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HomeMy WebLinkAboutCT 04-26; Calavera Hills II LLC; 2009-0015709; Maintenance Agreement2009-0015709 RECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: CITY OF CARLSBAD Attn: City Clerk 1200 Carlsbad Village Dr. Carlsbad, CA 92008 JAN 13, 2009 2:50 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: 0.00 PAGES:16 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: PROJECT ID: PROJECT NAME: RELATED PROJECT ID: 168-360-05, 168-360-06 / 168-370-82, 168-370-83 168-371-68, 168-373-75 CT02-16 Robertson Ranch East Village CT 04-26, PUD 06-12, PUD 06-13 PUD 06-14 STREET TREE MAINTENANCE AGREEMENT This Agreement is made by and between Calavera Hills II, LLC, a Delaware limited liability company ("Owner") and the City of Carlsbad, a municipal corporation ("City"), (collectively, "Parties"). Recitals WHEREAS, Owner owns certain real property in the City of Carlsbad, County of San Diego, and State of California more properly described in "Exhibit A", attached hereto and incorporated herein ("Property"); and, WHEREAS, Owner seeks to record a final map(s) to develop Property in accordance with Tentative Map No. CT 02-16 Robertson Ranch East Village and CT 04-26, Robertson Ranch East Village, PA 16, 17 &18 ("Project"); and, WHEREAS, in consideration of the Project conditions-of-approval, Owner is required to install trees within the parkways ("Street Trees"), where parkways are defined as the areas 1 STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc along the sides of streets within the public street right-of-way between the back of the curb and the right-of-way line; and, WHEREAS, Owner seeks to satisfy condition 42 of PC Resolution 6343 to ensure ongoing maintenance is performed on Street Trees; and, WHEREAS, the Project is required to be annexed into Street Lighting and Landscape District #2 (District). District is a financing mechanism to fund the maintenance and replacement of certain improvements within the right-of-way including public street lights, arterial median landscaping & irrigation, and Street Trees; and, WHEREAS, In lieu of District performing maintenance of Street Trees, Owner may elect to perform said maintenance and, provided Street Tree maintenance is performed pursuant to the terms of this Agreement, District will not assess street tree maintenance costs to property owners within Project limits. NOW, THEREFORE, in consideration of the mutual covenants herein, the Parties agree as set forth below. 1. Street Trees. Owner has prepared construction plans to install Street Trees in accordance with the Project conditions-of-approval, City Landscape Manual and City Standards, all as shown on the approved landscape and irrigation plan, DWG 433-6M and DWG 453-8L (collectively "Landscape Plans") on file with the City. In addition to installing Street Trees, the Landscape Plans described herein detail construction of other items not covered by this Agreement. The term Street Trees, for the purposes of this Agreement, shall not include other items. Other items include, but are not limited to turf, shrubbery, groundcover, irrigation, and hardscape ("Other Items"). However, nothing in this Agreement shall preclude Owner or the Association referred to in Paragraph 12 below from maintaining the Other items. 2. Street Tree Maintenance. Upon construction of Project improvements and City release of security of Project improvements, Owner agrees, at its sole cost and expense, to maintain, repair, and replace, the Street Trees described herein. The locations of Street Trees 2 STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc covered by this Agreement are described in "Exhibit B", attached hereto. The maintenance obligations are described as: a. Owner shall perform all necessary maintenance on Street Trees including but not limited to trimming, pruning, staking, root barriers, and street tree replacement, all in accordance with the City of Carlsbad Community Forest Management Plan, latest edition (City Standards) to ensure Street Trees are maintained in a healthy condition. Owner shall install only those species of street trees as approved by the City. Owner is responsible to maintain street trees in locations as shown on the approved Landscape Plan. Owner shall not remove or relocate street trees to alternate locations without written prior approval from the City. Owner shall perform maintenance to prevent and, if necessary, address any immediate health and safety concerns including but not limited to fallen Street Trees, overgrowth into vehicular or pedestrian travel way, root damage to sidewalks, and visual impairments related to traffic movements. All maintenance activities in this paragraph are described as "Street Tree Maintenance", hereinafter. Unless otherwise approved by the City, all Street Trees removed due to death shall be replaced by the Owner with a Street Tree of the same species as the one removed, and within the same vicinity as the one removed. The replacement Street Tree shall be of a minimum 15-gallon container size, and shall be installed by the Owner no later than 45 days from the date the prior Street Tree was removed. 