Loading...
HomeMy WebLinkAbout2010-012273 Sa Luis Obispo Couu y Clerk/Recorder A 3/17/2010 Recorded at the request of 11:28 AM Public RECORDING REQUESTED 0 0 C a: 2010012273 Titles: 1 Pages: 45 BY 0.00 REUTRN WHEN RECORDED I 11111111111111111 IIII Others e s 0.00 City of Arroyo Grande PAID $0.00 Attn: City Clerk PO Box 550 Arroyo Grande, CA 93421 FOR RECORDER'S USE ONLY DRAINAGE IMPROVEMENT AND EASEMENT AGREEMENT This DRAINAGE IMPROVEMENT AND EASEMENT AGREEMENT (the "Agreement") is made this 11ir' day of Y'W , 2010 (the "Effective Date "), by and between Huasna Development Company, LLC, a Califomia limited liability company and/or assigns (hereinafter referred to as "HDC "), and the City of Arroyo Grande, a municipal corporation (hereinafter referred to as "City"). RECITALS WHEREAS, HDC is the owner of approximately nine (9) acres of real property located within the City identified as Assessor Parcel Nos.: 007 - 571 -001, 007 - 565-004, 005 and 007 -522 -008 (the "Property") and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference; and WHEREAS, HDC is currently in the process of subdividing the Property into twenty - eight (28) residential lots, four (4) open space parcels and one drainage parcel (Lot 29), pursuant to Arroyo Grande City Council Resolution No. 4225 approving Vesting Tentative Tract Map No. 2653 ( "VTTM 2653 ") and Planned Unit Development No.04- 002 ( "PUD 04-002"; collectively the "Cherry Creek Development"); and WHEREAS, on or about October 23, 2009, Cliff Branch, trustee of the Clifford Branch Trust dated January 11, 2006, predecessor in interest to the Property, granted to and the City accepted a temporary drainage easement over a portion of the Property pursuant to that certain recorded Grant of Temporary Drainage Easement Agreement (the "Temporary Easement") dated October 28, 2009 in the official records of the San Luis Obispo County Recorder's Office, Document Number 2009060326, which grant shall terminate on April 15, 2010; and WHEREAS, pursuant to Revised Condition of Approval No. 10 of Resolution No. 4225 ( "Condition 10 "), HDC shall grant to City a permanent drainage easement over a portion the Property, consistent with the Newsom Springs Regional Drainage Plan ( "Newsom Drainage Plan"); and WHEREAS, HDC has conceptually agreed to construct the "Drainage Improvements" as generally defined and identified in the City approved Tract 2653 Improvement Plans prepared by Above Grading Engineering dated January 15, 2010, a copy of which is on 1 file at the City of Arroyo Grande, Community Development Department, located at 214 E. Branch Street (Exhibit "B ") and agreed to construct improvements shown in the Landscape Plans prepared by Oasis Architecture dated January 15, 2010, a copy of which is on file at the City of Arroyo Grande, Community Development Department located at 214 E. Branch Street (Exhibit "C "), collectively herein referred to as the "Approved Plans." The Approved Plans have upon execution of this Agreement been approved by the City and are deemed to be consistent and compliant with Resolution No. 4225, the Revised Conditions of Approval, the Mitigation Measures, VTTM 2653, PUD 04 -002, the Newsom Drainage Plan, and the environmental impact report for the Cherry Creek Development; and WHEREAS, the " Outfall Structure" as shown on the record drawings of the Outfall dated October 20, 2009, a copy of which is on file at the City of Arroyo Grande, Community Development Department, located at 214 E. Branch Street, has been permitted, constructed, inspected and the improvement bond released by the City and the City acknowledges that HDC has fulfilled all of its obligations under Mitigation Measure ( "MM ") 6.5 of Resolution 4225; and WHEREAS, pursuant to Condition of Approval 116 of Resolution 4225, the City is required to reimburse HDC immediately upon completion and acceptance by the City of the offsite Newsome Springs Drainage Improvements Three Hundred Six Thousand dollars ($306,000.00), plus interest at 3% from May 26, 2009, until paid. WHEREAS, by this Agreement, the parties wish to set forth the terms and conditions of the grant of a permanent drainage easement, transfer of the Drainage Improvements and the ultimate transfer of Lot 29 to City. NOW, THEREFORE, for a good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Grant of Easement. Subject to the terms and conditions of this Agreement, HDC shall, on or before June 30, 2011, unless this date is extended pursuant to Condition 10, by recorded easement timely grant ("Grant') to the City either drainage easement described in Paragraph 2.a or 2.b below. The parties expressly agree that, HDC shall elect in its sole determination whether to Grant the City the drainage easement as described in Paragraph 2.a or 2.b. HDC shall Grant to the City one of said easements, subject to the terms and conditions of this Agreement: 2 a. If HDC constructs the Drainage Improvements pursuant to the Approved Plans or if HDC commences but fails to complete construction of the Drainage Improvements, HDC shall Grant to City, and City shall accept from HDC, an exclusive drainage easement (hereinafter the "Drainage Easement") over, under and upon a portion of the Property as generally shown in Exhibit "D" attached hereto and incorporated herein by this reference, as well as access rights thereto. All right, title and interest in the Drainage Easement shall merge into City's fee simple interest of Lot 29 upon the transfer of said Lot 29 as specified in Paragraph 9, below. This Grant of the Drainage Easement shall include transfer to City of all right, title and interest in the Drainage Improvements and the Outfall Structure located within the Drainage Easement The agreed form of this Drainage Easement is marked Exhibit "E" attached hereto and incorporated herein by this reference. Upon HDC's request, the Drainage Easement shall be properly executed by the parties and recorded by HDC. b. In the event that HDC does not construct or commence construction of the Drainage Improvements as set forth in Paragraph 2.a above, HDC shall instead Grant to the City an exclusive altemative drainage easement (hereinafter the °Alternative Drainage Easement') over, under and upon a portion of the Property as described in the plat of the Alternative Drainage Easement, a copy of which is attached hereto as Exhibit "F" and incorporated herein by this reference, as well as the access rights thereto, upon the sooner of: (1) prior to the individual sale of either of the Stillwell parcels (A.P.N. 007 - 565 -004 and 007 -522 -008); or (ii) June 30, 2011. This Grant of the Altemative Drainage Easement shall include transfer to City of all right, title and interest in the Outfall Structure located within the Altemative Drainage Easement. The agreed form of this "Alternative Drainage Easement" is marked Exhibit "G" attached hereto and incorporated herein by this reference. Upon HDC's request, the Alternative Drainage Easement shall be properly executed by the parties and recorded by HDC. c. It is expressly agreed that HDC's obligation to transfer the Drainage Easement or the Altemative Drainage Easement described in Paragraph 2.a or 2.b above, shall not be binding upon HDC if HDC assigns, sells or otherwise transfers HDC's entire right, title and interest in this Agreement, the Property and the Cherry Creek Development to any third party who assumes in writing all of HDC's rights and obligations set forth in this Agreement, including, but not limited to the option to transfer to the City the Drainage Easement or Alternative Drainage Easement described in either Paragraph 2.a or 2.b. 3. Character of Easement. Subject to paragraph 9 below, the Drainage Easement or Alternative Drainage Easement granted herein is perpetual, exclusive and in gross for the benefit of the City, its successors and assigns. 