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Home My WebLink AboutC-4509 - Nuisance Abatement AgreementRECORDED BY L.T.C. OFFICIAL BUSINESS Document Exempt from Recording Fees Pursuant to Govt. Code §§ 6103 and 27783 WHEN RECORDED MAIL TO: City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn'. Office of the City Attorney Assessor's Parcel Numbers: his Document was electronically recorded b Law /ers Title New ort Beach i� ecorded in Official Records, Orange Coun `-J/ om Daly, Clerk- Recorde 2010000093756 02:17 pm 02/26110 P3407 A7211 .000.00 0.00 0.00 30.00 0.b0 0.00 0.00 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) 049 - 280 -39; 049 - 280 -40; 049 - 280 -51; 049 - 280 -53; 049 - 280 -55; 049 - 280 -56; 049- 280 -57; 049- 280 -58; 049 - 280 -59; 049- 280 -60; 049- 280 -61; 049- 280 -62; 049- 280 -63; 049 - 280 -71; 049 - 280 -72; and 049 - 280 -73 NUISANCE ABATEMENT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Exempt From the payment of the recording fee pursuant to Government Code §§ 6103 and 27783 NUISANCE ABATEMENT AGREEMENT This NUISANCE ABATEMENT AGREEMENT ( "Agreement ") is entered into on February 23, 2010; by and among the City of Newport Beach, a California municipal corporation and charter city ( "City "), Mariner's Mile Gateway, LLC, a California limited liability company, and Red Mountain Retail Group, Inc., a California Corporation ( "Landowner "), and Russell E. Fluter, Trustee of the Russell E. Fluter Separate Property Trust Established June 23, 2006, by Russell E. Fluter, Trustor ( "Fluter "). City, Landowner and Fluter are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Landowner is the fee owner of a 2.57 -acre parcel of real property (the "Property ") located at 200 -600 West Coast Highway described as Lots 1 -17 inclusive of Tract No. 1210, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 40, pages 45 and 46 of Miscellaneous Maps, records of said County, California (Assessor Parcel Numbers: 049- 280 -39; 049- 280 -40; 049 - 280 -51; 049 - 280 -53; 049- 280-55; 049 - 280 -56; 049- 280 -57; 049 - 280 -58; 049- 280 -59; 049 - 280 -60; 049- 280 -61; 049 -280- 62; 049- 280 -63; 049 - 280 -71; 049 - 280 -72; and 049- 280 -73). There are eight unoccupied detached retail- commercial structures on the Property. B. City has filed a complaint in the Orange County Superior Court, Case No. 30 -2010- 00343479- CU- OR -CJC against Landowner for damages, injunctive and equitable relief for violations of certain provisions of the Newport Beach Municipal Code alleging the Property, and structures thereon, constitutes a public nuisance and a threat to the public health, safety and welfare of the City (the "Complaint"). The Complaint was filed on February 9, 2010, but has not been served on Landowner as the Parties have instead initiated negotiations regarding this Agreement. C. City has also recorded a Notice of Pendency of Action (Las Pendens) with the Orange County Recorder as Instrument No. 2010000066297 on the Property giving notice of the pendency of the Complaint. D. Landowner has established an escrow with Lawyers Title Insurance Corporation to sell Lots 7 -17 of the Property to Fluter ( "Fluter Lots "). The remaining Lots 1 -6 of the Property are in escrow to be purchased by another buyer. 2123/10 10169.3 H &O: 981833 v5 E. At the request of Fluter, City has conducted an onsite inspection of the Fluter Lots to identify in general terms for Fluter and Landowner corrections needed to abate the public nuisances as they relate to the structures on the Fluter Lots. F. Fluter has agreed to make necessary corrections on the Fluter Lots to abate the public nuisances currently existing thereon and otherwise comply with the Newport Beach Municipal Code. AGREEMENT Based on the foregoing recitals and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Recitals. City, Landowner and Fluter accept the above recitals as true and correct and incorporate them herein as if they were fully restated in this Agreement, 2. Schedule for Abatement. Upon the close of escrow ( "Close of Escrow ") for the Fluter Lots, estimated to occur on or before March 9, 2010, Fluter hereby agrees to the following schedule for the correction, abatement, and/or remediation of the public nuisances: (a) During the period of Sixty (60) days immediately following the date of the Close of Escrow, Fluter shall commence and complete those actions necessary to: (1) repair, prune, clean up and maintain all landscaping on the Fluter Lots; (2) remove all rubbish, trash, debris, rubble, and the like from the Fluter Lots, and the interior of all structures thereon; (3) cover all signs on the Fluter Lots; and (4) secure and maintain the Fluter Lots, and all structures thereon. (b) During the period of Ninety (90) days immediately following the date of the Close of Escrow, Fluter shall submit all required