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Home My WebLink AboutMS 13-07; Pivotal 650 California St., LLC; 2014-0200615; 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 DOCtt 2014-0200G15 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIH^ MAY 15, 2014 4:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Emest J. Dronenburg, Jr., COUNTY RECORDER FEES: 42.00 PAGES: 10 SPACE ABaVb I MIS LINt l-UK KtCUKUtK S USC ASSESSOR'S PARCEL NO. 213-261-01,02, 03, & 04 PROJECT ID. MS 13-07 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT OWNER NAME PROJECT NAME RESOLUTION NUMBER CONDITION NUMBER DRAWING NUMBER Pivotal 650 California St, LLC, an Arizona Limited Liability Company ViaSat Building 10 at Bressi Ranch PC RES No: 41, Approval Date: 1/15/14 41 DWG 480-2A STORM WATER MANAGEMENT PLAN (SWMP) NUMBER: 13-18 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, its successors and assigns, hereinafter referred to as "Owner". The term "successors and assigns" 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 California Regional Water Quality Control Board-San Diego Region Q:\CED\LandDev\PROJECTS\MS\MS 13\MS 13-07 Viasat Expansion - RicWB & A\PERMANENT STORHflWATER QUALITY BI^P I^AINTENANCE AGREEMENT (DWG 480-2A).doc Page lot 9 01/25/13 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 (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 NOW THEREFORE, in consideration of the approval of this project, the foregoing Q \CED\LandDev\PROj'ECTS\MS\MS 13\I^S 13-07 Viasat Expansion - Rick\B & WPERf^ANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 480-2A).doc Page 2 of 9 un/^s/ij 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 ofthe 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 ofthe 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. 6. Owner, its successors and assigns, hereby grant permission to the City, its authorized aqents and employees, to enter upon the Property and to inspect the permanent BMP(s) whenever QACED^LandDev^PROJECTS^MS^MS 13;MS 13-07 Viasat Expansion - R,cK\B S A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 480-2A).doc Page3of9 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 necessarv 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 ofthe 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 legal remedies available to the City as a result of Owner's failure to maintain the permanent BMP(s). Q ^CED^LandDev^PROJECTS^MS^MS 13^MS 13-07 Viasa. Expansion - R,cK^B & ^PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DW^ f^0-2A).doc Page 4 of 9 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. Unless othenwise 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: Pivotal 650 California St., LLC, an Arizona Limited Liability Company 2201 East Camelback Rd., Suite 650 Phoenix, AZ 85016 Attention: William S. Levine Telephone No.: (602)248-8181 E-mail Address: tony@levineinvestments.com Notices to City shall be delivered to the following: City of Cartsbad 1635 Faraday Avenue Cartsbad, 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 subsequently provided to the City pursuant to this provision, shall jointly be responsible for the Q:\CED\LandDev\PROJECTS\MS\MS 13\MS 13-07 Viasat Expansion - Rick\B & A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 480-2A).doo Page 5 of 9 01/26/13 operation and maintenance of any permanent post-construction BMP's on the Property and for any required annual venfication 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 ofthe 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. 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 13-07 Viasa. Expansion - R,cK\B 8. A^PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (°W<3^80-2A).doo Page 6 of 9 IN WITNESS WHEREOF, this Agreement is executed by the City of Cartsbad, acting by and through its City Manager, pursuant to Section 20.16.060 of the Cartsbad Municipal Code authonzing such execution, and by Owner. OWNER(S): Pivotal 650 California St, LLC, an Arizona Limited Liability Company By: Levine Investments Limited Partnership, an Arizona Limited Partnership, its Sole Member By: Keim Inc., an Arizona Corporation, its General Partner By: (Name of Owner) (sign here) William S. Levine (print name here) Chairman, Keim Inc., an Arizona Corporation (title and organization of signatory) By: (sign here) (print name here) CITY OF CARLSBAD, a municipal corporation of the State of California VAN PESKI, P.E. City Engineer (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 By: iON KEMP Assistant City Attorney Q:\CED\LandDev\PROJECTS\MS\MS 13\MS 13-07 Viasat Expansion - RicWB & A\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT (DWG 480-2A).doc Page 7 of 9 01/25/13 EXHIBIT A LOTS 10,11,12 AND 13 OF CARLSBAD TRACT CT 02-15 BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CAUFORNIA, ACCORDING TO MAP THEREOF NO. 14960, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 04, 2005. CALIFORNIA ALL-PURPOSEACKWKDJ^^ State of-fialitemia ^fJ^ County of P^^i^'c^ } On in^. lci<h before me, Here Insert Name and Title of tlie Ofncer personally appeared NaiTie(s) of Signer(s) .ClUSEAL WW,"^^ T'CSASTIUC ^!l I > ->tat9 of Arizona COUNT/ July 11,2015 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/her/their 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 CalifeFffl^tJi^t the foregoing paragraph is true and correct. (^^^ WITNESS my hand and official seal. Place Notary Seal Above Signature OPTIONAL signature of Notary Public Though the information below is not required by law, it may prove valuable to Pf'^^^^^^-^'yl^dZl^f, nougn ine^^^ ^^^^ ^^^^^ 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: Capaclty(ies) Claimed by Signer(s) Signer's Name: __ • Individuai • Corporate Officer —Title(s): — • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • other:. RIGHTTHUMBPRINT OF SIGNER Signer Is Representing:. Top of thumb here Signer's Name:__ . • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Signer Is Representing: Top of thumb here 52007Nat^a.NotaryAsso^a,ton.9360DeSo,o Ave.,P.O,Box2402.Chata.orth,CA 9131>2402.v,ww.NatK,oalNo,ary.org «em#5907 Reorder:Ca»T*F»e 1.8(X)^6-6827 Page 9 Of 9 oi'25/i3 GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of the Notary: Commission Nunnber: ^i//v Date Commission Expires: 7- ^ County Where Bond is Filed: Manufacturer or Vendor Number: hl{i\ (Located on both sides of the notary seal border) Signature: Citv of Cartsbad Place of Execution: Office of the Citv Clerk/Citv of Cartsbad Date: 5- ^^/^ Rec. Form #R10 (Rev.7/96)