3 4. Temporary Drainage Easement. a. Temporary Drainage Easement Grant of October 28, 2009. The parties have recorded a Grant of Temporary Easement Agreement on October 28, 2009, which easement shall expire at 11:59 p.m. PST on April 15, 2010. b. HDC hereby Grants to City a second temporary drainage easement ( "Second Temporary Drainage Easement") over, under and upon the portion of the Property described in Exhibit "H" attached hereto and incorporated herein by this reference, as well as access rights thereto. Said Second Temporary Drainage Easement shall be for the purpose of operating and maintaining the existing drainage ditch running across the Property. It is the intent of the parties to ensure continuity of drainage facilities and that the Temporary Drainage Easement or Second Temporary Drainage Easement or some other reasonably comparable drainage facilities, as agreed by the parties, are at all times in place during the rainy season. The parties shall cooperate in good faith in coordinating the transition from the Second Temporary Drainage Easement to the Drainage Easement or the Alternative Drainage Easement. As such, said Second Temporary Drainage Easement shall be in effect until the earlier of: (i) substantial completion of the Drainage Improvements; or (ii) sixty (60) days after the permanent Grant of the Altemative Drainage Easement in favor of the City referenced in Paragraph 2.b above. It is expressly agreed that upon HDC's commencement of the grading of the Drainage Improvements, HDC shall have the right to alter and remove any and all of the City's drainage improvements and property installed pursuant to the Second Temporary Drainage Easement and/ or Temporary Easement identified in the third Recital of this Agreement above including but not limited to any ditches and culverts. HDC shall take all reasonable care in the removal of any culvert(s) and such property removed shall remain the property of City. The Temporary Easement and the Second Temporary Drainage Easement are collectively referred to herein as the "Temporary Drainage Easements ". The agreed form of the Second Temporary Drainage Easement is marked Exhibit "I" attached hereto and incorporated herein by this reference. The Second Temporary Drainage Easement shall be executed contemporaneously with this Agreement and promptly recorded. c. City agrees, for a period not to exceed the necessary duration of the Temporary Drainage Easement as described in Paragraph 4.b above, to be solely responsible for any maintenance or repair necessary to maintain the Temporary Drainage Easement in a safe and usable condition for its intended purpose. 4 d. The City and its permitted assigns, agree'to indemnify, hold harmless and defend HDC, its agents, representatives, employees and assigns, against any and all claims, liabilities, actions, demands, costs or expense, including reasonable attomey's fees, arising out of or in any way connected to the City's, or its agent's, employee's, or invitee's use or maintenance of the Temporary Drainage Easement. This Paragraph 4.d shall remain in full force and effect until such time as the Temporary Drainage Easement is no longer necessary to operate and maintain the existing drainage ditch running across the Property. e. HDC shall have the right to use the Temporary Drainage Easement area for construction of the Drainage Improvements described in Paragraph 7, below, during the period from May 1, 2010 through November 28, 2012. As described in greater detail in Paragraph 4.b, if necessary, HDC shall coordinate said construction activities with City to allow for continued operation of the Temporary Drainage Easement during the rainy season. 5. Offsite Improvements. Pursuant to Condition 116 of Resolution 4225, HDC is obligated to construct certain offsite drainage improvements within the existing public right of way on Branch Mill Road, referred to herein as "Offsite Improvements." City or another entity shall be solely responsible for the permitting, design and construction of any offsite improvements located outside the existing public right of way. City represents it has the right to access to the Offsite Improvement area. City grants to HDC, its agents and employees, the non - exclusive right to access the on and offsite Drainage Easements for the sole purpose of planning and constructing the Drainage Improvements referred to in this Agreement. 6. Repair and Maintenance. Except for those maintenance and repairs required by, attributed to or necessary for HDC's construction of the Drainage Improvements described in paragraph 7 below, after acceptance of the Drainage Easement and Drainage Improvements, City shall be solely responsible to perform such maintenance and repair of the Drainage Easement and Drainage Improvements as determined necessary by City and to keep same in a safe, usable and functional condition. The obligations under this paragraph shall survive the termination of this Agreement and continue so long as City is the holder of the Drainage Easements or owner of the Drainage Improvements. 7. Drainage Improvements. If HDC pursues construction of the Drainage Improvements, HDC shall complete construction of all such Drainage Improvements per the Approved Plans by no later than November 28, 2012, unless extended pursuant to the Revised Conditions of Approval for Resolution 4225. In the event HDC commences, but fails to complete construction of all Drainage Improvements by November 28, 2012, or as otherwise extended, such a failure shall be deemed a material breach of this Agreement by HDC and HDC shall promptly Grant to City the Drainage Easement as described in Paragraph 5 2.a. City shall have the right to immediately cause such remaining work to be completed on an expedited basis in order to complete such work prior to the rainy season. The parties acknowledge that Califomia AB 333 was signed into law on or about July 15, 2009, extending the dates set forth above by an additional 24 months. The parties further agree that these dates may be further extended pursuant to Condition 10. This remedy shall be in addition to and not affect any other right or remedy of the City, either in law or in equity. 8. Guaranteed Water Service. City acknowledges that VTTM 2653 and PUD 04 -002 are exempt from City's Interim Urgency Ordinance No. 618 enacted on December 8, 2009. In the event HDC completes the Drainage Improvements within two (2) years from the Effective Date, HDC shall have the guaranteed right to receive water service from City for all twenty eight (28) residential units within the Cherry Creek Development upon application for service, pursuant to Arroyo Grande Municipal Code Chapter 13.04. 9. Transfer of Drainage Lot. Upon completion and acceptance of the Drainage Improvements by City, or in the event that HDC commences but fails to complete the Drainage Improvements, HDC shall convey, by grant deed, Lot 29 to City in fee simple absolute, and assign or transfer to City, all of HDC's right, title, and interest in HDC's contracts, including any guarantees and warranties arising therefrom, with all contractors constructing the Drainage Improvements. HDC agrees to use only licensed, bonded and insured contractors to construct the Drainage Improvements. Upon recordation of the grant deed transferring Lot 29 to City, all right, title and interest in the Drainage Easement transferred to the City pursuant to Paragraph 2.a above shall merge into City's fee simple interest in Lot 29 and this Agreement shall terminate, except as otherwise specified herein. 