HomeMy WebLinkAbout2014-11-04; City Council; 21776; Approving Median Maintenance Levine Investments 6155 El Camino Real Viasat Lot 1 Project SUP 98-03(D)CITY OF CARLSBAD - AGENDA BILL
21.776 AB#
MTG. 11/04/2014
DEPT. CED
APPROVING A MEDIAN MAINTENANCE AGREEMENT WITH
LEVINE INVESTMENTS LIMITED PARTNERSHIP AT 6155 EL
CAMINO REAL (VIASAT LOT 1), PROJECT NO. SUP 98-03{D)
DEPT.DIRECTOR
CITYATTORNEY
CITY MANAGER
Adopt Resolution No. 2014-258 approving a median maintenance agreement with Levine Investments
Limited Partnership, an Arizona Limited Partnership (Levine Investments) at 6155 El Camino Real (ViaSat Lot 1),
Project No. SUP98-03(D).
ITEM EXPLANATION:
Pursuant to Condition No. 35 of Planning Commission Resolution No. 7030, the property owner has executed a
Median Maintenance Agreement for El Camino Real at ViaSat Lot 1. This agreement addresses the
maintenance of private landscaping and irrigation in the raised median and right-of-way of El Camino Real near
the intersection of El Camino Real and Gateway Road. The agreement transfers maintenance obligations, costs
and liability for non-standard landscape improvements in the median to Levine Investments.
This Agreement has been reviewed by Pianning, Engineering, Finance and the City Attorney's Office. Based on
staff's review, this agreement satisfies condition No. 35 of Planning Commission Resolution No. 7030.
Therefore, staff recommends approval ofthis agreement.
FISCAL IMPACT:
Median landscape and irrigation maintenance will be performed by Levine Investments. If Levine investments
fails to maintain the landscaping and irrigation, in accordance with the terms of this agreement, the city may
take over the maintenance and invoice Levine Investments or ultimately lien the property for all costs incurred
by the city. The city will continue to assess Levine Investments median maintenance costs for city-wide
medians located outside the subject Property and Medians limits pursuant to the rights of the Lighting and
Landscaping District #1.
ENVIRONMENTAL IMPACT; /
The approval of a median maintenance agreement is a ministerial process and is exempt from the
requirements ofthe California Environmental Quality Act (CEQA) pursuant to Cadsbad Municipal Code Section
19.04.070 A.l.a.
EXHIBITS:
1. Resolution No. 2014-258 approving a median maintenance agreement with Levine Investments
Limited Partnership, at 6155 El Camino Real (ViaSat Lot 1), Project No. SUP 98-03(D).
2. Location Map.
3. Median Maintenance Agreement for El Camino Real at ViaSat Lot 1, Project No. SUP 98-03(D).
DEPARTMENT CONTACT: David Rick 760-602-2781 david.rickPcarlsbadca.ROV
FOR CITY CLERKS USE ONLY /
COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC •
DENIED • CONTINUED TO DATE UNKNOWN •
CONTINUED • RETURNED TO STAFF •
WITHDRAWN • OTHER-SEE MINUTES •
AMENDED •
EXHIBIT 1
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RESOLUTION NO. 2014-258
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A MEDIAN MAINTENANCE AGREEMENT WITH
LEVINE INVESTMENTS LIMITED PARTNERSHIP, AN ARIZONA LIMITED
PARTNERSHIP FOR EL CAMINO REAL AT VIASAT LOT 1, PROJECT NO. SUP
98-03(D).
g WHEREAS, the Property Owner, Levine Investments Limited Partnership, an Arizona
7 Limited Partnership, has executed a Median Maintenance Agreement for El Camino Real at ViaSat Lot 1
8 and has submitted the Agreement to the City of Carlsbad for approval; and
9 WHEREAS, the Property Owner has submitted this agreement pursuant to Condition No.
10 35 of Planning Commission Resolution No. 7030; and
WHEREAS, staff recommends approval of this Agreement in that it satisfies condition
No. 35 of Planning Commission Resolution No. 7030.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the Median Maintenance Agreement for El Camino Real at ViaSat Lot 1,
Project No. SUP 98-03(D), between Levine Investments Limited Partnership, an Arizona Limited
Partnership and the City of Carlsbad, which is attached hereto and incorporated herein by reference, is
2Q hereby approved and the Mayor is authorized and directed to execute said Agreement.
