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HomeMy WebLinkAboutCDP 08-13; City of Carlsbad; 2012-0167444; Permanent Stormwater Agreement/Of RECORDING REQUESTED BY : City of Carlsbad Development Services Department WHEN RECORDED MAILTO: City Clerk City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOCtt 2012-0167444 iniiiiiiiiiiiiiMiiiiiiiiiiiMNiniiii MAR 22, 2012 9:51 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE ErneslJ. Dronenburg, Jr., COUNTY RECORDER FEES: 42.00 PAGES: 10 SPAC. ASSESSOR'S PARCEL NO. 211 -040-21 PROJECT ID. CDP 08-13, Parcel C PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT LESSEE NAME PROJECT NAME RESOLUTION NUMBER CONDITION NUMBER DRAWING NUMBER gytjuLAMjLi /OJ 10/^ Greerrbragon Tavern, Inc., a California corporation Green Dragon Colonial Village 6550 33 DWG 464-7A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 09-27 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 Lessee, hereinafter referred to as "Lessee". RECITALS WHEREAS, Lessee 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 Rev 08/09/2007 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 Lessee 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 Lessee, its successors and assigns agree that the health safety, and welfare ofthe 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 Lessee, its successors and assigns; and WHEREAS, the Lessee 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 ofthis 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 Lessee, its successors and assigns, including any property owners association, in perpetuity, and NOW, THEREFORE, in consideration of the approval of this project, the foregoing Rev 08/09/2007 promises, the mutual covenants contained herein, and the following terms and conditions, Lessee and City agree as follows: 1. Lessee 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 Lessee, 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. Lessee, its successors and assigns 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. Lessee, 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. Lessee 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, repairs or maintenance obligations shall be noted in a record form and immediately remedied by the Lessee. 5. Lessee 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. Rev 08/09/2007 6. Lessee, 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 Lessee, 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 Lessee, its successors and assigns, fails to take corrective action to maintain the permanent BMP(s) in good working condifion acceptable to the City, the City may enter upon the Property and take whatever steps necessarv to correct deficiencies identified in the inspection report and to charge the costs of such repairs to the Lessee, 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 Lessee 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 obligafion to roufinely maintain or repair said facilifies, and in no event shall this Agreement be construed to impose any such obligation on the City. 8. Lessee, 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 oufiined 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 Lessee, 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. The actions described in this secfion are in addifion to and not in lieu of any and all legal remedies available to the City as a result of Lessee's failure to maintain the permanent BMP(s). Rev 08/09/2007 10. Lessee agrees that the permanent BMP(s) are privately-owned, operated and maintained by the Lessee 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. Lessee agrees that all residual material that is a byproduct of the proper operafion and maintenance of permanent post-construction BMP's (waste) will be disposed of according to all federal, state and local regulafions. 