HomeMy WebLinkAboutD-971 Santa Rosa Street Widening Recorded 12/22/1976ECORDING REQUESTED BY INSURANCE CUBBPANi(.
CITY OF SAN LUIS OBISPU
P.O. Box 321 _
San Luis Obispo, CA 93406
AND WHEN RECORDED MAIL TO
Name Dept. of Transportation
Street P.. 0. Box L
4ddress San Luis Obispo, CA 93406
City a
state I -- - -- - --
055999119 A0�8A8 STRFCR
DOC. No. - 52564
OFFICIAL RECORDt
SAN LUIS OBISPO CO., CALF
DEC221976
WILLIAM E. ZIMARIK
COUNTY RECORDER
TIME -8 p ® A A
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MAIL TAX STATEMENTS TO
Name I G t' �sSTATE > >lA naU r�t ! Idya
S s FREE,
Thi EE,m ='
Street presente d
f oIF
,ddress Pursuant t o Go Jt
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City s 1�T_ 'I'.�l` OF T
03
State 'T% r�T71.T' '
/d RANSPORTATION
R/W 05- SLO -O -SLO —�-
Parcel 180 -5 Grant Deed AFFIX I.R.S. $------------------- ------------- - - - - -- ABOVE
THIS FORM FURNISHED BY TITLE INSURANCE AND TRUST COMPANY
TO 405 C (8.67) -
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Lilly Lanotti
hereby GRANT(S) to the City of San Luis Obispo, a municipal cohporat i on,
the following described real property in the City Of San Luis Obispo,
County of San Luis Obispo , State of California:
That portion of Lot I in Block 31 of the City of San Luis Obispo, in the County of
San Luis Obispo, described as follows:
BEGINNING at a point on the easterly line of Santa Rosa Street, in said City, said
point being distant 40.00 feet southeasterly from the southeasterly corner of Palm
and Santa Rosa Streets; thence southeasterly along said easterly line of Santa Rosa
Street, a distance of 40.00 feet to a point; thence at right angles, northeasterly
and parallel with the southerly line of Palm Street a distance of 10.00 feet to a
point; thence at right angles, northwesterly and parallel with the easterly line
of Santa Rosa Street a distance of 40.00 feet to a point; thence at right angles,
southwesterly and parallel with the southerly line of Palm Street a distance of
10.00 feet to the easterly line of Santa Rosa Street and the POINT OF BEC31NNING.
Signed and delivered in the
nH-. e of
rvin
Dated r
sT, eggs. 61735 -500 12 -63 2500 OSP
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TATS OF CALIFORNIA,_ -_- — - - - - - —S an — Luis — O b — 1 S�O – .
o ss.
FORM HR /W -5 (REV.
On this--__-- in the year one thousand nine hundred and S2VeI1tj�- six____,
lefore me, the undersigned, a Notary Public 'in and for said County and State, residing therein, duly commissioned and sworn, personally appeared
R. H. Tarvin ----- ------ - ------------ - --- ---- --------- - -- -- -------------------- - - - - --
'mown to me to be the person whose name is subscribed to the within instrument as a subscribing witness thereto, who, being by me duly sworn deposed
end said: that he resides in the___ -__ — ___ —_ -- County of - - -_. Sdn_ L111S- __Ob1S�0 -__ ------ _ --- --------- State of California;
'hat he was present and saw - - - -- L i 1 lv Lanotti -- ------- - - - - -- --------------------- - ----- ----------------------------------
personally known to him to be the person— described in and whose name ------------------ 1_$_- _____________--- -__ --------- __subscribed to the within instrument,
execute the same; that he, want, subscribed his name as a witness thereto.
WITN>:ss my hand and opicial seal.
T. EDINA L. SCHOPP }
NOI ARY FiJaUC i
SAN LUIS OII.SPO COUNTY
My commission ezpira
M
URI
y Commission Expires January 13, 1980
EDNA L. SCHOPP
Name (Typed or Printed) "-
Notary Public in and for said County and State _ ;
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At
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY that the interest in real property conveyed
by the Grant Deed dated August 12,
19 76 , from Lilly Lanotti
to the CITY OF SAN LUIS OBISPO, a Political Corporation, is
hereby accepted by the undersigned officer on behalf of the City
Council pursuant to authority conferred by Resolution No. 549
(1959 Series), recorded Iv_ay 26, 1959, in Volume 1002, Official
I',ecords, Page 292, ':;'an Luis Obispo County, California, and the
Grantee consents to recordation thereof by its duly authorized
officer or his agent.
Date; October 4_ 1976
CITY OF SAN LUIS OBISPO
By
ATTEST:_,
2
,� �
ty trier
END OF DOCUMENT �VOL 1943 PALL; ?73
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_01/
,/o Meva' Silacci - - Z.'143 . 0 .Garden f i
' San Luis Obispo, California
August 12 1976
Lilly Lanotti
(Grantor)
Document No.
Dist. County P.M. R W E.A.
05 - SLO - an - 13050.9
�reet
RIGHT OF WAY MMTRArT - rTTv
180 -5
APPROVED BY DISTRICT.5
Dated df- L%1 %r
H. L. entzin r
Deputy District Director
Right of Way'
rrnm
in the form of a Grant Deed
covering the property particularly described therein has been executed and
delivered to R. H. Tarvin Right of Way Agent for the State
of California, acting,on behalf of the City of San Luis Obispo.
In consideration of which, and the other considerations hereinafter set
forth, it is mutually agreed as follows:
1. The parties have herein set forth the whole of their agreement. The
performance of this agreement constitutes the entire consideration for said
document and shall relieve the City of San Luis Obispo of all further obli-
gation or claims on this account, or'on account of the location, grade or
construction of the proposed public improvement.
2. The City of San Luis Obispo shall:
(A) Pay'the undersigned grantor(s) the sum of $2,500.00 for
the property or interest conveyed by above document(s) when
title to said property vests in the City of San Luis Obispo
free and clear of all liens, encumbrances, assessments, ease-
ments and leases (recorded and /or unrecorded), and taxes,
except:
a. Taxes for the fiscal year in which this escrow closes
which shall be cleared and paid in the manner required by
Section 4986 of the Revenue and Taxation Code, if unpaid
at the close of escrow.
b. Covenants, conditions, restrictions and.reservations of
record, or contained in the above referenced document.
C. Easements or rights of way over said land for public or
quasi- public utility or public street purposes, if any.
d. Any lien for inheritance taxes due the State of California
or estate taxes due the United States of America by reason
of the death of Aurelio Lanotti on'July 18, 1975.
(B) Pay all escrow and recording fees incurred in this trans-
action, and if title insurance is desired by the City of
San Luis Obispo, the premium charged therefor.
(C) Have the authority to deduct and pay from the amount shown
in Clause 2(A) above, any amount necessary to satisfy any
delinquent taxes due in any fiscal year except the fiscal
year in which this escrow closes, together with penalties
and interest thereon, and /or delinquent or nondelinquent
assessments or bonds except those which title is to be
taken subject to in accordance with the terms of this
contract.
3. Any or all moneys payable under this contract, up to and inclu-
ding the total amount of unpaid principal and interest on note(s)
secured by mortgage(s) .or deed(s) of .trust, if any, and all other
amounts due and payable in accordance with the terms and conditions
of said trust deed(s) or mortgage(s) shall, upon demand(s) be made
payable to the mortgagee(s) or beneficiary(s) entitled thereunder;
said mortgagee(s) or beneficiary(s) to furnish grantor(s) with good
and sufficient receipt showing said moneys credited against the
indebtedness secured by said mortgage(s) or deed(s)'of trust.
4. The grantor(s) shall retain possession of the property conveyed.
up to and including the date of recording of the deed conveying
title to the City of San Luis Obispo upon compliance by the grantor(s)
with the conditions of this contract. All rents collected by
grantor(s) applicable to any period thereafter shall be paid to the
City of San Luis Obispo. Either party hereto collecting rents to
which the other party is entitled shall forthwith pay such amount to
the other as is necessary to comply with the provisions of this clause..
S. Grantor(s) warrant(s) that there are no oral or written leases on
all or any portion of the property exceeding a period of one month,
and the grantor(s) further agree(s) to hold the City of San Luis Obispo
harmless and reimburse the City of San Luis Obispo for any and all of
its losses and expenses occasioned by reason of any lease of said
property held by any tenant of grantor(s) for a period exceeding one
month.
6. The undersigned grantor(s) hereby agree(s) and consent(s) to the
dismissal of any eminent domain action in the Superior Court wherein
the herein described land is included and also waives any and all
claims to any,money that may now be on deposit in said action.
- 2 -
7. At no expense to grantor and at the time of performing the work
of improving Santa Rosa Street between Monterey and Walnut Streets,
the City of San Luis Obispo or its contractor shall perform, but not
be limited to, the following work which is also partially depicted
on the sketches attached hereto and made a part hereof.
(A) Remove existing front concrete steps and reconstruct
new concrete steps.
(B) Construct a concrete walk landing area at the base
of the new porch steps leading directly to the porch.
(C) Restore the porch, as necessary, with front of porch
partially enclosed by means of a metal hand railing
to a height of approximately four (4) feet,, including
the installation of handrails along both sides of the
porch steps and additional porch support footings, as
may be necessary.
(D) Construct standard concrete block retaining wall two
and one -half by four (22'x4') feet high along the
frontage of and on grantor's remaining property.
(E) Plant.new landscaping in remaining front yard area in
the vicinity of work area with an appropriate ground
cover, including a low growing ornamental hedge along
the remainder property frontage.
8. It is understood and agreed by and between the parties hereto
that included in the amount payable under Clause 2(A) herein is
payment in full to compensate grantor for the expense in pur-
chasing and installing,sound reducing drapes for the front bedroom
window.
9. This transaction will be handled through an escrow with Safeco
Title Insurance Company, P. O. Box 1145, San Luis Obispo, California
94506; their No. 106720.
10. Permission is hereby granted the City of .San Luis Obispo or its
authorized agent to'enter upon grantor's land, where necessary, for
the purpose of performing the work as mentioned in Clauses 7(A)
through (E) above.
Grantor understands and agrees that, upon completion of the
work described in Clause 7(A) through (E) of this contract, said
reconstructed portion of the concrete porch., retaining wall, and ,
landscaping shall be considered as the sole property of the grantor,
the maintenance and repair of said property to be that of the grantor.
- 3 -
7i
11. It is understood and agreed that-all utility services affected
by the City of San Luis Obispo's proposed construction which are
not compensated for under the amount provided in Clause 2(A) above,
and specifically designated as having been provided for by the
terms of this contract, shall be reconnected by the City or its
contractor at no expense to the grantor. The City or its agent is
.hereby granted the right to enter upon the remaining property of
the grantor for the purpose of performing said work.
- 4 -
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IN WITNESS WHEREOF, the parties have executed this agreement the
day and year first above written.
