The URL can be used to link to this page

Home My WebLink AboutE-05 Staff Report - Landscape Agreement Smart and FinalCONSENT ITEM E-5 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MANUEL MUÑOZ, SENIOR PLANNER DATE: JANUARY 22, 2019 SUBJECT: REQUEST AUTHORIZATION TO APPROVE LANDSCAPE MAINTENANCE AGREEMENT TEMPLATE AND APPROVAL OF SMART & FINAL EXTRA LANDSCAPE MAITENANCE AGREEMENT BACKGROUND: On September 15, 2017, the Planning Commission approved entitlements for the Smart & Final Extra located at 303 E. Foothill Boulevard. The entitlements had a Condition of Approval that required for a Landscape Maintenance Agreement for the landscaping on the public right-of-way along Dalton Avenue. RECOMMENDATION: Staff recommends that the City Council take the following actions: 1) Approve Landscape Maintenance Agreement with Smart & Final Extra located at 303 E. Foothill Boulevard; 2)Approve Landscape Maintenance Agreement Template for future development projects; and 3)Authorize the City Manager to execute, in a form acceptable to City Attorney, on behalf of the City. ANALYSIS: The Landscape Maintenance Agreement outlines the various responsibilities of landscape maintenance in the public right-of-way. Landscaping in the public right-of-way is either maintained by the City or adjacent property owner. This agreement would be recorded with the adjacent property owner and outline all of the responsibilities. Some of the responsibilities would include but not limited to irrigation and maintaining landscaping. APPROVED CITY COUNCIL 1/22/2019 Landscape Maintenance Agreement January 22, 2019 Page 2 of 2 FISCAL IMPACT: There is no fiscal impact associated with the proposed recommendations. Prepared by: Fiscal Reviewed by: Manuel Muñoz Talika M. Johnson Senior Planner Director of Finance Reviewed and Approved by: Sergio Gonzalez City Manager Attachments: Attachment A Landscape Maintenance Agreement with Smart & Final Extra Attachment B Template of Landscape Maintenance Agreement WHEN RECORDED MAIL TO: City Clerk City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 ______________________________________________________________________ LANDSCAPE MAINTENANCE AGREEMENT PURSUANT TO CONDITIONS OF PROJECT APPROVAL This Landscape Maintenance Agreement (the “Agreement”) is made and entered this 6th day of December, 2018 by and between the City of Azusa, a municipal corporation, hereinafter referred to as “CITY” and AZUSA CAPITAL, LLC, a California limited liability company hereinafter referred to as “DEVELOPER.” CITY and DEVELOPER are sometimes hereinafter individually referred to as a “Party” and/or collectively referred to as the “Parties.” RECITALS WHEREAS, DEVELOPER is the owner of the real property located at 303 E. Foothill Boulevard, (Assessor Parcel Numbers: 8608-029-904, 906, 907, 908, 909, and 910) referred to as the real property; and WHEREAS, DEVELOPER has developed the Property as described in Exhibit “A,” attached hereto, and incorporated herein by this reference, hereinafter referred to as the “Project”; and WHEREAS, on February 15, 2017, the CITY Planning Commission adopted Resolution No. 2017-PC02, approving Design Review No. DR-2017-02 (Exhibit B) to construct 29,996 SF commercial building for a Smart and Final Extra store and setting forth development conditions for the Project to be developed on the Property. Said development conditions require the new landscape planter in the public right-of-way located along Dalton Avenue between the new vehicular driveway and the new delivery driveway (the “Landscape Planter”) to be in substantial conformance with exhibits approved by the CITY and on file with the CITY’s Planning Division. Those exhibits include landscape plan drawings and specifications, hereinafter referred to as “Plans and Specifications.”; and WHEREAS, to insure continuing compliance with the landscape requirement of DR-2017-02 with respect to the Landscape Planter, the CITY desires assurance that DEVELOPER and successors will maintain the Landscape Planter for the life of the project in a good workmanlike manner; and Attachment 1 Landscape Maintenance Agreement 303 E. Foothill Blvd. – Smart and Final Extra Page 2 of 5 WHEREAS, DEVELOPER is desirous of maintaining the Landscape Planter as required by DR-2017-02 . NOW THEREFORE, in consideration of the acceptance by the CITY of DR-2017- 02, the Parties hereto mutually covenant and agree as follows: TERMS 1. DEVELOPER agrees to maintain the Landscape Planter installed pursuant to the DR-2017-02 including, but not limited to, maintaining plant material, irrigation system, hardscape as identified in the Plans and Specifications all in accordance with the DR-2017-02, the property maintenance ordinance as it currently exists or may hereafter be amended. 2. DEVELOPER may request amendments to Plans and Specifications. The CITY may approve such amendments in its sole and absolute discretion provided they are consistent with original intent, design quality and water efficiency of the Plans and Specifications. 