HomeMy WebLinkAboutPrivate Drainage Improvement Encroachment Agreement Doc. No. 2017022373RECORDING REQUESTED BY AND
WHEN RECORDED RETURN "I'O:
City of San Luis Obispo
2017022373
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
Community Development Department Total: T)29.00
919 l Street
San Luis Obispo, CA 93401-3249
PRIVATE DRAINAGE IMPROVEMENT ENCROACHMENT AGREEM ENT
r >"
This Private Drainage improvement Encroachment Agreepient, ("Agrccmellf), is made
and entered into this /S� day of M04�( / , 20n, by and between
the CI'fY DE SAN LUIS OBISPO, a municipal corporation and charter city ("Grantor"
or "City") and Margarita Ranch SLO LLC, a California limited liability'("Grantee").
1
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 "Subdiyision"); and
WHEREAS, there are certain private stormwater control measures required to meet
Regional Water Quality Control Board- regdir0ments .that are proposed to be constructed
in the public street right-of-way within TTact-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 ae'collecWWyreferred to as "Drainage Improvements";
and �I
WHEREAS, Grantee, is required to maintain the stormwater control measures; and
WHEREAS, both Grantor aad �Qrantee desire to establish (lie terms and conditions for
Grantee's use of the public street -right-of-way for the Drainage Improvements; and
WHEREAS, ,sut5)ect-t.&.the'1erms 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
--ofthe mutual promises, covenants and the conditions herein contained, the parties agree
as 150110vJS:.
1. Recilals. The above recitals are true and correct and are incorporated herein
by this reference.
?. 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
DOC #2017022373 Page 2 of 6
occupancy does not unreasonably interfere with the rights granted to Grantee
in this Agreement.
3 Term of Agreemenl. 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 perniit to allow
an encroachment into the public street right-of-way to access, construct,
maintain, repair and replace the Drainage improvements within the right-br-
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 fat all times. Orantee 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 by given by City at any time at its sole option
and discretion. If Grantee does not remove-'ihe encroachment authorized
herein when requested by City, City, may prddeed 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 aiiy(adjacerfi real or personal property.
S. Rights Personal to Grant& -Grantor and Grantee acknowledge and agree that
the rights, and. obligations 'grtjnted to Grantee pursuant to this Agreement are
personojh nature and ntay.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
viotatiQ'n 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 iniured. If Grantee fails to
cure the violation within thirty (30) days after receipt of notice thereof fi-om
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
DOC #2017022373 Page 3 of 6
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, i�i
its sole discretion, may apply any damages recovered to ll: 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, pity shall provide
Grantee with notice (verbal or written) of ,drvy stfch breach. The' remedies
permitted or available pursuant to the provisions of thin Agreement shall be
cumulative and in addition to any rights or 'remedies available at law or in
equity.
7. lndemnificulion. To the fullest ext4nt 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 rehted to Grarftee's rights, obligations and
performance under this,. AgrieI� y1t including, but not limited to, the
maintenance and repair for failuee to maintain and repair the Drainage
Improvements, Grantee's access,atid_use of the street right-of-way, and the
authorized or unauthorized acce§s,or use of the street right-of-way or
Drainage Improvements by third riat6es.
8. Miscellaneou.4.
a. If gtny' provision is Found to be ambiguous. an interpretation consistent
with the.
purposes of t>piis Agreement that would render the provision valid
shall be.favored over any interpretation that would render it invalid.
b. If a-cotrrt 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 awlitation of any provision of this Agreement to a person or
i' circumstance, such action shall not affect the application of the provision
to any other persons or circumstances.
't. 'l'he 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
DOC #2017022373 Page 4 of 6
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 st-i`ortli:..
e. This Agreement shall be construed and enforced in accordance wiili the
laws of the State of California.
f. All notices, demands or other communications required or perdiitted to 'be
given hereunder shall be in writing and,afiy and all such items shall be
deemed to have been duly delivered upon personal delivery; or as of the
immediately following business day aftet 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
Attu: Director of Public Works
;919 Palm Street
San Luis Obispo, CA 93401
With copy to:
Ifrto'Grantee
City of San Luis Obispo
Attn: City Attorney
990 Palm Street
San Luis Obispo, CA 93401
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
i
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.
