HomeMy WebLinkAbout12/02/1997, 2 - AGREEMENT FOR ACQUISITION OF BISHOP PEAK PROPERTY council °
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CITY O F SAN LUIS O B I S P O
FROM: Ken Hampian,Assistant City Administrative Officer
Prepared By: Neil Havlik,Natural Resources Manager ,
SUBJECT: AGREEMENT FOR ACQUISITION OF BISHOP PEAK PROPERTY
CAO RECOMMENDATION
1. Adopt a resolution authorizing the Mayor to execute a Contingent Purchase and Sale
Agreement with Ray B. Bunnell for the acquisition by the City of approximately 108 acres of
the Bunnell Ranch, including the summit and upper elevations of Bishop Peak;
2. Appropriate $13,500 from the General Fund unappropriated fund balance for ancillary costs
related to survey,Phase I environmental work,fencing, signs,and other one-time costs.
3. Direct staff to return to Council with: (A) a final appropriation for the acquisition prior to the
close of escrow; (B) an annexation application for the acquired property and certain other
dedicated open space properties adjacent to the City limits, following the close of escrow; and
(C)a proposed policy facilitating the annexation of open space properties adjacent to the City.
DISCUSSION
Background
Negotiations with Mr. Ray Bunnell have been ongoing since mid to late 1995 regarding the open
space acquisition of the summit and upper elevations of Bishop Peak. We have now reached a
point where the Council can approve an agreement to achieve one of the most symbolic and
important open space acquisitions in County history. Key agreement provisions and other actions
are described below.
Key Points of Agreement
1. Purchase price. The purchase price shall be $895,000, which includes a security deposit of
$10,000 to be deposited into escrow at the time of escrow opening. This price has been
confirmed as consistent with fair market value by an independent appraisal completed by Todd
Murphy of Schenberger Taylor McCormick&Jecker.
2. Reduction in Units. Standards adopted by the County in December 1996 allow for the
construction of 17 residential units on the Bunnell Ranch. With this sale, Mr. Bunnell will
forfeit the right to construct four of those units, which includes a home site on a ridge to the
north of Bishop Peak.
Council Agenda Report-Acquisition of Bishop Peak Property
Page 2
3. Transaction. The property will include approximately 108 acres of the Bunnell Ranch,
including the summit and upper elevations of Bishop Peak and 28 acres of the 38-acre approved
homesite on the ridge. Mr.Bunnell and the City will share in the cost of a record survey of the
property (not-to-exceed $7,500 to the City) to ensure that the acreage is accurate and that the
Bunnell Ranch retains at least 170 acres(the minimum he needs under County rules to build the
remaining 13 units). The transaction will also include an access easement for maintenance and
emergency purposes,which would be in favor of the City to access the property from Highway
1 through the Bunnell Ranch. This access would not be available for public use.
4. Timing. The agreement calls for the formal opening of escrow by January 2, 1998, and for
escrow to close not later than March 2, 1998.
5. Contingencies. This purchase and sale agreement is contingent upon acceptable title
conveyance, the needed lot line adjustment, an environmental survey (Phase I), and formal
approval by the Sierra Club and State Coastal Conservancy of grants in the amounts of
$350,000 and $45,000, respectively (the Sierra Club has already formally approved and
committed to their contribution and the Coastal Conservancy will consider the City's grant
application on December 5").
6. No-Build Areas. Three "No-Build Areas" are identified on the Bunnell Ranch in which Mr.
Bunnell agrees not to propose development of any residential structures or appurtenances to
residential structures (Attachment 2, Exhibit E). Adjustments to those no-build areas can be
made, but only if necessary in order to meet County requirements (significant adjustments are
not anticipated, since the no-build areas generally conform to current County concepts for the
site).
7. Access, Fencing_Posting and Patrol. Public access to the property will be from the adjacent,
City-owned Ferrini Ranch Open Space. There will be no public access through the Bunnell
Ranch, although present and future ranch residents will have access through several gates to be
installed at agreed upon locations. The agreement calls for the City to install fencing at the new
boundary. The parties will jointly work to upgrade the existing fencing on the boundary
between the Ferrini Open Space and the Bunnell Ranch. The City will install signs to identify
the boundary of City property and post the Bunnell property against trespass. The City also
agrees that the property will be patrolled by the City's park and open space rangers, consistent
with the conduct of such patrol on other City open space lands. In order to have firmer
authority in this regard, however, staff believes that annexation of this property is appropriate,
as discussed below.
Annexation of the Acquired Property
The property to be acquired by the City is not presently in the City limits. Yet, the City's open
space policies(and several provisions in the proposed agreement)require diligent City stewardship
over open space lands. To enhance our stewardship efforts, staff plans to bring an open space
enforcement ordinance to Council in early 1998. This ordinance is needed because City park
02-z
Council Agenda Report-Acquisition of Bishop Peak Property
Page 3
rangers presently rely on our parks ordinance to enforce rules in open spaces, even though parks
and open spaces have very different standards and requirements. The open space ordinance will
contain provisions more appropriate to the natural settings expected in the open space lands.
