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2012-399728Recording Requested By: City Engineer When Recorded Mail to City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas. CA 92024 DOC # 20120399728 IIIIIIIIIIIIIIII 1111111111111111111111111111111111111111111111111111111111111111 JUL 10, 2012 3:57 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J Dronenburg, Jr , COUNTY RECORDER FEES 46.00 PAGES: 11 SPACE ABOVE FOR RECORDER'S USE This document is intended to superseded the previously recorded "Private Stormwater Treatment / IMP Maintenance Agreement" recorded as Document Number 2009- 0692510 on December 15, 2009. MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL/HMP FACILITIES BY HOMEOWNER APN 264-241-25 V Grading Plan 10061-G THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and RNNG 34, LLC AN ARIZONA 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), Hydromodification Management Facilities (HMP), 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 a 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 WHEREAS, the Property benefits and uses the Stormwater Facilities, which are described in Exhibit "B", and WHEREAS, it is the desire of the City and the responsibility of the Owner 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 the intention of the Owner and the City 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's 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) 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 13 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 terms and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 10061-G which is on file as a permanent public record in the City of Encinitas 4) The cost and expense of Maintenance of the Stormwater Facilities shall be paid by the Owner 5) In the event the Property is subdivided in the 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) Any liability of the Owner for personal injury to any worker employed to provide Maintenance under this Agreement, or to third persons, as well as any liability of the Owner 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 8) Owner shall jointly and severally defend, indemnify, and hold harmless the 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 for 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 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 Owner shall provide access to the Stormwater Facilities within the Property to 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 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 12)ln the event the Owner fails to maintain 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 in full 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 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 maintain or repair 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 Owner's 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. OWNER V. V ) 17 10 4Z, P obe a ager - Date RNNG 34, LLC Signature of OWNER must be notarized Attach the appropriate acknowledgement CITY OF ENCINITAS G eg Shi I Date ~V Director of Engineering Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California who proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/ a subscribed to the in instrument and acknowledged to me that he he/they executed the s e i" is er/their authorized capacity(ies), and that by is/ E A eir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. County a .12 P ! fo /Q .7i before me, i¢~(,~'jW CI 1e" /fec. wZ~C),c ~oAc f Ug~~c Dat Here Insert Name and Title of the icer personally appeared 80,L Name(s) of Signer(s) RANDA GAIL MILUOUR ~ Commission #1916144 < Notary Public - CaliforniaN > San Diego County 4 My Commission Exp. Jan. 6, 201 S Place Notary Seal Above 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 Si ture of Nota 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 ❑ Guardian or Conservator ❑ Other Signer Is Representing Top of thumb here Number of Pages- Signer's Name ❑ Individual ❑ Corporate Officer - Title(s) ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other- Signer Is Representing Top of thumb here ©2007 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 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California , County of, OIL f< Z before me,~~'%/L Date Here Insert Name and Title of the Officer personally appeared lei Name(s) of Signer(s) RANDA GAIL MILLJOUR TNotary Public - California 0myommission Commission #1916144 < > San Giego County I lexp, .lAn, 6, 2015 Place Notary Seal Above who proved to me on the basis ci/ factory evidence to be the person(s) whose name(s)4- / e subscribed to the within instrument and acknow ed to me that he/s a/they executed the satT i his/ er/their authorized pacity(ies), and that `his/ er/their signature(s) on the instrument the persons , -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 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 ❑ Trustee ❑ Guardian or Conservator ❑ Other, Signer Is Representing Top of thumb here (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" LEGAL DESCRIPTION LOT I I OF CITY OF ENCINITAS TRACT 97-219 (PHASE 2), IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ON MAP THEREOF NO. 13947, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MARCH 24, 2000, AS INSTRUMENT NO. 00-149094 OF OFFICIAL RECORDS. PREPARED BY ME OR UNDER MY DIRECTION DENNIS W GOOD LS8084 EXHIBIT "B" r / / r i ' r i RIP=RAP e RIP=RA P RIP-RAP \ I LOT 11 MAP NO 13941 APN 264-241-25 i LOCATION OF PERMANENT HMP/ 910-RETENTION BASIN \ \ 2~1 90 SF r \ I ooo LOCATION OF PERMANENT HMP FACILITY LOT 11 PER MAP NO 13947 I a SCALE I"=50' EXHIBIT rS co 0 X m 0 Z 0 D r 0 N T? 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