HomeMy WebLinkAboutAGMT - Terra Funding - Bixby Ranch LLC & PCPI Bixby LP (Termination of Maintenance Agreement and Agreement Regarding Ongoing Maintenance)RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
PCPI Bixby, LP
c/o Parallel Capital Partners
4105 Sorrento Valley Blvd.
San Diego, CA 92121
Attn: Jim Ingebritsen
(Space above this line for Recorder's use)
TERMINATION OF MAINTENANCE AGREEMENT
AND
AGREEMENT REGARDING ONGOING MAINTENANCE
THIS TERMINATION OF MAINTENANCE AGREEMENT AND AGREEMENT
REGARDING ONGOING MAINTENANCE (this "Agreement") is made and entered into as of
February 2022, by and between TERRA FUNDING — BIXBY RANCH, LLC, a Delaware
limited liability company ("Ground Lessor"), PCPI BIXBY, LP, a Delaware limited partnership
("Ground Lessee" and together with Ground Lessor, "Bixby"), and CITY OF SEAL BEACH, a
California charter city ("City).
RECITALS
A. Ground Lessor is the owner of certain real property located in the City of Seal
Beach, County of Orange, State of California, more particularly described on Exhibit A attached
hereto and incorporated herein by this reference (the "Property"). The Property includes Parcels
1, 2, 3 and 4, as shown on Exhibit C attached hereto and incorporated herein by this reference.
B. Ground Lessee is the holder of a 99 -year leasehold interest in the Property, pursuant
to that certain Ground Lease dated as of January 10, 2013, a memorandum of which was recorded
in the Official Records of Orange County, California (the "Official Records") on May 16, 2013,
under Instrument No. 2013000297764 (as amended from time to time, the "Ground Lease").
C. The City is the owner of that certain real property located in the City of Seal Beach,
County of Orange, State of California, more particularly described on Exhibit B attached hereto
and incorporated herein by this reference (the "Old Ranch Parkway"). Old Ranch Parkway is
also identified as Parcel 6, as shown on Exhibit C attached hereto and incorporated herein by this
reference.
D The City and Bixby Ranch Company, a California limited partnership (a
predecessor owner of the Property), entered into that certain Maintenance Agreement, dated as of
September 24, 1987, and recorded in the Official Records on September 30, 1987, as Instrument
No. 87-551047 (the "Maintenance Agreement"). The Maintenance Agreement runs with the land
and is, therefore, currently between Bixby (i.e., as of the date hereof, Ground Lessor and Ground
Lessee) and the City, each of which is identified as an "Owner" under the Maintenance Agreement.
E. Because the circumstances and uses of the Property and Old Ranch Parkway have
changed significantly since the date of the Maintenance Agreement, the parties now desire (i) to
terminate the Maintenance Agreement, and (ii) to document their new agreement with respect to
the maintenance of certain improvements located on Old Ranch Parkway. All capitalized terms
used but not defined in this Amendment, shall have the meanings assigned to those terms in the
Maintenance Agreement.
THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. Termination of Maintenance Agreement. The Maintenance Agreement is hereby
terminated and shall be of no further force or effect. Each party hereby waives any claim it may
have had against the other for any breach of, or failure to perform under, the Maintenance
Agreement.
2. Old Ranch Parkway Ownership. The parties hereby confirm that the dedication of
Old Ranch Parkway that was made to the City on Parcel Map 86-280 is and was intended to be a
dedication of the fee interest in Old Ranch Parkway to the City. Therefore, for the avoidance of
doubt, the parties acknowledge and agree that Old Ranch Parkway is owned, in fee, by the City,
and any other interpretation of the dedication of Old Ranch Parkway is not correct.
3. New Maintenance Obligations.
a. Road: The road (from and including the curbs and sidewalks on either
side of the road) that is located on Parcel 6 (the "Road") is owned by and
shall be maintained by the City, and the City shall bear all costs of such
maintenance.
