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HomeMy WebLinkAboutCT 06-24; LNR CPI Bressi Retail LLC; 2008-0071210; Permanent Stormwater AgreementRECORDING 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# 2008-0071210 M FEB12, 2008 9:56 AM OFFICIAL RE CORDS SAN DlEGO COUNTY RECORDER'S OFFICE G Fi E R n Fn ' . I s M I T H CO U N T Y R E CO R D E R FEES: 0.00 PAGES:11 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 213-191-02 PROJECT NO. QJ 06-24 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: December 28, 2007 OWNER NAME: LNR CPI Bressi Retail, LLC, a California limited liability company PROJECT NAME: Bressi Ranch Village Center RESOLUTION NUMBER: 6311 CONDITION NUMBER: 29 DRAWING NUMBER: DWG 452-9A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 07 0031 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, hereinafter referred to as "Owner". 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. 2001-01/NPDES NO. CAS0108758, as promulgated within the City 1 OF 6 Rev 08/09/2007 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 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 2 OF 6 Rev 08/09/2007 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 agrees 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, 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. 3 OF 6 Rev 08/09/2007 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 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 4 OF 6 . Rev 08/09/2007 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, its successors and assigns, including any homeowner or property owner association. 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 08/09/2007 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. APPLICANT: LNR CPI Bressi Retail LLC, a California limited liability company By: LNR CPI A&D Holdings, LLC, a Delaware limited liability company, its member By: LNR Commercial Property Investment Fund Limited Partnership, a Delaware limited partnership, its member By: LNR CPI Fund GP, LLC, a Delaware limited liability company, its general partner (Nam By: (sign here) R. Lang Cottrell (print name here) Vice President (title and organization of signatory) By: / (sign hej^) (print name here) CITY OF CARLSBAD, a municipal corporation of the State of California ROBERT T. JOHNSON, JR., P.E. City Engineer By: ^ David A. Hauser, Deputy City Engineer RCE 33081 Exp. 06/30/2008 (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 DfeputyCityAlto 6 OF 6 Rev 08/09/2007 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of vJX On Date personally appeared before me, I Name and Title of Officar (e.g., "Jane Doe. Notary Public") Namefs) of Signer(s) I. GAUTHIER Commission* 1722*43 Notary Public - CaWomla Otang* County Place Notary Seal Above \/personally known to me 1 ] (or proved to me on the basis of satisfactory evidence) to be the personlje) whose nameljs) is/are-subscribed to the within instrument and acknowledged to me that he/ohc/they executed the same in his/ter/thoir authorized capacity(ie6i, and that by his/her/their signature^) on the instrument the person^), or the entity upon behalf of which the person^) acted, executed the instrument. WITNESS Signature "\d official seal. Signature of Notary Public 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 of this form to another document. Description of Attached Document Title or Type of Document: Document Date:: Jc9> — i M" — 0 /. Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: U Individual i ] Corporate Officer — Title(s): U Partner — Fi Limited U General D Attorney in Fact H Trustee LJ Guardian or Conservator U Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual U Corporate Officer —Title(s): U Partner — D Limited D General D Attorney in Fact U Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here © 2006 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 v609 Reorder: Call Toll-Free 1-800-876-6827 State of California County of San Diego On / /^"/^ / before me (bate) ' personally appeared , fell *<L #• (Name, Title of Officer) (Name[s] of Signer[s]) known to me -OR - D (proved to me_nn thn hnr.in nf satisfactory evidence) to be the person^ whose is/are subscribed to the within instrument and acknowledged to me that he/btie/ll i«y * executed the same in his/her/their -authorized capacitype^ and that by his/bei/lln=iir signature(9(f on the instrument the person^? or entity upon behalf of which the acted, executed the instrument. WITNESS my hand and official seal Signature of Notary BELINDA R. GUZMAN Commission # 1565777 Notary Public - Calitornia San Diego County i My Comm. Expires Mar 31,2009 (This area for official notary seal) Title or Type of Document Permanent Stormwater Quality BMP Maintenance Agreement Date of Document (^.-2.a ^7 NO. of Pages 9 Signer(s) other than named above C // EXHIBIT "A" LEGAL DESCRIPTION OF SHOPPING CENTER BEING A PORTION OF LOTS 4 AND 5 OF CARLSBAD TRACT CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, RECORDED MAY 21, 2004, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 5, SAID CORNER BEING IN THE SOUTHERLY RIGHT-OF-WAY LINE OF GATEWAY ROAD, 72.00 FEET IN WIDTH AS SHOWN ON SAID MAP NO. 14800, SAID CORNER ALSO BEING THE BEGINNING OF 264.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 02°23'12" EAST; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 5 AND THE ARC OF SAID CURVE, 162.40 FEET THROUGH A CENTRAL ANGLE OF 35°14'41"; THENCE TANGENT FROM SAID CURVE, SOUTH 52°22'07" EAST 102.35 FEET TO THE BEGINNING OF A TANGENT 386.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE SOUTHEASTERLY AND NORTHEASTERLY ALONG THE ARC OF SAID CURVE, 465.00 FEET THROUGH A CENTRAL ANGLE OF 69°01'18"; THENCE TANGENT FROM SAID CURVE, NORTH 58°36'35" EAST 178.06 FEET TO THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE NORTHEASTERLY AND SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, 34.07 FEET THROUGH A CENTRAL ANGLE OF 78°04'47" TO A POINT IN THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF EL FUERTE STREET, 89.00 FEET IN WIDTH AS SHOWN ON SAID MAP NO. 14800, SAID POINT ALSO BEING THE BEGINNING OF A 717.00 FOOT RADIUS, REVERSE CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS SOUTH 46°41'22" WEST; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY RIGHT-OF-WAY LINE AND THE NORTHEASTERLY LINE OF SAID LOT 5, 427.10 FEET THROUGH A CENTRAL ANGLE OF 34°07'46"; THENCE TANGENT FROM SAID CURVE SOUTH 77°26'24" EAST 177.68 FEET TO THE BEGINNING OF A TANGENT, 25.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE, SOUTHEASTERLY, AND SOUTHERLY, 42.46 FEET THROUGH A CENTRAL ANGLE OF 97°18'54" TO A POINT IN THE NORTHWESTERLY RIGHT-OF-WAY LINE OF BRESSI RANCH WAY WITH A VARIABLE WIDTH RIGHT-OF-WAY AS SHOWN ON SAID MAP NO. 14800, SAID RIGHT-OF-WAY ALSO BEING THE SOUTHERLY LINE OF SAID LOT 5; THENCE SOUTHEASTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 5, SOUTH 19°52'30" WEST 180.05 FEET TO THE BEGINNING OF A TANGENT 270.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY, 332.89 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 70°38'27"; THENCE TANGENT FROM SAID CURVE NORTH 89°29'03" WEST 102.05 FEET TO THE BEGINNING OF A TANGENT 330.