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HomeMy WebLinkAbout2009-060326RECORDED AT THE REQUEST OF AND WHEN RECORDED PLEASE MAIL TO: PARKER & SANDER 755 SANTA ROSA STREET, SUITE 300 SAN LUIS OBISPO, CA 93401 A7TENTION: Paul B. Parker 007-522-008 Public Entity, Ffling Fee Waived Gov. Code & 6103 '�'���r:� „_ DOCq:200�J060326 10@B/2009 17:42 qM ^ i � _ , _, .. i GRANT OF TEMPORARY DRAINAGE EASEMENT AGREEMENT This Grant of Temporary Easement Agreement (the "AgreemenY') is made and entered into on October 27, 2009, by and between the CITY OF ARROYO GRANDE, a rnunicipal corporation organized under the laws of the State of California (hereinafter refeRed to as "CITY"), and CLIFFORD BRANCH, Trustee of the Clifford Branch Trust dated January 11, 2006 (hereinafter referred to as "BRANCH"), and sometimes collectively referred to as the "parties", based upon the following facts and circumstances: A. BRANCH is the owner of the real property (hereinafter the "Property") that is in the process of being subdivided into residential lots and is located in the City of Arroyo Grande, State of California, as described in Exhibit "A" attached hereto and incorporated herein by this reference; B. On or about November 1, 1997, CITY filed an eminent domain action (the "Erninent Domain Action") against Grace E. Stiliwell ("5tillwell"), owner of the Property at that time in which CITY sought to acquire a drainage easement to alleviate potential flooding in the generai area of the Property. On or about January 22, 1998, Stillwell and CITY entered into a Grant of Temporary Easement Agreement (the "1998 Easement Agreement") wherein Stillwell granted to CITY a temporary easement and right of way for drainage purposes over, on, under, across, and above the Property (the "1998 temporary drainage easemenY'); shortly thereafter CITY constructed a system of temporary drainage improvements within the 1998 temporary drainage easement consisting primarily of a long shallow ditch and culverts as generaily described in Exhibit "B" and depicted in Exhibit "C," (these drainage improvements are collectively referred to herein as the "Ditch") both of which are attached hereto and incorporated herein by this reference, for the purpose of alleviating potential flooding in the general area of the Property. On or about April 22, 1998, CITY and Stillwell entered into a Settlement and Release Agreement in which CITY agreed to dismiss the Eminent Domain Action, without prejudice, on certain terms and conditions, including CITY's rights under the 1998 Easement Agreement. The 1998 Easement Agreement expired on May 1, 2000. The parties have been unable to locate any subsequent written grant to CITY of a drainage easement in the Property. The parties agree the CITY does not have any drainage easement on or about the Property uniess and until the parties mutualiy execute this Agreement granting the CITY the Temporary Drainage Easement defined below. C. At the October 13, 2009 CITY Council Meeting, CITY as part of the approved Resolution requested Branch grant the CITY a temporary drainage easement to alleviate potential flooding during the immediately upcoming rainy season so that the parties will have additional time to finalize the grant of a permanent easement pursuant to a"Drainage Improvement and Easement AgreemenY' the parties have been negotiating since July 2009. D. Pursuant to the terms and conditions contained herein, CITY desires to obtain from BRANCH a new temporary easement to be used for drainage purposes and BRANCH agrees as a show of good faith in connection with BRANCH's development of the Property to grant CITY a temporary drainage easement. NOW, THEREFORE, in consideration of the premises and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The recitals set forth above are true and correct and incorporated herein by this reference. 2. BRANCH hereby grants to CITY a new temporary easement and right of way over, on, under, across, and above a portion of the Property generally described in Exhibit "B" and depicted in Exhibit "C" for the exclusive purposes of: (i) using the Ditch for drainage purposes to alleviate potential flooding in the general area of the Property; and (ii) access reasonably necessary over the Property for maintaining and repairing the Ditch (the "Temporary Drainage EasemenY'). The Temporary Drainage Easement and other rights granted herein to CITY shall remain in effect for a period ending April 15, 2010. 