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HomeMy WebLinkAboutD-1664 Portion of lots 17 & 49 of subdivision Ranchos Canada de Los Osos and La Laguna Recorded 08/29/2005RECORDING REQUESTED BY:. CUESTA TITLE CO. AND WHEN RECORDED MAIL TO Audrey Hooper, City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 JULIE RODEIMAL I.D San ,Luis Obispo County .... IerklRecorder 8/29/2005 Recorded at the request ot, 1,1,_, ``' 8:00 AM Cuesta Title Company i D 0 C' #' . ,,. .2005 005071748- . Title s: 1 i 0 74 Pages: 37 � Fees 115.00 Taxes 000 Others 0.00 PAID $115.00 Space Above Line for Recorder's Use Only CONSERVATION EASEMENT THIS CONSERVATION EASEMENT is made this day of "0577 2005, by Phyllis Madonna, a widow, and Clinton R. Pearce and Connie E. Pearce, Trustees of the Clinton and Connie Pearce Revocable Trust dated September 15, 2003 (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. Grantor is the sole owner in fee simple of those portions of a certain parcel of real property (the "Parcel "), which portions are legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated by this reference (the "Property"), which consists of approximately 6.63 acres. B. This Conservation Easement provides mitigation for certain impacts of the development of the Calle Joaquin Road Realignment by Costco Wholesale Corporation, a Washington corporation ( "Developer "), located in the City of San Luis Obispo, County of San Luis Obispo, State of California pursuant to requirements of the United States Army Corps of Engineers' ( "ACOE ") Section 404 Permit. No. 200400908 and amendments thereto. :(".Section 404 Permit "). Special Condition 6 of the Section 404 Permit requires Developer'- r ecord a Conservation Easement on all mitigation sites. This Conservation, Easement is intended and shall be deemed to satisfy Special Condition 6. 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 ").. C. Developer has agreed to enter into this Conservation Easement for the purpose of undertaking certain obligations identified herein. 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; .f 1.1-. material in waters of the United States pursuant to Section 404 of the Clean Wat-; Act, _J J �� i_ I •' -D, IULP� • 0 RECEIVED OCT 0 7 2005 SLO CITY CLERK_ J • 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. r 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 Calle Joaquin Realignment Final Habitat Mitigation and Monitoring Plan dated July 11, 2005 ( "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 18 herein; or (3) Activities described in Section 8 herein. (c) Grantor certifies to the ACOE, Grantee, and Developer 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, Grantee., and Developer 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 "W' 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, boundaries and major, distinct natural features such as waters of the United States. Grantor has delivered further evidence of the Natural Condition to Grantee, ACOE, and the Developer 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 . -2- 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 County area an d 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 1(b) 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. 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: (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 -3- • 0 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, transportation, or industrial uses; (g) Any legal or de facto division, subdivision or portioning of the Property, except transfers in accordance with Section 14 below; (h) Construction, reconstruction or placement of any building or other improvement, billboard, or sign except those signs specifically allowed under Section 5(e) and Section 8(d) and the fence allowed under Section 5(g); (i) Dumping, depositing, or accumulating soil, trash, ashes, refuse, waste, bio- solids or any other material; BEE (j) 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, public trails, drainage facilities, walls, 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 B , (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. 8; (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 (o) Establishing 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 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, 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 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) Perform Long -Term Maintenance of the Property as described in Section 18 herein upon issuance of final approval from the ACOE confirming that Developer has successfully completed construction, maintenance, and monitoring of mitigated areas pursuant to the Mitigation Plan; and -5- (f) Prepare a monitoring and maintenance report when activities are performed as set forth in Section 18(a) through (d) herein, and shall make reports available to the Grantee and ACOE upon request. When activities are performed pursuant to Section 18(e), 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 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; and (g) Install an additional fence around the circumference of the Property, if necessary, to protect the Conservation Values of the Property. 