CC 2014-02-11_08.d. Easement Agreement with NKT DevelopmentMEMORANDUM
TO: CITY COUNCIL
FROM: TERESA MCCLISH, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: CONSIDERATION OF ACCEPTANCE OF AN EASEMENT
AGREEMENT WITH NKT DEVELOPMENT, LLC
DATE: FEBRUARY 11, 2014
RECOMMENDATION:
It is recommended the City Council approve an Easement Agreement between the City
of Arroyo Grande and NKT Development, LLC approving a public access easement for
a pedestrian access path and authorize the City Manager to execute the Agreement.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
There are no direct City costs or staff resources related to the proposed project.
BACKGROUND:
On July 17, 2012, the City Planning Commission conditionally approved Lot Merger 12-
001, Variance 12-002 and Conditional Use Permit No. 12-004 authorizing the
development of a phased mixed-use project consisting of a 9, 754 square foot market
(Phase I) and future residential development of approximately 0.92 acres (Phase II). As
part of the conditions of approval for the project, the developer was required to grant to
the City a pedestrian path access easement within the property. The approved Phase I .
improvement plans included a fixed location for -the pedestrian path which was
addressed through an Irrevocable and Perpetual Offer to Dedicate. There are no
improvement plans for Phase II at this time, so the project developer, NKT
Development, LLC ("NKT''), and City staff agreed to utilize a "floating" easement until a
precise location for the path within Phase II has been established.
ANALYSIS OF ISSUES:
The proposed Easement Agreement includes a "floating" pedestrian path access
easement encumbering the entire Phase II area of the property. The floating easement
is intended to serve as a place holder mechanism. Once improvement plans for Phase
II are approved by the City, the location of the pedestrian path easement for that
portion of the property will be fixed by a subsequent instrument. The proposed
Easement Agreement has been executed by NKT.
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Item 8.d. - Page 1
CITY COUNCIL
CONSIDERATION OF ACCEPTANCE OF AN EASEMENT AGREEMENT WITH NKT
DEVELOPMENT, LLC
FEBRUARY 11, 2014
PAGE2
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
1. Approve staffs recommendations;
2. Do not approve staffs recommendations; or
3. Provide staff direction.
ADVANTAGES:
Approval of the Easement Agreement will satisfy the project conditions of approval and
. allow the project to move forward.
DISADVANTAGES:
No disadvantages have been identified with the recommended course of action.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in front of City Hall on Thursday, February 6, 2014 and on the
City's website on Friday, February 7, 2014.
Item 8.d. - Page 2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Arroyo Grande
City Clerk
300 East Branch Street
Arroyo Grande, CA 93421
EASEMENT AGREEMENT
This Easement Agreement ("Agreement") is made and entered into by and between the
CITY OF ARROYO GRANDE, a municipal corporation of the State of California
(hereinafter referred to as "City") and NKT DEVELOPMENT, LLC, a California limited
liability company (hereinafter referred to as "NKT ").
RECITALS
WHEREAS, NKT is the owner of certain real property located in the City of Arroyo
Grande and more particularfy described in Exhibit "A" attached hereto and incorporated
herein by this reference (the "Property");
WHEREAS, on July 17, 2012, the City Planning Commission conditionally approved Lot
Merger 12-001, Variance 12-002 and Conditional Use Permit 12-004 authorizing the
development of a phased mixed-use project on the Property consisting of a 9,754
square foot neighborhood market ("Phase I") and future residential development
("Phase II") of 0.92 acres (the "Projecr);
WHEREAS, Condition of Approval No. 11 (the "Condition") for the Project requires that
a public access easement be granted to the City for a pedestrian access trail across the
residential portion of the project (Phase II) in a form acceptable to the Director of
Community Development; and
WHEREAS, by this Agreement, the parties wish to satisfy the Condition by establishing
a floating pedestrian access easement over a portion of the Property until a fixed
location for such easement is deterrnined.
