2012-483654�tA
Recording Requested By:
City Engineer
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
DOC 1t 20120483654
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OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J Dronenburg, Jr , COUNTY RECORDER
FEES 4600
PAGES: 11
SPACE ABOVE FOR RECORDER'S USE
AGREEMENT FOR MAINTAINENANCE OF PRIVATE STORMWATER TREATMENT
AND STORMWATER POLLUTION CONTROL FACILITIES BY HOMEOWNER
APN: 256 - 100 -55 ✓ Project No. 02 -033 CDP
Site Address. Vulcan Avenue W.O. No. 9106 -G
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City ", and IRIS APARTMENTS CIC LP a California
Limited Partnership, 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 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 9106 -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) In 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: IRIS APARTMENTS CIC, LP
By: CIC Iris Apartments, LLC, a California
limited liability company, General Partner
By: Chelsea Investment Corporation, a
California corporation, its Manager
:
e � .5-19/41-
y
heri Hoffman, P ent Dat
Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITAS:
81 ive m 11 &80 GREG SNIE1lZS
M M I YWY enya SKI MIL
�) 4 2 c / L
Date
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of j_aa 614"Og v
On 22f ' 2012 before me, e4.5- Itle 7��
Date �%� Here Insert Name and -Title of the Officer
personally appeared vA e,� /D' %�%�'J�f�
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose nameW is /afe subscribed to the
within instrument and acknowledged to me that
G. R. WITHERS hs/she##eyr executed the same in ht/heKltha#- authorized
Commission # 1903166 capacity(ies), and that by Mg /he~ signatures on the
•' Notary Public • California > instrument the person(s); or the entity upon behalf of
San Diego County which the person{s) acted, executed the instrument.
My Comm. Expires ep 6, 2014
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my and d official s I
Place Notary Seal Above Signatur Signature of Nota y 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: Number of Pages:
Signer(s) Other Than Named Above.
Capacity(ies) Claimed by Signer(s)
Signer's Name Signer's Name
• Individual ❑ Individual
• Corporate Officer — Title(s) ❑ Corporate Officer — Title(s)
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact • • • ❑ Attorney in Fact • Inaw
11 Trustee Top of thumb here ❑Trustee Top of thumb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other- ❑ 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
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of�c?'d
On &)12- beoreme, /4- - ✓700,0, k)e)7X0Cq %a 1,C
Da a Here Insert Name and Title of the Officer
personally appeared �� f� 5�%/ /'S
Name(s) of Signer(s)
RANDA GAIL MILLJOUR
Commission #1916144 <
Notary Public - Californian
`iir San Diego County A
My Commission Exp. Jan. 6, 2015
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) isle subscribed to the
within instrument and acknowledged to me that
lobe/they executed the same it ii her /their authorized
capacity(ies), and that by doher /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�z`�c�2
gnature 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
❑ Guardian or Conservator
❑ Other-
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
..
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:
RIGHT THUMBPRINT
OF SIGNER
of thurrb here
02007 National Notary Association • 9350 De Soto Ave. P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NalionalNotary.org Item #5907 Reorder Call Toll -Free 1- 800 - 876 -6827
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
LOT 1 OF CITY OF ENCINITAS T.M. 02 -233, IN THE CITY OF ENCINITAS, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 15501,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
JANUARY 5, 2007
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EXHIBIT "C"
Minimum Maintenance Requirements for Stormwater Facilities
Maintenance Type
Minimum Required Frequency
Storm Water Best Management Practices: Grass
swales, Infiltration trenches
Inspected monthly, repaired as needed
Drainage Facilities, inlets, storm drain outlets
_
Inspected monthly, replaced and repaired as
needed