PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.H
SUBJECT/TITLE:
FINAL MAP AND SUBDIVISION IMPROVEMENT AGREEMENT FOR PARCEL MAP PB21-0032, 478 HINDS AVENUE
RECOMMENDATION:
Adopt a Resolution approving the Final Map and Subdivision Improvement Agreement for Parcel Map PB21-0032, 478 Hinds Avenue.
BACKGROUND:
Tentative Parcel Map PB21-0032 was reviewed and approved by the Planning Commission on August 10, 2021. The owner is Pismo Homes, LLC.
The project is located at 478 Hinds Avenue and includes the demolition of an existing residence, and the formation of a 3-lot residential subdivision consisting of three detached single-family residences. Public improvements will consist of placement of new sidewalk and frontage improvements along Hinds Avenue, as well as a new sidewalk that runs parallel to Highway 101. The developer will construct approximately half the span of the sidewalk that will connect Hinds Avenue to Stimson Avenue along the Highway 101 fence line. This sidewalk will include a large gutter plan to convey the development’s runoff to Stimson Avenue. The City has budgeted a future project to construct the remaining half of the sidewalk to Hinds Avenue.
Conclusion and Recommendation
The City’s Planning Division, Building Division, Engineering Division, and Fire Department have reviewed the public and private improvement plans and the Final Map, and are recommending approval. The City Engineer and the Community Development Director have determined that the owner has complied with the Conditions of Approval for Tentative Parcel Map PB21-0032, including the payment of all subdivision fees and supplying subdivision improvement bonds. A copy of the Maintenance Agreement and Declaration Establishing Architectural Controls for Future Remodels (Attachments 3 and 4, respectively) for the project, which will be recorded concurrently with the map but do not require Council approval, have been reviewed and accepted by the Engineering and Planning Divisions.
Staff recommends adopting a Resolution (Attachment 1) approving the Final Map, and associated Subdivision Improvement Agreement (Attachment 2) and authorizing the execution and recording of the Map, the Subdivision Improvement Agreement and associated documents.
FISCAL IMPACT:
The City will be receiving additional infrastructure to maintain, additional Fire and Police protection will be necessary, and demands on existing infrastructure will be increased.
These issues were addressed during the environmental review of the subdivision, and
9.H-1Council Agenda 10-4-2022
mitigation measures, including payment of development fees, have been incorporated into the project.
ALTERNATIVES:
1. Find that the Final Parcel Map PB21-0032 is not in substantial conformance with the approved Tentative Parcel Map and deny the Resolution. Staff is unable to make this finding and therefore this alternative is not recommended.
ATTACHMENTS:
1. Resolution
2. Subdivision Improvement Agreement
3. Maintenance Agreement
4. Declaration Establishing Architectural Controls for Future Remodels
5. Vicinity Map and Site Plan
Prepared by: Meeting Date: October 4, 2022
Erin Olsen, Management Analyst
Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval:
9.H-2Council Agenda 10-4-2022
RESOLUTION NO. R-2022-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA APPROVING THE FINAL MAP AND SUBDIVISION IMPROVEMENT AGREEMENT FOR PARCEL MAP PB21-0032, 478 HINDS AVENUE
WHEREAS, Pismo Homes LLC, the Owner/Developer, has submitted a signed Subdivision Improvement Agreement with the City wherein the Owner/Developer will provide certain road, water, sewer, storm drain, public utility and other improvements; and WHEREAS, the Owner/Developer has submitted Final Parcel Map PB21-0032 for City Council approval; and
WHEREAS, the Owner/Developer is providing the City with performance security, labor and material security, maintenance, and monumentation security in the form of surety bonds approved by the City Attorney assuring completion of all subdivision improvements; and
WHEREAS, the Owner/Developer has been required to pay certain subdivision fees and the City Plan Check and Inspection Fee prior to City Council approval of the Final Map; and
WHEREAS, the following fees have been paid; and
SUBDIVISION FEES COST SUB TOTAL
Public Facilities Fee 3 units x $460 $1,380.00
Final Map Processing $5,632 $5,632.00
Recording Fees
Final Map + Reproduction (2 of Pages)
Maintenance Agreement + Reproduction (6 of
Pages)
CC&Rs + Reproduction (8 Pages)
Declaration Establishing Architectural Controls +
Reproduction (3 of Pages)
$135
Plan Check and Inspection $464,253.49 x .05 $23,212.67
Park Development
(Quimby Fees) $8,683 per Single Family x 3 units $26,049.00 TOTAL $56,408.67
TOTAL FEES PAID (see below) $20,614.89
Less $5,632.00, received 10/12/2021
Less $14,982.89 received 11/05/2021
Less $35,793.78 received 9/13/2022
TOTAL FEES DUE PRIOR TO COUNCIL ACCEPTANCE $0
Attachment 1
9.H-3Council Agenda 10-4-2022
SECURITY AGREEMENT
Based on the approved bonding estimate of $464,253.49 for the public improvements, the following security in the form of surety bonds conforming to the requirements of the Municipal Code and approved by the City Attorney are required:
100% Faithful Performance Security PIP $464,253.49
50% Material and Labor Payment Security PIPs: $232,126.75 10% Maintenance Bond for 1 year after acceptance: $46,425.35 WHEREAS, the Director of Public Works/City Engineer and the Community Development Director have reviewed the Final Map and the Improvement Plans and find them to be in substantial compliance with City Standards, the City of Pismo Beach Municipal Code, and Tentative Parcel Map PB21-0032.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby approves the Final Map and the Improvement Plans for Parcel Map PB21-0032, directs the Mayor to execute the Subdivision Improvement Agreement, and authorizes and directs the City Manager to sign and the City Clerk to attest, seal and deliver said Parcel Map to the office of the San Luis Obispo County Clerk-Recorder.
