HomeMy WebLinkAbout01-08-2019 Item 06 - Approve Final Map for Toscano Tract 2428 Phase 3 Department Name: Community Development
Cost Center: 4003
For Agenda of: January 8, 2019
Placement: Consent
Estimated Time: N/A
FROM: Michael Codron, Community Development Director
Prepared By: Diane Dostalek, Senior Civil Engineer
SUBJECT: APPROVAL OF THE FINAL MAP FOR TRACT 2428-3, 3000 CALLE
MALVA (TR 121-13)
RECOMMENDATION
Adopt a resolution (Attachment H) approving the Final Map for Tract 2428-3, 3000 Calle Malva,
and eliminating Condition #1 and authorizing the Mayor to execute a Subdivision Agreement and a
Conservation Easement.
REPORT-IN-BRIEF
A vesting tentative map for Tract 2428 was originally approved by the City Council on July 3,
2007, by Resolution No. 9917 (Series 2007). Revised conditions that superseded the previous
tentative map conditions were approved by Council on April 15, 2014, by Resolution No. 10514
(2014 Series).
Maps for Phases 1 and 2 of Tract 2428 have been recorded and construction is underway. This is
the 3rd and final phase of Tract 2428 and will finalize the creation of 78 single-family residential
lots.
It is recommended that Condition #1 requiring construction of a Class I bike path from the
existing Prado terminus to Broad Street be removed from the project requirements rather than
pursue eminent domain. The Damon-Garcia family is unwilling to dedicate the land for the bike
path at this time because it would conflict with their existing uses on the property. The path is
shown in the Orcutt Area Specific Plan (OASP). Construction of the path would become the
responsibility of whomever develops the Damon-Garcia property.
There is a protected species of plant located on Tract 2428 called adobe sanicle (Sanicula
maritima). Some of the plants are located on lots intended to be developed. The California
Department of Fish & Wildlife (CDFW) has authorized relocation of these plants to locations
with suitable habitat for the plant to thrive. These locations include Laguna Lake Natural
Reserve and open space Lot 172 of Tract 2428-1 which is in the South Hills Natural Reserve.
Both of these locations have existing adobe sanicle located on them. CDFW is requiring the City
to enter into a Conservation Easement to forever preserve these adobe sanicle areas.
There is no new fiscal impact to the City associated with approving the final map for Tract 2428-3,
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but there will be costs to the City to maintain the adobe sanicle locations on City property. Funding
for that maintenance will be covered by an endowment fund being created by the Subdivider. The
Subdivider will compensate the City for the use of the land as off-site mitigation.
The Public Works Director has determined that the final map is in substantial compliance with
the previously approved tentative map and approved modifications thereof, so approval of the
final map by Council is recommended. California Government Code states that the Legislative
body cannot deny a final map if it finds that the final map is in substantial compliance with the
previously approved tentative map. The approval of a final map is considered a min isterial
action.
DISCUSSION
Background/Previous Council Action
Tract 2428 (TR 121-13) is located at 3000 Calle Malva (Attachment A, Vicinity Map). A vesting
tentative map for Tract 2428 was originally approved by the City Council on July 3, 2007, by
Reso lution No. 9917 (Series 2007) as TR 98-06. Revised conditions that superseded the previous
tentative map conditions were approved by Council on April 15, 2014, by Resolution No. 10514
(2014 Series) (Attachment B - Reading File). The tentative map (excerpt s included as
Attachment C - Reading File) contained a total of 178 lots consisting of 165 single-family lots,
five lots for up to 26 units of affordable housing, two lots for six market -rate condominium units,
five lots for riparian open space, and one 71-acre hillside lot for permanent open space.
Subsequent to Council’s approval of the revised conditions, the applicant proposed to reduce the
original 178 lots down to 172 lots for constructability and marketability purposes. The new lot
configuration includes a total of 172 lots consisting of 161 single-family lots, five lots for up to
26 units of affordable housing, five lots for riparian open space, and one 71 -acre hillside lot for
permanent open space. An exhibit showing the old lot configuration and numbering and the new
lot configuration and numbering is attached (Attachment D). This change to the tentative map is
minor and is consistent with the intent and spirit of the original tentative map. The tentative map
conditions of approval refer to the old lot numbering, so Attachment D is helpful in interpreting
the conditions based on the new lot numbering.
Tract 2428 was intended to be recorded in three phases (Attachment E, Phasing Plan).
Tract 2428-1, the first phase of Tract 2428, was approved by Co uncil on August 16, 2016, by
Resolution No. 10737 (2016 Series). It created 45 single-family lots (Lots 1-14, 72 to 80, and 86
to 107), two lots for riparian open space (Lots 81 and 84), one 71 -acre hillside lot that was
dedicated to the City for permanent open space (Lot 172), and one Remainder lot for the future
phases. Tract 2428-2, the second phase of Tract 2428, was approved by Council on August 15,
2017, by Resolution No. 10825 (2017 Series). It created 36 single-family lots, (Lots 62 to 71,
Lots 139 to 162, and Lots 170 to 171), three lots for riparian open space (Lots 82, 83 and 85),
seven lots for affordable housing (Lots 163 to 169) for up to 26 affordable housing units, and two
lots for future phases (Lots A and B). Both phases are currently under construction.
Phase 3 Final Map
Tract 2428-3 is the third and final phase of Tract 2428. It is a subdivision of Lots A and B of
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Tract 2428-2. Tract 2428-3 is creating 78 single-family lots (Lots 15 to 61 and Lots 108 to 138),
two lots for riparian open space (Lots 82 and 83) and one non-buildable lot (Lot C). The total
number of lots being created with all phases of Tract 2428 is 172, which matches the revised
tentative map, plus one additional non-buildable Lot C.
The creation of Lot C was necessitated due to the location of a retaining wall. The wall bisects
Lot 108 of Tract 2428-3 making the portion below the wall unusable by Lot 108. The Subdivider
requested that the City approve creation of a non-buildable lot with Phase 3 so that the lot could
be used by and possibly transferred to the adjacent Lot 107 of Tract 2428 -2. The alternative to
creating the lot would have been to record Tract 2428-3 with this portion included in Lot 108,
then do a lot line adjustment to transfer the lot to Lot 107. Creating the additional non-buildable
lot simplified the process because the lot could then be used by Lot 107 and eventually merged
with Lot 107, which is a simpler and less costly alternative to a lot line adjustment. A Notice of
Requirements over Lot C is being recorded concurrently with the map that identifies this lot as
non-buildable. It will either be held in title by Lot 107 as a separate non-buildable lot, merged
with Lot 107, or held by the developer with an easement over it for Lot 107 to use. The creation
of Lot C was deemed to be in substantial compliance with the tentative map because it is a
non-buildable lot.
The other minor revision to the final map which was requested by the Subdivider is the
reconfiguration of Lots 58 to 61 in the southeast corner of the subdivision to eliminate the
landlocked lot. Lots 122 to 126 were reconfigured to make room for an additional lot so there
would be no net change to the number of single-family lots. This revision was deemed to be in
substantial compliance with t entative map by the Community Development Director pursuant to
City Municipal Code Section 16.10.160.
Affordable Housing
The affordable housing requirements of Condition #77 were met when the subdivider dedicated
Lots 163 to 169 to the Housing Authority o f the City of San Luis Obispo (HASLO) with Phase 2
of the map. The average residential unit size of the entire tract does not exceed 2000 square feet,
so additional affordable housing is not required.