For this and other reasons, staff believes that it is appropriate that the acquired property be annexed
into the City. If Council concurs,staff will return in the near future with an annexation application
that includes, for the same reasons,portions of the Lemon Grove and Maino open space properties.
In addition, staff suggests that we draft a resolution for Council consideration that facilitates the
annexation of other additional open space properties when they are adjacent to the City limits.
Next Major Steps
On December 5, 1997,the State Coastal Conservancy will consider the City's application for a
$350,000 grant to support this acquisition. A delegation including the Mayor, City staff, and
representatives of the Chamber of Commerce and Sierra Club will be part of the presentation to be
made to the Conservancy Board.
During the escrow period, the lot line survey and adjustment necessary to have a separate parcel
available to be transferred will be completed. Staff will also bring a final appropriation action to the
Council prior to the close of escrow(no later than March 2, 1998).
Following the close of escrow, staff will also return to the City Council with an annexation
application and a proposed policy for annexing other open space properties adjacent to the City.
CONCURRENCES
The acquisition has received widespread support from the public, including the letters of support
from the Sierra Club, Chamber of Commerce, ECOSLO, the Land Conservancy, and interested
citizens. The community will also contribute financially through $45,000 in actual contributions to
the Sierra Club Morros Preservation Fund. On November 12, 1997, the Planning Commission
found the acquisition of this property to be consistent with the City's General Plan, and
Commission members also expressed considerable enthusiasm for the acquisition itself.
The Parks and Recreation and Community Development Departments have reviewed this report
and concur with the recommendation to pursue annexation of this and other open space properties.
Community Development staff is also working with LAFCo staff to determine if annexation of
open space can be accomplished without modifying the sphere of influence and/or the urban reserve
lines,thus avoiding the need for a General Plan amendment.
FISCAL IMPACT
Acquisition Cost. Funding to support the $895,000 acquisition cost is being assembled through a
partnership that includes State and City resources, and public contributions through the Sierra Club
Morros Preservation Fund. More specifically, finding is anticipated from the State Habitat
Council Agenda Report-Acquisition of Bishop Peak Property
Page 4
Conservation Fund($100,000),the State Coastal Conservancy ($350,000), the Morros Preservation
Fund ($45,000) and the City ($200,000). To complete the transaction, staff is exploring various
other funding possibilities and will return prior to the close of escrow with a final recommendation.
The $10,000 deposit needed with the opening of escrow will be funded from the $200,000
authorized in the 1997-98 budget for open space acquisition.
Ancillary One-Time Costs. The agreement specifies that the City will share in the cost of certain
survey work and fence construction, and will fund a Phase I environmental study (standard with all
City land acquisitions), signage, and other miscellaneous one-time costs. While some funds are
available in the existing Natural Resources Program, it is necessary to allocate an additional
$13,500 from the City's General Fund unappropriated fund balance to support these ancillary costs.
This will not have any adverse impact on maintaining the city's minimum fund balance policy.
Ongoing OperatingCosts. These costs include minor ongoing supplies, repairs and improvements,
as well as field supervision. The minor expenses would include, for example, the occasional need
for road grading or drainage corrections, and maintenance of fencing, signage and trails. Such costs
can be supported within existing resources, as is the case with the Ferrini open space.
With regard to supervision, this will be accomplished primarily through the City's Park Ranger
program managed by the Parks and Recreation Department. In developing that program, an
estimate of .9 hours of ranger time per acre was established. Together, the Maino and Bunnell
acquisitions will result in over 200 acres of open space land added this fiscal year to the City's
holdings. Using the standard formula, this would require at least 180 hours of added ranger
services.
It needs to be recognized, however, that the Bishop Peak property is likely to require more than the
typical level of ranger patrol. This is because of its high level of use, which is expected to increase
once key trails to the Peak are in public ownership. Although no added ranger staffing is
recommended at this time, as the City's open space holdings grow it will periodically require
incremental increases in the ranger program (e.g. '/z full-time equivalent). Staff will monitor the
situation and return with a recommendation when such a point is reached.
