2012-601006 DOC ## 2012-0601 006
F?; I IIIIIIII III IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IN
Ll p OCT 02, 2012 4:24 PM
Requested B �) OFFICIAL RECORDS
Recording q Y: co� SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J Dronenburg,Jr,COUNTY RECORDER
City Engineer FEES 55.00
PAGES: 14
When Recorded Mail to
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas CA 92024
SPACE ABOVE FOR RECORDER'S USE
k MAINTENANCE\� AGREEMENT FOR PRIVATE STORMWATER TREATMENT AND
\ \ STORMWATER POLLUTION CONTROL/HMP FACILITIES BY HOMEOWNER'S
plU(� ASSOCIATION
\ V
J
APNs 255-222-46 & 255-222-47 Project No 11-063 TM
Plan No 10271-G/I
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and CITYMARK OLIVENHAIN LLC., A
CALIFORNIA LIMITED LIABILITY COMPANY, its heirs, successors, and assigns,
collectively hereinafter referred to as "Developer", 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, Hydromodification Management flow
control structures, 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 The term Maintenance is defined in
Paragraph 1 below
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 described in Exhibit "B" benefit said
Property, the developer, and the future owners of the lots/parcels created by the Final
Map per Tentative Map Case No 11-063TM, their heirs, successors, and assigns,
collectively hereinafter referred to as "Owners", and
WHEREAS, City requires that Developer establish a homeowners association in
conformance with the California Civil Code Sections 1350 through 1376, hereinafter
referred to as "HOA", to be responsible for the Maintenance of Stormwater Facilities
into perpetuity; and
WHEREAS, it is the desire of the City, the responsibility of the Owners, HOA, and
Developer, herein after collectively referred to as "Parties", 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 by the
Parties 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 Developer and HOA to manage and oversee
Maintenance of Stormwater Facilities and to assign a single point of contact between
the City of Encinitas and HOA or Developer; and
WHEREAS, Developer's responsibility of Maintenance of Stormwater Facilities will
be transferred to HOA after the sale of all lots/parcels, the completion of development,
and the approval of the City; and
WHEREAS, following Developer's completion of the development and acceptance
by the City, the Owners are responsible to continuously have an HOA for purposes of
Maintenance of the Stormwater Facilities, and
WHEREAS, for the purpose of this agreement, Maintenance responsibilities
mentioned on this agreement equally and collectively apply to Owners and the HOA,
WHEREAS, it is requirement of development 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 Parties' 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 Parties' requirements
for providing Stormwater Facilities Maintenance as stated in this agreement shall
mean Maintenance managed and paid for by the Parties, and performed by a
qualified contractor hired by the Parties
i) The Parties shall inspect the Stormwater Facilities after all major storms In
addition, the Parties shall inspect the Stormwater Facilities at the minimum
frequency specified in Exhibit "C", but not less than twice per year
ii) The Parties shall provide upkeep and repair to keep the Stormwater Facilities
in good working order and shall repair all deficiencies identified in the Parties'
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 until such time as the
Facilities are repaired 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 Parties shall ensure
that the Stormwater Facilities are in proper working order for the rainy
season, which starts on October 1
iii) The Parties 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 Parties 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 Parties in accordance with the term and conditions of this
agreement and the plans and specifications identified in approved Grading Plan
Number 11271-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 Parties The Parties' share of Stormwater Facilities Maintenance
costs is proportional to number of lots/parcels that Owners and Developer own
as a fraction of the total number of lots/parcels in the Property using and
benefiting from the Stormwater Facilities but excluding common ownership
lots/parcels
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 included in
the existing HOA and be liable under this Agreement and with the HOA 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 Developer, Owners, and HOA are collectively responsible to the City for
Maintenance of Stormwater Facilities so long as either Developer or Owners own
any lots/parcels Developer remains responsible for Maintenance of Stormwater
Facilities until such Facilities have been approved by the City, even if Developer
no longer owns any lots/parcels of the Property
8 Any liability of the Parties for personal injury to any worker employed to provide
Maintenance under this Agreement, or to third persons, as well as any liability of
the Parties 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 Parties
9 Parties 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 Parties agree 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 Parties 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 Parties hereby grant 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 Parties fail to preserve 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 Parties 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 Parties 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 Parties
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
DEVELOPER.
