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HomeMy WebLinkAboutAGENDA REPORT 2025 0507 CC REG ITEM 10GCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of May 7, 2025
ACTION APPROVED STAFF
RECOMMENDATIONS, INCLUDING
ADOPTION OF RESOLUTION NO. 2025-
4316, AS AMENDED. (ROLL CALL VOTE:
UNANIMOUS)
BY A. Hurtado.
G. Consider Resolution Granting a Temporary Construction Easement to RWC Hitch
Ranch, LLC to Enter Into and Perform Certain Construction and Improvement
Work on Approximately 23.33 Acres of City-Owned Property to Restore and
Enhance Habitat for the Benefit of Sensitive Species in Compliance with the
Habitat Conservation Plan for the Hitch Ranch Specific Plan Project and Making a
Finding of Consistency with the Certified Environmental Impact Report for the Hitch
Ranch Specific Plan in Connection Therewith. Staff Recommendation: 1) Consider
and adopt Resolution No. 2025-4316, approving the Grant of a Temporary
Construction Easement to RWC Hitch Ranch, LLC to enter into and perform certain
construction and improvement work on approximately 23.33 acres of City-owned
property to restore and enhance habitat for the benefit of sensitive species in
compliance with the Habitat Conservation Plan for the Hitch Ranch Specific Plan
Project and making a finding of consistency with the Certified Environmental
Impact Report for the Hitch Ranch Specific Plan in connection therewith; and 2)
Approve the Temporary Construction Easement substantially as to form and
authorize the City Manager to execute the Temporary Construction Easement,
subject to final terms as determined by the City Manager; and 3) Authorize the City
Clerk to file and cause the Temporary Construction Easement to be recorded in
the Ventura County Recorders Office. (Staff: Doug Spondello, Community
Development Director) (ROLL CALL VOTE REQUIRED)
Item: 10.G
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Doug Spondello, Community Development Director
DATE: 05/07/2025 Regular Meeting
SUBJECT: Consider Resolution Granting a Temporary Construction Easement
to RWC Hitch Ranch, LLC to Enter Into and Perform Certain
Construction and Improvement Work on Approximately 23.33 Acres
of City-Owned Property to Restore and Enhance Habitat for the
Benefit of Sensitive Species in Compliance with the Habitat
Conservation Plan for the Hitch Ranch Specific Plan Project and
Making Findings of Consistency with the Certified Environmental
Impact Report for the Hitch Ranch Specific Plan in Connection
Therewith
BACKGROUND AND DISCUSSION
On January 17, 2019, Comstock Homes (Applicant) submitted an application for the
Hitch Ranch Specific Plan and associated entitlements to enable the master planning
and future development of a planned community generally consisting of 755 residential
units, approximately 29 acres of natural open space, a 7-acre public park and 7-acre
passive park, as well as roadways, stormwater, and detention facilities on 277 acres of
property (the Project). The project site includes Assessor Parcel Numbers 511-0-200-
245, 511-0-020-130, -110, -160, -170, -180, and -195 and is generally located north of
Poindexter Avenue, west of Casey Road, and extending approximately 1,700 feet west
of Gabbert Road (the Project Site).
On June 15, 2022, the City Council adopted Resolution No. 2022-4104, certifying the
Final Environmental Impact Report (FEIR) for the Hitch Ranch Specific Plan, including
the Mitigation Monitoring and Reporting Program (MMRP), adopting California
Environmental Quality Act (CEQA) Findings of Fact, a Statement of Overriding
Considerations pursuant to CEQA and approving Specific Plan No. 2019-01, General
Plan Amendment No. 2020-01, and Tentative Tract Map for Tract No. 5708 (2019-01).
Item: 10.G.
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05/07/2025 Regular Meeting
Page 2
On July 6, 2022, the City Council adopted Ordinance No. 502 approving Zone Change
2019-01 and Development Agreement No. 2019-01. The Development Agreement was
executed and dated September 13, 2022, and recorded on September 22, 2022.
The FEIR establishes specific requirements for the management and mitigation of
native habitat loss – which consists of sensitive plant communities potentially impacted
by the development of the Project. The resulting Habitat Conservation Plan (HCP) to
address these impacts is prepared in close coordination with the California Department
of Fish and Wildlife (CDFW) and United States Fish and Wildlife Service of the
Department of the Interior (USFWS).
