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2009-159503 DO # 2009-0159503 IIIIIIII 111111111111111111111111111111111111111111111111111111111 II I I 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 Y 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 2 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. 3 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 4 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 5 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. 6 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. h 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) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative (Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the (Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required. I • State and County information must be the State and County where the document Number of Pages Document Date signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. (Additional information) • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). ~ • Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. ❑ Individual (s) he/sheAhe3 is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. ❑ Corporate Officer . The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a (Title) sufficient area permits, otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. El Attorney-in-Fact Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. ❑ Other Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com 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. a " 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