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HomeMy WebLinkAboutSDP 2021-0028; Merlin Entertainment Group US Holdings Inc; 2024-0048196; Permanent Stormwater AgreementRECORDING REQUESTED BY : DOC# 2024-0048196 I llllll lllll lllll lllll llll llllll lllll lllll lllll lllll 111111111111111111 City of Carlsbad Development Services Department Feb 27, 2024 11 :08 AM OFFICIAL RECORDS JORDAN Z. MARKS, WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 SAN DIEGO COUNTY RECORDER FEES: $41 .00 (S82 Atkins: $0.00) PAGES: 10 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 211-100-09-00 ....:::....;_;_...;_:;_~..:__:-=---------- PROJECT ID. SDP 2021-0028 PERMANENT STORMWATER QUALITY SEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: ----=-F-=-eb::..:r..::.u.:::.;aryc..r......=2:.=2i..;, 2=-=0=2:...:4 _______________ _ Merlin Entertainment Group US Holdings Ine., a Delaware OWNER NAME: ....:::...co:..;.r.c.p.::.;or:...=a:..:.:ti.::.;o:..:..n ___________________ _ PROJECT NAME: Legoland Parking Structure #2 RESOLUTION NUMSER: .....:7.....:4~9-=-5 ___________________ _ CONDITION NUMSER: .....:2::...;4---'--------------------- DRAWING NUMSER: .....:D::...;W:....:....:::.G.....:5~3-=-7-.....:1.:....:A---'----------------- 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 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 Q:ICED\Admin\B&AIPROJECTSISOP 2021-0028; ROW2024.0028; GR2022-0007 -Legoland Parking Strucure 2_N.F\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 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- site permanent BMP(s) by the Owner, its successors, and assigns, including any property owner's 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, Q:\CED\Admin\B&AIPROJECTS\SDP 2021--0028; ROW2024-0028; GR2022-0007 -Legoland Pari<ing Strucure 2_N.F\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 2 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 aften 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. 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. Q:\CEO\Admin\S&AIPROJECTS\SOP 2021-0028; ROW2024-0028; GR2022-0007 -Legoland Par1<ing Strucure 2_N.F\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 3 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 tindings 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 af the easement for the permanent BMP(s), if an easement is provided, or outside the limits af 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 perfom, the work necessary to keep the permanent BMP(s) in good working arder 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. lf 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 Q:\CED\Admin\B&A\PROJECTSISDP 2021-0028; ROW2024-0028; GR2022-0007 -Legoland Pari<ing Strucure 2_N.F\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 4 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 atter 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: Merlin Entertainment Group US Holdings Ine. Address: 1 Legoland Drive Address: Carlsbad, CA 92008 Telephone No.: 858-334-8938 E-mail Address: flora.liu@legoland.com 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/ar 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 Q:\CED\Admln\B&AIPROJECTS\SDP 2021-0028; ROW2024-0028; GR2022-0007 -Legoland Parl<ing Strucure 2_N.F\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 5 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. lnvalidation 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. III III III /li III /li /li Q:\CED\Admin\B&AIPROJECTSISDP 2021--0028; ROW2024-0028; GR2022--0007 • Legoland Parking Strurure 2_N.F\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. MERLIN ENTERTAINMENT GROUP US HOLDINGS INC., a Delaware corporation By: (sign here) Kurt Stocks (print name here) Director and Vice President Merlin En • • By: (title (sign here) Rex Jackson (print name here) Director and Vice President Merlin Entertainment Group US Holdings Ine. (title and organization of signatory) CITY OF CARLSBAD, a municipal corporation of the ate of California . 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. lf 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 MCMAHON City Attorney B Q:ICED\Admin\B&AIPROJECTS\SDP 2021-0028; ROW2024-0028; GR2022-0007 • Logoland Parking Strucura 2_N.F\PERMANENT STORMWATER OUALllY BMP MAINTENANCE AGREEMENT.doc 7 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 xxnrnøøønrn.....,,-,nnøønnr A nota ry public orother officer completing this certificate verifies only the identity of the individual who sig ned the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. } who proved to me on the basis of satlsfactory evidence to be the person(s) whose name(s) ls/are subscrlbed to thc wlthln Instrument and acknowledged to me that he/she/they exccuted the same in hls/her/their authorlzed capaclty(les). and that by hls/her/their slgnature(s) on the Instrument the person(s), or the entlty upon behalf of whlch the person(s) acted, executed the Instrument. Place Notary Seal and/or Stamp Above I certlfy under PENAL TY OF PERJURY under the laws of the State of Callfornia that the foregolng paragraph Is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Completing this information con deter alteration of the document or fraudu/ent reattachment of this form to an unintended document. Description of Attached Document Tltle or Type of Document: Document Date: _______ _ Number of Pages: ___ _ Slgner(s) Other Than Named Above: ______________________ _ Capacity(Jes) Clalmed by Signer(s) Slgncr's Name: Slgner's Name: □ Corporate Officer -Tltle(s): ______ _ □ Corporate Officer -Tltle(s): ______ _ □ Partner -□ Llmlted □ General □ Partner -□ Llmlted □ General D lndlvidual □ Attorncy in Faet □ lndlvldual □ Attorney In Faet □ Trustee □ Guardian or Conservator □ Trustee □ Guardian 01 Conservator □ Other: □ Other: Signer Is Representing: Signer Is Representlng: ___ _ ©2019 National Notary Association Page 8 of 8 01/25/13 ACKNOWLEDGMENT A nota ry 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 February 22, 2024 befare me, Amber Dan, Notary Public (insert name and title of the officer) personally appeared _J_a_s_on_S_. _G_e_ld_e_rt ___________________ _ who proved tome 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. Signature .~ (Seal) EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, ST A TE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 18 AND 19 OF CITY OF CARLSBAD TRACT 94-09, CARLSBAD RANCH-UNITS 2 & 3, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13408, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL I, 1997.