Recom�y for pproval:
RRig t
h 'of v y Agen
District Right of Way Agent
Acquisition Branch
CITY OF SAN LUIS OBISPO
By
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STATvE OF CALIFORNIA= BUSINESS AND TRA ATION AGENCY
•. „DEPARTMENT OF TRANSPOR ATION
P.O. BOX L, SAN LUIS OBISPO 93406
TELEPHONE (805) 549-3111
EDMUND G. BROWN 1R., Governor
January 11,, 1977
R/W 05 -SLO -Santa Rosa Street
Parcel No. 180 -5 (Lanotti)
05430 - 130502
City of San Luis Obispo
P. O. Box 321
San Luis Obispo, California 93406
Attention Mr. Wayne Peterson
City Engineer,
Gentlemen:
Returned for your files for the above referenced .
parcel are the following documents: the original,
fully executed Right of Way Contract and the
recorded Grant Deed.
Today, we requested cancellation of city and
county taxes on this property.
S c. lye
D. A. Friend
District Right of Way.Agent
Acquisition.Branch
Enclosures (2)
CO
T _
N SAN �U s 0OT : ti
CIIy EtiCl�fR �:�N%
j
r DISTRICTTAPPRC-!-r-"1) PARCEL COUNT—
APPRAISAL STATE of CALIFORNIA INTERSTATE
TRANSPORTATION AGENCY
DEPARTMENT OF TRANSPORTATION
ReportNo.....1 ....................... ....................X..........
Yes No
4 -14 MEMORANDUM OF SETTLEMENT Project No.
Date............... ................-.....76 ..........
Expenditure
( t District [ Z_i Parcel No. �3_} Ceunty [q Rte. P.M. F5.] Authorization [ -6� Date
Santa --
05 180 -5 SLO Rosa St. M- �N540ffi AUG 2 7 1976
To: E. F. GREGORY District Director of Transportation
From: R. H. Tarvin. [5:] Right of Way Agent ra ] Cost Center [9� Acquired For:
430 1. Normal R/W X__
SUBJECT: Acquisition of property from Acquisition on Behalf 2. Chopt. 20
Lilly Lanotti
of the City of San Luis 3. Hardship _
Obispo 4. Marl /Disp.
c/o Meva Silacci
5. Other Sites
1430 Garden 6. D.W.R.
San Luis Obispo, CA 93401 7. D.G.S.
Date of Transaction: 8 -12 -76 8. 0th. Agency
Address of properly 948 Santa Rosa Street, San Luis Obispo
[ioj Occupant _.__ X __._.. Absentee _- ___.___ [ii] No. of Fee Interests ---- l..____ f.121 No. of Lease Interests
DOCUMENTS IN FI LE
(X) R,W Contract ( ) Register No.
(4 Grant Deed (X) Parcel Diary
( ) Quitclaim Deed (x)Appraisal with photo
( ) Easement Deed (X) Copy of Affidavit - Death of Joint .Tenant
( Title Report ( )
( Map
1. TYPE. OF HIGHWAY: [131 ( ) Freeway ( ) Expressway ( ) Conventional (X) City Street
Proposed Advertising Date 4 -77
Construction Project Santa Rosa Street between Walnut and Monterey
Street in San Luis Obispo
2. ACCESS:
( } .Acquired in accordance with the appraisal. Frontage Road .....,.._ N/A
( ) None — Entire Acquisition
Yes No
(A) Other: Explain Acquired for City Street widening purposes
3. DEED CLAUSES:
( ) Dcscriplion checked against area being acquired. Provided and prepared by City of San
Deed Form No. RW- Title Insurance and Trust Co. Form Luis Obispo
Standard Clauses: None
Special Clauses: None
Do the subject exceptions and, "or reservations have material effect on the market
value of the property being acquired? ......... X.._....
Yes No
H.R /W -60 (REV. 2.68) - Q osv
971 ��
Dist. Co. Rte. P.M..
05 SLO Santa Rosa St.
4. DESCRIPTION OF PROPERTY ACQUIRED: Parcel No.
LAND: 180 -5
is Area Calculated by Acre Sq. Ft. X i t51 Total Take Area N/A
[] Partial Take Area 400 S.F. 121 Remainder Area 3,240 S.F. _
te_,Area in R/W _ 400 S.F. (19 Area in Excess None
Other Area (Explain) None
[] Reg'ion: Rural Urban . X
Special
[] Best Use: Agri. Comm. Indust. Resid. X Purpose
[z] Character: Improved X _ Unimproved Multiple
IMPROVEMENTS: za All Part None
_Non- salvable
0
(See Attached Sheet No. J
5. CONSTRUCTION CONTRACT OBLIGATIONS: ( ) None
Clause No Appraisal Settlement
See attached sheet 2A:
(See Explanation — Item 8 — for variation from appraisal)
H_Riw 60
2
3
a
5. CONSTRUCTION CONTRACT OBLIGATIONS:
Clause No.
Appraisal
7(A)
Remove existing front
$1,150
concrete steps and recon-
struct new concrete steps
7(B)
Construct a concrete walk
1.50
landing area.
7(C)
Restore porch with metal
350
,handrailing
Provide footing,and new
350
porch entrance
7(D)
Construct standard concrete
1,643
block retaining wall
7(E)
Landscape remainder
200
Total
$3,843
Settlement
$1,150
150
350
350
1,643
200
$3,843
2A
Dist. st. Co. Rte. P.M.
05 SLO Santa Rosa St.
6. EXCHANGE OF LAND: L24] Yes No Parcel No.
See Explanation Item 8 and Map 186-5
7. CONDEMNATION INFORMATION: (X) None
Peo. ys SCC No. Date Filed Par.
O.P.*
is Independent Appraisers Employed? Yes No
Grantor (has) (has not) withdrawn or made application for withdrawal of State's,deposit.
8. SETTLEMENT- L2_61 by Contract Other F277 Settlement amount same as first approved
COMPARISON WITH APPRAISAL: appraisal (X) Yes No
Item Appraisal Settlement
f-281 Land $
In R/W
400 S.F. @ $5.50/s.f. 2,200 2,225
qj Improvements
Retaining wall and 125 125
concrete flatwork
Li]o Damages
Install sound—deadening drapes 150 150
3]i Totals
F321 LESS Credit (if any) for rounded 2,500 $
331 Interest Payment $
E3]4 Cash to Grantor $2__C_5-0,0..
305 Construction Contract Obligations $ 3,843 $3,843
L36] Total Consideration 343
3_71 Funds are being withheld in the amount of $
to cover
EXPLANATION:
.Per Appraisal.
(See Attached Sheet.No.
,l
Do the subject exceptions have material effect on the market value of the
property being acquired? ..........X......
Yes No
(See Attached Sheet No ...._ ......................... )
NOT TAKEN SUBJECT TO:
T. R. No. Cont. No. (if any) Description and Explanation
(See Attached Sheet No. )
47WY Kn 14-70 535 CSP
Dist. Co. Rte. P.M.
05 SLO Santa Rosa St.
9. TITLE EXCEPTIONS:
Parcel No.
1.80 -5
TAKEN SUBJECT TO:
T. R. No. Cunt. No.
Description and Explanation
1 2(A)a
1976 -77 F.Y. taxes. These taxes will be paid
and cleared in the manner required by
Section 4986 of the Revenue and Taxation Code.
2 2(A)b
Covenants, conditions, and restrictions'imposed
by deed recorded December 7,192.1 in Book 1.49
at page 269 of Deeds. These are standard
covenants, conditions, and restrictions which
will have no adverse effect on the City's planned
use of the property. Taking subject to this
encumbrance is in the best interest of the City.
3 2(A)d
Any lien for inheritance taxes. This is a
possible inheritance tax lien against the
Estate of grantor's husband,.Aurelio Lanotti.
This Estate is in the process of being probated
and all liens will be satisfied upon completion
of these proceedings.
Do the subject exceptions have material effect on the market value of the
property being acquired? ..........X......
Yes No
(See Attached Sheet No ...._ ......................... )
NOT TAKEN SUBJECT TO:
T. R. No. Cont. No. (if any) Description and Explanation
(See Attached Sheet No. )
47WY Kn 14-70 535 CSP
•
10. UNRECORDED INTERESTS:
X Investigation indicates none involved.
Handled as follows:
11. SPECIAL CLAUSES IN CONTRACT: None
Clause No.
(See Attached Sheet No. - _ -----------------------------
)
12. POSSESSION AND OCCUPANCY:
Property to be delivered:
Vacahton ---- ----- -------- -- -----------------------------------
X Close of Escrow
15 -day grace period
Lease quitclaimed -------------- - - - - -- --------------- - - - --
Yes No
Rentable Land: X None.
Unimproved
With Improvements
Rental or Lease. Provisions in Contract --------------------
Yes
Comments: None
13. DATE OF VESTING IN GRANTOR:
Acquisition data within 5 years:
Date
From Whom Acquired:
Pertinent information re purchase:
HRiW 60
Santa Rosa Street
Dist. 05 Co. SLO Rte. P.M.
Parcel No:.
X None
Explanation
Present Occupancy:
X Owner
State
Month -to -month
Lease
Vacant
Grantor to Remove Improvements ------------
Yes
--- --- - - - - -- Rate $-- •--------- ---- --- - - - - -- ------------------------
No
During last 5 years X
-------------- - - - - -- ------------ --- - - - --
Yes No
Consideration $
A 0 s- 1 .'
---- - - -- --
No
Dist. Co. Rte. P.M.
05 SLO Santa Rosa Street
14. ADVERTISING SIGNS: ___ X__ -_ None Parcel No.
180 -5
Lease _ -------------- ---------------- Cancellation clause in lease _-- __._________
Yes No Yes No
Cost of removal to be borne by:
---------- Not yet determined
---------- State - ------ Lessee
Estimated cost — $
Comments:
15. MISCELLANEOUS INFORMATION:
Complaint to Headquarters ________________ x
Yes No
a. The attached right of way contract embodies all of the considerations agreed upon between the undersigned and
the property owner.
b. The attached right of way contract was obtained without coercion, promises other than those shown in the contract,
or.threats of any kind whatsoever by or to either party.
c. I understand that the rights being secured may be used in connection with a Federal -aid highway project.
d. I have no direct or indirect present or contemplated future personal interest in the property being acquired or in
any benefit from the acquisition of subject property.
F38-1 Total number of personal calls: ---- _----- 2.._. ----------- ,------ 39 Months between ,14st approved appraisal
and right of way 'certification date ___ ___________NIA
ao Months between first approved Months between assignment 42 Months between assignment
appraisal and assignment to and close_ -------------- -------------- . and suit filing: :._- _ ? /_A... ......
