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2015-59143 DOC# 2015-0059143 II I III IIIII IIII IIII IIII I IIIII IIIII I III IIIII I II IIIII II II Feb 10, 2015 04 31 PM OFFICIAL RECORDS Ernest J Dronenburg, Jr, SAN DIEGO COUNTY RECORDER 1� Recording Requested By: FEES $56 00 City Engineer 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, L \`4 STORMWATER POLLUTION CONTROL, AND HYDROMODIFICATION \(Q MANAGEMENT FACILITIES BY HOMEOWNER ✓ ✓ v APNs: 256-171-16, 256-171-17, Case #: 14-216 14-217 14-218 CDP & 256-171-18 Plan #: 12113-G/I THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and NEW POINTE INVESTMENT 28 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, stormwater pollution control, and hydromodification management 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, Hydromodification Management Plan (HMP) facilities, 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 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 terms and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 12113-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 07IR: te 's Scot �ndstr m Date �Iana e i Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: 'l ,/� I 1/ 5 I15 Masih Maher for Glenn Pruim Date Director of Public Works City of Encinitas A notary public or other officer completing this certificate verifies only the CALIFORNIA ALL-PURPOSE identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. CERTIFICATE O F State of California ) ACKNOWLEDGMENT County of �2 .1 On J n (� ► before me, 6�r t� 1 (here insert name and trfljof the officer) personally appeared r S ad ds a an- who proved to me on the basis of satisfactory evidence to be the person(?Dwhose name( is/cite subscribed to the within instrument and acknowledged to me that he/s*/tli eey executed the same in his/hAr/th)eir authorized capacity(iEp), and that by his/hor/Wsir signature(o on the instrument the person(jo, or the entity upon behalf of which the person(#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. ADRIA VIDAURRI o COMM. #2054328 z Notary Public•California z WITNESS my hand an o mm official seal. z San Diego Coun -° Co . Jan.5 2018 Signature ✓� (Seal) OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. is Description of Attached Document Additional Information The preceding Certificate of Acknowledgment is attached to a document Method of Signer Identification titled/for the purpose of �� (n Proved to me on the basis of satisfactory evidence n L form(s)of Identification -) credible witness(es) Va f e 540rlA a �u l 1,0 614- /lit e �► � , Notarial event is detailed in notary journal on: containing pages, and dated ` Page# Entry# The signer(s) capacity or authority is/are as. Notary contact. Individual(s) Other Attorney-in-Fact [] AdditionalSlgner(s) ❑ Signer(s)Thumbprint(s) P ❑ Corporate Officer(s) _ Titles) ❑ _ ❑ Guardian/Conservator ❑ Partner-Limited/General ❑ Trustee(s) ❑ Other representing Name(s)of Persons)or Entity0es)Signer is Representing ©Copyright 2007-2014 Notary Rotary,Inc PO Box 41400,Des Moines,IA 50311-0507 All Rights Reserved Item Number 101772 Please contact your Authorized Reseller to purchase copies of this form EXHIBIT "A" Legal Description of Property PARCEL 1, 2, & 3 OF PARCEL MAP 16868, RECORDED IN THE BOOK OF MAPS AS FILE NO. 92-352502 ON JUNE 5, 1992 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. APN: 256-171-16, 256-171-17, 256-171-18 STORM WA TER MA INTENA NCE A GREEMENT EXHIBIT W-1 ' DROUGHT TOLERANT LANTS (TYP.) " HARDWOOD MULCH/ RASS COVER OR CITY PPROVED EQUIVALENT 29 19 I_ A III L_-I J(G -= —�'18 MINIMUM LAYER ENGINEERED SOIL - =1 =1 - -I - -I ` E *SEE NOTE BELOW I- - 9 _ - LAYER OF 3 III 4 GRAVEL - - / I �ill__lil- SEE NOTE BELOW= - w - - -- �� 4 PVC FRENCH OUTLET PIPE - -- - -- -- _ I BIORETENTION A ENGINEERED SOIL" LAYER SHALL BE MINIMUM 18 or 28" "SANDY SANDY LOAM A SOIL MIX WITH NO MORE THAN 5% CLAY CONTENT. THE MIX SHALL CONTAIN 50-609 SAND, 20-309 COMPOST OR HARDWOORD MULCH, AND 20-307. TOPSOIL, FREE OF STONES, STUMPS, ROOTS, OR SIMILAR OBJECTS, AND ALSO FREE OF NOXIOUS WEEDS. ** 314" CRUSHED ROCK LAYER SHALL BE A MINIMUM OF 12" BUT MAY BE DEEPENED 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 47. OF THE IMPERVIOUS AREA DRAINING TO IT ALL BIORETENTION PLANTERS TO BE DEPRESSED AT