HomeMy WebLinkAboutW L Homes LLC; 1999-06-10;DESILTATION BASIN MAPlTENANCE AGlREEMENT
(Planning Area D of Poinsettia Shores Master Plan)
This Desiltation Basin Maintenance Agreement (the "Agmmcnt") is made as of
a Califomla municipal Corporation (the "City") and WL HOMES, UC, a Delaware limited
liabnity company, dba John Laing Homm ("Laing"). The City and the Laing ace rornetimts
heninafter each individdly called a "Party" or collectively mlled the "Parties.'l
3h IO, I"\L\5 ,1999 (the "Effective Date"), between the CITY OF CARLSB~D,
RECITALS
A. Kaiza Poinsettia Corporation, a California corporation (the "Master
I)Wcloper"), is the devcllop& of a master planned development known as "San Pacifico" (a.k.a.
Poinsettia Shores) in Cmlsbad. California (the "Master Community"). The Master Community is
subject to the Master Declaration of Covenants, Conditions and Reservation of Easements for Sen
Pacifico (thc "Master Declaration") n?oordcd on November 7. 1999, as Instrument No. 1997-
0963586 in the Oficial Records of Sm Diego County, California (the "Official Records").
B. Lag is a '+krchant builder" (as dcfined in the Master Ueclamtion) which
has acquired 'several parcels of property fmm the Mast& Developer for the development of a
condominium project thereon known as "Vistamar at San Pacific.0" ("Vistamar"). Laing has
developed several phases of Vistamar 011 portions of thc property it acquired from the Master
Developer and those phases havo been annexed into the Master Community.
C. The Master Developer owns Lot 2 of Carlsbad Tract No. 82-18 ("Lot 2") 85 shown on Tract Map No. 11290 (the "Kaim Map") filed in the OfEcinl Rccords. Lot 2 is located in
Plmmiy Area I of Poinsettia Shores Master Plan for the Master Community. The Master Developer
has constructed (a) a dcsiltatioddctcntidurbn/urbon pollutant basin on that portion of Lot 2 adjacent to
the Batiquitos Lagoon and Carlsbad Boulevard, to the south of the Master Community and to the
west of the San Diego Northern Railroad Tmks (the "Westerly Ensin"); and (b) an all weather
mnintcnance access road to provide access from CarIsbad Boulevard to he Westerly Basin (the
"ACCW Road"), all as depicted on Exhibit A attached hmto. The Mnstcr ]DcveIoper has offered
to dedicate the Westetly Basin and thc Access Road to the City.
D. The portion of Lot 2 on which the Westerly Besin is lbcatcd is subject to the
term end conditions of an open space eascmcnt in favm of the City creatited by the Kaiza Map (the
"Open Space Easement"). The Westerly Basin was improved in compliance with the City's
requilcmcnts and it is. as of the Effective Date, in a condition which (1) complies with the terms and
condition9 of the Open Spacc Easement act (2) is satisfactory to the City.
E. The red properties which B~C upstreatn OE ad drain into, the Westcrly Basin
an shown on Exhibit B attached hereto (the "Upstream Properties"). The Upstream hopertics havr
bccn partially dcvcloped with residential and commcrcial improvements.
.I.
F. Laingdesirestodevelopaddition~phaseofVistamaFonthatcertoinprop~y
in Planning Area D of the Master Community know as Cwlsbad Tact 97-19 (the "Arca D Map")
aurently being processed for approval by the City.
G. On August 5,1998, the City adopted PC Resolution No. 4304 approving the
Area D Map subject to certain conditions of approval (the "Area D Map Conditions"). Condition No. 39 ofthe Area D Map Conditions ("Condition No. 39") requires that (a) the Westerly Basin be
maintained pursuant to a desiltation basin maintenance agreement with the City mtil the date on
which the City accepts the improvcmcnts and landscaping for areas that drain into the Westerly
Basinas complcte and thc City has assumed responsibility for the Westcrly Basin maintenance (the
"City Acccptanu Date"), and (b) the maintenance obligations under the basin maintenance
agreement be secured by a cash deposit. performance bond or other sccurily acceptable to the City
in the amount of 510,000 (thc "Security"). "he Partics intend that all of the requiwments of
Condition No. 39 be satisfied by this Agreemat.
