2008-162733
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DOC # 2008-0162733
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MAR 27, 2008
2:40 PM
Recording Requested By:
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OFFICIAL RECORDS
':;AN DIEGO COUNT'!' RECORDER'S OFFICE
GREGOR')' ,.I SMITH. COUNT\' RECORDER
FEES 0.00
City Engineer
PAGES: 9
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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
PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
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Assessor's Parcel No. 254-663-07 and 03
Project No. 05-268 CDP
W.O.No.: 704-0
THIS AGREEMENT for the periodic maintenance and repair of that certain private stonn 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 the Lessee. Quail Botanical Gardens
(hereinafter referred to as "Developertl) for the benefit of future lessees who will use the private
storm water treatment facilities {hereinafter referred to as "Lessee(s)", which shall include the
Developer to the extent the Developer retains any lease 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 lessee of certain real property as described in Exhibit "A"
that will use and enjoy the benefit of said stonn 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 lessee; 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; 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 the lessee 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 lessee 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 lessee 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 lessee.
4. In the event any of the herein described parcels of land are subdivided further, the lessees
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 stonn 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 lessee 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 lessee 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 lessee 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 lessee as they bear the costs and
expenses of such repairs and maintenance. Lessee 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. Lessee 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 lessee, 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 Lessee 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.
12. 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 lessee fail to voluntarily comply.
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13. The Lessee hereby grants permission to the City, its authorized agents and employees, to
enter upon the Property and to inspect the storm water managementlBMP 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 Lessee copies of the inspection findings and a directive to commence with the
repairs if necessary
14. In the event the Lessee 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 Lessee. 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 Lessee shall reiIl!burse 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 take legal action for recovering the cost. 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.
15. This Agreement imposes no liability of any kind whatsoever on the CITY and the Lessee
agrees to hold the CITY harmless from any liability in the event the stonnwater
management/BMP facilities fail to operate properly.
16. 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 tenns 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.
17. The terms of this Agreement may be amended in writing by the Lessee and consent ofthe
City.
18. 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.
19. If the Property constitutes a "Common Interest Development" as defined in California
Civil Code Section 135I(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
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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:
(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 am.endment
. 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.
20. It is understood and agreed that the covenants herein contained shall be binding on the
Lessee.
21. The foregoing covenants shall run with the land and shall be deemed to be for the benefit
of the land of the lessee and each and every person who shall at anytime lease all or any
portion of the property referred to herein.
IN WITNESS WHEREOF, the parties have executed this Agreement
This 1'2>-rJl day of March. ,2008.
Developer:
Lessee:
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of
On II!41C /J. 2Pt7Jbefore me,
Date (
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Cornelia A. EI'
Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
~~..... :~ ..... .... ~O;N;U; A~E~S~R .... ~
_ Commission # 1543211
~ ..,,; Notary Pubnc - Cal/fomia ~
~ San Diego County f
'Or 'Or 'Or ~:~!~e:.~l~~
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
who 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.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
Signature
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
.
@2oo7 National Notary Association' 9350 De Soto Ave., P.O. Box 2402 'Chatsworth, CA 91313-2402' www.NationaINotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827
Exhibit' A'
Legal Description of Real Property
APN 254-663-07 and 03
LOT 20 OF CITY OF ENCINITAS TRACT NO. 99-137, IN THE CITY OF ENCINITAS,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 13998, FILED IN THE OFFICE OF THE COUNTY RECORDER ON JULY 11,2000
AS FILE NO. 2000-0365640.
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EXHI81T 11811
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PR/~TE STORM DRAIN
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QUAIL BOTANICAL GARDENS EXPANSION
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64072.65
EXHIBIT "C"
Maintenance Type Minimum Required Frequency
Stonn Water Best Management Practices; Inspected monthly, repaired as needed
Vegetated / Grass swale.
Drainage Facilities, inlets, storm drain outlets Inspected monthly, replaced and repaired
per manufactures' recommendations
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