2016-420801 DOC# 2016-0420801
111111 VIII VIII dill 1111 111111 11111 11111 11111 11111 11111 11111 1111 1111
Aug 16, 2016 03:57 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
Recording Requested By: SAN DIE FEES
COUNTY
$42 OOCORDER
City Engineer PAGES'. 10
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 LESSEE
APN: 254-663-03� Planning Case #: 13-153 DR CDP
pg Address: 300 Quail Gardens Drive Grading Plan: 12809-G
THIS AGREEMENT is between the City of Encinitas, a municipal corporation,
hereinafter referred to as the "City", and SAN DIEGO BOTANICAL GARDENS, its heirs,
successors, and assigns, collectively hereinafter referred to as "Lessee", lessee(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 Lessee 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 Lessee 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 Lessee'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 Lessee 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 Lessee shall provide upkeep and repair to preserve the Stormwater
Facilities in good working order and shall repair all deficiencies identified in
the Lessee'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 Public Works, the Lessee shall ensure that the Stormwater
Facilities are in proper working order for the rainy season, which starts on
October 1.
iii) The Lessee 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 Engineering Division. Prior to the submittal of the inspection report
to the City, the Lessee 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 Lessee in accordance with the terms and conditions of this agreement and
the plans and specifications identified in approved Grading Plan Number 12809-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 Lessee.
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 Lessee for personal injury to any worker employed to provide
Maintenance under this Agreement, or to third persons, as well as any liability of the
Lessee 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 Lessee.
8) Lessee 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 Lessee 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 Lessee 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 Lessee with copies of the inspection findings and a directive to
commence with any repairs deemed necessary.
12)ln the event the Lessee 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 Lessee. 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 Lessee'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.
LESSEE: .
Ow r' Name Here for Date
S ego Botanical Gardens
5u1t n Sohn Duvc._l
Signature of LESSEE must be notarized. Attach the appropriate acknowledgement.
CITY OF ENCINITASS-:
Masih Maher for Glenn Pruim Date
Director of Public Works
I
I
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 SCI.VI SS.
On Z — 2D t(5 before before me, rn'lA 6- A .Si mC Yt Notary Public,
DATE 1
personally appeared Q U 0�\ who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s is/ re subscribed t the within instrument
and ackn *q hedged to me tha he/ he/they executed the
sam n er/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
ANGELA A. SIMON persons) acted, executed the instrument.
N Cow+.$ 2009314 rp
NOTARY%IBIIGCM1i0RN1A N
SAN DIEGO COUNTY I certify nder PENALTY OF PERJURY under the
MY CGNy.EAR.MAR.z.2017 � y
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
fi,/I x L � Yv
PI ACE NOTARY SEAL IN ABOVE SPACE a 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
SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT
NAME OF PERSON(S)OR ENTITY(IES) THUMBPRINT c
OF
SIGNER
APA 0 12015 NOTARY BONDS.SUPPLIES AND FORMS AT HELP.//WWW.VALLEY-SIERRA-COM L2005-2015 VALLEY-SIERRA INSURANCE
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
LOT 11 OF ENCINITAS TRACT NO. 99-137 IN THE CITY OF ENCINITAS, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEROF NO 13998
FILED IN THE OFFICE OF THE COUNTY RECORDER ON JULY 11, 2000 AS FILE
NO 2000-36540.
EXH IB I T "B�
STORM WATER FACILITIES
—I ECKE
o
IX/ST.
PARKING
LOT
4 �
i ' 1
I r i 2 cn
Ililil TRASH
lilil r i
Il! DRAINAGE-- 4 CONSERVATORY
11 DITCHES BULD/NG
I II'll
1
i1
1lI l�1
y
IIi1l - so
B/ORETENT/ON BAS/NS TYP. OF 4 Z S/TE STORM
DRAIN PRIVATE SB&Odz
PLANNING ENGINEERING SLJGVEVING
EXHIBIT "C
MINIMUM MAINTENANCE REQUIREMENTS
1 BIORETENTION BASIN
INSPECTION AFTER LARGE STORM EVENTS
ANNUALLY AFTER RAINY SEASON
ACTION ITEMS STANDING WATER AFTER 96 HOURS
ODOR
SURFACE DEBRIS /TRASH
ANIMAL BURROW
EROSION AT OUTLETS
OVERGROWN VEGETATION
MAINTENANCE DRAIN STANDING WATER
TILL OR REPLACE MEDIA LAYER
REMOVE DEBRIS / TRASH
REPAIR ANIMAL BURROWS
REPAIR EROSION
MAINTAIN LANDSCAPING
2 TRASH ENCLOSURE - FLOOR DRAIN (SEWER)
INSPECTION SEMI-ANNUALLY
AFTER WASHING ENCLOSURE
ACTION ITEMS TRASH ON FLOOR OF ENCLOSURE
STANDING WATER AT DRAIN
ODOR
MAINTENANCE REMOVE TRASH & DEBRIS
CLEAN DRAIN LINE
ADD WATER TO DRAIN LINE
3 STORM DRAIN INLETS
INSPECTION AFTER LARGE STORM EVENTS
ANNUALLY AFTER RAINY SEASON
ACTION ITEMS STANDING WATER AFTER 96 HOURS
ODOR
DEBRIS / TRASH IN INLET
MAINTENANCE DRAIN STANDING WATER
CLEAN DRAIN LINE
REMOVE DEBRIS / TRASH
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 SS.
�'✓� Di ec�p )
On —7— 20 before me, MC Vl Notary Public,
DATE
personally appeared who proved to me on the
basis of satisfactory evidence to be the persons) whose name(sX are subscribed IP the within instrument
and ac ledged to me tha he she/they executed the
sam I hi er/their authorized capacity(ies), and that
by is her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
persons) acted, executed the instrument.
ANGELA A. SIMON
w
NOTARY PUBLC0093op A �_ I certify under PENALTY OF PERJURY under the
SAN DIEGO COUNTY foregoing
laws o
lf the State of California that the fore
My Cony.ENP.MAR.2,2017 g
paragraph is true and correct.
WITNESS my hand and official seal.
0 e16GL Sa ^
ti /t
- 46vim.
PLACE NOTARY SEAL INABOb'FSPACE 6 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
'ITTLE(S)
PARTNER(S)
ATTORNEY-IN-FACT NUMBER OF PAGES
❑ GUARDIAN/CONSERVATOR
❑ SUBSCRIBING WITNESS DATE OF DOCUMENT
❑ OTHER:
OTHER
SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT
NAME OF PERSONS)OR ENTITY(IES) THUMBPRINT
OF
SIGNER
APA 012015 NOTARY BONDS,SUPPLIESAND FORMSAT HTTP//WWW VALLEY-SIERRA.COM C 2005-2015 VALLEY-SIERRA INSURANCE