2009-2803810
Recording Requested By: )I~ r
City Engineer )
)
DO°# 2009-0280381
IIIIIIIIIIIIIIIiIIYIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIMIII
MAY 27, 2009 10:32 AM
OFFICIAL RECORDS
_.AN DIEGO COUNTYRECORDER'S OFFICE
DN..'ID L. BUTLER: COUNTY RECORDER
FEES: 413.00
When Recorded Mail to: ) PAGES: 11
City Clerk )
City of Encinitas
505 South Vulcan Avenue )
Encinitas. CA 92024
SPACE ABOVE FOR RECORDERS USE
PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
APN: 262-032-55 and 262-023-14 Project No.. 09-016 CDP
Site Address: 1603 Crest Dr. 10187-G
THIS AGREEMENT for the periodic maintenance and repair of that certain private
storm water treatment facilities, the legal description and/or plat of which is set forth in
Exhibits attached hereto and made a part hereof, is entered into by William W.
Kazmierowicz and Adelina M. Kazmierowicz, husband and wife as joint tenants
hereinafter referred to as "Developer") for the benefit of future owners who will use the
private storm water treatment 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 Section 24.29.040; 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 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 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 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 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:
1. 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 by the Owner, its
successors and assigns, in accordance with the plans and specifications
identified in the Plan.
3. The cost and expense of maintaining the private storm water treatment 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 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 facilities for
their intended purposes and to prevent sedimentation in storm water runoff. The
private storm water facilities shall be maintained regularly as necessary to keep
the facilities in proper working order, with a minimum maintenance frequency of
twice annually or as stated in the minimum maintenance schedule attached as
Exhibit "C".
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 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 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 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 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 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/BMP 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/BMP 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/BMP 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/BMP 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.
19. If the Property constitutes a "Common Interest Development" as defined in
California Civil Code Section 1351(c) which will include membership in or
ownership of an "Association" as defined in California Civil Code Section
1351(a), anything in this Agreement to the contrary notwithstanding, the following
provisions shall apply at and during such time as (i) the Property is encumbered
by a "Declaration" (as defined in California Civil Code Section 1351(h), and (ii)
the Common Area of the property (including the private storm water treatment
facilities) is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain
the private storm water treatment facilities and shall be deemed the "agent" as
referred to in Paragraph 7 above. The Association, which shall not be replaced
except by amendment to the Declaration, shall receive no compensation for
performing such duties. The costs of such maintenance and repair shall be
assessed against each owner and his subdivision interest in the Property
pursuant to the Declaration. The assessments shall be deposited in the
Association's corporate account.
(b) The provisions in the Declaration which provide for assessment liens in
favor of the Association and enforcement thereof shall supersede Paragraph 8 of
the Agreement in its entirety. No individual owners shall have the right to alter,
maintain or repair any of the Common Area (as defined in California Civil Code
Section 1351(b) in the Property except as may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner, which reduces or
limits the Association's rights and duties pursuant to its Bylaws and Declaration.
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.
DEVELOPER:
William W. Kazmiero icz
)Jjj, ) i
Adelina M. Kazmierowi
, P z Lo~
Date
_56 ;14
Date
Signature of DEVELOPER must be notarized. Attach the appropriate
acknowledgement.
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY TO BE MAINTAINED
PARCEL 1: (APN: 262-032-55)
THAT PORTION OF LOT 19 IN BLOCK "E" OF PALOMARES HEIGHTS, IN THE CITY OF ENCINITAS, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF No. 2114, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JUNE 19, 1928, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 19; THENCE NORTH 79°42'11" EAST ALONG THE
SOUTHERLY LINE OF SAID LOT A DISTANCE OF 254.50 FEET; THENCE NORTHERLY 122.00 FEET TO A POINT IN A
LINE WHICH IS PARALLEL WITH AND 122.00 FEET NORTHERLY, MEASURED AT RIGHT ANGLES FROM THE
SOUTHERLY LINE OF SAID LOT, DISTANT ALONG SAID PARALLEL LINE 254.50 FEET EASTERLY FROM THE
WESTERLY LINE OF SAID LOT; THENCE ALONG SAID PARALLEL LINE SOUTH 79°42'11" WEST 254.50 FEET TO SAID
WESTERLY LINE OF LOT 19; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO A POINT IN A LINE WHICH IS
PARALLEL WITH AND 150.00 FEET NORTHERLY, MEASURED AT RIGHT ANGLES FROM THE SOUTHERLY LINE OF
SAID LOT 19; THENCE ALONG SAID PARALLEL LINE NORTH 79°42'11" EAST 259.20 FEET TO AN ANGLE POINT IN THE
BOUNDARY LINE OF THE LAND DESCRIBED IN DEED TO GEORGE A. MOORE, ET UX, RECORDED AUGUST 17, 1959,
IN BOOK 7831, PAGE 431 OF OFFICIAL RECORDS; THENCE ALONG SAID BOUNDARY LINE NORTH 69°12'11" EAST
96.31 FEET; THENCE NORTH 79°42'11" EAST 63.52 FEET; THENCE SOUTH 24°20'00" EAST 20.62 FEET; THENCE
SOUTH 87°54'40" EAST 77.94 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID BOUNDARY LINE
SOUTH 10°17'49" EAST 129.00 FEET TO THE SOUTHERLY LINE OF SAID LOT 19; THENCE NORTH 79°42'11" EAST
ALONG SAID SOUTHERLY LINE TO THE SOUTHEASTERLY CORNER OF SAID LOT 19; THENCE NORTH 10°08'32"
WEST ALONG THE EASTERLY LINE THEREOF 111.89 FEET TO AN ANGLE POINT IN SAID EASTERLY LINE; THENCE
NORTH 87°54'40" WEST 76.41 FEET TO THE TRUE POINT OF BEGINNING.
