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HomeMy WebLinkAboutD-2104 40 Prado temporary encroachment and covenant to install AgreementRECORDING REQUESTED WHEN RECORDED RETUP City of San Luis Obispo Attn: City Clerk 990 Palm Street San Luis Obispo, CA 93401 RECEIVED NOV 2 9 2118 TYICLERK 2018045301 Tommy Gong San Luis Obispo -County Clerk -Recorder 10/30/2018 11:20 AM Recorded at the request of: PUBLIC Titles: 1 Pages: 13 Fees: $0.00 Taxes: $0.00 Total: $0.00 No fee pursuant to Government Code § 6103 No Documentary Transfer Tax per R&T Code § 11922 No Recording Fee per Government Code § 27383 AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL THIS AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL ("Agreement") is dated as of 201$, and is made and entered into by and between Community Action Partnership of San Luis Obispo County, Inc. a California nonprofit public benefit corporation ("CAPSLO") and the City of San Luis Obispo, a California municipal corporation and charter city ("City"). CAPSLO and City are collectively referred to as "Parties". RECITALS A. CAPSLO is the owner of that certain real property located at 40 Prado Road (APN 053- 041-072). Said property is described in Exhibit A ("40 Prado'). B. CAPSLO submitted an application (ARCH -0414-2014) to City to develop 40 Prado as a Homeless Services Center ("Development") C. Pursuant to Condition #16 of City Resolution No. ARC -1001-15 approving the Development, CAPSLO shall enter into an agreement with the City to pay a future fair share amount -or participate in another public financing program toward the future Prado Road Interchange/Overpass ("Prado Interchange"). D. Pursuant to Condition #18 of City Resolution No. ARC -1001-15 approving the Development, CAPSLO is required to enter into an agreement with the City to address the acquisition of public rights-of-way needed for the future realignment of Elks Lane and Prado Road to accommodate the Prado Interchange. E. Pursuant to Condition #20, CAPSLO is required to construct a bus stop, including shelter, on Prado Road. CAPSLO constructed an interim bus stop on Prado Road within the existing right-of-way to temporarily satisfy the condition, but a permanent City standard bus stop has not yet been constructed. 'D, i►10`\ /I F. Pursuant to the City's Municipal Code, the Development triggers the requirement to install frontage improvements along Prado Road, including but not limited to curb, gutter, sidewalk, bus turnout and appurtenances, street paving, water, sewer, utilities, street lights, and street trees ("Prado Frontage Improvements"). G. Since the future Prado Interchange will result in the realignment of Prado Road, installing all the Prado Frontage Improvements with Development is not practical because those improvements would need to be removed when Prado is realigned. H. Pursuant to Conditions #19 of City Resolution No. ARC -1001-15 approving the Development, CAPSLO is required to enter into a covenant agreement for the construction of the Elks Lane realignment improvements ("Elks Lane Improvements") along the 40 Prado frontage. I. A portion of the private Development improvements will encroach within the area of offers of dedication and future Elks Lane Improvements and/or the Prado Frontage Improvements. J. Pursuant to Condition #36 of City Resolution No. ARC -1001-15, CAPSLO is required to enter into a covenant agreement to remove, alter, or relocate any improvements that conflict with the Elks Lane or Prado Road Improvements. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and mutual covenants, terms, conditions and restrictions contained herein, the Parties hereby declare that 40 Prado shall be held, transferred, encumbered, used, sold, conveyed, leased, and occupied subject to this Agreement (and incorporating the above recitals herein by this reference) which shall run with the land and shall be binding upon CAPSLO's heirs, successors in interest, legal representatives, administrators, grantees, assigns, lessees, or any other occupiers and users of 40 Prado, or any portion of it, as follows: 1. Recitals Incorporated. The above Recitals are true and correct and are incorporated into this Agreement by this reference. 2. Agreement to Fay Fair Share Amount for Prado lnterchaiige. CAPSLO agrees to pay Development's fair share of the cost to construct the Prado Interchange, if necessary, as determined by the City, upon one -hundred twenty (120) days written notice, which may be given by the City at any time at its sole option and discretion. 3. Offer of Dedication for Elks Lane. Prior to issuance of a final certificate of occupancy, CAPSLO shall submit an approved signed irrevocable offer of dedication in a form approved by the City for the right-of-way needed to accommodate the Elks Lane Improvements ("Elks ROW"). 4. Offer of Dedication for Prado Road. Prior to issuance of a final certificate of occupancy, CAPSLO shall submit an approved signed irrevocable offer of dedication in a form approved by the City for the Prado Road right-of-way needed to accommodate the Prado Interchange ("Prado ROW") consistent with the setback areas shown on project site plan depicted in Attachment 4 to the ARC Agenda Report dated January 21, 2015. 