agreement for Traffic Signal at Beachmont Plaza Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The development conditions for Beachmont Plaza Shopping Center require the developer, Brookhurst & Adams, LLC, to fund annual maintenance of the traffic signal located adjacent to the center on Brookhurst Street. The proposed agreement establishes covenants for the maintenance and annual reimbursement. Funding Source: Revenue in the amount of $9,860 will be deposited into the Infrastructure Fund, Miscellaneous Reimbursables, for Traffic Signal Maintenance, 31400314.48550.10085304. The amount will be adjusted annually per the Engineering` News Record Construction Cost Index (ENR CCI), and budgeted for maintenance as necessary. Recommended Action: Motion to: Approve and authorize the Mayor and City Clerk to execute the Agreement containing covenants affecting real property concerning maintenance of public improvements (Beachmont Plaza Shopping Center). Alternative Action(s): Do not approve the agreement. LO :Z Wd 9- 030 90OZ u3M]Old REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 12/18/2006 - DEPARTMENT ID NUMBER: PW 06-081 Analysis: As a condition of development, the owners of Beachmont Plaza Shopping Center are required to fund operation and maintenance costs for the traffic signal on Brookhurst Street that serves the center. The traffic signal was supported by Public Works only after insistence by the developer; that a full access driveway was imperative to the success of the center. The traffic signal only serves the interest of the property and does not provide any other significant public benefit. The developer supported an arrangement where the signal would be allowed if maintenance of the signal were funded by the center. The city will operate, maintain, repair and replace the signal as required. The reimbursement amount has been established at $9,860 for the first year. Annually thereafter, the amount will be adjusted per the ENR CCl available in August. The city will notify Brookhurst & Adams, LLC of the amount due by September 1. Should the traffic signal be permanently removed, the city will return funds in excess of those actually required for operation and maintenance. It is unlikely the ,signal will be removed in the foreseeable future. The annual obligation will be passed to the new owners should the property be sold. Public Works Commission Action: Not required Environmental Status: Not applicable. Attachment(s): City Clerk's .- Number No.Description Agreement containing covenants affecting real property concerning maintenance of public improvements (Beachmont Plaza Shopping Center). 5copies -2- 12/1/2006 8:39 AM ATTACHMENT #1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF HUNTINGTON BEACH P.O. Box 190 2000 Main Street Huntington Beach, CA 92648 Attn: City Clerk Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 111111111111111111111111111111111111111111111111111111111111111111111111111 NO FEE 200700004108011:30am 01/22/07 10092Al2 9 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 FOR RECORDER'S USE ONLY l AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY CONCERNING MAINTENANCE ��JC P is doa,ment is solety for the omdai OF PUBLIC IMPROVEMENTSbuslness Beach, as of the urKW (Beachmont Plaza Shopping Center) Government Code Sec, 6103 and should b 9 recorded free of charge. This AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY CONCERNING MAINTENANCE OF PUBLIC IMPROVEMENTS (the "Agreement") is dated for reference purposes as of the 14a` day of August, 2006, and is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("City"), and BROOKHURST & ADAMS, LLC, a California limited liability company ("Owner"). City and Owner are sometimes hereinafter individually referred to as a "Party" and collectively as the "Parties." RECITALS: A. Owner is the owner in fee of that certain real property located in the City of Huntington Beach, County of Orange, State of California, more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Owner's Property"). The Owner's Property is a portion of the commercial retail shopping center commonly known as the `Beachmont Plaza Shopping Center." B. City owns and controls the public right-of-way within Brookhurst Street adjacent to the westerly boundary of Owner's Property and the balance of the Beachmont Plaza Shopping Center. C. On June 12, 2002, City's Zoning Administrator approved Conditional Use Permit No. 01-51 and Variance No. 01-13 authorizing Owner to redevelop the portion of Beachmont Plaza situated on the Owner's Property. In conjunction with that redevelopment project, Owner proposed to City that Owner be permitted to construct/install certain traffic signal improvements at Owner's expense in City's Brookhurst Street right-of-way adjacent to Beachmont Plaza (herein, the "Traffic Signal Improvements"). The Traffic Signal Improvements are more particularly described in Exhibit `B" attached hereto and incorporated