HomeMy WebLinkAboutD-1694 811 El Capitan Way - APN 053-411-001 & 053-411-003 Recorded 09/21/2006�. JULIE O Obi
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Luis Obispo
City Clerk's Office
990 Palm Street
San Luis Obispo, CA 93401 -3249
I0 C
P0 Co Welerk/Recorder
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9/2112006
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Pages: 7
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CREEK PRESERVATION AND MAINTENANCE AGREEMENT
This agreement, made and entered into this day
Of i9V (al/Sr2d ,_200f2, by and between Covey 3, a California General
Partnership hereinafter called "Covenantor", and the CITY OF SAN LUIS OBISPO, a
municipal corporation of the State of California, hereinafter called "City'
WITNESSETH
WHEREAS, Covenantor is the. owner of that certain real property situated within
the City of San Luis Obispo, as the same is more particularly described in Exhibit "A ",
attached hereto and made a part of this agreement by reference, commonly known as
811 El Capitan Way (the "Real Property "), [Assessors Parcel Numbers: 053 - 411 -001 &
053 - 411 -0031.
WHEREAS, the subject property includes a creek and open space area of certain
natural scenic beauty and public value, more particularly described in Exhibit "B"
attached hereto and made a part of this agreement by reference (hereinafter the "Creek
Corridor "); and
WHEREAS, both. Covenantor and City desire to preserve, conserve, and
..J enhance for the public benefit and the natural scenic beauty, openness, natural
condition and present state of use of the Creek Corridor; and
WHEREAS, the Covenantor was required as a mitigation measure of ER 108 -00
to prepare a creek preservation and maintenance agreement to preserve the Creek
...•. Corridor upon the terms and conditions hereinafter expressed;
Q
NOW THEREFORE, in compliance with Chapter 6.6 of Part 1 of Division 1 of
Title 5 of the Government. Code of the State of California commencing with Section
51070, and in consideration of the mutual promises, covenants and the conditions
herein contained and the substantial public benefits to be derived therefrom, the parties
agree as follows:
—D f 1n4(�
OPEN SPACE, CREEK PRE "JATION AND MAINTENANCE AGR "ENT
Between Covey 3 and City of San Luis Obispo (811 El Capitan)
Page 2. of 2
1. Covenantor hereby covenants on behalf of itself, its heirs, successors and
assigns, with the City, its heirs, successors and assigns, to abide by the
following restrictions, which shall hereafter burden the the Creek Coridor
for the benefit of the Real. Property and run with the land in accordance
with Civil Code Section 1460.
a. No structures will be placed or erected upon or within the Creek
Corridor other than see - through fencing appropriate to open space
preservation if the same is first approved by the City's Architectural
Review Commission. J
b. No signs, billboards, similar structures or devices, or advertising of
any kind or nature shall be located upon or within the Creek
Corridor.
C. Covenantor shall not plant nor permit to be planted any vegetation
upon or within the Creek. Corridor, except as may be associated
with riparian corridor restoration, erosion control, fire protection, soil
stabilization, or as may hereafter be allowed and approved by the
City's Community Development Director and Natural Resources
Manager. Any such vegetation shall be native riparian.
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d. That the general topography of the Creek Corridor shall be
preserved in its existing natural condition, and bank stabilization
work shall be performed with the approval of the necessary state
and federal agencies having jurisdiction over the Creek Corridor.
e. That no extraction of surface or subsurface natural resources,
including water, from the Creek Corridor shall be allowed from the
Creek Corridor for any purpose.
That no removal of natural vegetation from the Creek Corridor shall
be allowed except for: fire protection; elimination of dead growth;
or, riparian. corridor restoration as directed and approved by the
Community Development Director and Natural Resources
Manager.
g. That no use of the Creek Corridor which will or does materially alter
the landscape or other attractive scenic features of the Creek
Corridor, other than those above specified, shall be done or
suffered.
2. This agreement shall remain in effect in perpetuity.
3. The rights and benefits herein provided to the City may not be abandoned
by the City except pursuant to all of the provisions of Section 51093 of the
Government Code of the State of California.