HABITAT CONSERVATION PLAN
The Project and its conservation measures are the subjects of a HCP, which was
prepared and dated October 2024. The HCP was required in order for the Applicant to
apply for and obtain approval from the USFWS to remove existing habitat areas in order
to develop the Project. The HCP was prepared to mitigate some of the biological
impacts of the Project, including the Project’s impact to habitat for the federally
threatened, coastal California gnatcatcher (Polioptila californica californica, CAGN).
In connection with development of the overall Project, the HCP requires the Applicant to
place Conservation Easements over approximately 29.44-acres of the 277.30-acre
Project Site, referred to as the Hitch Ranch Habitat Preserve (Habitat Preserve). The
Habitat Preserve is comprised of portions of the Open Space (Lots W-Y), the Natural
Open Space in Planning Area 1, and the Natural Open Space in Planning Area 2
totaling 29.44 acres. However, to fully mitigate for the loss of habitat, the Habitat
Preserve will also apply to an additional 23.33-acre enhancement area on adjacent
open space parcels (APNs: 502-016-008 and 502-016-009) owned by the City and
referred to as the Adjacent Open Space Enhancement Area. The combined Habitat
Preserve areas inside the Project and outside the Project (and on City-owned land) will
comprise of a total of 52.77 acres. The figure below from the approved HCP details the
proposed Habitat Preserve, with the City-owned land depicted above the bold yellow
line.
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05/07/2025 Regular Meeting
Page 3
FIGURE 1: HCP MITIGATION AREAS
Within the Habitat Preserve, the Applicant will undertake a plan to minimize, mitigate,
and provide conservation opportunities to offset unavoidable impacts to the CAGN. As
detailed in the HCP, conservation program actions will take place within the Habitat
Preserve to remove non-native plant species in conjunction with planning native plant
species in compositions consistent with vegetation communities with the goal to create
and enhance existing coastal sage scrub communities to provide high quality foraging
and nesting habitat for the CAGN. The Applicant anticipates completing all
construction, development, and active restoration and enhancement activities on the
Project Site and Habitat Preserve within 15 years following initiation of construction.
Under this Plan, the Project’s adverse impacts to CAGN habitat is intended to be fully
offset by restoring, enhancing, and managing CAGN habitat within the Habitat Preserve.
The City-owned land proposed to be included within the HCP is designed as Open
Space in the General Plan and is used exclusively for that purpose. The easement
associated with the HCP has been carefully designed to avoid existing trails and
publicly accessible spaces. Instead, the reservations are provided over sloped hillsides
and not impacting public access to this open space. To that extent, City staff believes
that the reservation of the HCP on public property aligns with the City’s open space
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05/07/2025 Regular Meeting
Page 4
goals, does not encumber the property beyond existing and planned uses, and will
assist in facilitating the development of Hitch Ranch.
In conjunction with undertaking the work required by the HCP in the City-owned
Adjacent Open Space Enhancement Area, the Applicant requires a Temporary
Construction Easement to enter onto that City-owned land and to undertake the
restoration, enhancement and management work required by the Plan.
In summary, in order for the Project to obtain a “take” permit from the USFWS,
Comstock had to prepare the HCP. Then, pursuant to terms of provision of that HCP,
the Applicant needs the City to: (a) include the approximate 23.33 acres of City-owned
open space land into the Habitat Preserve, (b) grant to the Applicant a Temporary
Construction Easement to permit the Applicant to enter into that City-owned land to
make the habitat improvements, and (c) have the City permanently protect and preserve
that area through a Conservation Easement. In addition, the Applicant and City will
need to enter into a subsequent agreement with a qualified non-profit land manager to
manage the Conservation Easement area and the Applicant will establish an
endowment fund to cover the long-term costs of carrying out the tasks in the Habitat
Conservation Plan and its long-term management plan. The agreements associated
with each step mentioned above have been reviewed in order to assign these
obligations appropriately to the private parties, and minimize any obligations or liability
to the City of Moorpark.
