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HomeMy WebLinkAbout2002-115333e ~ - RECORDATK3N REQUESTED BY AND WHEN RECORDED MAIL TO: e~~u~Ts oQ-sOU~Anh ClerktRecoraer ReooMsd al the roquest of Public LD 12/28/2002 4:37 PM 0 o c n: 2002115333 ~ T'D°'~ ~ ~~~ 11 Ms. Kelly Wetmore F~ 0•~ s ~ I~ ~ ~N I~ ~ II1~ C ty of Arroyo Grande orhsrs 0.00 P.O. Box 550 PaD so.eo Arroyo Grande, CA 93420 APN 007-770-059 For Recorr~r's flee Only DECLARATION OF CONSERVATION COVENANT THIS DECLARATION OF CONSERVATION COVENANT (HEREINAFTER THE "CONSERVATION COVENANT") IS DATED this 23RD day of December 2002, by the City of Arroyo Grande ("Covenantor') for the benefit of the United States acting by and through the U.S. Army Corps of Engineers ("ACOE°) is made with reference to the following facts. RECITALS A. Covenantor is the sole owner in fee simple of certain real property in an incorporated portion o~ the County of San Luis Obispo, State of California, designated as Assessor's Parcel No. 007-770-059, and as Lot 14 of Parcel Map AG 79-840 acx:ording to map recorded in Book 29, Page 79 of Parcel Maps in the Office of the County Recorder at said County (the "Real Property"). An area of 0.18 acres (7840 ftz) on the Real Property will be restored and enhanced and set aside pursuant to the Section 404 Permit defined below and is depicted in Exhibit "A" attached hereto and incorporated herein by this reference (the "Mitigation Property"). B The Mitigation Property possesses wildlife and habitat values (collectively, "conservation values") of great importance to the United States. C. The Conservation Covenant provides compensatory mitigation for impacts to'Waters of the United States' and is granted to satisfy the requirements of the Section 404 permit No. 200100656-LM ('Section 404 Permit") issued by the ACOE pursuant to its aulhotity under the federel Clean Water Act (33 U.S.C. Section 1344). The Section 404 Permit was issued to Mr. Russ Sheppel on August 22, 2002 for the Oak Park Health Plaza project. D. The City of Arroyo Grande on April 10, 2001 prepared an Initial Study/Mitigated Negative Declaration for the Oak Parts Health Plaza project (Conditional Use Permit Case no. 01- 005 and Lot Line Adjustment 01-001). E. Covenantor intends to maintain the conservation values of the Mitigation Property in order to retain and enhance wildlife and habitat values in perpetuity. COVENANTS TERMS. CONDITIONS AND RESTRICTIONS In censideretion of the above recitals and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to Calffomia law, the Covenantor hereby voluntarily records a conservation covenant in perpetuity over the Mitigation Properly. This Conservation Covenant shall run with the land and be binding on Covenantor and Covenantor's heirs, successors in interest, administrators, assigns, lessees, and other occupiers or users of the Property or any portion of it. Puroose. (a) The purpose of this Conservation Covenant is' to ensure the Mitigation Property will be retained in perpetuity in a natural condition, defined below, and to prevent any use of the Mitigation Properly that will impair or interfere with the conservation values of the Mitigation Property. Covenantor intends that this Conservation Covenant will cenfine the use of the Mitigation 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 Covenant. (b) The term "natural condition" shall initialy mean the condition otthe Mitigation Property at the time of this grant. However, the intent of Covenantor and ACOE is that certain mitigation activities, as required in the Section 404 Permit, and described in the Mitigation Plan, dated August 2002, should occur on the Mitigation Property. Covenantor is not directly responsible for implementation and success of mitigation obligations identified in the approved Mitigation Plan. Such obligations remain the responsibility of Mr. Russ Sheppel. The term "natural condition" shall be modfied once the mtigation plan has been fully and successfully implemented to reflect its successful implementation. Covenantor certifies that there are no structures, improvements, and easements existing on the Mitigation Property at the time of this Covenant. The natural condition is evidenced in part by a plat of the Mitigation Property showing all relevant property lines, easements, rights of way and dedications, and all existing man-made improvements and structures, and major, d~tlnd natural features such as waters of the United States. Copies of the once phobbaane attached to this dacurrtant as Exhibit "B-1"and "B-2" and inoorporptrad heron by this reference. If a controversy arises with respect to the natural condition of the Mitigation Property, the parties 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. 