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2016-576322 DOC# 2016-0576322 111111111111111111111111111111111111111111111111111111111116111111111 Oct 25, 2016 04:20 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr.. I I Recording q y Requested B : 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 HOMEOWNER APN: 264-270-16� Grading Plan: 12920-G THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and ERM DEVELOPMENT — WEST CORP., A CALIFORNIA CORPORATION, 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 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 Owner 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 Owner 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 Owner'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 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 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 Owner in accordance with the terms and conditions of this agreement and the plans and specifications identified in approved Grading Plan Number 12920-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 Owner. 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 Owner for personal injury to any worker employed to provide Maintenance under this Agreement, or to third persons, as well as any liability of the Owner 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. 8) Owner 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 Owner 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 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. 12)ln the event the Owner 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 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 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 Owner'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. OWNER: i Blamed Date ERM Development1-West Corp 1 Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: _AA All c �O� ZL Masih Maher for GTenn Pruim Date Director of Public Works CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 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 P� ) On 4 efore me, ✓r 70trJVE1-0 OtK-�S, Date Here Insert Name and Title of the Office— personally appeared Vl�t 1"v�l Names) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name�4 is/alcC subscribed to the within instrument and acknowledged to me that he/sAeA4ey-executed the same in his/hetAheirauthorized capacity(i `l,and that by his/4@W4heir signatureK on the instrument the personK or the entity upon behalf of which the person()Q 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. WITNES y h d an ffi I seal AARON ANDREW ORNELA6 Commission# 2026783 IL -i Notary Public-California z Signat z San Diego County = Signat re of Notary Public My Comm.Expires Ma 31,2017 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of of t o K unintended document. Description of Attached Document A-, j4-v- Title 5� Title or Type of Document: MA t t.� C Document Dat 1 �O t Number of Pages: �— Signer(s) Other Than Named Above: tJ �a� Capacity(ies) Claim by Sign r(s) 1 9 Signer's Name: I A dVv 2�A h.�¢�_ Signer's Name: Corporate Officer - Title(s): _ Corporate Officer - Title(s): Partner - Limited General Partner - I 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: ©2014 National Notary Association •www.NationaiNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 EXHIBIT "A" Legal Description of Property LOT 3 OF CITY OF ENCINITAS TRACT NO. 00-186, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14928, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 16, 2004 AND AMENDED BY CERTIFICATE OF CORRECTION RECORDED DECEMBER 19, 2006 AS INSTRUMENT NO. 2006-0898779 OF OFFICIAL RECORDS. EXHIBIT "B" Description and Plat of Stormwater Facilities Sheet 1 of 2 Description: Bioretention Basin '1' - DMA 1 Bioretention Basin `2' - DMA 2 PLAT BIORETENSION '2' BIORETENSION 'I' DMA2 DMA1 � ^ 1,= 100 ScP-E V WILDFLOWER SUMMIT EXHIBIT "B" Description of Stonnwater Failities Sheet 2 of 2 3 "t r2 Y FREE BAWD EX. GRADE � CU5A IOUf iS0ACE PUR RETAINING WALL RSD C-6 3' WELL-AGED SHREDDED HARDWOOD MULCH EX. GRADE or 's. MIN. 18' MFDIA WITH MIN. 5 IN/ LTRATION RATE _ 0.10' ORFICE THIS SHEET INFILTRATIN STORAGE (MIN. 3' AGGREGATE BELOW UNDERDRAIN) R &V TO TO CATCH BASIN l 91ARETEMION BAM t NO SCALE R� o 0.10' oMUErrR �2 2' FREE BOARD Ex. GRADE r� CLEPNOUT 10' MIN. PIN�i� �A 3' WELL-AGED SHREDDED HARDWOOD MULCH ° MR 18' MEDIA WITH MIN. 5 IN/HRFILTRATION RATE 37'BORIFiCE THIS SHEET PVC INFILTRATION ORAGE (MIN. 3' AGGREGATE BELOW UNDERDRAIN) R 139.20 ION OPoFlCE 0.37' DIAMETER NO SCALE BASIN 2 EXHIBIT `C' Minimum Maintenance Requirements for Stormwater Facilities (Frequency and Procedures) Bioretention Basin - Maintenance Program Requirements In accordance with BMP Manual Section 7.0. As a minimum the program shall include: 1. Regular visual inspection of the installed bioretention basins. 2. Maintenance of the system is required periodically in conformance with that for the site landscaper/gardener. The minimum shall be once during the wet season and once during the dry season (depending on growth). 3. Maintenance work shall be performed by the site landscaper/gardener. 4. Debris, litter, trees, and woody vegetation shall be removed. 5. Average vegetation height shall not exceed 12 inches. 6. Reseed/revegetate barren spots, if necessary by November. 7. Correct as necessary to eliminate any ponding of water. Determination of Responsibility for MAnaging Because of the minimal concern and due to the ease of maintenance and the minimal cost, it is appropriate for the BMPs to remain in private ownership and responsibility. The City will enter into this agreement with the developer in order to make sure private owner maintains, and provides City the ability to step in and perform maintenance. 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 n �1—.T— } SS. On before me, !Tl �CAe� Si 00') , Notary Public, DATE n - 1 I- personally appeared Y�S1 Yl McD \e'— who proved to me on the basis of satisfactory evidence to be the person(s) whose name(sd i�{are subscribed the within instrument and acl edged to me tha he she/they executed the sa I is her/their authorize capacity(ies), and that b hi her/their signature(s) on the instrument the per on(s), or the entity upon behalf of which the person(s) acted, executed the instrument. ' ANGELA N s~ Comm.><A.2009314 SIMON /^ I certify under PENALTY OF PERJURY under the NOTARY PUBLIC CALIFORNIA VI SAN DIEGO COUNTY laws of the State of California that the foregoing A1v COMx.ExP IAAq 2 2017 .........:.....f paragraph is true and correct. WITNESS my hand and official seal. PLACE 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 F] OTHER: OTHER SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT z THUMBPRINT NAME OF PERSON(S)OR ENTITY(IE.S) s OF SIGNER - L APAOC2015 NOTARI'BONDS.SUPPLIBS ANDFORMSATIITTP:+WWW'VALLEY-SIERRA.CONI ti'2005-2015 VALLEY SIERRA INSURANCE