10. Maintenance and Repair of Lot 29. Upon HDC deeding the fee simple absolute interest in Lot 29 to the City, the City shall be solely responsible for any and all maintenance, monitoring, and /or additional mitigation required for Lot 29 under the Revised Conditions of Approval and MMs for Resolution 4225, including but not limited to MM 4.3. 11. Reimbursement to HDC. Pursuant to Revised Condition of Approval 116 of Resolution 4225, the City shall reimburse HDC Three Hundred Six Thousand ($306,000.00), plus interest at three percent (3 %) per annum from May 26, 2009, until paid. Payment shall be upon completion and City acceptance of the offsite Newsome Springs Drainage Improvements. If the City fails to pay all amounts due within ninety (90) days after the completion and City acceptance of the offsite Newsome Springs Drainage Improvements, HDC shall have the right to pursue a collection action and the prevailing party in any such action shall be entitled to recover their attorney fees and costs. 12. Inspections and Approvals. The City recognizes the importance of the Drainage Improvements and agrees to promptly conduct all reviews, inspections and, 6 subject to satisfaction of conditions of approval and mitigation measures, issue approvals consistent with this Agreement. The City agrees to conduct all ongoing construction inspections within three (3) business days of HDC's request. Upon written request by HDC for a final inspection of the Drainage Improvements, the City shall fumish HDC within five (5) business days a final and complete list of all correction items. Upon HDC's written notice to the City of HDC's completion of the correction items, the City shall have five (5) business days to inspect the Drainage Improvements. 13. Successors and Assigns. The provisions of this Agreement are intended to and will run with the Property, and will bind, be a charge upon and inure to the benefit of the City and HDC, their respective successors and permitted assigns. 14. Indemnification. a. HDC, its successors and permitted assigns, agrees to indemnify, hold harmless and defend the City, its officials, agents, employees and assigns (collectively the "City Parties "), against any and all claims, liabilities, actions, demands, costs or expense, including reasonable attomey's fees, arising out of or in any way connected to HDC's, or its agents, employee's, or invitee's use of the Temporary Drainage Easement or the Second Temporary Drainage Easement, including, but not limited to construction of the Drainage Improvements, or HDC's, or its agent's, employee's, or invitee's construction of the Offsite Improvements described in Paragraph 5 above. Notwithstanding the foregoing, it is expressly agreed that HDC shall have no obligation to indemnify the City Parties for any claims resulting from the negligence or willful misconduct of the City Parties. This provision shall survive termination of this Agreement. b. The City and its permitted assigns, agree to indemnify, hold harmless and defend HDC, its agents, representatives, employees and assigns (collectively the "HDC Parties "), against any and all claims, liabilities, actions, demands, costs or expense, including reasonable attomey's fees, arising out of or in any way connected to the City's, or its agent's, employee's, or invitee's use, maintenance or improvement of the Drainage Easement, the Alternative Drainage Easement and Lot 29. Notwithstanding the foregoing, it is expressly agreed that City shall have no obligation to indemnify the HDC Parties for any claims resulting from the negligence or willful misconduct of the HDC Parties. This provision shall survive termination of this Agreement. 15. Insurance. HDC shall maintain such insurances with coverage in amounts sufficiently necessary to adequately protect HOC and City against any reasonably foreseeable loss, claim and/ or liability, including, but not limited to property damage to the Drainage Easement, facilities located therein and 7 surrounding area and personal injury until the date HDC deeds to the City the Drainage Easement. In no event shall HDC have less than $1,000,000 nor more than $2,000,000 in commercial general liability insurance coverage. 16. Notice. All notices given pursuant to this Agreement must be in writing and by personal delivery, U.S. Mail or established express delivery service, such as Federal Express, with postage or delivery charge prepaid, retum receipt requested, and addressed to the person and address designated below: If to Grantor: Brent Pruett, Manager Huasna Development Company, LLC 10200 Huasna Road Arroyo Grande, CA 93420 - With Copy to: J. Johnson, Esq. 928 West Grand Ave. Grover Beach, CA 93433 If to Grantee: City of Arroyo Grande City Manager, Steve Adams 514 E. Branch Street Arroyo Grande, CA 93421 With Copy to: Timothy J. Carmel Carmel & Naccasha LLP PO Box 15729 San Luis Obispo, CA 93406 17.Attomev's Fees. In the event of any controversy, claim or dispute relating to this instrument or breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable attorney's fees and costs. 18.Amendment. Any amendment to this Agreement will be of no force and effect unless it is in writing and signed by the City and HDC or their respective successors or assigns. This Agreement will be effective upon the date it is recorded. 19. Right to Assignment and Transfer. HDC shall have the unilateral right to assign, sell, or otherwise transfer its entire (but not less than its entire) right, title and interest in this Agreement, the Property, and the Cherry Creek Development to any third party without the City's consent if such third party assumes in writing all of HDC's rights and obligations set forth in this Agreement. The parties agree that such assignment, sale, or transfer shall not accelerate or modify HDC's or its assignee's obligation to transfer the Drainage Easement pursuant to Paragraph 2.a or 2.b above. 8 20. Captions. The captions of the sections and paragraphs of this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Agreement, or the intent of any provision hereof. 21. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 22. Legal Advice. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpretation of this Agreement or any amendments or exhibits thereto. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement which shall be deemed made and effective as of the first date set forth above. [Signatures on following page] 9 CITY OF ARROYO GRANDE HUASNA DEVELOPMENT COMPANY, LLC By: .u.rt.._./ By: ��/ ''" To ar a, Mayor' Brent Pruett, Manager Date: Date: Attest � L ■ _ L Kelly W=,, o City Clerk Approved As To Form: Tim by J. Cah s , City Attorney Date: * Signatures must be notarized. 10 State of Califomia County of ,60-n 1 Mil C)b1 0 On mash g 2010 before me, "(>.ebbrlth l -e WS' th∎yjNotary Public, personally appeared Wrn4 P who proved to me on the basis of satisfactory evidence to be the person j4 whose name(sj isIpr4 subscribed to the within instrument and acknowledged to me that he /s9/ttley executed the same in his/1 tl�alr authorized capacities and that his/I}efithpif signature on the instrument the person(s)' or the entity upon behalf of which the person jsl acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. Ir f . Cene • 172711 • Signature 0, 2JH)co -ice KU W V Glut (SEAL) It se ay baborrtA Le We,ichi✓tv Conif'rJ'u^ * 172,it State of California rio I ar i 1 c. - cal r l' �r nla_ So.,. LA • .r Oh' f10 o Cvun +y County of my c ". 