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HomeMy WebLinkAboutSUP 98-03D; Levine Investments Limited Partnership; 2015-0115352; Maintenance AgreementDOC# 2015-0115352 llllllllllllllllllllllllli RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Mar 12, 2015 04:06 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $48.00 Space Above This Line for Recorder's Use Only (Gov. Code 27361.6) ASSESSOR'S PARCEL NO. PROJECT ID PROJECT NAME RELATED PROJECT ID 213-100-01-00 SUP 98-03(D) El Camino Real at Viasat Lot 1 SUP 14-04(A) IVIEDIAN MAINTENANCE AGREEMENT This Agreement is made by and between Levlne 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 City of 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 ofall 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 ali 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 per the 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 of the 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 of this 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 otherwise approved by the City, all plants removed due to death shall be replaced by the Levine Investments Limited Partnership with a plant ofthe 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 of the 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 ofthe 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 of this 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 of the 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 ofthe 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 ofthe 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 tennination 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 for the 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 ^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 of this 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 of this 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-MedianMaintenanceAgreement 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 Faraday Avenue 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 IN WITNESS WHEREOF, the undersigned has executed this instrument on the referenced dates. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 7|Page - Median Maintenance Agreement Levine Investments Limited Partnership, an Arizona Limited Partnership, by its General Partner, Keim, Inc., an Arizona Corporation *Bv: (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: 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 8|Page - Median Maintenance Agreement STATE OF ARIZONA) ) ss. County of Maricopa ) On this, the On this, the 7 ^ day of dpA^ . 2014 before me the undersigned Notary Public, personally appeared /^/fM^ft^.-pM/^t^. the CJi^^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. OFFICIALSEAL AMANDA B.KOWALSKI Notaiy PuUe-SMvofAibm MARKJORA COUNTY My Conm. Expkw AjMl to, 2016 Mnton/ Dl ihli/» Notary Public Notary Expiration Date: ^J.^^^ /^y,^U Description of document this notarial certificate is being attached to: Type/Title Date of Document Number of Pages Add'l signers (other than those named in the notarial certificate 9|Page - Median Maintenance Agreement EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described as follows: Lot 1 of Carlsbad Tract No. 98-07, Lincoln Northpointe, in the City of Carlsbad, County of San Dlego, 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 IVlaintenance Agreement CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of. On III HI N I ' Date personally appeared I Hery nsert Name and Title of th^_gfficer / before me Name(s) of Signer(s) SHERRY A. FREISINGER Commisston # 1923590 Notary Public - California f / San Oiego County r My Comm. Expires Feb 25,20151 who proved to me on the basis of satisfactory evidence to be the person(s) whose name^ is/^ subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/h^r/thj^ir authorized capacity(i9!&), and that by his/het/th^r signature(;^) on the instrument the person(sO, 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 h6nc Dial sei Place Notary Seal Above Sign^ure: OPTIONAL Signature of Notary Public Though the information beiow is not required by law, it may proye valuable firpersons relying on the i and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Tltle(s): • Individual • Partner — • Limited • General • Attorney In Fact • Trustee • Guardian or Conservator • other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thunnb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney In Fact • Trustee • Guardian or Conservator • other: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) item #5907 NORTH SCALE 0 10 20 40 PROPOSED LANDSCAPING OVERHEAD TRELLIS I PROPOSED U\NDSCAPING GATEWAY ROAD NOTE: REFERTO DWG 483-3 ON FILE WITH THE CITY FOR DETAILED LANDSCAPE AND IRRIGATION PLANS SUP 98-03(D) EL CAMINO REAL @ VIASAT LOT 1 EXHIBIT B