2007-353916
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DOC # 2007-035391 6
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Recording Requested By:
MAY 24, 2007
3:49 PM
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City Engineer
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~:;,6JJ DIEGO COUHT'r' F:ECOF:DEH":, OFFICE
C.F1ECiOR','.J. St'..1ITH cour'H',' F:ECORDEF:
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P,6'(3 E S ~3
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas, CA 92024
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SPACE ABOVE FOR RECORDER'S USE ONLY
PRIVATE ROADS, STORM DRAIN, BEST MANAGEMENT PRACTICES, MAINTENANCE
AGREEMENT
Assessor's Parcel No.'s: 258-130-851
Project No.: TM 03-104
W.O.No.: 948l-G&I
THIS AGREEMENT is being recorded to replace a "Private Road and Drainage Facilities
Maintenance Agreement" recorded in the office of the County Recorder of San Diego County
May 8, 2007 as document number 2007-0314719. This Agreement is for the periodic
maintenance and repair of that certain private storm drain facilities, private storm water pollution
control facilities (best management practices BMPs), privately maintained public storm drain,
and private road(s), as shown on grading plan 9481-G & I and hereinafter referred to as Privately
Maintained Facilities (PMF's), the legal description and/or plat of which is set forth in Exhibit
'C' attached hereto and made a part hereof, is entered into by Barratt American Incorporated, a
Delaware Corporation (hereinafter referred to as "Developer") for the benefit of future owners
who will use the PMF'S (hereinafter referred to as "Owner(s)", 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
(herein referred to as "City") of a development project and pursuant to City of Encinitas
Municipal Code Section 24.16.060 and Section 24.29.040; and
WHEREAS, Developer is the owner of certain real property as described in Exhibit "A"
that will use and enjoy the benefit of said PMF(s), said real property hereinafter referred to as, the
"property"; and
WHEREAS, it is the intention of the Developer that private maintenance be performed in
compliance with the City of Encinitas Municipal Code and other related City policies and
requirements, and the desire of the Developer to establish a method for the periodic maintenance
and repair of the said PMFs and for the apportionment of the expenses of such maintenance and
repair among existing and future owners; and
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WHEREAS, it is the intention of the Developer to establish an Agent as set forth under
Section 6 below to be the single point of contact with the City of Encinitas; and
WHEREAS, there exists a benefit to the public that the PMFs be adequately maintained on
a regular and periodic basis in compliance with the Exhibit "B", City of Encinitas Municipal
Code, and other related City and State codes and policies in effect during the future operations;
and
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running with the land, binding upon each successive owners of all or any portion of the property;
NOW THEREFORE, IT IS HEREBY AGREED FOR VALUABLE CONSIDERATION
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 PMFs shall be constructed and maintained by the Owner, its successors and assigns,
in accordance with the plans and specifications approved by the City. This includes any
facilities or areas to be privately maintained, and the storm drain facilities.
3. Privately Maintained Facilities (PMFs) do not include any facilities dedicated to the
Public. Public facilities are to be publicly maintained unless otherwise specified.
4. The cost and expense of maintaining the PMFs shall be paid by Owner or the heirs,
assigns, and successors in interest of each such Owner. This includes any facilities or
areas to be privately maintained, and storm drain facilities.
5. 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.
