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HomeMy WebLinkAbout2013/06/11 Item 03CITY COUNCIL AGENDA STATEMENT ~~~ QTY OF CHULA VISTA June 11, 2013, Item 3 ITEM TITLE: RESOLUTION OF THE CHULA VISTA CITY COUNCIL APPROVING AN AGREEMENT BETWEEN THE CITY AND CALTRANS FOR LANDSCAPE MAINTENANCE WITHIN THE STATE HIGHWAY RIGHT-OF-WAY OF INTERSTATE 5 AT PALOMAR STREET WITHIN THE CITY OF CHULA VISTA AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT. RESOLUTION OF THE CHULA VISTA CITY COUNCIL APPROVING A MAINTENANCE AGREEMENT BETWEEN THE CITY AND SOUTHERN SAN DIEGO PROPERTIES, LLC (PROPERTY OWNER) FOR THE PALOMAR GAS AND CARWASH PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT. SUBMITTED BY: DIRECTOR OF DEVELOPMENT SERVICES/ASSISTANT CITY MANAGER REVIEWED BY: CITY MANAGE „~// ASSISTANT/DEP Y CITY MANAGE "{ 4/STHS VOTE: YES NO X SUMMARY This is a request by the applicant, Southern San Diego Properties, LLC for approval of two agreements including (1) An agreement between the City and Caltrans for landscape maintenance within the state highway right-of--way of Interstate 5 at Palomar Street and (2) A Maintenance Agreement between the City and Southern San Diego Properties, LLC (Property Owner), transferring landscape maintenance obligation to the owner and successors and assigns, in accordance with the above agreements, for the Palomar Gas and Carwash Project. Approval of these agreements is necessary to construct and maintain landscaping in the State highway right-of--way of Interstate 5. The agreements must be approved before Caltrans can approve the encroachment permit authorizing installation of landscaping and construction of improvements in the state highway right-of--way, and before the City approves the grading permit and 3-1 Date, Item No.: 3 Meeting Date: 06/11/13 Page 2 of 3 improvement plans for the Project. The Project site is located at 873 Palomaz Street, at the southwest comer of the intersection of Palomaz Street and the I-5 freeway in the West Fairfield area of Southwestern Chula Vista (see Attachment 1, Locator Map). ENVIRONMENTAL REVIEW The Development Services Duector has reviewed the proposed Project for compliance with the California Environmental Quality Act (CEQA) and has determined that the Project is adequately covered by the previously adopted Mitigated Negative Declazation, IS-08-012 for the Palomaz Gas and Carwash Project. Thus, no additional environmental review is required. RECOMMENDATION That the City Council adopt the attached Resolutions approving the subject agreements. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION Site Characteristics: The Project is a vacant 1.0-acre site located on the southwest corner of the intersection of the Palomar Street overpass, with the I-5 freeway southbound on-ramp located to the east of the site. Stella Street is located to the south side of the project site. The surrounding neighborhood consists of mixed commercial, industrial and residential uses. Back round On February 17, 2011, the Zoning Administrator adopted Mitigated Negative Declaration IS-08- 012 and approved Conditional Use Permit (PCC-08-016) and Design Review (DRC-08-25) for the Palomar Gas and Carwash Project. The Palomaz Gas and Carwash Project consists of the construction of a service station with 6 refueling islands for gasoline, diesel and CNG fuel with a 4,435 squaze foot canopy, a 1,200 squaze foot carwash, and a 4,000 square foot building that includes a convenience store and one restaurant suite with 24 parking spaces, and associated landscaping. This site is located in the Coastal Zone, and the Palomaz Gas and Carwash Project received approval of a Coastal Development Permit by the California Coastal Commission in August 2011. Proposal On May 23, 2012, the Property Owner, Southern San Diego Properties LLC submitted applications to the City requesting approval of Grading Plans (PG 839) and Improvement Plans (PC 2132). The Project proposes landscaping of an area of approximately 4,000 sq. ft. located 3-2 Date, Item No.: 3 Meeting Date: 06/11/13 _ Page 3 of 3 along the property's frontage on Palomaz Street within State highway right-of--way of Interstate 5 (See Exhibit A of the attached Landscape Maintenance Agreement). The landscape azea is in the Interstate 5 state highway right-of--way, under the jurisdiction of Caltrans. Therefore, an encroachment permit has been submitted to Caltrans to enable construction of public improvements in the right-of--way to support the Project, including landscaping and imgation. Caltrans requires that the City and Caltrans enter into the attached "Agreement for Landscape Maintenance within State Highway Right-Of--Way on Interstate 5 within the City of Chula Vista" regarding maintenance of these landscaping and irrigation improvements (Attachment 2). Caltrans has reviewed and approved this agreement. However, because the City requires that the landscape maintenance obligation for this area be transferred to the Property Owner, and approval of a three-party agreement is not recommended by Caltrans, a separate "Grant of Maintenance and Easement Agreement" between the City and the Property Owner will transfer all maintenance provisions required of the City to the Property Owner (Attachment 3). The Applicant has reviewed and approved this agreement. The City will issue the approved grading, improvement and landscape plans after approval of these agreements. DECISION-MAKER CONFLICTS Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is subject to this action. Staff is not independently aware, nor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT YEAR FISCAL IMPACT There are no fiscal impacts during the current fiscal year from the processing of the Project. All costs for the Project are covered by the deposit accounts associated with the processing of the Grading Plan and Improvement Plan. ONGOING FISCAL IMPACT The Applicant will cover the cost of installation and maintenance of the landscaping and irrigation improvements in perpetuity. Development of the gas station and carwash facility will generate increased sales and property tax revenues that will benefit the City. ATTACHMENTS l . Locator Map 2. Agreement for Landscape Maintenance within State Highway Right-Of--Way on Interstate 5 within the City of Chula Vista 3. Grant of Maintenance and Easement Agreement 4. Disclosure Form Prepared by.' Richard Zumwalt, AICP, Associate Planner, Development Services Department 3-3 ~~~~ ~~ PROTECT ~ °~ . ^. LOCATION a n City of Chula City of San Diego ~ ~ ~ 'fin N (D Q ~iamar Sf II ~ r i ~ \ ~ A a St a ~ ~ ~ Bell~J ~ -... • • .. ri~,IIII~III ~1I ~ i Dorotti St ^ CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR PROJECT Southern San Diego PROJECT DESCRIPTION: