2009-6925101
It ,
Recording Requested By: )
City Engineer )
)
)
DOC# 2009-0692510
111111111111111111111111111111111111111111111111111111111111111111111
DEC 15, 2009 326 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER: COUNTY RECORDER
FEES: 34.00
When Recorded Mail to: ) PAGES: 9
City Clerk
City of Encinitas
505 South Vulcan Avenue )
Encinitas. CA 92024
SPACE ABOVE FOR RECORDERS USE
PRIVATE STORM WATER
TREATMENT / IMP MAINTENANCE AGREEMENT
APN: 264-241-25-00 V/ Grading Plan No.: 10061-G
Site Address: 3403 Via Monte Verde
THIS AGREEMENT for the periodic maintenance and repair of those certain
private storm water treatment/IMP facilities, the legal description and/or plat of which is
set forth in Exhibit "B" attached hereto and made a part hereof, is entered into by John
E. Dempsey and Michelle L Dempsey Trustees of the John E Dempsey and Michelle
L. Dempsey Family Trust dated November 15, 2006, hereinafter referred to as
"Developer', for the benefit of future owners who will use the private storm water
treatment/IMP 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 Chapter 23.24; 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/IMP 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/IMP 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/IMP 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/IMP 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:
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 and maintained by the
Owner, its successors and assigns, in accordance with the plans and
specifications identified in approved Grading Plan Number 10061-G.
3. The cost and expense of maintaining the private storm water treatment/IMP
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/IMP 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/IMP facilities
for their intended purposes and to prevent sedimentation in storm water runoff.
The private storm water facilities shall k
keep the facilities in proper working
frequency of twice annually or as stated
attached as Exhibit "C".
maintained regularly as necessary to
order, with a minimum maintenance
in the minimum maintenance schedule
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/IMP 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/IMP 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/IMP
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/IMP 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/IMP 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/IMP 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/IMP 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/IMP 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/IMP 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.
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.
D OPER:
Joh E. Dempse st
~vg
'Ito
Date
Michelle L. Dempsey, Trustee
i'A ?loq
Date
Signature of DEVELOPER must be notarized. Attach the appropriate
acknowledgement.
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO)
On December 8, 2009 before me, _ Darla Kooiman Notary Public,
personally appeared John E. Dempsey , 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/she4hey executed the
same in his/he4the+r authorized capacity(+es), 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 forgoing paragraph is true and correct.
WITNESS my hand and fficial-seal.
Signature kaC~a(Seal)
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO)
W
DARLA KOOIMAN
Commission # 1756216
. "r Notary Public - California
San D19go County
T~l*000M Megan 1 2012
On December 8. 2009 before me, Darla Kooiman Notary Public,
personally appeared Michele L. Dempsey , 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 Ile/she/
executed the same in 4is/her/their authorized capacity(+es), and that by
#is/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 forgoing paragraph is true and correct.
WITNESS my hand and official seal.
DARLA KOOIMAN
Signature Seal - commissions 1786216
) ~ Notary Public - California
Son Diego county
Jan 1 201 r
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 leaving the building pad. The swales shall remain as shown on grading plan
10061-G. Any modification to these swales requires a permit from the City of Encinitas
Engineering Services Department.
EXHIBIT "B"
1 _
I
LOT 11
MAP No. 13947
APN 264-241-25
LOCATION OF /
VEGETATED SWALE t CATION OF~ j
/ PEWANENT-- -
/ VEGETATED SWALE
RIP-RAP
a
ooe
RIP-RAP
LOCATION OF PERMANENT BMP'S
LOT 11 PER MAP NO. 13947
SCALE I"=50'
EXHIBIT "A"
LOT II OF CITY OF ENCINITAS TRACT 97-219 (PHASE 2), IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 13947, FILED IN THE RECORDER'S OFFICE OF SAID COUNTY ON
MARCH 24, 2000.
THIS DESCRIPTION WAS PREPARED
BY ME OR UNDER MY DIRECTION
DENNIS W. GOOD, LS 8084