3. Parkway Irrigation. Owner, at its sole cost and expense, shall provide for all ongoing irrigation required to ensure adequate growth and, once established, to maintain the Street Trees covered by this Agreement. Owner is responsible to maintain all Irrigation Improvements as shown on the Landscape Plan (Irrigation Improvements). Owner 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 Street Trees. 4. Successors and Assigns. This Agreement shall be binding and inure to the benefit 3 STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc of the parties hereto and their respective legal representatives, successors, and assigns. Owner agrees to incorporate this Agreement by reference in any subsequent deeds to the property, but any failure to do so does not invalidate this provision. 5. Permits Required. Owner shall obtain all necessary permits required to perform Street Tree Maintenance in City right-of-way. 6. Indemnity. Owner 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 Owner performing Street Tree Maintenance, or lack thereof, described herein. 7. Responsibility of Plans. Approval of the Landscape 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 Street Trees pursuant to the Landscape Plans, nor shall any officer or employee thereof be liable or responsible for any accident, loss or damage happening or occurring while performing Street Tree Maintenance as specified in this Agreement. 8. 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: If to the Owner: City Engineer Calavera Hills II, LLC City of Carlsbad 12865 Point Del Mar, Ste #200 1635 Faraday Avenue Del Mar, CA 92014 Carlsbad CA 92008 which addresses may be changed from time to time by providing notice to the other party in the manner described above. 9. Lien Capability. Subsequent to Owner notice, and lack of action to remedy the 4 STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc breach of terms of this Agreement, the City may have the right, but the not the obligation to perform certain Street Tree Maintenance to address issues that may involve public safety and the welfare of the public ("Public Safety Street Tree Maintenance"). The City may elect, at its own discretion, to bill to Owner the costs the City incurred to perform Public Safety Street Tree Maintenance covered by this Agreement ("Invoice"). The Owner shall pay the full amount invoice amount within 60-days of the date of Invoice. If after 60-days of non-payment of said Invoice, the amount listed on the Invoice shall constitute a lien on the Owner's Property subject to enforcement and foreclosure in accordance with California State law. However, the lien rights set forth in the declaration of restrictions required pursuant to Condition 24 d. of City Planning Commission Resolution No. 6110 shall apply instead of the lien rights set forth in this Paragraph with respect to those portions of the Property that become annexed to the declaration of restrictions. 10. District. Pursuant to the conditions of approval, Project will be annexed into the District to cover the maintenance of certain improvements within City right-of-way. Among other requirements, District may collect assessments to perform Street Tree Maintenance. Under the terms of this Agreement, District will not assess costs for Street Tree Maintenance, provided Owner performs continued Street Tree Maintenance pursuant to the terms of this Agreement. 11. Failure to Maintain. In the event that the Owner fails, at any time to perform Street Tree Maintenance, the failure may be considered a breach of terms of this Agreement. The City is the sole arbiter to evaluate the Owner performance of Street Tree Maintenance. The City may elect, in the public's interest that the District take over Street Tree Maintenance. Upon the City's determination, the City shall provide one (1) written notice to inform Owner that the District intends take over Street Tree Maintenance covered by this Agreement. Within 90- days after receipt of said notice, the District will take over responsibility of Street Tree Maintenance and all property owners within the Project will, hereinafter, become annually 5 STREET TREE MAINTENANCE AGREEMENT rev 10-2-08 doc assessed the current assessment rate most recently approved by City Council, consistent with the District requirements. The District, by assuming Street Tree Maintenance, shall not assume any obligation to maintain Other Items or Irrigation Improvements. Owner is responsible to maintain Irrigation Improvements and provide for ongoing irrigation necessary to maintain all landscaping in the Parkway, including but not limited to Street Trees as described above. 