21 3. That the City Clerk is authorized to forward said Agreement to the Office of the
22 County Recorder for recordation.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City
of Carlsbad on the 11th day of November 2014, by the following vote to wit:
AYES:
NOES:
ABSENT:
Council Members Hall, Packard, Wood, Schumacher, Blackburn.
None.
None.
MATT HALL, Mayor
ATTEST:
•^NMhRk ENGLESON,'eity ,vv»BA!ReARA ENGLESON,'eity Clerk
o^^^-vSBAoX
^ ".-Htf O
LOCATION MAP
SITE
SITE
NOT TO SCALE
PROJECT NAME EL CAMINO REAL AT VIASAT
L0T1
PROJECT
NUMBER
SUP98-03(D)
EXHIBIT
PLOTTED BY: SCOTT EVANS PLOT DATE: 10/14/14 PATH:D: \DEVELOPMENT PROJECTS\SUP\SUP9B-03D.DWG
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Space Above This Line for Recorder's Use Only (Gov. Code 27361.6)
ASSESSOR'S PARCEL NO.
PROJECT ID
PROJECT NAIVIE
RELATED PROJECT ID
213-100-01-00
SUP 98-03(D)
El Camino Real at Viasat Lot 1
SUP 14-04(A)
MEDIAN MAINTENANCE AGREEMENT
This Agreement is made by and between Levine Investments Limited Partnership, an
Arizona Limited Partnership, by and through its General Partner, Keim, Inc., an Arizona
Corporation (collectively referred to as "Levine Investments Limited Partnership") and the
Cityof Carlsbad, a municipal corporation ("City"), (collectively, "Parties").
RECITALS
WHEREAS, Levine Investments Limited Partnership owns certain real property in
the City of Carlsbad, County of San Diego, and State of California, known as Viasat Lot 1
(APN 213-100-01-00), more properly described in "Exhibit A," attached hereto and
incorporated herein ("Property"); and,
WHEREAS, adjacent to Property are landscaped medians, which are owned by City
and situated in or pertaining to the middle of El Camino Real road, also owned by City, which
are more properly described in "Exhibit B", attached hereto and incorporated herein
("Median");
1|Page - Median Maintenance Agreement
WHEREAS, Levine Investments Limited Partnership seeks to assume the right to
ingress and egress Median to remove all existing plant materials, repair the existing
irrigation as needed and reinstall new plant materials, and to provide ongoing, constant,
consistent and permanent maintenance of the hard and soft landscaping and irrigation
located within the Medians, for the practical and aesthetic benefit of Levine Investments
Limited Partnership as well as the citizens of City and all members of the public who may
view the landscaped Medians;
WHEREAS, Property and Median are located within Street Lighting and
Landscaping District #1 ("District"). District is a financing mechanism to fund the
maintenance and replacement of certain improvements within the right-of-way including
median landscaping & irrigation; and,
WHEREAS, in lieu of District performing maintenance of Medians, the Owner shall
perform said maintenance. The District will continue to assess Property medians
maintenance costs for city-wide medians located outside Property and Medians limits
pursuant to the rights of the District.
NOW, THEREFORE, in consideration ofthe above recitals and mutual covenants herein,
the Parties agree as set forth below.
1. City Transfer of Right to Replant and Maintain Medians:
City does hereby transfer the right to ingress and egress upon, to remove all existing
plant materials, repair the existing irrigation as needed, reinstall new plant materials
and otherwise provide and undertake all regular, routine, consistent and permanent
maintenance of all Medians, as more properly described in "Exhibit B", to Levine
Investments Limited Partnership, subject to the terms and conditions contained in
this Agreement.