3. It is the CITY’s and DEVELOPER’s intent that should any right, title or interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the obligations set forth in this Agreement shall automatically become the obligations of the new title or interest holder. The obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and assigns of the Property and the covenants contained herein shall run with the Property, and those covenants shall benefit each and every other parcel of property located in the CITY. This Agreement shall be notarized and recorded with the Los Angeles County Recorder’s Office. 4. In the event that DEVELOPER fails to comply with the terms of this Agreement, the CITY shall provide DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written notice of default, which notice shall specify the nature of the default. In the event that DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the said thirty (30) days, provided following receipt of said notice, DEVELOPER has not commenced and is not diligently pursuing cure of said default, the CITY may immediately take steps to cure the default by curing the default itself and imposing a lien, pursuant to law, against the Property for the cost of such cure. The imposition of a lien for failure to prove landscape maintenance on a public right of way as required under this Agreement shall be applied to the Property. 5. If legal proceedings are necessary to enforce or interpret the terms of this Agreement, the prevailing Party, as determined by the court, shall be entitled to recover from the other Party all costs and expenses of the proceedings, including reasonable attorneys' fees and related costs. 6. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and its officials, officers, agents, servants and employees harmless from any and all Landscape Maintenance Agreement 303 E. Foothill Blvd. – Smart and Final Extra Page 3 of 5 liabilities, claims, demands, debts, suits, actions and causes of actions, including but not limited to, property damage, personal injury or wrongful death, arising out of or in any manner connected with any act or omission of DEVELOPER, or its officers, agents, servants or employees, done or performed pursuant to the terms and provisions of this Agreement. 7. DEVELOPER, individually as the current owner of the Property and on behalf of DEVELOPER’s heirs, successors and assigns of the Property, does hereby grant to the CITY, as grantee, a lien on the Property, pursuant to law, which lien shall be enforced in the amount of all fees and costs incurred by CITY in performing DEVELOPER’s obligations hereunder upon DEVELOPER’s failure to perform same. 8. Any and all notices, including, but not limited to a notice of default sent or required to be sent to the Parties to this Agreement will be mailed to the following addresses: City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 Attn: Sergio Gonzalez, City Manager Azusa Capital, LLC 1100 Glendon Avenue Los Angeles, CA 90024 Attn: Josh Golcheh and Ilan Golcheh IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. [Signatures on Following Page] Landscape Maintenance Agreement 303 E. Foothill Blvd. – Smart and Final Extra Page 4 of 5 CITY: DEVELOPER: THE CITY OF AZUSA Azusa Capital, LLC a California municipal corporation By: _______________________________ Joseph Romero Rocha, Mayor By: _________________________________ Josh Golcheh, Managing Member Date: _____________________________ Date: _______________________________ ATTEST: By: _______________________________ Jeffrey Cornejo, City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER, LLP By: _________________________________ Marco Martinez, City Attorney EXHIBIT A AZUSA LOTS 4,5 AND 6 BLK 31 AZUSA LOT 7 BLK 31 AZUSA LOT 8 BLK 31 AZUSA LOT 9 BLK 31 AZUSA LOT 10 BLK 31 AZUSA LOT11 BLK 31 WHEN RECORDED MAIL TO: City Clerk City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 ______________________________________________________________________ LANDSCAPE MAINTENANCE AGREEMENT PURSUANT TO CONDITIONS OF PROJECT APPROVAL This Landscape Maintenance Agreement (the “Agreement”) is made and entered this XX day of XXXX by and between the City of Azusa, a municipal corporation, hereinafter referred to as “CITY” and XXX, a California limited liability company hereinafter referred to as “DEVELOPER.” CITY and DEVELOPER are sometimes hereinafter individually referred to as a “Party” and/or collectively referred to as the “Parties.” RECITALS WHEREAS, DEVELOPER is the owner of the real property located at 303 E. Foothill Boulevard, (Assessor Parcel Numbers) referred to as the real property; and WHEREAS, DEVELOPER has developed the Property as described in Exhibit “A,” attached hereto, and incorporated herein by this reference, hereinafter referred to as the “Project”; and WHEREAS, on XXXX, the (Project Description). Said development conditions require the new landscape planter in the public right-of-way located along (Location of Planter) (the “Landscape Planter”) to