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Agreement No. 26–14
OPERATIONS & MANAGEMENT REGULATORY AGREEMENT
THIS OPERATIONS & MANAGEMENT REGULATORY AGREEMENT ("Regulatory Agreement"), dated as of March 16, 2026 for reference purposes only, is made and entered into by and between the CITY OF MONTCLAIR, a California municipal ("City") and, Montclair Station Apartments, L.L.C. a Delaware limited liability company ("Owner"), with reference to the following:
A. Owner has submitted requests for approval of certain land use entitlement applications including a Tentative Parcel Map Precise Plan of Design (PPD) (“Project Entitlements”) to construct a proposed project with 302 residential apartments (“Project”) on 9.96 (gross) acres of land generally located at the southwest corner of Richton Street and Monte Vista Avenue in the City of Montclair (“Subject Site”). The Subject Site is more particularly described in Exhibit “A” attached to this Operations and Maintenance Agreement and incorporated herein by reference.
B. The Subject Site is located within the boundaries of the North Montclair Downtown Specific Plan (NMDSP) that was originally approved by the City Council on May 15, 2006 by Resolution No. 06-2628. The NMDSP was amended by the City Council on March 20, 2017 by Resolution No. 17-3149 and on April 3, 2017 pursuant to Ordinance No 17-965. The Applicant is contemplating the development of this property and would develop the Subject Site in accordance with the provision of the Amended North Montclair Downtown Specific Plan.
C. The Project Entitlements were approved subject to compliance with certain conditions of approval:
Condition No. 18. Owner must consent, in writing, to record a covenant an Operations & Management Regulatory Agreement (hereafter Regulatory Agreement) against the entire property providing for the perpetual maintenance of all buildings and improvements, including roadways, drainage facilities, and water and sewer systems. The Regulatory Agreement shall be effective during the lifetime of the Project. Property shall thereafter be maintained following the property maintenance standards contained in the Montclair Municipal Code.
The Regulatory Agreement shall provide for the perpetual maintenance of all buildings and improvements for the subject multifamily residential project ("the Project") developed in the City for rental purposes. The Regulatory Agreement shall be recorded as a condition, covenant, and restriction on the property in perpetuity unless the City Council agrees to the removal of such covenant in the event of a change in land use. The Regulatory Agreement shall address the management, operations, and maintenance of the multifamily residential project and shall become a Covenant that will run with the land.
D. The purpose of this Regulatory Agreement is to comply with the requirements of Conditions of Approval found in the Precise Plan of Design.
NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, conditions, and restrictions herein contained, the parties hereto declare, covenant and agree as follows:
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1. DEFINITIONS AND INTERPRETATION
1.1. Singular and Plural Terms. Any defined term used in the plural in this Regulatory Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class.
1.2. Accounting Principles. Any accounting term used and not specifically defined in this Regulatory Agreement shall be construed in conformity with, and all financial data required to be submitted under this Regulatory Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to the City Manager
1.3. References and Other Terms. Any reference to any other document shall include such document both as originally executed and as it may from time to time be modified.
References herein to Articles, Sections, and Exhibits shall be construed as references to this Regulatory Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation". References herein to statutes, laws, codes, ordinances or regulations by specific number shall mean such statute, law, code, ordinance or regulation as it existed as of the date of this Regulatory Agreement and as it may be amended from time to time thereafter.
1.4. Exhibits Incorporated. All attachments and exhibits to this Regulatory Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. A complete copy of the Exhibits may be reviewed or obtained at the office of the City Clerk at 5111 Benito Street, Montclair, California 91763 during normal business hours.
2. TERM
The term of this Regulatory Agreement (“Term”) shall commence on the date it is recorded in the Official Records of the County and shall continue in full force and effect in perpetuity.
3. ON-SITE MANAGEMENT & SECURITY REQUIREMENTS
3.1. Professional Management Selection. Owner, through a licensed Property Management Company, shall manage the Project, or cause it to be managed. Any Property Management Company(ies) retained to act as agent for the Owner in meeting the obligation of providing an on-site manager (for residential units) shall be subject to prior written approval from the Executive Director Office of Public Safety/Police Chief, which approval shall not be unreasonably withheld or delayed, provided the on-site manager(s) or person(s) assigned from the applicable Property Management Company to manage the Project are appropriately qualified. In addition to the requirement of a professional management of the Project by a Property Management Company, Owner shall assure that an on-site manager and/or maintenance personnel resides on the premises of the Project at all times. The Property Management Company and on-site manager(s) or person(s) assigned shall participate in any active City Crime-Free Housing Program offered by the City.
The Property Manager assigned by the Property Management Company shall be licensed pursuant to California Business and Professions Code, Section 10131 et. Seq., and will – 3 –
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have demonstrated experience in leasing, operating, and maintaining a multifamily residential project. The Owner has not yet selected a Property Management Company. The Property Management Company and on-site resident manager shall be approved by the Executive Director of Public Safety/Police Chief prior to occupancy of any unit.
In exercising his/her approval rights hereunder, the Executive Director Office of Public Safety/Police Chief may require proof of ability and qualifications of the Property Management Company based upon (i) prior experience, (ii) other factors determined by the Executive Director Office of Public Safety/Police Chief Police Chief as necessary.
Furthermore, upon sixty (60) days prior written demand from City with cause shown, the Executive Director Office of Public Safety/Police Chief Police Chief may request that Owner replace the Property Management Company. In any agreement with a Property Manager or Property Management Company ("Management Agreement"), the Owner shall expressly reserve the right to terminate such agreement without cause. Notwithstanding, City agrees that a request for the removal of a Property Manager or Management Company shall be subject to a thirty (30)–day notice of default and a reasonable opportunity to cure before any such termination is effective.