6 - plies mar /,•Zoi On , 2010 before me, , Notary Public, personally appeared 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 capacities and that 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. certify under PENALTY OF PERJURY under the laws of the State of Califomia the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (SEAL) 11 EXHIBIT "A" To Drainage Improvement and Easement Agreement PROPERTY Parcel 1 Lots 37 and 38 of the Subdivision of the Ranchos Corral de Piedra, Pismo and Boise de Chemise!, In the City of Arroyo Grande, in the County of San Luis Obispo, State of California, as laid down and designated upon a map entitled "Map of the Resubdivision of a part of the Ranchos Corral de Piedra, Pismo and Boise de Chemise!, San Luis Obispo County, California, the property of E. W. Steele Esq., surveyed by R.R. Harris November, 1885 ", according to map recorded November 24, 1880 in Book A, Page 63 of Maps, in the office of the County of Recorder of said County. EXCEPTING there from that portion of Lot 38 Tying within that certain 50 foot wide strip of land conveyed to the County of San Luis Obispo, (for road purposes) in that certain deed executed by Edgar Bell to the County of San Luis Obispo, recorded in Book 88, Page 387 of Deeds. Parcel 2 Those portions of Lots 3.7 and 18 of the subdivision of the Ranchos Corral de Piedra, Pismo and Boise de Chemise!, In the City of Arroyo Grande, in the County of San Luis Obispo, State of California, as laid down and designated upon a map entitled "Map of the Resubdivision of a part of the Ranchos Corral de Piedra, Pismo and Boise de Chemisal, San Luis Obispo County, California, the property of E. W. Steele Esq., surveyed by R.R. Harris November, 1885 ", according to map recorded November 24, 1880 in Book A, Page 63 of Maps, in the office of the County of Recorder of said County, described as follows: Beginning at Stake S 62 at the most southerly corner of said Lot 18; thence North 57' 30' East along the Northwesterly line of Myrtle Street, 655.6 feet; thence North 9° 0' West to the center of the channel of Arroyo Grande Creek; thence westerly along the center of the channel of said creek to the East line of Stanley Avenue; thence South 9' 0' East along the East line of Stanley Avenue 130 feet, more or less, to the Point of Beginning. • EXHIBIT "B" To Drainage Improvement and Easement Agreement DRAINAGE IMPROVEMENT PLANS Improvement Plan pages removed for recording purposes. Approved plans on file at the City of Arroyo Grande, Community Development Department, located at 214 E. Branch Street EXHIBIT "C" To Drainage Improvement and Easement Agreement LANDSCAPE PLANS Landscape Plan pages removed for recording purposes. Approved plans on file at the City of Arroyo Grande, Community Development Department, located at 214 E. Branch Street • • EXHIBIT "D" To Drainage Improvement and Easement Agreement PLAT OF THE OUTFALL AND EASEMENT (Improvements Constructed) `� OUTFACE AND • OWFAALL srn E' �, P / (CONSTRUCTED - 1MPROVFMENTS) . 2,7-___--e---: MYRTLE 57REET ROW • • .1 T - .....___- -. .‘ p / T = _ egiz SCAmE j , • APPROXIMATE LOCATION OF LOT 29, 1 loch = 80 bat ' TRACT MAP 2554 7O BE DEEDED TO - ' CITY IN FEE SIMPLE ABSOLUTE E i NOV 9, 2009 ffi ABOVE GRADE ENGINEERING • ..T - 778 VxNSlreet SullaA a Son tuts Ot,iwn. C 0241511 EXHIBIT "E" To Drainage Improvement and Easement Agreement • - FORM GRANT OF DRAINAGE EASEMENT (Constructed Improvements) • • • • RECORDING REQUESTED, AND ) WHEN RECORDED, RETURN TO: ) ) Brent Pruett, Manager ) Huasna Development Company, LLC ) 10200 Huasna Road ) Arroyo Grande, CA 93420 ) ) ) (space above this line reserved for recorder's use) GRANT OF DRAINAGE EASEMENT (Constructed Improvements) This Grant of Drainage Easement (the "Agreement ") is made and entered into this day of , 20 , by and between Huasna Development Company, LLC, a California limited liability company (hereinafter referred to as "HDC "), and the CITY OF ARROYO GRANDE, a municipal corporation (hereinafter referred to as "City"). Recitals A. HDC and City have entered into that certain "Drainage Improvement and Easement Agreement dated , 20" (the "Drainage and Easement Agreement") whereby HDC has the option of constructing certain "Drainage Improvements" identified and described therein. B. Pursuant to Section 2 of the Drainage and Easement Agreement, HDC will construct the "Drainage Improvements" as defined and identified therein and convey to the City the Drainage Easement as described in Section 2(a) of said agreement C. IBC desires to convey to City, and City intends to obtain from HDC, the Drainage Easement as identified herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, HDC hereby conveys to the City, and City hereby accepts, the Drainage Easement, subject to the terms and conditions set forth herein. 1. Recitals. The factual recitals set forth above are incorporated into the body of this Agreement as if set forth in full. 2. Description of Easement. HDC hereby grants to the City an exclusive Drainage Easement over, on, under, across, and above a forty foot wide area covering approximately one acre of land consistent with the Newsom Springs Regional Drainage Plan, as more particularly 591119 -4 described in Exhibit "E -1" and as depicted on the plat of the Outfall and Drainage Easement, attached hereto as Exhibit "E-2" (collectively the "Easement Area'). Exhibit E -I and E -2 are incorporated herein by this reference. The grant of Drainage Easement includes all rights of access reasonably necessary for maintenance and repair of the Easement Area by the City as well as all title, and interest in those certain "outfall drainage improvements" already completed by HDC. 3. Duration of Easement; Merger. Pursuant to Revised Condition of Approval No. 10 set forth in Resolution No. 4225, upon HDC's completion of and the City's acceptance of the Drainage Improvements, HDC has an obligation to convey Drainage Lot #29, identified on Exhibit A of the Arroyo Grande City Council Resolution No. 4225, attached hereto as Exhibit "E -3" and incorporated by this reference, to the City. The Drainage Easement granted herein shall cease and terminate by operation of merger upon HDC's conveyance of Drainage Lot # 29 to the City. 4. Maintenance and Repair of Lot 29. City, during the term of this Agreement, shall be solely responsible for any and all maintenance, repair, monitoring, weed abatement, and irrigation for the Easement Area. 5. Indemnification. City agrees to release, defend, indemnify and hold harmless HDC from and against any and all claims, demands, actions and/or proceedings, losses, fees, penalties, damages or costs, including reasonable attorneys' fees brought by any party, including but not limited to any and all governmental entities, agencies and quasi - governmental entities, in connection with or in any way arising out of the Drainage Easement conveyed herein, including but not limited to the application, zoning and permitting processes, environmental impact reports and any and all other studies and reports concerning the Drainage Easement and/or the Property, construction, use, maintenance, repair, operation, and the installation or use of any and all appliances or devices on or about the Drainage Easement , resulting from the City's use of the Drainage Easement. Notwithstanding the foregoing, it is expressly agreed that City shall have no obligation to indemnify IIDC for any claims resulting from the negligence or willful misconduct of HDC. This provision shall survive termination of this Agreement. 6. Governing Law. This Agreement and all matters relating to this Agreement shall 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. 7. Waiver. 