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HomeMy WebLinkAboutCUP 02-32x1; Rekab Properties; 2009-0682214; Permanent Stormwater Agreement< iMI' 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 DOC# 2009-0682214 DEC 09, 2C09 2:48 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 39.00 PAGES: 11 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 210.090-24-00 PROJECT ID. cup 02-32X1 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: March 23, 2009 REKAB PROPERTIES, A CALIFORNIA LIMITED LESSEE NAME: PARTNERSHIP PROJECT NAME: BOB BAKER VEHICLE STORAGE LOT RESOLUTION NUMBER: 5445 / 6457 CONDITION NUMBER: 24e/5 DRAWING NUMBER: 414-2A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 09-02 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 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 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 of this agreement as a condition of approval of the project that secures the construction, inspection, operation and maintenance of en- sile 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 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 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 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. 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 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 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 section are in addition 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 Lesseeand 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 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 after mailing by United States Certified Mail, return receipt requested, postage prepaid, addressed as shown below. Notices required to be given to Lessee shall be addressed as follows: Notices to the Lessee shall be delivered to the following: Rekab Properties 591 Camino de la Reina, Suite 1100 San Diego, CA92108 Attention: Robert H. Baker Telephone No.: (619) 297-1001 Facsimile No.: (619)299-1049 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-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 Lessee, 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 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 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 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, acting by and through its City Manager, pursuant to Section 20.16.060 of the Carlsbad Municipal Code authorizing such execution, and by Lessee. LESSEE: REKAB PROPERTIES, A CALIFORNIA LIMITED PARTNERSHIP (Name of Lessee) By: REKAB FAMILY ENTERPRISES, LLC, GENERAL PARTNER Robert H. Baker (print name here) Manager (title and organization of signatory) it name 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. 06/30/2010 ^^ (title and organization of signatory) ^sx<^ (Proper notarial acknowledgment of execution 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 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 By:. \ Rev 08/09/2007 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego On 11/16/09 Date personally appeared before me,Lori Tibbett, Notary Public Here Insert Name and Title of the Officer Robert H. Baker Name(s) of Signer(s) lOWTlWETT Commiition # 1859021 Notary PubHc - California San Dtego County , Comm. Bu*w JiH25.2013j Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) \siexe subscribed to the within instrument and acknowledged to me that he/3he4taB$£ executed the same in his/te8BfttaEk authorized capacity(hes), and that by his/bscfttaHk signature^ on the instrument the person(s), or the entity upon behalf of which the person(s$ 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 my h Signature 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: Permanent Stormwater Quality Best Management Practice Manage- ment Agreement Document Date: none Number of Pages: 9 Signer(s) Other Than Named Above:None Capacity(ies) Claimed by Signer(s) Signer's Name: Robert H. Baker n individual D Corporate Officer — Title(s): D Partner — LJ Limited LJ General LJ Attorney in Fact LJ Trustee D Guardian or Conservator m Other: Manager Signer Is Representing:. HimHP-1 f MGHTTHUMBPRIN OF SIGNER To] U