Under no circumstances shall the property owner take on the property management responsibilities for the project, unless such property owner possesses property management accreditation as provided for in this subsection, has demonstrated experience, and is approved by the Executive Director Office of Public Safety/Police Chief.
Subsequent changes in the Property Management Company or Manager of the Project shall obtain the prior written approval of the Executive Director Office of Public Safety/Police Chief as so indicated above.
Any subsequent changes in the Property Management Company shall be approved pursuant to the requirements stated in Section 3.1 above.
3.2. Management Responsibilities. Owner shall assure compliance with the following management responsibilities during the term of this Regulatory Agreement:
(1) Management Obligations-Residential. The Owner shall maintain the legally required presence of an on-site manager pursuant to California Code of Regulations, Title 25, Section 42. The Property Management Company shall ensure that tenant application and screening practices are developed and enforced, that all rules and regulations are developed and enforced and that use of all facilities are managed. The Owner, through the Property Management Company, shall make best efforts to ensure that the Project is well maintained pursuant to the standards developed in this Regulatory Agreement and the City of Montclair Municipal Code.
(2) Registration and Management of Rentals. The Owner, with its Property Management Company, shall develop all rules, documents and procedures to assure all rental/lease occupancies of residential units are professionally managed including but not limited to:
• Application(s)
• Crime-Free Addendum and other required addenda
• Tenant screening tools"
(3) Compliance with Rules. Renters/lessees occupying units within the Project shall be subject to all rules and regulations developed by the Property Management Company.
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and seeking compliance with the rules and regulations. The rules established by the Property Management Company shall include provisions for eviction of renters/lessees for material violations of the rules and regulations of the Project. (4) Maintenance of Interior of Units. The Property Management Company shall develop and implement rules for maintenance and upkeep of the interior of the rental units.
3.3. Security Requirements. Owner shall provide the following security and security monitoring measures during the term of this Regulatory Agreement:
(1) Owner agrees to direct the Property Management Company to enforce property rules and regulations as they are periodically updated and published in the lease signed by each tenant/resident. Owner shall supply the City a copy of all updated rules and regulations upon request.
(2) Owner shall utilize the California Lease (or rental) Agreement for residential tenancies.
Owner shall direct the Property Management Company to enforce all of its provisions.
Owner shall supply the City a copy of any updated form lease/rental documents and/or community rules and regulations upon request.
(3) Owner shall direct Property Management Company to investigate each potential resident’s suitability, according to all applicable laws, to fulfill all obligations to comply with the rules established for the Project.
(4) To the extent allowed by law, Owner shall prohibit residential lessee or tenant from subleasing or temporarily renting the leased or rented unit including such temporary rentals as Airbnb or similar rental services. This prohibition against such subleases shall be included in the lease or rental agreement.
(5) Owner shall provide the following security and security monitoring measures during the term of this Regulatory Agreement:
i. Owner shall develop a "Security Plan" acceptable and approved by the Montclair Police Department which, at a minimum, shall include the installation, operation, and maintenance of security cameras throughout the Project.
ii. At any time during the term of the Regulatory Agreement, should the calls for Police service or calls for Police response at the Project exceed a level reasonably considered normal and customary for the size of the Project, as determined by the Executive Director Office of Public Safety/Police Chief, during any consecutive two-month period, the Owner shall be required to provide a State-licensed security patrol through a company retained by the Owner at Owner’s expense.
iii. The State-licensed security patrol company shall be retained by the Owner, with the prior approval of the Executive Director Office of Public Safety/Police Chief, for a period of time to be reasonably determined by the Executive Director Office of Public Safety/Police Chief. The approval of such a State-licensed security company shall not be unreasonably withheld. The frequency of patrols and Owner’s cost for payment of such patrols shall be reasonable in light of the number and nature of calls for Police responses in subsection ii above.
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3.4. Balconies, Patios, and Porches. Owner and/or Property Management Company shall provide for and enforce the following outdoor storage regulations during the term of this Regulatory Agreement:
(1) Balconies, patios, and/or porches on residential units approved for use as private usable open space must be kept free from being enclosed or covered by a tenant in any way and must not be used for storage purposes. Storage of materials that detract from the appearance of buildings is prohibited in the above–mentioned locations as well as anywhere that is directly visible to the public.
(2) All rental agreements/leases for the project must include a rule preventing the storage of boxes or materials, placement of indoor furniture, visible exercise equipment, hanging clothing, building of enclosures, the installation of makeshift screening materials, or any other similar item in or on a balcony, patio, or porch.
3.5. Cable and Satellite Service Equipment. Placement of antennas for radio and television reception may be permitted within a balcony, terrace, deck or patio that is intended for exclusive use of the subject tenant, subject to applicable law and the following criteria:
(1) For the purpose of this Section, the word “antenna” shall include a single dish antenna, usually in a circular shape with a parabolic curve design constructed of a solid or open mesh surface, not more than two feet (2'–0") in diameter, either surface–mounted or by means of a freestanding tripod that is placed entirely within the permitted areas. (2) Only one (1) antenna per dwelling unit shall be permitted (3) The method of attachment and or arrangement of said antenna shall be accomplished in the least visually distracting manner as possible.
(4) No antennas shall be placed, attached, or installed in any common areas of the development including the roof, hallways, common courtyards, walkways, or the exterior walls of the apartment building.
