2015-342570 a � �
DOC# 2015-0342570
111111 IIIII IIIII IIIII IIII 111111 IIIII IIIII IIIII IIIII Illlt IIIII II I IIII
Jun 30, 2015 04 25 PM
OFFICIAL RECORDS
Ernest J Dronenburg, Jr,
Recording Requested By:
SAN DIEGO COUNTY RECORDER
FEES $2.00
City Engineer PAGES 13
When Recorded Mail to,
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas CA 92024
SPACE ABOVE FOR RECORDER'S USE
MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER TREATMENT AND
STORMWATER POLLUTION CONTROL AND HYDROMODIFICATION
MANAGEMENT FACILITIES BY HOMEOWNER'S ASSOCIATION
�\ APN:254-391-50✓ Project No. 11784-G/I/PM
Site Address.1050 Eolus Avenue
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and A. EOLUS 4 LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY, its heirs, successors, and assigns, collectively hereinafter
referred to as "Developer", 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, 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. The term Maintenance is defined in Paragraph 1
below
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 described in Exhibit "B" benefit said
Property, the developer, and the future owners of the lots/parcels created per Map
Case No 07-060 TPM, their heirs, successors, and assigns, collectively hereinafter
referred to as "Owners", and
WHEREAS, City requires that Developer establish a homeowners association in
conformance with the California Civil Code Sections 1350 through 1376, hereinafter
referred to as "HOX, to be responsible for the Maintenance of Stormwater Facilities
into perpetuity; and
WHEREAS, it is the desire of the City, the responsibility of the Owners, HOA, and
Developer, herein after collectively referred to as "Parties", 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 by the
Parties 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 Developer and HOA to manage and oversee
Maintenance of Stormwater Facilities and to assign a single point of contact between
the City of Encinitas and HOA or Developer; and
WHEREAS, Developer's responsibility of Maintenance of Stormwater Facilities will
be transferred to HOA after the sale of all lots/parcels, the completion of development,
and the approval of the City; and
WHEREAS, following Developer's completion of the development and acceptance
by the City, the Owners are responsible to continuously have an HOA for purposes of
Maintenance of the Stormwater Facilities; and
WHEREAS, for the purpose of this agreement, Maintenance responsibilities
mentioned on this agreement equally and collectively apply to Owners and the HOA;
WHEREAS, it is requirement of development 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 Parties' 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 Parties' requirements
for providing Stormwater Facilities Maintenance as stated in this agreement shall
mean Maintenance managed and paid for by the Parties, and performed by a
qualified contractor hired by the Parties.
i) The Parties shall inspect the Stormwater Facilities after all major storms. In
addition, the Parties shall inspect the Stormwater Facilities at the minimum
frequency specified in Exhibit "C", but not less than twice per year.
ii) The Parties shall provide upkeep and repair to keep the Stormwater Facilities
in good working order and shall repair all deficiencies identified in the Parties'
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 until such time as the
Facilities are repaired. 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 Parties shall ensure
that the Stormwater Facilities are in proper working order for the rainy
season, which starts on October 1.
iii) The Parties 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 Parties 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 Parties in accordance with the term and conditions of this
agreement and the plans and specifications identified in approved Grading Plan
Number 11784-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 Parties The Parties' share of Stormwater Facilities Maintenance
costs is proportional to number of lots/parcels that Owners and Developer own
as a fraction of the total number of lots/parcels in the Property using and
benefiting from the Stormwater Facilities but excluding common ownership
lots/parcels.
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 included in
the existing HOA and be liable under this Agreement and with the HOA 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. Developer, Owners, and HOA are collectively responsible to the City for
Maintenance of Stormwater Facilities so long as either Developer or Owners own
any lots/parcels. Developer remains responsible for Maintenance of Stormwater
Facilities until such Facilities have been approved by the City, even if Developer
no longer owns any lots/parcels of the Property
8. Upon establishment of an HOA and a management company to manage the
maintenance of the stormwater facilities, the Developer must notify the City of
the contact information for the HOA and management company within thirty (30)
days At a minimum, contact information for HOA and management company
shall include. organization name, mailing address, email address, phone
number, contract person, contact person's phone number, and email address.
