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2007-353916 W ~(I , !,~(\ ~\01 i\,q\ '-f/J fI DOC # 2007-035391 6 !IIIII:I 111111111111111111111111111111111111111111111111111111111 1111 Recording Requested By: MAY 24, 2007 3:49 PM ) ) ) ) ) ) ) ) ) City Engineer o FFI Ci.6,L F: E co F: D ~:; ~:;,6JJ DIEGO COUHT'r' F:ECOF:DEH":, OFFICE C.F1ECiOR','.J. St'..1ITH cour'H',' F:ECORDEF: FEE':; 32.1]1] P,6'(3 E S ~3 When Recorded Mail to: City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 IIWWI~WWWWWWWWWllil 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 i 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" / 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. 'I 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. <; 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 7 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 () 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