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2009-312095Recording Requested By: ) City Engineer (lie ) ok When Recorded Mail to: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) DOC'C 2009-0312096 p 11111111111111111111111111111111111111111111111111111111111 IN JUN 09, 2009 3:41 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNT`' RECORDER FEES: 34.00 PAGES: 9 111111111111111111111111111111111111111111IIIII1111111111IIIII11111IIIII1111111 SPACE ABOVE FOR RECORDER'S USE ONLY PRIVATE STORM DRAIN AND BEST MANAGEMENT PRACTICES MAINTENANCE AGREEMENT 1 a t'~ Assessor's Parcel No.'s: 260-072-35 " Project No.: 05-044 Site Address: 303 Santa Fe Dr Medial Offices W.O.No.: 9561-G l~ C' THIS AGREEMENT supersedes PRIVATE STORM DRAIN AND BEST MANAGEMENT PRACTICES MAINTENANCE AGREEMENT Document Number: 2007-0598500 and Recorded on September 11, 2007. THIS AGREEMENT for the periodic maintenance and repair of that certain private and public storm drain facilities, private storm water pollution control facilities (best management practices BMPs), open space, fire fuel modification zone, and privately maintained public stone drain as shown on grading plan 9561-G and hereinafter referred to as Privately Maintained Facilities (PMF's), the legal description and/or plat of which is set forth in Exhibit 'C' attached hereto and made a part hereof, is entered into by 303 Santa Fe Drive Properties LLC a California Limited Liability Company (hereinafter referred to as "Developer") for the benefit of future owners who will use the PMF' S (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 PMF(s) described in Exhibit "B", said real property hereinafter referred to as the "property"; and WHEREAS, it is the intention of the Developer that private maintenance be performed in compliance with the City of Encinitas Municipal Code and other related City policies and requirements, and the desire of the Developer to establish a method for the periodic maintenance and repair of the said PMFs and for the apportionment of the expenses of such maintenance and repair among existing and future owners; and WHEREAS, it is the intention of the Developer to establish an Agent as set forth under Section 6 below to be the single point of contact with the City of Encinitas; and WHEREAS, there exists a benefit to the public that the PMFs be adequately maintained on a regular and periodic basis in compliance with the Exhibit "C", City of Encinitas Municipal Code, and other related City and State codes and policies in effect during the future operations; and WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant running with the land, binding upon each successive owners 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 PMFs shall be constructed and maintained by the Owner, its successors and assigns, in accordance with the plans and specifications approved by the City. This includes any facilities or areas to be privately maintained, together with the open space, the storm drain facility, and revegetation areas related to the storm drain which are to be constructed and maintained by Owner as approved and conditioned by the California Coastal Commission upon the approval of the Coastal Development Permit. 3. Privately Maintained Facilities (PMFs) do not include any facilities dedicated to the Public. Public facilities are to be publicly maintained unless otherwise specified. 4. The cost and expense of maintaining the PMFs shall be paid by Owner or the heirs, assigns, and successors in interest of each such Owner. This includes any facilities or areas to be privately maintained, together with the open space, the storm drain facility, and revegetation areas related to the storm drain which are to be constructed and maintained by Owner as approved and conditioned by the California Coastal Commission upon the approval of the Coastal Development Permit. 5. 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. 6. The repairs and maintenance to be performed under this Agreement shall include reasonable improvements and maintenance work to adequately maintain said PMF's in proper working order as determined by applicable City policies and requirements. The maintenance shall include, but shall not be limited to, any storm water treatment best 2 management practice (BMP) facility or facilities, private drainage system, private road(s), fire fuel modification zone(s) (located at the common lot line between the open space lot and Lots 5 through 11), open space easement(s), tree trimming, landscape, irrigation, debris removal, and perpetually maintaining adequate ground cover and/or other erosion control measures within the private property in order to prevent sedimentation. The PMF'S shall be maintained regularly as necessary to keep the facilities in proper working order, with the minimum maintenance frequency as outlined on Exhibit "B" 7. 