6. The repairs and maintenance to be performed under this Agreement shall include
reasonable improvements and maintenance work to adequately maintain said PMF's in
proper working order as determined by applicable City policies and requirements. The
maintenance shall include, but shall not be limited to, any storm water treatment best
management practice (BMP) facility or facilities, private drainage system, private road(s),
tree trimming, landscape, irrigation, debris removal, and perpetually maintaining
adequate ground cover and/or other erosion control measures within the private property
in order to prevent sedimentation. The PMF'S shall be maintained regularly as necessary
to keep the facilities in proper working order, with the minimum maintenance frequency
as outlined on Exhibit "B"
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7. The Agent shall be a property management company with experience in oversight of the
implementation of the maintenance activities as defined. The Agent shall be appointed
and paid by a board representing the property owners. The Agent shall be responsible and
obligated to ensure the ongoing maintenance of the PMFs. The Agent shall obtain three
bids from qualified and licensed contractors, accept the lowest responsible bid, and
initiate the private maintenance. The Agent shall be paid for all costs incurred including
a reasonable compensation for the Agent's services, and such costs shall be added to and
paid as a part of the repair and maintenance costs; provided, however, that compensation
for the Agent's services shall in no event exceed an amount equivalent to 10% of the
actual cost of repairs and maintenance performed. Under no circumstances shall any
contract or agreement for service(s) to be provided as outlined in this document, and any
additional repairs or services to be provided as outlined in subsequent attachments hereto,
be terminated by the Board or its Agent unless a replacement maintenance contract or
agreement has already been executed. The Agent and/or the Board representing the
homeowners shall be responsible for ensuring proper execution of the provisions of all
maintenance contracts and/or agreements, and subsequent timely payments for said
services. It is agreed that the Developer is initially the Agent to contract, oversee, and do
all acts necessary to accomplish the repairs and maintenance required and/or authorized
under this Agreement.
8. In performing his duties, the Agent, as he/she anticipates the need for funds, shall notify
the parties and each party shall within forty-five (45) days pay the Agent,. who shall
maintain a trustee account and also maintain accurate accounting records which are to be
available for inspection by any party or authorized Agent upon reasonable request. All
such records shall be retained by the Agent for a period of five years. Should any lot
owner fail to pay the pro rata share of costs and expenses as provided in this Agreement,
then the Agent or any lot owner or owners shall be entitled without further notice to
institute legal action for the collection of funds advanced on behalf of such lot owner in
accordance with the provisions of California Civil Code Section 845, and shall be entitled
to recover in such action in addition to the funds advanced, interest thereon at the current
prime rate of interest, until paid, all costs and disbursements of such action, including but
not limited to, such sum or sums as the Court may fix as and for reasonable attorneys'
fees.
9. If there is a covenant, agreement, or other obligation for the construction of
improvements imposed as a condition of the development, the obligation to repair and
maintain the PMFs as herein set forth shall commence when improvements have been
. completed and approved by the City. .
10. Any extraordinary repair required to correct damage to said PMFs that results ~rom 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 PMFs to the condition
existing prior to said damage.
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11. 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.
12. Owners shall jointly and severally defend and indemnify and hold harmless City, City's
engineer, 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 PMF'S, 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 PMFs.
13. Nothing in the Agreement, the specifications, other contract documents, City's approval
of the plans and specifications, or City's inspection of the work is intended to include a
review inspection acknowledgement of a responsibility for any such matter, and City,
City's engineer, its consultants, and each of its officials, directors, officers, employees
and Agents, shall have no responsibility or liability therefore.
14. The City is authorized to collect sums as appropriate for recovery of the costs for
abatement of any PMFs maintenance violation should the property owner fail to
voluntarily comply.
15. The Owner, its successors or assigns, ~ereby grants permission to the City and its
authorized Agents and employees, to enter upon the Property and to inspect the PMFs
upon reasonable notice whenever the City deems necessary. The purpose of inspection is
to follow-up on reported deficiencies and/or to respond to citizen complaints. The City
shall provide the Owner, its successors and assigns, copies of the inspection findings and
a written directive to commence with the specified repairs if necessary.
16. In the event the Owner, its successors or assigns, fails to maintain the PMFs in good
working condition acceptable to the City, the City, its Agents, or its contractors, may
enter upon the Property and take the steps necessary to correct deficiencies identified in
the inspection report and to charge the costs of such repairs to the Owner, its successors
or assigns. In the event the City pursuant to this Agreement, performs work of any
nature, or expends any funds in performance of said work for labor, use of equipment,
supplies, materials, and the like, the Owner, its successors and assigns, shall reimburse
the City upon written demand within thirty (30) days of receipt thereof for all actual costs
t.
incurred by the City hereunder. If said funds are not paid in a timely manner, City
reserves the right to file an assessment lien on the real property with the County Recorder
of the County of San Diego. It is expressly understood and agreed that the City is under
no obligation to maintain or repair said facilities, and in no event shall this Agreement be
construed to impose any such obligation on the City.
17. 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 9 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.
18. The terms of this Agreement may be amended in writing upon majority approval of the
owners and written notification of approval by the City.
