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HomeMy WebLinkAboutRP 05-12A; City of Carlsbad; 2013-0746437; Permanent Stormwater Agreementi RECORDING REQUESTED BY: City of Carlsbad WHEN RECORDED MAILTO: City Clerk City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOCtt 2013-074G437 Iilllllil liiiiiiiiiiiiiiiiiiiii mill DEC 31, 2013 4:20 PM OFFICIAL RECORDS SAN DIE60 COUNTY RECORDER'S OFFICE ErnesU. Dronenburg, Jr., COUNTY RECORDER FEES: O.OG PAGES: 12 SPACE K ASSESSOR'S PARCEL NO. 210-010-43 PROJECTID. RP05.12A PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: t7<Ce^^be•^ 2 ^ 2ol3 LESSEE NAME: Poseidon Resources (Channelside) LP, a Delaware limited partnership PROJECT NAME RESOLUTION NUMBER CONDITION NUMBER DRAWING NUMBER Carlsbad Desalination Plant 6635 31 DWG 463-6D STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 12-22 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*' and Exhibit 'A-1*', 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. R9-2013-0001/NPDES NO. CAS0109266, as promulgated within the City of Rev 08/09/2007 Carlsbad Public Works Department, Storm Water Standards Manual, Latest 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 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 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 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 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 ofthe 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 Lessee 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. 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: Poseidon Resources (Channelside) LP 5780 Fleet St, Suite 140 Carlsbad, CA 92008 Notices to City shall be delivered to the following: City of Carlsbad 1635 FaradayAvenue 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 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. Rev 08/09/2007 13. The City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason ofthe 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 ofthis 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 ofthe 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 ofthe Carlsbad Municipal Code authorizing such execution, and by Lessee. LESSEE: Poseidon Resources (Channelside) LP, a Delaware limited partnership (Name of Lessee) By: (print name here) By: le and organization of signatory) (sign here) (print name here) (title and organization of signatory) CITY OF CARLSBAD, a municipal corporation of the State of California GLEN K. VAN PESKI, P.E. City Engineer By: /. 7/ M tt/t3>M RCE 41204 Exp. 03/31/2015 (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: CELIA BREWER City Attorney Deputy City Attorne Rev 06/09/2007 California All-Purpose Acknowledgment State of California County of L^n D/^O^ On n^Mb/r 2^20^3 before me, UJh^J^Uj fdllilSinj PMh personally appeared _ ime of Signer si) Naine of Signer Q) who proved to me on the basis of satisfactory evidence to be the person^©)-whose namefs) is/are-subscribed to the within instrument and acknowledged to me that he/ohc/thoy executed the same in his/hT/thoir authorized capacity(ie3), and that by his/hcr/thsir signaturefs)- on the instrument the person^, 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. TABITHA M. WHIPPLE i COMM. #1969747 z Notary Public • California g San Diego County Comm. Expires Feb.^ 17 2016 [ OPTIONAL INFORMATION Although Ihe informanon in this section is not required t)y law. il coukl pre this acknowledgment to an unauthonied document and may prove usefu Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of containing pages, and dated The signer(s) capacity or authority is/are as: • Individual(s) • Attorney-in-fact • Corporate Officer(s) • Guardian/Conservator • Partner - Limited/General • Trustee(s) • Other: representing: NameiS) of PersorMS) Entlty(ies) Ssgncr is Repreaenti vent fraudulent removal and roattadunent of I to persons retying on the attached document. Method of Signer Identification _ Proved to me on the basis of satisfactory evidence: 12 form(s) of identification • credible witness(es) Notarial event is detailed in notary joumal on: Page# Entry* Notary contact: other • Additional Signer Q Signer(s) Thumbprints(s) • 2010 Noterv Leamk^g Center - M Rights Reserved State of California County of CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On lt/rmh(E^\\0O\^ before me, iTcU\<l/XA |4^U0rgiJ Qo-Va^JUl PljLbWl. , (here insert name title ofthe officer) personally appeared K Vix/l'^ejSKi who proved to me on the basis of satisfactory evidence to be the person(^ whose name(^ is/ar|^ subscribed to the within instrument and acknowledged to me that he/sl^e/th^y executed the same in his/h^r/th/ir authorized capacity(i^s), and that by his/h^r/tl|4ir signature(^ on the instrument the person(^), or the entity upon behalf of which the person(j^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature JANEAN R. HAWNEY ( COMM. #1994825 z Notafy PuMic - Califomia g San Diego County t '^Comm.Expig^^l.a^^^ OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment ofthis acl<nowledgment to on unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose o'^^fi,£U<l^ fi^M f-^^W /^^/?