HomeMy WebLinkAboutD-1692A APN 067-061-054 - Irish Hills Plaza 1 Recorded 07/19/2006V C r
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO
CITY CLERK'S OFFICE
CITY OF SAN LUIS OBISPO
990 PALM STREET
SAN LUIS OBISPO, CA 93422
JULIE RODEWALD SR...
San Luis Obispo County— Clerk/Recorder 711912006'
Recorded at the request of 2 :30 PN4
Public
Doc # : 2006050456 Titles: 1 Net/ 47
Fees 145.00
Taxes 0.00
Others 0.00
PAID $145.00
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT
THIS CONSERVATIONEASEMENT is made this day of V V / , 20 Olio by
Clinton R. Pearce and Connie E. Pearce, Trustees of the Clinton and Cohrhe Pearce Revocable
Trust (collectively, "Grantor ") in favor of the City of San Luis Obispo, a charter city and
municipal corporation of the State of California ( "Grantee ") with reference to the following
facts:
RECITALS
A. Irish Hills Plaza West, L.L.C. ( "Developer ") is the developer of that certain real property
in the City of San Luis Obispo, County of San Luis Obispo, State of California, commonly
referred to as Irish Hills Plaza 1 (the "Project ").
B. Grantor is the sole owner in fee simple of those portions of the Project legally described
on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated by this reference
(the "Property "), which consists of approximately 0.25 acre.
C. This Conservation Easement provides mitigation for certain impacts of the Project by
Developer pursuant to requirements of the United States Army Corps of Engineers' ( "ACOE ")
Section 404 Nationwide Permit, File No. 200600054 -HW and amendments thereto ( "Section
404 Permit "). Special Condition 4of the Section 404 Permit requires Developer record a
Conservation Easement on all mitigation sites. This Conservation Easement is intended and shall
be deemed to satisfy such part of Special Condition 4 as to the Property. The Property is and
will remain in a Natural Condition as defined herein and is intended to be preserved in its
natural, scenic, open condition to maintain its ecological, historical, visual and educational
values (collectively, "Conservation Values ").
D. Grantee is authorized to hold conservation easements pursuant to Civil Code Section
815.3. Specifically, Grantee is an entity identified in Civil Code Section 815.3 and otherwise
authorized to acquire and hold title to real property; and
E. Developer has agreed to enter into this Conservation Easement for the purpose of
undertaking certain obligations identified herein.
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F. The ACOE is the Federal agency charged with regulatory authority over discharges of
dredged and fill material in waters of the United States pursuant to Section 404 of the Clean
Water Act.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
In consideration of the above recitals and the mutual covenants, terms; conditions, and
restrictions contained herein, and pursuant to California law, including Civil Code Section 815,
et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in
perpetuity over the Property of the nature and character and to the extent hereinafter set forth
( "Conservation Easement "). This Conservation Easement shall run with the land and be
binding on Grantor's heirs, successors, administrators, assigns, lessees, and other occupiers or
users of the Property or any portion of it.
1. Purpose.
(a) The Purpose of this Conservation Easement is to ensure the Property will
be preserved in a Natural Condition, defined herein, in perpetuity and to prevent any use of the
Property that will materially impair or interfere with the Conservation Values of the Property
(the "Purpose "). Grantor intends that this Conservation Easement will confine the use of the
Property to such activities, including without limitation, those involving the preservation and
enhancement of native species and their habitat in a manner consistent with the habitat
conservation purposes of this Conservation Easement.
(b) The term "Natural Condition," as referenced in the preceding paragraph
and other portions of this Conservation Easement, shall mean the condition of the Property, as it
exists at the time this Conservation Easement is executed, as well as future enhancements or
changes to the Property that occur directly as a result of the following activities:
(1) Compensatory mitigation measures, including implementation,
maintenance, and monitoring activities (collectively, "Compensatory Mitigation ") required by
the Section 404 Permit and as described in the Final Habitat Mitigation and Monitoring Plan
dated June 30, 2006 ( "Mitigation Plan "), the cover page and Executive Summary of which are
attached as Exhibit "C;"
(2) In- perpetuity maintenance ( "Long -Term Maintenance "), that
occurs on the Property as described in Section 18 herein; or
(3) Activities described in Section 8 herein.
(c) Grantor certifies to ACOE and Grantee, that to Grantor's actual
knowledge, there are no structures or improvements existing on the Property at the time this
grant is executed. Grantor further certifies to ACOE and Grantee that to Grantor's actual
knowledge, there are no previously granted easements existing on the Property that interfere or
conflict with the Purpose of this Conservation Easement as evidenced by the Title Report
attached at Exhibit "D." The current Natural Condition is evidenced in part by the depiction of
the Property attached on Exhibit "E," showing all relevant and plottable property lines,
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easements, dedications, improvements, boundaries and major, distinct natural features such as
waters of the United States. Grantor has delivered further evidence of the Natural Condition to
Grantee and ACOE consisting of (1) an aerial photograph of theProperty at an appropriate scale
taken as close in time as possible to the date this Conservation Easement is executed; (2) an
overlay of the Property boundaries on such aerial photograph; and (3) on -site photographs
showing all man-made improvements or structures (if any) and the major, distinct natural
features of the Property.
(d) If a controversy arises with respect to the Natural Condition of the
Property, Grantor, Grantee, Developer, or ACOE as a third party beneficiary, or any designees or
agents of Grantor, Grantee, Developer, and ACOE, shall not be foreclosed from utilizing any and
all other relevant documents, surveys, photographs or other evidence or information to assist in
the resolution of the controversy.
(e) The term "Biological Monitor" shall mean an independent third -party
consultant with knowledge of aquatic resources in the San Luis Obispo City area and expertise in
the field of biology.
2. Grantee's Rights. To accomplish the Purpose of this Conservation Easement,
Grantor, its successor and assign hereby grants and conveys the following rights to Grantee.
These rights are also granted to ACOE or its designees as a third party beneficiary of this
Conservation Easement:
(a) To preserve and protect the Conservation Values of the Property; and
(b) To enter upon the Property at reasonable times in order to monitor
compliance with and to otherwise enforce the terms of this Conservation Easement; and
(c) To prevent any activity on or use of the Property that is inconsistent with
the Purpose of this Conservation Easement and to require the restoration of such areas or features
of the Property that may be damaged by any act, failure to act, or any use that is inconsistent
with the Purpose of this Conservation Easement; and
(d) All mineral, air, and water rights necessary to protect and to sustain the
biological resources of the Property, provided that any exercise of such rights by Grantee shall
not result in conflict with such Conservation Values; and
(e) All present and future development rights allocated, implied, reserved or
inherent in the Properties; such rights are hereby terminated and extinguished, and may not be
used on or transferred to any portion of the Property, nor any other property adjacent or
otherwise; and
(f) To enforce by means, including, without limitation, injunctive relief, the
terms and conditions of this Conservation Easement.
3. Developer's Rights. To accomplish the Purpose of this Conservation Easement as
described in Section 1, Grantor hereby grants to the Developer the following rights:
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(a) The right to enter the Property to conduct the activities required under the
Section 404 Permit and any amendments thereto, and the Mitigation Plan to implement the
Compensatory Mitigation requirements, including but not limited to the following activities: (1)
remove trash and debris; (2) excavate and regrade the surface as appropriate for detention and
flow of water for wetlands; (3) eradicate weeds and non - native plants; (4) install and maintain
irrigation system; (5) prepare the site for native seeding and planting, including amending soils;
(6) install native seeds and container plants; (7) maintain, restore and monitor the wetlands; (8)
erect fencing, signs and other markers to mark the boundaries of the Property; and
(b) Upon issuance of final approval from the ACOE of the success of
Developer's construction, maintenance and monitoring of mitigated areas pursuant to the
Mitigation Plan, Developer's right to enter the Property pursuant to Section 3(a), above, shall
cease.
4. Prohibited Uses. Any activity on or use of the Property inconsistent with the
Purpose of this Conservation Easement and not reserved as a right of Grantor is prohibited.
Without limiting the generality of the foregoing, the following uses by Grantor, Grantee;
Developer, and their respective guests, agents, assigns, employees, representatives, successors,
and third parties are expressly prohibited on the Property except as otherwise provided herein or
unless specifically provided for in the Section 404 Permit and any amendments thereto, the
Mitigation Plan, and any easements and reservations of rights recorded in the chain of title to the
Property at the time of this conveyance (as set forth on Exhibit D hereto):
(a) Supplemental watering except for habitat enhancement activities described in
Section 8(b);
(b) Use of herbicides, pesticides, biocides, fertilizers, or other agricultural chemicals
or weed abatement activities, except weed abatement activities necessary to control or remove
invasive, exotic plant species;
(c) Use of off -road vehicles and use of any other motorized vehicles except in the
execution of management duties;
(d) Livestock grazing or other agricultural activity of any kind;
(e) Recreational activities including, but not limited to, horseback riding, biking,
hunting or fishing;
(f) Residential, commercial, retail, institutional, or industrial uses;
(g) Any legal or de facto division, subdivision or portioning of the Property;
(h) Construction, reconstruction or placement of any building or other improvement,
billboard, or sign except those signs specifically allowed under Section 7(e) and Section 8(d);
(i) Dumping, depositing, or accumulating soil, trash, ashes, refuse, waste, bio- solids
or any other material;
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0) Planting, introduction or dispersal of non - native or exotic plant or animal species;
(k) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or
exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or
below the surface of the Property or granting or authorizing surface entry for any of these
purposes;
(1) Altering the surface or general topography of the Property, including but not
limited to building of roads or trails, paving or otherwise covering the Property with concrete,
asphalt or any other impervious material, and conducting flood control work;
(m) Removing, destroying, or cutting of trees, shrubs or other vegetation, except for
(1) emergency fire breaks as required by fire safety officials as set forth in Section 8(f), (2)
prevention or treatment of disease, (3) control of invasive species which threaten the integrity of
the habitat, (4) undertaking the required Mitigation Plan, or (5) activities described in Section 5, .
Section 6, Section 8 and Section 18
(n) Manipulating, impounding or altering any natural watercourse, body of water or
water circulation on the Property, and activities or uses detrimental to water quality, including
but not limited to degradation or pollution of any surface or sub- surface waters; and
(p) Fuel modification zones (defined as a strip of mowed land or the planting of
vegetation possessing low combustibility for purposes of fire suppression).
5. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as
described in Section I. Grantor, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass
by persons whose activities may degrade or harm the Conservation Values of the Property. In
addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under Section 2
of this Conservation Easement, including but not limited to Grantee's water rights; and
(b) Comply with the terms of this Conservation Easement and cooperate with
Grantee in the protection of the Conservation Values; and
(c) Repair and restore damage to the Conservation Easement directly caused
by Grantor, Grantor's guests, representatives, employees or agents, and third parties within
Grantor's control provided, however, Grantor, its successors or assigns shall not engage in any
repair or restoration work in the Property without first consulting with Grantee and ACOE; and
(d) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Conservation Easement, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes,
ordinances, rules, regulations, orders or requirements.
6. Grantee's Duties. To accomplish the Purpose of this Conservation Easement as
described in Section 1, Grantee, its successors and assigns shall:
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(a) Subject to the exceptions in Section 8, undertake all reasonable actions to
prevent any activity on or use of the Property that is inconsistent with the Purpose of this
Conservation Easement; and
(b) Perform annual compliance inspections, of the Property, and shall make
reports available to ACOE upon request; and
(c) Perform Long -Term Maintenance of the Property as described in Section
18 herein; and
(d) Repair and restore damage to the Conservation Easement directly caused
by Grantee, Grantee's guests, representatives, employees or agents, and third parties within
Grantee's control provided, however, Grantee, its successors or assigns shall not engage in any
repair or restoration work in the Property without first consulting with ACOE; and
(e) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Conservation Easement, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes,
ordinances, rules, regulations, orders or requirements.
(f) Set aside, hold, invest and. disburse adequate endowment funds in trust
solely for the purposes of preserving the Conservation Values of the Property under this
Conservation Easement in perpetuity. ACOE shall have the right to review and approve the
terms of the endowment agreement, and shall be a third party beneficiary of that agreement with
the right to review and approve any amendments; and
(g) Have a fiduciary duty to ensure that the endowment funds held in trust for
the Property is properly managed. The following principles of fiduciary duty shall apply:
(1) There shall be no commingling of the endowment funds with other
funds. Funds may be pooled for investment management purposes only.
(2) Grantee shall have a duty of loyalty and shall not use the
endowment funds for its own personal benefit.
(3) Grantee shall act as a prudent investor of the endowment funds.
(4) Grantee shall not delegate the responsibility for managing 'the
funds to a third party, but may delegate authority to invest the funds with Grantee's oversight.
Grantee shall act with prudence when delegating authority and in the selection of agents.
(5) Grantee shall have annual audit of the endowment performed by a
licensed CPA. Grantee shall submit the auditor's written report to ACOE upon request.
7. Developer's Duties. To accomplish the Purpose of this Conservation Easement as
described in' Section 1, Developer shall:
(a) Undertake construction, maintenance and monitoring of mitigated areas
pursuant to the Mitigation Plan until issuance of final approval from ACOE confirming that
Developer has successfully completed construction, maintenance and monitoring of mitigated
areas pursuant to the Mitigation Plan; and
(b) Comply with the terms of this Conservation Easement and cooperate with
Grantee in the protection of the Conservation Values; and
(c) Repair and restore damage to the Conservation Easement directly caused
by Developer, Developer's guests, representatives, employees or agents, and third parties under
the control of Developer; however, Developer, its successors or assigns shall not engage in any
repair or restoration work in the Property without first consulting with Grantee and ACOE; and
(d) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Conservation Easement, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes,
ordinances, rules, regulations, orders or requirements; and
(e) Install signs as described in Section 8; and
(f) Upon receipt of the final approval of the success of the mitigation from the
ACOE, Developer's duties under this Conservation Easement shall cease and Developer shall
have no further obligations whatsoever with respect to the Property.
8. Reserved Rights. Grantor reserves to itself, and to its personal representatives,
heirs, successors, and assigns, all other rights accruing from its ownership of the Property,
including the right to engage in or to permit or invite others to engage in all uses of the Property
that are consistent with the Purpose of this Conservation Easement, including the following uses:
(a) Access. Reasonable access through the Property to adjacent land over
existing roads, or to perform obligations or other activities permitted by this Conservation
Easement or that are required under the Section 404 Permit.
(b) Habitat Enhancement Activities. Enhancement of native plant
communities, including the right to plant trees and shrubs of the same type as currently existing
on the Property, so long as such activities do not harm the habitat types identified in the Section
404 Permit or Mitigation Plan. For purposes of preventing erosion and reestablishing native
vegetation, Grantor shall have the right to revegetate areas that may be damaged by the permitted
activities under this Section 6, naturally occurring events or by the acts of persons wrongfully
damaging the Natural Condition of the Property. Prior to any habitat enhancement activities,
Grantor shall have its Biological Monitor submit detailed plans to Grantee and ACOE for review
and written approval. Habitat enhancement activities shall not be in direct or potential conflict
with the preservation of the Natural Condition of the Property or the Purpose of this
Conservation Easement and shall be performed in compliance with all applicable laws,
regulations, and permitting requirements.
(c) Vegetation, Debris, and Exotic Plant Species Removal. Removal or
trimming of vegetation downed or damaged due to natural disaster, removal of man-made debris,
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removal of parasitic vegetation (as it relates to the health of the host plant) and non - native or
exotic plant species. Vegetation, debris, and exotic plant species removal shall not be in direct or
potential conflict with the preservation of the Natural Condition of the Property or the Purpose of
this Conservation Easement and shall be performed in compliance with all applicable laws,
regulations, and permitting requirements.
(d) Erection and Maintenance of Additional Informative SiQnage. Erection
and maintenance of signage and other notification features saying "Natural Area Open Space,"
"Protected Natural Area," or similar descriptions that inform persons of the nature and
restrictions on the Property. Prior to erection of such signage, Grantor shall have its Biological
Monitor submit detailed plans showing the location of such signs to Grantee and ACOE for
review and approval. The erection and maintenance of informative signage shall not be in direct
or potential conflict with the preservation of the Natural Condition of the Property or the Purpose
of this Conservation Easement and shall be performed in compliance with all applicable laws,
regulations, and permitting requirements.
(e) No Interference with Development of Adjoining Property.
Notwithstanding anything set forth herein to the contrary, nothing in this Conservation Easement
is intended nor shall be applied to in any way limit Grantor or any of Grantor's successors and
assigns from (1) constructing, placing, installing, and/or erecting any improvements upon the
portions of the Project not constituting the Property, (2) installing and/or maintaining the
subsurface infrastructure improvements, utility lines, landscaping (including irrigation and
runoff), landscape mitigation, and/or similar non - structural improvements within the Property,
and/or (3) developing adjoining property for any purposes, except as limited by any local, state
or federal permit requirements for such development and provided that for all of the above
clauses (1), (2) and (3) neither such activity nor any effect resulting from such activity amounts
to a use of the Property, or has an impact upon the Property, that is prohibited by Section 4
above.
(f) . Fire Protection. The right, in an emergency situation only, to maintain
firebreaks (defined as a strip of plowed or cleared land made to check the spread of a fire), trim
or remove brush, otherwise perform preventative measures required by the fire department to
protect structures and other improvements from encroaching fire. All other brush management
activities shall be limited to areas outside the Property.
Enforcement.
(a) Third Party Beneficiaries. Grantor, its successors and assigns, grant to
ACOE, U.S. Department of Justice, and State Attorney General a discretionary right to enforce
this Conservation Easement in a judicial or administrative action against any person(s) or other
entity(ies) violating or attempting to violate this Conservation Easement; provided, however, that
no violation of this Conservation Easement shall result in a forfeiture or reversion of title. The
ACOE, U.S. Department of Justice, and State Attorney General shall have the same rights,
remedies, and limitations as Grantee under this Section 9. The rights under this Section are in
addition to, and do not limit rights conferred in Section 2 above, the rights of enforcement
against Developer and its successors or assigns under the Section 404 Permit, or any rights of the
various documents created thereunder or referred to therein. The term "Party" means Grantor,
Grantee or Developer, as the case may be. The term "Agency" means ACOE, U.S. Department
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of Justice, and State Attorney General. Grantor, Grantee, Devel6per and any third party
beneficiary, when implementing any remedies under this easement, shall provide timely written
notice to each other of any actions taken under this section, including, but not limited to copies
of all notices of violation and related correspondence.
(b) Notice of Violation. In the event that either Party or its employees, agents,
contractors or invitees is in violation of the terms of this Conservation Easement or that a
violation is threatened, the non - violating Party and/or Agency may demand the cure of such
violation. In such a case, the non - violating Party and/or Agency shall issue a written notice to
the violating Party (hereinafter "Notice of Violation') informing the violating Party of the actual
or threatened violations and demanding cure of such violations. The Notice of Violation shall be
sent to the other Party and Agency listed under Section 16 of this Conservation Easement.
(c) Time to Cure. The violating Party shall cure the noticed violation within
thirty (30) days of receipt of said written Notice of Violation. If said cure reasonably requires
more than thirty (30) days, the violating Party shall, within the thirty (30) day period, submit to
the non - violating Party for review and approval a plan and time schedule to diligently complete a
cure. The violating Party shall complete such cure in accordance with the approved plan. If the
violating Party disputes the notice of violation, it shall issue a written notice of such dispute
(hereinafter "Notice of Dispute ") to the appropriate Party within thirty (30) days of receipt of
written notice of violation.
(d) Failure to Cure. If the violating party fails to cure the violation within the
time period(s) described in Section 9(c), above, or Section 9(e)(2), below, the non - violating
Party may bring an action at law or in equity in a court of competent jurisdiction to enforce
compliance by the violating Party with the terms of this Conservation Easement. In such action,
the non- violating Party may:
(1) Recover any damages to which they may be entitled for violation
by the violating Party of the terms of this Conservation Easement or for any injury to the
Conservation Values of the Properties. The non - violating Party shall first apply any damages
recovered to the cost of undertaking any corrective action on the Properties. Prior to
implementation of any remedial or restorative actions pursuant to this paragraph, ACOE shall be
consulted.
(2) Enjoin the violation by temporary or permanent injunction without
the necessity of proving either actual damages or the inadequacy of otherwise available legal
remedies.
(3) Obtain other equitable relief, including, but not limited to, the
restoration of the Property to the condition in which it existed prior to any such violation or
injury.
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(e) Notice of Dispute.
(1) If the violating Party provides the non - violating Party with a notice
of dispute, as provided herein, the non - violating Party shall meet and confer with the violating
Party at a mutually agreeable place and time, not to exceed thirty (30) days from the date that the
non - violating Party receives the notice of dispute. The non - violating Party shall consider all
relevant information concerning the disputed violation provided by the violating Party and shall
determine whether a violation has in fact occurred and, if so, whether the notice of violation and
demand for cure issued by the non - violating Party is appropriate in light of the violation.