be in substantial conformance with exhibits approved by the CITY and on file with the CITY’s Planning Division. Those exhibits include landscape plan drawings and specifications, hereinafter referred to as “Plans and Specifications.” and WHEREAS, to insure continuing compliance with the landscape requirement of (Entitlement Number) with respect to the Landscape Planter, the CITY desires assurance that DEVELOPER and successors will maintain the Landscape Planter for the life of the project in a good workmanlike manner; and WHEREAS, DEVELOPER is desirous of maintaining the Landscape Planter as required by (Entitlement Number). NOW THEREFORE, in consideration of the acceptance by the CITY of Attachment 2 Landscape Maintenance Agreement Address – Project Name Page 2 of 4 (Entitlement Number), the Parties hereto mutually covenant and agree as follows: TERMS 1. DEVELOPER agrees to maintain the Landscape Planter installed pursuant to the (Entitlement Number) including, but not limited to, maintaining plant material, irrigation system, hardscape as identified in the Plans and Specifications all in accordance with the (Entitlement Number), the property maintenance ordinance as it currently exists or may hereafter be amended. 2. DEVELOPER may request amendments to Plans and Specifications. The CITY may approve such amendments in its sole and absolute discretion provided they are consistent with original intent, design quality and water efficiency of the Plans and Specifications. 3. It is the CITY’s and DEVELOPER’s intent that should any right, title or interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the obligations set forth in this Agreement shall automatically become the obligations of the new title or interest holder. The obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and assigns of the Property and the covenants contained herein shall run with the Property, and those covenants shall benefit each and every other parcel of property located in the CITY. This Agreement shall be notarized and recorded with the Los Angeles County Recorder’s Office. 4. In the event that DEVELOPER fails to comply with the terms of this Agreement, the CITY shall provide DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written notice of default, which notice shall specify the nature of the default. In the event that DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the said thirty (30) days, provided following receipt of said notice, DEVELOPER has not commenced and is not diligently pursuing cure of said default, the CITY may immediately take steps to cure the default by curing the default itself and imposing a lien, pursuant to law, against the Property for the cost of such cure. The imposition of a lien for failure to prove landscape maintenance on a public right of way as required under this Agreement shall be applied to the Property. 5. If legal proceedings are necessary to enforce or interpret the terms of this Agreement, the prevailing Party, as determined by the court, shall be entitled to recover from the other Party all costs and expenses of the proceedings, including reasonable attorneys' fees and related costs. 6. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and its officials, officers, agents, servants and employees harmless from any and all liabilities, claims, demands, debts, suits, actions and causes of actions, including but not limited to, property damage, personal injury or wrongful death, arising out of or in any manner connected with any act or omission of DEVELOPER, or its officers, agents, servants or employees, done or performed pursuant to the terms and provisions of this Landscape Maintenance Agreement Address – Project Name Page 3 of 4 Agreement. 7. DEVELOPER, individually as the current owner of the Property and on behalf of DEVELOPER’s heirs, successors and assigns of the Property, does hereby grant to the CITY, as grantee, a lien on the Property, pursuant to law, which lien shall be enforced in the amount of all fees and costs incurred by CITY in performing DEVELOPER’s obligations hereunder upon DEVELOPER’s failure to perform same. 8. Any and all notices, including, but not limited to a notice of default sent or required to be sent to the Parties to this Agreement will be mailed to the following addresses: City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 Attn: Sergio Gonzalez, City Manager DEVELOPER IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. [Signatures on Following Page] Landscape Maintenance Agreement Address – Project Name Page 4 of 4 CITY: DEVELOPER: THE CITY OF AZUSA DEVELOPER a California municipal corporation By: _______________________________ Joseph Romero Rocha, Mayor By: _________________________________ DEVELOPER Date: _____________________________ Date: _______________________________ ATTEST: By: _______________________________ Jeffrey Cornejo, City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER, LLP By: _________________________________ Marco Martinez, City Attorney