ATTACHMENTS
1. Resolution
2. Purchase and Sale Agreement and Exhibits
3. Easement and Maintenance Agreement and Exhibits
G:Havlik/Bunnell/Peak Acquisition Agenda Report
RESOLUTION NO. (1997 Series)
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO
APPROVING A CONTINGENT PURCHASE AND SALE AGREEMENT WITH
RAY B. BUNNELL FOR THE ACQUISITION OF REAL PROPERTY
COMMONLY KNOWN AS BISHOP PEAK
WHEREAS, the City of San Luis Obispo ("City') is a California Charter Municipal Corporation;
and
WHEREAS, City, acting through its City Council and through adopted public procedures, has
determined that certain lands surrounding the City of San Luis Obispo are important to the scenic
character, healthy natural environment, and economic and social well-being of the community and
its citizens and has designated these lands as the San Luis Obispo Greenbelt; and
WHEREAS, within said Greenbelt, City seeks to preserve and conserve characteristics such as
visual quality, wildlife habitat, healthy agricultural economy, and rural setting through a variety of
techniques and programs, including purchase of land; and
WHEREAS, City, the County of San Luis Obispo, and the State of California all consider the
preservation of the chain of peaks stretching from Morro Bay to San Luis Obispo, commonly
known as the"Mon:os,"to be a high priority for the community and for the people of the State; and
WHEREAS, the City of San Luis Obispo, City of Morro Bay and County of San Luis Obispo are
cooperating in a special planning project with a citizens' advisory committee (known as the Morros
Advisory Committee) whose goal is to develop a long-term plan for protection and proper
stewardship of the Mor-os; and
WHEREAS, Mr. Ray B. Bunnell ("Seller") is owner of certain lands which lie within said
Greenbelt, which are of scenic, ecological, and agricultural value to the City and County of San
Luis Obispo; and
WHEREAS, said lands include the summit and upper elevations of the tallest of the Mor os,
commonly known as Bishop Peak; and
WHEREAS, Seller is desirous of preserving such values of said property by the sale of the property
for permanent open space purposes to the City of San Luis Obispo; and
WHEREAS, the purchase of said land in the judgment of City would act to preserve the values
indicated above and serve an important municipal purpose.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Luis Obispo
hereby approves the "Contingent Purchase and Sale Agreement" with Ray B. Bunnell , covering
all of Seller's rights,title and interest in that certain real property in the County of San Luis Obispo,
01 S
together with all easements, rights and appurtenances thereto (specifically including all water and
mineral rights, and an access easement for maintenance and emergency purposes), as incorporated
herein by reference, and subject to the specific contingencies described therein.
BE IT FURTHER RESOLVED, that the Council hereby finds that the purchase of said property is
an exempt project under Section 15325 of the California Environmental Quality Act.
BE IT FURTHER RESOLVED, that the Council hereby finds that the purchase of said property is
consistent with applicable policies of the City's General Plan and Elements thereof.
BE IT FURTHER RESOLVED, that the Mayor is authorized and directed to execute said
Contingent Purchase and Sale Agreement with Ray B. Bunnell.
On motion of Councilmember , seconded by Councilmember ,
and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this day of , 1997.
Allen K. Settle, Mayor
ATTEST:
Bonnie L. Gawf, City Clerk
APPROVED AS TO FORM:
Attorney
CONTINGENT PURCHASE AND SALE AGREEMENT
This CONTINGENT PURCHASE AND SALE AGREEMENT is entered into
by and between the CITY OF SAN LUIS OBISPO ( "Buyer" ) , a
California Charter Municipal Corporation, and RAY B. BUNNELL
( "Seller" ) , pursuant to the following recitals :
WHEREAS, Buyer is a California Charter Municipal Corporation;
and
WHEREAS, Buyer, acting through its City Council and through
adopted public procedures, has determined that certain lands
surrounding the City of San Luis Obispo are important to the scenic
character, healthy natural environment, and economic and social
well being of the community and its citizens, and has designated
these lands as the San Luis Obispo Greenbelt; and
WHEREAS, within said Greenbelt, Buyer seeks to preserve and
conserve characteristics such as visual quality, wildlife habitat,
healthy agricultural economy, and rural setting through a variety
of techniques and programs, including purchase of land; and
WHEREAS, Buyer, the County of San Luis Obispo, and the State
of California all consider the preservation of the chain of peaks
stretching from Morro Bay to San Luis Obispo commonly known as the
"Morros" to be a high priority for the community and for the
people of the State, to the extent that the City of Morro Bay,
City of San Luis Obispo and County of San Luis Obispo are
cooperating in a special planning project with a citizens '
advisory committee (known as the Morros Advisory Committee) whose
goal is to develop a long-term plan for protection and proper
stewardship of the Morros; and
WHEREAS, Seller is owner of certain lands which lie within
said Greenbelt, and which are of scenic, ecological, and
agricultural value to the City of San Luis Obispo; and
WHEREAS, said lands include the summit and upper elevations
of the tallest of the Morros , commonly known as Bishop Peak; and
WHEREAS, the purchase of said land in the judgment of Buyer
would act to preserve the values indicated. above and serve an
important municipal purpose; and
WHEREAS, Seller and City wish to settle their differences
regarding the value of said land and the authority of and options
available to the City of San Luis Obispo to acquire said land; and
WHEREAS, Seller wishes to protect the scenic character,
natural environment, security and development of Seller' s retained
property that adjoins said land.
