Loading...
2016-13786 a DOC# 2016-0013786 111111 11111 11111 11111 1111 111111 11111 11111 11111 11111 11111 11111 1111 1111 Jan 12, 2016 03:56 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., p Recording Requested By: SAN DIEGO COUNTY RECORDER FEES: $45.00 City Engineer PAGES'. 11 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 APN: 259-121-14 Permit No.: 12589-G Site Address:1446-1486 Encinitas Blvd Case No.: 15-053 DR/MIN THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and FESTIVAL ENCINITAS PARTNERS 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 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 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. r 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 Number 12589-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 i 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. r 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: December 22, 2015 Stuart Mere , CFO of Festival Encinitas Developers, LLC, Date manager of Festival Encinitas Partners, LLC Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: 12 / 3o /IS Masih Maher for Glenn Pruim Date Director of Public Works EXHIBIT "A" Legal Description of Property (ASSESSOR'S PARCEL NO. 259-121-14-00) THAT PORTION OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 14, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, APPROVED APRIL 19, 1881, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER OF THE NORTHEAST QUARTER; THENCE SOUTH 89°24'34" EAST ALONG THE NORTH LINE OF SAID SOUTHEAST QUARTER OF THE NORTHEAST QUARTER; 540 FEET TO THE NORTHEAST CORNER OF THE LAND DESCRIBED IN DEED TO KEITH W. PETERSON, ET AL, RECORDED DECEMBER 31, 1964 PER DOCUMENT NO. 236434 OF OFFICIAL RECORDS, BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTH LINE, SOUTH 89°24'34" EAST 350.14 FEET; THENCE SOUTH 00 026'10" EAST 379.66 FEET TO THE CENTER LINE OF THAT CERTAIN 60 FOOT EASEMENT DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED JUNE 6, 1951 IN BOOK 4124, PAGE 351 OF OFFICIAL RECORDS, AS SHOWN ON THE PLAT ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR OF SAN DIEGO COUNTY, ENTITLED "ROAD SURVEY NO. 458;" THENCE ALONG SAID CENTER LINE NORTH 87°22' WEST (RECORD NORTH 87°26'00" WEST) 350.59 FEET TO THE SOUTHEAST CORNER OF SAID PETERSON LAND; THENCE ALONG THE EAST BOUNDARY LINE OF SAID PETERSON LAND, NORTH 0°26'10" WEST 367.22 FEET TO THE TRUE POINT OF BEGINNING. MULCH 4:1 SLOPE EXHIBIT "B" Description and Plat of Stormwater Facility PCC FLUSH CURB 24" MIN. ENGINERED SOIL 0 0 2 -3/8" GRAVEL PVC LINER (TYP.) OPEN BOTTOM 12"-3/4" CRUSHED ROCK SCALE: 1"=50' 1310-RETENTION PLANTER SECTION APN 259-121-15-00 _ APN 259-121-14-00 Lu ui �I I B10-RETENTION PLANTER g �01 14 kj I " L �- _ _ --- -- - __ I BIO-RETENTION PLANTER IENCINITAS BOULEVARD EXHIBIT `C' Minimum Maintenance Requirements for Stormwater Facilities ROUTINE MAINTENANCE FIELD MAINTENANCE BMP ACTIONS INDICATORS MEASUREMENT FREQUENCY ACTIVITY Bio-retention Inspect for presence Presence of accumulated Visual observation for Monthly and after Remove sediment and of accumulated sediment showing above indicators each significant replace mulch layer or Planter Area sediment. mulch layer. rainfall. place new mulch. Inspect for Presence of accumulated Visual observation for Weekly and after each Remove trash & debris accumulated trash & trash & debris and inlet indicators from inlet and above significant rainfall. layer. mulch la SEE ALSO debris blockage. Y Presence and Presence and adequate Visual observation for Monthly and after q Add additional mulch or CASQA TC-32 condition of mulch size (tl%" to 2") of mulch indicators each significant layer. pieces. rainfall. completely replace. Replace plant if Plant heath Healthy and growing Visual observation for unhealthy (dead growth, evaluation & plant. Growth not Monthl indicators browning vegetation, . pruning or encroaching on vehicle or Y dry &brittle). Trim or replacement as pedestrian traveled ways. prune encroaching necessary. portions. Monthly and 2 days Remove standing water. Inspect for presence Presence of standing isual observation for Check for cause (clogged g ft indicators after each significant under drain overl of standing water. water. rainfall. Y compacted media). r 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 Los Angeles On December 22, 2015 before me, Yarida Loya, Notary Public (insert name and title of the officer) personally appeared Stuart Mercer who proved to me on the basis of satisfactory evidence to be the persons)whose name(*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 i nstrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. YAsion 2070852 WITNESS my hanAofficii . Commi ssion#► orni i -. Nobry Public-California Los Angeles County M Comm. Ex ires Jun 8,2018 Signature - (Seal)Fr 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 Spy) D SS. On �- '�J 0~ZjC)t 5 , before me, Notary Public, DATE n n personally appeared .x i /`� \oker ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is re subscribed W the within instrument and ackn ledged to me that e);he/they executed the sam 1 authorized capacity(ies), and that by Uhr/ 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 N -® NO Comm. IIC•009314 U) I certify under PENALTY OF PERJURY under the SAN DIEGO COUNTY - laws of the State of California that the foregoing MY Comm.EXP.MAR,2,2017 '� paragraph is true and correct. WITNESS my hand and official seal. PLACE NOTARY SEAL IN ABOVE SPACE 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 TITLE(S) PARTNER(S) ATTORNEY-IN-FACT NUMBER OF PAGES GUARDIAN/CONSERVATOR SUBSCRIBING WITNESS DATE OF DOCUMENT OTHER: OTHER SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT s NAME OF PERSON(S)OR ENTITY(IES) THUMBPRINT i OF z SIGNER o a 0 APA01/2015 NOTARY BONDS,SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERPA.COM '2005-2015 VALLEY-SIERRA INSURANCE