5. Offer of Dedication for Prado Bus Stop. CAPSLO hereby covenants with the City to submit an approved signed irrevocable offer of dedication in a form approved by the City for any additional right-of-way needed to construct a permanent City standard bus stop along Prado Road if needed in the future. CAPSLO will not be responsible for constructing the bus stop unless triggered by a future development permit for 40 Prada. 6. City Acceptance of Offers of Dedication. The offers of dedication for Elks ROW and Prado ROW(collectively "Prado/Elks ROW") will be recorded in the office of the County Recorder of San Luis Obispo County and may be accepted by the City at any time without further action by CAPSLO. If it is determined at a later date that some or all of the Prado/Elks ROW is not needed as public right-of-way and that the excess right-of-way has a negative impact on CAPSLO's ability to use or develop 40 Prado, then City agrees to process a summary vacation of any excess rights-of-way at no cost to CAPSLO. 7. Covenant to Install Prado Frontage Improvements. CAPSLO hereby covenants with the City to install the Prado Road Frontage Improvements without cost to the City, upon six (6) months written notice from the City requesting that said improvements be installed. The written notice may be given by the City at any time at its sole option and discretion. However, the extent of Prado Frontage Improvements necessary to accommodate the Prado Interchange has not yet been determined. Until such time as these improvements are determined and become the responsibility of another party, CAPSLO remains responsible for the installation of these deferred improvements. a. The City agrees to make a reasonable effort to construct as much, if not all, of the Prado Frontage Improvements with the Prado Interchange project. If the City constructs some or all of the Prado Frontage Improvements, CAPSLO agrees to pay Development's fair share of the cost to construct the Prado Frontage Improvements as required in Section 2 of this Agreement. b. City may require CAPSLO to install the Prado Frontage Improvements prior to final determination of the Prado ROW alignment. If that occurs and it is later determined that the Prado Frontage Improvements need to be relocated to accommodate the Prado Interchange, CAPSLO will not be responsible for relocating the public improvements associated with the Prado Frontage Improvements, but will be responsible for relocating any private improvements that encroach within the Prado ROW in accordance with Section 10 of this Agreement. 8. Covenant to Install Elks Lane Improvements. CAPSLO hereby covenants with the City to install the Elks Lane Improvements without cost to the City, upon six (6) months written notice from the City requesting that said improvements be installed. The written notice may be given by the City at any time at its sole option and discretion. 9. Tern ora Encroachment. The City hereby grants CAPSLO the right to temporarily encroach within the Elks ROW and Prado ROW as shown on the approved plans on file at the City for the Development ("Temporary Encroachments"). 10. Removal of Temporaa Encroachment. CAPSLO agrees to remove, alter, or relocate the Temporary Encroachments, at the discretion of the City, upon six (6) months written notice. The written notice may be given by the City at any time at its sole option and discretion. If CAPSLO does not remove the encroachment authorized herein when requested by the City, City may proceed to require removal under the Municipal Code nuisance provisions and to assess the cost of said removal against the real property described herein. CAPSLO further acknowledges that, in the event of such removal by City, City is not liable for any damages to the encroachment or to any adjacent real or personal property. 11. Temporary Encroachment Indemnification. CAPSLO agrees to hold harmless City from any claims, suits or losses of any kind alleged to have arisen out of the maintenance or placement of Temporary Encroachments and to indemnify City for any and all costs of judgments relating to said claims, suits or losses, including attorney's fees. 12. Legal Action. In addition to any other rights or remedies either parry has under this Agreement, either party may take legal action to: (a) cure, correct or remedy any default by the other party; (b) compel specific performance of this Agreement; (c) obtain injunctive relief, or (d) obtain any other remedy consistent with the purpose of this Agreement. 13. Notices. Any notice, demand, request, consent, approval or communication under this Agreement shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed given (a) upon personal delivery or (b) forty-eight (48) hours from deposit of such notice in the United States mail, postage prepaid. To Ci City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 Attn: City Engineer To CAPSLO: o m Fac , o-ner-rhie 1030 Soutkwu.j Drive, lgn W; -r 6ks a� . CIA 13401 14. Agreement Assignment. CAPSLO shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 15. Governin Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 16. Amendment. This Agreement may be amended at any time by the mutual consent of the Parties by a written instrument signed by both Parties. 17. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by so executing this Agreement, the Parties hereto are formally bound to the provisions of this Agreement. 