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 4th day of October 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
Attachment 1
9.H-4Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 1 of 9 478 Hinds, Parcel Map PB21-0032
CITY OF PISMO BEACH
SUBDIVISION IMPROVEMENT AGREEMENT
NAME AND LEGAL STATUS OF SUBDIVIDER:
Pismo Homes, LLC
PO Box 1649
Arroyo Grande, CA 93421
NAME OF SUBDIVISION/TRACT NUMBER (A Subdivision):
478 Hinds, Parcel Map PB21-0032, a 3 Lot Residential Subdivision COST OF IMPROVEMENTS (EST.): COST OF MONUMENTATION
$464,253.49 (Public Street, Utility, Landscaping & other Improvements) N/A TOTAL = $ 464,253.49
DATE OF AGREEMENT: October 4, 2022
DATE OF COMPLETION: Twenty Four (24) months from recordation of the Final Map This Subdivision Agreement (Agreement) is made and entered into by and between the City of Pismo Beach (CITY), a municipal corporation of the State of California and Pismo Homes, LLC (SUBDIVIDER).
RECITALS
WHEREAS, SUBDIVIDER has presented to CITY for approval and recordation, a final subdivision map of a proposed subdivision pursuant to provisions of the Subdivision Map Act of the State of California (Government Code 66410 et. seq.) and CITY’s ordinances (Pismo Beach Municipal Code, Title 16
16.12.010 et. seq.) and regulations relating to the filing, approval and recordation of subdivision maps (collectively referred to as the Subdivision Laws); and, WHEREAS, a tentative map of the Subdivision has been approved, subject to the Subdivision Laws and subject to the requirements and conditions contained in the Resolution of Approval on file in the Office of the City Clerk and hereby incorporated into this Agreement by reference and SUBDIVIDER now wishes to proceed with final map approval and recordation; and,
WHEREAS, the Subdivision Laws establish as a condition precedent to the approval of a final map that SUBDIVIDER must have complied with the Resolution of Approval and must have either (1) completed, in compliance with CITY standards, all of the Improvements and land development work (collectively referred to as Improvements) required by the Subdivision Laws and the Resolution of Approval, or (2) have entered into a secured agreement with CITY to complete the improvements and land development within a period of time specified by CITY; and
WHEREAS, complete improvement plans for the construction, installation and completion of the Improvements (Improvement Plans) have been prepared by SUBDIVIDER, approved by the City Engineer, and are on file with CITY and are hereby incorporated by reference into this Agreement; and Attachment 2
9.H-5Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 2 of 9 478 Hinds, Parcel Map PB21-0032
WHEREAS, in consideration of approval of a final map for the Subdivision by the City Council, SUBDIVIDER desires to enter into this Agreement, whereby SUBDIVIDER promises to install and complete, at SUBDIVIDER’s own expense, all the Improvements required by CITY in connection with the proposed Subdivision; and
WHEREAS, SUBDIVIDER recognizes that by approval of the final map for the Subdivision, CITY has conferred substantial rights upon SUBDIVIDER, including the right to sell, lease, or finance lots within the Subdivision, and has taken the final act necessary to subdivide the property within the Subdivision and, as a result, CITY will be damaged to the extent of the cost of installation of the Improvements if SUBDIVIDER should fail to perform its obligations under this Agreement, including, but not limited to, SUBDIVIDER’s obligation to complete construction of the Improvements by the time established in this Agreement; and
WHEREAS, CITY shall be entitled to all remedies available to it pursuant to this Agreement and law in the event of a default by SUBDIVIDER, and it is specifically recognized that the determination of whether a reversion to acreage or rescission of the Subdivision constitutes an adequate remedy for default by the SUBDIVIDER shall be within the sole discretion of CITY;
NOW THEREFORE, in consideration of the approval and recordation by the City Council of the final map of the Subdivision, and in recognition and acceptance of the above recitals, SUBDIVIDER and CITY agree as follows:
1. SUBDIVIDER OBLIGATIONS TO CONSTRUCT IMPROVEMENTS.
a. SUBDIVIDER shall:
1) Comply with all the requirements of the Resolution of Approval, and any amendments thereto, and with the provisions of the Subdivision Laws.
2) Complete, at SUBDIVIDER’s own expense, all the Improvements required on the Tentative Map and in the project approvals as identified above in conformance with CITY standards and the approved Improvement Plans.
3) Furnish the necessary materials for completion of the Improvements in conformity with the Improvement Plans, the Resolution of Approval, and CITY standards.
4) In all appropriate cases, acquire and dedicate, or pay the cost of acquisition by CITY, of all rights- of-way, easements and other interests in real property for construction or installation of the Improvements, free and clear of all liens and encumbrances, prior to commencement of work on the Improvements.
5) Complete construction of the Improvements within Twenty Four (24) months of the recordation of the Final Map, unless a time extension is granted by the CITY pursuant to section 15 of this Agreement.
6) Install all subdivision monuments required by law prior to the completion and acceptance of the Improvements by CITY, including re-installation of existing monuments that were removed, altered, or destroyed by SUBDIVIDER.
7) Ensure, at SUBDIVIDER’s expense, that all contractors obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices and pay all fees and taxes required by law.
Attachment 2
9.H-6Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 3 of 9 478 Hinds, Parcel Map PB21-0032
8) Until final acceptance of the work of improvement, give good and adequate warning to the public of each and every dangerous condition, which exists in the project, and take all reasonable actions to protect the public from such dangerous condition.
b. SUBDIVIDER agrees that CITY may impose necessary changes to the scope of the Improvements if CITY determines that such changes are necessary and incidental to the successful completion and function of the improvements or are required to meet CITYs standards.
c. SUBDIVIDER’s obligations with regard to acquisition by CITY of off-site rights-of-way, easements and other interests in real property shall be subject to a separate agreement between SUBDIVIDER and CITY. SUBDIVIDER shall also be responsible for obtaining any public or private drainage easements or authorization to accommodate the Subdivision.