3. The parties expressly agree that the Temporary Drainage Easement may only be extended beyond April 15, 2010, upon terms and conditions mutually agreed upon by the parties and by a writing signed by both parties. 4. CITY shall be solely responsible for maintenance and repair of the Ditch during the term of the Temporary Drainage Easement. 5. CITY shail maintain a weed abatement schedule for the Temporary Drainage Easement to occur as required by CITY ordinance. 6. CITY agrees to release, defend, indemnify and hold harmless BRANCH from and against any and all claims, demands, actions and/or proceedings, losses, fees, penalties, damages or costs, including reasonable attomeys' fees brought by any party, inciuding but not limited to any and ail governmental entities, agencies and quasi- govemmental entities, in connection with or in any way arising out of the Temporary Easement, including but not limited to the application, zoning and permitting processes, environmental impact reports and any and all other studies and reports concerning the Temporary Easement andlor the property located within the Temporary Easement, construction, use, maintenance, repair, operation, and the instaliation and use of any and all appliances or devices on or about the Temporary Easement. 7. No waiver by a party of any provision of this Agreement shall be considered a waiver of any other provision or any subsequent breach of the same or any other provision, including the time for performance of any such provision. The exercise by a party of any remedy provided in this Agreement or at law shall not prevent the exercise by that party of any other remedy provided in this Agreement or at law. 8. Should any provision of this Agreement be held by a court of competent jurisdiction or by a legislative or rule making act to be either invalid, void or unenforceable, the remaining provisions of this Agreement shail remain in full force and effect, unimpaired by the holding, legislation or rule. 9. This Agreement constitutes the entire agreement between the parties and supersedes ali prior discussions, negotiations and agreements whether oral or written. Any amendment to this Agreement, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. 10. This Agreement inures to the benefit of, and is binding on, the parties, their respective heirs, personal representatives, successors and assigns. 11. Masculine, feminine or neuter gender and the singular and the plural nurnber, shall each be considered to include the other whenever the context so requires. If either party consists of more than one person, each such person shall be jointly and severally liable. 12. This Agreement and al� matters relating to this Agreement shali be governed by the laws of the State of California in force at the time any need for the interpretation of this Agreement or any decision or holding concerning this Agreement arises. 13.A11 notices and demand shall be given in writing either by personal senrice or by registered or certified mail, postage prepaid, and return receipt requested. Notice shall be considered given forty-eight (48) hours after deposit in mail. Notices shail be addressed as appears below for each party, provided that if any party gives notice of a change of name or address, notices to the giver of that 7 notice shall thereafter be given as demanded in that notice. CITY: City of Arroyo Grande City Manager P.O. Box 550 Arroyo Grande, CA 93421 With a Copy To: Timothy J. Carmel Carmel & Naccasha LLP PO Box 15729 San Luis Obispo, CA 93406 BRANCH: Cliff Branch, Trustee 755 Santa Rosa Street, Suite 310 San Luis Obispo, CA 93401 14. In the event any action be instituted by a party to interpret or enforce this Agreement, the prevailing party in such action (as determined by the court, agency or other authority before which such suit or proceeding is commenced), shall be entitled to such reasonable attorneys' fees, costs and expenses as may be fixed by the decision maker. The foregoing includes, but is not limited to, reasonable attorneys' fees, expenses and costs of investigation incurred in (1) appellate proceedings; (2) in any post-judgment proceedings to collect or enforce the judgment; and (3) establishing the right to indemnification. 15. This Agreement may be executed in iwo or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Each party and its counsel have participated fully in the review and revision of this Agreement. 16.Any rule of construction to the effect that ambiguities are to be resoived against the drafting party shall not apply in interpretation of this Agreement or any amendments or exhibits thereto. 