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Item 8.d. - Page 3
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated herein by
this reference.
2. Floating Easement: NKT does hereby grant to City, and City hereby accepts from
NKT, a floating pedestrian access easement (the "Easement") approximately
eight (8) feet in width over, upon and across that portion of the Property depicted
in Exhibit "B" attached hereto and incorporated herein by this reference.
3. Use of the Easement: City shall have no present right to use the Easement.
City's right to use the Easement shall be subject to the recordation of a
subsequent instrument fixing the location of the Easement pursuant to Section 4
below.
4. Location of Easement: The parties acknowledge and agree that the precise
location of the Easement is currently undetermined but shall be fixed to a
permanent location through recordation of a subsequent instrument, prior to the
issuance of a building permit for the proposed Phase II, residential component of
the Project.
5. Easement Improvements: The parties further acknowledge and agree that NKT
shall construct all improvements within the Easement as required by the Project
approvals, or as may be required pursuant to additional discretionary review, with
the understanding that any subsequent instrument fixing the location of the
Easement shall give City the right to access, construct, install, improve, maintain,
operate, and repair any such improvements as City determines necessary or
appropriate.
6. Type of Easement: The Easement described above shall be non-exclusive and in
gross.
7. Successors and Assigns. All of the provisions, agreements, rights, covenants
and obligations in this Agreement shall be binding upon and shall burden and
inure to the benefit of the parties hereto, their respective heirs, successors and
assigns.
8. Indemnification. NKT agrees to indemnify and defend City, its officials,
employees, agents, representatives, heirs, successors and assigns, against any
and all claims, actions, or demands, costs or expense, including reasonable
attorney's fees, arising out of or in any way connected with NKT's, its agents,
representatives, heirs, successors, assigns or invitees use of the Easement,
excluding therefrom claims resulting from the sole active negligence or willful
misconduct of City.
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Item 8.d. - Page 4
9. Attorney's Fees. If any legal action or proceeding arising out of or relating to this
Agreement is brought by either party to this Agreement, the prevailing party shall
be entitled to receive from the other party, in addition to any other relief that may
be granted, the reasonable attorney's fees, costs and expenses incurred in the
action or proceeding by the prevailing party.
10. Governing Law and Venue. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of California. The
parties hereto agree that all actions or proceedings in connection with this
Agreement shall be tried and litigated in the Superior Court located in the County
of San Luis Obispo, State of California.
11. Severability. 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 provision or part thereof shall be stricken from this
Agreement, and such provision shall not affect the legality, enforceability, or
validity of the remainder of the 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. 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.
[Signatures on reverse side]
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Item 8.d. - Page 5
IN WITNESS WHEREOF, this Agreement is hereby executed by said owner and City on
the day and year first written above.
CITY OF ARROYO GRANDE:
By: ___________ _
Steve Adams, City Manager
ATTEST:
By: ___________ _
Kelly Wetmore,
Director of Administrative Services
APPROVED AS TO FORM:
By: ___________ _
Timothy J. Carmel, City Attorney
NKT DEVELOPMENT, LLC
By.~
Nicholas Tompkins, Manager
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Item 8.d. - Page 6
State of California
County of fu1 l J J(s 00 i8f,...