RNR 11.13.97 1
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS :
CITY OF SAN LUIS OBISPO hereby agrees to purchase, and RAY B.
BUNNELL hereby agrees to sell, all of Seller' s right, title and
interest in that certain real property in the County of San Luis
Obispo, together with all easements, rights and appurtenances
thereto (specifically including all water and mineral rights) ,
described in Exhibit A attached hereto, subject to the terms and
conditions of this Agreement . Said property is hereinafter
referred to as the "Property" and generally depicted in Exhibit B
attached hereto,
1 . PURCHASE PRICE AND DEPOSITS
(a) The purchase price for the Property is Eight Hundred
Ninety Five Thousand Dollars ($895, 000 . 00 ) , payable by cashier ' s
check to Seller.
(b) Buyer shall deposit the following sums with Cuesta Title
Insurance Company ( "Escrow Holder" ) , 1011 Pacific Street, San Luis
Obispo, California:
(i) $10, 000 (the "Deposit" ) on the opening of escrow,
which sum shall be released from escrow and paid to Seller on
opening of escrow. Such sum shall be nonrefundable once the
conditions in Paragraphs 3 (a) -3 (c) , inclusive, and 4 (a) have
been satisfied.
(ii) $885, 000 plus Buyer' s closing costs not less than
one (1) day prior to the Closing Date, as defined below.
2 . Conveyance and Easement Agreement
(a) Conveyance. Title to the Property shall be conveyed by
Grant Deed and shall be insured by a CLTA (or at Buyer' s election,
an ALTA) owners policy of title insurance in the amount of the
purchase price, showing title vested in Buyer, subject only to
those exceptions listed in the Preliminary Title Report and/or
Supplemental Report approved or deemed approved by Buyer and
Seller, and the Easement Agreement described in the next
paragraph.
(b) Easement and Boundary Maintenance Agreement. Buyer and
Sellershall execute an Easement and Boundary Maintenance .
Agreement in the form of Exhibit C hereto which sets forth the
parties obligations regarding public access of the Property,
emergency and maintenance access through Seller ' s retained
property, fencing and posting the Property, and establishment of
buffer zones to prevent public access to Seller ' s retained
property (the "Easement Agreement" ) .
RNR 11.13.97 2 a/
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3 . Conditions Precedent for Benefit of Buyer.
Buyer 's obligation to purchase the Property is expressly
conditioned upon the satisfaction, deemed approval, or Buyer' s
waiver of each of the following conditions :
(a) Title Report . Buyer' s approval of the preliminary title
report for the Property (the "Preliminary Title Report" ) .
Buyer shall have ten (10) days after the receipt of the
Preliminary Title Report and copies of all documents referenced
therein, to give Seller and Escrow Holder written notice of
Buyer' s disapproval of any specific title exception (other than an
exception to be removed at the close) . Buyer shall have ten (10)
calendar days after receipt of any Supplemental Report to
similarly disapprove any new title exception. The Preliminary
Title Report and such Supplemental Reports, if any, shall be
deemed approved as to all items not disapproved by Buyer within
the 10-day period to disapprove the same.
(b) Inspection and Approval of Property. Buyer' s inspection
and approval of the Property and all improvements thereon.
Buyer shall have thirty (30) days from the execution of
this Agreement to give Seller and Escrow Holder written notice of
Buyer' s disapproval of any specific co4dition of the Property. The
condition of the Property shall be deemed approved if not
disapproved by Buyer within such 30-day period.
Buyer may at Buyer ' s option and expense obtain a noise
study, a soils investigation, a Phase I or Phase II environmental
report or any other investigation that the Buyer deems necessary
concerning the physical condition of the Property, provided that
the closing shall not be extended thereby without Seller ' s
consent . Copies of all such reports will be delivered
concurrently to Buyer and Seller.
Access to the Property shall be given to Buyer, its
agents and authorized representatives during normal business hours
upon at least one (1) business day' s notice to Seller, at their
own cost and risk, for any purposes relating to Buyer ' s
conditions . Buyer shall indemnify and defend. Seller against and
hold Seller harmless from all losses, costs, damages, liabilities,
and expenses, including, without limitation, reasonable attorney
fees arising out of Buyer' s entry onto the Property or any
activity thereon by Buyer or its agents, or authorized
representatives priorto the Close of Escrow, except to the extent
any such losses, costs, damages, liabilities, and expenses arise
out of the gross negligence or willful acts of Seller. In the
event of any claim of lien for materials supplied, or labor or
professional services performed on behalf or at the request of
Buyer, Buyer shall promptly satisfy and discharge such lien at its
sole cost and expense upon demand therefore by Seller. Buyer shall
RNR 11.13.97 3
repair any and all damages to the Property caused by any such
tests and inspections . Any entry onto the Property by Buyer or
its agents, or authorized representatives shall be at reasonable
times. The provisions of this Section shall survive the Close of
Escrow.