(2) If, after reviewing the violating Party's notice of dispute,
conferring with the violating Party, and considering all relevant information related to the
violation, the non - violating Party determines that a violation has occurred, the non - violating
Party shall give the violating party notice of such determination in writing. Upon receipt of such
determination, the violating Party shall have fifteen (15) days to cure the violation. If said cure
reasonably requires more than fifteen (15) days, the violating Party shall, within the fifteen (15)
day period, submit to the non - violating Party for review and approval a plan and time schedule to
diligently complete a cure. The violating Party shall complete such cure in accordance with the
approved plan.
(0 Conflicting Notices of Violation.
(1) If any Party receives a notice of violation that is in material
conflict with one or more prior written notices of violation that have not yet been cured by the
Party (hereinafter "Active Notice(s) of Violation ") such that the conflict makes it impossible for
the Party to carry out the cure consistent with all prior Active Notices of Violation, the Party
shall give written notice (hereinafter "Notice of Conflict ") to the non - violating Party issuing the
later, conflicting Notice(s) of Violation. The Party shall issue said Notice of Conflict to the
appropriate non - violating Party within fifteen (15) days of the receipt of each such conflicting
Notice of Violation. A valid Notice of Conflict shall describe the conflict with specificity,
including a description of how the conflict makes compliance with all Active Notices of
Violation impossible.
(2) Upon issuing a valid Notice of Conflict to the appropriate non -
violating Party, as described above, the violating Party shall not be required to carry out the cure
described in the conflicting Notice or Notices of Violation until such time as the non - violating
Party responsible for said conflicting Notice(s) of Violation issue(s) a revised Notice of
Violation that is consistent with prior Active Notices of Violation. Upon receipt of a revised,
consistent Notice of Violation, the violating Party shall carry out the cure recommended in such
notice within the time period(s) described in Section 9(c) above. Notwithstanding Section 9(g),
failure to cure within said time period(s) shall entitle the non - violating Party to the remedies
described in Section 9(d) and Section 9(h).
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(3) The failure of the violating Party to issue a valid Notice of Conflict
within fifteen (15) days of receipt of a conflicting Notice of Violation shall result in a waiver of
the violating Party's ability to claim a conflict.
(g) Immediate Action. In the event that circumstances require immediate
action to prevent or mitigate significant damage to the Conservation Values of the Property, the
Party seeking enforcement pursuant to Section 9(b) above may immediately pursue all available
remedies, including injunctive relief, available pursuant to both this Conservation Easement and
state and federal law after giving the violating Party at least twenty four (24) hours' written
notice before pursuing such remedies. So long as such twenty-four (24) hours' notice is given,
the non - violating Party may immediately pursue all available remedies without waiting for the
expiration of the time periods provided for cure or notice of dispute as described in Section. 9(c).
The written notice pursuant to this paragraph may be transmitted to the violating Party by
facsimile and shall be copied to the other Party and Agency listed in Section 16 of this
Conservation Easement. The rights of the non - violating Party under this paragraph apply equally
to actual or threatened violations of the terms of this Conservation Easement. The violating
Party agrees that the remedies at law for any violation of the terms of this Conservation
Easement are inadequate and that the non - violating Party shall be entitled to the injunctive relief
described in this section, both prohibitive and mandatory, in addition to such other relief to
which they may be entitled, including specific performance of the terms of this Conservation
Easement, without the necessity of proving either actual damages or the inadequacy of otherwise
available legal remedies. The remedies described in this Section 9(g) shall be cumulative and
shall be in addition to all remedies now or hereafter existing at law or in equity, including but not
limited to, the remedies set forth in Civil Code Section 815, et seq., inclusive.
(h) Costs of Enforcement. Any costs incurred by a Party or Agency in
enforcing the terms of this Conservation Easement against another Party, including, but not
limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by a Party's
violation or negligence under the terms of this Conservation Easement shall be borne by the
violating Party.
(i) Enforcement Discretion. Enforcement of the terms of this Conservation
Easement by a Party shall be at the discretion of the Party, and any forbearance by such Party to
exercise its rights under this Conservation Easement in the event of any breach of any term of the
Conservation Easement by a Party or any subsequent transferee shall not be deemed or construed
to be a waiver by the non - violating Party of such terms or of any subsequent breach of the same
or any other term of this Conservation Easement or of any of the rights of the non - violating Party
under this Conservation Easement. No delay or omission by the non - violating Party in the
exercise of any right or remedy upon any breach by the violating Party shall impair such right or
remedy or be construed as a waiver. Further, nothing in this Conservation Easement creates a
non - discretionary duty upon the non - violating Party to enforce its provisions, nor shall deviation
from these terms and procedures, or failure to enforce its provisions give rise to a private right of
action against the non - violating Party by any third parties.
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0) Acts Beyond Grantor's Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury
to or change in the Properties resulting from:
(1) Any natural cause beyond Grantor's control, including without
limitation, fire not caused by Grantor, flood, storm, and earth movement;
(2) Any prudent action taken by Grantor under emergency conditions
to prevent, abate, or mitigate significant injury to persons and/or the Property resulting from such
causes;
(3) Acts by Grantee, ACOE, or their employees, directors, officers,
agents, contractors, or representatives; or
(4) Acts of third parties (including any governmental agencies) that
are beyond Grantor's control, except to the extent Grantor is obligated to repair and restore the
Properties pursuant to Section 5(c) above and so long as Grantor takes reasonable steps to
prevent prohibited uses of the Property.
Notwithstanding the foregoing, Grantor must obtain any applicable governmental permits
and approvals for any activity or use permitted by this Conservation Easement, and undertake
any activity or use in accordance with all applicable federal, state, local and administrative
agency statutes, ordinances, rules, regulations, orders or requirements.
(k) Acts Beyond Grantee's Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantor or ACOE to bring any action against Grantee for
any injury to or change in the Properties resulting from:
(1) Any natural cause beyond Grantee's control, including without
limitation, fire not caused by Grantee, flood, storm, and earth movement;
(2) Any prudent action taken by Grantee under emergency conditions
to prevent, abate, or mitigate significant injury to persons and/or the Property resulting from such
causes;
(3) Acts by Grantor, ACOE, or their employees, directors, officers,
agents, contractors, or representatives; or
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(4) Acts of third parties (including any governmental agencies) that
are beyond Grantee's control, except to the extent Grantee is obligated to repair and restore the
Property pursuant to Section 6(d) above and so long as Grantee takes reasonable steps to prevent
prohibited uses of the Property.
Notwithstanding the foregoing, Grantee must obtain any applicable governmental permits
and approvals for any activity or use permitted by this Conservation Easement, and undertake
any activity or use in accordance with all applicable federal, state, local and administrative
agency statutes, ordinances, rules, regulations, orders or requirements.
(1) Use of Endowment. If a court of competent jurisdiction determines that
there has been a violation of any term of this Conservation Easement:
(1) Funds from the Endowment which was created to manage the.
Property cannot be used to pay damages awarded as part of the judgment;
(2) Funds from the Endowment cannot be used to defend an
enforcement action;
(3) Funds from the Endowment which was created to manage the
Property cannot be used to restore the Property to the condition in which it existed prior to the
violation; and
(4) In lieu of recovering monetary damages against Grantee from any
source, ACOE may direct the role of Grantee and related management responsibility to a new
entity, which shall be a public agency or non - profit concerned with conservation.
10. Access. This Conservation Easement does not convey a general right of access to
the public or a general right of access to the Property. In accordance with Section 7(e),
Developer, its successors or assigns shall install signage at all likely points of entry informing
persons of the nature and restrictions on the Property. This Conservation Easement will allow for
access to the Property by the ACOE and third -party easement holders of record at the time of this
conveyance at locations designated in easements and reservations of rights recorded in the chain
of title to the Property at the time of this conveyance.
11. Costs and Liabilities.
(a) Grantor, its successors and assigns retain all responsibilities and shall bear
all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance
of the Property. Grantor agrees that neither Grantee nor ACOE shall have any duty or
responsibility for the operation, upkeep, or maintenance of the Property (except as provided in
Section 18), the monitoring of hazardous conditions thereon, or the protection of Grantor, the
public or any third parties from risks relating to conditions on the Property. Grantor remains
solely responsible for obtaining any applicable governmental permits and approvals for any
activity or use permitted by this Conservation Easement, and any activity or use shall be
undertaken in accordance with all applicable federal, state, local and administrative agency
statutes, ordinances, rules, regulations, orders and requirements.
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• •
(b) Hold Harmless. Grantor shall hold harmless, protect and indemnify
Grantee and its directors, officers, elected officials, employees, agents, contractors, and
representatives and the heirs, personal representatives, successors and assigns of each of them
(each a "Grantee Indemnified Party" and, collectively, "Grantee's Indemnified Parties ") and
third party beneficiary and its directors, officers, employees, agents, contractors, and
representatives and the heirs, personal representatives, successors and assigns of each of them
(each a "Third Party Beneficiary Indemnified Party" and, collectively, "Third Party
Beneficiary Indemnified Parties ") from and against any and all liabilities, penalties, costs,
losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts'
fees), causes of action, claims, demands, orders, liens or judgments (each a "Claim" and,
collectively, "Claims "), arising from or in any way connected with: (a) injury to or the death of
any person, or physical damage to any property, resulting from any act, omission, condition, or
other matter related to or occurring on or about the Property; regardless of cause, except that (i)
this indemnification shall be inapplicable to Grantee's Indemnified Parties with respect to any
Claim due solely to the negligence of Grantee or any of its employees and (ii) this
indemnification shall be inapplicable to Third Party Beneficiary Indemnified Parties with respect
to any Claim due solely to the negligence of third parry beneficiaries or any of their employees;
(b) the obligations specified in Sections 5 and 11; and (c) the existence or administration of this
Conservation Easement. If any action or proceeding is brought against any of the Grantee
Indemnified Parties and/or Third Party Beneficiary Indemnified. Parties by reason of any such
Claim, Grantor shall, at the election of and upon written notice from Grantee or third party
beneficiary or beneficiaries, defend such action or proceeding by counsel reasonably acceptable
to Grantee and/or the applicable Third Party Beneficiary Indemnified Party or Parties or
reimburse the Grantee for attorneys fees and/or applicable third party beneficiary or beneficiaries
for all charges incurred for services of the U.S. Department of Justice in defending the action or
proceeding.
12. Taxes, No Liens. Grantor, its successors and assigns shall pay before delinquency
all taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Property by competent authority, including any taxes imposed upon, or incurred as a result of,
this Conservation Easement, and shall furnish Grantee or ACOE with satisfactory evidence of
payment upon request. Grantor, its successors and assigns shall keep Grantee's interest in the
Property free from any liens.