Richard V Gustafson, Manager Date
CityMark Olivenhain, LLC
Signature of DEVELOPER must be notarized Attach the appropriate
acknowledgement.
CITY OF ENCINITAS
M,Ml Greg Shiol4U Date
City Engineer
City of Encinitas
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
State of California
fi County of<--
I
On 11.2-71,121 before me,
ate Here Insert Name and Title of the Officer
personally appeared
Name(s)of Signer(s)
I
3
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name( is re
subscribed to the-within instrument and acknowledged
me that�he/they executed the same in
RANDA GAIL MILLJOUR er/their authorized capacity(ies), and that by
fi a Commission#1916144 < hi er/their signature(s) on the instrument the
ly Notary public - Califorma0) person(s), or the entity upon behalf of which the
> San Diego County 4
My Commission Exp. Jan. 6, 2015 person(s) acted, executed the instrument.
fi
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
I
WITNESS my hand and official seal
Signature
Place Notary Seal Above Si ature of Notary Public },I� OPTIONAL
2 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
fiTitle or Type of Document:
fiDocument Date Number of Pages ;
Signer(s) Other Than Named Above
fi Capacity(ies) Claimed by Signer(s)
Signer's Name Signer's Name
fi 1 Corporate Officer — Title(s) -7 Corporate Officer — Title(s)
I-- Individual - =•• J Individual EvreMail
C_1 Partner — C I Limited II General Top of thumb here LJ Partner — ❑ Limited L General Top of thumb here
fi ❑ Attorney in Fact I�]Attorney in Fact
fi
fi 1 Trustee Trustee
fi ❑ Guardian or Conservator Guardian or Conservator
fi
fi I � Other CI Other,
fi
Signer Is Representing g P 9 Signer Is Representing
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I
:�2010 National Notary Association National Notary.org•1-800-us NOTARY(1-800-876-6827) Item#5907
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
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the eU rson(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
Commission 1871689
a"-� Notary Public-California i
Z San Diego County
Kri Johns Otary Public My Comm.Expires Nov 20,2013
Commission#1871689
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 Olivenham LLC
Maintenance Agreement For Private StormWater Treatment& StormWater Pollution Control / HMP
Facilities By Homeowner's Association
Project# 11-063 TM Plan #: 10271-G/l
Assessor's Parcel #'s: 255-222-46, 255-22-47
CA Rev I '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 02 056'30"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
EXHIBIT 'B' 1 OF 2
STORMWATER FACILITIES
PROJECT 11-0637M
1 1
1
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1 1
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HATCHED AREA REPRESENTS DESIGNATED 'INTEGRATED
.v MANAGEMENT PRACTICE" AREAS FOR STORM WATER
TREATMENT (TYPICAL)
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 f:858.259.4812 1 plsaengineering.com
PLSA 1673F
EDIT Y 2 OF 2
DEEP ROOTED, DENSE DROUGHT
TOLERANT PLANTING SUITABLE
FOR WELL DRAINED SOIL
VARIES PER PLAN
RETENTION AREA SHALL BE
LEVEL AND DEPRESSED A 18" RAISED BROOKS BOX INLET PER PLAN
MIN. OF 6" FROM THE 4" MIN 2" (HARDWOOD MULCH
SURROUNDING GRADE
24" MIN. ENGINEERED SOIL
*SEE NOTE BELOW
IMPERMEABLE VISOUEEN LINING
3"-3/8" GRAVEL
— — — — — — — — — — — — — 12"-314" CRUSHED ROCK
3" PERFORATED PIPE
W/ FILTER FABRIC
PERFORATIONS AT THE INVERT
PLACE 3" PVC & 2' O.C.
