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2011-626816 D 0 C # 2011 -0020010 Recording Requested By: NOV 22, 2011 4:59 PM City Engineer OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J Dronenburg,Jr,COUNTY RECORDER When Recorded Mall to. FEES 4600 City Clerk PAGES. 11 City of Encinitas 505 South Vulcan Avenue 1 1 IN 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 L j_ APN. 258-241-32 and 33 Project No - 06-666 CDP Site Address. 354 Santa Fe Drive (10747-1) THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and SCRIPPS HEALTH, A CALIFORNIA NONPROFIT PUBLIC HEALTH CORPORATION, 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 10747-1 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 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. 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 OWNER-.-- WNER:- SCRIPA HEALTWCbRPORATt6N bate Joh rmstrong, Corporate Senior VP, Supply Chain MGMT/FD&C Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: M Lawr . Watt Date `�' Public Works Director State of rnia CALIFORNIA ALL-PURPOSE County of ) ERTIFICATE OF ACKNOWLEDGMENT L11 C: ERTIF On ck 1Z before me, (here insert name an title of orq-7 personally appeared who proved to me on the basis of satisfactory evidence to be the person(Owhose namefs)ishw subscribed to the within instrument and acknowledged to me that heighe0they-executed the same in hls4herAWiF authorized capacity(W-s�, and that by hisAwAh&signatureW on the instrument the person(a), 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 j fix ''; State of California that the foregoing paragraph is true and correct SUSAN L. 7C H COMM.01823796 Z Notary Public-California San DiW County WITN hand and official seal. COMM EXWU Nov 21,2012 I S►ghature (SeaO OPTIONAL INFORMATION Although the information in this section is not required by low,it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledg entis attached tofil-00cument titled/for the purpose of I The signer(s)capacity or authority is/are as: E) in&mduai(s) ❑ �Uoffiey-in+3a _ [Xcom ate officer(s) L—, ❑Guardiawconwimitor ❑ Partner-LimttedlGenerai ❑TriK -s ❑ other. represeii t - son(s)or Entity(ies)Signer Is Representing 0 Copyright 2007 Notary Rotary,Inc 925 29th St,Des Moines,IA 50312-3612 FormAC903 10/07 To re-order,call toll4ree 1-077-349-658ti or visit us on the Internet at http-J/www.notaryrotaryxorn CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of fi On AV II before me, "14 15 14 t,r7VUe, Date Here Insert Name and Title of the Officer personally appeared �GGyt'�,tJLE f!• YY,4 , Name(s)of Signer(s) a, who proved to me on the basis of satisfactory fievidence to be the person(s) whose name(s)(!Oare subscribed to the within instrument and acknowledged to me that &he/they executed the same in fi i er/their authorized capacity(ies), and that by RANDA GAIL MILUOUR i er/their signature(s) on the instrument the ,t � Commission#1916144 < person(s), or the entity upon behalf of which the fifi Notari Public CaliformaA person(s) acted, executed the instrument 5an Diapo County fiMy Corntnls (6n Exp. Jam, 6, 2015 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct fi WITNESS my hand and official seal. Signature r� Place Notary Seal Above OPTIONAL iffignature of Notary Public 1 Though the information below is not required by law, It may prove valuable to persons relying on the document fi and could prevent fraudulent removal and reattachment of this form to another document fi Description of Attached Document Title or Type of Document- Document Date Number of Pages. fi Signer(s) Other Than Named Above fi Capacity(ies) Claimed by Signer(s) fiSigner's Name Signer's Name. fi ❑ Corporate Officer—Title(s)- ❑Corporate Officer—Title(s): fi ❑ Individual ❑ Individual °;' ❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑ Limited ❑General Top of thumb here fi ❑ Attorney in Fact ❑Attorney in Fact fi ❑ Trustee ❑Trustee fi ❑ Guardian or Conservator ❑Guardian or Conservator fi ❑ Other. C Other Signer Is Representing Signer Is Representing. , fi ©2009 National Notary Association•NationalNotary org•1-800-US NOTARY(1-800-876-6827) Item#5907 EXHIBIT "A" LEGAL DESCRIPTION PROPERTY A PORTION OF LAND DESCRIBED IN CERTIFICATE OF COMPLIANCE PER DOCUMENT NO 2010-0055174 (CASE NO. 06-066 MUP/DR/EIA/CDP) FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 02,2010 PAGE 1 OF 1 0 3h08t/ 3111vri U N Q U i i l W Z = �-- � ( 1 L j Z .� Ld = I� a Q DC I-- °z p L-.Lj m �� �! i W W X - --- �° ., W Ic rL LiJ L-i.l v V) Io 1 pC OV08 � � � O � > OO LQ READ- Fes- C CA►AIN0 d j I 1 i a EL Q j I 4 rj U f N f III D i II a L5 o s 10 CL N I m CL W w w f I 0 OQ4 ( m W rl � ». Li + I 3 � � w ca yl (I j v z CO 2 w `IJ 'o v g to M0738 33 3NI70LVn z 3 (l m o N m C V) 3 w 3 `' InACO °m 01) mr EXHIBIT"C" Maintenance T e Minimum Required Frequency Bio-Swale/Bio-Retention Planter Strip Inspected monthly and prior to the rainy season (October 1 -April 30.)Maintain as needed Drainage facilities, inlets, and outlets Inspected monthly,replace and repair per manufactures'recommendations