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HomeMy WebLinkAboutD-1993-047431 879 Higuera Street, APN 02-427-002, 005, 009, and 013 Recorded 08/09/1993Doc No: 1993 - 047431 Rec No: 56029 Official Records :RF 17.00 San Luis Obispo Co. Recording Requested by and FRANCIS M. COONEY when Recorded Mail to: Recorder ' Aug 9, 1993 Public Works Department Time: 16:16 ' City of San Luis Obispo 955 Morro Street @@ [ 51 ;TOTAL 17.00 San Luis Obispo, CA 93401 - - - -- - - -- APN Nos. 02- 427 -002, 005, 009, 013 AGREEMENT TO PRESERVE OR REPLACE TREES This Agreement is between the City of San Luis Obispo, a Municipal Corporation (hereinafter referred to as "City ") and Copeland Investments Partnership (hereinafter referred to as "Owner") with reference to the following facts: A. Owner owns the following described real property in the City of San Luis Obispo, County of San Luis Obispo, State of California: Lots 1 through 8 and Lots 10 through 12 of Block 99 per the map of the Mission Vineyard Tract, as recorded in Book A of Maps, at Page 143, in the Office of the San Luis Obispo County Recorder. Excepting the southwesterly 25 feet of said Lot 8 and the southwesterly 10 feet of said Lot 12. B. Owner desires to construct a new commercial structure at 879 Higuera Street, known as the "Downtown Centre ", (hereinafter referred to as "Project "),.and C. City, as a condition of Project, requires the protection and preservation of trees on City right -of -way for the public health, safety, and welfare, and for the benefit of City.. THEREFORE, the parties hereto agree as follows: 1. Owner and its heirs, and assigns agree to preserve and protect trees #5 and #6 as shown on Exhibit "A" for the use and benefit of all the City. 1 194 3 -0 yVY3/ V 2. Trees to be preserved shall be protected at all times during grading and construction activities as required per the City Encroachment Permit ( #2.445) obtained by Maino Construction Company. 3. As a result of the "Owner's" construction, and due to the existence of large branches on the two (2) existing large Carrotwood (Ficus nitida) trees on the Morro Street frontage shown on said Exhibit A which preclude continuous scaffolding which meet Cal -OSHA specifications, City agrees to perform such pruning as required to provide for required scaffolding. By doing so, the health of the trees may be jeopardized and may create unsafe and /or poor aesthetic values, in the opinion of City. If, within a three (3) year period from the date of issuance of a certificate of occupancy for the project, the City, in its sole discretion, determines that: (a) Either or both of the subject trees require special care as a result of the above - described pruning, beyond typical annual pruning, (b) Either or both of the subject trees are dead or in poor condition so as to warrant its %their removal, (c) Either or both of the subject trees are in such condition or shape as to be deemed aesthetically unsightly. Then the respective surety may be used by City to remedy the situation to its satisfaction. In the case of Items b or c, the entire respective surety shall be forfeited by Owner. In the case of Item a, only the amount deemed necessary to remedy the problem shall be utilized. All remaining amounts of surety shall be returned to the Owner upon expiration of the three (3) year period subject to the terms herein.described. 4. Owner agrees to file with the City a $14,978.00 Certificate of Deposit or Letter of Credit (to the approval of the City Attorney) to .insure performance of the terms. of.--this, agreement. ($6,810.00 Tree #5; $8,168.00 Tree #6). Owner may substitute a performance bond in the amount of $22,500.00 (including any attorney fees and court .__costs) in lieu of a Certificate of Deposit or Letter of Credit, to the approval of the City Attorney. 5. Indemnification and Hold Harmless Agreement. Owner agrees to defend, indemnify, protect' and .hold City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property; including injury to,owner's employees, agents, or officers which arise from or are connected with or are caused' or 2 19 � -4 k/ 7 v a / '1 claimed to be caused by the acts or omissions of Owner and its agents, officers, or employees, as a result of any maintenance work, pruning, or trimming, or.any method of preservation or care of the two existing large carrotwood trees (Ficus nitida) located on the Project (as shown on Exhibit A) , during,-,or upon 3 years from completion _of construction of the Project _and all expenses of investigating. and .defending against same; - .provided, however -, thdt -_. Owner's duty to indemnify and'hold harmless'shall not include any, claims or liability arising. from the established sole active negligence or willful misconduct of the City-, its agents, officers or employees. 6. The surety shall be submitted to City by September 1, 1993. Failure to submit same shall be grounds for the City to withhold a Certificate of Occupancy for the Project. Both the surety and agreement shall continue in force during construction activities and for three (3) .years beyond the date a final certificate of occupancy is issued for the project. The Public Works Director shall release the surety and developer from this agreement when he determines that all terms of this agreement have been met. 7. The owner acknowledges that this agreement is a covenant running with'the land. 8� 5 -93 Owner. L'oPkrGftrp /n/'11,FS71-?�orfITs Date APPROVED: Michael McCluskey Public Works Director (Attach Notary Certificate Here) JU /preserves by 3 �� 93 .- PURPOSE ACKNOWLEDGMEINY No. 519 State of I OY h fiGL. CAPACITY CLAIMED BY SIGNER County of `ui:506s� ,� ❑ INDIVIDUAL On S J before me, L ` I ► I'�tC� I T NN�O ICu�t7 11 , ❑ OFFICER(S) TITLE(S) O DATE . TITLE OF OFFICER E.G.. WE DOE, ❑ PARTNER(S) ❑LIMITED personally appeared ' � Q 0-b e Q.�'V ❑ GENERAL p Y pp NAME(S) OF SIMER(30 ❑ ATTORNEY -IN -FACT sonalty known to me - OR - ❑ proved to me on the basis of satisfactory evidence ❑ TRUSTEE(S) to be the person(s) whose name(s) is /are ❑ GUARDIAN/CONSERVATOR subscribed to the within instrument and acknowledged to me that he/she /they ❑ OTHER: 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 SIGNER SSaREORESTMNES) NAmE MARYELLEN METCALF which the person(s) acted, executed the COMM. #969032 Z i : -mom Notary Public- California D instrument. SAN LUIS OBISPO COUNTY My comm. expires JUL 06.1996 Wdqps my hand nd I* seal. S ATURE OF NOTARY ATTENTION NOTARY: Although the information requested below is OPTICINAL, it could Prevent fraudulent attachment of this certificate to an unauthorized document THIS CERTIFICATE Title or Type of Docum nt ? MUST BE ATTACHED Number of Pages Date of Document Sr�3 TO THE DOCUMENT DESCRIBED AT RIGHT: Signer(s) Other than Named Above 01992 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 -Canoga Park, CA 91304 -7184 State of California } County of San Luis Obispo } On , 19q, before me, Diane R. Stuart, Notary Public, personally appear C rl jj ' Aer onog personally known to me car ( ) proved to me on the basis of satisfactory evidence to be the whose nam is - subscribed to the within instrument and acknowledged to me that he executed the same irt(S'I ptw4their capacity(W&b and that b is /t�ey4hoW signature on the Instrument the person( or the entity upon behalf of which the person acted, executed the instrument. 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