IRV #4888-7189-4327 v1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rialto
150 South Palm Ave
Rialto, California 92376
Attention: City Clerk
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
LANDSCAPE MAINTENANCE AGREEMENT
THIS LANDSCAPE MAINTENANCE AGREEMENT (“Agreement”) is made and entered into this 10th day of January, 2023 (“Effective Date”), by and between SREF 2020, LLC, a California Limited Liability Company (“Developer”), and the CITY OF R IALTO, a California municipal corporation (“City”) with reference to the following facts:
RECITALS
A. Reference is made to that certain real property situated in the City of R ialto, County of San Bernardino, State of California, known as the 309 S Riverside Ave Self Storage site and described on Exhibit “A”, attached hereto and incorporated by this reference as if fully set forth herein (“309 S Riverside Ave Self Storage” or “309 S. Riverside Ave Self Storage”).
B. In connection with its development of the 309 S Riverside Ave Self Storage Site as a self storage project, the Developer submitted to the City an application for Precise Plan of Design No. 2021- 0001 (“PPD No. 2021 -0001”). The Planning Commission a pproved PPD No. 2021 -0001 on June 30, 2021, subject to certain specified conditions, which include, inter alia, the following:
The applicant shall submit a formal Landscape Plan to the Planning Division prior to the issuance of building permits.
and
At the discretion of the City Engineer, the applicant shall apply for annexation of the underlying property into City of Rialto Landscape and Lighting Maintenance District No. 2 (“LLMD 2”) [this is sometimes referred to as the “Annexation Approach”] or ent er into a landscape maintenance agreement to be recorded on the property [this is sometimes referred to as the “Non -Annexation Approach”].
An application fee of $5,000 shall be paid at the time of application [if the Annexation Approach is utilized]. Annexation into LLMD 2 is a condition of acceptance of any new median, parkway, and/or easement landscaping, or any new public street lighting improvements, to be maintained by the City of Rialto. All final approved plans and documents required for the annex ation shall be submitted by the property owner prior to issuance of a building permit. The annexation process shall be completed prior to recordation of any applicable Final Tract/Parcel Maps. For
developments with no Final Maps or if the Final Map does not create any new parcels, the annexation process shall be completed prior to issuance of any certificate of occupancy. Due to the required City Council Public Hearing action, the annexation process takes months and as such the developer is advised to su bmit all plans and documents required for Special District annexation as early -on in the plan review and permitting process to avoid any delays with issuance of permit(s) and certificate(s) of occupancy or approval of final map(s).
C. Developer did in fac t comply with the first Condition described in Recital “B” above by submitting Landscape Drawings and Plan for the Rialto Self Storage Site to the City’s Planning Division, and the City’s Planning Division did in fact approve such Landscape Drawings and Plan for the Rialto Self Storage Site on November 16, 2021. A copy of the Landscape Drawings and Plan for the Rialto Self Storage Site that was approved by the City’s Planning Commission on November 16, 2021 is attached hereto as Exhibit “C” and by this reference made a part hereof (the “Approved Landscaping Plan”).
D. The area in which the applicable landscaping and irrigation system improvements (“Improvements”) are required to be installed and maintained pursuant to PPD No. 2021 - 0001 (“Maintenance Area”) is depicted by the cross-hatched area on Exhibit “B” attached hereto and by this reference made a part hereof. The Improvements are described in the Approved Landscaping Plan that is attached hereto as Exhibit “C.” E. The City’s Landscaping Engineer ha s decided that at this time there is no need for the Maintenance Area to be annexed into LLMD 2. Rather, the City’s Landscaping Engineer has determined that at this time the Developer’s obligation to provide for the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements shall be implemented directly by Developer pursuant to the Non-Annexation Approach, in accordance with the terms and conditions of the Approved Landscaping Plan that is attached hereto as Exhibit “C.” F. The Developer has concurrently with PPD No. 2021 -0001, submitted an application for Conditional Development Permit No. 2021 -0032 (“CDP No. 2021 -0001”). The Planning Commission approved CDP No. 2021 -0001 on June 30, 2021, subject to certain specified conditions, which include, inter alia, the following:
If the applicant fails to comply with any of the conditions of approval placed upon CDP No. 2021-0001 or PPD No. 2021-0001, the Planning Commission may initiate proceedings to revoke the conditional development permit in accordance with the provisions of Sections
18.66.070 through 18.66.090, inclusive, of the Rialto Municipal Code.