(5) No overhead or external wiring of the antennasshall be permitted.
3.6. Parking Management Plan and Parking Management. Owner has prepared and must implement the mechanics of a Parking Management Plan (PMP) showing all resident, employee, guest parking, and public parking areas pursuant to entitlement approvals of the City. The PMP shall require all residents to park in assigned spaces and detail how compliance with on-site parking regulations will be enforced for the Project. All parking spaces shall be identified with a unique number that shall be stenciled on the pavement and regularly maintained. The PMP shall be approved by the City Council prior to its recordation and implementation. The PMP shall not be amended by the Owner without the prior approval of the City Council. The PMP may periodically be updated at the request of the City. The PMP shall also include the following (subject to applicable law):
(1) The PMP shall provide that no utility trailers, commercial or construction vehicle of any length, buses or passenger vans, watercraft, or recreational vehicles shall be permitted to be stored or parked overnight on any private street and/or parking areas within the Project. "Recreational Vehicle" shall mean recreational vehicles, motor homes, campers, utility trailers, watercraft, travel trailer, truck camper, camping trailer, off-road vehicles, land conveyances, vessels, aircraft, boats, trailers, van – 6 –
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conversions, customized trucks, and other similar type vehicles that are designed for human habitation for recreational or emergency purposes, or that require a special driver's license (e.g., noncommercial Class A or Class B) to operate. (2) The PMP shall provide that any enclosed garage spaces or covered parking spaces provided shall, at all times, be assigned to a unit within the Project pursuant to the PMP. Storage within a garage shall be allowed only to the extent the garage includes a dedicated storage cabinet or storage area that does not impede or obstruct direct access to the parking space(s) within the garage.
(3) Any tandem parking spaces identified in the PMP shall be assigned to the same dwelling unit. For purposes of the PMP, each tandem space shall count toward fulfillment of the total requirement of parking spaces for the residential portion of the project. Any tandem parking spaces identified in the PMP shall be considered a second parking space assigned to the same dwelling unit. Tandem spaces shall only be assigned to and utilized for the parking of registered vehicles assigned to the residents of the same unit. Tandem spaces shall not be assigned and/or rented out to other residents or users.
(4) The Property Management Company may implement a separate fee for any surplus parking that exceeds the minimum threshold for assigned parking based on per unit parking requirements as specified in the NMDSP and the PMP for the project. (5) Every residential unit shall be assigned and permitted to use at least one (1) parking space as part of the base rent for each unit and shall be stipulated in the PMP and subsequent rental/lease agreements. Tenants who do not require a parking space may formally waive their right to their assigned parking space. In such instance, the assigned parking space may be removed from the lease agreement, and the Property Management Company may offer a corresponding rent reduction or credit. (6) Any parking spaces not utilized by the assigned tenant either through a formal waiver or by exceeding the unit’s required minimum may be rented by the Property Management company to other tenants on a month to month basis. If a tenant who previously wived their space requires it again, the tenant shall have the right to replace a space at the end of the current secondary user’s month to month term. (7) As part of the initial rental/lease application process, each potential renter/lessee of a unit within the Project shall be given written notice of the PMPs on-site parking and off-site parking conditions and requirements. All executed rental lease agreements will contain a detailed summary of the PMP as an exhibit including a signed acknowledgement form which records the resident’s agreement with the terms of the PMP. In addition, the prospective tenant(s) shall receive an electronic version of the entire PMP, either as an email or other electronic format specified by the renter. The entire PMP shall also be available for review in the office of the on-site property manager and available online on the Project's website for residents/tenantsto view. (8) Tenants have a right of first refusal to lease the parking space built for their unit.
Unused parking may be rented to other users month-to-month. – 7 –
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4. MAINTENANCE, OPERATION, PRESERVATION AND REPAIR OF PROPERTY
4.1. Maintenance; Periodic Improvements Required. Owner, through its Property Management Company, shall keep the Project well– maintained (including, without limitation, private streets and drives, all buildings and on–site structures; signage; sidewalks; parking lots; parking structures, exterior building mounted and/or site lighting fixtures; landscaping; open space/recreation areas onsite, dog park areas, storm drain system including all storm water treatment devices associated with the Water Quality Management Plan, fencing; foundations and pools, if any; and other Improvements) and shall operate the Project in a businesslike manner; shall prudently preserve and protect both its own and City's interests in connection with the Project, shall not commit or permit any waste or deterioration of the Project; shall not abandon any portion of the property; and shall not otherwise act in such a way as to unreasonably increase the risk of any damage to the Project or create a nuisance. Such maintenance shall include, without limitation, the following:
(1) Keeping the exterior surfaces of buildings painted, plastered or otherwise appropriately treated to be in sound condition;
(2) Replacing broken orseverely etched windows and other glass surfaces promptly; (3) Keeping the property free from any accumulation of debris, graffiti, and waste materials (including pet waste);
(4) Keeping trees, lawns, shrubs and other plant materials trimmed and in healthy condition, and replacing missing or dead plant materials; (5) Maintaining all exterior light fixtures (building mounted and freestanding) in full operating condition. Non-functioning, broken or damaged light fixtures/support structures shall be promptly repaired and/or replaced with the same fixture type as originally approved
(6) Remove graffiti on any building or associated improvement, and /or within 48 hours after its appearance. If the paint color does not match an existing wall surface for any reason, the entire wall must be painted;
(7) Keeping paved surfaces and other hardscaping elements clean and in good condition, free of dirt and grime, gum, or grease, potholes, excessive staining or unsightly accumulation of leaded motor oil/automotive fluids, significant surface cracks, dangerous uplifted walkways, or other conditions which impede paths of travel; (8) No outdoor pay telephone or vending machine (including delivery lockers) shall be installed on any public street, easement, or par. Vending machines may be allowed within building or in private outdoor recreation areas when machines are located out of view to the street and are placed with an alcove space that is architecturally integrated into the design of the building, subject to satisfaction of the Community Development Director;
(9) Prohibiting auto repairs, car washing, storage of unregisters and/or inoperable vehicles, within parking areas of the Project;
(10) Keeping the on-site storm drain system in working order and in good repair at all times including the storm water treatment devices associated with the Water Quality Management Plan;
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(11) Keeping all private streets, drive aisles, and exterior parking area within the Project free of weeds, debris, trash, graffiti, and potholes. Owner shall be responsible for maintenance and repaving of all private streets and drive aisle surfaces; (12) Maintain the Project grounds and adjacent public street parkways free from pet waste and/or damage at all times to deter odors, and maintain sanitary conditions. The Management Company shall:
A. Conduct routine inspection and clean–up activities of the Project site to ensure pet waste is removed and property damage caused by animalsis properly repaired and prevented.
