HomeMy WebLinkAboutD-2016-X Private Drainage Easement Agreement Tract 2428 APN 053-022-016RECORDING REQUESTED BY:
FIRST AMERIC.kN TITLE CO!NIPA+NY
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Luis Obispo
Community Development Department
919 Palm Street
San Luis Obispo, CA 93401-3249
2016042219
Tommy Gong
San Luis Obispo - County Clerk -Recorder
08/29/2016 08:00 AM
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FIRSTeAMERICANrTITLE COMPANY
Titles: 1 Pages: 8
Fees: $42.00
Taxes: $0.00
Total: $42.00
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PRIVATE DRAINAGE EASEMENT AGREEMENT
FOR
TRACT 2428
APN 053-022-016
This Private Draina e Easement Agreement ("Agreement' }, is made and entered into this
I {_� day of u ,1054 , 20 i� , by and between the CITY OF SAN
LUIS OBISPO, a municipal corporation and charter city ("Grantor" or "City") and
Margarita Ranch SLO, LLC, a California limited liability company, ("Grantee").
RECITALS
WHEREAS, Grantee is the owner and developer of Tract 2428 (the "Subdivision") and
has caused a final subdivision map for the first phase of the Subdivision to be recorded as
Tract 2428-1 in Book 316 of Maps Pages 1'Z, to IS in the office of the County
Recorder of said County The Subdivision is a common interest development under the
Davis -Stirling Common Interest Development Act, Civil Code sections 4000 et seq.;
WHEREAS, Grantor owns certain real property described as Lot 172 of Tract 2428-1
("Lot 172"); and
WHEREAS, there are historical surface and subsurface drainage flows that originate on
or flow through Lot 172 and drain onto the Subdivision and the residential lots on the
adjoining Tracts 400, 1476 and 2353; and
WHEREAS, as part of the Subdivision, certain private drainage improvements are
required to be constructed and maintained to redirect said historical flows away from said
residential lots to a designated drainage channel or other approved location ("Drainage
Improvements"); and
WHEREAS, some of the Drainage Improvements will be located on Lot 172; and
WHEREAS, Grantee has entered into a subdivision agreement with City whereby
Grantee will construct the Drainage Improvements as shown on the approved plans on
file at the City, or any approved modifications thereto; and
WHEREAS, Condition No. 66.f of the conditions of approval for the Subdivision per
City Council Resolution No. 10514 (2014 Series) requires that the Homeowner's
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2a1(0-)e.
Association ("HOA") for the Subdivision maintain the Drainage Improvements,
including those improvements located on Lot 172; and
WHEREAS, until such time as the Drainage Improvements are certified as complete by
the Council of the City of San Luis Obispo, Grantee, not the HOA, shall be responsible
for maintaining the Drainage Improvements on Lot 172; and
WHEREAS, Lot 172 has certain natural biological resources, natural scenic beauty and
existing openness of importance to the community ("Values"); and
WHEREAS, both Grantor and Grantee desire to establish the terms and conditions for
Grantee's use of Lot 172 for the Drainage Improvements including the preservation and
conservation for the public benefit the Values and other natural conditions; and
WHEREAS, subject to the terms and conditions hereof, Grantor is willing to grant a
private drainage easement over a portion of Lot 172 to Grantee for the construction and
maintenance of the Drainage Improvements.
NOW THEREFORE, in consideration of the above recitals and in further consideration
of the mutual promises, covenants and the conditions herein contained, the parties agree
as follows:
1. Recitals. The above recitals are true and correct and are incorporated herein
by this reference.
2. Grant of Easement. Grantor hereby grants to Grantee a non-exclusive private
drainage easement over , under, within and through that portion of Lot 172
designated as "PRIVATE DRAINAGE EASEMENT BY SEPARATE
DOCUMENT" on said Tract 2428-1 map (the "Easement"), on the terms and
conditions set forth in this Agreement and subject to all matters and
encumbrances of record affecting Lot 172. With the exception of approved
uses allowed for the general public over, upon, and across Lot 172, the
Easement may only be used by Grantee, and Grantee's agents and contractors,
to access, construct, maintain, repair and replace the Drainage Improvements
on Lot 172 in a manner approved by the City and consistent with any permits
issued by the California Department of Fish and Wildlife for Tract 2428.
3. Reserved City Rights. Grantor reserves the right of ownership, use and
occupancy of the Easement area insofar as said ownership, use and occupancy
does not unreasonably interfere with the rights granted to Grantee in this
Agreement.