plans to the City and implement such actions necessary to correct, abate and/or remedy the public nuisances. (c) Within One Hundred and Eighty (180) days immediately following the date of the Close of Escrow, the correction, abatement, and/or remediation of all public nuisances alleged by the City in the Complaint shall be accomplished to the City's satisfaction, this shall include the removal of the fence located along the property line of the Fluter Lots adjacent to West Coast Highway and any actions necessary to ensure that the signs comply with the Newport Beach Municipal Code, 3. Failure to Comply with Schedule for Abatement. Landowner and Fluter acknowledge and agree that a failure to comply with the Schedule for Abatement contained in Paragraph 2 above, inclusive of all subparagraphs, shall entitle and enable City to re -file the Complaint, name Fluter as an additional defendant in the Complaint, and take any other such enforcement actions as allowed by law. Additionally, Landowner and Fluter acknowledge and agree that should the Close of Escrow not occur on or before March 26, 2010, City shall be entitled to re -file the Complaint against Landowner, and take any other such enforcement actions as allowed by law, 223110 10169.3 H &O: #81:833 v5 2 4. Dismissal of the Complaint and Release of the Lis Pendens. Upon execution of this Agreement by the Parties, City shall dismiss the Complaint without prejudice and remove and release the Lis Pendens recorded against the Property. The Parties hereby agree and acknowledge that this Agreement may be recorded against the Property by the City at the time the City removes and releases the Lis Pendens. 5. moment of City's Administrative and Investigative Costs. Landowner and Fluter acknowledge and agree that City has incurred certain administrative and investigative costs associated with City's attempts to have the nuisances existing on the Property corrected, abated and /or remedied ( "Costs "). Within 30 days immediately following the date of the Close of Escrow for the Fluter Lots, Landowner agrees to pay City Five Thousand Dollars ($5,000.00) (the "Payment "). The Parties acknowledge and agree that the Payment by Landowner to City does not represent a complete reimbursement to City of all Costs associated with the City's staff time spent relating to matters involving the correction, abatement and /or remediation of the nuisance conditions on the Property. The Parties believe the Payment is fair and reasonable based upon the terms of this Agreement and the uncertainty of litigating the Complaint should the Parties have failed to reach this Agreement. All Parties acknowledge and agree that should the terms of this Agreement not be complied with that the City shall have the right to recover all Costs and the Payment will be deduced from the final total of all Costs owed to City. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be validly given or made only if in writing and delivered in person to an officer or duly authorized representative of the other Party or by United States mail, duly certified or registered (return receipt requested), postage prepaid, and addressed to the Party for whom intended, as follows: If to City: City of Newport Beach 3300 Newport Blvd, P.O. Box 1768 Newport Beach, CA 92658 Attention: Dave Kiff, City Manager Telephone No.: (949) 644 -3000 Facsimile No.: (949) 644 -3020 with a copy to: Office of the City Attorney 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 Attention: Kyle E. Rowen, Deputy City Attorney Telephone No.: (949) 644 -3131 Facsimile No.: (949) 644 -3139 2123110 10169.3 H &O: 481833 v5 3. If to Landowner: Mariner's Mile Gateway, LLC 1234 E. 17`h Street Santa Ana, CA 92701 Attention: Eric A. Nelson Telephone No.: (714) 245 -7400 Facsimile No. (714) 245 -7401 with a copy to: O'Neil LLP 19900 MacArthur Blvd., Suite 1050 Irvine, CA 92612 Attention: Dennis D. O'Neil Telephone No.: (949) 798 -0734 Facsimile No.: (949) 798 -0511 If to Fluter: Cannery Village Realty Inc. 2025 W. Balboa Blvd. Newport Beach, CA 92663 Attention: Russell E. Fluter Telephone No.: (949) 673 -3777 Facsimile No.: (949) 673 -3451 With a copy to: City National Bank 555 S. Flower Street, 25 °1 Floor Los Angeles, CA 90071 Attention: Lindsay Dunn Telephone No.: (213) 673 -8269 Facsimile No.: (213) 673 -8299 Any Party may from time to time, by written notice to the other as provided above, designate a different address which shall be substituted for that specified above. In the event that either Party shall convey its property to another person, such person shall notify the other Party of the proper notice address of such successor party and notices shall thereafter be sent thereto. If any notice or other document is sent by mail as aforesaid, the same shall be deemed served or delivered seventy -two (72) hours after mailing thereof as above specified. Notice by any other method shall be deemed served or delivered upon actual receipt at the address or fax number listed above (actual receipt of a facsimile to be evidenced by a transmission confirmation report, provided that the original notice and a copy of such report is sent to the noticed Party by mail within twenty -four (24) hours of transmission). 