2004-1183355
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DOC # 8:)04-11 83355
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Recording Requested By:
DEC 16, 2004
10:47 AM
City Engineer
OFFICIAL RECORDS
SM1 DIEGO ClJUNT'( RECORDER'S OFFICE
GREGOR'( J SMITH. COUNTY RECORDER
FEES 2300
PAGES 6
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
Sp,
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2004-1183355
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PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No. '216-052-09
ProjectNo.: 03-009 TM
W.O.No.: 9117-G,
10570
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 Exhibit "B" attached hereto and made a
part hereof, is entered into by Barratt American Incorporation
(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 in
consideration of Grading Permit 9117 -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 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 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
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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 and swales, 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 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 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
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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 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 "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 pursuant to its Bylaws and Declaration.
~ WITNESS WHEREOF, the parties have executed this Agreement
This .~ day of----1)'rOwIÐu' ,2004.
Bratt rican Inc. ..........
G .St\.<:\<.. ~Ëc.\Gt=Q.J t?~LG-S\6)¿:..J7 S"A~ OU:=êD DuJc.~tO~
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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ALL-PURPOSE ACKNOWLEDGMENT:
STATE OF CALIFORNIA)
) ss.
COtJNTY OF SAN DIEGO )
On
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1W48. nTt.I: or OFn
~~.c.~er
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personally known to me ilK ¡a~Q'..Q tQ IRa QR t.b.a QiI¡¡is ..f 1ii4~iliif4gtgF..' .'.iãaaQa
to be the person (~ whose name.Þi.) is~
subscribed to the within instrument and
acknowledged to me that he/sas/liaay executed
the same in his/ka.-/liàei. authorized
capacity~, and that by hi3iher/thei...
signature ~ on the instrument the person (JId.,
or the entity upon behalf of which the
person (yV acted, executed the instrument.
personally appeared
'@ LISA M. CASAS I
9"" '-" COMM, #1458145
u .' NOTARYPUBUC-CAUFORNIA £In
U) SAN DIEGO COUNTY
ï '. My Commission Expires i
DECEMBER 23, 2007
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v hand and official seal.
in and fer said County
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. EXHIBIT "A"
TO 03-009 TM/CDP/E/A
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10574
LEGAL DESCRIPTION
Real property in the City of Encinitas, County of San Diego, State of California, described as
follows:
PARCEL 1:
ALL THAT PORTION OF THE SOUTH HALF OF SEmON 33, TOWNSHIP 12 SOUTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLA.T THEREOF, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE INTERSEcnON OF THE SOUTHERLY LINE OF SAID TOWNSHIP 12
SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, WITH THE EASTERLY LINE
OF THE ATCHISON, TOPEKA AND SANTA FE ROADWAY COMPANY'S RIGHT OF WAY; THENCE
ALONG SAID EASTERLY LINE OF RIGHT OF WAY NORTH 15 DEG. 43'30" WEST A DISTANCE OF
257.7 FEEï; THENCE, NORTH 74 DEG. 13'45" EAST A DISTANCE OF 848.51 FEET TO THE TRUE
POINT OF BEGINNING; THENCE NORTH 15 DEG. 46' WEST A DISTANCE OF 457.23 FEET TO AN
INTERSEmON WITH THE WESTERLY PROLONGATION OF THE NORTHERLY LINE OF THE lAND
CONVEYED BY THE SOUTH COAST LA.ND COMPANY TO T. S. REED 6Y DEED DATED DECEMBER
14, 1927 AND RECORDED IN BOOK 1398, PAGE 455 OF DEEDS; THENCE NORTH 83 DEG. 04'15"
EAST A DISTANCE OF 268.00 FEET MORE OR LESS TO THE NORTHWESTERLY CORNER OF SAID
TRACï OF lAND SO CONVEYED TO T. S. REED; THENCE ALONG THE WESTERLY LINE OF SAID
REED TRACï, SOUTH 15 DEG. 46'45" EAST A DISTANCE OF 416.95 FEET TO THE
SOUTHWESTERLY CORNER THEREOF; THENCE SOUTH 74 DEG. 13'45" WEST A DISTANCE OF
264.92 FEEï TO THE TRUE POINT OF BEGINNING.
PARCEL 2:
THE WESTERLY 10.00 FEEï OF THE FOLLOWING DESCRIBED PROPERTY:
ALL THAT PORTION OF THE SOUTHEAST QUARTER OF SEmON 33, TOWNSHIP 12 SOUTH,
RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 513, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY UNDER THE mLE OF EATONVILLE,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSEcnON OF THE SOUTHERLY LINE OF SAID TOWNSHIP 12
SOUTH, WITH THE EASTERLY LlNE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND
SANTA FE RAILWAY COMPANY, SAID SOUTHERLY LlNE OF TOWNSHIP BEING ALSO THE
NORTHERLY LINE OF AVOCADO ACRES NO.2, ACCORDING TO MAP NO. 1802, RECORDS OF
SAN DIEGO COUNTY, NORTH 89 DEG, 53'45" EAST A DISTANCE OF 1236.98 FEET TO A POINT
ON THE WESTERLY LINE OF AVOCADO ACRES NO.3, ACCORDING TO MAP NO. 2063, RECORDS
OF SAN DIEGO CDUNTY; THENCE ALONG SAID WESTERLY LINE OF AVOCADO ACRES NO.1,
NORTH 0 DEG. 01'45" WEST A DISTANCE OF 616.72 FEEï TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID WESTERLY LlNE OF AVOCADO ACRES NO.3, NORTH 0 DEG.
01'45" WEST A DISTANCE OF 376.40 FEEï; THENCE SOUTH 83 DEG. 04'15" WEST A DISTANCE
OF 350.22 FEET; THENCE SOUTH 15 DEG. 46'45" EAST A DISTANCE OF 416.05 FEET; THENCE
NORTH 74 DEG. 13'45" EAST A DISTANCE OF 243.91 FEET TO THE TRUE POINT OF
BEGINNING.
APN: 216-052-09-00
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PLAT
ENCNT AS 1RA CT NO. 03-009
PRIVATE STORM WATER TREATMENT FACILITIES
APN 216-052-09
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TREATMENT FACILITIES
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