2. ACOE's rights. To accomplish the purposes of this Conservation Covenant, Covenantor hereby conveys the following rights to the ACOE: (a) To enter upon the Mitigation Property at reasonable times after notice to Convenantor in order to monitor Russ Sheppel's and/or the Covenantor's compliance with and to otherwise enforce the terms of this Conservation Covenant and for scient~c research and interpretive purposes by ACOE or their designees, provided that ACOE shall not unreasonably interfere with Covenantor's use and quiet enjoyment of the Real Property (other than the Mitigation Property). In the event of an emergency or if there is a current violation of the Covenant, no prior notice is required in order for ACOE to enter the Mitigation Property; 2 , i (b) To prevent any activity on or use of the Mitigation Property that is inconsistent with the purposes of this Conservation Covenant and to require the restoration of such areas or features of the Mitigation Property that may be damaged by any ad, failure to act, or any use that is inconsistent with the purposes of the Conservation Covenant; (c) All present and future development rights. 3. Prohibited Uses. Any activity on or use of the Mitigation Property inconsistent with the purposes of the Conservation Covenant is prohibited. Without limiting the generality of the foregoing, the following uses by Covenantor, Covenantor's agents, and third parties, are expressly prohibited: (a) Unseasonal watering, use of herbicides, pesticides, biocdes, fertilizers, or other agricultural chemicals; weed abatement activities, incompatible fire protection activities; and any and all other activities and uses which may adversely affect the purposes of this Conservation Covenant. (b) Use of off-road vehicles and use of any other motorized vehicles except on designated roadway; (c) Grazing or other agricultural activity of any kind; (d) Recreational activities inducting but not limited to, horseback riding, biking, hunting, or fishing, except as may be specifically permitted under this Conservation Covenant; (e) Commerdal or industrial uses; (f) Any legal or de facto division, subdivision or portioning of the Mitigation Property, except transfers in accordance with Section 12 below; (g) Construction, reconstruction or placement of any buiktling or ottrer improvement, billboard, or sign (except for signage permitted under Section 7, below); (h) Depositing or accumulation of soil, trash, ashes, garbage, waste, bio-solids or any other material; (i) Planting, introduction or dispersal of non-native or exotic plant or animal spades; Q) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extraction of minerals, loam, gravel, soil, rods, sand or other material on or below the surtace of the Mitigation Property; (k) Altering the general topography of the Mitigation Property, including but not limited to building of roads and flood control work; 3 (I) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (1) fire breaks, (2) maintenance of existing trails or roads, (3) prevention or treatment of disease, or (4) required mitigation programs; (m) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Mitigation Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or subsurface waters. 4. Covenantor's Duties. Covenantor shah undertake a0 reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the conservation values of the Mitigation Property, and shall comply with all conditions of the Section 404 Permit, a copy of which is attached hereto as Exhibit "C" and incor~oreted herein by this reference. 5. Reserved Rights. Covenantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Mitigation Properly, including the right to engage in or to pennit or invite others to engage in all uses of the Mitigation Property that are consistent with the purposes of this Conservation Covenant. 6. ACOE' Remedies. If ACOE determines that Covenantor or its agents, contractors, or invitees are in violation of the terms of this Conservation Covenant or that a violation is threatened, the ACOE making such determination shall give written notice to Covenantor of such violation and demand in writing the cure of such violation. If Covenantor fails to cure the violation within fifteen (15) days after receipt of said written notice and demand, or said cure reasonably requires more than fifteen (15) days to complete and Covenantor fails to begin the cure within the fifteen (15) day period or fails to continue diligently to complete the cure, either ACOE may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Covenantor with the terms of this Conservation Covenant, to recover any damages to which ACOE may be entitled for violation by Covenantor of the terms of this Conservation Covenant