7. General Provisions, This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings of the Parties hereto, oral or written, are hereby superseded and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the Parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of 2123110 10169.3 H &O: N81833 v5 4 any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. In the event of any dispute hereunder, the sole and exclusive venue shall be in a court of competent jurisdiction in Orange County, California, and the Parties agree to submit to the jurisdiction of such court. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. This Agreement may be amended or modified only in writing executed by the authorized representative(s) of each Party. The Parties to this Agreement agree to complete and execute any further or additional documents which may be necessary to complete or ftlrther the terms of this Agreement. 8. Status of the Parties. This Agreement is not intended to create, and nothing herein contained shall be construed to create, an association, a trust, a joint venture, a partnership or other entity of any kind; or to constitute either Party as the agent, employee or partner of the other. 9. Preparation of This Agreement. This Agreement shall not be construed against the Party preparing it, but shall be construed as if all Parties prepared it. 10. Successors and Assigns; Covenants Running with the Land. This Agreement shall inure to the benefit of and obligate the Parties hereto and their respective successors and assigns. 11. Agreement Contingency. This Agreement is contingent upon approval by the City of a Nuisance Abatement Agreement for Lots 1 -6 on the Property. 12. Signatories. The signatories executing this Agreement represent that they are authorized to enter into this Agreement on behalf of the Party for whom they sign. [Signature page follows] 2/23/10 10169.3 H &O: 481833 vS IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. ATTEST: By: WNW Leilani . Brown, City Clerk APPROVED T By: -- Da 'd Hunt, City Attorney APPROVED AS TO FORM for Landowner By: Dennis D. O'Neil, Attorney at Law e1tPCLtie� Cone1r9A� \�j herew�� APPROVED AND ACKNOWLEDGED "CITY" CITY OF NEWPORT BEACH, a charter municipal corporation By: Alr Keith D. Curry, Mayor "LANDOWNER" MARINER'S MILE GATEWAY, LLC By: 4- Michael H. Mugel, Manager RED MOUNTAIN RETAIL GROUP, INC. By: f- Michael H. Mugel, CEO "FLUTER" RUSSELL E. FLUTER, TRUSTEE OF THE RUSSELL E. FLUTER SEPARATE PROPERTY TRUST ESTABLISHED JUNE 23, 2006 By $ Russell E. Fluter, Trustor and Trustee Allied Retail Partners, LLC By: I. Douglas T. Beiswenger, Managing Partner (Proper Notarization ofsignature as required and shall be attached) 2/23/10 10169.3. H &O: #81833 v5 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. ATTEST- By: Leilani 1. Broom, City Clerk APPROVED AS TO FORM: By: David R. Hunt, City Attorney APPROVED AS TO FORM for Landown BY Denn s D. O'Neil, Attorney at Law ,,XQCukE� C6r,,CvrrBnkVj �Oece,W'• \-1 APPROVED AND ACKNOWLEDGED Allied ers. LLC By: Douglas T. B 'swenger, Managing Partner "CITY" CITY OF NEWPORT BEACH, a charter municipal corporation f By: Keith D. Curry, Mayor lL LD�boWr1{L" eez l`novr1Tti11n1 QF_��t L GPe. ��. ��4b,te- Mtcr1E+ e�FL�t-, CFc� "LANDOWNER" MARINER'S MILE GATEWAY, LLC By: Michael 1-I. Mugel, Manager RED MOUNTAIN RETAIL GROUP, INC. By: Michael H. Mugel, CEO "FLUTER" RUSSELL E. FLUTER, TRUSTEE OF THE RUSSELL E. FLUTER SEPARATE PROPERTY TRUST ESTABLISHED JUNE 23, 2006 By: k Russell E. Fluter, Trustor and Trustee (Proper Notarization of signature is required and shall be attached) 223/10 10169.3 H &0: #81833 vi 6 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On –j .35.10, , before me, (a �¢F .1 n a Notary Public, personally appeared Q ?G,�C , C .: _�.n— C p— who proved to me on the basis of satisfactory vidence to b —T ry person(s) whose name(s) is /are subscribed to the within instrument, and acknowledged to me that he /shekhey executed the same in his/hen/their authorized capacity(ies), and that by his /herlthen• signature(s) on the instrument the perso*), or the entity upon behalf of which the person(s) 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. Public STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On (-)• 615 • \0 , before me, a Notary Public, personally appeared (Y) "or)Ctu }\ cnCc'A who proved to me on the basis of satisfactory evidence to be the person(o. whose nanre(s) is /aFe subscribed to the within instrument, and acknowledged