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2014-458105 D O C ## 201 4-04581 05 111 11111 11111 11111 11111 11111 11111 11111 11111 11111 11111 1111 IN OCT 22, 2014 12:32 PM OFFICIAL RECORDS Recording Requested By: SAN DIEGO COUNTY RECORDER'S OFFICE I Ernest J Dronenburg,Jr,COUNTY RECORDER City Engineer FEES 52.00 PAGES: 13 I L'� 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 HOMEOWNER APN: 258-371-32 Permit No.: 12151-CN THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and PAUL D. MALKON AND TANYA MALKON, TRUSTEES OF THE MALKON FAMILY TRUST DATED AUGUST 19, 2014, 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)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. IN WITNESS HEREOF, the parties have executed this Agreement. OWNER: /o P z � y ul D. alkon /—te Trustee of the Malkon Family Trust dated August 19, 2014 Tanya Mal on Date Trustee of the Malkon Family Trust Dated August 19, 2014 Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS. ,V . /0 a/'--- I o/211 L 4 Masih Maher for Glenn Pruim Date Director of Engineering & Public Works City of Encinitas ACKNOWLEDGMENT State of California County of San Diego ) On 21 0L,)b6e,+,2N4 _ before me, Laine Pukahi, Notary Public (insert name and title of the officer) r personally appeared who proved to me on the basis of atisfacto vidence 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 capacity(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. -------------------------- OFFICIAL SEAL WITNESS my hand and official seal LAINE YALERINA PUGHI COMM NO.208MNU1 SAN DIEGO COUNTY �. MY COMM.EV.SEPT.23,2018 Signatu a �- (Seal) ALL-PURPOSE ACKNOWLEDGMENT State of California �` County of SowV SJ1 tac SS. On b Z — L) before me, 1 �P_ C, 1 M6 V , Notary Public, ) DATE A n j ) personally appeared M GS1� _A c--k e4-- who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)0are subscribed to the within instrument and ackn ledged to me tha e/lshe/they executed the same hi /her/their authorize capacity(les), and that by Is her/their signature(s) on the Instrument the per on(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. I certify under PENALTY OF PERJURY under the -� ANGELA A. SIMON laws of the State of California that the foregoing CoMM.t 2009314 N paragraph is true and correct. ) NOTARY PUBLIC-CALIFORNIA ) SAN DIEGO COUNTY ) @MY COW.EXP MAR.2,2017 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 F1 TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER. DATE OF DOCUMENT } OTHER j SIGNER(PRINCIPAL)IS REPRESENTING: ) NAME OF PERSON(S)OR ENTITY(IES) RIGHT c ) THUMBPRINT OF ) } SIGNER ) CL APA 1/20I2 NOTARN BONDS,SUPPLIES AND FORMS ATHTTP:,/WWW VALLEY-SIERRA.C'OM 2005-2008 VALLEY-SIERRA INSURANCE EXHIBIT `A' Legal Description of Property LOT 7 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" I OF 2 5TORMWATER MAINTENANGE A6REEMENT PLAT 258-550-15 258-350-Iq 258-350-20 255-550-21 SB9 °04 51'E 179 15' - - - - - EX BIORETENTION BMP - ---- AREA FOR LOT 7 (116 SF±) BIORETENTION BMP AREA (160 SF±) I LOT 4 APN 258-571-2q o PN 255-371-32 ' I c0 �rn LOT 3 cv 3 APN 255-371-25 Q ° I I (Y w — — � LOT 2 u -- Io { LOT 6 APN: 258-3-71-27' m APN 255-371-31 +16 - r IT�EX BIORETENTION BMP J 3 O I AREA FOR LOT 7 (445 SF±) N 99,pF ESS.T �,HAEI quo c w No. 71651 o m cc Exp 12/31/15 � Q HATCHED AREA REPRESENTS BIORETENTION AREA FOR OFICALZF�P�� BEST MANAGEMENT PRACTICE NOT TO BE MODIFIED WITHOUT PERMIT FROM THE CITY OF ENCINITAS EXHIBIT "B" 2 OF 2 5TORMWATER MAINTENANGE A6REEMENT PLAT BIORETENTION DETAIL -2" HARDWOOD MULCH/ DROUGHT TOLERANT-1 GRASS COVER OR CITY PLANTS (TYP.) APPROVED EQUIVALENT 24" ENGINEERED SOIL 6" MINIMUA4 * SEE NOTE BELOW d 2' OF 318' GRAVEL - 12" OF 3/4" GRAVEL ** SEE NOTE BELOW * BIORETENTION 'ENGINEERED SOIL" LAYER SHALL BE MINIMUM 24" DEEP "SANDY LOAM" SOIL MIX WITH NO MORE THAN 5% CLAY CONTENT THE MIX SHALL CONTAIN 50-60% SAND, 20-30% COMPOST OR HARDWOORD MULCH, AND 20-30% TOPSOIL, FREE OF STONES, STUMPS, ROOTS, OR SIMILAR OBJECTS, AND ALSO FREE OF NOXIOUS WEEDS ** 314" CRUSHED OCK LAYER SHALL BE A MINIMUM OF 12" BUT MAY BE DEEPEIED TO INCREASE THE INFILTRATION AND STORAGE ABILITY OF THE DETAIL THE EFFECTIVE AREA OF THE BASIN SHALL BE LEVEL AND SHALL BE SIZED BASED ON CALCULATION. TYPICALLY, THE SURFACE AREA OF THE BIORETENTION BASIN IS 4% OF THE IMPERVIOUS AREA DRAINING TO IT. ALL BIORETENTION PLANTERS TO BE DEPRESSED AT LEAST 6" BELOW ADJACENT FINISHED SURFACE Q�pFESSrp� C� 2 ti ,�er• t� Z ( w m No 71651 o m Exp. 12/31/15 ti s� CND.\- �4P A OF CA��C4 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 vegetation. 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.