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HomeMy WebLinkAbout06/07/2005, C10 - AUTHORIZATION OF THE ACCEPTANCE OF A CONSERVATION EASEMENT OR EASEMENTS ON A 30 ACRE PORTION OF THE Ccouncil MaaCMDae A aGenaa �Epont -= o CITY OF SAN LUIS O B I S P O FROM: Ken Hampian, City Administrative Officer 2 Prepared By: Neil Havlik, Natural Resources Manager SUBJECT: AUTHORIZATION OF THE ACCEPTANCE OF A CONSERVATION EASEMENT OR EASEMENTS ON A 30 ACRE PORTION OF THE BOYSEN RANCH PROPERTY ON LOS OSOS VALLEY ROAD CAO RECOMMENDATION Approve a resolution authorizing the Mayor to sign.an agreement and certificate of acceptance for the dedication of a conservation easement or easements covering approximately 30 acres of the 116 acre Boysen Ranch property, owned by the Madonna family and located at the intersection of Los Osos Valley Road and Foothill Boulevard, subject to non-substantive changes approved by the City Attorney, and as may be required by the U.S. Army Corps of Engineers. DISCUSSION The property commonly known as the Boysen Ranch consists of approximately 116 acres bounded by Los Osos Valley Road, Foothill Boulevard, and O'Connor Way. It is a part of the extensive Madonna family holdings in the .area. The property has traditionally been used for livestock grazing, but due to its low-lying nature, it has in recent years become valuable for wetland mitigation purposes. In fact, extensive mitigation work has recently been conducted on the property to mitigate for impacts to wetlands and waters of the United States by the Home Depot project on Los Osos Valley Road. Additional work is planned there to mitigate for impacts of the Costco project. This work, authorized by the U. S. Army Corps of Engineers, requires that the mitigation lands be placed under permanent protection through some appropriate legal mechanism. Furthermore, there were some problems with the description of the easement covering the Home Depot mitigations, and that easement was either never recorded or was incorrectly recorded. Therefore; the Corps has also requested that the Home Depot mitigations area be included in the dedication, either as part of the Costco easement or as a separate easement. To accomplish the above, the Madonna family has requested that the City of San Luis Obispo accept a conservation easement or easements over the approximately 30 acres of the property that will be used for mitigation. The easement would restrict that acreage to a wetland condition in perpetuity. It would also restrict agricultural uses, application of pesticides, and other activities deemed inconsistent with such mitigation lands, and would prohibit public uses such as hiking. It is anticipated that the property will remain in private ownership, and that the balance of the property (not burdened by the easement) will remain in agricultural or other open space uses. The site is part of the City of San Luis Obispo's designated greenbelt. It has substantial scenic, wildlife, and watershed value. It is also part of a significant gateway into the City, and as such it is appropriate that the City be in a position to exercise some control over the site even though it Co �I Council Agenda Report—Conservation Easement for the Boysen Ranch Page 2 is not within the city limits. There will be certain monitoring and reporting requirements for the City imposed by the Corps; to cover the costs of this, however, the easement will require an endowment or other form of payment program to cover the City's costs for such monitoring and reporting. The amount will be determined using a cost-analysis procedure called a Property Analysis Record (PAR), which is a copyrighted analysis developed some years ago by a non- profit organization known as the Center for Natural Lands Management. It is expected that costs will be higher during the establishment period for the mitigations, but once the establishment is successful, ongoing monitoring costs are expected to be minimal. The amount of these costs and responsibility for them are still being negotiated between the Corps, City, Costco and the Madonna family, although it is unlikely that they will be significant. There is some urgency to this matter as it is tied to the Calle Joaquin realignment project, currently awaiting Corps approval to proceed. It is for this reason that the matter has been brought to the City Council while the agreement is still in a draft form. The easement language is largely being dictated by the Corps, and we therefore feel comfortable that the draft form currently under consideration, based upon the draft provided to the Madonna family by the Corps, will not change substantially as it moves toward recordation. The Planning Commission discussed the proposed dedication at its regular meeting of April 27, 2005, and determined that the acceptance of the easement was consistent with the City's General Plan. The relevant minutes of that meeting are included as Attachment 5. FISCAL IMPACT This transaction will have minor fiscal impact on the City. There will be a need for quarterly monitoring of the property for compliance purposes during the establishment period for the mitigations. This is expected to be three to five years, based upon our experience with similar situations. Some type of restricted account, acceptable to the Corps, will be used to cover costs of monitoring for the so-called "establishment period" of five years, as well as the more limited ongoing monitoring. The amount of those costs and assignment of responsibility are still being negotiated. After successful establishment, monitoring will be annual and is expected to be of minimal cost. Any costs of enforcement actions regarding the easement would be able to be recovered