2. Median Improvements:
Levine Investments Limited Partnership has prepared plans to remove all existing
plant materials, repair the existing irrigation as needed, reinstall new plant materials
and irrigation within the Medians in accordance with the Carlsbad Municipal Code,
the Carlsbad Landscape Manual, the Carlsbad Community Forest Management
Plan, and all other applicable City policies, regulations, and standards, all as shown
on the approved landscape and irrigation plan (collectively "Landscape and Irrigation
Plans") referenced on DWG 483-3 on file with the City. At the time of installation of
Median hardscape, the hardscape will be evaluated in conjunction with City staff for
condition and state of repair. Levine Investments Limited Partnership will not be
responsible for any pre-existing damage to the Median hardscape or landscape.
Levine Investments Limited Partnership will be responsible for any future damage
caused by the installation or growth of the new plant materials and irrigation
systems.
3. Median Maintenance by Levine Investments Limited Partnership:
Levine Investments Limited Partnership agrees, at its sole cost and expense, to
maintain, repair, and replace, the Medians described herein. The locations of
Medians covered by this Agreement are described in "Exhibit B", attached hereto.
The maintenance obligations are described as:
2|Page - Median Maintenance Agreement
a. Levine Investments Limited Partnership shall perform all necessary
maintenance on Medians in accordance with the Carlsbad Municipal Code,
the Carlsbad Landscape Manual, the Carlsbad Community Forest
Management Plan, and all other applicable City policies, regulations, and
standards, except where modified perthe approved Landscape and Irrigation
Plans, DWG 483-3, including but not limited to, median trees, turf, shrubbery,
groundcover, irrigation and hardscape to ensure Medians are maintained in
a healthy, hearty, high-quality condition. The soft and hardscape maintenance
specifications and frequency schedules shall at minimum be consistent with
such specifications and schedules of the city-wide medians maintenance
services ofthe then current city-wide medians maintenance services
agreement. Maintenance includes, but is not limited to, watering, fertilizing,
trimming, pruning, staking, utilities, root barriers, pesticides, and planting
replacements. Levine Investments Limited Partnership shall install only those
species of plants as approved by the City in accordance with the approved
Landscape and Irrigation plans, DWG 483-3, on file with the City. Levine
Investments Limited Partnership is responsible to maintain plants in locations
as shown on the approved Landscape and Irrigation Plans. Levine
Investments Limited Partnership shall not remove or relocate plants to
alternate locations without written prior approval from the City. Levine
Investments Limited Partnership shall perform maintenance to prevent and, if
necessary, address any immediate health and safety concerns including but
not limited to fallen trees, overgrowth into vehicular or pedestrian travel way
root damage to Median paving/hardscape (excluding any damage existing at
the time ofthis Agreement per Section 2. Median Improvements above),
sidewalks, and visual impairments related to traffic movements. All
maintenance activities in this paragraph are described as "Medians
Maintenance", hereinafter. Unless othenwise approved by the City, all plants
removed due to death shall be replaced by the Levine Investments Limited
Partnership with a plant of the same species as the one removed, and within
the same vicinity as the one removed. If replacing a Medians tree, the
replacement tree shall be of a minimum 15-gallon container size. If replacing
a Medians shrub, the replacement shrub shall be a minimum 5-gallon
container size. All replacements shall be installed by the Levine Investments
Limited Partnership no later than 45 days from the date the prior plant was
removed.
4. Medians Irrigation and Utilities:
Levine Investments Limited Partnership, at its sole cost and expense, shall provide
for all ongoing irrigation required to ensure adequate growth and, once established,
to maintain the Medians covered by this Agreement. Levine Investments Limited
Partnership is responsible to maintain all Irrigation Improvements as shown on the
Landscape and Irrigation Plans ("Irrigation Improvements"). Levine Investments
Limited Partnership shall perform necessary inspections of irrigations systems and
controllers to make adjustments of seasonal water demands and irrigation heads to
provide the necessary water for Medians. Irrigation systems maintenance
specifications and frequency schedules shall at minimum meet such specifications
3|Page - Median Maintenance Agreement
and schedules of the then current city-wide medians maintenance services
agreement.
5. Permits Required:
Levine Investments Limited Partnership shall obtain all necessary permits required
to perform Medians Maintenance in City right-of-way through the City's Community
and Economic Development Department. However, Levine Investments Limited
Partnership shall not be required to pay fees for obtaining the necessary permits.