2. SECURITY.
a. SUBDIVIDER shall at all times guarantee SUBDIVIDER’s performance of this Agreement by furnishing to CITY, and maintaining, good and sufficient security as required by the Subdivision Laws (see, Government Code section 66499 et seq.) on forms approved by CITY for the purposes and in the amounts as follows:
1) To assure faithful performance of this Agreement in an amount of 100% of the estimated cost of the improvements; and
2) To secure payment to any contractor, subcontractor, persons renting equipment, or furnishing labor, materials for the improvements required to be constructed or installed pursuant to this Agreement in the additional amount of 50% of the estimated cost of the improvements; and
3) To guarantee or warranty the work performed pursuant to this Agreement for a period of one year following acceptance by CITY against any defective work or labor performed or defective materials furnished in the additional amount of 10% of the estimated cost of the improvements; and
4) SUBDIVIDER shall also furnish to CITY good and sufficient security in the amount of 100% of the estimated cost of setting subdivision monuments.
b. The securities required by this Agreement shall be kept on file with the City Clerk. No security may be modified or replaced without written approval of CITY. If any security is replaced by another approved security, the replacement shall be filed with the City Clerk and, upon filing, shall be deemed to have been made a part of and incorporated into this Agreement. Upon filing of a replacement security with the City Clerk, the former security may be released.
c. Should the sureties on any of the bonds become insufficient, SUBDIVIDER agrees to renew the bond(s) with good, sufficient, and duly authorized sureties within ten (10) days after receiving notice that the sureties are insufficient.
3. RELEASE OF SECURITIES.
The securities required by this Agreement shall be released as follows:
a. Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and acceptance of the act or work.
b. Security given to secure payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, twelve months after the completion and acceptance of Attachment 2
9.H-7Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 4 of 9 478 Hinds, Parcel Map PB21-0032
the work or 35 days after filing a notice of completion as applicable, be reduced to an amount equal to the total claimed by all claimants for whom liens have been filed and of which notice has been given to the legislative body, plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured by the security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given.
c. No security given for the guarantee or warranty of work shall be released until the expiration of the warranty period and until any claims filed during the warranty period have been settled. As provided in Paragraph 12, the warranty period shall not commence until final acceptance of all the work and improvements by the City Council.
d. In the event of disputes or outstanding claims, CITY may retain from any security released an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorneys fees.
4. ALTERATIONS TO IMPROVEMENT PLANS.
a. SUBDIVIDER shall construct the improvements in accordance with CITY standards in effect at the time of adoption of the Resolution of Approval, unless otherwise approved by City in writing in advance. CITY reserves the right to modify the standards applicable to the Subdivision and this Agreement, when necessary to protect the public safety or welfare or comply with applicable State or Federal law or CITY ordinances. If SUBDIVIDER requests and is granted an extension of time for completion of the improvements, CITY may apply the standards in effect at the time of the extension.
b. Changes, alterations or additions to the improvement plans and specifications or to the improvements, not exceeding 10% of the original estimated cost of the improvement, shall not reduce the improvement security given for faithful performance of this Agreement. If such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, SUBDIVIDER shall provide improvement security for faithful performance as required by Section 2 of this Agreement for 100% of the total estimated cost of the improvement as changed, altered, or amended, minus any completed partial releases allowed by Section 3 of this Agreement.
5. INSPECTION AND COMPLETION.
SUBDIVIDER shall at all times maintain proper facilities and safe access by CITY inspectors for inspection of the improvements and to the shops wherein any work is in preparation. Upon completion of the work, SUBDIVIDER may request a final inspection by the City Engineer, or the City Engineers authorized representative. SUBDIVIDER shall bear all costs of inspection and certification.
6. DAMAGE TO PUBLIC PROPERTY.
SUBDIVIDER shall replace or have replaced, or repair or have repaired, as the case may be, all improvements, public utilities facilities and surveying or subdivision monuments which are destroyed or damaged as a result of any work under this Agreement. SUBDIVIDER shall bear the entire cost of replacement or repairs of any and all public or private utility property damaged or destroyed by reason of any work done under this Agreement. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer.
7. DEFAULT OF SUBDIVIDER.
a. Default of SUBDIVIDER shall include, but is not limited to, SUBDIVIDER’s failure to timely commence construction of under this Agreement; SUBDIVIDER’s failure to timely cure any defect in Attachment 2
9.H-8Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 5 of 9 478 Hinds, Parcel Map PB21-0032
the Improvements; SUBDIVIDER’s failure to perform substantial construction work for a period of twenty (20) calendar days after commencement of the work; failure to timely complete the Improvements to CITY standards; SUBDIVIDER’s insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which SUBDIVIDER fails to discharge within thirty (30) days; the commencement of a foreclosure action against the Subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or SUBDIVIDER’s failure to perform any other obligation under this Agreement.
b. CITY reserves to itself all remedies available to it at law or in equity for breach of SUBDIVIDER’s obligations under this Agreement. CITY shall have the right, subject to this section, to draw upon or utilize the appropriate security to mitigate CITYs damages in event of default by SUBDIVIDER. The right of CITY to unilaterally and without notice draw upon or utilize the security is additional to, and not in lieu of, any other remedy available to CITY. It is specifically recognized that the estimated costs and security amounts may not reflect the actual cost of construction or installation of the improvements and, therefore, CITYs damages for SUBDIVIDER’s default shall be measured by the cost of completing the required improvements. The sums provided by the improvement security may be used by CITY for the completion of the improvements in accordance with the improvement plans and specifications contained herein, but shall not be construed to limit CITYs damages.
c. In the event of SUBDIVIDER’s default under this Agreement, SUBDIVIDER authorizes CITY to perform such obligation twenty (20) days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER’s surety, and agrees to pay the entire cost of such performance by CITY. CITY may take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, at the expense of SUBDIVIDER and CITY may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to SUBDIVIDER as may be on site of the work and necessary for the performance of the work.
d. Failure of SUBDIVIDER to comply with the terms of this Agreement shall constitute consent to the filing by CITY of a notice of violation against all the lots in the Subdivision, to rescind the approval or otherwise revert the Subdivision to acreage. The remedy provided by this subsection is in addition to, and not in lieu of, other remedies available to CITY. SUBDIVIDER agrees that the choice of remedy or remedies for SUBDIVIDER’s breach shall be at the sole discretion of CITY.
e. In the event that SUBDIVIDER fails to perform any obligation hereunder, SUBDIVIDER agrees to pay all costs and expenses incurred by CITY in securing performance of such obligations, including costs of suit and reasonable attorneys fees.
f. The failure of CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of SUBDIVIDER.