ALONG WITH: (APN: 262-023-14)
THAT PORTION OF BLOCK "F" OF PALOMARES HEIGHTS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF No. 2114, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JUNE 19, 1928, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EASTERLY LINE OF SAID BLOCK "F" DISTANT THEREON SOUTH 00°09'09" WEST
2,534.05 FEET FROM THE NORTHEASTERLY CORNER OF SAID BLOCK "F"; THENCE NORTH 89°50'51" WEST 368.61
FEET, MORE OR LESS, TO THE NORTHEASTERLY CORNER OF LOT 19 IN BLOCK "E"; THENCE ALONG THE
EASTERLY LINE OF SAID LOT 19, SOUTH 22°37'29" EAST 24.03 FEET TO AN ANGLE POINT IN SAID EASTERLY LINE
OF LOT 19; THENCE CONTINUING ALONG SAID EASTERLY LINE OF LOT 19, SOUTH 10°08'32" EAST 111.89 FEET TO
THE SOUTHEASTERLY CORNER OF SAID LOT 19; THENCE SOUTH 89°50'51" EAST 339.32 FEET, MORE OR LESS, TO
A POINT IN SAID EASTERLY LINE OF BLOCK "F"; THENCE ALONG SAID EASTERLY LINE OF BLOCK "F", NORTH
00°09'09" EAST 132.30 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
PARCEL 2:
AN EASEMENT FOR ROAD AND UTILITIES OVER, UNDER, ALONG AND ACROSS THE NORTHERLY 20.00 FEET OF
THOSE PORTIONS OF LOTS 18 AND 19 IN BLOCK "E" OF PALOMARES HEIGHTS, IN THE COUNTY OF SAN DIEGO,
SATE OF CALIFORNIA, ACCORDING TO MAP THEREOF No. 2114, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, JUNE 19, 1928, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 19; THENCE NORTH 79°42'11" EAST ALONG THE
SOUTHERLY LINE OF SAID LOT A DISTANCE OF 254.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE
NORTHERLY 122.00 FEET TO A POINT IN A LINE WHICH IS PARALLEL WITH AND 122.00 FEET NORTHERLY,
MEASURED AT RIGHT ANGLES FROM THE SOUTHERLY LINE OF SAID LOT, DISTANT ALONG SAID PARALLEL LINE
254.50 FEET EASTERLY FROM THE WESTERLY LINE OF SAID LOT; THENCE ALONG SAID PARALLEL LINE SOUTH
79°42'11" WEST 254.50 FEET TO SAID WESTERLY LINE OF LOT 19; THENCE NORTHERLY ALONG SAID WESTERLY
LINE TO A POINT IN A LINE WHICH IS PARALLEL WITH AND 150.00 FEET NORTHERLY, MEASURED AT RIGHT
ANGLES FROM THE SOUTHERLY LINE OF SAID LOT 19; THENCE ALONG SAID PARALLEL LINE NORTH 79°42'11"
EAST 259.20 FEET TO AN ANGLE POINT IN THE BOUNDARY LINE OF THE LAND DESCRIBED IN DEED TO GEORGE A.
MOORE, ET UX, RECORDED AUGUST 17, 1959, IN BOOK 7831, PAGE 431 OF OFFICIAL RECORDS; THENCE ALONG
SAID BOUNDARY LINE NORTH 59"12'11" EAST (NORTH 69°12'11" EAST PER RECORD) 96.31 FEET; THENCE NORTH
79°42'11" EAST 63.51 FEET (63.52 FEET PER RECORD); THENCE SOUTH 24°20'00" EAST 20.62 FEET; THENCE SOUTH
87°54'40" EAST 77.94 FEET; THENCE LEAVING SAID BOUNDARY LINE SOUTH 10°17'49" EAST 129.00 FEET TO THE
SOUTHERLY LINE OF SAID LOT 19; THENCE WESTERLY ALONG SAID SOUTHERLY LINE TO THE TRUE POINT OF
BEGINNING.