12. Unless othen/vise specifically provided herein, all nofices, demands or other communicafions given hereunder shall be in wrifing 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. Nofices required to be given to Lessee shall be addressed as follows: Notices to the Lessee shall be delivered to the following: Green Dragon Tavern, Inc., P.O. Box 927065 San Diego, CA 92192 Attention: Bruce Bartlett Telephone No.: 858-756-4026 Facsimile No.: 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 lessee or address that would require any notice delivered hereunder to be directed to another Lessee and/or to another address. In the event Lessee fails to notify City of any change of lessee, the new Lessee and the Lessee 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 Rev 08/09/2007 post-construcfion BMP's on the Property and for any required annual verificafion statements unfil such fime as the City is provided nofificafion of the name and address of the new or subsequent Lessee, pursuant to the provisions of this secfion. 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 Lessee, its agents or employees in the performance of this agreement. Lessee 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 Lessee, its agents or employees in the performance of this agreement, including claims, demands, causes of acfion, liability, or loss because of or arising out of the design or construction of the permanent post-construcfion 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 construcfion 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 and shall be binding upon Lessee. 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. /// /// /// /// /// /// /// /// /// Rev 08/09/2007 IN WITNESS WHEREOF, this agreement is executed by the City of Carlsbad, acfing by and through its City Manager, pursuant to Secfion 20.16.060 ofthe Carlsbad Municipal Code authorizing such execution, and by Lessee. LESSEE: Green Dragon Tavern, Inc., a California corporation (Name of Lessee) By: (sign here) Bruce R. Bartlett (print name here) President, Green Dragon Tavern, Inc. By: (title and organization of signatory) (sign here) (print name here) CITY OF CARLSBAD, a municipal corporation of the State of California GLEN K. VAN PESKI, P.E. City Engineer By: RCE 41204 Exp. 03/31/2013 (fitle and organizafion of signatory) (Proper notarial acknowledgment of execufion by LESSEE 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 corporafions. 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 Attomey By: Deputy City Attorney \ Rev 08/09/2007 CALIFORIilA ALL-PURPOSE ACKNOWLEDQM6NT } State of California Countyof vP^r) "hidJO j r f) On Mn lOi ^OIX before me, Lu/)6 O^'kjl^ . /^^^ Kh( i'( Oate Her# Jhsert Name and Trtle of ft^ Ofticer personally appeared. Name(s5 of Slgr>er<s) LUPE ORTEGA Commission # 1846373 Notary Public - Callfornte San Dlego County My Comm. Expiras May 8.20131 Place Notary Sea! Above who proved to me on the basis of satisfactory evidence to be the person(sf whose name^ ts/aj;^ subscribed to the within instrument and acknowledged to me that he/s*=»e/they executed the same In his/h©i#»eff authorized capacjty(i0^, and that by his/hecftbeir signature^ on the instrument the person(^, or the entity upon behalf of which the person(^ 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 my hand and official seal. Signature (Ouhj^ ^ I Signature of! OPTIONAL r ublic Though the mformation 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: J/.kM/^n/4^^'ri/.}^M //^^ Md!^^ Document Date: ____ Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claiinecl by Signer(s) Signer's Name: • Individual • Corporate Officer —Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RiGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Tltle(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: HGHT THUMBPRINT OF SIGNER Top of thumb here ©2(X)7National Notary Assodation* 9350 De Soto Aw., RO.Box 2402 •aiatev«ortli,CA 91313-2402•www.NaHonall^ary.org ltem #W7 ReorderCaBToll-Free 1-800-876-6827 EXfflBIT "A" Real property in the City of Carlsbad, County of San Diego, State of California, described as follows: PARCEL A: PARCEL 1 OF PARCEL MAP NO. 6022, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFRCE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 8, 1977 AS FILE NO. 77-224223 OF OFFICIAL RECORDS. PARCELS: THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1895 DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTHERLY LINE OF SAID RANCHO AGUA HEDIONDA, WITH THE EASTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS SAID RIGHT OF WAY WAS CONVEYED TO THE CALIFORNIA SOUTHERN RAILROAD COMPANY, BY DEED RECORDED MARCH 10, 1881, IN BOOK 38, PAGE 171 OF DEEDS; RECORDS OF SAID COUNTY; THENCE ALONG SAID SOUTHERLY RANCHO LINE NORTH 89 DEGREES 59' EAST 1410.27 FEET; THENCE NORTH 0 DEGREES 01 WEST 1558.90 FEET, MORE OR LESS, TO THE NORTHERLY LINE OFTHAT PARCEL OF LAND DESCRIBED IN DEED TO P.A. HORTON AND WIFE, RECORDED MARCH 10, 1944, RECORDER'S FILE NO. 17399 IN BOOK 1641, PAGE 437 OF OFFICIAL RECORDS; THENCE ALONG THE NORTHERLY LINE OF SAID LAND, SOUTH 89 DEGREES 59' WEST 863.24 FEET, MORE OR LESS, TO THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED IN DOCUMENT OF LIS PENDENS, SUPERIOR COURT NO. 290999, RECORDED APRIL 13, 1965, RECORDER'S FILE NO. 65613 OF OFFICIAL RECORDS BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID EASTERLY LINE SOUTH 22 DEGREES 53'46" EAST 303.77 FEET TO AN ANGLE POINT; THENCE LEAVING SAID EASTERLY LINE, NORTH 88 DEGREES 46'15" EAST 227.69 FEET TO THE SOUTHERLY TERMINUS OF THE WESTERLY LINE OF THE PUBLIC STREET DESCRIBED IN DEED TO THE CITY OF CARLSBAD, RECORDED OCTOBER 8, 1968, RECORDER'S RLE NO. 175309 OF OFFICIAL RECORDS; THENCE NORTHERLY ALONG SAID WESTERLY LINE BEING ALONG THE ARC OF A 2042 FOOT RADIUS CURVE, CONCAVE EASTERLY, A DISTANCE OF 272.09 FEET TO THE SAID NORTHERLY LINE OF HORTON U\ND; THENCE WESTERLY ALONG SAID NORTHERLY LINE, 327.98 FEET TO THE TRUE POINT OF BEGINNING. PARCEL C: THE SOUTHERLY 120.00 FEET (MEASURED ALONG THE EASTERLY LINE THEREOF) OF THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, RLED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896 DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTHERLY LINE OF SAID RANCHO AGUA HEDIONDA, WITH THE EASTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE 292.56 FEET- THENCE NORTHERLY AT RIGHT ANGLES 1558.90 FEET TO THE NORTHEAST CORNER OF EXfflBIT "A" (cont'd) THAT PARCEL OF LAND CONVEYED TO CARLSBAD INDUSTRIAL DEVELOPMENT BY DEED RECORDED DECEMBER 4, 1956 IN BOOK 6367, PAGE 141 OF OFFICIAL RECORDS AS MARKED BYA 3/4 INCH IRON PIPE WITH TAG STAMPED R.E. 9822, BEING AT COORDINATES Y EQUALS 348,772.09 FEET AND X EQUALS 1,672,277.16 FEET; THENCE ALONG THE NORTHERLY UNE OF THAT PARCEL OF LAND DESCRIBED IN DEED TO P. A. HORTON, RECORDED IN BOOK 1641, OP 437 OF OFFICIAL RECORDS, SOUTH 89 DEGREES 26'41" EAST 594.57 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN PARCEL 3 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JUNE 18, 1965 AS RLE NO. 108756 OF OFRCIAL RECORDS AND THE TRUE POINT OF BEGINNING; THENCE ALONG THE WEST LINE OF SAID PARCEL 3, NORTH 2 DEGREES 09'37" EAST 471.60 FEET TO THE SOUTH LINE OF PALOMAR AIRPORT ROAD, AS DESCRIBED IN DEED TO THE CiTY OF CARLSBAD, RECORDED DECEMBER 7, 1959 AS DOCUMENT NO. 251738 IN BOOK 8030, PAGE 216 OF OFFICIAL RECORDS; THENCE ALONG SAID SOUTH LINE NORTH 87 DEGREES 50'23" WEST 280.02 FEET TO AN ANGLE POINT IN THE EASTERLY LINE OF LAND DESCRIBED IN PARCEL 2 OF DEED TO THE STATE OF CALIFORNIA, ABOVE DESCRIBED; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL 2, SOUTH 73 DEGREES 05'57" WEST 165.57 FEET TO A POINT BEING AT COORDINATES Y EQUALS 349,200.02 FEET AND Y EQUALS 1,672,451.25 FEET;.THENCE SOUTH 02 DEGREES 25'02" EAST 136.57 FEET; THENCE SOUTH 12 DEGREES 40'15" EASJ 257.1,0 FEET; THENCE SOUTH 22 DEGREES 53'46" EAST 46.80 FEET TO THE NORTH LINE OF THAT PARCEL OF IJ\ND DESCRIBED IN DEED TO P. A. HORTON, ET UX, RECORDED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 10, 1944 UNDER RECORDER'S FILE NO. 17399 IN BOOK 1641, PAGE 437 OF OFRCIAL RECORDS; THENCE ALONG SAID NORTH LINE, SOUTH 89 DEGREES 26'41" EAST TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THE EASTERLY 12.00 FEET. APN: 211-040-21-00 (Affects: Parcel A [Fee Interest]); 211-050-04-00 (Affects: Parcel B [Leasehold Interest]) and 211-050-16-00 (Affects: Parcel C [Leasehold Interest])