HomeMy WebLinkAbout6/3/2015 - STAFF REPORTS - 2.O. QALM SA
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cg1IF0009, City Council Staff Report
Date: June 3, 2015 CONSENT
Subject: APPROVE EASEMENT AGREEMENT AND COVENANT WITH VILLAS
DE LAS FLORES ASSOCIATION FOR THE MAINTENANCE OF CITY
TREES ADJACENT TO VILLAS DE LAS FLORES CONDOMINIUM
DEVELOPMENT
From: Douglas Holland, City Attorney
SUMMARY
The City owns approximately 48 palm trees along the boundary between the Villas de
Las Flores condominium project and city owned property. For several years, the
Property Association of the condominium project has trimmed and maintained these
trees under the mistaken understanding that these trees were on condominium
property. The City and the Association have agreed that the City will pay the
Association the amount of $7,800 for tree trimming costs incurred by the Association
between January 1, 2009 and December 15, 2015. In addition, the City will grant the
Association with an easement to continue to maintain the city owned trees with the
proviso the City will reimbursement the Association for the its costs in maintaining these
trees. The Association will provide documentation to the City Manager regarding the
costs and to ensure that these costs are consistent with costs for similar services
provided to the Association.
RECOMMENDATION:
Approve the Easement Agreement and Covenant with Villas de Las Flores
Association for the maintenance of city trees adjacent to the Villas de Las Flores
Condominium Development and authorize the City Manager to execute this Covenant
Agreement on behalf of the City.
Douglas Holland, City Attorney David Ready, City er
Attachment: Easement Agreement and Covenant
ITEM NO. ,_.._.. ..
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA
(SPACE ABOVE LINE FOR RECORDER'S USE)
EASEMENT AGREEMENT AND COVENANT
(Running with the Land)
THIS EASEMENT AGREEMENT AND COVENANT (Running with the Land) ("Agreement")
is entered into by and between the VILLAS DE LAS FLORES ASSOCIATION, a California
nonprofit mutual benefit corporation ('ASSOCIATION") and the CITY OF PALM SPRINGS, a
California municipal corporation ('CITY"), and is effective as of the date provided for in this
Agreement. ASSOCIATION and CITY may sometimes be referred to in this Agreement
collectively as "Parties" and individually as "Party."
RECITALS
A. ASSOCIATION is a California nonprofit mutual benefit corporation organized
and existing under Civil Code section 4000, et seq., for the purpose of managing the
condominium development commonly known as Villas de las Flores in the City of Palm Springs,
County of Riverside, State of California, in accordance with the Declaration of Covenants,
Conditions and Restrictions recorded on February 26, 1973, as Instrument No. 24296, Official
Records of Riverside County, California, and all amendments and supplements ('CC&Rs").
B. Pursuant to the CC&Rs, ASSOCIATION has the right and duty to manage,
maintain and control the real property consisting of its common area and more particularly
described as: ('Association Property").
Lots 1, 2 and 3 of Tract 4770-2, in the City of Palm
Springs, County of Riverside, State of California, as
per Map recorded in Book 80, Pages 58 through 59,
in the Office of the County Recorder of said
County.
C. CITY is the owner of the Tahquitz Creek Golf Course, which is adjacent to the
Association Property, and has the right and duty to maintain and control that property, legally
described provided in Exhibit A to this Agreement ("City Property").
D. ASSOCIATION and CITY wish to resolve a dispute concerning the ownership of
and responsibility for the forty-eight (48) palm trees in nineteen (19) clusters along the boundary
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between the Association Property and the City Property (forty-four (44) trees in seventeen (17)
clusters on the Association's north boundary, four (4) trees in two (2) clusters on the
ASSOCIATION'S west comer boundary) (the "Subject Trees"); and
E. For many years, ASSOCIATION caused the Subject Trees to be trimmed
annually and otherwise managed and maintained, under the belief that the Subject Trees were on
Association Property; and
F. ASSOCIATION continued to trim and maintain the Subject Trees in order to
avoid damage to the common area roofs of nearby condominiums from falling palm fronds and
to maintain the attractiveness of the area; and
G. In or about 2012, ASSOCIATION hired a surveyor to locate lot line markers and
discovered that the Subject Trees are on City Property, and, thereafter, requested that the CITY
take over responsibility for the Subject Trees; CITY declined to do so, but granted consent to
ASSOCIATION to continue trimming, managing and maintaining the Subject Trees; and
H. On June 5, 2013, ASSOCIATION obtained a topographic survey ("Survey"),
which is attached to this Agreement as Exhibit "A" and incorporated into this Agreement by this
reference; and
I. The Parties agree that the Survey confirms that the Subject Trees are located on
City Property and CITY acknowledges its responsibility for the costs of maintaining, managing
and trimming the Subject Trees; and
J. There are several other types of trees located on City Property, including
eucalyptus trees, that are in close proximity to the Association Property and that, due to age or
disease, pose a risk of damage to persons or to the common area roofs of nearby condominiums
(the "Adjacent Trees"); and
K. By way of this Agreement, CITY wishes to give and ASSOCIATION wishes to
receive a nonexclusive easement over a portion of the City Property described in Recital C
("Easement Area") for the purpose of maintaining, managing, and trimming the Subject Trees
and for the purpose of removing Adjacent Trees from City Property that pose a danger to persons
or property; and
L. The Parties intend that this Agreement be made and entered into pursuant to the
provisions of California Civil Code § 1468, in effect as of the date of this Agreement, and that
this Agreement shall run with the land of the Parties and that it shall benefit and be binding upon
each of the successor owners of ASSOCIATION and CITY.
