HomeMy WebLinkAboutPD 2024-0008; Cape Ann Properties LLC; 2025-0114392; Permanent Stormwater AgreementRECORDING REQUESTED BY:
City of Carlsbad
Development Services Department
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
DOC# 2025-0114392
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May01, 2025 10:12AM
OFFICIAL RECORDS
JORDAN Z. MARKS
SAN DIEGO COUNTY RECORDER
FEES: $41.00 (SB2 Atkins: $0.00)
PAGES: 10
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSESSOR'S PARCEL NO. 211-100-13-00
PROJECT ID. PD 2024-0008
RELATED PERMIT: EAGREE2024-0013
PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE
AGREEMENT
DATE OF AGREEMENT: _A~p_ri_l 3_0~1 _2_02_5 ________________ _
OWNER NAME: Cape Ann Properties, LLC., a Delaware limited liability company
PROJECT NAME: 5780 Fleet Street ------------------------
RESOLUTION NUMBER: NA -------------------------
CONDIT 1O N NUMBER: NA -------------------------
DRAWING NUMBER: DWG 333-2U
This Agreement is made and entered into by and between the City of Carlsbad, California, a
Municipal Corporation of the State of California, hereinafter referred to as "City"; and the Property
Owner, its successors and assigns, hereinafter referred to as "Owner". The term "successors and
assigns" as used in this Agreement includes, but is not limited to, an "Association" as defined in
Civil Code Section 1351 (a) and commonly referred to as a property owners association.
RECITALS
WHEREAS, Owner is proceeding to develop a property more particularly described in
Exhibit A, hereinafter referred to as "the Property"; and
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WHEREAS, development of the Property has been approved by the City, and is subject to
the requirements of the State of California Regional Water Quality Control Board-San Diego Region
Order No. ORDER NO. R9-2007-01/NPDES NO. CAS0108758, as promulgated within the City of
Carlsbad Public Works Department, Storm Water Standards Manual, 2004 Edition, hereinafter
referred to as "storm water regulations" and incorporated herein by this reference; and
WHEREAS, the Owner is required to comply with all Federal, State and Local storm water
regulations by employing permanent post-construction Best Management Practices (BMP's),
hereinafter referred to as "permanent BMP(s)" to ensure impacts to storm water quality are
mitigated to the Maximum Extent Practicable (MEP) prior to being discharged from the Property;
and
WHEREAS, the City and the Owner, its successors and assigns agree that the health
safety, and welfare of the residents of Carlsbad, California, require that permanent BMP(s) be
established, constructed, inspected, and operated and maintained in perpetuity on the Property;
and
WHEREAS, the storm water regulations require that permanent BMP(s) be established,
constructed and adequately inspected, operated and maintained by the Owner, its successors and
assigns, including any homeowner or property owner association; and
WHEREAS, the Owner has caused to be prepared a Storm Water Management Plan
(SWMP) report and drawing(s) which together detail the objectives, design, construction, inspection
and operation and maintenance responsibility requirements of the permanent BMP(s)
recommended to mitigate impacts to storm water quality due to the development of the Property,
hereinafter collectively referred to as the "Storm Water BMP Plan" and incorporated herein by this
reference; and,
WHEREAS, storm water regulations require that the City ensure the continued
existence and inspection, operation and maintenance of the permanent BMP(s); and
WHEREAS, the City has required the recordation of this Agreement as a condition of
approval of the project that secures the construction, inspection, operation and maintenance of on-
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site permanent BMP(s) by the Owner, its successors and assigns, including any property owners
association, in perpetuity, and
NOW, THEREFORE, in consideration of the approval of this project, the foregoing
promises, the mutual covenants contained herein, and the following terms and conditions,
Owner and City agree as follows:
1. Owner shall comply with all the requirements of said storm water regulations and any
applicable amendments thereto, and with any other provisions of law.
