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2017015973
RECORDING REQUESTED BY Tommy Gong
AND WHEN RECORDED RETURN TO: San Luis Obispo - County Clerk-Recorder
04/12/2017 11:22 AM
Recorded at the request of
CITY OF ARROYO GRANDE PUBLIC
CITY CLERK Titles: 2 Pages: 12
300 E. BRANCH STREET Fees: $0.00Taxes $0.00
ARROYO GRANDE CA 93420 Total: $0.00
Fee Exempt per GC Sections 6103 and 27383 115106SONMIN1
GRANT AND AGREEMENT
RE: WATER RIGHTS, FACILITIES
The attached GRANT AND AGREEMENT, made and entered into by and between
1189 FLORA ROAD, LLC, a California limited liability company, and the CITY OF
ARROYO GRANDE, a municipal corporation of the State of California, was approved
by Arroyo Grande City Council Resolution No. 4676 on July 28, 2015.
GRANT
AND AGREEMENT
RE:WATER RIGHTS,FACILITIES
THIS GRANT AND AGREEMENT ("Agreement') is entered into effective this 27—day
of March, 2017, between 1189 Flora Road, LLC, a California limited liability company
("FLORA"), as the owner of certain rights in the real property more particularly described in
Exhibit "A" and by this reference hereby incorporated (the "Property"), and the City of Arroyo
Grande("City").
RECITALS
1. WHEREAS, FLORA is the owner, by reservation, of certain water rights, and
related water facility easements at the Property(the"Water Rights");
2. WHEREAS,City is desirous of acquiring FLORA's Water Rights.
3. WHEREAS,there currently exists upon the Property, an existing well(the"Existing
Well") which allows for providing water for the use of the Owners and/or the occupants of the
Property (hereinafter collectively the "Occupants"); which also provides water for all of the
agricultural uses for which the Property can now or hereafter be utilized (the "Agricultural Uses").
For purposes of this Agreement, Occupants shall also include tenants utilizing the Property for
Agricultural Uses. The approximate location of the Existing Well is depicted on Exhibit "B" (the
"Well Site") and by this reference is hereby incorporated. FLORA's water rights at the Existing
Well are limited to only that water produced at the Existing Well which exceeds the demands
and/or requirements of the Occupants and the Agricultural Uses at the Property (hereinafter the
"Excess Water")
{
NOW THEREFORE for valuable consideration hereby acknowledged, and upon the terms
and conditions contained herein, FLORA does hereby grant and convey to the City: (1)the right to
take and remove FLORA'S Excess Water as produced or otherwise available from the Existing
Well and/or the Well Site; (2) a non-exclusive easement for removing the water produced
therefrom as more particularly hereafter described (the "Underground Easement") ; and, (3) such
additional non-exclusive easements as reasonably required at the Well Site for installation and
maintenance related water pipes, conduits and related improvements, as necessary and for
production and transfer of the Excess Water from the Well Site for the purpose of all allowable
uses,in accordance with the terms of this agreement.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. FACILITY LOCATION: That the locations of Existing Well, Well Site and
Underground Easement and other matters are depicted on Exhibit"B" attached to this agreement.
2 UNDERGROUND EASEMENT: The Underground Easement shall be a ten (10) foot
wide easement in favor of the City, for the installation, maintenance, repair and replacement of
underground water lines, conduits, utility systems and related underground improvements (the
"Underground Facilities"), and for reasonable ingress and egress to the Underground Facilities
within the Underground Easement area ( for purposes of pumping, obtaining, and conveying
Excess Water from the Existing Well off the Property, at the Underground Easement location
shown on Exhibit"B"and by this reference hereby incorporated.
3. ALLOWABLE USES: Allowable uses for the Excess Water shall be any and all lawful
uses for the public benefit including use by the City at Strother Park.
4. PROPERTY WATER REQUIREMENTS: FLORA and the City agree that the
Occupants of the Property, and all Agricultural Uses shall have a priority right to water produced at
the Existing Well and the Well Site for as much water as is required to meet the needs and/or
requirements of the Occupants at the Property, and the Agricultural Uses being conducted at the
Property(collectively the"Property Water Requirements"). The Parties acknowledge and agree that
all Property Water Requirements must be satisfied before any Excess Water exists and that City,in
exercising any rights hereunder, shall ensure that the Property Water Requirements are met and
satisfied before taking and using any Excess Water.
