HomeMy WebLinkAboutR-9596 Accepting a Conservation Easement for Lands Adjacent to the San Luis Marketplace Projectr
RESOLUTION NO.9596 (2004 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
ACCEPTING A CONSERVATION EASEMENT FOR LANDS ADJACENT TO THE
SAN LUIS OBISPO MARKETPLACE PROJECT
WHEREAS, Ernest F. Dalidio, Jr., Successor Trustee of Dalidio Family Trust u/t/a dated
October 29, 1987, Ernest Dalidio Jr., Successor Trustee of the Thelma F. Perrozi Trust u/t/a
dated February 7, 1991, and Clara B. Dalidio, Trustee of the Clara B. Dalidio Trust u/t/a dated
January 15, 1991 (collectively, "Grantors") have offered to dedicate a conservation easement
over a portion of their property at 2005 Dalidio Drive (hereinafter the "Property"); and
WHEREAS, this offer of dedication is made pursuant to California Civil Code section
815 et seq. pertaining to conservation easements; and
WHEREAS, the offer of dedication is made in conjunction with the development
application for the San Luis Obispo Marketplace project and related development agreement; and
WHEREAS, the purpose of the easement is to preserve the natural and scenic character
of the Property for public enjoyment, to protect plant and animal habitat in the Creek Area, and
to preserve the Agriculture Area primarily for agricultural, historical, open space and scenic uses
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis
Obispo as follows:
SECTION 1. The Council of the City of San Luis Obispo hereby accepts and gratefully
acknowledges the dedication of the perpetual conservation easement as shown in Exhibit "A",
attached.
SECTION 2. Findings.
1. The conservation easement is consistent with the City's General Plan, specifically:
a. Land Use Element Policy LU 1.13.5 E., Open Space, which states that
approximately one half of the Dalidio annexation land area should be preserved
as open space either through dedication of land or easements.
b. Land Use Element Policy LU 8.8, Dalidio-Madonna-McBride Area, which
states that the "City intends to preserve significant parts of this signature
working agricultural landscape at the southern gateway to San Luis Obispo."
c. Open Space Policy OS 10.2.1 (A), Preserving Agricultural Land, which
provides that the "southern portion of the Dalidio property.... should be
preserved as agriculture."
2. Preservation of the land shown in Exhibit "A" through a conservation easement
will serve the public interest in that a portion of the Property, which exists in an
essentially unimproved state, provides an open view corridor of great natural
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Resolution No. 9596 (2004 SIe es)
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beauty at the entrance of the City of San Luis Obispo, and also represents a
valuable scenic, open space, historical and agricultural resource to the City of San
Luis Obispo.
SECTION 3. The City Council authorizes and directs the Mayor to accept this
conservation easement on behalf of the City of San Luis Obispo.
SECTION 4. Dedication of an open space easement, in substantially the same form as
this conservation easement, was considered by the City Council on July 7, 2004, when it certified
the Final Environmental Impact Report for the San Luis Obispo Marketplace project, pursuant to
the California Environmental Quality Act Guidelines Section 15090.
SECTION 5. This resolution shall take effect immediately or when the possible
suspension, pursuant to Elections Code Section 9237, of the effective date of Resolution No.
9590 (2004 Series) is lifted, whichever is later.
Upon motion of Council Member Ewan, seconded by Vice Mayor Schwartz, and on the
following roll call vote:
AYES Council Member Ewan, Vice Mayor Schwartz and Mayor Romero
NOES: Council Member Mulholland
ABSENT: Council Member Settle
The foregoing resolution was adopted this 3rd day of August, 2004.
Mayor David F. Romero
ATTEST:
Diane Reynold , .M.C.
Deputy City Clerk
APPROVED AS TO FORM:
Jon P. Lowell
City Attorney
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
ANDRE, MORRIS & BUTTERY
P. O. BOX 730
SAN LUIS OBISPO, CA 93406
USE
GRANT OF CONSERVATION EASEMENT
THIS GRANT OF CONSERVATION EASEMENT (the "Grant") is made on
200_(the 'Effective Date") , by ERNEST F. DALIDIO, JR., Successor
Trustee of Dalidio Family Trust u/t/a dated October 29, 1987, ERNEST DALIDIO JR.,
Successor Trustee of the Thelma F. Perrozi Trust u/t/a dated February 7, 1991, and CLARA B.
DALIDIO, Trustee of the Clara B. Dalidio Trust u/t/a dated January 15, 1991 (collectively,
"Grantors"), in favor of the CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter
City (the "City").
RECITALS
A. Grantors are the sole owners of the real property located in the City of San Luis
Obispo, State of California, legally described as approximately 54.7 acres of land near the
intersections of Prado Road, Dalidio Road and Madonna Road, in San Luis Obispo, California,
as fully described in Exhibit A, which is attached to and made a part of this Grant by reference
(the "Property").
