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HomeMy WebLinkAbout11/12/2002, C8 - APPROVAL OF A CONSERVATION COVENANT ON A PORTION OF THE CITY PROPERTY AT 1095 MARSH STREET J council Me i"Dd j AQcnaa aEpont '«N C I T Y OF S AN L U IS 0 B I S P 0 FROM: Wendy George,Assistant City Administrative fricer Wy Prepared By: Neil Havlik,Natural Resources Managerc/n,f. SUBJECT: APPROVAL OF A CONSERVATION COVENANT ON A PORTION OF THE CITY PROPERTY AT 1095 MARSH STREET CAO RECOMMENDATION Approve a Conservation Covenant covering a 2,500 square foot portion of the City of San Luis Obispo's property at 1095 Marsh Street, as required by the U. S. Army Corps of Engineers in connection with certain stream enhancements on San Luis Obispo Creek at that location, and subject to non-substantive changes approved by the City Attorney. DISCUSSION During the time the City of San Luis Obispo was negotiating with the Cheda family for purchase of the 11,000 square foot property on the corner of Marsh Street and Santa Rosa Avenue, a major storm event led to the collapse of the retaining wall on the opposite side of the creek. That property, 1043 Marsh Street, is occupied by the Renal Care Center of San Luis Obispo, and is owned by James Zanoli. The Care Center undertook emergency repairs by installing sheet piling, with the understanding that permanent correction would be installed later. A permanent solution keeping the sheet pile wall has been agreed upon, however, the Corps is requiring mitigation for that work. The mitigation includes certain in-stream enhancements, the planting of native vegetation, and removal of exotic vegetation within the riparian area. Because the exact location of the property line between the City and Care Center properties crosses the creek, City staff(as well as the Chedas) had agreed at the time of the wall's collapse that any required mitigation work could be performed in the creek without regard to property lines. That work is now ready to go forward and the Corps of Engineers is requiring that a conservation covenant be placed over that portion of the City property affected by the mitigation work. This is in addition to a similar covenant that has been required of the Care Center owner, Mr. Zanoli, for his portion of the mitigation and work areas. The two covenants basically will ensure that this reach of San Luis Obispo Creek will be retained forever in a natural state and they will legally prohibit any uses of said land that are inconsistent with the purposes of the mitigation project. The City Attorney's office has reviewed the proposed covenant in light of the litigation between Mr. Zanoli and the City regarding the collapse of the retaining wall, and is satisfied that the recommended action would not affect the litigation in any way. Staff feels that the Corps' request is reasonable and consistent with the purposes for which the property was purchased, namely park and open space: The area involved is contained completely within the riparian area, and will not affect plans for the park portion of the site. G:\Staf(\HAVLIK\Councilagenda\conservationcovenant.DOC C�. I Council Agenda Report-Authorization of Application for Grant Funds Page 2 FISCAL IMPACT There is no fiscal impact other than minor amounts of staff time. ATTACHMENT 1. Conservation Covenant ATTACHMENT 1 RECORDATION REQUESTED BY AND WHEN RECORDED MAIL TO: Lee Price, City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 APN 002-443-005 For Recorder's Use Only DECLARATION OF CONSERVATION COVENANT THIS DECLARATION OF CONSERVATION COVENANT(HEREINAFTER THE"CONSERVATION COVENANT") IS DATED this day of August, 2002, by the City of San Luis Obispo ("Covenantor")for the benefit of the United States acting by and through the U.S. Army Corps of Engineers ("ACOE") is made with reference to the following facts. RECITALS A. Covenantor is the sole owner in fee simple of certain real property in an incorporated portion of the County of San Luis Obispo, State of California,designated as Assessor's Parcel No. 002-443-005,according to map recorded in Book 3678, Page 0449 of record of survey in the Office of the County Recorder at said County(the"Real Property'). An area of 0.057 acres (2,500 ftz)on the Real Property will be removed of exotic vegetation and set aside pursuant to the Section 404 Permit defined below and is depicted in Exhibit"A"attached hereto and incorporated herein by this reference (the "Mitigation Property'). B. Covenantor is under no obligation or duty to grant this Conservation Covenant to the ACOE. Covenantor has voluntarily agreed to grant this Conservation Covenant to the ACOE in order to allow Mr. Charles Zanoli to satisfy his Mitigation Plan required in connection with the Section 404 Permit issued on April 11, 2002 for his bank stabilization project. C. The Mitigation Property possesses wildlife and habitat values (collectively, "conservation values") of great importance to the United States. D. The Conservation Covenant provides mitigation for impacts to"waters of the United States" and is granted voluntarily by Covenantor to satisfy the requirements of the Section 404 permit No. 2000-00782-TW ("Section 404 Permit") issued by the ACOE pursuant to its authority under the federal Clean Water Act(33 U.S.C.Section 1344). The Section 404 Permitwas issued to Mr. Charles Zanoli on April 11, 2002 and authorized impacts of the following project elements: ■ The long-term, permanent bank stabilization of 312 linear feet of the south bank of San Luis Obispo Creek with the sheet pile wall constructed during the emergency bank stabilization activities in 2000. A concrete deck would overhang the wall by three feet. The deck would connect to the top of the sheetpile wall to enhance the wall's integrity and cover the exposed earth to maintain the facility's parking spaces. ■ Erecting wooden bat boxes under the concrete deck, next to the sheetpile.. ■ Remove the remaining portion of the concrete footing by jack hammering the wall into manageable pieces and lifting them out with a crane. ■ Installing two vortex weirs spanning the creek channel using 4-ton rock.. 1 fig. a ■ Installing one rootwad downstream of each weir. ■ Temporarily isolating the project area during construction using sandbags,visqueen,and a culvert. ■ Temporarily dewatering the project area during construction using a Bakertank and haybale structure. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to California law, the Covenantor hereby voluntarily records a conservation covenant in perpetuity over the Mitigation Property. This Conservation Covenant shall run with the land and be binding on Covenantor and Covenantor's heirs,successors in interest,administrators,assigns, lessees,and other occupiers or users of the Property or any portion of it. 1. Purpose. The purpose of this Conservation Covenant is to ensure the Mitigation Property will be retained in perpetuity in a natural condition,defined below,and to prevent any use of the Mitigation Property that will impair or interfere with the conservation values of the Mitigation Property. Covenantor intends that this Conservation Covenant will confine the use of the Mitigation Property to such activities, including without limitation, those involving the preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Covenant. (a) The term"natural condition"shall initially mean the condition of the Mitigation Property at the time of this grant. However, the intent of Covenantor and ACOE is that certain mitigation activities, as required in the Section 404 Permit, and described in the Mitigation Plan, dated August 2002, should occur on the Mitigation Property. The term "natural condition"shall be modified once the mitigation plan has been fully and successfully implemented to reflect its successful implementation. Covenantor certifies that there are no structures or improvements existing on the Mitigation Property at the time of this Covenant. The natural condition is evidenced in part by a plat of the Mitigation Property showing all relevant property lines, easements, rights of way and dedications, and all existing man-made improvements and structures,and major, distinct natural features such as waters of the United States. A copy of the parcel map and copies of the on-site photos are attached to this document as Exhibit "B" and incorporated herein by this reference. If a controversy arises with respect to the natural condition of the Property, the parties shall not be foreclosed from utilizing any and all other relevant documents,surveys,photographs or other evidence or information to assist in the resolution of the controversy. 2. Covenantor. To accomplish the purposes of this Conservation Covenant, Covenantor hereby covenants as follows: (1) To preserve and protect the conservation values of the Mitigation Property; (2) To prevent any activity on or use of the Mitigation Property that is inconsistent with the purposes of this Conservation Covenant and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Covenant. 2 0,24 3. Prohibited Uses. Any activity that does not. presently exist on, or use of, the Mitigation Property inconsistent with the purposes of this Conservation Covenant is prohibited. Without limiting the generality of the foregoing, the following uses are expressly prohibited: 1. Unseasonal watering, use of herbicides, rodenticides, or weed abatement activities, incompatible fire protection activities and any and all other uses which may adversely affect the purposes of this Conservation Covenant. 2. Use of off-road vehicles and use of any other motorized vehicles except on designated roadway, if any; 3. Grazing or other agricultural activity of any kind; 4. Erecting of any building or other improvement, billboard, or sign (except for signage permitted under Section 7, below); 5. Depositing of soil, trash, ashes, garbage, waste, bio-solids or any other material; 6. Excavating,dredging,drilling or removing of loam, gravel,soil, rock,sand or other material; 7. Otherwise altering the general topography of the Property, including but not limited to building of roads and flood control work; B. Removing,destroying,or cutting of trees,shrubs or othervegetation,except. as required by law for (1) fire breaks, (2) maintenance of existing trails or roads, (3) prevention or treatment of disease, or (4) required mitigation programs; 9. Establishing any easement, for any purpose (without the written consent of ACOE), within the boundaries of the Property not in existence,disclosed to and approved by ACOE, as of the date of this Covenant; and 10. Surface entry for exploration or extraction of minerals. 4. Covenantor's Duties. Covenantor shall undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the conservation values of the Property, and shall use its best efforts comply with all conditions of the Section 404 Permit, a copy of which is attached hereto as Exhibit"C"and incorporated herein by this reference, as said Permit applies to this Covenant. 5. Reserved Rights. Covenantor reserves to itself,and to its personal representatives, heirs, successors, and assigns,all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Covenant. 6. Acts Beyond Covenantor's Control. Nothing contained in this Conservation Covenant shall be construed to entitle ACOE to bring any action against Covenantor for any significant injury 3 0's - s to or change in the Property resulting from natural causes beyond Covenantor's control,including, but not limited to, fire not caused by Covenantor, flood, storm, and earth movement, or from any prudent action taken by Covenantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. Such excuse from performance by Covenantor shall only be allowed if such event beyond Covenantor's control has caused a substantial failure of or degradation of the conservation and environmental values on the Property. Notwithstanding the foregoing,even actions undertaken during emergency conditions must receive prior authorization from the Department of the (through expedited procedures, if appropriate)if the action involves discharge of dredged of fill material into jurisdictional"waters of the United States". The lack of such authorization may result in an enforcement action by the ACOE. 7. Installation and Maintenance of Signage. Covenantor shall post and maintain appropriate signage identifying the Conservation Covenant. Such signage shall be subject to the prior written approval of ACOE, which shall not be unreasonably withheld. 8. Access. This Conservation Covenant does not convey a general right of access to the public. 