(c) Approval of Grants. Formal approval of the State
Coastal Conservancy to fund a grant in the amount of approximately
Three Hundred Fifty Thousand Dollars ($350, 000 . 00) , and, formal
approval of the Morros Preservation Fund of the Sierra Club to
fund a grant in the amount of approximately Forty-five Thousand
Dollars ($45, 000) , which approvals shall be secured before January
2 , 1998; otherwise, this condition is deemed waived. The receipt
of such funds is not a condition of Buyer' s obligations .
(d) Buyer' s Disapproval and Election. Buyer shall have ten
.(10) days after giving its notice of disapproval of either title
under subparagraph (a) , or the condition of the property under
subparagraph (b) , or failure to obtain grant approvals under
subparagraph (c) ; to elect in writing given to Seller and Escrow
Holder to (i) terminate its obligations under this Agreement, or
(ii) waive its objections, or (iii) elect to correct the subject
of objection, in which case Seller will provide reasonable
assistance to Buyer to cure the same, provided that Seller is not
obligated to cure such defect or bear any expense thereby. The
close of escrow shall not be extended }?y reason of such
disapproval or the period to cure, if any, without Seller' s
consent. Notwithstanding the foregoing, if Buyer elects ro
terminate its obligations under this Agreement, such election
shall be of no force or effect if Seller is able to remove or cure
the defect disapproved by Buyer at the Closing.
4 . Conditions Precedent for Benefit of Seller.
Seller ' s obligation to sell the Property is expressly
conditioned upon the satisfaction, deemed approval, or Seller ' s
waiver of each of the following conditions :
(a) Lot Line Adjustment . Approval by the County of San Luis
Obispo of a lot line adjustment creating a parcel of 108 acres,
more or less, which parcel shall be the Property to be conveyed to
Buyer at the close of escrow under this Agreement. The size of
the Property shall be increased or deceased as necessary to ensure
that the adjoining property owned by Seller contains not less than
170 acres and shall consist of such parcels, configuration of
parcels, and conditions that Seller approves ( "Seller ' s Retained
Property" ) .
(b) Title Report . Seller ' s approval of the title to be
conveyed to Buyer and the title to Seller ' s Retained Property
after satisfaction of condition 4 (a) above, provided that such
approval shall not be unreasonably withheld.
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c.'�a
(c) Performance. Buyer' s performance of all of the
obligations which it is required to perform pursuant to this
Agreement .
5 . Escrow.
(a) Escrow. Buyer and Seller will establish an escrow
( "Escrow" ) with Escrow Agent within ten (10) days of the execution
of this Agreement, subject to the provisions of the standard
conditions for acceptance of escrow and the terms and conditions
in this Agreement, with a signed counterpart of this document to
be delivered as escrow instructions to Escrow Holder. In the
event of any conflict between the terms of this Agreement and the
standard conditions for acceptance of escrow, the terms of this
Agreement shall control.
If Buyer fails to open Escrow by January 2 , 1998, unless
such date is extended by the written agreement of the parties,
Seller may terminate this Agreement by written notice to Buyer and
Escrow Holder, in which event Seller shall have no further
obligation to Buyer or Escrow Holder.
(b) Closing Date. The close of Escrow shall occur on or
before sixty (60) days (the "Closing Date" ) after a copy of this
Agreement (executed by both Buyer and Seller) is deposited with
the Escrow Holder, but in no event lat@r than March 2 , 1998,
unless extended by mutual agreement of the parties . In no event
shall Seller be required to extend the Closing Date.
(c) Survey. Seller may complete a record boundary and
topographic survey for the Property and for Seller' s Retained
Property. Buyer and Seller agree to each pay one-half of the
cost of such survey, provided that Buyer ' s expenses shall not
exceed $7 , 500 . 00 .
(d) Prorations and Fees.
(i) Real property taxes shall be prorated to the close
of escrow.
(ii) The costs to complete the record boundary and
topographic survey for the Property and for Seller' s Retained
Property shall be born equally between Buyer and Seller, subject
to the limitations set forth in paragraph 5 (c) above.
(iii) Seller shall pay (1) the documentary transfer
tax, (2) the premium for a CLIA policy of title insurance, and (3 )
recording fees. If Buyer elects an ALTA policy of title insurance,
Buyer shall pay the portion of the premium that exceeds the
premium for a CLTA policy of title insurance
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(iv) All Escrow fees shall be borne equally between
Buyer and Seller. All other fees and costs shall be allocated
according to custom in San Luis Obispo County.