5. COMMON WELL FACILITIES: The common well facilities shall consist of the
Existing Well, as more particularly shown on Exhibit"B",the well casing,pump, electrical service
lines,the existing generator and other related equipment as necessary for the production of water at
the Well Site. (hereinafter"Common Well Facilities")
6. MAINTENANCE OF WELL AND FACILI IIES:
(a) Common Well Facilities: Once the City exercises its rights to utilize the Excess Water
under this Agreement, the City shall thereafter pay all costs and expenses associated with
maintaining the Common Well Facilities in proper working and sanitary order and operating the
Common Well Facilities for so long as it is possible to procure and distribute the Excess Water
from the Existing Well. These operation and maintenance obligations shall not be construed to
include obligations with respect to the quality of water that may be produced at the Existing Well,
and are hereby limited to operating and maintaining the Common Well Facilities in good working
order and repair;
(b) Pump and Power System: While the Existing Well remains powered by an on-site
electric generator, the costs of maintenance and operation of such generator shall be deemed a part
of the Common Well Facilities under this Agreement. In the event that the Well Site is hereafter
served by a metered electrical utility service provider, the City shall ensure that there are two (2)
separate metered installations, consisting of(a) a meter measuring the City's electric use at the
Well Site; and (b) a meter measuring all electric use associated with meeting the Property Water
Requirements.Following the installation of such electric services and both of these meters,the City
shall not be responsible for the electrical expenses and charges associated with the pumping of the
Property Water Requirements.
(c) Replacement Well: As part of the City's obligation to maintain the Common Well
Facilities, the City shall have the obligation to drill a replacement well and place it in operation if
the Existing Well should sand up or become inoperative and it is reasonably possible to drill
another well within the Well Site as the same is more particularly shown on Exhibit"B."
(d) Original Users: Notwithstanding anything otherwise stated in this Agreement to the
contrary,the parties hereby acknowledge and agree that the Occupants of the Property are currently
the only users of the Existing Well and the Common Well Facilities (the "Original Users"). Until
the City makes any installations of conduit,piping or other improvements so as to allow the City to
enjoy the rights herein conveyed, the Original Users shall be solely responsible for all repair,
maintenance,costs and expenses associated with operating the Existing Well.
7. INDIVIDUAL WATER SYSTEMS: Both the City and the Original Users shall have
the right to install, maintain and repair pipelines, conduit, valves, timers and other well and water
equipment and facilities at the Existing Well site, at the installing parties sole cost and expense to
enjoy their respective rights. Any such installations by the Occupants, or for purposes of the
Agricultural Uses associated solely with the distribution of the Property Water Requirements, shall
not be considered a part of the Common Well Facilities.
8. WELL REPAIR AND REPLACEMENTS: In the event that the pump, or other
Common Well Facility equipment fail(s), or deteriorate(s) to a condition that requires repair, or
replacement for purposes of meeting the Property Water Requirements (hereinafter collectively
referred to as "well failure"),the City shall exercise all reasonable and best efforts in order to cause,
commence and diligently pursue the repair of the Existing Well and/or Common Well Facilities
within 24 hours of either written or telephonic notice of the well failure.
9. CITY'S RIGHT TO RELINQUISH: The City shall have the right to relinquish all rights
granted hereunder, and thereby terminate all future obligations hereunder EXCEPT ANY
OBLIGATIONS ARISING UNDER PARAGARPH 14, by express unequivocal and unambiguous
written notice directed to FLORA,together with a recorded Quitclaim Deed reconveying the City's
rights hereunder to FLORA. All future obligations of the City with respect to the operation and
maintenance of the Common Well Facilities under this agreement will be extinguished upon
delivery of such notice and recorded deed, however the City shall remain liable for all costs and
expenses associated with the Common Well Facilities which accrued through the date of the
delivery of the notice and recorded deed.
10. PROPERTY OWNER'S OTHER WATER RIGHTS: Nothing contained herein shall
be considered as any limitation upon, or conveyance of, the right of the owners of the Property, or
their authorized agents, or tenants to drill any and all new wells which the owners deem necessary
for any legal use at the Property.
11. WATER LINES, PIPES, AND CONDUIT: The City and the Occupants shall each be
solely responsible for the maintenance of their separate pipes, conduits and equipment which serve
solely to distribute their water as produced by the Common Well Facilities. In the event of a
material leak of pipe failure the City shall have the right to perform any such repairs reasonably
necessary to protect the Common Well Facilities at the City's sole cost and expense.
12. NO GUARANTY AS TO QUALITY OR QUAN 111 Y: FLORA does not and cannot
make any warranty or guaranty concerning the quantity or quality of the Excess Water which may
be available to the City hereunder, or concerning the continuing availability of such Excess Water.
City understands and hereby acknowledges that FLORA is not a public utility, is not guaranteeing
any specific quantity or quality of water, is not the sole owner of the water rights subject to this
agreement, and is not the owner the underlying Property.
13. LANDSCAPING, IMPROVEMENTS: City acknowledges that the Occupants have
the right to improve, landscape or otherwise utilize all portions of the Property immediately
surrounding the Existing Well, the Well Site, and above the Underground Easement, so long as
such use does not unreasonable interfere with the rights of the City herein conveyed. In the event
that the City's installations, repairs, maintenance or any other servicing of the Common Water
Facilities or the City's underground water and utility systems, as installed pursuant to Paragraph 2,
effect or otherwise damage any such Property improvements, landscaping or other use, the City
shall be responsible, at the City's sole cost and expense,to return such improvements,landscaping
to the same condition they enjoyed prior to the commencement of such repair, service or other
work by the City.