herein by this reference. Pursuant to Condition No. 7(g) of Conditional Use Permit No. 01-51, City authorized Owner to construct/install the Traffic Signal Improvements conditional and contingent upon Owner's 112/021166-0013 730517.04 a09/08/06 ` y�/ agreement to reimburse City for its costs incurred for the maintenance and operation of the Traffic Signal Improvements, as provided herein. D. City and Owner desire to enter into this Agreement to memorialize City's and Owner's respective rights and obligations with regard to maintenance and operation of the Traffic Signal Improvements. COVENANTS: Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by City and Owner, the Parties agree as follows: 1. City Ownership of Traffic Signal Improvements. The Parties acknowledge and agree that the Traffic Signal Improvements shall at all times be and remain public improvements and that Owner shall have no ownership interest therein. Subject to Owner's obligations set forth in Section 2 of this Agreement, City shall have the same rights and obligations with regard to the use, operation, maintenance, repair, and replacement of the Traffic Signal Improvements that City would have in the absence of this Agreement. Except as expressly set forth herein, nothing in this Agreement is intended to impose upon City any special duty or obligation to Owner with respect to the use, operation, maintenance, repair, or replacement of the Traffic Signal Improvements or to waive or release any rights, claims, defenses, or immunities that City would have with respect to said improvements in the absence of this Agreement. 2. Owner Obligation to Reimburse City for City's Maintenance and Operation Costs Pertaining to the Traffic Signal Improvements. Owner shall reimburse City for all of City's actual and reasonable out-of-pocket costs incurred to maintain and operate the Traffic Signal Improvements, including without limitation City's cost for the electricity required to operate the Traffic Signal Improvements, its cost for replacement, and all of its other maintenance and operating costs pertaining to the Traffic Signal Improvements. The Parties agree that beginning October 1, 2006, and on or before each October 1 thereafter during the term of this Agreement, Owner shall pay to City an amount referred to herein as the "Annual Reimbursement Amount" to reimburse City for all of the out-of-pocket costs incurred by City to maintain and operate the Traffic Signal Improvements during the fiscal year commencing on the date of payment. The Parties agree that the Annual Reimbursement Amount due on or before October 1, 2006, shall be the sum of Nine Thousand Eight Hundred Sixty Dollars ($9,860.00) and that said amount shall be adjusted for the payment due on October 1, 2007, and annually thereafter by the percentage equal to the percentage change in the construction cost index for the preceding year, as determined by the Engineering News Record, published by McGraw Hill. City shall annually notify Owner in writing of the amount of the adjusted Annual Reimbursement Amount no later than thirty (30) days prior to the date Owner's payment is due (i.e., on or before September 1). Receipt by the City of payment by Owner of the Annual Reimbursement Amount (plus any additional charge that may be owing in the event of late payment, as provided in Section 4 of this Agreement) shall be conclusively determined to be complete satisfaction of the obligations imposed on Owner by this Agreement. 3. Covenants Run With the Land, Term. The covenants in this Agreement burden and benefit both Owner's Property and City's adjacent Brookhurst Street right-of-way apd, are 73051 .04aO013 /1 _ 0 / 730517.04 a09/08/06 —2— �/ / intended to run with the land within the meaning of Civil Code Section 1468. This Agreement I hall become effective as of the date it is recorded against Owner's Property in the Official Records of the Orange County Recorder and thereafter shall remain effective in perpetuity; provided, however, that this Agreement shall automatically terminate if City permanently removes and does not replace the Traffic Signal Improvements. Upon termination of this Agreement, neither Party shall have any further rights or obligations to the other Party; provided, however, that both Parties shall remain responsible for performance of any obligations arising prior to the date of termination. In the event of termination of this Agreement, City agrees upon Owner's request and at no cost to City to cooperate with Owner in the recordation against Owner's Property of such document as may be prepared by Owner and approved as to form by City's attorney confirming the termination of this Agreement. 