6. 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 (b) Perform annual compliance inspections of the Property, and shall make reports available to the Grantor and 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 the ACOE confirming that Grantor 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 shall not engage in any repair or restoration work in the Property without first consulting with the 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 -6- • (e) . Install and maintain signs set forth in Section 8 and Section 18 below; 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 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 8, 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 Developer shall have its Biological Monitor submit detailed plans showing the location of such signs 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 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. -7- (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 Parcel 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 ploughed 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. 9. 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 ACOE, U.S. Department of Justice, and the 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 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 or Developer 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 or Developer (hereinafter "Notice of Violation ") informing Grantor or Developer of the violation and demanding cure of such violation. 9 M., (2) Grantor or Developer, as applicable 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 or Developer 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 or Developer shall complete such cure in accordance with the approved plan. If Grantor or Developer 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 or Developer fails to cure the noticed violation(s) within the time period(s) described in Section 9(b)(2) above, or Section 9(d) below, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor or Developer 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 or Developer of the terms of this Conservation Easement, (ii) enjoin the violation, ex parte if 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 or Developer provides Grantee with a notice of dispute, as provided herein, Grantee shall meet and confer with Grantor or Developer 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 or Developer, 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 or Developer's notice of dispute, conferring with Grantor or Developer, and considering all relevant information related to the violation, Grantee determines that a violation has occurred, Grantee shall give Grantor or Developer notice of such determination in writing. Upon receipt of such determination, Grantor or Developer shall have fifteen (15) days to cure the violation. If said cure reasonably requires more than fifteen (15) days, Grantor or Developer 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 or Developer shall complete such cure in accordance with the approved plan. (c) Conflicting Notices of Violation. (1) If Grantor or Developer 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 or Developer (hereinafter "Active Notice(s) of Violation ") such that the conflict makes it impossible for Grantor or Developer carry out cure consistent with all prior Active Notices of Violation, Grantor or Developer shall give written notice (hereinafter "Notice of Conflict ") to the agency or agencies issuing the later, conflicting Notice(s) of Violation. Grantor 'or Developer 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 or Developer, as applicable 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 or Developer, as applicable shall carry out the cure recommended in such notice within the time period(s) described in Section 9(b)(2), above. Notwithstanding Section 9(d), failure to cure within said time period(s) shall entitle Grantee to the remedies described in Section 9(b)(3). (3) The failure of Grantor or Developer, as applicable 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 or Developer's ability to claim a conflict. (4) This Section 9(c) shall not apply to Section 9(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 or Developer 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 9(b)(2). The written notice pursuant to this