HomeMy WebLinkAbout2004-11-09; City Council; Resolution 2004-3571
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RESOLUTION NO. 2004-357
A RESOULTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING AN
AGREEMENT FOR THE PURCHASE OF A
CONSERVATION EASEMENT, “MEMORANDUM OF
UNDERSTANDING,” AND A LETTER FROM THE
UNITED STATES FISH AND WILDLIFE SERVICE
REGARDING MITIGATION CREDITS FOR THE CITY’S
CARLSBAD CITY GOLF COURSE PROJECT
WHEREAS, the City Council of the City of Carlsbad, California, formally approved in
December, 2003 proceeding with the development of the proposed Carlsbad City Golf Course
Project, hereafter referred to as the “Project;” and
WHEREAS, permits and entitlements for the Project issued to the City of Carlsbad,
hereafter referred to as the “City,” by interested Federal and State Resource Agencies require the
acquisition and dedication of a conservation easement over off-site lands, hereafter referred to as
“lands,” containing specified resources as compensatory mitigation for impacts to specified
habitat and species to occur by the development of the Project by City; and
WHEREAS, said off-site lands have been identified by City and approved by the
interested State and Federal Resource Agencies as suitable and acceptable compensatory
mitigation lands for impacts to be caused by development of the Project by City; and
WHEREAS, a purchase agreement and associated documents and exhibits for City to
acquire a conservation easement over said lands has been prepared and are hereby presented for
the City Council’s review and action; and
WHEREAS, City and the California Department of Fish and Game have prepared for the
City Council’s review and action a “Memorandum of Understanding” regarding the application
and use of said acquired lands and the conservation easement to be acquired by City; and
WHEREAS, the United States Fish and Wildlife Service has delivered to City a letter
dated September 8, 2004 addressing their position regarding the City’s potential use of
mitigation credits generated by the City’s acquisition of said conservation easement.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That a purchase agreement, and the associated documents and exhibits attached thereto,
are hereby approved by the City Council and the Mayor is hereby authorized to execute
said agreement. Following the execution of said agreement by the Mayor, the City Clerk
is directed to return the signed agreement, and all associated documents and exhibits
thereto, to the City Attorneys Office for processing via escrow of said agreement. The
City Clerk is further directed to forward copies of the signed agreement, and the
associated documents and exhibits, to the Planning and Recreation Departments for their
files.
3. That a “Memorandum of Understanding” between the City and the California
Department of Fish and Game as well as the acknowledgment letter dated September 8,
2004 from the United States Fish and Wildlife Service are hereby approved and the
Mayor is authorized to execute said Memorandum. Following the Mayor’s execution of
said Memorandum, the City Clerk is directed to forward the signed Memorandum to the
City Attorneys Office for Mer processing. The City Clerk is further directed to
forward copies of the signed Memorandum to the Planning and Recreation Departments
for their files.
4. That funds in the amount of $1,393,200 from the Golf Course Enterprise Fund are hereby
approved and the Finance Director is authorized to appropriate said funds and disburse
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to the escrow account in coordination with the filing of documents into escrow by the City
Attorneys Office.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 9th day of tjovember , 2004 by the following
vote, to wit:
AYES: Council Members Lewis, Finnila, Hall and Packard.
NOES: None
ABSENT: Council Member Kulc
ATTEST
1 LORRAINE h@N OOD, City klerk
(SEAL)
' &
-3 - 5-
EXHIBIT 2
PURCHASE AGREEMENT
FOR
CONSERVATION EASEMENT
(City of Carlsbad HCP Offsite)
THIS PURCHASE AGREEMENT FOR CONSERVATION EASE MEN^
(“Agreement”) is made and effective as of the date and between the parties shown in Section 1
* below, and with reference to the terms and conditions set forth herein.
1.
set forth below.
Basic Terms. The following terms shall have the meanings in this Agreement as
1.1 Effective Date: ,2004.
1.2 RECM: REAL ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware corporation (“RECM’).
1.3 Buver: CITY OF CARLSBAD, a California municipal corporation
(“Buyer”).
1.4 Conservation Easement; Conservation Land; Conservation Easement
Deed: As used herein, “Conservation Easement” shall mean that certain fifty-one and 75/100*
(5 1.75) acre habitat conservation easement to be granted to the State of California acting by and
through its Department of Fish and Game as more particularly described in the “Conservation
Easement Deed”, a copy of which is attached hereto as Exhibit “A” and incorporated herein as
though fklly set forth. As used herein, the term “Conservation Land” shall be that certain real
property located in the County of San Diego, State of California as more particularly described
on Exhibit “B” attached hereto and incorporated herein as though hlly set forth. The
Conservation Easement affects and burdens a portion of the Conservation Land, which
Conservation Easement is more particularly described in the Conservation Easement Deed.
1.5 Purchase Price: One Million Three Hundred Ninety-Three Thousand Two
Hundred Dollars ($1,393,200.00) calculated at $27,000 per acre for 51.6 acres. (Note: The
purchase is based on 5 1.6 acres; the actual easement covers 5 1.75 acres.)
(a) Deposit: $10,000.00
1.6 Closing: Closing shall occur on payment of the Purchase Price and
delivery of the Conservation Easement Deed to Buyer, which in no event shall be later than
November 1,2004.
1.7 Notices:
To RECM: Real Estate Collateral Management Company
Attn: Mr. Fred Arbuckle
c/o Morrow Development, Inc.
1903 Wright Place Suite 180
Carlsbad, CA 92008
RECM Conservation Easement Purchase Agreement
278 17-711 828363.2 1 8/20104
,
With a copy to: Ronald W. Rouse, Esq.
