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2009-24816 I' DOS # 2009-0024816 II111111 III 1111111111111111111111111111111111111111111111111111111111 IN Recording Requested BY: 1 JAN 20, 2009 3:57 PM OFFICIAL RECORDS City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE ` DAVID L. ELITLER, COLINTY RECORDER FEES: 40.00 When Recorded Mail to: ) PAGES: 11 City Clerk City of Encinitas 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY PRIVATE STORM WATER TREATMENT Oq MAINTENANCE AGREEMENT Assessors Parcel No.'s: 258-111-40 Project No.: 07-070 SUBC Site Address: 350 Encinitas Boulevard Building Plan No.: 08-257/258 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 HSP Encinitas. Inc., 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 in accordance with the minimum maintenance schedule in Exhibit "C" attached hereto and made a part hereof, 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. I 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 or as stated in the minimum maintenance schedule attached as Exhibit "C". 2 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. 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 3 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 owner fail to voluntarily comply. 13. 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 14. 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 Ibnds 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. 15. 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. 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 terms of this Agreement to institute legal action as 4 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 upon majority approval of the owners and consent of the 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 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: (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. i 5 20. 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. 21. 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 Agreement. DEVELOPER: BY: Mu~4 vid Hackbart D e For HSP Encinitas Inc., a California Corporation Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. 6 Exhibit `A' Legal Description of Real Property APN 258-111-40 THAT PORTION OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNADINO MERIDIAN. IN THE CITY IF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH QUARTER CORNER OF SAID SECTION 15, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNADINO MERIDIAN, RUNNING THENCE NORTH 89°49'30" WEST, 673.31 FEET TO A POINT, SAID POINT BEING THE NORTHEAST CORNER OF SAID WEST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER; THENCE SOUTH 01°34'15" WEST, 534.22 FEET ALONG THE EASTERLY BOUNDARY OF SAID WEST HALF TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 01°34'15" WEST ALONG SAID EASTERLY LINE, 574.54 FEET, MORE OR LESS, TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF COUNTY ROAD SURVEY NO. 458, AS SHOWN ON MAP ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR OF SAID COUNTY; THENCE ALONG SAID RIGHT OF WAY, NORTH 52°58'30" WEST, 25.08 FEET, THENCE NORHTWASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST HAVING A CENTRAL ANGLE OF 19°00'00" AND A RADIUS OF 725.00 FEET, A DISTANCE OF 250.96 FEET, THENCE NORTH 72°48'30" WEST, 50.38 FEET; THENCE NORTH 20°41'45" EAST, 452.67 FEET; THENCE NORTH 87°11'45" EAST, 146.37 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THAT PORTION CONVEYED TO THE COUNTY OF SAN DIEGO BY DEED RECORDED AUGUST 10, 1967 AS RECORDER'S FILE NO. 119392. ~I 7 EXHIBIT 'B' APN: 258-111-4000 350 ENCINITAS BLVD, ENCINITAS, CA = cCDZ- V1 O 3'. O _ ;00 8 Z O _D M- z O Om ~ Z D cn OC.+ BOO DDO D O~ _q mom r O OZ ~mD ic: c r -i z r M -U r- Ox A oz Dmg ~r W 0 m -i O x O0 or- om X o M Zj ;:o M co ~ > m v K U) co 0 D'o mm co < ~a Z -1Z 0 ~N~ zo O r r C7 ~ r 0 ;u -1 p y Vim= E v$ ;u co O `2X~ a No D (n N i m Z O E- C \ 4 ) wEI c/) P o~ ~a r < r 12 ~D m~ z ®OOOQ 00000 IRS Exhibit "C" Minimum Maintenance Schedule for Private Storm Water Pollution Control Facilities APN 258-111-40 GENERAL SPECIFICATIONS FOR MAINTENANCE OF FLO-GARD° CATCH BASIN INSERT FILTERS SCOPE: Federal, State and Local Clean Water act regulations and those of insurance carriers require that stormwater filtration systems be maintained and serviced on a recurring basis. The intent of the regulations is to ensure that the systems, on a continuing basis, efficiently remove pollutants from stormwater runoff thereby preventing pollution of the nation's water resources. These Specifications apply to the Flo-Gard° catch basin insert filters. RECOMMENDED FREQUENCY OF SERVICE: Drainage Protection Systems (DPS) recommends that installed Flo-Gard° Catch Basin Insert Filters be serviced on a recurring basis. Ultimately, the frequency depends on the amount of runoff, pollutant loading and interference from debris (leaves, vegetation, cans, paper, etc.); however, as a minimum, it is recommended that each installation be serviced a minimum of three times per year, with a change of filter medium once per year. DPS technicians are available to do an on-site evaluation, upon request. RECOMMENDED TIMING OF SERVICE: DPS guidelines for the timing of service are as following: I. For areas with a definite rainy season: Prior to, during and following the rainy season. 