b. "Landscape Maintenance Area" means (i) the median strip currently located
at the southern end of Old Ranch Parkway, where Old Ranch Parkway
meets Seal Beach Boulevard, and (ii) the strip (not to exceed ten (10) feet
in width) of landscaped area located along the northern boundary of Old
Ranch Parkway between the Road and the Wall (which borders the Orange
County Flood Control drainage ditch). The Landscape Maintenance Area
is highlighted in yellow on Exhibit C attached hereto. For the avoidance of
doubt, the Road, the Wall (defined below) and any median strip located on
Seal Beach Boulevard are not included within the Landscape Maintenance
Area." The Landscape Maintenance Area is owned by, and shall be
maintained by, the City, except as follows: Bixby shall be responsible for
maintaining, and bearing the costs of maintaining, operating, irrigating,
and/or replacing if necessary, the trees and/or shrubs that are located or
planted in the Landscape Maintenance Area, and associated irrigation
systems and utilities, from time to time, as reasonably determined to be
2
necessary by Bixby. For the avoidance of doubt, (x) Bixby shall have no
obligations with respect to the median strip located on Seal Beach
Boulevard, across from Parcels 3 and 4 shown on Exhibit C attached hereto,
and (y) the City shall be responsible for insuring against losses and
liabilities relating to the Landscape Maintenance Area, and Bixby's
agreements hereunder to maintain, operate, irrigate and/or replace certain
elements on the Landscape Maintenance Area shall not include any
obligation to insure or assumption of liability for the Landscape
Maintenance Area. The City shall indemnify, defend and hold harmless
Bixby in connection with any losses or liabilities incurred by Bixby with
respect to the Landscape Maintenance Area, except to the extent arising out
of the gross negligence or willful misconduct of Bixby in performing its
obligations hereunder.
c. "Wall" means the wall that is currently located on Parcel 6 between the
flood control channel and Parcel 1. The Wall is owned by, and shall be
maintained by, the City, except as follows: Bixby shall be responsible for
maintaining the Wall surface facing Parcel 1 and the City shall be
responsible for maintaining the Wall surface facing the flood control
channel. The costs of such maintenance shall be borne by Bixby and the
City, respectively. The City shall be responsible for carrying out all other
maintenance and repair of the Wall, provided the cost of such other
maintenance repair and replacement of the Wall for public safety reasons
shall be shared evenly by Bixby and the City. Notwithstanding the
foregoing, Bixby shall have no obligations to pay the costs of any elective
alterations or replacements of the Wall performed by the City for reasons
other than to protect public safety. The determination that the Wall must be
repaired or replaced for public safety reasons at the parties' joint cost shall
be made at the sole discretion of the City's Public Works Director, who
shall provide advance written notice of such determination and the reasons
therefor, along with the estimated cost of the work, to Bixby. Bixby shall
be responsible for reimbursing fifty percent (50%) of the City's actual cost
of such repair or replacement.
4. Notices. All notices, statements or other communications (collectively, "Notices")
given by either party to the other hereunder shall be in writing, shall be (A) sent by
United States certified or registered mail, postage prepaid, return receipt requested
("Mail"), (B) delivered by a nationally recognized overnight courier, or (C)
delivered personally. Any Notice shall be sent, transmitted, or delivered, as the
case may be, to a party at its address set forth below, or to such other place as such
party may from time to time designate in a Notice to the other party. Any Notice
will be deemed given (i) three (3) days after the date it is posted if sent by Mail,
(ii) the date the overnight courier delivery is made, or (iii) the date personal delivery
is made. Notices shall be sent:
To Ground Lessee: PCPI Bixby LP
c/o Parallel Capital Partners
4105 Sorrento Valley Blvd.
San Diego, California 92121
Attn: Jim Ingebritsen
To Ground Lessor: PCPI Terra Funding -Bixby Ranch, LLC
841 Bishop Street, Suite 1700
Honolulu, Hawaii 96813
Attn: Kim Aquino
To City: City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attn: City Clerk
5. Estoppel Certificates. In the event that Ground Lessee or City shall request a
statement from the other as to customary matters with respect to this Agreement, Ground Lessee
and City each agrees to deliver such statement in a commercially reasonable form to the party
requesting the same, within ten (10) business days of the request. Under the provisions of the
statement, the responding party shall certify (i) that no costs, expenses or reimbursements are due
from the requesting party, pursuant to this Agreement, (ii) that to the knowledge of the responding
party, the other party has performed all of its obligations and is not in default under this Agreement,
with such exceptions, if any, as are noted, (iii) that this Agreement is in full force and effect (if
true), and is unmodified, except as noted, and (iv) that any party receiving the certificate may rely
on the certificate for the stated purpose.
6. Attorney's Fees. In the event a party hereto institutes any legal action or
proceeding for the enforcement of any right or obligation herein contained, the prevailing party
shall be entitled to recover its costs and reasonable attorneys' fees incurred in the preparation and
prosecution of such action or proceeding, including, but not limited to, all post judgment and
appellate fees and costs.
7. Successors in Interest. This Agreement shall be recorded in the office of the
Orange County Recorder and shall be binding upon and enforceable against each Party's
successor in interest.
