2007-447115
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DOC # 2007-0447115
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Recording Requested By:
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City Engineer
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When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas, CA 92024
SPACE ABOVE FOR RECORDER'S USE ONLY
STORM DRAIN, BEST MANAGEMENT PRACTICES, PRIVATE IMPROVEMENTS IN PUBLIC
STREETS AND ALLEY, MAINTENANCE AGREEMENT
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Assessor's Parcel No. 's: 258-034-01, 10,1 1,12,13
Project No.: 05-108 TM
W.O.No.: 462-G
THIS AGREEMENT for the periodic maintenance and repair of that certain private and public
storm drain facilities, private storm water pollution control facilities (best management practices
BMPs), and privately maintained public storm drain as shown on grading plan 462-G and
privately maintained improvements as shown on drawings 462-1 and 462-G 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 The Lofts at
Moonlight Beach LLC, a California Limited Liability Company (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 Home Owners Association hereafter
referred to as HOA, 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
WHEREAS, it is the intention of the Developer to establish HOA as set forth under Section
6 below to be the future 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, together with the storm drain facility, and vegetation areas
related to the storm drain facilities which are to be constructed and maintained by Owners, and
HOA.
3. Privately Maintained Facilities (PMFs) may include facilities within areas 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, HOA, or the heirs,
assigns, and successors in interest of each such Owner. This includes any facilities or areas to
be privately maintained, together with the storm drain facilities, and vegetation areas related to
the storm drain, alley pavement, walkway in the public right-of-way, which are to be
constructed and maintained by Owner or assignees.
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, private streets, public street improvements not constructed
to public standards, driveways, any storm water treatment best management practice (BMP)
facility or facilities, private drainage system, tree trimming, landscape, irrigation, debris
removal, and perpetually maintaining adequate ground cover and/or other erosion control
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measures within the private property and public right-of-way 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 Developer and HOA shall hire a property management company, herein called the Agent
with experience in oversight of the implementation of said maintenance activities as herein
defined. The HOA shall have a board appointed by the owners representing the property
owners. The HOA shall be responsible and obligated to ensure the ongoing maintenance of the
PMFs. The Agents of the HOA shall be paid for all costs incurred for the maintenance of
PMFs which satisfies the City of Encinitas requirements. 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 of the HOA or its Agent unless a replacement maintenance contract
or agreement has already been executed. The Agent and/or the HOA 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. 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.
9. Owners, Developers, and/or HOA 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.
10. 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.
11. The City is authorized to collect sums as appropriate for recovery of the costs for abatement of
any PMFs maintenance violation should the HOA fail to voluntarily comply.
12. The Owners and/or HOA, their successors or assigns, hereby 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-
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up on reported deficiencies and/or to respond to citizen complaints. The City shall provide the
HOA its successors and assigns, copies of the inspection findings and a written directive to
commence with the specified repairs if necessary.
13. In the event the Owners and/or HOA their 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 HOA and Owner, its successors and assigns, shall reimburse the
City upon written demand within thirty (30) days of receipt thereof for all actual costs 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 ofthe 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.
14. 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.
15. The terms of this Agreement may be amended in writing upon majority approval of the HOA
board and written notification of approval by the City.
16. 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.
17. 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, Developer and
HOA.
18. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
This ;(1 ~ day of :r ~ , 2007.
Owner/Developer:
THE LOFTS AT MOONLIGHT BEACH LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
BY: Distinctive Pr . , Inc.,
A Calif co oration, Man er
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ACKNOWLEDGMENT
State of California
County of San Diego
On June 27,2007 before me, Chere Thomas, Notary Public
(here insert name and title of the officer)
personally appeared Evan Stone
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.
Signature ~ L\--
J;Q:" - :"=~"~7-J
j -,,; Notary Public . Callfomia ~
1 San DIego County i
. MvComm. ExpireSJul19. 2007'
....
WITN ESS my hand and official seal.
(Seal)
EXHIBIT "A"
Legal Description:
LOTS 1,2,3,4,5,6,16 AND THE NORTHERLY 10 FEET OF LOT 15 IN BLOCK 2, IN THE CITY
OF ENCINIT AS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 148 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 12, 1883.
EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE STATE OF CALIFORNIA
FOR ROAD PURPOSES BY DEEDS RECORDED MAY 12,1934 AND JULY 10,1934 IN BOOK
297, PAGE 136 AND BOOK 312, PAGE 76 RESPECTIVELY, BOTH OF OFFICIAL RECORDS
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
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EXHIBIT "B"
Maintenance T e
Storm Water Best Management
Practices, Grasscrete swales
Drainage Facilities, inlets, Kristar
filters, stromdrain outlets, storm
water leachin s stems
Private improvements in public
streets and alley, enhanced paving,
sidewalks and landsca in
Privately maintained, public storm
drain system throu h ro erty
Inspection and repair (as needed)
of irrigation sprinkler system for
common landsca ed areas
Minimum Re uired Fre uenc
Inspected monthly, repaired as
needed
Inspected monthly, replaced and
repaired per manufactures'
recommendations
Inspected monthly, repaired as
needed and requested by the City
Annually
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) items, Kristar filters, filters, drainage facilities, BMP
swales, pipes, inlets, outlets, storm water leaching systems, and appurtenances, together with private
facilities within public streets and alley including but not limited to enhanced pavement, sidewalks, and
landscaped areas ,all as shown on City of Encinitas approved drawings numbers 462-0 and 462-1.
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