2004-240126
c. . DOC # .004-0240126
MAR 23. 2004 4:25 Pi"ti
Recording'Requested By: )
) OFFICIAL RECORDS
City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE
) GREGORY .1. SMITH, COUNTY RECORDER
11 When Recorded Mail to: ) FEES: 23.00
City Clerk )
City of Encinitas )
&~ 505 South Vulcan Avenue )
Encinitas CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
-J. rO1
if ~-~r¡<Jf PRIVATE STORM WATER TR~TMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No. 265-331-53 ProjectNo.: 02-188 DR
Whìs?,( WINe( IÑC-' W.O. No.: 7956-G
THIS AGREEMENT for the periodic m intenance and repair of that certain private .storm water treatment
facilities, the legal description and/or p t of which is set forth in Exhibit "B" attached hereto and made a
part hereof, is entered into by n, 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 of
Grading Permit 7956-G; and
WHEREAS, Developer is the owner of certain real property described in 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 adeqLJately
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 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 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 are 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 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 bome, 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 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 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 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 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 "agenf' 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 pursuant to its Bylaws and Declaration.
This IN WITNE1.S WHERE~~ have executed this Agreement
Z:2..AJ day of ,-tOOl:: ;2.004
. A. Rk~r M~G:wd
.
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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. ALL'-PÜRPOSE ACKNOWLEDIMENT .
State of California }
Sa . SS.
County of n Diego
On ? /zz.loti before me, Neal Ganz
personally appear~:r2>¿z~ çl1o!~}1roVl 'Y -/(. ÆèfeR ;¡;A?45 tl1 c/
. SIGN""',
0 personally known to me - OR - d@"'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
acknowledged to me that he/she/they executed
the same In his/her/their authorized
capacity(ies), and that by his/her/their
, ,. ~-, signatures(s) on the instrument the person(s),
or the entity upon behalf of which the
j NEAl GANZ person(s) acted, executed the instrument.
NOT AR'i' PlJ8Ué:~1
çOMM;HO.I -
C MY~~~J
WITNESS my hand and official seal.
~~,~
OPTIONAL INFORMATION
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
edgement to an unauthorized rioeument.
CAPACITY CLAIMED BY SIGNER (PRIN;CIPAL) DESCRIPTION OF ATTACHED DOCUMENT
0 tNDIVIDUAL
0 CORPORATEOARCER
TITLE OR TYPE OF DOCUMENT
TITlE<SI
0 PARTNER(S)
0 ATIORNEY-IN-FACT NUMBER OF PAGES
0 TRUSTEE(S)
0 GUARDIAN/cONSERVATOR
0 OTHER: DATE OF DOCUMENT
OTHER
SIGNER IS REPRESENTING: RIGHT THUMBPRINT D
NAME Of' ",",SO,"SI O' ENTITY"ES, OF
SIGNER
APA W9 VALLEY.SIERRA, !l<Xk"'2.JJ<oo/
. .
