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2011-62689DOC p 2011-0062689 11111111111111111111111111111111111111111111111111111111111111111 IN FEB 01, 2011 3:53 PM d Recording Requested By: City Engineer OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 49.00 PAGES: 12 A When Recorded Mail to: City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas. CA 92024 SPACE ABOVE FOR RECORDER'S USE MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL FACILITIES BY HOMEOWNER'S ASSOCIATION APNs: 254-102-53 254-102-5~5), Project No.: 09-135 TM/CDP/EIA Plan No.: 10536-G/I/FM THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and CV LEUCADIA 19 LOTS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, its heirs, successors, and assigns, collectively hereinafter referred to as "Developer", 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 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. The term Maintenance is defined in Paragraph 1 below. 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 described in Exhibit "B" benefit said Property, the developer, and the future owners of the lots/parcels created per Map Case No. 09-135TM, their heirs, successors, and assigns, collectively hereinafter referred to as "Owners"; and WHEREAS, City requires that Developer establish a homeowners association in conformance with the California Civil Code Sections 1350 through 1376, hereinafter referred to as "HOX, to be responsible for the Maintenance of Stormwater Facilities into perpetuity; and WHEREAS, it is the desire of the City, the responsibility of the Owners, HOA, and Developer, herein after collectively referred to as "Parties", 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 by the Parties 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 Developer and HOA to manage and oversee Maintenance of Stormwater Facilities and to assign a single point of contact between the City of Encinitas and HOA or Developer; and WHEREAS, Developer's responsibility of Maintenance of Stormwater Facilities will be transferred to HOA after the sale of all lots/parcels, the completion of development, and the approval of the City; and WHEREAS, following Developer's completion of the development and acceptance by the City, the Owners are responsible to continuously have an HOA for purposes of Maintenance of the Stormwater Facilities; and WHEREAS, for the purpose of this agreement, Maintenance responsibilities mentioned on this agreement equally and collectively apply to Owners and the HOA; WHEREAS, it is requirement of development 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) This agreement establishes the Parties' 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 Parties' requirements for providing Stormwater Facilities Maintenance as stated in this agreement shall mean Maintenance managed and paid for by the Parties, and performed by a qualified contractor hired by the Parties. i) The Parties shall inspect the Stormwater Facilities after all major storms. In addition, the Parties shall inspect the Stormwater Facilities at the minimum frequency specified in Exhibit "C", but not less than twice per year. ii) The Parties shall provide upkeep and repair to keep the Stormwater Facilities in good working order and shall repair all deficiencies identified in the Parties' 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 until such time as the Facilities are repaired. 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 Parties shall ensure that the Stormwater Facilities are in proper working order for the rainy season, which starts on October 1. iii) The Parties 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 Parties 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 Parties in accordance with the term and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 10536-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 Parties. The Parties' share of Stormwater Facilities Maintenance costs is proportional to number of lots/parcels that Owners and Developer own as a fraction of the total number of lots/parcels in the Property using and benefiting from the Stormwater Facilities but excluding common ownership lots/parcels. 5. In the event the Property is subdivided in future, the owners, heirs, assigns, and successors in interest of each such newly created parcel(s) shall be included in the existing HOA and be liable under this Agreement and with the HOA 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. Developer, Owners, and HOA are collectively responsible to the City for Maintenance of Stormwater Facilities so long as either Developer or Owners own any lots/parcels. Developer remains responsible for Maintenance of Stormwater Facilities until such Facilities have been approved by the City, even if Developer no longer owns any lots/parcels of the Property. 10. Any liability of the Parties for personal injury to any worker employed to provide Maintenance under this Agreement, or to third persons, as well as any liability of the Parties 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 Parties. 1.1. Parties 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 Parties agree to hold the City harmless from any liability in the event the Stormwater 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 Parties 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. 11. The Parties hereby grant 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 Owner, with copies of the inspection findings and a directive to commence with any repairs deemed necessary. 