Luce, Forward, Hamilton & Scripps
11988 El Camino Real, Suite 200
San Diego, CA 92 130
To Buyer: City of Carlsbad
Attn: Mr. John Cahill
1635 Faraday Avenue
Carlsbad, CA 92008
With a copy to: Jane Mobaldi, Esq.
City Attorney’s Office
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
2. Purchase. RECM is the owner of the Conservation Land, and hereby agrees to
grant the Conservation Easement to the State of California for the benefit of Buyer, and Buyer
agrees to purchase from RECM, the Conservation Easement upon the terms and conditions
contained in this Agreement.
2.1 Purchase Price. The Purchase Price to be paid by Buyer to REEM for the
Conservation Easement is set forth in Section 1.5 above.
2.2 Payment of Purchase Price. The Purchase Price for the Property shall be
paid by Buyer to RECM as follows:
(a) Deposit. Buyer’s check to RECM in the amount of the Deposit
shall be paid concurrently with execution of this Agreement. Except as otherwise provided in
Section 3.1, the Deposit shall be non-refundable to Buyer and retained by RECM pursuant to
Section 4, but shall be credited toward the Purchase Price.
(b) Balance of Pavment. On or before the Closing, Buyer shall pay to
RECM the Balance of the Purchase Price in cash, or cash equivalent acceptable to RECM.
2.3 Deliverv of Conservation Easement. At the Closing, RECM shall deliver
to Buyer the Conservation Easement duly signed and acknowledged.
3. Additional Covenants.
3.1 Buyer to Obtain All Apencv Approvals. It is the sole responsibility of
Buyer to obtain approval and authorization from the California Department of Fish and Game
and U.S. Fish and Wildlife Service (collectively the “Agencies”) that the Conservation Easement
and Conservation Easement Deed are acceptable to the Agencies for purposes of the offsite
habitat mitigation obligations of the City of Carlsbad. Such approval and authorization of the
Agencies shall be evidenced by their execution of a Memorandum of Understanding or other
RECM Conservation Easement
Purchase Agreement 278 17-711828363.2 2 8/20/04
I
written approval acceptable to the Buyer. The Agencies’ approval shall be a condition precedent
to Buyer’s obligation to perform under this Agreement; if the Agencies’ approval is not obtained,
Buyer shall be refknded its Deposit.
3.2 RECM and Buyer Cooperation. RECM and Buyer shall cooperate with
one another in connection with the Buyer’s efforts to obtain its approvals from Agencies,
provided it shall be at no additional liability, cost or expense to RECM.
3.3 RECM’s Habitat Conservation Program. RECM and Buyer are parties to
that certain “Implementation Agreement Regarding the City of Carlsbad/Fieldstone/La Costa
Associates Habitat Conservation PladOn-Going Multi-Species Plan” dated June 7, 1995 by and
between the Agencies and RECM by subsequent assignment and assumption (the “HCP”) and
pursuant to which the Conservation Land was acquired by RECM as the Agencies’ approved
offsite habitat lands as required in the HCP. Pursuant to the HCP, the form of the Conservation
Easement Deed has been established and previously approved in prior conservation easement
conveyances under the HCP. Buyer understands, acknowledges and hereby consents to the
conveyance of fee title of the Conservation Land by RECM to the Center for Natural Lands
Management (“CNLM”), which is the approved Conservation Land manager under the HCP, and
understands that other conservation easements may be granted over other portions of the
Conservation Land pursuant to the HCP. RECM will be responsible for fimding the cost of the
endowment for maintenance and management purposes to CNLM attributable to the
Conservation Easement to be granted herein. Said endowment funding and title transfer to
CNLM shall occur at and when determined by RECM, and Buyer shall not interfere, directly or
indirectly in such transfer, the amount or timing of the endowment hding, or any other matter
regarding the HCP.
3.4 Buver’s Inspections. Buyer, and its designated agents, may enter on the
Property at any time prior to the Closing Date to conduct further reasonable and customary
inspections regarding the Conservation Easement Land. Buyer agrees to repair any damage to
the Conservation Easement Land caused by Buyer, its agents or independent contractors and
further agrees to indemnify, defend and hold RECM, and its agents, employees, owners and
Morrow Development, Inc. (collectively “Affiliates”) harmless from and against any costs,
expenses, losses, attorneys’ fees and liabilities (including, without limitation, claims of
mechanics’ liens) incurred or sustained by RECM or its Affiliates as a result of the conduct of
Buyer, its agents, or independent contractors under this provision. The covenants contained
herein shall survive the Closing or earlier termination of this Agreement. Buyer shall be solely
liable and responsible for all costs for its additional studies or inspections.
4. Licluidated Damages. IN THE EVENT BUYER FAILS TO COMPLETE THE
PURCHASE OF THE CONSERVATION EASEMENT AS HEREIN PROVIDED FOR ANY
REASON OTHER THAN AN ONGOING RECM DEFAULT OR BUYER’S INABILITY TO
OBTAIN AGENCIES’ APPROVALS PURSUANT TO SECTION 3.1, IT IS AGREED THAT
THE DEPOSIT HELD BY RECM SHALL BE RETAINED BY RECM AS
NONREFUNDABLE LIQUIDATED DAMAGES AND NOT AS A PENALTY. IT IS
AGREED THAT SAID AMOUNTS CONSTITUTE A REASONABLE ESTIMATE OF THE
DAMAGES TO RECM PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671 ET
SEQ. BUYER AND RECM AGREE THAT IT WOULD BE IMPOSSIBLE OR
RECM Conservation Easement
Purchase Agreement
2781 7-711828363.2 3 8/20104
8
*.
