HomeMy WebLinkAboutCT 85-35; Aviara Land Associates LP; 89-345771; Maintenance Agreement.~ -_.--- -.. RECQRDING, REQUESTED BY AND RETURN TO:
City*Cla. ) , 1200,Elm Jenue
Carpsbad, CA 92008
1824 89 34571l
. , DESILTATION BASIN/STORM DRAINAGE MAINTENANCE AGREE
REC3ASlr?l2 RE&.x?EO BY (GOLF COURSE)
~COR TITLE INSURANCE CObWANY OF CALIFORNIA
1.
2.
3.
4.
5.
6.
7.
DATE OF AGREEMENT: June 28 , 1989
NAME OF SUBDIVIDER: Aviara Land Associates Limited
Partnership, a Delaware Limited Partnership
NAME OF SUBDIVISION: Aviara Phase I, Unit A 7
RESOLUTION OF APPROVAL NO. 2595, CT 85-35
(Adopted December 8, 1987)
CITY OF CARLSBAD ENGINEERING DRAWINGS NO.: 286-9C, Sheets 5,
7, 9, 12 and 16; 286-9H, Sheets 14, 15, 17 and 18; 286-9A,
Sheets 6 and 10; 290-33, Sheets 13, 14, and 15; 290-3A,
Sheets 5 and 6; 295-lS, Sheets 8, 9 and 10; 295-2S, Sheets
14, 16, 17 and 18.
ESTIMATED ANNUAL COST OF MAINTENANCE OF IMPROVEMENTS SUBJECT
TO THIS AGREEMENT: $7,000
CASH SECURITY ACCOUNT: $50,000 (the "Security@')
This Desiltation Basin Maintenance Agreement
(llAgreementll) is made and entered into by and between the City of
Carlsbad, a Municipal Corporation of the State of California,
hereinafter referred to as rCity,ll and the Subdivider named in
Item 2 of Page 1 hereof, hereinafter referred to as l'Subdivider.tf
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RECITALS
WHEREAS, Subdivider has presented to City for approval
and recordation a final subdivision map of the proposed
subdivision identified in Item 3 of Page 1 hereof (the
ffSubdivisionff), pursuant to provisions of the Subdivision Map Act
of the State of California and Title 20 of the Carlsbad Municipal
Code, hereinafter referred to as ffCodelf; and
WHEREAS, a tentative map of the Subdivision has been
approved, subject to the requirements and conditions contained in
the resolution listed in Item 4 of Page 1 hereof. Said
resolution is on file in the office of the City Clerk and is
incorporated herein by this reference: and
WHEREAS, Subdivider, in consideration of the approval
and recordation of this map by the Council, desires to enter into
this Agreement providing for the maintenance, at Subdivider's
expense, of the desiltation basin or basins in the locations
described in the attached Engineering Drawings (hereinafter
referred to as the ffdesiltation basinsff); and
WHEREAS, said resolution states in Condition No. 63
that Subdivider shall enter into a desiltation basin maintenance
agreement satisfactory to the City Engineer. Condition No. 63
further provides, among other things, that each desiltation
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,
' basins shall be served by an all weather access/maintenance road;
and
WHEREAS, complete plans and specifications for the
desiltation basins and storm drains have been prepared by
Subdivider and approved by the City Engineer. The plans and
specifications shown on the Engineering Drawings, listed in
Item 5 of Page 1 hereof, are filed in the Office of the City
Engineer and are incorporated herein by this reference; and
WHEREAS, an estimate of the annual cost of maintaining
the desiltation basins has been made and approved by the City
Engineer in an amount stated in Item 6 of Page 1 hereof; and
WHEREAS, said resolution also states in Condition No.
