HomeMy WebLinkAboutPonderosa Country Homeowners Association; 2009-10-20;APR 13'* :M
AGREEMENT 1
This Agreement (this "Agreement") is entered into by and betwee^ PONDEROSAL^OJJNJJRY
HOMEOWNERS ASSOCIATION, a California non-profit mutual benefit corp^afioff:(rhB^SslbTMion)^ on
the one hand, and the CITY OF CARLSBAD, a municipal corporation (the "City"), on the other hand. For
ease of reference the Association and the City may sometimes be collectively referred to herein as the
"Parties."
RECITALS
A. The Association manages and controls the Ponderosa Country development located in the
City of Carlsbad, County of San Diego, State of California, more particularly described as follows:
LOTS 143 THROUGH 255, INCLUSIVE, OF CARLSBAD TRACT 73-29,
IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO A MAP THEREOF NO. 10257, FILED
ON NOVEMBER 9, 1981, IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ("PONDEROSA PROPERTY");
B. The Ponderosa Property in its entirety is subject to that certain Declaration of Covenants,
Conditions and Restrictions, recorded on September 15, 1983, as Document No. 1983-329840, and all
amendments thereto, recorded in the San Diego County Recorder's Office (the "Declaration");
C. Pursuant to the Declaration, the Board of Directors for the Association has the authority to
act on behalf of the Association relative to the portions of real property affected by this Agreement;
D. City currently holds an easement used in connection with sewer systems on the Ponderosa
Property;
E. In an effort to improve its infrastructure, City intends to abandon the sewer lift station near
La Golondrina Street and intends to construct a gravity sewer pipeline to replace it. The new pipeline
alignment is proposed to cross the Ponderosa Property as described on Exhibit "A," and City seeks a
Wastewater Pipeline Easement for that purpose;
F. The City is willing to (among other things set forth in this Agreement) pay the Association
just compensation in the amount of $4,000.00 for the Wastewater Pipeline Easement (the "Easement");
G. The Grant Deed of Wastewater Pipeline Easement sets forth specifically the purpose and
scope of the Easement, as well as the work and construction proposed by the City (the "Subject Work").
FOR VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
THE PARTIES AGREE AS FOLLOWS:
1. Obligations of the Association.
1.1. Grant of License. The Association shall grant and does hereby grant City and any of its
subcontractors and other necessary personnel a limited license to enter upon the Ponderosa Property for
purposes of performing the Subject Work. Notwithstanding the foregoing, this Section 1.1 shall in no way
limit or affect the easement rights granted in Section 1.2 below.
1.2. Grant of Wastewater Pipeline Easement to City. The Association shall agree to sign and
fully execute the Grant Deed of Wastewater Pipeline Easement attached herewith as Exhibit "B."
2. Obligations of City.
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2.1. Payment of $4.000. City shall pay to the Association $4,000.00 within thirty (30) days from
the date this Agreement is fully executed.
2.2. Notice to Membership and Notice to Proceed. City agrees that before any of the Subject
Work commences, that adequate notice will be given to the Association and its members. The Parties shall
meet and confer regarding potential timeframes that are mutually convenient prior to notice going out to the
membership. Adequate notice shall be defined as at least fifteen (15) calendar days in advance.
2.3. Timeliness and Workmanship. City and/or its contractors shall complete all work
contemplated herein in a professional and workmanlike manner consistent with typical construction
standards and applicable building codes, statutes, and ordinances that govern such work. City shall also
complete such work in a timely manner and take all necessary and reasonable steps to complete the proposed
work on time and without unnecessary delay. The Parties expressly agree that time is of the essence with
respect to this Agreement.
