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2011-55467D0C # 2011-0055467 ~ ~ I IIIIIIII III IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII III Recording Requested By: JAN 28, 2011 10:53 AM FFICIAL RECORDS City Engineer SAN DIEGOCO UNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER When Recorded Mail to, FEES: 46.00 City Clerk PAGES: 11 City of Encinitas 505 South Vulcan Avenue Encinitas CA 92024 SPACE ABOVE FOR RECORDER'S USE AGREEMENT FOR MAINTENANCE OF PRIVATE STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL FACILITIES BY AGENT OF COMMERCIAL FACILITY VIA C APN: 259-121-15 Project No.: 09-195 MUP/CDP Ak- Site Address: 1502 Encinitas Boulevard (10548-G) THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and JJC FOODS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, its heirs, successors, and assigns, collectively hereinafter referred to as "Tenant", 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 of certain private stormwater treatment and pollution control facilities, hereinafter referred to collectively as "Stormwater Facilities". Stormwater Facilities include but are not limited to Best Management Practices (BMPs), Integrated Management Practices (IMPs), Low Impact Development (LID) features, Structural stormwater treatment devices, and drainage facilities. The description and plat of Stormwater 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 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 Stormwater Manual; and WHEREAS, the Stormwater Facilities benefit said Property and are used by the Tenants their heirs, successors, and assigns; and WHEREAS, it is the desire of the City, the responsibility of the Tenants, and to the benefit of the Public that Maintenance of said Stormwater Facilities occur on a regular and periodic basis as necessary to preserve the Storm Water Facilities in good-working order in accordance with the minimum Maintenance requirements set forth in Exhibit "C" which is attached hereto and made a part hereof and in accordance with the City of Encinitas Municipal Code, the Encinitas Stormwater Manual, and other related City policies and requirements, and WHEREAS, it is responsibility of the Tenant to comply with and enforce the terms and conditions of this agreement; WHEREAS, it is responsibility of the Tenant to disclose this agreement to all the future tenants using, benefiting from, or impacting the Stormwater Facilities WHEREAS, it is responsibility of the Tenant to add Maintenance of Stormwater Facilities to common area maintenance (CAM) and appoint a qualified property management company or individual herein after referred to as "Agent" to oversee such Maintenance. The Agent shall be the single point of contact between the City of Encinitas and Tenant or Developer; and WHEREAS, the Tenant may act as the Agent so long as the total square footage of the commercial facilities is less than twenty thousand square feet.; and WHEREAS, for the purpose of this agreement, Maintenance responsibilities mentioned on this agreement equally and collectively apply to Tenants and the Agent, WHEREAS, it is requirement of development and or commercial use that this Agreement constitute a covenant running with the land, binding upon each successive Tenant of all or any portion of the Property into perpetuity. NOW THEREFORE, IT IS HEREBY AGREED FOR VALUABLE CONSIDERATION AS FOLLOWS: 1. This agreement establishes the Tenant's Maintenance requirements for the Stormwater Facilities. The term "Maintenance" wherever capitalized in this agreement shall include, but shall not be limited to: inspection for purposes of identifying operational deficiencies in the Stormwater Facilities, routine upkeep and repair of the Stormwater Facilities in proper working order as determined by the City, and preparation and submittal of the annual inspection report to the City, all as set forth in subparagraph 1.i) through 1.iii). The Tenant's requirements for providing Stormwater Facilities Maintenance as stated in this agreement shall mean Maintenance managed by the Agent, paid for by Tenant, and performed by a qualified contractor, hired by the Agent on behalf of the Tenant. i) The Tenant shall inspect the Stormwater Facilities after all major storms. In addition, the Tenant shall inspect the Stormwater Facilities at the minimum frequency specified in Exhibit "C", but not less than twice per year. ii) The Tenant shall provide upkeep and repair to preserve the Stormwater Facilities in good working order and shall repair all deficiencies identified in the Tenant's inspections no later than 30 days following the inspection or prior to the next anticipated rain event. Interim water quality control measures shall be utilized to protect damaged or deficient Stormwater Facilities during any storm event until such time as the Facilities are restored to good