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Home My WebLink AboutD-1626 052-252-026 Foothill Bridge at Stenner Creek Recorded 10/14/2004JULIE RODEVY" D San Luis Obispo L y — Clerk/Recorder Recorded at the request of Public DOC #: 2004091029 Recording Requested by: CITY OF SAN LUIS OBISPO When Recorded Mail To: Barbara Lynch City of San Luis Obispo Department of Public Works 955 Morro Street San Luis Obispo, CA 93401 APN: 052 - 252 -026 THIS DOCUMENT IS RECORDED FOR THE BENEFIT OF THE CITY OF SAN LUIS OBISPO, A MUNICIPAL CORPORATION AND IS EXEMPT FROM FEE PER GOVERNMENT CODE SECTIONS 27383 AND 6103 TEMPORARY CONSTRUCTION EASEMENT BY AND BETWEEN THE CITY OF SAN LUIS OBISPO AND SELECT INCOME PROPERTIES 6 MEL 10/14/2004 9:00 AM Titles: 1 Pages: 6 Fees 0.00 Taxes 0.00 Others 0.00 PAID S0.00 SELECT INCOME PROPERTIES 6, a California Limited Partnership, ('Owner) hereby grants to the City of San Luis Obispo, its agents, employees and contractors, a temporary construction easement ("TCE") for access to staging area, on, over and across certain real property owned by the OWNER, located at APN 052 - 252 -026, San Luis Obispo,CA and as more particularly described on Exhibit "A° attached hereto ( "Easement Area "), for the purpose of installing, constructing and/or improving the Foothill Bridge at Stenner Creek, located on adjacent and nearby property, and accomplishing all necessary incidents and appurtenances thereto ("Project"). Under this TCE, CITY's use of the Easement Area shall be exclusive. As a result, CITY, from time to time, may exclude persons or other uses of all or a portion of the Easement Area if, in CITY's sole discretion, the presence of said persons or other uses would be hazardous or would hinder CITY's activities related to the Project. This temporary easement shall commence on June 15, 2004, and shall expire not later than twenty -four (24) months thereafter or on the completion of construction, whichever shall first occur. Owner acknowledges that it has received compensation from City for the TCE. At the completion of the Project, CITY agrees to restore the Easement Area to its original condition as nearly as is practicable. CITY shall indemnify and hold OWNER harmless from any liability for injuries or damage resulting from the acts of CITY'S agent, employees or contractors on the easement Area pursuant to this TCE. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date set forth next to their respective signatures as follows: Dated: 9-.z�- 6e 2004 SELECT INCOME PROPERTIES 6, a California Limited Partnership B : zrc'L ' General Partner State of C9/ 1o% . 9 ) ) ss. County of SQL 2Li S On P 1 2004, before me, personally appeared Ayl 4e aDrY W personally known to me or proved to me on the basis of satisfactory evidence to be the per§9DWwhose nammi aresubscribed to the within instrument and acknowledged to me that h8 "y executed the same in WLQAR authorized capaciWiesf, and that by his/ e�tjaerr signaturelsy n the instrument the person syofthe entity upon behalf of which the person cted, executed the instrument WITNESS my hand and official seal. . 1279702 O COMM. CCMM. #1279702 ' m ' NOTARY PURL IC-CALIFORNIA =Q {— SAN LUIS COUNTY My Comm. Expfires 0c tober 7, 2 004 ' � Si na! of Notary Public 0,9 Exhibit A Legal Description A portion of the land described in the grant deed to Select Income Properties 6, a California limited partnership recorded July 11, 1977 in Book 1993 of Official Records at Page 600 of Official Records in the Office of the County Recorder of the County of San Luis Obispo, in the City of San Luis Obispo, County of San Luis Obispo, State of California, being more particularly described as follows: Commencing at the corner common to Sections 22,23,26 and 27, on the northerly line of Foothill Boulevard, as shown on the map of California Park Subdivision filed December 2, 1919 in Book 2, at Page 36 of Maps, in the Office of the County Recorder of said County, marked by a brass cap as shown on a Record of Survey filed in Book 81 Page 31 of Licensed Surveys in the Office of the County Recorder of said County, from which a found tag stamped LS 7318 marking the intersection of Foothill Boulevard with Casa Street cap as shown on said Record of Survey bears, north 81 °23'03" east 114.936 meters [north 79 °21' 11" east 114.941 meters calculated from data per said Record of Survey]; Thence south 89 °17'58" east 6.667 meters to a point on the northerly line of Foothill Boulevard, 60 feet wide, as shown on said map filed in Book 2, at Page 36 of Maps and the True Point of Beginning; Thence north 03 °51'21" east 22.344 meters; Thence south 86 °44'18" east 16.574 meters; Thence north 80 °15'13" east 20.952 meters; Thence south 07°33'01" east 5..664 meters; Thence south 80 °51'10" west 20.780 meters; Thence north 87 °01'06" west 11.528 meters; Thence south 01'51'08" west 16.672 meters to said northerly line; Thence, along said northerly line, north 89 °17'40" west 6.877 meters to the True Point of Beginning. Containing 0.0319 hectares (3,429 sq. ft.) more or less. The above- described piece of land is graphically shown on Exhibit "B" attached hereto and made a part hereof. End of Description. 