.
original agent: .......... 2-- --- -- - - - -- --
I hereby recommend the approval of this transaction
- - -- - -- - - --- -._.. ,
Ribht of Way Agent
men
R. H. Tarvin
Recommended r
DLApproval:
By _________
_ ------------------- Senior Right of Way Agent Date AUG 2 1976
H -R /W 60 (REV. 7.67) 6A
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CLTA -1978 STANDARD COVERAGE
POLICY OF TITLE INSURANCE
issued by
SAFECO TITLE INSURANCE COMPANY
SUBJECT TO SCHEDULE B AND THE CONDITIONS AND STIPULATIONS HEREOF, SAFECO
TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures the
insured, as of Date of "Policy shown in Schedule A, against loss or damage, not exceeding the
amount of insurance stated in Schedule A, and costs, attorneys' fees and expenses which the Company
may become obligated to pay hereunder, sustained or incurred by said insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as
stated therein;
2. Any defect in or lien or encumbrance on such title;
3. Unmarketability of such title; or
4. Any lack of the ordinary right of an abutting owner for access to at least one
physically open street or highway if the land, in fact, abuts upon one or more such
streets or highways;
and in addition, as to an insured lender only:
5. Invalidity of the lien of the insured mortgage upon said estate or interest except
to the extent that such invalidity, or claim thereof, arises out of the transaction
evidenced by the insured mortgage and is based upon
a. usury, or
b. any consumer credit protection or truth in lending law;
6. Priority of any lien or encumbrance over the lien of the insured mortgage, said
mortgage being shown in Schedule B in the order of its priority; or
7. Invalidity of any assignment of the insured mortgage, provided such assignment
is shown in Schedule B.
jq
mot \�GORPORgT�- �•o���
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Secretary '' .MgRCH.5, lg6 _� President
ta�ti F.0���-
An Authorized Signature
/�P -218 (G.S.) Rev. 8 -73
CONDITIONS AND STIPULATIONS
1. Definition of Terms
The following terms when used in this
policy mean:
(a) "insured ": the insured named in
Schedule A, and, subject to any rights or
defenses the Company may have had
against the named insured, those who
succeed to the interest of such insured by
operation of law as distinguished from
purchase including, but not limited to,
heirs, distributees, devisees, survivors, per-
sonal representatives, next of kin; or cor-
porate or fiduciary successors. The term
"insured" also includes (i) the owner of
the indebtedness secured by the insured
mortgage and each successor in ownership
of such indebtedness (reserving, however,
all rights and defenses as to any such
successor who acquires the indebtedness
by operation of law as described in the
first sentence of this subparagraph (a)
that the Company would have had against
the successor's transferor), and further
includes (ii) any governmental agency or
instrumentality which is an insurer or
guarantor under an insurance contract or
guaranty insuring or guaranteeing said
indebtedness, or any part thereof, whether
named as an insured herein or not, and
(iii) the parties designated in paragraph
2(a) of these Conditions and Stipulations.
(b) "insured claimant ": an insured
claiming loss or damage hereunder..
(c) "insured lender ": the owner of an
insured mortgage.
(d) "insured mortgage ": a mortgage
shown in Schedule B, the owner of which
is named as an insured in Schedule A.
(e) "knowledge ": actual knowledge,
not constructive knowledge or notice
which may be imputed to an insured by
reason of any public records.
(f) "land ": the land described, spe-
cifically or by reference in Schedule A,
and improvements affixed thereto which
by law constitute real property; provided,
however, the term "land" does not include
any area excluded by Paragraph No. 6
of Part I „f Schedule b of this Policy.
(g) "mortgage ": mortgage, deed of
trust, trust deed, or other security instru-
ment.
(h) "public records ": those records
which by law impart constructive notice
of matters relating to the land.
2. (a) Continuation of Insurance
after Acquisition of Title by Insured
Lender
If this policy insures the owner of the
indebtedness secured by the insured mort-
gage, this policy shall continue in force
as of Date of Policy in favor of such in-
sured who acquires all or any part of the
estate or interest in the land described
in Schedule A by foreclosure, trustee's
sale, conveyance in lieu of foreclosure, or
other legal manner which discharges the
lien of the insured mortgage, and if such
insured is a corporation, its transferee of
the estate or interest so acquired, provided
the transferee is the parent or wholly
owned subsidiary of such insured; and in
favor of any governmental agency or in-
strumentality which acquires all or any
part of the estate or interest pursuant to
a contract of insurance or guaranty in-
suring or guaranteeing the indebtedness
secured by the insured mortgage. After
any such acquisition the amount of insur-
ance hereunder, exclusive of costs, attor-
neys' fees and expenses which the Company
may be obligated to pay, shall not ex-
ceed the least of:
. (i) the amount of insurance stated in
Schedule A;
(ii) the amount of the unpaid prin-
cipal of the indebtedness plus interest
thereon, as determined under paragraph
6(a) (iii) hereof, expenses of foreclosure
and amounts advanced to protect the lien
of the insured mortgage and secured by
said insured mortgage at the time of ac-
quisition of such estate or interest in the
land; or
(iii) the amount paid by any govern-
mental agency or instrumentality, if suc!i
agency or instrumentality is the insured
claimant, in acquisition of such estate or
interest in satisfaction of its insurance
contract or guaranty.
(b) Continuation of Insurance
after Conveyance of Title
The coverage of this policy shall continue
in force as of Date of Policy, in favor of
an insured so long as such insured retains
an estate or 'interest in the land, or owns
an indebtedness secured -by a purchase
money mortgage given by a purchaser
from such insured, or so long as such in-
sured shall have liability by reason of
covenants of warranty made by such in-
sured in any transfer or conveyance of
such estate or interest; provided, however,
this policy shall not continue in force in
favor of any purchaser from such insured
of either said estate or interest or the in-
debtedness secured by a purchase money
mortgage given to such insured.
3. Defense and Prosecution of Ac-
tions- Notice of Claim to be Given
by an Insured Claimant
(a) The Company, at its own cost and
without undue delay, shall provide for the
defense of an insured in litigation to the
extent that such litigation involves an
alleged defect, lien, encumbrance or other
matter insured against by this policy.
(b) The insured shall notify the Com-
pany promptly in writing (i) in case of
any litigation as set forth in (a) above,
(ii) in case knowledge shall come to an
insured hereunder of any claim of title
or interest which is adverse to the title
to the estate or interest or the lien of the
insured mortgage, as insured, and which
might cause loss or damage for which the
Company may be liable by virtue of this
policy, or (iii) if title to the estate or in-
terest or the lien of the insured mortgage,
as insured, is rejected as unmarketable.
If such prompt notice shall not be given
to the Company, then as to such insured
all liability of the Company shall cease
and terminate in regard to the matter or
matters for which such prompt notice
is required; provided, however, that fail-
ure to notify shall in no case prejudice
the rights of any such insured under this
policy unless the. Company shall be pre-
judiced by such failure and then only
to the extent of such prejudice.
(c) The Company shall have the right
at its own cost to institute and without
undue delay prosecute any action or pro-
ceeding or to do any other act which in
its opinion may be necessary or desir-
able to establish the title to the estate
or interest or the lien of the insured mort-
gage, as insured; and the Company may
take any appropriate action, whether or
not it shall be liable under the terms of
this policy, and shall not thereby con-
cede liability or waive any provision of
this policy.
(d) Whenever the Company shall have
brought any action or interposed a defense
as required or permitted by the provisions
of this policy, the Company may pursue
any such litigation to final determination
by a court of competent jurisdiction and
expressly reserves the right, in its sole
discretion, to appeal from any adverse
judgment or order.
(e) In all cases where this policy per-
mits or requires the Company to prose-
cute or provide for the defense of any
action or proceeding, the insured here-
under shall secure to the Company the
right to so prosecute or provide defense in
such action or proceeding, and all appeals
therein, and permit the Company to use,
at its option, the name of such insured
for such purpose. Whenever requested by
the Company, such insured shall give the
Company, at the Company's expense, all
reasonable aid (1) in any such action or
proceeding in effecting settlement, secur-
ing evidence, obtaining witnesses, or prose-
cuting or defending such action or pro-
ceeding, and (2) in any other act which
in the opinion of the Company may be
necessary or desirable to establish the
title to the estate or interest or the lien
of the insured mortgage, as insured, in-
cluding but not limited to executing cor-
rective or other documents.
4. Proof of Loss or Damage - Limi-
tation of Action
In addition to the notices required un-
der Paragraph 3(b) of these Conditions
and Stipulations, a proof of loss or dam-
age, signed and sworn to by the insured
claimant shall be furnished to the Com-
pany within 90 days after the insu:-ed
claimant shall ascertain or determine the
facts giving rise to such loss or damage.
Such proof of loss or damage shall de-
scribe the defect in, or lien or encum-
brance on the title, or other matter in-
sured against by this policy which con-
stitutes the basis of loss or damage, and,
when appropriate, state the basis of cal-
culating the amount of such loss or dam-
age.
Should such proof of loss or damage
fail to state facts sufficient to enable the
Company to determine its liability here-
under, insured claimant, at the written
request of Company, shall furnish such
additional information as may reasonably
be necessary to make such determination.
No right of action shall accrue to in-
sured claimant until 30 days after such
proof of loss or damage shall have been
furnished.
Failure to furnish such proof of loss or
damage shall terminate any liability of
the Company under this policy as to such
loss or damage.
5. Options to Pay or Otherwise
Settle Claims and Options to Pur-
chase Indebtedness
The Company shall have the option to
(Conditions and Stipulations Continued and Concluded on Last Page of this Policy)
�. ,drf - No. SP 215823
SCHEDULE A
Policy No: 106720 -
Amount of Insurance $ 2,500;00
1. Name of Insured:
THE CITY OF SAN LUIS OBISPO
. Premium $ 62.00 (A -2 —a)
Date of Policy: .December 22, 1976
at 8:00 a.m.
2: The estate 'or interest-in-the land described herein and which is covered by this policy is:
A Fee
3. The estate or interest referred to herein is at Date of Policy vested in:
THE CITY OF SAN LUIS OBISPO,
a municipal corporation
4. The land referred to in this policy is .situated in the State of California, County of San Luis. Obispo
and described as follows:
That portion of Lot 1 in Block 31 of the City of San Luis Obispo, in the
County of San Luis Obispo, described as follows:
Beginning at a point on the Easterly line of Santa Rosa Street, i.n.said
City, said point being distant 40.00 feet Southeasterly from the Southeast-
erly corner of Palm and Santa Rosa Streets; thence Southeasterly along said
Easterly line of Santa Rosa Street, a distance of 40.00 feet to a point;
thence at right angles, Northeasterly and parallel with the Southerly line
of Palm Street a distance of 10.00 feet to- a point; thence at right angles,
Northwesterly and parallel with the Easterly line of Santa Rosa Street, a
distance of 40.00 feet to a point; thence at right angles, Southwesterly
and parallel with the Southerly line of Palm Street a distance of 10.00 feet
to the Easterly line of Santa Rosa Street and the point of beginning.