APPUCANr. Properties LLC. MISCELLANEOUS PROJECT y p ADDRESS: 8y3 QR~~ ~~ S~' Proposing a Car Wash, Gas Station 8 Convenience Store. K SCALE: FILE NUMBER: NORTH No Scale PCC-08-016 Related cases: DRGO&25, PCZ-09-03, IS-08-012 °~ PCi` L:\Gabe Files\locators\P0008012.cdr 02.14.08 '~-Q Attachment 1 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~2Glen i City Attorney Dated: ~ ' ~ ' ~~ AGREEMENT FOR LANDSCAPE MAINTENANCE WITHIN STATE HIGHWAY RIGHT OF WA ON INTERSTATE 5 WITHING THE CITY OF CHULA VISTA BETWEEN THE STATE OF CALIFORNIA AND THE CITY OF CHULA VISTA 3-5 Attachment Z II-SD-005 PM 6.06 LMA 11-8368 AGREEMENT FOR LANDSCAPE MAINTENANCE WITHIN STATE HIGHWAY RIGHT OF WAY ON INTERSTATE 5 WITHIN THE CITY OF CHULA VISTA THIS AGREEMENT is made and executed effective this day of 201_ by and between the State of California, acting through its Department of Transportation, hereinafter referred to as "STATE," and the City of Chula Vista, hereinafter referred to as "CITY," together referred to as "PARTIES". RECITALS: WITNESSETH 1. PARTIES desire to work together to allocate their respective obligations relative to improvements newly constructed or revised within STATE's right of way by Caltrans Encroachment Permit Number I1-I1-6MC-0418. 2. This Agreement addresses CITY responsibility for the landscaping, planting, irrigation systems, mulches, pest control; fertilization, pruning, litter and weed removal, as well as hazdscaping (collectively the "IMPROVEMENTS") placed. within State Highway right of way on interstate 5 (T-5), as shown on Exhibit "A," attached to and made a part of this Agreement. Section I In consideration of the mutual covenants and promises herein contained, CITY and STATE agree as follows: a) PARTIES have agreed to an allocation of maintenance responsibilities that includes, but is not limited to, inspection, providing emergency repair, replacement, and maintenance (collectively hereinafer "MAINTAIN /MAINTENANCE") of s IMPROVEMENTS as shown on said. Exhibit "A." b) When a planned future improvement is constructed and/or a minor revision has been effected with STATE's consent or initiation within the limits of the STATE's right of way herein described which affects PARTIES' division of maintenance responsibility as described herein, PARTIES will agree upon and execute a new dated and revised Exhibit which will be made a part hereof and will thereafter supersede the attached original Exhibit "A" to thereafrer become a part of this Agreement. The new exhibit can be executed only upon written consent of the Parties hereto acting by and through their authorized representatives. No formal amendment to this Agreement will be required. 3-6 lI-SD-005 PM 6.06 LMA I I-8368 c) CITY may contract with another entity that shall undertake the performance of the MAINTENANCE obligations. In no event shall performance of the obligations by another party, or any contract therefore, relieve the CITY of its duty to perform the MATNTENANCE obligations in accordance with the terms and conditions of this Agreement or relieve the CITY of any liability associated therewith. Section II CITY agrees, at CTTY expense, to do the following: a) CITY may install, or contract authorizing a licensed contractor with appropriate class of license in the State of California, to install and thereafter will MAINTAIN (Section 27 of the Streets and Highways Code) IMPROVEMENTS conforming to those plans and. specifications (PS&E) pre-approved by STATE. b) All proposed IMPROVEMENTS must meet STATE's applicable standards. c) CITY shall ensure that IMPROVEMENTS areas designated. on Exhibit "A" are provided with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance. d) CITY will obtain and have in place a valid necessary encroachtnent permit prior to the start of any work within STATE's right of way. CITY contractors will be required to obtain an Encroachment Permit prior to the start of any work within STATE's right of way. e) An Encroachment Permit rider may be required for any changes to tl}e scope of work allowed by this Agreement prior to the start of any work within STATE's right of way. f) To ensure functioning irrigation system controls, water, and fertilizer necessary to sustain healthy plant growth during the entire life of this Agreement. g) To replace unhealthy or dead plantings when observed or within 30 days when notified in writing by STATE that plant replacement is required. h) To pnme plantings to control extraneous growth and ensure STATE standard lines of sight to signs and corner sight distances are maintained for the safety of the public. 2 3-7 11-SD-005 PM 6.06 LMA I I-8368 i) To MAINTAIN, repair, and operate the irrigation systems in a manner that prevents water from flooding of spraying onto STATE highway, spraying parked or moving automobiles, spraying pedestrians, and/or leaving surface water. j) To control weeds at a level acceptable to the STATE. Any weed control performed by chemical weed. sprays (herbicides) shall comply with all laws, rules, and regulations established by the California Department of Food and Agriculture. All chemical spray operations shall be reported quarterly (form LA17) to STATE via the Landscape Specialist, Maintenance Support, Caltrans District Office, 4050 Taylor Street (MS-220), San Diego, CA 92110. k) To expeditiously repair any STATE facility damage ensuing from CITY'S IMPROVEMENTS presence and activities including, but not limited to, damage caused by plants and plant roots and to reimburse STATE for its costs to repair the STATE facility damage ensuing from C1TY's IMPROVEMENTS presence and activities should STATE be required to cure a CITY default. 1) To prevent materials related to IMPROVEMENTS maintenance operations and other deleterious materials from entering STATE's drainage gutters, drainage outlets, and storm drain pipes. m) To remove IMPROVEMENTS and appurtenances and restore STATE owned areas to a safe and attractive condition acceptable to STATE in the event this Agreement is terminated as set forth herein. n) To inspect IMPROVEMENTS on a regular monthly or weekly basis to ensure the safe operation and condition of the IMPROVEMENTS. o) To expeditiously MAINTAIN, replace, repair, or remove from service any IMPROVEMENTS system component that has become unsafe or unsightly. p) To al low random inspection of TNiPROVEMENTS by a STATE representative. q) To keep the entire landscaped and hardscaped area policed and free of litter and deleterious material. r) All work by or on behalf of CITY will be done at no cost to STATE. 