B. The Property possesses natural, scenic, open -space, historical, cultural and
agricultural values. In particular, the Property, which exists in an essentially unimproved state,
provides an open view corridor of great natural beauty at the entrance of the City of San Luis
Obispo. The approximately 7-acre portion of the Property along Prefumo Creek, more
specifically described in Exhibit "B" (the "Creek Area"), harbors plant and animal life. The
remaining approximately 47.7 acres of the Property (the "Agricultural Area") is primarily
agricultural land, which presents a valuable scenic, open space, historical and agricultural
resource to the City of San Luis Obispo.
C. The Grantors and San Luis Obispo Marketplace Associates, LLC, a California limited
liability company ("Marketplace") entered into that certain Development Agreement dated
, 2004 with the City providing for the annexation of 131 acres of real property to the City,
with the intent that Grantor and Marketplace would develop approximately 60.1 acres of such
real property for commercial and residential use, that 16.2 acres of such real property would be
utilized for roadways, and that approximately 54.7 acres of such real property would be
preserved in essentially its present scenic beauty and openness, and available for habitat
protection and ongoing agricultural use, through the imposition of a perpetual conservation
CAWINDOWMTFMMalidio Conservation E...1 Agnes W-30-04 DOC
easement with conditions hereinafter expressed. In connection with the Development Agreement
and approval of Marketplace's development project, the City prezoned a portion of the Property
"C/OS," Conservation/Open Space, and a portion "AG," Agriculture. Grantor is willing to grant
this conservation easement as a part of the governmental approval of the commercial
development described above.
D. It is the intention of Grantors to grant to the City a conservation easement on, over
and across the Property pursuant to the California Civil Code Section 815 (the "Act"), whereby
Grantors relinquish certain rights and enter into certain covenants concerning the Property, as
more particularly set forth below.
E. The purposes of this Grant of a conservation easement in the Property are to preserve
the natural, scenic, and open space character of the Property for public enjoyment, to protect
plant and animal habitat in the Creek Area, and to preserve the Agricultural Area primarily for
agricultural, historical, open space and scenic uses (the "Grant Purposes").
F. By accepting this Grant, the City agrees to honor the intentions of Grantors, to act in a
manner consistent with the purposes of this grant, and to preserve and protect in perpetuity the
conservation values of the Property.
AGREEMENT
1. Grant of Easement. In consideration of the above and the mutual covenants, terms,
conditions, and restrictions contained in this grant deed, and pursuant to the laws of California
and in particular to the Act, Grantors voluntarily grant and convey to the City a conservation
easement in the Property in accordance with the terms and conditions set forth herein. The term
of the granted conservation easement shall be perpetual.
2. Prohibited Uses. In order to maintain the existing open space and agricultural
character of the Property, except as provided herein, Grantors and Grantors' successors in interest
will refrain from doing, causing, or permitting any of the following acts with respect to the
Property:
2.1. Constructing improvements on the Property, other than those that exist at
the time of the grant of this Grant, except appurtenances consistent with the open space and
agricultural zoning of the Property and are consistent with the stated purposes, terms, conditions,
restrictions, and covenants of this Grant, with the provisions of the Act, and except those
improvements for which the right is expressly reserved in this Grant or the Act, including paved
pathways and roadways.
2.2. Locating any advertising of any kind or nature on the Property.
2.3. Constructing, placing, or maintaining a parking lot, storage area, or dump
site for the storage or disposal of anything that is not indigenous or natural to the Property or
related to the permitted uses of the Property.
CAWINDOWSI-IENMDalidio Conse ion Eascme t Agmc 07-30-04.DOC
2.4. Constructing, placing, or maintaining overhead pipes, conduits, or wires
above the Property for the purpose of transmitting communications or power.
2.5. Conducting agricultural operations on the Creek Area or making any
recreational use of the Creek Area that significantly interferes with the plant and wildlife
protection values of the Creek Area.
3. Permitted Uses. Subject to applicable law and governmental regulation, Grantors
reserve the right to all uses and occupancy of, and ingress and egress to and from, the Property in
any manner consistent with the stated purposes, terms, conditions, restrictions, and covenants of
this Grant. Without limiting the generality of the foregoing, the following rights are consistent
with the purpose of this Grant and with the Act, and are expressly reserved by Grantors:
3.1. To engage in any and all agricultural uses of the Agricultural Area which
are compatible with and preserve the open space character of the Agricultural Area, including
but not limited to: planting, raising, harvesting, and producing agricultural, aquacultural,
horticultural, and forestry crops and products of every nature and description; the primary
processing, storage, and sale, including direct retail sale to the public, of crops and products
harvested and produced principally on the Agricultural Area; breeding, raising, pasturing, and
grazing cattle and/or horses; and breeding and raising bees, fish, poultry, and other fowl. To use
and store agricultural equipment and products on the Agricultural Area. To install improvements
and structures in support of permitted agricultural uses, fencing, utilities and facilities in
connection with the permitted agricultural uses on the Agricultural Area, and consistent with the
intent of this Grant. To use the Property as a buffer between adjacent urban uses and the
agricultural uses on the Agricultural Area.
