2007-671439
-., DOC# 2007-0671 439
111111111111111111111111111111111111111111111111111111I11111111111111
Recording Requested By: ) OCT 19, 2007 8:44 AM
~4f ) o FFI [I,t.1 F: E CI] F: D ~:,
City Engineer ) ':;,'"JJ DIE Ci I] CI] U r'n'i F: E co F: D E F: ":; I] FFI CE
Ci R E~iC1 Wi,J ~:; t",jl T H CO U r'H',' F: E OJ F: D E F:
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tv When Recorded Mail to: ) PAGES: 11
(" City Clerk
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I C., City of Encinitas )
505 South Vulcan A venue )
Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
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PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No. 260-222-16 /
Project No.: 05-265 TPM
W.O.No.: 388-G
A. 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 Exhibits
attached hereto and made a part hereof, is entered into by WILLIAM J. CAVANAUGH III, AN
UNMARRIED MAN AS TO AN UNDIVIDED 50% INTEREST AND PETER DEERING, A
SINGLE MAN AS TO AN UNDIVIDED 50% INTEREST, AS TENANTS IN COMMON
(hereinafter referred to as "Developer") for the benefit of future owners who will use the private
storm water treatment facilities (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 storm water treatment facilities(s), said real property
hereinafter referred to as the "property"; and
WHEREAS, Property use and enjoy the benefit of certain facilities for storm water
treatment and pollution control, said facilities described in Exhibit "B" attached hereto and made
a part hereof; and
WHEREAS, it is the desire ofthe 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 in compliance with Exhibit "C", the City
of Encinitas Municipal Code and other related City policies and requirements; 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 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 private storm water facilities shall be constructed by the Owner, its successors and
assigns, in accordance with the plans and specifications identified in the Plan.
3. 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 or each such owner.
4. 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.
5. The repairs and maintenance to be performed under this Agreement shall be limited to the
following: reasonable improvements and maintenance work to adequately maintain said
private storm water treatment facilities in proper working order as determined by
applicable City policies and requirements and 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,
perpetually maintaining adequate groundcover and/or other erosion control measures
within the private property in order to prevent sedimentation, and other work reasonably
necessary and proper to repair and preserve the private storm water treatment facilities for
their intended purposes and to prevent sedimentation in storm water runoff. The private
storm water facilities shall be maintained regularly as necessary to keep the facilities in
proper working order, with a minimum maintenance frequency of twice annually. In the
event a maintenance schedule for the Storm Water BMP facilities (including sediment
removal) is outlined on the approved plans, the schedule will be followed.
6. 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
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maintain the private storm water treatment facilities as herein set forth shall commence
when improvements have been completed and approved by the City.
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7. 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.
8. 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.
9. 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.
10. 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 Owner, its successors and assigns, shall inspect the stormwater management/BMP
facility and submit to the City an inspection report annually. The purpose of the
inspection is to assure safe and proper functioning of the facilities. The inspection shall
cover the entire facilities, berms, outlet structure, pond areas, access roads, etc.
Deficiencies shall be noted in the inspection report.
11. Chapter 11.12 of the Encinitas Municipal Code outlines in detail the nuisance abatement
process and the City's authority to require correction of any property maintenance
violation that is deemed a public health or safety hazard or threat. The City is authorized
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to collect sums as appropriate for recovery of the costs for abatement of any property
maintenance violation should the property owner fail to voluntarily comply.
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12. The Owner, its successors and assigns, hereby grant permission to the City, its authorized
agents and employees, to enter upon the Property and to inspect the stormwater
management/BMP facilities 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 directive to commence with the repairs if necessary.
13. In the event the Owner, its successors and assigns, fails to maintain the stormwater
management/BMP facilities 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 and 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 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 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. This Agreement imposes no liability of any kind whatsoever on the CITY and the Owner
agrees to hold the CITY harmless from any liability in the event the stormwater
management/BMP facilities fail to operate properly.
15. 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.
16. The terms of this Agreement may be amended in writing upon majority approval of the
owners and consent ofthe City.
17. 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.