17.The parties hereby represent that the individuals executing this Agreement are expressly authorized to do so on and in behalf of the parties. 18.Amendments to this Agreement shail be in writinq and shall be made only with the mutual written consent of all of the parties to this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year set forth below. Signatures on Next Page CITY OF ARROYO GRANDE By � Tony Ferr , ayor' Date: /� -0�7 � g Attest �(,�-_. Ketly Wetm re, C Clerk Approved As To Form: .1�— Ti thy J. , City Attomey Date: /Q d-���`i CLIFFORD BRANCH TRUST DATED JANUARY 71, 2006 � Clifford Branch, Trustee "Signatures mustbe notarized Exhibit u A�� 7anuary 19, 1996 Stiiwell Property PARCEL7 Lots 37 and 38 oE the Subdivlsion of the Ranchos Comal de Piedra, Pismo and 8otsa de Chemisal, Gf ihe City of Arrayn Granda, in the County ot San Luis Obispo, Slale of Califomia, as laid down and desi0nated upon a map enUlled'Map of tha Resuhdlvision oi a part of �he Ranchos Comal tle Piedre, Pismo end BWsa de Chemkal, San Luls Obfspo County, CaI'rf'omia, the property of E W. Sleele, Esq., swveyed by R. R. Harris Navember,1885", accorcling !o map recorded November 24, '1880 in 800k A, Page 63 of Maps, In the oHlce oF the Caunty Recorder uf sald County. EXCEPTING lherefrom that pa5on of Lot 38lying wRhin that certaln 50 foot vride stnp of land cornayed m the Couniy of San Luis Ohtspo, (for roed purposes) In that certain deed execuled by Edgar Ball to ihe Counry of 6an Luis Obispo; recorded fn Book 88, Page 387 of Deeds. PARCEL 2 Those portions of Lcts 17 and 18 of Ihe Su6divls(on ot lhe Ranchos Corral da Piedra, Pismo and Bolsa de Chem'rsal, in the City of Arroyo Grende, in the County of San Lufs Obispo, State of Califomia, as taid down antl desigrrated upon a map enGtled'Map ofthe Resubd'rvision oi a part of the Ranchos Cortal de Pfedra, Pismo and Bolsa de Chemisal, San Luis Obispo County, CallEomla, the pmpe[ty of E W. Steele, Esq., surveyed by R. R. Hartis November, 9885`, according lo map recoMed November 24, 1880'vi Book A. Page 63 of Maps, in iha oflioe at the County Recorder of sald County, descn'bed as foflows: Beginning at Stake 5.82 at tha most Southeiiy comer of said Lot 18; thence North 5/' 3D' Eest along the No�ihwesteciy Gne of MyrUe StreeL 655.8 fee� thence Naith 8 0' Wesl to ihe center of the charo�rJ of Mroyo Grande Creek; lhenca westerly abng the center of the channel of safd creek to the East fine of Sqnley Avenue; thence Soulh 9° D' Eas[ along the East Ilne ot Stanley Avenue 130 feek more oc less, to the Point of Beginntng. Exhibit "B" January 19, 1996 Stilwell Temporary Prainage Easement A temporary dtalnage easement o�et portions of Lat 16, Lot 37 and Lol 38 of ihe Map of parls of the Ranchos Corcal de Piedra, Pismo & Bo�sa de Chamisal as shown on the Map flled in Book A of Maps, at page 63, In tha San Luis Obfspo County Racorders Otfice. in ihe Cny of Arroyo Grande. County af San Luis Oblspo, Slale oFCaGfomia, forthe purpose of cansWcting, instalfing, operating, inspecting, repalAng, mainiaining, repladng, improving and removing surtacedrainage sWctures end appurtenances therelo and for agress end ingress to carty aul such pur{roses, the easement is dascribed in Parcel 1, Parcel 2 and Percel 3 as follows: PARCEL 1 A 30 faot wide strip, the eenteriine described as foiloxrs: CammenGng at a 112" rebar In the cente�'ine of Cherry Avenue as shown on the Record of Survey filed In Boak 41 of Uoensed Surveys at page 36 in sald County Recorders Oflice bef�9 the southwest lot rr�mmer of said Lo1381hence along the southe�iy Ilne of said Lot 36 �nrih 56'S6'14' east 4D_00 feet to the eastetty Ifne of Bcflnch Mfll Road as shown on said survey 6eing the Tn�e Point o[ 8eginnin9; thance teaving seid southerly iine north 3° 04' 00° east 180.91 feet to a pofn[ on the east Ifne of sald Lot 39, being 146.44 feet northerly of the soufheast comer oF said Lot 36. The southerly ami norlhedy tertnlni of the sidelines of said easament are to be Iengthaned ar shociened to tetminate along the right af way of Breneh Mill Road, the soulheAy itne of lnt 38 and the easterly Gne of lot 38 respedively. PARCEL 2 The westerly 30 feet of Lot 37 except for lhe southarly 720.78 feet of sa(d Lot 37. PARCEL 3 That Portton of said Lot 1 B desaibed as fo�ows: Baginning at Comer S 82 es shown on said map at the noAheastarly intersacHon nf Myrtle Street and SlaMey Avenue; ihenee aiong the sautherly line ot said Lot 1 S, being the tiorfhetiy line oF sald My�tle Streei, nwlh 56 56 30" east 7D.00 feeY thence north 50° 51' 77" west 