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HomeMy WebLinkAboutMS 13-06; Zephyr Custom Homes II LLC; 2014-0315574; Permanent Stormwater AgreementRECORDING REQUESTED BY: City of Carlsbad Development Services Department WHEN RECORDED MAIL TO: City Clerk Cityof Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOCtt 2014-0315574 lllllllllllllllllllllllllllllllllllllllllllllllllllllll JUL 25, 2014 1:45 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dionenburg, Jr., COUNTY RECORDER FEES: 39.00 PAGES: 9 SPACE ABOVE THIS UNE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 2Q5-080-02 PROJECT ID. MS 13-06 PERMANENT STORMWATER QUAUTY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: Ostom H Zephyr C OWNER NAME: company omes II, LLC, a Delaware limited liability PROJECT NAME: 1811 Oak Avenue RESOLUTION NUMBER: PC Res No.: MS 13-06, Approval Date: 1/23/14 CONDITION NUMBER: 31 DRAWING NUMBER: DWG 481-3A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: SWMP 14-06 This Agreement is made and entered into by and between the City of Carlsbad, Califomia, a Municipal Corporation of the State of Califomia, hereinafter refenred to as "City"; and the Property Owner, its successors and assigns, hereinafter refen'ed to as "Owner". The temn "successors and _-a5.signs" 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 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 Califomia Regional Water Quality Control Board-San Diego Region Q:\CED\LnSav\PR0JECTSW8\MS 13\MS 13-06 O* Avwwe - RIcMBonda and AvMmanlriPERMWENT STORMWATER QUALnY BMP MAimENANCE AGREEMENT (DWG 481-3A).itoe 1 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, 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 fSWMP) 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 Owner, its successors and assigns, including any property owners association, in perpetuity, and Q:\CED\LandDev\PROJEeTS\MS\MS 13\MS 13-06 Oak Avenue - Rick\Bonds and Agreements\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A),doc 2 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 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) 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 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. 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. Q:\CED\LandDev\PROJECTS\MS\MS 13\MS 13-06 Oak Avenue - RicWBonds and Agreements\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A),doc 3 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 Q \CED\LandDev\PROJECTS\MS\MS 13\MS 13-06 Oak Avenue - RicWBonds and Agreemenls\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A),doc 4 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 pnvately-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 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 Owner shall be addressed as follows: Notices to the Owner shall be delivered to the following: Zephyr Custom Homes II, LLC 700 2"'* Street Encinitas, CA 92024: Telephone No.: (858) 705-0242 Facsimile No.: E-mail Address: 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 Q:\CED\LandDev\PROJECTS\MS\MS 13\MS 13-06 Oak Avenue - RicWBonds and Agreements\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A).doc 5 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 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 ansing 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 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 all other provisions shall remain in full force and effect. /// /// /// /// /// /// /// /// Q \CED\LandDev\PROJECTS\MS\MS 13\MS 13-06 Oak Avenue - RicWBonds and Agreements\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A).doc 6 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): Zephyr Custom Homes II, LLC, a Delaware limited liability company By: Zephyr Partners - RE, LLC, a California limited liability company Its: Manager By: (Name of Owner) (sign here) Brad Termini CITY OF CARLSBAD, a municipal corporation of the State of California By / Citv Enair •VAN PESKI, P.E. City Engineer ^/^^^^ Q Ottl^DetT (pnnt name here) Manager, Zephyr Partners - RE, LLC, a California limited liability company (title and organization of signatory) (Proper notanal acknowledgment of execution by OWNER 