NOW, THEREFORE, in consideration of the covenants contained in this Agreement and
other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
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AGREEMENT
1. Incorporation of Recitals. The above stated Recitals are incorporated into this
Agreement by this reference and the Parties specifically agree that all of the facts set
forth in the Recitals are true and correct.
2. Grant of Easement. CITY hereby grants to ASSOCIATION, its successors and assigns,
a nonexclusive easement ("Easement") over the City Property, for the purpose of
trimming, managing, and maintaining the Subject Trees, and removing Adjacent Trees
with the prior approval of the City Manager of CITY or the City Manager's designee.
The effective date of this Easement shall be January 1, 2009.
3. Reimbursement of Future Costs. CITY shall reimburse ASSOCIATION the costs of
trimming, managing and maintaining the Subject Trees and removing Adjacent Trees.
Beginning on or after December 15, 2014, ASSOCIATION will bill CITY for the
services of ASSOCIATION'S landscaping contractors and arborists to perform the
work.
4. Reimbursement of Past Costs. On execution of this Agreement, CITY shall pay
ASSOCIATION the sum of$7,800.00, which represents the expenses incurred by the
ASSOCIATION to trim, manage and maintain the Subject Trees from January 1, 2009,
to December 14, 2015. The Association shall submit such documentation as the City
Manager of the City or the City Manager's designee may reasonably require to
document such expenses and to ensure that the costs are reasonably consistent with
costs for similar services provided to the Association.
5. Indemnification. ASSOCIATION agrees to indemnify CITY, its officers, officials,
agents, representatives, volunteers and employees, and to save and hold them harmless,
and to defend them at ASSOCIATION'S sole expense, from any liability or claims,
demands, damages, costs or judgments that CITY, its officers, officials, agents,
representatives, volunteers and employees may suffer arising out of or related to the
Easement or the trimming, management and maintenance of the Subject Trees and
removal of Adjacent Trees on the Easement Area; provided, however, that
ASSOCIATION'S obligation to indemnify shall not extend to any claim, demand,
damage, cost, or judgment arising out of CITY'S sole gross negligence or willful
misconduct.
6. Insurance. ASSOCIATION agrees to continuously maintain comprehensive general
liability insurance for bodily injury and property damage, for the benefit of CITY for any
liability or claims, demands, damages, costs or judgments that CITY, its officers, officials,
agents, representatives, volunteers and employees may suffer as a result of any liability or
claims, demands, damages, costs or judgments against them arising out of or related to the
Easement or ASSOCIATION'S trimming, management and maintenance of the Subject
Trees and removal of Adjacent Trees, on the Easement Area. Such policies shall name
CITY as an additional insured. ASSOCIATION'S insurance policy shall be considered to
provide the primary insurance coverage for all such liability or claims, demands, damages,
costs or judgments, and CITY'S insurance coverage shall be considered to provide the
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secondary insurance coverage in the event CITY also maintains insurance policies which
provide insurance coverage to CITY for any such liability of claims, demands, damages,
cost or judgments.
7. Attorneys' Fees. In the event a lawsuit is filed or arbitration commenced between the
parties to resolve any controversy, claim or dispute regarding the terms and provisions set
forth in this Agreement, the prevailing Parry shall be entitled to recover from the
nonprevailing Parry its costs of suit or arbitration, including reasonable attorneys' fees as
may be fixed by the court or arbitrator.
8. Construction. The section headings have been inserted for convenience only, and shall not
be considered or referred to in resolving questions of interpretation or construction.
Whenever the context requires, the singular shall include the plural, and the masculine
shall include the feminine and neuter.
9. Inurement. The Easement created in this Agreement shall run with the land and be
binding upon and inure to the benefit of the Parties and their successors, assigns and
grantees.
10. Enforceability of Provisions. If any provision or part of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect without being impaired or invalidated in
any way.
11. Entire Agreement. This Agreement and any exhibits constitute the entire agreement
between the Parties pertaining to the subject matter of the Agreement and the final,
complete and exclusive expression of the terms and conditions of the Agreement. Prior
agreements, representations, negotiations and understandings of the Parties, oral or
written, express or implied, are superseded and merged into this Agreement.
12. Modification. This Agreement may not be modified in any respect or rescinded, in
whole or in part, except by an instrument in writing, duly executed and acknowledged
by both of the Parties, their successors or assigns.
13. Severability. If any term, covenant, condition or provision of this agreement, or the
application thereof to any person or circumstance, shall to any extent be held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, covenants, conditions or provisions of this Agreement, or the application thereof
to any person or circumstance, shall remain in full force and effect and shall in no way
be affected, impaired or invalidated thereby.
14. California Law. This Agreement is made in, and shall be construed in accordance with,
the laws of the State of California.
15. Recordation/Effective Date. This Agreement shall be effective upon its execution by the
Parties and its recordation in the Office of the County Recorder, County of Riverside,
State of California.
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16. Any notices, requests, demands, instructions or other communications in conjunction
with this Covenant shall be personally delivered, mailed via first class mail or emailed
to the parties as follows:
To CITY: Office of the City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To ASSOCIATION: Board of Directors
Villas de las Flores Association
c/o Personalized Property Management
68950 Adelina Road
Cathedral City, California 92234
Attn: Shelly Ruegsegger, CMCA
Suegsegger@ppminternet.com
IT IS SO AGREED.
"ASSOCIATION"
VILLAS DE LAS FLORES
ASSOCIATION, a California nonprofit
mutual benefit corporation
Dated: By:
Name:
Title: President
Dated: By:
Name:
Title: Secretary
"CITY"
CITY OF PALM SPRINGS,a California
municipal corporation
Dated: By:
Name:
Title:
Approved as to Form: Attest:
--------------------------------------------------
City Attorney City Clerk
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
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