from the Grantor should that situation occur. Attachments: 1. Letter Offer from Madonna Family 2. Agreement for Donation and Acceptance of Conservation Easement 3. Location Map 4. Resolution 5. Minutes of April 27, 2005 Planning Commission meeting G:\Staff\HAVLIK\Councilagenda\Boysen Ranch dedication.doc ATTACHMENT 1 Madonna Enterprises 284 Hignera Street,San Luis Obispo, CA 93405 Phone(805)543-0300 Fax(805)541-3067 April 18, 2005 Honorable City Council City of San.Luis Obispo 990 Palm Street San Luis Obispo,CA. 93401 RE: Boyson Ranch Dear Mayor Romero and Council members: This letter is to confirm discussions held with staff members at the City of San Luis Obispo in recent weeks and Madonna Enterprises pertaining to wetland mitigation property at the Boysen Ranch. Phyllis Madonna, Connie Pearce, and I are owners of the Boysen Ranch which is located between O'Connor Way and Los Osos Valley Road along Foothill Road near San Luis Obispo and is approximately 115 acres in total size. The area of property that is planned to be used for wetland mitigation at Boysen Ranch is approximately 30 acres in size_ We the above named owners hereby extend to the City of San Luis Obispo our offer to dedicate a Conservation Easement over that portion of the Boysen Ranch which lies in the mitigation area. The easement dedication will protect the scenic and wildlife habitat values of that portion of the property in perpetuity- Thank erpetuityThank you for your consideration. Sincerely, 9Ctarce C' C) ATTACHMENT 2 draft AGREEMENT FOR DONATION AND ACCEPTANCE OF A CONSERVATION EASEMENT Phyllis Madonna, Clint Pearce,and Connie Pearce to the City of San Luis Obispo THIS AGEEMENT FOR DONATION AND ACCEPTANCE OF REAL PROPERTY dated June 7, 2005, by Phyllis Madonna, Clint Pearce, and Connie Pearce ("Grantor"), in favor of the City of San Luis Obispo, a chartered municipal corporation of the State of California, having an address at 990 Palm Street, San Luis Obispo, CA 93401 ("Grantee"), is made with respect to the following: RECITALS WHEREAS, Grantor is the owner in fee simple of certain real property consisting of Assessor's Parcel No. 067-061-054, in the County of San Luis Obispo, California; and WHEREAS, portions of the property have important open space, ecological, and scenic values due to the presence of both natural and created wetlands (the "conservation values" of the property); and WHEREAS, as part of rights granted by the United States Army Corps of Engineers, permitting filling of certain wetlands and other waters of the United States, requirement has been made of Grantors that some form of permanent protection be applied to those areas of created wetlands on Assessor's Parcel No. 067-061-054, Grantor has prepared; with the support of the United States Army Corps of Engineers a Conservation Easement (attached as Exhibit A hereto); in addition, Grantor has offered to donate said Conservation Easement covering approximately 30 acres of said Assessor's Parcel, more particularly described in Exhibit A attached hereto and incorporated by this reference (the "Easement Area") to Grantee and the public to preserve, protect, and properly enjoy the conservation values of that portion of the property in perpetuity; and WHEREAS, Grantee is a chartered municipal corporation of the State of California that is authorized to accept donations, including real property donations; and WHEREAS, Grantee agrees by accepting the Conservation Easement to honor the wishes of Grantor stated herein and to preserve and protect in perpetuity the conservation values of the demised property for the benefit of this generation and the generations to come; NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of California, Grantor hereby voluntarily grants and conveys to Grantee a Conservation Easement covering that portion of the Property described in Exhibit A, described therein and referred to hereinafter as the "Easement Area". 1. Purpose. It is the purpose of this Donation to assure that the Easement Area will be retained forever in its predominantly natural, scenic, and open space condition G:\Staff\HAVLEK\Purchase Agreements\Boysen Ranch Donation.doc ID.;-4 ATTACHMENT 2 and to prevent any use of the Easement Area that will significantly impair or interfere with its conservation values. The conservation values of particular importance include the natural and created wetlands and their attendant wildlife habitat, the scenic quality of the site, and flood storage and protection. 2. Rights of Grantee. To accomplish the purposes of this Donation, the following rights are specifically conveyed to Grantee: (a) To monitor the establishment, growth, and general health of the mitigation plantings within the Easement Area; and (b) To undertake, onto cause to be undertaken, repairs or modifications to the mitigation plantings in order to ensure their successful establishment. 3. Prohibited Activities. Any activity on or use of the Easement Area inconsistent with the purpose of this Donation is prohibited. Without limiting the generality of the foregoing, the following activities and uses are prohibited: (a) Subdivision of the land pursuant to the California Subdivision Map Act. (b) Building or erection of structures of any kind, except for structures directly associated with the walking and bicycle trail alluded to above. (c) Cutting or removal of trees, except as may be necessary for health of the remaining trees or for public safety (including flood protection), or for purposes described in 2(a) or 2(b) above. (d) Mining or other mineral exploration or exploitation of the property. (e) The exploration for or collection of water for delivery to any other property. This prohibition shall not restrict the use of water for irrigation within the Easement Area. (f) Grading, except as necessary for duly approved mitigation activities, (g) Any other activity prohibited under the Conservation Easement as approved by the United States Army Corps of Engineers. 