HomeMy WebLinkAboutD-1908 APN 053-021-031, 2877 South Higuera Recorded 12/22/2011RECORDING REQUESTED BY
First American Title Company
AND WHEN RECORDED MAIL DOCUMENT TO:
City of San Luis Obispo
990 Palm St.
San Luis Obispo, CA 93401
Attn: Neil Havlik
Above This Line for Recorder's Use Only
A.P.N.: 053 - 021 -031 File No.: 4009 - 3914552 (LB)
DEED OF CONSERVATION EASEMENT
Document Title
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SEPARATE PAGE PURSUANT TO GOVT CODE 27361.6
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JULIE RODEW
s"
San Luis Obispo County — Clerk/Recorder
12!2212011
8:00 AM
Recorded at the request of
f First American Title Company
DOC #: 2011064878
Titles: 1
Pages: 15
Fees
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Taxes
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Others
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PAID
$0.00
Above This Line for Recorder's Use Only
A.P.N.: 053 - 021 -031 File No.: 4009 - 3914552 (LB)
DEED OF CONSERVATION EASEMENT
Document Title
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SEPARATE PAGE PURSUANT TO GOVT CODE 27361.6
DEED OF CONSERVATION EASEMENT
T�IS DEED OF COI�,S RATION EASEMENT dated December 13, 2011 by
Katherin Foster and Michae pangler, 644 Marsh Street, San Luis Obispo, CA. 93401
( "Grantor"), in favor of the City of San Luis Obispo, a chartered municipal corporation of
the State of California, having an address at 990 Palm Street, San Luis Obispo, CA
93401 ( "Grantee ". ), is made with respect to the followin
*Trustee of the Katherine L. Foster Family Trust g: dated October 21, 2004
RECITALS
WHEREAS, Grantor is the owner in fee simple of certain real property consisting
of one Assessor's parcel in San Luis Obispo County, California, identified as APN 053-
021 -031, commonly referred to as 2877 South Higuera Street, and shown in Map
Attachment A attached hereto and incorporated by this reference (the "Property "); and
WHEREAS, the Property possesses natural resource values including wildlife
and plant resources, and scenic open space values (collectively, the conservation
values) of great importance to Grantor, the people of the City of San Luis Obispo, and
the people of the State of California; and
WHEREAS, the Property, by virtue of its position, is valuable as a. location for a
variety of communication .functions, including emergency communications, of
importance to the City of San Luis Obispo and to its citizens, and
WHEREAS, certain other portions of the Property, although indicated for urban
development in the General Plan of the City of San Luis Obispo, would be difficult and
environmentally damaging to develop, and
WHEREAS, in light of the above facts, Grantor desires that the conservation
values of the property be preserved by the continuation of currently existing land use
patterns; and
WHEREAS, Grantee is a chartered municipal corporation of the State of
California that is authorized to accept Conservation Easements; and
WHEREAS, Grantee agrees by accepting this grant to honor the intentions of
Grantor stated herein and to preserve and protect in perpetuity the conservation values
of the Property for the benefit of this generation and the generations to come;
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of
California and in particular Sections 815 and 816 of the Civil .Code - Conservation
Easements, Grantor , hereby voluntarily grants and conveys to the Grantee a
Conservation Easement in gross in perpetuity over the Property, in order to preserve
the values.described above.
9 •
1. Purpose. It is the purpose of this Easement to assure that the property,
subject to the existing uses described herein, will be retained forever in its
predominantly natural, scenic, and open space condition and to prevent
any use of the Property that will significantly impair or interfere with the
conservation values of the Property. The conservation values of
particular importance include the grassland communities existing on the
site and their importance to wildlife, Habitat for a population of the
endangered Chorro Creek bog thistle, the scenic quality of the
undeveloped land that is visible from the surrounding community, and the
value of the land as a watershed providing protection from erosion and
protection of water quality.
2. Rights of Grantee. To accomplish the purpose of this Easement, the
following .rights are conveyed to Grantee by this Easement:
(a) To manage for the public benefit all activities incidental to
management of the Property involving public access, safety, and
conservation of natural resources. Specifically, Grantor allows non -
motorized public access to the Property consistent with reasonable rules
and regulations established by Grantee. Grantor also allows Grantee to
undertake minor improvements for the purpose of protection of natural
resources or for public safety.