FI. The Master Developer has granted an easement (a) to Laing to permit Laing
to be able to perform iu obligations under this Agreement, and (b) IO the City to bo able t4 exercise
its rights under this AgrecmenI, 89 provided in that certain &aut of Easmcnt recorded on
June 17 ,1999, as Instrumat No? 999-04257791n the Oficial Records.
THEWFORE, in considedon of the mutual covenants contained herein, and other
valuable consideration, the Parties ~gm as follows:
1. ,Msintensece and SecurJty Obligations.
(a) Maintcnnnce. From and aftcr the Effdve Date, he Westerly Basin
shall bo maintained, repaid and reconstructed, as necessary (collcctively, "maintain") in ~mmh
acceptable to the City Engineer and in compliance with the Ctvlshad Municipal Code. Such
mainttnancc shall include, without limitation, inspecting the W&crly Basin after each runoff
producing rainfall and cleaning out the Westnly Basin whon the silt accumulation reaches a point
where it hterfaes with the design performaace of the Westerly Basin.
(b) Security. Currenlly with signing the Agreemen& Lahg $ball cause the
Security to be providcd to the City. If the Security is in the Form ofa cash deposit. thc City $hall
hold such deposit in an intercat bearing account of a type and at a finnncial institution approved by
the City. All intcrest accruing in such account shatl be payable pursuant to Governmen1 Code
Section 53079 in annual installments directly to Lsing. If tho Security is in the form of a bond,
Laing shall ensure that the bond premiums are paid in a timely manncr.
2. Term. The obligations undcr this Agrement shall begin on the EEeetivt:
Date and continue until the earlier 4f (a) the City Acceptance Date. or (b) the date that thc City
Engincer determines that the Wcstcrly Basin is no longer required (the "'I'm'').
3. SccarftyRcleese. The Securitymaybcrcducedinamount orwill berelcascd
BJ follows:
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(a) Reductloa. The Security mount may be rcduced upon the'city
Engiieex's approval of Laing's application for reduction which demonstrates to the City Engineer's
sntisfaction that upstream slopcs within the fributay drainage system have been satisfactorily
stabilized or lhat there an? other satisfactory mitigating factors.
(b) Release. The Security willbefullyreleavdand txoneratcdatthe end OF the Tm.
4. city's Right&
(a) Inspection. The City may inspa3 the Westerly Basin at any time to
ensure compliance with the maintenance obligations hmmder.
@) Repair. Except in caws of emergency as dctmnined by the City
Enginecr. tho City shall give written notice that certain maintenance or repair of the Westerly Basin
is required to comply with the obligations under this Agreement. If such maintenancc or repair is
not performed within thirty (30) days after the notice was given (or such longcr period as may be
specified in the notice), the City my perfom such maintenance and reprmir itself. In cases of
emergency, the City may perform any maintenance and rcpaix wcxk thc City Engineer deems
nccdssary; provided however, that the City shall use its best &hts to give immediate notice of any
information the City mcivcsrcgardingtheemer~cncy situation and uses its best Horts to cooperate
in making the necessary emergency repairs. The City shall be reimbursed for all of the City's costs
and expenses (including any legal expense) incurred in the exercise of the City's rights under this
Paragraph. The City may aka draw upon thc Security to the cxtmL ncccssary to cover its
maintenance and repair costs.
5. City's Nonlisbility, Neither Laing nor any of Laing's agents or contractors
are or shall bc considered to bc agents of the City in connection with the performance of the
obligations Under this Agc~m811t.
6. Indemnity. Neither the City nor any officer or employee thereof slxdl be
liable for any injury to persons or property resulting from the acts or omissions of Lain& its agents
or employees in the performance of this Ageement. Laing shall indemnify md hold thc City, its
off~cialsandemploy~sharmlessfmmany~~dallclaims,dcmands,ca~~ofaction,liabilityorloss
of any sort because of or arising out of acts or Omissions of Lain& its agents or employees in thc
pedmance of this Agreement, including claims. demands, causes of action, liability, or loss
because of or arising out ofthe maintenance ofthe work or improvements; providd howcvcr, that
the Security shall not be required to cover the provisions of this Paragraph.
