2007-439167
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Recording Requested By: )
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City Engineer )
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When Recorded Mail to: )
~f City Clerk )
, Cr;- City of Encinitas )
505 South Vulcan Avenue )
Encinitas. CA 92024 )
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DOC # 2007-0439167
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JUN 29, 2007
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-0439167
SPACE ABOVE FOR RECOKlJhK':S U:Sb UNL Y
STORM DRAIN, BEST MANAGEMENT PRACTICES, PRIVATE IMPROVEMENTS IN PUBLIC
STREETS, MAlNTENANCE AGREEMENT
Assessor's Parcel No.'s: 254-061-01 ..;
Project No.: 03-090 TPM, CDP
W.O. No.: 372-G, I
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 372-G and
privately maintained improvements as shown on drawings 372-1 and 372-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 SHEA
HOMES LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP (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 to establish an Home Owner's Association
(herein referred to a HOA) as set forth under Section 6 below to be the future point of contact with
the City of Encinitas; 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 and HOA 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, 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 or the heirs,
assigns, and successors in interest of each such Owner and HOA. 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 ofland 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, 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 measures within the private property
and public right-of-way in order to prevent sedimentation. The PMF'S shall be maintained
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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 with experience in
oversight of the implementation of the maintenance activities as defined (hereinafter called
"Agent"). 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. Agents shall be paid for all costs incurred. For proper maintenance of PMF,
which satisfies 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. Developer, Owners 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-up on reported deficiencies and/or to respond to citizen complaints.
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The City shall provide the Owner, its successors and assigns, copies ofthe inspection
findings and a written directive to commence with the specified repairs if necessary.
13. In the event the Owners and/or BOA 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 BOA 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 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.
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 he
BOA 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 BOA.
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 15 day of (}u~e ,2007.
Owner/Developer.
Shea Homes Limited Partnership,
a Califo~nia .mited partnership
Agent
Signature of Owner must be notarized. Attach the appropriate acknowledgement.
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EXHIBIT "A"
Legal Description:
ALL THOSE PORTIONS OF BLOCKS 11, 12 AND 17 OF NORTH LEUCADIA IN THE CITY OF
ENCINIT AS, COUNTY OF SAN DIEGO, ST ASTE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 524, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, APRIL 6" 1888, TOGETHER WITH THOSE PORTIONS OF THE CLOSED STREETS
AND ALLEY ADJOINING SAID BLOCKS.
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EXHIBIT "B"
Maintenance T e
Storm Water Best Management
Practices, Grass swales
Drainage Facilities, inlets, filters,
stromdrain outlets
Private improvements in public
streets and alley, enhanced paving,
sidewalks and landsca in
Privately maintained, public storm
drain s stem throu h ro eft
Trimming of Tree(s) in streets
and/or any common 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
Not less than once every five
years
Inspection and repair (as needed) As needed
of irrigation sprinkler system for
common landsca ed areas
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EXHIBIT "C"
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Description or Plat of Privately Maintained Facilities
TM 03-090
Private facilities to be maintained according to this agreement shall include:
All private Best Management Practices (BMP's) items, drainage facilities, BMP swales, pipes, inlets,
outlets, 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 372-G and 372-1.
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State of California )
) s.s.
County of San Diego )
On June 15,2007 before me, Sarah A. Cordon, Notary Public, personally appeared Alexander L.
Plishner and Jim Kilgore personally known to me to be the persons whose name is subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signature on the instrument the persons, or the entity upon behalf of
which the persons acted, executed the instrument.
WITNESS my hand and official seal.
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