Prado Road Bike Path
Condition #1 of the tentative map required the subdivider to construct a Class 1 bike path
connecting the existing terminus of Prado Road to Broad Street at the Damon-Garcia Sports
Field, which is over ½ mile away. The condition was subject to acquisition of right -of-way from
the Damon-Garcia family. The City has met with the Garcia family multiple times during each
phase of Tract 2428 to discuss possible alignment of the trail and compensation for the right -of-
way. The discussions were unsuccessful in generating an interest from the famil y to provide an
easement along the Prado Road alignment, which is the only alignment that had the potential for
reimbursement. The Garcia family stated that this alignment would conflict with existing uses on
their property since the bike path would have to be fenced to keep out cattle and trespassers.
Although other alignment options are possible, there is no approved development plan for the
property, so it would just be guess work on where the trail could be located to have the least
amount of conflict w ith future development. Even then, it would be likely that the trail would
have to be reconstructed wholly or in part when development occurs, causing disruption to trail
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users and resulting in throw-away work. Removal of the condition was expressly contemplated
in the language of Condition # 1. Specifically, the condition stated in part that: If the Council
concludes that it does not want to acquire the right of way via eminent domain and thereby the
project cannot be completed, the Subdivider shall be alleviated from completing Condition #1.
Pursuant to Condition #1.a and Government Code Section 66462.5, the Subdivider is requesting
that Council relieve the Subdivider of this condition rather than pursue the eminent domain
process. Eliminating the condition does not mean that the bike path would never be completed. It
is shown in the OASP. It just means that it will be delayed, and construction of the path will be
become the responsibility of whomever develops the Damon-Garcia property.
It is recommended Condition #1 be removed from the project requirements rather than pursue
eminent domain. The resolution approving the final map also includes elimination of this
condition. Alternatively, the City Council could require that the Developer enter into an off-site
acquisition agreement whereby the developer would pay for the City’s costs in acquiring the off-
site right of way.
Approving the Final Map
The tentative map has an initial two-year life per Municipal Code Section 16.10.150. With the
automatic extensions granted by the State Legislature per Sections 66452.21, 66452.22,
66452.23, and 66452.24 of the Subdivision Map Act (SMA), a City-granted extension of two
years, and a three-year extension allowed for phasing of the map per Section 66452.6 of the
SMA, this vesting tentative map now has an expiration date of July 3, 2021. Modifying the
tentative map conditions did not extend the life of the map. All phases of the map must record
prior to expiration of the tentative map. Additional time extensions are allowed.
The final map for Tract 2428-3 (Attachment F) is ready to be approved. There are a few minor
revisions still required for technical accuracy and condition compliance, but those changes will
be completed before the map records. Pursuant to Section 16 .14.080 of the Municipal Code, the
Public Works Director has determined that the final map is in substantial compliance with the
tentative map and approved modifications thereof. California Government Code Section 66474.1
states that “a Legislative body shall not deny approval of a final or parcel map if it has previously
approved a tentative map for the proposed subdivision and if it finds that the final or parcel map
is in substantial compliance with the previously approved tentative map.” The approval of a final
map is considered a ministerial action.
Appropriate securities will be submitted prior to map recordation to guarantee completion of the
required subdivision improvements as shown in the Subdivision Agreement (Attachment G). The
Subdivision Agree ment is still in draft form as some details still need to be confirmed with the
Subdivider such as amount and timing of fee payments, bonds, and specific language in the
agreement. The resolution approving the final map (Attachment H) also authorizes the M ayor to
sign the Subdivision Agreement requiring the Subdivider to complete the subdivision
improvements.
Adobe Sanicle
There is a protected species of plant located on Tract 2428 called adobe sanicle (Sanicula
maritima). Although some of the plants are located in areas within Tract 2428 that will be fenced
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off (HOA-owned creek Lot 82 of Tract 2428-2, City-owned open space Lot 172 of Tract 2428-1,
and City street right -of-way along Arezzo) others are located on lots intended to be developed
(Lots 122 to 126 and Lot 61). The on-site adobe sanicle locations are shown in Attachment I.
The subdivider obtained an “incidental take permit” from the California Department of Fish and
Wildlife (CDFW) authorizing the relocation of the adobe sanicle from the sites to be developed
to a suitable site where the plants can survive undisturbed. It is anticipated that relocation of the
plants will begin in February 2019.
CDFW, in conjunction with the City’s Natural Resources Manager, approved relocation of the
plants to the City-owned open space Lot 172, which is part of the South Hills Natural Reserve,
and Laguna Lake Natural Reserve, both of which currently have adobe sanicle located on them.
Relocation of the plants to these areas will not affect any existing public access rights because
these areas are not active or usable parts of the properties. The City will be compensated for the
use of these areas as discussed in the Fiscal Impact section below.
CDFW is requiring the City to grant to CDFW a Conservation Easement to preserve the plants
and the subdivider is establishing an endowment fund to pay for the perpetual maintenance of
these plant areas, including the fencing, on Lot 172, Laguna Lake Natural Reserve and in the
Arezzo right -of-way. A draft Conservation Easement submitted to CDFW for review is included
as Attachment J. The easement has not yet been reviewed by CDFW, so revisions are
anticipated. The resolution approving the final map authorizes the Mayor to approve revisions to
the Conservation Easement and execute the easement in a form substantially the same as shown in
the attachment and as approved by the Community Development Director, the Natural Resources
Manager, and the City Attorney. The resolution also authorizes the Mayor to execute any other
easements or agreements related to the adobe sanicle in a form approved by the Community
Development Director, the Natural Resources Manager, and the City Attorney. Until such time as
the plant relocation is complete and the necessary easements are in place as required by CDFW, no
building permits will be issued on Lots 122 to 126 and Lot 61. The subdivider has agreed to
record a Notice of Requirements restricting development on these lots until the requirements for
plant relocation and easements are met.
Policy Context
The proposed action approving the final map is consistent with the policies set forth in the
previously referenced Municipal Code and California Government Code sections.
Public Engagement
Public notification for the tentative map and environmental d ocument occurred with the Planning
Commission hearing on March 26, 2014. Approval of the final map is considered a ministerial
action, so a public hearing to approve the final map is not required.
CONCURRENCES
The Director of Public Works and the Natural Resources Manager concur with the recommended
action.
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ENVIRONMENTAL REVIEW
The City Council adopted the project’s Mitigated Negative Declaration (MND) on July 3, 2007
and approved an Addendum on April 15, 2014. The Final Environmental Impact Report prep ared
for the Margarita Area Specific Plan and the amended MND for this project constitute the
complete environmental determination for the project. The final map is substantially in
compliance with the tentative map evaluated with this prior environmental determination.
Approval of the final map is statutorily exempt under the California Environmental Quality Act
(CEQA) pursuant to Section 15268(b)(3) Ministerial Projects (approval of final subdivision
maps) of Title 14 of the California Code of Regulatio ns (State CEQA Guidelines). Therefore, no
further environmental review is required.
FISCAL IMPACT
Budgeted: No Budget Year: N/A
Funding Identified: Yes
Fiscal Analysis:
Funding Sources Current FY Cost
Annualized
On-going Cost
Total Project
Cost
General Fund 0 0 0
State 0 0 0
Federal 0 0 0
Fees 0 0 0
Other:
Endowment Fund
0 $2,831 Annual ongoing
costs
Total 0 $2,831 Annual ongoing
costs
There is no new fiscal impact to the City associated with approving the final map for Tract 2428-3.
