HomeMy WebLinkAbout39-City Attorney
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. CITY OF SAN BERNARDINO
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- RI!QUI!ST FOR COUNCIL ACTION
Om:
James F. Penman
City Attorney
Subject: Agreement with Gatlin/Berger
Developments, Inc. (for Wal-Mart)
Dept:
Date: October 31, 1990
Synopsis of Previous Council action:
October 25, 1990: referred to City Attorney for review.
Recommended motion:
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Adopt Resolution.
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Signature
Contlct pinon: James F. Penman
SupportIng detl lueched: Resolution and Agreement
Phonl:
5255
Ward:
Four (4)
FUNDING REQUIREMENTS:
Amount: $550,000.00
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
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Council Notes:
Finance:
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. CITY OF SAN BERNARDINO -
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REQUEST FOR COUNCIL ACTION
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STAFF REPORT
The a~~ached Agreemen~ wi~h Ga~lin/Berger Developments, Inc. has
been reviewed by the City Attorney's Office and is recommended
for approval with certain changes described below and
incorpora~ed into the Agreement.
This document is basically an Agreement to agree on a
.Developmen~ Agreement no later than December 31, 1990."
The Agreement before you recognizes the need to obtain all
necessary permits and approvals required and pledges the City to
make good faith efforts and best efforts to assist the
developers in obtaining said permits and approvals.
At the same time, the Agreement (in paragraph 2, page 6)
recognizes that public hearings, findings and other procedures
are required by law and the operative provisions of this documen~
will be conditional on completion of the legal requirements.
In reviewing the Agreement presented to the Council on October
25, (hereafter referred to as Agreemen~ I) it was discovered that
the Sewer Connection fee had been inadvertently omitted. This
fee is present in the document before you (hereafter referred to
as Agreement II) and adds an additional S19,400.00 obliga~ion to
the developer.
In addition, Agreement I calculated the fees the developer would
be required to pay on a construction value of 10 Million Dollars.
The City Engineer's estimate of a 14.5 Million Dollar
construction value is used in calculating the fees in
Agreement II. Based on the higher construction value, an
additional S68,282.00 in fees is present in the Agreement, and,
added to the Sewer Connection fee mentioned above, ($19,400.00)
Agreement II requires the developer to pay up to a total of
$87,682.00 more than Agreement I.
Also new provisions have been added to Agreement II requiring:
1) Developer to obtain written approval from
City prior to the assignment of this
Agreement,
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2) Developer to pay the cost of any rights of
way or easements on their property, instead
of City, and
3) The Agreement to be construed and enforced
under California Law.
With these changes made in Agreement II, the document is ready
for your approval.
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We note that this is a very good deal for the City of San
Bernardino. Other cities have paid million of dollars in
incen~ives to secure Wal-Mart stores in those cities. The
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STAFF REPORT
AGREEMENT W2TH GATLIN/BERGER
DEVELOPMENTS, INC.
Page 2
projected cost of this Agreement is $550,000.00* according to the
City Engineer.
That amount should be more than Off-set by the sales tax this
huge center will generate.
It appears that San Bernardino has made the best deal of any City
that has negotiated with Wal-Mart according to the information we
have received.
Respectfully submitted,
Q,,- "9 .p~--,....
aa:es F. Penman
City Attorney
*This amount could increase if certain improvements are done by
the City and then have to be done again if Cal-Trans removes the
additional work, or parts thereof, to redesign Highland Avenue.
Even if this amount were to double, however, the City should
receive the full amount back plus much more in sales tax.
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RESOLUTION NO.
RBSOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BBRNARDINO AUTHORIZING EXECUTION OF AN AGREEMENT WITH
GATLIN/BBRGBR DEVELOPMENTS, INC. RELATING TO A COMMERCIAL
DEVELOPMENT AT THE INTERSECTION OF HIGHLAND AND BOULDER.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor is hereby authorized and directed to
7 execute on behalf of said City an agreement with Gatlin/Berger
8 Developments, Inc. relating to a commercial development at the
9 intersection of Highland and Boulder in the City of San
10 Bernardino.
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SECTION 2.
The authorization to execute the above-
12 referenced agreement is rescinded if the parties to the agreement
13 fail to execute it within sixty (60) days of the passage of this
14 resolution.
