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2012-77290f~ V DOC # 2072-0077290 1111111111111111111111111111111111111111111111111111111111111111 IN Recording Requested By- City Engineer FEB 09, 2012 4:48 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J Dronenburg, Jr , COUNTY RECORDER When Recorded Mail to, FEES 0.00 City Clerk ii PAGES: 12 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 APN 254-270-18 ✓ Project No.: 11-013 CDP Site Address, 905 Orpheus Avenue (11112-G) THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and Marquee Enterprises LLC, a California limited liability company, 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 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 Owner and his/her tenants their heirs, successors, and assigns, and WHEREAS, it is the desire of the City, the responsibility of the Owner and 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 Owner to assure his/her tenants will comply with and enforce the terms and conditions of this agreement; WHEREAS, it is responsibility of the Owner to disclose this agreement to all the future tenants using, benefiting from, or impacting the Stormwater Facilities WHEREAS, it is responsibility of the Owner 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 Owners or Developer; and WHEREAS, the Owner 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 Owner, 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 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 Owner and tenants' 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 Owner's ' requirements for providing Stormwater Facilities Maintenance as stated in this agreement shall mean Maintenance managed by the Agent, paid for by Owner, and performed by a qualified contractor, hired by the Agent on behalf of the Owner i) The Owner shall inspect the Stormwater Facilities after all mayor storms In addition, the Owner shall inspect the Stormwater Facilities at the minimum frequency specified in Exhibit "C", but not less than twice per year. ii) The Owner shall provide upkeep and repair to preserve the Stormwater Facilities in good working order and shall repair all deficiencies identified in the Owner'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 Owner shall ensure that the Stormwater Facilities are in proper working order for the rainy season, which starts on October 1. iii) The Owner 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 Owner 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 Owner in accordance with the term and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 11112-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 Owner. The owner 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 owners, 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 Owner, tenants, or Agent unless a replacement contract or agreement for the required Maintenance has already been executed. The Agent and the Owner 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 Owner, tenants, 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 Owner, tenants, or Agent. 9 Owner and 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 Owner 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 Owner and tenants 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 Owner 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 Owner with copies of the inspection findings and a directive to commence with any repairs deemed necessary. 13 In the event the Owner and tenants 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 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. 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 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 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 Owner request and upon written approval by the City Engineer. CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of S Atv 0 ii= tryo JOSEPH C. YUHAS Commission 0 1963940 Notary Public - Calit frda Sun Diego County M Conan. Ex *n Dec 16 2015 On / - j before me, J L' S EPH 0- Yt V4 A S A NCl rAP_, Y (here insert name and title of the officer) personally appeared SHA P R I A tQ S C- A N P 't >1` 1"c: Y M 0 t-r R` 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. - - - - - - - - - - - - JOSEPH C YUHAS Commission #E 1963940 WITNESS my hand and official seal. Notary Public - California San Diego County / M Comm. Ex ires Dec 16, 2015 Signature of Notary Public (Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney-m-Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer) Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/the)-- is /ere ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. 41, Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of l:~?Iw Z;I c e,Q On before me, 7t?4A ,N 4,W14 IWA-•f~/ ,0 y A1041G Date Here Insert Name and Title of the Officer personally appeared A)G 15 &,#7-7- Name(s) of Signer(s) RANDA GAIL MILLJOUR It co a Commission #1916144 < X Notary Public - Callfornia~ San Diego County My Commission Exp. Jan. 6, 2015 Place Notary Seal Above who proved to me on the basis of s tisfactory evidence to be the person(s) whose name(sare subscribed to the w in instrument and acknow ed to me that he/they executed the s e i hi er/their authorized capacity(ies), and that bqier/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 ~a Signature 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: Document Date 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 Top of thumb here ❑ Guardian or Conservator ❑ Other- Signer Is Representing: Number of Pages. Signer's Name ❑ Individual ❑ Corporate Officer - Title(s) ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact • El Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other- Signer Is Representing: ©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 EXHIBIT "A" Legal Description APN 254-270-18 ALL THAT PORTION OF THE SOUTH HALF OF THE WEST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 4, TOWNSHIP 13 SOUTH, RANGE 4 WET, SAN BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID SOUTH HALF OF TH WEST HALF, SAID CORNER BEING MARUD BY A2-INCH BY 2-INCH HUB AND TACK HAVING COORDINATES X-680,515.01 AND Y=328,478.60 FEET; THENCE ALONG THE WESTERLY LINE OF SAID SOUTH HALF OF THE WEST HALF, NORTH 0102'41" WEST 278.88 FEET TO THE TRUE POINT OF BEGINNING; THENCE RETRACING ALONG SAID WESTERLY LINE SOUTH 102'41 EAST 225.00 FEET; THENCE LEAVING SAID WESTERLY LINE SOUTH 8928'48" EAST 70.19 FEET; THENCE NORTH 4604'42" EAST 103.14 FEET; THENCE NORTH 0253'32" WEST 156.82 FEET TO A LINE WHICH BEARS NORTH 9857'19" EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 8857'19" WEST 140.69 FEET TOT EH TRUE POINT OF BEGINNING. 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