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 PMFs as herein set forth shall commence when improvements have been completed and approved by the City. 8. Any liability of the owners for personal injury to any worker employed to make repairs or provide 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, 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, any contractor, any subcontractor, any user of the PMFS, 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 PMFs. 10. Nothing in the Agreement, the specifications, other contract documents, City's approval of the plans and specifications, or City's inspection of the work is intended to include a review inspection acknowledgement of a responsibility for any such matter, and City, City's engineer, its consultants, and each of its officials, directors, officers, employees and Agents, shall have no responsibility or liability therefore. 11. The City is authorized to collect sums as appropriate for recovery of the costs for abatement of any PMFs maintenance violation should the property owner fail to voluntarily comply. 12. The Owner, its successors or assigns, hereby grants permission to the City and its authorized Agents and employees, to enter upon the Property and to inspect the PMFs 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 written directive to commence with the specified repairs if necessary. 3 13. In the event the Owner, its successors or assigns, fails to maintain the PMFs 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 or 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 written 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 the 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. 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. 15. The terms of this Agreement may be amended in writing upon majority approval of the owners and written notification of approval by the City. 16. 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. 17. This Agreement shall not be interpreted in any manner, which reduces or limits the Agent's/ Owners' rights and duties as set forth in this document. 18. 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. 4 19. 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 WPjEREOF, the p ies hav executed this Agreement This day of , 200 e n Ir Developer: a ~ C,t L ' Ou~ f fe5 Gc_ Print Name and Title For: 303 Santa Fe Dr Properties, LLC A California Limited Liability Company Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of Califdrnia c of On befXe me, personally appeared and b SUSAN D. PARKER Comml"W #t 176382$ Notary Pub*c - Collforr" Son D4W Courft Ccmrr.B MI#DIKC' X11 Place Notary Seal Above 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. WITNESS my ha official seal. Signature Signature of Notary Public 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 Docum n Document Date: Signer(s) Other Than Named Above: Number of Pages: 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 El Guardian or Conservator 1-1 Guardian or Conservator El Other: El Other: Signer Is Representing: Signer Is Representing: ©2007 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 1-1-pri120, 2009 EXHIBIT A LEGAL DESCRIPTION THE WESTERLY 120 FEET OF THE EASTERLY 320 FEET OF ALL THAT PORTION OF LOT 1 OF RIDGEWAY HEIGHTS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2163, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON JULY 3, 1929, AND AS SHOWN ON RECORD OF SURVEY FILED FOR THE PURPOSE OF CORRECTING ERRORS IN THE ORIGINAL MAP BEING RECORD OF SURVEY NO. 1193, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, SEPTEMBER 20, 1945, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT, DISTANT THEREON NORTH 26°28'40" WEST 213.0 FEET FROM THE SOUTHWESTERLY CORNER OF SAID LOT 1, BEING THE NORTHWESTERLY CORNER OF LAND CONVEYED TO PEAR GRACE LONG BY DEED DATED FEBRUARY 14, 1926 RECORDED IN BOOK 2054, PAGE 498 OF OFFICIAL RECORDS; THENCE NORTH 85°22' 10" EAST ALONG THE NORTHERLY LINE OF SAID LONG'S LAND, 425.54 FEET TO THE EASTERLY LINE OF SAID LOT 1. 0 Q) OOOLOJ 961% NJ co I C-S o tia 1 I r-ri o I I ~ E91 i A-A OR 0 M .00,0!.0, N a t m Zl*gL o ~ Z n ?1 9 r _N r b cn c ~O EXHIBIT "C" Maintenance Schedule and Requirements Maintenance Type Minimum Required Frequency Stone Water Best Management Practices, Detention Basin, Grass swales, Inspected monthly, repaired as needed Drainage Facilities, inlets, Storm drain outlets Inspected monthly, replaced and repaired as needed Inspection and repair (as needed) of irrigation sprinkler system for landscaped areas Inspected monthly, repaired as needed and as requested by the City Privately maintained, public storm drain system through property Annually