(b) To enter upon the Easement Area at reasonable times in order to
monitor Grantor's compliance with and otherwise enforce the terms of this
Easement; provided that such entry shall be upon prior reasonable notice
to Grantor, and Grantee shall not unreasonably interfere with Grantor's
use and quiet enjoyment of the property; and
(c) To prevent any activity on or use of the property that is inconsistent
with the purpose of this Easement and to require the restoration of such
areas or features of the property that may be damaged by any
inconsistent activity or use.
3. Prohibited Activities. Any activity on or use of the Easement Area
inconsistent with the purpose of this Easement is prohibited. Without
limiting the generality of the foregoing, the following activities and uses are
prohibited from being established:
(a) Subdivision of the land pursuant to the California Subdivision Map
Act.
(b) Building or erection of structures, except as permitted by the City of
San Luis Obispo for furtherance of the existing communication sites and
uses.
(c) Cutting or removal of trees, except as may be necessary for health of
the remaining trees or for public safety.
(d) Mining or other mineral exploration or exploitation of the property.
(e) The exploration, collection of and delivery of water to any other
property, except as may be permitted by City regulations.
(f) Grading, other than for purposes of providing hiking or riding trails on
the site consistent with generally accepted standards, or for the
reasonable maintenance or improvement of communication site which
currently exists on the Property.
4 Access .Road to Communication Site. Grantee and Grantor agree to
jointly enforce standards upon the condition of, and use of, the road
currently used for access to the several communication sites on the
Property. Such standards may include, but are not limited to: installing
proper grading, surfacing, drainage facilities and undercrossing for natural
waterway flows, and protection of sensitive resources and natural habitat
that exists alongside said access road. Grantee and Grantor further agree
to require users of said road to provide funding for the improvements
necessary to bring the road to acceptable standards and for ongoing
maintenance. The standards to be applied shall be no less than the
design and construction standards utilized by the Natural Resources
Conservation Service, U. S. Department of Agriculture (NRCS- USDA), in
that agency's private landowner assistance programs.
5. Reserved Rights. Grantor reserves to himself, and to his personal
representatives, heirs, successors, and assigns, all rights accruing from
ownership of the Property, including the right to engage in or permit or
invite others to engage in all uses of the property that are not expressly
prohibited herein or are inconsistent with the purpose of this Easement.
6. Baseline Documentation. The parties agree that the specific
conservation values of the property shall be documented in a report ( "the
Baseline Report") that shall be completed within thirty days of the transfer
of this Deed of Conservation Easement, and that both Grantee and
Grantor shall receive true copies of this report. The Report shall consist of
maps, photographs, and other documentation that, the parties must agree
in writing, provide an accurate representation of the Property at the time of
this grant and which is intended to serve as an objective information
baseline for monitoring compliance with the terms of this grant
7. Arbitration. Any controversy arising from this Easement or its breach
shall be determined by three arbitrators appointed as set out below:
(a) Within thirty (30) days after a notice by either party to the other
requesting arbitration and stating the basis of the party's claim, one
arbitrator shall be appointed by each party. Notice of the appointment
shall be given to each party and to the other party when made.
(b) The two arbitrators shall immediately choose a third arbitrator to act
with them. If a party fails to select an arbitrator within the time allowed or
if the two arbitrators fail to select a third arbitrator within 14 days after their
appointment, on application by either party the third arbitrator shall be
promptly appointed by the then presiding judge of the Superior Court of
the State of California in and for the County of San Luis Obispo acting as
an individual within 14 days. The party making the application shall give
the other party 14 days' notice of the application.
The arbitration shall be conducted under the Code of Civil Procedures
(Section 1280- 1294.2). Hearings shall be held in San Luis Obispo
County, California.
Both parties agree by signing this Easement that they are agreeing to
have any dispute arising from the matters included in the Arbitration
provisions of this Easement decided by neutral arbitration as provided by
California law and that each party is giving up any rights to have the
dispute litigated in a court or by a jury trial. By signing this Easement,
each party is giving up their judicial rights to discovery and appeal unless
such rights are specially requested in the notice requesting Arbitration or
as permitted by CCP 1280 et.seq. If either party refuses to submit to
arbitration, they may be compelled to arbitrate under the authority of the
California Code of Civil Procedure.