6. Responsibility of Plans:
Approval ofthe Landscape and Irrigation Plans by the City shall not constitute an
assumption by the City of any responsibility for such damage, costs, etc. City shall
not be an insurer or surety for the design, construction or maintenance of the
Medians pursuant to the Landscape and Irrigation Plans, nor shall any officer or
employee thereof be liable or responsible for any accident, loss or damage
happening or occurring while performing Medians Maintenance as specified in this
Agreement.
7. District:
In lieu of District performing maintenance of Medians, Levine Investments Limited
Partnership shall perform said maintenance and, provided Medians Maintenance is
performed pursuant to the terms of this Agreement, District will not perform medians
maintenance within Medians limits. However, District will continue to assess
Property medians maintenance costs for city-wide medians.
8. Failure to Perform the Terms of the Agreement by Levine Investments Limited
Partnership:
In the event that the Levine Investments Limited Partnership fails to perform
Medians Maintenance, the failure may be considered a breach of terms ofthis
Agreement. The City is the sole arbiter to evaluate the Levine Investments Limited
Partnership performance of Medians Maintenance. The City has the option to
provide Levine Investments Limited Partnership an opportunity to remedy and cure
the breach within a finite period of time, or, alternatively, the City may elect, in the
public's interest that the District take over Medians Maintenance. Upon the City's
determination, the City shall provide written notice to inform Levine Investments
Limited Partnership that either Levine Investments Limited Partnership shall remedy
and cure the breach or the District intends take over Medians Maintenance covered
by this Agreement. If the District takes over the responsibility of the Medians
Maintenance, its duty to provide the maintenance shall commence on the 90th day
after Levine Investments Limited Partnership's receipt of said notice. Further, ifthe
District takes over responsibility ofthe Medians Maintenance, the City may terminate
this Agreement.
Notwithstanding this section, all Medians within the Property will continue to be
annually assessed at the assessment rate most recently approved by City Council,
consistent with the District requirements.
4|Page - Median Maintenance Agreement
9. Successors and Assigns:
This Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective legal representatives, successors and assigns.
10. Termination:
This Agreement may only be terminated by the Parties for cause based upon a
material breach of the Agreement and a failure to cure the breach by the breaching
party after being provided notice of default and a reasonable opportunity to cure said
default.
If this Agreement is terminated for cause, then Levine Investments Limited
Partnership, at its sole cost and expense, shall return Medians to City standards in
accordance with the then current Carlsbad Municipal Code, the Carlsbad Landscape
Manual, the Carlsbad Community Forest Management Plan, and all other applicable
City policies, regulations, and standards within 90 days of termination ofthe
Agreement. Prior to returning Medians to City standards, and in conjunction with the
written notice, Levine Investments Limited Partnership shall submit landscape and
irrigation plans for approval by the City. Within 30 days after submittal, the City shall
provide Levine Investments Limited Partnership with a plan review response, and
shall not unreasonably withhold its subsequent approval of said plans upon
incorporation of any/all comments and corrections, relative to the above referenced
City standards, on that plan review response. If Levine Investments Limited
Partnership fails to return Medians to City standards within 90 days of termination of
the Agreement, the City shall have the right, but not the obligation to return Medians
to City standards. Ifthe City returns Medians to City standards, City may elect, at its
own discretion, to invoice Levine Investments Limited Partnership forthe costs the
City incurred to return Medians to City standards. Levine Investments Limited
Partnership shall be responsible to reimburse the City as outlined in Section 11
below.
If pursuant to 1| 8 above, the City elects to have the District take over the
responsibility of the Medians Maintenance and thus terminates this Agreement for
convenience, then the City, at its sole cost and expense, shall have the right, but not
the obligation to return Medians to City standards in accordance with the then
current Carlsbad Municipal Code, the Carlsbad Landscape Manual, the Carlsbad
Community Forest Management Plan, and all other applicable City policies,
regulations, and standards within 90 days of termination ofthe Agreement.