working order. The minimum upkeep and repair frequency shall be consistent with the Exhibit "C" but not less than once per year. To the satisfaction of the Director of Engineering Services, the Tenant shall ensure that the Stormwater Facilities are in proper working order for the rainy season, which starts on October 1. iii) The Tenant shall obtain the City of Encinitas Stormwater Inspection Report form from the City website or the City of Encinitas Civic Center, complete the inspection report form, and submit the inspection report to the City of Encinitas Department of Engineering Services. Prior to the submittal of the inspection report to the City, the Tenant shall perform an inspection of the Stormwater Facilities, identify deficiencies, and repair and correct all deficiencies. The inspection report shall be submitted to the City once a year between August 1 and September 30. 2. 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 12 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. 3. The Stormwater Facilities shall be constructed by and have Maintenance performed by the Tenant in accordance with the term and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 10548-G which is on file as a permanent public record in the City of Encinitas. 4. The cost and expense of the Maintenance of the Stormwater Facilities shall be paid by the Tenant. The Tenant is responsible to include necessary provisions in the lease agreement with any present and future tenants that cover the costs of all Stormwater Facilities Maintenance. 5. In the event the Property is subdivided in future, the Tenant, heirs, assigns, and successors in interest of each such newly created parcel(s) shall be liable under this Agreement for their then pro rata share of expenses reflecting such newly created parcels. 6. The Maintenance to be performed under this Agreement shall include upkeep, repair, and improvements to adequately ensure the Stormwater Facilities are in proper working order as determined by the City. Upkeep, repair, and improvements under this Agreement shall include, but are not limited to, repairing access roadbeds; repairing, preserving, and providing improvement for the upkeep of drainage structures; removing debris, sediment, oil, grease, and other pollutants as determined by the City; perpetually preserving 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 stormwater system or Municipal Separate Stormwater Sewer System (MS4) as referenced in local and State codes. Upkeep, repair, and improvement shall also include other work necessary to repair and preserve the Stormwater Facilities for their intended purposes as well as the restoration of the Stormwater Facilities following any non-permitted modification. The restoration shall be as required to restore the Stormwater Facilities to the condition existing prior to damage or alteration. 7. Under no circumstances shall any contract or agreement for service(s) to be provided as outlined in this agreement, and any additional Maintenance activities or services to be provided as outlined in subsequent attachments hereto, be terminated by the Tenants, or Agent unless a replacement contract or agreement for the required Maintenance has already been executed. The Agent and the Tenant shall be responsible for ensuring proper execution of the provisions of all contracts and/or agreements for the required Maintenance and for timely payments for said services. 8. Any liability of the Tenant or Agent for personal injury to any worker employed to provide Maintenance under this Agreement, or to third persons, as well as any liability for damage to the property of any third persons, as a result of or arising out of Maintenance under this Agreement, shall be borne by the Tenant or Agent. 9. Tenants shall jointly and severally defend, 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, to any contractor, any subcontractor, any user of the Stormwater Facilities, or to any other third persons arising out of or in any way related to the use, Maintenance, or the failure to provide Maintenance of the Stormwater Facilities. This Agreement imposes no liability of any kind whatsoever on the City and the Tenant agrees to hold the City harmless from any liability in the event the Stormwater Facilities fail to operate properly. 10. 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. 11. The Tenant shall provide access to the Stormwater Facilities within the Property to the 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 Tenant hereby grants permission to the City, its authorized agents, and its employees, to enter upon the Property and to inspect the Stormwater Facilities following a 48-hour notice whenever the City deems necessary. The purpose of inspection is to evaluate the condition and performance of the Stormwater 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 Tenant with copies of the inspection findings and a directive to commence with any repairs deemed necessary. 