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2017-348261 DOC# 2017-0348261 111111 IIIII IIIII IIIII IIII IAN fhflfll�lf l IIIII IIII IIII Aug 01, 2017 04:20 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., Recording Requested By: SAN DIEFEEOU$48.00 CORDER City Engineer PAGES 12 When Recorded Mail to: City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 SPACE ABOVE FOR RECORDER'S USE \� This document is intended to replace and supersede "AGREEMENT FOR MAINTENANCE OF PUBLIC STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL FACILITIES IN THE PUBLIC RIGHT-OF-WAY BY AGENT OF COMMERCIAL FACILITY" previously recorded as Doc. # 2016-0054056 on 2-8-16. AGREEMENT FOR MAINTENANCE OF PUBLIC STORMWATER TREATMENT AND STORMWATER POLLUTION CONTROL FACILITIES IN THE PUBLIC RIGHT-OF- WAY BY AGENT OF COMMERCIAL FACILITY APN:258-181-17V Project No.: 15-033 DR/CDP Site Address:850 S. Coast Highway 101 Grading Plan: 12509-G THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and ABP 850 Coast LLC., 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 12509-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: ac Michael Persall, Manager Date ABP 850 Coast, LLC. Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: rani a oc c Date Interim City Engineer 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 San Diego ) On 07/09/2017 before me, Megan Rae Wong, NotaryPublic (insert name and title of the officer) personally appeared Michael Persall who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) 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 instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. f WITNESS my hand and official seal. WE GANRAE WONG1 cauNSSaN tMr vue Ic rnIM8610 W NES AN 14,zoiN Signature eal) EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PORTIONS OF LOTS 6, 7, AND 8 IN BLOCK 8 OF ENCINITAS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL MAP THEREOF NO. 148, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON JUNE 12, 1883. HEREIN ABOVE MENTIONED PORTIONS OF LOTS 6, 7, AND 8 ARE CONSOUDATED INTO ONE PARCEL AND MAY NOT BE CONVEYED SEPARATELY WITHOUT FILING A PARCEL OR SUBDIVISION MAP. CONTAINS 12108 SQUARE FEET MORE OR LESS. EXHIBIT B SHEET 1 OF 2 DESCRIPTION AND PLAT OF STORMWATER FACILITIES 25�-181-19 N 83'5742 E 80.57' - I 0 O N I J L�j h OD n < J rl J o ^Y °D Q J J = N m I N 3 N W N Z LOT 8 BLOCK 8 I o I N 8357'42' E 80.5 WATER POLISHER-UP-FLOW \\ MEDIA FILTER WP-3-6 \\ I \ - CL - - \\ W. H STREET - - - _ _ _ — I Civil Dandworks 18 0 15 30 110 COPPERWOOD WAY,SUITE P,OCEANSIDE,CA 92058 pjvpme So" PH:760-908-8745•info @civillandworks.com 8L'IL! T— 80' EXHIBIT B SHEET 2 OF 2 DESCRIPTION AND PLAT OF STORMWATER FACILITIES BAFFLE WALL BbSo HYDROCARBON BOOM z---OIL SIOMMER MEDIA FILTER HOUSING I ILL LLLLL INFLOW PIPE OUTFLOW PIPE 3.00' ACCESS HATCHES PLAN CONTRACTOR TO GROUT TO FINISHED GRADE PER INSTALLATION NOTE 5 f-73.00 RIM 4.00' n n n n 0.50' 3.00' 0.50' M N U' CV � 0 V Iq o THRU HqF TREATMENT STATIC GROUT PIPE PER MEDIA WATER INSTALLATION NOTE 5 CARTRIDGE1 ELEVADON I ui r•i 67.00917 OUTI C) - T I I 0.5 ' 4.67' 0.33 0.50' - - 1.00' 6.00' 7.00' END VIEW SECTION 0 WATER POLISHER-UP-FLOW MEDIA FILTER WP-3-6 BY BIOCLEAN NTS Civil Dandworks SPECIAL INSTALLATION N011=: WATER POJSHER AND MWS UNIT TO BE INSTALLED BY BIOCLEAN 110 COPPERWOOD WAY,SUITE P,OCEANSIDE,CA 92058 ENV. SERVICES APPROVED INSTALLER. PH:760-908-8745•info @civillandwotk5.com EXHIBIT C MINIMUM MAINTENANCE REQUIREMENTS FOR STORMWATER FACILITIES 1. BIO CLEAN ENVIRONMENTAL SERVICES, INC. RECOMMENDS THE SEPARATION CHAMBER AND OIL SKIMMER BE INSPECTED ANNUALLY AND CLEANED WHEN NEEDED DEPENDING ON LOADING. THE PROCEDURE IS EASILY DONE WITH THE USE OF ANY STANDARD VACUUM TRUCK. 