4. Return of Annual Reimbursement Amount. The Parties agree that $8,000 of the initial $9,860 Annual Reimbursement Amount has been calculated by City as being necessary for a capital repair and replacement reserve for the Traffic Signal Improvements (with said portion of the total Annual Reimbursement Amount to be adjusted annually, as provided in Section 2). The Parties further agree that if City permanently removes and does not replace the Traffic Signal Improvements and this Agreement terminates, as provided in Section 3, Owner may have been required to pay funds to City prior to the termination that City will not have needed for maintenance and operation of the Traffic Signal Improvements. Accordingly, within thirty (30) calendar days of termination of this Agreement pursuant to Section 3, Owner may provide a written request for return of any portion of the Annual Reimbursement Amount in excess of that amount that the City Engineer has in good faith deemed to be necessary to reimburse the City for its costs incurred for maintenance and operation of the Traffic Signal Improvements or any component thereof prior to the date of termination (including, as applicable; any capital repair and replacement expenditures incurred by City prior to the date of termination). Within sixty (60) calendar days of receipt by City of Owner's written request for return of any portion of the Annual Reimbursement Amount, the City Engineer will provide the following in writing: (1) the amount of Annual Reimbursement Amounts received from Owner from the effective date of the Agreement until termination pursuant to Section 3; (2) the City Engineer's good faith estimate of the City's out-of-pocket costs incurred for the maintenance and operation of the Traffic Signal Improvements from the effective date of the Agreement until termination pursuant to Section 3; and, (3) the City Engineer's good faith estimate of the Annual Reimbursement Amount received from Owner from the effective date of this Agreement until termination in excess of that amount City Engineer has in good faith determined to be City's out-of-pocket costs incurred for the maintenance and operation of the Traffic Signal Improvements. The good faith estimates of the City Engineer shall be conclusive and final for the purposes of this Section and for determining whether City will return of the Annual Reimbursement Amount, or any portion thereof, pursuant to this Section 4. 5. Assignment. Nothing in this Agreement shall be deemed to prohibit or restrict Owner's right to sell, convey, lease, encumber, or in any other way transfer or assign Owner's right, title, and interest in or to any portion of the Owner's Property, nor to require Owner to obtain City approval therefor. As used in this Agreement, the term "Owner" shall be deemed to refer to the owner in fee of Owner's Property, as said fee owner may change from time to time. If a transfer of the fee interest in the Owner's Property occurs, the transferor shall not be released from any of the executory obligations set forth in this Agreement from and after the date 112/021166-0013 730517.04 a09/08/06 -3 - f, transfer unless the transferee expressly assumes such obligations in an assignment and assumption agreement reasonably approved by City's attorneys. 6. Late Charge and Penalty. If the Annual Reimbursement Amount is not received by the City Treasurer on or before the later of (1) October 1" of each year, or the next business day if October 1" falls on a weekend or holiday, or (2) commencing with the payment due in 2007 and for each subsequent year, thirty (30) days after the date City delivers to Owner a written notice of the amount of the adjusted Annual Reimbursement Amount that is due, Owner shall pay the following late charge and interest: (1) a late charge of ten percent (10%) shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and one-half percent (11/2%) penalty per month shall be added for each month the Annual Reimbursement Amount is due but unpaid. 7. Enforcement of Covenant. The Covenants contained herein, shall be binding for the benefit of the City, and such covenants shall run in favor of the City and, in the event of any breach of any such covenants, the City shall have the right to exercise all the rights and remedies, and to maintain any action at law or suits in equity or other proper proceedings to enforce the curing of such breach including, but not limited to, revocation of Conditional Use Permit No. 01- 51, provided that Owner reserves all of its rights and defenses with respect thereto. 8. Entire Agreement. This Agreement contains the entire agreement relating to the rights herein granted and the obligations herein assumed and supersedes all prior discussions, negotiations, and agreements between or among the Parties relating to the subject matter set forth herein. 