P -218 -A (G.S.) Rev. 11 -75
California Land Title Association
Standard Coverage Policy -1973
CRC OY
Nil&B (G.S.) Rev. 8 -73 I
California Land Title Association
Standard Coverage Policy -1973
SCHEDULE B
This policy does not insure against loss or damage, nor against costs, attorneys' fees or expenses, any
or all of which arise by reason of the following:
PART I
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies
taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings,
whether or not shown by the records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained
by an inspection of the land or by making inquiry of persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct
survey would disclose, and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance
thereof; (c) water rights, claims or title to water.
6. Any right, title, interest, estate or easement in land beyond the lines of the area specifically described or referred
to in Schedule A, or in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing in this
paragraph shall modify or limit the extent to which the ordinary right of an abutting owner for access to a
physically open street or highway is insured by this policy.
7. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances)
restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character,
dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation
in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law,
ordinance or governmental regulation.
8. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights
appears in the public records.
9. Defects,- liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by
the insured claimant; (b) not shown by the public records and not otherwise excluded from coverage but known
to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest
insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant
to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss
or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting
in loss or damage which .would not have been sustained if the insured claimant had been a purchaser or encum-
brancer for value without knowledge.
(Schedule B continued on next page of this Policy)
Cali BB (G. Rev. s litornid Land d Title Assoc
iation
.Standard Coverage Policy -1973
PART II
1. General and special taxes for the fiscal year 1976 -77;
First installment : $175.00 Paid
Second installment : $175.00
Parcel number 2- 326 -02
Code area : 3-00
Exemption : $19750.00
2. Covenants, conditions and restrictions imposed by deed;
Recorded December 7, 1921 in Book 149 at Page 269 of Deeds
Executed by Robertino Righetti, et ux.
The covenants, conditions and restrictions above mentioned contain no express
words of forfeiture.
L]
0
OWNER'S INFLATION PROTECTIVE INDORSEMENT NO. 3
The Company, recognizing the current. effect of inflation on real property valuation and intending to provide
additional monetary protection to the Insured Owner named in said Policy, hereby modifies said Policy, as follows:
1. Notwithstanding anything contained in said Policy to the contrary, the amount of insurance provided by
-said Policy, as stated in Schedule A thereof, is subject to cumulative annual upward adjustments in the man -
ner.and to the extent hereinafter specified.
2. "Adjustment Date" is defined, for the purpose of this Indorsement, to be 12:01 a.m. on the first January 1
which occurs more than six months after the Date of Policy, as shown in Schedule A of the Policy to which
this Indorsement is attached and on each succeeding January 1.
3. An upward adjustment will be made on each of the Adjustment Dates, as defined above, by increasing the
maximum of insurance provided by said Policy (as said amount may have been increased theretofore
under the terms of this Indorsement) by the same percentage, if any, by which the United States De-
partment of Commerce Composite Construction Cost Index (base period 1967) for the month of September
immediately preceding exceeds such Index for the month of September one year earlier; provided, however,
that the maximum amount of insurance in force shall never exceed 175% of the amount of insurance
stated in Schedule A of said Policy, less the amount of any claim paid under said Policy which under the
terms of the Conditions and Stipulations, reduces the amount of insurance in force. There shall be no annual
adjustment in the amount of insurance for years in which there is no increase in said Construction Cost Index.
4. In the settlement of any claim against the Company under said Policy, the amount of insurance in force shall
be deemed to be the amount which is in force as of the date on which the insured claimant first learned of
the assertion or possible assertion of such claim, or as of the date of receipt by the Company of the first notice
of such claim; whichever shall first occur.
Nothing herein contained shall be construed as extending or changing the effective date of said Policy.
This indorsement is made a part of said Policy and is subject to the schedules, conditions and stipulations there.
in, except as modified by the provisions hereof.
Dated; December 22, 1976
Policy No. 106720
.� ��S U Rq���l► 3l
X
P -283 (G.S.)
Owner's Inflation Protective Indorsement No. 3
SAFECO TITLE INSURANCE COMPANY
By..... ...... ------ - - - //- ....•
Authorized Signature
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J y •
CONDITIONS AND STIPULATIONS (Continued and Concluded From Reverse Side of Policy Face)
pay or otherwise settle for or in the name
of an insured claimant any claim insured
against, or to terminate all liability and
obligations of the Company hereunder by
paying or tendering payment of the
amount of insurance under this policy
together with any costs, attorneys' fees
and expenses incurred up to the time of
such payment or tender of payment by the
insured claimant and authorized by the
Company. In case loss or damage is
claimed under this policy by the owner
of the indebtedness secured by the insured
mortgage, the Company shall have the
further option to purchase such indebted-
ness for the a_ mount owing thereon to-
gether with all costs, attorneys' fees and
expenses which the Company is obligated
hereunder to pay. If. the Company offers
to purchase said indebtedness as herein
provided, the owner of such indebtedness
shall transfer and assign said indebtedness
and the mortgage and any collateral se-
curing the same to the Company upon
payment therefor as herein provided. Upon
such offer being made by the Company,
all liability and obligations of the Com-
pany hereunder to the owner of the in-
debtedness secured by said insured mort-
gage, other than the obligation to pur-
chase said indebtedness pursuant to this
paragraph, are terminated.
6. Determination and Payment of
Loss
(a) The liability of the Company
under this policy shall in no case exceed
the least of:
(i) the actual loss of the insured
claimant; or
GO the amount of insurance stated
in Schedule A, or, if applicable, the
amount of insurance as defined in para-
graph 2(a) hereof; or
(iii) if this policy insures the owner
of the indebtedness secured by the insured
mortgage, and provided said owner is the
insured claimant, the amount of the un-
paid principal of said indebtedness, plus
interest thereon, provided such amount
shall not include any additional principal
indebtedness created subsequent to Date
of Policy, except as to amounts advanced
to protect the lien of the insured mortgage
and secured thereby.
(b) The Company will pay, in ad-
dition to any loss insured against by this
policy, all costs imposed upon an insured
in litigation carried on by the Company
for such insured, and all costs, attorneys'
fees and expenses in litigation carried on
by such insured with the written author-
ization of the Company.
(c) When the amount of loss or dam-
age has been definitely fixed in accor-
dance with the conditions of this policy,
the loss or damage shall be payable with-
in 30 days thereafter.
7. Limitation of Liability
No claim shall arise or be maintainable
under this policy (a) if the Company,
after having received notice of an alleged
defect, lien or encumbrance insured
against hereunder, by litigation or other-
wise, removes such defect, lien or encum-
brance or establishes the title, or the lien
of the insured mortgage, as insured, with-
in a reasonable time after receipt of such
P -218 (G.S.) Rev. 8 -73
notice; (b) in the event of litigation until
there has been a final determination by
a court of competent jurisdiction, and
disposition of all appeals therefrom, ad-
verse to the title or to the lien of the in-
sured mortgage, as insured, as provided
in paragraph 3 hereof; or (c) for liability
voluntarily admitted or assumed by an
insured without prior written consent of
the Company.
8. Reduction of Insurance; Termin-
ation of Liability
All payments under this policy, except
payment made for costs, attorneys' fees
and expenses, shall reduce the amount of
the insurance pro tanto; provided, how-
ever, if the owner of the indebtedness
secured by the insured mortgage is an in-
sured hereunder, then such payments,
prior to the acquisition of title to said
estate or interest as provided in paragraph
2(a) of these Conditions and Stipulations,
shall not' reduce pro tanto the amount of
the insurance afforded hereunder as to any
such insured, except to the extent that
such payments reduce the amount of the
indebtedness secured by such mortgage.
Payment in full by any person or vol-
untary satisfaction or release of the in-
sured mortgage shall terminate all liabil.
ity of the Company to an insured owner
of the indebtedness secured by the insured
mortgage, except as provided in paragraph
2(a) hereof.
9. .Liability Noncumulative
It is , expressly understood that the
amount of insurance under this policy, as
to the insured owner of the estate or
interest covered by this policy, shall be
reduced by any amount the Company may
pay under any policy insuring (a) a
mortgage shown or referred to in Schedule
B hereof which is a lien on the estate
or interest covered by this policy, or (b)
a mortgage hereafter executed by an
insured which is a charge or lien on the
estate or interest described or referred to
in Schedule A, and the amount so paid
shall be deemed a payment under this
policy. The Company shall have the option
to apply to the payment of any such mort-
gage any amount that otherwise would
be payable hereunder to the insured owner
of the estate or interest covered by this
policy and the amount so paid shall be
deemed a payment under this policy to
said insured owner.
The provisions of this paragraph 9 shall
not apply to an owner of the indebtedness
secured by the insured mortgage, unless
such insured acquires title to said estate
or interest in satisfaction of said indebt-
edness or any part thereof.
10. Subrogation Upon Payment or
Settlement
Whenever the Company shall have paid
or settled a claim under this policy, all
right of subrogation shall vest in the Com-
pany unaffected by any act of the insured
claimant, except that the owner of the in-
debtedness secured by the insured mort-
gage may release or substitute the per-
sonal liability of any debtor or guarantor,
or extend or otherwise modify the terms
of payment, or release a portion of the
estate or interest from the lien of the
insured mortgage, or release any collateral
security for the indebtedness, provided
such act occurs prior to receipt by such
insured of notice of any claim of title or
interest adverse to the title to the estate
or interest or the priority of the lien of
the insured mortgage and does not result
in any loss of priority of the lien of the
insured mortgage. The Company shall be
subrogated to and be entitled to all rights
and remedies which such insured claimant
would have had against any person or
property in respect to such claim had this
policy not been issued, and the Company
is hereby authorized and empowered to
sue, compromise or settle in its name or in
the name of the insured to the full extent
of the loss sustained by the Company.
If requested by the Company, the insured
shall execute any and all documents to
evidence the within subrogation. If the.
payment does not cover the loss of such
insured claimant, the Company shall be
subrogated to such rights and remedies
in the proportion which said payment
bears to the amount of said loss, but such
subrogation shall be in subordination to
an insured mortgage. If loss should result
from any act of such insured claimant,
such act shall not void this policy; but the
Company, in that event, shall as to such
insured claimant be required to pay only
that part of any losses insured against
hereunder which shall exceed, the amount,
if any, lost to the Company by reason of
the impairment of the right of subrogation.
11. Liability Limited to this Policy
This instrument together with all en-
dorsements and other instruments, if any,
attached hereto by the Company is the
entire policy and contract between the
insured and the Company.
Any claim of loss or damage, whether
or not based on negligence, and which
arises out of the status of the lien of the
insured mortgage or of the title to the
estate or interest covered hereby, or any
action asserting such claim, shall be re-
stricted to the provisions and conditions
and stipulations of this policy.
No amendment of or endorsement to this
policy can be made except by writing en-
dorsed hereon or attached hereto signed
by either the President, a Vice President,
the Secretary, an Assistant Secretary, or
validating officer or authorized signatory
of the Company:
No payment shall be made without pro-
ducing this policy for endorsement of such
payment unless the policy be lost or de-
stroyed, in which case proof of such loss
or destruction shall be furnished to the
satisfaction of the Company.