8. Grantee's Remedies. If Grantee determines that Grantor is in violation of
the terms of this Easement or that a violation is threatened, Grantee shall
give written notice to Grantor of such violation and demand corrective
action sufficient to cure the violation and, where the violation involves
injury to the property resulting from any use or activity inconsistent with
the purpose of this Easement, to restore the portion of the property so
injured. If Grantor fails to cure the violation within a thirty (30) days after
receipt of notice thereof from Grantee, or under circumstances where the
violation cannot reasonably be cured within a thirty (30) -day period, fails to
begin curing such violation within the thirty (30) -day period, or fails to
continue diligently to cure such violation until finally cured, Grantee may
bring an action at law or in equity in a court of competent jurisdiction to
enforce the terms of the Easement, to enjoin the violation, ex parte as
necessary, by temporary or permanent injunction, to recover any damages
to which it may be entitled for violation of the terms of this Easement or
injury to any conservation values protected by this Easement, including
damages for the loss of scenic, aesthetic, or environmental values, and to
require the restoration of the Property to the condition that existed prior to
any such injury. Without limiting Grantor's liability therefore, Grantee, in
its sole discretion, may apply any damages recovered to the cost of
undertaking any correction action on the Property. If Grantee, in its sole
discretion, determines that circumstances require immediate action to
prevent or mitigate significant damage to the conservation values of the
Property, Grantee may pursue its remedies under this Paragraph without
prior notice to Grantor or without waiting for the period provided for cure to
expire. Grantee's rights under this Paragraph apply equally in the event of
either actual or threatened violation of the terms of this Easement, and
Grantor agrees that Grantee's remedies at law for any violation of the
terms of this Easement are inadequate and that Grantee shall be entitled
to the injunctive relief described in this Paragraph, both prohibitive and
mandatory, in addition to such other relief to which Grantee may be
entitled, including specific performance of the terms of this Easement,
without the necessary of proving either actual damages or the inadequacy
of otherwise available legal remedies. Grantee's remedies described in
this Paragraph shall be cumulative and shall be in addition to all remedies
now or hereafter existing at law or in equity.
9. Costs of Enforcement. Any costs incurred . by Grantee in enforcing the
terms of this Easement against Grantor, including, without limitation, costs
of suit and attorneys' fees, and any costs of restoration necessitated by
Grantor's violation of the terms of this, Easement shall be borne by
Grantor. If Grantor prevails in any action to enforce the terms of this
Easement, Grantor's costs of suit, including, without limitation, attorneys'
fee, shall be borne by Grantee. If Grantee prevails in any action to
enforce the terms of this Easement, Grantee's costs of suit, including
Without limitation, attorneys' fees, shall be borne by Grantor.
10. Grantee's Discretion. Enforcement of the terms of this Easement shall be
at the discretion of Grantee, and any forbearance by Grantee to exercise
its rights under this Easement in the event of any breach of any term of
this Easement by Grantor shall not be deemed or construed to be a waiver
by Grantee of such term or of any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right
or remedy upon any beach by Grantor shall impair such right or remedy or
be construed as a waiver.
11. Waiver of Certain Defenses. Grantor and Grantee hereby mutually waive
any defense of laches, estoppel, or prescription.
12. Acts Beyond Grantor's Control. Nothing contained in this Easement shall
be construed to entitle Grantee to bring any action against Grantor for any
injury to or change in the Property resulting from causes beyond Grantor's
control, including, without limitation, fire, flood, storm, and earth
movement, or from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Property
resulting from such causes.
13. No Undue Expense to Grantor. Under the express terms of this Deed of
Conservation Easement, Grantor shall not incur any expense with
maintaining the property as open space, except for costs of necessary
annual fire hazard abatement in accordance with City fire regulations and
costs of maintenance of fencing currently used to contain livestock on the
Property. All other expenses associated with specific conservation efforts
Grantee determines to be necessary to preserve the open space
easement shall be borne by Grantee, unless and to the extent Grantor is
in violation of this Deed of Conservation Easement, in which case
provisions herein shall control.
