2004-86827
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FEB 03. 2004 3:55 PM
Recording Requested By: ) OFFICIAL RECORDS
) SAN DIEGO CIWTV RECfJ:DER'S OFFICE
fCb City Engineer ) GREGORY J. SIIITH, COUNTY RECORDER
) FEES: 29.00
When Recorded Mail to: )
~~ City Clerk )
City of Encinitas )
505 South Vulcan Avenue )
rß' Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
PRIVATE STORM WATER TREATMENT
~NTENANCEAGREEMENT
Assessor's Parcel No. 216-063-02,03.08 Project No,: 02-045 TM
--vV' W,O,No, 1365-G
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 CALIFORNIA COVE AT ENCINITAS. LLC.
A CALIFORNIA LIMITED LIABILITY COMPANY
(Hereinafter referred to as "Developer") for the benefit of future owners who will use the private
storm 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 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 ofthe Developer that said private storm water treatment system
be maintained in a safe and usable condition by the owners; and
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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 ofthe 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 ofland 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
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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 trom 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 indemnity and hold hannless City,
City's engineer and its consultants and each of its officials, directors, officers, agents and
employees trom 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 stonn 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 stonn water treatment facilities,
9, 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,
10, 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.
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11. 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.
12. 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 fonn, 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 tenns 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.
13, The tenns of this Agreement may be amended in writing upon majority approval
ofthe owners and consent of the City.
14. 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.
15. 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 135l(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 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
l.
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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 parties have executed this Agreement
This 14<fh day of œ SO-AlUUIj ,~, c7-.00tf
&LI l ?tJr¿¡ìlOv Cove t- ehClnl1v.s Uc..
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rn an a -3 -e. e....
Signature of DEVELOPER must be notarized, Attach the appropriate acknowledgement.
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EXHIBIT "A"
All thát certain real property situated in the County of San Diego, State of
California, described as follows:
Those portions of Lots 7, 8, 9 and 10 of Avocado Acres No.3, in the County of
San Diego, State of California, according to Map thereof No. 2063, filed in the
Office of the County Recorder of San Diego County, October 3, 1927, described
as follows:
Commencing at the Southwesterly corner of said Lot 9; thence along the
Westerly line of said Lot 9 North 00°01'35" West (record North 00°01'45" West)
120.68 feet to the True Point of Beginning; thence North 89°52'10" East (record
North 89°52'00" East) 208.00 feet; thence North 00°01'35" West (record North
00°01'45" West) 87,32 feet; thence South 89°56'30" East, 149.48 feet to a point
on the Easterly line of said Lot 10 distant thereon South 00°02'20" East (record
South 00°03'00" East) 148.81 feet from the Northeasterly corner of said Lot 10;
thence along said Easterly line and along the Easterly line of said Lot 7, North
00°02'20" West, 466.58 feet (record North 00°03'00" West, 466.81 feet) to the
Southeast corner of the Northerly 12.00 feet of said Lot 7; thence along the
Southerly line of the Northerly 12,00 feet of said Lot 7 South 89°54'40" West,
179.96 feet (record South 89°52'00" West) 180.00 feet to the Easterly line of
said Lot 8; thence along said Easterly line South 00°02'20" East (record South
00°03'00" East) 83,00 feet to the Southeast corner of the Northerly 95,00 feet of
said Lot 8; thence along the Southerly line of the Northerly 95,00 feet of said Lot
8, South 89°54'40" West (record South 89°52'00" West), 177.80 feet to the
Westerly line of said Lot 8; thence along the Westerly line of said Lots 8 and 9,
South 00°01'35" East, 470.67 feet (record South 00°01'45" East, 470,97 feet) to
the Point of Beginning,
Assessor's Parcel Number: 216-063-02-00, 216-063-03-00
216-063-08-00
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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1 State of California } ss,
1 0 (LClf) ~
I' County of
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On SQf'\U~ 14- ()()()~before me, Name oed T;tie of Offi 'I
personally appeared LLt (s, R. Tf¿ u...:r; /...L..O
Namel') of Sigoe,,)
cl4,ersOnallY known to me
0 proved to me on the basis of satisfactory
evidence
to be the person~) whose name"') is/-
fJ CAa L u.o
Can.."",. 12nR subscribed to the within instrument and
NøIay NIle . CaIIantII acknowledged to me that helshe/tht¡y executed
San IIemaIdIno CaIA'dr the same in his/hefftm¡ir authorized
MyCarrn. BcpiesS8p 11.3114 capacity(i~), and that by hislherlttreir
signature(t) on the instrument the person(~, 7>
the entity upon behalf of which the person)
acted, executed the instrument.
Plaœ Nole" Seal Abo,e
OPTIONAL
Though the informetion below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and raattachment 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(ies) Claimed by Signer
Signer's Name:
0 Individual .
Top of thumb here
0 Corporate Officer- Title(s):
0 Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
Q1"".""""_.-"""9350DeSooo."., P.o. Bo"2402'C",.~"",C'91313-2402._.MlloMI_..0~ P"". No. 5907 R,o'.',"'JlTol-'_1_-876-""