2003-695449 DOC 003-0695449
JUN 12, 2003 11: 48 AM
Recording Requested By: [IfflClPL
City Engineer ~ DI[It] flllllY ~ClI~IER'8 0~I~
~G~ J. ~ITH,
~hcn Recorded ~1 to:
~(ty
~ty of ~nc~nh~ )
~0~ Sou~ VuIc~ Avenue
Enc~n~tas, C~ ~2024 SPA~E ~OVB FOR ~O~ER'S U8~ O~Y
~f-~ ~ P~VATE STO~ WATER T~ATMENT
~ ~INTEN~CE AG~EMENT
Assessor's P~cel No. 2 ~ 16-052-03 Project No.: 02-013
W.O.No. 7732-G
THIS AG~EMENT for the periodic mainten~ce and repair of that ce~ain private sto~ water
treatment facilities, the legal description ~or plat of which is set fo~h in Exhibit "B" attached
hereto and made a p~ hereof, is emered into by 101 ~vestors LLC, a California limited liability
comply
(Hereinafter refe~ed to as "Developer") for the benefit of ~mre owners who will use ~e private
sto~ water treatment facilities (hereinafter refe~ed to as" owners", w~ch shall include the
Developer to ~e extent ~e Developer ret~ns ~y ownership interest in any l~d covered by this
a~eement.
~E~AS, this A~eement is required as a condition of approval by the Ci~ of Encinitas,
and
WHEREAS, Developer is the owner of certain real property and developed attached as
Exhibit "A" that will use and enjoy the benefit of said storm water treatment facilities(s). Said
real property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the Developer that said private storm water treatment system
be maintained in a safe and usable condition by the owners; and
WHEREAS, it is the desire of the Developer to establish a method for the periodic
maintenance and repair of said private storm water treatment facilities and for the apportionment
of the expense of such maintenance and repair among existing and future owners; and
WHEREAS~ there exists a benefit to the public the private storm water facilities be
adequately maintained on a regular and periodic basis; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running with the land, binding upon each successive owner of all or any portion of the property.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The property is benefited by this Agreement, and present and successive owners
of all or any portion of the property are expressly bound hereby for the benefit of the land.
2. The cost and expense of maintaining the private storm water treatment facilities
shall be paid by the owner of the heirs, assigns and successors in interest or each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable
under this Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall be computed to reflect such newly created parcels.
4. The repairs and maintenance to be performed under this Agreement shall be
limited to the following: reasonable and improvements and maintenance work to adequately
maintain said private storm water treatment facilities to permit access to said facilities. Repairs
and maintenance under this Agreement shall include, but is not limited to, repairing access
roadbeds, repairing and maintaining drainage structures, removing debris, if any, and other work
reasonably necessary and proper to repair and preserve the private storm water treatment
facilities for their intended purposes. Adequate maintenance of said drainage facilities shall be
conducted at a minimum of every six months.
5. If there is a covenant, agreement, or other obligation imposed as a condition of the
development, the obligation to repair and maintain the private storm water treatment facilities as
herein set forth shall commence when improvements have been completed and approved by the
City.
6. Any extraordinary repair required to correct damage to said storm water treatment
facilities that results from action taken or contracted for by the owners or their successors in
interest shall be paid for by the party taking action or party contracting for work which caused the
necessity for the extraordinary repair. The repair shall be such as to restore the storm water
treatment facilities to the condition existing prior to said damage.
7. Any liability of the owners for personal injury to an agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement, or to third
persons, as well as any liability of the owners for damage to the property of agent, or any such
worker, or of any third persons, as a result of or arising out of repairs and maintenance under this
Agreement, shall be borne, by the owners as they bear the costs and expenses of such repairs and
maintenance. Owners shall be responsible for and maintain their own insurance, if any. By this
Agreement, the Developer does not intend to provide for the sharing of liability with respect to
personal injury or property damage other than that attributable to the repairs and maintenance
undertaken under this Agreement.
8. Owners shall jointly and severally defend and indemnify and hold harmless City,
City's engineer and its consultants and each of its officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury and
other costs, including costs of defense and attorney's fees, to the agent heretmder or to any owner,
any contractor, any subcontractor, any user of the storm water treatment facilities, or to any other
third persons arising out of or in any way related to the use of, repair or maintenance of, or the
failure to repair or maintain the private storm water treatment facilities.
Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection of the work is intended to include a review,
inspection acknowledgement of a responsibility for any such matter, and City, City's engineer
and its consultants, and each of its officials, directors, officers, employees and agents, shall have
no responsibility or liability therefore.
11. The foregoing covenants shall nm with the land and shall be deemed to be for the
benefit of the land of the owners and each and every person who shall at anytime own all or any
portion of the property referred to herein.
12. It is understood and agreed that the covenants herein contained shall be binding on
the heirs, executors, administrators, successors, and assignees of each of the owners.
13. It is the purpose of the signatories hereto that this instrument be recorded to the
end and intent that the obligation hereby created shall be and constitute a covenant rtmning with
the land and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of
a deed and/or conveyance regardless of form, shall be deemed to have consented to and become
bound by these presents, including without limitation, the right of any person entitled to enforce
the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be cumulative and in addition to other remedies provided in this Agreement and to all
other remedies at law or in equity.
14. The terms of this Agreement may be amended in writing upon majority approval
of the owners and consent of the City.
15. This Agreement shall be govemed by the laws of the State of California. In the
event that any of the provisions of this Agreement are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall
not be affected thereby.