paragraph may be transmitted to Grantor or Developer by facsimile. The rights of Grantee under this paragraph apply equally to actual or threatened violations of the terms of this Conservation Easement. Grantor or Developer 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 9, 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 9(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 or Developer including, but not limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantor's or Developer's violation or negligence under the terms of this Conservation Easement shall be borne by Grantor or Developer, as applicable. (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 or Developer shall not be deemed or construed to be a waiver -10- by Grantee of such term or of any subsequent breach of the i 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 or Developer shall impair such right or remedy or be construed as a waiver. (g) Acts Beyond Grantor's or Developer's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor or Developer for any injury to or change in the Property resulting from: (1) Any natural cause beyond Grantor's or Developer's control, including without limitation, fire, flood, storm, and earth movement; or (2) Any prudent action taken by Grantor or Developer under emergency conditions to prevent, abate, or mitigate significant injury to persons and/or the Property resulting from such causes. Notwithstanding the foregoing, Grantor and Developer 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. 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 8(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. 11. 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. - 11 - (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. 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 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. 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 81.5.3 (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. (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 -12- 0 0 Conservation Easement (ii) the transferee shall be deemed to have accepted the restrictions Conse ( ) 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. 15. Additional Easements. 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 Section 404 Permit or the preservation of the Purpose and Natural Condition of the Property as defined in Section 1 of this Conservation Easement or will impair or otherwise interfere with the Conservation Values of the Property. 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 San Luis Obispo County, California and shall provide a copy of the recorded document to the 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: Phyllis Madonna Clinton R. Pearce, Trustee Connie E. Pearce, Trustee c/o Madonna Enterprises 284 Higuera. Street San Luis Obispo, CA 93401 -4215 FAX: 805 -541 -3067 To Grantee: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 -3249 Attention: City Administrative Officer FAX: 805- 781 -7409 Developer: Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027 Attention: Legal & Real Estate Department FAX: 425- 313 -8114 With a copy to: District Counsel -13- I t� . (I )(- , Army Corps of Engineers Los Angeles District 9.15 Wilshire Boulevard, Room 1535 Los Angeles, California 90017 -3401 FAX: 213 - 452 -4217 , 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, Grantee and Developer 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 or its successors and assigns shall record any amendments to this Conservation Easement approved by the ACOE in the official records of San Luis Obispo County, California and shall provide a copy of the recorded document to the ACOE. 18. Long -Term Maintenance. The Grantor shall be responsible for the foregoing long -term maintenance upon 'satisfaction of the Compensatory Mitigation requirements by Developer pertaining to the Property set forth in the Mitigation Plan. 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 8(d); (c) annual exotic species removal; (d) maintenance of the fencing around the circumference of the Property, if installed pursuant to Section 5(g); and (e) annual repair, remediation or restoration of the Property damaged by any activities prohibited by Section 4 herein. Grantor shall prepare a monitoring and maintenance report documenting activities performed under subsection (a) through (d) above, and shall make reports available to the Grantee and ACOE upon request. When activities are performed pursuant to subsection (e) above, Grantor 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 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, or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. 19. 