2. The permanent BMP(s) shall be established and constructed by Owner, its successors
and assigns, in accordance with the plans and specifications identified in the Storm Water BMP
Plan and modification to the approved permanent BMP(s) shall not be made without prior approval
of the City Engineer.
3. Owner, its successors and assigns, including any homeowner or property owner
association, shall adequately, inspect, operate and maintain the permanent BMP(s). This includes
private (non-public) pipes and channels built to convey storm water to the facility, as well as all
private structures, improvements, and vegetation provided to control the quantity and quality of the
storm water runoff and any associated practices and programs. Adequate maintenance is herein
defined as good working condition so that the permanent BMP(s) are performing in accordance with
their design objectives and functions.
4. Owner, its successors and assigns, shall inspect applicable permanent BMP(s) as often
as conditions require, or at frequencies recommended in the approved Storm Water BMP Plan, but
in any event at least once each year prior to the rainy season. The purpose of the inspection is to
assure continued safe and proper functioning of the facilities. The inspection shall cover the entire
facilities, berms, outlet structure, pond areas, access roads, etc. Owner shall submit an inspection
report annually to the City in a form as prescribed in the Storm Water BMP Plan or as may be
prescribed by the City. Deficiencies shall be noted in the inspection report. Any deficiencies,
repairs or maintenance obligations shall be noted in a record form and immediately remedied by the
Owner.
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5. Owner shall maintain inspection, operation and maintenance records for at least five (5)
years. These records shall be made available to the City for inspection upon request at any time.
6. Owner, its successors and assigns, hereby grant permission to the City, its authorized
agents and employees, to enter upon the Property and to inspect the permanent BMP(s) whenever
the City deems necessary. The purpose of inspection is to follow-up on reported deficiencies to
respond to State and Federal mandated storm water facility inspection requirements and/or to
respond to citizen complaints. The City shall provide Owner, its successors and assigns, copies of
the inspection findings and a directive to commence with the repairs or corrective measures if
necessary.
7. In the event the Owner, its successors and assigns, fails to take corrective action to
maintain the permanent BMP(s) in good working condition acceptable to the City, the City may
enter upon the Property and take whatever steps necessary to correct deficiencies identified in the
inspection report and to charge the costs of such repairs to the Owner, its successors and assigns.
This provision shall not be construed to allow the City to erect any structure of permanent nature on
the land of the Owner outside of the easement for the permanent BMP(s), if an easement is
provided, or outside the limits of the permanent BMP(s) facility footprint described on the Storm
Water BMP Plan, if an easement is not provided. It is expressly understood and agreed that the
City is under no obligation to routinely maintain or repair said facilities, and in no event shall this
Agreement be construed to impose any such obligation on the City.
8. Owner, its successors and assigns, will perform the work necessary to keep the
permanent BMP(s) in good working order as appropriate. In the event a maintenance schedule for
the permanent BMP(s) is outlined in the approved Storm Water BMP Plan, the schedule shall be
followed.
9. In the event the City pursuant to this Agreement, performs work of any nature, or
expends any funds in performance of said work for labor, use of equipment, supplies, materials,
and the like, the Owner, its successors and assigns, shall reimburse the City upon demand, within
thirty (30) days of receipt thereof for all actual costs incurred by the City hereunder. If not paid
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within the prescribed time period, the City shall secure a lien against the Property in the amount of
such costs. The actions described in this section are in addition to and not in lieu of any and all
legal remedies available to the City as a result of Owner's failure to maintain the permanent
BMP(s).
10. Owner agrees that the permanent BMP(s) are privately-owned, operated and
maintained by the Owner and acceptance of the work by the City shall not constitute a responsibility
of the City to maintain them nor a Waiver of Defects by City.
11. Owner agrees that all residual material that is a byproduct of the proper operation and
maintenance of permanent post-construction BMP's (waste) will be disposed of according to all
federal, state and local regulations.