3-8 11•SD-005 PM 6.06 LMA 11-8368 Section III STATE agrees to do the following: a) Provide CTTY with timely written notice of unsatisfactory conditions that require correction by the CITY. However, the non-receipt of notice does not excuse CITY from maintenance responsibilities assumed under this Agreement. b) Tssue encroachment permits to CTTY and CITY contractors at no cost to them. Section IV Leeal Relations and Responsibilities a) Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement, or affect the legal liability of either PARTY to this Agreement by imposing any standard of care respecting the design, construction, and maintenance of these STATE highway improvements or CTTY facilities different from the standard of care imposed by law. b) if during the term of this Agreement, CITY should cease to MAINTAIN the TMPROVEMENTS to the satisfaction of STATE as provided by this Agreement, STATE may either undertake to perform that MATNTENANCE on behalf of CTTY at CITY's expense or direct CITY to remove or itself remove IMPROVEMENTS at CITY's sole expense and restore STATE's right of way to its prior or a safe operable condition. CTTY hereby agrees to pay said STATE expenses within thirty (30) days of receipt of billing by STATE. However, prior to STATE perforn~ing any MAINTENANCE or removing IMPROVEMENTS, STATE will provide written notice to CITY to cure the default, and- CITY will have thirty (30) days within which to effect that cure. c) Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction arising under this Agreement. Tt is understood and agreed that STATE shall fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement with the exception of those actions of STATE necessary to cure a noticed default on the part of CITY. 3-9 11-SD-005 PM 6.06 LMA 11-8;68 d) Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction arising under this Agreement. Tt is understood and agreed that CITY shall fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, including, but not limited. to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. e) Labor Code Compliance /Prevailing Wage Requirements if the work performed on this Project is done under contract and falls within the Labor Code section 1720(a)(1) definition of a "public work" in that it is construction, alteration, demolition, installation, repair, or maintenance work under Labor Code section 1771, CITY must conform to the provisions of Labor Code sections 1720 through 1815 and all applicable regulations (e.g., CCR Title 8, Chapter 8, Subchapter 3, Articles 1-7). CITY agrees to include prevailing wage requirements in its contracts for public work. Work performed by C1TY's own forces is exempt from the Labor Code's Prevailing Wage requirements. f) Prevailing Wage Requirements in Subcontracts CITY shall require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement when the work to be performed. by the subcontractor is a "public work" as defined in Labor Code Section 1720(a)(1). Subcontracts shall include all prevailing wage requirements set forth in CiTY's contracts. g) insurance CITY and their contractors shall maintain in force during the term of this agreement a policy of general liability insurance, including coverage of bodily injury liability and property damage liability naming the State of California, its officers, agents, and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate. Coverage shall be evidenced by a certificate of Insurance in a form satisfactory to STATE that shall be delivered to STATE with a signed copy of this Agreement. h) Termination This Agreement may be terminated by timely mutual written consent by PARTIES, and C1TY's failure to comply with the provisions of this Agreement may be grounds for a Notice of Termination by STATE. i) Term of Agreement This Agreement shall become effective on the date first shown on its face sheet and shall remain in fill] force and effect until amended or terminated at any time upon mutual consent of the parties or until terminated by STATE for cause. 3-10 11-SD-005 PM 6.06 LMA 11-8368 PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this Agreement and have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this Agreement. 1N WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. CITY OF CHULA VISTA By: CITY Mayor Attest: By: CITY Clerk Approved as to Form: By: CITY Attorney STATE OF CALTFORNTA DEPARTMENT OF TRANSPORTATTON MALCOLM DOUGHERTY Director of Transportation By: District Division Chief Maintenance By: Attorney ** Department of Transportation * *Approval by ST,VTE'S Attorney is not required unless changes are made to this form, imvhldr ense, the draft mil] be submitted to Hendy¢urrters for review arvd approvad by STATE's Axtorney as to fmm and proced¢n~es. 6 3-11 LANDSCAPE MAINTENANCE AGREEMENT--EXHIBIT'A' LMA 11-8368 ...,.,.,•,••--•° .._-..,. ,.,...,STAY R'~W "~,.,. -~_ __ PALOMAR '- STREET -- -_ -- __ y~>v,,,_ --- ~ - _ t .r,..i.- S7t~0r,- _ I ,~._ i 711;L0 121 I x'~ `LOT 1 I LOT 14 I 1 ALLEY 1CA~TE_p) )T x19.{ "~ \ ~ 4 ,3 ~ 1 fm1~1 x.11. 1 IELQ U~1~ N0 21 ' ~ i ~ ~d t~ A'~~i ~fli ~ ; fir'( ~~^a ~~ I ( ~.~ %~i i ~.N ~- _~ -_ _~ xlr.{ i ~ I 29.30 FFE .Rt6 x,11 xJas 28.55 PAD ~;It I V om aic „JZs x.a w OUTHERN SAN DIEG -- -~~ -- "' LOT z LOT 2 Jl 6 )01W _ 'f -A. r Lv x . PROPERTIES LLC x`"` ~ 3755 Avaado BNd. X436 -- ~ ~ ~ xJ,.4 F _.-. La Mesa, Ca 91941 ' ~ ~ ~ ~ r ~-•-- '' ~ _ ~-- ~ ~ ~ ~ ~ ~ ~ / I { wv ~ Telephone (619) 206-7005 ~_ ... ... ~ ~ ,\ i s ~~~~~~~~~~ Fax (619) 670-097D ° ' _ ~ I ~~ ,no:~~,~ s`e~s`"`°"'! °`~ PERMIT NUMBER 11-11.6MC-0418 06 CO SD RTE 5 PM 6 PALOMAR GAS AND s ® ( CAR WASH T ,~ , , _ AS•BUILT PLANS FOR ROADWAY 878 STELLA STREET @ PALOMAR ST. & I-5 JAMES P. BENEDETTI ~."~.. * GEOMETRIC AND ABOVE GROUND ~~ CHULA VISTA, CALIFORNIA LANDSCAPE ARCHITECT ~„ "; FEATURES 4403 MANCHESTER AVE.. SUITE l01 ,,,,,,,,, °+~~~,r~, SHEET10F1 ENCINITASV CA 92024 STATE REPRESE G7 DATE ~, MARCH 02, 2012 VIGNTY AIAP LEGEND ARFA xnl+i stAtE arlTr a war ro e[ IAAMIiA'NED 67 qiY OF g11M NSTA N ~E- THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~~ Glen City Attorney Dated: ~ " 3 ' ~ 3 MAINTENANCE AGREEMENT FOR PALOMAR GAS AND CARWASY CENTER 873 PALOMAR STREET BETWEEN THE CITY OF CHULA VISTA AND SOUTHERN SAN DIEGO PROPERTIES, LLC 3-13 Attachment 3 RECORDING REQUESTED BY AND WHEN RECORDED RETURN T0: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. MAINTENANCE AGREEMENT FOR PALOMAR GAS AND CARWASH CENTER (873 PALOMAR STREET) PROJECT This MAINTENANCE AGREEMENT (Agreement) is made as of this day of 2013, by and between the CITY OF CHULA VISTA, a municipal corporation (City), and Southern San Diego Properties, LLC, a California limited liability company (Owner). RECITALS A. This Agreement concerns and affects certain improvements within portions ofthe real property located in Chula Vista, California, more particulazly described in Exhibit A attached hereto and incorporated herein by this reference (Property). The Property is