HomeMy WebLinkAboutSUP 07-03; Hanson Aggregates Pacific Southwest Inc; 2011-0371083; Maintenance AgreementDOCtt 2011-0371083
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
JUL21.2011 1:48 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dmnenburg, Jr., COUNTY RECORDER
FEES: 39.00
PAGES:
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSESSOR'S PARCEL NO. 167.040.21
PROJECT ID. SUp 07-03
LEVEE MAINTENANCE AGREEMENT
DATE OF AGREEMENT:t*b .
OWNER NAME: Hanson Aggregates Pacific Southwest, Inc.
PROJECT NAME: South Coast Materials Quarry
RESOLUTION NUMBER: 6744
CONDITION NUMBER: 25
DRAWING NUMBER: DWG 470-5A
LEVEE MAINTENANCE PLAN:Q>
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 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
Page 1 of 7 Rev 6/8/2011
WHEREAS, development of the Property has been approved by the City, and is subject to
the requirements of the Code of Federal Regulations Title 44, Section 65.10 (44 CFR65.10) and
National Flood Insurance Program (NFIP) by Federal Emergency Management Agency (FEMA)
and incorporated herein by this reference; and
WHEREAS, the Owner is required to comply with all Federal, State and Local flood
protection regulations by employing a levee facility to ensure that protection from base flood exist;
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 a levee facility be
established, constructed, inspected, and operated and maintained in perpetuity on the Property;
and
WHEREAS, Code and Federal Regulations Title 44, Section 65.10 (44 CFR65.10) and
FEMA's National Flood Insurance Program (NFIP) require that the levee facility be 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 Levee Maintenance Plan and drawing
DWG 470-5A, which together detail the objectives, design, construction, inspection and operation
and maintenance responsibility requirements of the levee facility to ensure protection of the
development of the Property from the base flood, hereinafter collectively referred to as the "Levee
Maintenance Plan" and incorporated herein by this reference; and,
WHEREAS, the Code of Federal Regulations Title 44, Section 65.10 (d) (44 CFR65.10 (d)
and FEMA's National Flood Insurance Program (NFIP) require that the City ensure the continued
existence and inspection, operation and maintenance of the levee facility; 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 the
levee facility by the Owner, its successors and assigns, including any property owners association,
in perpetuity;
Page 2 of 7 Rev 6/8/2011
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 Code and Federal Regulations Title 44,
Section 65.10 (44 CFR65.10) and FEMA's National Flood Insurance Program (NFIP) regulations
and any applicable amendments thereto, and with any other provisions of law.
2. The levee facility shall be established and constructed by Owner, its successors and
assigns, in accordance with the plans and specifications identified in the grading plan DWG 470-5A
and the Levee Maintenance Plan and modification to the approved levee facility 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 levee system. The area of
maintenance include but not limited to geotechnical stability, height, freeboard, integrity of
embankment, embankment protection, settlement, erosion, siltation, riprap degradation,
landscaping, outlet structures, degradation due to root damage, integrity of subsurface drainage
system, integrity of impermeable core, integrity of access road as well as all private structures,
improvements, and vegetation and any other items and associated practices and programs deemed
necessary to the proper functioning of the levee. Adequate maintenance is herein defined as good
working condition so that the levee facility is performing in accordance with their design objectives
and functions.
4. Owner, its successors and assigns, shall inspect the levee facility as often as conditions
require, or at frequencies recommended in the approved Levee Maintenance 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 facility. The inspection shall cover the entire facility,
outlet structures, and access roads, etc. Owner shall submit an inspection report annually to the
City in a form as prescribed in the Levee Maintenance Plan or as may be prescribed by the City.
Page 3 of 7 Rev 6/8/2011
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.
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 levee facility whenever the
City deems necessary. The purpose of inspection is to follow-up on reported deficiencies to
respond to State and Federal mandated levee 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 levee facility 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 the limits of the permanent levee facility footprint described on the Levee
Maintenance Plan. 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 levee system in good working order as appropriate. The maintenance schedule outlined
in the approved Levee Maintenance Plan 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
Page 4 of 7 Rev 6/8/2011
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 levee
facility.
