HomeMy WebLinkAboutSahu, Amit K and Parulben N. Ajmera; 2020-05-11;TEMPORARY RIGHT OF ENTRY AGREEMENT
THIS TEMPORARY RIGHT OF ENTRY AGREEMENT (AGREEMENT), is made and
entered into as of MAY 11, 2020 ("Agreement Date•), by and between the City of
Carlsbad, a chartered municipal corporation ("City"), and the Owners of the real property
identified below. City and owners may also be individually referred to as a "Party• and
collectively as the "Parties."
THE PROPERTY:
APN: 206-192-41-00
Owners of Record: Amit K. Sahu and Parulben N. Ajmera
Mailing Address: P.O. Box 503298
San Diego, CA 92150-3298
RECITALS
1. On March 24, 2020 the Car1sbad City Council declared various properties to be a
public nuisance for purposes of the Fire Department's annual fire prevention weed abatement
program. The Property is one such property on the 2020 weed abatement property list and has
been mailed a 2020 weed abatement notice (attached as Exhibit "A"). Similar annual weed
abatement notices have been mailed to Owners in prior years.
2. In order to comply with the weed abatement notice, Owners must trim or remove
certain weeds {non-native species) on the Property to ensure an adequate fuel modification
zone that will protect adjacent structures and allow fire equipment access if necessary.
3. In September 2018, owners received a Notice of Violation from the City in
connection with clearing activity on the Property that City deemed to be unauthorized clearing in
violation of various provisions of the Carlsbad Municipal Code {Code Enforcement Case
Number 18-0698). This Notice of Violation was followed by the issuance of two citations against
the Property. Owners appealed the citations, claiming that the clearing activity on the Property
was in response to the Fire Department's annual weed abatement notice issued in the spring of
2018. An administrative hearing officer upheld the City's citations, and Owners filed a writ of
administrative mandamus challenging the hearing officer's order (San Diego Superior Court
case number 37-2019-00021354-CU-VVM-NC). City and Owners ultimately settled the
administrative mandamus proceeding by requiring Owners to engage in specified mitigation
efforts should the disturbed portions of the Property be developed in the future.
4. In good faith with the settlement described in Paragraph 3, and to ensure that
there is no confusion between the Parties as to which weed abatement measures ("Work"} are
necessary to satisfy City's annual weed abatement notices, City has agreed to offer and Owners
have agreed to accept that a City contractor perform the necessary Work on the Property for the
year 2020 only.
•.
5. The City, and its contractor(s), will require entry to the Property in 2020 to
perform the Work on this one-time basis and bring the Property into compliance with the Fire
Department's annual weed abatement notice.
6. City has agreed to waive the anticipated costs to complete the required Work on
the Property for the year 2020 only, in good faith and in furtherance of the settlement described
in Paragraph 3.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained therein, City and Owners, agree as follows:
1. RIGHT OF ENTRY AREA. Owners grant City permission to enter upon the Right
of Entry Area within the Property, as identified on the attached Exhibit "B" ("Right of Entry
Area"), to implement the Work.
2. ACCESS. Owners authorize and shall provide reasonable access to City, its
employees or its contractor(s) to the Property to access the Right of Entry Area in order to
perform the Work during the term of this Agreement. The Work and all related Work activities or
events shall be limited and conducted as herein required. At least 24 hours prior to any entry
under this authorization, the City shall provide notice by email to Owners, at
sahu2@vahoo.com, to provide Owners with the opportunity to be present at the Property and
communicate concerning the scope of the Work when the City or its employees or contractors
access the Property.
3. IMPROVEMENTS WITHIN RIGHT OF ENTRY AREA. This Agreement provides
City or its designated contractor(s) with the right to enter onto the Property for access to perform
the Work, as further described in Exhibit "C." City agrees to repair any damage to the Property
outside of the Right of Entry Area ( excluding plant, irrigation or fence material) that is caused by
the Work and shall remove any and all equipment and leftover materials used in conducting the
Work.
4. MAINTENANCE OF IMPROVEMENTS WITHIN THE RIGHT OF ENTRY AREA.
Upon completion of the Work on the Property, Owners shall be responsible for all future
maintenance and associated costs for the work performed by City or its designated contractor(s)
on the Property, indefinitely.