part of a Gas and Carwash Center commonly known as Palomar Gas and Carwash (Project). B. Owner's Project approvals require Owner to maintain certain azeas in the Project and in the public right-of--way adj acent to the Proj ect, in this instance within the California Department of Transportation (Caltrans) right-of--way of Interstate 5. C. In order for Owner to obtain a Land Development Tracking Permit (Grading Permit), Owner agrees to maintain or to cause the maintenance of the azeas and landscaping and drainage improvements (hnprovements) identified on Exhibit B attached hereto and incorporated herein by this reference. The public azeas and Improvements to be maintained by Owner are collectively referred to as the "Owner Maintained Public Areas." D. Caltrans owns the Owner Maintained Public Areas. City does not and will not obtain any property interest in the Owner Maintained Public Areas. In order to begin the process of maintaining the Owner Maintained Public Areas, and in accordance with Caltrans requirements that only a public entity may enter into an Agreement for Landscape Maintenance within State Highway Right of Way (Caltrans Agreement) to encroach within its right-of--way to maintain the Owner -1- 3-14 Maintained Public Areas, City will enter into the Caltrans Agreement concurrently with this Agreement. Notwithstanding Caltrans' requirement that only City enter into the Caltrans Agreement, City shall pass all maintenance responsibilities of the Owner Maintained Public Areas and all liability for encroachment into the Caltrans right-of--way to Owner in accordance with the provisions of this Agreement in order to facilitate the obligations of Owner pursuant to all Project approvals from City. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Caltrans Agreement. Concurrent with entering into this Agreement with Owner, City shall also enter into the Caltrans Agreement with Caltrans, a copy of which is attached hereto and incorporated herein by this reference as Exhibit D. 2. City Transfer of Caltrans Agreement Obligations to Owner. City hereby transfers to Owner and Owner, its agents, successors and assigns, hereby accepts from City all of the rights, duties and obligations contained in Caltrans Agreement Sections I, II, III and N over and across the Owner Maintained Public Areas for the purpose of using, installing, maintaining, repairing and replacing landscaping improvements located thereon. This transfer of said rights, duties and obligations is made without any warranties of any kind, express or implied. 3. Maintenance Obligations. (a) Owner to Maintain. Owner hereby covenants and agrees, at its sole cost and expense, to use, install, maintain, repair and replace, or cause to be used, installed, maintained, repaired or replaced, those improvements within the Owner Maintained Public Areas which are described on Exhibit C attached hereto and incorporated herein by this reference, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at his/her discretion and equivalent to City or Community Facilities District maintained right-of--way facilities and which is acceptable to Caltrans in accordance with the Caltrans Agreement attached hereto as Exhibit D. For purposes of this Agreement, the term "Maintenance" or "Maintain" shah mean the use, installation, maintenance, repair and the provision of water and replacement obligations described herein and shown on Exhibit B and described within Exhibit C both attached hereto and shall also include repair and replacement at no cost to the City of any City owned property or Caltrans of any Caltrans owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. 4. Owner Insurance Obligations (a) Owner, and if applicable Owner's third party contractor (Contractor) retained to install, maintain, repair and replace the Owner Maintained Public Areas, shall procure and maintain at their sole cost and expense, commencing prior to issuance of a Caltrans Encroachment Permit (if applicable) and City and Caltrans execution of -2- 3-15 the Caltrans Agreement, a policy of public liability insurance which, at a minimum, meets the following requirements: (1) General Liability Insurance. Owner and Contractor shall obtain a comprehensive general liability and property damage insurance policy insuring the Owner and Contractor against liability incident to use, maintenance, repair and replacement of the Owner Maintained Public Areas. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions: (i) The City of Chula Vista and Caltrans shall be named as additionally insured parties to such insurance pursuant to the City's and Caltrans' requirements; (ii) The policy shall not contain across-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." Owner shall provide the City and Caltrans with a Certificate of Insurance and insurance policy Endorsements naming the City and Caltrans , as "Additional Insureds" upon procurement of the policy as set forth above. 5. Indemnity. Owner shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), that may be asserted or claimed by any person, firm, or entity because of or arising out of or in connection with the use, installation, maintenance, or repair of the Owner Maintained Public Areas. 6. Agreement BindinE Upon Any Successors in Interest. This Agreement shall be binding upon Owner and any successor in interest. This Agreement shall inure to the benefit of any successors, assigns and interests of the parties as to any or all of the Property. -3- 3-16 7. Agreement Runs With the Land. The burden of the covenants contained in this Agreement (Burden) is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiazies of this Agreement and the covenants may be entitled. 8. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 9. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 20. Counterparts. This Agreement maybe executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 31. Recording. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 43. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law; any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business dais have elapsed following deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A parry may change such address for the purpose of this Paragraph by giving written notice of such change to the other P~Y• If to City: CITY OF CHULA VISTA Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If to Owner: -4- 3-17 Nader Hagar Southern San Diego Properties LLC, 10003 Destiny Mountain Court, Spring Valley, CA 91978 nick_haggar@hotmail.com (619)206-7005 (b) Captions. Captions in this Agreement aze inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regazding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be ofno force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any Recitals set forth above and any attached Exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance ofits obligations under this Agreement, Owner, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively prestuned that both parties participated equally in the prepazation and/or drafting of this Agreement. -5- 3-18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal corporation By: Cheryl Cox, Mayor Attest: By: Donna Norris, City Clerk Southern San Diego Properties LLC, a California Limited Liability Company BY~~-~-~---- By: By: Approved as to Form: Glen R. Googins, City Attorney -7- 3-19 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On MA`i (,p , 201, before me, ~p~. N6~'f ~ , Notary Public in and for said State, personally appeazed Nfl~~R- Hq-~r~ f1'~-- personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( whose nameQs~i /are subscribed to the within instrument and acknowledged to me that/she/they executed the same inl~/her/their authorized capacityi~, and that by Sher/their signahue(~df on the instrument, the person(, or the entity upon behalf of which the person(p'S acted, executed the instrument. WITNESS my hand and official seal. Signature ~ ~ (Seal) DON N6UYEN COMM. #1952242 a ~, Notary Public • California c ~ San Diego County ' M C ~mm. Ex des Se .15, 2015 -8- 3-20 LEGAL DESCRIPTION EXHIBIT "~~~ THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOTS 28, 29 AND 30, BLOCK "A" OF FAIRFIELD UNIT N0. 2, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF N0. 1491, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7,1912, TOGETHER WITH THAT PORTION OF THE SOUTH ONE-HALF OF THE ALLEY ADJACENT TO SAID LOTS ON THE NORTH; SAID ALLEY HAVING BEEN VACATED AND CLOSED TO PUBLIC USE ON DECEMBER 24,1957 BY AN ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 6,1958 IN BOOK 6894, PAGE 35 OF OFFICIAL RECORDS. PARCEL 2: LOTS 31 AND 32, BLOCK "A", FAIRFIELD N0: 2, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNL4, ACCORDING TO THE MAP THEREOF N0. 1491, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7,1912, TOGETHER WITH THAT PORTION OF THE SOUTH ONE-HALF OF THE ALLEY ADJACENT TO SAID LOTS ON THE NORTH; SAID ALLEY HAVING BEEN VACATED AND CLOSED TO PUBLIC USE ON DECEMBER 24,1957 BY AN ORDER OF THE BOARD OF SUPERVISORS OF SAID SAN DIEGO COUNTY, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 6,1958 IN BOOK 6894, PAGE 35 OF OFFICIAL RECORDS. PARCEL 3: THOSE PORTIONS OF LOTS 19 THROUGH 23 INCLUSIVE, TOGETHER WITH THAT PORTION OF THE NORTH HALF OF THE ALLEY ADJOINING SAID LOTS, AS VACATED AND CLOSED TO PUBLIC USE, ALL IN BLOCK "A" OF FAIRFIELD N0. 2, ACCORDING TO MAP N0. 1491, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7, 1912, AS SAID PORTIONS WERE CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED APRIL 2,1963 INSTRUMENT N0. 54175 OF OFFICIAL RECORDS OF SAID COUNTY; LYING SOUTHWESTERLY OF THE SOUTHWESTERLY RIGHT OF WAY LINE OF THE PALOMAR STREET INTERCHANGE OF STATE FREEWAY LL-SD-5-6.1, SAID PORTIONS HEREBY CONVEYED DESCRIBED AS FOLLOWS: ]BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID STATE LAND; THENCE ALONG THE FOLLOWING NUMBERED COURSES: (1) ALONG THE WESTERLY LINE OF SAID STATE LAND NORTH 02 DEGREES 43'43" EAST, 112.68 FEET TO SAID RIGHT OF WAY LINE FROM A TANGENT WHICH BEARS SOUTH 64 DEGREES 26'12" EAST, ALONG A CURVE TO THE RIGHT, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 200.00 FEET, THROUGH AN ANGLE OF 37 DEGREES 31'11", A DISTANCE OF 130.97 FEET; (5) CONTINUING ALONG SAID RIGHT OF WAY LINE SOUTH 26 DEGREES 55'01" EAST, 41.51 FEET TO THE CENTER LINE OF SAID ALLY; (4) ALONG SAID CENTER LINE NORTH 82 DEGREES 57'40" WEST, 117.07 FEET TO THE POINT OF BEGINNING. PARCEL 4: LOTS 17 AND 18 IN BLOCK "A" OF FAIRFIELD NO. 2, IN THE C17Y OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1491, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7,1912. TOGETHER WIfH THE NORTHERLY ONE-HALF OF THE ALLEY ADJOINING SAID LOT ON THE SOUTH, AS CLOSED AND VACATED TO PUBLIC USE BY RESOLUTION OF THE COUNTY BOARD OF SUPERVISORS, JANUARY 6,1958 IN BOOK 6894, PAGE 35 OF OFFICIAL RECORDS. EXCEPTING THOSE PORTIONS OF LOTS 17 AND 18 IN BLOCK "A" OF FAIR-FIELD N0. 2, ACCORDING TO MAP THEREOF N0. 1491, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7,1912, LYING NORTHERLY OF COURSES ONE (1) AND TWO (2) OF THE FOLLOWING DESCRIBED LINES: BEGINNING AT THE NORTHWEST CORNER OF LOT it BLOCK "A" OF FAIRFIELD N0. 2, ACCORDING TO SAID MAP; THENCE (1) SOUTH 76 DEGREES 13'56" EAST, 163.51 FEET; THENCE (2) ALONG A TANGENT CURVE TO THE RIGHT WITH A RADIUS OF 200 FEET THROUGH AN ANGLE OF 49 DEGREES 18'55" A DISTANCE OF 172.14 FEET; THENCE 3-21 , . __._. LEGAL DESCRIPTION EXHIBIT'~t" (CONTINUED) (3) SOUTH 26 DEGREES 55'01" EAST, 57.98 FEET TO THE EASTERLY LINE OF LOT 26 OF SAID BLOCK "A" DISTANT THEREON NORTH 02 DEGREES 43'31" EAST, 127.11 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 26. PARCEL 5: LOTS 15 AND 16, BLOCK "A", FAIRFIELD N0. 2, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF N0. 1491, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7, 1912. TOGETHER WITH THE NORTHERLY HALF OF THE ALLEY ADJOINING SAID LAND ON THE SOUTH AS VACATED BY A RESOLUTION OF THE BOARD OF SUPERVISORS OF SAN DIEGO COUNTY RECORDED JUNE 6,1958 IN BOOK 6894, PAGE 35 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THOSE PORTIONS OF SAID LOTS 15 AND 16 IN BLOCK "A" OF FAIRFIELD N0. 2, ACCORDING TO MAP THEREOF N0. 1491, LYING NORTHERLY OF COURSE ONE (1) OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE NORTHWEST CORNER OF LOT 11 IN BLOCK "A" OF FAIRFIELD N0. 2, ACCORDING TO SAID MAP; THENCE (i) SOUTH 76 DEGREES 13'56" EAST, 163.51 FEET; THENCE (2) ALONG A TANGENT CURVE TO THE RIGHT, WITH A RADIUS OF 200 FEET, THROUGH AN ANGLE OF 49 DEGREES 18'55" A DISTANCE OF 172.14 FEET; THENCE (3) SOUTH 26 DEGREES 55'01" EAST, 57.98 FEET TO THE EASTERLY LINE OF LOT 26 OF SAIp BLOCK "A" DISTANT THEREON NORTH 02 DEGREES 43'31" EAST, 127.11 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 26. PARCEL 6: LOTS 33 AND 34 IN BLOCK A, FAIRFIELD N0. 2, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF N0. 1491, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 7,1912, TOGETHER WITH THAT PORTION OF THE SOUTH HALF OF THE ALLEY ADJOINING SAID LAND ON THE NORTH, WHICH WAS VACATED AND ABANDONED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO ON JANUARY 6,1958, RECORDED JANUARY 6,1958, IN BOOK 6894, PAGE 35 OF OFFICIAL RECORDS, WHICH WOULD PASS BY OPERATION OF LAW. Assessor's Parcel Number: 622-011-27 3-22 ~~3~S,O~ GRANT OF EASEMENT AGREEMENT -- EXHIBIT'S' yr.Wt,n,..ru,.,.,.n.n.nn~. I"~~,.~.