10. Owner agrees that the levee facility is 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 it 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 levee facility 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:
Hanson Aggregates Pacific Southwest, Inc.
P.O. Box 639069
San Diego CA
Attention:
Telephone No.: (858)277-5411
Facsimile No.:
E-mail Address:
Notices to City shall be delivered to the following:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Attention: Utilities Director
Telephone No.: (760)438-2722
Facsimile No.: (760) 602-8562
Page 5 of 7 Rev 6/8/2011
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 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 the levee facility 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.
1 3. 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 levee facility. 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 levee facility 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.
Page 6 of 7 Rev 6/8/2011
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.
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):
Hanson Aggregates Pacific Southwest, Inc.
(Name of Owner)
By:
(sign here)
(print name here)
(title and organization of signatory) t
-?•&By:
((sign^rere)
£.
(print name here)
CITY OF CARLSBAD, a municipal corporation
of the State of California
GLEN K. VAN PESKI, P.E.
City Engineer
E41204 Exp. 3/31/2011
(title and organization1 ofsignatory)
(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:
RONALD R. BALL
City Attorney
Deputy City Attorney
Page 7 of 7 Rev 6/8/2011
Exhibit "A"
PARCEL B: (lOTi 167-040-31)
PORTION OF RflNCHO SBOK HEDIONDA, IN THE CITY' OF CARLSBAD, COtMTY OP SAM
DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MRJ1 NO. 623, FILED IN THE
OFFICE OF THE COWSTS'f RECORDER. OF SAN DIEGO COUNTY, NOVEMBER IS , 1S$6 , DESCRIBED
AS FQIiLOWSs
BEGINNING AT THE NORTHEASTERLY CORNER OF IiOT J OF SAID RANCHO; THENCE
SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT "JV SOUTH 69°36'2S" WEST
21.49.10 FEET -RICORD SOOTH S9°3S'QQ" WEST 215-2,00 FEET - MORE OR LESS TO THB
SOUTHERLY PROLONGATION OF THE WESTERLY LINE OF THE LAND. DESCRIBED IN DEED TO
ROSA MRRRON RECORDED MAY 1, 1903, IH BOOK 324, PAGE 114 OF DEEDS, RECORDS OF SAW
DIEGO COUNTY; THENCE NORTHERLY ALONG SAID PROLONGATION AND SAID WESTERLY LINE
NORTH 05*23 '20" WEST -RECORD NORTH 07«35'00* WEST - 1906.40 FEET, TO AN
INTERSECTION WITH THE SOUTHERLY LIME OP LJH3D DESCRIBED IN A DEED TO THE STATE OP
CALIFORNIA FOR FREEWAY PURPOSES RECORDED NOVEMBER 13, 1964, AS FILE NO, 20SS58
OF OFFICIAL RECORDS; THENCE ALONG SAID SOUTHERLY BOUNDARY, NORTH 54D35'Q3" EAST
61.20 FEET -RECORD NORTH 54»12'28« EAST 6€.S8 FEET -; KQRTH 62°19'49<> EAST
-RECORD NORTH 61°SO'l4" EAST - 781.78 FEET; NORTH 7Q°22'<43" BAST, -RECORD NORTH
7Q«00'QSB EAST - 160,25 FEET; NORTH S3fl37'35" -RECORD NORTH 53fi15'00" EAST -
60.91 FEET; NORTH 11»22'59" EAST -RECORD NORTH Il«00'24" EAST 91,21 FEET; NORTH