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I HEREBY CERTIFY that the foregoing resolution was duly
16 adopted by the Mayor and Common Council of the City of San
17 Bernardino at a meeting thereof, held on the
18 day of , 1990, by the following vote, to wit:
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Council Members:
ABSTAIN
AYES
NAYS
ESTRADA
21 REILLY
22 FLORES
23 MAUDSLEY
24 MINOR
25 POPE-LUDLAM
26 MILLER
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ses/Wal-mart.res
mber 1, 1990
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RESOLUTION. . .AUTHORIZING EXECUTION OF AN AGREEMENT WITH
GATLIN/BERGER DEVELOPMENTS, INC. .AT THE INTERSECTION OF
HIGHLAND AND BOULDER.
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City Clerk
The foregoing resolution is hereby approved this
day
of
, 1990.
W. R. Holcomb, Mayor
City of San Bernardino
Approved as to
11 form and legal content:
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D
N
JAMES F. PENMAN,
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ses/Wa1-mart.res
mber 1, 1990
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AGRF.F.MIi'NT
This Agreement ("Agreement") is entered into effective , 1990, be-
tween GATLINIBERGER DEVELOPMENTS, INC., a Louisiana corporation ("Developer")
and the CITY OF SAN BERNARDINO, a municipal corporation ("City").
RECITALS
A. The Developer has entered into an agreement to purchase approximately 24.25
acres of real property in the municipal limits of the City, which is more particularly described
on EXHIBIT · A. which is attached hereto and incorporated by reference as though fully set
forth hereat and may also purchase additional, contiguous real property (collectively,
"Highland-Boulder Propeity").
B. The Developer intends to develop the Highland-Boulder Property as a quality
open air shopping center, which will contain approximately 200,000 square feet of stores,
shops and restaurants, including an approXimately 125,000 square foot Wal-Mart department
store and such additional improvements as the Developer may determine ("Development
Plan"). -,me
C. The Developer has asked the City to enter into a Development Agreement under
Section 65864 ~. of the California Government Code, to vest its rights to develop the
Highland-Boulder Property in accordance with the Development Plan and to otherwise facili-
tate the development of the Highland-Boulder Propeity ("Development Agreement"), and the
City is willing to consider entering into a Development Agreement on the terms and conditions
in this Agreement.
IN CONSIDERATION of the mutual covenants and conditions in this Agreement, the
parties agree as follows:
OPERATIVE PROVISIONS
1. Develonment Al!reement. Subject to satisfaction of the conditions in paragraph
2., the parties will enter into a Development Agreement with regard to the Highland-Boulder
PIoperty, so that the first reading of the ordinance which enacts the Development Agreement
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occurs no later tban December 31, 1990. The parties will attempt in good faith to have such
Development Apcement provide for the following:
(a) The Developer will have the vested right to develop ,the Highland-Boul-
der Property in accordance with the Development Plan, without regard to ordinances, resolu-
tions, rules, regulations or policies of the City which may be enacted after the effective date of
the Development Agreement, or referenda of the voters of the City which may occur after the
effective date of the Development Agreement including, without limitation, those with regard
to moratoriums or ,utility service. The parties acknowledge that, as of the effective date of the
Development Agreement, the Developer will not have all of the approvals which will be re-
quired by the City with regard to the development of the Highland-Boulder Propeity. There-
fore, the Development Agreement will not prohibit the City from exercising reasonable
discretion with regard to any remaining approvals.
(b) The City will agree to process the Developer's development plans and
construction plans in good faith, on a priority basis, and to inspect all construction at the
Highland-Boulder Property, on a priority basis.
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(c) The City will cooperate in good faith with the Developer and will use its
best efforts to assist the Developer in the Developer's efforts to obtain all permits, approvals
and utility services which are required for the development and operation of the Highland-
Boulder Property.
(d) The City will, at its sole cost, accelerate its planned installation of the
following Highland Avenue improvements, using so-called "gas tax" funds or other funds
which have been appropriated for that purpose, or will cause the Community Development
Agency of the City to do the same:
(i) Highland Avenue street improvements, including demolition,
street widenina, curb and gutter, sidewalk, landscape, street lights and pavement.
(ii) Storm drain extension, stubbed to the perimeter of the Highland-
Boulder PIOperty.
(ill) Traffic control facilities, including a traffic control light at the
entry to the Highland-Boulder Property.
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The City will bear all of the direct and indirect costs of the foregoing
improvements including, without limitation, the cost of any architectural, engineering or sur-
veying services required in connection with the improvements and the cost of acquiring any
rights-of-way or easements which may be necessary for the installation of the improvements
(other than rights-of-way or easements with regard to the Highland-Boulder Property), and
will install the improvements according to a schedule which will not delay the progress of the
Developer's development of the Highland-Boulder Property.