12. Unless otherwise specifically provided herein, all notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been duly
delivered upon personal delivery, or by Federal Express (or similar reputable express delivery
service) or by facsimile transmission with back-up copy mailed the same day, or as of the second
business day after mailing by United States Certified Mail, return receipt requested, postage
prepaid, addressed as shown below. Notices required to be given to Owner shall be addressed as
follows:
Notices to the Owner shall be delivered to the following:
Name: Cape Ann Properties, LLC
Address: 51 S. Main Street, Suite 301
Address: Salt Lake City, UT 84111
Telephone No.: (801) 321-8700
E-mail Address: Michael.dehner@propertyreserve.org
Notices to City shall be delivered to the following:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Attention: City Engineer
Telephone No.: (442) 339-2750
Each party shall notify the other immediately of any changes of ownership or
address that would require any notice delivered hereunder to be directed to another Owner and/or
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to another address. In the event Owner fails to notify City of any change of ownership, the new
Owner and the Owner whose name appears above, or whose name and address has been
subsequently provided to the City pursuant to this provision, shall jointly be responsible for the
operation and maintenance of any permanent post-construction BMP's on the Property and for any
required annual verification statements until such time as the City is provided notification of the
name and address of the new or subsequent Owner, pursuant to the provisions of this section.
13. The City or any officer or employee thereof shall not be liable for any injury to persons
or property occasioned by reason of the acts or omission of Owner, its agents or employees in the
performance of this Agreement. Owner further agrees to protect and hold harmless City, its officials
and employees from any and all claims, demands, causes or action, liability or loss of any sort
because or arising out of acts or omissions of Owner, its agents or employees in the performance of
this Agreement, including claims, demands, causes of action, liability, or loss because of or arising
out of the design or construction of the permanent post-construction BMP facilities. Said
indemnification and Agreement to hold harmless shall extend to injuries to person and damages or
taking of property resulting from the design or construction of said permanent BMP(s) as provided
herein, and to adjacent property owner as a consequence of the diversion of waters from the
design, construction or maintenance of drainage systems, streets, and other improvements.
14. This Agreement shall be recorded against the Property and shall constitute a covenant
running with the land and shall be binding upon Owner.
15. Invalidation of any one of the provisions of this Agreement shall in no way effect any
other provisions and all other provisions shall remain in full force and effect.
Ill
Ill
Ill
Ill
Ill
Ill
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IN WITNESS WHEREOF, this Agreement is executed by the City of Carlsbad, acting by and
through its City Manager, pursuant to Section 20.16.060 of the Carlsbad Municipal Code
authorizing such execution, and by Owner.
OWNER(S):
CAPE ANN PROPERTIES,
limited liability company
Michael Dehner
(print name here)
Vice President
Cape Ann Properties, LLC
(title and organization of signatory)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By
JA NS. GELDERT, P.E.
Engineering Manager
(Proper notarial acknowledgment of execution by OWNER must be attached)
(Chairman of the Board, President, or any Vice-President and secretary, any assistant secretary, the Chief Financial
Officer, or any assistant treasurer must sign for corporations. If only one officer signs, the corporation must attach a
resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the
corporation.)
APPROVED AS TO FORM:
CINDIE K. MCMAHON
City Attorney
.
By: ~ /(. /'{~~
City Attorney
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Acknowledgment
State of Utah )
§
County of )"-( f-Le..4e..
On this ~ tl-
11 J day of A-frd , in the year 20 ?.-5, before me, MaviJf )IJ f, Nitbttr.a notary
date month year notary public name
public, personally appeared __ ,M_;_--~ __ l-_( __ D_th_Y'-l-_' ____ , proved on the basis of satisfactory
name of document signer
evidence to be the person(s) whose name(J;) (is/cJ:l!e) subscribed to this instrument, and acknowledged
(~/sh-e/tl 1ey) executed the same.
Witness my hand and official seal.
