2013-129604 DOC ## 201 3-01 29604
IIIIIIII
111111111111111111111111111111111111111111111111111111111 IN
FEB 27, 2013 4:11 PM
Recording Requested By: I OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J Dronenburg,Jr COUNTY RECORDER
City Engineer 1 L_V_ FEES 49.00
When PAGES: 12
City Clerk corded Mail to: 111111 Hill Hill Hill 1111 11111 Hill Hill Hill Hill Hill
Hill VIII VIII VIII 1111 111
City of Encinitas
505 South Vulcan Avenue
Encinitas CA 92024
SPACE ABOVE FOR RECORDER'S USE
AGREEMENT FOR MAINTENANCE OF PRIVATE STORMWATER TREATMENT AND
STORMWAT ER POLLUTION CONTROL FACILITIES BY HOMEOWNER
APN: 258-371-28 and 29 Planning Case #: 12-141 and 142 CDP
Grading Plan: 9262-G
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and NEW POINTE BRACERO LLC A
CALIFORNIA LIMITED LIABILITY COMPANY, 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 a 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
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 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 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 13 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 9262-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 the 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 for 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.
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 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)ln 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
IN WITNESS HEREOF, the parties have executed this Agreement.
OWNER
Scott S tinstce m, P sident Date
New P o, LLC,
A California Limited Liability Company
Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITAS:
2//Z s 2 0/3
M Glenn Pruim Date
Engineering / Public Works Director
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE 1189
X.
State of California
County of�,-2
On before me,
Date Here Insert Name and Title of the Officer cyl
personally appeared
Name(s)of igner(s)
fi
who proved to me on the basis of sati5f pry
evidence to be the person(s) whose name( is are
subscribed tot within instrument and acknowledged
e tha he/ he/they executed the same in
ks�
Q�5*r/their authorized capacity(ies), and that by
h
is/h r/their signature(s) on the instrument the
RANDA GAIL MILLJOUR sot 6�1
son(s), or the entity upon behalf of which the wy
U) Commission#1916144 < pe rson(s) acted, executed the instrument.
X Notary Public- Californian
>
San Diego County
fi My Commission Exp Jan. 6, 015 1 certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
fi WITNESS my hand and official seal
Place Notary Seal Above Signature e 4cz_
OPTION) SV&ture of Notary Public
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:
fiDocument Date Number of Pages
fi Signer(s) Other Than Named Above
Capacity(ies) Claimed by Signer(s)
Signer's Name
Signer's Name
fi j Corporate Officer — Titles ?]Corporate Officer — Title(s)
I i individual
11 Individual
fi L-1 Partner — L 1 Limited ❑Genera 7
Top of thumb here Partner — El Limited F I General Top of thumb here
I I Attorney in Fact El Attorney in Fact
Trustee
Ej Trustee
fiGuardian or Conservator 11 Guardian or Conservator
fi F� Other- Other-
fiIs Representing Signer Is Representing
fi
Oc
2010 National Notary Association NationaiNotary org 1-800-US NOTARY(1-800-876-6827)
Item#5907
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of SAN I) 1 EG 0
On JAN 1 4 Z013 before me, J OS E PI-F C y U N as- A N OTA Fj
(here insert name and title of the officer)
personally appeared scoT CSA-RLE5 :V.4NPSTR0tj
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized
capaclty(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 that the foregoing paragraph
Is true and correct.
JOSEPH C YUHAS
WITNESS my hand and official seal. Commission# 1963940
Notary Public-California
San Diego County
G M Comm.E ire:Dec 16,2015
Signature of Notary Public (Seal)
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California.In such instances,any alternative
(Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer) Please check the
(Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required.
Number of Pages Document Date • State and County information must be the State and County where the document
signer(s)personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s)personally appeared which
must also be the same date the acknowledgment is completed.
(Additional information) • The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title(notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e.
❑ Individual(s) he/she/diey,-is/are)or circling the correct forms.Failure to correctly indicate this
information may lead to rejection of document recording.
❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges,re-seal if a
(Title) sufficient area permits,otherwise complete a different acknowledgment form.
❑ Partner(s) • Signature of the notary public must match the signature on file with the office of
❑ Attomey-in-Fact the county clerk.
Additional information-is not required but could help to ensure this
❑ Trustee(s) acknowledgment is not misused or attached to a different document.
❑ Other 4.6 Indicate title or type of attached document,number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer,indicate the title(i.e.CEO,CFO,Secretary).