Conditional Development Permit No. 2021 -0001 may be revoked, suspended or modified in accordance with Section 18.66.070 of t he Zoning Ordinance at the discretion of the Planning Commission if:
* * * *
b) Any of the express conditions or terms of such permit are violated…
G. The Developer recognizes that the City's approval of CDP No. 2021 -0001 and PPD No. 2021 - 0001 is based on the Developer's commitment to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements pursuant to the Approved Landscaping Plan that is attached hereto as Exhibit “C,” and in order to memorialize Develop er’s obligation with respect to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements pursuant to the Approved Landscaping Plan, Developer has agreed to enter into this Agreement. Furthermore, Developer also recognizes that CDP No. 2021-0001 or PPD No. 2021-0001 would not have been approved without the assurance that this Agreement would be executed by the Developer for recordation prior to the City’s issuance of a certificate of occupancy for the 309 S Riverside Ave Self Storage Site.
H. In order to memorialize Developer’s obligation with respect to the long -term maintenance, repair, care and, if and when necessary, replacement of the Improvements pursuant to the Approved Landscaping Plan, the City and the Deve loper desire to enter into this Agreement pursuant to which the Developer will maintain the Improvements (as described in the Approved Landscape Plan attached hereto as Exhibit “C) within the Maintenance Area that is depicted on Exhibit “B.”
AGREEMENT
NOW, THEREFORE, the City and the Developer (together, the “Parties”) hereby agree as follows:
1. RECITALS; PURPOSE OF AGREEMENT. The recitals set forth above are true and correct and incorporated herein by this reference.
The purpose of this Agreement is to mem orialize Developer’s obligation with respect to the long-term maintenance, repair, care and, if and when necessary, replacement of the Improvements pursuant to the Approved Landscaping Plan, by assuring for the maintenance, periodic inspection, repair, safe operation and, if and when necessary, replacement of the Improvements by the Developer at its expense in accordance with the standards, including the Maintenance Standards (defined in Section 4 below), set forth herein.
2. IMPROVEMENTS AS A BENEFIT. The Developer agrees that the Improvements will materially benefit 309 S Riverside Ave Self Storage Site and that Developer's maintenance, repair, safe operation and, if and when necessary, replacement thereof in accordance with this Agreement was a material consideration for approval of CDP No. 2021-0001 and PPD No. 2021- 0001 for 309 S Riverside Ave Self Storage.
3. DEVELOPER’S RESPONSIBILITIES.
a. Originally, when it was a possibility that the Annexation Approach would be utilized, the Developer paid to the City an application fee of $5,000 for application to LLMD 2 (the “Application Fee”). Now that the Annexation Approach is not being utilized, su ch Application Fee is no longer required.
Accordingly, after the City deducts from the $5,000 Application Fee, the costs incurred by the City in connection with the review of this Agreement undertaken by the City Attorney (or by a private law firm hired b y the City for such purpose), the remaining, unused portion of such $5,000
Application Fee will be returned to the Developer.
b. Developer, at its sole expense, shall maintain, safely operate, periodically inspect, repair, resurface and, if and when necessa ry, replace the Improvements identified in the Approved Landscaping Plan that is attached hereto as Exhibit “BC”, as well as perform all necessary service on maintenance equipment, in order to ensure the attractive and healthy appearance of the landscaping , the attractive appearance, condition and safety of any and all structures, and the efficient operation of all of the Improvements, including paying the electrical expense of operating all irrigation controllers, said electrical expense to be paid by the Developer upon the direct receipt of invoices for electrical service from Southern California Edison, all in accordance with the Maintenance Standards described in Section 4 below, and industry and City standards applicable to similar improvements.
4. MAINTENANCE STANDARDS . The following standards (collectively, "Maintenance Standards") shall be complied with by Developer and its maintenance staff, contractors and subcontractors in connection with the required maintenance of the Improvements:
a. The Improvements shall be maintained in compliance with the Plans and both the Approved Landscaping Plan that is attached hereto as Exhibit “C” and the Final Map, in good condition, and in accordance with the custom and practice generally applicable to public rights-of-way similarly situated improvements within the City of Rialto. b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; periodic trimming, mowing, and/or edging of grass and lawn areas; pruning of trees, shrubs, and other vegetation; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; removal and replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawn, ground covers, or other planted areas; and staking for support of trees., all in accordance with the Approved Landscaping Plan that is attached hereto as Exhibit “C.” c. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed -free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and land scaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers., all in accordance with the Approved Landscaping Plan that is attached hereto as Exhibit “C.”
d. Lighting maintenance shall include prompt replacement of inoperable light bulbs, repair and replacement of damaged light fixtures and timely payment of electri cal costs to Southern California Edison., all in accordance with the Approved Landscaping Plan that is attached hereto as Exhibit “C.”
e. All maintenance work shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance.
f. Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all governmental requirements.