~~-~
(notary signature)
MARILYN F. NIELSON
Notary Public State of Utah
My Commission Expires on:
August 09, 2025
Comm. Number: 718951
(seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of SAN DIEGO
On April 30, 2025 before me, AMBER DAN, NOTARY PUBLIC
(insert name and title of the officer)
personally appeared _J_a_s_o_n_S_._G_e_l_d_e_rt ___________________ _
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 PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
........ f
AMBER DAN
Not;1ry Public • California z
San Diego County ii
Commission rl 2466836 -
y Comm. Expires Oct 17, 2027
EXHIBIT "A"
Legal Description
That certain real property located in the County of San Diego, California, specifically described as follows:
PARCEL A:
LOT CONSOLIDATION PARCEL A BOUNDARY ADWSTMENT 512 OF CERTIFICATE OF
COMPLIANCE RECORDED MARCH 23, 1998 AS FILE NO. 1998-0154336, OF OFFICIAL RECORDS
AND DESCRIBED AS FOLLOWS:
BEING A CONSOLIDATION OF LOTS 11 AND 14 OF CARLSBAD TRACT NO. 94-09 ACCORDING
TO MAP THEREOF NO. 13408, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, ST ATE
OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON APRIL 0 1, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 11;
THENCE ALONG THE WESTERL YBOUNDARYLINE OF SAID LOTS 11 AND 14
1. SOUTH 22° 29' 12" EAST, 895.45 FEET TO A POINT ON THE ARC OF A NONTANGENT
330.00 FOOT RADIUS CURVE, CONCA VE SOUTHERLY, A RADIAL LINE TO SAID POINT
BEARS NORTH 13° 37' 36" EAST, SAID POINT BEING THE SOUTHWEST CORNER OF SAID
LOT 14;
THENCE ALONG THE ARC OF SAID CURVE
2. EASTERLY23.76FEETTHROUGHA CENTRAL ANGLE OF 04° 07' 34";
THENCE TANGENT TO SAID CURVE
3. SOUTH 72° 14' 50" EAST, 170.66 FEET TO A POINT ON THE ARC OF A NONTANGENT
1,300 FOOT RADIUS CURVE, CONCAVE EASTERLY, A RADIAL LINE FROM SAID POINT
BEARS NORTH 76° 19' 13" EAST, SAID POINT BEING THE SOUTHEAST CORNER OF SAID LOT
14;
THENCE ALONG THE ARC OF SAID CURVE
4. NORTHERLY 311.04 FEET THROUGH A CENTRAL ANGLE OF 13° 42' 31 ";
THENCE TANGENT TO SAIDCURVE
5. NORTH 00° 01' 44"EAST, 781.14FEETTOTHENORTHEASTCORNEROF SAID LOT 11;
THENCE
6. SOUTH 67° 30' 48" EAST, 531.84 FEET TO THE POINT OF BEGINNING.
PARCELB:
AN EASEMENT FOR DRNEWA Y ACCESS OVER, ALONG AND ACROSS A PORTION OF LOT
IO OF CARLSBAD TRACT NO. 94-09, CARLSBAD RANCH UNITS 2 AND 3, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 13408, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY,APRIL0l, 1997 ANDMOREPARTICULARLYDESCRIBEDASFOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 1 0;
THENCE NORTH 22° 29' 12" WEST, ALONG THENCE EASTERLY RIGHT OF WAY LINE OF
FLEET STREET AS SHOWN ON SAID MAP NO. 13408, 15.00 FEET; THENCE LEAVING SAID
EASTERLY RIGHT OF WAY LINE NORTH 67° 30' 48" EAST, 40.00 FEET; THENCE SOUTH 22° 29'
12" EAST, 15.00 FEET TO THE SOUTHERLY LINE OF SAID LOT 1 0; THENCE SOUTH 67° 30' 48"
WEST, ALONG SAID SOUTHERLY LINE, 40.00 FEET TO THE POINT OF BEGINNING.
APN: 211-100-13-00