12. Notices, Where Sent
All notices required to be given the
Company and any statement in writing
required to be furnished the Company
shall be addressed to it at the office
which issued this policy or to its Home
Office, 13640 Roscoe Boulevard, Panorama
City, California 91409.
13. THE CHARGE SPECIFIED IN
SCHEDULE A IS THE ENTIRE
CHARGE FOR TITLE SEARCH,
TITLE EXAMINATION AND TITLE
INSURANCE.
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990 Palm StreePost Office Box 8100 o San Luis Obispo, CA 93403-8100
December 20, 1990
Mr. Jon Seitz
Shipsey & Seitz, Inc.
1 -119 Palm Street
P.O. .Box 953
San Luis Obispo, CA 93406
RE: Appeal Hearing of McCarthy Steel Assessment
Dear Mr. Seitz:
In response to your letter dated December 7, 1990, enclosed are the following
public documents:
1. Draft Minutes from City Council Meeting of December 4, 1990.
(Final minutes not available until 1115191 meeting.)
2. Transcript of Item #1, Sidewalk Assessment, December 4, 1990 City
Council meeting. (Tapes are also available for $10.00)
3. Certified copy of Individual Grant Deed between the City of San
Luis Obispo and V.J. Tharp.
4. Certified copy of Individual Grant Deed between the City of San
Luis Obispo and Mary Margaret Silva.
5. All materials reviewed by Council at- =its meeting of 1214190.
The fee associated for these copies is $ 6.80 (10 cents per page). Please
submit a check payable to,the City of San Luis Obispo to the City Clerk's
Office.
If you need additional records, please let me know.
Sincerely,
PamVoges, C
City Clerk
PV:nlo
enc.
ill
r
o.
REGULAR MEETING OF THE CITY COUNCIL
TUESDAY, DECEMBER 4, 1990 - 7:00 P.M.
APPEARANCES:
PAM VOGES ........................CITY CLERK
JEFFREY JORGENSEN ................CITY ATTORNEY
RONDUNIN ........................MAYOR
JERRY REISS ....................... CITY COUNCILMAN
PENNY RAPPA ......................CITY COUNCILWOMAN
BILL ROALMAN ...................... CITY COUNCILMAN
PEG PINARD ..... ............ .......CITY COUNCILWOMAN
DAVE ROMERO ......................PUBLIC WORKS DIRECTOR
SPEAKERS:
MARCEL COTE .......................PROPERTY OWNER, SOUTH.
STREET
JON SEITZ ..... ...................REPRESENTING McCARTHY TANK
& STEEL
ROBERT McCARTHY ..................MCCARTHY TANK & STEEL
2
TRANSCRIPTION - ITEM 1
December 4, 1990 - 7:00 p.m. - City Council Meeting
Item 1. SIDEWALK ASSESSMENTS (File No. 533)
Ron Dunin: "Item Number One please. Now, before we go to the
Item Number One, I presume that all had a chance to look at the
revised Exhibit B and Exhibit 1 and also there was a
communication from Shipson Seitz, letter, O.K ?"
Penny Rappa: "And also a response from our Public Works
Director on that letter."
Jerry Reiss: "I'm not familiar with the response, because I
just got it.n
Ron Dunin: "Alright."
Jerry Reiss: "It's in my outline, of course."
Ron Dunin: "Hold this, did you, did you introduce the.?
Pam Voges: "Yes. Item 1 is a public hearing to consider
confirming costs to property owners for curb,'gutter and sidewalk
improvement at various locations throughout the community. Dave
Romero, Public Works Director, has that report."
Ron Dunin: "Could you include the response to the letter in
your presentation, please ?"
Dave Romero: "Alright. In July, 1987, the City Council
approved a resolution calling for the City to proceed on areas
throughout the community, the number of streets where more than
50% of the curb, gutter and sidewalk was installed, the 1911 Act
Provisions allow the City to notify the property owners to
install these improvements. Most of the property owners did
install these improvements since that time. There were sixteen,
however, who did not install the improvements, and the City
contracted to have this work done. Total cost for the sixteen
properties is $45,762.78. However, two of these. are very large,
approaching $15,000 apiece. At the end of the construction
period, the City sent notices with cost breakdowns to each of the
property owners, as is called for in the 1911 Act, and "notified
property owners they could pay off their assessments in cash, or
they could opt for a three year payment at a 7% interest. Those
are the property owners that are on Exhibit B, the condition is
that there be more than a $1,000 assessment. We had four people
who opted for that,, and if they felt that they disagreed with the
assessment, the cost or the project, the protest hearing is
called for under the 1911 Act is set for this evening, when the
Council will hear from various property owners who disagree with
3
the City's action. As it turns out, we allow them until 5:00
p.m. tonight to pay. Everyone has paid with the exception of two
property owners who are here this evening to be heard. McCarthy
Tank and Steel, and Marcel Cote, who are here to be heard. Other
than that, the four remaining property owners are on Exhibit B.
So, with that, we are only dealing with, actually, four property
owners who agree with the assessments and are willing to continue
it, and two property owners who wish to be heard. Probably we
should deal with the easiest one, I just spoke to Mr. Cote this
evening who had a property on Funston and Meadow. He did not
contact me until tonight, that he had some questions about
several items on his assessments, his cost assessment, and I
haven't had a chance to investigate those. If the Council likes,
in that particular case, they could hear from Mr. Cote, and then
I would ask for a deferment for me to investigate tomorrow to see
exactly what the situation is on those costs. These were based
on contractor bid prices, however, I have a responsibility to
investigate his complaints before it comes to Council. So, if
you like, maybe we could hear from Mr. Cote first, and then, I
know, that the McCarthy item will be much longer."
Ron Dunin: "Alright."
Marcel Cote: "Mr. Mayor, City Council, I don't object to the
job, it's a beautiful job, it looks really nice. I had a few
questions, and I was misled, I thought that the objections had to
be made here, and they should have been made to Mr. Romero's
office. They were not objections, it was just questions of, for
instance, I relocated the mail box myself, and there is a charge
here of $103 to relocate the mailbox. Questions like that I had.
So I'd like, if I could have a continuance, so I could see Mr.
Romero before I ... and, also I have another problem. The only way
I could pay for this is in three and a half years, I will -be able
to cash in my IRA's, that's the only way I can pay for this. So
I will have to let it go to taxes, and pay for it with IRA's in
three and a half years."
Dave Romero: "I want to explain to Council the way this works.
If the assessment is not paid off in cash, or he does not offer a
three year payment, then it becomes a lien against the property,
collectible with tax. So the penalties there involve tax
collection, are involved against this, and I'm not sure, it takes
a number of years before it becomes a serious, very serious
obligation to the property owner."
Ron Dunin: "So, do I understand that you want to pay
that in 3 and a half years, or do you want to pay that completely
in 3 and a half years ?"
Marcel Cote: "I can only pay it in 3 and a half years when I
cash in my IRA's."
4
Ron Dunin: "So, between time you don't want to pay anything ?"
Marcel Cote: nI don't have anything to pay with. I still got
two kids in college, and uh, I would have to sell something."
Ron Dunin: "Do we have anything for that ?"
Dave Romero: "Nothing that we do, the 1911 Act automatically
sets it up, it becomes a lien.against the-property, and it's
delinquent taxes, if you will."
Marcel Cote: "In other words, I'd be paying my delinquent taxes
in, when I cash my IRA's for the sidewalk ?"
Jeff Jorgensen: "Essentially, what would happen is that it would
be delinquent, I believe it's a period of five years before there
would be any action taken against the property by way of a tax
sale for delinquent taxes."
Ron Dunin: "Plus the fines and assessments."
Jeff Jorgensen: "Right, but what I would suggest, I think the
request was to continue the item so he could clarify some of the
costs, and at that time, when you come back, Mr. Cote, you may
wish to.discuss with Mr. Romero, opting for the three years.
Because, that way, you'd only be delinquent on one third of it
the first year, two thirds .., there might be some advantage to
you in terms of penalties if you opt for the three year repayment
program.
Marcel Cote: "Thank you very much."
Ron Dunin: "Thank you. So, would anybody want to make the
motion to continue this item for the staff report.
Jeff Jorgensen: "Mr..Mayor, if I might suggest, why don't we take
whatever objections there are, and then handle the entire thing
together."
Ron Dunin: "Well, then, maybe a different motion."
Bi11.Roalman: "Do we have a date certain, when this could come
back?
Dave Romero: "I can bring it back whenever, at any future
agendas, as soon as Mr. Cote and I get together, it's a matter of
lepreparing a modified agenda report for that item. So it would
probably be, at the very earliest, the 18th (December), but
probably early in January."
Bill Roalman; "Can we have that come back ?"
5
•
•
Ron Dunin: "Continue to first meeting in January. Is there a
second ?ff
Penny Rappa: "Second.0
Ron Dunin: ffAny discussion? All in favor say aye. Thank
you.
Ron Dunin: "Mr. Romero ?"
Dave Romero: NThe second item, the McCarthy item, is one that
has a very long history, that goes back to the original building
permit on this property.
Jeff. Jorgensen: NMr. Mayor, just as a matter of procedure, I
might suggest, Dave, before you give your presentation, it might
be appropriate, since this is the public hearing, to allow
protest to the assessment, that we allow McCarthy to make their
protest first before making a presentation on Mr. Romero's
response.
Dave Romero: "I concur with that approach."
Ron Dunin: °Alright. Open the public meeting. Are there the
appellant in the court or the representative ?"
Jon Seitz: "Mayor Dunin and ladies and gentlemen of the City
Council, my name is John Seitz, and I represent the McCarthy's at
McCarthy Steel in this protest of proposed assessment in the
amount of $14,206 for curb, gutter and sidewalk that has been
constructed by the City across the property line at McCarthy Tank
and Steel, as depicted on the display up there. 313 South
Street. This protest is based on a May 2, 1961, appeal here
before the San Luis Obispo Planning Commission. At that hearing
the McCarthy's appealed a condition to the first building permit
on this project that required a curb, gutter and sidewalk. At
that appeal hearing, an agreement was reached between the City
and the McCarthy's whereby the City granted a conditional
exception to the curb, gutter and sidewalk in exchange for a
piece of property 26' by 2501. That property has an estimated
value of $81,000. The City, as I mentioned it was a conditional
use permit, the City maintained the right to require curb, gutter
and sidewalk as a condition to any future building permits that
were requested by the McCarthy's. This agreement is embodied in
Resolution No. 63 -61, which I think is attached to my November
26th letter. And that resolution was unanimously passed by the
Planning Commission and unanimously approved by the City Council,
and the McCarthy's have, in fact, deeded that piece of property
over to the City. The City policy itself, of granting such
exceptions, where exchange of real property is well documented in
the City, as depicted in #5 to my letter. Clearly, if the
McCarthy's, in reaching this agreement, thought that the City
could unilaterally void the agreement by establishing assessmment
6
district, or improvement district, the McCarthy's would not have
deeded this valuable piece of property to the City, because the
exception would be worthless. The legal arguments that support
the McCarthy's position in this matter are in my letter, on pages
three and four.