Exhibit A: Legal Description of Property
APN 265-331-53
2153 Whisperwind Drive
The Westerly 246,00 feet of the Easterly 492,00 feet of that parcel of land in the City of Encinitas,
County of San Diego, State of California, being a portion of Block 94, together with that portion of the
Westerly Half of "C" Street, immediately adjoining said portion of Block 94 on the East, as vacated and
closed to public use in Colony of OIivenhain, according to Map thereof No. 326, filed fn the Office of
the County Recorder of San Diego County, and also those portion of Lots 24 to 27 of the subdivision
of the Rancho Las Encinitas, according to Map thereof No, B48, filed in the Office of the County
Recorder of San Diego County, including a portion of "B" Street adjoining said Block 94 of Colony of
Olivenhain on the West, as vacated and closed to public use and a portion of San Diego Avenue
adjoining Lot 92 of Colony of Olivenhain on the East, described as a whole as follows:
Beginning at the intersection of the center line of "C" Street and the center line of Ninth Street in
Colony of Olivenhain according to Map No, 326, filed in the Office of the County Recorder of San Diego
County, as said intersection is shown on Record of Survey Map Nos, 4807 and 4901, filed in the Office
of the County Recorder of San Diego County; thence along said center line of "C" Street, South
15 °03' 50" West, 1204,79 feet to the Easterly prolongation of the Southerly line of the Northerly Half
of said Block 94; thence to and along said Southerly line and the prolongations thereof, North 73° 1 0'
West, 986,65 feet - 985,31 feet per Record of Survey Map No. 4807 . to the center line of said San
Diego Avenue, being the True Point of Beginning; thence retracing South 73° 1 0' East, 986,65 feet and
North 15°03'50" East, 364,38 feet to the Easterly prolongation of the Southerly line of the Northerly
800,00 feet of said Block 94; thence along said prolongation, said Southerly line and the Westerly
prolongation thereof, North 73°09' West, 240,21 feet to a line which is parallel with and 800,00 feet
Southerly at right angles from a line which is drawn through the Northwest corner of said Block 94 at
right angles to the West line of said Block 94; thence along said parallel line North 74°56'10" West,
746,08 feet to a line which bears North 15°03'50" East from the True Point of Beginning; thence
South 15 °03'50" West, 341,44 feetto the True Point of Beginning,
Excepting therefrom that portion lyin9 Southerly of the following described line:
Beginning at a point on the Westerly line of the above described land; distant thereon 137,00 feet
Northerly from the Southwesterly corner thereof; thence Easterly at right angles to said Westerly line,
123,00 feet to Point" A" ofthis description; thence Easterly to a point on the Easterly line of the above
described land, 125,00 feet Northerly from the Southeasterly corner of said land,
Also excepting therefrom that portion lying Easterly of the following described line:
Beginning at Point "A" above described; thence Northerly parallel with the Westerly line ofthe above
described land, 100.00 feet; thence Northeasterly in a straight line to a point on the Northerly line of
the land above described parcel distant thereon 93,00 feet Westerly from the Northeasterly corner
thereof,
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Exhibit B: Legal Descriptiòn or Plat
Private Storm Water Treatment Facilities
APN 265-331-53
2153 Whisperwind Drive
LEGAL DESCRIPTION FOR PRlV ATE STORM W A 'fER TREATMENT FACILITIES
SIMONSON PARCEL
BEGINNING AT POINT "A", DESCRIBED IN THAT CERTAIN QUIT CLAIM DEED TO
WALTER 1. NORLING AND NEVA N, NORLING, CO-JRUSTEES OF THE NORLING
FAMILYREVOCABLEJRUST,DATEDDECEMBER30,1992,RECORDEDMAY20.1993
AS DOCUMENT NUMBER 1993-0319770; THENCE NORTH 15° 03' 30" EAST, 100.00
FEET; TIffiNCE NORTHEASTERLY IN A S1RAIGHT LINE TO A POINT ON THE
NORTIffiRL Y LINE OF SAID NORLING LAND DISTANT THEREON 93,00 FEET
WESTERLY FROM TIffi NORTHEASTERLY CORNER THEREOF; THENCE RETRACING
ALONG SAID LINE SOUTHWESTERLY 52.01 FEET TO THE TRUE POINT OF
BEGINNING;
PRlV ATE STORM WATER TREATMENT F AClLITIES
THENCE S 67° 13'06" W, 36,75 FEET; THENCE S 18° 55'30" W, 24,83 FEET; TIffiNCE
S 35° 29'54" W, 7.38 FEET; TIffiNCE S 32°07'35" E, 9.79 FEET; THENCE .
S 70°07'40" E, ILl5 FEET; TIffiNCE N 28°49'22" E, 63,50 FEET TO THE JRUE POINT OF
BEGINNING, CONTAINING 1042.8 SQUARE FEET. MORE OR LESS, ACCORDING TO
TIffi BEARINGS AND DISTANCES ABOVE,
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