The table above represents costs estimated by Althouse & Meade to maintain the adobe sanicle
plant locations following their initial establishment period on the open space Lot 172, Laguna Lake
Natural Reserve, the street right-of-way of Arezzo, and on the HOA Lot 82. The subdivider is
creating an endowment fund of $80,874 to produce the annual income necessary for long-term
planting, establishing, maintaining, monitoring and reporting of the adobe sanicle locations. The
HOA and the City will be able to draw from this endowment fund. The endowment fund will be
created prior to map recordation, unless deferral is approved by the Community Development
Director and CDFW.
The Subdivider paid the City $2,000 for the 0.84 acres of City land being used for the off-site
adobe sanicle mitigation. Although the City will retain ownership of the land, a fee simple value
was used to calculate the value rather than an easement value because of the use restrictions that
will be placed over the property. The fee simple value of the land was estimated at $2,500/acre
given its environmental constraints, topography, and restrictions.
The public improvements that will be constructed with this phase will result in an increase in
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maintenance costs for the public streets, public water and sewer, and other infrastructure upon
acceptance of the improvements by the City. These costs will be shown in future Financial Plans as
the facilities are accepted and begin to require standard maintenance. The bike paths will be open to
the public but will be privately-maintained by the HOA. The private streets, private sewer, private
drainage, and private open space will be maintained by the HOA.
ALTERNATIVES
Deny approval of the final map. Denying approval of the final map can apply if findings are
made that the requirements or conditions of the tentative map have not been met or performed
(Section 66473 of the Subdivision Map Act) or if findings are made that the final map is not in
substantial compliance with the previously approved tentative map (Sec tion 66474.1 of the
Subdivision Map Act). Because the final map is in substantial compliance with the tentative map
and all of the conditions of the map will be met or securities deposited prior to map recordation,
Sections 66474.1 and 66473 of the Subdivision Map Act require that City Council approve the
map. Therefore, denying approval of the final map is not a recommended alternative unless the
required findings are made.
Continue approval of the final map. If Council decides not to relieve subdivider o f the condition
to construct the Class I bike path to Broad Street, then Council can continue approval of the map
and direct staff to begin the process of eminent domain. This option is not recommended because
the eminent domain process is lengthy and cost ly and would delay construction of additional
housing stock. Furthermore, construction of the trail would conflict with existing uses on the
Damon-Garcia property because it would have to be fenced to keep out cattle and trespassers. It
could also conflict with future development on the property resulting in realignment of an
already constructed trail when development occurs. Eliminating the condition does not preclude
the City’s ability to acquire the bike connection in the future when the Damon-Garcia property
develops because it is shown in the OASP.
Attachments:
a - Vicinity Map
b - Reading File - Resolution No. 10514 (2014 Series)
c - Reading File - Tentative Map
d - Revised Lot Numbering
e - Phasing Plan
f - Final Map
g - Subdivision Agreement
h - Draft Resolution Approving Final Map
i - Adobe Sanicle locations
j - Conservation Easement - City property
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1
SUBDIVISION AGREEMENT
THIS AGREEMENT is dated this ______ day of ___________201___ by and
between Margarita Ranch SLO, LLC, a California limited liability company, herein referred
to as "Subdivider," and the CITY OF SAN LUIS OBISPO, herein referred to as the "City."
RECITALS
REFERENCE IS HEREBY MADE to that certain proposed subdivision of real
property in the City of San Luis Obispo, County of San Luis Obispo, State of California, a
description of which is shown on the Final Map of Tract 2428-3, City of San Luis Obispo,
California, as approved by the City Council on the ____ day of ___________, 201___.
The Subdivider desires that said Tract 2428-3 be accepted and approved as a Final
Map pursuant to the Subdivision Regulations of the City of San Luis Obispo (Title 16 of the
San Luis Obispo Municipal Code), and
It is a condition of said regulations that the Subdivider agree to install the
improvements as set forth on the plans therefore.
TERMS AND CONDITIONS:
In consideration of the foregoing, the Subdivider does hereby agree to construct
and install the following Phase 3 subdivision improvements in accordance with said
subdivision regulations, and in accordance with approved plans and specifications on file
in the office of the City Engineer, City of San Luis Obispo, to wit:
1. CURB, GUTTERS AND SIDEWALKS
2. STREET BASE AND SURFACING
3. PEDESTRIAN AND BICYCLE PATHS
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4. WATER MAINS and SEWER MAINS, including sewer laterals to the property line
and water services to the curb stop.
5. LANDSCAPING
6. DRAINAGE STRUCTURES
7. STREET LIGHTS
8. ELECTRIC, GAS, TELEPHONE AND CABLE TELEVISION: In addition to the
inspection and approval of such facilities by the City, each public utility shall be
required to file a letter stating that the developer has properly installed all facilities to
be provided by him, and that the said utility is prepared to provide service to
residents upon request.
9. ENVIRONMENTAL MITIGATION
10. ANY & ALL OTHER IMPROVEMENTS shown on plans or required by project
approvals.
All of the above facilities shall be installed in the locations designated and to the plans and
specifications on file and approved by said City Engineer.
The lines and grades for all of said improvements shall be established by the
Subdivider in accordance with said approved plans and specifications.
The Subdivider agrees that the work of installing the above improvements shall
begin within thirty (30) days from the date of recording of the final map, and that the work
shall be completed within twelve (12) months of said recording date, unless an extension
has been granted by the City, provided that if completion of said work is delayed by acts of
God or labor disputes resulting in strike action, the Subdivider shall have an additional
period of time equivalent to such period of delay in which to complete such work. Any
extension of time hereunder shall not operate to release the surety on the Improvement
Security filed pursuant to this agreement. In this connection, the surety waives the
provisions of Section 2819 of the Civil Code of the State of California.
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No building permits will be issued nor occupancy granted after the expiration date
of the agreement until completion and acceptance of all subdivision improvements unless
specifically approved by the City.
The Subdivider does also agree to comply with the conditions established by the
City Council and has paid the necessary fees as indicated on the attached Exhibits 1
and 2.
The restoration of lost section corners and retracement of section lines within the
Subdivision shall be in accordance with Article 5, paragraph 8771 et seq., of the
Professional Land Surveyors Act, Chapter 15 of the Business and Professions Code of the
State of California.
The Subdivider attaches hereto, as an integral part hereof, and as security for the
performance of this agreement, an instrument of credit or bond approved by and in favor
of the City of San Luis Obispo, and conditional upon the faithful performance of this
agreement. Said instrument of credit or bond is in the amount of $3,295,200 which is the
amount of the estimated cost of said improvements for Phase 3.
Subdivider agrees to remedy any defects in the improvements arising from faulty
workmanship or materials or defective construction of said improvements occurring within
twelve (12) months after acceptance thereof. In accordance with Sections 66499.7 and
66499.9 of the Government Code of the State of California, upon final completion and
acceptance of the work, City will release all but 10% of the improvement security, that
amount being deemed sufficient to guarantee faithful performance by the Subdivider of his
obligation to remedy any defects in the improvements arising within a period of one year
following the completion and acceptance thereof.
