2003-209911
, . DOC tt82003-0209911
FEB 2,5. 2003 4:06 Pl"'!
Recording Requested By: ) OFFICIAL RECORDS
~~,- City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE
) GREGORY J, SMITH, COUNTY RECORDER
IV J ) FEES: 26,00
When Recorded Mail to: )
City Clerk )
City of Encinitas )
505 South Vulcan Avenue )
Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
jrP' '-7
:;¡~ PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No, 254-101-05 Project No.: 01-058
W,O.No, 7628-G
THIS AGREEMENT for the periodic maintenance and repair of that certain private stonn 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 KEWECO INCORPORATED, A
CALIFORNIA CORPORATION
(Hereinafter referred to as "Developer") for the benefit of future owners who will use the private
stonn 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.
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas,
and
WHEREAS, Developer is the owner of certain real property and developed as Exhibit "A"
that will use and enjoy the benefit of said stonn water treatment facilities(s). A complete legal
description of said real property is attached, labelled Exhibit "B",ßnd 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 stonn 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 stonn 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 stonn 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 stonn 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 perfonned under this Agreement shall be
limited to the following: reasonable and improvements and maintenance work to adequately
maintain said private stonn water treatment facilities to pennit 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 stonn water treatment
facilities for their intended purposes, Adequate maintenance of said drainage facilities shall be
conducted at a minimum of every six months.
5. Ifthere is a covenant, agreement, or other obligation imposed as a condition of the
development, the obligation to repair and maintain the private stonn 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 stonn 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 stonn 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 haITIlless City,
City's engineer and its consultants and each of its officials, directors, officers, agents and
employees fÌ"om 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 stOITIl 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 stOITIl water treatment facilities.
Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection ofthe 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,
II. 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 foITIl, 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 teITIlS 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 teITIlS 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
135 I (h), and (ii) the Common Area of the property (including the private stonn water treatment
facilities) is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private stonn 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 perfonning 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
(Print name:) ~ - - - - - ~~~7tIS- ~ ~
~1~ /,.:¿,þlþ,L/ .~ -'~,
¡. Notary Public, California 1:
i San Diego Coun~ ~
My Comm, Expires Jun 15. 2005
------------
Signature of DEVELOPER must be notarized, Attach the appropriate acknowledgement.
¿
. .
ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO, TPM 01-058
LEGAL DESCRIPTION
Real property in the City of Encinitas, County of San Diego, State of California, described as
follows:
PARCEL A:
ALL THOSE PORTIONS OF LOTS 1, 2, 3, 4, 9, to, 11 AND 12 IN BLOCK 21, TOGETHER WITH
PORTION OF MONTEREY STREET AS VACATED AND CLOSED TO PUBLIC USE ON NOVEM8ER 19,
1915 BY ORDER OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO, A
CERTIAED COpy OF WHICH SAID ORDER WAS RECORDED DECEMBER 26, 1916 IN BOOK 500,
PAGE 343 OF DEEDS, ALL BEING IN NORTH LEUCADIA, IN THE ŒTY OF ENGNITAS, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO, 524, ALED IN THE
OFACE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, APRIL 6, 1888, DESCRIBED
AS A WHOLE AS FOLLOWS:
COMMENaNG AT A POINT ON THE NORTHWESTERLY PROLONGATION OF THE WESTERLY LINE
OF BLOCK 20 OF SAID NORTH LEUCADIA, DISTANT 20 FEET FROM THE NORTHWESTERLY
CORNER OF SAID BLOCK 20; THENCE NORTHEASTERLY ALONG A LINE PARALLEL WITH AND
DISTANT 20 FEET AT RIGHT ANGLES NORTHWESTERLY FROM THE NORTHERLY LINE OF SAID
BLOCK 20 AND THE EASTERLY PROLONGATION THEREOF, AND CONTINUING PARALLEL WITH
THE NORTHERLY LINE OF SAID BLOCK 21, THE AFORESAID PARALLEL LINE BEING THE
SOUTHEASTERLY LINE OF MONTEREY STREET, AS SAID STREET IS SHOWN ON MAP NO. 763
OF NORTH LEUCADIA, FOR A TOTAL DISTANCE OF 494 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING NORTHEASTERLY ALONG THE ABOVE MENTIONED
PARALLEL LINE, BEING ALSO THE SOUTHEASTERLY LINE OF SAID MONTEREY STREET, A
DISTANCE OF 190 FEET; THENCE SOUTHEASTERLY PARALLEL WITH THE EASTERLY LINE OF
SAID BLOCK 21 A DISTANCE OF 460 FEET TO ITS POINT OF INTERSEcrJON WITH A LINE
DRAWN PARALLEL WITH AND DISTANT 480 FEET SOUTHEASTERLY FROM THE CENTER UNE OF
MONTEREY STREET; THENCE SOUTHWESTERLY ALONG SAID LAST MENTIONED PARALLEL LINE
A DISTANCE OF 190 FEET TO A POINT ON A LINE DRAWN PARALLEL WITH AND DISTANT 494
FEET NORTHEASTERLY FROM THE WESTERLY LINE OF BLOCKS 20 AND 27 OF SAID NORTH
LEUCADIA; THENCE NORTHWESTERLY ALONG SAID POINT LINE A TOTAL DISTANCE OF 460
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING FROM THE ABOVE DESCRIBED PROPERTY THE NORTHERLY HALF THEREOF, THE
SOUTHERLY LINE OF SAID NORTHERLY HALF BEING PARALLEL WITH THE NORTHERLY UNE OF
THE ABOVE DESCRIBED PROPERTY:
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CA~IFORNI~ ~LL.PURPOSE IKNOWLEDGMENT .
No. 5907
State of Cð~H~.I.IIA
County of JAAI j)¡"~?O
On 1?-/~I/ðP.. before me, 1!'/h'AV 7/~J1
DATE NAME. TITLE OF OFFICER- EG. 'JANE DOE. NOTARY PUBLIC'
personally appeared .LffwlbFlI/Cr;¡- I-Þ /1 ÆtvD
. NAME{S) OF SIGNER{S}
0 personally known to me - OR -~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 ac-
knowledged to me that he/she/they executed
1; - -.- the same in his/her/their authorized
capacity(ies), and that by his/her/their.
8 VIVIAN T, HARRIS
-, COmmlaalon *1309009 signature(s) on the instrument the person(s),
Notary Public, California f or the entity upon behalf of which the
San Diego County -
My Cotmt, ~I... Jun 15,20015 person(s) acted, executed the instrument.
WITNESS my hand and official seal.
7Þ~ r ~
SIGNATURE OF NOT""Y
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
frauduient reattachment of this form,
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 INDIVIDUAL
0 CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE{S)
0 PARTNER(S) 0 LIMITED
0 GENERAL
0 ATTORNEY,/N-FACT NUMBER OF PAGES
0 TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON{S) OR ENTrTY{IES)
SIGNER(S) OTHER THAN NAMED ABOVE
C1993 NATIONAL NOTARY ASSOCIATION. 8236 Remme' A,"" P,O, 8o, 7t84' Canoga Park, CA 913D9'7184