2012-601011 D 0 C ## 2012-0601011
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IIIIIIIIIIIIII 111111111111111111111111111111111111111111111111111111111 IN
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Recording Requested By- ) OCT 02 2012 4:24 PM
City Engineer ) OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
When Recorded Mail to ) EFEESJ Dronenbur34 00 COUNTY RECORDER
City Clerk ) PAGES: 7
City of Encinitas
505 South Vulcan Avenue 11111111111111 IIII
Encinitas, CA 92024 ) SPACE ABOvt I-UK RECORDER'S USE ONLY
vN )L PRIVATE STORM DRAIN
baq\ ✓ MAINTENANCE AGREEMENT
APNs 255-222-46 & 255-222-47 Project No 11-063 TM
Plan No 10271-G/I
THIS AGREEMENT to ensure the periodic maintenance and repair of a private storm
water conveyance system and stormwater treatment facilities-(hereinafter referred to as
"Storm Drain" and more specifically shown in Exhibit "B" attached hereto and made a
part hereof) located on the property commonly known as 1745 Olivenhain Rd and as
Tentative Map 11-063TM, more particularly described in Exhibit "A" which is attached
hereto and made a part hereof (hereinafter referred to as Property), which are
constructed per City of Encinitas Drawing Number 11271-G and 11271-1 is entered into
by CITYMARK OLIVENHAIN LLC A CALIFORNIA LIMITED LIABILITY COMPANY
(hereinafter referred to as "Owner") and the City of Encinitas (hereinafter referred to as
"City") for the benefit of current and future Owners of the residential lots (hereinafter
referred to as "Residences") to be constructed on the Property
WHEREAS, the stormwater runoff generated by the dedicated public road
constructed as part of the subdivision drains to private property, and
WHEREAS, development of the Residences without collection and controlled
conveyance of the storm runoff would subject the Residences to flooding, erosion, and
structural damage, and
WHEREAS, it is Owner's desire to convey the storm runoff in a private storm drain
in order to avoid the high cost and access and easement requirements associated with
construction of public storm drain systems, and
WHEREAS, it is the desire of the Owner to periodically maintain and repair the
Storm Drain and appoint maintenance responsibilities to the future Homeowners
Association, and
WHEREAS, there exists a benefit to the public that the private storm water
facilities be adequately maintained on a regular and periodic basis in compliance with
the City of Encinitas Municipal Code and other related City policies and requirements,
and
WHEREAS, it is the intention of the Owner that this Agreement constitute a
covenant running with the land, binding upon successive owners of the property,
NOW THEREFORE, IT IS HEREBY AGREED FOR VALUABLE
CONSIDERATION AS FOLLOWS
1 The property is benefited by this Agreement, and it is understood and agreed
that Owner and each and every person who shall at anytime own all or any
portion of the property referred to herein are expressly bound hereby for the
benefit of the land, and that the covenants herein contained shall be binding on
the heirs, executors, administrators, successors, and assignees of each of the
Owner
2 The private storm water facilities shall be constructed by the Owner, its
successors and assigns, in accordance with the grading plan 11271-G and
Public Improvement Plan 11271-1
3 The cost and expense of maintaining the private storm water treatment facilities
shall be paid by the owner or the heirs, assigns, and successors in interest or
each such owner
5 The repairs and maintenance to be performed under this Agreement shall
include the following reasonable improvements and maintenance work to
adequately maintain the Storm Drain in proper working order as determined by
applicable City policies and requirements and necessary to permit access to said
facilities Repairs and maintenance under this Agreement shall include, but shall
not be limited to, repairing and maintaining drainage structures, removing debris,
and other work reasonably necessary and proper to repair and preserve the
Storm Drain for its intended purposes The Storm Drain shall be maintained
regularly as necessary to keep the facilities in proper working order, with a
minimum maintenance frequency of twice annually
8 Any liability of the owners for personal injury to an agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement,
or to third persons, as well as any liability of the Owner for damage to the
property of agent, or any such worker, or of any third persons, as a result of or
arising out of repairs and maintenance under this Agreement, shall be borne by
the Owner as they bear the costs and expenses of such repairs and
maintenance Owners shall be responsible for and maintain their own insurance,
if any
9 The Owner shall jointly and severally defend, indemnify, and hold harmless City,
City's engineer and 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 Storm
Drain, or to any other third persons arising out of or in any way related to the use