to me that he /sheHhey executed the same in his/hei;Wieit. authorized capacity(ies), and that by hisAwr/their signature(s) on the instrument the person(-s), or the entity upon behalf of which the person(s) 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. `- -Notary Public 2/23110 10169.3 H&C): 481833 v5 ASHLEY FRrFZ Commbpon M 1666885 $ " QMy Comm. Boors Apr 17, 201 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the dale first above written. ATTEST: By: � Leitani i. Brown. City Clerk APPROVED AS TO FORM: By: 4 David R. Hunt, City Attorney APPROVED AS TO FORM for Landowner By: _ Dem3is D. O'Neil, Attorney at Law APPROVED AND ACKNOWLEDGED Allied Retail Partners, LLC ;'CITY" CITY OF NEWPORT BEACH, a charter municipal corporation By: t Keith D. Curry, Mayor �t?CE�;k`tl "LANDOWNER" MARINER'S MILE GATEWAY, LLC By: Michael H. Mugel, Manager RED MOUNTAIN RETAIL GROUP, INC. By. Michael H. Mugel, CEO "FLUTER" RUSSELL E. FLUTER, TRUSTEE OF THE RUSSELL E. FLUTER SEPARATE PROPERTY TRUST ESTABLISHED JUNE 2 2006 By: Russel 1 E. Fluter, Prustor and Trustee By: Douglas T. Beiswenger, Managing Partner (Proper Notarization of signature is required and shall be attached) 223110 10169.3 H &O: H1833 v5 6 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On 2 - 2'f — 1 O before me, v IC—t—; L, )eepN C-)C- _ a Notary Public, personally appeared 7vgSEL ///TF3 /K , who proved to me on the basis of satisfactory evidence to be the person(() whose name(j) isfer& subscribed to the within instrument, and acknowledged to me that he /shaRirep executed the same in his/herA4teir authorized capacity(joe), and that by hisAterMv -+ signature(j) on the instrument the person(j), or the entity upon behalf of which the person(/) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. hand and off ial seal. VICKI L. RANCK F COMM. #1782272 n U NOTARY PUBLIC- CALWOAWA a ORANGE COUNTY O My Comm. Expires GewmD.rA xm1 STATE OF CALIFORNIA ss COUNTY OF ORANGE ) On c 2( - 9U before me, QSYno.-A. �c t� , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ subscribed to the within instrument, and acknowledged to me that he/she /they executed the same in hislher /their authorized capacity(jes), and that by his/herftheir signature(4on the instrument the person(s), or the entity upon behalf of which the person(s) 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. y Public 2/23110 10169.3 H&-O: X81833 v5 7 r r • RECORDED BY L.T.C. OFFICIAL BUSINESS Document Exempt from Recording Fees Pursuant to Government Code § 6103 When Recorded Mail to: City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: Office of the City Attorney Assessor's Parcel Numbers: his Document was electronically recorded b Lawyers Title Newport Beach Recorded in Official Records, Orange Coun To Daly, Clerk- RecQrde NO FE 2010000095458 10:45am 0310111 05404W024 -- .00 0.00 D.00 9.00 0.00 0.00 0.00 (SPACE ABOVE THIS LINE. FOR RECORDER'S USE) 049 - 280 -39, 049- 280 -40, 049- 280 -51, 049- 280 -53, 049- 280 -55, 049 - 280 -56, 049 - 280 -57, 049 - 280 -58, 049-280-59,049-280-60, 049- 280 -61, 049 - 280 -62, 049- 280 -63, 049 - 280 -71, 049 - 280 -72, and 049 - 280 -73. NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION [LIS PENDENS] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Recording requested by CITY OF NEWPORT BEACH When Recorded Mail to: OFFICE OF THE CITY ATTORNEY CITY OF NEWPORT BEACH DAVID R. HUNT, City Attorney, SBN 110675 MYNETTE D. BEAUCHAMP, Assistant City Attorney, SBN 156194 KYLE E. ROWEN, Deputy City Attorney, SBN 232351 CATHERINE M. WOLCOTT, Deputy City Attorney, SBN 169679 3300 Newport Blvd. P. O. Box 1768 Newport Beach, CA, 92658 -8915 Telephone: (949) 644 -3131 Facsimile: (949) 644 -3139 Attorneys for Plaintiff CITY OF NEWPORT BEACH [Exempt from filing fees per Government Code Section §6103] SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City Plaintiff, vs. Mariners Mile Gateway, LLC, a California Limited Liability Company; Red Mountain Retail Group, Inc., a California Corporation; Allied Retail Partners, LLC, a California Limited Liability Company; and DOES 1 THROUGH 100, Defendants. Case No.: 30-2010-00343479 Assigned for All Purposes To: Judge: Robert. J. Moss Dept: C23 NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION [LIS PENDENS] [Assessor's Parcel No's. 049 - 280 -39, 049 - 280 -40, 049- 280 -51, 049 - 280 -53, 049- 280 -55, 049 - 280 -56, 049 - 280 -57, 049-280-58,049-280-59, 049- 280 -60, 049- 280 -61, 049 - 280 -62, 049 - 280 -63, 049-280-71, 049-280-72, and 049 -280- 73] Plaintiff, the CITY OF NEWPORT BEACH, withdraws the Notice of Pendency of Action (Lis Pendens) recorded on February 10, 2010, at 2:17 p.m., in the Office of the County Recorder of the County of Orange, State of California, Instrument No. 2010000066297. Plaintiff is the party who recorded the above Notice of Pendency of Action. 