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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