2003-841689 DOC 003-08416 9
JUL i5, 2003 3:47
Recording Requested By: )
CiW Engineer ) OFFICIAL RECORDS
~en R~orded M~I to' ) SAN DIEGO C~NTY RECORER'S OFFICE
GEGORY J. 8~ITH, COUNTY RECORDER
Ci~ Clerk ) FEES: 29.00
City of Enci~t~ )
505 Sou~ Vulc~ Avenue )
Enciffitas, CA 92024 ) SPACE ~OVE FOR ~CO~ER'S USE O~Y
/~-~Vo5 ProrATE STOre WATER T~ATMENT
/
M~NTEN~CE
AG~EMENT
FOR TEMPLE SOLEL
Assessor's P~cel No. 26~-~ 50-3~ Case No. 98-123 ~/CDP~IA
Pe~it No. 7435-G
THIS AG~EMENT for ~e periodic mainten~ce ~d repair of that ce~ain pdvate sto~ water
~eatment facilities, the legal description ~or plm of which is set fo~h in E~ibits attached
hereto and made a p~ hereof, is entered imo by Temple Solel, A California Non-Profit
Co~oration_(hereina~er refe~ed to as "Developer") for the benefit of ~mre owners who will use
the private sto~ water trea~ent facilities (hereinafter refe~ed to as" o~ers", which shall
include ~e Developer to ~e extent the Developer ret~ns ~y ownership interest in ~y l~d
covered by this a~eement.
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas
of a subdivision project as defined in Section 21065 of the Public Resources code and pursuant
to City of Encinitas Municipal Code Section 24.16.060 and Section 24.29.040; and
WHEREAS, Developer is the owner of certain real property and described as Exhibit "A"
that will use and enjoy the benefit of said storm water treatment facilities(s). A complete legal
description of said real property is attached, labelled Exhibit "A", and incorporated by reference.
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 that 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 stormwater treatment facilities
shall be paid by the owners or their heirs, assigns and successors in interest of 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 necessary 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.
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 he 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 hereunder or to any
owner, any contractor, any subcontractor, any user of the storm water treatment facilities, or to
any other third persons ar/sing 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.
9. The foregoing covenants shall run 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.
10. 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.
11. 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 nmning 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.
12. The terms of this Agreement may be amended in writing upon majority approval
of the owners and consent of the City.
13. This Agreement shall be governed 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.
14. 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 enfomement 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 pursuant to its Bylaws and Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement
This ~-~-x day of ~"~ ~ ,2003.
Dev :
(Print nme:)
Signat~e of DEVELOPER must be not.zed. Attach ~e approphate ac~owledgement.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
Oountyof _~ .~),~%~ }ss.
personally appeared _~. i C ~'~, ~- k ~:~ ~- ~'~
~ proved to me on the basis of satisfacto~
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 behaff of which the person(s)
acted, executed the instrument.
W~S my hand a~officJal seal.
OPTIONAL
Bescription of Attached Document
Document Date: Number of Pages: ~G
Signer(s) Other Than Named Above:
~Corpo,~,~ O,~o.~-- T,,~(~): ~ ~.~ ~.~ ~opo, t~.~.~r~
C Padner-- ~ Limited ~ General '
~ A~orney-in-Fact
D Other:
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF THE EAST HALF OF THE NORTHEAST QUARTER OF THE
