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HomeMy WebLinkAboutCD 2019-0020; XHR Carlsbad LLC; 2020-0154355; Permanent Stormwater Agreementf RECORDING 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# 2020-0154355 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Mar 25, 2020 12:39 PM OFFICIAL RECORDS Ernest J. Dronen burg, Jr .. SAN DIEGO COUNTY RECORDER FEES $0.00 (SB2 Atkins. $000) PAGES 10 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 215-750-01-00 PROJECT ID. CD 2019-0020 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: rlbnAanq :J1, a.on OWNER NAME: XHR Carlsbad LLC PROJECT NAME: Pacific Rim (Park Hyatt) RESOLUTION NUMBER: _P_C_R_e_s_N_o_._: N_/_A __ A_p~p_r_ov_a_l _D_a_te_: _N_/_A _______ _ CONDITION NUMBER: N/A -------------------------- DRAWING NUMBER: DWG 313-5E -------------------------- 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 Q\CED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENTdocQ:ICED\LandDev\PROJECTSICDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 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- Q\CED\LandDev\PROJECTSICDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.docQ \CED\LandDev\PROJECTS\CD\CD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 2 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. Q\CED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.docQ ICED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 3 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 QICED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENTdocQ·\CED\LandDev\PROJECTSICDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT doc 4 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: XHR Carlsbad LLC Address: 200 South Orange Avenue Ste. 2700 Address: Orlando, FL 32801 Telephone No.: 407-246-8100 E-mail Address: L°1Ji'!J/vo-/,'c.e,;f1 "/aii"-Reif.<!.OM Notices to City shall be delivered to the following: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Attention: City Engineer Telephone No.: (760) 602-2730 Facsimile No.: (760) 602-8562 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 Q\CED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENTdocQ:ICED\LandDev\PROJECTS\CDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt)-Rick\B&AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 5 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 II Q:\CED\LandDev\PROJECTS\CD\CD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT docQ ICED\LandDevlPROJECTS\CD\CD 20191CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 6 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): XHR Carlsbad LLC, a Delaware Limited Liability Company '&f ·. X\-\ fZ.. Lf', ll~ll4va,e l,M-i+...l pa.~~( ,+$ 5c:.I<. ~ ,-b,ar- {!,'-(: )<~{l.G-P,r"c·, A."Del~-c. eo,pc,roi~ ..... "1-k ae,~a,..l ~ By: By: Joseph T. Johnson (print name here) Senior Vice President (title and organization of signatory) (sign here) (print name here) (title and organization of signatory) CITY OF CARLSBAD, a municipal corporation of the State of California By JAS S. GELDERT, P.E. City Engineer (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: CELIA BREWER City Attorney By:~J~OR~~-·~~e- .,~oN KEMP ' Assistant City Attorney Q:\CED\LandDev\PROJECTSICD\CD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.docQ ICED\LandDevlPROJECTSICDICD 2019\CD2019-0020 Pacific Rim (Park Hyatt) -Rick\B&A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 7 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 ~:§:0:§:0:0:§:§:§:§:§§:§:§:~ 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 St1n D1-½J12 On :J. / ;)7 /;J.,Df)p 1 Date before me, t\:mb.U HoliN/)ll 'NojP'IM [J,tblit, ,-. Here Insert Name and Title of iJ Officer personally appeared ____ J~a .............. s ....... o_h_, ~S~--C:J ___ £_{d ............... U1=~---------- Name(s) of Signer(s) 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 , •• AMBER MOLIFUA : e.f ~ :._ ..... ,. ~ Mot.iry Pu.bl.ic · Californi• : , • .;• ,: Sin 01ego County :: z 1.. ~ " Commission # 2306534 - ••,.o••'"' My Comm. Ex:nres Sep 24, 2023 Place Notary Seal and/or Stamp Above 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. OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ___________________________ _ Document Date: ______________________ Number of Pages: ____ _ Signer(s) Other Than Named Above: _______________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ____________ _ □ Corporate Officer -Title(s): _______ _ □ Corporate Officer -Title(s): _______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ Signer is Representing: _________ _ ~:~ [l:§:§:§§~:§:§:§:~ ]:§~ ©2018 National Notary Association STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me by means of 181 physical presence or □ online notarization, this 13th day of February, 2020, by Joseph T. Johnson as Senior Vice President of XHR GP, Inc., a Delaware corporation, general partner of XHR LP, a Delaware limited partnership as sole member of XHR Carlsbad LLC, a Delaware limited liability company on behalf of the company, who 181 is personally known to me or who ( ) produced _______ as identification. (Notary .. s:.e:.:a~I) _________ __ .-·~~~-CAROL MCKNIGHT ["'}~·-.• \ eommlnlon JFF 991085 t~. .;1 Expires June 18. 2020 ·-.z .ifr.r.i'-!•··· BondldTIINTrvyi:.1ntnaurance800-385-7011 !Exhibit A The Land referreci"to herein below is situated in the City of Carlsbad, County of San Diego, State of California, and is described as follows: LOT 1 OF CITY OF CARLSBAD TRACT NO. 95-02, UNIT 1 PLANNING AREA 2A AND A PORTION OF 2B, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13335, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUN1Y, JUNE 13, 1996. For conveyancing purposes only: APN 215-750-01-00