HomeMy WebLinkAboutCostco Wholesale Corporation 2017-09-29RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Ukiah
Department of Public Works
300 Seminary Avenue
Ukiah, CA 95482
CONFORMED COPY
Copy of Document Recorded on
09/29/2017 03:04:28 PM
as 2017-13002
Mendocino County Clerk -Recorder
Project/Property: Costco Warehouse, Redwood Business Park, Ukiah, CA
APN(s): 180-080-57, -58, -59, -62, -63, -64, -65, -66 and -67
Ukiah, California
DECLARATION OF COVENANTS REGARDING MAINTENANCE
OF STORM WATER BMP FACILITIES AND RIPARIAN
CORRIDOR BUFFER ENHANCEMENTS
This Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities
and Riparian Corridor Buffer Enhancements ("Declaration") is made on this aQ day of
September, 2017, by Costco Wholesale Corporation ("Landowner"), a corporation in good
standing under the laws of the State of Washington and authorized to conduct business in the
State of California and the City of Ukiah ("City"), a California general law municipal
corporation.
RECITALS
A. Landowner is the fee simple owner of certain real property located in the City of Ukiah
("City"), Mendocino County, California, designated Lot 1, and fully described in Exhibit
A to this Declaration ("Property").
B. The City's National Pollutant Discharge Elimination System ("NPDES") Municipal
Separate Storm Sewer System ("MS4") Permit, Order number R1-2009-0050, issued
by the North Coast Regional Water Quality Control Board ("Board"), requires the City
to implement and enforce specific requirements for the construction and maintenance
of onsite storm water management facilities/best management practices (collectively,
"BMP") for development, redevelopment, and other applicable projects with the goal of
mitigating impacts to storm water quality and runoff volume discharges into the MS4.
C. Provisions of the Low Impact Development (LID) Technical Design Manual adopted by
Ukiah City Council, and Division 4, Chapter 8, Division 9, Chapter 7 and other
applicable provisions of the Ukiah City Code shall apply to the construction, inspection
and maintenance of BMP facilities and the enforcement of MS4 Permit requirements.
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Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
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D. On July 26, 2017, the City of Ukiah Planning Commission approved a Site
Development Permit for the Project, which approval is final for the City, and on August
8, 2017, the City Planning Department notified Landowner that all permits related to
the Project have been by approved by the City, which include the Site Plan (the
"Plan") and a Final Standard Urban Stormwater Mitigation Plan ("SUSMP") for the
Property which require the construction and maintenance of BMP facilities on the
Property (the "BMP Facilities") by Landowner. On January 29, 2015 and February 23,
2015, the California Department of Fish and Wildlife ("CDFW') and the Board,
respectively, approved the Huffman -Broadway Group, Inc. 2014 Riparian Corridor
Buffer Enhancement Pian, Ukiah, Mendocino County, California, Corps File No.
249675 for the Property ("Enhancement Plan"). The BMP Facilities required under the
SUSMP and riparian enhancements ("Enhancements") required by the Enhancement
Plan may include both built and landscaping features. The Plan, SUSMP, and
Enhancement Plan may be inspected at the City of Ukiah, Department of Public
Works, 300 Seminary Avenue, Ukiah, CA upon appointment.
E. The Plan, Enhancement Plan and SUSMP require and the City and Landowner agree
that Landowner and City make and execute this Declaration.
DECLARATION OF COVENANTS
NOW, THEREFORE, in consideration of the foregoing recitals, Landowner and City
hereby covenant, agree and declare as follows:
1. Landowner shall, at Landowner's sole cost and expense, construct, inspect, and
maintain the BMP Facilities in accordance with the Plan and the SUSMP and the
Enhancements in accordance with the Enhancement Plan. Landowner shall
assure that all BMP Facilities and the Enhancements remain fully functional and
that all areas identified in the Plan and SUSMP for treatment and/or volume
capture discharge to the specified BMP Facility as designed.
