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2022-453404DOC# 2022-0453404 �,,�. IIIIIII!Illlillll{11111111►Illlill!IIIIIIIIIIIIIIII!IIIIIIIIIIIIIIIIII Nov 30, 2022 11:34 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER Recording Requested By: FEES: $137.00 (SB2 Atkins: $75.00) PAGES:17 City Engineer When Recorded Mail to: City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas. CA 92024 SPACE ABOVE FOR RECORDER'S USE MAINTENANCE AGREEMENT FOR PRIVATE STORMWATER POLLUTION CONTROL AND FLOOD CONTROL FACILITIES BY OWNER A.P.N.: 256-053-13 Grading Plan: LDEV-013331-2020 Address: 696 N Coast Highway 101 Case No: MULTI-03825-2020 THIS AGREEMENT is between the City of Encinitas, a municipal corporation, hereinafter referred to as the "City", and JAMES P. SHATTO, A MARRIED MAN AS HIS SOLE AND SEPARATE PROPERTY, 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, pollution control, and hydromodification management 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, Hydromodification Management Plan (HMP) facilities, 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 LDEV-013331- 2020 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: o '-Jdmes Shatto Date Signature of OWNER must be notarized. Attach the appropriate acknowledgement. CITY OF ENCINITAS: (EiA T. Bankston City Engineer City of Encinitas Date CALIFORNIA 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 San Diego } On 2 0L t- before me, Arthur Patrick Arquilla, Notary Public / ate /,z Nere Insert Name and Title of the Officer l�- // r' 1. -__ZL- Personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) isore subscribed to the within instrument and acknowledged to me that,he/s a/they executed the same in_ffis r r/their authorized capacity(ies),and that byhis/h� r/theirsignature(s)onthe instrumenttheperson(s),orthe entity upon behalf of which the person(s) actedtecuted the instrument. I certify under PENALTY OF PERJURY underthe laws of the State of California that the foregoing paragraph is true and AARTHHUR PATRICK ARQUILLA COMM, #2386204 tm 7. NOTARY PUBLIC-CAUFORNIA s SAN DIEGO COUNTY My Comm. Eapaes iwxoy 1 2026 Place Notary Seal Above correct. WITNESS my hand 4hd official Signature of Notary Public ------------- 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 Number of Pages Document Date Signer(s) OtherThan Named Above Capacity(ies) Claimed by Signer(s) Signer's Name E] Corporate Officer—Title(s) rl Partner Limited rj General Individual Attorney in Fact Trustee ® Guardian or Conservator Other Signer -Is Representi Signer's Name Corporate Officer —Titles) Partner Limited MGeneral M Individual ® Attorney in Fact Trustee []Guardian or Conservator' ® Other Signer Is Representing W ©2014National NotaryAW — ssociation ° www•NationaiNotary.org o 1-800-US NOTARY (1-800-876-6827) item##5907 EXHIBIT "A" Legal Description of Property Real property in the City of Encinitas, County of San Diego, State of California, described as follows: LOT 8, BLOCK "A" SOUTH COAST PARK NO. 3, ACCORDING TO MAP THEREOF NO. 1935, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 17, 1926. EXCEPTING THEREFROM THE NORTHEASTERLY 25 FEET OF SAID LOT 8, SAID 25 FEET BEING MEASURED SOUTHWESTERLY, RADIALLY AND AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF SAID LOT, AS GRANTED TO THE STATE OF CALIFORNIA, IN DEED RECORDED DECEMBER 8, 1933, IN BOOK 252, PAGE 300 OF OFFICIAL RECORDS. APN: 256-053-13-00 EXHIBIT "B" Description and Plat of Stormwater Facilities n n V Fri 00 1 DQ rr�)c�o J z-,j> PEG IS 0p1' 0M rn z az `i o z=vrrli ay5 BRlgv'�F� oozy rn a� rn �� �cn Z x �O CMG) I I �rn--{{ 0Ox act DCI n c m cmn r> D I cob +� rn to 0 �� ~� �M-u rn N� pG o w z''��_ (A0 o a= m �rn rn 2I33N��N� -`' o o Q (n ono- M cU D x cn ;K V 0 F 4 Cn Q W Y Zz y m m� 00 y � Ov 1� m o CA G�- n A- m m C �d400 -cn a m rn ca 4,4 ?Q 3� n m t I I I I co C a o �vrn 00 ,o �I y I s O m n Z m z m n m m m z y l04 AVMHJiH1S OF/ O HJ N m 1 w rn C61, o z cn cn mmzz OOim �'m O <mca 0 O om f � aiO__ �� .fi tirno o�m-i� �rn rW. D�� �� 5 z<ozo oC)z-110 ZDcnO cn�� i Ap°p y DmpAA Om— � .' =�p0D zzm o D,o Djfo o�'z�m v'=� p �r �Z cnpny� Arno ° x-n w� o� Cr>Cn o co xCii ►- `�• mOfqOm o� �z�Dy Onm Z T T- moo-1-m XD>°°c z 1111-11x z=mr„ 7oDZ�v Zr p p Z W zCm-II C— NY. m _ ; `�� rrt � � o rn 03 CA mDmT�o OO�rci-IZ OrnO a= h m 03 m prnrnp mzr— xOcDO �o CIOn�..1 o� 1 m�_zz - � rn x z i. o m m= 0000 - CUrm-m mo— w cnCl) o== �o rnzm 0Dz c� r- Z O n Z cn Z p _ p �O rn EXHIBIT `C Minimum Maintenance Requirements for Stormwater Facilities (Frequency and Procedures) EXHIBIT `C' MINIMUM MAINTENANCE REQUIREMENTS FOR STORIVIWATER FACILITIES Bioretention Areas To preserve bioretention performance, the cells must be maintained. Like any landscape feature, bioretention areas must be pruned, mulched, and even initially watered and limed. Grassed bioretention cells are usually mowed. The need for rapid establishment requires bioretention cells to be limed, if indicated by a soil test. Additionally, plants may need to be spot -fertilized to ensure growth and survival in low P soils. Watering the plants every 2 to 3 days for a month or two helps ensure vegetation survival. The frequency of these tasks varies seasonally, with more frequent maintenance required in summer than in winter. Maintenance tasks unique to bioretention include occasional removal of mulch and the top layer of fill soil. Because clogging occurs most frequently at the top of the soil column, the bioretention basin rarely needs to be completely excavated. However, this has been necessary when the bioretention cell was located in an unstable drainage area. BIORETENTION MAINTENANCE