8. WARRANTY.
SUBDIVIDER shall guarantee or warranty the work done pursuant to this Agreement against any defective work or labor done or defective materials furnished for a period of one (1) year after final acceptance of the Improvements by the City Council. If within the warranty period any work or improvement or part of any work or improvement done, furnished, installed, constructed or caused to be done, furnished, installed or constructed by SUBDIVIDER fails to fulfill any of the requirements of this Agreement or the improvement plans and specifications referred to herein, SUBDIVIDER shall without delay and without cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or improvement. SUBDIVIDER further acknowledges and understands within the one (1) year warranty period, SUBDIVIDER will bear the total responsibility for all repair and/or replacement of the improvements as installed, reserving to SUBDIVIDER the right of recourse or indemnity against any third party who causes damage to such improvements.
Attachment 2
9.H-9Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 6 of 9 478 Hinds, Parcel Map PB21-0032
Should SUBDIVIDER fail to act promptly in accordance with this requirement, SUBDIVIDER hereby authorizes CITY , at CITY’s option, to perform the work twenty days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER’s surety, and agrees to pay the cost of such work by CITY. Should CITY determine that an urgency requires repairs or replacements to be made before SUBDIVIDER can be notified, CITY may, in its sole discretion, make the necessary repairs or replacement or perform the necessary work and SUBDIVIDER shall pay to CITY the cost of such repairs.
9. SUBDIVIDER NOT AGENT OF CITY.
Neither SUBDIVIDER nor any of SUBDIVIDER’s agents or contractors are or shall be considered to be agents of CITY in connection with the performance of SUBDIVIDER’s obligations under this Agreement.
10. DAMAGE TO WORK.
Until such time as the Improvements are accepted by CITY, SUBDIVIDER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed and will be responsible for the care of, maintenance of, and any damage to such improvements. CITY shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of the cause, happening or occurrence to the Improvements specified in this Agreement prior to the acceptance of the Improvements. All such risks shall be the responsibility of, and are hereby assumed by, SUBDIVIDER.
11. OTHER AGREEMENTS.
Nothing contained in this Agreement shall preclude CITY from expending moneys pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other SUBDIVIDER’s for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of CITY ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such apportionment.
12. FINAL ACCEPTANCE OF WORK AND VESTING.
Acceptance of the work on the behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after final completion and inspection of all improvements. If the City Engineer determines that the work has been completed in accordance with this Agreement, then the City Engineer shall certify the completion of the improvements to the City Council. No improvements shall be finally accepted unless all aspects of the work have been inspected and determined to have been completed in accordance with the Improvement Plans and CITY standards.
The City Council shall act upon the Engineer’s recommendation within 30 days from the date the City Engineer certifies that the work has been finally completed. Such acceptance shall not constitute a waiver of defects by CITY. In no event shall CITY issue certificates of occupancy for structures within the Subdivision prior to final acceptance of the Improvements without express prior written approval by the City Engineer (prior approval is at the sole discretion of the City Engineer).
Upon acceptance of the work on behalf of CITY and recordation of the Notice of Completion, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY, unless designated otherwise.
13. INDEMNITY/HOLD HARMLESS.
CITY or any officer, employee, official, agent, or volunteer thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of SUBDIVIDER, its agents, employees, or subcontractors in the performance of this Agreement. SUBDIVIDER further agrees to Attachment 2
9.H-10Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 7 of 9 478 Hinds, Parcel Map PB21-0032
protect, indemnify, and hold harmless CITY, its officers, employees, officials, agents, or volunteers from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts, omissions or negligence (regardless of whether such negligence is active or passive) of SUBDIVIDER, its agents or employees in the performance of this Agreement, including all claims, demands, causes of action, liability, or loss because of, arising out of, in whole or in part, the design or construction of the improvements. This indemnification and hold harmless agreement shall extend to any injuries to persons and/or damage to property or taking of property resulting from the design or construction of said Subdivision, and the Improvements as provided herein, and in addition, without limitation, to property owners as a consequence of the diversion of waters from the design or construction of public drainage systems, streets and other Improvements. Acceptance by CITY of the Improvements shall not constitute an assumption by the CITY of any responsibility for any damage or taking. CITY shall not be responsible for the design or construction of the Subdivision or the Improvements pursuant to the approved Improvement Plans or map, regardless of any negligent action or inaction taken by CITY in approving the plans or map. After acceptance of the Improvements, SUBDIVIDER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, SUBDIVIDER shall not be responsible for routine maintenance unless provision is made otherwise. The provisions of this paragraph shall remain in full force and effect for ten (10) years following the acceptance by CITY of the Improvements. It is the intent of this section that SUBDIVIDER shall be responsible for all liability for design and construction of the Improvements installed or work done pursuant to this Agreement and that CITY shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing or inspecting any work or construction.