7. Time of the E.srcncc. Time is of the essence of this Agreement.
8. Attorneyn' Fecs. If any litigatioa is initiated to interpret or enforce the
provisions of this Agreemcnt, the Wvailing Party in such litigation may rccovcr its reasonable
anomey fees as fixed by the Court.
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9. Force Majeure. .If either Party is delayed or hindered in or prevented krn
performing my act required hereunder by reason of strkes, lockouts, failure of power or other ,
utilities, restrictive govemmmul laws orregulations, riots, insurrection. war or otherreason ofa like
na- not the fault of the Party so delayed, then witbin ten (IO) business days after the beginning
of mch delay, the delayed Party shall notify the other Party, stating the remn for the delay and
requesting an extension to perform such act. The time period agreed to by the Parties &I1 be added
to the time for performance of such act.
10. Notices. All notices and demands of any kind which either Party may be
equired or desire to serve upon the othcr Party under the terms of this Agreement shall be in writing
and shall be scrvcd upon such other Pam by personal service upon such other Ppay. or by mailing
a copy thereof by certified or registered mail, postage prepaid, with return receipt rcquesied,
addressed as follows:
If to City, to:
Ifto Laing. to;
City of Carlsbad
2075 Las Palmaa Drive
CarIsbad. California 92009-4859
Attention: City Enginem
WL Homes, LLC, a Delaware limited liability
company dba John Laing Homes
10737 Lam1 Strcd. Suitc 280 Rancho Cucamunga, CA 9 1730
Attention: bivision PmMent
Notices shall be deemed to have bcen given when deliverad personally or when deposited in the
United Stares mail, addrcsscd es.pmvided above or 10 such subsequent address a& either party may
provide for that purpose by giving notice thereof in the mmer provided hcrdn.
1 1. Amendment. This Agreement may only be amended by the written consent
of both of the Parties.
12. Memorandum. A mEmomndum of this Agreement may be recorded by
either Pa*.
IN WIlNESS WEEREOF, this Agreement is executed by thc City of Carlsbad and
Laing to be effective as of the Effective Dote.
CITY: LAING:
WL HOMES LLC, a Delaware limited
STATE OF CACIl?ORNIA 1
, 1992 before me,
p) to @he person whose name is subscribed to the within instnunent and acknowledged to me that he executed the same in his authorired capacity, and that
by his signature on the instrument thc pan, or the entiry upon behalf of which the person acted,
executed the instrument,
,T.TELTCJ , personally known to me
WIRJESS my hand and official seal.
jf! -i S&
N&ry Public in and for said State
bm2571U116Si3143’36.4 3nmY
State of California 1
) County of San Diego )
On June 10, 1999, before me, Belinda R. Guzman, Notary Public, personally appeared
within instrument and acknowledged to me that he executed the same in his authorized
Lloyd Hubbs, personally known to me to be the person whose name is subscribed to the
capacity, and that by his signature on the instrument the person, or entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and ofticial seal
n
(This area for
Signature of Notary v official notary seal)
Title or Type of Document Desiltation Basin Maintenance Agreement
Date of Document June 10,1999 No. of Pages 4
Signer(s) other than named above None
.. SHEET 1 OF 1 SHEET
EMBIT B TO
DESILTATION BASIN MAINTENANCE AGREEMENT
MAP SHOWING UPSTREAM PROPERTIES
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TOTAL P.85
EXHIBIT C
TO
DESILTATION BASIN EASEMENT AGREEMENT
GRANT OF EASEMENT
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Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
JACKSON, DEMARCO &
PECKENPAUGH (BWC)
4 Park Plaza, 16th Floor
Post Off~ce Box 19704
Irvine, CA 92723-9704
DOCUMENTARY WSER TAX S $0 (value less than $100) SPACE ABOVE THIS LINE FOR RECORDER'S USE - J Computed on the wmlderation or value of property wmeyed; OR - Computed on the consideration or value less lims or Cncumbrancss
remaining a time of sale.