or for any injury to the cxetset^atlen v~ues of the Mi~tion Property, th enjdrrthe vioMtion, ez parts ~{neay, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relief, including, but not limited to, the restoration of the Mitigation Property to the condition in whk:h it existed prior to any such violation or injury. Without limiting Covenantor's liability therefore, either ACOE may apply any damages recovered to the cost of undertaking any corrective action on the Mitigation Property. If ACOE, in its sole discretion, detenmines that clrcumstances require immediate action to prevent or mitigate significant damage to the conservation values of the Mitigation Property, ACOE may pursue its remedies under this Section 6 without prior notice to Covenantor or without waiting for the period provided for cure to expire. The rights of ACOE under this section appy equally to actual or threatened violations of the terms of this Conservation Covenant. Covenanthr agrees that ACOE's remedies at law for any violation of the terms of this Conservation Covenant are inadequate and that ACOE shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which ACOE may be entitled, including specific performance of the terms of this Conservation Covenant, without the necessity of proving 4 either actual damages or the inadequacy of othervvise available legal remedies. The remedies of ACOE described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, incuding, but not limited to, the remedies set forth in California Civil Code Section 815, of seq., inGusive. The failure of ACOE to discover a violation or to take immediate legal action shall not bar the ACOE from taking such action at a later time. If at any time in the future, Covenantor or any subsequent transferee uses or threatens to use such lands for purposes inconsistent with this Conservation Covenantor, then, appropriate enforcement agencies of the United States have standing to enforce this Conservation Covenant. These rights are in additiorf to, and do not limit, the rights of enforoem~t under a,.~y ar mots of the $eclkfn #iD4 peTmft, or any ofthe various documents create thereun8er or refereed to therein. 6.1 Costs of Enforcement. Any costs incurred by ACOE where it is the prevailing party, in enforGng the terms of this Conservation Covenant against Covenantor, inchiding, but not limited to, costs of suit and attorneys' fees, and any costs of restoration necessitated by Covenantor's violation or negligence under the terms of this Conservation Covenant shall lie home by Covenantor. 6.2 ACOE Discretion. Enforcement of the terms of this Conservation Covenant by ACOE shall be at the discretion of the ACOE, and any forbearance by ACOE th exercise its rights under this Conservation Covenant in the event of any breach of any term of the Conservation Covenant shall not be construed to be a waiver by ACOE of such terms or of any subsequent breach of the same or any other term of this Conservation Covenant or of any of ACOE's rights under this Conservation Covenant. No delay or omission by ACOE in the exerese of any right or remedy upon any breach by Covenantor shall impair such right or remedy or be construed as a waiver. Further, nothing in this Conservation Covenant creates anon-discretionary duty upon the ACOE to enforce its provisions, nor shall deviation from these terms and procedures, or failure to enforce its provisions give rise to a private right of action against ACOE by any third parties. 6.3 A~_Be,~ond Covenantor's Control. Nothing contained in this Conservation Covariant ahalF tss t~natrued to entttte ACOE to brMg arty action against Canrerlewltor !or any significant injury to or change in the Mitigation Property resulting from (i) any natural cause beyond Covenantor `s control, including without limitation, fire not caused by Covenantor, flood, storm, and earth movement, or from any prudent action taken by Covenantor under emergency conditions to prevent, abate, or mitigate sign cant injury to the Property resulting from such causes; (ii) ads by Covenantor or its employee; or (iii) acts of third parties beyond the control of Covenantor. Notwithstanding the foregoing, even actions undertaken during emergency conditions must receive prior authorization from the Department of the Army (through expedited procedures, ff appropriate) if the action involves discharge of dredged of fill material into jurisdictional 'tivaters of the United States.' 6.4 Right of Enforcement. Despite any contrary provision of this Conservation Covenenat, all rights and remedies conveyed to ACOE under this Covenant shall extend to and are enforceable by the Corps and the U.S. Department of Justice. These rights are in addition to, and do not limit, the rights of enforcement under the Section 404 Permit. 