2. The Riparian Corridor Buffer Enhancement Area, as described in Sections 1.2 and
2.1 of the Enhancement Plan ("Enhancement Plan Area"), is hereby irrevocably
dedicated to be developed and maintained in accordance with the Enhancement
Plan. The City is hereby granted an irrevocable right of access to the Plan Area for
the purpose of enforcing these covenants and the Enhancement Plan. On and
after the date which is four full years from the date Landowner is issued a
certificate of occupancy for the Project (the "Four Year Term"), the City hereby
agrees to assume the role of Land Manager under the Enhancement Plan and to
perform the functions thereof. To ensure long-term funding for the management of
the Enhancement Plan Area in accordance with the Enhancement Plan,
substantially concurrently with the recordation of this Declaration, Costco shall
deposit with the City a total of $137,576, which the City agrees to use and maintain
as the financing mechanism set forth in the Enhancement Plan.
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Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
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3. Landowner shall keep all records related to annual inspections of BMP Facilities
and the Enhancements by City and all records related to BMP maintenance for a
period of at least five years from the date of each inspection and related to the
Enhancements for the Four Year Term. The records shall include records of any
BMP Facilities or Enhancements corrections, repairs, and replacements.
Landowner shall make these records available to the City upon request.
4. In the event Landowner fails to maintain the BMP Facilities or, during the Four
Year Term, the Enhancements in good working condition or otherwise violates the
Plan. SUSMP or the Enhancement Plan, as determined by the City Manager, such
failure or violation shall be deemed a public nuisance under Division 9 Chapter 2
of the Ukiah City Code and City shall be entitled to the remedies available to it
under said Chapter in addition to those available to it under Division 3 Chapter 12,
Division 4 Chapter 8 and Division 9 Chapter 7; provided, however, except as
otherwise provided in this Declaration, including, without limitation, in Sections 5
and 12 hereof, enforcement shall be governed by the procedures of City Code
Sections 3453, 3455-3460, and 3462-3467. By way of example and without
limiting the generality of the foregoing, the City's right to abate the nuisance
summarily shall be governed by City Code Section 3453, and notice to Landowner
shall include all of the elements specified in City Code Section 3455, but with a
fifteen (15) day period to file a notice of appeal with the City Manager in
accordance with Section 5 below.
5. In the event of summary abatement or failure of Landowner to file a timely notice
of appeal or to comply timely with any requirements determined through the
appeals procedure, the City may enter upon the Property and take whatever steps
it deems reasonably necessary to maintain and/or make in good working condition,
such BMP Facilities and Enhancements. It is expressly understood that the City is
under no obligation to maintain or repair the BMP Facilities, and in no event shall
this Declaration be construed to impose such an obligation on the City; however,
the City shall maintain or repair the Enhancements, if required, during the Four
Year Term, and upon the expiration of the Four Year Term. If the City performs
work of any nature, or expends any funds in the performance of such work for
labor, use of equipment, supplies, materials, or the like, due to failure of the
Landowner to perform its maintenance obligations under this Declaration,
Landowner shall reimburse the City within 60 days of receipt of a report of
abatement costs in accordance with City Code Section 3459, subject to
Landowner's right to protest the costs in accordance with City Code Section 3462.
Costs shall include, but are not limited to, the actual cost of construction,
maintenance and/or repair, and administrative costs directly related to such work
and reasonably incurred.
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Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
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6. Landowner may appeal the City Manager's notice of failure or violation by filing a
notice of appeal with the City Manager in accordance with the procedures
specified in City Code Section 3456, modified as follows:
• The notice of appeal must be filed within 15 rather than 10 days;
• The appeal shall state the name and address of Landowner, the nature of
the determination being appealed, the reason Landowner believes the
determination is incorrect, and what the correct determination of the
appeal should be. The failure of the Landowner to file a timely appeal
containing all of this information shall be deemed to waive any right of
appeal.
