HomeMy WebLinkAbout2010-060223d
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Arroyo Grande
City Clerk
214 E. Branch Street
Arroyo Grande, CA 93420
JULIE RODEWALD . Ne .
San Luis Obispo County—Clerk/Recorder 11/2ai2o10
Hecordatl al Ihe request of q pM
Public
�oca: 2010060223
III I IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII I III
Titles: 1 Pages: 14
Fees 0.00
iaxes 0.00
om.� o.00
PAID $0.00
GRANT OF DRAINAGE EASEMENT AND
AGREEMENT AFFECTING REAL PROPERTY
This Grant of Drainage Easement and Agreement Affecting Real Property (hereinafter
referred to as "AgreemenY') is made this °�T�' day of IJOVEM(iER , 2010 (the
"Effective Date"), by and between the City of Arroyo Grande ("City"), a municipal
corporation organized under the laws of the State of California and the Gordon F. Dixson
Trust ("Dixson"), an irrevocable trust.
RECITALS
WHEREAS, Dixson is the owner of certain real property located at 769 Branch Mill Road,
Arroyo Grande, California, and more particularly described in Exhibit "A" attached hereto
and incorporated herein by this reference (the "Dixson Property"); and
WHEREAS, on March 23, 1998, City and Dixson entered into a Grant of Temporary
Easement Agreement ("Temporary Easement AgreemenY') in order to allow City to install,
operate and maintain drainage improvements on a portion of the Dixson Property as more
particularly described in Exhibit "B" attached hereto and incorporated herein by this
reference (the "Temporary EasemenY'); and
WHEREAS, the Temporary Easement Agreement has been amended by the parties
several times; and
WHEREAS, the Dixson Property is encumbered by an Agricultural Conservation
Easement ("Agricultural Easement") dated August 24, 2001 in favor of the American
Farmland Trust and the Coastal San Luis Resource Conservation District, which
Agricultural Easement acknowledges the existence of the Temporary Drainage Easement
and contemplates and permits this grant of a permanent drainage easement on the Dixson
Property; and
WHEREAS, by this Agreement, the parties desire to terminate the Temporary Easement
and all amendments thereto, and set forth the terms and conditions under which Dixson
shall grant to City a permanent drainage easement on the Dixson Property.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, City and Dixson hereby agree as follows:
1. Termination of Temporarv Easement. The Temporary Easement Agreement and all
amendments thereto are hereby terminated in full twenty (20) days after the
Effective Date of this Agreement. Pursuant to paragraph 3 of the Temporary
Easement Agreement, City shall, to the fullest extent possible, restore the
Temporary Easement area to its original condition.
2. Grant of Easement. Dixson hereby grants to City and City hereby accepts, an
easement over, on, under, across and above a portion of the Dixson Property as
more particularly described in Exhibit "C" ("EasemenY') in order for City to install,
operate, maintain and repair certain stone culvert drainage facilities ("drainage
facilities") within the Easement pursuant to the terms and conditions set forth herein.
3. Use of the Easement. City shall have the right to:
a. construct, improve, install, operate, maintain and repair drainage facilities
and related improvements within the Easement; and
b. construct, improve, install, operate, maintain and repair any and all facilities
and equipment necessary for the proper repair, maintenance, operation,
replacement and improvement of the drainage facilities within the Easement;
and
c. clear the Easement and keep the same free of brush, tree or root growth and
any other obstruction as may be necessary for the construction,
improvement, installation, operation, maintenance and repair of any drainage
facilities; and
d. reasonable ingress and egress to the drainage facilities and improvements
within the Easement.
4. Character of Easement. The Easement shall be exclusive and in gross for the
benefit of City and shall remain in full force and effect in perpetuity unless
terminated by City in writing or by operation of law. Should City ever formally
abandon and terminate the Easement granted herein, it shall, to the fullest extent
possible, restore the Easement area to its original condition.
