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2013-559988 DOC # 201 3-0559988 111111111111111111111111111111111111111111111111111111111 IN SEP 10, 2013 4:12 PM Recording RegU @Steil By: SAN DIEGO COUNTY RECORDER'S OFFICE EFEESJ. Dronenburg,Jr. COUNTY RECORDER City Engineer PAGES: 12 When Recorded Mail to: 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 Nb APN: 254-663-01 Project No.: 12-112 ADR/CDP (11545-G) Site Address: 499 Quail Gardens Drive THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and Encinitas Union School District, a public school district duly organized and existing under Chapter 1 of Division 3 of Title 2 of the Education Code of the State of California, 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 � r 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 11545-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. Upon appointment of an Agent responsible for managing the maintenance of the stormwater facilities, the Developer must notify the City of the current contact information for the Owner and Agent within thirty (30) days. At a minimum, contact information for Owner and Agent shall include: organization name, mailing address, email address, phone number, contract person, contact person's phone number, and email address. The Agent must be established and the above information must be provided to the City prior to occupancy of the first unit. Any future changes in Owner or Agent contact information shall be provided to the City within thirty (30) days of the change being made. Contact information shall be provided in writing to the following address (or current City of Encinitas, Civic Center address): City of Encinitas Stormwater Division 505 S Vulcan Ave Encinitas, CA 92024 9. 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 borne by the Owner, tenants, or Agent. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. The terms of this Agreement may be amended in writing following the Owner request and upon written approval by the City Engineer. 16. 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: Dr.Timothy gird Date Superintendent ELIZABETH ANN WALLACE Encinitas Union School District NOTARRYPUBLICF -CALIORNIA SAN DIEGO COUNTY My Comm.Expires August 29,2013 Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITA /3 9� Glenn Pruim Date Director of Engineering Services EXHIBIT"A" All that certain real property situated in the County of San Diego, State of California, described as follows: Lot 9 in the City of Encinitas Tract No. 99-137, South Mesa, in the City of Encinitas, in the County of San Diego, State of California, according to map thereof No. 13998 filed in the Office of the County Recorder of said County. And as corrected by certificate of correction recorded on October 15, 2002 as Instrument No. 02- 897298. Assessor's Parcel Number: 254-663-01-00 EXHIBIT T XHL I II 1 k X \ w 1 1 1 1 1 16'x 165' (2640 SOFT) 1 BIORETENTION FACILITY O N .( �. . . . . . . . . fi. ' CONCRETE OVERFLOW FACILITY RIP RAP PROTECTION LEGEND BIORETENTION FACILITY SCALE.' 1'=40' (NOT TO BE PAVED OR ALTERED WITHOUT CITY PERMIT) PROPOSED PCC SPILLWAY PROPOSED RIP RAP (NO. 2 BACKING) ME COFFEY ENGINEERING, INC. 70660 SCRIPPS RANCH BLVD.SURE 102 SAN DIEGO.CA 92131 PH(858(831-0111 FAX(858(831-0179 EXHIBIT"C" Maintenance generally consists of routine periodic maintenance that is required of any landscape area. Routine maintenance should include a biannual health evaluation of the vegetation and subsequent removal of dead or diseased vegetation. Routine inspection for standing water and corrective measures to restore proper infiltration rates are necessary to prevent creating mosquito and other vector habitats. Should the infiltration rate drop below the minimum required by the City of Encinitas replacement of the engineered soil mix may be required. BMP Inspection, Maintenance,and Replacement Procedures Bioretention Facility Inspection Inspect facility for vegetation health and viability. Inspect for standing water. Inspect for trash and debris. Inspect for sediment accumulation,slope stability, damage to inlet and outlet structures, side slopes, and vandalism. Maintenance Remove any dead or diseased vegetation or aggressive plant (Service) species. Eliminate standing water. Remove and dispose of trash and debris and sediment. Contact engineer if solution to any problem is not evident. Replacement Regrade, revegetate and properly irrigate bare areas. Replace any (Media Change) damaged inlet or outlet structures. Regrade damaged slopes and backfill any burrows. Replace clogged or poorly filtering soils. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189 State of California County oi; ) O 9M before me,Z4- VV l�',4/�, �r'C y? &k�V Dat Here Insert Name and Title of the Officer personally appeared Cr!�ir�,c� ����� Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(sOare subscribed to the within instrument and acknowledged RANDA GAIL MILLJOUR me thashe/they executed the same in <• < hi er/their authorized capacity(ies), and that by It �� Commission#1916144 'i° Notary Public- Californian; l her/their signature(s) on the instrument the > + j, San Diego County P � her/their or the entity upon behalf of which the My Commission Exp. Jan. 6, 2015 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. Signature: Place Notary Seal Above OPTIONAL Sign re 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. 4 Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Individual ❑ Individual ❑ Partner — ❑Limited ❑General Top of thumb here ❑ Partner — ❑ Limited ❑General Top of thumb here 4 ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: ) Signer Is Representing: Signer Is Representing: ©2010 National Notary Association•National Notary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r ' State of C Count of On before me, L a- h e h ,4W 4 ICJ 0` C_ °L Date Name and Title of Officer(e.g.,"Jane Doe,Notary Public" —x C-e t �SYS 104 personally appeared 1 1, n .t y G�-r r � j f i vl�e n F',vi� Name(s)of Signer(s) X6's'onally known to me-OR-❑proved to me on the basis of satisfactory evidence to be the perso*�K whose name is/are subscribed to the withi. instrument and acknowledged to me that he/�tKey executed the same in his/her/their author d capacity , and that by his/her/their signature on the instrument the pers ELIZABETH ANN WALLACE { or the entity upon behalf of which the person acted, CMWft WNo 1862124 3 executed the instrument. NOTARY PUBLIC-CAL.IFORMA SANDEEG000UNTY WITNESS my hand and official seal. * CO— signature of Notary Public 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 Title or Type of Document: M LAD C�_ e e C n Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Individual [I Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator - ❑ Other: Top of thumb here El Other: Top of thumb here Signer Is Representing: Signer Is Representing: ©1995 National Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA } COUNTY OF On before me, Z li Z ra be h 14-h,-7 liJ�1 I u�`P, �`ICP6': (Insert name and title of the officer) personally appeared f I�Vj o `F h �, I S A r C� S r` I r a 13 1 who proved to me on the basis of satisfactory evidence to be the personhose nam�is/subscribed to the within instrument and acknowledged to me that he/sl Wexecuted the same in his/her/their authorized capacity(;and that by his/her/their signaturefs on the instrument the persot�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. ELIZABETH ANN WALLACE NOT (I_CALIFORNIA SAN DIEGO COUNTY My Comm.Expires August 29,2013 Signature (This area for official notarial seal) Rec.Form#R11(12/05/07)