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HomeMy WebLinkAboutCUP 190B; SIM USA Incorporated; 2007-0543853; Permanent Stormwater AgreementT? RECORDING REQUESTED BY CHICAGO TITLE 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# 2007-0543853 AUG 15.2007 8:00 AM 3515 OFFICIAL RECORDS SAN DIE GO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES. 34.00 PAGES' 10 SPACE ABOVE ASSESSOR'S PARCEL NO. MI m mm • BIM m mill • nil • nil • ||M ||||| | 2007-0543853 212-040-47-00 PROJECT NO. CUP190B PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: July 23,2007 OWNER NAME: SIM, USA Incorporated PROJECT NAME: SUDAN INTERIOR MISSION RESOLUTION NUMBER: PC RESO 6314 CONDITION NUMBER: 8 DRAWING NUMBER: 213-7 STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 07-10 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.4/17/07 3576 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.4/17/07 3577 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.4/17/07 3578 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.4/17/07 3579 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.4/17/07 3580 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: SIM, USA Incorporated (Nanrie of Owner) By: (sign here) George Salloum (print name here) CFO SIM USA, Inc. By: (title and organization of signatory) (sign here) Michael Dey (print name here) Stewardship director CITY OF CARLSBAD, a municipal corporation of the State of California ROBERT T. JOHNSON, JR., P.E. Acting City Engineer By: X0avid A. Hausen Deputy City Engineer RCE 33081 Exp. 06/30/2008 £*«» 44)14 (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 By: 'eputy City Attorney 6 OF 6 Rev.4/17/07 3581 CERTIFICATE OF ADOPTION OF CORPORATE RESOLUTION AUTHORIZING TRANSFER OF SECURITIES f Robert J. Blees, in my official capacity, hereby certify: that I am an officer, namely Secretary, of SIM USA, Incorporated, a corporation duly organized and existing under the laws of New Jersey; that at a meeting of the Board of Directors of this corporation, duly and regularly convened and held on the 13th day of November, 2001, at which a quorum for the transaction of business was present and acting throughout, the following resolution was duly and regularly adopted, and is still in full force and effect, and appears as follows hi the minutes of the meeting: Resolved, that any two of the following officers and employees of the Corporation to wit: President Vice President Stewardship Director Treasurer Controller Be and are hereby authorized to sell, assign, transfer, or dispose of any stock, bonds, Other securities or any other assets hereafter owned or held by the Corporation. I further certify that the foregoing resolution is not contrary to any provision in the Charter or by-laws of this corporation, that Stephen J. Strauss, Fred C. Ely now are President and Vice President respectively, and Michael B. Dey, George Salloum, and Ronald W. Muesing now are Stewardship Director, Treasurer, and Controller respectively, of this corporation, and that I have been duly authorized to make this certificate on behalf of this corporation. ^/f/7l)ereof, I hereunto set my hand and affix the seal of this corporation On this {Xfxi day of AW J* _ , , Secretary E GUARANTEE!: - \ Signature guaranteed - 3582 EXHIBIT 'A' PARCEL 1 ON EXHIBIT "A" ATTACHED TO THAT CERTIFICATE OF COMPLIANCE WITH CONDITIONS RECORDED APRIL 12, 1989 AS INSTRUMENT NO. 98-191109 RECORDS OF SAN DIEGO COUNTY.f 1 OF1 Rev.4/17/07 3583 GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE ILLEGIBLE PORTION OF THIS DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: RHONDA P JOHNS NOTARY PUBLIC MECILENBURG CO. N.C. COMMISSION EXPIRES 12-17-08 PLACE OF EXECUTION: IRVINE DATE: 8/14/07 SIGNATURE: ICAGO TITLE COMPANY INDIVIDUAL ACKNOWLEDGMENT 3584 State/Commonwealth of hlOfc County of /Ylf>f^L/e/l £& ss. On this the me. , ZLCO7 before Name of Notary Public Public, personally appeared (•y£&/24£' <->& S/* Year , the undersigned Notary LB.2>iName(s) of Signer(s) P^ personally known to me - OR - D 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 for the purposes therein stated. WITNESS my hand and official seal. Signature of Notary (Jrfblic _ RequijEd Information (Printed Name of Notary, Residence, etc.) Place Notary Seal and/or Any Stamp Above i OPTIONAL Although the information in this section 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:Number of Pages: Signer(s) Other Than Named Above: Right Thumbprint of Signer Top of thumb here © 2002 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item No. 5936 Reorder: Call Toll-Free 1-800 US NOTARY (1-800-876-6827)