4. Monitoring Obligations Assumed by Grantee; Funding. Grantor and Grantee acknowledge that the Easement Area.includes certain lands that have been or will be used for wetland mitigation, and that certain monitoring is anticipated to ensure that such mitigation is successful. Grantee agrees to undertake such monitoring, and Grantor agrees to provide funds sufficient to cover the reasonably anticipated costs of such monitoring, as described in Exhibit A. 7. Hold Harmless. Grantor shall indemnify, defend and hold Grantee and its agents, officers and employees, harmless from and against all claims, damages, losses, causes of action and expenses, including attorney's fees, for - 2 - Ali}, -� ATTACHMENT 2 any personal injury, bodily injury, loss of life or damage to property, violation of any Federal, State or municipal law, ordinance or constitutional provision, or other cause which arises out of, relates to, or results from the activities or omissions, negligent or otherwise, under this Agreement of Grantor, and Grantor's officers, agents, and employees. Grantee shall indemnify, defend and hold Grantor and its agents, officers and employees, harmless from and against all claims, damages, losses, causes of action and expenses, including attorney's fees, for any personal injury, bodily injury, loss of life or damage to property, violation of any Federal, State or municipal law, ordinance or constitutional provision, or other cause which arises out of, relates to, or results from the activities or omissions, negligent or otherwise, under this Agreement of Grantee, and Grantee's officers, agents, and employees. 8. Subsequent Transfer of Title by Grantee. The Easement Area may be transferred by Grantee only to a qualified public agency whose purposes are consistent with the purposes of this Donation, or to an organization that is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1954, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder, and authorized to acquire and hold land under state statue (or any successor provision then applicable). Any such transfer must have the prior written approval of the United States Army Corps of Engineers. 9. Notices. Any notice, request, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: To Grantor: Mr. Clint Pearce Madonna Enterprises 284 Higuera Street San Luis Obispo, CA. 93405 To Grantee: Mr. Ken Hampian, City Administrative Officer City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 or to such other address as either party from time to time shall designate by written notice to the other. Any such notices shall at the same time notify the United States Army Corps of Engineers by a true copy of such notice. 10. Recordation. Grantor and Grantee shall jointly record this instrument and the Grant Deed in a timely fashion in the official records of San Luis Obispo County, California. - 3 - Clp- � ATTACHMENT 2 11. General Provisions. (a) Controlling Law. The interpretation and performance of this Agreement shall be government by the laws of the State of California. (b) Costs of Transaction. Grantor agrees to pay for all reasonable costs of the transaction, including fees for the parcel map, and title and escrow fees. (c) Entire Agreement. This instrument, together with Exhibits A and B sets forth the entire agreement of the parties with respect to the Easement Area and supersedes all prior discussions, negotiations, understandings, or agreements relating to said Easement-Area, all of which are merged herein. (d) Successors. The covenants; terms, conditions, and restrictions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running perpetually with the Easement Area. (e) 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 construction or interpretation. (f) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both 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. TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF Grantor and Grantee have set their hands on the day and year first written above. For the Grantor: Phyllis Madonna Clint Pearce Connie Pearce For the Grantee: David F. Romero, Mayor APPROVED AS TO FORM: IPNAZM P. LOWF.LL _4 _ - Attomey l�\ 1 EXHIBIT A ATTACHMENT 2 CONSERVATION EASEMENT RECORDING REQUESTED BY: ) AND WHEN RECORDED MAIL TO: ) ) 1 Space Above Line for Recorder's Use Only THIS CONSERVATION EASEMENT is made this day of ,20_by ("Grantor")in favor of ("Grantee")with reference to the following facts: RECITALS A. Grantor is the developer of that certain real property in the City of , County of State of California, commonly referred to as (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 acres. C. This Conservation Easement provides mitigation for certain impacts of the Project by Grantor pursuant to requirements of the United States Army Corps of Engineers' ("ACOE") Section 404 Permit No. and amendments thereto ("Section 404 Permit"). Special Condition of the Section 404 Permit requires Grantor to record a Conservation Easement on all mitigation sites. This Conservation Easement is intended and shall be deemed to satisfy such part of Special Condition 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. 