2009-159503
DO # 2009-0159503
IIIIIIII 111111111111111111111111111111111111111111111111111111111 II I
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Recording Requested By: ) MAR 30, 2009 4:14 PM
OFFICIAL RECORDS
City Engineer ) 1 -,4N DIEGO COUNTY RECORDER'S OFFICE
`rte GAUIG L. BUTLER. COUNTY RECORDER
FEES: 40.00
When Recorded Mail to:
City Clerk ) PAGES: 11
City of Encinitas
505 South Vulcan Avenue )
Encinitas, CA 92024
SPACE ABOVE FOR RECORDERS USE
PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
APN: 260-351-31 ✓ Project No.: TM 07-193
Site Address: 125 Mozart Ave. 10068-G,I,FM
q(~- THIS AGREEMENT for the periodic maintenance and repair of that certain private
CPO 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 125 Mozart L.P., a
California Limited Partnership, 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
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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
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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".
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.
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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
mansgement/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 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 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
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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 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
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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.
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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:
125 MOZART L.P., A CALIFO IA LIMITED PARTNERSHIP
By.
r tt F~'trr vIng Dat
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
j
County of 5~ i1 ly tD i C C>
On 3 - 2c c= I before me, J C~ S c_pl + C: L% 1414 S ~ZL'~6 e e
(here insert name and title of the o er)
personally appeared t3 iZ (=T-T- 1=4 /ZIZC' L-1
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.
JOSEPH C. YUHAS
WITNESS my hand and official seal. COMM. #1606409
NOTARY PUBLIC • CALIFORNIA
SAN DIEGO COUNTY
J G`~ Commission Expires Jul 13, 2012
Signature of Notary Public (Seal)
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Exhibit `A'
Legal Description of Real Property
APN 260-351-31
LOT 1 OF KREMER PARK, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 3412, FILED IN THE
OFFICE COUNTY RECORDER OF SAID SAN DIEGO COUNTY OF
APRIL 18, 1956, EXCEPTING THEREFROM THAT PORTION LYING
SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON A SOUTHEASTERLY LINE OF SAID LOT 1 DISTANT
THEREON NORTH 44012'24" EAST (RECORD NORTH 44011'EAST) 35.29 FEET
FROM THE SOUTHERLY CORNER THEREOF; THENCE NORTH 27128'59" WEST
64.00 FEET; THENCE SOUTH 62°48'00" WEST 30.50 FEET TO A POINT THAT IS
13.00 FEET NORTHEASTERLY OF AND MEASURED AT RIGHT ANGLES TO THE
SOUTHWESTERLY LINE OF SAID LOT 1; THENCE PARALLEL TO SAID LINE
NORTH 27°28'59" WEST 123.25 FEET TO THE POINT OF TERMINUS IN THE
NORTHWESTERLY LINE OF SAID LOT 1; SAID LAND IS DESCRIBED ON THAT
CERTAIN CERTIFICATE OF COMPLIANCE RECORDED JUNE 4, 2003 AS
INSTRUMENT NO. 2003-658306 OF OFFICIAL RECORDS.
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EXHIBIT 'B
PLAT OF STORM WATER POLLUTION CONTROL FACILITIES
APN.• 260-351-31
i-AND SG9
PN C yGy ~o
LS 5211 N
Exp. 06/30/09
Q
OF CAS
PERMANENT BMP
TREATMENT SWALE
PERMANENT BMP
PERVIOUS PAVEMENT
PERMANENT BMP
TREATMENT SWALE
O Y1p~
N Y
~t
1 9tl
PERMANENT 8MP
4. P. r
TREATMENT SWALE
PERMANENT BMP
DETEN BASIN
Exhibit "C"
Minimum Maintenance Schedule for
Private Storm Water Pollution Control Facilities
125 Mozart Ave. APN: 260-351-31
TM 07-193
Maintenance Type Minimum Required Frequency
Storm Water Best Management Practices, Inspected monthly, repaired as needed
Rock lined Swales
Drainage Facilities, inlets, storm drain inspected monthly, replaced and repaired per
outlets manufacturers' recommendations
Private improvements in public street, porous inspected monthly, repaired as needed
pavement sidewalk, drainage swale,
landscaping and re uested b the City
Inspection and repair (as needed) of As needed
irrigation sprinkler system for common
landscaped areas
Pervious Pavement Inspected annually, repaired as needed and
re uested b the City
Turfblock Strips Inspected Quarterly, replaced and repaired as
needed