•a=., ~ Syr PALOMAR 1 __ ~,~~„~ W ~ REE ,. T ~^ ~ "~~ L(; ;l i i " f ~, ,~;., , r + ~ - ALLEY GATED) wlAe `7 ,~ LEGEND AREA YAMM STALE RWN1 OF wAY 10 BE NAWTAiIAD eY eWiHEEq SAN DIECD PRDPFRIIES LLC '~ -~-~.~ ~i A '\ n o ~\r~ ~ ti~ \\; • I~~J1p ry ~\ HMI\r~°.(Ia/ U~w~li ~'tv n I; ~ e: •' ~ `~9 ~ \ \ \ ``T ~ :: it "~"-*-~,, \\\\ \ xJA< + azanr PB. e I I ~~ ~ ~I', ,~ a G ~~ 29.30 FFE Ja'a'~ ~+.e ? ~ 28,55 PAD 1'; ;;' C „ a i ~ ~ ? Wi n e •)~ ' ~ LOT Z~ lCT 2 ,~nY ~ r~~~, .'. xJl.[ . ~' I ~ °^^. ~Ci r .a.+:, I~: ._,~~ I a ...~-, Vii? "`. SOUTHERN SAN DIEGO PALOCnRw sHAND 4 ~ GARY ENGINEERING,INC. wa s ~~ PROPERTIES LLC 873 PALOMAR ST Rv_. ~ W~11 ssm Am.eaa eame•,a.a - " ~ San uiego. Calil~nnio 62111 lalev~+e (ase) u33-Deco ra. (asa) +ea-z9aa I 3755 Arocorlo 61ytl. X436 Cu 91941 Ln ~leso SUITE 1 & 2 ~h CHULA VISTA, CALIFORNIA E-Nail GARYENGCA6~AOL.CO~A , telephone (619) 206-7905 SHEET 1 OF 1 Fox (G 19) G70-OA70 DECEMBER 12, 2012 vluNltt rtiaP~ 3-23 Exhibit C Description of Maintenance Responsibilities-Palomar Gas and Carwash Area Public pazkways of Palomar Gas and Cazwash Owner Maintains Areas shown as "Maintained Public Parkways" on Exhibit C See attached Exhibit B for azeas to be maintained by Southern San Diego Properties; LLC. 3-24 O~fFN ~ 11-SD-005 PM 6.06 LMA I I-8368 AGREEMENT FOR LANDSCAPE MAINTENANCE WITHIN STATE HIGHWAY RIGHT OF WAY ON INTERSTATE ~ WITHIN THE CITY OF CHULA VISTA THIS AGREEMENT is made and executed effective this day of 201_ by and between the State of California, acting through ifs Department of Transportation, hereinafter referred to as "STATE," and the City of Chula Vista, hereinafter referred Yo as "CITY," together refen~ed to as "PARTIES". WITNESSETH RECITALS: 1. PARTIES desire to work together to allocate their respective obligations relative fo improvements newly constructed or revised within STATE's right of way by Caltrans Encroachment Permit Number I1-11-6MC-04] 8. This Agreement addresses CITY responsibility for the landscaping, planting, irrigation systems, mulches, pest control, fertilization, pruning, litter and weed removal, as well as hardscaping (collectively the "IMPROVEMENTS°') placed within State Highway right of way on Tnterstate 5 (T-5), as shown on Exhibit "A," attached Yo and made a part of this Agreement. Section I In consideration of the mutual covenams and promises herei^ contained; CITY and STATE agree as follows: a) PARTIES have agreed to an allocation of maintenance responsibilities that inehides, but is not limited to, inspection, providing emergency repair, replacement, and maintenance (collectively hereinafer "MAINTAIN /MAINTENANCE'-) of IMPROVEMENTS as shown on said Exhibit "A." b) When a planned futare improvement is constructed and/or a minor revision has been effected with STATE's consent or initiation within the limits of the STATE's right of way herein described which affects PARTIES' division of maintenance responsibility as described herein, PARTIES will agree opal and execute a new dated and revised Exhibit which will be made a part hereof and will thereafter supersede the attached original Exhibit "A" to thereafter become a part of this Agreement. The new exhibit can be executed only upon written consent of the Parties hereto acting by and through their authorized representatives. No formal amendment to this Agreement will be required. 3-25 II-SD-005 PM 6.06 LMA 11-8368 c) CITY may contract with another entity that shall undertake the performance of the MAINTENANCE obligations. 1rt no event shall performance of the obligations by another party, or any contract therefore, relieve the CITY of its duty to perform the MAINTENANCE obligations in accordance with the terms and conditions of this Agreement or relieve the CITY of any liability associated therewith. Section II CITY agrees, at CITY expense, to do the following: a) CITY may install, or contract authorizing a licensed contractor with appropriate class of license in the State of California, to install and thereafeer will MAINTAIN (Section 27 of the Streets and Highways Code) IMPROVEMENTS conforming to those plans and specifications (PS&E) pre-approved by STATE. b) All proposed IMPROVEMENTS must meet STATE's applicable standards. c) CITY shall ensure that IMPROVEMENTS areas designated on Exhibit "A" are provided with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance. d) CITY will obtain and have in place a valid necessary encroachment permit prior to the start of any work within STATE's right of way. CITY contractors will be required to obtain an Encroachment Permit prior to the start of any work within STATE's right of way. e) An Encroachment Permit rider may be required for any changes to the scope of work allowed by this Agreement prior to the start of airy work within STATE's right of way. f) To ensure functioning irrigation system controls, water, and fertilizer necessary to sustain healthy plant growth during the entire life of this Agreement. g) To replace unhealthy or dead plantings when observed or within 30 days when notified in writing by STATE that plant replacement is required. h) To prune plantings to control extraneous growth and ensure STATE standard lines of sight to signs and corner sight distances are maintained for the safety of the public. 2 3-26 11-SD-005 PM 6.06 LMA 11-8368 i) To MAINTAIN, repair, acid operate the irrigation systems in a manner that prevents water from flooding or spraying onto STATE highway, spraying parked or moving automobiles, spraying pedestrians, and/or leaving surface water. j) To control weeds at a level acceptable to the STATE. Any weed control performed by chemical weed sprays (herbicides) shall comply with all laws, rules, and regulations established by the California Department of Pood and Agriculture. All chemical spray operations shall be reported quarterly (forn~ LA17) to STATE via the Landscape Specialist, Maintenance Support, Caltrans District Office, 4050 Taylor Street (MS-320), San Diego, CA 92110. h) To expeditiously repair any STATE facility damage ensuing from CITY'S IMPROVEMENTS presence and activities including, but not limited to, damage caused by plants and plant roots and to reimburse STATE for its costs to repair the STATE facility damage ensuing from C1TY's IMPROVEMENTS presence and activities should STATE be rewired to cure a CITY default. 1) To prevent materials related to IMPROVEMENTS maintenance operations and other deleterious materials from entering STATE's drainage gutters, drainage outlets, and storm drain pipes. m) To remove IMPROVEMENTS and appurtenances and restore STATE owned areas to a safe and attractive condition acceptable to STATE in the event this Agreement is terminated as set forth herein. u) To inspect IMPROVEMENTS ou a regular monthly or weekly basis to ensure the safe operation and condition of the IMPROVEMENTS. o) To expeditiously MAINTAIN, replace, repair, or remove from service any IMPROVEMENTS system component that has become unsafe or unsightly. p) To allow random inspection of IMPROVEMENTS by a STATE representative. q) To keep the entire landscaped and hardscaped area policed and free of litter and deleterious material. r) All work by or on behalf of CITY will be done at no cost to STATE. 