And I would ask of the court, excuse me, ask of the Council,
incorporate that letter as well as all the exhibits into the
official records of this meeting.
I'd like to take a minute just to address the staff's response to
my. November 26th letter, and that's emodied in a November 29th
communication to the Council. First, I think, staff argues that
there was an implied dedication of this piece of property on the
initial building permit and that they refer this Council to
Resolution No. 341, and that, in turn, is attached to staff's
response. I'd just like to quote from the appropriate section of
that resolution, by the way, that's a 1958 resolution. That
resolution states, "In the case of lot splits of larger
subdivisions and variances, the City would require the dedication
of a right -of -way and the installation of curb, gutter and
sidewalk..
I would like to refer the Council to Exhibit 11 of my November 26
letter, which, in fact, contains that initial building permit.
There is no reference to a dedication of any property into the
public domain as a condition to build. The only condition that
is on that initial building permit is curb, gutter and sidewalk.
Staff asks you to rely on implications, but those implications,
the implications out of Resolution No. 341, but those
implications are, in fact, contradicted by the express language
of the resolution that was adopted by the Planning Commission.
And, I think, this is a treacherous proposition that staff is
asking you to take, and I think it's completely unwarranted in
this situation.
Next, staff asks the Council to rely on staff's own memory of
events that occurred nearly 30 years ago. This is not
appropriate, for it is inherently untrustworthy and self serving,
and clearly contradicts the express language of the resolution
that is in question here. I might add that Bob McCarthy and Bob
Lorenzi are in the audience, and I can assure this Council that
they are prepared to testify that the agreement, as articulated
in Resolution 6361, is the agreement as they understood it.
Lastly, staff argues that my argument that the Street Improvement
Act of 1911 was not available to the City in 1961, because that
50% requirement is illusory for a variety of reasons.
First, there is nothing in the agreement between Mr. McCarthy and
the City that ever prevented the City from negotiating with any
business or residence that borders South Street. The City could
have negotiated to purchase that property in 1961, 1962, 1963, up
7
to today's date, or prior to the adoption of that resolution.
Second, it completely ignores the condemnation powers of this
city. Third, it ignores that the act of 1911 Act is not
exclusive. The City has a variety of ways to putting curb,
gutter and sidewalk besides this act, and the act itself says
it's not the exclusive way of providing for construction of curb,
gutter and sidewalk.
In conclusion, I would just like to point out that the McCarthy's
feel very strongly about the agreement that was reached with the
City. That required the McCarthy's to deed over valuable
property for the exception that they got. The McCarthy's have
always understood that the City had the right to impose the
condition of curb, gutter and sidewalk on future building
permits. And through the years, they have avoided construction
that required installation of curb, gutter and sidewalk. I might
add that there's been four building permits since this initial
one was issued, none of which required curb, gutter and sidewalk,
in fact, McCarthy Tank and Steel has provided on -site
construction on that site that is completely inconsistent with
the idea of ever having curb, gutter and sidewalk along that
property line, mainly because that there's alot of trucks move in
and out of that area. The McCarthy's feel that it's very unfair
for staff to attack that initial agreement through inferences and
implications of the meanings of resolutions that are either
unrelated or contradict the agreement reached by the City. What
the McCarthy's are asking this Council to do is to honor the
language as well as the intent of Resolution No. 63 -61, and find
that the McCarthy's are not obligated to the City for City
construction of curb, gutter and sidewalk across their property.
Mr. McCarthy and Bob Lorenzi are in the audience, and they, as
well as I, are available to answer any questions that you might
have. And again, I ask that my letter as well as the exhibits be
incorporated into this hearing.
Ron Dunin: NThank you. Any questions at this point?"
Jon Seitz: ffoh, I just want one more point, if I might.
There is one other thing in the staff report that I think might
be a little misleading. This is where staff refers to a, some
language that Bob McCarthy, Senior, stated when he addressed the
City Council, when the City Council approved the initial
resolution of the Planning Commission, and I quote, this is from
Mr. McCarthy and this is from page 2 of staff's response, it says
`At some future date, if the City would lower the street grade on
South Street, he would be very happy to place curb, gutter and
sidewalk on the new grade line'. I think, if staff is asking you
assume that the Higuera Street has in fact been lowered to that
grade line, that assumption would be incorrect, because the grade
line on South Street has never been lowered to the grade line of
McCarthy Steel. Thank you.ff
8
•
•
Ron Dunin:• "Thank you. I probably should be available and
there maybe some questions after Mr. Romero will make his
presentation."
Dave Romero; NThe first curb, gutter and sidewalk street
widening policy was adopted in 1958, and, unfortunately, it
didn't cover specifically this particular case. And so, at that
time, the enforcement by staff was, that commercial properties,
or industrial properties fell within the category of larger
subdivisions and variances, and that the dedication of right -of-
way and installation of curb, gutter and sidewalk was required.
This was the interpretation then, and has been in the
interpretation throughout, ever since that time, all the modified
policies that we've had. So it has always been the intent, it
wasn't clearly spelled out in the original ordinance. The
building permit was issued with the requirement for curb, gutter
and sidewalk, and the building was occupied without that
improvement being put in. The building department sent a notice
saying they had to get an exception, which was to be approved by
the Planning Commission or they had to vacate the premises. The
applicant, the McCarthy's did apply, and they went to the
Planning Commission for, only for the exception to the curb,
gutter and sidewalk. And I quote from Mr. Maino, who was their
builder, and at the Planning Commission meeting, he said, and
it's on my I report-on page two, under item 3; `This project is in
an M zone without development on either side, therefore, we
request that we be allowed to omit the sidewalk until such time
as other developments in the area warrant the installation of
sidewalk'. That was the only issue before the Planning
Commission at that time. Staff agreed with that position, it did
not make sense to install curb, gutter and sidewalk out in the
boonies, and we delayed until there was curb, gutter and sidewalk
in that neighborhood.
The Planning Commission approval did not call for an exchange,
there was no exchange mentioned whatsoever. The Planning
Commission approval was for a delay, or a temporary continuance
for the curb, gutter and sidewalk, and it could be called for
under a future building permit. The Planning Commission also
suggested that there be `pave -out', both on McCar.thy's side, and
on the other side of the street. This issue then went to the
Council, MrMcCarthy, St., actually I don't remember McCarthy,
Jr., or other staff being there, I remember Mr. McCarthy, Sr.; in
any event, the item just quoted by Mr. Seitz, and that is, that
he would, I believe, says that he would be willing to install a
curb, gutter and sidewalk at some future time, he recognized his
obligation. The Council approved the Planning Commission
recommendation, did not talk about an exchange, nowhere was there
an exchange mentioned, in any of the minutes, in any discussion.
Curb, gutter and sidewalk was not a part of the agreement
prepared by the City and signed by the developer and the City.
The agreement is Exhibit 4 of the package that I presented to the
9
0
Council, actually, I submitted it last Thursday, and it was
signed September 7, 1961, by both the Mayor at that time, the
City Clerk, and the McCarthy's. And, it mentions conveyance by
the grantors of acreage, that the City would do engineering,
surveying, inspection, construction of a berm across the frontage
of the property.."
Ron Dunin: "Would, I don't know where you are reading from..I
can't find..."'
Dave Romero: "Exhibit 4"
Jeff Jorgensen: "It's the attachment to Mr. Romero's memo,
and it's..."
Ron Dunin: "There's nothing marked in here, I can't find
anything, page number what ?"
•
Jeff Jorgensen: "There's no page number"
Penny Rappa: nIt has a little 4 in the right hand corner."
Ron Dunin: "O.K., thank you."
Dave Romero: "So, the agreement had to do with dedication of
property and the City providing services and doing paving. So we
paved both across the street, and in front of the McCarthy
property. We did grading, we did berming and that's the only
agreement mentioned. And that was the total, sole agreement that
we had at that time. We did our share, they did theirs, and it
was completed. From that time till just a couple years ago.."
Ron Dunin: "Is that the same agreement as they're mentioning,
or are there two agreements ?"
Dave Romero: "They did not mention that agreement, they
carefully avoided mentioning that agreement. But the only
agreement we have, the only written agreement is that one.
They've inferred from the minutes of the meeting that there was
some agreement, but the agreement as written out says we'll do
something and they'll do something. And that was signed by both
parties. From that time until several years ago, there was no
need to require the curb, gutter and sidewalk installation across
the McCarthy property. Until we acquired the property, the
southeast corner of Beebee and South, and that was the Silva
property and as soon as we had negotiated with Mrs. Silva, then
we were prepared to proceed under the 1911 Act, which says,
`after you have more than half the improvements of the block, you
can require the remainder of the improvements. Soon as that
agreement was negotiated, then we posted the property, it was
that next group, and the McCarthy's property was included. From
that we've had, they protested every part of the way, and that is
10
the grades that we established, the improvements we proposed, and
the assessment, so they have protested the project all the way
through. However, we feel that we followed the 1911 Act
properly, and we have properly contracted for the work.
The contract also called for certain work on the part of the
City, we still paved out to the curb and gutter, we still
relocated some City facilities, there was some City cost, about
$5,000 as I recall. And about $14,000 on the McCarthy property.
A good deal of that cost related to the fact that the McCarthy
Tank and Steel building was built low in relation to the street.
The street was built first, the building was built afterwards and
built low in relation to the street. So it was necessary to
build a rather difficult ramp along one side of the property.
They also had some grading to do in order to put the sidewalk in
across part of the remainder of the property. So the cost is
higher than it might have been if McCarthy's had allowed for this
.improvement with their first construction. In staff's opinion,
the minutes and the agreement are very, very clear, that there is
no question of the City's intent, there has been no change in the
City policy for 30 years on M zone curb, gutter and sidewalk and
widening, that has been our policy and is still our policy, our
current policy makes it much clearer at this time, that there is
a dedication requirement and an improvement requirement. And
that's shown on Exhibit 5 that we submitted. Staff feels there's
no basis for granting the exception, or even sharing the cost
with McCarthy on this project.n
Ron Dunin: NAny questions? Any questions, to anybody ?m Mr.
Romero, there were several properties involved during the
widening on the South Street on both sides of the street. How
were those properties treated? Did the City purchase the
property from those people or did the City just grant it ?n
Dave Romero: NIn the entire length of South between Higuera and
Broad Street, there was no widening on the North side. That was
a control, all the widening took place on the South side. For
all of those properties that have been widened thus far, with the
exception of McCarthy and Silva, which are special cases, the
City required, as a condition of development, that the developer
install, first dedicate, and install curb, gutter and sidewalk
and pave out. So the residential subdivisions, those larger
subdivisions that went in in that area, did the full thing, paved.
out, curb, gutter and sidewalk, dedicated, did the whole thing.m
Ron Dunin: NAs a condition of the subdivision ?n
Dave Romero: NAs a condition of their development, yes. The
Silva property was the last remaining one, other than McCarthy,
between Beebee and Broad Street. In that case, we worked out an
agreement with Mrs. Silva that we would, she would pay for the
11
0 9
normal curb, gutter and sidewalk installation. We did pay her
for the fair market value of her land, we relocated fences, we
did earthwork, we landscaped as a condition, because the City was
proceeding with that improvement. And that is the policy when we
are finally to the point that we have to widen, because of
traffic. And that's the reason we got to that point with Silva.
