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2012-601011 D 0 C ## 2012-0601011 p I IIIIIIIIIIIIII 111111111111111111111111111111111111111111111111111111111 IN Ico`► 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 I 1 1 I ' I I - I I r-- 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