65 that a maintenance agreement for drainage across the golf
course shall be approved by the City Attorney: and
WHEREAS, Subdivider and City have entered into this
Agreement as required pursuant to Condition No. 63 and 65 of the
Resolution of Approval identified in Item 4 of Page 1 hereof:
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, the approval and recordation by City
Council of the final map of this Subdivision and other valuable
consideration, Subdivider and City agree as follows:
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1. Subdivider shall:
a. Comply with all of the requirements of said
tentative map resolution and any amendments thereto, and with the
provisions of the Code:
b. Maintain, repair and reconstruct, as
necessary (hereinafter these obligations shall be collectively
referred to as ffmaintainff), the desiltation basins in a manner
acceptable to the City Engineer:
C. Maintain, repair and reconstruct, as necessary
(hereinafter these obligations shall be collectively referred to
as ffmaintainff), the drainage across and under that certain golf
course (ffGolf Courseff) also located within Unit A in a manner
acceptable to the City Engineer;
d. Make an inspection of the desiltation basins
after each runoff producing rainfall and clean out the basins
when the accumulation of silt has reached a point where it
interferes with the design performance of the basins:
e. The maintenance obligations established by
Subparagraphs (b), (c) and (d) above are sometimes referred to
herein as ffworkff or Ifthe work.ff The desiltation basins and the
storm drains are sometimes referred to herein as ffimprovementsff
or Ifthe improvements.ff
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2. If any of the work contemplated by this Agreement
is to be performed on land not owned by Subdivider, no work shall
be commenced prior to the dedication to and acceptance by City of
appropriate easements, and City shall not be responsible for the
costs incurred in connection with said work.
3. The Security shall also secure the obligations
of Subdivider or its successors-in-interest pursuant to that
certain Desiltation Basin Maintenance Agreement (Planning Areas
No. 5 and 28) dated June 28 , 1989 and executed by City and
Subdivider. City shall deposit the Security into an interest-
bearing account of a type and at a financial institution approved
by City. All interest accruing in said account shall be payable
pursuant to Government Code Section 53079 in annual installments
directly to Subdivider. City shall be entitled to draw upon the
Security only for reimbursement of the costs incurred by City as
a result of maintenance or repair work which City performs
pursuant to the terms of this Agreement. Except in emergency
situations as determined by the City Engineer in which prior
notice is impractical, City agrees to give Subdivider prompt
written notice of any request for withdrawal of funds by City
from the Security. In the event funds are withdrawn from the
Security, Subdivider agrees to promptly restore the funds in the
account so the Security is maintained in the amount of $50,000.
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4. Subdivider agrees to service each desiltation
basins with an all weather access/maintenance road as required by
Condition No. 63 in Resolution of Approval No. 2595, pertaining
to CT 85-35.
5. Subdivider shall maintain the desiltation basins
in perpetuity; provided, however, such obligations shall cease in
the event that (i) Subdivider transfers or assigns the
maintenance obligations hereunder to City (provided that City has
accepted such transfer in writing) or to an entity reasonably
acceptable to City, including without limitation a golf course
owner or operator, homeowner's association or maintenance
assessment district, or (ii) the desiltation basins are no longer
required, as determined by the City Engineer.
6. Upon the occurrence of a transfer under item (i)
in Paragraph 5 above, the obligation of Subdivider to retain the
Security shall be released, provided that the transferee accepts
in writing its obligation to continue to provide the Security in
an equivalent amount.
7. The City Engineer may approve the release of a
portion of the Security upon application therefor by Subdivider
demonstrating that the upstream slopes within the tributary
drainage system have been satisfactorily stabilized or that there
are other factors resulting in a material reduction in
maintenance costs.
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8. Subdivider shall replace or have replaced, repair
or have repaired, as the case may be, or pay to the owner, the
entire cost of replacement or repairs of any property damaged or
destroyed by reason of any work done hereunder, whether such
property is owned by the United States or any agency thereof, or
the State of California, or any public or private corporation, or
by any person, or by any combination of such owners. Any such
repair or replacement shall be to the satisfaction and subject to
the approval of the City Engineer, which approval shall not be
unreasonably withheld.
9. Subdivider shall execute and cause to be recorded a
Covenant of Easement for the benefit of City over the real
property described on Exhibit ffBff attached hereto and made a part
hereof (the ffEasement Property"). Said Covenant shall provide
that City shall have ingress and egress to the desiltation basins
and the service/access roads or paths contained in the Easement
Property, if and when it becomes necessary for City to assume
maintenance responsibilities of the desiltation basins pursuant
to Paragraph 5. The Covenant of Easement shall also provide City
with an easement over the Easement Property for ingress and
egress to inspect Subdivider's maintenance of the desiltation
basins and Golf Course. The Covenant of Easement shall be
binding upon all successors, assigns, and heirs of Subdivider and
benefit the successors, assigns and heirs of City.