(e) Other Offers . Until the opening of Escrow, Seller may
continue to market the Property, and, following the opening of
escrow, Seller may take back-up offers subject to this Agreement.
If Seller sells the Property to a third party before the opening
of Escrow, this Agreement shall terminate without further notice
or liability to Seller, Buyer, or such purchaser.
6 . Representations, Warranties, and Agreements .
(a) Authorized Representative. Buyer and Seller hereby
represent and warrant to each other that the persons who sign this
agreement and any other documents required to be executed by such
party to perform its obligations hereunder, shall have all
requisite power and authority to have entered into this Agreement,
and that all authorizations required to be obtained by or on the
part of such party to execute and perform this Agreement have been
obtained.
(b) Proof of Citizenship. Seller is not a foreign person as
such term is used in Section 1445 of the Internal Revenue Code.
Prior to the Close of Escrow, Seller shall deposit in Escrow a
non-foreign affidavit as provided under said Section 1445, and the
failure to do so shall entitle Buyer to withhold from the purchase
price such sums as are required by said Section 1445 .
(c) Delivery of Property. Possession of the Property shall
be delivered by Seller to Buyer upon the Close of Escrow in an "AS
IS - WHERE IS" condition and Seller makes no warranty with respect
thereto. Seller may remove, at Seller' s expense, prior to the
Close of Escrow all personal property and trade fixtures on the
Property..
(d) Legal Actions. Each of the parties represents and
warrants to the other that as of the Close of Escrow there are no
actions, suits, or legal proceedings related to the ownership,
use, operation or sale of the Property and that such party has
not received any notice that any such actions are pending or
threatened.
(e) Brokers . Buyer and Seller each represent to the other
that it knows of no claim for broker's or finder' s fees or other
commissions in connection with this transaction. If any broker or
finder asserts a claim for a commission or finder ' s fee, the party
through whom the broker or finder makes this claim shall indemnify
the other party for any and all costs and expenses (including
attorney' s fees) incurred by the other party in defending the
same.
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(f) No-Build Areas . Seller has received preliminary
approval of the County of San Luis Obispo to construct a 17-unit
residential development on Seller's Retained Property. On
consummation of the sale contemplated by this Agreement, Seller
will forfeit the right to construct four (4) residential units.
The parties wish to ameliorate each other ' s concerns with respect
to the location of the remaining units on Seller' s residential
development. Seller therefore agrees that to the extent permitted
by the County of San Luis Obispo, he will refrain from
constructing residences or accessory residential structures in the
areas generally depicted on Exhibit D as "No-Build" Areas, and
further agrees that his development request to the County of San
Luis Obispo shall evidence this understanding, subject, however,
to Seller' s right to make adjustments to such "No Build" Areas as
necessary to meet County requirements to protect the integrity and
development of 13 units on Seller' s Retained Property.
7 . Notices .
All notices, communications, consents, approvals and
disapprovals required or permitted hereunder must be in writing
and shall be delivered by personal delivery, facsimile, or
deposited in the United States mail, postage prepaid and addressed
as follows:
TO BUYER: City of San Luis Obispo
Dr. Neil Havlik
Natural Resources Manager
990 Palm Street
San Luis Obispo, CA 93401
Fax No. (805) 781-7104
TO SELLER: Ray B. Bunnell
141 Suburban Road, A-5
San Luis Obispo, CA 93401
Fax Nos . (805) 545-0878 / 541-3985
The foregoing addresses may be changed by written notice. If
served personally, or by facsimile, service shall be conclusively
deemed made at the time of service. If served by mail, service
shall be conclusively deemed made seventy-two (72) hours after
deposit thereof in the United States mail.
8 . Miscellaneous .
(a) Entire Agreement. This Agreement, and the exhibits
hereto, contains the entire agreement between the parties hereto.
No modification or addition .to any term or provision hereof shall
be effective unless made in writing and signed by both parties
hereto. The captions and headings in this Agreement are for
reference only and shall not be deemed to define or limit the
scope or intent of any of the terms, covenants, conditions or
agreements contained herein.
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(b) Attorneys ' Fees. If litigation is commenced between the
parties, the prevailing party in that litigation shall be entitled
to recover from the nonprevailing party all reasonable attorney
fees and costs.
(c) Survival. All of the terms, provisions,
representations, warranties, and covenants of the parties under
this Agreement shall survive the Close of Escrow and shall not be
merged in the Deed or other documents.
(d) Successors . This Agreement shall inure to the benefit
of and shall be binding upon the parties to this Agreement and
their respective heirs, successors, and assigns .
(e) Governing Law. This Agreement shall be governed and
construed in accordance with California law.
(f) Time of Essence. Time is of the essence in this
Agreement .
(g) Offer and Acceptance. This Agreement shall be of no
force or effect whatsoever until signed by authorized
representatives of both Buyer and Seller.