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., 5 - Clo 7 AITACHRIENT 2 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 required by the Section 404 Permit and as described in the Final Habitat Mitigation and Monitoring Plan dated , 200_("Mitigation Plan"), the cover page and Executive.Summary of which are attached as Exhibit "C," including implementation, maintenance; and monitoring activities (collectively, "Compensatory Mitigation"); (2) In-perpetuity maintenance ("Long-Term Maintenance"),that occurs on the Property as described in Section 16 herein; or (3) Activities described in Section 6 herein. (c) Grantor certifies to the ACOE and Grantee, that to the 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 the ACOE and Grantee that to the 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, 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 the ACOE consisting of(1) an aerial photograph of the Property 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 or ACOE as a third party beneficiary, or any designees or agents of Grantor, Grantee -6 - l n� C�Oy 1 ATTA.CHAJCHT 2 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 County 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 the 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 or sale of such rights by Grantee shall not result in conflict with such Conservation Values; and (e) The right to all present and future development rights,provided any exercise of such rights must preserve the Property in its Natural Condition as that is defined in Section IN of this Conservation Easement. Any exercise of present and future development rights by Grantee shall not be in conflict with the Conservation Values of the Property; and (f) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Conservation Easement. 3. 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, 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 6(b); - 7 - C1D;` � � ' 1 ATTACHMENT 2 (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 or industrial uses; (g) Any legal or de facto division, subdivision or portioning of the Property, except transfers in accordance with Section 12 below; (h) Construction,reconstruction or placement of any building or other improvement, billboard, or sign except those signs specifically allowed under Section 4(e) and Section 6(d); (i) Dumping, depositing, or accumulating soil, trash, ashes,refuse, waste, bio-solids or any other material; 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; (1) Altering the general topography of the Property, including but not limited to building of roads and 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 6(f), (2)prevention or treatment of disease, (3)control of invasive species which threaten the integrity of the habitat, (4) required Mitigation Plan, or(5) activities described in Section 6; and (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. 4. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, 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, - 8 - C4Q < ATTACHMENT 2 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 provided, however, Grantor, its successors or assigns shall not engage in any repair or restoration work in the Property without first consulting with the ACOS; and (d) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan; and (e) Install signs set forth in Section 6 below; and (f) Perform Long-Term Maintenance of the Property as described in Section 16 herein; and (g) 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 (h) Prepare a monitoring and maintenance report when activities are performed as set forth in Section 16(a) and (b) herein, and shall make reports available to the ACOE upon request. When activities are performed pursuant to Section 16(c), Grantor shall retain a Biological Monitor to prepare a detailed Restoration Plan and oversee/monitor such maintenance/repair activities. Grantor shall have its Biological Monitor submit the draft Restoration Plan to the Grantee and ACOE for review and written approval prior to its implementation. Upon completion of restoration as specified in the approved Restoration Plan, Grantor shall have its Biological Monitor prepare a detailed monitoring and maintenance report, and Grantor shall make the report available to the Grantee and ACOE within thirty (30) days of completion of restoration activities. Said report shall be signed by Grantor, or its successor or assign and the Biological Monitor, and the report shall document the Biological Monitor's name and affiliation, dates the Biological Monitor was present on-site, activities observed and their location, the Biological Monitor's observations regarding the adequacy of maintenance performance by the Grantor or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. 5. Grantee's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantee, its successors and assigns shall: (a) Prevent any activity on or use of the Property that is inconsistent with the Purpose of this Conservation Easement; and - 9 - /y ;' ATTACHMENT 2 (b) Perform quarterly compliance inspections of the Property, and shall make reports available to the ACOE upon request. 6. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all 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, the 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, the Grantor shall have its Biological Monitor submit detailed plans to the Grantee and ACOE for review and written approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that such approval shall be deemed to have been given by Grantee and ACOE if the they fail to respond to a request therefor on or prior to the date that is sixty (60) days after their receipt of request therefor. It shall be reasonable for Grantee and ACOE to withhold consent of such activities that are in direct or potential conflict with the preservation of the Natural Condition of the Property. (c) Repair and Remediation of Damage or Refuse. Removal or trimming of vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of parasitic (as it relates to the health of the host plant) and non-native or exotic plant or animal species. Prior to any such repair and remediation work, the Grantor shall first consult with the Grantee and ACOE. (d) Erection and Maintenance of Informative Signage. 