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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: -2- bwclS712616Sn14396.4 3RMp (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. -3- bwbl57i2616Mld396.4 mlly, 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 bwc2571261651314396.1 3nm I I I i I I I i I A"tERPUN "" *..*................. ~n rABvmmmx.. . . -. . . . . . ~sI(#vdp! ."..".,..... b *" .a ..". TJ?m smu DR4dy . . . . . . . . . . . . . ."" L" @ I 619 931 7700 MGE. c17 I -7 I I I I I I I ikEaz#.. sazs" "" A ................... mu lilarrmi3mE.. ........... -srpRym.. ............. " . ea-. N~sIDpu~ ............ ..""*A" 659 TOTAL P.85 EXHIBIT C TO DESILTATION BASIN EASEMENT AGREEMENT GRANT OF EASEMENT bWU57R6165f314396.4 3m 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 -2- bwc25712616Si314396.4 4/23/99 EXHIBIT A TO GRANT OF EASEMENT MAP SHOWING WESTERLY BASIN AND ACCESS ROAD bwc257i26165i314396.4 . "" - - '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 An-Jrno