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Subdivider and City acknowledge that the Easement
Property shown on Exhibit rfBff covers more land than will
eventually be contained in the desiltation basins and the
service/access roads or paths that will be built by Subdivider to
provide access to the desiltation basins. Upon the written
request of Subdivider following its identification of the
specific areas to be contained in the desiltation basins and in
such service/access roads or paths, and upon approval by City
Engineer of such revised Easement Property description (which
approval shall not be unreasonably withheld), City agrees to
execute any documentation reasonably necessary to amend the
Easement Property by reducing the amount of real property covered
by said Covenant of Easement. The parties acknowledge that such
an amendment of the Covenant of Easement may require City to
comply with the procedures set forth in Section 20.04.140 of the
Code, and City agrees to use its best efforts to expedite this
process.
10. In the event Subdivider fails to perform any work
required by this Agreement, City may perform the work twenty (20)
days after mailing written Notice of Default to Subdivider,
except in cases of emergency as determined by the City Engineer,
Subdivider agrees to pay the entire cost of such performance by
City. If Subdivider does not perform the work in a timely
manner, as reasonably determined by the City Engineer, City may
take over the work and prosecute the same to completion by
contract or by any other method City deems advisable, and City
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may draw upon funds in the Security in order to complete said
work. In such event, City, without liability for so doing, may
take possession of and utilize in completing the work such
materials, appliances, plans and other property belonging to
Subdivider as may be on the site of the work and necessary
therefor. Notwithstanding the above, in the event of an
emergency, as determined by the City Engineer, affecting the work
or the improvements, City may immediately perform any repair or
maintenance work it deems necessary, provided that City uses its
best efforts to give Subdivider immediate notice of any
information City receives regarding the emergency situation and
uses its best efforts to cooperate with Subdivider in making the
necessary repairs.
11. In the event Subdivider fails to perform any
obligation hereunder, Subdivider agrees to pay all costs and
expenses reasonably incurred by City in securing performance of
such obligations, including cost of suit and reasonable
attorneys' fees.
12. Neither Subdivider nor any of Subdivider's agents
or contractors are or shall be considered to be agents of City in
connection with the performance of Subdivider's obligations under
this Agreement.
13. Until such time as all improvements required by
this Agreement are accepted by City or other entity acceptable to
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City, Subdivider shall be responsible for the care, maintenance
of, and any damage to such improvements. Subdivider shall give
good and adequate warning to the traveling public of all
dangerous conditions caused by its work or improvements hereunder
and will protect the traveling public from such dangerous
conditions. Subdivider hereby agrees to pay for such inspection
of the work or improvements as may be required by the City
Engineer.
14. City or any officer or employee thereof shall not
be liable for any injury to persons or property occasioned by
reason of the acts or omissions of Subdivider, its agents or
employees in the performance of this Agreement. Subdivider
further agrees to protect and hold harmless City, its officials
and employees from any and all claims, demands, causes of action,
liability or loss of any sort because of or arising out of acts
or omissions of Subdivider, its agents or employees in the
performance of this Agreement, including claims, demands, causes
of action, liability, or loss because of or arising out of the
maintenance of the work or improvements: provided, however, that
the approved Security shall not be required to cover the
provisions of this paragraph. Said indemnification and agreement
to hold harmless shall extend to injuries to person and damages
or taking of property resulting from the implementation of the
work as provided herein, and to adjacent property owners as a
consequence of the diversion of waters from the maintenance of
drainage systems, streets and other improvements. Acceptance by
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City of the improvements shall not constitute an assumption by
City of any responsibility for such damage or taking. City shall
not be an insurer or surety for the maintenance of the
improvements.
15. City shall not, nor shall any officer or employee
thereof, be liable or responsible for any accident, loss or
damage happening or occurring to the work or improvements
specified in this Agreement prior to the completion and
acceptance of same, nor shall City, nor any officer or employee
thereof, be liable for any persons or property injured by reason
of said work or improvements, but all of said liabilities shall
be assumed by Subdivider.
16. Notwithstanding anything herein to the contrary,
sale or other disposition of all or any part of the Subdivision
identified in Item 3 of page 1 hereof will relieve Subdivider
from the obligations set forth herein, provided Subdivider shall
notify City in advance of the identity of the transferee and
shall provide evidence that the transferee has assumed in writing
all obligations under this Agreement.