B. Notify residents and guests in writing of their responsibility to clean up after their pets.
C. Post signs with specific pet rules around the site as necessary. Sign copy shall be in English and set in a font type (or graphic) that is large enough to be easily read and understood.
D. Provide adequate disposable bag dispensers, or other means of removing feces, and refuse cans for disposal. Trash cans shall be regularly emptied with contents disposed of properly.
(13) Keeping refuse collection facilities (e.g. trash chutes, rooms or enclosures) shall be maintained in a sanitary, orderly, and functional condition at all times. Sanitary shall mean free of scattered trash and food debris, spills or splatter on floors and/or walls, free of odors to the highest degree possible, and free of insects and rodents; (14) Implementing and keeping a waste and refuse collection system in good operating order at all time. The Property Management Company must develop a written policy regarding the method of waste and refuse collection for all tenants and lessees consistent with the approved Solid Waste Removal Plan (SWRP). Each tenant must be informed of the waste and refuse collection system prior to executing a rental or lease agreement. The Owner/Property Management Company may not charge an additional fee related to the type of collection method of waste and refuse. (15) All refuse collection system or areas (e.g. trash chutes, rooms or enclosures) shall be power washed a minimum of two (2) times per month (or more frequently as needed), by the Property Management Company or by means of a hired company qualified to power wash or steam clean all refuse collection facilities and/or equipment. Such activity shall be performed with proper equipment containing a water recovery system or self-contained unit to recycle the wash (waste) water, as approved by the city.
All spills and leaks shall be cleaned up immediately using a spill kit and/or appropriate Best Management Practices (BMP) that utilize absorbents or equivalent "dry" methods.
4.2. Restrictions on Alterations and Repairs. Owner shall not remove, demolish or alter any Improvement, expect to make non- structural and any required structural repairs which preserve or increase the property's value, sand shall promptly restore, in a good and workmanlike manner, and Improvement (or other aspect or portion of the property) that is damage or destroyed from any cause.
4.3. Periodic Improvements Required. Notwithstanding the obligations of subsection
4.1 and 4.2 above, Owner shall undertake periodic improvements to the property. – 9 –
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4.4. Lien. To secure the timely performance of Owner’s obligations under Sections 4.1 and 4.2 above and this Section 5.1, Owner hereby creates in favor of City a lien against all portions of the property not dedicated to City or some other governmental agency for a public purpose (the “Lien”). If Owner neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of Section 4.1 or 4.2 above, or if City determines there is a violation by Owner of any federal, state, or local law, ordinance, regulation, related to the Project, City may at any time thereafter declare such violations to be a public nuisance and Owner to be in default or violation of this Regulatory Agreement and make written demand upon Owner to immediately remedy the default or violation (“Notice”). Owner shall substantially commence the work required to remedy the default or violation within thirty (30) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Owner shall substantially commence the required work within twenty-four (24) hours thereof.
4.5. Failure to Remedy; City Action. If the work required to remedy the noticed default or violation set forth in Section 5.1 above is not diligently prosecuted to a completion reasonably acceptable to City within the time frame contained in the Notice, then City may, after prior written notice to Owner providing Owner an opportunity to cure, complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole expense of Owner and shall be secured by such lien. In the event City elects to complete or arrange for completion of the work required pursuant to this Section then, after reasonable written notice providing Owner an opportunity to cure, City may require all work by Owner or its contractors to cease in order to allow adequate coordination by City. City may recover its costs for enforcement and abatement of nuisance pursuant to California Government Code, Section 54988.
4.6. Compliance. Owner shall comply with all laws and requirements of governmental agencies (including, without limitation, all requirements relating to the obtaining of governmental agency approvals) and all governmental agency approvals relating to Owner, the property or Owner's business thereon.
4.7. The Lien. The Lien shall be authorized pursuant to California Government Code, Section 54988 and shall be subordinate to any and all secured financing that Owner may obtain from time to time with respect to the property, without the need for further documentation. If, however, a lender should request additional subordination documentation, Owner shall provide City with requests to subordinate in writing.