5. Access and Use of the Easement bv Dixson.
a. Dixson, and its successors, contractors, agents, guests and invitees shall
have the right to access and use the Easement area in order to access the
Dixson Property and to use the Easement for any reasonabie farming
purpose operation so long as such use does not interfere with, or cause
damage to, City's use of the Easement and City's installation, operation and
maintenance of the drainage facilities and improvements located therein.
b. Dixson shall have the right to erect, maintain or replace, at Dixson's sole and
absolute expense, a post and wire fence within the Easement. Dixson agrees
and understands that removal of such post and wire fence may be necessary
during installation, maintenance or repair of the drainage facilities and agrees
to timely remove and pay for all costs and expenses associated with such
removal, subject to prior written notice from City.
6. Maintenance of the Easement. Except as otherwise provided herein, City shall
maintain the Easement at its sole cost and expense.
7. Covenants Run With the Land. All of the provisions, agreements, rights, powers,
covenants and obligations contained in this Agreement shali be binding upon and
shall inure to the benefit of the parties hereto, their respective heirs, successors,
assigns, devisees, administrators, representatives, lessees, whether by operation of
law or in any manner whatsoever unless and until terminated. All of the provisions
of this Agreement shall be covenants running with the land as to the Properties
pursuant to applicable law.
8. Indemni .
a. City agrees to indemnify, defend and hold Dixson and its respective trustees,
beneficiaries and successors in interest harmless from and against any and
all claims, expenses, liabilities, losses, damages, costs (including attorneys'
fees) incurred in connection with, or arising from, or due to, or as a result of
the death, accident, injury, loss or damage (however caused) to any person,
or the loss of or damage to the Dixson Property by any person (collectively,
"Claims") relating to or arising from the use of the Easement by the City or its
employees, officials, invitees, contractors, guests or agents.
b. Dixson agrees to indemnify, defend and hold City and its employees,
officials, invitees, contractors, guests or agents harmless from and against
any and all claims, expenses, liabilities, losses, damages, costs (including
attorneys' fees) incurred in connection with, or arising from, or due to, or as a
result of any Claims relating to or arising from the use of the Easement by
Dixson or its trustees, beneficiaries, contractors, employees, invitees, guests
or agents.
9. Amendments. Amendments to this Agreement shall be in writing and shall be made
only with the mutual prior written approval of the parties to this Agreement.
10. Entire Aqreement This Agreement constitutes the entire agreement and
understanding of the Parties hereto and contains all representations between the
parties with respect to the subject matter hereof. Each party has had the
opportunity to consult independent counsel of its own choosing. No party in
executing this Agreement has relied upon any inducements, promises or
representations made by any other party or any representative of any other party
except as set forth in this Agreement. This Agreement can only be modified by a
writing signed by all parties to this Agreement.
11.Severabilitv. If any term or provision of this Agreement is determined to be illegal,
unenforceable, or invalid in whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this
Agreement, and such provision shall not affect the legality, enforceability, or validity
of the remainder of this Agreement. If any provision or part thereof of this
Agreement is stricken in accordance with the provisions of this section, then such
stricken provision shall be replaced, to the extent possible, with a legal, enforceable,
and valid provision that is as similar in tenor to the stricken provision as is legally
possible.
12. Reqresentation on Authoritv of Parties/SiQnatories. Each of the parties represents
and warrants that he or she is duly authorized and has legal capacity to execute
and deliver this Agreement. Each party represents and warrants to the other that
the execution and delivery of the Agreement and the pertormance of such party's
obligations hereunder have been duly authorized and that the Agreement is a valid
and legal agreement binding on such party and enforceable in accordance with its
terms.
13. Attornevs' Fees. In the event any controversy, claim or dispute arises relating to this
Agreement, the prevailing party in such action shall be entitled to recover from the
losing party, reasonable attorney's fees, costs, and expenses in addition to all other
appropriate relief. "Prevailing party" shall include, without limitation, a party who
brings an action after the other's breach or default and such action is dismissed
upon the other party's payment of the sum allegedly due or performance of the
covenant allegedly breached or the non-defaulting party obtains substantially the
relief sought by it in the action.