1 NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION [LIS PENDENS] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This action concerns the real property located at 200 -600 West Coast Highway, Newport Beach, California, 92663, Assessor's Parcel No. 049 - 280 -39, 049 - 280 -40, 049- 280-51, 049 - 280 -53, 049 - 280 -55, 049- 280 -56, 049- 280 -57, 049 - 280 -58, 049 - 280 -59, 049- 280-60, 049- 280 -61, 049 - 280 -62, 049 - 280 -63, 049 - 280 -71, 049 - 280 -72, and 049- 280 -73. This Notice of Withdrawal of Notice of Pendency of Action is recorded pursuant to Code of Civil Procedure section 405.50. DATED: February 2010 OFFICE OF THE CITY ATTORNEY CITY OF NEW RT EACH By: vid 5. Hunt, City Attorney Myne a D. Beauchamp, Assistant City Attorney Kyle E. Rowen, Deputy City Attorney Catherine M. Wolcott, Deputy City Attorney Attorneys for Plaintiff NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION [LIS PENDENS] z 0 m m O m 1 2 �O7 D D r O m z O m rn O n m z 0 m z U) N N N N N N N N N s .... co V A Cn A W N O CO 00 V A CT A W N co (b V A Cr A W N ' Q n M i' hn z ic- �o o 1 •; 3 W � CD 0 n 3 m O OFFICIAL BUSINESS Document Exempt from Recording Fees Pursuant to Govt. Code §§ 6103 and 27783 WHEN MAIL TO: City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn:-.. Office of the City Attorney Assessor's Parcel Numbers: his Document was electronically recorded b Lawyers TitleNewport Beach ecorded in Official Records, Orange Coun _om Daly, Clerk- Recorde 1 210��lillllllilll�p�iiill Iy0 FEE �_ 1111 2010000093757 02:17gm 02/26110 3 401 Al2 14 00 0.00 0.00 0.00 39.00 0.00 0.00 0.00 I ABOVE THIS LINE FOR RECORDER'S USE) 049 - 280 -39; 049 - 280 -40; 049 - 280 -51; 049 - 280 -53; 049 - 280 -55; 049 - 280 -56; 049 - 280 -57; 049 - 280 -58; 049 - 280 -59; 049 - 280 -60; 049 - 280 -61; 049 - 280 -62; 049 - 280 -63; 049 - 280 -71; 049 - 280 -72; and 049 - 280 -73 NUISANCE ABATEMENT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Exempt from the payment of the recording fee pursuant to Government Code §§ 6103 and 27783 NUISANCE ABATEMENT AGREEMENT This NUISANCE ABATEMENT AGREEMENT ( "Agreement ") is entered into on February 23, 2010, by and among the City of Newport Beach, a California municipal corporation and charter city ( "City "), Mariner's Mile Gateway, LLC, a California limited liability company, and Red Mountain Retail Group, Inc., a California Corporation ( "Landowner "), and VBAS Properties, Inc, A California Corporation ( "Watson "). City, Landowner and Watson are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Landowner is the fee owner of a 2.57 -acre parcel of real property (the "Property ") located at 200 -600 West Coast Highway described as Lots 1 -17 inclusive of Tract No. 1210, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 40, pages 45 and 46 of Miscellaneous Maps, records of said County, California (Assessor Parcel Numbers: 049 - 280 -39; 049 - 280 -40; 049 - 280 -51; 049 - 280 -53; 049- 280-55; 049 - 280 -56; 049 - 280 -57; 049 - 280 -58; 049 - 280 -59; 049 - 280 -60; 049- 280 -61; 049 -280- 62; 049 - 280 -63; 049- 280 -71; 049 - 280 -72; and 049 - 280 -73). There are eight unoccupied detached retail - commercial structures on the Property. B. City has filed a complaint in the Orange County Superior Court, Case No. 30 -2010- 00343479- CU- OR -CJC against Landowner for damages, injunctive and equitable relief for violations of certain provisions of the Newport Beach Municipal Code alleging the Property, and structures thereon, constitutes a public nuisance and a threat to the public health, safety and welfare of the City (the "Complaint'). The Complaint was filed on February 9, 2010, but has not been served on Landowner as the Parties have instead initiated negotiations regarding this Agreement. C. City has also recorded a Notice of Pendency of Action (Lis Pendens) with the Orange County Recorder as Instrument No. 2010000066297 on the Property giving notice of the pendency of the Complaint. D. Landowner has established an escrow with Lawyers Title Insurance Corporation to sell Lots 1 -6 of the Property to Watson ( "Watson Lots "). The remaining Lots 7- 17 of the Property are in escrow to be purchased by another buyer. 2123/10 10169.3 H &O: #81923 v4 F. Watson has agreed to make necessary corrections on the Watson Lots to abate the public nuisances currently existing thereon and otherwise comply with the Newport Beach Municipal Code. AGREEMENT Based on the foregoing recitals and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Recitals. City, Landowner and Watson accept the above recitals as true and correct and incorporate them herein as if they were fully restated in this Agreement. 