14. SALE OR DISPOSITION OF SUBDIVISION.
Sale or other disposition of this property will not relieve SUBDIVIDER from the obligations set forth herein. SUBDIVIDER agrees to notify CITY in writing at least 30 days in advance of any actual or pending sale or other disposition of the property. If SUBDIVIDER sells the property or any portion of the property within the Subdivision to any other person, SUBDIVIDER may request a transfer/novation of this Agreement and a substitution of security. Upon approval of the transfer/novation and substitution of securities SUBDIVIDER may request a release or reduction of the securities of the obligations for the work or improvement done by SUBDIVIDER. The decision of whether to grant a transfer/novation and substitution of securities shall be at CITY’s sole discretion.
15. TIME FOR COMMENCEMENT AND COMPLETION OF WORK;
EXTENSIONS; TIME OF THE ESSENCE.
a. All Improvements must be completed within twenty four (24) months of the recordation of the Final Map, unless otherwise provided in subsection (b) below.
b. The time for commencement of construction or completion of the Improvements may be extended in the event good cause exists as determined by the City Council upon recommendation of the City Engineer. A request for extension must be submitted in writing to the City Engineer at least 60 days prior to the requested extension date. The extension must be set out in writing and executed by the City Engineer. Any such extension may be granted without notice to SUBDIVIDER’s surety and shall not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. As a condition of extension, the City Engineer may require SUBDIVIDER to furnish new security in an increased amount guaranteeing performance of this Agreement as extended as necessary to compensate for any increase in construction costs as determined by the City Engineer.
c. Time is of the essence of this Agreement.
Attachment 2
9.H-11Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 8 of 9 478 Hinds, Parcel Map PB21-0032
16. NO VESTING OF RIGHTS.
Performance by SUBDIVIDER of this Agreement shall not be construed to vest SUBDIVIDER’s rights with respect to any change in any zoning or building law or ordinance.
17. MISCELLANEOUS PROVISIONS.
a. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by first class mail, postage prepaid and addressed as provided in this section. Notice shall be effective on the date it is delivered in person, or if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with CITY:
CITY: City Engineer
City of Pismo Beach
760 Mattie Road
Pismo Beach, CA 93449
SUBDIVIDER: Pismo Homes, LLC
PO Box 1649
Arroyo Grande, CA 93421
b. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties.
c. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provisions of this Agreement.
d. In the event that suit or arbitration is entered into arising out of performance of this Agreement or brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all litigation costs and reasonable attorneys fees.
e. The recitals to this Agreement are hereby incorporated into the terms of this Agreement.
f. This Agreement constitutes the entire Agreement of the parties with respect to the subject matter.
All prior or simultaneous agreements or understandings are replaced by this Agreement. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. In the case of CITY, the appropriate party shall be the City Engineer.
Attachment 2
9.H-12Council Agenda 10-4-2022
SUBDIVISION AGREEMENT Page 9 of 9 478 Hinds, Parcel Map PB21-0032
IN WITNESS WHEREOF, SUBDIVIDER and CITY, by and through its Mayor, have caused this Agreement to be executed.
DATE: ____________________ DATE: _____________________
SUBDIVIDER: CITY:
(Attach Notarization)
Pismo Homes, LLC BY:
Ed Waage, Mayor
BY: ATTEST:
Signature
Print Name
BY: BY:
Signature Erica Inderlied, City Clerk
Print Name
APPROVED AS TO FORM:
BY:
Dave Fleishman, City Attorney
Attachment 2
9.H-13Council Agenda 10-4-2022
- 1 of 7 -
Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
Recording Requested By and
When Recorded Mail To:
Pismo Homes, LLC
Post Office Box 1649
Arroyo Grande, CA 93421
With a Copy To:
The City of Pismo Beach
Community Development Department
760 Mattie Road
Pismo Beach, CA 93449
APN: 005-085-006
DECLARATION ESTABLISHING NON-EXCLUSIVE PRIVATE USE AND
MAINTENANCE AGREEMENT FOR COMMON DRIVEWAY, UNDERGROUND
PUBLIC UTILITIES, DRAINAGE STRUCTURES, AND GREEN WASTE FACILITY
THIS DECLARATION ESTABLISHING NON-EXCLUSIVE PRIVATE USE AND
MAINTENANCE AGREEMENT FOR COMMON DRIVEWAY, UNDERGROUND
PUBLIC UTILITIES, DRAINAGE STRUCTURES, AND GREEN WASTE FACILITY (“Agreement”) made on the date set forth below in this instrument by RONALD CHAPPELL (hereinafter “Declarant”), is made with reference to the following facts:
WHEREAS, Declarant is the owner of that certain real property in the City of Pismo Beach (hereinafter “City”), County of San Luis Obispo, State of California, described as Parcels 1 through 3, City of Pismo Beach Parcel Map PB21-0032 as shown on a map recorded in Book __, Pages __ through __ of Maps, in the office of the County Recorder of the County of San Luis Obispo, State of California (“Parcel”) (collectively “Parcels”); and
WHEREAS, each of the Parcels will utilize a portion of the common concrete driveway located on Parcels 1 through 3 for access to its individual Parcel as shown on attached Exhibit A (“Driveway”); and
WHEREAS, each of the Parcels will utilize a portion of Parcels 1 through 3 for providing underground public utilities, including but not limited to water, gas, electric, and cable service, to its individual Parcel as shown on attached Exhibit A (“Public Utilities”); and
WHEREAS, each of the Parcels will utilize a portion of Parcels 1 through 3 for storm drainage from its individual Parcel as shown on attached Exhibit A (“Drainage Structures”); and
WHEREAS, each of the Parcels will utilize a portion of Parcel 1 for a shared Green Waste Facility for its individual Parcel as shown on attached Exhibit A (“Green Waste Facility”); and Attachment 3
9.H-14Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
WHEREAS, Declarant intends by this document to execute a DECLARATION ESTABLISHING
NON-EXCLUSIVE PRIVATE USE AND MAINTENANCE AGREEMENT FOR COMMON
DRIVEWAY, UNDERGROUND PUBLIC UTILITIES, DRAINAGE STRUCTURES, AND GREEN WASTE FACILITY for the benefit of all of the individual owners of the individual Parcels.