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, the Grantor shall have its Biological Monitor submit detailed plans showing the location of such signs to the Grantee and ACOE for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that such approval shall be deemed to have been given by Grantee and ACOE if they fail to respond to a request therefor on or prior to the date that is sixty (60) days after their receipt of request therefor. It shall be reasonable for Grantee and/or ACOE to withhold consent of such structures that are in direct or potential conflict with the preservation of the Natural Condition of the Property. (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, - 10 - 3 ATTACHRIFNT 2 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 3 above. (f) Fire Protection. The right, in an emergency situation only, to maintain firebreaks, 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. 7. Enforcement. (a) Right to Enforce. Grantor, its successors and assigns; grant to the ACOE, the U.S. Department of Justice, and the 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 ACOS, U.S. Department of Justice, and the State Attorney General shall have the same rights, remedies and limitations as Grantee under this Section 7. The rights under this Section are in addition to, and do not limit rights conferred in Section 2 above, the rights of enforcement against Grantor and their successors or assigns under the Section 404 Permit, or any rights of the various documents created thereunder or referred to therein. (b) Notice. (1) If Grantee determines Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee may demand the cure of such violation. In such a case, Grantee shall issue a written notice to Grantor (hereinafter "Notice of Violation') informing Grantor of the violation and demanding cure of such violation. (2) Grantor shall cure the noticed violation within fifteen (15) days of receipt of said written notice from Grantee. If said cure reasonably requires more than fifteen (15) days, Grantor shall, within the fifteen (15) day period, submit to Grantee for review and approval a plan and time schedule to diligently complete a cure. Grantor shall complete such cure in accordance with the approved plan. If Grantor disputes the notice of violation, it shall issue a written notice of such dispute (hereinafter "Notice of Dispute") to the Grantee within fifteen (15) days of receipt of written notice of violation. (3) If Grantor fails to cure the noticed violation(s) within the time period(s) described in Section 7(b)(2) above, or Section 7(d) below, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Conservation Easement. In such action, the Grantee may (i) recover any damages to which they may be entitled for violation by Grantor of the terms of this Conservation Easement, (ii) enjoin the violation, ex pane if - 11 - ATTACHMENT 2 necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or (iii) pursue 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. Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. (4) If Grantor provides Grantee with a notice of dispute, as provided herein, Grantee shall meet and confer with Grantor at a mutually agreeable place and time, not to exceed thirty (30) days from the date that Grantee receives the notice of dispute. Grantee shall consider all relevant information concerning the disputed violation provided by Grantor, and shall determine whether a violation has in fact occurred and, if so, whether the notice of violation and demand for cure issued by Grantee is appropriate in light of the violation. (5) If, after reviewing Grantor's notice of dispute, conferring with Grantor, and considering all relevant information related to the violation, Grantee determines that a violation has occurred, Grantee shall give Grantor notice of such determination in writing. Upon receipt of such determination, Grantor shall have fifteen (15) days to cure the violation. If said cure reasonably requires more than fifteen (15) days, Grantor shall, within the fifteen (15) day period, submit to Grantee for review and approval a plan and time schedule to diligently complete a cure. Grantor shall complete such cure in accordance with the approved plan. (c) Conflicting Notices of Violation. (1) If Grantor receives a Notice of Violation from Grantee or ACOE that is in material conflict with one or more prior written Notices of Violation that have not yet been cured by Grantor (hereinafter "Active Notice(s) of Violation") such that the conflict makes it impossible for Grantor carry out cure consistent with all prior Active Notices of Violation, Grantor shall give written notice (hereinafter "Notice of Conflict') to the agency or agencies issuing the later, conflicting Notice(s) of Violation. Grantor shall issue said Notice of Conflict to the appropriate agency or agencies 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 agency, as described above, Grantor shall not be required to carry out the cure described in the conflicting Notice or Notices of Violation until such time as the agency or agencies 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, Grantor shall carry out the cure recommended in such notice within the time period(s) described in Section 7(b)(2), above. Notwithstanding Section 7(d), failure to cure within said time period(s) shall entitle Grantee to the remedies described in Section 7(b)(3). (3) The failure of Grantor 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 