14. Consent to Jurisdiction and Forum Selection. The parties hereto agree that all
actions or proceedings arising in connection with this Agreement shall be tried and
litigated exclusively in the Superior Court located in the County of San Luis Obispo,
State of California.
15. General Interoretation. The terms of this Agreement have been negotiated by the
parties hereto and the language used in this Agreement shall be deemed to be the
language chosen by the parties to express their mutual intent. This Agreement shall
be construed without regard to any presumption or rule requiring construction
against the party causing such instrument or any portion thereof to be drafted, or in
favor of the party receiving a particular benefit under the Agreement. No rule of
strict construction will be applied against any party.
16. 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.
Notices shall be addressed as appears below to 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: Attn: City Clerk Dixson:
City of Arroyo Grande
214 E. Branch Street
Arroyo Grande, CA 93420
W ith
Copy to: City Attorney
Carmel & Naccasha LLP
P.O. Box 15729
San Luis Obispo, CA With
93406 Copy to:
Sara L. Dickens, Co-Trustee
3638 Blair Way
Torrance, CA 9050
Marianna McClanahan, Co-
Trustee
617 W. Malvern
Fullerton, CA 92832
Coastal San Luis Resource
Conservation District
645 Main Street, Suite F
Morro Bay, CA 93442
17.Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which shall constitute one and
the same agreement.
18. No 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 of
any other provision.
IN WITNESS WHEREOF, this Agneement shail be deemed made as of the date first set
forth above.
City of M+oyo Grande
By: o-, � e[�''�
Torry•Fe , Mayor
..,,„ ..
'p E G..�� '
'C `� " '<<
4J`,,nS"..� ."'�}I�`�i : . _ ' /
Gor+don F. Dixson Trust
/ �
i �._ � .<. ���.�.
� - . � --
Date: !/— 9—/U
� �; : C a�t1�7�.. By.
' y . r Ke}ly f4n6 , City lerk Marianna McClanahan, Co-Trustee
, : ti Date:
.., , -
.''°��.. .
/�ip�ved 9s.to forrn:
Tim y J. ei, City Attomey
State of Catifomia
County of _� os {�q�le S
On November R. 20,0 �o� � , �Y1V) M WO►'It�/ . Notary Public, personalty
appeared Sa rq L iD i ckeYt s ,�,r,o
proved to me on the basis of satisfactory evidence to be the person(� whose name(�
isl�ra subscribed to U�e within instrument and adcnowledged to me that-he/she�
executed the same irri�is/her/their authorized capacities and that f�is/hedtlreir signature(�
on the inshumerrt tt►e person(�) or the entity upon behalf of which the person(�) acted,
executed the instrument.
I certify under PENAL7Y OF PERJURY under the laws of the State of Califomia the
foregoing paragraph is true and correct.
WITNESS my hand and afficial seal.
Signature �-- �Y►�l . �� (SEAL)
State of Califomia
CouMy of
� AM! M. WORLEY
� CoarNtsbn � 1l1.1751
Not�ry PuWk - CaIlfoMa
Lm MqNn CarNy
Comm. a M� 8,201J
On , 2010 before me, , Notary Public, peisonally
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 adcnowledged to me that he/she/they
executed the same in hisfier/their authorized capacities and that his/hedtheir signature(s)
on the instrumerrt the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
I cefify under PENALTY OF PERJURY under the laws of the State of Califomia the
for+egoing paragraph is true and cortect.
WITNESS my hand and official seal.
Signature (SEAL)
IN WITNESS WHEREOF, this Agreement shall be deemed made as of the date first set
forth above.
City of Arroyo Grande
�
Tony Ferrara, Mayor
Attest:
Keily Wetmore, City Clerk
Approved as to form:
Gordon F. Dixson Trust
�
Sara L. Dickens. Co-Trustee
Date:
BY: �4/t.�-4,n.n.ct)�
Marianna McClanahan, Co-Trustee � ��ticv�
Date:
Timothy J. Carmel, City Attorney
State of California
County of
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.
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.
