2013-597421 DOC # 201 3-0597421
11111111111111 IN
(ACT 01 , 2013 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
\ Recording Requested By: Ernest J. Dronenburg,Jr.,COUNTY RECORDER
FEES: 49.00
City Engineer II 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
' n AND STORMWATER POLLUTION CONTROL FACILITIES BY AGENT OF
COMMERCIAL FACILITY
APN: 258-112-24
Project No.: 12-162 MUP/DR/CDP (11600-G)
Site Address: 130 Calle Magdalena
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and IN-N-OUT BURGERS, A CALIFORNIA
CORPORATION, L 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
INOB\49648\913074.2 1
i
WHEREAS, the Stormwater Facilities benefit said Property and are used by
Owner and his/her tenants their heirs, successors, and assigns; and
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
INOB\49648\913074.2 2
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 14 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
INOB\49648\913074.2 3
Number 11600-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
INOB\49648\913074.2 4
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 authorized user of
the Stormwater Facilities, arising out of or in any way related to the Owner's
negligent 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 not
unreasonably interfere with the business operations being conducted on the
Property. 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
INOB\49648\913074.2 5
following a 48-hour notice whenever the City deems reasonably necessary;
provided, however, such entry shall not unreasonably interfere with the business
operations being conducted on the Property. 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 within thirty (30)
days after written notice delivered to Owner by the City, then, 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. Any such entry and repair shall occur by means
intended to minimize disruptions to the business operations being conducted on
the Property. 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's
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:
IN-N-OUT BURGERS. a California corporation
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Name: ��'I') �
Title: Date
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Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITAS:
Glenn Pruim Date
Director of Engineering Services
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ACKNOWLEDGMENT
State of California
County of Los A ae1gS )
On f 2.51 ,�A13 before me, Lori Irw Z i 1�. N0�'0.X�r i i ld 1�„ [=
(insert name and title of the icer)
personally appeared 0. A �'a. �(1Y1 C-1t&
who proved to me on the basis of satisfactory evidence to be the person(,$)whose name(56 is/am-
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/heOtheir authorized capacity(ies), and that by his/her/theirsignatureW on the instrument the
person(, or the entity upon behalf of which the person(s6 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.
0� Ill
WITNESS my hand and official seal. L
L"
Signatur (Seal)
L ; 13/cAzz ' I
Los Avi9elms Loo" k1
co w► , � 00 It 3S C(
cxp, TG11 . 19 -7
ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of So l SS.
On —3 0— 13 before me, Phno,el C, jA, S 1 m O n Notary Public,
DAFE
personally appeared eye )n 1 ( U i ,who proved to me on the
basis of satisfactory evidence to be the person(s) whose names fe�gged re subscribed to the within instrument
and ackZi�/her/their to me tha6/she/they executed the
same 'n authorized capacity(ies), and that
by �i her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
ANGELA A. SIMON person(s) acted, executed the instrument.
Comer.$2009314
IIoTMY PUBM-cALIFOR a N
SAN DIEGO CWTY I certify under PENALTY OF PERJURY under the
My Cow.Ev.MAR.2'2017 laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
NOTARY'S SIGNATURE
PLACE NOTARY SEAL IN ABOVE SPACE
OPTIONAL INFORMATION
The information below is optional. However,it may prove valuable and could prevent fraudulent attachment
of this form to an unauthorized document.
CAPACITY CLAIMED BY SIGNER(PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT
PARTNER(S) TITLE(S)
ATTORNEY-IN-FACT
NUMBER OF PAGES
TRUSTEE(S)
GUARDIAN/CONSERVATOR
❑ OTHER: DATE OF DOCUMENT
OTHER
SIGNER(PRINCIPAL)IS REPRESENTING:
NAME OF PERSON(S)OR ENTITY(IES) RIGHT c
THUMBPRINT L
OF
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SIGNER
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APA I/2012 NOTARY BONDS,SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM C2005-2008 VALLEY-SI ERR AINSURANCE
EXHIBIT "A"
Legal Description of Property
The land situated in the City of Encinitas, County of San Diego, State of California, and described
as follows:
Lot 3 of Encinitas Plaza/Wesley Homes Unit No. 1, in the County of San Diego, State of
California, according to the Map thereof No. 8116,filed in the Office of the County
Recorder of San Diego County on May 28, 1975.
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