Precautionary measures shall be employed recognizing that all areas are open to public access.
5. CITY’S RESPONSIBILITIES . Nothing contained herein shall limit the City’s responsibility to maintain the structural integrity of South Riverside Avenue, including asphalt and concrete paving, medians, signage, curb and gutter and underground utilities.
6. NO IMPAIRMENT OF LIEN . No violation or breach of the agreements, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Developer to the Site or any portion thereof shall be bound by such agreements, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. ENCROACHMENT PERMIT; RIGHT OF ENTRY . The Developer and the City acknowledge that, to the extent that the Improvements are located within t he City rights-of-way, the Developer shall obtain a single on-going revocable encroachment permit from the City in order for the Developer to perform its obligations under this Agreement. Such an encroachment permit shall set forth the terms and provisions upon which the Developer has a right to enter onto such rights -of-way in order to perform maintenance, inspection, repair and, if and when necessary, replacement services (collectively, "Maintenance Services"). The encroachment permit shall be issued on t he terms and conditions of this Agreement:
a. Permitted Uses. The Developer may enter upon such Improvements, if any, as are located within the City rights-of-way, and may temporarily block reasonably necessary portions of the adjoining street surfaces, solely for the purpose of performing Maintenance Services, and incidental purposes thereto, such as operating equipment and storing materials during the period maintenance services are being performed (collectively, "Activities"). The Developer shall not use such City right- of-way areas, if any, for any other purpose.
b. Insurance. The Developer shall obtain and deliver to the City, at no cost to the City, certificates of commercial general liability insurance which indicate that the City, its elective and appointive boards, commissions, officers, agents and employees are covered as additional insureds under all insurance policies maintained for performance of the Maintenance Services and other Activities by (i) the Developer or (ii) any contractor or subcontractor directly or indirectly employed by the Developer to perform any Maintenance Services or other Activities. Each of these policies shall also provide that no cancellation, major change in coverage, or expiration may be affected by the insurance company or th e insured during the time of performance of the Maintenance Services and other Activities, without first giving to the City thirty (30) days' written notice prior to the effective date of such cancellation or change in coverage. The Developer shall not per mit any contractor or subcontractor to commence or continue performing Maintenance Services or other Activities until the certificates or any substitute certificates have been approved by the City's Risk Manager.
8. PERMITS AND APPROVALS . To the extent that performance of the Maintenance Services or other Activities requires permits or governmental approvals, the Developer shall, at its sole cost and expense, obtain such permits and approvals. If applicable and necessary, the City shall issue encroachment permits, from time to time, on the terms set forth in Section 7 above.
9. TERM. This Agreement shall commence immediately upon the Effective Date and shall continue in perpetuity until and unless terminated by the City in its sole discretion or by mutual agreement of the Parties.
10. INDEMNIFICATION. The Developer shall indemnify, defend and hold the City, its Council, boards, offices, commissions, agents and employees harmless from liens, claims, demands, actions, causes of action, obligations, liabilities, da mages, losses, costs and expenses, including reasonable attorneys’ fees (individually, “Claims” and collectively, “Claims”), which may arise from or in any manner relate to any work performed or services provided under this Agreement by the Developer, or t he Developer's contractors, subcontractors, agents or employees, including, but not limited to, the performance of the Maintenance Services or other Activities. Notwithstanding the forgoing, the Developer shall not be obligated under this Agreement to defe nd and/or indemnify the City to the extent that any Claim is caused by the negligence or willful misconduct of the City or its agents or employees. The aforementioned indemnity shall apply regardless of whether or not the City has prepared, supplied or approved plans and/or specifications for the Improvements and regardless of whether any insurance required under this Agreement is applicable to any Claims.