5. COSTS. City agrees to waive its costs for this one-time weed abatement activity
taken in 2020 pursuant to the Fire Department's annual weed abatement program. This waiver
is granted based on the case history of this Property, specifically Carlsbad Code Enforcement
Case Number 2018-0698 and San Diego Superior Court case number 37-2019-00021354-CU-
WM-NC, which resulted in a settlement between City and Owners. This waiver granted in good
faith to clarify weed abatement measures that are required on the Property in 2020 and may be
required on the Property in the future pursuant to the Fire Department's annual weed abatement
program. City's agreement to the waiver of such costs does not waive the City's ability to pursue
any available enforcement remedies for any Carlsbad Municipal Code violations relating to the
Property.
6. INDEMNITY. City shall not be liable for, and Owners shall indemnify and hold
harmless the City, and any of their officers, agencies, agents, contractors, subcontractors,
employees and volunteers, against any and all claims, deductibles, self-insured retentions,
demands, liability, judgements, awards, fines, mechanics' liens or other liens, labor disputes,
attorneys' fees and court costs (hereinafter collectively referred to as "Claims"), which arise out
of or are in any way connected to actions arising out of this Agreement, and hereby release,
discharge and waive any claims and actions, in law or equity, arising therefrom. However,
2
Owners' duty to indemnify and hold harmless shall not include any claims or liability arising from
the established sole gross negligence or intentional misconduct of City and any of its officers,
agencies, agents, contractors, subcontractors, employees and volunteers.
7. TERM. This Agreement shall begin on the date shown above and continue in
force until the Work is complete
8. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement
between the Parties and supersedes other oral or written provisions. No modification of this of
any provisions in this Agreement shall be binding on either party unless expressly agreed to in
writing by all Parties.
9. RELEASE. Upon completion of the Work, Owners release City and its
contractors from any and all future maintenance or repair responsibilities for the Work and the
Right of Entry Area. Also upon completion of the Work, the Property will be deemed to be in
compliance with the Fire Department's 2020 weed abatement notice (Exhibit "A').
10. COUNTERPARTS. This Agreement may be executed in duplicate counterparts,
and when executed by both Parties, each duplicate shall be deemed a single agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the Agreement Date.
PROPERTY OWNERS
Signed: Date:
Printed Name:
Signed: Date:
Printed Name:
APPROVED AS TO FORM: Counsel for Property Owners
Celia Brewer, City Attorney
3
Owners' duty to indemnify and hold harmless shall not include any claims or liability arising from
the established sole gross negligence or intentional misconduct of City and any of its officers,
agencies, agents, contractors, subcontractors, employees and volunteers.
7. TERM. This Agreement shall begin on the date shown above and continue in
force until the Work is complete
8. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement
between the Parties and supersedes other oral or written provisions. No modification of this of
any provisions in this Agreement shall be binding on either party unless expressly agreed to in
writing by all Parties.
9. RELEASE. Upon completion of the Work, Owners release City and its
contractors from any and all future maintenance or repair responsibilities for the Work and the
Right of Entry Area. Also upon completion of the Work, the Property will be deemed to be in
compliance with the Fire Department's 2020 weed abatement notice (Exhibit "A').
10. COUNTERPARTS. This Agreement may be executed in duplicate counterparts,
and when executed by both Parties, each duplicate shall be deemed a single agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the Agreement Date.
PROPERTY OWNERS
~✓~ A Signed: v Ct IL ~~ ':YJlf!,,0
Printed Name: PA~~ AJMERA
Date: 5/11/2020
Signed: Date: 5/11/2020
Printed Name: AMIT SAHtJ
APPROVED AS TO FORM: Counsel for Property Owners
Celia Brewer, City Attorney
3
By:~~
Marissa Kawecki
Deputy City Attorney
4
By: /}1/i
Kenneth J. Ca
Cassutt Law Firm
Ci CITY OF EXHIBIT A
CARLSBAD
Fire Department
In Reference
Assessor's Parcel No.