11. Lien Capability:
Subsequent to Levine Investments Limited Partnership notice as provided for in
Section 8 above, and Levine Investments Limited Partnership's failure to remedy
and cure the breach ofthis Agreement, the City may have the right, but not the
obligation to perfonn certain Medians Maintenance to address issues that may
involve public safety and the welfare of the public ("Public Safety Medians
Maintenance"). The City may elect, at its own discretion, to invoice Levine
Investments Limited Partnership for the costs the City incurred to perform Public
Safety Medians Maintenance, or work as described in Section 10 above, within the
scope ofthis Agreement ("Invoice"). Levine Investments Limited Partnership shall
pay the full invoiced amount within 60 days of the date of the Invoice. If after 60 days
5|Page - Median Maintenance Agreement
of non-payment of said Invoice, the amount listed on the Invoice shall constitute a
lien on Levine Investments Limited Partnership's Property and City may enforce said
lien with all available remedies in accordance with the applicable law.
12. Indemnity:
Levine Investments Limited Partnership shall defend, indemnify and hold harmless
the City, its officers, employees and agents from any actions, suits, claims, damages
to persons or property, costs, including attorney's fees, penalties, obligations, errors,
omissions, demands, liability, or loss that may be asserted or claimed by any
persons, firm, or entity arising from the Levine Investments Limited Partnership's
performance of Medians Maintenance, or lack thereof as required in this Agreement,
unless such action, suit, claim, or damages arises from the sole negligence ofthe
City, its officers, employees and agents.
13. Notices:
Any notice which is required or may be given pursuant to this Agreement shall be
sent in writing by United States mail, first class, postage pre-paid, registered or
certified with return receipt requested, or by other comparable commercial means
and addressed as follows:
If to the City:
City Engineer
City of Carlsbad
1635 FaradayAvenue
Carlsbad CA 92008
If to Levine Investments Limited Partnership:
Levine Investments Limited Partnership
2201 East Camelback Rd., Ste. 650
Phoenix, AZ 85016
A party's address may be changed from time to time by providing notice to the other
party in the manner described above.
14. Capacity.
Each party represents that the person(s) executing this Agreement on behalf of such
party have the authority to execute this Agreement and by such signature(s) thereby
bind such party.
6|Page - Median Maintenance Agreement
Levine Investments Limited Partnership,
an Arizona Limited Partnership, by its
General Partner, Keim, Inc., an Arizona
Corporation
*BY:
(sign here)
William S. Levine, Chairman of Keim,
Inc., an Arizona Corporation
(print name/title)
(e-mail address)
"By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
Mayor
ATTEST:
BARBARA ENGLESON
City Clerk
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation, Agreement must be signed by one corporate officer from each of
the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
Assistant City
8|Page - Median Maintenance Agreement
IN WITNESS WHEREOF, the undersigned has executed this instrument on the referenced
dates.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7|Page - Median Maintenance Agreement
STATE OF ARIZONA)
) ss.
County of Maricopa )
Public,
On this, the 7 ^^y.°f (^f Jp^ • 2014 before me the undersigned Notary
personally appeared /,^/f/£ff^.ii0'/2^ . the CJ^^^j^^.^ of Keim, Inc., the
General Partner of Levine Investments Limited Partnership, the Member of Pivotal 650
California Street LLC, an Arizona limited liability company and acknowledged that he as such
officer, being authorized to do so, executed the foregoing.
In witness whereof, I have hereunto set my hand and official seal.
OFFICIAL SEAL
AMANDA B. KOWALSKI
Notaiy Puliic-SM* of Arinm
MARiCOm COUNTY
My CaflMR. Expires Apd to, 2016
" '^ Notary Public
Notary Expiration Date: ^J.jPiJ^
Description of document this notarial certificate is being attached to:
Type/Title
Date of Document
Number of Pages
Add'l signers (otherthan those named in the
notarial certificate
9|Page - Median Maintenance Agreement
\2>
EXHIBIT "A"
All that certain real property situated in the County of San Diego, State of California,
described as follows:
Lot 1 ofCarlsbad Tract No. 98-07, Lincoln Northpolnte, in the City ofCarlsbad, County
of San Diego, State of California, according to Map thereof No. 13716, filed in the Office
ofthe County Recorder of San Diego County, December 31, 1998.
Assessor's Parcel No: 213-100-01
10|Page - Median Maintenance Agreement