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Completion of the work shall be deemed to have occurred on the date which the
City Council shall, by resolution duly passed and adopted, accept said improvements
according to said plans and specifications, and any approved modifications thereto.
Neither periodic nor progress inspections or approvals shall bind the City to accept said
improvements or waive any defects in the same or any breach of this agreement.
“AS-BUILT” record drawings are to be submitted within four weeks of completion of
construction and prior to City acceptance of the public improvements.
If the Subdivider fails to complete the work within the prescribed time, the
Subdivider agrees that City may, at its option, declare the instrument of credit or bond
which has been posted by Subdivider to guarantee faithful performance, forfeited and
utilize the proceeds to complete said improvements, or city may complete said
improvements and recover the full cost and expense thereof from the Subdivider or his
surety.
The Subdivider has deposited with the City a labor and materials surety in the
amount of 50% of the above described subdivision improvements ($1,647,600) in
accordance with State law.
Said Subdivider shall pay an inspection fee for City to inspect the installation of said
subdivision improvements, and to verify that they have been completed in accordance with
the plans and specifications.
Title 16 of the San Luis Obispo Municipal Code, entitled "Subdivision," all plans and
specifications on file with said City Engineer as a part of said Subdivision Map, and all
other documents filed with the City by the Subdivider and approved by the City Engineer
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are hereby referred to for further particulars in interpreting and defining the obligations of
the Subdivider under this agreement.
Pursuant to Government Code Section 66474.9(b), the subdivider shall defend,
indemnify and hold harmless the City and/or its agents, officers and employees from any
claim, action or proceeding against the City and/or its agents, officers or employees to
attack, set aside, void or annul, the approval by the City of this subdivision, and all actions
relating thereto, including but not limited to environmental review (“Indemnified Claims”).
The City shall promptly notify the subdivider of any Indemnified Claim upon being
presented with the Indemnified Claim and City shall fully cooperate in the defense against
an Indemnified Claim.
It is understood and agreed by and between the Subdivider and the City hereto that
this agreement shall bind the heirs, executors, administrators, successors and assigns of
the respective Parties to this agreement.
It is agreed that the Subdivider will furnish copies of the successful bidder's contract
unit prices and total bid prices for all of the improvements herein referred to.
IN WITNESS WHEREOF, this agreement has been executed by:
CITY OF SAN LUIS OBISPO SUBDIVIDER
Margarita Ranch SLO, LLC,
a California limited liability company
MAYOR Heidi Harmon
Dennis Moresco, Vice President
ATTEST:
CITY CLERK Teresa Purrington
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EXHIBIT 1
TRACT 2428-3
SUBDIVISION AGREEMENT
1. The Subdivider has deposited a monumentation security in the amount of $31,400 to
guarantee the installation of survey monuments in accordance with the approved map and
payment for same. Said guarantee will be released once the installation of monuments has
been verified and that existing monuments have not been disturbed, and upon receipt by the
City of a letter from the Surveyor indicating that they have completed the work and have
been paid. Subdivider shall adhere to the requirements of California Business and
Professions Code Section 8771 with regards to monument preservation. The monumentation
security also guarantees the replacement of any monuments that were disturbed during
construction, along with filing of Records of Survey or Corner Records required by said
Section 8771
2. Improvement plancheck fees for all phases of the subdivision were paid with Phase 1. No
additional plancheck fees are required for Phase 3.
3. Construction inspection fees for Phase 3 of the subdivision have been paid, as listed in the
attached EXHIBIT 2, based on the $3,295,179 construction cost estimate for Phase 3.
4. The subdivider shall comply with all requirements of Council Resolution No. 10514 (2014
Series) approving the tentative map.
5. Pursuant to Condition #7 of Council Resolution No. 10514 (2014 Series), the Subdivider
has deposited a faithful performance security in the amount of $130,000 to retain a qualified
traffic consultant to conduct traffic counts and speed measurements one-year after final
occupancy or complete build-out of the subdivision or acceptance of public improvements,
whichever occurs later. If the traffic volumes or speeds exceed City standards, the $130,000
security will be retained by the City to guarantee that Subdivider install additional
City-approved traffic calming measures to reduce volume and speeds to comply with City
standards. The additional measures shall be installed within six (6) months following notice
from the City to install said measures. Another traffic study shall be performed twelve (12)
months after complet ion of construction of the additional traffic calming measures. The
$130,000 security will be released to the Subdivider once a City-approved traffic study
demonstrates that traffic volumes and speeds comply with City standards.
6. The Subdivider has established an account in the amount of $166,689 to fund the annual
cost of maintenance, protection, monitoring and reporting of the adobe sanicle plant for the
initial period of time required by the California Incidental Take Permit for Tract 2428 issued
by the California Department of Fish & Wildlife.
7. The Subdivider has established an endowment fund in the amount of $80,874 to generate
sufficient revenue to fund the annual cost of maintaining the adobe sanicle locations in
perpetuity. The City and the Toscano Homeowners Association may draw from this fund in
order to maintain the adobe sanicle locations on their respective properties.
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Item 6
7
8. The Subdivider has compensated the City $2,000 for the use of the City’s property as
off-site mitigation for the adobe sanicle.
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Item 6
8
EXHIBIT 2
TRACT 2428-3
FEE AND BOND LIST
(3000 Calle Malva)
Amount Form Date
Received
Bond Release Status
Bonds and Guarantees:
Total Faithful Performance for
Phase 3 subdivision improvements (“FPB”)
$3,295,200 xxx xxx Can be released upon City acceptance of
improvements and deposit of one-year
warranty surety.
Labor & Materials (50% of total cost of Phase 3
improvements)
$1,647,600 xxx xxx Can be released 90 days after acceptance
of improvements, if no claims. (Civil
Code Section 8412)
Monument Guarantee for Phase 3 $31,400 CD or
Letter of
Credit
xxx Can be released upon verification that
monuments have been set and surveyor
has been paid.
Faithful Performance
for completion of traffic counts and speed
measurements and installation of additional
traffic calming measures
$130,000 Rider to
Tract
2428-1
xxx See Exhibit 1 for timing and
requirements regarding release.
10% Warranty $329,520 To be
determined
To be
collected prior
to release of
FPB
Can be released one-year after acceptance
of improvements, if no defects.
Fees:
Map Check Fee for Phase 3 $26,394.91 Check 1/30/18
Plan Check Fee Paid with Phase 1
Construction Inspection fee for Phase 3 $112,444.82 Xxx xxx
Park In-Lieu Fee for Phase 31 To be collected with building permit
Affordable Housing Requirements Fulfilled in Phase 2 by dedication of lots to the Housing Authority
Water, Wastewater, and Traffic Impact Fees1 To be collected with building permit
Payment for use of Laguna Lake Park and Lot
172 as off-site mitigation for adobe sanicle
$2,000 Paid with license agreement.