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. Notices. All notices and demand shall be given in writing either by personal service or by registered or certified mail, postage prepaid, and retum receipt requested. Notice shall be considered given forty-eight (48) hours after deposit in mail. Notices shall be addressed as 591119-4 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 notice shall thereafter be given as demanded in that notice. CITY: City of Arroyo Grande P.O. Box 550 Arroyo Grande, CA 93421 -0550 With a Copy To: Timothy J. Carmel Cannel & Naccasha LLP PO Box 15729 San Luis Obispo, CA 93406 HDC: Brent Pruett, Manager Huasna Development Company, LLC 10200 Huasna Road Arroyo Grande, CA 93420 With Copy to: J. Johnson, Esq. 928 West Grand Ave. Grover Beach, CA 93433 9. Attorney's Fees. 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. 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 11. Legal Advice. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpretation of this Agreement or any amendments or exhibits thereto. 12. Authority. The parties hereby represent that the individuals executing this Agreement are expressly authorized to do so on and in behalf of the parties. 13. Amendment. Amendments to this Agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this Agreement. 591119-4 14. Captions. The captions of the sections and paragraphs of this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope of this Agreement , or the intent of any provision hereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. HUASNA DEVELOPMENT COMPANY, LLC Date: , 2010 By: Brent Pruett, Manager 5911194 STATE OF CALIFORNIA ) COUNTY OF ) On , before me, , a Notary Public, personally appeared , 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 aelmowledged 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 sea). Print Name: NOTARY SEAL STATE OF CALIFORNIA ) COUNTY OF ) On , before me, , a Notary Public, personally appeared , 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 seal. 591119-4 Print Name: NOTARY SEAL STATE OF CALIFORNIA ) COUNTY OF On , before me, , a Notary Public, personally appeared , 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 seal. Print Name: NOTARY SEAL 5911194 EXHIBIT "E-1" Grant of Drainage Easement (Constructed lmprovementa) LEGAL DESCRIPTION OF (CONSTRUCTED IMPROVEMENTS) LOT 29 OF VESTING TENTATIVE TRACT MAP 2653 EXHIBIT "E-2" . Grant OfDrainage Easement (Constructed Improvements) • PLAT 01? THE OUTFALL AND EA m tai (CONSTRUCTED IMPROVEMENTS) .��`� OUTFALL AND LOCATION OF (E) _� � � g EASEMENT OUTFALL , STRUCTURE = —`- P (CONSTRUCTED - --=- IMPROVEMFJJ S) _ -- -- T 3 - MYRTLE STREET ROW . , • . 4 5 z czi / ' �� •.. aim GRAPHIC, SCA la irokp APPROXIMATE LOCATION Of LOT 29, _ — 1 inch = BO teat TRACT MAP 2653, TO BE DEEDED TO Y IN TEE' SIMPLE ABSOLUTE c WY NOV 9, 2009 ABOVE GRADE ENGINEERING 773 Oros Sneer, Suite A San Iutc Obtsnn. CA 9341711 EXHIBIT °E3" • City of Arroyo Grande Resolution No. 4225, Condition of Approval No. 10 • RESOLUTION NO. 422t PAGE 7 10. A. Prior to the issuance of any grading permit and prior to the sale of either of the Stillwell parcels (APN # 007 - 555-004, 0 07 - 522 -0013) the applicant shall deed and • . transfer to the City an exclusive forty foot (40') wide drainage easement covedng • approximately one acre of land consistent with the Newsom Springs Regional Drainage Plan, as shown on Exhibit A -1. •The drainage Basemen t•shall Include any and all right title and interest in those certain "outfall drainage Improvements", already completed by the applicant in no event shall the drainage easement be deeded to the City later than June 30, 2011, except if the deedtiries set forth inn Revised Condition of Approval No. 3 above are extended, which shall both have the impact of extending ali•deadlines in the Revised Conditions of Approval and in the easement agreement affecting property referenced in paragraph D of this condition. , • • B. The applicant shall obtain approval of the drainage plans from the City for all of the onsite and offsita drainage improvements, pursuant to the Sea • plans and'the Newsom Springs Regional Drainage Plan, prior to June. 30, 2011. Drainage lot #29 shall be deeded to the City upon completion and acceptance of Improvements. C. The applicant shall complete all the improvements pursuant to the tract • improvement plans and the Newsom Springs Regional Drainage Plan prior to November 25, 2012. • D. The applicant shall enter into an agreement affectin by the City Attorney to implement this condition. g real property as prepared EXHIBIT "P' To Drainage Improvement and Easement Agreement PLAT OF THE ALTERNATE EASEMENT (Improvements not Constructed) ALTERNATE EASEMENT *- tr N ® 4 (IMPROVEMENTS NOT :Li '' v w 4 CONSTRUCTED) � m � y w ;4 i-k f , i , �l�r App 1.�Y� R fi J i�4t t a i, @v Y¢ A. r1R1' 5AP t� i s Er ''' 1 `- 1 r p� s n .�R� a r 0 � ty a ' t, � 1 ` tY t1e - OUW.4U 7f/RE n .2 i • ' ' v l- �fl'f n J e3 1 , .`fin a f t l 7 I 1- ; a i t Yt ' - -4 t ' . a Lc:7; t Li',,,,:17,1,"..,a1 ni Y,, Z.i ai © W.I 'Y •' ',1,7:0.1”...! 1,..).:10.7°,7 M1 5 Q1 16 ., t } Ijl + �7 it } r' r� � - is r. 63 I's,' t, 1 + r 1 { "F 1 „+; • • t 1 t 1 ,a 1 ti k _; ` f TP.O.B. 4528 — — I MYRTLE STREET e r rIE al I • r, LA "Ft1 a: 'kr 36 3� 5 t � 1 x.6 �h ti M �p 6 r zw� A� 0 e• 31. Y ' 7 li F � ./1 , e1 d P r. 0,-;.1 �' i , �t 1h _ z , ' t . � rd e . . NOV 9, 2009 ' y i t7 l G� r. c` _ ' ` � ABOVE GRAPHIC sc u s'emsargarrt „ � � , �����s� , { r,{ �,; GRADE inch... .. teat G r s � 3 4rkS iLK ENGI t f 1 a '' - N e @ I r r, P.O.C. Sann Li Obispo, CA Suite A 93401 t { ':, ;a:1 ) phone: (805) 5403115 EXHIBIT "G° To Drainage Improvement and Easement Agreement FORM ALTERNATIVE DRAINAGE EASEMENT (Improvements not Completed) • • • • • RECORDING REQUESTED, AND ) WHEN RECORDED, RETURN TO: ) ) Brent Pruett, Manager ) Huasna Development Company, LLC ) 10200 Huasna Road ) .Arroyo Grande, CA 93420 ) ) ) ) (space above this line reserved for recorder's use) GRANT OF ALTERNATIVE DRAINAGE EASEMENT (Improvements not Constructed) This Grant of Drainage Easement (the "Agreement ") is made and entered into this day of , 20 , by and between Huasna Development Company, LLC, a California limited liability company (hereinafter referred to as "HDC "), and the CITY OF ARROYO GRANDE, a municipal corporation (hereinafter referred to as "City'). Recitals A. HDC and City have entered into that certain "Drainage Improvement and Reimbursement Agreement dated , 20" (the "Drainage and Reimbursement Agreement") whereby HDC has the option of constructing certain "Drainage Improvements" identified and described therein. 13. Pursuant to Section 2 of the Drainage and Reimbursement Agreement, HDC has decided, in its sole discretion, not to construct the "Drainage Improvements" as defined and identified therein. Accordingly, HDC shall convey to the City the Drainage Easement as described in Section 2(b) of said agreement. C. HDC desires to convey to City, and City intends to obtain from HDC, the Drainage Easement as identified herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, HDC hereby conveys to the City, and City hereby accepts, the Drainage Easement, subject to the terms and conditions set forth herein. 1. Recitals. The factual recitals set forth above are incorporated into the body of this Agreement as if set forth in full. 1 591267 -3 Initials: / 2. Description of Easement. HDC hereby grants to the City an exclusive Drainage Easement over, on, under, across, and above a forty foot wide area covering approximately one acre of land consistent with the Newsom Springs Regional Drainage Plan, as more particularly described in Exhibit "G -1" and as depicted on the plat of the Alternative Easement, attached hereto as Exhibit "G -2" (collectively the "Easement Area "). Exhibit 0-1 and G -2 are incorporated herein by this reference. The grant of Drainage Easement includes all rights of access reasonably necessary for maintenance and repair of the Easement Area by the City as well as all title, and interest in the "Outfall Structure" located within the Drainage Easement. 