5. OTHER AFFIRMATIVE COVENANTS
5.1. Affirmative Covenants. Throughout the Term, Owner covenants and agrees:
(1) Pay Claims and Indebtedness. Subject to all rights of offset, setoff, contest and defenses that Owner may have, promptly to pay (i) such amounts, chargeable against Owner or the property, as City reasonably deems necessary to protect and preserve the property and this Regulatory Agreement, and (ii) all encumbrances, charges, and liens on the property, with any interest on them, which, in the judgment of the City Manager are, or appear to be, prior or superior to this Regulatory Agreement. (2) Notice of Certain Matters. To give notice to City, within thirty (30) days of Owner's learning thereof, of each of the following:
i. Any dispute between Owner and any governmental agency (other than City) – 10 –
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relating to the property, the adverse determination of which might materially, adversely affect the property; and
ii. Any change in Owner's principal place of business.
6. SALE OR TRANSFER OF PROPERTY
6.1. Property Sales Restrictions. Owner covenants and agrees not to sell, transfer or otherwise dispose of any building within the property, or any portion of a building unless such sale is either: a) a sale of the entire property to a purchaser, or b) as part of a larger condominium sales effort where individual units are sold to individual purchasers, on a building by building or unit by unit basis, consistent with the rules and regulations of the California Department of Real Estate. This section shall not be deemed, construed or interpreted to prohibit any transfer of the property to any lender, or its designees, under a financing secured by the property with or without City's consent. In addition, it acknowledged that this Regulatory Agreement may, at some point in the future, be replaced with amended Conditions, Covenants & Restrictions to be administered by a homeowners’ association formed upon the conversion of the Project to condominium ownership. Nothing contained herein shall prohibit the removal of all or a portion of the covenants contained herein upon formation of homeowners’ association for a condominium project in compliance with the approved conditions of approval for the Project, including, but not limited to, requiring the formation of a homeowner’s association prior to the conversion or sale of any unit as a condominium. Owner shall not be responsible or liable for the acts, actions or omissions of any such homeowner’s association.
6.2. Transfers in Violation. The property and any interest in title to it shall not be transferred or conveyed to any person or entity except as provided in this Regulatory Agreement. Any such conveyance or other transfer in violation of the terms of this Regulatory Agreement shall be voidable at the election of City.
7. INDEMNIFICATION.
7.1. Indemnification. Owner shall defend, indemnify and hold the City, its officials, officers, employees, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or negligent or willful misconduct of Owner, its officers, employees, and agents, arising out of or in connection with the performance or construction of the Project or this Regulatory Agreement, including without limitation the payment of all consequential damages, attorney’s fees and other related costs and expenses. Owner shall defend, at Owner’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City its officials, officers, employees, and agents. Owner shall pay and satisfy any judgment, award or decree that may be rendered against City its officials, officers and employees, and agents officials, officers or employees, in any such suit, action or other legal proceeding. Owner shall reimburse City and its officials, officers and employees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Owner’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City officials, officers, employees, agents or volunteers. – 11 –
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8. NONDISCRIMINATION
8.1. Nondiscrimination. Owner covenants and agrees that there shall be no discrimination against or segregation of any person or group of persons on account of any protected class under California or Federal law including but not limed to: race, color, creed, religion, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property, or any part thereof, nor shall Owner itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees, or vendors of the property.
9. PERIODIC REVIEW
9.1. Periodic Review. Under direction of the City Manager, the City shall review this Regulatory Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Regulatory Agreement. Owner shall submit an Annual Monitoring Report, in a form acceptable to the City, within 30 days after written notice from the Director.
9.2. Special Review. The City Council may order a special review of compliance with this Regulatory Agreement at any time.
10. DEFAULTS
The occurrence of any of the following, whatever the reason therefor, shall constitute an "Event of Default" by Owner:
(1) Owner fails to perform any obligation under this Regulatory Agreement, and such failure is not cured within thirty (30) days after Owner's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such failure shall not be an Event of Default so long as Owner (in any event, within thirty (30) days after receipt of such notice) commences cure, and thereafter diligently prosecutes such cure to completion; or. (2) Owner is enjoined or otherwise prohibited by any governmental agency (other than City) from occupying all or any of the property and such injunction or prohibition continues unstayed for ninety (90) days or more for any reason; unless Owner is diligently attempting to have such injunction or prohibition stayed or lifted and Owner demonstrates, to the reasonable satisfaction of the City Manager, a reasonable likelihood that such stay or lifting will occur within a reasonable time.
11. REMEDIES
11.1. Remedies in General. It is acknowledged by the parties that City would not have entered into this Regulatory Agreement if it were to be liable in damages under this Regulatory Agreement, or with respect to this Regulatory Agreement or the application thereof.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Regulatory Agreement, except that City shall not be liable in damages to Owner, or to any successor in interest of Owner, or to any other person, and Owner covenants not to sue for damages or claim any damages:
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(1) For any breach of this Regulatory Agreement or for any cause of action which arises out of this Regulatory Agreement; or
(2) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Regulatory Agreement; or
(3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Regulatory Agreement.
It is understood and agreed that Owner, at the time of approval of the Project, indicated their voluntary agreement to accept the conditions of approval for the Project, including this Regulatory Agreement.
11.2. Cumulative Remedies; No Waiver. City's rights and remedies under this Regulatory Agreement are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of this Regulatory Agreement shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Owner requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations. City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of City's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights relating to the unfulfilled portion of the applicable obligation. City shall have the right to pursue damages for Owner’s defaults but in no event shall Owner be entitled to damages of any kind from City, including, but not limited to, damages for economic loss, lost profits, or any other economic or consequential damages of any kind or nature.
