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2009-4911311 Il~ iw Recording Requested By City Engineer 11 City of Encinitas 505 South Vulcan Avenue ) Encinitas, CA 92024 SPACE ABOVE FOR RECORDERS USE DOC lJ 2009-0491131 111111111111111111111111111111111111111111111111111111111111111111111111 SEP 01, 2009 3:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L, BUTLER, COUNTY RECORDER FEES: 40.00 When Recorded Mail to: ) PAGES: City Clerk ) PRIVATE STORM WATER TREATMENT MAINTENANCE AGREEMENT APN: 216-030-64 V Site Address: 304 La Costa Ave. Bldg. Permit No.: 09-703 Case 09-028 CDP 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 Dominic J. Burtech and Julie J. Burtech, husband and wife 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. 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". 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 irepair. 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 defence 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 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 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 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 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: Dominic J. Burtch, lie J. BC -tech, Owner g r Z 7 Date 9 \ a.-1 n Date Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT _ _crsc~~ State of California County of ?t~^- 1 On before „ Arthur P. Arquilla, Notary Public Date Here Insert Name and Title of the Officer personally appeared 4, ~~f_~fT ~i Name of Signer(s) L who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) i$'aare ubscribed to the within instrument and acknowledged to, me that he/she executed the same in his/her(thei'j~,authorized ca acit (es d th t b hi /h / he OFFICIAL seAu ~ p y an a y s er t ir ignature(s) on the : ARTHUR P ARQUILLA instrument the person(s), or the entity upon behalf of NOTARY PUBLIC- CALIFORNIA COMM. NO. 1628401 which the person(s) acted, executed the instrument. SAN DIEGO COUNTY MY COMM. EXP. JAN. 7, 2010 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above 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 Document: 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 thu mb here Top of thumb here Trustee F1 Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: © 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described as follows: Parcel 1 Those portions of Lots 7 and 8 in Section 33, Township 12 South, Range 4 West, San Bernardino Base and Meridian, in the City of Encinitas, County of San Diego, State of California, according to United States Government Survey approved October 25, 1875, being also a portion of Parcel i of Parcel Map No. 10941 filed in the Office of the County Recorder of San Diego County January 29, 1981 as File No. 81-029896 described as follows: Beginning at the Southwest comer said Lot 8, said point being also a point on the Southerly line of said Lot 7 and the center line of La Costa Avenue as shown on County Road Survey as shown on Map of County Road Survey No. 346 filed in the Office of the County Surveyor; thence North 89024'01" West along the South line of said Lot 7, 51.09 feet; thence North 0055'54" West 96.00 feet; thence North 89024'01" West 144.80 feet (record 144.67 feet) to an intersection with the Northwesterly meander line of said Lot 7; thence North 33006'32" East along said meander line 158.13 feet (record 158.06 feet); thence South 66053'35" East 117.15 feet (record 117.01 feet); thence North 89100'37" East 145.22 feet; thence South 0055'01" East 188.57 feet to a point on the Southerly line of said Lot 8 and the center line of said La Costa Avenue; thence North 891124'01" West along -said Southerly line of said Lot 8 and the centerline of La Costa Avenue 144.92 feet to the Southwest comer of said Lot 8 and the Point of Beginning. Excepting therefrom that portion, if any, heretofore or now lying below the mean high tide line of the Pacific Ocean or any so-called Arm of the Sea. EXCEPT therefrom all oil, gas, minerals, and other hydrocarbon substances lying below the surface of said land, but with no right of surface entry, as provided in deeds of record. Said property being described as Parcel "D" in Certificate of Compliance recorded July 27, 2006 as Instrument No. 2006-0531586 of Official Records. Parcel 2 An Easement and Right-of-Way for Road and Utilities purposes over, under, along and across that portion of Lot 8 in Section 33, Township 12 South, Range 4 West, San Bernardino Base and Meridian, in the City of Encinitas, County of San Diego, State of California, according to United States Government Survey approved October 25, 1875, being also a portion of Parcel 1 of Parcel Map No. 10941 filed in the Office of the County Recorder of San Diego County January 29, 1981 as File No. 81-029896 described as follows: Beginning at a point on the South line of said Lot 8 distant thereon South 89024'01" East (record North 89058' East) 144.92 from the Southwest comer of said Lot 8, said point being also a point on the center line of La Costa Avenue as shown on County Road Survey No. 346 filed in the Office of the County Surveyor; thence North 0055'01" West 267.53 feet; thence South 89004'59" West 26.00 feet; thence South 0055'01" East 266.85 feet to a point on the center line of said Road Survey No. 346; thence South 89024'01" East along said center line 26.01 feet to the Point of Beginning. Excepting therefrom any portion of said Easement lying within Parcel 1 above Parcel 3: An Easement and Right-of-Way for Road and Utilities purposes over, under, along and across that portion of Lot 8 in Section 33, Township 12 South, Range 4 West, San Bernardino Base and meridian, in the City of Encinitas, County of San Diego, State of California, according to United States Government Survey approved October 25, 1875, being also a portion of Parcel i of Parcel Map No. 10941 filed in the Office of the County Recorder of San Diego County January 29, 1981 as Instrument No. 81-029896 described as follows: Beginning at a point on the South line of said Lot 8 distant thereon South 89024'01" East (record North 89058' East) 144.92 feet from the Southwest comer of said Lot 8, said point being also a point on the center line of La Costa Avenue as shown on County Road Survey No. 346 filed in the Office of the County Surveyor; thence North 0055'01" West 59.01 feet; thence North 891D04'59" East 26.00 feet; thence South 0055'01" East 59.70 feet; thence North 89024'01" West 26.01 feet to the Point of Beginning. Assessor Parcel Nos. 216-030-64 and 216-030-73 0 a W 0 HL210N w J Q U - I// Ff9S a ~ -!a M „l0 ,0 '88l b o a g i v08 3L V A 1 8 d = w - - - - - VH13s 1N02LJ SZ - - - - t ~ t 7 s ~ As ~ N o 00 AS F JO 3 U- 0 W N 0 o- g S CV X ' Z ! O CY) ~10 o iA M„J,5 .99 0 N ,000"96 y0 1101 h"O + ~ 'sz X o y J W I a o W a f 00 s2 z ° , c ~ a Z E < of ~p O °w J < 90 co o 3m U a ~ £ W ? f Z I . J Z W A s! N W X'm C7 N h Z ' LLJ -D 27 Ld <r `r z 01) Q O C < _J LLJ co d- M N 0 U Li ~ > (-0 Q IQ O ~ r,-) Cf) m O O Q0 Q ~ N M W J X o W <C n (D LLI n Q U) < ~o J U U Exhibit `C' Minimum Maintenance Schedule The grass lined BMP swales shall be maintained and irrigated in perpetuity to ensure proper function as the primary means of post construction storm water treatment for all runoff from the proposed addition. The swales shall remain as shown on Building permit 09-703. Any modification to these swales requires a permit from the City of Encinitas Engineering Services Department.