APN 2061924100 09000
SAHU AMIT K+AJMERA PARULBEN N
PO BOX 503928
CARSLSBAD, CA 92008
Dear Property Owner:
In an effort to reduce hazardous conditions on lots throughout the
community, the City of Carlsbad has begun its Annual Weed and Rubbish
Abatement Program. Your property has been identified due to the fact that
a potential fire hazard exists upon the property. As the property owner, the
reduction of hazards on the property is your responsibility. Should you no
longer own the property, please notify this office immediately.
In conformity with the provisions of Sections 39560, et. seq., of the
California Government Code, you are hereby notified that hazardous
vegetation and/or rubbish shall be removed from the above-mentioned
property by May 15, 2020.
Notices will not be placed on the property. PLEASE REFER TO THE
NOTICE AND INSTRUCTIONS ON THE REVERSE SIDE OF
THIS LETTER, PARTICULARLY THE SPECIAL ACTIONS TO BE
TAKEN WITH CERTAIN PROTECTED (SENSITIVE) NATIVE
HABITAT.
Property cleared and maintained free of combustible vegetation and/or
rubbish, and in compliance with the requirements listed on the enclosed
City of Carlsbad Fire Department Hazard Reduction Information sheet, is
not subject to further action by this department. Additionally, certain
protected (sensitive) native habitat, as determined by city staff at the
request of the property owner, is exempt from these requirements and
should not be cleared. Protected native habitat is not subject to further
action by this department. After May 15, 2020, property that is not cleared
of a hazardous condition, maintained in a safe condition or otherwise
determined to be exempt is subject to abatement by City contracted crews.
THE COST FOR ABATEMENT BY THE CITY, PLUS AN
ADMINISTRATIVE CHARGE (NOT TO EXCEED $271.00) WILL
BE ADDED TO THE OWNER'S TAX STATEMENT. The condition
of property remains the responsibility of the owner and legal action may
be initiated to enforce applicable regulations.
TO AVOID ADMINISTRATIVE CHARGES AND/OR OTHER
ENFORCEMENT ACTION, THE CITY URGES PROPERTY
OWNERS TO MAKE PRIVATE ARRANGEMENTS FOR THE
CLEARING OF WEEDS AND RUBBISH FROM THEIR
PROPERTIES BY MAY 15, 2020. A list of local contractors is enclosed
for your convenience.
For further information or assistance, you may contact the Weed
Abatement Officer Monty Kalin at 760-602-4665, between the hours of
8:00 a.m. and 5:00 p.m., Monday through Friday or via e-mail:
Monty,kalin@carlsbadca,gQY. Questions regarding special actions to be
taken with sensitive native habitat may be directed to Senior Program
Manager Rosanne Humphrey during the same timeframe at 760-602-4689
or via email: Rosanne.humphrey@carlsbadca.gov.
Enclosure
Notice to Property Owners
March 24, 2020
Page 2 of 4
SEE NOTICE NEXT PAGE
NOTICE TO DESTROY
WEEDS & REMOVE
RUBBISH
NOTICE IS HEREBY GIVEN that on the 24th day of March 2020, the City Council of the City of
Carlsbad passed a resolution declaring that noxious or dangerous weeds were growing upon or in
front of the property on certain streets in the City as described in the resolution, and/or that rubbish
was upon or in front of said property, and that the weeds and rubbish constitute a public nuisance
which must be abated by the removal of the weeds and rubbish. Otherwise, they will be removed,
and the nuisance will be abated by the City, and the cost of removal assessed upon the land from or
in front of which the weeds or rubbish are removed and will constitute a lien upon such said land until
paid. Please refer to the resolution for further particulars. A copy of the resolution is on file with the
City Clerk's office.
NOTE: CERTAIN PROTECTED (SENSITIVE) NATIVE HABITAT MAY BE EXEMPT FROM THESE
REQUIREMENTS AND SHOULD NOT BE CLEARED. Please contact the City Fire Marshal at
(760) 602-4666 or the Habitat Management Program Manager at (760) 602-4689 prior to April
21, 2020 if, after reviewing this notice, you believe this exemption applies. PROPERTY
OWNERS WITH ALL OTHER SPECIAL CLEANING PROBLEMS MUST CONTACT THE CITY FIRE
MARSHAL AT (760) 602-4666 PRIOR TO APRIL 21, 2020.