12. COVENANTS TO RUN WITH THE LAND
Owner hereby subjects the property to the covenants, reservations and restrictions set forth in this Regulatory Agreement. City hereby declares its express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner's successors in interest to all or any part of the property; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying all or any part of the property, or any interest therein, shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments.
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Agreement No. 26–14
13. BURDEN AND BENEFIT
City and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the property by the tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Regulatory Agreement was made. Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Regulatory Agreement was made.
14. UNIFORMITY; COMMON PLAN
The covenants, reservations and restrictions hereof shall apply uniformly to the property in order to establish and carry out a common plan for the use, development and improvement of the property.
15. MISCELLANEOUS
15.1. Governing Law. This Regulatory Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
15.2. Amendments. This Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the Official Records.
15.3. Notice. All notices, certificates or communications shall be sufficiently given and shall be deemed given on the second day following the date on which the same have been personally delivered or mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Owner: Alec Schiffer
Vice President
5790 Fleet Street, Suite 140
Carlsbad, CA 92008
With a copy to: Shawnee Tharp
Vice President
5790 Fleet Street, Suite 140
Carlsbad, CA 92008
If to City: City of Montclair
Attn: Mikey Fuentes, Director of Economic Development
5111 Benito Street, P.O. Box 2308
Montclair, CA 91763
With a copy to: City of Montclair
Attn: City Attorney
5111 Benito Street, P.O. Box 2308
Montclair, CA 91763
Any of the foregoing persons may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent.
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Agreement No. 26–14
15.4. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
15.5. Multiple Counterparts. This Regulatory Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original.
15.6. Construction of Titles. The captions, headings and titles of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise.
15.7. No Partnership with City. Owner is, and shall be deemed to be, an independent contractor and is not an employee of City and shall not become an agent of City.
15.8. Attorney's Fees. In case any action at law or in equity, including an action for declaratory relief, is brought against Owner to enforce the provisions of this Regulatory Agreement, the losing party agrees to pay reasonable attorney's fees and other reasonable expenses incurred by the prevailing party.
15.9. Successors and Assigns. The terms and provisions of this Regulatory Agreement bind and benefit the heirs, legal representatives, successors and assigns of the parties.
15.10. Exhibits. Each of the Exhibits attached hereto is hereby incorporated herein by thisreference.
16. MORTGAGE PROTECTION
The terms of this Article 17 are for benefit of any mortgagee of the Owner providing construction financing for the Project (a "Mortgagee) and may be relied upon and shall be enforceable by the Mortgagee as if the Mortgagee were a party to this Regulatory Agreement. If the City receives notice from a Mortgagee requesting a copy of any future notice of default that may be given to Owner, and specifying the address for service thereof, then the City shall deliver to Mortgagee, concurrently with service thereon to Owner (the "Notice of Default"). No Notice of Default shall be deemed to have been duly given to the Owner unless and until a copy thereof shall have been so given to Mortgagee.
Mortgagee shall have the right (but not the obligation) to cure or remedy, or to commence to cure or remedy, the default claimed within the applicable time periods for cure specified in this Regulatory Agreement, plus an additional thirty (30) days. If, such however, the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Project, such Mortgagee shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall thereafter remedy or cure such default or noncompliance promptly and with diligence after obtaining possession. So long as Mortgagee is pursuing cure of the default, the City shall not exercise any right or remedy under this Regulatory Agreement on account of default. The City shall accept performance by Mortgagee of any covenant, condition, or agreement on the part of the Owner to be performed hereunder with the same force and effect as though performed by the Owner.
[SIGNATURES ON FOLLOWING PAGE]
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Agreement No. 26–14
IN WITNESS WHEREOF, City and Owner have executed this Regulatory Agreement by duly authorized representatives, all on the date first written hereinabove. “OWNER”
Montclair Station Apartments, L.L.C., a Delaware limited liability company
By: CCH 120 Montclair Station, L.P., a Delaware limited partnership, its managing member
By: Residential LTH GP, L.L.C., a Delaware limited
liability company, its general partner
By:
Name: Alec Schiffer
Its: Vice President
“CITY”
City of Montclair, a California municipal corporation
By:
Name: Javier “John” Dutrey
Its: Mayor
ATTEST:
By:
Name: Andrea Myrick
Its: City Clerk
APPROVED AS TO FORM:
By:
Name: Diane Robbins
Its: City Attorney
Date:
EXHIBIT "A"
REGULATORY AGREEMENT LEGAL DESCRIPTION
Real property in the City of Montclair, County of San Bernardino, State of California, described as follows:
PARCEL A:
THAT PORTION OF THE SOUTHEAST ¼ OF THE SOUTHEAST ¼ OF SECTION 10, TOWNSHIP 1 SOUTH, RANGE 8 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT APPROVED BY THE SURVEYOR GENERAL.
