2016-306765 DOC# 2016-0306765
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Jun 21, 2016 04:07 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
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
THIS DOCUMENT SHALL SUPERSEDE AGREEMENT RECORDED JANUARY 12,
2016 AS DOCUMENT NUMBER 2016-0013786.
+a/ APN: 259-121-14 Permit No.: 12589-G
lJ 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.
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
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.
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: (* Aiz
Ib
Stuart Me er Dat
Festival En ' itas Partners, LLC
Signature of OWNER must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITA
&/ z►
Masih Maher for Glenn Pruim Date
Director of Public Works
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
Ftary public or other officer completing this certificate verifies only the identity of the individual who signed the
ment to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Lt->�,_Rvnv�i__S )
On,l vs- a of io before me, YGt ' U
Date Here Insert kame andltit4f the Officer
personally appeared Sl�,tis+ r l�✓rB✓
Names) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(e) whose name(&) is/ere
subscribed to the within instrument and acknowledged to me that he/&heA44ey executed the same in
his/4@4Waeir authorized capacity",and that by his/herAfheir signature(&)on the instrument the person(&),
or the entity upon behalf of which the person(oacted, 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.
YARIDA LOYA WITNESS my han nd off i ' seal.
Commission#}2070852
Notary Public-California
Los Anales County Signature
Comm.1 irn dun 8,2018 S' n ure of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
Corporate Officer — Title(s): Corporate Officer — Title(s):
- Partner — i=_' Limited General Partner — i 1 Limited - General
- Individual Attorney in Fact Individual !Attorney in Fact
Trustee Guardian or Conservator Trustee Guardian or Conservator
Other: Other:
Signer Is Representing: Signer Is Representing:
02014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907
EXHIBIT `A'
LEGAL DESCRIPTION
(ASSESSOR'S PARCEL NO. 259-121-14)
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°26'10" 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 EXHIBIT "B"
a:1 SLOPE Description and Plat of Stormwater Facility
GRATE
•T 6"X16" PCC FLUSH CURB
MEDIA FILTER
24" MIN. ENGINERED SOIL SKIMMER BOX
0 0
2"-3/8" GRAVEL CLEAN WATER
PVC LINER (TYP.) OUTFLOW SCALE: 1"=50
OPEN BOTTOM 12"-3/4" CRUSHED ROCK
1310-RETENTION PLANTER SECTION GRATE INLET MEDIA FILTER SECTION
NTS APN 259-121-15-00
i 1
MEDIA FILTER INSERT
�000 �I
APN 259-121-14-00
i
I
w
W
BIO-RETENTION PLANTER
— BIO-RETENTION PLANTER
_ n
11
/ BIO-RETENTION PLANTER _
ENCINITAS BOULEVARD
EXHIBIT T'
Minimum Maintenance Requirements for Stormwater Facilities
BMP ROUTINE ACTIONS MAINTENANCE INDICATORS FIELD MEASUREMENT FREQUENCY MAINTENANCE ACTIVITY
Bio-retention Presence of accumulated Visual observation for Monthly and after each Remove sediment and
Inspect for presence of diment showin above indicators replace mulch layer or place
se
Planter Area accumulated sediment. g significant rainfall. new mulch.
mulch layer.
Inspect for Presence of accumulated Visual observation for Remove trash&debris
p Weekly and after each
accumulated trash & trash &debris and inlet indicators significant rainfall. from inlet and above mulch
debris blockage. layer.
SEE ALSO
Presence and condition Presence and adequate size Visual observation for Monthly and after each Add additional mulch or
CASQA TC-32
of mulch layer. (±1%'to 2")of mulch pieces. indicators significant rainfall. completely replace.
Replace plant if unhealthy
Plant heath evaluation Healthy and growing plant. Visual observation for (dead growth,browning
&pruning or Growth not encroaching on indicators Monthly. vegetation,dry&brittle).
replacement as vehicle or pedestrian traveled Trim or prune encroaching
necessary. ways. portions.
Remove standing water.
Inspect for presence of Visual observation for Monthly and 2 days after Check for cause(clogged
standing water. Presence of standing water. indicators each significant rainfall. under drain,overly
compacted media).
Grate Inlet
Media Filter Visual observation for
Insert Inspect for presence of indicators Monthly and after each Remove trash&debris
Bio-Clean accumulated trash& Presence of accumulated accumulation and replace
trash&debris significant rainfall.
BC-GISB-MF-36- debris. filter insert if necessary
36-24
s
'See media filter manufacture's information for additional and specific maintenance requirements
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
San �`eqa SS.
County of
On before me, 1 h �Q� t`1 • �I MO V) Notary Public,
DATE /�
personally appeared Nos s 1 �n N\ -e r who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(sare subscribed to the within instrument
and ackn^ledged to me that to he/they executed the
sam l er/their authorize 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.
COMM.t 2009314
N A NOTARY ShNOIECA COUNT1 N I certify under PENALTY OF PERJURY under the
Yr cow.Exv.Y�x.z son laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
PLACE NOTARY SEAL IN ABOF'E 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(SI
PARTNER(S)
❑ ATTORNEY-IN-FACT NUMBER OF PAGES
F] GUARDIAN/CONSERVATOR
SUBSCRIBING WITNESS DATE OF DOCUMENT
OTHER:
OTHER
RIGHT L
SIGNER(PRINCIPAL)IS REPRESENTING: THUMBPRINT
NAME OF PERSON(S)OR ENTITY(IES) OF
SIGNER =
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