IMPRACTICAL TO PRESENTLY PREDICT WHAT MONETARY DAMAGES RECM
WOULD SUFFER IN SUCH EVENT. BUYER DESIRES TO LIMIT THE MONETARY
DWGES FOR WHICH IT MIGHT BE LIABLE HEREUNDER AND BUYER AND RECM
DESIRE TO AVOID THE COSTS AND DELAYS THEY WOULD INCUR IF A LAWSUIT
WERE COMMENCE T LAW OR IN EQUITY TO COLLECT DAMAGES, OBTAIN SPECIFIC , OR ANY OTHER RELIEF.
,
RECM:
(Initials)
5. Warranties; Covenants.
5.1 RECM’s Warranties. RECM represents and warrants to Buyer that:
(a)RECM is the owner of and has full right, power and authority to grant the Conservation
Easement as provided herein; and (b) to the best of RECM’s actual knowledge, no claims or
legal action, have been commenced, threatened or are pending affecting the Conservation
Easement or Conservation Land.
5.2 Buyer’s Warranties. Buyer represents and warrants to RECM that:
(a) Buyer has full right, power and authority to purchase the conservation Easement as provided
herein and to carry out Buyer’s obligations hereunder; (b) Buyer’s performance hereunder and
the transaction contemplated hereby have been duly authorized by the City Council of Buyer and
no remaining action or third party action is required to make this Agreement binding upon
Buyer; and (c) Buyer intends using the Conservation Easement exclusively to satisfy habitat
mitigation obligations for public projects of the City of Carlsbad consistent with the HCP and the
City’s pending Habitat Management Program (‘“MP).
5.3 Commissions. The parties mutually warrant and covenant that no
brokerage commission shall be due or payable on account of this transaction, and each party
shall indemnify and hold the other harmless from the claims for any commission or finder’s fee
arising out of the actions of the indemnifylng party, including costs, claims, expenses of
litigation and reasonable attorney’s fees.
5.4 As-Is Purchase; Buver Relying on Own Analvsis. For all purposes herein,
Buyer represents it is relying solely on its own investigations, evaluations, studies and
independent professional advice in connection with the subject matter of this transaction and
subject to receiving approval from the Agencies as provided in Section 3.1, has satisfied itself of
the benefits to Buyer of completing this transaction under the HCP and HMP. Buyer hereby
assumes the full risk of loss and liability at Closing for the transaction contemplated herein, and
except as expressly represented h this Agreement, is not relying on any statements (written or
oral), documents, reports, information or other communication from RECM, or its Affiliates, in
this transaction. Further, Buyer has had and will have the opportunity to investigate the
condition of the Conservation Land and that portion thereof constituting the Conservation
Easement, and is accepting same in its present condition, without warranty or representation
from RECM, or any of its Affiliates, of any kind whatsoever. Buyer’s payment of the Purchase
Price as provided herein shall constitute Buyer’s irrevocable and absolute satisfaction with the
Conservation Easement and the transaction contemplated herein.
RECM Conservation Easement
Purchase Agreement 27a17-7/1a28363.2 4 a/201a4
5.5 Limitation on Use/Resale of Conservation Easement. Pursuant to the
HCP, RECM acquired excess offsite habitat conservation property (the “Excess Offsite
Property”) for the benefit of the City’s HCP and HMP obligations and programs. The
Conservation Easement is a portion of the RECM acquired Excess Offsite Property. Pursuant to
letters of understanding between Buyer and RECM, RECM is to be repaid its acquisition and
. habitat management costs for the Excess Offsite Property pursuant to the City’s HMP program or
from the sale to third parties of conservation easement credits from the Excess Offsite Property.
Notwithstanding Buyer’s purchase of the Conservation Easement, RECM still holds additional
Excess Offsite Property. Therefore, until RECM is able to sell or dispose of its remaining
Excess Offsite Property, the City shall not resell, or market its 51.75 acres of Conservation
Easement acres or credits, directly or indirectly, to any landowner or for the benefit of any
project, other than Buyer’s own public projects within the City of Carlsbad.
6. General Provisions.
6.1 No Possession. Buyer shall have no right of possession or control of the
Conservation Easement or Conservation Land, or any part thereof.
6.2 Successors and Assigns. This Agreement, and all rights and obligations of
Buyer and RECM hereunder, shall be binding upon the parties hereto, and any respective
successors-in-interest of the Conservation Land, but shall not be otherwise assignable by either
Party.
6.3 Notice. All notices called for herein shall be in writing and shall be
delivered to RECM and Buyer at the addresses set forth in Section 1.17 above by personal
delivery, commercial messenger, or U.S. Mail, first class, postage prepaid, return receipt
requested. Any notice shall be deemed received on the date of delivery, or if mailed, upon the
second (2nd) U.S. Mail delivery day following mailing.
6.4 Interpretation. This Agreement shall be construed as a whole and in
accordance with its fair meaning, the captions being for the convenience of the parties only and
not intended to describe or define the provisions in the portions of the Agreement to which they
pertain. Both parties acknowledge that they understand the terms and conditions of this
Agreement and they execute the Agreement freely. Neither party shall deny the enforceability of
any provision of this Agreement on the basis that it did not have legal counsel or that it did not
understand a term or condition of this Agreement. Both parties to this Agreement acknowledge
that they have been represented by counsel andor advisors of their own choice and that neither
party shall be deemed to have primary responsibility for drafting this Agreement.
6.5 Survival. Each of the covenants, agreements, warranties, and
representations contained herein shall survive the Closing and the delivery of the Conservation
Easement Deed.
6.6 Countemarts. This Agreement may be executed in counterparts andor
duplicate originals, all of which when taken together shall be deemed fully executed originals.
