2003-618313
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Recording Requested By:
City Engineer
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
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SPACE ABOVE FOR RECORDER'S USE ONLY
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PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No. 256-253-02
Project No.: 01.220 TPM/CDP
W.O.No. 7505-G,1
THIS AGREEMENT for the periodic maintenance and repair of that certain private storm water
treatment facilities, the legal description and/or plat of which is set forth in Exhibits attached
hereto and made a part hereof, is entered into by Douglas Harwood and Orva Harwood
(formerlv Orva Lewis), Co-Trustees. U.T.D.. as to an undivided 37.78% interest. and Stephen P.
Webb, a Single Man. as to an undivided 62.22% interest.
(Hereinafter referred to as "Developer") for the benefit of future owners who will use the private
stOmJ water treatment facilities (hereinafter referred to as " owners", which shall include the
Developer to the extent the Developer retains any ownership interest in any land covered by this
agreement.
and
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas,
WHEREAS, Developer is the owner of certain real property and developed as Exhibit "A"
that win use and eJ1ioy the benefit of said storm water treatment facilities(s). A complete legal
description and/or plat of said real property is attached, labelled Exhibit "B",_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 stOmJ 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
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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:
I. The property is benefited by this Agreement, and present and successive owners
of an 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
shan 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 ofIand 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 snch newly created parcels.
4. The repairs and maintenance to be performed under this Agreement shan 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 stOmJ 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 stOmJ water
treatment facilities to the condition existing prior to said damage.
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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 hamJless 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 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.
I I. 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.
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 running 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.
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14. The tenTIS of this Agreement may be amended in writing upon majority approval
of the owners and consent of the City.
15. 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.
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.
This
IN WITNESS WHEREOF
>.<. ~ day of
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CALIFORNIA ALL. PURPOSE ACKNOWLEDGMENT
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ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. 01-220 TPM/CDP
LEGAL DESCRIPTION
Real property in the City of Encinitas, County of San Diego, State of California, described as
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That portion of Lot 8, in Block "B" of South Coast Park Annex, in the City of Encinitas, County of
San Diego, State of California, according to the Official Plat thereof No.. 1788, Filed in the Office
of the County Recorder of San Diego County, January 11, 1924, lying within the following
described boundary:
Beginning at the intersection of the center line of Hymettus Avenue with the center line of Fulvia
Street as shown on said Map No. 1788; Thence along the center line of said Hymettus Avenue,
South 15 degrees 43'30" East 130.15 feet to the Easterly prolongation of the Northerly Une of
land described in deed to Theo I. Parrott, et UX, recorded September 5, 1944 in Book 1741, Page
177 of Offiàal Records; Thence along said prolongation and said Northerly Une South 68
degrees 27'06" West 336.72 feet to an angle point in the Westerly boundary of said Lot 8;
Thence along said Westerly boundary, North 09 degrees 23'50" East 189.47 feet (Record North
09 degrees 09'44" East, 189.74 feet) to the Northwesterly corner of said Lot 8; Thence North 18
degrees 44'52" East 25.01) feet to the center line of said Fulvia Street, being a point on the arc of
a 170.45 foot radius curve, concave Northeasterly, a radial line of Said curve bears South 18
degrees 44'52" West (Record-South 18 degrees 42'38" West) to said point; Thence along the
center line of said FuMa Street as follows:
Southeasterly along the arc of said curve through a central angle of 23 ilegrees 43'52 a distance
of 70.60 feet; (Record-Central Angle of 23 degrees 44'53" a distance of 70.65 feet); and tangent
to said curve North 85 degrees 01'01)" East, 169.95 feet (Record-North 84 degrees 57'45" East,
170.14 feet) to the point of beginning)
APN: 256-253-02-01)
:>t:t: Ut:IAlL
THIS SHEET
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DETENTION BASIN
SEE DETAIL THIS SHEET
4' WIDE CONc. SPILLWAY
TO 0-40 ENERGY DISSIPATOR
SEE DETAIL THIS SHEET
PROPOSED DBL 4" PVC PIPE
L=16' S=3.3%
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USE LIGHT RIP RAP PER SDRSD 0-40
WITH FILTER FABRIC OUTLET F/L=131.6'
266..265..29
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~ STORM WATER TREATMENT BMP
NOT TO BE MODIFIED WITHOUT
PERMIT FROM THE CITY
OF ENCINITAS