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2011-640472DOC# 20110640472 11111111111111111111111111111111111111111111111111111111111111111111 NOV 30, 20111 1:33 PM OFFICIAL RECORDS Recording Requested By' SAN DIEGO COUNTY RECORDER'S OFFICE k Ernest J Dronenburg, Jr , COUNTY RECORDER City Engineer i FEES 55.00 PAGES: 14 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 254-351-3054-351-31, & 254-351-32 Project No 06-111 TM & 06-112 TM Plan No 10598-G/I/FM & 10599-FM THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and Warmington Encinitas 41 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 Final Map for Case No 06-111 TM and 06-112 TM, 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 1) 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 10598-G and Improvement Plan 10598-1 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 11 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- Warmington Encinitas 41, LLC, a Delaware Limited Liability Company By. Warmington 2011 Pool, LLC, a Delaware Limited Liability Company, its Member By. WRG Builder 1, L.P., a California Limited Partnership, Managing Member By- Warmington Residential California, Inc., a California Corporation, General Partner By- ` Matthew L. Tin eF Executi e Vice President Date Signature of DEVELOPER must be notarized Attach the appropriate acknowledgement. CITY OF INITAS: zz 1 M N/-Lawre . Watt Dat Public Works Director City of Encinitas ACKNOWLEDGMENT State of California County of Orange ) On November 17, 2011 - before me, Jackie L Venturelli, Notary Public (insert name and title of the officer) personally appeared Matthew L. Tingler who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a;@ subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/lair authorized capacity(iee), and that by his/her4heir signature(s) on the instrument the person(s~, or the entity upon behalf of which the person(.s),acted, executed the instru ment. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. JACKIE L. VENTURELLI Commission # 1856725 a -s Notary Public - California Z WITNESS my hand and official seal z Orange County My Comm. Expires Jul 4, 2013 Signature (Seal) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County ofi.~o ~C Q Q~ On * V ZZ .w// before me, F4X)Z94 441,b 1-114 tae, 0y0170`If11"&11: Date Here Insert Name and Title of he Officer personally appeared 9 4 u/y4%T Name(s) of Signer(s) • RANDA GAIL MILLJOUR v ` Commission #1916144 c N l Notary Public - California > Son Diego County I My Commission Exp. Jan. 6, 2015 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)tI3are subscribed to the within instrument and acknowledged to me that 6she/they executed the same in er/their authorized capacity(ies), and that by Rer/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 OPTIONAL Signa 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 ❑ Attorney in Fact ❑ Trustee El General Top of thumb here ❑ 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 EXHIBIT "A" LEGAL DESCRIPTION ALL OF LOTS 38 AND 42 TOGETHER WITH PORTIONS OF LOTS 35, 36, AND 37 OF HILLSIDE ACRES, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO 1992, RECORDED JANUARY 25, 1927 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 38, THENCE ALONG THE SOUTHEASTERLY LINE THEREOF SOUTH 50°13'53" WEST, 239 96 FEET (N 50°16'24" E, 239 96' PER SAID CERTIFICATE OF COMPLIANCE) TO THE SOUTHWEST CORNER OF SAID LOT 38, THENCE ALONG THE SOUTHWESTERLY LINE THEREOF NORTH 39°42'34" WEST, 262.19 FEET TO THE SOUTHEASTERLY LINE OF THE