18. Severability. Each term, covenant, condition or provision of this Agreement is intended to be severable. If any term, covenant, condition or provision contained in this Agreement is held to be invalid, void or illegal by any court of competent jurisdiction, such provision shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other term, covenant, condition or provision contained in this Agreement. If such term, covenant, condition or provision shall be deemed invalid due to its scope or breadth, such covenant, condition or other provision shall be deemed valid to the extent of the scope or breadth permitted by law. 19. Interpretation. The paragraph headings of this Agreement are for reference and convenience only, are not made part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof. The provisions of this Agreement shall be construed in a reasonable manner to implement the purposes of the Parties and of this Agreement. This Agreement shall be construed as if drafted jointly by City and CAPSLO. 20. Indemnification. CAPSLO shall defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees arising out of or related to the City's approval of this Agreement. The City shall promptly notify CAPSLO of any claim, action, or proceeding received by the City. 21. Entire Agrecinent. This Agreement represents the entire understanding of City and CAPSLO as to the matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to the matters covered in this Agreement. 22. Attorne.�es. If any legal action or proceeding arising out of or relating to this Agreement is brought by either party to this Agreement, the prevailing party will be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorney's fees, costs, and expenses incurred in the action or proceeding by the prevailing party. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized officers and representatives as of the date first set forth above. CITY OF SAN LUIS OBISPO, a Calif mia unicipal corporation and charter city Matt Horn, City Engineer (Authorization - City of San Luis Obispo Municipal Code Section 12.16.050) COMMUNITY ACTION PARTNERSHIP OF SAN LUIS OBISPO COUNTY, INC. a California nonprofit public benefit corporation &4' Print Name: Dee- L --Q-,1 "t Chairman of the Board C rint Name: i c V2 -C-_ Secretary/Treasurer ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Luis Obispo On before me, Diane Dostalek, Notary Public (insert name and title of the officer) personally appeared Matt Horn who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seals DIANE DOSTALEK j Commission # 2138341 Notary Public - California z San Luis Obispo County a My Comm, Expires Dec 25, 2019 Signature �r(��' d�G��+.� (Seal) A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the I+ document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of California County of San Luis Obispo On 06-l- DOi , before me, mcurc,4, Date Name and Title of the Officer personally appeared, Q Name ofSigner(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(e4 is/am- subscribed to the within instrument and acknowledged to me that he/she/tkey executed the same in-hi's/her/heir authorized capacity(.iQ4 and that by his/her/th6r signature( on the instrument the person(4,, or the entity upon behalf of which the person(@ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MARCISPERLO WITNESS my hand and official seal.aMy Notary Public - CaliforniaSan Luis Obispo County Commission k 2251552 Ct Comm. Expires Aug 18, 2022 Signature Signanue of Norury Pi elu place Notary Seal Above A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of California County of San Luis Obispo On � _ �� o�d� ,before me, `�1IV C_ 1 c Q,1ir 1 V Date Name and Tide of the Officer personally appeared, Name of Signers) who proved to me on the basis of satisfactory evidence to be the person( whose name(s�-isAare subscribed to the within instrument and acknowledged to me that he/s4e*my executed the same in his/her +oir authorized capacity(jes}, and that by his/her4� signature(sj-on the instrument the person(s�, or the entity upon behalf of which the person(o)- acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ---M CA-L-� Signature�� jjQL SignamreaN bhc MARCISPERLO GMy Notary Public - California San Luis Obispo County >;Commission k 2251552 Comm. Expires Aug 18, 2022 Place Notary Seal Above CONSENT OF BENEFICIARY TO SUBORDINATE San Luis Obispo County Housing Trust Fund, a California nonprofit corporation, is a Beneficiary under that certain Deed of Trust(s) dated May 1, 2018, executed by Community Action Partnership of San Luis Obispo County, Inc., a California nonprofit public benefit corporation, Trustor, and recorded July 17, 2018, as Instrument Number(s) 2018-028925 of Official Records in the Office of the County Recorder, County of San Luis Obispo, State of California. The Deed of Trust(s) encumber(s) the real property described in the attached offer. As the Beneficiary of said Deed of Trust(s), the undersigned hereby consents (a) to the execution and recordation of the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL, (b) to the execution and recordation of the easements to the City of San Luis Obispo specified in the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL, and (c) to subordinate the undersigned's interest in the real