2012-725354 D O C ## 20 1 2-0725354
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NOV 20, 2012 12:51 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
1 Recording Requested By: Ernest J Dronenburg,Jr,COUNTY RECORDER
� FEES 52.00
City Engineer PAGES: 13
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas CA 92024
SPACE ABOVE FOR RECORDER'S USE
� MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER TREATMENT AND
\\
STORMWATER POLLUTION CONTROL FACILITIES BY HOMEOWNER'S
ASSOCIATION
APNs:254-061-01" Project No.. 03-090 TM, CDP
Plan No.: 372-G/I
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and Shea Homes Limited Partnership, a California
limited partnership, as Owner, 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, 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 per Map
Case No. 03-090 TM/CDP , 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 "HOK, 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 372-G and Improvement Plan Number 372-1 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.
10. 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.
11. 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.
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 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.
11. 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.
12. 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.
13. The terms of this Agreement may be amended in writing following the Parties
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.
DEVELOPER:
Shea Homes Limited Partnership,
a California limited partnership, as Owner'
By:
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Signature of DEVELOPER must be notarized. Attach the appropriate
acknowledgement.
CITY OF ENCINITAS:
reg Sh ql s Date
Interim irector of Engineering and Public Works
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
State of California
County of.�2,2 I
fi On U) 2, before me, Z-1/6
D'ale Here Insert Name and Title of the Officer
personally appeared 614eC e-1
Name(s)of Signer(s)
who proved to me on the basis of sati f tory
evidence to be the person(s) whose name( Is are
subscribed to t,*#thin instrument and acknowledged
e that"e he/they executed the same in
- - - - - - - - - - r/their authorized capacity(ies), and that by
RANDA GAIL MILLJOUR his er/their signature(s) on the instrument the
Commission#1916144 <
coo X Verson(s), or the entity upon behalf of which the
of Notary Public - Californiao)
> San Diego County 4 person(s) acted, executed the instrument.
My Commission Exp. Jan. 6, 2015
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
fi Signature � -C,
Place Notary Seal Above OPTIONAL Sign Xure of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
fi and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document-
fi Date Number of Pages
Signer(s) Other Than Named Above
fi Capacity(les) Claimed by Signer(s)
i� Signer's Name Signer's Name
E'j Corporate Officer — Title(s) ❑Corporate Officer — Title(s)
Individual
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Partner — ' Limited 1_.General Top of thumb here ❑ Partner — L-1 Limited C General Top of thumb here
Attorney in Fact I]Attorney in Fact
1-1 Trustee L7 Trustee
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Signer Is Representing Signer Is Representing
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r�2010 National Notary Association•NationalNotary.org 1-800-US NOTARY(1-800-876-6827) Item#5907
STATE OF CALIFORNIA )
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COUNTY OF SAN DIEGO )
On November 14, 2012 before me, Patty Rivas, Notary Public
personally appeared John B. Vance and Sarah Beckman , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacity(ies), and that by 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 PATTY RIVAS
comm.sjj;0370
NOTARY PUBLIC CALIFORNIA C
' SAN DIEGO COUNTY
CaaMna M EONS NOV 131 2015
Signature (Seal)
EXHIBIT "A"
LEGAL DESCRIPTION
LOTS 1 THROUGH 79 OF CITY OF ENCINITAS TRACT NO 30-090, CORAL COVE, IN THE
CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO 15613 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID
SAN DIEGO COUNTY ON SEPTEMBER 19, 2007
CAND SUS
ST
J OJT �O A
.� L.S. 8553 +
DOUGLAS B. TROUP P L.S 8553
HUNSAKER &ASSOCIATES SAN DIEGO, INC s9T� FpQ`'~4
DA CAL1
Page 1 of 1
:PV M:\0061\453\Legal Descriptions\A09 Stormwater Maintenance.doc
WO 2167-100 10/16/12
MAINT. AGREEMENT FOR PRIVATE STORMWATER TREATMENT
& STORMWATER POLLUTION CONTROL FACILITIES BY H.O.A.
