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HomeMy WebLinkAboutPUD 05-11A; Real Estate Collateral Management Company; 2008-0173963; Permanent Stormwater Agreementr 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# 2008-0173963 APR 02, 2008 4:17 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES: 36.00 12573 PAGES:10 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. PROJECT NO. 223-830-42-00 PUD 05-11 (A) PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: OWNER NAME: Real Estate Collateral Management Company PROJECT NAME: _La Costa Oaks North Recreation Center RESOLUTION NUMBER:flj ktfv CONDITION NUMBER: 27 DRAWING NUMBER: DWG 446-4B STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: SWMP 070040 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, named on the current Deed of Trust as referenced above, 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 homeowners association. RECITALS WHEREAS, Owner is proceeding to develop a property more particularly described in Exhibit A, hereinafter referred to as "the Property"; and 1 OF 6 Rev 12/28/2007 12574 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. 2001-01/NPDES NO. CAS0108758, as promulgated within the City of Carlsbad Public Works Department, Standard Urban Storm Water Mitigation Plan-Storm Water Standards, 2003 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 2 OF 6 Rev 12/28/2007 12575 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- 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 all pipes and channels built to convey storm water to the facility, as well as all 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 proscribed in the Storm Water BMP Plan or as may be proscribed by the City. Deficiencies shall be noted in the inspection report. Any deficiencies, 3 OF 6 Rev 12/28/2007 12576 repairs or maintenance obligations shall be noted in a record form and immediately remedied by the Owner. 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, 4 OF 6 Rev 12/28/2007 1257? 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 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. 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. 13. This Agreement shall be recorded against the Property and shall constitute a covenant running with the land and shall be binding upon Owner. 14. 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. 5 OF 6 Rev 12/28/2007 12578 IN WITNESS WHEREOF, this agreement is through its City Manager, pursuant to Section authorizing such execution, and by Owner. APPLICANT: Real Estate Collateral Management company, a Delaware corporation (Name of Owner) /(sign here) Fred R. Schimel (print name here) Vice President executed by the City of Carlsbad, acting by and 20.16.060 of the Carlsbad Municipal Code CITY OF CARLSBAD, a municipal corporation of the State of California ROBERT T. JOHNSON, JR., P.E. City Engineer (title and organization of signatory) By: By: David A. flauser, Deputy City Engineer RCE 33081 Exp. 06/30/2008 (sign here) (print name here) (title and organization of signatory) (Proper notarial acknowledgment of execution by OWNER must be attached) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Deputy City Attorney 6 OF 6 Rev 12/28/2007 12579 EXHIBIT 'A' Lot 81 of CT 05-14 per Map 15595 recorded August 22, 2007 1 OF 1 Rev 08/09/2007 12580 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ss^^ysfis&s&sffs<i^^<is<^^^ State of QSGHEKS Illinois County of Cook On February 8, 2008 before me, Dale personally appeared Fred Schimel_ Diana C. Moreno, Notary Public Here Insert Name ana Title o! the Officer Name(s) ol Signerjs) DIANA C. NOTARY PUBLIC, COMMISSION 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. Place Notary Seal Above WITNESS rmshand and official seal. d Signature of Nolary Pubic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment ol this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) . Number of Pages:. Signer's Name: G Individual D Corporate Officer — Title(s): D Partner — G Limited G Genera) G Attorney in Fact ('.: Trustee G Guardian or Conservator C Other: Signer !s Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: u Individual G Corporate Officer — Title(s): G Partner — D Limited D General C Attorney in Fact G Trustee G Guardian or Conservator U Other: Signer Is Representing: RIGHT THUMBPR1NT OF SIGNER Top ot thumb here ©2007 National Notary Association • 9350 Oe Solo Ave.. P.O. Box 2402 • Ctiatsworm. CA 91313-2402- ivww.NationalNotary.org Item »5907 Reorder- Call Toil-Free i -800-876-6827 12581 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On ^before me. personally appeared Here Insert Name and TitlJ of the Officer Name(s) of Signer(s) 1•OWE S; POMMCA mmtMten O I773W Motofv Public-CoNtofnta I Son M*9o Coun* 5 ROSE S. FONSE pmmlMlon>-r773529 - California 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. Place Notary Sea! Above WITNES s Signature OPTIONAL - hand andofficial seal. Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another 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: Individual Corporate Officer — Title(s): Partner — ." Limited General Attorney in Fact Trustee Guardian or Conservator Other: RIGHTTHUMBPRINT OF SIGNER Top o? thumb here Signer's Name: Individual Corporate Officer — Title(s): Partner — .... Limited ... General Attorney in Fact .1 Trustee _ Guardian or Conservator Other: RIGHTTHUMBPRINT OF SIGNER Signer Is Representing: _Signer Is Representing: ©2007 National Notary Association • 9350 De Solo Ave PO. Box 2402-Chatsworth. CA 91313-2402 • www NationalNotary org Item »5907 Reorde' Call Toll-Free 1-800-876-6827 GOVERNMENT CODE 27361.7 12582 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of the Notary: Rose S. Fonseca Commission Number: 1773529 Date Commission Expires: October 15. 2011 County Where Bond is Filed: San Diego Manufacturer or Vendor Number: NNA1 (Located on both sides of the notary seal border) Signature:;City of Carlsbad Place of Execution: Office of the City Clerk/City of Carlsbad Date: 3/28/08 Rec. Form #R10 (Rev.7/96)