2. For areas subject to year-round rainfall: On a recurring basis (at least three times per year).. 3. For areas with winter snow and summer rain: Prior to and just after the snow season and during the summer rain season. 4. For installed devices not subject to the elements (washracks, parking garages, etc.): On a recurring basis (no less than three times per year). SERVICE PROCEDURES: 1. The catch basin shall be visually inspected for defects and possible illegal dumping. If illegal dumping has occurred, the proper authorities and property owner representative shall be notified as soon as practicable. 2. The catch basin grate will be removed and set to one side. Then either: a. An industrial vacuum shall be used to carefully remove all sediment and debris from the filter portion of the unit, or b. By grasping the filter's stainless steel frame, the entire filter shall be carefully removed from the catch basin. The filter medium pouches shall then be removed by unsnapping the tether from the D-ring and set to one side. Being careful not to spill, the contents shall be removed. 3. The filter liner, gaskets, stainless steel frame and other components shall be inspected for continued serviceability. Minor damage or defects found shall be corrected on-the-spot and a notation made on the Maintenance Record. More extensive deficiencies that affect the efficiency of the filter (torn liner, etc.), if approved by the customer representative, will be corrected and an invoice submitted to the representative along with the Maintenance Record. 4. The filter medium pouches shall be inspected for defects and continued serviceability and replaced as necessary. See below. 5. If removed, the filter device shall be replaced in the catch basin and the grate replaced. Exhibit "C" Minimum Maintenance Schedule for Private Storm Water Pollution Control Facilities APN 258-111-40 REPLACEMENT AND DISPOSAL OF EXPOSED FILTER MEDIUM AND COLLECTED DEBRIS The frequency of filter medium pouch exchange will be in accordance with the existing DPS-Customer Maintenance Contract. DPS recommends that the medium be changed at least once per year. During the appropriate service, or if so determined by the service technician during a non-scheduled service, the filter medium pouches will be replaced with new pouches. Once the exposed pouches and debris have been removed, DPS has possession and must dispose of it in accordance with. local, state and federal agency requirements. Note: As the generator, the landowner is ultimately responsible for the proper disposal of the exposed filter medium and debris. Because the filter medias likely contain petroleum hydrocarbons, heavy metals and other harmful pollutants, the materials must be treated as an EPA Class 2 Hazardous Waste and properly disposed of. DPS relieves the landowner of the actual disposal task, and provides certification of its completion in accordance with appropriate regulations. DPS also has the capability of servicing all manner of catch basin inserts and catch basins without inserts, underground oil/water separators, stormwater interceptors and other such devices. All DPS personnel are highly qualified technicians and are confined space trained and certified. Call us at (888) 950-8826 for further information and assistance. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 'C~~Lwt'Q On ` 13• ( before me, Date He ineft Name and Title of the cer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(sT whose name(sl is/are subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in hisAie#tpeir authorized DEANA GAY capacity(tee), and that by his/`I-heir signature(9% on the Commission # 550047 _ instrument the person(el, or the entity upon behalf of ` Notary Public - California which the person(4 acted, executed the instrument. San Diego cowdy ftA comm. lx ire: Feb 5 2009 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand' nd official I. Signature Place Notary Seal Above Signature of Notary Publi 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 caand~reattachment of this form to another document. Description of Attached Document Title or Type of Document: V6J &Nee ik1m\'Kl Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer - Title(s): ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Partner - ❑ Limited ❑ General _ ❑ Attorney in Fact ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association- 9350 De Soto Ave., PO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827