• Securely attach this document to the signed document
Lr.APA vl2.10 07 800-873-9865 www.NotarvC]asses.com
EXHIBIT `A'
Legal Description of Property
LOTS 3 AND 4, INCLUSIVE, OF CITY OF ENCINITAS TRACT NO. 03-018, IN THE
CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 15245, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY ON DECEMBER 29, 2005 AND AS
CORRECTED BY CERTIFICATE OF CORRECTION RECORDED MAY 27, 2008 AS
INSTRUMENT NO. 2008-0283263 OF OFFICIAL RECORDS.
EXHIBIT "B"
STORMWATER MAINTENANCE A6REEMENT PLAT'
258-350-20
EXISTING 5' DRAINAGE
EASEMENT OVER LOT 7 FOR 258-550-21
THE BENEFIT OF LOT 4 S89°04'51'E 17915'
I
HAT HED AREA I . . .
co Ln
RE ESENTS I LOT 4
BI ETENTION BMP 14,506 5F NE
AR NOT TO BE
m
MOT FIED WITHOUT 1` o
° ISSION FROM APN 258-5 71-
TH CITY OF
IZ
EN�INITAS(200 SFt) I I r
[EXISTING CROSS — — — —
cv LOT DMAINAGE — — — L— — —
m Q
EASEMENT N88* 19',57"W 7913' O
r m Ln I o
L
HAT HED AREA REPRESENTS
Q olI BIOrETENTION BMP AREA
NOT TO BE MODIFIED WITHOUT LOT 3 I Ln
ZN PER ISSION FROM THE CITY 14,508 5F NET I
OF NCINITAS (200 SFt) Q,
Lu
APN 255 5
EXISTING CROSS
LOT
EAASEMENTNAGE I r Iz
� ! I
— — —'�=i—.�—.L�—•—.—iii=�- - �-� — -
- _
N88' 1957"W 174.48'
/ EXISTING DRAINAGE LOT 7
EASEMENT APN 258-571-52
I
HATCHED AREA REPRESENTS BIORETENTION AREA FOR
BEST MANAGEMENT PRACTICE NOT TO BE MODIFIED QPOFESSIpN
WITHOUT PERMIT FROM THE CITY OF ENCINITAS �Q�p���HAEC 990 <z
c/) - z
wm No 71651 om
III - E30 I Exp 12/31/13
sT�TF �F CA jFoP�tiP
EXHIBIT `C'
Minimum Maintenance Requirements for Stormwater Facilities
Bioretention Areas
To preserve bioretention performance, the cells must be maintained. Like any landscape
feature, bioretention areas must be pruned, mulched, and even initially watered and
limed. Grassed bioretention cells are usually mowed. The need for rapid establishment
requires bioretention cells to be limed, if indicated by a soil test. Additionally, plants may
need to be spot-fertilized to ensure growth and survival in low P soils. Watering the
plants every 2 to 3 days for a month or
two helps ensure vegetation survival. The frequency of these tasks varies seasonally, with
more frequent maintenance required in summer than in winter. Maintenance tasks unique
to bioretention include occasional removal of mulch and the top layer of fill soil. Because
clogging occurs most frequently at the top of the soil column, the bioretention basin
rarely needs to be completely excavated. However, this has been necessary when the
bioretention cell was located in an unstable drainage area.
BIORETENTION MAINTENANCE TASKS
Task Frequency Maintenance Notes
Pruning 1 - 2 times/year Nutrients in runoff often cause
bioretention vegetation to flourish.
Mowing 2 - 12 times/year Frequency depends upon location
and desired aesthetic appeal
Mulching 1 - 2 times/year
Mulch accumulation reduces available water
Mulch storage volume. Removal of mulch also
Removal 1 time/2 - 3 years increases
surface infiltration rate of fill soil.
1 time/2 - 3 days for first If droughty, watering after the
Watering 1 - 2 months. Sporadically initial year may be required.
after establishment.
One time spot fertilization for"first year"
Fertilization 1 time initially ve etation.
Remove and Within the first year, 10 percent of plants may
Replace 1 time/year die.
Dead Plants Survival rates increase with time.
Miscellaneous 12 times/year Tasks include trash collection, spot weeding,
Upkeep and removing mulch from overflow device.
Bio-Filters, Priority BMP Swales, and Landscape Areas
The operational and maintenance needs of a Bio-filter Swale are:
• 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 a Bio-filter Swale 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
Bio-filter 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.
Hazardous Waste
Suspected hazardous wastes will be analyzed to determine disposal options. Hazardous
wastes generated onsite will be handled and disposed of according to applicable local,
state, and federal regulations. A solid or liquid waste is considered a hazardous waste if
it exceeds the criteria list in the CCR, Title 22, Article 11.