9. Notices. All notices to be delivered hereunder shall be in writing and shall be personally served or delivered by certified or registered mail, postage prepaid and return receipt requested. Each notice shall be considered given on the earlier to occur of (i) receipt, if personally delivered to the addressee, or (ii) two (2) business days following deposit in the United States mail, with postage prepaid. Any notice should be directed to the Party to whom the notice is directed at the address set forth as follows: To City: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Director of Public Works To Owner Brookhurst & Adams, LLC c/o Western Realty 2760 E. Spring Street, Suite 200 Long Beach, CA 90806 Attention: Bruce A. Cowgill Either Party may change its address for notice purposes by delivery of written notice to the other Party in accordance herewith. 10. Recordation. This Agreement shall be recorded against the Owner's Property in the office of the Recorder of Orange County, California. 1 1121021166-0013 73051204 a09/08/06 4- IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first above written. APPROVED AS TO FORM: Speci ounse "CITY": CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ayor ATTEST: APPROVED AS TO FORM: f � r ► 1 Cit Jerk City Attorney V q1i� REVIEWED AND APPROVED: T ED AND OVVED: ell City Administrator Director of Public Works "OWNER" BROO ST & AD S, LLC, a lifo h d liabi company By: W L.C. Smull Its: Managing Member By: Bruce A. Cowgill Its: Managing Member 112/021166-0013 730517.04 a09/08/06 —5— STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On September 11. 2006, before me, Dana A. Davis , Notary Public, personally appeared L. Q. Small and Bruce A Cowaill personally known to me ( ;i ) to be the persoq&whose nameoisA re ubscribed to the within instrument and acknowledged to me that e xecuted the same in kicker,f ei uthorized capacity(Fa and that by hiA wr/ eir signatur s on the instrument the person( or the entity upon behalf of which the person((D acted, executed the instrument. Witness my hand and official seal. DANA A. DAVIS Commission # 1381326 Z c 'rh Notary Public - California D B Orange County o My Comm. Expires Nov 19, 2006 [SEAL] STATE OF CALIFORNIA COUNTY OF ORANGE On personally appeared ss before me, , Notary Public, 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. Notary Public [SEAL] 112/021166-0013 730517.04 a09/08/06 -6- STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On-,bEC.�7,��2 0;0 -oC before me, � L_ ESP,q,��-,� , Notary Public, personally appeared Gig C'o &-gooe 2_- 4vuz L ayA2, .) personally known to me (or- p ^�lP� +� ^r *>1P >L; c:' * ; ..'ene1-7 " to be the persoie whose nameG) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity Ee , and that by -bier/their signature(D on the instrument the persoro or the entity upon behalf of which the persoros acted, executed the instrument. Witness my hand and official seal. P.1. ESFARZAA _ CommWbn #E I5WI79 E Hokwy Pub0c . Cditfft Notary Public Orange County M1/ Comm. EXPh= /wp 4, [SEAL] 112/021166-0013 730517.04 a09/08106 -7- LEGAL DESCRIPTION OF OWNER'S PROPERTY ALL that certain land situated in the City of Huntington Beach, County of Orange, State of California, described as follows: PARCEL 1: That portion of the Southwest quarter of Section 5, Township 6 South, Range 10 West, in the Rancho Las Bolsas, as per map recorded in Book 51, page 14 of Miscellaneous Maps, in the office of the County Recorder of said county, described as follows: BEGINNING at a point in the south line of said Southwest Quarter, North 880 48' 50" East 556.74 feet from the Southwest corner thereof, thence North V I 10" West 2 10. 00 feet; thence South 88' 48' 50" West parallel with said South line 261.00 feet; thence South 1° 11' 10" East 210.00 feet to said South line; thence North 88' 48' 50" East along said `South line 261.00 feet to the POINT OF BEGINNING. PARCEL 2: Parcel 1 as shown on a map filed in Book 138, pages 1 and 2 of Parcel Maps, in the office of the County Recorder of said county. PARCEL 3: Parcel 2 as shown on a map filed in Book 5, page 42 of Parcel Maps, in the office of the county Recorder of said county. 112/021166-0013 730517.04 a09/08/06 EXHIBIT "A" ,4_ 11: TRAFFIC SIGNAL IMPROVEMENTS The Traffic Signal Improvements are those improvements required for the new traffic signal(s) installed at the main driveway entrance to the Beachmont Plaza Shopping Center Property along Brookhurst Street, as set forth in the City of Huntington Beach Public Works Department Street Improvement Plan, Brookhurst Street, Sheet 7 of 9, approved by the City's Traffic Engineer on February 29, 2006, a copy of which plan sheet is attached hereto. >> ", 112/021166-0013 � �C 730517.04 a09/08/06 EXHIBIT `B" RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works SUBJECT: Beachmont Traffic Signal Maintenance Agreement COUNCIL MEETING DATE: December 18, 2006 R�4TTAHIENT T71, TU Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached ❑ Not Applicable Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached. ❑ Not Applicable "Staff Report (If applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached Not Ap licable Findings/Conditions for Approval and/or Denial Attached Not Applicable s II (Below Space For City Clerks Use Only) RCA Author: R. Stachelski