Grantor's ability to claim a conflict. - 12 - � ATTACHMENT 2 (4) This Section 7(c) shall not apply to Section 7(d), below. (d) Immediate Action. If Grantee determines that circumstances require immediate action to prevent or mitigate significant damage to the Natural Condition or Conservation Values of the Property, Grantee may immediately pursue all available remedies, including injunctive relief, available pursuant to both this Conservation Easement and state and federal law after giving Grantor at least twenty four (24) hours' written notice before pursuing such remedies. So long as such twenty four (24) hours' notice is given, Grantee 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 7(b)(2). The written notice pursuant to this paragraph may be transmitted to Grantor by facsimile. The rights of Grantee under this paragraph apply equally to actual or threatened violations of the terms of this Conservation Easement. Grantor agrees that the remedies at law for Grantee for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this Section 7, both prohibitive and mandatory, in addition to such other relief to which Grantee 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 7(d) shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. (e) Costs of Enforcement. Any costs incurred by Grantee, as the prevailing party,in enforcing the terms of this Conservation Easement against Grantor including, but not limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantor's violation or negligence under the terms of this Conservation Easement shall be borne by Grantor. (f) Enforcement Discretion. Enforcement of the terms of this Conservation Easement shall be at the discretion of the Grantee. Any forbearance by Grantee to exercise rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of the rights of Grantee a under this Conservation Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. (g) Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor or any injury to or change in the Property resulting from: (1) Any natural cause beyond Grantor's control, including without limitation, fire, flood, storm, and earth movement; or (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. 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. - 13 - ATTACWMENT 2 8. 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 6(d), Grantor, 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. 9. Costs and Liabilities. 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. (a) Conveyance "As-Is."Notwithstanding anything to the contrary contained herein, it is understood between the parties that the easement rights conveyed by this Conservation Easement are expressly subject to all matters of record as of the date of this Conservation Easement is executed and are conveyed in an "AS IS"condition, "with all faults" as of such date. (b) Hold Harmless. Grantor, its successors and assigns shall hold harmless, indemnify, and defend Grantee and its directors, officers,employees, agents,contractors, and representatives (collectively"Indemnified Parties") from and against all liabilities,penalties, costs, losses, damages,expenses, causes of action, claims, demands, or judgment, including without limitation, reasonable attorneys' fees, arising from or in any way connected with: injury to or the death of any person, or physical damages to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due to the negligence of any of the Indemnified Parties. 10. 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 takes imposed upon; or incurred as a result of, this Conservation Easement, and shall furnish Grantee or the 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. 11. Condemnation. The Purpose of the Conservation Easement are 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. 12. 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 acquireandhold conservation easements pursuant to Civil Code Section 815.3 (or any successor provision then applicable) and only with the prior written approval of the Grantor and ACOE. Grantee shall require the assignee to record the assignment in the county where the Property is located. - 14- -= ATTACHMENT 2 (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 12 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 al] 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, asset 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, and(iv) all references to Grantor in this Conservation Easement shall thereafter be deemed to refer to such transferee. 13. Additional Easements. Grantor, its successors and assigns shall not grant additional easements or other interests in the surface or subsurface of the Property 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 IN of this Conservation Easement. Grantor or its successors and assigns shall record any additional easements or other interests in the Property approved by the Grantee and ACOE in the official records of County, California and shall provide a copy of the recorded document to the Grantee ACOS. 14. 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: To Grantee: 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 - 15 - -- ATTACHMENT 2 FAX: 213-4524217 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. 