NOW THEREFORE, Declarant hereby declares that Parcels 1 through 3 inclusive, as shown on City of Pismo Beach Parcel Map PB21-0032 shall be held, sold, leased, mortgaged, encumbered, rented, used, occupied, improved and conveyed subject to the following agreement, which shall run with the real property and be binding on Declarant and their successors and assigns, on all parties having or acquiring right, title or interest in or to the described property or any party thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
1. Common Driveway.
A.Driveway Access. Each Owner of a Parcel (“Owner”) (collectively “Owners”) shall have a permanent right to use the Driveway.
B. Driveway Maintenance. The Driveway shall be regularly maintained and repaired with a paved concrete surface so that the Driveway is accessible in all weather and free of potholes, or large cracks. Repair of the Driveway includes the repair of all damages caused by ordinary use, the occurrence of natural events, and acts of god.
C. Sharing of Maintenance Costs. The Owners of Parcels 1 through 3 agree to mutually share in the cost and expense of maintaining the Driveway. Excepting that each Owner shall be solely responsible for the cost of repair of damage to the Driveway, other than normal wear and tear, caused by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
D.Additional Repairs. Each Owner shall have the right to make a request that reasonable maintenance and/or repairs be made to the Driveway.
E.Required Capital Improvements. Should any governing entity, including, but not limited to, the City of Pismo Beach, require any capital improvements or upgrades to the Driveway, the cost and expense of such improvements shall be borne individually by the underlying property Owner.
F.Parking Prohibited. The Owners hereby agree to prohibit parking on the Driveway in all posted no parking zones and fire lanes.
G.Vehicle Removal. Any affected Owner or tenant thereof may avail itself of the authority granted private property Owners in section 22658 of the California Vehicle Code to Attachment 3
9.H-15Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
remove a vehicle when said vehicle is parked on the Driveway in such a manner so as to interfere with entry or access to a Parcel which it serves.
H. Abandonment of Agreement. If this Agreement is abandoned or dissolved, each Parcel previously served by the Driveway shall be provided with standard access as required by the City Zoning Regulations.
2. Frontage Improvements.
A. Frontage Improvements Maintenance. The Owners of Parcels 1 through 3 shall maintain, repair and replace the landscaping and irrigation (“Frontage Improvements”) in the public right-of-way adjoining the development, including the 26-foot-wide offer of dedication to the City (“Frontage”). Use of low-water-using irrigation systems shall be utilized, and drip irrigation shall be used where feasible.
B. Trash Can Responsibilities. The Owners of Parcels 1 through 3 are responsible to take trash cans to Hinds Avenue and to bring the cans back in within forty-eight (48) hours of trash collection.
C. Sharing of Maintenance Costs. The Owners of Parcels 1 through 3 agree to mutually share in the cost and expense of maintaining the Frontage Improvements; excepting that all costs of water used for irrigation of landscaping in the Frontage area shall be the sole responsibility of the Owner of Parcel 1; and further excepting that each Owner shall be solely responsible for the cost of repair of damage to the Frontage Improvements, other than normal wear and tear, caused by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
D. Additional Repairs. Each Owner shall have the right to make a request that reasonable maintenance and/or repairs be made to the Frontage Improvements.
3. Landscape Improvements.
A. Landscape Improvements Maintenance. The Owners of Parcels 1 through 3 shall assure that private planting, irrigation, parking pavers, common retaining walls and fencing (“Landscape Improvements) are regularly maintained, repaired and/or replanted to assure the aesthetics and viability of these items. Parking pavers are required for stormwater purposes and shall remain for this purpose.
B. Sharing of Maintenance Costs. The Owners of Parcels 1 through 3 agree to mutually share in the cost and expense of maintaining the Landscape Improvements; excepting that each Owner shall be solely responsible for the cost of repair of damage to the Landscape Improvements, other than normal wear and tear, caused by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
Attachment 3
9.H-16Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
C. Additional Repairs. Each Owner shall have the right to make a request that reasonable maintenance and/or repairs be made to the Landscape Improvements.
4. Underground Public Utilities.
A. Maintenance of Underground Public Utilities. Each utility shall have sole responsibility for the maintenance of their respective utility facilities, including costs arising from the malfunction of a utility line.
B. Responsibility for Repair of Damage to Underground Public Utilities. Each Owner shall be solely responsible for the cost of repair of any damage to the Underground Public Utilities by that Owner or that Owner’s guests, invitees, contractors, agents, or licensees.
5. Drainage Structures.
A. Maintenance of Drainage Structures. The Drainage Structures shall be regularly maintained and repaired to be fully operational at all times. Repair of the Drainage Structures includes the repair of all damages caused by ordinary use, the occurrence of natural events, and acts of god.
B. Drainage Pattern Alterations. No Owner shall do any work, construct any improvement, place any landscaping or suffer the existence of any condition whatsoever which shall alter or interfere with the drainage pattern for the Owner’s, or any adjacent Parcels as established in connection with the approval of the final Parcel Map applicable to the Development, except to the extent such alteration in drainage pattern is approved in writing by the City.
C. Post-Construction Stormwater Management System Operations & Maintenance Inspections. The Owners of Parcels 1 through 3 shall submit yearly Post-Construction Stormwater Management System Operations & Maintenance Inspections to the City of Pismo Beach to show permanent drainage structures are operational. Should the Owners fail to do so, then fines can be administered by the City of Pismo Beach.
D. Sharing of Maintenance Costs. The Owners of Parcels 1 through 3 agree to mutually share in the cost and expense of maintaining the Drainage Structures. Excepting that each Owner shall be solely responsible for the cost of repair of damage to the Drainage Structures, other than normal wear and tear, caused by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
E. Additional Repairs. Each Owner shall have the right to make a request that reasonable maintenance and/or repairs be made to the Drainage Structures.