14. Taxes. Grantor shall pay all taxes, assessments, fees, and charges of
whatever description levied on or assessed against the property by
competent authority (collectively "taxes "), including any taxes imposed
upon, or incurred as a result of, this Easement, and shall furnish Grantee
with satisfactory evidence of payment upon request subject to the right to
contest any such taxes..
15. Hold Harmless. Grantor shall hold harmless, indemnify, and defend
Grantee and its directors, officers, employees, agents, and contractors
and their heirs, personal representatives, successors and assigns of each
of them (collectively "Indemnified Parties ") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, including, without limitation, reasonable
attorney's fees, arising from or in any way connected with: (1) injury to or
death of any person; (2) physical damage to any property, resulting from
any act, omission, condition, or other matter related to or occurring on or
about the Property, regardless of cause, unless due to the sole negligence
of any of the Indemnified parties; (3) the obligations specified in paragraph
12; or (4) the existence of this Easement.
Grantee shall hold harmless, indemnify, and defend Grantor and its
directors, officers, employees, agents, and contractors and their heirs,
personal representatives, successors and assigns of each of them
(collectively "Indemnified Parties ") from and against all liabilities, penalties,
costs, losses, damages, expenses, causes of action, claims, demands, or
judgments, including, without limitation, reasonable attorney's fees, arising
from or in any way connected with: (1) injury to or death of any person;
(2) physical damage to any property, resulting from any act, omission,
condition, or other matter related to or occurring on or about the Property,
regardless of cause, unless due to the sole negligence of any of the
0
Indemnified parties; (3) the obligations specified in paragraph 12; or (4)
the existence of this Easement
16. Extinguishment. If circumstances arise in the future such as render the
purpose of this Easement impossible to accomplish, this Easement can
only be terminated or extinguished, whether in whole or in part, by judicial
proceedings in a court of competent jurisdiction, and the amount of the
proceeds (if any) to which Grantee shall be entitled, after the satisfaction
or prior claims, from any sale, exchange, or involuntary conversion of all or
any portion of the Property subsequent to such termination or
extinguishment, shall be determined as provided by California law.
17. Condemnation. If the Easement is taken, in whole or in part, by exercise
of the power of eminent domain, Grantee shall be entitled to
compensation in accordance with applicable law.
18. Assignment. This Easement is transferable, but Grantee may assign its
rights and obligations under this Easement only to an organization that is
a qualified organization at the time of transfer under Section 170(h) of the
Internal Revenue Code of 1954, as amended (or any successor provision
then applicable), and the applicable regulations promulgated thereunder,
and authorized to acquire and hold conservation easements under state
statue (or any successor provision then applicable).
19. Subsequent Transfers. Grantor agrees to incorporate the terms of this
Easement in any deed or other legal instrument by which they divest
themselves of any interest in all or a portion of the Property, including,
without limitation, a leasehold interest. Grantor further agrees to give
written notice to Grantee of the transfer of any interest at least twenty (20)
days prior to the date of such transfer. The failure of Grantor to perform
any act required by this paragraph shall not impair the validity of this
Easement or limit its enforceability in any way.
20. Certificates. Upon request by Grantor, Grantee shall within twenty (20)
days execute and deliver to Grantor any document, including an estoppel
certificate, which certifies Grantor's compliance with any obligation of
Grantor contained in this Easement and otherwise evidences the status of
this Easement as may be requested by Grantor.
21. Notices. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other
shall be in writing and either served personally or sent by first class mail,
postage prepaid, addressed as follows:
9 •
To Grantor:
To Grantee:
Michael Spangler and Katherine Foster
644 Marsh Street
San Luis Obispo, CA. 93401
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
or to such other address as either party from time to time shall designate
by written notice to the other.
21. Recordation. Grantee shall record this instrument in a timely fashion in
the official records of San Luis Obispo County, California, and may re-
record it at any time as may be required to preserve its rights in this
Easement.
22. Monitoring. The Grantee or its designee shall conduct annual monitoring
of the conservation values within the Property. Such monitoring shall be
done in accordance with a systematic and routine checklist designed to
facilitate the identification of trends and changes of the conservation
values over time. A copy of each monitoring report shall be given to the
Grantor.