3 3-27 1 I -SD-005 PM 6.06 LMA I I-8368 Section III STATE agrees to do the following: a) Provide CITY with timely written notice of unsatisfactory conditions that require correction by the CITY. However, the non-receipt of notice does not excuse CITY from maintenance responsibilities assumed under this Agreement. b) Issue encroachment permits to CITY and CITY contractors at no cost to them. Section IV Legal Relations and Responsibilities: a) Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement, or affect the legal liability of either PARTY to this Agreement by imposing auy standard of care respecting the design, construction, and maintenance of these STATE highway improvements or CITY facilities different from the standard of care imposed by law. b) if during the term of this Agreement, CITY should cease to MAINTAIN the IMPROVEMENTS to the satisfaction of STATE as provided by this Agreement, STATE may either undertake to perform that MAINTENANCE on behalf of CITY at C1TY's expense or direct CITY to remove or itself remove IMPROVEMENTS at C1TY's sole expense and restore STATE's right of way to its prior or a safe operable condition. CITY hereby agrees to pay said STATE expenses within thirty (30) days of receipt of billing by STATE. However, prior to STATE performing any MAINTENANCE or removing IMPROVEMENTS, STATE will provide written notice to CITY to cure the default, and. CITY will have thirty (30) days within which to effect that cure. c) Neither CITY nor auy officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction arising under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, including, but not limited to, tortious, eonU•actual, inverse condemnation, and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement with the exception of those actions of STATE necessary to cure a noticed default on the part of CITY. 3-28 11-SD-005 PM 6.06 LMA 1 I-8368 d) Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction arising under this Agreement. it is understood and agreed that CITY shall fully defend, indemnify, and save harmless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. e) Labor Code Compliance /Prevailing Wage Requirements If the work performed on this Project is done raider conu•act and falls within the Labor Code section 1720(a)(I) definition of a "public work" in that it is construction, alteration, demolition, installation, repair, or maintenance work under Labor Code section 1771, C1TY must conform to the provisions of Labor Code sections 1720 through 1815 and all applicable regulations (e.g., CCR Title 8, Chapter 8, Subchapter 3, Articles 1-7). CITY agrees to include prevailing wage requirements in its contracts for public work. Work performed by CITY'S own forces is exempt from the Labor Code's Prevailing Wage requirements. f) Prevailing Wage Requirements in Subcontracts CITY shall require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreetent when the work to be performed by the subcontractor is a "public work" as defined in Labor Code Section 1720(a)(1). Subcontracts shall include all prevailing wage requirements set forth in CITY's contracts. g) lnsurance CITY and their contractors shall maintain in force during the tens of this agreement a policy of general liability insurance, h~cluding coverage of bodily injury liability and property damage liability ^aming the State of California, its officers, agents, and employees as the additional insured in an amount of $I million per occurrence and $2 million in aggregate. Coverage shall be evidenced by a certificate of lnsurance in a form satisfactory to STATE that shall be delivered to STATE with a signed copy of this Agreement. h) Termination This Agreement may be terminated by timely mutual written consent by PARTIES, and CITY's failure to comply with the provisions of this Agreement may be grounds for a Notice of Termination by STATE. Tenn of Agreement This Agreement shall become effective on the date first shown on its face sheet and shall remain in full force and effect until amended or terminated at any time upon mutual consent ofthe parties or until terminated by STATE for cause. 3-29 11-SD-005 PM 6.06 LMA 11-8368 PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this Agreement and have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this Agreement. TN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. CITY OF CHULA VISTA By: CITY Mayor Attest: By: C1TY Clerk Approved as to Form: By: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION MALCOLM DOUGHERTY Director of Transportation By: District Division Chief Maintenance By: CITY Attorney Attorney ** Department of Transportation *Approral by S'TATE'S Attorney is nm required unless changes are made to thisforan, in which case. the draft m7ll be svhmilred to Headgunners for r'eviem and approval by S'TATE's Attorney as to form and procedur'es'. 6 3-30 LANDSCAPE MAINTENANCE AGREEMENT--EXHIBIT 'A' LMA 11-8368 -- k RIE T 11 12 LOT 14 ALLEY 1CA TED) K191 )T )UTHERN SAN DIEC PROPERTIES, LLC 3755 Avocado Blvd. x'436 La Mesa, Ca 91941 Telephone (619) 206-7005 Fax (6191 670-0970 JAMES P. BENEDETTI ~'^° LANDSCAPE ARCHITECT "'"°°" oa.>< 4401 MHNCHESTER AVE, SUITE 201 Via ENCIN ITAS. CA 92024 ~~ LEGEND PREA M11RI BTAIE RNK~ii OG WAY TO BE IMVNTANED BT GT1' Of tlNN.A NSTA N C c xJ)5 _ ta..SU FFE .w< 28.55 PAD ~ '' e' I 'y ® J19 I --- ~, -~~~ ' y/ F PERMIT NUMBER 1141.6MC-0418 CO SD RTE 5 PM 6.06 AS-BUILT PLANS FOR ROADWAY GEOMETRIC AND ABOVE GROUND FEATURES I [(FELOT 2~{ LOT °~ xJI. LxJi b ~ ~I I f j PALOMAR GAS AND CAR WASH 878 STELLA STREET @ PALOMAR ST. & I-5 '" ULA VISTA, CALIFORNIA SHEET 7 OF 1 MARCH 02, 2012 Attachment 4 City of Clutla Vista Disclosure Statement Pursuant to Council Policy 10 t-01, prior to any action upon matters that will require discretionary action by the Comtcil, Plamring Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be fried. The £ollowirrg information nmst be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, mat(er~ial supplier. ~~ r~~P/1~ tA`Y ~ C3 ~ ( ~ Cf lx1 ~t ~ ~~CI Y) ~ tt 'A~~>`~ .P t/ f`i (tom !,~ /k t.~ 2. If any person" identified pursuaot to (t) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corpm~atiorrfparhtership) entity. ~ P~ r i~Y ,Q ~~ 3. If any person'` identified pursuant to (1) above is anon-profit organization or nzrst, list the names of any person serving as direotor of the non-profit organization or as tntstee or beneficiary a hustor of the trust. q, Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent yon before the City in this matter. C- v- i-~t~ ~ I~G4 ~ Vl r~ P_Y i t"Q ~ ~3 ~ f~ !