NORTHWESTERLY HALF OF SAID LOT 37, THENCE ALONG SAID SOUTHEASTERLY LINE SOUTH 50°15'02" WEST, 240 31 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 36, THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 39°46'07" EAST, 0 24 FEET TO THE SOUTHEASTERLY LINE OF THE NORTHWESTERLY 262 25 FEET OF SAID LOT 36, THENCE ALONG SAID SOUTHEASTERLY LINE SOUTH 50°15'02" WEST, 336 48 FEET, THENCE LEAVING SAID SOUTHEASTERLY LINE NORTH 89°14'43" WEST, 97 03 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT 35, THENCE ALONG THE WESTERLY LINE OF SAID LOTS 35 AND 42 NORTH 00°45'17" EAST, 714 44 FEET TO THE NORTHWEST CORNER OF SAID LOT 42, THENCE ALONG THE NORTHERLY LINE THEREOF SOUTH 89°11'53" EAST, 529 79 FEET TO THE MOST EASTERLY CORNER OF SAID LOT 42, THENCE LEAVING SAID NORTHERLY LINE ALONG THE NORTHWESTERLY AND NORTHEASTERLY LINE OF SAID LOT 38 NORTH 50°24'38" EAST, 24 62 FEET; THENCE SOUTH 39°39'23" EAST, 523 62 FEET TO THE POINT OF BEGINNING THE HEREINABOVE DESCRIBED PARCEL OF LAND CONTAINS 9 111 ACRES, MORE OR LESS 10 LAND SCR PS B. STS 6~0 OJ Z~/ o a DOUG S B ST P L.S 8553 L.S. 8553 HUNSAKER & ASSOCIATES SAN DIEGO, INC ~TF OF CAI- PAGE 1 OF 1 :ML M:\0107\270\ProcessingW03 Covenants- Full legal.docx WO 107-270 8/5/11 MAINT. AGREEMENT FOR PRIVATE STORMWATER TREATMENT & STORMWATER POLLUTION CONTROL FACILITIES BY H.O.A. EXHIBIT 'B' R.O.W. 1~ - - - ' MOD. TYPE 'G'- { - - - - - CURB & GUTTER SIDEWALK 1 14 ROADSIDE TREATMENT SWALE C3 (SEE 10598-G, SHT. 3 FOR DETAILS) 1AA - LPHN GIRCLE \ BOUNDARY , ` TM 06-112 , R.O.W. SCALE: 1"=80' PRIVATE - ROADSIDE TREATMENT SWALE SHT 3 FOR DETAILS) (SEE 10598-G DRAINAGE ESMT . , . SIDEWALK W CD' BIO-RETENTI (SEE 10598- FOR DETAILS) SYSTEM , SHT. 3 I I~ 2 CD , M MOD. TYPE 'G' CURB & GUTTER AND' COURT \ _ BOUNDARY - - - - - , TM 06-111 } I CD ROADSIDE TREATMENT SWALE j (SEE 10598-G, SHT. 3 FOR DETAILS) CD is R.O.W. RNATE CD DRAINAGE SIDEWALK ESMT ; MOD. TYPE 'G' CURB & GUTTER BIO-RETENTION SYSTEM i (SEE 10598-G, SHT. 3 FOR DETAILS) MAINTENANCE AREAS / i - (3) ROADSIDE TREATMENT SWALES - (2) 1310-RETENETIONSYSTEMS E HUNSAKER (NOTE MAINT INCLUDES LANDSCAPING & &ASSOCIATES IRRIGATION IN THESE AREAS) : A N D I E G Q I N C SPIT 1 OF 3 PUNNING 9707 Wapbs shx[ MGNMNC Sm DIgn G 9= R: \1009\AEng\Exh i b i is\Covenants and Agreement Exhibits\BMP Ma i nt Agreement 1 of 3. dwg[ ]Oct-28-2011. 15: 13 SURVEYING "ass)s5845w• 11105615w 414 'MAINT. AGREEMENT FOR PRIVATE STORMWATER TREATMENT & STORMWATER POLLUTION CONTROL FACILITIES BY H.O.A. MAINT. AGREEMENT FOR PRIVATE STORMWATER TREATMENT STORMWATER POLLUTION CONTROL FACILITIES BY H.O.A. EXH I I ' B' B10-RETENTION SYS i' CD (SEE 10598-G, SHT. l OR DETAILS) ` /x CDPRIVATE DRAINAGE - % ESMT. ~ \\\x PRIVATE DRAINAGE r , ESMT. CD \ x1 \ \ BOUNDARY J \ > TM 06-112 BOUNDARY TM 06-111 \ / MAINTENANCE AREAS: \ - (1) BIO-RETENETIONSYSTEM (NOTE MAINT INCLUDES LANDSCAPING & HUNSAKER IRRIGATION IN THESE AREAS) & ASSOCIATES SCALE: 1"=60' SAN DIEGO. INC SHT 3 OF 3 ruwwwc wwwwwSbM BK7MMW 5.D DWm Cl %M R \1009\kEng\Exh i b i is\Covenants and Agreement Exhibits\BMP Ma i nt Agreement 3 of 3.dwg[ ]Oct-2B-2011.15: 07 &awywc no5arz dsm. n((64s%uu MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER TREATMENT & STORMWATER POLLUTION CONTROL FACILITIES BY HOMEOWNER'S ASSOCIATION EXHIBIT "C' Facility Maintenance Requirements Maintenance of the site BMPs will be the responsibility of the Homeowners Association. A maintenance plan will be developed and will include the following information Specification of routine and non-routine maintenance