RECM Conservation Easement Purchase Agreement
2781 7-711 828363.2 5 8120104
6.7 Waiver. No waiver by either party of any default, breach or any other
term set forth herein shall constitute a waiver of any other default, breach or term whether of the
same or any other covenant or condition. ,
6.8 Entire Ameement. This Agreement contains the entire agreement between
Buyer and RECM respecting the Conservation Easement. This Agreement supersedes and
replaces any and all previous discussions, negotiations, and writings between Buyer and RECM,
or their agents, respecting the Conservation Easement. Any agreement or representation
respecting the Conservation Easement or the duties of either Buyer or RECM in relation thereto
not expressly set forth in this Agreement is null and void. This Agreement may not be modified
except by a written agreement signed by both Buyer and RECM.
6.9 Certificate of Non-Foreign Status. Prior to the Closing, RECM shall
execute and deliver to Buyer a Certificate of Non-Foreign Status and similar State of California
equivalent, certifying that RECM is a non-foreign person for purposes of the Internal Revenue
Code and California law.
6.10 Remedies Cumulative. All rights and remedies of the parties hereto
contained in this Agreement shall be construed and held to be cumulative.
6.11 Severabilitv. In the event that any phrase, clause, sentence, paragraph,
section, article or other portion of this Agreement shall become illegal, null or void or against
public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal,
null or void or against public policy, the remaining portions of this Agreement shall not be
effected thereby and shall remain in full force and effect to the fullest extent permissible by law.
6.12 Time is of the Essence. Time is of the essence of each and every
provision of this Agreement.
IN WITNESS WHEREOF, the parties have jointly and severally executed this
Agreement effective as of the date first above written.
RECM: BUYER:
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
By:
Name: Fred R. Schimel
Its: Vice President
APPROVED AS TO FORM:
.,....I. _..... Ronald R. Ball, City Attorney
RECM Conservation Easement Purchase Agreement
27817-711 828363.2 6 8/20/04
.... _......-. - ....... *. .....,... ......... ....... ..
RECORDING REQUESTED BY: Department of Fish and Game
1416 Ninth Street, 12th Floor
Sacramento, CA 95814
MAIL TO:
Department of Fish and Game
1416 Ninth Street, 12th Floor Sacramento, Ca 95814
EXHIBIT “A”
1
1 1
1
1 1 Space Above Line for Recorder’s Use Only
No DOCUMENTARY TRANSFER TAX DUE
California Revenue & Taxation Code 0 1 1922
Presented for Acceptance by California Department
of Fish and Game
CONSERVATION EASEMENT DEED
(City of Carlsbad)
THIS CONSERVATION EASEMENT DEED (the “Deed”) is made by REAL ESTATE
COLLATERAL MANAGEMENT COMPANY, a Delaware corporation (“Grantor”), in favor of
THE STATE OF CALIFORNIA (“Grantee”), acting by and through its Department of Fish and
Game, a subdivision of the California Resources Agency, (“DFG”) with reference to the
following facts:
RECITALS
A. Grantor is the sole owner in fee simple of certain real property in the County of
San Diego, State of California, consisting of approximately 5 1.75 acres as more particularly
described in Exhibit “A” and depicted on Exhibit “B”, attached hereto and incorporated by this
reference (collectively the “Conserved Habitat Lands”); and
B. The Conserved Habitat Lands possesses wildlife and native habitat values
(collectively, “Conservation Values”) of great importance to Grantor and the people of the State
of California; and
C. The Conserved Habitat Lands includes coastal sage scrub and other natural
habitats suitable to the California gnatcatcher, (Polioptila californica californica) and other
sensitive species; and
EXHIBIT “A”
Page 1 of 12
D. The Department of Fish and Game has jurisdiction, pursuant to the Fish and
Game Code Section 1802, over the conservation, protection, and management of fish, wildlife,
native plants and the habitat necessary for biologically sustainable populations of those species,
and the Department of Fish and Game is authorized to hold easements for these purposes
pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of
California law; and
E. The United States Fish and Wildlife Service (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native
plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C.
section 1531 et seq. (ESA), the Fish and Wildlife Coordination Act, 16 U.S.C. section 661-666c
and other applicable Federal laws; and
F. The Conserved Habitat Lands were designated for acquisition habitat
conservation purposes pursuant to that certain “Implementation Agreement Regarding the City
of Carlsbad/Fieldstone/a Costa Associates Habitat Conservation PldOn-Going Multi-Species
Plan dated June 7, 1995” (the “Implementation Agreement”) by Grantor’s predecessor in title,
the Fieldstone Company, in connection with the development of the Villages of La Costa Project
in the County of San Diego, California (the “Project”) and Grantor desires to assure Grantee and
the USFWS that Grantor, and its successors, will hold the Conserved Habitat Lands conveyed
hereby for the conservation purposes as required in the Implementation Agreement in accordance
with and subject to the terns and conditions of this Deed; and
G. The City of Carlsbad offers this Conservation Easement pursuant to (i) the City’s
obligations pursuant to that certain Habitat Conservation PldOnrroinp; Multi-SDecies Plan for
ProDerties in the Southeast Quadrant of the Citv of Carlsbad and Addenda and the related
Implementation Agreement among Fieldstoneka Costa Associates Limited Partnership, the City
of Carlsbad, the United States Fish and Wildlife Service and Grantee dated June 7, 1995
(“Implementation Agreement”) and (ii) the City’s obligations under the City’s adopted Habitat
Management Plan (“Hh4F’”); and
H. Grantor intends to convey to Grantee, pursuant to this Deed, the right to preserve
and protect the conservation values of the Conserved Habitat Lands in perpetuity; and
I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated
herein and to preserve and to protect in perpetuity the Conservation Values of the Conserved
Habitat Lands in accordance with the terms of this Deed for the benefit of this generation and the
generations to come.