1 vwo George . Marchenko LS 6964 Date U�rQCa�' License Expiration Date: 9/30/2005 W select6- 8S8A.doc apn 052- 252 -026 L.S. 6964 .9-30 -oS U LINE TABLE LINE LENGTH BEARING LO 6.667 NB9 °17'58'W L1 22.344 NO3'51'21'E L2 16.574 S86 °44'18'E L3 20.952 N80'15'13'E 1-4 5.664 S07 °33'01'E L5 20.780 S80 °51'10'W 1-6 11.528 N87601'06'W L7 16.672 S01 *51'08'W L8 6.877 N89617'40'W Section Corner Sections 22,23,26 and 27 Fd 3.5" Brass Disk stamped "Black CO Survey" per 81/LS/31 1993/OR/600 Point of Commencement I L2 L3 EXHIBIT "B" 9 �fo \ Doc. No. 2000 - 073535 & 2001- 002824 Parcel 1 of 37 /PM /13 Lot 29 2/MB/36 �` °A e Containing 0.0319hectares (3,429 sq. ft.) more or I ss. 4 / 5 / L6 L ----- - - - - -- N g1 23'03_' E 114.936 J --- --- ------ - - - - -- ° FookV, DLO L 8 True Point Of �- 6 0a Beginning N75 48 S89.17'40' E U1 eeerees 1 0 0 5 0 1 :800 A portion of the land described in the grant deed to Select Income Properties 6, a California limited partnership recorded July 11, 1977 in Book 1993 of Official Records at Page 600 of Official Records in the Office of the County Recorder of the County of San Luis Obispo, State of California. Sheet 1 of 1 477 -0001 select6 -8 &8A 1:800 01/28/04 John L. Wallace & Associates iij opn 052- 252 -026 WA CERTIFICATE OF ACCEPTANCE Government Code Section 27281 THIS IS TO CERTIFY that THE CITY OF SAN LUIS OBISPO hereby accepts for public purposes the Temporary Construction Easement described in the within instrument and consents to the recordation thereof. CITY OF SAN LUIS OBISPO This document is for the benefit of the City of San Luis Obispo, a public body corporate and politic, of the State of California. Request for recordation without fee is made in accordance with Sections 6103 and 27383 of the Government Code of the State of California. ATTEST: 1 e CITY OF SAN LUIS OBISPO Ci 'Clerk STATE OF CALIFORNIA SS COUNTY OF SAN LUIS OBISPO On this PX day of �'� t�"`�O Q� , 2004, before me, Audrey Hooper, City Clerk, personally appeared Mayor Davi �omero known to me to be the person whose name is subscribed to the within instrument and lac nowledged to me that he executed the same in his authorized capacity, and that by his signature, the entity upon behalf of which he acted executed the instrument. WITNESS my hand and official seal. Audrey Hooper City`Clerk. . END OF DOCUMENT C'. -- SETTLEMENT AND PURCHASE AGREEMENT �ThiiSettlement and Purchase Agreement ("Agreement") is entered into as of this / day of4urre, 2004, between SELECT INCOME PROPERTIES 6, a California Limited Partnership, ('Owner"); and the CITY OF SAN LUIS OBISPO, a Municipal Corporation ("City" or "ItsJ. RECITALS A. Owner is the owner of that certain real property located within the City of San Luis Obispo, San Luis Obispo County, California, also known as Assessor's Parcel Number 052 -252- 026 ( "Real Property"). B. City desires to purchase temporary construction easements in, over, across and upon Real Property, hereinafter referred to as the "Easements". C. City has the power of eminent domain pursuant to the laws of the State of California. City has initiated an eminent domain lawsuit against Owner, identified as San Luis Obispo County Superior Court No. CV 040180. City and Owner have reached an agreement by which City shall acquire the Easements pursuant to the terms and conditions contained herein. D. City desires to purchase the Easements from Owner, and Owner desires to grant the Easements to City on the terms and conditions contained in this Agreement NOW, THEREFORE, for valuable consideration, and subject to all terms and conditions hereof, City and Owner agree as follows: 1. PURCHASE AND SALE. Pursuant to the terms and conditions contained in this Agreement, Owner hereby agrees to grant the Easements to City and City hereby agrees to accept the Easements from Owner. 