• The hearing officer shall hear and determine the appeal on the basis of
Landowner's written statement and any additional evidence deemed
appropriate. Landowner may present testimony and oral argument at the
hearing either personally or by counsel. The hearing officer shall issue a
written decision within ten (10) days of the date of the hearing.
7. Landowner shall indemnify, defend and hold harmless the City and its employees,
officials, and agents, from and against any liability, (including liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, interest, defense costs, and expert witness fees), where the same
relates to, or arises out of, the construction, presence, existence, inspection, or
maintenance of BMP Facilities on the Property or the performance of the
covenants underlying this Declaration by Landowner, its officers, employees,
agents, contractors or sub- contractors, excepting only to the extent resulting from
the negligence or intentional misconduct of the City, its employees, officials, or
agents. This indemnification obligation is not limited in any way by any limitation on
the amount or type of damages or compensation payable to or for the Landowner
or its agents under workers' compensation acts, disability benefits acts or other
employees' benefits acts. If any judgment or claim against the City, its officials,
agents, or employees, shall be entered, Landowner shall pay all cost and
expenses in connection therewith.
8. If any provisions of this Declaration shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
9. This Declaration shall be governed according to the laws of the State of California.
The parties hereto agree that the forum for the adjudication of any dispute related
to this Declaration shall be brought exclusively and solely in Mendocino County,
California.
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Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
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10. Landowner shall not assign this Declaration to a third party without the express
prior written consent of the City, provided that such consent will not be
unreasonably withheld and that such consent shall not be required for Landowner
to sell or lease the property to a third party.
11. Landowner binds itself, its partners, successors, legal representatives and assigns
to the City, and to the partners, successors, legal representatives and assigns of
the City with respect to all promises and agreements contained herein.
12. This Declaration shall be recorded by Landowner, and shall: a) constitute a
"covenant running with the land;" b) be binding upon Landowner and Landowner's
successors, heirs, and assigns in perpetuity; and, 3) benefit the City of Ukiah, its
successors, and assigns. Any breach of this Declaration shall render Landowner
or Landowner's heirs, successors or assigns liable pursuant to the provisions of
the Ukiah City Code.
13. Any notice, submittal or communication required or permitted to be served on
Landowner or City shall be in writing and delivered to the respective address
provided below by being either (i) personally delivered (including delivery by
courier service), with written acknowledgment of receipt, in which case they shall
be deemed delivered on the date of delivery to said addresses, or (ii) sent by
certified or registered mail, return receipt requested, first-class postage prepaid, in
which case they shall be deemed delivered on the date shown on the receipt,
unless delivery is refused or delayed by the addressee, in which event they shall
be deemed delivered on the date of deposit in the mail. Either party may change
its address for notices by a notice given in accordance with the foregoing.
14. This instrument may be executed in multiple counterparts, each of which shall be
deemed a duplicate original, and all of which, taken together, shall constitute one
and the same instrument.
City Representative:
Public Works Director/City Engineer
City of Ukiah
300 Seminary Avenue
Ukiah, CA 9548
Name: Tim Eriksen
Landowner or Landowner Representative:
Costco Wholesale Corporation
Property Management/Legal Dept.
999 Lake Drive
Issaquah, WA 98027
Attn: Director of Property Management
1527044 7
Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
Page 5 of 6
Executed as of the day and year first above stated.
LANDOWNER:
COSTCO WHOLESALE CPORATION
�C V
By:
Print Name: John Sullivan
Title:
SVP/General Counsel/Secretary
CITY OF UKIAH
By:
Print Name: Sage Sangiacomo
Title: City Manager
ATTACHMENTS:
Exhibit A- Property Description
Notary Acknowledgment
1527044_7
Declaration of Covenants Regarding Maintenance of Storm Water BMP Facilities- Version 1.2
Page 6 of 6
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 'f - WN - 41
County of a
cle hi 2.6 ( ) roetore me,
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(insert name and title of the officer)
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personally appeared A SCJIL ( ((u'\
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.