13. Condemnation. The Purpose of the Conservation Easement is presumed to be the
best and most necessary public use as defined in Civil Procedure Code Section 1240.680
notwithstanding of Civil Procedure Code Sections 1240.690 and 1240.700. Nevertheless, if the
Property is taken, in whole or in part, by exercise of the power of eminent domain, Grantor and
Grantee shall be entitled to compensation in accordance with applicable law.
14. Subsequent Transfers.
(a) By Grantee. This Conservation Easement is transferable by Grantee, but
Grantee may assign its rights and delegate obligations under this Conservation Easement only to
an entity or organization authorized to acquire and hold conservation easements pursuant to Civil
Code Section 815.3 (or any successor provision then applicable) and only with the prior written
approval of Grantor and ACOE. Grantee shall record the assignment in the county where the
Property is located. Along with such transfer, Grantee shall transfer any funds remaining in the
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E
•
Endowment established under this Conservation Easement, after deducting reasonable costs of
transfer and the cost of satisfying all outstanding contracts and obligations.
(b) By Grantor.
(1) The covenants, conditions, and restrictions contained in this
Conservation Easement are intended to and shall run with the land and bind all future owners of
any interest in the Property. Grantor, its successor or assign agrees to (i) incorporate by
reference to the title of and the recording information for' this Conservation Easement in any
deed or other legal instrument by which each divests itself of any interest in all or a portion of
the Property, including, without limitation, a leasehold interest and (ii) give actual notice to any
such transferee or lessee of the existence of this Conservation Easement. Grantor, its successor
and assign agrees to give written notice to Grantee and ACOE of the intent to transfer any
interest at least forty -five (45) days prior to the date of such transfer. The failure of Grantor, its
successor or assign to perform any act provided in this Section 14 shall not impair the validity of
this Conservation Easement or limit its enforceability in any way.
(2) From and after the date of any transfer of all or any portion of the
Property by Grantor and each transfer thereafter, (i) the transferee shall be deemed to have
assumed all of the obligations of Grantor as to the portion transferred, as set forth in this
Conservation Easement, (ii) the transferee shall be deemed to have accepted the restrictions
contained herein as to the portion transferred, (iii) the transferor, as applicable, shall have no
further obligations hereunder except for any obligations pursuant to Section 22(g), and (iv) all
references to Grantor in this Conservation Easement shall thereafter be deemed to refer to such
transferee.
15. Additional Interests. Grantor, its successors and assigns shall not grant additional
easements or other interests in the surface or subsurface of the Property (other than a security
interest that is subordinate to this Conservation Easement) without the prior written authorization
of Grantee and ACOE, which consent shall not be unreasonably withheld. It shall be reasonable
for Grantee and ACOE to withhold consent for the grant of additional easements or other interest
in the Property that are in direct or potential conflict with the preservation of the Natural
Condition of the Property as defined in Section 1(b) of this Conservation Easement. Grantor or
its successors and assigns shall record any additional easements or other interests in the Property
approved by Grantee and ACOE in the official records of San Luis Obispo County, California
and shall provide a copy of the recorded document to Grantee and ACOE.
16. Notices. All notices, demands, requests, consents, approvals, or communications
from one party to another shall be personally delivered or sent by facsimile to the persons set
forth below or shall be deemed given five (5) days after deposit in the United States mail,
certified and postage prepaid, return receipt requested, and addressed as follows, or at such other
address as any Party may from time to time specify to the other parties in writing:
To Grantor: Madonna Pearce Partnership
C/o Madonna Enterprises
284 Higuera Street
San Luis Obispo, California 93401
FAX: 805 -541 -3067
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0
To Grantee: City Administrator
City of San Luis Obispo
990 Palm Street
San Luis Obispo, California 93401
FAX: 805- 781 -7109
To Developer: Irish Hills Plaza West, LLC
284 Higuera Street
San Luis Obispo, CA 93401
FAX: 805 -541 -3067
With a copy to: District Counsel
U.S. Army Corps of Engineers
Los Angeles District
915 Wilshire Boulevard, Room 1535
Los Angeles, California 90017 -3401
FAX: 213- 452 -4217
i�
The parties agree to accept facsimile signed documents and agree to rely upon such
documents as if they bore original signatures. Each party agrees to provide to the other parties,
within seventy -two (72) hours after transmission of such a facsimile, the original documents that
bear the original signatures.
17. Amendment. Grantor and Grantee and Developer, while a party to this
Conservation Easement, may amend this Conservation Easement only by mutual written
agreement and with the written consent of ACOE. Any such amendment shall be consistent with
the Purpose of this Conservation Easement and shall not affect its perpetual duration. Grantor or
its successors and assigns shall record any amendments to this Conservation Easement approved
by ACOE in the official records of San Luis Obispo County, California and shall provide a copy
of the recorded document to Grantee and ACOE.
18. Long -Term Maintenance.
(a) Grantee's Responsibilities for Maintenance and Management. Grantee, its
successors and assigns shall be responsible for monitoring for compliance with this Conservation
Easement, and in- perpetuity, ongoing, long -term maintenance and management of the Property.
Such long -term maintenance and management shall consist of the following activities: (1)
annual removal of trash or man -made debris; (2) maintenance of signage and other notification
features, as needed; and (3) invasive weed control. Such activities shall be limited to available
endowment funding described in Section 19, below.
(b) Restoration Responsibilities. Grantor, Grantee, their successors and
assigns shall each individually be obligated to repair, remediate, or restore the Property damaged
by any activities prohibited by Section 4 herein for which it is responsible.
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• •
(c) Annual Reporting. Grantee, its successors and assigns shall prepare an
annual monitoring and maintenance report documenting activities performed under Sections
16(a)(1) -(3) above, and shall make such report available to Grantor and ACOE upon request or
as required.
(d) Grantor Restoration. When activities are performed pursuant to a
violation of Section 4 herein that are the obligations and responsibilities of Grantor, Grantee, its
successors and assigns, shall retain, at Grantor's expense, a qualified Biological Monitor to
prepare a Restoration Plan and to oversee /monitor such restoration activities. Grantee shall have
its Biological Monitor submit a draft Restoration Plan to Grantor and ACOE for review and for
ACOE written approval prior to its implementation. Upon completion of restoration as specified
in the approved Restoration Plan, Grantee shall have a Biological Monitor prepare a detailed
monitoring report, and Grantee shall make the report available to Grantor and ACOE within
thirty (30) days of completion of restoration activities. Grantee, its successors or assigns and
Biological Monitor shall sign the monitoring report, and the report shall document the Biological
Monitor's name and affiliation, dates Biological Monitor was present on -site, activities observed
and their location, Biological Monitor's observations regarding the adequacy of restoration
performance by the Grantee, its successors or assigns, or its contractor in accordance with the
approved Restoration Plan, corrections recommended and implemented. Grantor shall be
responsible for compensating and/or reimbursing. Biological Monitor and Grantee for all
reasonable and ordinary expenses incurred by them in discharging their respective
responsibilities under this subsection within thirty (30) days of invoice.
(e) Grantee Restoration. When activities are performed pursuant to a
violation of Section 4 herein that are the obligations and responsibilities of Grantee, Grantee, its
successors and assigns, shall retain, at Grantee's expense, a qualified Biological Monitor to
prepare a Restoration Plan and to oversee /monitor such restoration activities. Grantee shall have
its Biological Monitor submit a draft Restoration Plan to Grantor and ACOE for review and for
ACOE written approval prior to its implementation. Upon completion of restoration as specified
in the approved Restoration Plan, Grantee shall have a Biological Monitor prepare a detailed
monitoring report, and Grantee shall make the report available to Grantor and ACOE within
thirty (30) days of completion of restoration activities. Grantee, its successors or assigns and
Biological Monitor shall sign the monitoring report, and the report shall document the Biological
Monitor's name and affiliation, dates Biological Monitor was present on -site, activities observed
and their location, Biological Monitor's observations regarding the adequacy of restoration
performance by the Grantee, its successors or assigns, or its contractor in accordance with the
approved Restoration Plan, corrections recommended and implemented. Grantee shall be
responsible for all reasonable and ordinary expenses incurred by it in discharging its
responsibilities under this subsection.
19. Endowment. Developer shall transfer to the Grantee upon recording of the
Conservation Easement a certain sum agreed upon and calculated using a Property Analysis
Record for the purpose of fulfilling Grantee's obligations under this Conservation Easement,
including quarterly monitoring of the Property.
20. Recordation. Grantor shall promptly record this instrument in the official records
of San Luis Obispo County, California and immediately notify Grantee and ACOE through the
mailing of a conformed copy of the recorded easement.
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21. Estoppel Certificate. Upon request, Grantee shall within fifteen (15) days execute
and deliver to Grantor, its successors and assigns any document, including an estoppel
certificate, which certifies compliance with any obligation of Grantor, its successors and assigns
contained in this Conservation Easement and otherwise evidences the status of this Conservation
Easement as may be requested by Grantor, its successors and assigns.
22. General Provisions.
(a) Controlling Law. The laws of the United States and the State of California
shall govern the interpretation and performance of this Conservation Easement.
(b) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of and to effect
the purposes of this Conservation Easement and the policy and purpose set forth in California
Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the purposes of this Conservation Easement that would render the
provision valid shall be favored over any interpretation that would render it invalid..
(c) Severability. If a court of competent jurisdiction voids or invalidates on
its face any provision of this Conservation Easement Deed, such action shall not affect the
remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or
invalidates the application of any provision of this Conservation Easement Deed to a person or
circumstance, such action shall not affect the application of the provision to other persons or
circumstances.
(d) Entire Agreement. This instrument together with the attached exhibits and
any documents referred to herein sets forth the entire agreement of the parties with respect to the
Conservation Easement and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Easement. No alteration or variation of this instrument
shall be valid or binding unless contained in an amendment in accordance with Section 17.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto
and their respective personal representatives, heirs, successors, and assigns and shall constitute a
servitude running in perpetuity with the Property. The covenants hereunder benefiting Grantee
shall also benefit the ACOE as a third party beneficiary.
(g) Termination of Rights and Obligations. A party's rights and obligations
under this Conservation Easement shall terminate upon transfer of the party's interest in the
Conservation Easement or Property (respectively), except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
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0 0
(i) Counterparts. The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be controlling.
0) Exhibits. All Exhibits referred to in this Easement are attached and
incorporated herein by reference.
(k) Subordination. Grantor hereby represents to Grantee that, as of the date of
this Conservation Easement, the Property is not encumbered with any mortgage, deed of trust or
other monetary encumbrance except for liens for non- delinquent real property taxes and
assessments.