13. In the event the Tenant fails to preserve the Stormwater 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 Tenant. 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 Tenant shall reimburse the City. 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 the Tenant 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 perform Maintenance of said Stormwater 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 the Tenant 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. TENANT: It FOODS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY JAMES- R. DLBDAAG PffSADE1V7' 1 4 / D e Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY F ENCINITAS: ~VTA /d1 • eter Cota-Robles Director of Engineering Services ;Z _;-Z r D to EXHIBIT "A" Legal Description of Property All that certain real property situated in the County of San Diego, State of California, described as follows: That portion of the Southeast Quarter of the Northeast Quarter of Section 14, Township 13 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 April 19, 1881, described as follows: Commencing at the Northwest corner of said Southeast Quarter of the Northeast Quarter; Thence along the Northerly line of said Southeast Quarter of the Northeast Quarter, South 890 24' 34" East 890.14 feet to the Northeasterly corner of land described in deed to Richard W. Geirman, et ux, recorded March 11 1965 as File/Page No. 35404 of Official Records and the True Point of Beginning; Thence along the Easterly line of said Gierman's land, South 000 26' 10" East, 379.66 feet to an intersection with the center line of County Road Survey No. 458 as described in deed to the County of San Diego, recorded June 6, 1951 in Book 4124, Page(s) 351 of Official Records; Thence along said center line South 870 26' 00" East to an intersection with the Easterly line of said Section 14; Thence along said Easterly line North 000 13' 00" East to the Northeast corner of the Southeast Quarter of the Northeast Quarter; Thence along the Northerly line of said Southeast Quarter of the Northeast Quarter North 890 24' 34: East to the True Point of Beginning. Assessor's Parcel Number: 259-121-15 EXHIBIT 'B" I FGFNr)- 1502 ENCINITAS BLVD STORM WATER FACILITIES PLAT ® - STORM WATER TREATMENT FACILITIES TO BE MAINTAINED. 30' 15' 0' 30' mmol SCALE: 1 30' bihmnic. land planning, clvl englneedng, surveying ENCINITAS BLVD. 5115 AVENIDA ENCINAS SUITE "L" CARLSBAD, CA. 92008-4387 (760) 931-8700 EXHIBIT `C' Minimum Maintenance Requirements for Stormwater Facilities Maintenance Type Minimum Required Frequency Storm Water Best Management Practices; Bio- retention swales and settlement basins Inspected monthly, repaired as needed Drainage Facilities, inlets, storm drain outlets Inspected monthly, replaced and repaired as needed CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los An9ale5 On ' F I I before me, SQvecj BUlal No'E~y P44 6 F c , Date Here Insert Name and Title of the officer personally appeared wc, C a-V GI Name(s) of Signer(s) `7 7 JAVED BAVA ' ~ Commisslon # 1721386 ~C } t- Notary Public - CWHornla z Los Angeles County ~1 res Fels 23, _o11 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(Eh whose name(j) is/agb subscribed to the within instrument and acknowledged to me that he/#F1e/tiby executed the same in hisMr/their authorized capaclty(os), and that by his/hl signature(,f on the instrument the person(), 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 hand and official seal. Signature 'Eignature 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: Or `-,-L,C ^ C-C''v Document Date: V ( u Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: [?"Individual ❑ Corporate Officer - Title(s): - ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing Top of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): _ ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing Top of thumb here ©2007 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 -Chatsworth, CA 91313-2402- www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of &/2() , On before me, 5tf SUN ~i/~-/L ,L~ /~.L 7~tJ✓, k)6%~li , ty L /6 Date Here Insert Name and Title of the Officer personally appeared ld Me (_"0-711 -'?6 6 L --'S Name(s) of Signer(s) -W RANDA GAIL MILUOUR .,~Commission #1916144 < X Notary Public - California San Diego County A My Commission Exp. Jan. 6, 2015 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 hand and official seal. Signature: , Place Notary Seal Above ature of Notary Public OPTIONAL 1111 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 Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 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 Number of Pages: 0 2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907