The undenimed Grantor
SignaNn of Declarant or Agent determining tax-Firm Name
GRANT OF EASEMENT
(Westerly Basin and Access Road)
.. FORVALUABLE CONSIDERATION, receipt ofwhich is hereby acknowledged, KAIZA
POINSETTIA CORPORATION, a California corporation ("Kaiza"), hereby grants the
following easements:
1. Laing Easements. Kaiza hereby grants easements to WL Homes LLC, a Delaware
limited liability company, d.b.a. John Laing Homes ("Laing") over (a) that portion of Lot 2 of
Carlsbad Tract 82-18 as shown on Tract Map No. 11290 ("Lot 2") comprising of approximately 1.9
acres and described on Exhibit A attached hereto as the "Westerly Basin" for the purpose of
maintaining the Westerly Basin as required under that certain unrecorded Desiltation Basin
Maintenance Agreement, dated as of A- 1999 (the "Basin Maintenance
Agreement"), between Laing and the City of'carlsbad (the "City") and (b) that portion of Lot 2
described on Exhibit A as the "Access Road" for the purpose of accessing the Westerly Basin from
Carlsbad Boulevard. The Basin Maintenance Agreement is incorporated herein by reference.
2. City Easements. Kaiza hereby grants easements to the City overthe Westerly Basin
and Access Road for the purpose of exercising the City's rights under the Basin Maintenance
Agreement.
The Easements granted hereby shall be terminated as of the date on which the City records
an acceptance of Kaiza's offer of dedication of the Westerly Basin and the Access Road.
MAIL TAX STATEMENTS TO: KaiZa POinSettia COrpOra.tiOn
23 172 Plaza Pointe Drive, Suite 155
Laguna Hills, CA 92653
Executed by Kaiza to be effective as of the date on which this Grant of Easement is
recorded.
KAJUPO~RPORJlflaCall corporation
On 4,- Y' 25 , 1999, before me,
personally appeared NORIKO SAIGA, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the withii instrument and
acknowledged to me that he executed the same in his authorized capacity, and' that by his signature
on the instrument the perion, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
&,dH-.
otary Public in and for said State
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EXHIBIT A
TO
GRANT OF EASEMENT
MAP SHOWING WESTERLY BASIN AND ACCESS ROAD
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'stlEET 1 OF 1 SHEET
1 NO SCALE POlNS€TIA SHORES
f5Za
CXIsI: AKSSROAD.. . . . .
B I 01999 @Day Consultants, Inc.
OPTIONEE'S CONSENT
K. HOVNANIAN COMPANIES OF SOUTHFXN CALIFORNIA, INC., a California
corporation (the "Optionee"), as the holder of the option (the "Option") to purchase Lots 1 and 2
of Carlsbad Tract No. 82-18 (the "Option Property") pursuant to that certain Option Agreement (the
"Option Agreement"), dated September 17,1998, betweenKaizaPoinsettiaCorporation, a California
corporation, as "Optionor," and Optionee, a memorandumof which was recorded on February 5,
1999, as Instrument No. 1999-0073229 in the Ofiicial Records of San Diego County, California,
hereby consents to the foregoing grant of easement (the "Easement"). Optionee approves such
Easement as a "Permitted Exception" as defined in the Option Agreement, and upon acquisition of
the Option Property by Optionee, should that occur, Optionee'agrees that upon written request fiom
the City or Laing it will confirm that the portion of the Option Property constituting the Westerly
Basin and the Access Road remain subject to the Easement. The City is a third-party beneficiary of
the obligation undertaken by Optionee pursuant to this Consent.
K. HOVNANIAN COMPANIES OF SOUTHERN
CALIFORNIA, INC., a California corporation -
By: .
Nicholddpas, President
Date: 44Y99 ' '
STATE OF CALIFORNIA )
COUNTY OF h%Q )
) ss.
-
onflM.U-P ,1994 before me, "nasonally
appeared NICHOLAS PAPPAS, personally known to me (or 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) (she) executedthe same in (his) (her) authorized capacity, and that by
(his) (her) signature on the instrument the berson, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
bwcZ57R6165i314396.4
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