(h) Exhibits .
A Legal Description - 108 acres, more or less
B Graphic Description of Property
C Easement and Boundary Maintenance Agreement
D Graphic Description of No Build Areas, more or less
"Seller"
_ RAY B. BUNNELL
Date:
"Buyer"
CITY OF SAN LUIS OBISPO
by:
Allen Settle
Mayor of the City of San Luis Obispo
Date:
RNR 11.13.97 8
ATTEST:
Bonnie Gawf
City Clerk
APPROVED AS TO FORM:
"/ 4 Q-U�e-44�
e eJor s
Ci y AVor y
RNR 11.17.97 9
.,1�5
Exhibit A
Legal Description (Draft)
(Note: Exact description to be included upon completion of record survey and lot line
adjustment.) .
Parcel 1 — PORTIONS of both of the following:
Parcel B of Parcel Map No. CO 73-32, in the County of San Luis Obispo, State
of California, according to map recorded June 18, 1979, in Book 11, page 71 of
parcel maps.
Parcel 2 of Parcel Map COAL 87-028, in the County of San Luis Obispo, State
of California, according to map recorded April 11, 1988, in Book 43, page 18 of
parcel maps.
Parcel 2 —An easement for maintenance and emergency purposes as described on
Parcel Map No. CO 73-32, appurtenant to Parcel B of said map, extended to the new
property boundary as follows:
(to be provided by record survey)
N
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Access Easement
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city of San WIS OBISPO Map Exhibit B
Greenbelt Program — Ray Bunnell Property
j Property To Be Acquired CHI
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Greenbelt Program — Ray Bunnell Property No-Build Areas
Recording Requesced By
When Recorded Mail To
EASEMENT AND BOUNDARY MAINTENANCE AGREEMENT
This EASEMENT AND BOUNDARY MAINTENANCE AGREEMENT
( "Agreement" ) is entered into by and between the CITY OF SAN LUIS
OBISPO ( "City" ) , a California Charter Municipal Corporation, and
RAY B. BUNNELL ( "Bunnell" ) , pursuant to the following recitals:
WHEREAS, City is a California Charter Municipal Corporation;
and
WHEREAS, City acquired from Bunnell by deed recorded
concurrent herewith, all of that real property described in Exhibit
A attached hereto ( "City Property" ) ; and
WHEREAS, the City Property is included in certain lands
surrounding the City of San Luis Obispo, which the City has
designated as the San Luis Obispo Greenbelt to preserve the scenic
character, healthy natural environment, and. economic and social
well being of the community and its citizens; and
WHEREAS, Bunnell is owner of certain lands described in
Exhibit B attached hereto (the "Bunnell Ranch" ) which adjoins the
City Property; and
WHEREAS, Bunnell wishes to preserve the scenic character,
natural environment, security and development of the Bunnell
Ranch.
NOW, THEREFORE, for valuable consideration, the parties agree
as follows :
AGREEMENT
A. Use of the City Property
The City Property will forever remain in its natural state,
and forever be and remain open space improved only with hiking and
equestrian trails . The City will establish and keep such trails in
a safe and well-maintained condition.
RM 11.13.97 1
B. Buffer zone
within 10 days after recording this Agreement, City, at its
expense, shall post "no trespassing" signs in the Buffer Zone
depicted on Exhibit C attached hereto. City thereafter will keep
posted no-trespassing signs, mark common boundaries, and take all
reasonable steps to protect against trespassing on the Bunnell
Ranch from land owned by the City. Trails on the City Property
shall be setback generally 100 ' from the common property line
separating the City Property and the Bunnell Ranch, and between
100 ' and 300 ' from the common boundary separating the former
Ferrini Ranch and the Bunnell Ranch, except as otherwise agreed to
by the parties and shown on Exhibit C.
C. Access . Uses and Fencina
(1) Neither public or private access to the City Property
will traverse the Bunnell Ranch, except as expressly provided in
paragraph D of this Agreement; however, the owners of parcels on
the Bunnell Ranch and their invitees shall have unrestricted
access through Bunnell 's designated gates to the City Property for
hiking and equestrian uses without fee or charge. Such uses shall
be subject to City open space rules and policies regarding hours
of use and safety, provided that such rules and policies do not
deny, prohibit or unreasonably restrain such hiking or equestrian
use by the owners of parcels on the Bunnell Ranch and their
invitees.
(2) City and Bunnell will cooperate to promptly reconstruct
as necessary the existing barbed wire fences on (i) the common
boundary between the Bunnell Ranch and the former Ferrini Ranch,
and (ii) the boundary between the City Property and the remainder
of the Bunnell Ranch. The cost of such installation and/or
reconstruction shall be shared equally between City and Bunnell .