LEAST 6" BELOW ADJACENT FINISHED SURFACE NOTE: BIORETENTION BMP AREAS SHALL NOT BE LINED. BIORETENTION LANDSCAPE BMP N T S OWNER/APPLICANT SCOT C. SANDSTROM NEW POINTE INVESTMENT 28, LLC 16880 WEST BERNARDO DRIVE, SUITE 130 SAN DIEGO, CA 92127 PH: (858)-451-8700 A.P.N.: 256-171-16, 17 & 18 SITE ADDRESS: 596, 598, 600 UNION ST ENCINITAS, CA 92024 ABBREVIA TED LEGAL DESCRIPTION PARCELS 1, 2, & 3 OF PARCEL MAP NO 16868, RECORDED IN BOOK OF MAPS AS FILE NO 92-352502 ON JUNE 5, 1992 IN THE OFFICE OF THE COUNTY RECORDER EXHIBIT W-1' OF SAN DIEGO COUNTY M CA nn70 STORM WA TER MAINTENANCE A GREEMENT EXHIBIT 'B-2' PRIVATELY MAINTAINED BIORETENTION BASIN FOR BEST MANAGEMENT PRACTICE FOR BENEFIT OF PARCEL 1, Z & J NOT TO BE M00117ED WITHOUT A PERMIT FROM THE CITY (1082 SF) APN.-256-191-68 777777� ............. PARCEL PARCEL APN:256-171-17 II APN:256-171-16 598 UNION STREET _EWON STREET PARCEL3 A A ii�_ 7 _ F N:256-171-17 600 WON STREET R APN:256-170-12 I APN:256-171-05 I APN:256-171-19 r :ix ==77 TTXT-� EXHIBIT 'B-2' SCALE. 1 "--50' 0 50 100 ni nA 111170 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 PH 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 Mulch accumulation reduces available Mulching 1 - 2 times/year water storage volume. Mulch Removal 1 time/2 - 3 years Removal of mulch also 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 Fertilization 1 time initially year"vegetation. Within the first year, 10 percent of Remove and Replace 1 time/year plants may die. Dead Plants Survival rates increase with time. Tasks include trash collection, spot Miscellaneous weeding, and removing mulch from Upkeep 12 times/year overflow device. Bioretention and Landscape Areas The operational and maintenance needs of a Bioretention Basin 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 Bioretention Basin. 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. Storm Water Storage System • Periodic inspections of the inlet and outlet areas to ascertain correct operation of system and to clean materials trapped on grates protecting catch basins and inlet area should be required monthly. o Routine sweeping and cleaning of impervious drainage areas will reduce floatables and sediment loading to underground stormwater storage. • The primary maintenance concerns are removal of floatables that become trapped and removal of accumulating sediments within the system; this should be done at least on an annual basis. Proprietary traps and filters associated with stormwater storage units should be maintained as recommended by the manufacturer. • Confined space safety procedures must be followed by workers entering an underground stormwater storage facility. • Sediments are best removed mechanically rather than flushing. If flushing is the only option then great care must be taken not to flush sediments downstream into native waters. • Any structural repairs required to inlet and outlet areas should be addressed in a timely manner on an as needed basis. • Local authorities may require annual inspection or require that they carry out inspections and maintenance. • The pump system must be tested and inspected before each rainy season and after each major storm event. ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the Identity of the Individual who signed the document to which this Certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of S3 v� i � SS C �� St V Yl C Notary On 2-'-'�r� � � , before me, , Nota Public, DATE personally appeared / A c,,s ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)P are subscribed the within instrument and ac ledged to n that e she/they executed the sa n%i�her/their authorize capacity(ies), and that by hi /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. ANGELA A. SIMON Comm.$2009314 LOMYrorSm u I��o I certify under PENALTY OF PERJURY under the Cory.Exv MAR.2,2017 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal PLACE NOTARN SEAL IN ABOVE SP-WE NOTARY'S SIGNATURE 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 GUARDIAN/CONSERVATOR SUBSCRIBING WITNESS DATE OF DOCUMENT OTHER. OTHER v SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT NAME OF PERSON(S)OR ENTITY(IES) THUMB RINT SIGNER APN012015 NOTARN'BONDS,SUPPLIESNNDFORNISNTHTTP:/WWw\ALLEN-SIERRA.COM c 2005-2015VALLEN-SIERRA INSURANCE