Fund for initial capital costs, maintenance and
reporting of adobe sanicle locations
$166,689
Endowment for perpetual maintenance of adobe
sanicle locaitons
$80,874
1 All Impact Fees are adjusted annually (July 1) based on C CI. Credit given for demolished units.
Packet Pg. 67
Item 6
R _____
RESOLUTION NO. (2019 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, APPROVING THE FINAL MAP FOR
TRACT 2428-3 (3000 CALLE MALVA, TR 121-13)
WHEREAS, the City Council made certain findings concerning the phased vesting tentative
map for Tract 2428, as prescribed in Resolution No. 10514 (2014 Series); and
WHEREAS, the Community Development Director approved minor corrections to the
tentative map as allowed by the City Municipal Code and California Government Code; and
WHEREAS, the City Council approved the final map for the first phase of Tract 2428
(Tract 2428-1) on August 16, 2016, by Resolution No. 10737 (2016 Series); and
WHEREAS, the City Council approved the final map for the second phase of Tract 2428
(Tract 2428-2) on August 15, 2017, by Resolution No. 10825 (2017 Series); and
WHEREAS, the subdivider has requested that the Council approve this third and final phase
of Tract 2428 (Tract 2428-3); and
WHEREAS, subdivider has been unable to acquire an off-site easement for a bike path to
connect to Prado Road required per Condition #1 of Council Resolution No. 10514 (2014 Series);
and
WHEREAS, the City Council has elected not to lend their powers of condemnation to
acquire said off-site easement for a bike path; and
WHEREAS, all other requirements, conditions and mitigation measures required per said
Resolution No. 10514 (2014 Series) have been completed or appropriate securities will be in place
to guarantee their completion prior to map recordation ; and
WHEREAS, the subdivider will submit appropriate securities to guarantee installation of
the required subdivision improvements as shown on the approved plans for this phase prior to map
recordation, and all fees for this phase will be received prior to map recordation, as prescribed in
the Subdivision Agreement; and
WHEREAS, an incidental take permit for Tract 2428 issued by the California Department of
Fish and Wildlife (CDFW) requires the City to grant to CDFW a Conservation Easement for the
adobe sanicle plant that is located on or being relocated to Lot 172 of Tract 2428-1, the street right-
of-way along San Vincenzo, and Laguna Lake Park; and
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Item 6
Resolution No. (2019 Series) Page 2
WHEREAS, the City Council adopted the project’s Mitigated Negative Declaration (MND)
on July 3, 2007, and approved an Addendum on April 15, 2014. The Final Environmental Impact
Report prepared for the Margarita Area Specific Plan and the amended MND for this project
constitute the complete environmental determination for the project. Approval of a final map is
statutorily exempt under the California Environmental Quality Act (CEQA) pursuant to Section
15268(b)(3) Ministerial Projects (approval of final subdivision maps) of Title 14 of the California
Code of Regulations (State CEQA Guidelines. Therefore, no further environmental review is
required.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. Condition #1 of Resolution No. No. 10514 (2014 Series) is hereby waived.
SECTION 2. The final map for Tract 2428-3 is found to be in substantial compliance with
the tentative map.
SECTION 3. The Subdivision Agreement for Tract 2428-3 is approved and the Mayor is
authorized to approve minor revisions to the agreement and execute the document in a form
substantially the same as shown in Attachment G of the staff report.
SECTION 4. Approval of the final map for Tract 2428-3 shown in Attachment F of the staff
report is hereby granted with the understanding that minor changes to the final map for technical
accuracy and condition compliance may still be needed. The Public Works Director is authorized to
approve these changes and record the map when it is deemed to be complete and all conditions and
mitigation measures are complied with.
SECTION 5. The Mayor is authorized to approve revisions to the Conservation Easement
for the adobe sanicle granting an easement on City property to the California Department of Fish &
Wildlife and execute the easement in a form substantially the same as shown in Attachment J of the
staff report and as approved by the Community Development Director, the Natural Resources
Manager, and the City Attorney. The Mayor is also authorized to execute any other easements or
agreements related to the adobe sanicle in a form approved by the Community Development Director,
the Natural Resources Manager, and the City Attorney.
SECTION 6. The Mayor and City staff are authorized to take action necessary to carry out
the intent of this resolution.
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Item 6
Resolution No. (2019 Series) Page 2
SECTION 7. Environmental Review. The Final Environmental Impact Report prepared for
the Margarita Area Specific Plan and the amended Mitigated Negative Declaration for Tract 2428
constitute the complete environmental determination for the project. Approval of the final map is
statutorily exempt under the California Environmental Quality Act (CEQA) pursuant to Section
15268(b)(3) Ministerial Projects (approval of final subdivision maps) of Title 14 of the California
Code of Regulations (State CEQA Guidelines). Therefore, no further environmental review is
required.
Upon motion of _______________________, seconded by ________________________,
and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this ______ day of _______________ 2019.
____________________________________
Mayor Heidi Harmon
ATTEST:
____________________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
_____________________________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo , California, this ______ day of ______________, _________.
____________________________________
Teresa Purrington
City Clerk
Packet Pg. 70
Item 6
5960
31 32
58
30292827262524
17
18
20
21 22 23
19
15
16
42
43
47464544
83
34 3533
3736
4041
39
38
57
55
56
54
4948
5352
5150
82
61
72
63
82
64
83
62
6566676871 70 69
134
108112110109
119 138
137
131
132133
129
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121120118117115113
114 116
111
130135
136
125
126122
124
164
162
147 146156
151153
152 149
168 166165
145
169 167
140
139
142141
144143
150
148157
171170 161
0 250 500125Feet
Althouse and Meade, Inc.
Tract 2428 DevelopmentSan Luis Obispo County, California
±
Protected Adobe Sanicle Extant
Permanently Impacted Adobe Sanicle Patch
Lot Boundaries and Road Alignment
Tract 2428 Development Boundary
Figure 7a. Adobe Sanicle Patches Impacts
Updated June 15, 2018 02:02 PM by: MMP
Patch 3
Patch 3
Patch 1
Patch 1
Patch 2
Site plan data provided by Tetra TechPacket Pg. 71Item 6
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32476\6431813.4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
State of California
Department of Fish and Wildlife
Habitat Conservation Planning Branch
1419 9th Street, Room 1266
Sacramento, CA 95814
Exempt from recording fees – Govt. Code §6103
CONSERVATION EASEMENT DEED
This CONSERVATION EASEMENT DEED (“Conservation Easement ”) is made this
_____ day of ____________20____ (“Effective Date”), by THE CITY OF SAN LUIS OBISPO,
CALIFORNIA, a municipal entity (“Grantor") in favor of THE STATE OF CALIFORNIA
(“Grantee”), acting by and through its Department of Fish and Wildlife, with reference to the
following facts:
RECITALS
A. Grantor is a California municipal entity and is the sole owner in fee simple of those
certain real properties located in the City of San Luis Obispo, County of San Luis Obispo, State of
California, described as: (1) a parcel within Laguna Lake Natural Reserve (“LLNR”), as more fully
described on Exhibit A attached hereto and incorporated herein by reference; and (2) a parcel within
South Hills Natural Reserve (“SHNR”), as more fully described on Exhibit B attached hereto and
incorporated herein by reference. These parcels within LLNR and SHNR shall be collectively
referred to herein as the “Propert ies.”
B. Grantor intends to grant a conservation easement over: (1) a 0.34-acre portion of
LLNR (“LLNR Easement Area”), which is legally described and depicted in Exhibit C attached
hereto and incorporated herein by reference; and (2) a 0.29-acre and 0.21-acre portion of SHNR
(collectively “SHNR Easement Area”), which is legally described and depicted in Exhibit D attached
hereto and incorporated herein by reference. The LLNR Easement Area and SHNR Easement Area
shall be collectively referred to herein as the “Easement Areas.”
