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2010-170453Recording Requested By: 5 City Engineer DOCk 2010-0170453 n 111111111111111111111111111111111111111111 11111111 IN APR 06, 2010 3:69 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: 37.00 PAGES: 10 When Recorded Mail to: 11111111 ill Bill 11111 Bill ill Hill Bill Bill Hill Bill Bill Bill Bill III IIII City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 SPACE ABOVE FOR RECORDER'S USE PRIVATE STORM WATER TREATMENT AND STORM WATER POLLUTION CONTROL MAINTENANCE AGREEMENT APN:264-451-13 Site Address:3740 Forfuna Ranch Rd Project No.: 04-010 TPM Plan 94-1 THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and Jerry M. Hughes and Barbara Hughes husband and wife as joint tenants, its heirs, successors, and assigns, collectively hereinafter referred to as "Owner", owner(s) of that certain real property, hereinafter referred to as "Property", that is described in Exhibit "A" which is attached hereto and made a part hereof. This Agreement is for the periodic maintenance and repair of certain private storm water treatment and pollution control facilities, hereinafter referred to collectively as "Storm Water Facilities". Storm Water Facilities include but are not limited to Best Management Practices (BMPs), Integrated Management Practices (IMPs), and drainage facilities. The description and plat of Storm Water Facilities is set forth in Exhibit "B" which is attached hereto and made a part hereof. WHEREAS, this Agreement is required by the City as a condition of approval of a City permit pursuant to City of Encinitas Municipal Code Chapter 20.08 and Chapter 23.24 as well as the City of Encinitas Storm Water Manual; and WHEREAS, the Storm Water Facilities benefit said Property and are used by OWNER; and WHEREAS, the Property benefits and uses the Storm Water Facilities, which are described in Exhibit "B"; and WHEREAS, it is the desire of the City and the responsibility of the Owner that said Storm Water. Facilities be maintained in a safe and usable condition by the Owner in accordance with the minimum maintenance schedule set forth in Exhibit "C" which is attached hereto and made a part hereof; and WHEREAS, there exists a benefit to the public that the Storm Water Facilities be adequately maintained on a regular and periodic basis in compliance with Exhibit "C", the City of Encinitas Municipal Code, the City of Encinitas Storm Water Manual, and other related City policies and requirements; and WHEREAS, it is the intention of the Owner and the City that this Agreement constitute a covenant running with the land, binding upon each successive owner of all or any portion of the Property into perpetuity. NOW THEREFORE, IT IS HEREBY AGREED FOR VALUABLE CONSIDERATION AS FOLLOWS- 1 . The Property is benefited by this Agreement, and 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. Any heirs, executors, administrators, assignees, and/or successors in interest to all or any portion of the Property, by acceptance of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become expressly 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 13 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. 2. The Storm Water Facilities shall be constructed and maintained by the Owner, in accordance with the plans and specifications identified in approved Improvement Plan 94-1 which is on file as a permanent public record in the City of Encinitas. 3. The cost and expense of repairing and maintaining the Storm Water Facilities shall be paid by the Owner. 4. In the event the Property is subdivided in the future, 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 reflecting such newly created parcels. 5. The repairs and maintenance to be performed under this Agreement shall include reasonable improvements and maintenance work to adequately maintain the Storm Water Facilities in proper working order as determined by the City. Repairs and maintenance under this Agreement shall include, but are not limited to, repairing access roadbeds; repairing and maintaining drainage structures; removing debris, sediment, oil, grease, and other pollutants as determined by the City; perpetually maintaining adequate groundcover and/or other erosion control measures within the Property in order to prevent erosion; and the management of materials, pollutants, and hazardous waste to prevent pollution of the storm water system or Municipal Separate Stormwater Sewer System (MS4) as referenced in local and State codes. Maintenance shall also include other work necessary to repair and preserve the Storm Water Facilities for their intended purposes as well as the restoration of the Storm Water Facilities following any non-permitted modification. The restoration shall be as required to restore the Storm Water Facilities to the condition existing prior to damage or alteration. 6. The Storm Water Facilities shall be maintained regularly as necessary to keep the facilities in proper working order, with a minimum maintenance frequency as stated in Exhibit "C", but no less than twice per year. 7. Any liability of the Owner for personal injury to any worker employed to make repairs or provide maintenance under this Agreement, or to third persons, as well as any liability of the Owner for damage to the property of any third persons, as a result of or arising Wit of repairs and maintenance under this Agreement, shall be borne by the Owner. 8. Owner shall jointly and severally defend, indemnify, and hold harmless the 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, to any contractor, any subcontractor, any user of the Storm Water Facilities, or to any other third persons arising out of or in any way related to the use, repair, or maintenance of, or the failure to repair or maintain the Storm Water Facilities. 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 Storm Water Facilities fail to operate properly. 9. Nothing in this Agreement, the specifications, other contract documents, the City's approval of the plans and specifications, or the City's inspection of the work constitutes an acknowledgement of any City responsibility for any such item or the material contained therein, and the City, City's engineer, its consultants, and each of its officials, directors, officers, employees and agents, shall have no responsibility or liability therefore. 