19. 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.
20. This Agreement shall not be interpreted in any manner, which reduces or'limits the
Agent'sl Owners' rights and duties as set forth in this document.
21. 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.
22. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
This .~ { ,T day of fV111 , 2007.
Owner:a--.c='
BarrattAmericanInc., Robert C.~Cummings, Vice President
(print name and title)
Signature ofOwner(s) must be notarized. Attach the appropriate acknowledgement.
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EXHIBIT "A"
Case No. 03-104TMlDRlCDP
LEGAL DESCRIPTION"
THAT PORTION OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SECTION 15, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT
SURVEY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER OF
SAID SECTION 15; THENCE ALONG THE WESTERLY LINE OF SAID NORTHEAST
QUARTER, NORTH 01010'58" EAST, 480.00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING ALONG SAID WESTERLY LINE, NORTH
01010'58" EAST, 352.75 FEET TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN
DEED TO MABEL O'I1ARA, RECORDED NOVEMBER 27, 1928 IN BOOK 1552, PAGE
359 OF DEEDS; THENCE ALONG THE SOUTHERLY LINE OF SAID O'HARA'S LAND,
SOUTH 89050'29" EAST, TO THE NORTHWESTERLY BOUNDARY OF THAT PORTION
OF COUNTY ROAD SURVEY NO. 373 (KNOWN AS QUAIL GARDENS ROAD), AS
DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED NOVEMBER 28,
1924 IN BOOK 1038, PAGE 333 OF DEEDS, RECORDS OF SAN DIEGO COUNTY;
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY BOUNDARY TO A
LINE WHICH BEARS SOUTH 88050'29" EAST FROM THE TRUE POINT OF
BEGINNING; THENCE NORTH 88050'29" WEST TO THE TRUE POINT OF BEGINNING.
3 PB;MRH:G:Resos:RPC03-1041MDRCDPOI2005
Maintenance T e
STORMGATE Vault
STORMFILTER and facilities
Privately maintained, storm drain
system.
Private road maintenance (Quail
Point Lane)
Trimming of Tree(s) and/or any
common areas on Quail Point
Lane
Inspection and repair (as needed)
of irrigation sprinkler system for
any common landsca ed areas
EXHIBIT "B"
Minimum Re uired Fre uenc
, . Inspected monthly and cleaned
with Vactor (Vacon) equipment
annually, re lace filers as needed
Inspected monthly and cleaned
as needed
Once every five years
Not less than once every five
years
Inspected monthly and repaired
as needed
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EXHIBIT "C"
Description or Plat of Privately Maintained Facilities
TM 03-104
Private facilities to be maintained according to this agreement shall include:
All private Best Management Practices (BMP's), Stormgate vault, Stormfilter, all drainage facilities, pipes,
inlets, and appurtenances, together with all private roads, pavement, curbs, street lights, utilities, and
appurtenances as all as shown on City of Encinitas approved drawings numbers 9418-0 and 9418-1.
R
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On May 21, 2007, before me, RAELEINE K. NABORS. Notary Public, personally
appeared ROBERT C. CUMMINGS. 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 acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person (s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
LdJv
J . .,: .~..~ .: . ~~~~~IN~ K: ~ABO~S . (
,.. :ii' ~. COMM. #1477247 m
Ci) ; ,. 0 Notary Publlc-Callfornia en
w . . SAN DIEGO COUNTY :
J. .~';;.":,':. ~Y,C~~~._E~P~AP~I.1~.~O~~f
Signature
(Seal)
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
DESCRIPTION OF ATTACHED DOCUMENT
n INDIVIDUAL
[]] CORPORATE OFFICER
VICE PRESIDENT
TITLE
Ouail Pointe Private Roads, Storm Drain,
BMP, Maintenance Agreement
TITLE OR TYPE OF DOCUMENT
D PARTNERS
R ATTORNEY-iN-FACT
TRUSTEE(S)
GUARDIAN/CONSERV A TOR
OTHER:
D LIMITED
[J GENERAL
5
NUMBER OF PAGES
May 21,2007
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON OR ENTITY)
BARRATT AMERICAN INCORPORATED