)
)
On J4&m1Jer 5i2 2013, before me, f](ciatle A1h1litias
Notary Public, personally appeared Nicholas Tompkins.ho proved to me on the basis
of satisfactory evidence to be the person{sl whosi:-Bame(.s)@c:ve subscribed to the ~).lJ:iin instrument and acknowledged to me that ~st:reltl)eY executed the same in
®fh,e"r/theif authorized capacity(jeS), and that by ~t)efltheir signature(sf on the
instrument the person(sf, or the entity on behalf of which the person(.s} acted, executed
the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
0
. ' . ~
g ~[Sea~
. '
4
@ MICHELE A. TOMPKINS
Commission# 1931785
~ Notary Public • California i
z San Luis Obispo County :!: J. 4 ~ .. 4 9MJ sogir:]"fxgir:s 0M!Y.5}~1:l
Item 8.d. - Page 7
Parcel 1:
EXHIBIT "A"
Legal Descriptions
of
Phase II -Residential Properties
9/20/13
Lot 10 in Block 39 of Beckett's Crown Hill Addition to the Town of Arroyo Grande, in the
City of Arroyo Grande, Comity of San Luis Obispo, State of California, according to map
recorded Jmie 19, 1905 in Book A, Page 57 of Maps, in the office of the Comity Recorder of
said Comity.
Parcel 2:
Lot 11inBlock39 of Beckett's Crown Hill Addition to the Town of Arroyo Grande, in the
City of Arroyo Grande, Comity of San Luis Obispo, State of California, according to map
recorded Jmie 19, 1905 in Book A, Page 57 of Maps, in the office of the Comity Recorder of
said Comity.
Parcel 3:
Lots 12, 13, 14 and 15 in Block 39 of Beckett's Crown Hill Addition to the Town of Arroyo
Grande, in the City of Arroyo Grande, Comity of San Luis Obispo, State of California,
according to map recorded Jmie 19, 1905 in Book A, Page 57 of Maps, in the office of the
Comity Recorder of said Comity.
Parcel 4:
Beginning at the most northerly comer of Lot 15 in Block 39 Beckett's Crown Hill Addition
to the Town of Arroyo Grande, in the City of Arroyo Grande, County of San Luis Obispo,
State of California, according to map recorded Jmie 19, 1905 in Book A, Page 57 of Maps, in
the office of the Comity Recorder of said Comity; thence from said point of beginning and
along the northeasterly line of said Block 39, South 29° East 150 feet to the most easterly
comer of Lot 10 of said Block 39; thence North 61° East, 30 feet to a point in the center of
tally Ho Street; thence North 29° West and along the center of tally ho Street, a distance of
150 feet to a point on the southeasterly line of Le Point Street; thence south 61 ° West and
along the Southeasterly line of Le Point Street, 30 feet to the point of beginning.
The above referenced description is described in that certain Grant Deed recorded March 13,
1969 in Book 1510, Page 343 of Official Records, in the office of the County Recorder of said
Comity.
Parcel 5:
Lots 20, 21, 22, 23, 24, 25 and the easterly 30 feet of the northerly 150 feet of Tally Ho Street
in Block 38 of Beckett's Crown Hill Addition to the Town of Arroyo Grande, in the City of
Arroyo Grande, County of San Luis Obispo, State of California, according to map recorded
Jmie 19, 1905 in Book A, Page 57 of Maps, in the office of the County Recorder of said
Comity.
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\\Thaserv\vault\JOBS\11.00577\Legal Dcscriptions\Floating Trail\Existing parcels -rcsidentialdocx
Item 8.d. - Page 8
EXHIBIT "B"
FLOATING PEDESTRIAN ACCESS EASEMENT
LE POINT STREET
LOT 15 LOT 20
--!---
:-.... I LOT 21
-------
FlOA TING PEDESTRIAN
ACCESS EASEMENT
~
--\'\r 1---~-
~ 1 ~ 1 LOT 22 LOT 13
-~-
0
0 \, LOT 12
~ s~-1 o~-
Jt. f 0 \, LOT 23 ~ ~-!----
LOT 11 Jt. :..... ZS I ::j ~ ~ ...._
LOT 24
-1---
LOT 10 LOT 25
I LOT 9
~-----L-UNNAMED STREET
fVAC4TED 257 O.R. 440) I LOT 8 I
r-----t-
1_ -LOT..:___ _I
-1 I
GRAPHIC SCALE
0 20 40
1-1-1
( IN FEE'l' )
1 inch = 40 ft.
,-----
1
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