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:
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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.
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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