3.2. The above reservation notwithstanding, any intensive agricultural uses
that are or may be obnoxious, offensive, or constitute a public nuisance in an urban location, are
prohibited. Similarly, the construction or development of any structure, including but not limited
to dairy barns, poultry barns, or other structures intended for use in conjunction with intensive
agricultural uses that are or may be obnoxious, offensive, or constitute a public nuisance in an
urban location, are prohibited.
3.3. In furtherance of the historical values of the Property, and to provide for
the preservation of the historic "Sulkey Racing Stadium" grandstand structure that was located
on or near the Property approximately 100 years ago and used by residents of the City of San
Luis Obispo for horse racing (the "Grandstand Structure"), nothing in this Grant shall prohibit
installation by Grantors of the Grandstand Structure on the Property, provided the siting and
installation of such structure is in accordance with the Applicable Rules, as defined in that
separate Development Agreement entered into between the parties, dated September _, 2004.
3.4. To use the Property for any and all irrigation, agricultural, agricultural
accessory and currently -existing water resources purposes, including but not limited to water
wells, water lines, water treatment, drainage, and retention, and the construction of
improvements related thereto.
3.5. To engage in any and all passive recreational uses of the Property.
c:kwu vowsY T1.mD.J.ho Cam uwn F•.... m Ag=. 07-M-04.DOC 3
3.6. To install, alter, relocate and maintain surface and subsurface utilities,
utility easements, roads and facilities, to conduct grading and regrading and to install and
maintain water drainage facilities and improvements on the Agricultural Area, consistent with
Grant Purposes.
3.7. To permit the construction of a public road as contemplated in the
Circulation Element of the General Plan of the City of San Luis Obispo.
3.8. To permit the construction of a bicycle path as contemplated in the
Bicycle Transportation Plan (May 2002).
3.9. To use any existing structure on the Property and any structure permitted
to be installed on the Property pursuant to this Grant.
3.10. To maintain the Property and all improvements thereto, including but not
limited to natural resource management, pruning and removal of trees and plants, and preventing
damage from potential natural hazards.
4. Public Facilities. Notwithstanding any provision herein, this Grant shall in no way
restrict the construction of either public service facilities installed for the benefit of the land
which is the subject of this Grant, the roadway and bicycle path identified in Sections 3.7 and 3.8
above, or public service facilities installed pursuant to an authorization by the Public Utilities
Commission.
5. Right to Prevent Prohibited Use. Grantors grant to the City and the City's successors
and assigns, for the term of this Grant, the right, but not the obligation, to prevent or prohibit any
activity that is inconsistent with the stated purposes, terms, conditions, restrictions, or covenants
of this grant and the right to enter the Property for the purpose of removing any building,
structure, improvement, or any material whatsoever constructed, placed, stored, deposited, or
maintained on the Property contrary to any term, condition, restriction, or covenant of this Grant.
6. Monitoring and Enforcement. The purposes, terms, conditions, restrictions, and
covenants in this Grant may be specifically enforced or enjoined by proceedings in the Superior
Court of the State of California, consistent with the terms of Section 5.1086(a) of the California
Government Code. To that end, Grantor specifically permits City to enter upon the Property
upon reasonable notification to Grantor for the purpose of determining that no violations of
purposes, terms, conditions, restrictions or covenants contains within the Grant have occurred.
Such inspections shall be undertaken on a reasonable schedule, but no less than once per year.
7. Costs of Enforcement. If any legal proceeding, arbitration or other action is brought
or threatened for the enforcement or interpretation of this Grant, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of this Grant, and
the prevailing party in any such action(s) should incur any legal fees, including, but not limited
to, attorneys' fees, paralegal fees, expert witness fees and other similar costs, the successful or
prevailing party or parties to any such dispute or action shall be entitled to recover their
reasonable attorneys' fees and additional legal costs incurred, together with any other relief to
which they may otherwise be entitled, as determined by an arbitrator, judge at trial, or upon
appeal or petition.