2.4. Insurance and Additional Insured Endorsement. Without limiting City's indemnity
obligation under Paragraph 2.6, City, at its sole cost and expense, shall obtain prior to entering the Ponderosa
Property and shall maintain during the period of any entry or work thereon, a policy or policies of
commercial general liability insurance with respect to the Ponderosa Property and the activities of or on
behalf of City and its representatives on or about the Ponderosa Property in the amount of not less than One
Million Dollars ($1,000,000) combined single limit bodily, death and property damage liability per
occurrence. Notwithstanding any other provision of this Agreement, City may self-insure for any risk set
forth in this Paragraph in the manner and to the extent that City self-insures for similar risks with respect to
its operations, equipment, and property. If, at any time during the term of this Agreement, City elects not to
self-insure, City shall comply with all applicable provisions of this Paragraph to the extent that City does not
so self-insure. Prior to any entry onto the Ponderosa Property by City or any representative, City or any
representative shall (a) deliver to the Association certificates of such insurance naming the Association as an
additional insured, and (b) provide reasonable proof that City and its agents, employees, consultants, and
contractors are covered by statutory worker's compensation insurance upon request. City acknowledges that
the right of entry granted in this Agreement is expressly conditioned on City's maintenance of the insurance
policies described in this Paragraph. If City receives notice that such policies will be canceled or modified in
accordance with clause (a) above, City shall obtain policies described herein from an alternative insurer prior
to such cancellation or modification.
2.5. Warranties. City warrants:
2.5.1. That it and its contractors/sub-contractors are financially solvent, able to pay all
debts as they mature and possess sufficient working capital to perform the Subject Work and perform all
obligations set forth in this Agreement;
2.5.2. That it and its contractor is able to furnish the proper facilities, tools, materials,
supplies, equipment and labor required to perform the Subject Work and its obligations hereunder;
2.5.3. That all contractors and subcontractors are authorized to do business in the State of
California and are properly licensed in all areas of work to be undertaken by them respectively in accordance
with the regulations of the Contractor's Licensing Board of the State of California and any other Authority;
2.5.4. That its execution of this Agreement and its performance thereof is within its duly
authorized powers;
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2.5.5. That it has visited the Ponderosa Property, is familiar with the local and special
conditions under which the Subject Work is to be performed;
2.5.6. That its contractors/sub-contractors possesses a high level of experience and
expertise in the business administration, construction, construction management and superintendence of
projects of the size, complexity and nature of this particular project, and that it will perform the Subject
Work with the care, skill and diligence of such contractors; and,
2.5.7. That all precautions reasonably necessary shall be taken by City and its
contractors/sub-contractors for the protection of persons and property at or around the Ponderosa Property.
2.6. Indemnification. To the fullest extent allowed by law, City shall indemnify and hold
harmless the Association, its Board members, officers, directors, members, agents, legal counsel and
employees (the "Indemnitees") from and against any liens, claims, damages, losses, expenses, judgments,
and attorneys' fees, arising out of or resulting from the performance of the Subject Work that results in bodily
injury, sickness, disease, death, or injury, damage or destruction of property, including loss of use thereof or
other economic loss, to the extent the damage or injury is the result of City's or its contractor's negligence or
intentional acts or omissions, or the negligent or intentional acts or omissions of anyone directly or indirectly
employed by them or anyone for whose acts they may be liable. This indemnification obligation shall not be
construed as reducing or eliminating any other right or obligations of indemnity that would otherwise exist to
the Indemnitees, and this obligation shall survive the termination of this Agreement as well as the completion
of the Subject Work.
2.7. City Approval, Permits, and Costs. City agrees that all work anticipated under this
Agreement shall be properly authorized by any governmental agencies vested with jurisdiction over the
Subject Work. City agrees to pay all costs, fees, and expenses for purposes of obtaining such permission,
permit(s) or documentation.
2.8. Mitigation and Hours of Construction. While performing construction activities associated
with the Subject Project, City shall make all reasonable efforts to minimize interference with Owners' use
and enjoyment of the Ponderosa Property. City shall also make all reasonable efforts to minimize noise,
erosion, and dust associated with its construction activities, and shall attempt to maintain the affected
portions of the Ponderosa Property in a neat and safe condition at the end of each work day. City shall use
reasonable efforts to restrict construction activities contemplated herein to the hours between 7:00 a.m. and
6:00 p.m., Monday through Saturday ("Permitted Hours"); however, City will provide advanced written
notice to the Association in the event any construction activity will be performed outside the scope of the
Permitted Hours.