of, repair or maintenance of, or the failure to repair or maintain the Storm Drain
10 Nothing in the Agreement, the specifications or other contract documents, or
City's approval of the plans and specifications or inspection of the work is
intended to include a review or acknowledgement of a responsibility for any such
matter, and City, City's engineer and its consultants, and each of its officials,
directors, officers, employees and agents, shall have no responsibility or liability
therefore
11 In the event the Owner, its successors and assigns, fails to maintain the Storm
Drain in good working condition acceptable to the City, the City, its agents, or its
contractors, may take the steps necessary to correct deficiencies and charge the
costs of such repairs to the Owner City reserves the right to file an assessment
lien on the real property with the County Recorder of County of San Diego It is
expressly understood and agreed that the City is under no obligation to maintain
or repair the Storm Drain, and in no event shall this Agreement be construed to
impose any such obligation on the City
12 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 Storm
Drain fails to operate properly
13 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 and any subsequent purchaser of all or any
portion thereof, by acceptance of delivery of a deed and/or conveyance
regardless of form, shall be deemed to have consented to and become 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 9 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
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
15 The Owner acknowledges that the drainage system and stormwater treatment
facilities running across the Property (which is the subject of this Maintenance
Agreement) is for the protection of the Property, to eliminate the surface drainage
across the property, and is constructed as a result of Owner's desire to develop
the Property The Storm Drain has been sized and designed by the Owner's
professional civil engineer The project professional civil engineer has advised the
Owner that the Storm Drain is adequate to covey the volume of water that has
drains across the Property The project professional civil engineer has advised
the Owner about the maintenance needed for the Storm Drain, both as to
frequency and to the nature of the maintenance The Owner also understand and
acknowledges that the Storm Drain will not be maintain by the City of Encinitas,
and that the Storm Drain is not, and will not be, included in the inventory of public
facilities, and will not be considered part of the public drainage system The
owner acknowledges that he/she has constructed the Storm Drain in order to
benefit the Property
ACCEPTED AND AGREED BY
OWNER
Richard V ustafson, Manager Date
CityMark Olivenhain, LLC
(Notarization of OWNER signature is attached )
AND
CITY OF ENCINITAS
M, p PGreg Shiel s, Date
City Engineer
City of Encinitas
(Notarization not required)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
County of San Diego
On September 9, 2012 before me, Kris Johnson Notary Public, personally
appeared Richard V Gustafson , who proved to me on the basis of satisfactory
evidence to be the person whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/they authorized
ca acit (ies), and that by his/her/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, the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
KRIS JOHNSON
fr Q• Commi ssion# 187 Z •�� Notary Public-Califos$a ohns n, otary Public Z •. z San Diego County ion 18 689 My Comm.Expires Noy 20,2013
My Commission Expires: November 20,2013
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
CityMark Oltvenhatn LLC
Private Storm Drain Maintenance Agreement
Project#: 1 1-063 TM Plan #. 10271-G/I
Assessor's Parcel #'s. 255-222-46, 255-22-47
CA Rev 1/01/08
EXHIBIT "A"
LEGAL DESCRIPTION
THE EASTERLY 222 00 FEET (MEASURED ALONG THE NORTH LINE) OF THAT PORTION OF LOT
12, RANCHO LAS ENCINITAS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 848 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, DESCRIBED AS FOLLOWS
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 12; THENCE SOUTH 87°03'30" WEST
1213 52 FEET ALONG THE NORTHERLY LINE OF SAID LOT TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID NORTHERLY LINE, SOUTH 87°03'30" WEST, 446 00 FEET;
THENCE SOUTH 02°56'30"EAST 300 00 FEET; THENCE NORTH 87°03'30" EAST 446 00 FEET,
THENCE NORTH 02°56'30" WEST 300 00 FEET TO THE POINT OF BEGINNING
EDIT 'B'
EXFIIBIT OFSTORMDRAINAND STORMWATER QUALITYFAcmnIES
PROJECT 11-063TM
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PVT. STOWPAIN FACILITY
TO BE PRIVATELY MAINTAINED
HATCHED AREA REPRSENTS PRIVATE STORM DRAIN
FACILITIES TO BE PRVATELY MAINTAINED BY HOME
OWNERS ASSOCIATION
PASCO LARET SUITER
& ASSOCIATES
CIVIL ENGINEERING+LAND PLANNING+LAND SURVEYING
535 N Coast Highway 101 Ste A Solana Beach,CA 92075
ph 858.259.8212 1 fz 858.259.4812 1 plsaengineering.com
PLSA 1B73F