11. DEFAULT. The failure to maintain the Improvements in accordance with the requirements of the Approved Landscaping Plan attached hereto as Exhibit “C” will constitute an event of default. Upon such event of default, the City shall provide written notice to the Developer specifying with particularity the acts or omissions constituting such an event of defaul t. Upon receipt of the written notice, the Developer shall have thirty (30) days to remedy such event of default (or such longer period of time as may reasonably be required, provided that the Developer shall commence to remedy such default within thirty (30) days period and thereafter diligently prosecute such remedy to completion). If the Developer fails to remedy the event of default within the prescribed time period, the City shall have the right to do all work necessary to remedy the event of default and charge the Developer actual costs incurred by the City for such work (and, to the extent necessary, the Developer hereby grants the City a license to enter Developer’s property for purposes of performing such corrective work). The City may bring legal action to collect the sums due as the result of expending public monies to maintain, repair and, if and when necessary, replace any Improvements which are the responsibility of the Developer as provided herein. Developer acknowledges and agrees that the City may also pursue any and all other remedies available in law or equity in the event of a breach of the Developer's obligations and agreements set forth herein.
12. ASSIGNMENT BY CITY. The City shall have the right at its option to assign its rights and obligations under this Agreement to a municipal services district or other public agency without consent of the Developer.
13. AGREEMENT ATTACHES TO LAND AND BINDS DEVELOPER'S
SUCCESSORS AND ASSIGNS . This Agreement pertains to and runs with the Project site in perpetuity (subject to Section 9 above), and shall be recorded against the parcels of land identified as Assessor Parcel Numbers 0128-062-25, -26, and -27. This Agreement binds the assigns and successors- in-interest of the Developer, including any transferee of a fee interest in any lot located within the Project site. The City and its successors and assigns, in the event of any breach of this Agreement, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or sui ts in equity or other proper proceedings against the Developer or its permitted successors and assigns to enforce the curing of such breach.
14. ASSIGNMENT BY DEVELOPER.
a. Assignment to Successor Developer. The Developer may assign its obligations under this Agreement to a successor developer only with the prior written approval of the City. In connection with any such assignment, the Developer and its assignee, the successor developer, shall execute and deliver to the City a written assignment and assumption agreement in a form acceptable to the City Attorney.
b. Reserved.
c. Release of Developer. Upon the City’s acceptance of the written Assignment and Assumption Agreement between the developer and a successor developer, and/or upon the assumption by the Associatio n of Developer’s obligations under this Agreement, Developer shall be relieved of the performance of any further duties or obligations under this Agreement arising after such assignment and the Developer shall be released from any further liability under this Agreement.
15. NOTICES. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally or by generally recognized overnight courier service, or five (5) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, addressed as follows:
To the Developer: SREF 2020, LLC, LP
18800 Von Karman Ave #A
Irvine, California 92612
Attn: Jon Gruber
To the City: City of Rialto
150 South Palm Ave
Rialto, California 92376
Attn: City Manager
With a copy to: Eric S. Vail, City Attorney
Burke, Williams & Sorensen, LLP
1770 Iowa Ave, Suite 240
Riverside, California 92507-2479
Attn: City Attorney
16. MISCELLANEOUS.
a. Entire Agreement, Amendments. This Agreement , together with the Exhibits hereto, contains the entire understanding and agreement of the parties. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the Parties to this Agreement. b. Paragraph Headings. Paragraph headings as used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning hereof.
c. Governing Law . This Agreement shall be construed and governed in accordance with the laws of the State of California. Venue shall be the County of San Bernardino.
d. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the contract of the Parties. e. Exhibits. Any and all exhibits and schedules attached or to be attached hereto are hereby incorporated and made a part of the Agreement by reference. f. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect.
g. Authority. Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder.
h. No Agency Relationship . Neither the Developer nor any of the Developer's agents, contractors or subcontractors are or shall be considered to be agents of City in connection with the performance of any of the Developer's obligations under this Agreement. i. Attorneys' Fees and Costs . Either party may bring a lawsuit to enforce or require performance of the terms of this Agreement, and the prevailing party in such suit or proceeding shall be entitled to recover from the other party 's reasonable costs and expenses, including attorneys' fees.
IN WITNESS WHEREOF, this Agreement is executed the day and year first above written, by the parties, as follows:
CITY: DEVELOPER:
CITY OF RIALTO, SREF 2020, LLC, LP,
a California municipal corporation a California Limited Liability Partnership
By:_____________________________ By:_______________________________ Marcus Fuller, City Manager Name: Jon Gruber
Title: Authorized Signer
ATTEST:
By:_____________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
By:_____________________________
Eric S. Vail, City Attorney
Exhibit “A”
Legal Description of Site
Exhibit “B”
Improvements and Maintenance Area
Exhibit “C”
Approved Landscaping Plan