23. General Provisions.
(a) Controlling Law. The interpretation and performance of this
Easement shall be government by the laws of the State of California.
(b) Liberal Construction. Any general rule of construction to the
contrary notwithstanding, this Easement shall be liberally construed in
favor of the grant to effect the purpose of this Easement and the policy
and purpose of the Conservation Act of 1979 as described in Sections 815
through 816 of the California Civil Code. If any provision in this instrument
is found to be ambiguous, an interpretation consistent with the purpose of
this Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid.
(c) Severabilitv. If any provision of this Easement, or the application
thereof to any person or circumstance, is found to be invalid, the
remainder of the provisions of this Easement, or the application of such
provision to persons or circumstances other than those as to which it is
found to be invalid, as the case may be, shall not be affected thereby.
(d) Entire Agrbemen t. This instrument sets forth the entire agreement
of the parties with respect. to the Easement and superseded all prior
discussions, negotiations, understandings, or agreements relating to the
Easement, all of-which are merged herein.
(e) Successors The covenants, terms, conditions, and restrictions of
this Easement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective personal representatives, heirs,
successors, and assigns and shall continue as a servitude running
perpetually With the Property.
(f) Captions., The captions in this .instrument have been inserted
solely for convenience of reference and are not a part of this instrument
and shall have no effect upon construction or interpretation.
(g) Counterparts. The parties, may execute this instrument in two or
more counterparts, which shall, in the aggregate, be signed by both
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 shall be controlling. .
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever
IN WITNESS WHEREOF Grantor has set their hand on the day and year first
written above.
GRANTOR: -
vrg atherine Foster'
Michael. Ro ert Spangler
K therine L. Fos er, Trustee of the
Katherine L. Foster Family Trust
dated October 21, 2004
1
STATE OF CALIFORNIA }
} ss.
COUNTY OF SAN LUIS OBISPO }
On _DECEMBER 20, 2011 _, before me, L. A. BERTRAND, a Notary Public, personally appeared KATHERINE L.
FOSTER, 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 authori zed
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
Notary Name: L. A. BERTRAND
Notary Phone Number: 805 -786 -2038
Notary Registration Number: 1861726
Commission Expiration Date: 946 -2013
County of Principal Place of Business San Luis Obispo
X16 Vision Form SAS03CA Rev. 06/23/99
L. A. BERTRAND
Commission # 1861726
a lip Notary Public - California i
Z D
Z San Luis Obispo County
My Comm. Expires Sep 16, 2013
STATE OF CALIFORNIA }
}
COUNTY OR -5241 (U/-'5. Ob& ;P c� ss. }
On s� ��- ���/ bore me, a Notary Public,
personally appeared I t4ki e-1 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
KYLE M. SMITH
Commission # 1866272
i .@My Notary Public - California
Z San Luis Obispo County
Comm. Expires Sep 26, 2013
SM Vision Form SAS03CA Rev. 06/23/99
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LEGAL DESCRIPTION
•
Real property in the City of San Luis Obispo, County of San Luis Obispo, State of California,
described as follows:
LOT B OF TRACT NO. 744, VILLA FONTANA, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF
SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO MAP RECORDED APRIL 23, 1980 IN
BOOK 10 PAGE 35 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 053 - 021 -031
15-
CERTIFICATE OF ACCEPTANCE
* * * * * * * * * * **
THIS IS TO CERTIFY that the interest in real property conveyed by DEED OF
CONSERVATION, EASEMENT dated December 13, 2011, by and between Katherine Foster
and Michael Spangler,.( "Grantor"), and the CITY OF SAN LUIS OBISPO, a municipal
corporation ( "Grantee "), is hereby accepted by the undersigned officer on behalf of the City
Council pursuant to authority conferred by Resolution No. 5370 (1984 Series) recorded
June 15, 1984, in Volume 2604, Official Records, Page 878, San Luis Obispo County,
California, and Grantor hereby consents to recordation thereof by its duly authorized officer
or his agent.
Date: 12 - 0r- 2.0 11
ATTEST:
:!! 7/wil
CITY OF SAN LUIS OBISPO
by:
J &Mowell Marx, Mayor
END OF DOCUMENT