Attachment 3
9.H-17Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
6. Green Waste Facility.
A. Maintenance of Green Waste Facility. The Green Waste Facility shall be regularly maintained and repaired to be fully operational at all times. Repair of the Green Waste Facility includes the repair of all damages caused by ordinary use, the occurrence of natural events, and acts of god.
B. Sharing of Maintenance Costs. The Owners of Parcels 1 through 3 agree to mutually share in the cost and expense of maintaining the Green Waste Facility. Excepting that each Owner shall be solely responsible for the cost of repair of damage to the Green Waste Facility, other than normal wear and tear, caused by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
C. Additional Repairs. Each Owner shall have the right to make a request that reasonable maintenance and/or repairs be made to the Green Waste Facility.
7. Miscellaneous.
A. Maintenance Manager. For purposes of this agreement, the Owners of Parcels 1 through 3 may mutually agree to hire a Maintenance Manager who shall be entitled to a management fee not to exceed ten percent (10%) of the maintenance costs and expenses to cover administrative costs.
B. Temporary Entry. Each Owner shall have the temporary right to enter any of the parcels to the extent reasonably required for inspection and/or the proper maintenance of any of the facilities covered by this Agreement.
C. Insurance. Each party is responsible for maintaining their own insurance. Each Owner agrees to hold harmless and indemnify each of the other Owners for any injuries sustained by an Owner or that Owner’s contractors, agents, guests, licensees, or invitees.
D. Amendment or Abandonment. This Agreement may not be amended, or abandoned except by a written agreement signed by all Owners and by the City of Pismo Beach duly acknowledged, and recorded in the office of the County Recorder of the County of San Luis Obispo, California.
E. Covenant with the Land. The benefits and obligations of the covenants herein shall run with the Parcels herein described so long as this declaration is in effect and shall bind the respective parties hereto, their heirs, legal representatives, grantees, and assigns.
F. Entire Agreement. This Agreement contains the entire agreement between parties relating to the obligations assumed by this Agreement. Any oral representations or modifications concerning this Agreement shall be of no force or legal effect.
Attachment 3
9.H-18Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
G. Governing Law. This Agreement shall be governed in all respects by the laws of the State of California. In any action or proceeding connected with this Agreement, the parties consent to the jurisdiction and venue of the Superior Court of the State of California, County of San Luis Obispo, California.
H. Severability. The provisions of this Agreement are severable. If any portion is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
I. Judicial Reference. Pursuant to Code of Civil Procedure Section 638, et seq., all legal actions regarding this Agreement shall be heard by a referee who shall be a retired judge from either the San Luis Obispo County Superior Court, or the California Court of Appeal, provided that the selected referee shall have experience in resolving land use and real property disputes. The parties shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If the parties are unable to agree on a referee within ten (10) days of a written request to do so by either Party hereto, either party may seek to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally between the parties involved in the dispute. Any referee selected pursuant to this Section shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. Notwithstanding the provisions of this Section, any party shall be entitled to seek declaratory and injunctive relief in any court of competent jurisdiction to enforce the terms of this Agreement, or to enjoin another party from an asserted breach thereof, pending the selection of a referee as provided in this Section, on a showing that the moving party would otherwise suffer irreparable harm. Upon the mutual agreement by the parties involved in the dispute, any legal action shall be first be submitted to mediation in accordance with rules to be mutually agreed upon by the parties.
J. Attorneys’ Fees Clause. Should any of the Owners be required to engage counsel for the purposes of enforcing or preventing the breach of any provision hereof, including, but not limited to, by instituting any action or referenced proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such Owner’s rights and obligations with reference to the provisions hereof, by defending any action or proceeding instituted in violation hereof, or for seeking any other judicial or referenced remedy, then if said matter is settled by judicial or referenced determination, the prevailing party shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the losing party for reasonable attorneys’ fees and costs actually incurred by the prevailing party.
Attachment 3
9.H-19Council Agenda 10-4-2022
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Declaration Establishing Private Use and Maintenance Agreement 478 Hind Avenue, Pismo Beach
(09-23-2022)
IN WITNESS WHEREOF, the Declarant has executed this DECLARATION
ESTABLISHING NON-EXCLUSIVE PRIVATE USE AND MAINTENANCE
AGREEMENT FOR COMMON DRIVEWAY, UNDERGROUND PUBLIC UTILITIES, DRAINAGE STRUCTURES, AND GREEN WASTE FACILITY the day and year below written.
Date: __________________
By:
________________________
RONALD CHAPPELL,
an individual
Attachment 3
9.H-20Council Agenda 10-4-2022
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Declaration Establishing Architectural Controls
478 Hind Avenue, Pismo Beach
(09-23-2022)
Recording Requested By and
When Recorded Mail To:
Pismo Homes, LLC
Post Office Box 1649
Arroyo Grande, CA 93421
With a Copy To:
The City of Pismo Beach
Community Development Department
760 Mattie Road
Pismo Beach, CA 93449
APN: 005-085-006
DECLARATION ESTABLISHING ARCHITECTURAL CONTROLS
FOR FUTURE REMODELS
THIS DECLARATION ESTABLISHING ARCHITECTURAL CONTROLS FOR FUTURE REMODELS (hereinafter “Agreement”) made on the date set forth below in this instrument by RONALD CHAPPELL (hereinafter “Declarant”), is made with reference to the following facts:
WHEREAS, Declarant is the owner of that certain real property in the City of Pismo Beach (hereinafter “City”), County of San Luis Obispo, State of California, described as Parcels 1 through 3, City of Pismo Beach Parcel Map PB21-0032 as shown on a map recorded in Book __, Pages __ through __ of Maps, in the office of the County Recorder of the County of San Luis Obispo, State of California (hereinafter “Parcel”) (collectively “Parcels”); and WHEREAS, each of the Parcels are required to maintain the architectural character of each residence as originally approved by the City.