Individual LI Corporate Officer — Title(s): D Partner — LJ Limited D General D Attorney in Fact n Trustee LJ Guardian or Conserve! D Other:. Signer Is Representing: _ ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 AUGUST 18, 1998 J.N.: 90-1012 EXHIBIT "A" LEGAL DESCRIPTION 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 THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF PARCEL 2 OF PARCEL MAP NO. 10801, FILED IN THE OFFICE OF THE COUNTY RECORDER, DECEMBER 17, 1980, AS FILE NO. 80-424307, SAID POINT ALSO BEING THE SOUTHEAST CORNER OF PARCEL 2 OF CERTIFICATE OF COMPLIANCE DOCUMENT NO. 80- 261365 RECORDED AUGUST 15, 1980; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID PARCEL MAP 10801 SOUTH 61°24r41" WEST, 251.13 TO A POINT, SAID POINT BEING ON THE SOUTHEAST BOUNDARY OF DOCUMENT NO. 81-071069 RECORDED MARCH 9, 1981; SAID POINT ALSO BEING ON THE SOUTHEAST BOUNDARY OF SAID CERTIFICATE OF COMPLIANCE DOCUMENT NO. 80-261365; THENCE ALONG SAID BOUNDARY OF SAID DOCUMENT 81- 071069, SOUTH •67°29'31" WEST, 33.82 FEET TO A POINT, SAID POINT BEING THE CALCULATED CENTERLINE PER SAID DOCUMENT NO. 81-071069, SAID POINT ALSO BEING THE CENTERLINE OF RECORD OF SURVEY MAP NO. 13036 FILED IN THE OFFICE OF THE COUNTY RECORDER, JANUARY 31, 1991 AS FILE NO. 91-0845871 AND THE TRUE POINT OF BEGINNING; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID RECORD OF SURVEY MAP 13036 SOUTH 67°29'31" WEST, 257.45 FEET TO A POINT, SAID POINT BEING THE SOUTHWEST CORNER OF SAID CERTIFICATE OF COMPLIANCE DOCUMENT NO. 80-261365; THENCE ALONG THE WESTERLY BOUNDARY OF SAID CERTIFICATE OF COMPLIANCE DOCUMENT NO. 80-261365 NORTH 22°30'29" WEST, 540.00 FEET TO A POINT, SAID POINT BEING ON THE SOUTHERLY BOUNDARY OF DOCUMENT NO. 303348 RECORDED NOVEMBER 13, 1972; THENCE ALONG SAID BOUNDARY AND PARALLEL WITH CANNON ROAD NORTH 67°31'.40" EAST, 132.42 FEET TO THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE, CONCAVE TO THE SOUTHWEST, CENTER POINT TO SAID CURVE BEARS NORTH 67°31'40" EAST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE 95°39'40", AN ARC DISTANCE OF 41.74 FEET; THENCE CONTINUING ALONG THE BOUNDARY OF SAID DOCUMENT NO. 303348 NORTH 73°11'20" EAST 23.08 FEET TO A POINT ON THE CALCULATED CENTERLINE OF SAID DOCUMENT NO. 81-071069; THENCE ALONG THE CENTERLINE OF SAID DOCUMENT NO. 81-071069 SOUTH 22°28I20" EAST 133.58 FEET (SOUTH 22°28'06" EAST,133.58 FEET PER RECORD OF SURVEY MAP 1.3036); TO THE BEGINNING OF A TANGENT 835.00' FOOT RADIUS CURVE, CONCAVE TO THE EAST, CENTER POINT TO SAID CURVE BEARS SOUTH 50°18'11" WEST; THENCE SOUTHERLY ALONG SAID XXX CURVE THROUGH A CENTRAL ANGLE 17°13'29", AN ARC DISTANCE OF 251.02 FEET; THENCE CONTINUING ALONG CENTERLINE OF SAID DOCUMENT NO. 81-071069 SOUTH 39°41'49" EAST, 135.32 FEET (SOUTH 39°41'49" EAST 135.31 PER RECORD OF SURVEY MAP 13036) TO THE TRUE POINT OF BEGINNING. AREA = 106,945 SQ FT / 2.46 ACRES ^ F:\MSOFFICE\WINWORD\90-1012\Cannon.lgl XX CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of SAM On Date personally appeared before me, Tg^ A- ,Here Insert /Jame and Title of the Officer Name(s) of Signer(s) TERIE I. ROWLEY Commission # 1773534 Notary Public - California | San Weao County who proved to me on the basis of satisfactory evidence to be the person($ whose name(0 is/are' subscribed to the within instrument and acknowledged to me that he/she'/trW executed the same in his/h^r/tr^ir authorized capacity(ie/), and that by his/he^r/thefr signature^ on the instrument the personal, 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. Place Notary Seal Above WITNESS my hand and official seal. Signature. OPTIONAL - Signature ot Notary Public 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: VVWK_CAH Signer(s Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: I 1 Individual Jl Corporate Officer — Title(s): D Partner — D Limited C General L, Attorney in Fact T] Trustee L Guardian or Conservator i 1 Other: Signer Is Representing:. RIGHT THUMBPRIWT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — LJ Limited II General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 -Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827