(e) . Without limiting any credits which may be available to the Developer as
provided in the ordinances or resolutions of the City, the Developer will be required to pay the
following development impact fees/development linkage fees (collectively, "Development
Impact Fees"), in connection with its development and/or operation of the Highland-Boulder
Property, (based on a shopping center which will contain approximately 200,000 square feet of
stores, shops and restaurants, including an approximately 12S,OOO square foot Wal-Mart
department store) :
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(i) Storm drain fee: Calculated in accordance with the applicable
ordinance and/or resolution of the City, but in no event greater than $112,000.00.
(ii) Sewer capacity fee: Calculated in accordance with the applicable
ordinance and/or resolution of the City, but in no event greater than $41,800.00.
(ill) Cultural development fee: Calculated in accordance with the ap-
plicable ordinance and/or resolution of the City, but in no event greater than $73,937.00.
(iv) Traffic systems fee: Calculated in accordance with the applicable
ordinance and/or resolution of the City, but in no event greater than $124,24S.00.
(v) Sewer connection fee: Calculated in accordance with the appli-
cable ordinance and/or resolution of the East Valley Water District, but in no event greater
than $19,400.00.
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The City represents that, except for the foregoing Development Impact
Fees, there are no other development impact fees which will be levied by the City in connec-
tion with the Developer's development and/or operation of the Highland-Boulder Property and
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the City and the City further represents that it will not impose any new deve opme~,t Impact
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with the Developer's development and/or operation of the Highland-Boulder Property.
However, nothing in this subparagraph l.(e) will be deemed to exempt
the Developer from paying the City's usual and customary fees and charges to cover its costs
of processing any applications and any fees which are required to be paid to public agencies
other than the City, with regard to the development or operation of the Highland-Boulder
Property.
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In addition, as to each building which is developed on the Highland-
Boulder Property, the Developer will pay the applicable Development Impact Fees according
to the following schedule: (i) 1/3 at the time provided in the applicable ordinance or resolu-
tion of the City, (ii) 1/3 at the time that the City issues a certificate of occupancy for that
building, plus simple interest on that amount, at 995 per annum, from the date which is pro-
vided for payment in the applicable ordinance or resolution of the City, until paid, and (ill) 1/3
on the first anniversary of the date that the City issues a certificate of occupancy for that
building, plus simple interest on that amount, at 995 per annum, from the date which is pro-
vided for payment in the applicable ordinance or resolution of the City, until paid.
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(f) The parties acknowledge that the City's General Plan and Development
Code would presently permit the development of only part of the Highland-Boulder Property
in accordance with the Development Plan. In view of the foregoing but subject to the limita-
tions in paragraph 2., the City will cooperate in good faith with the Developer and will use its
best efforts to assist the Developer in the Developer's efforts to obtain such amendments of the
City's General Plan and Development Code as may be nece5Sary to allow the development of
all of the Highland-Boulder Property in accordance with the Development Plan. Without lim-
iting the effect of the foregoing, if at the time scheduled for approval of the Development
Agreement by either the Planning Commission or the City Council of the City, the aforemen-
tioned General Plan amendment has not occurred, then, at the Developer's request but subject
to the limitations in paragraph 2., the City will cooperate in good faith with the Developer and
will use its best efforts to assist the Developer in the Developer's efforts to obtain approval of
the Development Agreement with regard to the part of the Highland-Boulder Property which
the City's General Plan would permit development of in accordance with the Development
Plan, and subject to the limitations in paragraph 2., will continue to cooperate in good faith
with the Developer and use its best efforts to assist the Developer in the Developer's ~fforts to
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obtain approva1 of the Development Agreement with regard to the remainder of the Highland-
Boulder Pl~l>,.
(g) The parties acknowledge that the City's General Plan presently shows
the extention of Piedmont Drive across the Highland-Boulder PropertY and that any extension
of Piedmont Drive across the Prope..1y will be incompatible with the Development Plan. In
view of the foregoing but subject to the limitations in paragraph 2., the City will cooperate in
good faith with the Developer and will use its best efforts to assist the Developer in the Devel-
oper's efforts to obtain an amendment of the City's General Plan to delete future Piedmont
Drive or any other future right-of-way across the Highland-Boulder Pro.,eity.
(h) The parties acknowledge that the City has agreed to provide, at its sole
cost, certain improvements, due to the Developer's expertise, reputation as a successful
developer, and financial status. Consequently, except as otherwise provided in this
subparagraph 1. (h) , the Developer will not transfer its rights and obligations under the
Development Agreement, without the City's express written consent, which will not be
unreasonably withheld.