All property owners having an objection to the removal of such weeds and rubbish are hereby
notified of a meeting of the Carlsbad City Council on April 21, 2020, at 6:00 p.m. The agenda
of this meeting includes a public hearing to consider objections of property owners.
A public hearing will be scheduled for 6:00 p.m. on July 28, 2020, by the Carlsbad City Council to
consider the Weed Abatement Cost Report. This Cost Report will be posted for one week prior to the
hearing. Objections may be heard at this public hearing.
For further information on the locations of these meetings, please call (760) 602-4665.
Dated this 24th day of March 2020.
J ,, ~
1 /' 'j A
.h-,YYw.-•"--v--K. Jt k ;[/~
BARBARA ENGLESON
f~ityClerk
Notice to Property Owners
March 24, 2020
Page 3 of 4
CITY OF CARLSBAD FIRE DEPARTMENT
HAZARD REDUCTION INFORMATION
I. WEED ABATEMENT STANDARDS
Items A through F are the basic standards employed by the City of Carlsbad Fire Department
when abating hazardous conditions. Properties cleaned by owners or private contractors will
be evaluated by means of the following standards:
A. Grass, weeds, trash, and other rubbish shall be removed from vacant lots, yards,
courtyards, parkways and other locations as specified by the Fire Department.
8. Native brush and chaparral that have been cleared or thinned previously in the past
five years shall be modified in the same manner for a minimum distance of 60 feet
measured from the closest combustible structure, discounting fences. Fuel modification
shall conform to the standard requirements. Further information may be obtained from
the Carlsbad Fire Department Fire Prevention Division at (760) 602-4665.
C. Native brush and chaparral that have not been previously cleared or modified in the
past five years must be assessed on a case-by-case basis to determine whether the
removal will conflict with the Federal Endangered Species Act of 1993. Please refrain
from anY. clearing activitY. prior to contacting/consulting with the Fire Prevention Division
at (760) 602-4665 and/or the City's Habitat Management Program at (760) 602-4689.
D. Fuel breaks of 60 feet or more that have been previously required in the past five
years shall be maintained by mowing. New fuel breaks may be required on a case-by-
case basis and owners of affected properties will be notified by mail before abatement.
E. Abatement shall be accomplished by power mowing to three inches in height. In
some areas, such as fuel breaks or problem areas involving hazards to mowing
equipment, discing may be approved. Regardless of method used, standing weeds
remaining around perimeters of lots after mowing or discing shall be cut to three inches
in height. Cut vegetation shall be reduced on site or disposed of in an approved
method.
F. Open burning is prohibited.
II. SPECIAL CONDITIONS
A. Eucalyptus trees (within 60 feet of structures): Remove all heavy accumulation of
leaves to a maximum depth of four inches. Remove fallen limbs, litter, debris and loose
bark from the ground. Trim low hanging limbs and foliage to a height of six feet.
Existing native vegetation must be thinned by 50 percent. Grasses must be mowed or
trimmed to 3 inches.
Notice to Property Owners
March 24, 2020
Page 4 of 4
B. Inactive groves (citrus, avocado, etc.): Remove all dead growth, disc the property
and maintain free of hazard.
C. Palm trees on vacant lots (within 60 feet of structures) shall have dead fronds removed
as necessary. Should the property be abated Palm trees will be removed.
D. Trimmings from trees and other vegetation may be reduced by chipping to mulch and
may be evenly dispersed on the site to a level of four inches.
Ill. STRUCTURES IN BRUSH COVERED AREAS
A. All chimneys, stovepipe or flue outlets are required to be equipped with an approved
spark arrester.
B. Remove that portion of any tree which extends within ten feet of the outlet of any
chimney, stovepipe or roof line.
C. Maintain any tree adjacent to any building, free of dead or dying wood.
D. Trim low hanging foliage of trees located within 60 feet of structures to a height of six
feet above ground level.
IV. HOMEOWNERS ASSOCIATIONS
A. Homeowners Associations that have Fuel Modification Zones, must maintain these areas
in compliance with these standards.
B. Necessary maintenance should occur on both a regular schedule and as needed.
C. Should a Drought Alert occur that limits water to Fuel Modification Zones, it will be critical
that these areas are monitored. Accumulations of dead material will require removal.