9. Costs and Liabilities. Covenantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Mitigation Property. Covenantor agrees that ACOE shall have no duty or responsibility for the operation or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Covenantor, the public or any third parties from risks relating to conditions on the Property. Covenantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Covenant, and any activity or use shall be undertaken in accordance with all applicable federal,state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements. 9.1 Taxes. Covenantor shall pay before delinquency all taxes, assessments, fees,and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Covenant, and shall furnish ACOE with evidence of payment upon request. 9.2 Condemnation. The purposes of the Conservation Covenant are presumed to be the best and most necessary public use as defined at California Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700.. 10. Subsequent Transfers. Covenantor agrees to incorporate the terms of this Conservation Covenant in any deed or other legal instrument by which Covenantor divests itself of any interest in all or any portion of the Property, including without limitation, a leasehold interest. Covenantor further agrees to give written notice to ACOE of the intent to transfer any interest at least fifteen (15)days prior to the date of such transfer. The failure of Covenantor to perform any act provided in this section shall not impair the validity of this Conservation Covenant or limit its enforceability in any way. 11. Notices. Any notice,demand,request,consent,approval,or communication that any party desires or is required to give to any other party or parties shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-business-day delivery or by first class mail, postage prepaid, addressed as follows: 4 ON-to To Covenantor: Mr. Allen Settle, Mayor City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 To ACOE: U.S. Army Corps of Engineers Los Angeles District, Regulatory Branch 911 Wilshire Blvd. Los Angeles, CA 90012 or to such other address as a party 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,five (5)days after deposit into the United States mail. 12. Amendment. Covenantor may amend this Conservation Covenant only with written approval of the ACOE. Any such amendment shall be consistent with the purposes of this Conservation Covenant and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Luis Obispo County, State of California. 13. General Provisions. (1) Controlling Law. The interpretation and performance of this Conservation Covenantor shall be governed by the laws of the United States and the State of California. (2) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Covenant shall be liberally construed to effect the purposes of this Conservation Covenant. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Covenant that would renderthe provision valid shall be favored over any interpretation that would render it invalid. (3) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Covenant,such action shall not affect the remainder of this Conservation Covenant. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Covenant to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. (4) Entire Agreement. This instrument together with the attached exhibits and any documents referred to herein sets forth the entire agreement of the parties with respect to the Conservation Covenant and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Covenant. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 12. 5 cg-� (5) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Covenantor's title in any respect. (6) Successors. The covenants, terms, conditions, and restrictions of this Conservation Covenant shall be binding upon, and inure to the benefit of Covenantor and its respective representatives, heirs, successors, and assigns and constitutes a servitude running in perpetuity with the Property. (7) Termination of Rights and Obligations. A party s rights and obligations under this Conservation Covenant terminates upon transfer of the party's interest in the Conservation Covenant or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. (8) 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. (9) No Hazardous Materials Liability. Despite any contrary provision of this Conservation Covenant, the parties do not intend this Conservation Covenant to be, and this Conservation Covenant shall not be, construed such that it creates in or gives to ACOE any of the following: (a) The obligations or liabilities of an owner or operator, as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response,Compensation and Liability Act of 1980,as amended(42 U.S.C. Section 9601, et seq.; hereinafter ACERCLA);or (b) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3)or(4); or (c) The obligations of a responsible person under any applicable Environmental Laws; or (d) The right to investigate and remediate any Hazardous Materials associated with the Property; or (e) Any control over Covenantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. The term Hazardous Materials includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances,or related materials defined in CERCLA,the Hazardous Materials Transportation Act (49 U.S.C. Section 6901, et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100, et seq.); the Hazardous Substance Account Act 6 On-8 (California Health &Safety Code Section 25300, et seq.),and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal,state or local laws,ordinances,rules, regulations or orders now in effect or enacted after the date of this Conservation Covenant. The term Environmental Laws includes, without limitation, any federal,state,local or administrative agency statute,ordinance,rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Covenantor represents, warrants and covenants to ACOE that Covenantor's activities upon and use of the Property will comply with all Environmental Laws. IN WITNESS WHEREOF Covenantor has executed this Conservation Covenant the day and year first above written. COVENANTOR: Dated: September _, 2002 Mr. Allen Settle, Mayor City of San Luis Obispo By: Mr. Allen Settle, Mayor 7 Cg-q