15. Amendment. Grantor and Grantee may amend this Conservation Easement only by mutual written agreement and with the written consent of the ACOE. Any such amendment shall be consistent with the Purpose of this Conservation Easement and shall not affect its perpetual duration. Grantor_X its successors and assigns shall record any amendments to this Conservation Easement approved by the Grantee and ACOE in the official records of County, California and shall provide a copy of the recorded document to the Grantee and ACOE. 16. Long-Term Maintenance. Grantor, its successors and assigns shall be responsible for in- perpetuity, ongoing, long-term maintenance of the Property. Such long-term maintenance shall consist of the following activities: (a) annual removal of trash or man-made debris; (b) annual maintenance of signage and other notification features pursuant to Section 6(d); and (c) annual repair, remediation or restoration of the Property damaged by any activities prohibited by Section 3 herein. Grantor, its successors and assigns shall prepare a monitoring and maintenance report documenting activities performed under subsection (a) and (b) above, and shall make reports available to the ACOE upon request. When activities are performed pursuant to subsection (c) above, Grantor, its successors and assigns, shall retain a qualified Biological Monitor to prepare a Restoration Plan and to oversee/monitor such maintenance/repair activities. Grantor shall have its Biological Monitor submit a draft Restoration Plan to the Grantee and ACOE for review and written approval prior to its implementation. Upon completion of restoration as specified in the approved Restoration Plan, Grantor shall have its Biological Monitor prepare a detailed monitoring and maintenance report, and Grantor shall make the report available to the Grantee and ACOE within thirty (30) days of completion of restoration activities. Grantor, its successors or assigns and the Biological Monitor shall sign the monitoring and maintenance 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 maintenance performance by the Grantor, its successors or assigns, or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. 17. Endowment. Grantor shall transfer to the Grantee upon recording of the Conservation Easement a certain sum agreed upon for the purpose of fulfilling Grantee's obligations under this Conservation Easement, including quarterly monitoring of the Property. 18. Recordation. Grantor shall promptly record this instrument in the official records of County, California and immediately notify the Grantee and the ACOE through the mailing of a conformed copy of the recorded easement. 19. 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 - 16 - q ATTACHMEIJT 2 Conservation Easement and otherwise evidences the status of this Conservation Easement as may be requested by Grantor, its successors and assigns. 20. 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 15. (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. (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 - 17 - �'raCWE�JT 2 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) No Hazardous Materials Liability. Grantor represents and warrants that it.has no knowledge of any release or threatened release of Hazardous Materials (defined below)in, on, under, about or affecting the Property. Despite any contrary provision of this Conservation Easement Deed, 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 (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 Deed. 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 and Grantee have executed this Conservation Easement the day and year first above written and have agreed to be bound by the terms and provisions hereof. - 18 - i C[ 2'( ATTACHMENT 2 GRANTOR: a California limited liability company By: , a California corporation, its managing member By: Name: Title: CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Conservation Easement by a limited liability company, dated _,200_, to the is accepted by the undersigned officers on behalf of Grantee. GRANTEE: [NAME] By: Name: Title: Date: Attest: By: Name: Title: Date: - 19 - STATE OF CALIFORNIA A t6IGHME'JT 2 COUNTY OF ) SS. On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their-signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA COUNTY OF }SS. On before me, personally appeared personally known to me (or proved to' me on the basis of satisfactory evidence_) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/theirsignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature �LD ATTACHMEt STATE OF CALIFORNIA COUNTY OF ) SS.- On SS..On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/aresubscribed to the within instrument and acknowledged to me that..he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Exhibit A Legal Description of Property Exhibit ATTAGjienjEHT 2 Map of Property [See Attached] Clo — Exhibit C ATTACHMENT 2 Mitigation Plan [See Attached] r ;� 9 Exhibit ATTAcHRIENT 2 Title Report [See Attached] - 25 - 40757373.7 CO { I Exhibit ATTACHMENT Map of the major, distinct natural features on the Property [See Attached] GAStaff HAVLUCTurchase AgreementABoysen Ranch Donation.doc �5o2 CHMENT 3 /85 J X00 l• . \1 . . 200 °• I / j/ v y/ ►60 \ \ 41, 149 ( /•• approximate boundary - / . ,�. ,• �• / of easement`area - /��� . •° /257 v • 200 Xv 143 160-- N i • �� %38 CITY OF SAN LUIS OBISPO GREENBELT PROTECTION PROGRAM Boysen Ranch Conservation Easement Donation scale P=1,000' �lp�� ATrACHMEW4 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO AUTHORIZING ACCEPTANCE OF A CONSERVATION EASEMENT OR EASEMENTS ON REAL PROPERTY WHEREAS, Phyllis Madonna, Connie Pearce, and Clint Pearce ("Grantors") are the joint owners in fee simple of certain real property in San Luis Obispo County, California, outside of but adjacent to the City of San Luis Obispo, described as Assessor's Parcel Number 067-061-054 and commonly referred to as the Boysen Ranch (the "Property"); and WHEREAS, the Property possesses natural resource values including wildlife and plant resources, and scenic open. space values (the "Conservation Values") of great importance to Grantors, the people of the City of