95.94 feet to a pofnt on the westerly line o4 Lot 1 B, being the easterly fine oF said Slaniey Avenue, lhat bears norlh 08° 03' 25" west 100.00 faet from said Comer 5 82; thence along said easterty Ifne of Staniey Avenue south 09° 03' 25" east 100.00 feet to Ihe Pant of BegfnninB. The City of Atroyo Gcande shad have the right to (nstall eny end atl applfances or devices necessary for the proper repair, maintenanee, operetion, replecement and imprrnement of said surface and subsurtace drainage , and the rtght to ctear the easements and keep the same iree of bnash, tree or root grov�Ah end any other obsltuctlon as may be necassary forlfie installation, conslrudion, repair, maintenanee, operellon, replacement and Improvert�nt of safd dreinage sUUCtures._ Except for the City's d2fnage structures, apppances, devices and athe� �elated eppurtenances, no 6uildinge, sWdures or other impro�ements shall ba located within lhe easaments Parcels 1. 2 and 3 ere shoWn on aNached Exhi6(t'C" r f � �. Exhibit "C" ��s ���� Q � h c �' $ o =a o o• � 25•� — — 1saz �� Mvrtle St. Lot t Lot 2 Lot 3 Lot 4 LOI $ l.ot 38 A/MB/63 � � . � i `�J ✓ Porcet 1 Lot 5 30' wfde Temporary , Orainaqe Easemenl � 5.2Gi sq.fl t ` � I.ot 7 �� Parcel 3, Temporory - Drainoge Easemeni 3,797 Sq Ft t � OY, � p S�eele s Re=ubdiVis'toh Fd 1' IP IS 3673 Parcel 2 130' wide fempa ry �roinoge Easem nl 1i.3�2 sq.ft. t Lot 37 Lot 3S A/M8/63 A �� B �� 3 /� l � ,dje` � � �S• �, N � t LOt a I Fd rebor 40� s' Fd 7" — — — NSG56'74"E Eost Cherry Ave_ � True Point of Beglnning; Porcel 1 6 1 �� BO� �.. ��ffiCB �L �83�CH�¢QS � Civil fingbualn8 • SurveyinB • P/am+Lrg 4115 Sa. Breod SL BS Son Wls Oblopo, Cq [BO5)54h4ot1 FAIf 844-429� CALIFORNIA ALL•PURPOSE ACKNOWLEDGMENT State of California � County of �an �ct�s �b �s�op On /0 23 0 9 before me, �.�! �• / a�--K�'r'. /�a �� 1��/`c — o„ , — _ He�e i�:an Nama �anua o� me orcrar ' personally appeared �PA�UL� B. PA� RKER � V COMM. q1691717 Q ti • NOTARYPUBLIC-C.4lJFORNIA � � SAN LUIS OBISPO COUN7Y n COMM E%PIRES SEPT.4, 2010 '' Race Nalary Seal Abuva 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/hedtheir 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 'cial seal. Signature �� SlpnaNre a/ Nolery PuEYc OPT/ONAL Though the inlormation be(ow is nof required by law, if may prove valuable !o persons relying on Ihe document and could prevenf Iraud�/ent removal and reattachmenf ol this /orm �o enother documenf. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signers Name: ❑ Individual ❑ CorporateOfficer—Title(s): _ ❑ Partner—p Limited O General ❑ Attorney in Fact ❑ Trus[ee ❑ Guardian or Conservator ❑ Other. Signer Is Representing: 1iIGHTTHl1I�-0BPRINT � � OFSIGNER Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s�: _ ❑ Partner — O Limited O General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator O Other.. _. Signer Is Representing: RIGHTTHUMBPRIt�IT OF SIGNER � ilamA59p� ReddC�CNITdFFreel-6p69)6EB21 C/�l.IFORNBA d1LL-PlIRPO$E ACKNOlNLEDGMEiVT State of California 1 �a�1.��5�(�` J County of . 15Pb On � 0 ' a�-� - O� before me. �2- � ���.C�-Q'�'V�'L`��8 ,+vo �'0.�M PU bt l G , Oala �_ Here Irtutl Nome Ttle ol Me 011ker personally appeared � � n � KELLY WETMORE Commisslon s 1837570 Notary Publlc - CellFOmla � Sen Luic Obiepo County M Comm. 6 Ues Feb 21 2013 who proved to me on the basis of satisfactory evidence to 6e the personjs} whose name.(a) is/are subscribed to the within instrument and acknowledged to me that he/s1aeHHey executed the sarne in his/FieHtHeir authorized capacity(ies), and that by hisJheHih�ir signature� on the instrument the person(s}, or the entity upon behalf of which the person(a7 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is irue and correct. WITNESS h n and official seal. Placa Na�a Seel Abwe Signature � ry � vRa NalaryPUblic OPTIONAL Though the in�ormation below is not required by law, it may prove valuab/e Io persons lying on the document and cou/d p�event f2udulent removal and reattachment ol thls lorm to anofher document. Description of Attached Document Title or Type of Oocument: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): _ ❑ Partner— 0 Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUh19PRIM � OFSIGNER �. Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer—Tiile(s): ❑ Partner—O Limited O General ❑ Attorney in Fact ❑ Trus[ee ❑ Guardian or Conservator ❑ Other: Signer Is qepreseniing: Tap ol Ihumb hera G20�NatlanolNOdryASSOnaOOn•93WDe5doAve.,P,O.8ax2A02•C�atsxopli,Cn9t3t3-2�1Ww+rvcNeuoreMOiaryae9 I�and5901 ReorUarC:tllTdbFmvF900.B16E82]