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HomeMy WebLinkAboutCT 13-01; KLC BV Carlsbad LLC; 2014-0153678; Maintenance AgreementDOCtt 2014-0153678 lilililiilliii ' 3Y RECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAILTO: CITY OF CARLSBAD Attn: City Clerk 1200 Carlsbad Village Dr. Carlsbad, CA 92008 APR 17, 2014 4:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Emesl J. Dronenburg, Jr., COUNTY RECORDER FEES; 0.00 PAGES: 13 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL ^ NO.: 156-200-15, 156-200-01, 156-200-02 PROJECTID: CTI 3-01 PROJECT NAME: Buena vista 11 RELATED PROJECT ID: STREET TREE MAINTENANCE AGREEMENT This Agreement is made by and between KLC BV Carlsbad, LLC, a California 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 13-01 Buena Vista 11 ("Project"); and, WHEREAS, in consideration of the Project conditions-of-approval, Owner is required to install trees within the parl<ways ("Street Trees"), where parl<ways are defined as the areas 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 16 of PC Resolution 7006, to ensure ongoing maintenance is performed on Street Trees; and, WHEREAS, the Project is required to be annexed into Street Lighting and Landscape District #1 (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 perform street tree maintenance within Project limits. However, District will continue to assess Project street tree maintenance costs for city- wide street trees located outside Project pursuant to the rights of the District. 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 of Carlsbad's Community Forest Management Plan, Landscape IVlanual, Municipal Code, Council Policy on Street Trees, and City Standards, all as shown on the approved landscape and irrigation plan(s), DWG 479-6L, (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 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's Community Forest Management Plan, Landscape Manual, Municipal Code, Council Policy on Street Trees, and 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 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 of Carlsbad, City Engineer KLC BV Carlsbad, LLC 1635 Faraday Avenue 101 S Kraemer Blvd., Ste 136, Carlsbad CA 92008 Placentia, CA 92870 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 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(s) 18d. of City Planning Commission Resolution No. 7006, 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. 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. 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(s) 18d., of City Planning Commission Resolution(s) No. 7006 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 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 day of _ OWNER KLC BV Carlsbad, LLC, a California Limited Liability Company CITY OF CARLSBAD a Municipal Corporation ofthe State of California By: By: FKC, LLC, a Caiiforqia Limited Liabilit ^ Brett S. Albrecht (Print Name Here) Authorized Person, FLK, LLC, a California Limited Liability Company (Print title) By: (Sign Here) (Print Name Here) (Print title) Matt Mall, IVIayor ATTEST: APPROVED AS TO FORM: CELIA A. BREWER City Attorney By: m 0^ 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.) CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of Sar\ X^'t-e^Q On before me, ) (Here ihsah name and title of thsQ^cer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(^) whose name(s^ is/ase. subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he*Ah©ir authorized capacity(4es), and that by his/her/thek 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 Califomia that the foregoing paragraph is true and correct. S my hand and official seal. Signature of Notary Public (Notary Seal) 1 Z Z > Mv Comm. 