4. Term of Agreement. This Agreement shall continue in full force and effect
from the date of recordation of this Agreement in perpetuity, unless this
Agreement is amended, modified or terminated by an agreement executed,
acknowledged and recorded by the Grantor and Grantee, or Grantee's
permitted assigns.
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5. Use and Maintenance of Easement and Drainage Improvements. Grantee
shall, at Grantee's sole cost and expense, maintain and repair the Easement
area and the Drainage Improvements in good condition and working order at
all times. Grantee agrees that no activity or activities shall be allowed within
the Easement area which are inconsistent with the purpose and intent of this
Agreement and which would otherwise change, alter or impair the Values
within and upon Lot 172. Without limiting the generality of the foregoing, the
following uses and activities are expressly prohibited within the Easement
area, except as necessary to construct, maintain and repair the Drainage
Improvements in a manner approved by the City:
a. Filling, dumping, excavating, drilling, mining, grading or any other similar
land disturbance;
b. Construction, reconstruction, erecting or the placement of any building,
structure or improvement of any kind;
c. Commercial, industrial, agricultural, residential or institutional uses;
d. Depositing or the accumulation of soil, trash, refuse, waste or any other
materials;
e. Removing, destroying, or cutting of trees, shrubs or other vegetation,
except as required by law for wildland fire vegetation control (weed
abatement) and with Grantor's consent, which shall not be unreasonably
withheld;
f. Altering the surface or general topography of Lot 172, including, but not
limited to, alterations to habitat, building roads, paving or otherwise
covering Lot 172 with concrete, asphalt or any other impervious material;
and
g. Planting, introducing or dispersing non-native or exotic plants.
6. Character of Easement. Grantor and Grantee acknowledge and agree that the
Easement is an easement in gross.
7. Rights Personal to Grantee. Grantor and Grantee acknowledge and agree that
the rights and obligations granted to Grantee pursuant to this Agreement are
personal in nature and may be assigned by Grantee to the HOA for the
Subdivision, in a form subject to the approval of Grantor, once the City
Council of the City of San Luis Obispo certifies completion of the Drainage
Improvements. Any other or further assignment of this Agreement by Grantee
or the HOA shall require the prior written approval of Grantor, such consent
may be withheld in Grantor's sole and absolute discretion.
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8. Breach and Cure Rights. In the event of any breach of any provision of this
Agreement, including, but not limited to, Grantee's failure to maintain or
repair the Drainage Improvements, City shall give written notice to Grantee of
such violation and demand corrective action reasonably sufficient to cure the
violation and, where the violation involves injury to the Values resulting from
any use or activity inconsistent with the terms and provisions of this
Agreement, to restore the portion of the Values so injured. If Grantee fails to
cure the violation within thirty (30) days after receipt of notice thereof from
City, or under circumstances where the violation cannot reasonably be cured
within a thirty (30)-day period, fail to begin curing such violation within the
thirty (30)-day period, or fail to continue diligently to cure such violation until
finally cured, City may perform such work at Grantee's cost and expense,
bring an action at law or in equity in a court of competent jurisdiction to
enforce the terms of this Agreement, to enjoin the violation by temporary or
permanent injunction, to recover actual damages to which it may be entitled
for violation of the terms of this Agreement or injury to any Values protected
by this Agreement as a direct result of such breach, and to require the prompt
restoration of the Values to the condition that existed prior to any such injury
(if reasonably possible). Without limiting Grantee's liability therefore, City,
in its sole discretion, may apply any damages recovered to the cost of
undertaking any corrective action on the Values. If City, in its reasonable
discretion, determines that circumstances require immediate action to prevent
or mitigate significant damage, City may pursue its remedies under this
paragraph without waiting for the period provided herein for cure to expire;
provided, however, that notwithstanding the foregoing, City shall provide
Grantee with prior notice (verbal or written) of any such breach. The remedies
permitted or available pursuant to the provisions of this Agreement shall be
cumulative and in addition to any rights or remedies available at law or in
equity.
9, Insurance. Grantee shall at all times during the term of this Agreement, and at
its sole cost and expense, keep in full force and effect the following policies of
general liability insurance with limits of liability of not less than $1,000,000
per occurrence, which names the City as an additional insured: a policy
insuring against bodily injury, including death, and property damage,
occurring on or about the Easement area. City shall, from time to time, be
permitted to require that the limits of liability set forth herein be increased to
such amounts as normally prevail for such insurances in the area where the
Easement area is located.
