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2012-726041 D O C ## 2012-0726041 I IIIIIIII III IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII 111111111 IN Recording Requested By' `y NOV 20, 212 4:44 PM E City Engineer ';, OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J Dronenburg,Jr,COUNTY RECORDER When Recorded Mail to. FEES 4000 PAGES: 9 City Clerk �� City of Encinitas 11111 11111 IIII IIII 505 South Vulcan Avenue Encinitas, CA 92024 SPACE ABOVE FOR RECORDER'S USE AGREEMENT FOR MAINTENANCE OF PRIVATE STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL FACILITIES BY HOMEOWNER APN 216-410-31✓ Project No - 04-066 TM Site Address-1938 Stewart Way (Lot 7) 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, 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 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; 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 101735029.2/24426-00075 1 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement 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 101735029.2124426-00075 2 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement 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 Owner in accordance with the terms and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 9336-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 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, of 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 101735029.2/24426-00075 3 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement 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 therefor 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 101735029.2/24426-00075 4 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement IN WITNESS HEREOF, the parties have executed this Agreement. OWNER. / Shea Homes Limited Partnership, a California.I'/ited p rt ership Date By- /�' Name v -t Tom,.. yav<C Its 7Atithorized A ent Name I av 1 L• &#.r.4cs Its Authorized Agent Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS* Date /AMM &REM OF AA- JO AWIMMIN AM PUALSM 101735029.2/24426-00075 5 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement STATE OF CALIFORNIA ) COUNTY OF ) On Ct II '--::10 a X I , before me, � , Notary Public, personally appeared a cei d who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) 4/are subscribed to the within instrument and acknowledged to me that 1 /they executed the same in heNtheir authorized capacity(ies), and that by I /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. WITNE m and a official seal PATTY RNAS COMM.#1960370 w r NOTARY PUBLIC•CALIFORNIA o 'p SAN DIEGO COUNTY Camnl lion ELI ' Nov 13,2015-1 Signature I) STATE OF CALIFORNIA ) COUNTY OF ) On Cz / A0 ' .y io it /Zbefore me, n,* 10,4 j`d/t. P/ L t -Z)OZ, Notary Public, personally appeared e� Ao proved to me on the basis of satisfactory evidence to be the perso s) whos nam s) re subscri d to the within instrument and acknowledged t me tha a he/they executed the same in is er/their authorized capacity(ies), and that b hi 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 that the foregoing paragraph is true and correct. WITNESS my hand and official seal.Sign ture RANDA GAIL" EA R Commission#1916144 < Q Notary Public- Californian Son Diego County 11++ My Commission Exp, ,tan, 6, 2015 101735029.2/24426-00075 6 Seaside/Lot 7 Stormwater Facilities Maintenance Agreement EXHIBIT "A" Legal Description of Property LOT 7 OF CITY OF ENCINITAS TRACT NO 04-066, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO 15091 , FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON SEPTEMBER 6, 2005. 101735029.2 124426-00075 EXHIBIT"A" Seaside/Lot 7 Stormwater Facilities Maintenance Agreement E GM—ff "B" DESCRIPTION AND PLAT OF STORMWATER FACILITIES L@v o 110.00' — — — -) LEGEND ---- --- - --- UNIT NUMBER © �+ SEWER LATERAL So-- BACKFLOW PREVENTER (SEWER) ® X25 i WATER LATERAL/BACKFLOW WO I Zcn ° } PREVENTER � m ® I 25W ' �I Lars WATER BLOW OFF • =gym I PAD 78:0' Z FIRE HYDRANT ►�� c� F.F_.= 78;$7' i O AIR VACUUM RELEASE ■ oo "�� PLAN 7 I Ln � AREA DRAINAGE SYSTEM o Z"q II DRAINAGE SWALE � o `. i I D BROW DITCH CURB OUTLET ® ±25 m I STORM DRAIN INLETS ❑ i n \ to AC PAD ® y t22' , vi .�oy: m UTILITY HANDHOLE ❑p m CABLE TV PEDESTAL © �' Nk Yl Z TELEPHONE PEDESTAL O — '�Kt24, S SDG&E TRANSFORMER `— F E- CONCRETE STOOP El CONCRETE STEPS 1; *' 110.00' } CONCRETE WALKS :k.: 0004 g AND DRIVEWAYS i GATE MAILBOX w❑ STREET LIGHT o-- STREET SIGN STREET TREES (PLANTABLE AREA) WOOD FENCE )( RETAINING WALL SLOPE LOT LINE BIORETENTION AREA TO BE N . T . S . MAINTAINED BY THE HOMEOWNER AND SHALL NOT BE MODIFIED UNLESS A PERMIT IS OBTAINED FROM THE CITY OF ENCINITAS Shea Homes, LP 999 D EGOA CA 92121 LOT 7 SAN ROAD A Son D1080 DiWdm (858) 526-6500 ENCINITAS, CA rn ao x x x v r O 01 x X X r p r EEIR J O co xj W r ty r .L.. r„ ., C) ^ x W ae LID U. a o •� (,) Q rn A) r m _ - r C) X a> o w x x m 'r W E 0 U) o et x x x 0 m U C � m r N C L C N N N N C o M X X X X p N LO o °1M c M M E o v M 7 Q1 C) N X x X LO r C M d � C p N ++ E r C rte+ 2 '-u y N O U l0 C) r x x x C M O Y 3 Y a v c moa` m � o c7M ea � m c CU � o ° '0 a� C L V CL N N V d Q �. M � 3c (Dw0