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. - 14- 0 r 20. Recordation. Grantee shall promptly record this instrument in the official records of San Luis Obispo County, California and immediately notify the Grantor and the ACOE through the mailing of a conformed copy of the recorded easement. 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. -15- M (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 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 -16- -0 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: ja0man Madonna The Clinton and Connie Pearce Revocable Trust dated September 15, 2003 By: Clinton earce, Trustee B �. y. Connie E. Pearce, Trustee DEVELOPER: Costco Wholesale Corporation By: Name:_ Title: -17- pollution, protection of h 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: Phyllis V. Madonna The. Clinton and Connie Pearce R_ evocable Trust dated September 1.5, 2003 LI-A IM Clinton R. Pearce, Trustee Connie E. Pearce, Trustee DEVELOPER: Costco Wholesale Corporation By: Nan Titli -17- V/ CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Conservation Easement dated &Ausit,- %, , 2005, by Phyllis V. Madonna, a widow, and Clinton R. Pearce and Connie E. Pearce, Trustees of the Clinton and Connie Pearce Revocable Trust dated September 15, 2003, to the City of San Luis Obispo, is accepted by the undersigned officers on behalf of Grantee. ATTEST: //A Audrey, Hoo ty C r APPROVED AS TO FORM: Jon . Lowell, City Attorney GRANTEE: CITY OF SAN LUIS OBISPO By: Dave Romero Mayor State of California. County of San Luis Obispo ACKNOWLEDGMENT ss. 0 On August 12 , 2005, before me, '2 �� 14 ' Vk '�'� , a Notar u is i d for the State of California, personally appeared PHYLLIS V MADONNA, ersonally known to me or proved to me on the basis of satisfactory evidence to be the person w o ' e name is su scn ed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. a ZWA HORTILLOSA PIURAUE Commission # 1512075 Notary Public - California San Luis Obispo County My Comm. Expires Sep 6.2008 ACKNOWLEDGMENT State of California ) ss. County of San Luis Obispo On.August 12 , 2005, before me, 11 N k tic ' PUP" , a Notary Public in and for the State o 'a, personally appeared CLINTON R. PEARCE and CONNIE E. PEARCE, ersonall known tom (or proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. 900E '9 deS te4dx9 'wuwyNro. _ Nunoo odelQO' ql UcS SLOE 1.8 t # uotsgwwoO Sf1t avid VSOlwaoH vw ACKNOWLEDGMENT State of Washington ) ss. County of King ) 0 On August 1.&-, 2005, before me, -Jhhk &,vim R, MCALL ' , a Notary Public in and for the State of Washington, personally appeared a,'r,c-d S. pL; � , VP�. Asir. 5e ta,2 �a , personally known to me (or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the. within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by.his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand qpgtpffi4l seal. ate• NE R, ''��� rgS101y �I a , pus Ll ��'�lOF WAVX •' w t Exhibit A Legal Description of Property 0 Exhibit "A" CONSERVATION EASEMENT Legal Description AREA 5: s 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 98217, being a pin in concrete in monument well at the centerline intersection of Los Osos Valley Road and Diablo Road, State Plane Coordinate, Zone 5 values, in Survey Feet, Northing: 2,294,411.825 and Easting: 5,754,942.757, North American Datum of 1983 (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/publicworks/surveying.asp; Thence, N 16° 23' 11" W, 5561.14 feet to the East corner 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, fled 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 690 36' 50" E, 2766.58 feet from a3/4" iron pipe with tag stamped LS 2391 marking the comer 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 510 39' 48" W, 610.18 feet to a point referred to herein as Point "B "; Thence, S 60° 27' 37" W, 152.17 feet (LI); Thence, S 33° 10' 30" W, 203.21 feet (L2) to the True Point of Beginning referred to here as Point "D "; Thence, S 33° 07' 14" W, 45.05 feet (L3); Thence, S 51° 34' 03" W, 64.61 feet (L4); Thence, S 73° 09' 17" W, 66.86 feet (L5); Thence, N 73° 57' 27" W, 55.42 feet (L6); Thence, N 62° 57' 48" W, 517.95 feet (1,62) to a point referred to here as Point "E "; Thence, 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); Thence, N 65° 36' 34" E, 154.12 feet (1,79); Thence, S 80° 49' 26" E, 225.33 feet (L80); Thence, S 48° 5 P 32" E, 223.25 feet (L81); Thence, N 78° 45' 02" E, 234.13 feet (L82); Thence, S 73° 55' 27" E, 194.50 feet (1,83); Thence, N 64° 53' 03" E, 79.84 feet (L84); Thence, N 25° 44' 04" E, 199.59 feet (L85); Thence, N 43° 58' 37" W, 95.57 feet (L86); Thence, N 77° 03' 38" W, 173.99 feet (L87) to the point of beginning; "Land Area 5" contains 6.07 acres. And the followine AREA 6: 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: Page 1 of 2 F: \proj\2004 \041038 \Survey\Design \Master Drawings \Legal Descriptions \CostCo Conservation Easement.doc Commencing from City of San L4ispo, Primary Horizontal Control Network Sta ' #8217, being a pin in concrete in monument well at the centerline intersection of Los Osos Valley Road and�blo Road, State Plane Coordinate, Zone 5 values, in Survey Feet, Northing: 2,294,411.825 and Easting: 5,754,942.757, North American Datum of 1983 (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.orgJaublicworks/suryt)Lng.qM; Thence, N 16° 23' 11" W, 5561.14 feet to the East corner 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, atPage 13 of Parcel Maps in the office of the Recorder for said County, referred to herentabove as Point "C ", being S 690 36' 50" E, 2766.58 feet from a IK" iron pipe with tag stamped IS 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 51° 39'48" W, 610.18 feet to a point referred to herein above as Point "B "; Thence, S 60° 27' 37" W, 152.17 feet (LI); Thence, S 33° 10' 30" W, 203.21 feet (L2) to a point referred to herein above as "Point D "; Thence, S 33° 07' 14" W, 45.05 feet (13); Thence, S 510 34' 03" W, 64.61 feet (L4); Thence, S 73° 09' 17" W, 66.86 feet (1,5); Thence, N 73° 57' 27" W, 55.42 feet (L6); Thence, N 6?- 57' 48" W, 517.95 feet (1,62) to the True Point of Beginning referred to here as Point "E "; Thence, N 62° 57'48" W, 15.44 feet (L52); Thence, S 48° 30' 54" W, 138.70 feet (L8); Thence, S 40° 41' 02" W, 100.79 feet (L9); Thence, S 35° 26' 45" W, 56.51 feet (L63); Thence, S 69° 54' 00" W, 126:22 feet (L64); Thence, S 849'32' or W, 121.72 feet (L65); Thence, S 67° 05' 30" W, 9438 feet (L66); Thence; S 75° 05' 54" W, 199.41 feet (L67); Thence, .S 67° 20' 13" W, 189.96 feet (I.68); Thence, S 61° 11' 16" W, 53.69 feet (1,69); Thence, S 52° 33'26" W, 114.60 feet (L70); Thence, S 560 47' 28" E, 15.12 feet (L71); Thence, N 560 07' 58" E, 162.22 feet (L72); Thence, N 72° 01' 13" E, 388.29 feet (L73); Thence, N 67 26' 33" E, 105.68 feet (L74); Thence, N'86° 32' 04" E, 101.58 feet (L75); Thence, N 6V 18' 42" E, 140.20. feet (L76); Thence, N 35° 42' 16" E, 97.82 feet (1,89); Thence, N 450 41' 25" E, 202.46 feet (L88) to the point of beginning; "Land Area 6" contains 0.56 acres. Beatings 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 1° 32' 26.26 ", and to obtain ground level distances multiply the herein above described grid distances by 1.000037396. End Description NO SV,� Prepared by: P'16 Daniel S. Hutc ' n, LS-5139 license renewal 6/30/07) a NO. $134 a • Date: 05- It Page 2 of 2 Of CAI�� F:% proj\20041041038�SurveylDcsipWaster DrawingsUVI DescriptionalCostCo Conservation EasemenLdoc • Exhibit B Map of Property [See Attached] • LINE TABLE. LINE BEARING LENGTH L1 S60'27'37 "W L2 533'10'30 "W L3 . S33`07'1 4."W N45.05 L4 S51'34'03 "W 15.12 L5 S73'09'17 "W 162.22. L6 N73'57'27 "W . L8 S4830'54 "W 138.70 L9 S40'41'02 "W 100.79 L52 N62'5 '48 "W 15.44 L62 N62'57'48 "W 517.95 L63 S35`26'45'W 56.51 L64 S69'54'00 "W 126.22 L65 584'32'07 "W 121.72 L66 S67'05'30 'W 94.38 L67 S75'05'54'W 199.41 LINE TABLE LINE BEARING LENGTH L68 S67'20'13'W 189.96 L69 S61"11 "16'W 53.69 L70 S52'33'26 "W 114.60 L71 S56'47' 28 "E 15.12 L72 N56'07'58'E 162.22. L73 N72'Ot'13'E 388:29 L74 N67'26 '33 "E 105.68 L75 N86'32 '04 "E 101.58 L76 69'18'42 "E 140.20 L77 S46 54'22 "W 101.55 L78 S46'03'33'E 82.60 L79 N6536'34'E 154.12 L80 S80'49'26 "E 225.33 L81 S48 51'32'E 223.25 L82 N78'45'0 "E 234.13 AREA 6 %69 1 X10 � 40s--- oer sos LINE TABLE LINE BEARING - LENGTH L83 S73 55'27 "E 194.50 884 N64'53'03 "E �X/ L85' N25'44'04 "E 199.59 L86 i 95.57 / N77'03'38 "W AREA 5 6.07 ACRES AREA 6 0.56 ACRES NET AREA 6.63 ACRES AREA 6 %69 1 X10 � 40s--- oer sos LINE TABLE LINE BEARING - LENGTH L83 S73 55'27 "E 194.50 884 N64'53'03 "E 79.84 L85' N25'44'04 "E 199.59 L86 N43'58'37 "W 95.57 L87 N77'03'38 "W 173.99 L88 545'41'25'W 202.46 L89 S35'42? . 97.82 0�' 0 LOT 17 y0 A MB 83 9\ {ISTING EASEMENT =R 1999 - 083208 / 1 / 1 1 ' � 1 POINT\ "B" POINT "E ` �POINT""D' v , .L87 .AREA 5 4o' �. V L -83 82 -, L w /' ' LOT 49 � A MB 83 i� RIGHT -OF -WAY POINT OF COMMENCEMENT IS A PIN IN CONCRETE IN MONUMENT WELL AT THE CENTERLINE INTERSECTION OF LOS OSOS VALLEY ROAD AND DIABLO ROAD, BEING, POINT #8217 OF THE CITY OF SAN .LUIS OBISPO PRIMARY HORIZONTAL CONTROL NETWORK, AND HAVING PUBLISHED VALUES LISTED BY THE CITY OF.SAN LUIS OBISPO PUBLIC WORKS DEPARTMENT, ENGINEERING DIVISION. I worur+ ws .rc..ae v Vil %n w .rs.uw",v� aw A 5 4 0 C I A T E.5 tuna: rcr['f'�i.ti mW �' tin 7=69 mom. :+c d nc'Om, mnmum .mason ro nim .... . ............ _.._.._ __. _...., _........,... _ ......... Rpq� EXHIBIT B - CONSERVATION EASEMENT MADONNA ENTERPRISES DRAWN BY: JSW CHECKED BY: DSH I DATE: 04/06/05 0 • Exhibit C Mitigation Plan Calle Joaquin Road Realignment San Luis Obispo County, California HABITAT MITIGATION AND MONITORING PLAN Prepared for: Mr. Jackie Frank Costco Wholesale 999 Lake Drive Issaquah, Washington 98027 Prepared by: MORRo GRoup, ivc. Environmental Services February 22, 2005 Revised April 19, 2005 1422 MONTEREY STREET, SUITE C200 • SAN LUIS OBISPO, CA 93401 • (805)543 -7095 FAX 543- 2367 Calle Joaquin Road Realignment San Luis Obispo County, California HABITAT MITIGATION AND MONITORING PLAN EXECUTIVE SUMMARY The Calle Joaquin Road Realignment Project (Project) Habitat Mitigation and Monitoring Plan (HMMP) has been prepared to mitigate project impacts within Army Corps of Engineers (ACOE), Regional Water Quality Control Board, and California Department of Fish and Game jurisdiction resulting from implementation of the proposed project. Although the project is the Calle Joaquin Realignment Project, the mitigation area will be located off site on the Boysen Ranch. The proposed project site is located immediately west of and adjacent to the Los Osos Valley Road (LOVR) /Highway 101 interchange in San Luis Obispo, California. Costco Wholesale Corporation (project applicant/permittee), as part of its conditions of approval to construct a new warehouse, is required by the City of San Luis Obispo to realign Calle Joaquin to mitigate traffic impacts associated with the development and other future developments. The proposed project includes the realignment of Calle Joaquin, located on the west side of LOVR. The proposed project will reposition the western leg of Calle Joaquin directly across from the existing Calle Joaquin, to the east of LOUR. The new alignment will extend southwest, across actively grazed grassland and bend southeast to connect with the existing Calle Joaquin, where it parallels Highway 101. Two types of wetland habitats will be impacted by the proposed project. The first is a coastal and valley freshwater marsh community with non - native and native grassland and fresh water marsh species. The second habitat is a riparian scrub habitat associated with Drainage 1 and Drainage 2 that is dominated by arroyo willow, interspersed with native, non- native, and ornamental species. Both impacted habitats are identified as wetlands. No non - wetland waters will be impacted during project construction. The goal of the HMMP is to provide a plan to mitigate for project- related impacts to jurisdictional waters of the U.S. This will be accomplished by: 1) enlarging an existing seasonal freshwater marsh wetland; and, 2) restoring part of an existing drainage channel that flows through the center of Boysen Ranch with riparian scrub habitat (freshwater marsh dominated by willows). To offset wetland impacts associated with the proposed project, Costco Wholesale proposes to mitigate off site on the Boysen Ranch by creating 4.455 acres (190,040 ft2) of seasonal freshwater marsh wetlands and restoring 0.518 acres (22,569 ft2) of riparian scrub within the existing drainage channel that flows from LOVR to the center of the mitigation property. Temporary impact areas of seasonal freshwater marsh and the riparian scrub habitat along Drainage 1 and Drainage 2 will be restored on the Calle Joaquin realignment site with arroyo willow cuttings and seeded with native grasses. Morro Group, Inc.. Pq LJ The proposed mitigation activities will 'result in an overall increase in,the aquatic resource functions at the mitigation site. The creation of a freshwater marsh from upland grassland habitat will result in an increase in breeding, foraging and cover habitat. The restored riparian scrub habitat is important for many wildlife species since the tree canopy typically provides a shaded structure and materials for nesting and roosting animals, and the available moisture allows a diverse understory layer to develop. Upon implementation of the HMMP, overall watershed improvements will include increased water quality, increased wetland storage capacity, improved riparian corridor habitat, and a decrease in streambed and bank erosion. These improvements will continue to develop throughout establishment of the mitigation areas. An ACOE- approved restoration specialist will collect data to monitor and evaluate the success of the mitigation area by comparing the actual site conditions with established performance criteria. Field monitoring and sampling will be followed by preparation of annual reports that include photo - documentation and evaluation of the success of the mitigation effort based on whether or not the annual performance goals for that year were met. At a minimum, an ACOE- approved restoration specialist will monitor and maintain the site quarterly during the first two years after planting, and semi- annually for the last three years of the monitoring program. This mitigation proposal includes a qualitative and quantitative approach to evaluating