V. COST OF CLEANING BY THE CITY OF CARLSBAD
A. The cost of cleaning parcels by the City is based upon a square foot unit price for
discing, mowing, and handwork, and by the cubic yard for mulching or chipping.
B. The cost of rubbish removal is based upon a flat rate per ton, including loading,
hauling and disposal.
C. The charge for cleaning by the City will also reflect an administration charge of
$271.00 per parcel.
Be in the "Zone"
Fire prewntion experts often refer to throe zones around )'OOr hOme. The sin! of ea,:t, zones
OO!l('nds on local conditions and fire axles. In Carlsbad, it is genilfi)l!y rncOIMIMded ro
rn!.ltll.ll 60 r001 sar«y lOllll around your home. Thew zooes ihould oo 1-of dNd n.-.mmabkl
landscaping and mainuined regularly.
'I '·40 to 60 feet
ZONE3
• Aedlce 1he chana! of wind blown roibi!rs catchi',g materials ,-your home on lira
• Remove oot>ns rrom gutteri.
, Cowr at~ foundation and othl!i' vents wrth 1/8 inch metal mesh screens.
• Use rock or gr.r,,el muldl lnstl!ad of wood chips m ttus area, and brick or concrete
walkwa)'S. !Coop firewood, k.tmber and othef t'lamm4ble matet1.1!!. aw31 from your home .
• You may plant flre~lstanl, 1rriQ;lted landscaping In this area.
, Ctealll a lanclM.ape Ul.lt is not as likely to spread llm to your home.
, N.3trlll! plants/shrubs that am ret.'!lood 1hoold be thinned in a tnoiak patrom (With
~ between punts). Gr,m or wec!ds should be cut bad: tn no morn than four inchllS
above the grot#ld.
• Mow lrallen/RVs, rloolge shllds and oihef t'lamm.able strocuues out of !his a,aa,
If UNble to ltlOYI!, croaro ootemible~ around tti.zrn.
, Thinning and rogul.lr mal'ltmonce wll ~ 1o reouce the strength .1nd speoo ot fire
in thisatl!,l.
, RelllOIIQ dead plants and tree branches.
• Thrl and sep.lW.e trees and Shrubs.
ABATEMENT CONTRACTORS
EED
HABITAT RESTORATION SCIENCES (HRS) (760)
479-4210
753-7035
9270
SERVICE
COLES WEED CONTROL (760)
ED WHITNEY (760) 269-
JOE WALL TRACTOR
(760) 758-5219
c:J Property Boundary
ffl Allowable Vegetation Management Area
Updated 3/17/20
--------------------------Adams St. APN 2061924100
{city of
Carlsbad
May 20, 2020
Amit K. Sahu and Parulben N. Ajmera
P.O. Box 503298
San Diego, CA 92150-3298
Dear Mr. Sahu and Ms. Ajmera:
EXHIBIT "C"
Pursuant to the Temporary Right of Entry Agreement signed by you and the City of Carlsbad, the City will
perform fire prevention weed abatement on your property for the 2020 season. The date will be
determined upon the availability of our Contractor and with the ability of Rosanne Humphrey {Habitat
Management Program) and myself to do the field marking. This process will define the allowable limits
and required area for future abatement years, map exhibit follows as Exhibit "C."
For the lower portion of the lot near Adams Street, generally the work performed within the allowable
area will consist of removal of shrubs, cut to ground level and reducing annual grasses/weeds to 3 or 4
inches. It is important not to remove the roots, as the roots will hold the soil in place and help prevent
erosion. Once shrub removal takes place, follow up by mowing or weed whipping to 3 or 4 inches
through the growing season (generally until about June or when the plants dry up and stop growing for
the season). The City will perform this weed whipping service for the 2020 season. The access road
should be cleared to a width of 12 feet, which will allow fire equipment access to the property and
adjacent house to the north, if necessary. The top of the steep slope area adjacent to the western parcel
line should only receive maintenance on an as-needed basis, limited to removal of dead vegetation. The
purpose of this more limited maintenance is to protect the slope from erosion.
Sincerely,
Monty Kalin
Hazard Reduction Specialist
Carlsbad Fire Department
Fire Prevention
1635 Faraday Ave.
Carlsbad, CA 92008
MK:mv
Attachment