12. Homeowners Association. Owner represents to City that it intends to, and has the authority to, unilaterally transfer said Street Tree Maintenance to a Homeowners Association, as defined in Civil Code Section 1351 (a) ("Association"), for the Project and that such transfer has been provided for in the Declaration, and that such document(s) include the Street Tree Maintenance provisions described herein. Upon or prior to transfer of obligations under this Agreement to an Association for a portion of the Property, that portion of the Property shall be annexed to the declaration of restrictions required pursuant to Condition 24(d) of City Planning Commission Resolution No. 6110 which shall include provisions to collect adequate funds to perform Street Tree Maintenance covered by this Agreement. Transfer to an Association shall not reduce, limit, or modify the obligations and terms set forth in this Agreement. Nothing in this Agreement is intended to prevent the transfer to the Association of any obligations under this Agreement. STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc 13. 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. IN WITNESS WHEREOF, the undersigned has executed this instrument this OWNER CITY OF CARLSBAD Calavera Hills II, LLC, a Municipal Corporation a Delaware limited liability company By: Brookfield Tamarack, LLC a Delaware limited liability company By:-pv(Sign Here)aude A Lewis, Mayor (Print Name Here) ATTEST: By: Lorraine Wood, City Cle (Print Name Here) (Print title) APPROVED AS TO RONALD R. BALL City Attorney By: Deputy City Attorney (Proper notarial acknowledgment of execution by OWNER must be attached) (Chairman of the Board, President, or any Vice-President and secretary, any assistant secretary, the Chief Financial Officer, or any assistant treasurer must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) STREET TREE MAINTENANCE AGREEMENT rev 10-2-08.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On /&.- X- Date personally appeared ft- '/ULL&I 1 Here Insert Name and TBSiof tire Officer -Ptj-f T i/LXvUut^ . Name(s) of Signer(s) ^MMMMMMkAA^MMMM SHERRY A. FREISWGit I Commlstlon* 1727064 * Notary Public - California | San W«go Courty i who proved to me on the basis of satisfactory evidence to be the person(#f whose namejgf is/a/e" subscribed to the within instrument and acknowledged to me that he/she?the/ executed the same in his/he^th^Ir authorized capacity(ie^), and that by his/h^f/thelr signature^ on the instrument the person^, 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 m Place Notary Seal Above Signatun OPTIONAL 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 Docume Title or Type of Document: Document Date: 7 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: Signer Is Representing: RIGHTTHUMBPRINT | OF SIGNER Top of thumb here 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: RIGHTTHUMBPRINT 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 Toil-Free 1 -800-876-6827 ALL-PURPOSE ACKNOWLEDGMENT State of California County of «SOJT\ on DCJn^ooc <93 ss. , before me, DATE personally appeared -—* Mo™ 0., 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 k-ia/har/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.^TJCEr KINOSWTl COMM. #1580186 Notary Public • California San Diego County My Gomm. Expires May 19.2009 [WITNESS my hand antijofficial seal. PLACE NOTARY SEAL IN ABOVE SPACE ^^^^^^"" OPTIONAL INFORMATION The information below is optional. However, it may prove valuable and could prevent fraudulent attachment of this form to an unauthorized document. TITLE(S) CAPACITY CLAIMED BY SIGNER (PRINCIPAL) G INDIVIDUAL G CORPORATE OFFICER Q PARTNER(S) 0 ATTORNEY-IN-FACT G TRUSTEE(S) G GUARDIAN/CONSERVATOR n OTHER: DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER (PRINCIPAL) IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES)RIGHT THUMBPRINT OF SIGNER OTHER APA 01/2008 NOTARY BONDS, SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM ©2005-2008 VALLEY-SIERRA INSURANCE "Exhibit A" All of Lots 6 and 7 of Map No. 15608, in the City of Carlsbad, County of San Diego, State of California, filed in the office of the County Record of San Diego County on September 18, 2007, as file no. 2007-0612802 and all of Lots 305, 306, 307, and 309 of Map No. 15682, in the City of Carlsbad, County of San Diego, State of California, filed in the office of the County Record of San Diego County on April 7, 2008, as file no. 2008-0192971. Sheet 1 of 1 3H*'3 I(-»•I—' 53O P 0) 0>o>i—».P O r i £o1 o _,. 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