CMVI.NDOWSWUNU10ulidio Cons .tion ELfi Ut Agttn. 07-30-04.DOC 4
n
8. Acts Beyond Grantors' Control. Nothing contained in this instrument may be
construed to entitle the City to bring any action against Grantors for any injury to or change in
the Property resulting from causes that are beyond Grantors' control, including, but not limited
to, fire, flood, storm, earth movement, or any prudent or reasonable action undertaken by
Grantors in emergency situations to prevent or mitigate significant damage or injury to the
Property resulting from such causes.
9. No Authorization for Public Trespass. The granting of this conservation easement by
this instrument and the acceptance of the easement by the City do not authorize, and are not to be
construed as authorizing, the public or any member of the public to enter, trespass on, or use all
or any portion of the Property, or as granting to the public or any member of the public any
tangible rights in or to the Property. It is understood that the purpose of this grant is solely to
restrict the use of the Property, so that it may be kept as near as possible in its current state.
10. Costs, Taxes, and Liabilities. Grantors retain all responsibility and shall bear all costs
and liabilities of any kind concerning the ownership, operation, and maintenance of the Property,
including maintaining comprehensive liability insurance. Grantors must pay before delinquency
all taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Property by competent authority.
11. Condemnation. If an action in eminent domain for condemnation of any interest in
the Property is filed, or if the Property is acquired for a public improvement by a public agency
or person, these restrictions will be null and void as to the interest in the Property actually
condemned or acquired. However, all conditions, restrictions, and covenants of this grant will be
in effect during the pendency of such an action; if such an action is abandoned before the
recordation of a final order of condemnation, any portion of the Property that is not actually
acquired for public use will once again be subject to all of the terms, conditions, restrictions, and
covenants of this grant. Grantors will be entitled to the amount of compensation as if the
Property had not been burdened by the conservation easement.
12. Extinguishment. If circumstances arise in the future that render the purpose of this
Easement impossible to accomplish, this Grant can only be terminated or extinguished, whether
in whole or in part, by judicial proceedings in a court of competent jurisdiction.
13. Amendment. This conservation easement may not be amended in whole or in part as
to any term, condition, restriction, or covenant without the prior written consent of the Grantors
and the City, as may be permitted by applicable California law.
14. Binding on Successors and Assigns. This Grant, and each and every term, condition,
restriction, and covenant of this grant, is intended for the benefit of the public and is enforceable
pursuant to the provisions of the Act. This Grant binds Grantors and Grantors' successors and
assigns and constitutes a servitude on the Property that runs with the land.
15. Liberal Construction. This Grant is to be liberally construed in favor of the Grant and
the Grant Purposes in order to effectuate the purposes of the easement and the policy and
purpose of the Act. If any provision in this Grant is found to be ambiguous, an interpretation
OW4NDOWSWEMPM.Edla C.n atiaa Eo =nt Agtm. 07-30-04.DOC 5
consistent with the purpose of this easement that would render the provision valid will be
adopted over any interpretation that would render it invalid.
16. Severability. If any provision of this Grant is found to be invalid, or if the application
of this easement to any person or circumstance is disallowed or found to be invalid, the
remainder of the provisions of the grant, or the application of the grant to persons or
circumstances other than those to which its application was disallowed or found invalid, will not
be affected and will remain in full force and effect.
17. Controlling Law. This Grant is to be interpreted, enforced, and performed in
accordance with the laws of the State of California.
18. Entire Agreement. This Grant sets forth the entire agreement of the parties with
respect to the conservation easement and supersedes all previous conversations, negotiations,
understandings, settlements, or agreements related to the conservation easement.
19. Captions. The captions in this Grant have been inserted solely for the purpose of
convenience of reference and are not to be construed as part of this instrument and do not affect
the construction or interpretation of the Grant.
20. Counterparts. The parties may execute this instrument in two or more counterparts,
which shall, collectively, be signed by all parties. Each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart controls.
"Grantor"
ERNEST DALIDIO, JR. Successor Trustee,
of Dalidio Family Trust u/t/a dated October
29, 1987
ERNEST DALIDIO JR., Successor Trustee
of the Thelma F. Perrozi Trust u/t/a dated
February 7, 1991
CLARA B. DALIDIO, Trustee of the Clara
B. Dalidio Trust u/t/a dated January 15, 1991
CAWINDOWSTEMADalidio Coos =ion E==nt Agar. 07-30-04MOC 6
ACCEPTANCE OF CONSERVATION EASEMENT
The CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City accepts
this grant of a conservation easement.
Dated:
"City"
CITY OF SAN LUIS OBISPO, a Municipal Corporation and Charter City
e
Its:
I HEREBY APPROVE the form and legality of the foregoing Agreement this day of
Jonathan Lowell, City Attorney
CAWINDOWSUEMM.Udio Conservation Eo nt Agnn. 07-30-04.DOC 7
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