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HomeMy WebLinkAboutCD 2021-0025; BA Leasing BSC; 2022-0382863; 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 DOC# 2022-0382863 I 1111111111111111111111111111111 ll\ll lllll lllll 11111111111111111111111 Sep 29, 2022 02:54 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $47.00 (SB2 Atkins: $0.00) PAGES: 12 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 212-130-44 PROJECT ID. CD2021-0025 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: ------------------------- OWNER NAME: BA Leasing BSC, a Delaware limited liability company PROJECT NAME: Thermofisher Gold Rush 2 RESOLUTION NUMBER: _P_C_R_e_s_N_o._: _N_/_A __ A__._p__,_p_ro_v_a_l _D_at_e_: _________ _ CONDITION NUMBER: N/A ------------------------- DRAWING NUMBER: EAGREE2022-0003 ------------------------- This Agreement (the "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 BA Leasing BSC, LLC, a Delaware limited liability company, the property owner, and 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 the fee simple owner of the property more particularly described in Exhibit A, hereinafter referred to as "the Property"; and WHEREAS, pursuant to that certain Lease, Deed of Trust and Security Agreement dated as Q.ICEO\LandOev\PROJECTS\COICO 20211C02021-00025 L~e Technologies Master Plan -R1ck\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025 doc of December 31, 2015, between Owner and Thermo Fisher Scientific Inc., a Delaware corporation ("Thermo"), as evidenced by that certain Memorandum of Lease, Deed of Trust and Security Agreement, dated as of December 31, 2015, among Owner, Thermo and Chicago Title Company, and recorded in the county recorder's office of the County of San Diego, California as Document Number 2016-0001687, Owner has leased the Property to Thermo; and WHEREAS, Thermo, as lessee, is proceeding to develop 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. R9-2007-01/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 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, Thermo, on behalf of 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 Q:ICEOILandDev\PROJECTS\CDICD 20211CD2021-00025 Ltte Technologies Master Plan· Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 2 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 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 Q:ICED\LandDevlPROJECTSICOICO 20211CD2021-00025 L~e Technologies Master Plan-Rici<IB & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 3 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 prescribed in the Storm Water BMP Plan or as may be prescribed 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 reasonable 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. O:ICEO\l.andDevlPROJECTSICDICD 20:21\CD2021-00025 L~e Technologies Master Plan· Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 4 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). 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 BM P'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: Name: Address: BA Leasing BSC, LLC c/o Thermo Fisher Scientific, Inc. Q:\CED\LandDev\PROJECTSICDICD 2021\CO2021-00025 Life Technologies Master Plan -Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 5 Address: Telephone No.: E-mail Address: With a copy to· Name- Address · Address · Telephone No · E-mail Address· 5781 Van Allen Way Carlsbad, ca 92008 760-290-9193 Geoff.fortuna@thermofisher.com BA Leasing BSC, LLC 3400 Pawtucket Ave., MIC Rl1-5530-01-19 Riverside RI 02915 401-854-5449 denise c simpson@bofa com Notices to City shall be delivered to the following: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Attention: City Engineer Telephone No.: (442) 339-2730 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 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 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 Q:ICED\LandDev\PROJECTSICDICD 2021\CD2021-00025 L~e Technologies Master P1an-Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 6 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, its successors and assigns. 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. 16. This Agreement may be amended, modified or supplemented only by a writing signed by all of the parties to this Agreement. 17. This Agreement shall be interpreted according to the laws of the State of California. Disputes and actions arising out of this Agreement shall be subject to jurisdictions in the Courts of San Diego County, California. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill O:ICED\LandDevlPROJECTSICDICD 20211CD2021-00025 L~e Technologies Master Plan • Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021.0025.doc 7 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): BA Leasing BSC, LLC a Delaware limited liability company By: By: (Name of Owner) 'dj 1Al , \1A (]~ .., r (sign here) Erin M. Parks (print name here) Vice President of BA Leasing BSC, LLC a Delaware limited liability company (title 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 By S. GEt.:.DERT, P.E. Engi eering Manager (Proper notarial 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: CINDIE MCMAHON City Attorney By ~Oy Assistant City Attorney Q:ICEDll.andDev\PROJECTSICOICD 2021ICD2021--00025 L~e Technologies Master Plan-Rick\B & AIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT cd2021-0025.doc 8 STATE OF MARYLAND COUNTY OF HARFORD ) ) ss ) On August 25, 2022, before me, Terri J. Preston, Notary Public, personally appeared Erin M. Parks, 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 PENAL TY OF PERJURY under the laws of the State of Maryland that the foregoing paragraph is true and correct. WITNESS my hand and official seal. TERRI J. PRESTON Notary Public Herford County Marytand MY commlHIOfl Expires F~b. 28, 2025 (Seal) SECRETARY'S CERTIFICATE OF BA LEASING BSC, LLC The undersigned, Christine Costamagna, the Secretary of BA LEASING BSC, LLC ("BSC"), a limited liability company formed and existing under and by virtue of the laws of the State of Delaware, does hereby certify that: I. The following is a true and correct portion of Section 3 .3 of the Amended and Restated Operating Instrument of BSC: 3.3 Execution of Instruments. All leases, agreements, indentures, mo1tgages, deeds, conveyances, transfers, contracts, checks, notes, drafts, lease documents, loan documents, letters of credit, master agreements, swap agreements, guarantees of signatures, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, attested, delivered or accepted on behalf of the Company by the Manager or by any of the officers of the Company or by such other persons as the Manager or any of the officers of the Company may direct. The provisions of this Section 3.3 are supplementary to any other provision of this Operating Instrument 2016. 2. The following persons have been duly elected or appointed to the offices of BSC as set forth opposite the names of such persons, and the s ignatures set forth opposite said names are a true and correct facsimile: Senior Vice President~ a~ Terri Preston Erin Parks '--l~ VVl \. 1c 'u.-,v--1 ; Vice President Denise Simpson Vice President IN WITNESS WHEREOF, l have hereto set my hand on this 24th day of August, 2022. Christine Costamagna Secretary CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 00 D J E [II 1:0 [) 0 &08CI C~MJ D §1:81 HE] D J El II a:J:008'1 o@:I I! 1:0 ):(I EIJI DltiC0:81WU gq rno:biifdl0@:011)08110 Bto@=OI &0:En01808Q8:I1 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 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. • AJl,.V WICKERHAA Notary Public • California ~ San Diego County ~ Commiuion # 2401138 y Comm. ExpirM ~r 18, 2026 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatu,~ Signature'& Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended doc t. Description of n..,...,..ned Document Title or Type of Documen . -:::...,.,-----------,,,~--------------- Document Date:--------~-.....:::----....,-,:::__ _______ Number of Pages: ____ _ Signer's Name: D Corporate Officer -Tit o Partner -o Limit o General D Individual o Attorney in Fact o Guardian or Conservator ©2019 National Notary Association Signer's Na o Corporate Offic Title(s): ______ _ o Partner -o Limited o Individual o Trustee D Other: Signer is Representing: _________ _ t' .• EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: PARCEL 1 OF PARCEL MAP NO. 17971, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 24, 1997 AS INSTRUMENT NO. 1997-0656621 OF OFFICIAL RECORDS. PARCEL 2: NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS, PARKING, AND CROSS DRAINAGE, AS CREATED BY THAT CERTAIN DOCUMENT ENTITLED RECIPROCAL PARKING AND ACCESS AGREEMENT, RECORDED JANUARY 21, 2010 AS INSTRUMENT NO. 2010-0029857 OF OFFICIAL RECORDS. THE AFOREMENTIONED DOCUMENT WAS AMENDED BY THAT CERTAIN DOCUMENT ENTITLED AMENDED AND RESTATED RECIPROCAL PARKING, ACCESS AND EASEMENT AGREEMENT, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED SEPTEMBER 21 , 2010 AS INSTRUMENT NO. 2010-0499652 OF OFFICIAL RECORDS. THE AFOREMENTIONED DOCUMENT WAS AMENDED BY THAT CERTAIN SECOND AMENDED AND RESTATED RECIPROCAL PARKING, ACCESS AND EASEMENT AGREEMENT DATED NOVEMBER 08, 2013, AND RECORDED ON NOVEMBER 12, 2013 AS INSTRUMENT NO. 2013-0668719 OF OFFICIAL RECORDS. - PARCEL 3: THAT PORTION OF VACATED VAN ALLEN WAY AS SHOWN ON PARCEL MAP NO. 17971 , IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON DECEMBER 24, 1997 AS INSTRUMENT NO. 1997-0656621 OF OFFICIAL RECORDS, VACATED PER RESOLUTION NO. 2013-157 OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, A CERTIFIED COPY OF WHICH WAS RECORDED NOVEMBER 08, 2013 AS INSTRUMENT NO. 2013-0666597 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL 2 OF SAID PARCEL MAP NO. 17971 , SAID POINT ALSO BEING A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF SAID VACATED VAN ALLEN WAY; THENCE ALONG SAID RIGHT OF WAY THE FOLLOWING COURSES: NORTH 63°44'17" EAST 92.74 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 90.00 FEET; THENCE ALONG SAID CURVE EASTERLY 29.42 FEET THROUGH A CENTRAL ANGLE OF 18°43'50"; THENCE TANGENT FROM SAID CURVE NORTH 45°00'27" EAST 50.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 60.00 FEET; THENCE ALONG SAID CURVE EASTERLY AND SOUTHEASTERLY 113.86 FEET THROUGH A CENTRAL ANGLE OF 108°43'48" TO THE INTERSECTION OF THE NORTHERLY RIGHT OF WAY LINE OF SAID VACATED VAN ALLEN WAY WITH THE EASTERLY PROLONGATION OF THE CENTERLINE OF SAID VACATED VAN ALLEN WAY; THENCE LEAVING SAID RIGHT OF WAY ALONG SAID CENTERLINE AND SAID PROLONGATION OF SAID CENTERLINE SOUTH 63°44'17" WEST 248.26 FEET; THENCE LEAVING SAID CENTERLINE NORTH 26°15'43" WEST 36.00 FEET TO THE POINT OF BEGINNING. APN: 212-130-44-00