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HomeMy WebLinkAboutCT 13-01; KLC BV Carlsbad LLC; 2014-0077344; Permanent Stormwater AgreementREGORDING REQUESTED BY; Citv of Carlsbad i . • WHEN RECORDED IVIAILTO: City Clerk City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad.CA 92008 DOCtt 2014-0077344 lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll^ FEB 26, 2014 9:50 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 45.00 PAGES: 11 11 SPACE ABOVE THIS UNE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. APN: 156-200-15; 156-20001; 156-200-02 PROJECTID. Q-p^3., •01 PFRMANFNT STORMWATER Q"AI ITV RFST MANAGEIVIENT PRACTICE MAINTENANCE ~~ ~ AGREEMENT DATE OF AGREEMENT: fefcrUiMTU |^. s6ad, LLC, ~ •" KLC BV Carlsbad, LLC, a California Limited Liability OWNER NAME: Company PROJECT NAME: Buena Vista 11 RESOLUTION NUMBER: PC RES No. 7006 CONDITION NUMBER: 34 DRAWING NUMBER: DWG 479-6A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER; _13;13_ This Agreement is made and entered into by and between the City of Carlsbad, Califomia, 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 particuiady 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 Page 1 of 9 01/25/13 Order No. ORDER NO. R9-2007-01/NPDES NO, CAS0108758, as promulgated within the City of 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 ofthe residents of Carlsbad, Califomia, 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 ofthe 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 NOW, THEREFORE, in consideration of the approval of this project, the foregoing Page 2 of 9 01/25/13 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) shali 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 ofthe 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 tae 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 Page 3 of 9 oi'25/i3 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 actlon to maintain the permanent BMP(s) In good working condition acceptable to the City, the City may enter upon the Property and take M<^v9.r steos necessarv 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 legal remedies avaiiabte to the City as a result of Owner's failure to maintain the permanent BMP(s). Page 4 of 9 01/25/13 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 dellve,, 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, retum 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: KLC BV Carlsbad, LLC 101 S Kraemer Blvd., Suite 136 Placentia, CA 92870 Attention: Brett S, Albrecht Telephone No.: (714) 528-9864 Facsimile No.: none E-mail Address: none 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 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 any permanent post-construction BMP's on the Property and for any Page 5 of 9 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 shal! 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 ofthe 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, Invalidation of any one of the provisions of this Agreement shall in no way effect any other provisions and ail other provisions shall remain in full force and effect, /// /// /// /// /// /// /// /// Page 6 of 9 oi'25/13 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): , . ^ KLC BV Carlsbad, LLC, a California Limited Liability Company By: FKC, LLC, a California Limited Liability Company, its Manager CITY OF CARLSBAD, a municipal corporation of the State of California (sign I Brett S. Albrecht (print name here) Authorized Person, FKC, LLC, a California Limited Liability Company By: (title and organization of signatory) (sign here) , K. VAN PESKI, P.E. City Engineer (print name here) (title and organization of signatory) (Proper notarial acknowledgment of execution by OWNER must be attached) /rh.irman nf the Board President or any Vice-President and secretary, any assistant secretary, the Chief empowering lhat officer to bind the corporation.) APPROVED AS TO FORM: CELIA BREWER City Attorney By; Ml RON KEMP Assistant City Attorney Page 7 of 9 01/25/13 PRELIMINARY REPORT Fidelity National Title Company Your Reference: BUENA VISTA II OrderNo,: 996-2303fi<i30-A-EHJ. LEGAL DESCRIPTION EXFIIBIT "A" Ttm LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: THAT PORTION OF TRACT 121 OF CARLSB^VD LANDS, IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1661. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 1,1915, DESCRIBED AS FOLLOWS; BEGINNING AT A POINT IN THE CENTERLINE OF VALLEY STREET,- DISTANT THEREON NORTH 34" 33' WEST 531.19 FEET FROM THE POINT OF INTERSECTION OF SAID CENTERLINE OF VALLEY STREET AND THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAID TRACT 121, SAID POINT BEING THE SOUTHEASTERLY CORNER OP LAND CONVEYED TO JOHN J. MERRITT AND WIFE BY DEED RECORDED IN BOOK 339, PAGE 456, OF OFFICIAL RECORDS; THENCE ALONG SOUTHEASTERLY LINE OF SAID MERRITT L/VND, SOUTH 55° 27' WEST 193.4 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 23" 04' WEST 227.6 FEET TO THE NORTH BOUNDARY LINE OF CARLSBAD LANDS; THENCE ALONG SAID LAST MENTIONED LINE NORTH 89' 05' WEST, A DISTANCE OF 324.08 FEET MORE OR LESS, TO THE NORTHEASTERLY