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 8 15,
et seq., Grantor hereby grants and conveys to Grantee a conservation easement in perpetuity over
the Conserved Habitat Lands of the nature and character and to the extent hereinafter set forth
(“Conservation Easement”).
EXHIBIT “A”
Page 2 of 12
/3
1. Purpose. The purpose of this Conservation Easement is to assure the Conserved
Habitat Lands will be preserved in a natural condition in perpetuity and to prevent any use of the
Conserved Habitat Lands that will materially impair or interfere with the conservation values of
the Conserved Habitat Lands. Grantor intends that this Conservation Easement will confine the
use of the Conserved Habitat Lands 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
2. Rkhts of Grantee. To accomplish the purposes of this Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee, and USFWS as a third party
beneficiary of this Conservation Easement, by this Deed:
(a) To preserve and protect in perpetuity the Conservation Values of
the Conserved Habitat Lands in accordance with this Conservation Easement and the
Implementation Agreement;
(b) To enter upon the Conserved Habitat Lands at reasonable times in
order to monitor Grantor’s compliance with and to otherwise enforce the terms of this
Conservation Easement. In addition, Grantee, the USFWS or their designees may enter the
Conserved Habitat Lands for research and interpretive purposes, subject to Grantor’s approval,
which approval shall not be withheld unreasonably;
(c) To prevent any activity on or use of the Conserved Habitat Lands
that is inconsistent with the purposes of this Conservation Easement and to require the
restoration of such areas or features of the Conserved Habitat Lands that may be damaged by any
act, failure to act, or any use by Grantor that is inconsistent with the purposes of this
Conservation Easement;
(d) All mineral, air and water rights necessary to protect and to sustain
the biological resources of the Conserved Habitat Lands;
(e) All present and fbture development rights, except that Grantor
retains such rights as are necessary to conduct activities for the Project development as provided
for in the Implementation Agreement and this Deed; and
(f) To enforce by means including, without limitation, injunctive
relief, the terms and conditions of this Conservation Easement.
3. Prohibited Uses. Any activity on or use of the Conserved Habitat Lands
inconsistent with the habitat conservation purposes of this Conservation Easement and not
specifically reserved as a right of Grantor is prohibited. Without limiting the generality of the
foregoing, the following uses by Grantor and Grantor’s agents are expressly prohibited unless
specifically provided for in this Deed, the Implementation Agreement or any approved
management plan(s) for the Conserved Habitat Lands;
(a) Unseasonal watering, use of herbicides, rodenticides, or weed
abatement activities, incompatible fire protection activities and any and all other uses which may
adversely affect the purposes of this Conservation Easement;
EXHIBIT “A” Page 3 of 12
(b) Use of off-road vehicles except in the execution of management
duties;
(c) Grazing or surface entry for exploration or extraction of minerals;
(d) Erecting of any building, billboard, sign excepting. signs
designating the boundaries and purpose of the Conserved Habitat Lands;
(e) Depositing of soil, trash, ashes, garbage, waste, bio-solids or any
’ other material;
(f) Excavating, dredging or removing of loam, gravel, soil, rock, sand
or other material;
(g) Otherwise altering the general topography of the Conserved
Habitat Lands, including building of roads;
(h) Removing, destroying, or cutting of trees, shrubs or other
vegetation, except as required by federal, state or local law or by governmental order for (1) fire
breaks, (2) maintenance of existing foot trails or roads, (3) prevention or treatment of disease or
(4) for the implementation of the approved management plan.
4. Grantor’s Duties. Grantor shall undertake all reasonable actions to prevent the
unlawful entry and trespass by persons whose activities may degrade or harm the conservation
values of the Conserved Habitat Lands.
5. Reservations and Exceptions. Notwithstanding any other provisions of this Deed,
Grantor has reserved and there is excepted from the grant, transfer, assignment and conveyance
of the Conservation Easement hereunder the right of Grantor, or its successors and assigns,
agents or contractors, and public agencies, the right of access and easements for the purpose of
planning, constructing, grading, operating, maintaining, replacing or reconstructing public or
private sewer, water, utility, basins, drainage and all other public and private utilities over, under
or across the Conserved Habitat Lands necessary or required for the orderly development of
Grantor’s “Project and Plan Activities” described in Section 1V.G. of the Implementation
Agreement provided any disturbed habitat is reasonably restored or mitigated, and are not
otherwise inconsistent with the purpose of this Conservation Easement and the Implementation
Agreement.
Further reserving and excepting from this Deed, the reversion of fee title to Grantor on
the occurrence of the condition subsequent that (i) the Conserved Habitat Lands is used for any
purpose other than wildlife conservation purposes as provided in Section V.A.1. of the
Implementation Agreement or (ii) the Implementation Agreement and associated HCP/OMSP is
judicially invalidated, but in such event, excluding from such reversion of fee title to any
Conserved Habitat Lands, an area equitably proportionate to the extent of any permanent habitat
“take” under the Implementation Agreement and HCP/OMSP.
