2006-627064
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Recording Requested By:
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DOC # _006-0627064
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, RECORDED AT THE REQUEST OF _
CHiCAGO TITL' COMPANY .
SUBDIVISION DEPl:
SEP 01 , 2006
1 :47 PM
City Engineer
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 25.00
PAGES: 7
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
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, .l.rll { PRIVATE STORM WATER TREATMENT AND PRIVATE ROAi:)---
II ~. ~ 1I1J1I MAINTENANCE AGREEMENT
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Assessor's Parcel No. 260-630-46
PojectNo.:
W.O.No.:
04-246 TPM
0061-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 Exhibit liB" attached hereto and made a
part hereof, is entered into by EILEEN MARIE WALSH OR HER SUCCESSORS IN TRUST, UNDER THE
EILEEN MARIE WALSH LIVING TRUST DATED MARCH a, 2000 AND ANY AMENDMENTS
THERETO, and (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 of
Grading Permit 0061-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.
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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 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.
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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.
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.
IN WITNESS WHEREOF, the parties have executed this Agreement
This c;J. 4 f/<- day of ,4 U ~ ,2006.
Developer:
by&~Yn~0~
Eileen Marie Walsh
Signature of DEVELOPER must be notarized. Attach the appropriate aCknowledgement.
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:1.2'101
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of CSnia
County of cJ"'\ ~ \L ~
}ss
on~A.~~'-\I:l..toCo beforemeMo...~\~sc....~.........~c..Pr, N4-N-\.f ?t.....b~\L,
~ Date Nama and Trtte of Officer (a.g., Jana Dos, Notary ~b1ic")
personally appeared b (~f\ fY\o.t ~ ~ c..j~~ ,
Name(s) 01 Signar(s)
o personally known to me
~proved to me on the basis of satisfactory
evidence
~. := ~=7.--l
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to be the person~ whose name~)~are
subscribed to the within instrument and
acknowledged to me tha~y executed
the same in ~r authorized
capacity(tes', and that by t;MeI~ir
signature~ on the instrument the person~, or
the entity upon behalf of which the person~
acted, executed the instrument.
~z::..T~
Signatura of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment 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:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney-in-Fact
o Trustee
o Guardian or Conservator
o Other:
Top of thumb here
Signer Is Representing:
@ 1999 National Notary Association. 9350 Os Soto Ava., P.O. Box 2402 . Chatsworth, CA 91313-2402 . www.nationalnotary.org
Prod. No. 5907
Raordar: Call ToII-Fraa 1-8OlHl76.e827
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Exhibit A: Legal Description of Property
APN 260-630-46
LOT 4 OF NANCE'S ACRES, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2884, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JULY 2, 1952.
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Exhibit B: Legal Description or Plat
Private Storm Water Treatment Facilities and Private Road
APN 260-630-46
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