TEMPORARY CONSTRUCTION EASEMENT
The Temporary Construction Easement (TCE) will allow the Applicant to enter onto the
City-owned 23.33 acres of open space land to undertake the work required by the HCP
on that land. The TCE is subject to standard terms including the specification of the
area subject to the Easement, the work allowed in the easement, requirements for the
Applicant to indemnify the City for acts or omissions of the Applicant, insurance, and
related matters. In addition, a modified form of a Draft Conservation Easement
template is attached to the TCE. That Conservation Easement will be further negotiated
and approved by the City Council at a subsequent date when the non-profit
conservation entity that will manage the Easement area is identified and a companion
endowment agreement is prepared for the long-term management of the Easement
area.
Approval and execution of the TCE will permit the Applicant to begin the work of habitat
enhancement and restoration in the TCE Area which is one of the steps required in
order to carry out the construction of the Project.
ENVIRONMENTAL DETERMINATION
The Project has been reviewed in connection with the requirements of the California
Environmental Quality Act (CEQA) (Public Resources Code § 21000, et seq.) and the
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05/07/2025 Regular Meeting
Page 5
State CEQA Guidelines (14 C.C.R. § 15000, et seq.). The EIR analyzed the Project
and its impacts to various environmental resources. The FEIR was certified by the
Moorpark City Council on June 15, 2022. The FEIR was never challenged, is now final,
and conclusive in all respects. The Community Development Director finds, in the
exercise of his independent judgment and based on substantial evidence in the whole of
the record, that no further environmental review is required, including pursuant to Public
Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163
because (i) the Project will not have new or substantially more severe impacts than
what was disclosed in the FEIR; (ii) all applicable mitigation measures in the FEIR
remain applicable to the Project and have already been imposed on the Project as a
condition of CUP approval (CUP No. CD-CUP-2023-0013); and (iii) the Project will not
require any new mitigation measures and all potential environmental impacts associated
with the Project are adequately addressed by the FEIR, and the mitigation measures
contained in the MMRP will reduce those impacts to a level that is less than significant.
FISCAL IMPACT
None.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1.Consider and adopt Resolution No. 2025-____, approving the Grant of a
Temporary Construction Easement to RWC Hitch Ranch, LLC to enter into and
perform certain construction and improvement work on approximately 23.33
acres of City-owned property to restore and enhance habitat for the benefit of
sensitive species in compliance with the Habitat Conservation Plan for the Hitch
Ranch Specific Plan Project and making a finding of consistency with the
Certified Environmental Impact Report for the Hitch Ranch Specific Plan in
connection therewith; and
2.Approve the Temporary Construction Easement substantially as to form and
authorize the City Manager to execute the Temporary Construction Easement,
subject to final terms as determined by the City Manager; and
3.Authorize the City Clerk to file and cause the Temporary Construction Easement
to be recorded in the Ventura County Recorder’s Office.
Attachment: Draft Resolution No. 2025-____
262
RESOLUTION NO. 2025-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, GRANTING A TEMPORARY
CONSTRUCTION EASEMENT TO RWC HITCH RANCH,
LLC TO ENTER INTO AND PERFORM CERTAIN
CONSTRUCTION AND IMPROVEMENT WORK ON
APPROXIMATELY 23.33 ACRES OF CITY-OWNED
PROPERTY TO RESTORE AND ENHANCE HABITAT FOR
THE BENEFIT OF SENSITIVE SPECIES IN COMPLIANCE
WITH THE HABITAT CONSERVATION PLAN FOR THE
HITCH RANCH SPECIFIC PLAN PROJECT AND MAKING
FINDINGS OF CONSISTENCY WITH THE FINAL
ENVIRONMENTAL IMPACT REVIEW (FEIR) UNDER
CEQA IN CONNECTION THEREWITH
WHEREAS, the Hitch Ranch Specific Plan Project is a planned community
consisting of 755 residential units, approximately 29 acres of natural open space, a 7-
acre public park and 7-acre passive park, as well as roadways, storm water, and
detention facilities on 277 acres of property (the Project); and
WHEREAS, on June 15, 2022, the City Council adopted Resolution No. 2022-
4104, approving the Project by certifying the FEIR for the Hitch Ranch Specific Plan,
including the Mitigation Monitoring and Reporting Program, adopting CEQA Findings of
Fact, adopting a Statement of Overriding Considerations pursuant to CEQA and
approving Specific Plan 2019-01, General Plan Amendment 2020-01, and Tentative
Tract Map for Tract No. 5708 (2019-01); and
WHEREAS, on July 6, 2022, the City Council adopted Ordinance No. 502
