HomeMy WebLinkAboutSDP 01-01B; City of Carlsbad; 2007-0387633; Permanent Stormwater AgreementRECORDING REQUESTED BY :
City of Carlsbad
Development Services Department
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, CA. 92008
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DOC# 2007-0387633
JUN 08, 2007 9:30 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G R E G 0 FlY J. S MIT H. CO Ll N T Y R E CO Fl D E R
FEES: 31.00
PAGES: 3
SPACE ABOVE T
ASSESSOR'S PARCEL NO. 212-040-25
PROJECT NO. SDP 01 -01B
PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE
AGREEMENT
DATE OF AGREEMENT: N\QU 9 ZOO7
OWNER NAME:
PROJECT NAME:
RESOLUTION NUMBER:
CONDITION NUMBER
DRAWING NUMBER:
Ascent-Biltmore Carlsbad, LLC
Biltmore - 24-hr Fitness
PC Resolution 5881
51
DWG 432-2B
STORM WATER MANAGEMENT PLAN (SWMP) NUMBER:SWMP 07-03
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
1 Rev.4/5/07
City 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
Rev.4/5/07
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.
Rev.4/5/07
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.
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,
4 Rev.4/5/07
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 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.
Rev.4/5/07
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.
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:
Ascent-Biltmore Carlsbad, LLC, a Delaware
limited liability company
By: Biltmore-LGE Carlsbad, LLC, an Arizona
limited liability company, as Biltmore
Member/Managing Member
By: Biltmore Holdings, LLC, an
Arizona limited liability company,
as its managing member
(Name of Owner)
By:
c j(«1gn here) (
Richard Lund
(print name here)
Manager
CITY OF CARLSBAD, a municipal corporation of
the State of California
ROBERT T. JOHNSON, JR., P.E.
Acting City Engineer
By:• k/<.*~s ~^p&**.
David A. Mauser, Deputy City Engineer
RCE 33081 Exp. 06/30/2008
(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:
Deputy City Attorney
Rev.4/5/07
State of California )
)
County of San Diego )
On May 18, 2007, before me, Belinda R. Guzman, Notary Public, personally appeared
David Mauser personally known me to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal
Signature of Notary
BELINDA R.GUZMAN
Commission * 1565777
Notary Public - CaWomta
San Diego County
My Comm. Expires Mar 31.2009
(This area for
official notary seal)
State of
County of
On N\ftU*3 2<X>7 before me,
(Date) (Name, Title of Officer)
personally appeared
(Name[s] of Signer[s])
personally known to me - OR- (or 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/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal
KathtrmtMwhw
Notary Public-Arizona
Martcop* County
My Commission Expires
Juiw16,2010
.
Signature of Notary
(This area for
official notary seal)
Exhibit 'A'
Legal Description
All of Parcel 1 of Parcel Map No. 20219, in the City of Carlsbad,
County of San Diego, State of California, as file no. 2007-0158003
recorded on March 7, 2007.