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, 296.48 FEET THROUGH A CENTRAL ANGLE OF 51°28'35"; THENCE LEAVING THE SOUTHERLY LINE OF SAID LOT 5, NORTH 50°03'56" WEST 61.43 FEET; THENCE NORTH 03°07'33" WEST 89.18 FEET; THENCE SOUTH 86°52'27" WEST 165.00 FEET; THENCE NORTH 03°07'33" WEST 31.00 FEET TO A POINT ON THE LINE COMMON TO SAID LOT 4 AND 5; THENCE WESTERLY ALONG SAID COMMON LINE, SOUTH 86°52'27" WEST 118.90 FEET TO A CORNER COMMON TO SAID LOTS 4 AND 5; THENCE ALONG THE WESTERLY LINE OF SAID LOT 5, NORTH 03°07'33" WEST 196.97 FEET TO THE NORTHERLY RIGHT-OF-WAY OF TOWN GARDEN ROAD AS DEDICATED PER DOCUMENT RECORDED MARCH 26, 2007 AS INSTRUMENT NO. 2007-0200097, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE WESTERLY ALONG SAID RIGHTOF-WAY, SOUTH 86°52'54" WEST 75.37 FEET TO THE BEGINNING OF A NON-TANGENT, 60.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 54°38'59" EAST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, 32.02 FEET THROUGH A CENTRAL ANGLE OF 30°34'23" TO THE BEGINNING OF A NON-TANGENT, 10.00 FOOT RADIUS, REVERSE CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS SOUTH 24°05'23" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 9.05 FEET THROUGH A CENTRAL ANGLE OF 51°49'27"; THENCE NON-TANGENT FROM SAID CURVE, SOUTH 86°52'27" WEST 44.36 FEET TO THE BEGINNING OF A NON-TANGENT 10.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID CURVE BEARS SOUTH 82°09'57" EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE 9.05 FEET THROUGH A CENTRAL ANGLE OF 51°49'27" TO THE BEGINNING OF A NON-TANGENT 60.00 FOOT RADIUS, REVERSE CURVE CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 30°19'43" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE 34.34 FEET THROUGH A CENTRAL ANGLE OF 32°47'20"; THENCE NON-TANGENT FROM SAID CURVE, AND ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TOWN GARDEN ROAD AND THE SOUTHERLY LINE OF SAID LOT 5, SOUTH 86°52'54" WEST 134.05 FEET TO A COMMON CORNER TO SAID LOT 5 AND LOT 1, AS SHOWN ON SAID MAP NO. 14800; THENCE LEAVING SAID NORTHERLY RIGHT-OF-WAY LINE AND ALONG THE WESTERLY LINE OF SAID LOT 5, NORTH 03°07'27" WEST 252.53 FEET; THENCE NORTH 67°51'19" WEST 48.65 FEET; THENCE NORTH 03°07'13" WEST 208.89 FEET TO THE POINT OF BEGINNING. SAID LAND BEING DESCRIBED AS PARCEL A IN THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED AUGUST 24, 2007 AS INSTRUMENT NO. 2007-0563780 OF OFFICIAL RECORDS. EXCEPTING THEREFROM: A. ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOW, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT OF WHIPSTOCK OR DIRECTIONALLY DRILL AND DRILL MINE FROM LANDS OTHER THAN THE LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH OR ENTER UPON THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND. AS RESERVED IN THE DEED RECORDED MAY 28, 2004 AS INSTRUMENT NO. 2004-0495514 OF OFFICIAL RECORDS. B. EXCEPT THEREFROM, ALL UNDERGROUND WATER LYING BENEATH SAID LAND, BUT WITHOUT THE RIGHT OF ENTRY TO THE SURFACE THEREOF FOR THE PURPOSE OF PROCURING WATER, AS RESERVED UPON THE MAP OF SAID LAND. (AFFECTS PARCEL 5) PARCEL B: AN EXCLUSIVE EASEMENT FOR THE PURPOSES OF INSTALLING, MAINTAINING, REPAIRING, ALTERING AND/OR REPLACING A SIGN AND ASSOCIATED LANDSCAPING TOGETHER WITH A NON- EXCLUSIVE EASEMENT TO INSTALL, MAINTAIN, REPAIR, ALTER, AND REPLACE, AS NECESSARY, UNDERGROUND ELECTRICAL UTILITIES NECESSARY TO PROVIDE POWER TO THE SIGN OVER A PORTION OF LOT 29 OF CARLSBAD TRACT CT 02-15 BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14960 AS CONTAINED IN THE DOCUMENT ENTITLED "SIGN EASEMENT AGREEMENT" RECORDED JUNE 28, 2007 AS INSTRUMENT NO. 2007-0434916 OF OFFICIAL RECORDS.