OPEN SPACE, CREEK PREATION AND MAINTENANCE AGR "ENT
Between Covey 3 and City of San Luis Obispo (811 El Capitan)
Page 3 of 3
4. This agreement shall be deemed to be an enforceable restriction within
the meaning of Article XIII, Section 8 of the Constitution of the State of
California.
5. All land uses perm, itted or reserved to the owner shall be subject to the
ordinances of City regulating the use of land.
6. The City shall have a reasonable right of access to the Creek Coridor,
upon not less than twenty -four (24) hours notice to Covenantor, for
purposes of removing any drainage obstructions as needed to provide for
the conveyance of creek flows, subject to the review and approval of other
agencies with regulatory control over work done in the riparian corridor,
specifically the State Department of Fish and Game and the U.S. Army
Corps of Engineers. The City shall further have the right to access the
Creek. Corridor, upon not less than seventy -two (72) hours notice to
Covenantor, for purposes of inspecting the site to assure conditions of this
agreement are being met.
7. If City determines that Covenantor or its agents, contractors, or invitees
are in violation of the terms of this agreement or that a violation is
threatened, then the City, upon making such determination shall give
written notice to Covenantor of such violation and demand in writing the
cure of such violation. If Covenantor fails to cure the violation within
fifteen (15) days after receipt of said written notice and demand, or said
cure reasonably requires more than fifteen (15) days to complete and
Covenantor fails to begin the cure within the fifteen (15) day period or fails
to continue diligently to complete the cure, City may at its option and
without further notice: (a) enter the property and cure the noticed violation
and assess Covenantor for any expenses incurred in completing . such
work; or,' (b) bring an action at law or in equity in a court of competent
jurisdiction to enforce compliance by Covenantor with the terms of this
agreement Covenant, to recover any damages to which City may be
entitled for violation by Covenantor of the terms of this Conservation
Covenant or for any injury to the conservation values of the Property, to
enjoin the violation, ex parte as necessary, by temporary or permanent
injunction without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies, or for other equitable
relief, including, but not limited to, the restoration of the Creel Corridor to
the condition in which it existed prior to any such violation or injury.
Without limiting Covenantor's liability therefore, City may apply any
damages recovered to the cost of undertaking any corrective action on the
Creek Corridor.
If City, in its sole discretion, reasonably determines that exigent
circumstances require immediate action to prevent or mitigate significant
damage to the Creek Corridor, City may pursue its remedies under this
i
OPEN SPACE, CREEK PREATION AND MAINTENANCE AGR ENT
Between Covey 3 and City of San Luis Obispo (811 El Capitan)
Page 4 of 4
Section 7 without prior notice to Covenantor or without waiting for the
period provided for cure to expire. The rights of City under this section
apply equally . to actual or threatened violations of the terms of this
agreement. Covenantor agrees that the remedies at law for any violation
of the terms of this agreement are inadequate and that City shall be
entitled to the injunctive relief described in this section, both prohibitive
and mandatory, in addition to such other relief to which City may be
entitled, including specific performance, without the necessity of proving
either actual damages or the inadequacy of otherwise available legal
remedies. The remedies of City described in this section shall be
cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity. The failure of City to discover a violation or to
take immediate legal action shall not bar the City from taking such action
at a later time.
If at any time in the future, Covenantor or any subsequent transferee uses
or threatens to use such lands for purposes inconsistent with this
agreement, then City shall enforce this agreement.
7.1 Costs of Enforcement. In any action brought to enforce or interpret
the terms of this agreement, the prevailing party shall be awarded,
in addition to any and all other appropriate remedies, the costs of
suit and reasonable attorneys' fees.
7.2 City Discretion. Enforcement of the terms of this agreement by the
City shall be at the discretion of the City, and any forbearance by
City to exercise its rights under this agreement in the event of any
breach of any term of the agreement shall not be construed to be a
waiver by City of such terms or of any subsequent breach of the
same or any other term of this agreement or of any of City's rights
under this agreement. No delay or omission by City in the exercise
of any right or remedy upon any breach by Covenantor shall impair
such right or remedy or be construed as, a waiver. Further, nothing
in this agreement creates a non- discretionary duty upon the City to
enforce its provisions, nor shall deviation from these terms and
procedures, or failure to enforce its provisions give rise to a private
right of action against City by any third parties.
