2012-239482~a
Recording Requested By-
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APR 24, 2012 4:08 PM
City Engineer
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
When Recorded Mail to Ernest J Dronenburg, Jr , COUNTY RECORDER
FEES 49.00
City Clerk 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 254-313-04 & 05 Project No. 11-072 CDP
Site Address: 934 N. Coast Highwav 101 (11147-G)
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and Kristine Lorraine Logan, 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 major 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 11147-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 5tormwater 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-
ristine Lorraine Logan
Date
Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITAS:
J1 + Watt GAEC Sf/ Z4.0S Date
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County o ~i
On _ WJ_ befor E
Date
personally appeared Za:
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Name(s) of Signer(s)
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to that e/ executed the same in
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' er( ~ signatur%K on the instrument the
pers n , 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/i/hand any official 45_al,,
Name and Xtle of the
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Place Notary Seal Above Signatur
OPTIONAL
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and could prevent f)aent removal and reattachment of
Description of Attached M<
Title or Type of Document: ~Di/Xry~r J~/ &
Document Date
Signer(s) Other Than Named Above
Capacity(ies) Claimed by Signer(
Signer's Name
CJ Corporate Officer - Title(s)
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w 2010 National Notary Association NationalNotary.org 1-800-US NOTARY (1-800-876-6827)Y-V v v~wwwww~~w~~a'
Item k5907
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of ~ D,V
On / 7, 20/ L before me,~c1t~/1 6,4/c x{ /x_ 4_;?KUjQ it10ie y i°UBuc
Date Here Insert Name and Title of the Officer '
personally appeared _611CC"Ll 3f~/~La , ~UT~9 C / 7 Lj C.CJ6i,l6ele
Name(s) o Signer(s)
who proved to me on the basis of s tisfactory evidence to
be the person(s) whose name(s) is re subscribed to the
within instrument and acknowl ged to me that
e/ he/they executed the same i his er/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of
RANDA GAIL MILLJOUR which the person(s) acted, executed the instrument.
Commission #1916144 A I certify under PENALTY OF PERJURY under the laws
Notary Public - California(
> San Diego County 4 of the State of California that the foregoing paragraph is
My Commission Exp. Jan. 6, 2015 true and correct.
WITNESS my hand and official seal
Signature
Place Notary Seal Above
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OPTIONAL
Though the information below is not required
by law, it may prove valuable to persons relying on the document
and could prevent fraudulent remo
val and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date
Number of Pages.
Signer(s) Other Than Named Above
Capacity(ies) Claimed by Signer(s)
Signer's Name
Signer's Name.
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❑ Guardian or Conservator
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❑ Other'
Signer Is Representing:
Signer Is Representing:
02007 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
EXHIBIT "A"
LOTS 4 AND 5, BLOCK 3 OF SOUTH COAST PARK, NO. 2, IN THE COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 1859, FILED
IN THE OFFICE OF THE COUNTY RECORDER SEPTEMBER 21, 1925.
EXHIBIT "B"
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WITHOUT PERMISSION OF
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PROP05EO BLDG
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HATCH REPRESENTS BMP AREAS NOT TO BE MODIFIED
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