C. LLNR is comprised of approximately 344 acres that is governed by a Conservation
Plan so as to be managed in accordance with Grantor’s Open Space Regulations and the
Conservation and Open Space Element of Grantor’s General Plan. The Conservation Plan provides
a framework for long-term stewardship of the reserve, and it places a priority on maintaining the
natural ecosystem, including the protection of plants and animals. Among other things, species of
special concern or with designations under the California Native Plant Society are protected and
monitored for long-term recovery. One of the sensitive plant species found and specifically
protected by Grantor at the reserve is the Adobe Sanicle (Sanicula maritima).
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32476\6431813.4
D. SHNR is comprised of approximately 130 acres t hat is governed by a Conservation
Plan so as to be managed in accordance with Grantor’s Open Space Regulations and the
Conservation and Open Space Element of Grantor's General Plan. The Conservation Plan provides a
framework for long-term stewardship of t he reserve, and it places a priority on maintaining the
natural ecosystem, including the protection of native plant and animal species. One of the sensitive
plant species found at the reserve is the Adobe Sanicle.
E. On April 15, 2014, the City Council o f the City of San Luis Obispo approved
Resolution No. 10514 (2014 Series) authorizing the development of Tract 2428 in the Margarita
Area of the City subject to certain conditions of approval (“Project”).
F. Mitigation Measure No. 6 of Section 2 of Resolution No. 10514 (2014 Series) for the
Project allows for relocation of some individuals of Adobe Sanicle on Tract 2428 to suitable sites
within the Project open space as well as other suitable off-site locations approved by Grantor. The
City Council specifically authorized the use of several areas within Laguna Lake Park (now known
as LLNR) for relocation of Adobe Sanicle plants. Accordingly, the developer of the Project,
Margarita Ranch SLO, LLC (“Developer”), has or will leave some plants in their original location,
transplant some plants within the Project open space and other plants within Grantor approved areas
of LLNR or other suitable off-site designated areas, including SHNR. Developer entered into
agreements with researchers who received Research Permits from Grantee to begin undertaking
these activities (collectively “Research Permits”).
G. On June 14, 2017, Grantor entered into a License Agreement with Developer to
authorize Developer and its agents to plant and transplant seedlings, root cuttings and Adobe Sanicle
plants to the Properties and to maintain them for five years as contemplated by the Research Permits.
As contemplated by Paragraph 10 of the License Agreement, this Conservation Easement supersedes
the License Agreement, which will be mutually terminated by Grantor and Developer once this
Conservation Easement has been recorded.
H. The Easement Areas are in a predominantly unimproved natural condition and
possess wildlife and habitat values of great importance to Grantor, Grantee, and the people of the
State of California. The Easement Areas provide high quality habitat for Adobe Sanicle plants.
Individually and collectively, these wildlife and habitat values comprise the “Conservation
Values” of the Easement Areas.
I. The California Department of Fish and Wildlife (“CDFW”) has jurisdiction,
pursuant to Fish and Game Code section 1802, over the conservation, protection, and
management of fish, wildlife, native plants and the habitat necessary for biologically sustainable
populations of those species, and CDFW is authorized to hold conservation easements for these
purposes pursuant to Civil Code section 815.3, Fish and Game Code section 1348, and other
provisions of California law.
J. This Conservation Easement provides mitig ation for certain impacts on the Adobe
Sanicle plant of the Project located in the City of San Luis Obispo, County of San Luis Obispo,
State of California pursuant to California Native Plant Protection Act Incidental Take Permit No.
_________, issued to Developer, dated ________, 2018 (“Incidental Take Permit”).
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32476\6431813.4
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and pursuant to California law, including Civil Co de sections 815, et seq., Grantor
hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the
Easement Areas.
1. Purposes. The purposes of this Conservation Easement are to ensure that the
Easement Areas will be retained forever in their natural, restored or enhanced condition for
conservation of the Adobe Sanicle plant and to prevent any use of the Easement Areas that will
impair or interfere with the Conservation Values of the Easement Areas. Grantor intends that t his
Conservation Easement will confine the use of the Easement Areas to activities that are consistent
with such purposes, including, without limitation, those involving the preservation, restoration, and
enhancement of Adobe Sanicle.
2. Grantee’s Rights. To accomplish the purposes of this Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee :
(a) To preserve and protect the Conservation Values of the Easement Areas;
(b) To enter the Properties at reasonable times and upon reasonable notice in
order to access the Easement Areas to monitor compliance with and otherwise enforce the terms
of this Conservation Easement, and for scientific research and interpretive purposes by Grantee
or its designees if explicitly authorized in the Incidental Take Permit or the Research Permits,
provided that Grantee shall not unreasonably interfere with Grantor's authorized use and quiet
enjoyment of the Properties;
(c) To prevent any activity on or use of the Easement Areas that is
inconsistent with the purposes of this Conservation Easement and to require the restoration of
such areas or features of the Easement Areas that may be damaged by any use or activity that is
inconsistent with the purposes of this Conservation Easement, except as set forth in Section 11
herein; and
(d) All present and future development rights appurtenant to, allocated,
implied, reserved or inherent in the Easement Areas, except as set forth in Sections 4 and 6
herein; such rights are hereby terminated and extinguished, and may not be used on or
transferred to any portion of the Easement Areas, the Properties, nor any other property adjacent
or otherwise.
3. Prohibited Uses. Any activity on or use of the Easement Areas that is
inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the
generality of the foregoing, the following uses and activities by Grantor, Grantor’s agents and third
parties are expressly prohibited:
(a) Filling, dumping, excavating, drilling, mining, grading or any other similar
land disturbance;
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32476\6431813.4
(b) Construction, reconstruction, erecting or the placement of any building,
structure or improvement of any kind;
(c) Commercial, industrial, agricultural, residential or institutional uses;
(d) Any division, subdivision or partitioning of the Easement Area;
(e) Depositing or the accumulation of soil, trash, refuse, waste or any other
materials;
(f) Removing, destroying, or cutting of trees, shrubs or other vegetation, except
as required by law for wildland fire vegetation control (weed abatement) or weeding as needed to
promote the health of the Adobe Sanicle plants;
(g) Altering the surface or general topography of the Easement Area, including,
but not limited to, alt erations to habitat, building roads, paving or otherwise covering the Easement
Area with concrete, asphalt or any other impervious material;
(h) Planting, introducing or dispersing non-native or exotic plants;
(i) Use of off-road vehicles and use of any other motorized vehicles except on
existing roadways; and
(j) Manipulating, impounding or altering any natural water course, or body of
water located on the Easement Areas, and activities or uses on the Easement Areas detrimental to
water quality, including but not limited to degradation or pollution of any surface o r sub-surface
waters.
4. Allowed Uses. Notwithstanding anything herein to the contrary, nothing in this
Conservation Easement shall prohibit Grantor from conducting seasonal livestock grazing in the
Easement Areas, installing or maintaining native landscaping within the Easement Areas, or
allowing public access to the Easement Areas, provided such uses do not unreasonably interfere with
the purpose and intent of this Conservation Easement.
5. Grantor’s Duties. Pursuant to the Incidental Take Permit, Developer will be
funding the installation of fences to enclose each of the Easement Areas and the posting of signs
to warn the public regarding the easement usage, and these features shall be maintained over
time. These actions shall constitute reasonable actions by Grantor to prevent the unlawful entry
and trespass by persons whose activities may degrade or harm the Conservation Values of the
Easement Areas. In addition, Grantor shall undertake all necessary actions to perfect the rights
of Grantee under Section 2 of this Conservation Easement.