mitigation success for impacts incurred within ACOE jurisdictional areas. The mitigation effort will be considered successful when the ACOE has provided written verification that the final success criteria identified in the HMMP have been met. As the Calle Joaquin Realignment Project permittee, the party responsible for meeting the mitigation obligation pursuant to the special conditions of ACOE permit is: Costco Wholesale Corporation 999 Lake Drive Issaquah, Washington 98027 Mono Group, Inc. • Exhibit D Title Report I U q UESTA I1'LE COMPANY 486 Marsh Street Suite C • San Luis Obispo, CA 93401 (805) 547 -3920 • FAX (805) 547 -3925 PRELIMINARY REPORT ESCROW OFFICER: Kelly Bennett ORDER NO.: 204753 - A TITLE OFFICER: Marcus Harmon Amendment TO: Cuesta Title Company 486 Marsh Street, Suite C San Luis Obispo, CA 93401 ATTN: Kelly Bennett SHORT TERM RATE: n/a PROPERTY ADDRESS: EFFECTIVE DATE: May 17, 2005, 07:30 A.M. The form of Policy or Policies of title insurance contemplated by this report is: California Land Title Association Standard Coverage Policy - 1990 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: Phyllis Madonna, a widow, as to an undivided 1 % interest and Clinton R. Pearce and Connie E. Pearce, Trustees of the Clinton and Connie Pierce Revocable Trust dated. September 15, 2003, as to an undivided 99% interest 3. THE LAND REFERRED TO IN THIS REPORT IS SITUATED UNINCORPORATED, IN THE COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: SEE EXHIBIT "ONE" ATTACHED HERETO AND MADE A PART HEREOF SG \SG 03/07/2005 Order No. 204753 - A EXHIBIT "ONE" 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 Oso 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 corner 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 66 000' East, .2,475.13 feet along the Southerly line of said Lot 49 to the Point of Beginning and being a part of said Lots 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 Condemnation, 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. Assessor's Parcel No: 067 - 061 -054 2 Order No. 204753 - A AT THE DATE HEREOF, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS: 1. General and Special City and /or County taxes, including any assessments collected with taxes, to be levied which are a lien not yet payable. Fiscal Year: 2005 -2006 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. 5. 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. 3 ITEMS: (Continued) Order No. 204753 - A 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. 8. A waiver in favor of the State of California of any claim for damages to said land by reason of the location, construction , landscaping and maintenance of a highway /freeway contiguous thereto, as contained in the deed from 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, Instrument 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 as set forth in the document referred to in the numbered item last above shown. Restrictions, if any, based on race, color or creed are deleted. 12. Any invalidity or defect in the title of the vestees in the event that the trust referred to in the vesting portion of Schedule A is invalid or fails to grant sufficient powers to the trustee(s) or in the event there is a lack of compliance with the terms and provisions of the trust instrument. If title is to be insured in the trustee(s) of a trust,(or if their act is to be insured), this Company will require a copy of the trust instrument creating such trust, and all amendments thereto, together with a written verification by all present trustees that the copy is a true and correct copy of the trust, as it may have amended, that it is in full force and effect and that it has not been revoked or terminated. 4 ITEMS: (Continued) END OF ITEMS Order No. 204753 A Exhibit E Map of the major, distinct natural features on the Property [See Attached] 0 / Aace s F m ACRES ' NET AREA 6.63 ACRES LOT 17 A MB 83 O�' C) �0 y LV I y � •, �_._.... � • a "• -tea 8 A MB 83 s OS `SOS ` RIGHT —OF —WAY d POINT OF COMMENCEMENT IS A PIN IN �' CONCRETE IN MONUMENT WELL AT THE aCENTERLINE INTERSECTION OF LOS t✓q `` `\` �i OSOS VALLEY ROAD AND DIABLO ROAD, BEING POINT #8217 OF THE CITY OF F)' NETWORK, AND HAVING PRIMARY HORIZONTAL CONTROL u �. PUBLISHED VALUES LISTED BY THE CITY OF SAN LUIS OBISPO PUBLIC WORKS 11OM''00'Qr E DEPARTMENT, ENGINEERING DIVISION. a ®a (m ;„�w�,"rME;x�[; ^6 c,' Q,Eo,"[� �Dy EXHIBIT E - CONSERVATION EASEMENT WITH TOPOGRAPHY u uuirrngwrts wTM raxx,� umxr[mNxr ASSOCIATES y x EII O�Otcl1� Mian.¢v°amaaz[s M•r wr+¢s o umnc. ^rives MADONNA ENTERPRISES r «M +[ x x m w nxrxor�svwu C .-CE ixmoou¢o 2 • c • e x s y cc oxzrTw�ac1. 16 .c m.rGT[.[xuc[[ x T o r 1TM0 x M[ xCoY na nrrn@r u 5 v wD s oo cux[x AT: 06/ 3/05 Dw5 CHECKED BY: DSH ucw u rw mTMr xn W - - EpiD F ®®CU" 'EN W'