2.9. Restoration of Ponderosa Property. After the Subject Work has been completed, it shall be
City's duty and obligation under this Agreement to completely restore any damaged property, landscape,
components, irrigation, drainage systems, structures, or any other item that was damaged or affected during
the course of performing the Subject Work. City shall be obligated to repair any areas disturbed by
construction activities related to or in any way connected with the Subject Work.
3. General Provisions.
3.1. References to the Parties or any third party shall be deemed to include their authorized
representatives.
3.2. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or
neuter gender, shall include all other genders and the singular shall include the plural and vice versa. Titles of
articles, paragraphs and subparagraphs are for convenience only, and neither limit nor amplify the provisions
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of this Agreement in itself. The use herein of the word "including" when following any general statement,
term, or matter, shall not be construed to limit such statement, term or matter to the specific items or matters
set forth immediately following such word, but rather shall be deemed to refer to all other items or matters
that could reasonably fall within the broadest possible scope of such general statement, term or matter.
3.3. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to
be effective and valid under applicable law. If, however, any provision of this Agreement, or portion thereof,
is prohibited by law or found invalid under any law, only such provision or portion thereof shall be
ineffective, without in any manner invalidating or affecting the remaining provisions of this Agreement or
valid portions of such provision, which are hereby deemed severable.
3.4. Any specific requirement in this Agreement that the responsibilities or obligations of the
Contractor also apply to a Subcontractor is added for emphasis and are also hereby deemed to include a
Subcontractor of any tier. The omission of a reference to a Subcontractor in connection with any of the
Contractor's responsibilities or obligations shall not be construed to diminish, abrogate or limit any
responsibilities or obligations of a Subcontractor of any tier under the Contract Documents or the applicable
subcontract.
3.5. Written notice shall be deemed to have been duly served if delivered in person to the
individual or a member of the firm or entity or to an officer of the corporation for which such notice was
intended, or if delivered or sent by facsimile or registered or certified mail to the addresses or facsimile
numbers listed herein unless otherwise notified in writing. Notices sent by facsimile shall be deemed
received upon transmission if sent between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. If
sent at other times, facsimiles will be deemed received at the beginning of the next working day thereafter.
3.6. No right or remedy herein conferred upon or reserved to either of the parties to this
Agreement is intended to be exclusive of any other right or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given under this Agreement or now or
hereafter legally existing upon the occurrence of an event of default under this Agreement. The failure of
either party to this Agreement to insist at any time upon the strict observance or performance of any of the
provisions of this Agreement, or to exercise any right or remedy as provided in this Agreement, shall not
impair any such right or remedy or be construed as a waiver or relinquishment of such right or remedy with
respect to subsequent defaults. Every right and remedy given by this Agreement to the parties to it may be
exercised from time to time and as often as may be deemed expedient by those parties.
3.7. The execution, interpretation, and performance of this Agreement shall in all respects be
controlled and governed by the laws of the State of California.
3.8. Assignment. Neither the Association nor City may assign this Agreement without the
express prior written consent of the other. Should either party attempt to assign this Agreement to any other
person or entity, the party attempting to assign shall remain legally obligated and responsible under the
Agreement. By signing this Agreement, both City and the Association bind themselves, their successors,
partners, assigns, and legal representatives to the other party hereto as respects the covenants, conditions,
agreements, and obligations contained in this Agreement.
3.9. Waiver. The Association's acts or failures to act to enforce any right or duty under this
Agreement shall not be considered or deemed a waiver of the right to enforce any other right or duty, nor is
the act or failure to act to be interpreted as approval of the breach by any other party, unless specifically
agreed to in writing.
3.10. Attorneys' Fees and Costs. Should any action, proceeding or arbitration be necessary to
construe or enforce the provisions of this Agreement, or the rights of the parties hereunder, the party
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n
prevailing in such action shall be entitled to recover all expenses, court costs, and reasonable attorneys' fees
(including such fees, costs and expenses that accrue prior to commencement of the lawsuit or arbitration) to
be fixed by the court or arbitrator and taxed as part of the judgment thereunder. Before any party may
initiate litigation against the other relative to this Agreement, both parties shall participate in non-binding
mediation with a mutually acceptable mediator and at a mutually acceptable time and location. The costs
charged by the mediator shall be split equally between the Parties. If a party fails to participate reasonably in
the mediation process before commencing a lawsuit, such lawsuit is subject to dismissal via a demurrer,
motion to strike, and/or motion for summary judgment.