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In such instances, any alternative acknowledgment verbiage as may be printed on such a documenl so long as the verbiage does not require Ihe noiary lo do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). 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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 state of California County of Orange ACKNOWLEDGMENT On 1^4 before me, Joy F. Yukawa-Pong, Notary Public personally appeared, ^e.-{\ 5. Mb^eCKT who 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 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 paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Commtttlon # 19S2245 Nottry PuMc-CaHtoniit Oranga CottMy | LEGAL DESCRIPTION EXHIBIT "A" PR 13-54 PARCEL 1: °^ CARLSBAD LANDS, IN THE CITY OF CARLSBAD IN THF rOTINTV nv n^JS^SS;^''^''^ CALIFORNU, ACCORDING TO MAPIHEMQFN^l^ OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 1.1915, DESCNED AS FSISWS^^^^^^ BEGINNING AT A POINT IN THE CENTERLINE OF VALLEY STREET, DISTANT THERFON NORTTI ^A" ,V ^^l^i '^n^^^^'''^ ™ INTERSECTION OF Sm CENX^ ^ VI^LEY AND THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LBJE OF S^m TRA>?^??^ ^J^.^S^J^'^'' ™^ SOUTHEASTERLY CORNER OF LAND CONvi?^^ TS^^OSJ J 4Jl^TT WIFE BY DEED RECORDED IN BOOK 339. PAGF 456. OF OFFTrTAT. "pr" ^nZ^j^J^^^ SOUTHEASTERLY LINE OF SAID MERRITT LIND. SOUTH 55° 27' WEST 93 4 FEET TO T^ TmiV^omT OF BEGINNING; THENCE NORTH 23« 04' WEST 227.6 FEET TO T^ NoS BO^S CARLSBAD LANDS; THENCE ALONG SAH) LAST MENTIO^ L]SE™R?H^9?05' ^T^^^ ?mT™ rJ^fr """^ ^^S^' TO THE NORTHEASTERLY CORNErOF THE L ™Jb^ rPr^Z^ ^"^^^^ COMPANY, A CORPORATION, TO OCEANSffiE MUTUAL WASR CoS^T^ I SE^r^iLV^^^^^^^ === 27' EAST A DISTANCE OF 298.6 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGJZJG APN: 156-200-15-00 PARCEL 2: 1?:^^°^™^ OF TRACT 121 OF CARLSBAD LANDS, ACCORDING TO M.4P THEREOF NO PTT PT. miSwsf ^^"^^^ COlgdg,X™irDESC»S SSS^^^ A POINT IN THE CENTERLINE OF VALLEY STREET, AS SHOWN ON SAH) MAP DISTANT Tra:REON NORTH 34« 33' WEST, 531.19 FEET FROM THE POINT OF INTE]SECTION ^ rv^l LINE OF VALLEY STREET, AND THE NORTHEASTERLY PROLONG^rOF SOT™ A^?^^ TS^OX'^^P^SJ '''' ^"^T BEING THE SOUTISAS?E£^TORS?R LSS^OI^SJ TO JOHN J. MERRITT AND WIFE, BY DEED RECORDED IN BOOK 339 PAGE 456 OFFTrTAT pTr^Sn? THENCE ALONG THE SOUTHEASTERLY LINE OF SAID MERR^T L^ SQUTO gg"?^'^^^^ FEET; THENCE NORTH 23' 04' WEST, 227.6 FEET TO THE NORTH BOU^SlY LINE OF sL^m .T. An LANDS; THENCE SOUTH 89» 05' EAST, ALONG THE SAH) NORTHW L^173 8 Z:^^ ?^ Tll^?^ ''''^ SOUTHEASTERLY CORNER TIIEREOF AND RUNS WESTE^Y TO A POINrON'TlE WESTERLY LINE OF SAH) LAND THAT IS NORTH 23° 04' WEST m 8 VFT FROM SOUTHWESTERLY CORNER THEREOF. ' FROM THE APN: 156-200-01-00 PARCEL 3: THAT PORTION OF TRACT 121 OF CARLSBAD LANDS, ACCORDING TO MAP THFRFOF Nn Trn vu VT, ^O^LOWsfCOUNTY RECORDER OF SAN' DIEGO^^S.^IJ^il^Sl^i^ S^S^^ ^'^ ^ ^°^T ON THE CENTERLINE OF VALLEY STREET, AS SHOWN ON SAID MAP ?S.^^rVA?T w'';^^^^^^^ ^^^T FROM THE POINT OF mTErECTION OF ^D SSHS^SRIVTS^nr^.TnT/^."^ THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAID TRACT 121, SAID POINT BEING THE SOUTHEASTFRT Y rnRNTTrn np O^cf'.^TrnLlV^^ ^^TT AND WIFE, BY DES^^ORSES m^^^^S^S. ?-f,-S^t^c J'^"^^''' ^^^^ THE SOUTHEASTERLY LINE OF SAID MERRITT LA^D SOUTH S c! .r^^' ™' THENCE NORTH 23" 04' WEST, 227.6 FEET TO THE NORTH BOU^SlY LmE FEETTO T^CEXS ofsTrn VA^F^^: "^^^^ THE SAH) NOR?^!^?^ iS ^TE^^^^^HE^'^ZIZT^^^^^ ^"^^« ^^«T, ALONG SAID EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF A LINE THAT BEGINS AT A POINT ON THE EASTERLY LINE OF THE ABOVE DESCRIBED LAND AT A POINT NOR?H 34° 3i' WES^ 58^™ f.S'c^'J™ SOUTHEASTERLY CORNER THEREOF AND RUNS WESTO™ TO 1 PS ON S S^U^S^^TE^YC^O^R^rTHE^^^^ ^^^^ ^ ^ APN: 156-200-02-00 LOCATION MAP NOT TO SCALE PROJECT NAME BUENA VISTA 11 PROJECT NUMBER CT13-01 EXHIBIT PLOriED BY: SCOTT EVANS PLOT DATE:2/21/14 PATH:D: \DEm.OPUENT PR0JECTS\CT\AUT0CAD\CT13-01.DWC