2. PURCHASE PRICE. A. The purchase price ( "Purchase Price ") for the easements shall be THIRTY THOUSAND DOLLARS ($30,000), payable by City to Owners in cash within the period of time set forth in Section 2 (C) below. B. Owner shall have executed in recordable form the Grants of Easement ("Deeds") attached hereto as Exhibit A and deliver said Deeds to City within ten (10) days of the date of this Agreement is executed. City shall execute a Certificate of Acceptance of said Deeds and deposit them with the County Recorder for recordation within ten (10) days of the date City receives the executed Deeds from Owner. settlement and Purchase Agreement Page 1 C. Within ten (10) days of the date City receives the executed Deeds from Owner, City shall cause to be filed with the San Luis Obispo Superior Court a Petition for Refund of the deposit on file with San Luis Obispo County in this action. Said petition shall request an order from the Court that the $7,300 previously deposited by City for the benefit of defendants in the eminent domain action be withdrawn from the deposit and made payable directly to City, in care of its counsel at the address indicated in Section 8 herein. Buyer shall pay the purchase price of $30,000 to Owner not later than thirty (30) days following Buyers receipt of the executed Deeds. 3. REPRESENTATIONS AND WARRANTIES. A. City hereby represents and warrants to Owner that (i) it has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; (ii) all requisite action has been taken by City in connection with the entering into of this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and (iii) no consent of any other party is required. B. Owner hereby represents and warrants to City that (i) it has the legal power, right and authority to enter into the Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; (ii) all requisite action (corporate, trust, partnership or otherwise) has taken by Owner in connection with the entering into this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and (iii) no consent of any other party is required. C. The project for which City requires said temporary construction easements is the Foothill Bridge Replacement Project. City's contractor shall carry general comprehensive insurance having not less than One Million ($1,000,000.00) Dollar coverage, and said contractor shall be bonded for performance. D. In the even that said Real Property is damaged during the construction of said Project, Owner shall notify City within seven (7) days of said damage and City shall cause its contractor to repair said damage as soon as is reasonably possible. E. The City agrees to restore the subject property to its existing condition as is reasonably possible upon completion of the Project. F. Owner warrants that there are no leases on the property other than those for rental of the apartments. settlement and Purchase Agreement Page 2 G. This agreement between Owner and City is subject to approval by the City Council of the City of San Luis Obispo. 4. INDEMNIFICATION. City shall save, defend, indemnify and hold harmless, Owner, its directors, officers, employees and agents, successors and assigns (herein collectively called 'Indemnified Panties ") from and against any and all suits, actions, legal or administrative proceedings, claims, demands, actual damages, fines, punitive damages, losses, costs, liabilities, interest, attorneys fees (including any such fees and expenses incurred enforcing this indemnity) (herein collectively called "Damages") arising from the construction of said project The covenants set forth in this Section shall survive delivery of the Deed. 5. DISMISSAL OF EMINENT DOMAIN ACTION & RELEASE OF LIS PENDENS. City shall dismiss said eminent domain lawsuit upon recordation of the grant of easement, and City shall record a Release of Lis Pendens. 6. RELEASE OF CLAIMS. Owner hereby releases and forever discharges, on behalf of the Owner, and its partners, affiliates, creditors, successors, assigns, heirs, executors and administrators, the City and the City's Council Members, and City's employees, agents, contractors and affiliates from any and all demands, claims or causes of action against the City of San Luis Obispo arising out of or pertaining to the acquisition of the Easements in Owner's Real Property, including but not limited to any claims for just compensation, litigation expenses, attorney's fees and costs including, but not limited to, costs incurred to defend the lawsuit, statutory relocation assistance and /or benefits, loss or damages for inverse condemnation, unreasonable precondemnation delay, or unreasonable precondemnation activities. In giving this release, the Owner and Sublessee waive the protection of Civil Code Section 1542, which statute provides as follows: °A general release does not extend to claims which the creditor does not know or subject to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 7. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the applicable laws of the State of California. Settlement and Purchase Agreement Page 3 8. NOTICE. All notices or other communications required or permitted hereunder shall be writing, and shall be personally delivered, sent by national overnight courier service, sent by facsimile transmission, if also sent by one of the other methods provided in this Section, or sent by registered or certified mail, first class postage prepaid, return receipt requested, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice; (ii) the date of the facsimile; or (iii) three (3) business days after the date of posting with the United States Postal Service at the following addresses: To Owner- Select Income Properties 1050 Foothill Blvd. San Luis Obispo, CA 93405 To City With Copy to: Barbara Lynch Jonathan Lowell City of San Luis Obispo City Attorney, City of San Luis Obispo 955 Morro Street 990 Palm Street San Luis Obispo, CA 93401 San Luis Obispo, CA 93401 Notice will be effective or deemed effective on the date of delivery, if personally delivered or sent by facsimile or courier service, or if mailed, three (3) days after deposit with the United States Postal Service. Any party to this Agreement may change its address for receipt of notices by giving notice of such changes to the other party in the manner set forth in this Section. Neither the rejection of a notice by the addressee or the inability to deliver a notice because of a change of address for which no change of address notice was received, shall affect the date on which such notice is deemed received. 9. MISCELLANEOUS. A. Time. Time is of the essence of this Agreement with respect to each and every provision hereof in which time,is a factor. B. Entire Agreement. This Agreement, including the Exhibits attached hereto, contains the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes any and all prior agreements and understandings between the parties. No change in, modification of or amendment to this Agreement shall be valid unless set forth in writing and signed by all of the parties subsequent to the execution of this Agreement. Settlement and Purchase Agreement Page 4 C. Further Assurances. Each of the parties agrees that it will without further consideration execute and deliver such other documents and take such other action as may be reasonably requested by the other party to consummate more effectively the purposes or subject matter of this Agreement D. Successors. Subject to the provisions of this Agreement, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, executors, representatives, successors and assigns. E. Severability. In the event any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall be effective only to the extent of such determination and shall not prohibit or otherwise render ineffective any other provision of this Agreement Exhibits. References herein to exhibits are to Exhibit A, attached hereto, which exhibits are hereby incorporated by reference. G. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document IN WITNESS WHEREOF, City and Owner has executed this Agreement as of the date first written above. APPROVED AS TO FORM: orney ATTEST i . 3"' Y / V7rey per Cler CITY OF SAN LUIS OBISPO DAVID F. ROMERO Mayor SELECT INCOME PROPERTIES 6 a Calif is Limitetl Partnership General Partner Settlement and Purchase Agreement Page 5 IDsI r CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT am h),111: State of California County of San Luis Obispo On 07/06/2004 before me, Manuel Torres, Notary Public, personally appeared Arlette O'Donnell, ❑ personally known to me - OR - ® proved to me on the MANUELTORRES basis of satisfactory evidence to be the person whose O COMM. 412797 nany /,arm subscribed to the within instrument and �' O NOTARY PUBLIC-CALIFORNIA SAN LUIS ORISPO COUNTY My Comm. Expires October 7, 2004 y acknowledged to me that_h !s /-executed the same in jb s e authorized capacit y; and that by ,hi�W h fr signatu on the instrument the person the entity upon behalf of which the perso acted, executed the instrument. WITNESS my_hand Though the data below is not required by law, it may could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) ❑ Individual ❑ Corporate Officer Title ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: Absent Signer (Principal) is Representing: ADM -005 (06/00) valuable to persons relying on the document and DESCRIPTION OF ATTACHED DOCUMENT Settlement and Purcahase Agreement Title or Type of Document 6 Number of Pages 07/06/04 Date of Document Signer(s) Other Than Name(s) Above