(3 ) City, at its expense, will construct a fence on the
newly established boundary between the City Property and the
remainder of the Bunnell Ranch where no such fence currently
exists . Such construction or reconstruction shall be to a
standard of 6 strands of barbed wire. City, at its expense, will
maintain, repair and replace the fence on the newly established
boundary .as needed to protect the Bunnell Ranch from trespass by
the public .
(4) Bunnell may select a minimum of two (2) , but not more
than four (4) gates through such fencing for access for Bunnell
Ranch owners and invitees at locations mutually acceptable. The
cost of such gates shall be borne by Bunnell. City and Bunnell
shall jointly control gate security. Location of the new and
reconstructed fencing, and gates shall be generally as shown in
Exhibit D.
RNR 11.13.97 2
D. Grant and Reservation of Easement
City is hereby granted a non-exclusive easement to use the
road described in Exhibit E only for emergency and maintenance
access by employees of the City or the State of California to the
City Property. Such road shall not be used by the general public
for access to the City Property for any purpose. City shall pay
for any damage caused by the use of such road on the Bunnell Ranch
and all costs to repair, maintain and replace such road from the
last house on the Bunnell Ranch to the City Property, which shall
be maintained as an unpaved road in a reasonably accessible
condition.
Bunnell reserves the right of vehicular access on the road
described in Exhibit E on the 28-acre parcel for periodic
inspection of the common boundary, and the repair of any fences
damaged by Bunnell, his successors, assigns and invitees .
E. Default and Remedies
Each of the following shall constitute an "Event of Default"
under this Agreement:
(1) Either party fails to pay any amount due under this
Agreement and such default continues for 30 days after notice that
such amount is due and has not been paid.
(2) Either party fails to perform or observe any other term,
covenant, or undertaking in this Agreement to be performed or
observed by such party and such default continues for 10 calendar
days after the nondefaulting party gives the defaulting party
notice of such failure to perform, unless within that time period
the defaulting party commences and continues diligent efforts to
remedy the default, in which event the defaulting party shall have
such additional time as is necessary to remedy the default before
an Event of Default occurs .
The non-defaulting party, in addition to any other remedies
provided by this Agreement or law, may, after an Event of Default,
pay the amount due or cure the default of the defaulting party;
and in that event, the defaulting party shall pay on demand the
amount advanced by and all expenses incurred by the non-defaulting
party to pay the amount due or to cure such default, together with
interest at the maximum rate allowed by law from the date of
demand until paid in full.
In cases of emergency posing a risk of harm to individuals or
animals, either party may proceed without prior notice to cure the
default of the other party and shall, upon demand, be immediately
reimbursed for all costs and expenses in the course of such
emergency cure.
RNR 11.13.97 3 � �/
F. Attorneys ' Fees
If litigation is commenced between the parties, the
prevailing party shall be entitled to recover from the
nonprevailing party all reasonable attorney fees and costs in
addition to any award granted.
G. Successors
This Agreement shall inure to the benefit of and shall be
binding upon the parties to this Agreement and their respective
heirs, successors, and assigns.
H. Governina Law
This Agreement shall be governed and construed in accordance
with California law.
I . Time of Essence
Time is of the essence in this Agreement .
Bunnell
RAY B. BUNNELL
Date:
City
CITY OF SAN LUIS OBISPO
by:
Allen Settle
Mayor of the City of San Luis Obispo
Date:
ATTEST:
Bonnie Gawf
City Clerk
APPROVE AS TO ORM:
ffrhy,,erran
Atm
RNR 11.11.97 4
Acknowledgment
STATE OF CALIFORNIA )
ss
COUNTY OF SAN LUIS OBISPO )
On 1997, before me, a Notary Public
for the State of California, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me
that they executed the same in their authorized capacities, and
that by their signatures on the instrument the persons, or the
entity upon behalf of which the persons acted, executed the
instrument .
WITNESS my hand and official seal .
Notary Public
Exhibit A
Legal Description (Draft)
(Note: Exact description to be included upon completion of record survey and lot line
adjustment.)
Parcel 1 — PORTIONS of both of the following:
Parcel B of Parcel Map No. CO 73-32, in the County of San Luis Obispo, State
of California, according to map recorded June 18, 1979, in Book 11, page 71 of
parcel maps.
Parcel 2 of Parcel Map COAL 87-028, in the County of San Luis Obispo, State
of California, according to map recorded April 11, 1988, in Book 43, page 18 of
parcel maps.
Parcel 2 —An easement for maintenance and emergency purposes as described on
Parcel Map No. CO 73-32, appurtenant to Parcel B of said map, extended to the new
property boundary as follows:
(to be provided by record survey)
any
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Greenbelt Program — Ray Bunnell Properly Buffer Zone and Trails
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Greenbelt Program- Ray Bunnell Property Trails, Fences and Gates