2021-731250DOC# 2021-0731250
Oct 21, 2021 08:39 AM
Requested B
Recording q y
) OFFICIAL RECORDS
Ernest J Dronenburg, Jr.,
City Engineer
) SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
When Recorded Mail to:
) PAGES: 11
City Clerk
)
City of Encinitas
)
505 South Vulcan Avenue
)
Encinitas, CA 92024
) SPACE ABOVE FOR RECORDER'S USE ONLY
DECLARATION OF RESTRICTIONS:
STORM DRAIN MAINTENANCE & HOLD HARMLESS AGREEMENT
APN: 261-010-13-00
Project No.: 17-272 DR/CDP
Plan No.: 14321-G/I
This Storm Drain Maintenance and Hold Harmless Agreement ("Agreement")
concerning certain storm drain facilities located on the property commonly known as
2695 Manchester Ave, Cardiff, California, 92007, more particularly described in Exhibit
"A" which is attached hereto and made a part hereof (hereinafter referred to as
"Property'), is entered into by the SAN ELIJO JOINT POWERS AUTHORITY
(hereinafter referred to as "SEJPA"), owner of the property, and the CITY OF
ENCINITAS (hereinafter referred to as "City'). The SEJPA and City are collectively
referred to hereinafter as "Parties."
RECITALS
WHEREAS, SEJPA has undertaken a Stormwater Capture and Reuse project
which couples existing stormwater, wastewater, and recycled water infrastructure with
new proposed infrastructure to capture and divert approximately 7 million gallons
annually of stormwater/urban runoff for treatment and reuse, thereby providing water
quality benefits to the San Elijo Lagoon and providing source water for recycling by
SEJPA as well as other stormwater improvements as part of the Water Campus
Improvement project (hereinafter collectively referred to as the "Project"); and
WHEREAS, as part of the Project, SEJPA removed the existing regional storm
channel on the Property and replaced it with below ground storm drain pipes, which
stormwater conveyance system is more specifically shown in Exhibit "B" attached
hereto and made a part hereof (hereinafter referred to as "Storm Drain"); and
WHEREAS, it is the desire of the SEJPA to periodically maintain and repair the
Storm Drain on the Property, and to hold harmless, defend and indemnify the City from
and against claims arising from drainage running through the Storm Drain on the
Property; and
WHEREAS, it is the intention of the Parties that this Agreement constitute a
covenant running with the land, binding upon successive owners of the Property, and to
provide notice of the same to any successors or assigns of SEJPA or future owners of
the Property by recording this Agreement in accordance with Government Code
Sections 27280 and 27281.5.
NOW THEREFORE, it is hereby agreed for valuable consideration as follows:
AGREEMENT
1. SEJPA shall be responsible for the cost and expense of maintaining and
repairing the Storm Drain located on the Property. Nothing in this Agreement
shall preclude SEJPA from recovering the cost of any maintenance or repairs
caused or contributed to by the negligent, reckless or wilful misconduct of City or
any third party.
2. The repairs and maintenance to be performed on the Storm Drain under this
Agreement shall be limited to the Property and include the following: reasonable
improvements and maintenance work to adequately maintain the Storm Drain in
proper working order as determined by applicable City policies and requirements;
repairing and maintaining drainage structures; and removing debris. The Storm
Drain shall be maintained regularly as necessary to keep the facilities in proper
working order and to meet the requirements of the SEJPA's industrial facility
stormwater permit. Nothing in this Agreement shall require SEJPA to perform
any maintenance or repairs of the storm drain system that is not on SEJPA
Property.
3. SEJPA shall defend, indemnify, and hold harmless City, and City's 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 ("Claims") arising out of or in any way related to
SEJPA's repair or maintenance of, or SEJPA's failure to repair or maintain, the
Storm Drain on its Property, except that in no event will SEJPA be responsible
for any Claims arising out of or in any way related to the negligence,
recklessness or wilful misconduct of City or any third party.
4. City shall defend, indemnify, and hold harmless SEJPA, SEJPA's officials,
directors, officers, agents and employees, from and against all Claims arising out
of or in any way related to City's repair or maintenance of, or City's failure to
repair or maintain, fixtures, appurtenances, channels or other infrastructure
owned or operated by the City that connected to the Storm Drain on SEJPA's
Property, except that in no event will City be responsible for any Claims arising
out of or in any way related to the negligence, recklessness or wilful misconduct
of SEJPA or any third party.
2
5. SEJPA unconditionally waives all present and future Claims against City and
City's officers, officials, employees, and agents that are alleged to have arisen,
directly or indirectly, from drainage or runoff from the Property or the Storm Drain
on the Property. It is further understood and agreed that SEJPA expressly
waives its rights under California Civil Code section 1542, which provides as
follows:
A general release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the time of
executing the release and that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.
It is further understood and agreed that SEJPA does not waive and expressly
reserves any Claims and defenses that are alleged to have arisen out of or relate
to the negligence, recklessness or wilful misconduct of City or any third party.
6. In the event the SEJPA fails to maintain the Storm Drain on the Property in good
working condition acceptable to the City, the City, its agents, or its contractors,
may take the steps necessary to correct deficiencies and charge the costs of
such repairs to the SEJPA. It is expressly understood and agreed that the City is
under no obligation to maintain or repair the Storm Drain on the Property, and in
no event shall this Agreement be construed to impose any such obligation on the
City.
