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Home My WebLink AboutD-2017-K Private Drainage Improvement Enroachment Agreement Tract 24282017022373 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 Tommy Gong San Luis Obispo -County Clerk -Recorder 05/23/2017 10:15 AM Recorded at the request of: PUBLIC Titles: 1 Pages: 6 Fees: $29.00 Taxes: $$0.00 Total: $29.00 PRIVATE DRAINAGE IMPROVEMENT ENCROACHMENT AGREEMENT This Private Drainage Improvement Encroachment Agreement ("Agreement"), is made and entered into this /Srµ day of A-( 2 20A-)_, 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 ("Grantee"). RECITALS WHEREAS, Grantee is the owner and developer of Tract 2428 as shown on the Tract 2428-1 map recorded in Book 36 of Maps Pages 12 to 18 in the office of the County Recorder of said County (the "Subdivision"); and WHEREAS, there are certain private stormwater control measures required to meet Regional Water Quality Control Board requirements that are proposed to be constructed in the public street right-of-way within Tract 2428. These private stormwater control measures are shown on the approved plans for Tract 2428 on file at the City, including any modifications thereto, and are collectively referred to as "Drainage Improvements"; and WHEREAS, Grantee is required to maintain the stormwater control measures; and WHEREAS, both Grantor and Grantee desire to establish the terms and conditions for Grantee's use of the public street right-of-way for the Drainage Improvements; and WHEREAS, subject to the terms and conditions hereof, Grantor is willing to allow a temporary encroachment within the public street right-of-way so Grantee can construct and maintain 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: I. Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Reserved City Rights. Grantor reserves the right of ownership, use and occupancy of the public street right-of-way insofar as said ownership, use and 1 2_01-1- Iz,, occupancy does not unreasonably interfere with the rights granted to Grantee in this Agreement. 3. 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. 4. Temporary Encroachment. Grantor hereby issues a revocable permit to allow an encroachment into the public street right-of-way to access, construct, maintain, repair and replace the Drainage Improvements within the right-of- way in a manner approved by the City. Grantee shall, at Grantee's sole cost and expense, maintain and repair the Drainage Improvements within the right- of-way in good condition and working order at all times. Grantee agrees that no activity or activities shall be allowed within the right-of-way which are inconsistent with the purpose and intent of this Agreement and which would otherwise change, alter or impair the street, without prior approval of the City's Public Works Director. Grantee agrees to remove the Drainage Improvements within the right-of-way without cost to City upon sixty (60) days written notice, which may be given by City at any time at its sole option and discretion. If Grantee does not remove the encroachment authorized herein when requested by City, City may proceed to require removal under the Municipal Code nuisance provisions and to assess the cost of said removal against the real property described herein. Grantee further acknowledges that, in the event of such removal by City, City is not liable for any damages to the encroachment or to any adjacent real or personal property. 5. 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 another party upon prior written approval of Grantor. Such consent may be withheld in Grantor's sole and absolute discretion. 6. 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 street resulting from any use or activity inconsistent with the terms and provisions of this Agreement, to restore the portion of the street 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 2 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 street protected by this Agreement as a direct result of such breach, and to require the prompt restoration of the street 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 street. 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 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. 7. 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 Improvements, Grantee's access and use of the street right-of-way, and the authorized or unauthorized access or use of the street right-of-way or Drainage Improvements by third parties. S. 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 run with the land and 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 3 the provisions of this Agreement shall be valid Lidless 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: 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. F 1,. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. GRANTOR City of San Luis Obispo, a municipal corporation and charter city By - 9-- Matt Horn, City Engineer City of San Luis Obispo (Authorization -Resolution No. 3897, 1979 Series) GRANTEE: Margarita Ranch SLO LLC, a California lin ' d liability By Dent oresco, Vice Pre E t I h A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the I document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of __(_Q 11-ro r, County of i' mil 20j7, before me, L)j1 j f _L, Notary Public, personally ajpeared JA0AJ,5 17�](L.n - who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that Ye xecilted the same in capacity, and that by mis signature on the instrume��i the person ar the entity upon behalf of which the person acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand a d official seal. L 4�� Z-- 1� 0 1 4A Signature of Notary tiblic DIANE L. KELLEBREW Commission 0 2050280 Notary Public - Calf ols San Luis Obispo County My Cxm. I,xpires Dec 2� qj 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 C y I i N r hilr } County of Igrx LmlJ p�t,.�po } On /hAY Z2 20L-7, before me, _" Iq 0f1'(A VK , Notary Public, personally appeared MA TZ �y who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that (s)he executed the saine in his/her capacity, and that by his/her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. 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 of Notary Public 1i DIANE OOSTALEK Commission # 2138341 Notary Public - Californla z San Luis Obispo County M Comm. Expires Dec 25. 2019 6 END OF DOCUMENT