property to the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL San Luis Obispo County Housing Trust Fund, a California nonprofit corporation A4 I/ I Date:/()/ Beneficiary Date: Beneficiary [Signatures of Beneficiaries must be notarized] ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of "_"Say., Uyr) ObLt () On c IG l before me, 4 a. V -C I 10 (insert name and title of the officer) personally appeared 6eyctid L R t ut u who proved to me on the basis of satisfactory evidence to be the persons) whose nam*)r14i(are- subscribed to the within instrument and acknowledged to me that he/shey executed the same in l�/heeMtm-ir authorized capacity4es), and that by his/weir signature(g) on the instrument the person(sl, or the entity upon behalf of which the person(s�acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) *My MARCI SRERLO Notary Public - California San Luis Obispo CountyCommission k 2251552 Comm. Expires Aug 18, 2022 CONSENT OF BENEFICIARY TO SUBORDINATE Pacific Premier Bank, is a Beneficiary under that certain Deed of Trust(s) dated July 2, 2018, executed by Community Action Partnership of San Luis Obispo County, Inc., a California nonprofit public benefit corporation, Trustor, and recorded July 29, 2018, as Instrument Number(s) 2018-030979 of Official Records in the Office of the County Recorder, County of San Luis Obispo, State of California. The Deed of Trust(s) encumber(s) the real property described in the attached offer. As the Beneficiary of said Deed of Trust(s), the undersigned hereby consents (a) to the execution and recordation of the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL, (b) to the execution and recordation of the easements to the City of San Luis Obispo specified in the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL, and (c) to subordinate the undersigned's interest in the real property to the attached AGREEMENT AFFECTING REAL PROPERTY, TEMPORARY ENCROACHMENT, AND COVENANT TO INSTALL Pacific Premier Bank Date: ea r+. xa --� enef�iary'(�vo� N/�rrHa.�, S��/►��a�+�v�.G�v.rl7�*�cro� Date: Beneficiary [Signatures of Beneficiaries must be notarized] CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Calif. is County of '• On �� lob before e, r bate Here InsertName and Tit16 of personally appeared Name of who proved to me on the basis of satisfactory evidence to be the erson'M whose namels) is7are subscribed to the within instrument and acknowledged to me that hezelthey executed the same in his/ho(Aigor authorized capacity4es}, and that by hisl)lerANir signature on the instrument the persori(s), or the entity upon behalf of which the persori(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. LYNOSAY CLAIRE KATHERMAN WIT h n d ffici al. Notary Pukk - CaMornis San Luis Obispo County Commission * 2185730 Sig tura iN Comm. Expires Apr 1, 2021 r Signature ,of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:ii Number of Pages: igner(sj Other Than l4amed Capacity(ies) Claimed by Signer(s) Si War's Name: . Corporate Officer — Title(s): aVP 47- I-] Partner — D Limited ❑ General (' ❑ Individual ❑ Attorney in Fact . lf�114 1_ ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Document Date- _ Above: Signer's ae:.. ❑ Corporate Offic4—--`Title(s): ❑ Partner — ❑ Limited `0 Gene ❑ Individual ❑ Attorney W ❑ Trustee ❑ Guardian or ❑ Other: Signer Is Representing: act ©2014 National Notary Association • www.NationalNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 Exhibit A Iseggal Descri��tior� of 40 Prado A portion of Lots 4, 5, and 20 of the San Luis Obispo Suburban Trak In the City of San Luis Obispo, County of San Luis Obispo, Stage of California according the map filed In Book 1 of Record of Survey Maps at Page 92, records of San Luis Obispo County, California described as follows; Beginning at a 1 inch iron Ripe with cap "LS 4819" set at the intersection of the East line of property described in deed to the State of California by deed recorded December 13, 1961 in iBook 11601 at page 300 of Official Records, records of said County, and the south line of property described In deed to Carrie H. Adams, et. al. recorded December 12, 1923 in Book 164 of Deeds at Page 365, said pplpe being shown on a Record of Survey filed February 25, 1991 in Book 65 of Records of Survey at Page 41; thence South 63° 00' 14" East along the South line of said Adams property a distance of 539.28 feet to the Inning; thence 1) South 27" 04'43" West a distance of 573.34 feet to the North line of Prado Road; thence 2) South 62^ 55'02" East along the North line of said Prado Road a distance of 255.72 feet to the south corner of property conveyed to Rod Erb and Judith Ann Erb by the quitdaim deeds recorded February 24, 1977 in Book 1959 at page 328 of Official Records; said point lies North 241, 44' 23" East 0.74 feet from a 1/2 inch rebar and cap "LS3877" as shown on Record of Survey filed in Book 65 of Records of Survey at Page 41; thence 3) North 24" 44` 23" East along the West line of said Erb property a distance of 574,17 feet to a 1 inch Iron pipe with cap "LS 4819", as shown on Record of Survey filed in Book 65 of Records of Survey at Page 41, on the South line of said Adams property; thence 4) North 631-1 00' 14" West along the South line of said Adams property a distance of 232.29 feet to the True Point of-ftinning.