EXHIBIT "B"
PLAT OF STORMWATER TREATMENT FACILITY TO BE MAINTAINED
PROJECT No. CDP 09-016
APN 262-032-53 (Property on which Stormwater Treatment Facility Exists)
PAGE 1 OF 2
APN 262-032-55 (Property Responsible for Maintenance of Stormwater Treatment Facility)
PROJECT BOUNDARY
SCALE: 1" = 150'
0 50 100 150 200 250 300
1 1
NE Cor Block 7"
5 5
282-022-52 i
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PARCEL i
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262-022-63
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PAGE 2 _
°C 282-02243 \ SEE DETAIL
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°
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NE Cor. Lot 1q
ZI N 79°42'11" E 254.50' N89,
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282-032-47
282-180-08
EXISTING PRIVATE ROAD AND UTILITIES EASEMENT PER GRANT DEED
o CIV~~ FNS,
RECORDED MAY 15, 2008 AS DOC No. 2008-0263368
BRIAN
Lu DONALD 0
No.26175 j0
CIVIL
Professional Q
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OF CA~~F
EXHIBIT "B"
PLAT OF STORMWATER TREATMENT FACILITY TO BE MAINTAINED
PROJECT No. CDP 09-016
APN 262-032-53 (Property on which Stormwater Treatment Facility Exists) PAGE 2 OF 2
APN 262-032-55 (Property Responsible for Maintenance of Stormwater Treatment Facility)
DETAIL - STORMWATER TREATMENT FACILITY
SCALE: 1" = 60'
0 25 50 75 100
\
I
\
\
I
262-022-43 \
SAND/GRAVEL FILTER SWALE \
TO BE MAINTAINED \
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20
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2s2~032~37 I
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C1L
- GRAVEL FILLED TURFBLOCK
I
/
2' AC PAVEMENT BASE
/
PER TYPICAL SECTION
MIN 4" AC 16" CL II BASE
8 mil POL SLEEVE LINER
BOTH SIDES AND BOTTOM o CIV/(
GRAVEL / SAND FILTER
C
3 PARTS WASHED SAND BRIAN
ti
TO 1 PART 318" PEA-GRAVEL DONALD m
4" PERFORATED PVC `r No. 26175 j0
WRAPPED IN DEWITT FILTER SOCK CIVIL
Professional Q.
SAND GRAVEL FILTER SWALE TO BE MAINTAINED -31-1
F
Exhibit `C'
Minimum Maintenance Schedule
The TurfBlock strip and the sand/gravel filter shall be inspected by the homeowner on an
annual basis. Maintenance of this BMP facility shall be conducted on an as-needed
basis.
The landscaped/turf area BMP shall be irrigated and regularly maintained to ensure its
continual use as a storm water BMP.
ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of SA.>u b,E6o
On RA j z_ L, , before me, 5jtjifl,
DNFE n
~ 1J~Ca/va r~I '
personally appeared F/Lr G"o,cr_ 13 ~~ur„ t✓r b;~;~~: who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) 1)(/ re ubscribed to thin instrument
and acknowled (l to me that X/the hey; executed the
same in hei authorized capacity(ies), and that
by r&/Kr/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
cASl~ie R. Iuzncz laws of the State of California that the foregoing
NOTARY MRIC 7CAUFORNIA Ul SAN Dim Cowm - paragraph is true and correct.
MY COMM. Ev. SEPT. 20,1011
WITNESS my hand and official seal.
07 RY'SSIGNATURE
PLACE NOTARY SEAL IN ABOVE SPACE
OPTIONAL INFORMATION
The information below is optional. However, it may prove valuable and could prevent fraudulent attachment
of this form to an unauthorized document.
SS.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL)
❑
INDIVIDUAL
CORPORATE OFFICER
PARTNER(S)
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER: DEVEI_I E r- n,d+ Wi4E
Q'~' To i tur
TITLE(S)
DESCRIPTION OF ATTACHED DOCUMENT
c ✓i1A,10-61w 6"~K6
Ayh,rF- 40th mG&-,
TITLE OR TYPE OF DOCUMENT
EI-yE
NUMBER OF PAGES
SIGNER (PRINCIPAL) IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
RIGHT
THUMBPRINT
OF
SIGNER
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t
s
a
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F
Al ~Z
DATE OF DOCUMENT
OTHER
APA01/2008 NOTARY BONDS, SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM :c2005-2008VALLEY-SIERRA INSURAN( 'E