2. Schedule for Abatement. Upon the close of escrow ( "Close of Escrow ") for the Watson Lots, estimated to occur on or before March 9, 2010, Watson hereby agrees to the following schedule for the correction, abatement, and /or remediation of the public nuisances: (a) During the period of Sixty (60) days immediately following the date of the Close of Escrow, Watson shall commence and complete those actions necessary to: (1) repair, prune, clean up and maintain all landscaping on the Watson Lots; (2) remove all rubbish, trash, debris, rubble, and the like from the Watson Lots, and the interior of all structures thereon; (3) cover all signs on the Watson Lots; and (4) secure and maintain the Watson Lots, and all structures thereon. (b) During the period of Ninety (90) days immediately following the date of the Close of Escrow, Watson shall submit the all required plans to the City and implement such actions necessary to correct, abate and /or remedy the public nuisances. (c) Within One Hundred and Eighty (180.) days immediately following the date of the Close of Escrow, the correction, abatement, and /or remediation of all public nuisances alleged by the City in the Complaint shall be accomplished to the City's satisfaction, this shall include the removal of the fence located along the property line of the Watson Lots adjacent to West Coast Highway and any actions necessary to ensure that the signs comply with the Newport Beach Municipal Code. (d) Notwithstanding the provisions in Section 2(c), if within One Hundred and Eighty (180) days immediately following the date of the Close of Escrow, the buildings on the Watson Lots have been demolished and a building permit has been issued by the City for construction of a new building or buildings on the Watson Lots, the City will allow a security fence to remain on the Watson Lots until the new building or buildings are constructed and occupied. 3. Failure to Comnply with Schedule for Abatement. Landowner and Watson acknowledge and agree that a failure to comply with the Schedule for Abatement contained in Paragraph 2 above, inclusive of all subparagraphs, shall entitle and enable City to re -file the Complaint, name Watson as an additional defendant in the Complaint, and take any other such enforcement actions as allowed by law. Additionally, Landowner and Watson acknowledge and agree that should the Close of Escrow not occur on or before March 26, 2010; City shall be 2/23110 101693 H&-O- 981923 v4 2 entitled to re -file the Complaint against Landowner, and take any other such enforcement actions as allowed by law. 4. Dismissal of the Complaint and Release of the Lis Pendens. Upon execution of this Agreement by the Parties, City shall dismiss the Complaint without prejudice and remove and release the Lis Pendens recorded against the Property. The Parties hereby agree and acknowledge that this Agreement may be recorded against the Property by the City at the time the City removes and releases the Lis Pendens. 5. Payment of City's Administrative and Investigative Costs. Landowner and Watson acknowledge and agree that City has incurred certain administrative and investigative costs associated with City's attempts to have the public nuisances existing on the Property corrected, abated and /or remedied ( "Costs "). Within 30 days immediately following the date of the Close of Escrow for the Watson Lots, Landowner agrees to pay City Five Thousand Dollars ($5,000.00) (the "Payment "). The Parties acknowledge and agree that the Payment by Landowner to City does not represent a complete reimbursement to City of all Costs associated with the City's staff time spent relating to matters involving the correction, abatement and/or remediation of the nuisance conditions on the Property. The Parties believe the Payment is fair and reasonable based upon the terms of this Agreement and the uncertainty of litigating the Complaint should the parties have failed to reach this Agreement. All Parties acknowledge and agree that should the terms of this Agreement not be complied with that the City shall have the right to recover all Costs and the Payment will be deduced from the final total of all Costs owed to City. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be validly given or made only if in writing and delivered in person to an officer or duly authorized representative of the other Party or by United States mail, duly certified or registered (return receipt requested), postage prepaid, and addressed to the Party for whom intended, as follows: If to City: City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 Attention: Dave Kiff, City Manager Telephone No.: (949) 644 -3000 Facsimile No.: (949) 644 -3020 with a copy to: Office of the City Attorney 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 Attention: Kyle E. Rowen; Deputy City Attorney Telephone No.: (949) 644 -3131 Facsimile No.: (949) 644 -3139 223110 10169.3 H &O: 481923 v4 If to Landowner: Mariner's Mile Gateway, LLC 1234 E. 17`7i Street Santa Ana, CA 92701 Attention: Eric A. Nelson Telephone