(1) No Hazardous Materials Liability. Grantor represents and warrants that it
has no knowledge of any release or threatened release of Hazardous Materials (defined below) or
underground storage tanks existing, generated, treated, stored, used, released, disposed of,
deposited or abandoned in, on, under, or from the Property, or transported to or from or affecting
the Property. Without limiting the obligations of Grantor under Section 11, Grantor hereby
releases and agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties and
the Third Party Beneficiary Indemnified Parties (defined in Section 11) against any and all
Claims (defined in Section 11 ) arising from or connected with any Hazardous Materials present,
alleged to be present, or otherwise associated with the Property at any time, except that (i) this
release and indemnification shall be inapplicable to the Grantee Indemnified Parties with respect
to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents and
(ii) this release and indemnification shall be inapplicable to the Third Party Beneficiary
Indemnified Parties with respect to any Hazardous Materials placed, disposed or-released by
third party beneficiaries, their employees or agents. This release and indemnification includes,
without limitation, Claims for (i) injury to or death of any person or physical damage to any
property; and (ii) the violation or alleged violation of, or other failure to comply with, any
Environmental Laws (defined below). If any action or proceeding is brought against the Grantee
and/or any of the Third Party Beneficiary Indemnified Parties by reason of any such Claim,
Grantor shall, at the election of and upon written notice from Grantee and/or the applicable third
party beneficiary or beneficiaries, defend such action or proceeding by counsel reasonably
acceptable to the Grantee and/or applicable Third Party Beneficiary Indemnified Party or Parties
or reimburse the Grantee for attorneys fees and/or applicable third party beneficiary or
beneficiaries for all charges incurred for the services of the United States Department of Justice
in defending the action or proceeding.
Despite any contrary provision of this Conservation Easement, the parties do not intend
this Conservation Easement to be, and this Conservation Easement shall not be, construed such
that it creates in or gives to Grantee any of the following:
(1) The obligations or liabilities of an "owner" or "operator," as those
terms are defined and used in Environmental Laws (defined below), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA "); or
-19-
•
•
(2) The obligations or liabilities of a person described in 42 U.S.C.
Section 9607(a)(3) or (4); or
(3) The obligations of a responsible person under any applicable
Environmental Laws; or
(4) The right to investigate and remediate any Hazardous Materials
associated with the Property; or
(5) Any control over Grantor's ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associated with the Property.
The term "Hazardous Materials" includes, without limitation, (a) material that is
flammable, explosive or radioactive; (b) petroleum products, including by- products and fractions
thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials defined in CERCLA; Resource Conservation and Recovery Act (42 U.S.C. 6901 et
seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the
Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the
Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and
in the regulations adopted and publications promulgated pursuant to them, or any other
applicable federal, state or local laws, ordinances, rules; regulations or orders now in effect or
enacted after the date of this Conservation Easement.
The term "Environmental Laws" includes, without limitation, any federal, state, local or
administrative agency statute, ordinance, rule, regulation, order or requirement relating to
pollution, protection of human health or safety, the environment or Hazardous Materials.
Grantor represents, warrants and covenants to Grantee that Grantor's activities upon and use of
the Property will comply with all Environmental Laws.
IN WITNESS WHEREOF Grantor, Grantee and Developer have executed this
Conservation Easement the day and year first above written and have agreed to be bound by the
terms and provisions hereof.
GRANTOR:
Madonna
Lonnie tJ. Pearce, Partner
DEVELOPER:
Irish Hills Plaza West LLC
-20-
B
PL�
Clinton R. Pearce, Vice President
By: CJ _
Connie E. Pearce. Vice President
-21 -
•
•
CERTIFICATE OF ACCEPTANCE
* * * * * * * * * * **
THIS IS TO CERTIFY that the interest in real property conveyed by the DEED OF
CONSERVATION EASEMENT dated July 18, 2006, by and between Clinton R. Pearce and
Connie E. Pearce, Trustees of the Clinton and Connie Pearce Revocable Trust, as Sole
Proprietors (collectively, "Grantor"), and the CITY OF SAN LUIS OBISPO, a municipal
Corporation ( "Grantee "), is hereby accepted by the undersigned officer on behalf of the City
Council pursuant to authority conferred by Resolution No. 5370 (1984 Series) recorded June
15, 1984, in Volume 2604, Official Records, Page 878, San Luis Obispo County, California,
and Grantor hereby consents to recordation thereof by its duly authorized officer or his agent.
Date: TO 8 2006
ATTEST:
Audrey'' per,', Clerk
-22-
CITY OF SAN LUIS OBISPO
by:
David F. Romero, Mayor
0 9
STATE OF CALIFORNIA
COUNTY OF 5,�r-' u1+ S 0 jl S?° } SS.
On "°(.0 before me,
6 s s personally appeared
r c-oN 1-',
personally kno to me (or proved to me on the basis of satisfactory evidence) to the person
w ose names is /d" subscribed to the ithin instrument and owledged to me t
he /she/ a execute the same in his/her / authorized capacity es and that by his/her /A
signatur s on the instrument the perso or the entity upon be alf of which the perso (s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature N✓
STATE OF CALIFO
OF
On
personall known to me (or proved
whose nam (s) is /are subscribed t
he /she /they a cuted the same in his
signature(s) on he instrument the p
acted, executed thV instrument.
WITNESS my hand Aqd official seal.
Signature,
SS.
2 Hpy1 PIUR®UE
Commbdon #F 1512075 y
(+ ow, PubW - CWwrdo 5
-� San lids ObbM County
my Comm. Exl*es Sep 6.2008
before me,
personally appeared
me on the basis of satisfacto )'k evidence) to the person(s)
the within instrument and knowledged to me that
so�/their authorized capacity(ies), d that by his/her /their
s), or the entity upon behalf which the person(s)
-23-
0 0
Exhibit A
Legal Description of Property
-24-
Exhibit "A"
AREA 7 CONSERVATION EASEMENT
Legal Description
That parcel of land in the County of San Luis Obispo, State of California, being a portion of Lots 17 and 49 of the
subdivisions of the ranchos Canada de Los Osos and La Laguna, as surveyed by Jas. T. Stratton, according to that
map filed in Book "A ", at Page 83 of Maps in the office of the Recorder for said County, more particularly
described as follows:
Commencing from City of San Luis Obispo, Primary Horizontal Control Network Station #8217, being a pin in
concrete in monument well at the centerline intersection of Los Osos Valley Road and Diablo Road, State Plane
Coordinate, Lone 5 values, in Survey Feet, Northing: 2,294,411.825 and Easting: 5,754,942.757, North American
Datum of 1983, Epoch 1991.35 (1992 adjustment) as converted according to the published values listed by the City
of San Luis Obispo Public Works Department, Engineering Division, and viewed on the World Wide Web at
www. slocity .org/nublicworks/surveyine.aso;
Thence, N 16° 23' 11" W, 5561.14 feet to the East confer of said Lot 17 (S -201) marked by a chiseled cross in
concrete on top of the westerly culvert headwall as shown on Parcel Map CO- 70-76, filed in Book 5, at Page 13 of
Parcel Maps in the office of the Recorder for said County, referred to hereinafter as Point "C", being S 69° 36' 50"
E, 2766.58 feet from a V iron pipe with tag stamped LS 2391 marking the corner common to Lots 17, 18, 46 and
49 (S -196) of said subdivisions of the ranchos Canada de Los Osos and La Laguna;
Thence, S 71° 08'15" W, 1454.12 feet to Point "E" on the northerly boundary of that Conservation Easement
described as "Area 5" in Document# 2005071748 of Official Records filed in the office of the Recorder for said
County;
Thence, on the northwesterly and southwesterly boundary of said "Area 5 ", S 45° 41'25" W, 202.46 feet (1,88);
Thence, S 35° 42' 16" W, 97.82 feet (L89);
Thence, S 46° 54' 22" W, 101.55 feet (L77)
Thence, S 46° 03' 33" E, 82.60 feet (1,78) to the True Point of Beginning referred to here as Point "F";
Thence, leaving the southwesterly boundary of said "Area 5 ", S 430 56' 27" W, 120 feet (L90);
Thence, S 46° 03' 33" E, 90.00 feet (L91);
Thence, N 43° 56' 27" E, 120.00 feet (L92);
Thence, N 46° 03' 33" W, 90.00 feet (1,93) to a point of beginning;
"Land Area 7" contains 0.25 acres.
Bearings shown hereon are based. upon the World Geodetic System of 1984 (WGS84) reference frame as
determined from GPS observations obtained in November 2004, and constrained to California State Plane
Coordinate System, Zone 5, at the above referenced geodetic control monument, to convert the herein above grid
bearings to geodetic bearings rotate counter - clockwise V 32' 26.26 ", and to obtain ground level distances multiply
the herein above described grid distances by 1.000037396.
Description
Prepared by: A 16 �AK� S
D S. Hutcherson, LS 513 tense renewal 6130/07) Q
� .Hilt �#y
Date: ZA 2 ` by
t �
NO 5139
Page T of 1
F: \pM'\2004\041038 1SurveylDesigo\Master Drawings\Legal Descriptions44rea 7 Conservation Easanent. doc^
-25-
Exhibit B
Map of Property
[See Attached]
-26-
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Exhibit C
Mitigation Plan
[See Attached]
WE
U
0
9
Irish Hills Plaza West
San Luis Obispo County, California
FINAL
HABITAT MITIGATION AND
MONITORING PLAN
Prepared for:
Mr. Clint Pearce
Irish Hills Plaza West, LLC
284 Higuera Street
San Luis Obispo, California 93401
Prepared by:
MORxo.
G INC
Environmental Services
June 30, 2006
-29-
Irish Hills Plaza West
San Luis Obispo County, California
HABITAT MITIGATION AND MONITORING PLAN
EXECUTIVE SUMMARY
The Habitat Mitigation and Monitoring Plan has been prepared to mitigate project impacts within Army
Corps of Engineers (ACOE), Regional Water Quality Control Board ( RWQCB), and California
Department of Fish and Game (CDFG) jurisdiction resulting from implementation of the Irish Hills Plaza
West Project (Project). Although the project is located on Los Osos Valley Road near Costco and Home
Depot, the mitigation area will be located off -site on Boysen Ranch, approximately 1.8 miles northwest of
the project site. Boysen Ranch has been utilized for two prior mitigation projects: Home Depot/Fromm
Ranch Project (2002) and Costco/Calle Joaquin Road Realignment Project (2005). This HMMP outlines
the methods and procedures that will be implemented on the Boysen Ranch mitigation site for the Irish
Hills Plaza West Project and has been designed to parallel the Calle Joaquin Road Realignment HMMP.