approving Zone Change 2019-01 and Development Agreement No. 2019-01. The
Development Agreement was executed and dated September 13, 2022, and recorded
on September 22, 2022; and
WHEREAS, the Project and its conservation measures are the subjects of a
Habitat Conservation Plan (HCP) which was prepared and dated October 2024 which
HCP was required in order for the Applicant to apply for and obtain approval from the
U.S. Fish and Wildlife Service of the United States Department of the Interior; and
WHEREAS, the HCP was prepared to mitigate some of the biological impacts of
the Project, including the Project’s impact to habitat for the federally threatened, coastal
California gnatcatcher (Polioptila californica californica, CAGN); and
WHEREAS, the HCP requires the Applicant to place conservation easements
over approximately 29.44-acres of the 277.30-acre Project Site, referred to as the Hitch
Ranch Habitat Preserve (Habitat Preserve). However, to fully mitigate for the loss of
habitat, the Habitat Preserve will also apply to an additional 23.33-acre enhancement
area on adjacent open space parcels (APNs: 502-016-008 and 502-016-009) owned by
ATTACHMENT
263
Resolution No. 2025-____
Page 2
the City. The combined Habitat Preserve areas inside the Project and outside the
Project (and on City-owned land) will comprise of a total of 52.77 acres; and
WHEREAS, pursuant to terms of provision of that HCP, the Applicant needs the
City to not only include the approximate 23.33 acres of City-owned open space land into
the Habitat Preserve, but to also (a) grant to the Applicant a Temporary Construction
Easement (TCE) to permit the Applicant to enter into that City-owned land to make the
habitat improvements, and (b) have the City permanently protect and preserve that area
through a Conservation Easement. In addition, the Applicant and City will need to enter
into a subsequent agreement with a qualified non-profit land manager to manage the
Conservation Easement area and the Applicant will establish an endowment fund to
cover the long-term costs of carrying out the tasks in the Habitat Conservation Plan and
its long term management plan; and
WHEREAS, approval and execution of the TCE will permit the Applicant to begin
the work of habitat enhancement and restoration in the TCE Area which is one of the
steps required in order to carry out the construction of the Project; and
WHEREAS, the environmental impacts of the Project were evaluated in a FEIR
that analyzed the Project and its impacts to various environmental resources. The FEIR
was certified by the Moorpark City Council on June 15, 2022. No further environmental
review is required in connection with the approval of the TCE, including pursuant to
Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163
because (i) the Project will not have new or substantially more severe impacts than
what was disclosed in the FEIR; (ii) all applicable mitigation measures in the FEIR
remain applicable to the Project and have already been imposed on the Project as a
condition of CUP approval; and (iii) the Project will not require any new mitigation
measures and all potential environmental impacts associated with the Project are
adequately addressed by the FEIR, and the mitigation measures contained in the
MMRP will reduce those impacts to a level that is less than significant.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council finds the recitals to be true and correct.
SECTION 2. The City Council, in its independent judgment concurs in staff’s
determination that no further environmental review is required for the approval of the
TCE, including pursuant to Public Resources Code Section 21166, or CEQA Guidelines
Sections 15162 or 15163 because (i) the Project will not have new or substantially more
severe impacts than what was disclosed in the FEIR; (ii) all applicable mitigation
measures in the FEIR remain applicable to the Project and have already been imposed
on the Project as a condition of discretionary entitlement approval; and (iii) the Project
will not require any new mitigation measures and all potential environmental impacts
associated with the Project are adequately addressed by the FEIR, and the mitigation
264
Resolution No. 2025-____
Page 3
measures contained in the MMRP will reduce those impacts to a level that is less than
significant.
SECTION 3. The City Council hereby approves the Temporary Construction
Easement, attached hereto and incorporated herein by reference as Exhibit A to this
Resolution.
SECTION 4. The City Manager is authorized to execute the Temporary
Construction Easement.
SECTION 5. The City Council directs the City Clerk to file and Record the
Temporary Construction Easement with the Ventura County Recorder’s Office.
SECTION 6. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 7th day of May, 2025.