M
DOC #2017022373 Page 5 of 6
I,. 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-n6 r-
be
employed in the interpretation of this Agreement or any exhibits dr
amendments hereto.
I
i. This Agreement may be executed in counterparts, all of which togethcr
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
Matt Horn, City Engineer
City of San Luis Obispo
(Authorization — Resolution No. 3997, 1979 Series)
GRANTEE: ,
Margarita Ranch SLO LLC, 1
a California lin i d liability
By
Dens oresco, Vice Pr
5
DOC #2017022373 Page 6 of 6
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 thatdocumer►t,
State of Cip liforn
County of f2L1LLI&
On %�e�! /,5' 2017before me, Di � /4)kbuil,2,14otary Public
personally appeared _,t)ejtD/�5 /! )are who proved to me
on the basis of satisfactory evidence to be the person whose name Ss subscribed to the
within instrument and acknowledged to me that ie xeEuted the same in lor
capacity, and that by its signature on the instrument the }person or_ -the. entity upon
behalf of which the person acted, executed the instrurnen},
�1
t
I certify under PLNAL"ITY Of' P111ZJUIZY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS NESS my hand al d official seal. OIANE L. KELLEMM
Conuulssion 0 2060280
NMry Pubk • CaliftiNa
San Luis Obispo County
Signature of Notary ublic MY c mr. uss o 2 17
A Notary Public or other officer completing this cerfificate verifies only the identity of the individual who signed the
document to which this certificate is attached and not tho truthfulness, accuracy, or validity of that document.
State of Qg ji ( rnfq. ^} ,
County of J_gftAMjf �Wfa. }
t )11_ /hAY z2 20L1 before me, LCK , Notary Public,
personally appeared, An A 11 LjAg t/ who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument -arid, acknowledged to me that (s)he executed the same 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.
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 of notary Public Place Lary Seal Above
DIANE DOSTALEK
Conuttlssbn 2138341.
Notary Public - CnIftr s
San Luis Obispo County _
r
END OF DOCUMENT
Resolution No. 10514
Adopted 5/16/2016
Resolution No. 10514 1Require
Adopted 8/16/2016
Included in
Amendment to
item
Item
Item #
Tasks
Current CC&Rs
CC&RS
Comments
Cannot be added without Owner
CURS approved by City Attorney &
Are they already
What if items are
Yes: 67% Owner
approval unless civil or local code
1
Community Development Director
66
approved?
left out?
and 51% Lenders
mandate it.
#63 to #67 CC&Rs sections of
Final Subdivision incorporate storm water
Does this cover the
Resolution do not address BMP
2
BMPs for treatment of storm water runoff
22
berms?
No
Yes, if berms.
REQMTS.
City owned berms along street under
If not common control, private
common control: require City Council
Currently, not under
owners would maintain pursuant to
3
approval
66.c
common control
No
Yes
Municipal Code 12.08.160
Purple water valves and lines in
Berms in front of
place for Common Lots: 80, 81, 82,
Owner Lots are
83, 84 and berms along Lots 81 and
Purple water (reclaimed) hook up REQMT to
hooked up to private
84. None in berms in front of Owner
be common control Agreement with City
39
meters.
No
Yes
Lots.
Civil Engineer
performs quality
To date: this has not been done. If
Water quality testing and certification
Municipal Code
tests and
not Common, private owner
REQMTS.
12.08.160
certification
No
Yes
responsibility for berms on Lots..
To date: this has not been done. If
Recorded maintenance contract with HOA in
REQ. purple water
not Common, private owner
CC&Rs if common control
39
lines installed?
No
Yes
responsibility.
If common, HOA and incorporated
Recorded maintenance contract with private
Municipal Code
To date, there is
into CC&Rs with Owner approval. If
owners
12.08.160
none.
N/A
N/A
not, with private owner.
Drainage Lots 19 to 57, north side backing
The CC&Rs are silent about these
4
up to hills
66.f
Weed maintenance
HOA: No
Yes
REQMTS. No authority to manage.
Cement V-Shape Swales
HOA Responsible
Maintain
HOA: No
?
City Attorney final approval?
Fire Management Plan
87
?
No
Yes
CC&Rs should include plan.
5/20/19