The purpose of this provision is to assure that, if a transfer occurs, a
developer of at least the same expertise, reputation and financial status as the Developer
develops the Highland-Boulder Property. The further purpose of this provision is to prohibit
only the transfer of the entire Development Agreement without the City's express written.
consent. Therefore, the parties agree that this prohibition against transfer will not apply to and
the consent of the City will not be required for (i) the transfer of all or part of the Highland-
Boulder Pro.,eity for the specific siting of a Wal-Mart department store ("Wal-Mart Site"),
along with the rights and obligations under the Development Agreement that relate to the
same, to Wal-Mart Stores, Inc., (ii) the transfer of all or part of the Highland-Boulder
Propelty along with the rights and obligations under the Development Agreement that relate to
the same, to a partnership or other entity that is controlled by the Developer or either of its
principals, (ill) the transfer of specific sites within the Highland-Boulder Property (other than
the Wal-Mart Site), along with the rights and obligations under the Development Agreement
that relate to the same, to individual developers, (iv) any transfer of the rights and obligations
under this Agreement or of the Highland-Boulder Propeity, in order to finance (through the
use of equity or debt) the acquisition or development of all or part of the Highland-Boulder
Property, and (v) leases of the Highland-Boulder Property.
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Subject to the provisions of this subparagraph 1.(h), the Development
Agreement will inure to the benefit of and will bind the Developer's successors, assigns and
tenants.
2. Conditions of Effectiveness. The City and the Developer acknowledge that the
effectiveness of the Development Agreement and the General Plan and Development Code
amendments which are referred to in subparagraph 1.(t), will be conditioned on the following:
(a) The completion of such investigations, public hearings, findings and
other procedures as are required by California law and the City's ordinances.
(b) The preparation, certification, approval and adoption by the City of ap-
propriate environmental documents, if applicable, in accordance with the requirements of the
California Environmental Quality Act.
(c) The making of all required findings by the City, after appropriate inves-
tigation and public hearings.
3. Findine of Benefit. The City has determined that entry into this Agreement and
. C> the Development Agreement will facilitate the construction of a major retail center in the City
which will provide new occupations and employment possibilities for the citizens of the City,
thereby furthering the City's objective of achieving the Southern Calif()fllia Association of
Governments "Jobs/Housing Balance".
4. Severability. Every provision of this Agreement is and will be construed to be a
separate and independent covenant. If any provision of this Agreement or the application of the
same is, to any extent, found to be invalid or unenforceable, then the remainder of this
Agreement or the application of that provision to circumstances other than those to which it is
invalid or unenforceable. will not be affected by the same and each provision of this Agree-
ment will be valid and will be enforced to the extent permitted by the law.
S. Covenant of Good Faith. The parties will cooperate with one another in good
faith throughout the implementation of this Agreement, so the intent of this Agreement can be
attained.
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CounteQ)artS. This Agreement may be executed in countetparts.
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7. AlI,plil'.llhle Law. This Agreement will be construed and enforced under Cali-
fornia law.
ATrEST
By:
City Clerk
APPROVED TO AS TO FORM &. SUBSTANCE:
GRESHAM, VARNER, SA V AGE,
NOLAN &. TILDEN
By:
Mark A. Ostoich, Esq.
an
CITY OF SAN BERNARDINO
By:
Mayor
DEVELOPER
GATLIN /BERGER DEVELOPMENTS,
INC., a Louisiana corporation
By:
Its
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mGHLAND-BOULDER PROPERTY
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EXHIBIT · A.
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1'IIH IOIl'1'IOII OJ' 'I'D ..........a.ft 1/4 OJ' UC'l'I0II 21, 'fOIftIaar 1 IIOam, IWIGI 3 Wlft,
au --DMIJIO IUI &lID ICIIUDUIr, III 'fill .........u OJ' au IIIJIAIDIJIO, I'1'AD OJ'
c:u.I~U, ~IIIO to ftI OJ'J'ICDL PLU OJ' IUD LAIlD nLID III TBI DIIftICT LAIID
OJ'J'II3 RJ"I..-" 2, 1171, DIlelUUD AI IOLLOWI.
