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2019-436819 y�•_ DOC# 2019-0436819 1 u p I111111IIIII IIIII IIIII IIII111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII Oct 01, 2019 04:07 PM OFFICIAL RECORDS RECORDING REQUESTED BY AND, ) Ernest J. Dronenburg, Jr., WHEN RECORDED MAIL TO: SAN DIEGO COUNTY RECORDER FEES: $59.00 (SB2 Atkins: $0.00) PAGES: 16 ) 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 APN: 259-121-24 Permit No.: 14267-G Site Address: 105-133 N El Camino Real Case No.: 17-177 DR THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and TRC Encinitas Village, LLC, a Delaware 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 I I 1 , , 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 1.1ii). 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 1 , 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 14267-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 i 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 f 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 j 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 j I 1 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. i 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 i i i i 1 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. OWNS Sign for TRC Encinitas V lage, LLC. Date 4e.-�-p <✓� Print ame Title Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: Edward J. Wim Date City Engineer Development S rvices Department City of Encinitas 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 On I before me, S4,121 Date rr,^,r Here Insert Name and Ti f the Officer personally appeared 4 L6 V I d Name(s) of Signer(s) I who proved to me on the basis of satisfactory evidence to be the person�&) whose name(s) is/ar-e subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/he4their authorized capacity(es),and that by his/her4their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(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. WITNESS my hand and official seal. ROSE ROESCH 5;z7ommMi6n#2137595 a •i Notary P006-.l;alitornia z Z y > Signature Orange.'Count S gnatu a of Notary Public My Comm. Expires'Jan 8, 2020 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: Dome R e: Number of Pages: Signer(s) Other Than Named Abov Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ Gen ❑ Partner — ❑ Limited ❑General ❑ Individual ❑Attor� Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ uirdian or Conservator ❑Trustee ❑Guardian or Conservator ❑ Other: ❑ Other: Sig41sR esenting: Signer Is Representing: ©20Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 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 '►� �I 2t71� SS. U- On ` ZS Zo 1 , before me, i TnGe(a A • ' o-1 o r , Notary Public, DATE '' \\ personally appeared 'E�LJOL fJ 3 W�rn M le,(_ ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s is are subscribed the within instrument and ac P edged to me that�she/they executed the sam er/their authorized capacity(ies), and that by is eir signature(s) on the instrument the person(s), or the entity upon behalf of which the O ANGELA A. SIMON person(s) acted, executed the instrument. Contra.#2182396 NOTARY Puauc•auFORNU N SAN DIEOO COUNTY I certify under PENALTY OF PERJURY under the MY Comm.EXP.MAR.2,2021 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (J"''4 '�L �'�- � — PLACE NOTARY SEAL IN ABOVE SPACE I 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 r-1 OTHER: OTHER SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT s NAME OF PERSON(S)OR ENTITY(IES) THUMBPRINT OF s SIGNER o a 0 APA01/2015 NOTARY BONDS,SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM ©2005-2017 VALLEY-SIERRA INSURANCE i EXHIBIT "A" Legal Description of Property r I i i i LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: ALL THAT POR71ON OF THE SOU774 HALF OF 774E NORTHEAST QUARTER OF THE NOR774EAST WARIER OF SEC710N 14, TOWNSHIP 13 SOU7H, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN 774E COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO 774E OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT 774E INTERSECTION OF 774E NOR7H LINE OF 774E SOUTH HALF OF 7HE NORTHEAST QUARTER OF 7HE NOR7HEAST QUARTER OF SAID SEC77ON 14 W1774 7HE EASTERLY LINE OF ROAD SURVEY NO. 682, AS DESCRIBED IN DEED TO 774E COUNTY OF SAN DIEGO, RECORDED NOVEMBER 27, 1961 AS INSTRUMENT NO. 204794 OF OFFICIAL RECORDS, THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID SOUTH HALF, A DISTANCE OF 110.00 FEET,• THENCE AT RIGHT ANGLES SOUTHERLY, A DISTANCE OF 60.00 FEET,• THENCE WES7FRLY PARALLEL WI7H 774E NOR7HERLY LINE OF SAID SOU7H HALF TO 7HE EASTERLY LINE OF SAID ROAD SURVEY NO. 682, THENCE NORTHERLY ALONG 7HE SAID EASTERLY LINE TO 7HE POINT OF BEGINNING. PARCEL 2: 7HE SOU7H HALF OF 774E NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 14, TOWNSHIP 13 SOU7H, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN 7HE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO 7HE OFFICIAL PLAT THEREOF. EXCEP77NG THEREFROM THAT POR710N LYING WITHIN PARCEL 1, HEREINABOVE DESCRIBED EXHIBIT 'A' EXHIBIT "B" Description and Plat of Stormwater Facilities STORM WATER MAINTENANCE AGREEMENT EXHIBIT 6' CURBED CHANNEL PATENTFD VERTICAL BY OTHERS 3'_0" PERIMETER UNDERDR4IN 209.05 VOID AREA CIL MANIFOLD FL CURB OPENING INLET PIPE i =_ ——————_ ��,,�;:- -�_• � P �-��. >a—— Y .: _ —————— SEE'NOTES i1� _ ?.`��'',;:k-'S.!Cit`^. F �.i�•OS%'rc,y �C`:'k�i;a=`+��';=<'���ys=`4"i�`"`� J(O. '! _LLLLLLL _ ''�� I IIYJ ...v� � S -•_,1. ^�Vi_}...°- ;t.F•`W, `_A+ PRE—RLTER SEE NO CARTRIDGE `----------- — --- --�----=�=�'_�----—'�-----a+— ------� WERANDMEDIA DRQN DOWN LINE BED MODULAR WETLAND DETAILS SCALE.• NTS m 12'-0" o D 36"0 RISER B1 �N vp :;I- CV U I I I B I C I I I I ° A I I I D I C I I I I H YDROMODIFICA TION PIPE GALLERY PLAN VIEW SCALE. NTS EXHIBIT 'B-1' STORM WATER MAINTENANCE AGREEMENT EXHIBIT I a 1 T RL BASKET APN 259-121-24 AREAS OF WORK fHYDROMODI CA]1 N PIPE GALLERY ma I Z :IMODULAR WETLAND S KEY MAP SCALE.• 1"=200' PRIVATELY MAINTAINED CURB \ INLET FILTER BASKET FOR BEST PR/VA TEL Y MAINTAINED `MANAGEMENT PRACTICE NOT TO MODULAR WETLAND ',-,.BE MODIFIED WITHOUT A PERMIT UNIT FOR BEST N FROM THE CITY. MANAGEMENT PRACTICE NOT TO BE MODIFIED WITHOUT A PRIVATELY MAINTAINED ,,.PERMIT FROM THE H YDROMODIFICA TION CITY (MWS i UNDERGROUND PIPE L-4-19-4'-0.5"-C) GALLERY FOR BEST MANAGEMENT PRACTICE NOT TO BE - ��-----_ MODIFIED WITHOUT A it I PERMIT FROM THE CITY'. I II I 750 SF I- ---------- IJ IrJ I I II 15 I I HYDROMODIFICATION PIPE GALLERY AND INLET FILTER BASKET MODULAR WETLAND SYSTEM SCALE.• 1"=40' SCALE: 1"=20' EXHIBIT 'B-2' �`TO,gM WA T� T �XiyjB NcE /T D/RE r�Y PGS/T/diVS FaR EASE HESS E�NG F Cyq��E�Sj D/�ERTER 8041 N//n✓G "jRO� CURB OpCNING oo, '. <<<kow PR�TRE A TENT �N�E sc�L£ NrsT 'NS�RT�E �xy/BjT 8�3� EXHIBIT 'C' Minimum Maintenance Requirements for Stormwater Facilities i i MINIMUM MAINTENANCE REQUIREMENTS FOR STORMWATER FACILITIES POST-CONSTRUCTION PERMANENT BMP OPERATION & MAINTENANCE PROCEDURE DETAILS 0&M RESPONSIBLE PARTY DESIGNEE.• PROPERTY OWNER BMP INSPECTION MAINTENANCE MAINTENANCE METHOD DESCRIPTION CURB INLET FILTER EVERY 6 EVERY 6-12 REMOVE DEBRIS VIA VACUUM TRUCK AND (PRE-TREATMENT) MONTHS MONTHS PRESSURE WASH. INSPECT HYDROCARBON BOOM BIOCLEAN AND REPLACE WHEN REQUIRED. CONSTRUCTED REMOVE TRASH FROM SCREENING DEVICE, REMOVE WETLAND-MODULAR EVERY 6-12 EVERY 12-24 SEDIMENT FROM SEPARATION CHAMBER, REPLACE WETLAND (APPROVED MONTHS MONTHS CARTRIDGE FILTER MEDIA, REPLACE DRAIN DOWN EQUIVALENT) FILTER MEDIA, AND TRIM VEGETATION. HMP FACILITY INSPECT PIPE GALLERY TO ENSURE IT IS CLEAR OF UNDERGROUND PIPE EVERY 6 SEDIMENT OR OBSTRUCTIONS VISUALLY INSPECT GALLERY MONTHS AS NEEDED BASIN OUTLET STRUCTURE TO ENSURE ORIFICES ARE NOT CLOGGED. CLEAN VIA JET VAC PROCESS IF REQUIRED. CHECK FOR STANDING WATER IN PIPE GALLERY. CHECK FOR PRESENCE OF MOSQUITOES EXHIBIT 'C'