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: CELIA BREWER City Attorney RONKEMP \ Assistant City Attorney Q;\CED\LandDev\PROJECTS\MS\MS 13\MS 13-06 Oak Avenue - RicWBonds and Agreements\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 481-3A),doc 7 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of Sav\ 6>\^<^r) On "7 l^/l'-i before me, (2ereli(H PevV\ aV^A^-T, Sj Q-toivy PuUir (Here insert name and titfe of the officer) ' personally appeared ^ CtS6V\ 6"g/<j«^K'4" who proved to me on the basis of satisfactory evidence to be the person(8^whose name(8^is/ape^subscribed to the within instrument and acknowledged to me that he/sjje/they executed the same in his/hef/tb^ir authorized capacity(i^s), and that by his/her/tberr signature(8)^on the instrument the person(s)ror the entity upon behalf of which the person(8^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public (Notary Seal) CEQELIA FERNANDEZ dofflmiMkm # 199e3SS Notary PubNc-CaHAmiii San IM9» County ^ MyComm.E«.i^n^y2piJ 1 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attacheS documen/continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-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 must 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). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same datc the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/thoy, is /are) or circling the correct forms. Failure to correctly indicate this mformation may lead to rejection of document recordmg. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. 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 vl2.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California of ?W~^ O\0 County 3-} On -C^^ Q^,^0\^ before me, /VrxOACW L . VAAWf. nrAafM ^—5^;^ —^ p. \ Here insert Name and Title W the Officer f \ \ personally appeared V)f oA) V H Name(s) of Signer(s) AMANDA L. MILLER Commitiiofl # 202MS4 Notary PuMic-CaWomia San Di^ County ^ 1 who 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 in his/her/their authorized capacity(ies), and that by his/herAheir signature(s) 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 hand and official seal. Place Notary Seal Above Signatures, OPTIONAL ! Ilgnalure of Notary Public Z-Though the infonnation beiow is not required by law, It may prove valuable to persons relymg 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: Capac[ty(ies) Claimed by Slgner(s) Signer's Name:. • Individual • Corporate Officer —Title(s): • Partner — • Limited • General • Attorney in Fact O Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Assodatkxi'9350 De Soto Ave., P.O. Box 2402 •Chatsworth, OA 91313-2402 •www.NationalNotary.otg ltem#5907 Reorder: Call Toll-Frse 1-800-876-6827 Page 9 of 9 01/25/13 Exhibit A: Legal Description of 1811 Oak Avenue THAT PORTION OF LOTS 32 AND 34 OF PATTERSON'S ADDITION TO CARLSBAD AND THAT PORTION OF CANYON STREET, CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, SEMPTEMBER 30, 1939, TOGETHER WITH THE SOUTHEASTERLY 10 FEET OF OAK AVENUE ADJOINING LOT 32 ON THE NORTHWEST AS CLOSED TO PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, SEMPTERMBER 30, 1939, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 565, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON SEPTEMBER 22, 1888, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF CARLSBAD TRACT NO. 74-8 ACCORDING TO MAP THEREOF NO. 8072 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 14, 1975, SUCH POINT BEING IN THE NORTHWESTERLY LINE OF SAID SOUTHEASTERLY 10 FEET OF OAK AVENUE; THENCE ALONG SAID NORTHWESTERLY LINE, NORTH 55˚28’04” EAST 97.08 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHWESTERLY LINE, SOUTH 34˚38’52” EAST 160.23 FEET; THENCE NORTH 55˚28’04” EAST 300.53 FEET TO A POINT IN SOUTHWESTERLY LINE OF CANYON STREET; THENCE, ALONG SAID SOUTHWESTERLY LINE, NORTH 61˚34’11” WEST 163.76 FEET, NORTH 19˚43’15” WEST 14.86 FEET TO A POINT IN THE NORTHWESTERLY LINE OF THE SOUTHEASTERLY 10 FEET OF OAK AVENUE; THENCE, ALONG SAID NORTHWESTERLY LINE SOUTH 55˚28’04” WEST 230.21 FEET TO THE TRUE POINT OF BEGINNING. SAID LAND IS PURSUANT TO THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED ON JULY5, 1983 AS INSTRUMENT NO. 83-227527, OF OFFICIAL RECORDS.