LYING SOUTHERLY OF A STRIP OF LAND 150 FEET WIDE, WHICH WAS CONVEYED BY
MARGARET
FLEMING BY DEED RECORDED DECEMBER 13, 1909 IN BOOK 449, PAGE 28 OF DEEDS, BEING
MORE PARTICULARLY DESCRIBED AS EXTENDING FROM THE EASTERLY LINE OF THE ABOVE MENTIONED EAST ½ OF THE SOUTHEAST ¼ OF SAID SECTION 10 TO THE WESTERLY LINE THEREOF, AND BEING 75 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED SURVEYED CENTER LINE OF THE ONTARIO & SAN ANTONIO HEIGHTS RAILROAD, TO WIT; BEGINNING AT RAILWAY SURVEY STATION 143 + 12.85 OF THE SURVEYED CENTER LINE OF
THE ONTARIO & SAN ANTONIO HEIGHTS RAILROAD, SAID RAILROAD SURVEY STATION BEING IN THE EASTERLY LINE OF SAID SECTION 10 AND NORTHERLY 1246.85 FEET FROM THE SOUTHEAST CORNER THEREOF; THENCE FROM SAID POINT OF BEGINNING SOUTH 82° 50’ WEST, 1339.17 FEET TO RAILROAD SURVEY STATION 156 + 52.02 OF THE SURVEYED
CENTER LINE OF THE ONTARIO AND SAN ANTONIO HEIGHTS RAILROAD, SAID LAST
MENTIONED RAILWAY SURVEY STATION BEING IN THE WEST LINE OF THE ABOVE MENTIONED EAST ½ OF THE SOUTHEAST ¼ OF SECTION 10 AND SOUTH 0° 52’ EAST 1530.16 FEET FROM THE NORTHWEST CORNER OF THE SAID EAST ½ OF THE SOUTHEAST ¼ OF SAID SECTION 10.
AND LYING NORTHERLY OF A STRIP OF LAND 100 FEET WIDE, AS CONVEYED TO THE SAN BERNARDINO AND LOS ANGELES RAILWAY COMPANY BY JAMES T. TAYLOR, ET AL., BY DEED RECORDED MARCH 31, 1887, IN BOOK 53, PAGE 365 OF DEEDS, AS SAID RIGHT OF WAY IS SHOWN ON PARCEL MAP 5663 ON FILE IN BOOK 72, PAGES 20 AND 21 OF PARCEL MAP.
ALSO EXCEPTING THEREFROM ALL THAT PORTION LYING EAST OF THE CENTER LINE OF
THAT CERTAIN STRIP OF LAND CONVEYED TO THE UNITED STATES OF AMERICA BY DOCUMENT RECORDED FEBRUARY 17, 1959, IN BOOK 4734, PAGE 521, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ALL THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED DECEMBER 19, 1984 AS INSTRUMENT NO. 84-302041, OFFICIAL RECORDS.
PARCEL B: (APPURTENANT TO PARCEL A)
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS RESERVED IN DEED RECORDED DECEMBER 19, 1984 AS INSTRUMENT NO. 84-302041 OF OFFICIAL RECORDS.
APN: 1007-722-03-0-000
EXHIBIT "B"
PROPERTY MANAGER JOB DESCRIPTION
EXHIBIT "C"
RULES AND REGULATIONS
EXHIBIT "D"
RESIDENTIAL LEASE/RENTAL AGREEMENT
1 of 2
2 of 2
EXHIBIT "E"
PARKING MANAGEMENT PLAN
1. Parking Management Plan Objective and Strategy
The objective of this parking management plan is to provide definitive parking regulations for the residents living at Clara. These guidelines have been approved by city council to a foster a pleasant and safe living environment for residents and their guests and clarity with respect to management’s enforcement rights.
Parking regulations will be enforced by Clara management. Each adult resident must sign and acknowledge the Parking Guidelines & Addendum.
2. Parking Guidelines and Addendum
The following parking guidelines shall be enforced as follows:
✓ Vehicle Registration. All Project residents will be required to register all vehicles make, model, color and license plate number with management upon signing a lease. All Project residents will then be provided a resident sticker, garage sticker and/or parking placard. All will be unique to the project and must be placed on residents’ vehicles in specified locations on the vehicle as noted below:
➢ The resident sticker will identify the vehicle as being owned by a Project resident. The resident sticker will not connote any parking privilege to an assigned stall. Rather, it will allow residents of adjoining neighborhoods to easily identify vehicles improperly parked in their community so that Project management may take corrective action. ➢ The garage sticker will require residents assigned an enclosed garage to place the sticker on the vehicle to be parked in said garage. This vehicle will be specifically prohibited from parking in any other on-site surface stalls.
➢ Garage spaces with an adjoined uncovered space in front will be assigned their own parking placards/stall numbers.
➢ The parking placard or sticker will be provided to residents assigned an additional reserved stall (above and beyond that which comes with their unit) to be placed in their vehicle. The placard or sticker can be transferred between vehicles in the household (excluding the vehicle with the garage sticker as noted above) so that the reserved stall is utilized as much as possible (for example, when a vehicle is in the shop for service, parked at the airport, etc.). Any additional household vehicle will be expressly prohibited from parking in any other stall than the vehicle’s assigned
✓ Parking Orientation. Prior to issuance of keys to new residents, all unit occupants of driving age (16 years or older) will be required to attend a parking orientation with Project management and initial their attendance at the orientation. At the parking orientation, management will review all of the parking rules with the resident(s) so that the resident(s) understand the parking rules related to garage parking, assigned parking, and street parking.
✓ Parking Acknowledgment in Lease Agreement. New residents shall also acknowledge the number of assigned parking spaces to be available for use by the new resident in their lease or rental agreement.
This section of the lease or rental agreement shall state the consequences for violation of the PMP.
The new resident shall initial this portion of the lease or rental agreement acknowledging these terms.