8. Counterparts. This document may be executed in counterparts, each of which will
be deemed to be an original, but all of which together will constitute one instrument.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties have executed this Termination of Maintenance
Agreement and Agreement Regarding Ongoing Maintenance as the date first set forth above.
BIXBY:
TERRA FUNDING - BIXBY RANCH, LLC,
a Delaware limited liab' ity company
By:
Name: . A ino
Title: Authorize i ng atory
PCPI BIXBY, LP,
a Delaware limited partnership
By: PCPI Bixby Office Park, LLC,
a Delaware limited liability company
Its general partner
BY: r/f� �d�G X
Name: I/'/ll'�'I�(. 6 u "/L
Title: C�o
[Signatures continue on next page]
Signature Page to Termination of Maintenance Agreement
and New Maintenance Agreement
STATE OF HAWAII
SS
CITY & COUNTY OF HONOLULU
On this 25th day of January, 2022, before me appeared Kimberly F. Aquino, to me
personally known, who, being by me duly sworn, did say that she executed the foregoing
instrument as her free act and deed, and if applicable, in the capacity shown, having been duly
authorized to execute such instrument in such capaci
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Notary Certification
Joy M. Hessenflow _
Name of Notary Public (Printed or Typed)
My Commission Expires: 12/17/22
Doc. Date: Undated # Pages: 13
Name: Joy M. Hessenflow First Circuit
Doc. Description: Termination of Maintenance Agreement
Bixby Ranch City of Seal Beach
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of the document.
State of ��rh
County oft! �1G
On
/ before me, Z0rfl- ' 4G , Notary Public, personally appeared
i xrer- , w 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 6 4r,7;11 -that the
foregoing is true and correct.
Witness my hand a o ial seal. yE LORNaT. IGNACIO
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Notary Public - California
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Signature (Seal) r Commission # 2364743
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CITY:
CITY OF SEAL BEACH, a California charter
city
By: N L
All R. Ingram
ty Manager
City Clerk
Approved as to form:.
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City Attorney
Signature Page to Termination of Maintenance Agreement
and New Maintenance Agreement
ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of
County of W1 411 U 5 )
On2%Z ,before me,o� QUIZ a Notary Public,
personally appeared , who proved tome on the basis of satisfactory evidence
to be the person whose na' a is subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of CQ,LftI a that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
YVONNE RUIZ
Notary Public - California
Z Los Angeles County
Commission ff 2359095
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CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT
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I certify under PENALTY OF PERJURY under the laws of the
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WITNESS my hand and official seal. o Notary Public California o R
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Signature
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Optional Information
Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an
unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of
containing pages, and dated
The signer(s) capacity or authority is/are as:
❑ Individual(s)
❑ Attorney -in -Fact
❑ Corporate Officer(s) /
Title(s)
❑ Guardian/Conservator
❑ Partner -Limited/
❑ Trustee(s)
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representing:
Name(s) of Person(s) or Entity(les) Signer Is Representing
Method of Signer Identification
Proved to me on the satisfactory evidence:
Q for identification O credible witness(es)
Notarial event is detailed in notary journal on:
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Other
❑ Additional Signer(s) ❑ Signer(s)Thumbprint(s)
0 Copyright 2007-2017 Notary Rotary, PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form.
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF
ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCELS 1, 2, 3 AND 4 OF PARCEL MAP 86-280, IN THE CITY OF SEAL BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 226
PAGES 9 TO 14, INCLUSIVE, OF PARCELS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION OF SAID PARCEL 1 DESCRIBED IN THE
GRANT DEED TO ORANGE COUNTY '><RANSPORTATION AUTHORITY, A PUBLIC
CORPORATION, RECORDED APRIL 29, 2010 AS INSTRUMENT NO. 201000020069& OF
OFFICIAL RECORDS, SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL 1, BEING THE
SOUTHERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID PARCEL
MAP AS HAVING A BEARING AND DISTANCE OF "NORTH 050 12'32" WEST, 5.76
FEET;" THENCE SOUTH 37° 27'33" WEST, ALONG THE SOUTHEASTERLY LINE OF
SAID PARCEL 1, A DISTANCE OF 8.54 FEET; THENCE CONTINUING ALONG SAID
SOUTHEASTERLY LINE, SOUTH 45° 03' 20" WEST, A DISTANCE OF 3.49 FEET;
THENCE DEPARTING SAID SOUTHEASTERLY LINE, NORTH O1° 22'01" WEST, A
DISTANCE OF 15.45 FEET TO THE BEGINNING OF A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 28.00 FEET AND HAVING AT
SAID POINT A RADIAL LINE WHICH BEARS NORTH 640 30' 23" EAST; THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 130 52'33", A DISTANCE OF 6.78 FEET; THENCE SOUTH 54'43'35" WEST,
A DISTANCE OF 2.75 FEET; THENCE NORTH 500 12'08" WEST, A DISTANCE
OF 23.46 FEET; THENCE NORTH 37'44'17" EAST, A DISTANCE OF 5.00 FEET TO THE
NORTHEASTERLY LINE OF SAID PARCEL 1; THENCE SOUTH 50° 12' 08" EAST,
ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 36.84 FEET; THENCE
CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTH 05° 39' 26" EAST, A
DISTANCE OF 5.73 FEET TO THE POINT OF BEGINNING.