________________________________
Chris R. Enegren, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Exhibit A - Temporary Construction Easement
265
RECORDING REQUESTED BY:
City of Moorpark
Community Development Department
323 Science Drive, Suite ___
Moorpark, CA 93021
WHEN RECORDED RETURN TO:
City Clerk
City of Moorpark
323 Science Drive, Suite ___
Moorpark, CA 93021
(SPACE ABOVE FOR RECORDER’S USE ONLY)
APN: _______________
The Undersigned Grantor Declares:
Recording Fee: Exempt (California Government Code Section 27383
Documentary Transfer Tax: Exempt (Revenue and Taxation Code Section 11922)
TEMPORARY CONSTRUCTION EASEMENT
AGREEMENT
(Easement in Gross)
THIS TEMPORARY CONSTRUCTION EASEMENT (“Agreement”) is made as of
__________, __________, by and between CITY OF MOORPARK, a municipal corporation
(“Grantor”) and RWC HITCH RANCH, LLC, a Delaware Limited Liability Company
(“Grantee”). Grantor and Grantee are, from time to time, hereinafter referred to in this
Agreement individually as a “Party” and collectively as the “Parties.” Any reference to the
Grantor and Grantee shall mean and include their respective successors and assigns.
RECITALS
A.Grantor is the owner of certain real property located in the City of Moorpark
(“City”), Ventura County (“County”), California described in Exhibit 1 of this Agreement,
attached hereto and incorporated herein by this reference as if set forth in full (the “Grantor
Property”).
B.Grantee is the owner of an equitable interest with respect to certain real property
within the City described in Exhibit 2 of this Agreement, attached hereto and incorporated herein
by this reference as set forth in full (“Grantee’s Property”), which property has been entitled
for development and is subject to and benefiting from Residential Planned Development Permit
2019-01.
C.In connection with Grantee’s development of Grantee’s Property, Grantee is
required to perform certain construction and improvement work on and about the Grantor
EXHIBIT A
Resolution No. 2025-____
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266
Property for purposes of restoring and enhancing habitat for the benefit of sensitive species and
natural communities on the Grantor Property (as more specifically described in Exhibit 3) (the
“Improvements”).
D. Grantee requires a temporary construction easement on the portion of the Grantor
Property as shown in Exhibit 4 (the “Easement Area”) in order to make, construct and install
the Improvements on the Easement Area, in accordance with the terms of this Agreement.
E. This Agreement is intended to establish temporary access, grading and
construction rights for Grantee to and over the Easement Area, in order to complete the
Improvements and to access the Easement Area with persons and equipment to make, construct
and install the Improvements on the Easement Area on Grantor’s Property.
F. Grantor has agreed to grant to Grantee a temporary construction easement in gross
as described herein in order to permit Grantee (and its express successors or assigns) to complete
the Improvements within the Easement Area and to provide for the grant of a permanent
Conservation Easement over the Easement Area.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Grant of Temporary Grading and Construction Easement. Grantor hereby grants Grantee
a non-exclusive temporary easement to enter upon the Easement Area for the purposes of
making, constructing, and installing the Improvements. Grantee and Grantee’s
employees, agents, consultants, contractors, subcontractors and other entities who are
contracted by Grantee to carry out the work of designing, making, constructing and
installing the Improvement (“Designees”) are authorized to use the Easement Area for
performance of the Improvements, ingress and egress, a work area for construction
activity, and to temporarily store equipment, soil, supplies, vehicles, and similar
construction-related uses related solely to the work expressly permitted to be performed
as provided in this Agreement and as necessary to make, construct and install the
Improvements. All of Grantee’s rights to perform construction of the Improvements
within the Easement Area are referred to in this Agreement as the “TCE Easement.”
2. Improvements. The Improvements to be performed by Grantee and Grantee’s Designees
shall include all of the work as shown on Exhibit 3, attached hereto and incorporated
herein by this reference, and all the work referred to in that Exhibit.
3. Permits. Grantee shall be responsible for securing and maintaining all necessary permits
and approvals from other appropriate local, state and federal agencies for the TCE
Easement and the Improvements, and Grantee shall comply with all applicable laws and
regulations concerning the use of the TCE Easement. All work shall be conducted in
conformance with the standards imposed by the City and by other governmental agencies
with regulatory jurisdiction over the Improvements.