10. Indemnification. To the fullest extent provided by law, Grantee, its successors
and assigns, agrees to indemnify, defend and hold harmless the City, its
officials, managers, directors, employees and agents from and against any and
all claims, costs, expenses and liability (including reasonable attorney's fees
and costs) arising from or related to Grantee's rights, obligations and
performance under this Agreement including, but not limited to, the
maintenance and repair or failure to maintain and repair the Drainage
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Improvements or Easement area, Grantee's access and use of the Easement
area, the authorized or unauthorized access or use of the Easement area or
Drainage Improvements by third parties.
11. Miscellaneous.
a. If any provision is found to be ambiguous, an interpretation consistent
with the purposes of this Agreement that would render the provision valid
shall be favored over any interpretation that would render it invalid.
b. If a court of competent jurisdiction voids or invalidates on its face any
provision of this Agreement, such action shall not affect the remainder of
this Agreement. If a court of competent jurisdiction voids or invalidates
the application of any provision of this Agreement to a person or
circumstance, such action shall not affect the application of the provision
to any other persons or circumstances.
c. The terms and conditions contained herein shall be binding on the parties
hereto and their heirs, successors and assigns.
d. No change or modification of this Agreement shall be valid unless the
same is in writing and signed by the parties hereto. No waiver of any of
the provisions of this Agreement shall be valid unless in writing and
signed by the party against whom it is sought to be enforced. This
Agreement contains the entire agreement between the parties relating to
the subject matter hereof and supersedes all prior understandings and
agreements between the parties. There are no promises, agreements,
conditions, undertakings, warranties or representations, oral or written,
express or implied, between the parties other than as herein set forth.
e. This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
f. All notices, demands or other communications required or permitted to be
given hereunder shall be in writing and any and all such items shall be
deemed to have been duly delivered upon personal delivery; or as of the
immediately following business day after deposit for overnight delivery
with Federal Express or a similar overnight courier service, or if by First
Class mail, three days after the mailing, postage prepaid, addressed as
follows;
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If to City: City of San Luis Obispo
Attn: Director of Public Works
919 Palm Street
San Luis Obispo, CA 93401
With copy to: City of San Luis Obispo
Attn: City Attorney
990 Palm Street
San Luis Obispo, CA 93401
If to Grantee Margarita Ranch SLO, LLC
340 Palladio Parkway, Ste. 521
Folsom, CA 95630
With copy to Timothy Cronan
2150 River Plaza Dr., Ste. 450
Sacramento, CA 95833
Any address fixed pursuant to the foregoing may be changed by the
addressee by notice given pursuant to this Section.
g. The section headings which appear in some of the sections of this
Agreement are for purposes of convenience and reference and are not in
any sense to be construed as modifying the sections in which they appear.
The recitals set forth above are incorporated into and made a part of this
Agreement.
h. The parties acknowledge that they have reviewed and revised this
Agreement, and their counsel has done or has had the opportunity to do
the same, and agree that the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any exhibits or
amendments hereto.
i. This Agreement may be executed in counterparts, all of which together
shall constitute one and the same instrument.
R
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
► •:
City of San Luis Obispo,
a municipal corporation and charter city
11�rx, Mayor
. ant to authority conferred by
Council Resolution No._] 0 1�y -7 ZO S er;
GRANTEE
Margarita Ranch. 1LC, a California limited liability company
By:
Dennis Moresco, Vice President
AWB$T:
! A D. J/ -
CIITY; CLERK CArr; e GrAt(Cj hf,r
f
APPROVED' AS TO FORM:
RNEY Christine Dietrick
7
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 ofSanLuis Obispo }
On ju—/V before me,
a e Name ana I Me ot Ine officer
personally appeared,
who proved to me on the basis of satisfactory evidence to be the person(( whose name(a) is/aw
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/leer/their- authorized capacity(ios), and that by his/her/their signature(El 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.
DIANE L. KELLEBREW
WITNESS my hand and official seal. commission # 2050280
Notary Public - California
San Luis Obispo County
Signature M Comm. Expires Doc 25. 2017
Li�r lu R it ty Public 4.ir•: ', ti t.::a •� ,u,.
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 Luis Obispo
On , before me, ,
a e NcInne and Title of 1he umber
personally appeared,
Name of Signeqs)
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.
WITNESS my hand and official seal.
Signature
Signahue of Notary Public Place Notary Seal Above
END OF DOCUMENT