17. Time is of the essence of this Agreement.
18. In the event of any litigation to enforce the
provisions of this Agreement, the prevailing party in such
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litigation shall be entitled to reasonable attorneys' fees as
fixed by the Court.
19. If either party shall be delayed or hindered in or
prevented from performing any act required hereunder by reason of
strikes, lock-outs, failure of power or other utilities,
restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a like nature, not the fault
of the party so delayed, then within ten (10) business days after
the beginning of said delay the delayed party shall notify the
other party, stating the reason for the delay and requesting an
extension to perform said act. The time period agreed to by the
parties shall be added to the time for performance of said act.
20. All notices and demands of any kind which either
party hereto may be required or desire to serve upon the other
party under the terms of this Agreement shall be in writing and
shall be served upon such other party by personal service upon
such other party, or by mailing a copy thereof by certified or
registered mail, postage prepaid, with return receipt requested,
addressed as follows:
If to City, to: City of Carlsbad 2075 Las Palmas Drive
Carlsbad, California 92009-4859 Attention: City Engineer
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If to Subdivider, to: Aviara Land Associates Limited
Partnership 2011 Palomar Airport Road
Suite 206
Carlsbad, California 92008 Attention: General Manager
Notices shall be deemed to have been given when delivered
personally or when deposited in the United States mail, addressed
as provided above or to such subsequent address as either party
may provide for that purpose by giving notice thereof in the
manner provided herein.
21. This Agreement may only be amended by the written
consent of both of the parties to this Agreement at the time of
such amendment.
22. A memorandum of this Agreement may be recorded by
either party hereof.
23. The parties hereby acknowledge that with reference
only to Unit A, as identified in Item 3 of page 1 hereof, this
Agreement supersedes and replaces that certain Drainage Basin
Maintenance Agreement dated July 28, 1988 executed by Subdivider,
and said Drainage Basin Maintenance Agreement is of no further
force and effect with regard to Unit A following execution of
this Agreement. Promptly upon the payment of the Security, City
agrees to release any and all bonds posted as security by
Subdivider pursuant to said Drainage Basin Maintenance Agreement.
///
///
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IN WITNESS WHEREOF, this Agreement is executed by the
City of Carlsbad, acting by and through its City Mayor,
pursuant to Section 20.16.060 of the Code authorizing such
execution, and by Subdivider.
DATED this 28th day of June , 1989.
AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership
By: Aviara Land Company, a Delaware corporation, General Partne,q
ATTEST:
lL?zzLdc* ALETHA L. RAUTENKRANZ I City Clerk
(SEAL) s
By: Corn any, d corporation,
\ CITY OF CARLSBAD, _
A058205A.DA5 060689 -14-
I838 STATE OF CALIFORNIA )
> ss * COUNTY OF SAN DIEGO )
On June 28, 1989 before me the undersigned, a Notary Public in and ior said State,'personally appeared Claude A. Lewis
and Aletha L. Rautenkranz , known to me to be the Mayor and City Clerk f: the City of Carlsbad a Municipal Corporation of the State of California, &own to me to be the pksonswho executed the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same.
WITNESS my hand the official seal.
s****************************g
: o~tl<l*L SF.41. $
t KAREN R. KUNDTZ s
2
NOTARY FUaLIC-CALIFORNIA
SAN DiEGO COUNTY 5:
2 My Comm Exp Seu? 27, 1989 g
****x********************x****
1839
STATE OF CALIFORNIA )
ation that executed the within instrument on behalf of Aviara Land Associates Limited
Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same.
(Seal)
STATE OF CALIFORNIA )
COUNTY 0
official seal.
NOTARY PUBLIC
before me, the undersigned, a e, personally appeared nown to me
e
he corporation that executed the within instrument on behalf'of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same.
WITNESS my hand and o
(Seal)
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EXHIBIT A
GOLF COURSE
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EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY BURDENED BY COVENANT OF EASEMENT
A BLANKET EASEMENT FOR DRAINAGE, DESILTATION AND ACCESS OVER THE FOLLOWING DESCRIBED PARCELS AS FOLLOWS:
BEING LOTS 1, 2 AND 10 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNITS A; LOT 91 OF THE CITY OF CARLSBAD TRACT
85-35, PHASE I - UNIT B; LOT 229 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT D, AND; LOTS 304 AND 309 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT E, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
A058205A.DA5 060189 B-l