San Luis Obispo, and the people of the State of California; and WHEREAS, due to the Property's topography it is particularly valuable as-a site on which to conduct wetland mitigation and enhancement projects; and WHEREAS, Grantor intends that the conservation values of the Property be preserved and maintained by the continuation of currently existing land use patterns; and WHEREAS, Grantor further intends, as owner of the Property, to convey to the City of San Luis Obispo the right to preserve and protect the conservation values of the property in perpetuity; and WHEREAS, the City of San Luis Obispo is a chartered municipal corporation of the State of California that is authorized by law to accept Conservation Easements; and WHEREAS, the City of San Luis Obispo agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the conservation values of the Property for the benefit of this generation and the generations to come. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Luis Obispo hereby: 1. Authorizes acceptance of the offer of donation of a Conservation Easement or Easements for Assessor's Parcel Number 067-061-054, subject to non-substantive changes approved by the City Attorney, and as may be required by the U.S. Army Corps of Engineers; and 2. Authorizes and directs the Mayor to accept said Conservation Easement (or Easements) on behalf of the City of San Luis Obispo. 2A CAD d l ATTACHMEW4 Approved and adopted this 7"' day of June, 2005. On motion of , seconded by and on the following roll call vote: AYES: NOES: ABSENT: David F. Romero, Mayor ATTEST: Audrey Hooper, City Clerk APPROVED AS TO FORM: Jonatha well, City Attorney Ceo - 32- -_,) ATTACHMENT 5 Planning Commi 'on Minutes April 27,2005 Page 3 Commr. Boswell recomm ded that the following items be ad essed: 1) The City shall require post-construction ru ff controls for all new deve pment; 2) The City shall develop a strategy for improvi the quality and reduci the quantity of storm water runoff in existing urban areas; The City shall up rade and retrofit storm water facilities with roadway reconstruction henever fea ' le; 4) The City shall insure that storm water runoff is adequately controll to red a flood and environmental damage from new development or redevelopment o' cts; 5) The City shall utilize natural fertilizers and biological controls for pest and e s whenever possible; and 6) The City shall identify and protect groundwater qu for e ' ting and potential municipal_water sources. Commr. Osborne moved to coati a this item to June 22 2 5. Seconded by Commr. Aiken. AYES: Commrs. Mi r, Osborne, Aiken, Boswell, Loh, Carter, a Christianson NOES: None ABSENT: None ABSTAIN• Non The motion rried on a 7:0 vote. 2. Ogen Space. GPC 47-05: Review of a proposed conservation easement, on a 30 acre portion of the Boysen Ranch property, on Foothill Boulevard between Los Osos Valley Road and O'Connor Way, and its conformity with the City's General Plan; City of San Luis Obispo, applicant. (Neil Havlik) Natural Resources Manger Neil Havlik presented the staff report for the proposed dedication of a conservation easement on a 23-acre portion of the Boysen Ranch property, recommending the Commission determine and report to the City Council that the proposed property acquisition conforms with the General Plan. PUBLIC COMMENTS: There were no further comments made from the public. COMMISSION COMMENTS:. Commr. Miller moved to determine and report to the City Council that the proposed Property acquisition conforms with the General Plan. Seconded by Commr: Loh . AYES: Commrs. Miller, Osbome, Aiken, Boswell, Loh, Carter, and Christianson NOES: None ABSENT: None ABSTAIN: None _ The motion carried on a 7:0 vote. 6(033 I ' RED FILE IIIIIII��������II I�Ill MEETING AGENDA CAT E �2Z—ITEM LLD MEMORANDUM From the Office of the City Attorney �D� DIR I i7ATT FIN DIR June 7, 2005 j ❑ O FIRE CHIEF CORNEY PW DIR To: Mayor and City Council ; r G_ERKiORIG POLICE CHF _ DEP ZEDS RE.. DIR D IJTIL DIR Via: Ken Hampian, City Administrative Officerd - n j E H Dl t From: Jonathan P. Lowell, City Attorney J2— Subject: Conservation Easement(s) on 30-Acre Portion of the Boysen Ranch Property June 7, 2005, Item C-10 Council member Mulholland expressed concern about certain wording in the Conservation Easement. More specifically, the terms "Project" and"Property" are confusing, as especially evident in subsection (e) of section 6, page C10-13. Please note that the Conservation Easement is a form agreement prepared by the U.S. Army Corps of Engineers. The specific facts presented here, where a property owner is developing one property and agreeing to the placement of a conservation easement over a portion of another property, were not what was contemplated when the Corps drafted the agreement. This form is normally used when a parcel is being developed and a portion of that parcel will be subject to a conservation easement. Staff is recommending that the Council approve the agreement and accept the conservation easement subject to non substantive changes approved by the City Attorney and as may be required by the Corps. In finalizing the agreement, the City Attorney's Office will propose to the Corps that the term "Property" be changed to "Easement Area" and the term "Project" be changed to "Property" and defined to exclude the Easement Area. In this way, it will make clear that the terms of the conservation easement apply to the Easement Area, but do not affect the remainder of the grantor's property. If the Corps is not amenable to this change, a.careful review of the Conservation Easement reveals the true meaning of these different terms. They are just more difficult to grasp in their present form. RECEIVED JUN 0 7 2005 SLO CITY CLERK