4. Indemnification. Grantee will indemnify, defend and hold Grantor harmless from any and
all liability for loss, damages, costs, expenses, demands, causes of action, claims or
judgments, to the extent arising from or arising out of or in any way connected with the
entry, access and use of the Easement Area and the TCE Easement by said Designees in
Resolution No. 2025-____
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267
connection with the exercise of the rights of the Designees under this grant of easement
or any breach of Grantee’s or Grantee’s Designee’s obligations under this grant of
easement, and will reimburse Grantor for all reasonable costs, expenses and losses,
including reasonable attorneys’ fees, incurred by Grantor in consequence of any claims,
demands and causes of action that may be made or brought against Grantor to the extent
arising out of the entry on and use of the Easement Area by said Designee in connection
with the constructing or installing Improvements or any breach of Grantee’s or its
Designee’s obligations under this grant of easement.
5. Insurance. Prior to entry onto the Easement Area, Grantee will cause Grantee’s contractor
for the Improvements to procure and maintain a policy of commercial general liability
insurance issued by an insurer reasonably satisfactory to Grantor covering the use by and
activities of Grantee’s Designees with a single limit of liability (per occurrence and
aggregate) of not less than $2,000,000, and to deliver to Grantor a certificate of insurance
and copy of additional insured endorsement naming Grantor as named additional insured,
evidencing that such insurance is in force and effect, and evidencing that Grantor has
been named as an additional insured thereunder with respect to the use by Grantee’s
Designees of the TCE Easement. Such insurance will be maintained in force throughout
the term of this TCE.
6. No Liens. In consideration for the use of the Easement Area, Grantee will keep the
Easement Area and Grantor’s Property free of any liens, including without limitation,
liens by contractors, subcontractors, suppliers, engineers, architects, surveyors, or others
that may have lien rights for work arising out of Grantee’s use of the Easement Area in
connection with the construction and installation of the Improvements. If any such lien is
filed on the Easement Area or any portion of Grantor’s Property in connection with
Grantee’s use of the Easement Area for the Improvements, Grantee will, at its sole cost
and expense, have the lien released and discharged, or bonded over in a matter
satisfactory to Grantor within 45 calendar days of receiving notice of the lien. If Grantee
fails to remove the lien or procure a bond with respect to such lien within such 45-day
period, Grantor will have the right to remove or bond over the lien, and Grantee, upon
demand, will reimburse the Grantor for all reasonable costs and expenses, including
without limitation, reasonable attorneys’ fees incurred by Grantor in connection with
such removal or bond.
7. Term and Termination of TCE Easement. The rights granted to Grantee with respect to
the TCE Easement shall commence on the date that is fifteen (15) days after Grantee
provides to Grantor a written notice of commencement of the Improvements within the
Easement Area (the “Notice of Commencement”), and shall expire on the first to occur
of (a) five (5) years after the date of the Notice of Commencement, (b) upon recordation
of the Conservation Easement as provided in Section 5 below, (c) five (5) years after the
Effective Date of this Agreement, or (d) the date on which Grantee notifies Grantor in
writing that the Improvements are complete and Grantee no longer needs the TCE
Easement.
8. Notice and Cure. During the term of the TCE Easement, Grantor shall provide Grantee
with notice of any default of its obligations under this Agreement and Grantee shall have
Resolution No. 2025-____
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268
thirty (30) days to commence to cure any such default from the date of such notice and
Grantee shall diligently proceed to complete such cure thereafter (excluding any default
that threatens immediate loss of life or property damage, as to which no notice and cure
period shall apply).
9. Conservation Easement. In addition to the TCE, upon the request of Grantee, Grantor
shall enter into a conversation easement for the benefit of a qualified entity with respect
to the Easement Area (the “Conservation Easement”), in substantially the form of
Exhibit 5 hereto, provided that as a condition to such obligation, the Conservation
Easement shall provide that the Grantee is responsible for, and shall bear all costs
associated with, the operation, upkeep and maintenance of the Improvements installed by
Grantee under this Agreement, that Grantee shall indemnify Grantor to the same extent as
provided for in this Agreement, and Grantee shall provide evidence reasonably
satisfactory to Grantor with respect to an agreement with a qualified entity to serve as
land manager and an agreement to provide the endowment required for the long term
management of the property subject to the Conservation Easement.