6. Reserved Rights. Grantor reserves to itself, and to its officials, officers and
employees, agents, representatives, successors and assigns, all rights accruing from its ownership
of the Easement Areas, including the right to engage in or to permit or invite the public to engage
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32476\6431813.4
in all uses of the Easement Areas that are not expressly prohibited or limited by, and are
consistent with the purposes of, this Conservation Easement.
7. Grantee’s Remedies.
(a) If Grantee determines that a violation of the terms of this Conservation
Easement has occurred or is threatened, Grantee shall give written notice to Grantor of such
violation and demand in writing the cure of such violation (“Notice of Violation”). Notice shall
be provided in accordance with Section 20 of this Conservation Easement. Grantor and Grantee
shall meet and confer in person or by telephone within twenty (20) days after Grantor’s receipt of
the Notice of Violation in a good faith effort to resolve their differences regarding any alleged
violation(s). No action described in section (b) herein shall be taken unless or until such a
conference has taken place.
(b) If Grantor fails to cure the violation within forty-five (45) days after
receipt of the Notice of Violation, or if the cure reasonably requires more than forty-five (45)
days to complete and Grantor fails to begin the cure within the forty-five (45)-day period or fails
to continue diligently to complete the cure, Grantee may br ing an action at law or in equity in a
court of competent jurisdiction for any or all of the following: to recover any damages to which
Grantee may be entitled for violation of the terms of this Conservation Easement or for any
injury to the Conservation Values of the Easement Areas; to enjoin the violation, by temporary
or permanent injunction; to pursue any other legal or equitable relief, including, but not limited
to, the restoration of the Easement Areas to the condition in which it existed prior to an y such
violation or injury; or to otherwise enforce this Conservation Easement.
(c) Grantee’s remedies described in this section shall be cumulative and shall
be in addition to all remedies now or hereafter existing at law or in equity, including but no t
limited to, the remedies set forth in Civil Code sections 815, et seq.
(d) If at any time in the future Grantor or any subsequent transferee uses or
threatens to use the Easement Areas for purposes inconsistent with this Conservation Easement
then, despite the provisions of Civil Code section 815.7, the California Attorney General, any
person and any entity with a justiciable interest in the preservation of this Conservation
Easement has standing as an interested party in any proceeding affecting this Conservation
Easement.
8. Attorneys’ Fees and Costs. If suit, arbitration or other action of any type or nature
is brought by Grantee to enforce any of the terms and conditions of this Conservation Easement,
be it in law or in equity, the prevailing part y shall be entitled to an award of its attorney’s fees in
addition to all other costs and/or expenses of collection, suit, arbitration and/ or other action
taken, including, but not limited to, costs of restoration of the Easement Areas.
9. Grantee’s Discretion. Enforcement of the terms of this Conservation Easement by
Grantee shall be at its discretion, and any forbearance by Grantee to exercise its rights under this
Conservation Easement in the event of any breach of any term of this Conservation Ea sement
shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent
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32476\6431813.4
breach of the same or any other term of this Conservation Easement or of any rights of Grantee
under this Conservation Easement. No delay or omission by Gr antee in the exercise of any right
or remedy shall impair such right or remedy or be construed as a waiver.
10. Baseline Conditions. Grantor and Grantee acknowledge and agree that the baseline
conditions assessment prepared by Althouse and Meade, Inc. dated _________________, which has
been prepared within six months prior to the Effective Date, accurately depicts the conditions of the
Easement Areas at the time that this Conservation Easement becomes effective.
11. Acts Beyond Grantor’s Control. Nothing contained in this Conservation Easement
shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change
in the Easement Areas resulting from any (i) natural cause beyond Grantor's control, including,
without limitation, fire not caused by Grantor, flood, storm, long-term drought, long-term change in
regional climate conditions, earth movement and disease outbreaks, or any prudent action taken by
Grantor under emergency conditions to prevent, abate, or mitigat e significant injury to the Properties
or public health or safety resulting from such causes; (ii) acts by Grantee or a third -party beneficiary,
or any of their employees or agents; or (iii) acts by any person, including the general public, not
under Grant ee's direction or control.
12. Project Developer Obligations. Developer is solely responsible for funding and
implementing the requirements of the Incidental Take Permit. Grantor does not have legal
responsibility for funding or implementing Incidental Take Permit requirements, except to the extent
that Grantor is expected to perform long-term Incidental Take Permit responsibilities using the
endowment described below. Developer has established (A) a fund [revise description when exact
form in known] to pay for mitigation and Incidental Take Permit tasks necessary in the first five
years, and (B) an endowment satisfactory to Grantor and Grantee that fully funds the long -term
planting, establishing, maintaining, monitoring and reporting on the status of the Adobe Sanicle
plants that are propagated in or transplanted to the Easement Areas as required by the Incidental
Take Permit issued by Grantee and the Adobe Sanicle mitigation obligations required by Grantor.
13. Costs and Liabilities. Except as provided in Section 12, Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the ownership,
operation, upkeep, and maintenance of the Properties, including the Easement Areas. Grantor
agrees that Grantee shall not have any duty or responsibility for the operation, upkeep or
maintenance of the Properties, the monitoring of hazardous conditions thereon, or the protection
of Grantor, the public or any third parties from risks relating to conditions on the Propertie s.
Grantor remains solely responsible for obtaining any applicable governmental permits and
approvals required for any activity or use permitted by this Conservation Easement, including
those required from Grantee acting in its regulatory capacity, and an y activity or use shall be
undertaken in accordance with all applicable federal, state, local and administrative agency
statutes, codes, ordinances, rules, regulations, orders and requirements.
14. CDFW Right of Enforcement . All rights and remedies as conveyed to Grantee
under this Conservation Easement shall extend to and enforceable by CDFW. These
enforcement rights are in addition to, and do not limit, the rights of enforcement CDFW has
against Developer under the Incid ental Take Permit.
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15. Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments
(general and special), fees, and charges of whatever description levied on or assessed against the
Properties, if any, including the Easement Areas, by competent authority (collectively “Taxes”),
including any Taxes imposed upon, or incurred as a result of, this Conservation Easement, and
shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep the
Easement Areas free from any liens, including those arising out of any obligations incurred by
Grantor for any labor or materials furnished or alleged to have been furnished to or for Grantor at
or for use on the Properties, including the Easement Areas.
16. Hold Harmless. Grantor shall hold harmless, protect, and indemnify Grantee and
its directors, officers, employees, agents, contractors, and representatives and the heirs, personal
representatives, successors and assigns of each of them (each an “Indemnified Party” and,
co llectively, "Indemnified Parties") from and against any and all liabilities, penalties, costs,
losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts'
fees), causes of action, claims, demands, orders, liens or judg ments (each a “Claim” and,
collectively, “Claims”), arising from or in any way connected with: (1) injury to or the death of
any person, or physical damage to any property, resulting from any act, omission, condition, or
other matter related to or occurring on or about the Conservation Easement, regardless of cause,
except that this indemnification shall be inapplicable to Indemnified Parties with respect to any
Claim due partly or solely to the negligence of Grantee, in which case indemnification shall b e
apportioned according to comparative negligence principles; (2) the obligations specified in
Sections __, __, and __ [verify the Section numbers listed here refer to “Grantor’s Duties,”
“Costs and Liabilities,” and “Taxes; No Liens” sections], and (3) the existence or
administration of this Conservation Easement. If any action or proceeding is brought against any
of the Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon
written notice from Grantee, defend such act ion or proceeding by counsel reasonably acceptable
to Grantee or reimburse Grantee for all charges incurred for services of the California Attorney
General in defending the action or proceeding.