activities to be performed A schedule for maintenance activities Name, qualifications, and contact information for the parties responsible for maintaining the BMPs The primary maintenance requirement for bioretention areas is that of inspection and repair or replacement of the treatment area's components Generally, this involves nothing more than the routine periodic maintenance that is required of any landscaped area Bioretention components should blend over time through plant and root growth, organic decomposition, and the development of a natural soil horizon. These biologic and physical processes over time will lengthen the facility's life span and reduce the need for extensive maintenance Routine maintenance should include a biannual health evaluation of the trees and shrubs and subsequent removal of any dead or diseased vegetation Diseased vegetation should be treated as needed using preventive and low-toxic measures to the extent possible. BMPs have the potential to create very attractive habitats for mosquitoes and other vectors because of highly organic, often heavily vegetated areas mixed with shallow water Routine inspections for areas of standing water within the BMP and corrective measures to restore proper infiltration rates are necessary to prevent creating mosquito and other vector habitat. In addition, bioretention BMPs are susceptible to invasion by aggressive plant species such as cattails which increase the chances of water standing and subsequent vector production if not routinely maintained Target Maintenance Dates - June 15t", September 15th (Dry Season Inspections) Maintenance Activity - Inspection of Bioretention System, mowing, and maintenance Target Maintenance Dates - 15th of each month; October through April (Rainy Season Inspections) Maintenance Activity - Inspection of Bioretention System, mowing, and maintenance In order to maintain the treatment area's appearance it may be necessary to prune and weed Furthermore, mulch replacement is suggested when erosion is evident or when the site begins to look unattractive Specifically, the entire area may require much replacement every two to three years, although spot mulching may be sufficient when there are random void areas Mulch replacement should be done prior to the start of the wet season Other potential tasks include replacement of dead vegetation, soil pH regulation, erosion repair at inflow points, mulch replenishment, unclogging the underdrain, and repairing overflow structures There is also the possibility that cation exchange of the soils in the cell will be significantly reduced over time. Depending on pollutant loads, soils may need to be replaced within 5-10 years of construction The operation and maintenance costs for a bioretention facility will be comparable to those of typical landscaping required for a site. Costs beyond the normal landscaping fees will include the cost for testing the soils and may include costs for a sand bed and planting soil The following costs are intended only to provide a magnitude of the costs involved in maintaining BMPs Funding shall be provided by the Home Owners Association for the Encinitas 23 development. Costs assume a 3 man crew- o Cut vegetation to as necessary = $360 o Ensure adequate vegetation = $360 o General inspection, debris and sediment removal = $180 o Inspection = $480 Bioretention System Subtotal = $1,380 per basin x 3 basins = $4,140 Total BMP Maintenance Subtotal = $4,140 10% Contingency = $414 Approximate Total Annual Maintenance Costs = $4,554