TASKS Task Frequency Maintenance Notes Pruning 1 - 2 times / year Nutrients in runoff often cause bioretention vegetation to flourish. Mowing 2 - 12 times / year Frequency depends upon location and desired aesthetic appeal Mulch accumulation reduces available Mulching 1 - 2 times / year water storage volume. Removal of mulch also increases Mulch Removal 1 time / 2 - 3 years surface infiltration rate of fill soil. 1 time / 2 - 3 days for first If droughty, watering after the Watering 1 - 2 months. Sporadically initial year may be required. after establishment. One time spot fertilization for "first Fertilization 1 time initially ear" vegetation. Within the first year, 10 percent of Remove and Replace 1 time / year plants may die. Dead Plants Survival rates increase with time. Tasks include trash collection, spot Miscellaneous weeding, and removing mulch from Upkeep 12 times / year overflow device. Bioretention and Landscape Areas The operational and maintenance needs of a Bioretention Basin are: • Vegetation management to maintain adequate hydraulic functioning and to limit habitat for disease -carrying animals. • Animal and vector control. • Periodic sediment removal to optimize performance. • Trash, debris, grass trimmings, tree pruning, and leaf collection and removal to prevent obstruction of a Swale and monitoring equipment. • Erosion and structural maintenance to prevent the loss of soil and maintain the performance of the Swale. Functional Maintenance Functional maintenance has two components: Preventive maintenance Corrective maintenance Preventive Maintenance Preventive maintenance activities to be instituted at a Bioretention Basin are: • Trash and Debris. During each inspection and maintenance visit to the site, debris and trash removal will be conducted to reduce the potential for inlet and outlet structures and other components from becoming clogged and inoperable during storm events. Sediment Removal. Sediment accumulation, as part of the operation and maintenance program at a Swale, will be monitored once a month during the dry season, after every large storm (0.50 inch), and monthly during the wet season. Specifically, if sediment reaches a level at or near plant height, or could interfere with flow or operation, the sediment will be removed. If accumulation of debris or sediment is determined to be the cause of decline in design performance, prompt action (i.e., within ten working days) will be taken to restore the Swale to design performance standards. Removal of Standing Water. Standing water must be removed if it contributes to the development of aquatic plant communities or mosquito breeding areas. Fertilization and Irrigation. The vegetation seed mix has been designed so that fertilization and irrigation is not necessary. Fertilizers and irrigation will not be used to maintain the vegetation. • Elimination of Mosquito Breeding Habitats. The most effective mosquito control program is one that eliminates potential breeding habitats. Corrective Maintenance Corrective maintenance is required on an emergency or non -routine basis to correct problems and to restore the intended operation and safe function of a Bioretention Basin. Corrective maintenance activities include: • Removal of Debris and Sediment. Sediment, debris, and trash, which impede the hydraulic functioning of a Swale and prevent vegetative growth, will be removed and properly disposed. • Structural Repairs. Once deemed necessary, repairs to structural components of a Swale and its inlet and outlet structures will be done within 10 working days. • Embankment and Slope Repairs. Once deemed necessary, damage to the embankments and slopes of Swales will be repaired within 10 working days). • Erosion Repair. Where a reseeding program has been ineffective, or where other factors have created erosive conditions (i.e., pedestrian traffic, concentrated flow, etc.), corrective steps will be taken to prevent loss of soil and any subsequent danger to the performance of a Swale. There are a number of corrective actions than can be taken. These include erosion control blankets, riprap. Hazardous Waste Suspected hazardous wastes will be analyzed to determine disposal options. Hazardous wastes generated onsite will be handled and disposed of according to applicable local, state, and federal regulations. A solid or liquid waste is considered a hazardous waste if it exceeds the criteria list in the CCR, Title 22, Article 11. Storm Water Storage System Periodic inspections of the inlet and outlet areas to ascertain correct operation of system and to clean materials trapped on grates protecting catch basins and inlet area should be required monthly. o Routine sweeping and cleaning of impervious drainage areas will reduce floatables and sediment loading to underground stormwater storage. B The primary maintenance concerns are removal of floatables that become trapped and removal of accumulating sediments within the system; this should be done at least on an annual basis. Proprietary traps and filters associated with stormwater storage units should be maintained as recommended by the manufacturer. safety procedures must be followed by workers entering an underground stormwater storage facility. o Sediments are best removed mechanically rather than flushing. If flushing is the only option then great care must be taken not to flush sediments downstream into native waters. Any structural repairs required to inlet and outlet areas should be addressed in a timely manner on an as needed basis. Local authorities may require annual inspection or require that they carry out inspections and maintenance.