4" PERFORATED PIPE W/ FILTER
FABRIC TO CONNECT TO BROOKS
12" PVC DRAINPIPE BOX
PER PLAN NOTE 4" PIPE SHALL BE CENTERED
IN IMP RUN ENTIRE LENGTH OF IMP
*`ENGINEERED SOIL" LAYER SHALL BE MINIMUM 6" DEEP 'SANDY LOAM" SOIL MIX WITH NO
MORE THAN 5% CLAY CONTENT. THE MIX SHALL CONTAIN 50-60% SAND 20-30% COMPOST OR
HARDWOOD MULCK AND 20-30% TOPSOIL
NOTE TO CONTRACTOR
PERMANENT VEGETATED IMP AREAS SHALL BE CONSTRUCTED PER SIZE ON PLANS AND
SPECIFICATIONS PROVIDED ON THIS DETAIL. ANY DEVIATIONS WITHOUT PRIOR APPROVAL
FROM BOTH THE CITY OF ENCINITAS AND THE ENGINEER OF RECORD WILL RESULT IN
REMOVAL AND RECONSTRUCTION OF IMP AREA.
TYPICAL IMP SECTION
NTS
MIN DP TOP OF BOTTOM OF MDV. BASIN
LOT AREA (SF! GRATE BASDV DEPTH
1 85 137.0 136.5 4"
2 90 133.4 133.0 4"
3 1 81 130.0 129.6 4"
4 105 126.3 124.5 4"
5 95 1261 124.3 4"
6 70 126.3 125.9 4"
7 105 124.5 124.1 4"
8 110 123.4 123.0 4"
9 80 129.5 129.2 4" PASCO LARET SUITER
10 90 133.4 133.1 4" & ASSOCIATES
11 76 136.7 136.4 4" 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 1873F
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BMP Swales and Landscape Areas
The operational and maintenance needs of an IMP Basin is
• Vegetation management to maintain adequate hydraulic functioning and to limit
habitat for disease-carrying animals.
• Animal and vector control.
• Periodic sediment removal to optimize performance.
• Trash, debris, grass trimmings, tree pruning, and leaf collection and removal
to prevent obstruction of a Swale and monitoring equipment.
• Erosion and structural maintenance to prevent the loss of soil and maintain
the performance of the Swale.
Functional Maintenance
Functional maintenance has two components:
Preventive maintenance
Corrective maintenance
Preventive Maintenance
Preventive maintenance activities to be instituted at an IMP Basin are•
• Trash and Debris. During each inspection and maintenance visit to the site,
debris and trash removal will be conducted to reduce the potential for inlet
and outlet structures and other components from becoming clogged and
inoperable during storm events.
• Sediment Removal. Sediment accumulation, as part of the operation and
maintenance program at a Swale, will be monitored once a month during the
dry season, after every large storm (0.50 inch), and monthly during the wet
season. Specifically, if sediment reaches a level at or near plant height, or
could interfere with flow or operation, the sediment will be removed. If
accumulation of debris or sediment is determined to be the cause of decline
in design performance, prompt action (i.e., within ten working days) will be
taken to restore the Swale to design performance standards. Removal of
Standing Water. Standing water must be removed if it contributes to the
development of aquatic plant communities or mosquito breeding areas.
• Fertilization and Irrigation. The vegetation seed mix has been designed so
that fertilization and irrigation is not necessary Fertilizers and irrigation
will not be used to maintain the vegetation.
• Elimination of Mosquito Breeding Habitats The most effective mosquito
control program is one that eliminates potential breeding habitats.
Corrective Maintenance
Corrective maintenance is required on an emergency or non-routine basis to
correct problems and to restore the intended operation and safe function of a
BMP Swale. Corrective maintenance activities include•
• Removal of Debris and Sediment. Sediment, debris, and trash, which
impede the hydraulic functioning of a Swale and prevent vegetative growth,
will be removed and properly disposed.
• Structural Repairs Once deemed necessary, repairs to structural
components of a Swale and its inlet and outlet structures will be done within
10 working days.
• Embankment and Slope Repairs. Once deemed necessary, damage to the
embankments and slopes of Swales will be repaired within 10 working
days).
• Erosion Repair. Where a reseeding program has been ineffective, or where
other factors have created erosive conditions (i.e , pedestrian traffic,
concentrated flow, etc), corrective steps will be taken to prevent loss of soil
and any subsequent danger to the performance of a Swale. There are a
number of corrective actions than can be taken. These include erosion
control blankets, riprap.