3. Duration of Easement. The Easement granted herein shall be perpetual. 4. Maintenance and Repair of Easement. City, during the term of this Agreement, shall be solely responsible for any and all maintenance, repair, monitoring, weed abatement, and irrigation for the Easement Area. 5. Indemnification. City agrees to release, defend, indemnify and hold harmless HDC from and against any and all claims, demands, actions and/or proceedings, losses, fees, penalties, damages or costs, including reasonable attorneys' fees brought by any party, including but not limited to any and all governmental entities, agencies and quasi - governmental entities, in connection with or in any way arising out of the Drainage Easement conveyed herein, including but not limited to the application, zoning and permitting processes, environmental impact reports and any and all other studies and reports concerning the Drainage Easement and/or the Property, construction, use, maintenance, repair, operation, and the installation or use of any and all appliances or devices on or about the Drainage Easement, resulting from the City's use of the Drainage Easement. Notwithstanding the foregoing, it is expressly agreed that City shall have no obligation to indemnify HDC for any claims resulting from the negligence or willful misconduct of HDC. This provision shall survive termination of this Agreement. 6. Governing Law. This Agreement and all matters relating to this Agreement shall 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. 7. Waiver. 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. Notices. All notices and demand shall be given in writing either by personal service 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 shall 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 notice shall thereafter be given as demanded in that notice. 2 591267 -3 Initials: / CITY: City of Arroyo Grande P.O. Box 550 Arroyo Grande, CA 93421-0550 With a Copy To: Timothy J. Carmel Cannel & Naccasha LLP PO Box 15729 San Luis Obispo, CA 93406 HDC: Brent Pruett, Manager Huasna Development Company, LLC 10200 Huasna Road Arroyo Grande, CA 93420 With Copy to: J. Johnson, Esq. 928 West Grand Ave. Grover Beach, CA 93433 9. Attorney's Fees. 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. 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 11. Legal Advice. Each party and its counsel have participated fully in the review and revision of this Agreement. My rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpretation of this Agreement or any amendments or exhibits thereto. 12. Authority. The parties hereby represent that the individuals executing this Agreement are expressly authorized to do so on and in behalf of the parties. 13. Amendment. Amendments to this Agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this Agreement. 14. Captions. The captions of the sections and paragraphs of this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope of this Agreement , or the intent of any provision hereof. 3 591267 -3 Initials: /_ IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. HUASNA DEVELOPMENT COMPANY, LLC Date: , 2010 By: Brent Pruett, Manager CITY OF ARROYO GRANDE, a municipal corporation Date: , 2010 By: Name: Its: Date: , 2010 By: Name: Its: 4 591267 -3 Initials: / STATE OF CALIFORNIA ) COUNTY OF ) On , before me, , a Notary Public, personally appeared , who proved to me an 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 seal. Print Name: NOTARY SEAL STATE OF CALIFORNIA ) ) COUNTY OF ) On , before me, , a Notary Public, personally appeared , 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 seal. 5 591267 -3 Initials: / Print Name: NOTARY SEAL STATE OF CALIFORNIA COUNTY OF On , before me, , a Notary Public, personally appeared , 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 aclmowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signatures) 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 seal. Print Name: NOTARY SEAL 6 591267 -3 Initials: / • EXHIBIT "G -l" Grant ofAitemate Drainage Easement(Improvementsnat Constructed) . LEGAL DESCRIPTION OP' ALTERNATE EASEMENT (IMPROVEMENTS NOT CONSTRUCTED) That portion of Lot 37 of Steele's resubdiv)sion of Rancho Corral De Piedra, Pismo and Bolsa de Chemical, in the City ofArroyo Grande, County of San Luis Obispo, State of California, as shown an the map retarded in BookA of Maps at Paga 63 in the office of the County Recorder of said County, described as follows: • The northeasterly 40.00 feat ofsaid Lot 37. Together that portion of Parcel 2 as described in the deed recorded December 23, • 2008, oe Document Number 2008062581 of Official Records of said Comity, dawn as follows: Commencing at the most easterly corner of Lot 37 of Steele's iesubdivision ofRancho Corral Da Piedra, Pismo and Belk de Chemisal, in the City of Arroyo Grande, County of San Luis Obispo, State of California, as shown on the map recorded in Book A of Maps at Page 63 in the office of the County Recorder ofsaid County, thence along the northeasterly line of said Lot 37 North 32°25'47" West, 59745 feet (record North 32 °23'03" West, 597A8 feet per the map filed in Book 39 of Record of Surveys at Page 6, records of said County) to rho most northerly comer of said Lot37 and the southeasterly right away of Myrtle Street; thence 5.T• West, 50.00 feet to the northwesterly right of way of Myrtle Street and the True Point of Beginning; thence along said northwesterly right of way 1_ South 57°12'08" West, 45.28 feet thence leaving said right ofway 2. North 77 West, 78.43 feet thence 3. North 28 °53'00" West, 50.83 feet thence 4. North 70 °34' 18" East, 86.75 feet thence 5. South 41 ° East, 87.11 feet to the Trua Point of Beginning. End ofDescription. • LAND 5 1 DAt C `-P, * . F l s in i LIG . 06 ,p E O 2 . gist 5 vic 9,s� OF CA`. \row? • 11 -9-09 • 1 EXHIBIT "G-2" • Grant bfAltarnat :- Drainage Easement (Improvements not Constructed) T OF ALTERNATE EASEMENT r ' ALTERNATE EASEMENT - ',� 3' • 0 (IMPROVEMENTS NOT • v 'Y , ce , .r� C ' 70 3. ,_ " CONSTRUCTED) a- Lr �`` ii J7 'i S t -` 'LJ a • KS i W rf ;, t tr -L i Y i • • i ei l� v . A } tJ f1 7` Ii 1 frs l I f; :p- a� r g G l h LOCA710N OF (F� . ' an c 'rltll• 4 ': S A T4s ) P t t;',,,13: 3, 7 , +'21.--111 tJU7FN1 SJRT/ sl r Ll. �- , i5"I��r y - 3 'i. i �t i Y 7. 4" $ . t- b .� x � ILC -, . 1� r 4�Y J .� � � 1 _� 4 1 i 5 iT 4� 5 +41!\''. — •-. 7 a -( la . ©c n v ik. , :�'rfts .� - t it szii- ' + M Oi 'Gti Ii i N ti i, N S r r „,,. 1 V x- Oar _t1� l 4u 4 4 u , h 11 X :,7, g T- P.0.13. I MYRTLE STREET _ alit ) o— — — — 4 I 'Q t 1 . 1 l ■ F Z j `I I W9 s 4qd , � k ru s 7 , 2r w '°l • `l r. Yy, a W � 3 rl 7� b' L 1 t _� „ - + t P V : Pte] *t J ,� 3 P , �ck.l -li qe - NOV 9, 2009 I 1 ! t a. k f n P ABOVE GRAPIIM SCALE 17,4'1'11.4',I0 a.- � . i t. = ac feet 1' "' `6' "'' ENGINEERING i f 'Ir lv '-t is I Ike n�j t-tiri� s f r e fij� r ` - 111. n 1 ` .-er. ` 778 Mos Berea Soils A • y rt n P . O . c Son tuts 06Tepo, AAA 93401 1 .