The proposed project (Irish Hills Plaza West) will construct a new retail shopping complex and associated
parking areas. The project is adjacent to an unnamed drainage that contains ACOE, CDFG and RWQCB
jurisdictional areas. The drainage runs parallel to the west side of Los Osos Valley Road (LOVR) and
receives flows from the commercial facilities. Approximately 4,399 square feet (0.101 acre) of the
existing drainage is proposed for disturbance. Project activities that will impact the drainage include the
extension of an existing culvert at the Froom Ranch Way crossing and the construction of a new culvert
crossing. The Froom Way culvert extension will allow the construction of a business sign and the new
culvert crossing will allow for vehicle access to the shopping center.
The goal of the HMMP is to provide a plan to mitigate for lost functions and values associated with
impacts to jurisdictional waters of the U.S. This will be accomplished by creating wetlands off site on the
Boysen Ranch. The mitigation project will create a new 0.06 acre wetland adjacent to the existing
seasonal freshwater marsh wetlands that were created in 2002 and 2005. The creation of wetlands will
mitigate for both temporary and permanent impacts, as follows:
a. Temporary Wetlands. To mitigate for the temporary impacts, the applicant proposes to restore
0.081 acre (3,528 square feet) of wetland and associated upland banks on -site. Temporary
impacts to seasonal freshwater marsh and upland habitats will be restored at a 1:1 ratio by
installing brown - headed rush and cattail divisions in the thalweg of the drainage. Impacted areas
located above the ordinary high waterline will be seeded with a native seed mix which will
include: deer grass, coyote brush, meadow barley, blue wild rye, annual lupine, purple needle
grass, fescue, and creeping wild.rye.
b. Permanent Wetlands. To mitigate for the permanent impacts to jurisdictional wetland, the
applicant proposes to create 0.06 acres (2,614 square feet) of seasonal freshwater marsh wetland
off -site on the Boysen Ranch. In addition, the applicant will restore (on -site) 0.043 acre (1,873
square feet) of permanently impacted upland habitat. Permanent impacts to seasonal freshwater
marsh will be mitigated at a 3:1 ratio on Boysen Ranch and the created seasonal freshwater marsh
wetland would be planted with seed and divisions of perennial plants. Cattail, salt grass, and
brown - headed rush would be planted from divisions from plants found in existing wetland areas
of Boysen Ranch and the Irish Hills Plaza West site. The area would also be seeded with
creeping wild rye grass and low barley.
-30-
Exhibit D
Title Report
[See Attached]
-31-
L
PRELEM[ NARY TITLE REPORT
•
Cuesta Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date
hereof, a Policy or Policies of Title Insurance of Stewart Title Guaranty Company describing the land
and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by
reason of any defect, lien or encumbrance not shown or referred to as an Exception on Schedule B or not
excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy
forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in
Exhibit "A" attached Copies of the Policy forms should be read. They are available from the office
which issued this report.
Please read the exceptions shown or referred to below and the Exceptions and Exclusions set forth in
the attached Exhibit "A "of this report carefully. The exceptions and exclusions are meant to provide
you with notice of matters which are not covered under the terms of the title insurance policy and
should be carefully considered It is important to note that this Preliminary Report is not a written
representation as to the condition of title and may not list all liens, defects and encumbrances
affecting title to this land
This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating
the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability
be assumed prior.to the issuance of a policy of title insurance, a Binder or Commitment should be
requested
Marcus Marmon.
Title Officer
Authorized Signatory
File Number: t6800009
q UESTA
InE
COMPANY 715 Tank Farm Road, #120 • San Luis Obispo, CA 93401 • (805) 544-1860 • FAX (805) 541 -1769
PRELIMINARY REPORT
TITLE OFFICER: Marcus Harmon
TO: Madonna Construction
100 Madonna Rd.
San Luis Obispo, California 93405
ATTN: Clint Pearce
PHONE NUMBER: (805) 543 -0300
SHORT TERM RATE: Yes
Your Reference : t6800009
Property Address:, ,
EFFECTIVE DATE: Thursday, June 29, 2006 at 7:30 A.M..
The form of Policy or Policies of title insurance contemplated by this report is:
PRELIMINARY TITLE REPORT
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED
TO COVERED BY THIS REPORT IS:
A Fee
2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
Clinton R. Pearce and Connie E. Pearce, Trustees of the Clinton and Connie Pearce Revocable
Trust dated 9/15/03; as to an undivided 1%, and Pearce Madonna Partnership, a California
Limited Partnership, as to an undivided 99% interest
3. THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF SAN
LUIS OBISPO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF
7/10/2006
Page 1 of 8
n
LEGAL DESCRIPTION
0
.File Number: t6800009
A parcel of land in the County of San Luis Obispo, State of California, described as follows:
Commencing at a 3" x 3" stake marked S 198 set in the most Southerly corner of Lot 49 of the Ranchos
Canada de Los Osos and La Laguna, according to Map recorded in Book A, Page 83 of Maps, in the
County of San Luis Obispo, State of California, and entitled "Map of the Subdivisions of the Ranchos
Canada de Los Osos and La Laguna, San Luis Obispo County, California, Surveyed by Jas. T. Stratton
May 1868' ;
Thence North 26 °05' East, 2,019.03 feet along the Easterly line of said Lot 49 and Lot 17 of said Rancho
to a.3" x 3" stake S 201 the most Easterly comer of said Lot 17;
Thence North 31 °02' West, 1,628.13 feet along the Northeasterly line of said Lot 17 to a 3" x 3" stake;
Thence South 46 °22' West, 3,190.90 feet across said Lot 17 and Lot 49 to a 3" x 3" stake set on the
Southerly line of said Lot 49;
Thence South 66 °00' East, 2,475.13 feet along the Southerly line of said Lot 49 to the Point of Beginning
and being a part of said Lot 17 and 49 of the aforementioned Ranchos.
EXCEPTING THEREFROM that portion of said land described in the Deed to the County of San Luis
Obispo, recorded October 19, 1970 in Book 1589, Page 536 of Official Records and in Final Order of
Condennnation, a certified copy of which recorded April 28, 1983 in Book 2481, Page 714 of Official
Records.
ALSO EXCEPTING THEREFROM 50% of all oil and minerals in and under said land, as reserved by.
Raymond E. Boysen and Mabel E. Boysen, Husband and Wife, in Deed recorded December 1, 1975 in
Book 1865, Page 812 of Official Records.
APN: 067,061,054
End of Legal Description
Page 2 of 8
0
SCHEDULE B
•
File Number: t6800009
At the date hereof, exceptions to coverage in addition to the printed exceptions and exclusions contained
in said policy or policies would be as follows:
1. Property taxes, which are a lien not yet due and payable, including any assessments collected with
taxes, to be levied for the fiscal year 2006 - 2007 which are a lien not yet payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5
(commencing with Section 75) of the revenue and taxation code of the State of California.
3. An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: Union Oil Company of California
Purpose: Cathodic pipe protection system, connected to one or more pipe
lines, which system consists of the following: electrical rectifier
mounted on a pole; buried pipe anode; metallic conductors
constructed underground between said rectifier, pipelines,
conductors constructed underground between said rectifier, pipe
lines and anode; insulators and any and all other necessary
fixtures attached to said Cathodic pipe protection system
Recorded: April 22, 1953, Book 706, Page 588, of Official Records.
Affects: Portion of said land
No representation is made as to the present ownership of said easement.
4. An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: County of San Luis Obispo
Purpose: Public Highway
Recorded: September 8, 1958, Book 956, Page 441, of Official Records.
Affects: Portion of said land
No representation is made as to the present ownership of said easement.
An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: The Pacific Telephone and Telegraph Company
Purpose: Public Utilities
Recorded: July 1, 1963, Book 1248, Page 71, of Official Records.
Affects: Portion of said land
No representation is made as to the present ownership of said easement.
6. Restrictions on the use, by the owners of said land, of the easement area as set out in the easement
document:
Recorded: July 1, 1963 in Book 1248, Page 71, of Official Records.
7. The fact that a portion of said land is included within Unit No. 3 of the Streets and Highways Plan
being a part of the Master Plan of the County of San Luis Obispo, as disclosed by a Map filed in
Book 1, Page 3 of Maps and in Book 1, Page 10 of Maps, in the County of San Luis Obispo.
Page 3 of 8
0
0
File Number: t6800009
8. A waiver in favor of the State of California of any claims for damages to said land by reasons
hereinafter shown in connection with a highway contiguous thereto, contained in the deed:
Reason: Location; construction, landscaping and maintenance
Recorded: October 19, 1970, Book 1589, Page 563, of Official Records.
Affects: Said land
9. The effect of the following:
An Agreement establishing a Revocable License dated November 12, 1975 by and between.
Raymond E. Boysen and Mabel Boysen and Alex Madonna and Phyllis Madonna, relating to a
Stock Watering Trough, recorded December 1, 1975 in Book 1865, Page 816 of Official Records.
Affects: A portion of Lot 49
10. An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: The United States of America
Purpose: Conservation
Recorded: November 29, 1999, as Instrument/File No. 1999 - 083208 of
Official Records.
Affects:. Portion of said land
No representation. is made as to the present ownership of said easement.
11. Covenants, conditions and restrictions (Restrictions, if any, based on race, color, religion, sex,
handicap, familial status or national origin are deleted.) as set forth in the document referred to in
the numbered item last above shown.
12. An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: The City of San Luis Obispo, a charter city and municipal
corporation of the State of California
Purpose: Conservation
Recorded: July 8, 2005, as Instrument/File No. 2005055853 of Official
Records.
Affects: A portion of said land
No representation is made as to the present ownership of said easement.
13. Covenants, conditions and restrictions (Restrictions, if any, based on. race, color, religion, sex,
handicap, familial status or national origin are deleted.) as set forth in the document referred to in
the numbered item last above shown.
14. An easement for the purpose shown below and rights incidental thereto as set forth in a document:
Grant To: The City of San Luis Obispo, a charter city and municipal
corporation of the State of California
Purpose: Conservation
Recorded: August 29, 2005, as Instrument/File No. 2005071748 of Official
Records.
Page 4 of 8
File Number: t6800009
Affects: A portion of said land
No representation is made as to the .present ownership of said easement.
15. Covenants, conditions and restrictions (Restrictions, if any, based on race, color, religion, sex,
handicap, familial status or national origin are deleted.) as set forth in the document referred to in
the numbered item last above shown.
16. Deed of Trust to secure an indebtedness in the amount shown below, and any other obligations
secured thereby:
Amount:
$400,000.00
Dated:
February 17, 2006
Truston
Phyllis Madonna, a widow; and Pearce Madonna Partnership, a
California Limited Partnership
Trustee:
Farm Credit West, FLCA
Beneficiary:
Farm Credit West, FLCA
Recorded:
February.28, 2006, as Instrument/File No. 2006013658 of
Official Records.