10. The Owner shall inspect the Storm Water Facilities regularly and shall submit to the City an inspection report at the minimum frequency specified in Exhibit "C' but not less than once per year. The purpose of the inspection is to assure safe and proper functioning of the Storm Water Facilities. The inspection shall cover the entirety of the Storm Water Facilities. Deficiencies shall be noted in the inspection report. 11. The Owner shall provide access to the Storm Water Facilities within the Property to City's inspectors, employees, agents, and contractors within 48 hours of receipt of a written notification by the City. The access shall be provided unconditionally and without any obstruction, interference, or hazard. Any animals kept on the Property shall be secured outside of the area subject to the City's inspection. 12. The Owner hereby grants permission to the City, its authorized agents, and its employees, to enter upon the Property and to inspect the Storm Water Facilities following a 48 hour notice whenever the City deems necessary. The purpose of inspection is to evaluate the condition and performance of the Storm Water Facilities, to follow-up on reported deficiencies, to respond to citizen complaints, and/or to comply with State and City requirements for City inspection of such facilities. The City shall provide the Owner with copies of the inspection findings and a directive to commence with any repairs deemed necessary. 13. In the event the Owner fails to maintain the Storm Water Facilities in good working condition as determined by the City Engineer, the City , its agents, employees, or its contractors, may enter upon the Property and take the steps deemed necessary to correct deficiencies and shall charge the costs of such repairs to the Owner. In the event the City pursuant to this Agreement, performs work of any nature, or expends any funds for attorney's fees, administrative costs, contractors, employees, consultants, materials, or other costs in the performance of said work, the Owner shall reimburse the City in full. Such reimbursement shall be due within thirty (30) days of receipt of a notification for all costs incurred by the City, including any administrative costs and attorney's fees. If said funds are not paid by Owner within (30) days, City reserves the right to take legal action for cost recovery and to file with the County Recorder of San Diego County an assessment lien on the Property. It is expressly understood and agreed that the City is under no obligation to maintain or repair said Storm Water Facilities, and in no event shall this Agreement be construed to impose any such obligation on the City. 14. The terms of this Agreement may be amended in writing following Owner's request and upon written approval by the City Engineer. 15. 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. IN WITNESS HEREOF, the parties have executed this Agreement. OWN Je . Hu e D e Barbara Hughes Date Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: Peter Cota-Robles Director of Engineering Services _4 Date CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On ~l )before me,-, ~A 9, , ll-L` V L).ee bowie Date Here Insert Name and Title of the Officer personally appeared 7~Af/e Ili(. d~6 He--5 Name(s) of Signer(s) 1 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ' ar ` [Q~ subscribed to the within' trument and acknowledged RANDA G. MILUOUR to me he/sh; executed the same in Commission 01709664 < his/her authorized capacity(ies), and that by - CoWornin his/he their signature(s) on the instrument the county person(s), or the entity upon behalf of which the TgZ5 . 6, 201 t 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 hand and official seal. Signature: Place Notary Seal Above S W ature of Notary Pu 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: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer- Title(s): ❑ Individual ❑ Partner- ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Top of thumb here Signer's Name: ❑ Corporate Officer- Title(s): ❑ Individual ❑ Partner - ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ~.~•y - t i-ovv-oio-ooze) Item #5907 EXHIBIT "A" Legal Description of Property PARCEL 2 OF PARCEL MAP NUMBER 7904, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER, OCTOBER 5, 1978, AS FILE NUMBER 78-425598 OF OFFICIAL RECORD. Li- U) O W w ~ J w w 0- Q LL. F- "d r Y M OQ x W vry coo w 0 V) ~V v~ , P8 O0 O w0 CD 0 ao Um Al PP.. U 6 d 60' 00 CV o I a'* Wo ~ a w a- 0 0' ~pAgpAD V) 2 LL- O x w z U~ V) Co x as o N U) z W W w W 0 W4 CQ ao r as H z vi ~ C) } d LLI of w°O J~ W W Of Z ~ 0 0w Q c) W cn U QHE J~ m>- ( Q W xoo of W LLJ LL- ~-v0 Z~ d QO ~ QQ ° O0' ° LLI p W a, 0 Z U O W Z p w~ :2 00 m p F- ZY 0a0 ~ W N cnOC) a .4- z ~ m w j I LL- 0 r, ro m ONN ~ O 0 0 0 of O JLLJ O QOM w Q W o Q Q (h oa om O w Q H Q w f w af LL d 0 H Q° af~0 w 0 00- - 00 0 Z 0 00 (D co cp - LLJ U) w 00N ZO!N ~W~ Z O z m LLI z w NO' I _)U )0 w w ch X000 WLL- I" XQO W Wm X J W LL- E D E x 0 j v LL - W O W N ;7; r*Z r, o w = cm 7 LL. 0 - C14 O ~0 . 2 (DO w(0 o W ~ O z < LLJ LL- II N vrZ Z~ O V\ O LLJ J w o (=j 0 ZZ Q D_ U o LO 0 N N L7 Q U Ln V) O o O M (O Ln m - ^ O u EXHIBIT "C" Minimum Maintenance Schedule for Storm Water Facilities The 6' wide 8" deep crushed rock road shoulder and 5' wide outlet openings are to be maintained as originally designed and approved on Improvement Plan 94-I. The treatment facility shall be inspected twice per year and maintained as needed but not less than once per year. . CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of O before me,~jJ1~ to _ Here Insert Name and Title of the Officer personally appeared Name(s) of signer(s) , who proved to me on the basis of satisf ry evidence to be the person(s) whose name(sre subscribed tot within instrument and acknowledged e tha he he/they executed the same in er/their authorized capacity(ies), and that by his er/their signature(s) on the instrument the t Imo.. ` RANDA G IMILLJOUR 1 Commission #1709664 person(s), or the entity upon behalf of which the Notary Public - California person(s) acted, executed the instrument. > San Diego County My Commission Exp. Jan. 6, 2011 I 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. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer- Title(s): ❑ Individual ❑ Partner- ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: : cZ tC1044) • Place Notary Seal Above Signature Sig Lure of Notary Pub 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. Number of Pages: Signer's Name: ❑ Corporate Officer - Title(s): ❑ Individual El Partner - El Limited El General 7PL of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 0 2009 National Notary Association • NationalNotary.org 1-800--US US NOTARY (1-800-876-6827) Item #5907