- : e:= ± se a , , } -T >1 hone: (805)540.5115 EXHIBIT "H" To Drainage Improvement and Easement Agreement Property Description for Second Temporary Drainage Easement A temporary drainage easement over portions of Lot 18, Lot 37 and Lot 38 of the Map of parts of the Ranchos Corral de Piedra, Pismo & Boise de Chemisal as shown on the Map filed in Book A of Maps, at page 63, In the San Luis Obispo County Recorders Office, in the City of Arroyo Grande, County of San Luis Obispo, State of California, for the purpose of constructing, installing, operating, inspecting, repairing, maintaining, replacing, improving and removing surface drainage structures and appurtenances thereto and for egress and ingress to carry out such purposes, the easement is described in Parcel 1, Parcel 2 and Parcel 3 as follows: Parcel 1 A 30 foot wide strip, the centerline described as follows: Commencing at a X" rebar in the centerline of Cherry Avenue as shown on the Record of Survey filed in Book 41 of Licensed Surveys at page 36 in said County Recorders Office being the southwest lot corner of said Lot 38 thence along the southerly line of said Lot 38 north 56° 56' 14" east 40.00 feet to the easterly line of Branch Mill Road as shown on said survey being the True Point of Beginning; thence leaving said southerly line north 3° 04' 00" east 180.91 feet to a point on the east line of said Lot 38, being 146.44 feet northerly of the southeast corner of said lot 38. The southerly and northerly termini of the sidelines of said easement are to be lengthened or shortened to terminate along the right of way of Branch Mill Road, the southerly line of lot 38 and the easterly line of lot 38 respectively. Parcel 2 The westerly 30 feet of Lot 37 except for the southerly 120.78 feet of said Lot 37. Parcel 3 That portion of said Lot 18 described as follows: Beginning at Corner S 62 as shown on said map at the northeasterly intersection of Myrtle Street and Stanley Avenue; thence along the southerly line of said Lot 18, being the northerly line of said Myrtle Street north 56° 56' 30" east 70.00 feet; thence north 50° 51' 17" west 95.94 feet to a point on the westerly line of Lot 18, being the easterly line of said Stanley Avenue, that bears north 09° 03' 25" west 100.00 feet from said Corner 5 62; thence along said easterly line of Stanley Avenue south 09° 03' 25" east 100.00 feet to the Point of Beginning. The City of Arroyo Grande shall have the right to install any and all appliances or devices necessary for the proper repair, maintenance, operation, replacement, and improvement of said surface and subsurface drainage, and the right to clear the easements and keep the same free of brush, tree or root growth and any other obstruction as may be necessary for the installation, construction, repair, maintenance, operation, replacement and improvement of said drainage structures. Except for the City's drainage structures, appliances, devices and other related appurtenances, no buildings, structures or other improvements shall be located within the easements. • EXHIBIT'S" - To - Drainage Improvement and Easement Agreement FORM SECOND TEMPORARY DRAINAGE EASEMENT • RECORDED AT THE REQUEST OF AND WHEN RECORDED PLEASE MAIL TO: Brent Pruett, Manager Huasna Development Company, LLC 10200 Huasna Road Arroyo Grande, CA 93420 (space above line reserved for recorder's use) SECOND GRANT OF TEMPORARY DRAINAGE EASEMENT AGREEMENT This Agreement is made and entered into on , 20 by and between the CITY OF ARROYO GRANDE, a municipal corporation organized under the laws of the State of California (hereinafter referred to as "CITY "), Huasna Development Company, LLC, a California limited liability company (hereinafter referred to as "HDC"), and sometimes collectively referred to as the "parties ", based upon the following facts and circumstances: A. HDC is the owner of the real property (hereinafter the "Property ") located in the City of Arroyo Grande, State of California, as described in Exhibit "I -1" attached hereto and incorporated herein by this reference; B. On or about October 23, 2009, Cliff Branch, trustee of the Clifford Branch Trust dated January 11, 2006, predecessor in interest to the Property, granted to and the CITY accepted a temporary drainage easement over a portion of the Property pursuant to that certain recorded Grant of Temporary Drainage Easement Agreement (the "Temporary Easement") dated October 27, 2009 in the official records of the San Luis Obispo County Recorders Office, Document Number 200906036 by and between the parties that shall terminate by its terms on April 15, 2010. C. CITY constructed a system of temporary drainage improvements in the Property consisting primarily of a long shallow ditch and culverts as generally described in Exhibit "I -2" and depicted in Exhibit "I -3," (the "Ditch "), both of which are attached hereto and incorporated herein by this reference, necessary to alleviate potential flooding in the general area of the Property; D. CITY desires to acquire a Temporary Drainage Easement for use of and maintenance and repair of the Ditch. IOC herewith conveys a temporary drainage easement on the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and other good and 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. -1- 591302-2 Initials: 2. The parties hereby agree that this Agreement shall replace and supersede the Temporary Easement described in Recital B and that upon recordation hereof, said Temporary Easement shall terminate and be extinguished. 3. FIDC hereby grants to CITY an easement and right of way over, on, under, across, and above the Ditch for the exclusive purpose 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 ( "Temporary Drainage Easement " ). The Temporary Drainage Easement and other rights granted herein to CITY shall remain in effect until the earlier of: (i) substantial completion of the Drainage Improvements, as defined in the Drainage Improvement and Easement Agreement; or (ii) sixty (60) days after the permanent Grant of the Alternative Drainage Easement in favor of the City referenced in Paragraph 2.b. of the Drainage Improvement and Easement Agreement Upon the recording in the official records of either Drainage Easement described in Paragraph 2 of the Drainage and Reimbursement Agreement by and between the parties, the CITY will without delay sign and record a full reconveyance of the Temporary Drainage Easement described herein. 5. CITY shall be solely responsible for maintenance and repair of the Ditch during the term of the Temporary Drainage Easement. 6. CITY shall maintain a weed abatement schedule for the Temporary Drainage Easement to occur as required by CITY ordinance. 7. CITY agrees to release, defend, indemnify and hold harmless HDC from and against any and all claims, demands, actions and/or proceedings, losses, fees, penalties, damages or costs, including reasonable attorneys' fees brought by any party, including but not limited to any and all governmental entities, agencies and quasi - governmental entities, in connection with or in any way arising out of the Temporary Drainage Easement conveyed herein, 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 Drainage Easement and/or the Property, construction, use, maintenance, repair, operation, and the installation or use of any and all appliances or devices on or about the Temporary Drainage Easement , resulting from the CITY'S use of the Temporary Drainage Easement. Notwithstanding the foregoing, it is expressly agreed that CITY shall have no obligation to indemnify HDC for any claims resulting from the negligence or willful misconduct of HDC. This provision shall survive termination of this Agreement. 8. 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. 9. 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 -2- 591302-2 Initials: / provisions of this Agreement shall remain in full force and effect, unimpaired by the holding, legislation or rule. 10. This Agreement constitutes the entire agreement between the parties and supersedes all 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. 