NORTHEAST QUARTER OF SECTION 26, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN
BERNARDiNO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, AS SHOWN ON RECORD OF SURVEY MAP NO. 15896, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AUGUST 14, 1998,
DESCR2BED AS FOLLOWS:
BEGINNiNG AT A POINT ON THE NORTH LINE OF THE SAID NORTHEAST QUARTER
OF THE NORTHEAST QUARTER OF SAID SECTION 26, SAID POINT BEARS
N 89°25'36'' W 51.00 FEET FROM THE NORTHEAST CORNER OF SAID SECTION 26, AS
SHOWN ON SAID RECORD OF SURVEY MAP NO. 15896; THENCE S 03°51'10" E 16.49
FEET ALONG THE WESTERLY RIGHT OF WAY OF MANCHESTER AVENUE (RECORD
S 03°51 '16' E PER RECORD OF SURVEY MAP NO. 15896) TO THE TRUE POINT OF
BEGINNING; THENCE N 89"25'50" W 38.01 FEET TO THE BEGINNING OF A CURVE,
CONCAVE SOUTHEASTERLy, HAViNG A RADIUS OF 46.00 FEET; THENCE
WESTERLY AND SOUTHWESTERLY ALONG SAID CURVE 48.12 FEET THROUGH A
CENTRAL ANGLE OF 59"56'22" TO THE BEGINNING OF A COMPOUND CURVE,
CONCAVE EASTERLy, HAVING A RADIUS OF 57.79 FEET; THENCE
SOUTHWESTERLY AND SOUTHERLY ALONG SAID CURVE 44.30 FEET THROUGH A
CENTRAL ANGLE OF 43°55'24" TO THE BEGINNING OF A NON-TANGENT CURVE,
CONCAVE WESTERLY, HAVING A RADIUS OF 125.00 FEET, A RADIAL TO SAID
POINT BEARS N 65"44'43" E; THENCE SOUTHEASTERLy AND SOUTHERLY ALONG
SAID CURVE 56.88 FEET THROUGH A CENTRAL ANGLE OF 26('04'19"; THENCE
S 01°01 '08" W 19.99 FEET; THENCE S 01°06'47" W 94.15 FEET; THENCE N 89°25'35" W
82.00 FEET; THENCE S 01°06'47" W 46.89 FEET; THENCE 5 35 E 15.27 FEET;
S 89°2 ' "
THENCE S 01°06'47 TM E 25.52 FEET; THENCE S 89°25'35'' E 146.73 FEET TO THE
WESTERLY RIGHT OF WAY OF MANCHESTER AVENUE AS SHOWN ON SAID
RECORD OF SURVEY MAP NO. 15896; THENCE ALONG SAID WESTERLY RIGHT OF
WAY N 03 °51' 10" W 20.05 FEET (RECORD N 03 °51' 16" W PER RECORD OF SURVEY
MAP NO. 15896); THENCE N 89025'35'' W 62.76 FEET; THENCE N 01"06'47" E 52.42
FEET; THENCE N 89°25'35'' W 13.51 FEET; THENCE N 01°06'47" E 93.84 FEET; THENCE
N 01°01 '08" E 19.73 FEET TO THE BEGINNING OF A NON-TANGENT CURVE,
CONCAVE WESTERLY, HAVING A RADIUS OF 145.00 FEET, A RADIAL TO SAID
POINT BEARS S 88°10'58'' E; THENCE NORTHERLy ALONG SAID CURVE 28.05 FEET
THROUGH A CENTRAL ANGLE OF 11 °05'02"; THENCE N 20005'02'' E 52.54 FEET;
THENCE N 69°54'58'' W 9.00 FEET; S 20°05'02'' W 38.49 FEET TO THE BEGINNING OF
A NON-TANGENT CURVE, CONCAVE SOUTHWESTERLy, HAVING A RADIUS OF
145.00 FEET, A RADIAL TO SAID POINT BEARS N 74°08'16'' E; THENCE
NORTHWESTERLy ALONG SAID CURVE 19.05 FEET THROUGH A CENTRAL ANGLE
OF 07°31 '33" TO THE BEGINNING OF A NON-TANGENT CURVE, CO~NCAVE
EASTERLY, HAVING A RADIUS 37.79 FEET, A RADIAL TO SAID POINT BEARS S
79° 12' 12" W; THENCE NORTHERLy ALONG SAID CURVE 27.32 FEET THROUGH A
CENTRAL ANGLE OF 41025'35'' TO THE BEGINNING OF A COMPOUND CURVE,
CONCAVE SOUTHEASTERLy, HAVING A RADIUS OF 26.00 FEET; THENCE
I of 2
·, EXHIBIT "A'
NORTHEASTERLY AND NORTHERLy ALONG SAID CURVE 27.20 FEET THROUGH A
CENTRAL ANGLE OF 59°56'22";THENCE S 89°25'50" E 39.65 FEET TO THE
WESTERLY RIGHT OF WAY LINE OF MANCHESTER AVENUE AS SHOWN ON SAID
RECORD OF SURVEY MAP NO. 15896; THENCE ALONG SAID RIGHT OF WAY LINE N
03 °51' 10" W 20.06 FEET (RECORD N 03 °51' 16" W PER RECORD OF SURVEY MAP NO.
15896) TO THE TRUE POINT OF BEGINNING.
CONTAINS: 0.353 ACRES ~
4,07
2 of 2
EXHIBIT "A"
PM o58
(N 89'25'36" W 6 ......... . . / I
/ TS N 01'01'08" E 19 73' _ .... T2I ITs ~¢ / I/o -- /
I ~ N 695458 W 9.00 SE~JON 28
II C6 ~ ~1~535 ~ 37.79 / 27.32 / ~ LN ~g2535
2~4~ E 650;8~ ~0. S. 15896% ~89'25'35"E--6~0.
FOR PUBLIC STORM DRAIN
INGRESS~EGRESS ~ MAINTENAN(
EASEMENT ~OR PUBLIC STORM DRAIN
BURREW ANO ~Ne me. ~ ENCINITAS, CA
5434 FOUR~ A~.
SAN DIEGO, CA 92105 SCALE: 1" = 50' JOB~ 74995 DA~: 12~20~02