^ Gt ' y~~ ~ i 5. Has any person* associated with this contract had any finlucial dealings with an official"•`~ ofthe City of Chula Vista as it relates to this contract within the past 12 months. Yes No ~..-- 3-32 Ctty of Chula Vista Disclosure Statement 7. If Yes, briefly describe the Hahne of the the official*'~ may have in this conhact. Have you made a contribution ofmore than $250 within the past hvelve (] 2) months to a cun'ent member of the Chula Vista Ciry Council? No Yes _ [f yes, rvhic6 Cowxcil member? Have you provided mm~e than X340 (or au item of equivalent value) to an official" "` of the City of Chula Vista in the past twelve (12) months? (Tins includes being a source of income, nxouey to retire a Legal debt, gift, loan, etc.) Yes _ No If Yes, which official"`" and what teas the nature of item provided? Date:~~s ~ ~, 1 ~ _ ~S 'ge ureofContractor/Applicant Print or type mine of Conh~actm'tApphcaut Person is defined as: any individual, f rm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, htrst, receiver, syJxdicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. Official includes, brit is noE limited to: Mayor, Council member, Planning Connnissioner, Member of a board, commission, or conunittee of the City, employee, or staff members. J:UtlomeyVbmssWisclosure smtemem 3-fi-0.3 3-33 RESOLUTION NO. 2013- RESOLUTION OF THE CHULA VISTA CITY COUNCIL APPROVING AN AGREEMENT BETWEEN THE CITY AND CALTRANS FOR LANDSCAPE MAINTENANCE WITHIN THE STATE HIGHWAY RIGHT-OF-WAY OF INTERSTATE 5 AT PALOMAR STREET WITHIN THE CITY OF CHULA VISTA AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT WHEREAS, On February 17, 2011, the Zoning Administrator of the City of Chula Vista adopted Mitigated Negative Declaration IS-08-012 and approved the Conditional Use Permit (PCC-08-016) and Design Review (DRC-08-25) for the Palomaz Gas and Cazwash Project, which included requirements to install landscaping and construct irrigation improvements on a 4,000 square foot area of land within the Interstate 5 State Highway right-of--way (Project), within the jurisdiction of the State of California Department of Transportation (Caltrans); and WHEREAS, on May 23, 2012, the Property Owner, Southern San Diego Properties, LLC submitted applications to the City requesting approval of Grading Plans (PG 839) and Improvement Plans (PC 2132) for the Project; and WHEREAS, Caltrans requires approval of an Encroachment Permit for the Project to construct landscaping and irrigation improvements in the State Highway right-of-way; and WHEREAS, prior to approval of the Encroachment Permit, Caltrans requires that the City enter into a Landscape Maintenance Agreement with Caltrans to maintain landscaping and irrigation improvements in the State Highway right-of--way required for the Project; and WHEREAS, the subject Landscape Maintenance Agreement between the City and Caltrans for the Project sets forth the City's obligation to maintain certain landscaping and irrigation improvements located in the State Highway right-of--way; and WHEREAS, Caltrans has acknowledged within the subject Landscape Maintenance Agreement that the City will pass the subject landscape maintenance obligations to the project proponent/property owner in accordance with that certain Maintenance Agreement executed concurrently with the Landscape Maintenance Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Landscape Maintenance Agreement between the City and Caltrans for the Palomar Gas and Carwash Project. J:\Attorney\FINAL RESOS AND ORDINANCES\2013\06 11 13U.andscapeAgreement-CCReso-6 3 13-FINAL.doc 6/3/2013 12:33 PM 3-34 Resolution No. Page 2 BE IT FURTHER RESOLVED that the City Manager of the City of Chula Vista is hereby authorized to execute said Landscape Maintenance Agreement on behalf of the City of Chula Vista. Presented by: Approved as to form by: Gary Halbert, P.E., AICP ~A1Glen . G Assistant City Manager/Director of Development Servi es City Attorney S:\Attomey\F'INAL RESOS AND ORDINANCES\2013\06 11 13\LandscapeAgreement-CCReso-6 3 13-FINAL.doc 6/3/2013 12:33 PM 3-35 RESOLUTION NO. 2013- RESOLUTION OF THE CHULA VISTA CITY COUNCIL APPROVING A MAINTENANCE AGREEMENT BETWEEN THE CITY AND SOUTHERN SAN DIEGO PROPERTIES, LLC (PROPERTY OWNER) FOR THE PALOMAR GAS AND CARWASH PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT WHEREAS, On February 17, 2011, the Zoning Administrator of the City of Chula Vista adopted Mitigated Negative Declazation IS-08-012 and approved the Conditional Use Permit (PCC-08-016) and Design Review (DRC-08-25) for the Palomar Gas and Carwash Project, which included requirements to install landscaping and construct irrigation improvements on a 4,000 square foot area of land within the Interstate 5 State Highway right-of--way (Project), within the jurisdiction of the State of California Depamnent of Transportation (Caltrans); and WHEREAS, on May 23, 2012, the property owner, Southern Sari Diego Properties, LLC submitted applications to the City requesting approval of Grading Plans (PG 839) and Improvement Plans (PC 2132) for the Project; and WHEREAS, Caltrans requires approval of an Encroachment Permit for the Project to construct landscaping and irrigation improvements in the State Highway right-of--way; and WHEREAS, Caltrans requires that the City enter into a Landscape Maintenance Agreement with Caltrans to maintain landscaping and irrigation improvements in the State Highway right-of--way required for the Project; and WHEREAS, the City requires the property owner enter into a Maintenance Agreement with the City to transfer the maintenance obligation for landscape and irrigation improvements in the State Highway right-of--way from the City to the property owner and successors and assigns; and WHEREAS, the Maintenance Agreement for the Project sets forth the property owner's obligation to maintain the subject landscaping and irrigation improvements located in the State Highway right~f--way in perpetuity. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Maintenance Agreement between the property owner and the City for the Palomar Gas and Carwash Project. BE IT FURTHER RESOLVED that the City Manager of the City of Chula Vista is hereby authorized to execute said Maintenance Agreement on behalf of the City of Chula Vista. Presented by: Approved as to form y: Gary Halbert, P.E., AICP ~LGlen R. Assistant City Manager/Director of Development Services City Attorney J:\Attomey\FINAL RESOS AND ORDINANCES\2013\06 11 13\MaintenanceAgreement-CCReso-6 3 13-FINAL.doc 6/3/2013 12:34 PM 3-36