The above information must be provided to the City prior to occupancy of the
first unit (model home occupancy may be exempt from this requirement). If the
Developer is the acting HOA manager at the time of occupancy, the Developer's
current contact information shall be provided in lieu of the management
company information. Any future changes in HOA or management company
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 Parties for personal injury to any worker employed to provide
Maintenance under this Agreement, or to third persons, as well as any liability of
the Parties 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 Parties.
10. Parties 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 Parties agree 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 Parties 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 Parties hereby grant 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 Parties 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 Parties. 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 Parties 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 Parties
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:
6 /II/IS
Christopher R. Hall for Date
Eolus 4, LLC, A California Limited Liability Company
Signature of OWNER must be notarized Attach the appropriate acknowledgement.
CITY OF ENCINITAS.
/1/� &�] J, Z5
Masih Maher for Glenn Pruim Date
Director of Engineering and Public Works
City of Encinitas
EXHIBIT "A"
Legal Description of Property
PARCEL B AS SHOWN ON CERTIFICATE OF COMPLIANCE FOR BOUNDARY ADJUSTMENT 10-182BA,AS
EVIDENCED BY DOCUMENT RECORDED DECEMBER 27, 2011 AS INSTRUMENT NO 2011-0697148 OF
OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS.
THAT PORTION OF PARCEL 1 AND REMAINDER PARCEL OF PARCEL MAP NO 17730, IN THE CITY OF
ENCINITAS,COUNTY OF SAN DIEGO,STATE OF CALIFORNIA, FIELD IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY JULY 23, 1996, MORE PARTICULARLY DESCRIBED AS FOLLOWS.
BEGINNING AT THE NORTHEAST CORNER OF THE REMAINDER PARCEL,THENCE ALONG THE EASTERLY
LINE OF SAID PARCEL AND WESTERLY RIGHT-OF-WAY OF EOLUS AVENUE
1.SOUTH 15°04'07" EAST,219 FEET,THENCE LEAVING SAID EASTERLY LINE
2.SOUTH 74 055'54"WEST, 162.00 FEET,THENCE
3.SOUTH 11 008'58"WEST,89 18 FEET TO THE SOUTHERLY LINE OF SAID PARCEL 1,
THENCE ALONG SOUTHERLY LINE OF SAID PARCEL AND REMAINDER PARCEL
4 SOUTH 74 055'45"WEST,98.57 FEET TO THE SOUTHWEST CORNER OF SAID REMAINDER
PARCEL,THENCE ALONG THE WESTERLY LINE OF SAID REMAINDER PARCEL
5 NORTH 15 003'51"WEST, 299.91 FEET TO THE NORTHWEST CORNER OF SAID REMAINDER
PARCEL,THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL
6 NORTH 74 055'57" EAST, 299.95 FEET TO THE POINT OF BEGINNING.
\,AND SURG
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EXHIBIT 'B'
DESCRIPTION AND PLAT OF STORMWATER FACILITIES
INCLUDING DETAILS AND SIZES
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PARCEL 3 0 PARCEL 4
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BIORETENTION BASINS FLOW THROUGH PLANTER IS DESIGNED TO TREAT & qTF OF CAQF
DETAIN RUNOFF WITHOUT ALLOWING SEEPAGE INTO UNDERLYING SOIL. A
FLOW TROUGH PLANTER TYPICALLY RECEIVES RUNOFF VIA DOWN SPOUTS cq-Iv
LEADING FROM THE ROOF, PIPED TO PLANTER CONSTRUCTED AT GROUND
LEVEL OR IT CAN INTERCEPT SHEET FLOW FROM SURROUNDING AREA.