OOIlIIIIfCIIIO U 'I'D IOV'fII 1/4 00h... OJ' lAID .ICTIOII 21,
..--- CI IIOIU'II It- 41' ..- tAft At.OIIlI 'I'D IOU'ftI LUll OJ' IUD UC'l'IOII, 442.50 rD'1'
;,"';"" ',','
. (JlSCOIUl 442.43 nzT) '1'0 TU INTnsECTION WI'1'R '1'D SOOT!lUI.r UTnSION 01' '1'D
CZlf'RJt LID 01' A S'1'OD DITCH AS lUnlUWl '1'0 III DUD RBCOIUlI:D rzllRUAU 9, U21 III
800lt 710 01' DUDS, PAOB J27, lUCOIUlS 01' SAID COtlll'1'r,
TDllCI: NOR'1'll O. 22' 00. WlST ALONG '1'D SOllTDlU.r UT!1fSION 01' '1'D CI:trTD LIQ or
SAID DITCH 135." FEn '1'0 A POINT III '1'D NOR'1'R LINJ: or TO STATI IfIGIIWAr RIGft 01'
WAr,
TUNCI: NOR'1'R 89. 38' 00. lAST, J.O 1%1'1'1
TDllCI: NORTH 0" 22' 00. nST, pA.'lonYf WITH 1'111 CINTIA LID or SAID STONJ: DI':C8,
J2 .0 nET '1'0 TU TRCZ POINT or BEGINNING,
TDllCI: CONTIIIt1IIIO 1I0R'1'R O. 22' 00. WlST, 115.0 nzT,
TDllCI: 1I0R'1'R 89. J8' 00. lAST, 9J.0 rzll:T,
TDIIa SOUTII O. 22' 00. KAST, 115.0 nzT, PU"'" WITH 1'111 CJ:IITD LIIlZ or SAID
S'l'OQ DITCH,
1'DIfa SOUTII 89" 31' 00' nIT, 93.0 PUT '1'0 1'111 TRa POIIIT OJ' HOIIIIIING.
PUCBL 110. 'I
TDT PORTION or TU 10000000T 1/4. OJ' SBCTIOII 21, '1'OIIIIS8U 1 1IOImI, IWlQ 3 n.'1',
SAIl IDHARDIlIO auK Ala) HDIDIAII, III '1'D COOll'1'r or SAIl UJ\IWU)IIIO, HAft OJ'
CALIPORlfIA, ACCOADIlIO '1'0 TU orrICur. PLAT or lAm LAIID r%I.m) III 1'111 DIIftICT LAIID
OFl'Ia SliPTll:lCUJl 2, 1871, DKSClUUD AI 1'OLLOIf.1
JP
CCMMJ:lICIIIO AT 1'111 SOQTB 1/4 CORIID 01' lAID .Bc:IClII 21,
TIlDa IIORTH .9. 4.1' 45. auT ALOIeG 1'111 SOO'1'II LID OJ' WD nCTIClII, "2.50 I'UT
(UCOAD 442.43 I'UT) '1'0 TD nrr....CTIClII WI'l'II TD so.,~-.Lr D'l'D.IClII OJ' '1'D
C&n~... LID OJ' A .'1'OD DI'1'C8, AI RBI'DUD TO I8 DDD UCOADIlD ruavur " 1121, III
~It 710 OJ'DUD., PAGZ 327, UCOAD. OJ' lAm ClClUIlb,
'l'DXa IIORTB 0" 22' 00. nIT ALOIeG 1'111 ......~_r U'l'DIIClII OJ' '1'D CL~... LINJ: or
SAID DI'1'CB, 135." ruT '1'0 A POIIIT III '1'D IIOJlft LID OJ' TD ITA'l'II 8IOBWU aIGft or
WAr TO '1'D TRa POIII'1' OJ' UGIII1IIJIO,
TIlDa IIOATH .,. JI' 00. auT, 3.0 1'D'l',
TIlDa IIOATH O. 22' 00. "''1', 32.0 I'D'l' PA.~OTt.. WI'l'II TD ""~... LIllW OJ' lAID .TO!IJ:
DI'1'C8,
TIlDa IIORTB .,. JI' 00. au'l, 20.00 1'D'l',
TIlDa SOU'l8 O. 22' 00. au'l, 32.0 1'D'l',
TIlDa IOU'1'II ..,. 41' SO. ...." 19.31 I'D'l' 'lO ~ I'OIft I8 TD IIOJI'lIIDftDLr LIIlZ OJ'
'1'U .D'l'II 0' CALII'OIUrIA 1I%Q8WU AI DIlCaIUD I8 .uea, ... OJ' '1'D DDD RBCOIlDIlD
JGJICII 11, 1954, AI u.~_~ BO, 21, III IOCI& 3347, 'Aa "", OFI'ICUL UCQIlDI,
UCOAD' OJ' am Owu.u'
'1'UIICJ: lIOIu.. 340 01' 2'- 8ft (UCOJU) IIOJt'1'II 33. 4.5' 04. ....,) ALCIIlI lAID
lIOJlDIlAS'lDLr LID, 15.10 I'D'l' 'lO '1'U ftv. 1'O%ft OJ' HOI8II%JIO.
I