Assessor's Parcel Number: 086-011-56 and 57
Exhibit A - 1
EXHIBIT B
LEGAL DESCRIPTION OF OLD RANCH PARKWAY
REAL PROPERTY IN THE CITY OF SEAL BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 6 OF PARCEL MAP NO. 86-280, IN THE CITY OF SEAL BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 226, PAGES 9
THROUGH 14, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
Exhibit B
EXHIBIT C
TO
AMENDMENT TO MAINTENANCE AGREEMENT
Landscape Maintenance Area
(Landscape Maintenance Area is Highlighted)
Exhibit C - 1
NAI -1521506009v6
Exhibit C - 2
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Exhibit C - 2
RESOLUTION 7252
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE A TERMINATION OF MAINTENANCE AGREEMENT
AND AGREEMENT REGARDING ONGOING MAINTENANCE
FOR OLD RANCH PARKWAY
WHEREAS, TERRA FUNDING — BIXBY RANCH, LLC ("Ground Lessor") is the
owner of certain real property located in the City of Seal Beach, County of
Orange, State of California, more particularly described on Exhibit A (the
"Property"). The Property includes Parcels 1, 2, 3 and 4, as shown on Exhibit C.-
and,
;and,
WHEREAS, PCPI BIXBY, LP ("Ground Lessee") is the holder of a 99 -year
leasehold interest in the Property, pursuant to that certain Ground Lease dated
as of January 10, 2013, a memorandum of which was recorded in the Official
Records of Orange County, California (the "Official Records") on May 16, 2013,
under Instrument No. 2013000297764 (as amended from time to time, the
"Ground Lease"); and,
WHEREAS, the City of Seal Beach ("City") is the owner of that certain public right
of way located in the City of Seal Beach, County of Orange, State of California,
more particularly described on Exhibit B (the "Old Ranch Parkway"). Old Ranch
. Parkway is also identified as Parcel 6, as shown on Exhibit C; and,
WHEREAS, the City and Bixby Ranch Company, a California limited partnership
(a predecessor owner of the Property), entered into that certain Maintenance
Agreement, dated as of September 24, 1987, and recorded in the Official
Records on September 30, 1987, as Instrument No. 87-551047 (the
"Maintenance Agreement'). The Maintenance Agreement runs with the land
and is, therefore, currently between Bixby (i.e., as of the date hereof, Ground
Lessor and Ground Lessee) and the City, each of which is identified as an
"Owner" under the Maintenance Agreement; and,
WHEREAS, the circumstances and uses of the Property and Old Ranch Parkway
have changed significantly since the date of the Maintenance Agreement, the
parties now desire (i) to terminate the- Maintenance Agreement, and (ii) to
document their new agreement with respect to the maintenance of certain
improvements located on Old Ranch Parkway.
NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY
RESOLVE:
Section 1. The City Council hereby approves the Termination of Maintenance
Agreement and Agreement Regarding Ongoing Maintenance with
TERRA FUNDING — BIXBY RANCH, LLC, AND PCPI BIXBY, LP.
Section 2. The City Council hereby authorizes the City Manager to execute
the Termination of Maintenance Agreement and Agreement
Regarding Ongoing Maintenance.
Section 3. The City Clerk is hereby directed to record the Termination of
Maintenance Agreement and Agreement Regarding Ongoing
Maintenance with the Orange County Clerk -Recorder.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a
regular meeting held on the 14th day of February, 2022 by the following vote:
AYES: Council Members Kalmick Moore, Sustarsic, Varipapa, Massa-Lavitt
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
__j�M�o -
Joe Kalmick, Mayor
0f E4
A T: �S��TE
� Ioda D. Harper, City Cler * a` `
9 F C N.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution 7252 on file in the office of
the CiW,Clerk, passed, approved, and adopted by the City Council at a regular
meetifib heA0on the 14th day of February, 2022.
D. Harber, City Clerk
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