2008-3721
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DOC # 2008-0003721
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Recording Requested By:
City Engineer
JAN 03, 2008
4:42 PM
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o FFI C1AL R E [0 F: D ~:;
':,,~N DIECiO COUNT!' F,ECi]F:DER'S OFFICE
C~F:E[iOFry' J St,,'1ITH [[IUr'JT!' RECiJF:DEF,
FEES. 38.00
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan A venue
Encinitas, CA 92024
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PAGES: 10
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SPACE ABOv.L:, nJl'l..1'I...L:,vVI\..UDI\..~ U~D Vl~Lr
PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
Assessor's Parcel No. 264-173-211
Project No.: 05-202 TPM
W.O.No.: 325-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 R. RIMMER CONSTRUCTION,
INCORPORPORATED, A CALIFORNIA CORPORATION, (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 of the 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 V ALUABLE 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
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
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
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.
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
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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 storm water
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 of the 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.
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
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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:
(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 13 51 (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.
EOF, the paAhave executed this Agreement
dayof \.. -AI' ,2008
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ESIDENT
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Signature 0
ELOPER must be notarized. Attach the appropriate acknowledgement.
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ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
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COUNTY OF ~t'\ 1),.eJ 0 }
On ()C:.'\ /i"c\ 2 lr) X- before me,
~^ SMPtch~~ /lhl"r
(Insert !J..E!M and tit e of the ffieer)
personally appeared ~. ~ """ ~'Y\9' r
who proved to me on the basis of satisfactory evidence to be the person(~ whose name~subscribed
to the within instrument and acknowledged to me tha~ executed the same i~
authorized capacity(i~, and that b~r signature~ on the instrument the person~, or
the entity upon behalf of which the person~ acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
JIN S. DEWOLF
COMM. #1744873 ~
NOTARY PUlUC-cAUFORNIA :r:-
SAN DIEGO COUNTY -.
My Comm. Expires MAY 13, 2011
(This area for official notarial seal)
Rec.Form #R11 (12/05/07)
EXHIBIT "A"
To Covenant 05-202
Legal Description
PARCEL 1:
THAT PORTION OF BLOCKS 75 AND 76 OF THE COLONY OLIVENHAIN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 326, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 8, 1985, TOGETHER WITH
THAT PORTION OF "H" STREET LYING BETWEEN SAID BLOCKS 75 AND 76 WHICH WAS VACATED
AND CLOSED TO PUBLIC USE ON AUGUST 28, 1924, BY RESOLUTION OF THE BOARD OF
SUPERVISORS OF SAN DIEGO COUNTY, A CERTIFIED COPY OF WHICH WAS RECORDED AUGUST
28, 1924, IN BOOK 751, PAGE 423 OF DEEDS, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID BLOCK 76, DISTANT THEREON
NORTH 730 26' 35" WEST (RECORD NORTH 730 43' WEST) 83.64 FEET FROM THE
NORTHEASTERLY CORNER THEREOF, SAID POINT BEING THE NORTHWESTERLY CORNER OF LAND
CONVEYED TO RANSOM HENSHAW, ET UX, BY DEED RECORDED SEPTEMBER 25, 1950, IN BOOK
3791, PAGE 84 OF OFFICIAL RECORDS; THENCE ALONG THE WESTERLY LINE OF SAID LAND
SOUTH 1P 22' 53" WEST (RECORD 110 21" WEST) 294.70 FEET; SOUTH 180 54' 53" WEST
(RECORD SOUTH 180 55' WEST) 81.29 FEET TO THE EASTERLY PROLONGATION OF THE
NORTHERLY LINE OF LAND CONVEYED TO TADASO TSUDA, ET UX, BY DEED RECORDED MAY 1,
1969, AS FILE NO. 75955 OF OFFICIAL RECORDS; THENCE ALONG SAID EASTERLY
PROLONGATION AND THE NORTHERLY LINE OF SAID LAND NORTH 730 54' 00" WEST (RECORD
NORTH 730 33' 30" WEST) 386.21 FEET; THENCE NORTH 150 06' 12" EAST, 377.91 FEET
TO THE NORTHERLY LINE OF SAID BLOCK 75; THENCE ALONG THE NORTHERLY LINE OF SAID
BLOCK 75 AND 76, SOUTH 730 26' 35" EAST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING EASTERLY OF A LINE DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTHERLY LINE OF THE ABOVE DESCRIBED LAND DISTANT
THEREON NORTH 730 26' 35" WEST, 175.00 FEET FROM THE NORTHEASTERLY CORNER OF SAID
LANDi THENCE SOUTHERLY IN A STRAIGHT LINE TO A POINT ON THE SOUTHERLY LINE OF
SAID LAND DISTANT THEREON NORTH 730 54' 00" WEST, 175.00 FEET FROM THE
SOUTHEASTERLY CORNER OF SAID LAND.
