Loading...
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 N,, PCL2 X~'\,