16. If the Property constitutes a "Common Interest Development" as defined in
California Civil Code Section 1351(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section 1351(a), anything in this Agreement to
the contrary notwithstanding, the following provisions shall apply at and during such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351 (h), and (ii) the Common Area of the property (including the private storm water treatment
facilities) is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private storm water treatment facilities and shall be deemed the "agent" as referred to in
Paragraph 7 above. The Association, which shall not be replaced except by amendment to the
Declaration, shall receive no compensation for performing such duties. The costs of such
maintenance and repair shall be assessed against each owner and his subdivision interest in the
Property pursuant to the Declaration. The assessments shall be deposited in the Association's
corporate account.
(b) The provisions in the Declaration which provide for assessment liens in favor of
the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No individual owners shall have the right to alter, maintain or repair any of the
Common Area (as defined in California Civil Code Section 1351(b) in the Property except as
may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner, which reduces or limits
the Association's rights and duties following its Bylaws and Declaration.
~iN WITNESS WHEREOF, the~l~trties have executed this Agreement
This (:~ <~ day of ~d~?~ ,2003. ~-,
Deve~
(Print name:)
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Ca~r~ia ~ I ss.
personally appearW (~/~ ~ ~'~ ~ ~ ,
~cmonally known to me
~ proved to me on the basis of satisfacto~
evidence
-- -- -- -- to be the person~ose name~ is/~
~-- ~2:~&~: ~ subscribed to the within instrument and
~ ~ N~ Publ~- ~1~ ~ acknowledged to me that he~,h~,';;,~x executed
] ~] ~n D~o Coun~ - the same in his/.~cr/t,hair authorized
],,~~.~--~r,,~ capacit~ and that by his~
........... signatur~n the instrument the perso~
the entity upon behalf of which the person(s)
acted, executed the instrument.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent mineral and reatlachment 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:
Capacity(les) Claimed by Signer
Signer's Name:
[] Individual Top of thumb here
~ Corporate Officer--Title(s):
~ Partner-- ~_ Limited [] General
[] Attorney-in-Fact
~ Trustee
~ Guardian or Conservator
~ Other:
Signer Is Representing:
Exhibit "A"
All that certain real property situated in the County of San Diego, State of
California, described as follows:
That-portion of the South half of Section 33, Township 12 South, Range .4 West,
San Bernardino ~4eridian, in the City of Encini~as, County of San Diego, State of
California, according to Official Plat thereof, described as follows:
Commencing at a point on the South line of that road known as County Road
Survey No. 346, distant from the Northwesterly co~-ner of Lot 8 Avocado Acres '
No. 3, according to Map thereof No. 2063, Records of said San Diego County,. the
following courses and distance:
(A) South 89°51'45'' West (Record South 89°59'30'' West) 596.75 feet to
the beginning of a curve;
(B) ' Along the arc of said curve concave to the Southeast having a radius of
475 feet central angle of 35°24'3b'', (Record 35°25') and a le6gth of
293.53 feet (Record 293.61 feet);
(C) South 54°27'15~' West (Record 54°'28'30'' West) 174.68 feet to the
True Point of Beginning; being th~ N0~hwest corner of land described
in Deed from South Coast Land Company to Willis H. Gundru.m, dated-
March 4, 1936, recorded in Book 476, Page 496 of Official Records;.
thence continuing along said Southerly line of County Road South
54o27'15'' West a distance of 259.17 feet more or less, to the Northeast
corner of land described in Deed from South Coast Land Company to
R..1. Pringle, dated April 23, 1934, recorded in Book 310, Page 416 of
Official .Records; thence South.35°31!30'' last along the Easterly line of
said Pringle land, 305.17 feet, more or less, to a point on the Northerly
line of land described in Deed from the South Coast Land Company to
Morris Conrad and Margaretha Conrad dated September 16, :~930,
recorded in Book 1814, Page 325 of Deeds; thence North 67°39'' East
along the Northerly line of said Conrad land and along the N(~rtherly
line of I~nd described in Deed from .South Coast Land Company .to T.W.
Means and Minnie Means, dated June 6, 1934, recorded in Book 297,
'Page 305 of Official Records, 266.08 feet, .more or less, to the
Southwest corner of said Gundrum land; thence North 35o31' West
along the Westerly line of said Gundrum land 365.91 feet to the True
Point of Beginning.
Exhibit "A" Continued
EXCEPTING THEREFROM the Southwesterly 110 feet.
The Northeasterly line of said Southwesterly 110 feet being measured parallel
with and distant 110 feet at right angles Northeasterly from the Southwesterly
line of the described parcel of land.
Assessor's Pa;'cel Number: 216-052-03
Pc1., z ?AF, CEL 2
2~., 027 SQ FT GROSS
PROPOSED PRIVATE ROAO EASENENT '~.4, 505 SQ FT NET
TO BE GRANTED OR RESERVED AT
TRE TINE OF SALE OF EACH PARCEL -
PUSLICEAsENENTUTILITYGRANTEDANDHEREON ~ RAOIUS· 37.00'
N~ENGTH' 71.t7'
CURVE DATA:
/ DELTA · 280'15'25' PARCEL 3 P/L CURVE DATA:
/ DELTA - 150'03'06'
LENGTH -' 168.07' RADIUS ,. 37,00'
~ / LENGTH - 96.90'
C \ 14. 537 SO ET
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