WHEREAS, Declarant intends by this document to execute a DECLARATION ESTABLISHING ARCHITECTURAL CONTROLS FOR FUTURE REMODELS for the benefit of all of the individual owners of the individual Parcels.
NOW THEREFORE, Declarant hereby declares that Parcels 1 through 3 inclusive, as shown on City of Pismo Beach Tract Map PB23-0032 shall be held, sold, leased, mortgaged, encumbered, rented, used, occupied, improved and conveyed subject to the following agreement, which shall run with the real property and be binding on Declarant and their successors and assigns, on all parties having or acquiring right, title or interest in or to the described property or any party thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
Attachment 4
9.H-21Council Agenda 10-4-2022
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Declaration Establishing Architectural Controls
478 Hind Avenue, Pismo Beach
(09-23-2022)
1. Architectural Controls.
A. Building Maintenance Requirements. The owner of Parcel 1, 2, or 3 shall maintain in a clean and neat manner all exterior colors and roofing materials, windows, door, siding, stucco, gutters, or any other exterior finishes.
B. Exterior Improvements. No alteration or improvement of any kind shall be made to the exterior of any residence, until the same has been approved in writing by the City of Pismo Beach.
C. Exceptions. However, no permission or approval shall be required to repaint in accordance with the Project’s original color scheme or to rebuild in accordance with plans and specifications previously approved by the City of Pismo Beach. Nothing contained herein shall be construed to limit the right of an owner to remodel the interior of his residence or to paint the interior of his residence any color desired.
D. Landscape Maintenance Requirements. The owners of Parcels 1, 2, and 3 shall be responsible to assure that private planting, parking pavers, common retaining walls and fencing are regularly maintained, repaired and/or replanted to assure the aesthetics and viability of these items. Parking pavers are required for stormwater purposes and shall remain for this purpose. Maintenance of these landscape items includes the repair of all damages caused by ordinary use, the occurrence of natural events, and acts of god. All of the Parcel owners shall have equal responsibility for the maintenance and repair, excepting that each owner shall be solely responsible for the cost of repair of, other than normal wear and tear, caused by an owner or that owner’s contractors, agents, guests, licensees, or invitees.
E. Landscape Planting Requirement. All landscape plant materials within the drainage easement shall be limited to shallow roots and easily removable plant materials.
F. Accessibility Standards. Notwithstanding the foregoing, or any other provision or term within this Declaration, owners may modify a unit, at the owner's expense, to facilitate access for persons who are legally disabled, or to alter conditions which could be hazardous to said persons.
2. Miscellaneous.
A. Amendment or Abandonment. This Agreement may not be amended, or abandoned except by a written agreement signed by all Owners and by the City of Pismo Beach duly acknowledged, and recorded in the office of the County Recorder of the County of San Luis Obispo, California.
B. Covenant with the Land. The benefits and obligations of the covenants herein shall run with the Parcels herein described so long as this declaration is in effect and shall bind the respective parties hereto, their heirs, legal representatives, grantees, and assigns.
Attachment 4
9.H-22Council Agenda 10-4-2022
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Declaration Establishing Architectural Controls
478 Hind Avenue, Pismo Beach
(09-23-2022)
C. Entire Agreement. This Agreement contains the entire agreement between parties relating to the obligations assumed by this Agreement. Any oral representations or modifications concerning this Agreement shall be of no force or effect.
D. Governing Law. This Agreement shall be governed in all respects by the laws of the State of California. In any action or proceeding connected with this Agreement, the parties consent to the jurisdiction and venue of the Superior Court of the State of California, County of San Luis Obispo, California.
E. Severability. The provisions of this Agreement are severable. If any portion is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
F. Judicial Reference. Pursuant to Code of Civil Procedure Section 638, et seq., all legal actions regarding this Agreement shall be heard by a referee who shall be a retired judge from either the San Luis Obispo County Superior Court, or the California Court of Appeal, provided that the selected referee shall have experience in resolving land use and real property disputes. The parties shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If the parties are unable to agree on a referee within ten (10) days of a written request to do so by either Party hereto, either party may seek to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally between the parties involved in the dispute. Any referee selected pursuant to this Section shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. Notwithstanding the provisions of this Section, any party shall be entitled to seek declaratory and injunctive relief in any court of competent jurisdiction to enforce the terms of this Agreement, or to enjoin another party from an asserted breach thereof, pending the selection of a referee as provided in this Section, on a showing that the moving party would otherwise suffer irreparable harm. Upon the mutual agreement by the parties involved in the dispute, any legal action shall be first be submitted to mediation in accordance with rules to be mutually agreed upon by the parties.
G. Attorneys’ Fees Clause. Should any of the owners be required to engage counsel for the purposes of enforcing or preventing the breach of any provision hereof, including, but not limited to, by instituting any action or referenced proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such owner’s rights and obligations with reference to the provisions hereof, by defending any action or proceeding instituted in violation hereof, or for seeking any other judicial or referenced remedy, then if said matter is settled by judicial or referenced determination, the prevailing party shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the losing party for reasonable attorneys’ fees and costs actually incurred by the prevailing party.
Attachment 4
9.H-23Council Agenda 10-4-2022
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Declaration Establishing Architectural Controls
478 Hind Avenue, Pismo Beach
(09-23-2022)
IN WITNESS WHEREOF, the Declarant has executed this DECLARATION ESTABLISHING ARCHITECTURAL CONTROLS FOR FUTURE REMODELS the day and year below written.
Date: __________________
By:
________________________
RONALD CHAPPELL,
an individual
Attachment 4
9.H-24Council Agenda 10-4-2022
Attachment 5
9.H-25Council Agenda 10-4-2022