Signature
(SEAL)
State of California
County of � (�`� C �
On N �V . q , 2010 before
appeared 1�-A i�112� �+� N+� �t
NI�C LDPL� , Notary Public, personally
-H Ft who
proved to me on the basis of satisfactory evidence to be the person(s)^whose name(�
is/�subscribed to the wi in instrument and acknowledged to e that he/
executed the same in r/ authorized capacities and that ' er ' signature(�
on the instrument the person(.e�or the entity upon behalf of which e person($j 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 m hand and o�ci seal.
Signature (SEAL)
CONIME LOPE2
ConuNabn s /801681
� nocey wwm - canrorma �
oruip� coumr
Conxn. ra Jun 15 2012
Consent of Coastal San Luis Resource Conservation District
The forgoing Grant of Drainage Easement and Agreement Affecting Real Property is
consistent with the Agricultural Conservation Easement dated August 24, 2001 in favor of
the American Farmland Trust and the Coastal San Luis Resource Conservation District
("DistricY') encumbering the Dixson Property and the District does hereby consent to its
recordation.
�
/ �CcX V YL�%lJ
, / Niel Havlik, President
v
State of California
Counryof-S�in ��� D1����
On l�lo� l 2010 before me, C��ictdo`� �rcu�s , Notary Public, personally
appeared �r I�{�, v I rY� who
proved to me on the basis of satisfactory evidence to be the persort{s� whose name{s�
�'are subscribed to the within instrument and acknowledged to me that�/sf�eH#�e}�
executed the same in �9f /�eir authorized capacities and that�5/herftkeir signature(sj
on the instrument the person(sj 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 the
foregoinq paraqraph is true and correct.
WITNESS my hand and official seal.
Signature C ��SEAL)
� , „
`Y `
. ,
� \' ^� y
� _ _..�: "
Exhibit "A"
LEGAL DESCRIPTION FOR PERMANENT DRAINAGE EASEMENT
0lCKENS and McCLANAHAN
APN: 007-711-003
File No.: 232-5754 July 20, 2010
A portion of Lot 90 of the Map of parts of the Ranchos Corral de Piedra, Pismo & Bolsa
de Chamisal, in the City of AROyo Grande, Counry of San Luis Obispo, State of
Califomia, as shown on the map filed in Book A, Page 65 of Maps in the County
Recorder's Office of said County, said portion being more particularly described as
follows:
Beginning at an angle point in the northerly right of way line of Branch Mill Road, said
point being at the southeasterly terminus of course labeled "S 31 °32'34" E 628.66' M"
as shown on the Record of Survey map filed in Book 41, Page 36 of Licensed Surveys
in said County Recorders Office;
Thence along said right of way line north 31 °32'34" west 99.98 feet;
Thence leaving said right of way line south 57°28'52" east 105.78 feet;
Thence south 00°52'44" east 27.79 feet to a point in said right of way line;
Thence along said right of way line south 89°07'16" west 37.30 feet to the Point of
Beginning.
Containing 2,831 square feet, more or less.
The above described parcel of land is graphically shown on Exhibit "B" attached hereto
and made a part hereof.
END DESCRIPTION
G� a. ;��
Julv 20. 2010
Joseph T. Morris, P.L.S. 6192 Date
License Expires 3/31/12
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No. 6192
* Exp. 3131/12 :
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LEGEND
POB -POINT OF BEGINNING
� PERMANENTDRAINAGE
EASEMENTAREA2,831 SQ. FT. +/-
SCALE
0 , 50 100 200
1 INCH = 100 FEET
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POB BRANCH MILL ROAD "'
EXHIBIT "C" JOB NO.: 232-5754
e,sowa«,ca,nr PORTION OF LOT 90 OF A MB 67 DRAWING:LEGAL
s"""'"�°�'s"°.`""°° CITY OF ARROYO GRANDE DR,4WN BY: MM
T 805516-1011
F��..�. COUNTY OF SAN LUIS OBISPO, CA DATE:7/20/2010
.,.,..-..�a� , ,.� .