3.11. This Agreement, including any specified attachments or other specified documents,
constitutes the entire agreement between the Association and City with respect to the obligations, conditions,
duties, and work to be performed under this Agreement. No change to this Agreement shall be valid unless
made by supplemental written agreement executed and approved by the Association and City. Except as
otherwise provided herein, any and all amendments, additions or deletions to this Agreement shall be null
and void unless approved by the Association and City in writing. Each party to this Agreement hereby
acknowledges and agrees that the other party has made no warranties, representations, covenants or
agreements, express or implied, to such party, other than those expressly set forth herein, and that each party,
in entering into and executing this Agreement, has not relied upon any warranties, representations, covenants
or agreements, express or implied to such party, other than those expressly set forth herein.
3.12. Each person signing this Agreement affirms that he or she has the necessary authority to
bind the party for which he or she signs.
3.13. Severability. If any provision in this Agreement becomes void or invalid or unenforceable in
law or equity or by judgment or court order, the remaining provisions hereof shall be and remain in full force
and effect.
3.14. Cumulative Remedies. The remedies set forth in this Agreement for breach of contract by
any party are cumulative remedies rather than on lieu of legal or equitable remedies otherwise available. A
party's pursuit of any remedy provided in this Agreement does not preclude that party from pursuing other
remedies, whether set forth in this Agreement or authorized by law or equity.
3.15. Integration. This Agreement is the entire agreement of the parties with respect to its subject
matter, and it supersedes and merges all prior and contemporaneous negotiations, agreements, promises and
representations.
3.16. Modification. Any modification or amendment to this Settlement Agreement must be in
writing and signed by all parties. This Settlement Agreement may not be modified or amended orally or by a
course of conduct.
3.17. Survival of Covenants. The covenants, representations and warranties set forth in this
Agreement shall survive its execution.
3.18. Binding on Successors. This Agreement is binding on the successors, heirs and assigns of
the Parties.
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The undersigned have read all of the terms and provisions of this Agreement, have had an opportunity to
fully consider the rights and consequences regarding executing same, fully understand the terms and
provisions of this Agreement and knowingly and voluntarily execute this Agreement. [CAUTION: PLEASE
READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE SIGNING.]
PONDEROSA COUNTRY HOMEOWNERS ASSOCIATION,
a California non-profit mutual benefit corporation
Dated:> By:
Dated:
Title:
Print Name:
By:_
Title:
Print Name:
CITY cipal corporation
Dated: \ 0
Dated:By:
Title:
Print Name:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:
On _, 2009, before me,
KEMP, Deputy City Attorney
(—••• (~-(/
/
, notary public, personally appeared
= , proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he/she/tbey 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 California that the foregoing is true
and correct.
WITNESS my hand and official seal.
(Signature)Seal
JWWC. CUTUI ICOMM. #1775291 z
NotwyPublic-California 3San Owgo County -
My Comm. Exatts Pet 23.2011 f
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, notary public, personally appeared
STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO )
On /My?/ 2009, before me, ^J0/t/*J C . L i
l/yi^TV/g/^f {_ . <^6/7"«^gr|g-
person whose name is subscribed to the within instrument and acknowledged to me that-fee/she/they 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 California that the foregoing is true
and correct.
, proved to me on the basis of satisfactory evidence to be the
WITNESS my hand and official seal.
Seal
' ~«tofc:cuW ' I
COMM. #1775291 z
Notary Public-California 5
San Diago County -
My term Expire Oct 23.2011 f
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO )
On _, 2009, before me,_, notary public, personally appeared
, proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he/she/they 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 California that the foregoing is true
and correct.
WITNESS my hand and official seal.
(Signature)Seal
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