END OF EXCEPTIONS
Page 5 of 8
NOTES
Note No. 1:
Property taxes for the fiscal year 2005 -
2006 shown below are paid.
are:
1't Installment:
$959.07
2nd Installment:
$959.07
Exemption:
None
Land:
$189,810.00
Improvements:
$1,581.00
Personal Property:
$0.00
Code Area:
112 -002
Assessment No.:
067,061,054
9
File Number: t6800009
For proration purposes the amounts
Note No. 2:
The only conveyances affecting said
land, which as shown in the public records within 24 months of the
date of this report are as follows:
Grantor:
Phyllis Madonna, a widow, as to an undivided 84.50% interest
Grantee:
Clinton R. Pearce and Connie E. Pearce, Trustees of
the Clinton and Connie Pierce Revocable Trust dated
September 15, 2003, as to an undivided 84.50% interest
Recorded:
February 18, 2005, as Instrument/File No. 2005012980,
of Official Records.
Grantor: Phyllis Madonna, a widow, as to an undivided 15.50%
interest and Clinton R. Pearce and Connie E. Pearce, Trustees of
the Clinton and Connie Pearce Revocable Trust dated 9/15/03,
as to an undivided 84.50% interest
Grantee: Phyllis Madonna, a widow, as to an undivided 1 %
interest and Clinton. R. Pearce and Connie E. Pearce, Trustees of
the Clinton and Connie Pearce Revocable Trust dated 9/15/03,
as to an undivided 99% interest, as Tenants in Common
Recorded: March 18, 2005, as Instrument/File No. 2005021166,
of Official Records.
Grantor: Clinton R. Pearce and Connie E. Pearce, Trustees of The
Clinton and Connie Pearce Revocable Trust dated 9/15/03
Grantee: Pearce Madonna Partnership, a California Limited
Partnership
Recorded: December 27, 2005, as Instrument/File No. 2005107307,
of Official Records.
Grantor: Phyllis Madonna, a widow as to an undivided 1 % interest,
and Clinton R. Pearce and Connie E. Pearce, Trustees of the
Clinton
Page 6 of 8
undivided
0 •
File Number: 16800009
and Connie Pearce Revocable Trust dated 9/15/03, as to an
99% interest
Grantee: Clinton R. Pearce and Connie E. Pearce,
Trustees of the Clinton and Connie Pearce Revocable Trust
Recorded: June 9, 2006, as Instrument/File No. 2006040808
of Official Records.
Note No. 3:
Short Term Rate is applicable.
Page 7 of 8
File Number: t6800009
CALIFORNIA "GOOD FUNDS" LAW
California Insurance Code Section 12413.1 regulates the disbursement of escrow and sub - escrow funds
by title companies. The law requires that funds be deposited in the title company escrow account and
available for withdrawal prior to disbursement. Funds received by Cuesta Title Company via wire
transfer may be disbursed upon receipt. Funds received via cashier's checks or teller checks drawn on a
California Bank may be disbursed on the next business day after the day of deposit. If funds are received
by any other means, recording and/or disbursement may be delayed, and you should contact your title or
escrow officer. All escrow and sub - escrow funds received will be deposited with other escrow funds in
one or more non - interest bearing escrow accounts in a financial institution selected by Cuesta Title
Company. Cuesta Title Company may receive certain direct or indirect benefits from the financial
institution by reason of the deposit of such funds or the maintenance of such accounts with the financial
institution, and Cuesta Title Company shall have no obligation to account to the depositing party in any
manner for the value of, or to pay to such party, any benefit received by Cuesta Title Company. Such
benefits shall be deemed additional compensation to Cuesta Title Company for its services in connection
with the escrow or sub - escrow.
If any check submitted is dishonored upon presentation for payment, you are authorized to notify all
principals and/or their respective agents of such nonpayment.
WIRING INSTRUCTIONS
If you anticipate having funds wired to Cuesta Title Company, our wiring information is as follows:
Additional Note: Direct wire transfers to:
City National Bank
One Centerpoint Drive #160
La Palma. CA 90623
ABA: 122016066
Account Number: 013429707
Credit to: Cuesta Title Company
Reference Number: t6800009
When instructing the financial institution to wire funds, it is very important that you reference Cuesta
Title Company.
Should you have any questions in this regard please contact your Escrow Officer immediately.
Page 8 of 8
•
•
Cuesta Title Company and Underwriters,
Stewart Title Guaranty Company, Stewart Title Insurance Company
And
Commonwealth Land Title Insurance Company
Privacy Policy Notice
PURPOSE OF THIS NOTICE
Title V of the Gramm- Leach - Bliley Act (GLBA) generally prohibits any financial institution, directly or through its
affiliates, from sharing nonpublic personal information about you with a nonaffiliated third party unless the institution
provides you with a notice of its privacy policies and practices, such as the type of information that it collects about
you and the categories of persons or entities to whom it may be disclosed. In compliance with the GLBA, we are
providing you with this document, which notifies you of the privacy policies and practices of Cuesta Title Company
and underwriters Stewart Title Guaranty Company, Stewart Title Insurance Company and Commonwealth Land Title
Company.
We may collect nonpublic personal information about you from the following sources:
■ Information we receive from you, such as on applications or other forms.
• Information about your transactions we secure from our files, or from our affiliates or others.
■ Information we receive from a consumer reporting agency.
■ Information that we receive from others involved in your transaction, such as the Real Estate Agent or Lender.
Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal
information will be collected about you.
We may disclose any of the above information that we collect about our customers or former customers to our
affiliates or to nonaffiliated third parties as permitted by law.
We also may disclose this information about our customers or former customers to the following types of nonaffiliated
companies that perform services on our behalf or with whom we have joint marketing agreements:
• Financial Service providers such as companies engaged in banking, consumer finance, securities and insurance.
■ Non - financial companies such as envelope staffers and other fulfillment service providers.
WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR
ANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW.
We restrict access to nonpublic personal information about you to those employees who need to know that
information in order to provide products or services to you. We maintain physical, electronic, and procedural
safeguards that comply with federal regulations to guard your nonpublic personal information.
• 0
EXHIBIT A
AMERICAN LAND TITLE ASSOCIATION
RESIDENTIAL TITLE INSURANCE POLICY (6.1 -87) EXCLUSIONS
In addition to the Exceptions in Schedule B, you are not Insured against loss, costs, attorneys'
fees, and expenses resulting from
1. _Governmental police power, and the existence or violation of any law or governmental
regulation. This includes building and zoning ordinances and also laws and regulations
concerning:
land use
• irnprovements on the land
• land division
environmental protection
This exclusion does not apply to violations or the enforcement of these matters which appear
In the public records at policy date.
This exclusion does not limit the zoning coverage described In Items 12 and 13 of Covered
Tide Risks.
2. The right to take the land by condemning I% unless:
• a notice of exercising the right appears in the public records on the Policy Date
• the taking happened prior to the Policy Date and Is binding on you If you bought the
land without knovledge of the taking
Title Risks:
• that are created, allowed, or agreed to by you
• that are known to you, but not to us, on the Policy Date - unless they appeared in the
public records
• that result In no loss to you
• that first affect your title after the Policy late —this does not nail the labor and
material Ilan coverage In Item 8 of Covered Title Risks
Fallune to pay value for your title.
Lack
of a right:
• to any land outside the area specifically described and referred to in hem 3 of
Schedule A
or
in streets, alloys, or waterways that touch your land
This exclusion does not limit the access coverage in Item 5 of Covered Tide Risks.
SCHEDULE B
EXCEPTIONS
In addition to the Exclusions, you are not Insured against loss, costs, attomeys' fees, and the
expenses resulting from
1. Any rights,, interests, or claims of parties In possession of the land riot shown by the public
records.
2. Arty easements or liens not shown by the public records. This does not limit the lien
coverage In hem 8 of Covered Title Risks.
3. Any teas about the land which a correct Survey would disclose and which are riot shown
by the public records. This does not limit the forced removal coverage In item 12 of Covered
Tide Risks.
4. Any water rights or claims orlitle to water in or under the land, whether or not shown by
the public records.
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company
will not pay loss or damage, costs, attomeys fees or expenses which arise by reason of:
1. (a) My law, ordnance or governments] regulation (including but not limited to building and
zoning laws, ordinances or regulations) restricting, regulating, prohibiting or relating (i) the
occupancy, use, or enjoyment of the land; (I) the character, dimensions or location of any
Improvement now or hereafter erected on the land; pii) a separation In ownership or a change
in the dimensions or area of the land or any parcel of which the land is or was a part; or (v)
environmental protection, or fits effect of any violation of these laws, ordinances or
govemmental.reguladons, except to the extent that a notice of the enforcement thereof or a
notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting
the land has been recorded In the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a
notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a
violation or alleged violation affecting the land has been recorded in the public records at
Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded In the
public records at Date of Policy, but not excluding from coverage any taking which has
occurred prior to Date of Policy which would be binding on the rights of a purchaser for value
without knowledge.
3. Defects, liens, encumbrances, adverse claims, or other miters:
(a) whether or not recorded In the public records at Date of Policy, but created suffered,
assumed, or agreed to by the insured claimant:
(b) not known to the Company, not recorded In the public records at Data of Policy, but (mown
to the insured claimant and not disclosed in writing to the Company bythe insured claimant
prior to the data the Insured claimant became an Insured under this policy.
(c) resulting in no loss or damage to the Insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if the insured claimant
had paid value for the insured rnorigage or for the estate or interest Insured by this policy.
4. Unenforcoability of the lien of the insured mortgage because of the inability, or the failure of
the insured at Date of Policy, or the Inability or failure of any subsequent owner of the
Indebtedness, to comply with the applicable doing business s laws of the state in which the land
is situated.
5. Invalidity or unenforceabllfty of the lien of the insured mortgage, or claim thereof, which
arises out of the transaction evidenced by the insured mortgage and is based upon usury or
arty consumer credit protection or truth In lending law.
6. Any claim, which arises out of the transaction vesting in the insured the estate of Interest
Insured by this policy or the transaction creating the Interest of the Insured lender, by reason
of the operation of federal bankruptcy, state Insolvency or similar creditors' rights laws.
SCHEDULE B, PART I
EXCEPTIONS FROM COVERAGE
This policy does not Insure against loss or damage (and the Company will not pay costs, aaomsys' fees or expenses) which arise by reason of:
PART 1
1_ Taxes or assessments which are not shown as existing lien by the records of any taxing 3. Easements, liens or encumbrances, or claims thereof. which are not shown by the pudic
authority that levies taxes or assessments on real properly or by the public records. records.