12. In the event the Parties fail 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 Parties. 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. 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 Parties 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. 13. The terms of this Agreement may be amended in writing following the Parties request and upon written approval by the City Engineer. 14. 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. DEVELOPER: CV LEUCADIA 19 LOTS, LLC, a Delaware Limited Liability Company BY: CITY VENTURES HOMEBUILDING, LLC, a Delaware Limited Liability Company ITS: Sole Member BY: L l ` cJ Tony Pau er, Vice President Date Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. CITY F ENCINITAS: .4 A /2 Peter Cota-Robles Director of Engineering Services Date EXHIBIT "A" LEGAL DESCRIPTION Real Property in the City of Encinitas, County of San Diego, State of California, described as follows: PARCELS 1 AND 2 OF PARCEL MAP 3264, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, NOVEMBER 29, 1974. APN: 254-102-52-000 and 254-102-53-00 0 0 f h oft AM V ~ 3 1N.1 O ~I ° O u~ 2 2 d 0 o CO LO z CL z a O CO U W W 0-4 W 2 H~ QWCi W O co 0 CO CO W t s. N ` N ~ N O z cc w ] 0 "Cc 0 0000 _ ' ~ ~ I I . J ~ .r 'j0 - o M N T O f _ I' W ~ - w tr) A r` O Q W N O-_ w 'ftft. _ o o Z W N Z _ b - C - - 71 p (n J_ c U J N ^ N ' } t: - - i r T h E` - „ Z N- O J I I - ~ o N ~f N i_ i N U- r -0 W W Z u' W r p~ wi O f e r t~~.A )I _ G) Z w4 1 Q N 1 x V- 1 4 C r 0 N-6 N ~ 44 p O O- J O- CD 4 IF- t. 1 ~p Z O~ Z a orL~ ~i O N s0 ~~~~t Um--i a 1Y J o USN OpFt~,jr.- sN 'zc o 5 "cn' p U a. t~'2 TO NU~ w m b rd0A yOJ~O ~k o Z W~ N 'fit Z - ~O O ~ a O Z Z x ~ i EXHIBIT "C" Minimum Maintenance Requirements for LID IMPs The following are typical maintenance activities for the bio-retention areas located in both the front and rear of lots in the North Pointe subdivision: • Examine lot grading and street paving and confirm that flows to the bio-retention basins are unimpeded. • Remove any debris from in and around the bio-retention basins. • Remove any accumulations of sediment, litter, fallen leaves or vegetation debris in the bio-retention basins. • Check that the basin bottom is at least 4 inches below the atrium drain grate and at least 6 inches below the adjacent ground level. • Examine the overflow drain. Fix any damaged or disconnected piping. • Check cleanouts and confirm underdrain piping is intact and unobstructed. • Note condition of the vegetation. Replace any dead plants. Prune or remove any overgrown plants or shrubs that may interfere with operation of the basin (i.e., that might obstruct flow into the planter or obstruct the overflow drain). Remove any nuisance or invasive vegetation. • Confirm that irrigation is adequate and not excessive. Make adjustments to the irrigation system as necessary. These activities shall be performed by the property owner at a minimum of twice a year (ideally immediately before and after the start and end of the rainy season) and after all major storms in order to keep the basins in proper working order consistent with the approved grading plan, drawing number 10536-G, on file with the City of Encinitas. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ()VZAOCA~ IN jl ~ On before me, ~5C (~)FJVALOAA Date Here Insert Name and Title o the Officer personally appeared L WCHELLE SONAMMON Cwmds m 018"M Nohry Pi*k - CMands ? Orsa~a Cagr ' Comm. E Mar 26, 2014 ID- Place Notary Seal and/or Stamp Above Uk who proved to me on the basis of satisfactory evidence to be the person(s) whose name(sr)&ayI6 subscribed to the within instrument and acknowledged to me that &sye/th~y executed the same in hi hp{/their authorized capacity(i), and that by i i h~r/thKir signature(a) on the instrument the person($), or the entity upon behalf of which the person($) 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 and nd official se. Signature: ignature 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: ak" Y~"~LQ ~na Document Date: -a- Signer(s) Other Than Named Above: 1'1uy~n 1?~li~ Capacity(lies) Claimed by Si ner(s) Signer's Name: ~~(X)(,1AV ❑ Corporate Officer - Title(s): lvldual ❑ Partner - ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing 1D. ner's Name: ❑ Corp to Officer - Title(s): ❑ Individual ❑ Partner - ❑ Lir ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Col ❑ Other: Signer nting: Top of thumb here ki- 02008 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 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~ l// aU On /z Z3 /10 before me,~hybA ~J• /~/L47UU2, ~~l? /°U~L /G Date Here Insert Name and Title of the Officer personally appeared &7t~e C07,21_ Name(s) of Signer(s) who proved to me on the basis of satisf tory evidence to be the person(s) whose name(s - are subscribed tot (thin instrument and acknowledged e that he a/they executed the same in Whi er/their authorized capacity(ies), and that by er /their signature(s) on the instrument the ftl,RANDA G. tMI111.i^ ; person(s), or the entity upon behalf of which the 2% Conllnistion#1709W person(s) acted, executed the instrument. i OWY i ubk • hY111a Son MW Ceumy Ja 1 certify under PENALTY OF PERJURY under the ~ Commission Exp. . Jan. 6 6., 20 2011 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ~ZfitGr d/ Signature: Place Notary Seal Above OPTIONAL Sign ure of Notary Public 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: Number of Pages: 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 © 2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907