17. Extinguishment . If circumstances arise in the future that render the purposes of
this Conservation Easement impossible to accomplish, this Conservation Easement can only be
terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent
jurisdiction.
18. Condemnation. This Conservation Easement is a “wildlife conservation
easement” acquired by a State agency, the condemnation of which is prohibited except as
provided in Fish and Game Code section 1348.3. If the Conservation Easement is condemned,
the net proceeds from the condemnation shall be used in compliance with Government Code
section 65966(j).
19. Transfer of Easement . This Conservation Easement may be assigned or
transferred by Grantee only to another entity or organization authorized to acquire and hold
conservation easements pursuant to Civil Code section 815.3 and Government Code section
65967 (and any successor or other provisions then applicable) or the laws of the United States.
Grantee shall require the assignee to record the assignment in the county where the Properties are
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located. The failure of Grantee to perform any act provided in this section shall not impair the
validity of this Conservation Easement or limit its enforcement in any way.
20. Notices. Any notice, demand, request, consent, approval, or other communication
that any party desires or is required to give to the other parties shall be in writing and be served
personally or sent by recognized overnight courier that guarantees next -day delivery or by first
class United St ates mail, postage fully prepaid, and addressed as follows:
To Grantor: City of San Luis Obispo
990 Palm Street
San Luis Obispo, California 93401
Attn: City Manager
To Grantee: California Department of Fish and Wildlife
Region 4
1234 East Shaw Avenue
Fresno, California 93710
Attn: Regional Manager
Copy to: California Department of Fish and Wildlife
Office of the General Counsel
1416 Ninth Street, 12th Floor
Sacramento, California 95814-2090
Attn: General Counsel
or to such other address as Grantor or Grantee shall designate by written notice to the other
parties. Notice shall be deemed effective upon delivery in the case of personal delivery or
delivery by overnight courier or, in the case of delivery by first class mail, three (3) days after
deposit into the United States mail.
21. Amendment . This Conservation Easement may be amended by Grantor and
Grantee only by mutual written agreement . Any such amendment shall be consistent with the
purposes of this Conservation Easement and California law governing conservation easements
and shall not affect its perpetual duration. Any such amendment shall be recorded in the Official
Records of the county in which the Properties are located.
22. Additional Provisions.
(a) Controlling Law. The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California, disregarding the conflicts of
law principles of such state.
(b) Liberal Construction. Despite any general rule of construction to the
contrary, this Conservation Easement shall be liberally construed to accomplish the purposes of
this Conservation Easement and the policy and purpose of C ivil Code sections 815, et seq. If
any provision in this instrument is found to be ambiguous, an interpretation consistent with the
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purposes of this Conservation Easement that would render the provision valid shall be favored
over any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on
its face any provision of this Conservation Easement, such action shall not affect the remainder
of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the
application of any provision of this Conservation Easement to a person or circumstance, such
action shall not affect the application of the provision to any other persons or circumstances.
(d) Entire Agreement. This instrument sets forth the entire agreement of the
parties with respect to the Conservation Easement and supersedes all prior discussions,
negotiations, understandings, or agreements of the parties relating to the Conservation Easement.
No alteration or variation of this instrument shall be valid or binding unless contained in an
amendment in accordance with Section 21.
(e) No Forfeiture. Nothing contained in this Conservation Easement will
result in a forfeiture or reversion of Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement shall be binding upon, and inure to the benefit of, the parties and their
respective personal representatives, heirs, successors, and assigns and shall constitute a servitude
running in perpetuity with the Properties.
(g) Termination of Rights and Obligations. A party's rights and obligations
under this Conservation Easement terminate upon transfer of the party's interest in the
Conservation Easement or Properties, except that liability for acts, omissions, or breaches
occurring prior to transfer shall survive transfer.
(h) Authority of Parties. Grantor represents and warrants that it is the true
owner of the Property. All persons e xecuting this Conservation Easement on behalf of a party
warrant that they have the authority to execute this Conservation Easement on behalf of that
party.
(i) Warranty. Grantor represents and warrants that Grantor is the sole owner
of fee simple title to the Properties; that the Properties are not subject to any other conservation
easement, except ______________________; and there are no outstanding mortgages, liens,
encumbrances or other interests in the Properties (including, without limitation, water and
mineral interests) that may conflict or are otherwise inconsistent with this Conservation
Easement and which have not been expressly subordinated to this Conservation Easement by a
written, recorded Subordination Agreement approved by Grantee.
(j) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
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(k) Recording. Grantee shall record this Conservation Easement in the
Official Records of the county in which the Properties are located, and Grantee may re-record it
at any time as it deems necessary to preserve its rights in this Conservation Easement.
(m) Exhibits. The following Exhibits referenced in this Conservation
Easement are attached to and incorporated by reference in this Conservation Easement:
EXHIBIT A – Legal Description of LLNR Property
EXHIBIT B – Legal Description of SHNR Property
EXHIBIT C – Legal Description and Map of LLNR Easement Area
EXHIBIT D – Legal Description and Map of SHNR Easement Area
IN WITNESS WHEREOF Grantor has executed this Conservation Easement as of the
day and year first above written.
GRANTOR:
City of San Luis Obispo, San Luis Obispo County, California
BY:
Heidi Harmon, Mayor
DATE:
Pursuant to authority conferred by Resolution No. __________________________
[NOTE: ATTACH EXHIBITS AND FORM OF NOTARY ACKNOWLEDGMENT]
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CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Conservation Easement
Deed by the City of San Luis Obispo, California, dated ___________________, to the
State of California, Grantee, acting by and through its California Department of Fish and
Wildlife ("CDFW"), a governmental agency (under Government Code section 27281), is hereby
accepted by the undersigned officer on behalf of CDFW, pursuant to the California Fish and
Game Code.
GRANTEE:
STATE OF CALIFORNIA, by and through its
DEPARTMENT OF FISH AND WILDLIFE
By: ____________________________
Title: ___________________________
Authorized Representative
Date: ___________________________
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State of California }
County of San Luis Obispo }
On___________________, before me,__________________________________________,
Date Name and Title of the Officer
personally appeared, _____________________________________________________,
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public Place Notary Seal Above
State of California }
County of San Luis Obispo }
On________________, before me,__________________________________________,
Date Name and Title of the Officer
personally appeared, _____________________________________________________,
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public Place Notary Seal Above
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document.
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF LLNR PROPERTY
(TO BE ATTACHED)
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EXHIBIT B
LEGAL DESCRIPTION OF SHNR PROPERTY
(TO BE ATTACHED)
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EXHIBIT C
LEGAL DESCRIPTION AND MAP OF LLNR EASEMENT AREA
(TO BE ATTACHED)
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EXHIBIT D
LEGAL DESCRIPTION AND MAP OF SHNR EASEMENT AREA
(TO BE ATTACHED)
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