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HomeMy WebLinkAboutSDP 2022-0003; Fenton Ponto LLC; 2024-0093925; Maintenance 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# 2024-0093925 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Apr 16, 2024 10:58 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $41.00 (SB2 Atkins: $0.00) PAGES: 10 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. 214-160-25-00; 214-160-28-00; 214-171-11-00 PROJECT ID. SOP 2022-0003 PERMANENT STORMWATER QUALITY BEST MANAGEMENT PRACTICE MAINTENANCE AGREEMENT DATE OF AGREEMENT: _A~pr_il_l_0~, 2_0_2_4 ___________________ _ OWNER NAME: Fenton Ponto, LLC., a California limited liability company PROJECT NAME: FPC Residential --------------------------- RESOLUTION NUMBER: 7482 CONDITION NUMBER: 39 DRAWING NUMBER: DWG 543-6; 543-6A --------------------------- 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 Order No. ORDER NO. R9-2007-01/NPDES NO. CAS0108758, as promulgated within the City of Carlsbad Public Works Q:ICED\Admin\B&A\PROJECTSISDP 2022-0003; ROV\/2023-0397; GR2023-0029 -FPC Residential T.C\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc - 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 assignees 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 ofthe 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 owner's 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: Q\CED\Admin\B&A\DOCUMENTSIAGREEMENTS NEV\APERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc 2 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 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 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. Q:ICED\Admin\B&A\PROJECTS\SDP 2022-0003; RO\N2023-0397; GR2023-0029 -FPC Residential T.C\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc - 3 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 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. Q:\CED\Admin\B&AIPROJECTSISDP 2022-0003; ROV\/2023-0397; GR2023-0029 -FPC Residential T.CIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc - 4 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: Fenton Ponto, LLC. Address: 7577 Mission Valley Drive Address: San Diego, CA 92108 Telephone No.: 619-400-0120 E-mail Address: rwebb@hgfenton.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) 339-2750 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 ofthis section. Q:\CED\Admin\B&A\PROJECTSISDP 2022-0003; ROV\/2023-0397; GR2023-0029 -FPC Residential T.C\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc - 5 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 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Q:ICED\Admin\B&AIPROJECTSISDP 2022-0003; ROVV2023-0397; GR2023-0029 -FPC Residential T.C\PERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.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. FENTON PONTO, LLC., a California limited liability company By: By: By: H.G. FENTON PROPERTY COMPANY, a California corporation Its Sole Member (Name of Owner) Michael Neal (print name here) President and CEO H.G. Fenton Property Company (title and organization of signatory) sign here) David Gatzke (print name here) Vice President Development and Policy H.G. Fenton Property Company (title and organization of signatory) CITY OF CARLSBAD, a municipal corporation of the State of California (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~~ Senio ssistant City Attorney Q:ICED\Admin\B&AIPROJECTSISDP 2022-0003; ROV\/2023-0397; GR2023-0029 -FPC Residential T.CIPERMANENT STORMWATER QUALITY BMP MAINTENANCE AGREEMENT.doc - 7 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer corn pleting this certificate verifies only the identity of the individual who signed the document to whkh this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of s·a f\ 0 i GJV On 3 / io ) 2--L-\ } before me, --'-\L_ro_· _fit_~_o_S_~_,_-I _,_Y\.,_,c_D_tvt_vy-.,,.....___f t,Lb_)_i"l~ Date Here Insert Name and Title of the Officer personally appeared _t{\...