POLLUTANTS ARE REMOVE AS THE RUNOFF PASSES THROUGH THE SOIL
& GRAVEL LAYERS & IS COLLECTED IN AN UNDERLYING OF GRAVEL OR
DRAIN ROCK.
JOB No 13-013 DATE 6-11-15
- SOWARDS & BROWN ENGINEERING
CONSULTING ENGINEERS
2187 NEWCASTLE AVENUE SUITE 103
CARDIFF BY THE SEA, CA. 92007
SHEET 1 OF 3 TEL. 760/436-8500 FAX 760/436-8603
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EXHIBIT 'C'
MINIMUM MAINTENANCE REQUIREMENTS FOR
STORMWATER FACILITIES
(FREQUENCY AND PROCEDURES)
MAINTAIN VEGETAT70N AND IRRIGATION SYSTEM; INSPECT QUARTERLY AND AFTER
STORMS TO ENSURE STRUCTURAL INTEGRITY AND THAT BASIN AREA HAS NOT
CLOGGED.
REMOVED DEAD PLANTS AND OTHER DEBRIS FROM BASIN AREA.
THE USE OF PESTICIDES AND QUICK RELEASE SYNTHETIC FERTILIZERS SHALL BE
MINIMIZED, AND THE PRINCIPLES OF INTEGRATED PEST MANAGEMENT FOLLOWED.
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SOWARDS & BROWN ENGINEERING
CONSULTING ENGINEERS
2187 NEWCASTLE AVENUE SUITE 103
CARDIFF BY THE SEA, CA.,92007
TEL. 760/436-8500 FAX 760/436-8603
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 SAN DIEGO )
On T V N E 11 , 10 1 -f ,before me, the undersigned, Sean Santa Cruz Notary Public,
personally appeared t M k 1,r1 0 P H E fL R• • H h 1,t- who proved to me on the basis of
satisfactory evidence to be the person( ) whose nameA is/,4A subscribed to the within instrument and
acknowledged to me that he/sVthey executed the same in his/h6/their authorized capacity(*), and
that by his/l-%,-"r/tWir signatures on the instrument the personA, or the entity upon behalf of which
the person(sl 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.
'==TA CRU
WITNESS my hand and official seal. COMM.#1992749 m N&AwyPubUcCaB e LO
SAN DISSO COUNTY
M Comm. .OCT 28 2016
C_, (Seal)
Signature
ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verities only the Identity of the Individual
who ,Iuned the document to which this Certificate I,
attached, and not the truthfulness, accuracy, or
validrtti of that document.
State of California
Countv of �C ax\ SS
On G-29— ?_P 15 before me, Pff) ci_ � S1 rn0 n . Notary Public,
D\1F
personally appeared i V-) XA ho proved to me on the
basis of satisfactory evidence to be the person(s) \\hose names) are subscribed the within Instrument
and ack l Cedged to me that 4e,they executed the
sam his er their authorized capacity(ies), and that
by Uher their siQnature(s) on the Instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the Instrument.
ANC IAAM#20093 it Ij
NOUR'I PUBLIC•CWFORNLk I certify under PENALTY"OF PERJURN' under the
N V,Co .DIEGO MAN..2 20+� laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
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PL.-\tENO T\R\ ,L\LE�, \Btu\E L 1Xj(A'0T\Rt SSIG\\TIRL
> OPTIONAL INFORMATION
The Information below is optional. How e\er. It may pro\e\aluable and could pre\-ent 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
❑ TITLE S
PARTNER(S)
ATTORNEY-IN-FACT NUMBER OF PAGES
GUARDIAN/CONSERVATOR
F] SUBSCRIBING WITNESS DATE OF DOCUMENT
OTHER
OTHER
RIGHT
SIGNER(PRINCIPAL)IS REPRESENTING:
THUMBPRINT
NAME OF PERSONi S)OR ENTITY i IF,S
OF =
SIGNER
RAM
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