14. INDEMNITY: HOLD HARMLESS: This Agreement is made on the express
condition that FLORA is to be free from all liability with respect to any claim for damages by
reason of any injury to any person or persons, or any injury to property of any kind whatsoever and
to whomever belonging, from any cause or causes whatsoever, while in, upon or in any way
connected with the City's exercise and enjoyment of the City's rights under this Agreement, other
than those arising from the intentional or grossly negligent act of FLORA.
City hereby covenants and agrees to indemnify and save harmless FLORA from all liability,
loss, cost and obligations (including, without limitation, reasonable attorney's fees and expenses),
on account of or arising out of any such injuries or losses,however occurring.
15. ASSIGNMENT AND BINDING ON HEIRS: This Agreement shall be binding on
the parties hereto and on their successors-in-interest,and shall run with the land.
16. NOTICES: Any and all notices or other matters required or permitted by this
Agreement or by law to be served on, given to, or delivered to either party hereto by the other party
to this Agreement shall be in writing and shall be deemed duly served, given, or delivered when
personally delivered to the party to whom it is directed, or, in lieu of such service, when deposited
in the United States mail,first-class postage prepaid to:
FLORA: 1189 FLORA DRIVE,LLC
684 Higuera Street, Suite B
San Luis Obispo,CA 93401
CITY: City of Arroyo Grande
Attn: Kelly Wetmore,City Clerk
300 E.Branch Street
Arroyo Grande,CA 93421
With copy to:
Heather Whitham
CARMEL&NACCASHA LLP
1410 Marsh Street
San Luis Obispo, CA 93401
or at such address, and to such addressee(s) as the parties or their successors shall hereafter
provide the other by notice in accordance with this paragraph. In the event that any parties'
successor(s) in interest fail to provide such addresses to the other, then notice may be directed by
publication under applicable statutory law.
Whereas the Parties have executed this Agreement effective as of the date first written
above.
' -► : 1189 FLORA ROAD,LLC:
4" ', I
Robert McFall, : tin; ity Manager By: Tompkins Trust's
.for-,the City of Arroy Grande Dated November 14,2007
it AT;TEST• Managing Member,
Nicholas J.Tompkins,Trustee
Ai 1 !A C
c) ` Melly W. m o ,City Clerk
..............• \
•
APPROVED AS TO FORM AND LEGAL
EFFECT:
Heather K. Whitham,City Attorney
i
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 )
) ss
COUNTY OF SAN LUIS OBISPO )
On M arch 2 712_017 (date),before me, MicC1(l eIe A.Tornpkins,Notary
Public, personally appeared (I Calc(QHS' T. Tamp K.i i s
who proved to me on the basis of satisfactory evidence to be the ersonna') whose nameKalarf
hsu scribed to the within instrument and acknowled d to.me that hske/thry executed the same in
h /th(r authorized capacity(i ), and that by his r/thy signature(Oon the instrument the
personcg)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.
WITNESS my hand and official seal.
MICHELE A.TOMPKINS
%�f Commisssiix+0 2107918
Notary Public-CalKornia
(Seal) ' �j San Lida Obispo County
I_ _ 1i1 Comm:s resa May 5,20191
Description of Attached Document
Title or Type of Document: .1rr1-- and rzeli Ien t Je : Water KI 5 o Lt ii%i e5
Document Date: 1\4ar^r In 27 � 20 1 7
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 )
) ss
COUNTY OF SAN LUIS OBISPO )
On Aer'j/ s, go (7 (date),before me, /�/ nor kt. ,Notary
Public, perso ally appeared /Qo G✓7`' n44 Fed/
who proved to me on the basis of satisfactory evidence to be the persons whose name(e) is/are
subscribed to the within instrument and acknowledged to me that he/ahc/thcy executed the same in
hist authorized capacity(ies), and that by his/herftheir signature( on the instrument the
person(st 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.
WITNESS my hand and official seal.
NORTON
.• Corn ssIcn/2099508
- Nolary Public•California/" )rP (Seal) `a •,/ Bon lugrettt_tintj_
9019�
Description of Attached Document
Title or Type of Document: irQ tiT 4te4 4,71( wttocsi lee le 41-41ReCi5
027 02o/7 .' 7rc 5
Document Date: �d eat. 1
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EXHIBIT "A"
PARCEL 1 OF PARCEL MAP AG-79-022, IN THE CITY OF ARROYO GRANDE,COUNTY OF SAN LUIS
OBISPO,STATE OF CALIFORNIA,ACCORDING TO THE MAP RECORDED JUNE 10, 1982 IN BOOK 32, PAGE
25 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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, j MICHAEL B. STANTON, PLS 5702 OF EXISTING WELL AND UNDERGROUND LAT '
�, L .- 3563 SUELDO ST. UNIT QEASEMENT
. a SAN LUIS OBISPO, CA 93401
LAND SURVEYS 805-594-1 960 September 3, 2015 JOB #15-019 1
i
END OF DOCUMENT