ALSO EXCEPTING THEREFROM HALF OF ALL PETROLEUM, GAS AND HYDROCARBONS, AS
RESERVED BY GLADDIN MC BEAN & CO., A CORPORATION, IN DEED RECORDED JANUARY 16,
1958, IN BOOK 6910, PAGE 17 OF OFFICIAL RECORDS.
PARCEL 2:
AN EASEMENT AND RIGHT OF WAY FOR ROAD AND PUBLIC UTILITY PURPOSES OVER, UNDER,
ALONG AND ACROSS A STRIP OF LAND 30.00 FEET IN WIDTH LYING WITHIN BLOCK 75 OF
COLONY OLIVENHAIN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN
DIEGO COUNTY, JULY 8, 1885, THE WESTERLY LINE OF SAID STRIP OF LAND BEING
DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT INTERSECTION OF THE SOUTHERLY LINE OF BLOCK 76 WITH THE
WESTERLY LINE OF COUNTY SURVEY NO. 554, A COPY OF SAID SURVEY BEING ON FILE IN
THE OFFICE OF THE COUNTY SURVEYOR OF SAID SAN DIEGO COUNTY, SAID POINT BEING
ALSO THE MOST SOUTHERLY CORNER OF THAT LAND DESCRIBED IN DEED TO TADASO TSUDA,
ET UX, RECORDED MAY 1, 1969 AS FILE NO. 75955, OF OFFICIAL RECORDS; THENCE ALONG
THE SOUTHERLY LINE OF BLOCKS 76 AND 75 NORTH 73044' WEST (RECORD NORTH 73033'30"
WEST) 356.03 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LlNEi THENCE
NORTHEASTERLY INA STRAIGHT LINE 340.00 FEET, MORE OR LESS, TO THE MOST WESTERLY
CORNER OF PARCEL 1 HEREINABOVE DESCRIBED.
PARCEL 3:
AN EASEMENT AND RIGHT OF WAY FOR WATER PIPE LINES AND APPURTENANCES THERETO TO
BE 3 FEET IN DEPTH UNDER AND ALONG THE NORTHERLY 3 FEET OF THE SOUTHERLY 257
FEET, MEASURED ALONG THE WESTERLY LINE OF THE FOLLOWING DESCRIBED PARCEL OF
LAND:
THAT PORTION OF BLOCK 75 AND 76 AND OF "H" STREET OF THE COLONY OLIVENHAIN, IN
THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 326,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 8, 1885,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID BLOCK 76i DISTANT THEREON
WESTERLY 258.64 FEET FROM THE NORTHEASTERLY CORNER OF BLOCK 76i THENCE SOUTH 730
26' 35" EAST (RECORD 730 43' EAST) 175 FEET TO THE NORTHWESTERLY CORNER OF LAND
CONVEYED TO KANSOM HENSHAW, ET US, BY DEED RECORDED OCTOBER 27, 1950, IN BOOK
3841, PAGE 367 OF OFFICIAL RECORDSi THENCE ALONG THE WESTERLY LINE OF SAID LAND,
SOUTH 110 22' 53" WEST (RECORD SOUTH 1P 21 WEST) 294.70 FEETi THENCE SOUTH 180
54' 53" WEST (RECORD SOUTH 180 53' WEST) 81.29 FEET TO THE EASTERLY PROLONGATION
OF THE NORTHERLY LINE OF LAND CONVEYED TO TADASO TSUDE, ET UX, BY DEED RECORDED
MAY 1, 1969, AS FILE NO. 75955 OF OFFICIAL RECORDS; THENCE ALONG SAID
PROLONGATION NORTH 730 54' WEST (RECORD NORTH 730 33' 30" WEST) 175 FEET; THENCE
NORTHERLY IN A DIRECT LINE TO THE POINT OF BEGINNING.
(APN: 264 -173 -21)
EXHIBIT "B"
Description or Plat of Privately Maintained Facilities
TM 05-202
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
of Encinitas approved drawings numbers 325-0.
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. I , ...
EXHIBIT "C"
Maintenance T e
Storm Water Best Management Practices,
Grass swales
Drainage Facilities, inlets, stormdrain
outlets
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
landscaped areas
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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