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18.
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:
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(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 shan not be interpreted in any marmer, which reduces or limits
the Association's rights and duties pursuant to its Bylaws and DecIaration.
19. 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.
20. The foregoing covenants shall run with the land and shaH 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 }\'!IIl..REOF, the parties ave executed this Agre~ment
This () 7/ .tr/ day of , 2007.
Developer:
PETER DEERING
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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18. 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 defmed 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 "Declarati9n" (as defined in
California Civil Code Section 1351(h), and (ii) the Common Area of the property
(including the private stonn 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.
19. 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.
20. 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 Agre<?ment
This ::2. N D day of .:JIW \.'" i , 2007.
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Developer:
~AVGHm .
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PETE EE G ~
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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EXHIBIT "A"
To Covenant 05-265
Legal Description
THE SOUTH HALF OF THE NORTH HALF OF THE NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 23, TOWNSHIP
13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
UNITED STATES GOVERNMENT SURVEY APPROVED APRIL 19,1881.
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EXHIBIT "B"
Description or Plat of Privately Maintained Facilities
TM 05-265
Private facilities to be maintained according to this agreement shall include:
All private Best Management Practices (BMP's) items, filters, 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
ofEncinitas approved drawings numbers 388-G and 388-1.
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EXHIBIT "C"
Maintenance T e
Storm Water Best Management Practices,
Grass swales
Drainage Facilities, inlets, stromdrain
outlets
Private improvements in public streets
and alley, enhanced paving, sidewalks
and landsca ing
Privately maintained, public storm drain
system throu h ro eft
Inspection and repair (as needed) of
irrigation sprinkler system for common
landsca ed areas
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Inspected monthly, replaced and
repaired per manufactures'
recommendations
Inspected monthly, repaired as needed
and requested by the City
Annually
As needed
,
ALV.PURPOSE ACKNOWLEDGMENT
State of California
,
County of SfrIY J1A f/U
On 0 ~
(DATE) , '
personally appeared 1l.11JJJ..1f>>1
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before me, R ( 1(()7Utt/I14 Net~ ~UBUC
(NOTARY)
)rJ 'y( LflJI Cf)1/ fl Nit<<. (rf-t It (
SIGNER(S)
o personally known to me
- OR -
r)! proved to me on the basis of satisfactorj
evidence to be the perso~ whose nam~)
is/avl subscribed to the within instrument and
acknowledged to me that he/s;(e/thfy executed
the same in his/hfr/tb-e'G- authorized
capacity(iA), and that by his/q.er/~ir
signatures(~~n the instrument the persoIX's),
or the entity upon behalf of which the
personfs) acted, executed the instrument.
WITNESS my hand and official seal.
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NOTARY'S SIGNATURE
OPTIONAL INFORMATION
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
edgment to an unauthorized document.
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
OTHER
RIGHT THUMBPRINT
OF
SIGNER
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CAPACITY CLAIMED BY SIGNER (PRINCIPAL)
o INDIVIDUAL
o CORPORATE OFFICER
TITLE(S)
o PARTNER(S)
o ATTORNEY-IN-FACT
o TRUSTEE(S)
o GUARDIAN/CONSERVATOR
o OTHER:
APA 5/99
VALLEY-SIERRA, 800-362-3369
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of Cal~ornia WJ ~~~ . ~~~\.~
Name and Title of Officer
personally appeared
Name(s) of Signer(s)
D personally known to me
(or proved to me on the basis of satisfactory evidence)
Capacity(ies) Claimed by Signe
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
[J Trustee
o Guardian or Conservator
o Other:
Place Notary Seal Above
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@ ERIKA K. DA LUZ
.-. . Commission # 1641388
~ . - ,,; Notary Public - California ~
j San Diego County ~
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Des . tion of Attached Document
Title or T of Document:
Number of Pages:
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
Attorney in Fact
o stee
o Gu ian or Conservator
o Other:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
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@ 2006 National Notary Association' 9350 De Soto Ave., P.O. Box 2402 . Chatsworth, CA 91313-2402 Item No. 5907