7.3 Acts Beyond Covenantor's Control. Nothing contained in this
agreement shall be construed to entitle City to bring any action
against Covenantor for any significant injury to or change in the
Creek Corridor resulting from natural causes beyond Covenantor 's
control, including, but not limited to, fire (not caused by
Covenantor), flood, storm, and earth movement, or from any
reasonable or prudent action taken by Covenantor under
emergency conditions to prevent, abate, or mitigate significant
injury to the Creek Corridor or the Real Property resulting from such
OPEN SPACE, CREEK PREVATION AND MAINTENANCE AGRIPENT
Between Covey 3 and City of San Luis Obispo (811 El Capitan)
Page 5 of 5 j
causes. Such excuse from performance by Covenantor shall only
be allowed if such event beyond Covenantor's control has caused a
substantial failure of or degradation of the conservation and
environmental values on the Creek Corridor.
8. The terms contained herein shall be binding on the parties hereto and
their heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this document on the
day and year first above written.
ALL SIGNATURES MUST BE .NOTARIZED
CITY OF SAN LUIS OBISPO
A Municipal Corporation ( "City ")
APPROVED AS TO FORM:
unity Development Director Q,6GVi_Attorney
COVEY 3, A CALIFORNIA GENERAL PARTNERSHIP
(uCovenantorn)
By: ,f o
Matthew Quaglino
....• �•, •:�
for Cdvenantor
OPEN SPACE, CREEK PRE "VATION AND MAINTENANCE AGRENT
Between Covey 3 and City of San Luis Obispo (811 El Capitan)
Page 6 of 6
State of Califomia }
County of San Luis Obispo } j���
On "''- �S�t,IS aa' , 200(q before me, Siva rt{ % �' ' ""7 er _ Notary Public, personally
appeared " (>4) proved to me on
the basis of satisfactory evidenc o be the person whose name is /aresubsedbed to the within instrument
and acknowledged to me that -(e)he/hey executed the same in histherAeir capacity0es), and that by
his /hedtbeis signaturev on the instrument the personoll or the entity upon behalf of which the person acted,
executed the instrument
ILL L. MHY91
Witness my hand and official seal. C0 # 1627351
Mo v /1M•- C�IaMO
sm LW 011110 COUM1r
1W..'. C +�nln�.19 DIIIc6,
Notary Public
Capacity claimed by signer(s):
( ) individual(s) () corporation partnership () attomey- in-fact () political agency
State of Califomia }
County of San Luis Obispo }
On -�- -;k'a" , 20d(q before me, S)t" I L' " --z er, Notary Public, personally
appeared
Pau personally F. o!1 , (j0 personally known to me
to Ile the person whose name is/are subscribed to the within instrument
and acknowledged to me that (s)he/tfaey executed the same in hisibe4th r capacity(ies), and that by
his /hefAbeir signature on the instrument the personpl or the entity upon behalf of which the person acted,
executed the instrument
SHERYL L. MEYER
Witness my hand and official seal. - Condon # 1627581
Notary PAft - CC9Wft
San Lida Ob11po COWIN
MV Comm. E Dec 6,
Notary Public
Capacity claimed by signer(s):
individual(s) () corporation () partnership () attomey -in -fact () political agency
40
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STATE OF CALIFORNIA )
)ss
COUNTY OF SAN LUIS OBISPO )
On September 19, 2006, before me Julie O'Connor, Deputy City Clerk, personally appeared
John Mandeville, Community Development Director, CITY OF SAN LUIS OBISPO, personally
known to me (or p;oyed to to be the person whose
namelKeYare subscribed to the within instrument. and acknowledged to me tha&sheftliey
executed the same ir5Yher /.their authorized capacity(ej, and that by is /their signatureo
on the instrument the person(}, or the entity upon behalf of which the personw acted, executed
the instrument.
WITNESS my hand and official seal.
Signature u.�(a D
Deputy City Clerk
(Seal)
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END OF DOCUMENT