69*OS'01" EAST -RECORD NORTH 68°42'26" EAST - €25.00 FEET; SOUTH 71°01'3211 EAST
-RECORD SOUTH 71°23*57" EAST 97.79 FEET; SOUTH 29*15 '52*' EAST -RECORD SOOTK
29I>38'271' EAST - 45.80 FEET; WORTH 89e44'27" EAST -RECOHD NORTH 39»21'52" BAST -
97 ,35 FEET; NORTH Slfi23'5S" EAST -RECORD WORTH 51*01' 21" EAST - ISO, 95 FEET;
NORTH 79° 55 '20" EAST 17,18 -RECORD NORTH 79°32'45" EAST - 17.12 FEET; WORTH
S2*4S'47B EAST - RECORD NORTH 81«43'13"! EAST - 32.23 FEET; NORTH 28*31' 54" 'EAST
-RECORD NORTH 2 8s 09 '19" EAST - 25,12 FEET; NORTH 63* 40 '35" EAST - RECORD NORTH
63*18 '00" EAST - 67,81 FEET M3D NORTH S4042'03'' EAST 126.8 FEET -RECORD NORTH
84*19 '28" EAST - 135. 4S FEET TO TEE IHTERSEGTTQN WITS THE HEREINBEFORE SAID
EASTERLY LINE OF LAND CONVEYED TO SILVESTRB MftRRON, SAID POINT OF INTERSECTION
BEING ALSO FOR REFERENCE ALONG A EJUHAL LINE SOUTH 18°13'S2W EAST 202 .64 FEET
FROM ENGIHBBR'S STATION IS 6 ELUS 36.37 P.Q.C. LINE OF THE DEPARTMEHT OF
PUBLIC WORKS 1951 SURVEY FOR ROAD XI-SD-196-OCU-A; THENCE SOOTH 01 "19' 47" EAST,
20C3.50 PBiT TO THE FOINT OF BBGIBMB3G.
EXCEPTING THERBPROM THAT POHTIOH, IF SHY LYING HORTHESLY OF THE SOUTHERLY LIMB
OF LMTO .DESCRIBED IN A F1NM* OKDBR OF CONDEMNATION, RECORDED APRIL 29, 1954, AS
FILE MO, 56833 OF OFFICIAL RECORDS.
ALSO EXCEPTING THAT PORTION LYIP3 WITHIN THE FOLLOWING DESCRIBED LffiUD:
COMMENCING fiT THS NORTHWEST COSHER OF RECORD OF SURVEY NO. 9336, FILED IN THE
OFFICE OP THE COUNTY RECORDER OP SMt DIEGO COUNTY, MAY 12, 1983 AS FILE MO.
83-1S7S68; THENCE MOETH 70»04'42° BAST 1005. «3 TO THE TRUE POI3ST OF
BEGIHNING; SAID TITOS FOINT OF BEG13SMIKG BEING A POINT ON THS ARC OF A
NOW-TANGENT 178,00 FOOT RM3IUS CURVE, CONCAVE SOUTHEASTERLY A RftDIAL LINE TO
SAID CTOTE BEARS NORTH 52* 29' 44" WEST; fHSNCi ALOKG THE ARC OF SAID CURVE 101.20
FEET THROUGH A CEETTRMi SNGLE OF 32"34'2SB? THEBJCE NORTH 70°04'42" EAST 170.00
FEET TO A 228.00 FOOT RADIUS CURVE, COKCAVE SOUTHERLY; THENCE ALONG THE ARC OF
SAID CURVE 87,61 FEET THROUGH A CENTRAL ANGLE OF 22 "00' 59"; THENCE SOUTH
87*54' 19" EAST 30.34| THENCE SOUTH 70*04' 42" WEST 379.43 FS'ET TO THE "TRUE POINT
OF BEGINNING,
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of jASl Jt
On
personally appeared
CYNOI
1IM1N
AM 10. iUU
Place Notary Seal Above
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 m hand and official seal.
Signature
OPTIONAL
Though the information below /s not required by law, It may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of (Ws form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:.Numberof Pages:.
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
D Individual
D Corporate Officer — Title(s):
D Partner — D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
RIGHT THUMBPRItfl
OF SIGNER
Top of thumb here
Signer Is Representing:.
Signer's Name:
D Individual
D Corporate Officer — Title(s):
D Partner — D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
Signer Is Representing:.
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