✓ Guest Parking Notification. Guest parking is available on a first come, first served basis. All residents with guests utilizing Project parking for overnight visits must notify management immediately upon said guest’s arrival. Residents will be required to provide management with the color, make and model of their guest’s vehicle as well as the length of time the guest intends to stay. The resident will then be provided with a temporary placard that their guest must display in their car during their stay within the Project. Temporary guest parking placards will expire within 48 hours of issuance. ✓ Use of All Available Spaces. Available parking stalls shall be allocated to residents and guests as follows:
Unit Type Units Stalls/Unit Total Stalls
One Bedroom 192 1.5 288
Two Bedroom 80 1.5 120
Three Bedroom 50 1.5 45
Total Allocated Reserved Stalls 453
Guest Stalls 0.25 76
Total Stalls 529
Due to the limited availability of parking at this community, every resident assigned a space must have a registered vehicle. Any spaces allocated to a unit that are not used (e.g., a resident leases a 3- bedroom unit but only has one vehicle) will be made available for other residents’ use. Tenants have a right of first refusal to lease the parking space built for their unit. Unused parking may be rented to other users month-to-month.
✓ Mandatory Parking in All Garages The Project’s enclosed garages may only be used to park primary vehicles. Storage of personal belongings, including secondary vehicles (e.g., a resident’s “weekend car”) at the exclusion of primary vehicular parking will be expressly prohibited. Exceptions may apply to garages with tandem parking. Garages with tandem parking must be leased to households with two registered vehicles.
➢ Garage audits will be conducted twice annually to ensure that all residents are in compliance with this requirement.
✓ Parking in Adjoining Neighborhoods. Residents will be discouraged from parking in any adjoining neighborhood. Residents in adjoining neighborhoods will be able to identify Project resident vehicles via the resident stickers, and new residents will be made aware of this prohibition during parking orientation.
Violation Policy. A resident’s first violation of the PMP will result in a warning; on the second violation, Project management shall serve the resident with a 3-Day Notice to Cure if the violation is not cured within the prescribed timeframe.
5. Parking Prohibition
No utility trailers, commercial or construction vehicle(s) of any length, buses or passenger vans, watercraft, or recreational vehicles shall be permitted to be stored or parked overnight on any private street and/or parking areas within the Project. "Recreational Vehicle" shall mean recreational vehicles, motor homes, campers, utility trailers, watercraft, travel trailer, truck camper, camping trailer, off-road vehicles, land conveyances, vessels, aircraft, boats, trailers, van conversions, customized trucks, and other similar type vehicles that are designed for human habitation for recreational or emergency purposes, or that require a special driver's license (e.g., noncommercial Class A or Class B) to operate.)
6. Parking Enforcement
Parking enforcement will be a collaborative effort between the Project’s management and a parking enforcement company selected by said manager. The respective obligations of each party will be the following:
Parking Patrol
✓ Multiple nightly parking patrols seven (7) days per week of the Project (and adjoining neighborhoods if necessary).
✓ A nightly report to management summarizing the following:
➢ Vehicles parked within the Project (excluding the public street) in violation of the PMP for corrective action by management.
➢ Any suspicious persons or activity.
Management Property Tour
Project management will enforce the PMP policies by performing the following:
✓ Tour the Project twice daily (morning and early evening) to confirm that no vehicles are parked in violation of the PMP. Twice daily inspections will be sufficient since parking is expected to be at less of a premium during daytime working hours. Further, a log will be kept of management’s inspections that will be made available upon the City’s request.
✓ Noticing residents of parking violations based upon either management’s observations of parking violations or those observed by the parking enforcement provider. ➢ Management will then enforce the violation policy discussed in Section 4 above.
Resident Self-Policing
Signs will be clearly posted on Project property indicating that vehicles can be towed if parked in violation of the parking policies. Residents shall inform property management of any vehicle using a parking stall in violation of the PMP.
EXHIBIT "F"
PARKING MANAGEMENT PLAN TENANT ACKNOWLEDGMENT
Prospect/Resident Name (s):
Apartment #:
Parking Space(s) assigned:
By signing this acknowledgement form I/we confirm that I/we have received a copy of the Clara Parking Management Plan (PMP), understand the rules contained therein, and understand that compliance with the rules of the PMP are a condition of my/our rental agreement.
Resident Signature Date Resident Signature Date
Resident Signature Date Resident Signature Date
Property Management Company:
Name Signature Date
EXHIBIT "G" MASTER REFUSE REMOVAL PLAN
EXHIBIT "H"
WASTE AND REFUSE ACKNOWLEDGMENT
EXHIBIT "I"
PERIODIC IMPROVEMENT
Replacement/Life Cycle Timing
(Min/Max)
Painting - Exterior As Needed/5 to 7 years
Painting - Interior Corridors As Needed/7 years
Corridor Carpet As Needed/7 years
Activity Center Upgrades As Needed/7 years
Community Room Upgrades As Needed/7 years
Common Area Furnishings As Needed/7 years
Roof Replacement - Shingle As Needed/15 to 20 years
Elevator Upgrades As Needed/Cabs 10 years
Foundation/Parking Garages - Waterproof Coating As Needed/5 year Fire Systems/Equipment As Needed/Smoke alarms 10 years
Sealcoat and Stripe As Needed/3 to 5 years
Paving - Asphalt As Needed/Overlay 25 years
Curbs/Sidewalks As Needed
Access Controls (Gates) - Operators As Needed/ 5 years
Appliances - Misc. (microwave, disposal, fans) As Needed/ 10 years Appliances -Refrigerators As Needed/ 15 years
Appliances - Stoves As Needed/ 15 years
Appliances - Dishwashers As Needed/ 15 years
Water Heaters As Needed/ 15 years
HVAC System As Needed/ 20 years
Elevator Modernization As Needed/ 15 years
Siding Stucco and Trim Replacement As Needed/ 15 years