6. Grantee’s Remedies. USFWS as a third party beneficiary of this Conservation
Easement shall have the same rights and remedies as Grantee under this section. If Grantee
EXHIBIT “A”
Page 4 of 12
determines that Grantor is in violation of the terms of this Conservation Easement or that a
violation is threatened, Grantee shall give written notice to Grantor of such violation and demand
in writing the cure of such violation. Grantor shall not be deemed in default until such written
notice is given. If Grantor fails to cure the violation within fifteen (1 5) days after receipt of said
written notice and demand from Grantee, or said cure reasonably requires more than fifteen (1 5)
days to complete ‘and Grantor fails to begin the cure within the fifteen (15) day period or fails to
continue diligently to complete the cure, and if Grantor fails to notify Grantee within fifteen (1 5)
days after receipt of Grantee’s written notice of violation that Grantor disputes Grantee’s
determination of violation (hereinafter, Grantor’s “notice of dispute”), Grantee may bring an
action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor
with the terms of this Conservation Easement, to recover any damages to which Grantee may be
entitled for violation by Grantor of the terms of this Conservation Easement, to enjoin the
violation, ex parte as necessary, 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 Conserved Habitat
Lands 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 Conserved
Habitat Lands.
6.1 The Grantor will maintain an insurance policy in a form
reasonably approved by the Legal Advisor to Grantee with a minimum of $2 million of coverage
per incident. If a court of competent jurisdiction determines that the Grantor has violated any
term of this Conservation Easement, Grantor and Grantee agree that:
Insurance.
(a) policy and only to the dollar limits of that policy;
liability for damages is limited to acts or omissions covered by that
(b) fhds from the endowment which was created to manage the
Conserved Habitat Lands cannot be used to pay damages awarded as part of the judgment;
(c) funds from the endowment which was created to manage the
Conserved Habitat Lands cannot be used to restore the Conserved Habitat Lands to the condition
in which it existed prior to the violation; and
(d) at its discretion, Grantee may agree to accept fee title to the
Conserved Habitat Lands and management responsibility of the Conserved Habitat Lands. If this
occurs, Grantee will receive any funds which remain in the endowment and any other funds
specified for the Conserved Habitat Lands. Grantee’s acceptance of the Conserved Habitat
Lands is subject to approval by the Department of General Services.
6.2 Cooperation. If Grantor provides Grantee with a notice of dispute, as
provided herein, Grantee shall meet and confer with Grantor at a mutually agreeable place and
time, not to exceed thirty (30) days from Grantee’s receipt of the notice of dispute. Grantee shall
consider all relevant information concerning the disputed violation provided by Grantor and shall
determine whether a violation has in fact occurred and, if so, whether Grantee’s notice of
violation and demand for cure are appropriate in light of the violation. Grantee agrees to
consider the following principles in making its determination:
EXHIBIT “A” Page 5 of 12
(a) Management activities shall be chosen for their long-term benefits
to the Conserved Habitat Lands’ conservation values rather than for short-term benefits;
(b) Management activities that benefit habitat protection shall be
chosen in favor of management activities designed to benefit individual species, except where
State or Federally listed species are at issue;
(c) Habitat maintenance is of primary importance in protecting the
long-term conservation values of the Conserved Habitat Lands;
(d) Management activities shall be chosen according to the following
order of preference:
(i) preventative actions shall be taken to avoid additional
impact;
(ii) natural restoration shall be used if appropriate, based on the
magnitude of the impact, the impacts on listed or sensitive species, and the estimated time for
recovery to occur;
(iii) active restoration shall be required only where there are
severe, long-term impacts to the Conserved Habitat Lands’ Conservation Values, or where
highly sensitive species are impacted;
(e) If, and for so long as, Grantor is a non-profit entity organized for
conservation purposes, Grantee shall consider the cost of management activities and the
resources available to Grantor’s successor.
6.3 Emergencies. If Grantee, in its sole discretion, determines that
circumstances require immediate action to prevent or mitigate significant damage to the
Conservation Values of the Conserved Habitat Lands, Grantee may pursue its remedies under
this paragraph without prior notice to Grantor or without waiting for the period provided for
cure, or notice of dispute, to expire. Grantee’s rights under this paragraph apply equally to actual
or threatened violations of the terms of this Conservation Easement. Grantor agrees that
Grantee’s remedies at law for any violation of the terms of this Conservation Easement are
inadequate and that Grantee shall be entitled to the injunctive relief describe in this section, 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.
Grantee’s remedies described in this section shall be cumulative and shall be in addition to all
remedies now or hereafter existing at law or in equity, including but not limited to, the remedies
set forth in Civil Code Section 815, et seq., inclusive.
If a court of competent jurisdiction determines that the Grantor has violated any
term of this easement, Grantor and Grantee agree that:
(a) liability for damages is limited to acts or omissions covered by the
insurance policy identified in paragraph 6.1 and only to the dollar limits of that policy;
EXHIBIT “A”
Page 6 of 12
(b) funds fiom the endowment which was created to manage the
Conserved Habitat Lands cannot be used to pay damages awarded as part of the judgment;
(c) funds from the endowment which was created to manage the
Conserved Habitat Lands cannot be used to restore the Conserved Habitat Lands to the condition
in which it existed prior to the violation; and
(d) at its discretion, Grantee may agree to accept fee title to the
Conserved Habitat Lands and management responsibility of the Conserved Habitat Lands. If this
occurs, Grantee will receive any hds which remain in the endowment and any other funds
specified for the Conserved Habitat Lands. Grantee’s acceptance of the Conserved Habitat
Lands is subject to approval by the Department of General Services.
6.4 Conflictinn Notices. If Grantor receives inconsistent or conflicting notices
of violation from Grantee and from the USFWS, acting in its capacity as a third party
beneficiary, Grantor shall notify Grantee and USFWS within fifteen (15) days of such receipt of
the inconsistency or conflict. Grantor shall not be deemed in default or be required to take any
action until such time as Grantee and the USFWS provide a joint written notice of violation.
Joint notices of violation shall be treated the same as individual notices of violation under this
Section 6. Specified time limits concerning notices of violation, and notices of dispute, shall be
calculated from the date Grantor receives a joint notice of violation.
