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HomeMy WebLinkAboutLa Costa de Marbella Home Owners Association; 2009-04-23;MAINTENANCE & REIMBURSEMENTAGREEMENT FOR THE BEAUTIFICATION IMPROVEMENTS MADE TO THE CITY OF CARLSBAD WALL ALONG LA COSTA AVENUE IN FRONT OF LA COSTA DE MARBELLA CONDOMINIUMS This Maintenance & Reimbursement Agreement for the beautification improvements made to the City of Carlsbad wall along La Costa Avenue in front of La Costa de Marbella Condominiums, dated as of /Wil 2^ . 200*1 ("Agreement") is made at San Diego County, California, by and between the CITY OF CARLSBAD, and LA COSTA DE MARBELLA HOME OWNERS ASSOCIATION, ("HOA") a California Corporation, with reference to the following recitals: RECITALS A. After a landslide occurred in 2005 along La Costa Avenue in front of La Costa de Marbella Condominiums, a retaining wall system was constructed by the City, within the City's right-of-way. B. The City and HOA recognize that the wall needs improvements to enhance the visual appearance of the structure. C. This maintenance agreement does not change the fact that the City owns and is responsible for maintaining the retaining wall system, which includes steel soldier piles, timber lagging, and the tie-back system. D. The HOA is currently making slope stability improvements to the sloped area between the condominiums and La Costa Avenue. As part of the "La Costa De Marbella Slope Stabilization/Foundation Underpinning" Project number PD07-08 and Drawing number 454-5A and 454-5L, the HOA will be installing landscaping and an irrigation system. E. The "beautification improvements" include the new stucco or shotcrete wall over the existing steel soldier piles and timber lagging, the new landscaping that will cover the new stucco or shotcrete wall. F. The irrigation system will connect to the HOA's irrigation system on the slope that will be installed under the said improvements under recital "D". The irrigation system will extend to the ends of the approximately 260 feet long retaining wall and it will have bubblers at the base of the wall where the landscaping is planted. NOW, THEREFORE, the City and HOA agree as follows: 1. Recitals. The Recitals, above, are true and correct and are incorporated herein by this reference. 2. General City Obligations. -2- (a) The City shall construct a stucco or shotcrete wall over the existing steel soldier piles and timber lagging that will be similar in appearance to the existing white stucco walls at the Marbella Condominium community. At all times, the City shall own and maintain the proposed wall. (b) The City shall install landscaping in front of the wall that will be designed to eventually cover the wall. Planting shall be drought-tolerant. City warrants said landscaping for a period of 12 months from the date of the "Notice of Completion" issued to the City's Contractor after completion of the wall and irrigation system changes set forth in the following paragraph. (c) The City shall be responsible for removing graffiti on the wall for the first 5 years after construction completion or until the front surface area of the wall facing La Costa Avenue is 75% covered with the proposed landscaping noted in (b) above, whichever occurs earlier. The parties hereto agree that the determination of whether 75% has been achieved will be by HOA, which determination will not be unreasonably withheld. (d) The City will reimburse the HOA in the amount of $6,030 for furnishing and installing the irrigation system needed for the "beautification improvements." (e) In the event the City performs any maintenance to the retaining wall system, it will bear the cost and expense of returning the landscaping to its' condition as it existed before the maintenance was performed. In addition, if any damage is committed to the irrigation system or any other property of the HOA during said maintenance, the City shall be responsible to repair said damage. 3. General HOA Obligations. (a) Upon completion of irrigation system alterations and installation of landscaping as specified herein, the HOA shall take ownership of and be responsible for maintaining the landscaping installed by the City after the landscaping is installed. Maintaining the landscaping involves, but may not be limited to trimming, irrigating, fertilizing, and replanting but only if plants die outside the construction warranty time period of 12 months from date of "Notice of Completion" issued to City's Contractor. Maintenance of the landscaping shall be performed to allow plant growth to cover the wall constructed by the City. (b) The HOA shall own and be responsible for the irrigation system after construction is complete. Maintenance of the irrigation system includes, but may not be limited to replacing valves, adjusting sprinkler heads, replacing sprinkler heads, and repairing leaks on the irrigation system. (c) The HOA will furnish and install the irrigation system needed for the City's said "beautification improvements." -3- (d) HOA will indemnify and hold City harmless from any and all claims of damage to person or property allegedly due to the design, construction, maintenance or operation of said irrigation system and landscaping. 4. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the HOA or the City. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The HOA or City shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended solution is unsatisfactory to the aggrieved party, the aggrieved party shall notify the Carlsbad City Manager in writing, with a copy to the other party, within 10 days of receipt of the proposed resolution; thereafter, the aggrieved party shall be entitled to all remedies provided under the law. Any applicable claims period or statue of limitations will be tolled during this period of time. 5. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, addressed as shown below. Notices required to be given to HOA shall be addressed as follows: Premier Community Services Attention: Sue A. Barnett, President 5661-A Palmer Way Carlsbad, CA 92010 Telephone: (760)431-4800 Fax: (760)431-4805 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602- 8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. -4- 6. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 7. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 8. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 9. Amendment. This Agreement may be amended by a written instrument executed by City and HOA except that no amendment regarding the provisions for reimbursement to HOA shall be valid unless executed by both the HOA and the City. 10. Term. This Agreement shall be effective as of the date first above written. The agreement shall extend for the life of the retaining wall structure. 11. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 12. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. -5- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. LA COSTA DE MARBELLA HOME OWNERS ASSOCIATION By: By: fe , Its: Vice President (print name and title of signatory) j±~S ^ (print name and title of signatory) CITY OF BRAND, qity Manager LORRAINE M. WOOD, Secretary (proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary to assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: Deputy General Coutisel -6- CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On before me.. 6trfl*^^4-. <$f*«rT (Here insert name and title of the officer) personally appeared g. yH|LU«> r* />«ll), 7 ' who proved to me on the basis of satisfactory evidence to be the person(#f whose name(gYJpkre subscribed to the within instrument and acknowledged to me thafcfie^she/they executed the same in(n[smer/their authorized capacityCiesjfTand that by Jfisftier/their signature^ offthe 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. Signature of Notary Public (Notary Seal) BARBARA A. STUART Commission * 1690635 Notary PubSc - Codtomta Son Diego County JO f "-«H ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT 4«n (Title or description of attached document) \A^**y-»~S Title or description of attached document continued) Number of Pages ' " Document Date (Additional information) CAPACITY CLAIMED, BY THE SIGNER D Individual (s D Corporateiofficer D Partners) D Attor/ey-in-Fact D Trustee(s) D OtWbr INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. 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If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. <• Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). Securely attach this document to the signed document •> * 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On before me Date , RpS£ personally appeared ( 4t rt NaHere Insert Name and Title of the .Officer c Name(s) of Signer(s) ROSE S. FONStCA Commission * 1773529 Notary Public - California Son Diego County = UJ 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. Place Notary Seal Above WITNESS Signature OPTIONAL - and and official seal. Signature of Notary Public Though the information below is not required by law, 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 Dpcument Title or Type of Document: Document Date:Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402• www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827