7. The Property is benefited by this Agreement, and the Parties intend and agree
that this Agreement shall be recorded and constitute a covenant running with the
land, such that each and every person who shall at any time own all or any
portion of the Property containing all or any portion of the Storm Drain shall be
expressly bound by the covenants herein contained.
8. This Agreement shall be binding on the Parties and each of their successors and
assigns.
9. This Agreement shall be governed by the laws of the State of California.
10. 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.
11. This Agreement may be executed in multiple counterparts, each of which shall be
an original, and all of which, when taken together, shall constitute one and the
same agreement.
[Signature Page to Follow]
3
ACCEPTED, ACKNOWLEDGED AND AGREED BY:
SEJPA:
Mic ae T. Thornton, P.E.
General Manager
San Elijo Joint Powers Authority
AND
CITY OF ENCINITAS:
!B�fnlkston
rCity Engineer
CiEncinitas
10 Co 1.2-DIZ-A
Date
10//1ZZ1
Date
4
CALIFORNIA ACKNOWLEDGMENT
CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies onlythe identity of the individual who signecithe document
to which this certifrcate is attached, and not the truthfulness, accuracy, or validityof that document
State of Califomia
County of'� ►/ t
On �61,1021 before me, Ifin• ANNOr Nvk ev k 0 I V 'MVC4 Pybk�G
Date Here Insert Name and Title o the Officer
personally appeared Mat_Viole' -T . T�AoMrgn
Name(s) ofSigner(s)
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.
aCONNOR KNACK
Notary Public -California
San Diego County
Commission K 230885
My Comm. Expires Jun 19. 2025
Place Notary Seal and/or Stamp Above
I certify under PENALTY OF PERJURY under the
laws of the State of Calromia that the foregoing,
paragraph is true and corredL
WITNESS my hand and official seal-
Signature
OPTIONAL
Signature of Notary Public
Comp/etfng this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document
Description ofAtzached
Title or Type of Docume
rinr[TM r r)a{a• ,0
Signer(s) Other Than Named Above:
Capacity(iess) Claimed by Signer(s)
Signer's Name:
0 Corporate Officer -
El Partner- ❑ Limit13 e
Individual
❑ Trustee
El Other.
Signer is Representing:
d
Title(s):
❑ General
❑ Attorney in Fact
❑ Guardian or Conservator
Signer's Name:
❑ Corporate Officer -Title(s):
❑ Partner- ❑ limited ❑ General
❑ Individual ElAttorney in Fact
❑ Trustee ElGuardian or Conservator
❑ Other.
Signeris Representing:
EXHIBIT "A"
Legal Description of the Property
The land referred to herein is situated in the State of California, County of San Diego, City
of Encinitas and described as follows:
Those portions of the East half of Section 27 and the Northwest Quarter of Section 26 in Township
13 South, Range 4 West, San Bernardino Meridian, in the City of Encinitas, County of San Diego,
State of California, according to the Official Plat thereof, described as follows:
Beginning at a found concrete monument accepted as the West Quarter corner of said Section
26; thence North 00 06' 01" West, along the West line of said Section 26, 100.01 feet to the North
line of the South 100 feet of said Northwest Quarter; thence 79° 52' 06" East 639.26 feet to a
point in the Southwesterly line of that Parcel of land described in Parcel 5 of that certain Final
Order of Condemnation, filed for record on September 14, 1962 as Instrument No. 159336, of
Official Records of said County; thence along said Southwesterly line as follows:
North 330 10' 44" West, 626.28 feet; North 32° 21' 02" West, 475.72 feet; and North 160 10' 36"
West 645.50 feet to a point being a coordinate Y=311,809.99 feet and X-1 686.529.47 feet also
being a point in the Northerly line of the land described in deed to Hector A. Shelley, and Daniel
T. Shelley, recorded July 20, 1961 as Instrument No. 124478, of Official Records; thence along
said Northerly line, North 89° 08' 03" West (Record West) 540.57 feet to the Northwesterly corner
of said land; thence along the Westerly line thereof, South 090 35' 03" East (record South 90 38'
East), 1783.73 feet to the Southeasterly corner of Cardiff, Map No. 1298, filed in the Office of the
County Recorder of San Diego County; thence along the Southerly line of said Shelley Land South
88° 51' 20" East (record North 890 27' East) 141.31 feet; thence South 26° 16' 15" East, 223.26
feet; thence South 00 04' 43" West, 139.35 feet to a point on a 690.00 foot radius curve concave
Northerly in the Northerly line of the land described in deed to Cardiff Sanitation District recorded
October 18, 1956 in Book 6305, Page 93, of Official Records, a radial bears South 2° 41' 05"
West to said point; thence along the Northerly line of said land Easterly along said curve through
a central angle of 7° 08' 20", 85.91 feet; thence tangent to said curve, North 850 33' 03" East
50.40 feet to the beginning of a 810.00 foot radius tangent curve concave Northerly, a radial which
bears South 4° 26' 57" East; thence Easterly along said curve through a central angle of 0° 59'
10", 13.94 feet to the East line of said Section 27; thence along said East line, North 0° 04' 43"
East 329.29 feet to the point of beginning.
Excepting therefrom that portion of the above described land granted to the State of California
indeed recorded March 11, 1969 as Instrument No. 42205, of Official Records.
APN: 261-010-13-02 and 261-010-13-01
(End of Legal Description)
EXHIBIT "B"
EXHIBIT OF STORM DRAIN FACILITIES
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