2012-739766 D O C # 2012-0739766
11111111111111111111111111111111111111111111111111111111111 IN
Lv NOV 27, 2012 4:14 PM
l Recording Requested By:
I � OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
r r Ernest J Dronenburg,Jr,COUNTY RECORDER
i City Engineer FEES 0.00
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� When Recorded Mail to: PAGES: 12
City Clerk
City of Encinitas
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 AGENT OF COMMERCIAL
FACILITY
APN:259-371-12 Project No.: 12-017 M P/D R/C DP
Site Address:1271 Encinitas Blvd.
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and El Camino Encinitas, Ltd., a California limited
partnership, as to an undivided 45/100ths interest, AND Robert J. Bohrer and Gloria A.
Bohrer, Trustees under the Bohrer Revocable Declaration of Trust dated June 1, 1987,
as to an undivided 55/100ths interest, 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 and his/her tenants their heirs, successors, and assigns; and
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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I certify under PENALTY OF PERJURY under the
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V Description of Attached Document
fiTitle or Type of Document:
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II, Signer's Name Signer's Name
❑ Corporate Officer — Title(s) ❑Corporate Officer — Title(s) 5
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EXHIBIT 'A'
Legal Description of Property
PARCEL 5 OF PARCEL MAP NO. 3885, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JUNE 20, 1975, BEING WITHIN THE
SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 14,
TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF PARCEL 5 OF PARCEL MAP
NO. 3885, BEING ALSO THE NORTHEAST CORNER OF SUMMERFIELD
ENCINITAS UNIT NO. 1, ACCORDING TO MAP THEREOF NO. 7296, FILED IN
OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY; THENCE SOUTH 0°36'19" EAST ALONG THE WEST LINE OF
SAID PARCEL 5 A DISTANCE OF 51.07 FEET, THENCE LEAVING SAID WESTERLY
LINE, SOUTH 872'19" EAST 76.78 FEET, THENCE SOUTH 2°27'41" EAST 126.00
FEET; THENCE SOUTH 87032'19" EAST 20.00 FEET TO THE TRUE POINT OF
BEGINNING, THENCE NORTH 2°27'41" EAST 61.17 FEET, THENCE SOUTH
87032'19" EAST 94.00 FEET, THENCE SOUTH 2°27'41" WEST 17.17 FEET; THENCE
NORTH 87°32'19" WEST 28.00 FEET; THENCE SOUTH 2°27'41" WEST 44.00 FEET;
THENCE NORTH 87032'19" WEST 66.00 FEET TO THE TRUE POINT OF
BEGINNING.
PROPERTY LINE _ NO'36'19V 449.96' _
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WHEREAS, it is the desire of the City, the responsibility of the Owner and tenants,
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 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 Owner to assure his/her tenants will comply
with and enforce the terms and conditions of this agreement;
WHEREAS, it is responsibility of the Owner to disclose this agreement to all the
future tenants using, benefiting from, or impacting the Stormwater Facilities
WHEREAS, it is responsibility of the Owner to add Maintenance of Stormwater
Facilities to common area maintenance (CAM) and appoint a qualified property
management company or individual herein after referred to as "Agent" to oversee such
Maintenance. The Agent shall be the single point of contact between the City of
Encinitas and Owners or Developer; and
WHEREAS, the Owner may act as the Agent so long as the total square footage
of the commercial facilities is less than twenty thousand square feet.; and
WHEREAS, for the purpose of this agreement, Maintenance responsibilities
mentioned on this agreement equally and collectively apply to Owner, tenants and the
Agent;
WHEREAS, it is requirement of development and or commercial use 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 and tenants' 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 Owner's ' requirements for providing
Stormwater Facilities Maintenance as stated in this agreement shall mean
Maintenance managed by the Agent, paid for by Owner, and performed by a
qualified contractor, hired by the Agent on behalf of the Owner.
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 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 term and conditions of this agreement and the
plans and specifications identified in approved Grading Plan Number 11288-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 Owner. The owner is responsible to include necessary provisions in the lease
agreement with any present and future tenants that cover the costs of all
Stormwater Facilities Maintenance.
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. Under no circumstances shall any contract or agreement for service(s) to be
provided as outlined in this agreement, and any additional Maintenance activities or
services to be provided as outlined in subsequent attachments hereto, be
terminated by the Owner, tenants, or Agent unless a replacement contract or
agreement for the required Maintenance has already been executed. The Agent and
the Owner shall be responsible for ensuring proper execution of the provisions of all
contracts and/or agreements for the required Maintenance and for timely payments
for said services.
8. Any liability of the Owner, tenants, or Agent for personal injury to any worker
employed to provide Maintenance under this Agreement, or to third persons, as well
as any liability for damage to the property of any third persons, as a result of or
arising out of Maintenance under this Agreement, shall be bome by the Owner,
tenants, or Agent.
9. Owner and tenants 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
Owner agrees 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 Owner and tenants 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 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.
13.In the event the Owner and tenants 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 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. 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 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 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 Owner
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.
OWNER:
El Camino E initas, L.P Date
R,j [ e-AA fZ Q,
Print Name
GE'u C-RA t._.
Title See �-r"�l�l E-D ��'`�'��i
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Robert . Bohrer, Trustee Date
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GIqAa A. Bohrer, Trustee Date
Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITAS:
W , /V ) I / Z7/ 1Z
Greg Shields �l,f �� Date
Director of Engineering Services
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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fi Notary Public-California I certify under PENALTY OF PERJURY under the
San Diego County laws of the State of California that the foregoin
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paragraph is true and correct.
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WITNESS my hand and official seal
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Signature
Place Notary Seal Above Signature of tarry Pu
I� OPTIONAL
r 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 '
Title or Type of Document: S.-W KmL,, rwe
Document Date
Number of Pages
fi Signer(s) Other Than Named Above
fi Capacity(ies) Claimed by Signer(s)
fi '
Signers Name
fi Signer's Name
fifi ! Corporate Officer — Title(s) ❑Corporate Officer — Title(s)
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fi C Partner — f]Limited _:1 GeneralTop of thumb here I Partner — L_ Limited L-]General G .
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fi Other D Other
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fi Signer Is Representing Signer Is Representing
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2010 National Notary Association National org 1-800-US NOTARY(1-800-876-6827)
Item#5907