__'--i _(Y>_Of_e--'-;_Y\_.fi_C1_l _O\_Yl----"-t/-----=-C)---'01~v_1--'-d_C=--'-'-(/,-+-=~-)c::'._,( __ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ls/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capaclty(les), and that by his/her/their slgnature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. ~············i 4 • •• , ' > KRISTA BOSSI : ; Notary Public • CaHfornia i .. : San Diego County I i " Commission# 2476784 - My Comm. Expires Dec 19, 2027 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. Signature~ Signature of Notary Pubffc OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: _________________________ _ DocumentDate: ____________________ Numberof Pages: ___ _ Slgner(s) Other Than Named Above: _____________________ _ Capaclty(les) Claimed by Slgner(s) Signer's Name: ___________ _ Signer's Name: ___________ _ □ Corporate Officer -Tltle(s): ______ _ □ Corporate Officer -Tltle(s): ______ _ a Partner -a Limited □ General a Partner -a Limited □ General a Individual a Attorney In Fact □ Individual □ Attorney In Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer Is Representing: ________ _ Signer Is Representing: ________ _ ©2019 National Notary Association Page 8 of 8 01/25/13 ACKNOWLEDGMENT 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. State of California County of SAN DIEGO on April 10, 2024 before me, AMBER DAN, NOTARY PUBLIC (insert name and title of the officer) personally appeared _J_a_s_o_n_S_._G_e_l_d_ert ____________________ _ 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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) ~-···········1 a AMIDDAN : liotiry PubHc • C.Ufornl1 I i Sin Dieao County _ Commission II 2466836 i a u My ' 0":·:i!"Jt,d7]0f I Exhibit "A" LEGAL DESCRIPTION PARCEL 1; Parcel "B" as shown on Parcel Mag_ No. 4383 in the City of Carlsbad, County of San Diego, State of California, filed in the office of the County recorder of San Diego County, January 14, 1976. PARCEL 2; That parcel of land, situated within a portion of the South half of Southwest quarter of Section 28 and within a portion of the South two-thirds of Lot 4 Southeast quarter of Southeast quarter-of Section 29, Township 12 South, Range 4 West, San Bernardino Meridian, according to Official Plat thereof, in the County of San Diego, State of California, and more particularly described as a whole as follows: Beginning at the corner common to Sections 28, 29 32 and 33 in said Township and Range, thence along the Southerly line of said Section 28 North 89° 59' 20" East 250 feet, more or less, to the Southwesterly corner of that strip of land 200 feet wide, described in Deed to the Atchison Topeka and Santa Fe Railway Company, recorded March 30, 1946 as Instrument No. 34729, in Book 2059, Page(s) 466 of Official Records; thence along the Southwesterly line of said 200 foot strip of land North 21 ° 08' 18" West 856.60 feet, more or less, to the Northeasterly boundary of the 200 foot right of way of the Atchison Topeka and Santa Fe Railway Company formerly California Southern Railroad Company, as said right of way was granted by Act of Congress and as shown on original right of way map thereof approved by the Department of the Interior, United States of America, on May 12, 1881; thence along said railway boundary South 4° 40' 18" East to the Southerly line of said Section 29; thence along said Southerly section line South 89° 49' East to the point of beginning. PARCEL~; All that portion of the South two-thirds of Lot 4 (Southeast quarter of the Southeast quarter) of Section 29, Township 12 South, Range 4 West, San Bernardino Meridian, in the County of San Diego. State of California, according to the United State Government Survey approved October 25, 1875, described as follows: Beginning at the intersection of the South line of said Section 29, with the Westerly line of the abandoned portion of the Atchison, Topeka and Santa Fe Railway Company's (formerly the California Railway Company) right of way across the South two-thirds of said Lot 4, said point being distant along said Southerly line North 89°49' West 209.69 feet from the Southeast corner of said Section 29; thence along the Westerly line of said abandoned railroad right of way, North 4°40'18" West to the Northerly line of said South two-thirds of Lot 4, being the South line of land conveyed to Herbert J. Estes by Deed recorded December 3, 1936 in Book 600, Page 65 of Official Records; thence retracing South 4°40'18" East a distance of 600.00 feet to the true point of beginning: thence continuing South 4°40'18" East 159.19 feet; thence South 15°17' East, 188.48 feet to the North line of the South 40.00 feet of said Lot 4; thence along said North line South 89° 49' East 162.60 feet to the Easterly line of said abandoned right of way; thence along said Easterly line North 4°40' 18" West 343.26 feet to a point bearing South 89°40'18" East 200.00 feet from the true point of beginning; thence North 89°40'18" West 200.00 feet to the true point of beginning. APN: 214-160-28-00 214-171-11-00 214-160-25-00