That left McCarthy, who we feel was under the agreement that we'd
had years and years ago, that they would install curb, gutter and
sidewalk upon City, 1911 Act request."
Ron Dunin: "In that agreement, do you have to, excuse me, but
I have problem, but in that agreement, I don't see anywhere curb
and gutter mentioned. Could you read that, or show me Number 4,
where ?"
Dave Romero: "Yes, the Planning Commission granted an
exception, a temporary exception to the curb, gutter and
sidewalk. The Council agreed with that exception, and instructed
the staff, I would say, in exchange for that, to do some paving
work, to pave out across the street in front of McCarthy."
Ron.Dunin: "Planning Commission ?"
Dave Romero: "'There are Planning Commission minutes, that is
Exhibit 2 in my report, and Council Minutes, that's Exhibit 3 in
my report, which, where they discuss...."
Ron Dunin: "How do we find that, because I have a real
problem finding anything in this report."
Dave Romero: "They're attached to the back of the report."
Ron Dunin: "There is little numbers, which number are we
talking about ?"
Dave._Romero: °Exhibit 2 is the Planning Commission minutes."
Ron Dunin: "O.K. Where does it say that ... could you ?"
Dave. Romero: "The action that the Planning Commission was, on
the bottom of what was, for instance, Minutes dated 5/2/61, and
it's the bottom of page 3, it's part of Exhibit 2, and it's got a
little 3 with asterisks on it."
Ron Dunin: "O.K. What is this ?"
Dave Romero: "The final discussion was, well there's arguments
back and forth about development of the property, but the
discussion at the bottom of the page, it was brought out by
McCarthy, Sr., that we'd like to have the City fill in, as much
as possible, shoulder on the outside (or opposite side) of the
street, as there is a certain amount of hazard...."
12
0 0
Ron Dunin: "I would like, could you quote the action of the
Planning Commission, not the discussion ?"
Dave Romero: "Alright, the next page, the action of the
Planning Commission: `On motion of Commissioner Lenger, seconded
by Commissioner Johnson, Resolution No. 63 -61 was adopted by the
following role call vote: All ayes, absent Scott, thereby,
conditionally granting the exception in sidewalk, curb and gutter
requirements for the full 250 foot frontage of the property
described above. Said exception is to be considered only to the
requirements of building permit number 3676, and in no way
precludes requirements for curb, gutter and sidewalk under any
future building permit that may be issued. In granting the
exception, the Planning Commission recommends that the City
Council accept the deed to a strip of property 26 feet in width,
and 250 feet in length, running parallel and adjacent to South
Street. Said property being offered to the City by Mr. Robert E.
McCarthy, Sr., for street widening purposes, and further
recommends that the street paving on both sides of South Street
be extended in width at this time, and a plant mix rolled berm be
installed across the frontage of Mr. McCarthy's property.'
That was the Planning Commission's action. The only empowerment
the Planning Commission had, was to grant the exception to the
curb, gutter and sidewalk. And it was a temporary exception.
The Council actually had the power to make the agreement as to
what was to be done."
Ron Dunin: "Do we have that agreement ?"
Dave Romero: "O.K. Turn over a couple more pages.
Ron Dunin: "Couple pages, O.K., give us some numbers,
please."
Dave Romero: "It is Item, it's the second page of Exhibit No.
3, a little round 3 at the bottom."
Ron Dunin: °It's not marked, Exhibit..."
Jerry Reiss: "Item number."'
Ron Dunin: °Item number."
Dave Romero: "It's Item number 23 at the top of the next page."
Ron Dunin: "O.K., start with the Hauser, Mr. Hauser ?"
Dave Romero: "Yes, it starts there."
Ron Dunin:
13
Dave Romero.: RAnd the action was: `After discussion by the
City Council, it was moved by R.L. Graves, Jr., seconded by
Donald Q. Miller, that the City Council accept the City Planning
Commission recommendation, and authorize Mayor Davidson to accept
the deed for street widening and for the City Engineer to
impvrove the street to the new curb line, and also pave the
opposite side of South Street as recommended by the City Planning
Commission. Motion carried. "'
Ron Dunin: "It doesn't say anything about curbs and gutters."
Dave Romero: "That's staff's point exactly. And that is, the
Council felt, that in exchanging, by this action, we were
exchanging paving for the dedication of the deed. The agreement
was written up to reflect that, so Exhibit 4 is the agreement.
It says nothing about curb, gutter and sidewalk. It was not an
exchange."
Ron Dunin: "Any other questions? Sorry, you have something
to add ?n
Jon Seitz: "Yes, I'm curious to know, just taking a look at
that language, number one .... n
Ron Dunin: nWhich language in which... ?"
Jon Seitz: 'Well, just that very passage that staff just
quoted: `adopted the Commission's recommendations.' What were
the recommendations but not the resolution? Right, I have the
resolution, that is signed by, by the Planning Commission, right
here, and that resolution is word for word from the minutes. And
what they adopted was the resolution. You know, the tenor here
is that the McCarthy's are somehow getting something for nothing.
That's just not the case. The City has gone out and paid for
this property. If you take what they have been paying, at $12.50
a square foot, what they've been paying for other property along
South Street, it calculates to $81,000. The McCarthy's aren't
here saying, you know,.trying to get something for nothing.
They've exchanged a valuable piece of property for an exception,
and if you take a look at the history of this City, going through
issuing building permits not requiring curb, gutter and sidewalk,
you take a look at the whole history of it, everybody has
understood the agreement. You know, I think, you know, what
happened here, more than likely, I don't want to step in staff's
shoes, but when they came up with this street improvement act,
they didn't go back and take a look at ancient resolutions. And
I don't expect them-to be able to do that.
Penny.Rappa: OWe have an ancient person ....I
Jon Seitz: "Oh, I've known Dave for a long time...."
Penny Rappa: "No offense, Dave....."
12
Dave Romero: °Remember, it was 30 years ago...."
Jon Seitz: NThe ball got rolling on this issue, you know, and
it's time for it to be challenged. I think Mr. McCarthy might
want to say something."'
Ron Dunin: °There is one paragraph that puzzles me, and that
is when there was a quote from Mr. Ted Maino, which says: `This
project is in M zone, without development on either side,
therefore, we request that we be allowed to omit the sidewalk
until such time as the other development in area warrants the
installation of sidewalk.' This Mr. Maino, I'm sure he was
speaking for the developer."
Jon Seitz: "I, believe he was positively representing the
McCarthy's at that hearing.
Ron Dunin: "So, what the interpretation you have of this
paragraph ?"
Jon.Seitz: "Well, O.K., just asking for that interpretation,
my interpretation is, number one, there is no mention of curb,
gutter, the dedication of property. There is no exchange in
that, Mr. Maino is not saying; `In exchange for dedication of
property'. The way I look at these minutes, they're not
verbatum, obviously."
Ron Dunin: "What it says in here, sir, it says `We request
that we be allowed to omit, the key word is to omit the sidewalk
until such time ...' so therefore, it would be my understanding
that Mr. Maino thought that this was the requirement, but he
thought, he asked for the postponement to the requirement."
Jon Seitz: "Sure."
Ron.Dunin: "And I'm just trying to clear the air so we
understand..."
Jon Seitz: "Hey, no, I wasn't, obviously, in 1961, I was a
freshman at San Luis High School, and so, going back and asking
me to ..... my interpretation is this - we are going to take a look
at that language, take a look at what's not in the language of
what he says. Otherwords, you take a look, and he came in and he
made a pitch, just like I'm making a pitch right here to the
Planning Commission, what he was going to do. The idea of
exchanging property is obviously subsequent to Mr. Maino's
remarks. Not only that, you know, the exchange for the property
comes up in the resolution. Mr. Maino does not suggest, if he
came in and said `all we want is a continuance on putting in the
curb, gutter and sidewalk' and the Planning Commission said
`fine', you'd come back, you'd get your continuance, and that's
it, there's no exchange of property, there's no property
15
dedicated, or no deeds exchanged, I wouldn't be here today.
Because that's all it would be. It would be a request for a.
delay in installing the curb, gutter and sidewalk. The point is,
that subsequent to Mr. Maino's comments, there was an exchange.
There was consideration. In legal terms they call it quid pro
quo, for what they got. And the resolution is clear. They
exchanged...."
Jeff Jorgensen: "Mr. Mayor, if I might, perhaps I should read
the actual resolution of the Council.°
Ron Dunin: "Yes, I'm just looking at it."
Jeff Jorgensen: "It's not in your packet.°
Ron-Dunin: "Was it resolution 90.... ?"
Jeff Jorgensen: 1163- 61,.recommending the conditional approval
of an exception from sidewalk, curb and gutter requirements.
`Planning Commission resolves, whereas Robert E. McCarthy, is
requesting an exception in the sidewalk, curb and gutter
requirements, whereas the applicant has submitted certain
information, now, therefore be it resolved that the Planning
Commission does hereby conditionally grant the exception
in sidewalk, curb and gutter requirements for the property on the
frontage. Said exception is to be considered only to the
requirements of building permit #3676, and in no way precludes
the requirements for curb, gutter and sidewalk under any future
building permit that may be issued.' Then there is a second `Be
it resolved (separate from that) that the City Planning
Commission recommends that the City Council accept the deed to
the property and it is described .`said property being offered to
the City by Mr. Robert E. McCarthy for street widening purposes,
and further recommends that the street paving on both sides be
extended in width at this time and a plant mix roll berm be
installed.' And the agreement, referred to by Mr. Romero as
Exhibit 4, sets forth the terms of that second paragraph of the
resolution, which is, "that in consideration for the conveyance
of the frontage, the City will do the design, engineering and
improvements to the street'."
Ron Dunin:
Penny Rappa•
pulled around ?"
Penny Rappa:
Ron Dunin:
"O.K. Thank you sir."
"Mike, can you make sure that microphone is
"Oh, yes, my voice is usually loud enough."
"Well, not for our system, but...."
"Oh, O.K."
"Thank you."
16
0 0
nSure thing. Thank you."