0 REMOVE ALL MANHOLE COVERS (OR OPEN HATCHES) TO GAIN ACCESS TO THE SEPARATION CHAMBER. 0 USE A VACUUM TRUCK HOSE AND INSERT INTO THE MANHOLE OR HATCH OPENING. LOWER THE VACUUM HOSE INTO THE SEDIMENT CHAMBER. BEGIN VACUUMING OUT ACCUMULATED SEDIMENTS AND STANDING WATER UNTIL THE CHAMBER IS EMPTY. A PRESSURE WASHER MAY BE NEEDED TO ASSIST WITH REMOVING SEDIMENTS THAT ARE COMPACTED OR STUCK TO THE WALLS AND FLOOR OF THE SEPARATION CHAMBER. 0 REMOVE HYDROCARBON BOOMS FROM OIL SKIMMER AND REPLACE IF NEEDED. 0 ONCE THE CHAMBER IS CLEANED REMOVE VACUUM HOSE. 0 REMOVE VACUUM HOSE AND REPLACE MANHOLE COVERS OR HATCH DOORS. 0 WHERE POSSIBLE THE MAINTENANCE SHOULD BE PERFORMED FROM THE GROUND SURFACE. 0 NOTE: ENTRY INTO AN UNDERGROUND STORMWATER VAULT SUCH AS AN INLET VAULT REQUIRES CERTIFICATION OF CONFINED SPACE TRAINING. 0 TRANSPORT ALL DEBRIS, TRASH, ORGANICS AND SEDIMENTS TO APPROVED FACILITY FOR DISPOSAL IN ACCORDANCE WITH LOCAL AND STATE REQUIREMENTS. 2. BIO CLEAN ENVIRONMENTAL SERVICES, INC. RECOMMENDS THE UPFLOW FILTER MEDIA BE INSPECTED ANNUALLY AND CLEANED WHEN NEEDED DEPENDING ON LOADING. THE PROCEDURE WILL REQUIRE PRIOR MAINTENANCE OF SEPARATION CHAMBERS AND SCREENING BASKET. 0 REMOVE ALL MANHOLE COVERS (OR OPEN HATCHES) TO GAIN ACCESS TO THE SEPARATION CHAMBERS. 0 ENTER THE MANHOLE CLOSEST TO THE OUTFLOW PIPE. ALWAYS USE APPROPRIATE SAFETY GEAR AND PROCEDURES AND FOLLOW LOCAL REGULATIONS. 0 OPEN TOP DOORS OF THE UP FLOW MEDIA FILTER CAGE. THE LATCHES SLIDE BACK TO OPEN DOORS AND GAIN ACCESS TO MEDIA (BIOMEDIAGREEN). 0 REMOVE MEDIA EITHER BY HAND OR LIFT THEM INTO VERTICAL POSITION AND USE A VACUUM TRUCK HOSE TO REMOVE THE MEDIA. NO HEAVY EQUIPMENT IS NECESSARY TO REMOVE OR INSTALL NEW MEDIA. 0 ONCE ALL THE MEDIA IS REMOVED USE A PRESSURE SPRAYER TO WASH OF ANY ACCUMULATED DEBRIS ON THE SCREEN OF THE MEDIA CAGE. 0 INSTALL BIOMEDIAGREEN AND COMPACT. 0 CLOSE DOORS OF MEDIA FILTER CAGE AND SLIDE LATCHES INTO PLACE. 0 EXIT THE VAULT. 0 NOTE. INTO AN UNDERGROUND STORMWATER VAULT SUCH AS AN INLET VAULT REQUIRES CERTIFICATION OF CONFINED SPACE TRAINING. 0 TRANSPORT ALL DEBRIS, TRASH, ORGANICS AND SEDIMENTS TO APPROVED FACILITY FOR ISPOSAL IN ACCORDANCE WITH LOCAL AND STATE REQUIREMENTS. 3. FOLLOWING MAINTENANCE AND/OR INSPECTION, THE MAINTENANCE OPERATOR SHALL PREPARE A MAINTENANCE/INSPECTION RECORD. THE RECORD SHALL INCLUDE ANY MAINTENANCE ACTIVITIES PERFORMED, AMOUNT AND DESCRIPTION OF DEBRIS COLLECTED, AND CONDITION OF THE SYSTEM AND ITS VARIOUS FILTER MECHANISM. 4. THE OWNER SHALL RETAIN THE MAINTENANCE/INSPECTION RECORD FOR A MINIMUM OF FIVE YEARS FROM THE DATE OF MAINTENANCE. THESE RECORDS SHALL BE MADE AVAILABLE TO THE GOVERNING MUNICIPALITY FOR INSPECTION UPON REQUEST AT ANY TIME. 5. TRANSPORT ALL DEBRIS, TRASH, ORGANICS AND SEDIMENTS TO APPROVED FACILITY FOR DISPOSAL IN ACCORDANCE WITH LOCAL AND STATE REQUIREMENTS. 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 5a V-\ DtC1d ) 1 ' On 1— )9 - 2C)_7 before me, Date _ " He Insert Name and Title o#the Officer personally appeared r'(-Gk+'1 k u�IOC Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be th erson(s) whose name(s) is/are scribed to the within instrument and acknovooged to me that e/ he/they executed the same in hi her/their authorized capacity(ies), and that by ii her/their signature s)on the instrument the person(s), or the entity upon behalf of which the person(s) 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. WSELIN k S WITNESS my hand and official seal. Signature Si ature 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): L Corporate Officer — Title(s): Partner — ❑ Limited ❑ General ❑ Partner — ❑ 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: ©2016 National Notary Association -www.NationalNotary.org - 1-800-US NOTARY(1-800-876-6827) Item #5907