EXHIBIT 'B'
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BOUNDARY MODULAR
TIrt 03-090 i°
REMANDS UNIT GRUNION RUN
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° CORAL COVE WAY(PRIVATE)
MODULAR
WETLANDS UNIT �j ® O ii 0
372-G, SHT. 3
B10-RETENTION AREA `` Q 49
(SEE 372-G, SHT. 3
FOR DETAILS)
VULCAN AVENUE
MAINTENANCE AREAS
- (2) MODULAR WETLANDS
- (1) BIO-RETENETIONSYSTEMS HUNSAKER
(NOTE. MAINT INCLUDES LANDSCAPING& &ASSOCIATES
IRRIGATION IN THESE AREAS) S A N DIEGO. I N C
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MAINT. AGREEMENT FOR PRIVATE STORMWATER TREATMENT
& STORMWATER POLLUTION CONTROL FACILITIES BY H.O.A.
EXHIBITS'
--------- --)L---,
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GRUNION RUN r v------- -- SCALE: 1"=60'
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MODULAR
WETLANDS UNIT
372-G, SHT J
MODULAR
WETLANDS UNIT
-° , O- O i 372-G, SHE J
CORAL COVE WAY(PRIVATE)
BIO-REffN770N AREA
-(SEE 372-G, SHT 3
FOR DETAILS)
II -
A -------
VULCAN AVENUE
--------- - ---------------- - ---- --
MAINTENANCE AREAS:
- (2) MODULAR WETLANDS
- (1) BIO-RETENETIONSYSTEMS HUNSAKER
(NOTE. MAINT INCLUDES LANDSCAPING& &ASSOCIATES
IRRIGATION IN THESE AREAS) %AN DIEC06 INC
SHT 2 OF 2 nANNW WIFMPINSUM
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EXHIBIT `C'
Minimum Maintenance Requirements for Stormwater Facilities
Maintenance of the site BMPs will be the responsibility of the Homeowners
Association. A maintenance plan will be developed and will include the following
information
Specification of routine and non-routine maintenance activities to be
performed
A schedule for maintenance activities
Name, qualifications, and contact information for the parties responsible for
maintaining the BMPs
The primary maintenance requirement for bioretention and MWS systems is that of
inspection and repair or replacement of the treatment area's components.
Generally, this involves nothing more than the routine periodic maintenance that is
required of any landscaped area. Bioretention components should blend over time
through plant and root growth, organic decomposition, and the development of a
natural soil horizon. These biologic and physical processes over time will lengthen
the facility's life span and reduce the need for extensive maintenance.
Routine maintenance should include a biannual health evaluation of the trees and
shrubs and subsequent removal of any dead or diseased vegetation. Diseased
vegetation should be treated as needed using preventive and low-toxic measures to
the extent possible. BMPs have the potential to create very attractive habitats for
mosquitoes and other vectors because of highly organic, often heavily vegetated
areas mixed with shallow water. Routine inspections for areas of standing water
within the BMP and corrective measures to restore proper infiltration rates are
necessary to prevent creating mosquito and other vector habitat. In addition,
bioretention BMPs are susceptible to invasion by aggressive plant species such as
cattails which increase the chances of water standing and subsequent vector
production if not routinely maintained.
Target Maintenance Dates —June 15th, September 15th (Dry Season Inspections)
Maintenance Activity — Inspection of Bioretention/MWS System, mowing, and
maintenance
Target Maintenance Dates — 15th of each month; October through April (Rainy
Season Inspections)
Maintenance Activity — Inspection of Bioretention/MWS System, mowing, and
maintenance
In order to maintain the treatment area's appearance it may be necessary to prune
and weed Furthermore, mulch replacement is suggested when erosion is evident or
when the site begins to look unattractive. Specifically, the entire area may require
much replacement every two to three years, although spot mulching may be
sufficient when there are random void areas Mulch replacement should be done
prior to the start of the wet season.
Other potential tasks include replacement of dead vegetation, soil pH regulation,
erosion repair at inflow points, mulch replenishment, unclogging the underdrain, and
repairing overflow structures. There is also the possibility that cation exchange of
the soils in the cell will be significantly reduced over time. Depending on pollutant
loads, soils may need to be replaced within 5-10 years of construction.
The operation and maintenance costs for a bioretention facility will be comparable to
those of typical landscaping required for a site. Costs beyond the normal
landscaping fees will include the cost for testing the soils and may include costs for a
sand bed and planting soil.