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I certify under PENALTY OF PERJURY under the laws,t . Pe Rfolifd�iia that the foregoing
paragraph is true and correct. Q.— %s\ON F+A /, )1/4c,„(‘
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WITNESS my hand and official seal.
Acknowledgements
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 Vii11c e ct P
On —,, It , before me, 2b r-�} /v/tact) , Notary
Public, personally appeared Ce t"' S taetixo , who proved to me
on the basis of satisfactory evidence to be the erson(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 California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
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DEBRA NIESEN
Commission # 2041374
Notary Public - California
Mendocino County
My Comm. Expires Oct 12, 2017
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
REAL PROPERTY SITUATE IN THE CITY OF UKIAH, COUNTY OF MENDOCINO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF LOTS G1, G2, G3, F8 & F10 AND A PORTION OF LOT F11 AS SAID LOTS ARE
SHOWN ON THAT PARCEL MAP M.S. 97-07 RECORDED JULY 28, 1997 IN MAP CASE 2, DRAWER
64 AT PAGES 21 & 22, OFFICIAL RECORDS OF MENDOCINO COUNTY, TOGETHER WITH A
PORTION OF PARCEL 1 AS SHOWN ON THAT PARCEL MAP M.S. 04-51 RECORDED OCTOBER 2,
2006 IN MAPS, DRAWER 74 AT PAGES 4 THROUGH 6, OFFICIAL RECORDS OF MENDOCINO
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT F8, ALSO BEING A POINT ON THE
EASTERLY RIGHT OF WAY FOR AIRPORT PARK BOULEVARD AS SHOWN ON SAID PARCEL MAP
M.S. 97-07;
THENCE ALONG THE NORTHERLY LINE OF SAID LOTS F8 & G3, NORTH 84°40'22" EAST A
DISTANCE OF 585.28 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY FOR U.S. HIGHWAY
101, SAID POINT ALSO BEING THE NORTHEAST CORNER OF LOT G3, AS SAID HIGHWAY AND
LOT ARE SHOWN ON SAID PARCEL MAP M.S. 97-07;
THENCE ALONG THE EASTERLY LINES OF SAID LOTS G3, G2, G1 AND SAID PARCEL 1, ALSO
BEING THE WESTERLY RIGHT OF WAY OF SAID HIGHWAY, THE FOLLOWING FIVE (5) COURSES:
1) THENCE SOUTH 02°29'45" EAST A DISTANCE OF 327.57 FEET;
2) THENCE SOUTH 05°21'28" EAST A DISTANCE OF 100.13 FEET;
3) THENCE SOUTH 02°29'45" EAST A DISTANCE OF 400.04 FEET;
4) THENCE SOUTH 00°38'06" WEST A DISTANCE OF 100.19 FEET;
5) THENCE SOUTH 02°29'15" EAST A DISTANCE OF 530.19 FEET;
THENCE LEAVING SAID EASTERLY LINES AND SAID WESTERLY RIGHT OF WAY, SOUTH
84°40'22" WEST A DISTANCE OF 103.48 FEET;
THENCE NORTH 31°37'13" WEST A DISTANCE OF 249.94 FEET;
THENCE SOUTH 84°40'22" WEST A DISTANCE OF 38.33 FEET;
THENCE NORTH 32°45'47" WEST A DISTANCE OF 331.26 FEET;
THENCE SOUTH 84°40'22" WEST A DISTANCE OF 102.89 FEET TO A POINT ON THE WESTERLY
LINE OF SAID LOT F11, SAID POINT ALSO BEING ON THE EASTERLY RIGHT OF WAY OF SAID
AIRPORT PARK BOULEVARD;
THENCE ALONG THE WESTERLY LINES OF SAID LOTS F11, F10 & F8, ALSO BEING SAID
EASTERLY RIGHT OF WAY, NORTH 05°36'44" WEST A DISTANCE OF 937.97 FEET TO THE POINT
OF BEGINNING. CONTAINING 15.2989 ACRES OF LAND, MORE OR LESS.
Exhibit A