7. Convevance “As-Is”. Notwithstanding anyhng to the contrary contained herein,
it is understood between the parties that the easement rights conveyed by this Deed are expressly
subject to all matters of record as of the date of this Deed and are conveyed in an “AS IS”
condition, “with all faults” as of such date.
8. Access. This Conservation Easement does not convey a general right of access to
the public.
9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind including transfer costs, costs of title and documentation review, and
costs related to the ownership, operation, upkeep, and maintenance of the Conserved Habitat
Lands.
9.1 Taxes. Grantor or subsequent transferees shall pay before delinquency all
taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Conserved Habitat Lands by competent authority (collectively “taxes”), including any taxes
imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee
and USFWS with satisfactory evidence of payment upon request.
9.2 Hold Harmless. Grantor 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 judgments, 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 Conserved Habitat Lands, resulting from any
act, omission, condition, or other matter related to or occurring on or about the Conserved
EXHIBIT “A”
Page 7 of 12
*-Habitat Lands, regardless of cause, unless due to the negligence of any of the indemnified
parties.
9.3 Condemnation. The purposes of the Conservation Easement are presumed
to be the best and most necessary public use as defined at Code of Civil Procedure
Section 1240.680 notwithstanding of Code of Civil Procedure Sections 1240.690 and 1240.700.
9.4 Acts Beyond Grantor’s Control. Nothing contained in this Grant shall be
construed to entitle Grantee or DFG to require Grantor to restore or remedy any injury to or
change in the Conserved Habitat Lands resulting from causes beyond Grantor’s control,
including, without limitation, fire, flood, storm, and earth movement, or actions by third parties,
or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or
mitigate significant injury to the Conserved Habitat Lands resulting from such causes.
10. Assignment. This Conservation Easement is transferable as provided in sections
10 and 11, but Grantee may assign its rights and obligations under this Conservation Easement
only to an entity or organization authorized to acquire and hold conservation easements pursuant
to Civil Code Section 815.3 and only with the prior written approval of USFWS. Grantee shall
require the assignee to record the assignment in the county where the Conserved Habitat Lands is
located.
1 1. Subseauent Transfers. The covenants, conditions, and restrictions contained in
this Deed are intended to run with the land and to bind all future owners of any interest in the
Conserved Habitat Lands. Grantor agrees to incorporate by reference the terms of this
Conservation Easement in any deed or other legal instrument by which Grantor divests itself of
any interest in all or a portion of the Conserved Habitat Lands, including, without limitation, a
leasehold interest. Grantor agrees to give written notice to Grantee and the USFWS of the intent
to transfer of any interest at least forty-five (45) days prior to the date of such transfer. Any subsequent transferee shall be deemed to have assumed the obligations of this Conservation
Easement and to have accepted the restrictions contained herein. The failure of Grantor or
Grantee to perform any act provided in this section shall not impair the validity of this
Conservation Easement or limit its enforceability in any way. Grantor shall not grant additional
easements or other interests in the Conserved Habitat Lands without the prior written
authorization of Grantee and USFWS, which consent shall not be unreasonably withheld.
12. 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 specifj to the other parties in writing:
To Grantor: Real Estate Collateral Management Company
c/o Mr. Fred Arbuckle, President
Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
FAX: (760) 929-2705
EXHIBIT “A”
Page 8 of 12
To Grantee:
Also:
Regional Manager
Department of Fish and Game
330 Golden Shore, Suite 50
Long Beach, CA 90802
FAX:
General Counsel
Department of Fish and Game
Legal Affairs Division
1416 Ninth Street, 12th Floor
Sacramento, California 958 14-2090
With a copy to: Field Supervisor
United States Fish and Wildlife Service
2730 Loker Avenue
Carlsbad, California 92008
Fax No. (760) 43 1-9440
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 a facsimile, documents which bear the
original signatures.
13. Extinguishment. This Conservation Easement may not be extinguished or
abandoned by Grantor and Grantee without the prior written consent of USFWS. If the USFWS
consent is provided, this Conservation Easement may be extinguished or abandoned by Grantor
and Grantee by mutual written agreement upon the request of either party only after the
requesting party acquires and records a perpetual conservation easement in the name of the State
of California at an alternative location, which provides conservation values that satisfy the
specific mitigation purposes of this Conservation Easement as stated in Paragraph F.
14. Amendment. This Conservation Easement may be amended by Grantor, Grantee
and USFWS by mutual written agreement. Any such amendment shall be consistent with the
purposes of this conservation Easement and the Implementation Agreement, and, except as
provided in Section 13, shall not affect its perpetual duration. Any such amendment shall be
recorded in the official records of San Diego County, State of California.
15. Recordation. Grantee shall promptly record this instrument in the official records
of San Diego County, California and immediately noti@ the Grantee and USFWS through the
mailing of a conformed copy of the recorded easement.
16. Estomel Certificates. Upon request by Grantor, DFG shall within fifteen (15)
days execute and deliver to Grantor any document, including an estoppel certificate, which
certifies Grantor’s compliance with any obligation of Grantor contained in this Deed and
otherwise evidences the status of this Grant as may be requested by Grantor.
EXHIBIT “A”
Page 9 of 12
17. General Provisions.
(a) Controlling Law. The interpretation and performance of this
Conservation Easement shall be governed by the laws of the State of California and applicable
federal law. Any subsequent amendment or repeal of federal or state law or order which
authorizes this Deed shall not affect the rights conveyed to the Grantee or its successors or
assigns.
(b) Liberal Construction. Any general rule of construction to the
contrary notwithstanding, this Conservation Easement shall be liberally construed to effect the
purpose of this Implementation Agreement, Conservation Easement, and the policy and purpose
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 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 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 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 all of which
are merged herein. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment in accordance with Section 14. This Deed is intended to implement
the Implementation Agreement and is consistent therewith.