/ A^r€£mtr^^/&anaL RP Of^ ' /DA containing pages, and dated /(Q^/y?.65<g- (3^0013 . The signer(s) capacity or authority is/are as: EH Individual(s) EH Attorney-in-Fact EH Corporate Officer(s) Title(s) EH Guardian/Conservator EH Partner-Linnited/General EH Trustee(s) • Other: representing: Name{s) of Person(s) or Entity{ies) Signer is Representinc dditional Information Method of Signer Identification Proved to me on the basis of satisfactory evidence: L-O form(s) of identification O credible witness(es) Notarial event is detailed in notary journal on: Page # Entry # Notary contact: Other I I Additional Signer(s) EH Signer(s)Thunnbprint(5) • |lN3t^9a31MON>l3ViN3WCiQ31MON><DViN3WOQ31MON>l3VlN3t^9031MON:il3VlN3/IDQ91MON>l3VlN3wgQ31MQN)<JViN3t^gQ31M © Copyright 2007-2012 Notary Rotary, Inc. PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Part Number 101772. Piease contact your Authorized Reseller to purchase copies ofthis form EXHIBIT 'A*' LEGAL DESCRIPTION FOR THE LEASED PREMISES THAT PORTION OF PARCEL 4 PER CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS DOCUMENT NO. 2001-0789068, AND AS SHOWN ON RECORD OF SURVEY NO. 17350, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST SOUTHEASTERLY CORNER OF THAT PORTION OF SAID PARCEL 4 LYING WESTERLY OF THE 100.00 FOOT WIDE RIGHT-OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING A POINT ON THE WESTERLY LINE OF SAID 100.00 FOOT WIDE RIGHT-OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD; THENCE ALONG SAID WESTERLY LINE, NORTH 22^30'13" WEST, 1319.08 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH 67°29'47" WEST, 58.72 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 67^31'21" WEST, 229.72 FEET; THENCE NORTH 40°03'53" WEST, 199.13 FEET; THENCE SOUTH 66°28'49" WEST, 45.93 FEET; THENCE NORTH 22°28'46" WEST, 587.13 FEET; THENCE NORTH 67°31'14" EAST, 338.82 FEET; THENCE SOUTH 22*37'35" EAST, 536.65 FEET; THENCE SOUTH 20°08' 20" EAST, 115.20 FEET; THENCE SOUTH 22°37' 35" EAST, 124.38 FEET TO THE TRUE POINT OF BEGINNING. ATTACHED HERETO IS A PLAT LABELED EXHIBIT ^A-1*' AND BY THIS REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID, BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, NAD-8 3, AND EPOCH 1991.35. SAID PARCEL OF LAND CONTAINS 5.703 ACRES, MORE OR LESS GARY L. m% DATE L.S. 7019 EXPIRATION DATE 6/30/2010 T:\SURVEY\2398\2009-O7-13 - Plats\Lcgals\E.>dh!bit A-l-reconfig-Pemianent Lease Area-revisBd2,doc LEGAL DESCRIPTION: A PORTION OF PARCEL 4 PER CERTfFICATE OF COMPUANCE RECORDED OCTOBER M 2001 AS DOCUMENT NO. 2001-0789068. AND AS SHOWN ON RECORD OF SURVEY NO. 17350. IN THE arr or CARLSBAD. COUNTY OF SAN DIEGO, STATE OF CAUFORNIA. ASSESSORS PARCEL NO: 210-010-45 BASIS OF BEARINGS: THE BASIS OF BEARINGS FOR THIS DRAWING IS THE HORIZONTAL CONTRa BASED ON THE CAUFORNIA COORDINATE SYSTEM ZONE 6. NAD 83. AS DETERMINED LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTRa POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271. LE N40'39'21''W LEGEND: OmiER: CABRILLO POWER I LLC 4600 CARLSBAD BOULEVARD CARLSBAD. CALIFORNIA 92008 PH(^E: (760) 268-4011 SURVEYOR OF WORK: PROJECT DESGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 PHONE: (619) 235-6471 GARYL HUS.-^LS 7019 REGISTRATiON EXPIRES 6/30/2010 INDICATES EXISTING PROPERTY LINE INDICATES POINT OF COMMENCEMENT INDICATES TRUE POINT OF BEGINNING INDICATES THE LEASED PREMISES AREA = 5.703 ACRES. MORE OR LESS H VfQNITY MAP NO SCALE AFHiCANT: POSEIDON RESOURCES 501 mST mADWAY SUITE 2020 SAN DIEGO. CALIFORNIA 92101 PREPARED BY: fVPOJFCr DESIGN CONSUL TANTS 701 B STREET SUITE 800 SAN DIEGO. CALIFORNIA 92101 THE LEASED PREMISES EXHIBIT •A-1*' SWEFT/ 0F2 APN. 210-010-43 r:\SURVEY\2398\2009-07-1J - Plats\PlatA1-reconfig-lje(^edPremisesShtOldwg SCALE 1" = 400' APPLICANT: POSEIDON RESOURCES 501 msrmAomr SUITE 2020 SAN DIEGO. CAUFORNIA 92101 PREPARED BY: PROJECT DESIGN CONSULTANTS 701 6 STREET SUITE 800 SAN DIEGO, CM.mmtA 92101 THE LEASED PREMISES EXHIBIT •A-1*' SMEET2 0F2 AP.N. 210-010-43 T: \SURVEY\2398\2(X)9-07-U - Pht3\PlatAt-rvcanfig-LeasedPremisesShtOZdwg