CORNER OF THE LAND CONVEYED BY SOUTH COAST LAND COMPANY, A CORPORATION, TO OCEANSIDE MUTUAL WATER COMPANY, A CORPORATION, BY DEED DATED AUGUST 29,1922, AND RECORDED IN BOOK 899. PAGE 288 OF DEEDS; THENCE SOUTH 23= 04' EAST ALONG THE EASTEIiLY LINE OF THE "LAND CONVEYED TO SAID OCEANSIDE MUTUAL WATER COMPANY, A DISl^CE OF 434.58 FEET TO A POINT; THENCE NORTH 55" 27' EAST A DISTANCE OF 298.6 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGINNING. APN; 156-200-15-00 PARCEL 2: THAT PORTION OF TRACT 121 OF CARLSBAD LANDS, ACCORDING TO MAP THEREOF NO. 1661, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 1,1915, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE CENTERLINE OF VALLEY STREET, AS SHOWN ON SAID MAP DISTANT THEREON NORTH 34=- 33' WEST, 531.19 FEET FROM THE POINT OF INTERSECTION OF SAID CENTER LINE OF VALLEY STREET, AND THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAID TRACT 121, SAID POINT BEING THE SOUTHEASTERLY CORNER OF LAND CONVEYED TO JOHN J. MERRITT AND WIFE, BY DEED RECORDED IN BOOK 339, PAGE 456, OFFICIAL RECORDS; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID MERRITT LAND, SOUTH 55" 27' WEST, 193.4 FEET; THENCE NORTH 23° 04' WEST, 227.6 FEET TO THE NORTH BOUNDARY LINE OF SAID CARLSBAD LANDS; THENCE SOUTH 89° 05' EAST, ALONG THE SAID NORTHERLY LINE 173.8 FEET TO THE CENTERLINE OF SAID VALLEY STREET; THENCE SOUTH 34" S3' EAST, ALONG SAID CENTERLINE 137.0 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF A LINE THAT BEGINS AT A POINT ON THE EASTERLY LINE OF THE ABOVl, DESCRIBED LAND AT A POINT NORTH 34" 33' WEST, 58.5 FEET FROM THE SOUTHEASTERLY CORNER THEREOF AND RUNS WESTERLY TO A POINT ON THE WESTERLY LINE OF SAID LAND THAT IS NORTH 23" 04' WEST, 113.8 FEET FROM THE SOUTHWESTERLY CORNER THEREOF. APN; 156-200-01-00 CLTA Preliminary Report Form - Modified (11/17/06) Page 3 Fidelity National title Company EXHIBIT A (Continued) . OrderNo.; 996-23036630-A-EHl Your Reference: BUENA VISTA U PARCEL 3: FOLLOWS: BEGINNING AT A --JO^^-^™ SOUTHEASTERLY U^^, iS^i^m^^^KJ^^ LAND C0NVT5YED TO JOHN J. ^I^RRITT AND WItL, MERRITT LAND, SOUTH OFOOALRECQEDSiTHENCE ALONG THE SOUT^^^^^^ BOUNDARY LINE 55» 27' >VEST, 193.4 ™ ™EN(^^^^^^ ^SsT loNG ?E\T~cr^^^^^ ''' ''' CENTERLINE 137.0 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION L^NG NOR^^^^^^ WESTERLY LINE OF SAID LAND THAT IS NUKitt i-^ SOUTHWESTERLY CORNER THEREOF. APN: 156-200-02-00 Page 4 CLTA Preliminary Report Form - Modified (11/17/06) CALIFORNIA AUdPHSSSI^S^^^^ State of California County of iilkl'4 On personally appeared lamola) ol Slgfv8t(3) r^S^ AMY RASn^LA L COMM #1940247 ^ NOTARY PUeUC-CAUFOWHA jj ORANGE OXWTY -i CommlsstonExplresJuj^^ Who proved to me on the basis of satisfactory evidence to be the personM whose namefi?) is/are subscribed to the S^tS instrument and acknowied^d Jo me hat rS/tK executed the same In hlsMl^r authonzed c^pSS. and that by his/^Xr/t^^r signature^ on he Smment he personi^, or the entity upon behalf of Sch the persoV^^^^' ^^^'^'^^ the instrumenL I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my band and official seal. PlaoB Noiary Seal Above Signature. OPTIONAL Slgwiura ol Nolncy Public Description of Attached Document Title or Type of Document. _ , • " Document Date: _ —— ~ " .Number ol Pages;. Signei't'S) Other Than Named Above: — Capacity(ies) Claimed by Signer(s) Signer's Name: „_ -— • Individual n Corporate Officer—Title(s): _ • Partner-• Limited • Qeneral • Attorney in Fact • Trustee • Guardian or Conservator 11 Other:. — —- Top of Ihumb heie Signer Is Representing;. Signer's Name;_, —— • individual • Corporate Officer — Titi9(s): • Partner - • Limited • General • Attorney In Fact • Trustee • Guardian or Conservator • Other: - Top of miimb tiete Signer Is Representing:. ©2007 NallonQl Notaiy AssQcfWlon • 93S0 De ^aAva,F'O.Box2.102.ChatMWlh,CA 91313-2402 Page 9 of 9 01/25/13 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of St (P-^n N^^A On 2-/ l'^ /iM before me, C^CeWa. F nci<l7\ <^-^Z j cApi>x/^ P^laiCc^ (Here insert name and title of the officer) personally appeared (r (tf i/^ \<1 - V ^i/l P^gS )C I • • , who proved to me on the basis of satisfactory evidence to be the person(s3^ whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sfec/they executed the same in his/ber/thetr authorized capacity(i;gs), and that by his/her/tbeir signatureCs) on the instrument the person^e), 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. -t^^^^-^^ X ^ Signature of Notary Public (Notary Seal) CECELIA FERNANDEZ Commission # 1996355 Notary PuUic • California San Oiego County ^ My Comm. Expires iict 30.20161 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Titleor description of attached document) (Title or description of attached document continued) Numtier of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form musl be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). 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If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • indicate title or type of attached document, number of pages and date. • indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasses.com