(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 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 continue as a
servitude running in perpetuity with the Conserved Habitat Lands. The covenants hereunder
benefitting Grantee shall also benefit USFWS.
(g) Termination of Rights and Obligations. A party’s rights and
obligations under this Conservation Easement shall terminate only upon transfer of the party’s
interest in the Conservation Easement or Conserved Habitat Lands (respectively), except that
liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions The captions in this instrument have been inserted solely
for convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or
more counterparts, which shall, in the aggregate, be signed by Grantor and Grantee; each
EXHIBIT “A”
Page 10 of 12
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
r controlling.
(i) Exhibits. All Exhibitsreferred to in this Deed are attached and
incorporated herein by reference.
(k) Federal or State Amromiations. The duty of USFWS and CDFG
to carry out their respective obligations under this Easement shall be subject to the availability of
appropriated funds.
IN WITNESS WHEREOF, Grantor has caused this Conservation Easement Deed to be
executed ,2004.
GRANTOR:
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY,
a Delaware corporation
By:
Fred R. Schimel
Its: Vice-president
EXHIBIT “A”
Page 11 of 12
CERTIFICATE OF ACCEPTANCE
This is to Certzfi that the interest in real property conveyed by the Conservation
Easement Deed by Real Estate Collateral Management Company, dated ,2004
to the State of California, Grantee, acting by and through its Department of Fish and Game (the
“Department”), a governmental agency (under Government Code $2728 l), is hereby accepted by
the undersigned officer on behalf of the Department, pursuant to authority conferred by
resolution of the California Fish and Game Commission.
GRANTEE:
STATE OF CALIFORNIA, by and through,
DEPARTMENT OF FISH AND GAME
By:
Title: Authorized Representative
Date:
Approved as to Form:
ANN S. MALCOLM, Deputy General Counsel
CALIFORNIA DEPARTMENT OF FISH AND GAME
EXHIBIT “A” Page 12 of 12
23
THE STATE OF 1 1
COUNTY OF 1
On , 2004, before me, (name of
Notary Public), a Notary Public in and for said State, duly commissioned and sworn, personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity(ies), and that by
his signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
~~ Notary Public in and for State of
My commission expires:
(NOTARIAL SEAL)
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL E PORTIONS OF APN: 284941-19 AND APN: 264-111-08
BEING A PORTION OF LOT 6 AND LOT 8 OF SECTION 3 TOGETHER WITH A PORTION OF
LOT 1 OF SECTION 10 AND A PORTION OF THE NORTH HALF OF THE NORTHWEST
QUARTER OF SECTION 10, BOTH IN TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 3, SAID CORNER BEING
THE NORTHWEST CORNER OF SAID SECTION 10; THENCE EASTERLY ALONG THE
COMMON LINE OF SAID SECTION 3 AND SECTION 10, SOUTH 89'06'31" EAST (NORTH 89'06'16" WEST FER RECORD OF SURVEY NO. 15225, HEREIN AFTER REFERENCED AS
ROS 15225)' 929.73 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID COMMON LINE, NORTH 00'53'29* EAST, 783.73 FEET; THENCE SOUTH 44'24' 59' EAST
(NORTH 44'24'44' WEST PER ROS 15225), 919.74 FEET; THENCE NORTH 07"42'36' EAST
(NORTH 07'42'51" EAST PER ROS 15225), 111.37 FEET; THENCE SOUTH 77'54'29" EAST
(NORTH 77'54'14" WEST PER ROS 15225), 1077.73 FEET; THENCE SOUTH 01'04'57" WEST
(NORTH 01'05'12" EAST PER ROS 15225)' 38.12 FEET; THENCE SOUTH 89'12'00' EAST
(NORTH 89"06'16" WEST PER ROS 15225)' 191.09 FEET; THENCE SOUTH 77'54'29" EAST (NORTH 77'54'14" WEST PER ROS 15225)' 276.61 FEET; THENCE SOUTH 88'17'02" EAST (NORTH 88'16'47" WEST PER ROS 15225), 825.18 FEET; THENCE SOUTH 00'07'30' EAST (NORTH 00'07'15'' WEST PER ROS 15225), 755.35 FEET; THENCE SOUTH 62'38'37'WEST (NORTH 62'3852" EAST PER ROS 15225)' 558.49 FEET; THENCE NORTH 89'02'52" WEST (NORTH 89'02'37" WEST PER ROS 15225)' 599.05 FEET; THENCE SOUTH 06'59'39" EAST (NORTH 06'59'24' WEST PER ROS 15225) I 50.48 FEET; THENCE NORTH 89'0252' WEST
(NORTH 89'02'37" WEST PER ROS 15225), 205.23 FEET; THENCE NORTH 89'00'14 WEST
(NORTH 89'00'04" WEST PER ROS 15225), 239.15 FEET; THENCE NORTH 30'25'00' WEST
(NORTH 30"24'45" WEST PER ROS 15225)' 493.18 FEET; THENCE NORTH 01 '31'51' WEST
(NORTH 01'31'36" WEST PER ROS 15225), 712.85 FEET; THENCE NORTH 89'06'31" WEST
(NORTH 89'06'16" WEST PER ROS 15225)' 1210.16 FEETTOTHE TRUE POINT OF
BEGINNING.
CONTAINING 51.75 ACRES, MORE OR LESS.
EXHIBIT 'A'
TO CONSERVATION EASEMENT DEED
EXHIBIT “B”
PLOT MAP
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EXHIBIT ‘B’
TO CONSERVATION EASEMENT DEED