11. This Agreement inures to the benefit of, and is binding on, the parties, their respective heirs, personal representatives, successors and assigns. 12. Masculine, feminine or neutral gender and the singular and the plural number, 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. 13. This Agreement and all matters relating to this Agreement shall 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. 14. All notices and demand shall be given in writing either by personal service 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 shall 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 notice shall thereafter be given as demanded in that notice. CITY: City of Arroyo Grande P.O. Box 550 Arroyo Grande, CA 93421 -0550 With a Copy To: Timothy J. Carmel Carmel & Naccasha LLP PO Box 15729 San Luis Obispo, CA 93406 HDC: Brent Pruett, Manager Huasna Development Company, LLC 10200 Huasna Road Arroyo Grande, CA 93420 With Copy to: J. Johnson, Esq. 928 West Grand Ave. Grover Beach, CA 93433 -3- 591302-2 Initials: / 15. 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. 16. This Agreement may be executed in two or more counterparts, each of which ¢hall be deemed an original, but all of which shall constitute one and the same instrument. 17. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpretation of this Agreement or any amendments or exhibits thereto. 18. The parties hereby represent that the individuals executing this Agreement are expressly authorized to do so on and in behalf of the parties. 19. Amendments to this Agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this Agreement. Signatures on Next Page -4- 591302-2 modals: IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year set forth below. CITY OF ARROYO GRANDE HUASNA DEVELOPMENT COMPANY, LLC By: B y: Tony M. Ferrara, Mayor Brent Pruett, Manager Date: Date: Attest: Kelly Wetmore, City Clerk Approved As To Form: Timothy 7. Cannel, City Attorney Date: -5 591302-2 Initials: EXHIBIT "1 -1" Parcel 1 Lots 37 and 38 of the Subdivision of the Ranchos Corral de Piedra, Pismo and Boise de Chemisal, In the Oty of Arroyo Grande, In the County of San Luis Obispo, State of California, as laid down and designated upon a map entitled "Map of the Resubdivision of a part of the Ranchos Corral de Piedra, Pismo and Boise de Chemisal, San Luis Obispo County, California, the property of E. W. Steele Esq., surveyed by R.R. Harris November, 1885 ", according to map recorded November 24, 1880 in Book A, Page 63 of Maps, in the office of the County of Recorder of said County. EXCEPTING there from that portion of Lot 38 Tying within that certain 50 foot wide strip of land conveyed to the County of San Luis Obispo, (for road purposes} in that certain deed executed•by Edgar Bell to the County of San Luis Obispo, recorded in Book 88, Page 387 of Deeds. Parcel 2 Those portions of Lots 17 and 18 of the subdivision of the Ranchos Corral de Piedra, Pismo and Bolsa de Chemisal, In the City of Arroyo Grande, in the County of San Luis Obispo, State of California, as laid down and designated upon a map entitled "Map of the Resubdivision of a part of the Ranchos Corral de Piedra, Pismo and Bolsa de Chemisal, San Luis Obispo County, California, the property of E. W. Steele Esq., surveyed by R.R. Harris November, 1885 ", according to map recorded November 24, 1880 in Book A, Page 63 of Maps, in the office of the County of Recorder of said County, described as follows: Beginning at Stake S 62 at the most southerly corner of said Lot 18; thence North 57' 30' East along the Northwesterly line of Myrtle Street, 655.6 feet; thence North 9' 0' West to the center of the channel of Arroyo Grande Creek; thence westerly along the center of the channel of said creek to the East line of Stanley Avenue; thence South 9°0' East along the East line of Stanley Avenue 130 feet, more or less, to the Point of Beginning. EXHIBIT "I -2" A temporary drainage easement over portions of Lot 18, Lot 37 and Lot 38 of the Map of parts of the Ranchos Corral de Piedra, Pismo & Bolsa de Chemisal as shown on the Map filed in Book A of Maps, at page 63, In the San Luis Obispo County Recorders Office, in the City of Arroyo Grande, County of San Luis Obispo, State of California, for the purpose of constructing, installing, operating, inspecting, repairing, maintaining, replacing, improving and removing surface drainage structures and appurtenances thereto and for egress and ingress to carry out such purposes, the easement is described In Parcel 1, Parcel 2 and Parcel 3 as follows: Parcel 1 A 30 foot wide strip, the centerline described as follows: Commencing at a 34" rebar in the centerline of Cherry Avenue as shown on the Record of Survey filed in Book 41 of Licensed Surveys at page 36 in said County Recorders Office being the southwest lot corner of said Lot 38 thence along the southerly line of said Lot 38 north 56° 56' 14" east 40.00 feet to the easterly line of Branch Mill Road as shown on said survey being the True Point of Beginning; thence leaving said southerly line north 3° 04' 00" east 180.91 feet to a point on the east line of said Lot 38, being 146.44 feet northerly of the southeast corner of said lot 38. The southerly and northerly termini of the sidelines of said easement are to be lengthened or shortened to terminate along the right of way of Branch Mill Road, the southerly line of lot 38 and the easterly line of lot 38 respectively. Parcel 2 The westerly 30 feet of Lot 37 except for the southerly 120.78 feet of said Lot 37. Parcel 3 That portion of said Lot 18 described as follows: Beginning at Corner S 62 as shown on said map at the northeasterly intersection of Myrtle Street and Stanley Avenue; thence along the southerly line of said Lot 18, being the northerly line of said Myrtle Street north 56' 56' 30" east 70.00 feet; thence north 50° 51' 17" west 95.94 feet to a point on the westerly line of Lot 18, being the easterly line of said Stanley Avenue, that bears north 09° 03' 25" west 100.00 feet from said Corner 5 62; thence along said easterly line of Stanley Avenue south 09° 03' 25" east 100.00 feet to the Point of Beginning. The City of Arroyo Grande shall have the right to install any and all appliances or devices necessary for the proper repair, maintenance, operation, replacement, and improvement of said surface and subsurface drainage, and the right to clear the easements and keep the same free of brush, tree or root growth and any other obstruction as may be necessary for the installation, construction, repair, maintenance, operation, replacement and improvement of said drainage structures. Except for the City's drainage structures, appliances, devices and other related appurtenances, no buildings, structures or other improvements shall be located within the easements. Parcels 1, 2, and 3 are shown on attached Exhibit "1 -3" EXHIBIT a7 .3n • • "3 • S°„ I Pored 3, Temporary R Drainage Easement •L ea o 3097 Sq Ft t y o 4 4 v i...Ot 1a es Asir A SteeWu ResUb&g\siofl — Is= 70.03 • — — — — *Ale St. Fri t" P LS aa7s Lot 1 [� C — _y4- 1 Lot 2 E., Le _ Lot 3 = _ z ' . Lot 4 ] .. • tot 5 = Drainage Easwn at 14.312 fgJL * Lot as - _ Lai. 37 Let 3S AIMS / b3 A/11D / sz AIMBls3 `r r. • 409 Pwrsa 1 30' fade Tewpumr = . Lot 2 3. Emm,[ age a n 5.201 salt t • Lei 7 - - - S • s - 1 Lit s Fd tabor 40' = . Fd 1' • _. _._7.s East cherry Ave. - 6 This Paint of ssgbnbpl Pmsd 1 1 1 _ Id ee na IL Wallace &Asscd as `, . Chi&n#5>ca Surveying eying• Flawing `\'. \ 4116 ss. woad St e5 Son Lob Dblepc. Do te03)544 --412ff FAX 644-4204- END OF DOCUMENT