No.: (714) 245 -7400 Facsimile No. (714) 245 -7401 with a copy to: O'Neil LLP 19900 MacArthur Blvd., Suite 1050 Irvine, CA 92612 Attention: Dennis D. O'Neil Telephone No.: (949) 798 -0734 Facsimile No.: (949) 798 -0511 If to Watson: Eva Watson — CEO VBAS Properties, Inc. Alt Financial Network 5 Hutton Centre Dr., Suite 110013 Santa Ana, CA 92707 Attention: Albert Hanna Telephone No.: (714) 751 -6666 Facsimile No.: (714) 751 -4660 Any Party may from time to time, by written notice to the other as provided above, designate a different address which shall be substituted for that specified above. In the event that either Parry shall convey its property to another person, such person shall notify the other Party of the proper notice address of such successor party and notices shall thereafter be sent thereto. If any notice or other document is sent by mail as aforesaid, the same shall be deemed served or delivered seventy -two (72) hours after mailing thereof as above specified. Notice by any other method shall be deemed served or delivered upon actual receipt at the address or fax number listed above (actual receipt of a facsimile to be evidenced by a transmission confirmation report, provided that the original notice and a copy of such report is sent to the noticed Party by mail within twenty -four (24) hours of transmission). 7. General Provisions. This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings of the Parties hereto, oral or written, are hereby superseded and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the Parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. In the event of any dispute hereunder, the sole and exclusive venue shall be in a court of competent jurisdiction in Orange County, California, and the Parties agree to submit 2123110 10169.3 H &O: 1181923 v4 to the jurisdiction of such court. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions hereof This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. This Agreement may be amended or modified only in writing executed by the authorized representative(s) of each Party. The Parties to this Agreement agree to complete and execute any further or additional documents which may be necessary to complete or further the tenns of this Agreement. 8. Status of the Parties. This Agreement is not intended to create, and nothing herein contained shall be construed to create, an association, a trust, a joint venture, a partnership or other entity of any kind, or to constitute either Parry as the agent, employee or partner of the other. 9. Preparation of This Agreement. This Agreement shall not be construed against the Party preparing it, but shall be construed as if all Parties prepared it. 10. Successors and Assiens, Covenants Running with the Land. This Agreement shall inure to the benefit of and obligate the Parties hereto and their respective successors and assigns. 11. Agreement Contingency. This Agreement is contingent upon approval by the City of a Nuisance Abatement Agreement for Lots 7 -17 on the Property. 12. Signatories. The signatories executing this Agreement represent that they are authorized to enter into this Agreement on behalf of the Party for whom they sign. [Signature page follows] 2/23/10 10169.3 H &O: 481923 v4 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. ATTEST:O� Leilani 1. Brown, City Clerk APPROVED B �' B,1 Da . d Hunt, City Attorney APPROVED AS TO FORM for Landowner .e.e10c0AeA eoncuc w? � 0 Dennis D. O'Neil, Attorney at Law xx2 "CITY" CITY OF NEWPORT BEACH, a charter municipal corporation Keith D. Curry, Mayor 0 "LANDOWNER" MARINER'S MILE GATEWAY LLC execu�ea C6 ^che ew,�v By: Michael H. Mugel, Manager RED MOUNTAIN RETAIL GROUP INC: 0t eXQ( u +e ConCur rev) kk�k V�erecd'�h Michael H. Mugel, CEO Cancuccen }`y �nerecjA �e><ecukeA "WATSON" Eva Watson; an Individual APPROVED AND ACKNOWLEDGED Allied Retail Partners, LLC W- e )tecuhec� ConCU`i E n }\\l `�e`eW }�1 By: Douglas T. Beiswenger, Managing Partner (Proper Notarization of signature is required and shall be attached) 2123110 10169.3 H &O: 481923 vA IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. +Q)Z,t?CUked (�oficurfen04 hefaw k-h ATTEST: Ik Leilani I. Brown, City Clerk APPROVED AS TO FORM: By: David R. Hunt, City Attorney APPROVED AS TO FORM for Landowript By: Dennis b. O'Neil, Attorney at Law APPROVED AND ACKNOWLEDGED Allij tiers. L By: Dduglas T. eiswenger, Managing Partner 2123110 101693 H &O: 981923 v4 "CITY" CITY OF NEWPORT BEACH, a charter municipal corporation By: Keith D. Curry, Mayor tc lb1D cwN�.. Rio rn��tm,•t iZt =iolu &¢gyp, wL. 1 cHr V f3EU t C- "LANDOWNER" MARINER'S MILE GATEWAY, LLC By: Michael H. Mugel, Manager RED MOUNTAIN RETAIL GROUP, INC. By: Michael H. Mugel, CEO (Proper Notarization of signature is required and shall be attached) STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On 4 S 1 C , before me, {1�,>,21(' t ^ �-"- , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(&) whose name(-.) is /arm subscribed to the within instrument, and acknowledged to me that he /ahe/the3c executed the same in his/herkheir- authorized capacity(ieg), and that by his/her4heir signature(&) on the instrument the person(s), or the entity upon behalf of which the persons 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. '-Ni)fa'ry Public STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On ) C95 •1C , before me, { 1 v 11¢ .