Proceedings by a public agency which may result In taxes or assessments, or notices of such 4. Dlscrepancles, conflicts in boundary lines, shortage in area, encroachments, or any other
proceedings, whether or not shown by the records of such agency or by the public records. facts which a correct survey would disclose, and which are not shown by the public records.
2. My facts, rights, Interests or claims which are not shown by the public records but which 5. (a) Unpatented rr ning claim¢; (b) reservations or exceptions In patents or In Acts
could be ascertained by an inspection of the land or which may be asserted by persons In authorizing the issue rxe thereof; (c) water rights, claims or tide to water, whether or not the
possession thereof. matters excepted under (a), (b), or (c) are shown by the public records.
• •
EXHIBIT A
(CONTINUED)
AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10- 17 -92)
WITH A.L.T.A. ENDORSEMENT -FORM 1 COVERAGE AND
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10- 17 -92)
WITH A.L.T.A, ENDORSEMENT -FORM 1 COVERAGE
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company
will not pay loss or damage, costs, attomsys' fees or expenses which arise by reason of.
1. (a) Any law, ordinance or governmental regulation Qncluding but not fintited to building and
zoning laws, ordinances or regulations) restricting, regulating, prohibiting or relating to (I) the
occupancy, use, or enjoyment of the land; (fi) the character, dimensions or location of any
Improvement now or hereafter erected on the land; (Iii) a separation in ownership or a change
in the dimensions or area of the land or any parcel of which the land is or was a pan; or Qv)
environmental protection, or the effect of any violation of these taws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a
notice of a detect, Ilan or encumbrance resulting from a violation or alleged violation affecting
the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a
notice of the exerelse thereof or a notice of a defect, Ilan or encumbrance resulting from a
violation or alleged violation effecting the land has been recorded In the public records at
Date of Policy.
2. Rights of eminent domain uNess notice of the exercise thereof has been recorded in the
public records at Date of Policy, but not excluding from coverage any taking which has
occurred prior to Date of Policy which would be binding on the dghts of a purchaser for value
wilhout knowledge.
3. Defects, liens, encumbrances, adverse claims, or other matters:
(a) created, suffered, assumed, or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Polley, but (mown
to the insured claimant and not disclosed In writing to the Company by the Insured claimant
prior to the date the Insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the Insured claimant;
(d) attaching or created subsequent to Date of Policy (except to the extent that this policy
Insures the priority of the lien of the Insured mortgage over any statutory lien for services,
labor or material or to the extent Insurance Is afforded heroin as to assessments for street
Improvements under construction or completed at Date of Pel cyy or
(a) resulting in lass or damage which world not have been sustained If the insured claimant
had paid value for the Insured mortgage.
4. Unenforceabllity of the lien of the insured mortgage because of the inability or the failure of
the Insured at Date of Policy, or the inability or failure of any subsequent owner of the
Indebtedness, to comply with applicable doing business laws of the state In which the land is
situated.
S. Invalidity or unenforceabifily of the lien of the insured mortgage, or claim thereof, which
arises out of the transaction evidenced by the insured mortgage and is based upon usury or
arty consu mhercredit protection or truth in lending law.
6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory
lien for services, labor or materials over the lien of the insured mortgage) arising from an
Improvement or work related to the land which is contracted for and commenced subsequent
to Data of Policy and is not financed In whole or In part by proceeds of the Indebtedness
secured by the insured mortgage which at Date of Policy the insured has advanced or Is
obligated to advance..
7. My claim, which arises out of the transaction creating the Interest of the mortgagee
insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or
similar creditors' rights laws, that Is based on:
() the transaction creating the Interest of the insured mortgagee being deemed a fraudulent
conveyance or fraudulent transfer, or
pl) the subordination of the Interest of the insured mortgagee as a result of the application of
the doctrine of equitable subordination; or
(iii) the transaction creating the Interest of the insured mortgagee being deemed a preferential
transfer except where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer, or
(b) of such recordation to Impart notice to a purchaser for value or a Judgement or lien
creditor.
AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10- 17 -92) AND
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10- 17 -92)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company
will not pay lass or damage, costa, attorneys' fees or expenses which arise by reason of.
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and
zoning laws, ordinances or regulations) restricting, regulating, prohibiting or retating to (1) the
occupancy, use, or enjoyment of the lend; (I) the character, dimensions or location of any
Improvement now or hereafter erected on the land; (lli) a separation In ownership or a change
in the dimensions or area of the land or any parcel of which the land Is or was a part or (tv)
environmental protection, or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a
notice of a defect, lien or encumbrance resulting from a vlolation or alleged violation affecting
the land has been recorded In the public records at Date of Policy.
(b) My governmental police power not excluded by (a) above, except to the extent that a
nouco of the exercise thereof or a notice of a defect, Ilan or encumbrance resulting from a
violation or alleged violation affecting the land has been recorded in the public records at
Data of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded In the
public records at Data of Policy, but not excluding from coverage any t&ng which has
occurred prior to Date of Policy which would be binding on the rights of a purchaser for value
without knowledge.
Defects, liens, encumbrances, adverse claims, or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded In the public records at Date of Policy, but known
to the insured claimant and not disclosed in writing to the Company by the insured claimant
pdor to the dale the insured claimant became an insured under this policy.
(c) resulting in no foss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting In less or damage which would not have been sustained if the insured claimant
had paid value for the estate or interest insured by this policy.
My claim, which arises out of the transaction vesting in the insured the estate or Interest
insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or
simllar creditors' rights laws, that is based on:
0) the transaclon creating the estate or Interest insured by this policy being deemed a
fraudulent conveyance or fraudulent transfer, or
Oil the transaction creating the estate or Interest Insured by this policy being deemed a
preferantlal transfer except where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer, or
(b) of such recordation to impart notice to a purchaser for value or a)udgement or Ilan
creditor.
The above ALTA policy forma may be Issued to afford either Standard Coverage or Extended Coverage. In
addition to the above Exclusions from Coverage, the Exceptions, from Coverage In a Standard Coverage policy
will also include the following General Exceptions:
EXCEPTIONS FROM COVERAGE
This policy does not Insure against loss or damage (and the Company will not pay costs, attomays' fees or expenses) which arise by reason o1:
1. Texas or assessments which are not shown as existing liens by the records of any taxing 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public
authority that levies taxes or assessments on real property or by the public records. records.
Proceedings by a public agency which may result in taxes or assessments, or not east of such 4. Discrepancies, conflicts In boundary lines, shortage In area, encroachments, or any other
proceedings, whether ornot shown bythe records of such agency or by the public records. facts which a correct survey would disclose, and which are not shown by the public records.
2. Any facts, rights, Interests or claims which are not shown by the public records but which 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or In Acts
could be ascertained by an Inspection of the land or by making inquiry of persons in authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the
possession thereof. matters ex eopted under (a), (b), or (c) are shown by the public records.
• 1 •
EXHIBIT A
(CONTINUED)
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (6 -2-98)
ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE (10- 17.98)
EXCLUSIONS
In addition to the Exceptions In Schedule B. You are not insured against loss, costs, attomeys' fees, and expenses resulting from:
1., Governmental police power, and the existence or violation of any law or govemmertel
regulation. This Includes ordinances, laws and regulations_ concerning:
a. building
b. zoning
C. Land use
d. improvements on land
e. Land division
I. wM'onmental protection
This Fusion does not apply to violations or the enforcement of these natters It notice of the
violation or enforcement appears in the Public Records at the Policy Date.
This Exclusion does not limit the coverage described In Covered Risk 14.15.16.17 or 24.
Z The failure of Your existing structures, or any part of them, to be constructed in
accordance with applicable building codes. This Exclusion does not apply to violations of
building codes It notice o( the violation appears in the Public Records at the Policy Date.
3. The right to take the land by condemning It, unless:
a notice of exercising the right appears in the Public Records at the Policy date; or
b. the taking happened before the Policy Date and is binding on You It You bought the
Land without Knowing of the taking.
4. Risks:
a. that are created,, allowed, or agreed to by You, whether or not they appear. in the
Public Records;
b, that are Known to You at the Policy Dato, but not to Us, unless they appear In the
Public Records at the Policy Date;
C. that result In no loss to You; or
d, that first occur after the Policy Date —this does not limit the coverage described in
Covered Risk 7, 8.d, 22, 23, 24, or 25.
S. Failure to pay value for Your Title.
6. Lack at a right
a to any Land outside the area specifically described and referred to In paragraph 3 of
Schedule A; and
b. in streets, alleys, or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 18.
RESIDENTIAL TITLE INSURANCE POLICY
ONE -TO -FOUR FAMILY RESIDENCE
ENHANCED VERSION (1997)
EXCLUSIONS
In addition to the Exceptions in Schedule B, you are not Insured against loss, costs, attorneys' fees, and expenses resulting from:
1. Gcvemrriemal police power, and the existence or violation of any low or governments]
regulation. This includes building and zoning ordinances and also laws and reguatons
concerning:
a land use;
b. improvements on the Land;
C. land dlvlaions; or
d. environmental protection.
This exclusion does not apply to violations or the enforcement of these matters which appear In
the public records at Polley Date.
This exclusion does not Ilmlt the coverage described in Item 12o and d,13 and 18 of Covered
Tise Risks.
2. The right to take the land by condemning It, unless:
a a notice of exercising the right appears In the public records on the Policy date; or
b. the taking happened before the Policy Date and Is binding on you if you bought the
land without knowing of the taking.
3. Title Risks:
a that are created, allowed, or agreed to by you;
b. that are known to you, but not to us, on the Policy Date — unless they appeared In
the public records;
C. that result In no loss to you: or
d. that first affect your title atterthe Policy Date —this does not ulrdt the coverage
described in Items 3b, 8, 17, and 19 of Covered Title Risks
4. Fellure to pay value for your title.
5. lack of a right: (a) to any land outside the area specifically described and referred to in
Item 3 of Schedule A or (b) in streets, alleys, or waterways that touch your land.
This exclusion does not limit the coverage described In Items 5 and 12a of the Covered Title
Risks.
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Exhibit E
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Map of the major, distinct natural features on the Property
[See Attached]
-42-
Irish Hills Plaza West - Habitat Mitigation and Monitoring Plan EXHIBIT E
EXHIBIT E
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lol : AREA 1 .w, AREAA-
AREA 2 AREA 4�,'
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Reference Site #1
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PROPOSED AREA7f
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S �k �� Existing Soil FIII Site
INCH — 400 FEET
Morro Group, Inc. 1
END OF DOCUMENT