Robert McCarthy: "Your honor, my name is Robert McCarthy,'and
I was at that Planning Commission meeting in 1961, and I think I
can shed some light on the issue as to what physically occurred
during that particular meeting. We, in our business, we realise .
that the City had every right in the world to request and require
us to build curb, gutter and sidewalk, and I approached one of
the gentlemen, Leonard Lenger, who was one of the Planning
Commission members at the time, and, just during the meeting, and
I said, Leonard, we can put curb, gutter and sidewalk in just as
you're requesting, but it will be in front of a two lane street
not 26 foot back. We're not going to give you 26 foot depth of
our property. And at that time, the City staff members were in
somewhat disarray, because they had assumed that they had
acquired ownership of that 26 foot wide strip. They had not. It
had not been deeded to the City. We had not, and if we were
going to build curb, gutter and sidewalk, we were going to build
it on the existing property line, not on, we weren't going to
just simply give away that property. So, I suggested to Mr.
Lenger that, you know, if they would forego the requirement for
curb, gutter and sidewalk, we could certainly, would certainly
be happy to deed over the property on that basis. My
understanding over these many, many years, of the exception, was,
that if we change the use of the property, or if there was some,
you know, overwhelming requirement on the part of the City, the
City could certainly build at their own cost, they could build a
curb, gutter and sidewalk anytime they wish. The City had the
legal right to do that. We're not questioning that right then,
and we're not questioning it now. But, we made a deal, it was 30
years old and it said if we get a building permit, you have a
right to require curb and gutter at that time. We haven't gotten
a building permit on this issue, you're requiring it anyway. In,
layman's language, it looks like you're not honoring your side of
the deal, in fact, it doesn't look that way, that's the way it
is. If you want a curb, gutter and sidewalk at this time, and
you feel it's in the City's interest to do so, you have the right
to do it. But, you know, you also have the responsibility to pay
for it. I don't think you can have it both ways. I would be
aghast to deal with another business man that treated me that
way, I think a contract's a contract. And, sometimes, you know,
the intent maybe isn't always spelled out, but I think in this
instant, it was very clearly spelled out. We weren't deeding
over 26 foot of depth of property in order to get the street
paved. That's obvious. We weren't doing that. What was on my
father's mind at that time was, that he didn't, we didn't want to
have a building or property that had to go across 26 foot of dirt
in order for people to get there. If we were going to have
everything set back, he wanted to have it paved. One of the
interesting byproducts of this, for the last 30 years, we've been
providing a turnaround for all the semi's (trucks) that come up
and turn.
17
0 � . 0
One of the benefits of the curb, gutter and sidewalk is that's
been discontinued. Our concern has always been the line of
sight, you were talking about my father and you misquoted my
father. My father did not say we would be happy to build curb,
gutter and sidewalk in the future, he said at, if you change the
grade of the street. South Street has a hump in it. And at that
time when it was a two lane street, it was our hope, and it was
Dave's hope, also, at the time, Dave Romero's, that the street
grade be improved so that there was a better horizontal line of
sight. If you, that didn't happen, unfortunately. But that's
what, and if you read, verbatum, from my father's quote, he said
`If you change the grade of the street.' You didn't change the
grade of the street. Our feelings on this have been absolutely
consistent for 30 years. We're trying to get trucks in and out
of our property and we needed an improvement in the grade of the
street, or we needed a requirement to forego the curb, gutter,
sidewalk requirements. We've lost out on everything, and the
part that's galling, is that you're kind of rubbing salt in the
wound saying `we're hanging you, and you have to buy the rope.'
So, maybe I've been more blunt than I should have, but that's the
way I feel about it and I would expect you to honor your
commitments. Thank you, gentlemen.m
Ron Dunin: NThank you. Any questions? Thank you, sir.
O.K., anybody else would like to address the Council? You have
anything ... no? Close the public hearing. I have one question
from somebody, that in the resolution it says that the sidewalk,
and curb, gutter will be installed if any other permits would be
applied. Well, during the permit application, this was not
exercised, and there is no permit applied now.N .
Penny Rappa: NIt's a 50% of the block, and I think that we've
shown that we ...... °
Ron Dunin: ffLet me have the answer from the .... °
Jeff Jorgensen: nI think that this is one of the troublesome
elements in the argument that's being made to you, is that on the
one hand, they're saying there was an agreement that in exchange
for dedicating property, McCarthy would not be required to put in
curb, gutter and sidewalk, and yet, it's clear, the clear
language is, that it in no way precludes the requirement for
curb, gutter and sidewalk under any future building permit. That
appears to be contradictory to the idea that there was an
agreement for waiver of the sidewalk in exchange for dedication
of the property. What it seems to be indicating is that there
was a deferrment in the requirement for the installation of the
sidewalk. Now, in the testimony, they said that they've applied
for four other building permits, at which time the curb, gutter
and sidewalk was not required. It would be my assumption that
they would have difficulty arguing, had it been required, that it
wasn't a valid requirement under this resolution. And the issue
18
0 9
before the Council is, does the Council have the authority, 30
years later, under separate act, which is the Improvement Act of
1911, because of changed circumstances in the area, to require
the improvements to be put in? I think, really, what it boils
down to, from the staff's reading of the history of this is, are
we precluded from proceeding under the 1911 Act because of a
technical limitation that it can only be keyed to some future
building permit. The analysis..."
Ron Dunin: °That was my question..."'
Jeff Jorgensen: "'The analysis had been, that after the
passage of 30 years, that we have authority, separate authority
under the 1911 Act, to proceed with the requirement."
Dave Romero: "I might add to Jeff's presentation, that is, when
the other building permits came in, there was still not a
sufficient curb, gutter and sidewalk in the area to warrant
McCarthy having to put theirs in, so we didn't require it, until
we had, until it was completion of the block."
Ron Dunin: NWhat confuses me is the word `in exchange for,'
so if it is in exchange for, is just like a payment."
Penny Rappa: "That's the, if that's the dedication......."'
Ron Dunin: "'Excuse me, excuse me, please..."
Penny Rappa: "Well, Ron, you're not letting, let Dave answer
the question, the exchange is the dedication..."'
Ron Dunin: "'Then why are you answering ?"
Penny Rappa: "Because you're answering the question with your
question...."
Dave Romero: "The exchange is covered in the agreement, signed
by the City and signed by the developer, for a consideration of
the, them granting the right -of -way, we will do engineering and
other works, and we'll do grading and we'll do paving, and they
signed it, we signed it, that was the agreement we had at that
time, which we followed through." .
Ron Dunin: "O.K., thank you. What is the pleasure of the
Council ?"
Penny Rappa: "I'd just like to make a couple of comments, and I
think we are trying to, we are dealing with a couple of different
issues, and I think the staff has adequately pointed out that,
for 30 years, because that block on South Street was not
developed, and pedestrian access was not a necessity, until we
purchased the Silva property, or that portion of the Silva
19
property, there wasn't a contiguous sidewalk for people to walk
on, and so even though there were additional building
improvements, we recognized, that for McCarthy's to put in a
sidewalk, didn't really serve the public well. So we continued
to respect the extension that had been given to them in 1961.
And we have two different set of rules coming into play here, but
the whole idea behing putting in sidewalks is, public health and
public safety and convenience. And we've expended a great deal
of money for that, and I'm not, I think it's fine in trying to
provide that on the Silva property, and I think that this
exception for 30 years has served McCarthy's well, but I think it
is time, now, for them to pay for the curb, gutter and sidewalk.
There are two or three different issues here, but, one is the
right -of -way, which was settled in 1961. And one is the
extension, until it became necessary for the public convenience."
Ron Dunin: "Jerry...."
Bill Roalman: "I make a motion that we separate these out and
that for the McCarthy property, that we accept that the, adopt
the resolution confirming the costs as presented by staff."
Penny Rappa: "Second."
Ron Dunin: "Any discussion? Well, I can't vote for the
motion, because I'm not convinced that that was the intent at the
time, and I feel that the word exchange indicates a payment,
because the exchange is something that you have gotten or the
City has gotten at the time. And I feel that the City has to
honor its commitments, and I think that because of my
understanding of that situation_, I don't think that the 1911 Act
applies to it. Now please."
Bill Roalman: "I support this, in part, because the record makes
clear from Mr. Maino's letter, that this was a temporary delay,
but that the applicant knew, that at some point, that this could
be required."
Penny Rappa: "If there are no more comments, I would call the
question, please."
Ron Dunin: "O.K. Roll call, please."
Pam Voges: "Councilman Roalman ?"
Bill Roalman: "Yes."
Pam Voges: "Councilwoman Rappa ?"
Penny Rappa: "Aye."
Pam Voges: "'Councilwoman Pinard ?"
20
Peg Pinard: "Aye."
Pam Voges: "Councilman Reiss ?"
Jerry Reiss: "Aye.°
Pam Voges: "Mayor Dunin ?"
Ron Dunin: "No. Thank you."
Jeff Jorgensen•: "Mr. Mayor, just for clarity, it might be
appropriate to treat that .last motion as a preliminary motion,
and adopt the resolution confirming the assessments with the
exception of the Cote issue, which would be continued until
January 3,.1991. So, I think another motion be incorporated."
Bill Roalman.: "So moved."
Pi-.q Pinard: psecond."
Ron Dunin: NAnd then, discussion ?a
Ron Dunin: "Please vote."
Pam Voges: "Motion carries, Mayor- Dunin voting no."
44
GERALD W. SHIPSEY
.JON S. SEITZ
SHIPSEY F6 SEITZ. INC.
A LAW CORPORATION
1119 PALM STREET
POST OFFICE BOX 953
SAN LUIS OBISPO, CALIFORNIA 93406
TELEPHONE (805) 543-7272
December 7, 1990
CITY OF SAN LUIS OBISPO
City Clerk
955 Morro Street
San Luis Obispo, CA 93401
•
JOHN L. SEITZ
(1924 - 1986) .
HAND.DELIVERED
RE: APPEAL HEARING OF MCCARTHY STEEL OF PROPOSED ASSESSMENT
DATE: DECEMBER 4, 1990
TIME: 7:00 -8:00 P.M.
REQUEST FOR (1) CERTIFIED COPY OF MINUTES AND
INCORPORATED DOCUMENTS; (2) CERTIFIED COPY OF TAPE OF
MEETING; AND (3) OTHER DOCUMENTS DESCRIBED BELOW
Dear Sir /Madam:
Please accept this letter as requesting a certified copy of
the minutes of McCarthy property's appeal of a d
assessment under the Street Improvement Act of 1911. I am also
requesting a certified copy of the tape recordings of that
portion of the meeting. If there is any costs associated with
the tape, please advise my office regarding payment.
p
Please also accept this letter as requesting the following
public documents regarding the street improvements accomplished
pursuant to the Street Improvement Act of 1911 along'South
Street:
1. All agreements with land owners regarding the purchase
of property and the construction of curb gutter and
sidewalk.
Thank you for your prompt consideration in this matter., If
you should have any-questions regarding the contents of this
letter, please do not hesitate to contact me.
OR' EIV00"
DEC 7 1990
CITY CLERK
SAN LUIS OBISPO, CA
JSS:kw
cc: Robert McCarthy
Bob Lorenzi
Dave Romero
Jeffrey G. Jorgenson,
Very truly yours,
IPSEY & SEIT
JO S. SEITZ
c
City Attorney
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