7. Installation and Maintenance of Signaoe. Covenantor shall post and maintain 5 appropriate signage identifying the Conservation Covenant. Such signage shall be subject to the prior written approval of ACOE, which shall not be unreasonably withheld. 8. Access. This Conservation Covenant does not convey a general right of access to the public on the Mitigation Property. 9. Costs and Liabilities. Covenantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Mitigation Properly. Covenantor agrees that ACOE shall have no duty or responsibility for the operation or maintenance of the Mitigation Property, the monitoring of hazardous conditions thereon, or the protecfion of Covenantor, the public or any third par~ieti frcm~,titl~ rela~tg to corrditiot~s dTf tlfe Mitkjaffon Prdper(y. Covenantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Covenant, 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. 9.1 Taxes. Covenantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Properly by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Covenant, and shall furnish ACOE with satisfactory evidence of payment upon request. 9.2 Indemni Covenantor shall hold harmless, protect and indemnify ACOE and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each an "Indemnfied Party' and, collectively,. "Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or judgments (each a °Claim' and, collectively, "Claims"), arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other rtreN6sr relebeeiae of occurring on or abaci the Property, uMe~ due to the negNger~ dF AG# cr any of its employees; (2) breach of the obligations specified in Sections 4, 8, and 8.1; and (3) the existence or administration of this Conservation Covenant, except to the extent qused by ACOE's negligence or willful misconduct. If any action or proceeding is brought against any of the Indemnified Parties by reason of any such Claim, Covenantor shall, at the election of and upon written notice from ACOE, defend such action or proceeding by counsel reasonably acceptable to the Indemnified Party or reimburse ACOE for all charges incum3d for services of the Department of Justice in defending the action or proceeding. 9.3 Condemnation. The purposes of the Conservation Covenant are presumed to be the best and most necessary public use as defined at California Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700. 10. 6 11. Subsequent Transfers. Covenantor agrees to incrorporate the terms of this Conservation Covenant in any deed or other legal instrument by which Covenantor divests itself of any interest in all or any portion of the Mitigation Properly, including without limitation, a leasehold interest. Covenantor further agrees to give written notice to ACOE of the intent to transfer any interest at least fifteen (15) days prior to the date of such transfer. The failure of Covenantor to perform any act provided in this section shall not impair the validity of this Conservation Covenant or limit its enforceability in any way. 12. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to any other party or parties shall be in writing and be served personally ~ sent by recognized ovemlght c~ufier that guexi~ntees rtext deMir~ry or dY' das3 mall, poste~e prepaid, addressed as follows:.,`. To Covenantor: Mr. Steve Adams City Manager City of Arroyo Grande P.O. Box 550 Arroyo Grande, CA 93420 To ACOE: U.S. Army Corps of Engineers Los Angeles District, Regulatory Branch 911 Wilshire Blvd. Los Angeles, CA 90012 or to such other address as a party shall designate by written notice to the other parties. Notice shall be deemed effective upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 13. Amendment. Covenantor may amend this Conservation Covenant only with written appresvaf e+f t~91CbE. Any ttt~t ar~rrrrdment shall be oornsiatent with the p of'tfits Conservation Covenant and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Luis Obispo County, State of Calffomia. 14. 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 Covenant. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Covenant shall be liberally construed to effect the purposes of this Conservation Covenant. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Covenant that would render the provision valid shall be favored over any interpretation that would render it invalid. 7 (c) Severabilitv. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Covenant, such action shall not affect the remainder of this Conservation Covenant. If a court of cempetent jurisdiction voids or invalidates the application of any provision of this Conservation Covenant 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 Covenant and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Covenant. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accord toe with Se~ion 13. (e) No Forteiture. Nothing contained herein will result in a forteiture or reversion of Covenantor's title in any respect. (f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Covenant shall be binding upon, and inure to the benefit of Covenantor and its respective personal representatives, heirs, sucxessors, and assigns and shall constitute a servitude running in perpetuity with the Mitigation Property. (g) Termination of Rights and Obligations. A party's rights and obBgations under this Conservation Covenant terminates upon transfer of the party's interest in the Conservation Covenant or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. (h) Caotions. 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) No Hazardous Materials Liability. Covenantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined bebw) in, on, under, ~Ibaraf'a~r affeaNng.tt~a may. Oee>~4te any rxlntrary pro+~bn of tttis Covenant, the parties do not intend this Conservation Covenant to be, and this Conservation Covenant shall not be, construed such that it creates in or gives to ACOE 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 imitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.; hereinafter ACERCLA); or (2) The obligations or liabilities of a person described in 42 U.S.C. Secton 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 8 associated with the Property; or (5) Any control over Covenantors ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. The term °Hazardous Materials" includes, without limitation, (i) material that is flammable, explosive or radioactive; (ii) petroleum products, inGuding by-products and fractions thereof; and (iii) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. Section 6901, et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100, et seq.); the Hazardous Substa0cs Account Act (Caflfomia Health & Safety Code S~ton 25300. seq.), and ~ the reguiaifitSfi?; adopted "and putiRcattons promulgated pursuant to thorn, or any offer applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Conservation Covenant. The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, outer or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Covenantor represents, warrants and covenants to ACOE that Covenantor's activities upon and use of the Mitigation Property will comply with all Environmental Laws. (j) Additional Easements. Covenantor shall not grant any additional easements, rights of way or other interests in the Property (other than a security interest that is subordinate to this Conservation Covenant), or grant or otherwise abandon or relinquish any water agreement relating to the Property, without first obtaining the written consent of ACOE. ACOE may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Covenant or will impair or interfere with the conservation values of the Mitigation Property. This Section 14(j) shall not prohibit transfer of a fee or leasehold interest in the Mitigation Property that is subject to this Conservation Covenant and complies with Section 11. AV ~ t+YHEREOf Covbrterrtor has ex'ecufed this Ccroservatbn Covenant the dey and year first above written. COVENANTOR: Dated: December 23, 2002 Mr. Steven Adams City Manager City of Arroyo Grande ey: M .Steven Adams - 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California l ~l$ ©~ (5~ j ss. County of ~~ JJJ On ~ ~- ~ ~- y ~fl~'" ,before me, ~}..ElJ(, y l1J~Tlnw(P~, i~.C)'f74•K~dr-I G , Dafe _ ame antl TMa of ORcer (e.g., ane~l Doe, Notary P Ic ) personally appeared ATE V E rsonaRy known to me proved to me on the basis of satisfactory evidence KELLY WETMORE CommlK•IOn 111~9~ tVOtary Pubtle - CaAbrNa San Lull Obispo C+>anly - My Comm. BnYes.lat 90.6 to be 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. WIS my hand d offi(c-ia~lvs~/~`e-aQl-- Place Notary Seal Above Sgnature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Do ment ~ q /- Title or Type of Document: ~~'.Q_A/Lar~'ter.t7C1 t4gADNVa.~'iOY~~D Document Date: (2-7-3-Oa-' Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ^ Individual Top of thumb here ^ Corporate OfficerTitle(s): ^ Partner-^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conse ^ Other: rvator Signer Is Representing: ~~~~F~rroua f~r~ l~ O 1988 Nehonel Notary Asexietiai • 9350 t)B SoPo Ave., P.O. Bax 2002 • COetswon0. CA 91313-2CM • wxw.~a~brelnotery.ap Prod No. 590] Reptlx. GII Td4Fee 1-BOfIA]6EB21 F~ i 3.al.9tft N ~, ----~J 'w~..~ ~~+t ~ ,~2' N~ysYs-t~v ,rapp.~l ~~ '. • ~ q l ? a~ ~ f ~y ~ `~ 1 t ' d M r ~__ 1 r t~ C~ 1 --_.._ _ r~v,~,~, w Y a C 1 1 ~ ~+'.ttt[A3'k'.. /•~ ~ N~r~rs•s r r ` f ~~ t +9 ! ~D OF DO