� t r. a Notary Public, personally appeared mY j( f X� i, 'N. who proved to me on the basis of satisfactory evidence to be the persor,(e) whose names) is /are subscribed to the within instrument, and acknowledged to me that he /sh -11hey executed the same in his /hee4heir authorized capacity(ies), and that by his/herfth it signature(s) on the instrument the person(4,, or the entity upon behalf of which the person(&) acted; executed the instrument. I certifv 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. � � Notary Public 2/23110 10169.3 11 &0: #81923 v4 i r PIT/ CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of C C(LL CC' � On before me, xA. {tl\ Gate t ere Insert Name and de of the Officer personally appeared YI1t� Narne(a) 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 execuied the same in his/her /their authorized A*M FR1rZ ca+rrMnwn a ilseeaes rodary PiCYc - Cafitotrra _ Aap� County Comm 60" Apr 17,201 capacity(ia and that by, his/her /their signature* on the instrument the person(# , or the entity upon behalf of which the person.W 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 se I. I � Signatures Piece Notary Seat Above �j Signature OTNOtary Public OPTIONAL Though the information below is not required by taw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 4�Y"X Oi O'YGfN-k- t C—),,* ,. 'IN— Document Date: c_-� .�X3 \lam Number of Pages: Signer(s) Other Than Named Above: Capaclty(ies) Claimed by Signer(s) Signer's Name: ❑ Individual • Corporate Officer — Title(s): • Partner —❑ Limited ❑ General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RF TMUMBPRINT OF SIGNER Signer's Name: • individual • Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHITTHUMBPRINT OF SIGNER 02007 Naeorel�Ndery ASSad0On•9350 De Solo Ave., P.O.BOx 2402•Chat&,mN1, CA 91313.2402•wurveNetlonalNaleryorg Item e8907 Reortler.CallTdl -Free 1500578.8827 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. ATTEST: By: Leilam I. Brown, City Clerk APPROVED AS TO FORM: By: David R. Hunt, City Attorney APPROVED AS TO FORM for Landowner By: Dennis D. O'Neil, Attorney at Law "CITY" CITY OF NEWPORT BEACH, a charter municipal corpor4tion Keith D. Curry, Mayor e_.xecokec CGnC ')rren }W mere u �M "LANDOWNER" MARINER'S MILE GATEWAY, LLC Ak By: Michael H. Mugel, Manager RED MOUNTAIN RETAIL GROUP, INC. By: Michael H. Mugel, CEO "WATSON" ` \1JA-5> Jano Jade ed CEO APPROVED AND ACKNOWLEDGED 1, Wp +' v Allied Retail Partners, LLC B y Douglas T. Beiswenger, Managing Partner (Proper Notarization of signature is required and shall be attached) 2123110 10169.3 H &O: #91923 v3 6 STATE OF CALIFORNIA ss COUNTY OF ORANGE ) On �� nAnr�; Z5, 'iol0 , before me, r� r a Notary Public, personally appeared Jan who proved to me on the basis of satisfactory evidence to be the person($) whose name(A) is /ap6 subscribed to the within instrument, and acknowledged to me that 0 /she /tlXy executed the same in h "er /Vir authorized capacity(i�), and that by his/her /t�kir signature($ on the instrument the person�5), 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. Notai< u Iii STATE OF CALIFORNIA ss COUNTY OF ORANGE ) +B--- oaInlMNen 01812M ft" Public • Mforeu OW90 County Expires S 12.2092 On , before me, , a Notary Public, personally appeared 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. 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. Notary Public 223/10 10169.3 H &O: #61923 v4 GOVERNMENT CODE SECTION 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: NAME OF NOTARY: Sandra Rabadi DATE COMMISSION EXPIRES: September 12, 2012 COUNTY WHERE BOND IS FILED: Orange COMMISSION NO.: 1812926 VENDOR NO.: NNAI PLACE OF EXECUTION: Newport Beach, CA DATE: 2/26/10 Lawyers Title,Califomia --_ STATE OF CALIFORNIA ss COUNTY OF ORANGE ) On v l o before me,�ub d� /! uzrr nJ , c ✓cam allotary Public, personally appeared --,[� , who proved to me on the basis of satisfactory evidence to be the person(s) whose named is /a)W subscribed to the within instrument, and acknowledged to me thatlre /she/ key executed the same in (/her /tWiir authorized capacity(i e), and that by jri's/her /tk6ir signatures on the instrument the person(, or the entity upon behalf of which the person(,O acted, executed the instrument. 1 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. I M=R N Notary Public 6�-•[ 6.i �