10. Covenants Running With the Land. Each and all of the covenants, conditions, easements,
and restrictions set forth in this Agreement (i) shall run with the land comprising the
Easement Area and every portion thereof; (ii) shall be enforceable as equitable servitudes
against the servient tenement pursuant to applicable law; (iii) shall run to the benefit of
Grantee and its permitted successors and assigns with respect to this Agreement.
11. Assignment. Grantee shall have the right to assign its rights under this Agreement to any
successor owner of the Grantee’s equitable interest with respect to Grantee’s Property.
12. Subordination. The easement created by this Agreement shall be superior to any and all
deeds of trust, mortgagees, liens, ground leases, licenses, covenants or encumbrances
affecting the Grantor Property recorded after the recordation of this Agreement, or any
memorandum of this Agreement, and this Agreement shall survive the foreclosure or
termination of any such instruments or interests.
13. No Partnership. Nothing contained in this Agreement shall be construed as making
Grantor and Grantee a joint venture or partnership.
14. Integration. This Agreement, including exhibits, contains and integrates the entire
agreement of the parties with respect to the subject matter thereof, and supersedes all
negotiations and previous agreements, if any, between the parties with respect thereto.
15. Governing Law and Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. Any and all legal actions brought to
enforce or interpret the terms and provisions of this Agreement shall be commenced
exclusively in a court of competent jurisdiction in the County of Ventura.
16. Severability. If any term, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining terms,
covenants and conditions shall continue in full force and effect.
17. Attorneys’ Fees and Costs. In the event any legal-proceedings are initiated by a party
hereto for enforcement of this Agreement, the prevailing party in such proceeding, or the
non-dismissing party where the dismissal occurs other than by reason of a settlement,
shall be entitled to recover its costs and expenses (including without limitation reasonable
Resolution No. 2025-____
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269
attorneys' fees) paid or incurred in good faith, including costs and fees of any post
judgment enforcement or collection proceedings.
18. Notices. Any notice, consent or approval required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given upon (i) hand
delivery, (ii) one business day after being deposited with Federal Express or another
reliable overnight courier service for next day delivery, (iii) upon PDF transmission by
email (except that if the date of such transmission is not a business day, or if such
transmission is made after 5:00 p.m. on a business day, then such notice shall be deemed
to be given on the first business day following such transmission), or (iv) two business
days after being deposited in the United States mail, registered or certified mail, postage
prepaid, return receipt required, and addressed as follows:
If to GRANTOR:
City of Moorpark
Attn. City Clerk
323 Science Drive
Moorpark, CA 93021
If to GRANTEE:
RWC Hitch Ranch, LLC
3760 Kilroy Airport Way, Suite 130
Long Beach, CA 90806
With a copy to:
Robert Miller, Esq.
Lubin Olson & Niewiadomski, LLP
The Transamerica Pyramid
600 Montgomery Street, 14th Floor
San Francisco, CA 94111
or such other address as either Owner may from time to time specify in writing to the
other.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
“Grantor”
CITY OF MOORPARK
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
RWC HITCH RANCH, LLC,
a California limited liability company
By:
Robert Comstock,
RWC Hitch Ranch, LLC, Its: Authorized signer
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A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF )
On _______________, 20__, before me, ______________________________________,
Notary Public, personally appeared ________________________________________________,
who proved to me on the basis of satisfactory evidence 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
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A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF )
On _______________, 20__, before me, ______________________________________,
Notary Public, personally appeared ________________________________________________,
who proved to me on the basis of satisfactory evidence 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
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Exhibit 1
GRANTOR PROPERTY LEGAL DESCRIPTION
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Exhibit 2
GRANTEE PROPERTY LEGAL DESCRIPTION
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Exhibit 3
DESCRIPTION OF THE IMPROVEMENTS
Work required to perform the Improvements are contained in the Native Habitat Restoration Plan
for Hitch Ranch Specific Plan Project, prepared by Rincon Consultants, Inc., dated May 2024
(copy available from the Community Development Department, City of Moorpark, 323 Science
Drive, Moorpark, California 93021). The principal requirements of that Plan are set forth on
succeeding pages of this Exhibit.
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Exhibit 4
EASEMENT AREA LEGAL DESCRIPTION
[Attached]
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Exhibit 5
CONSERVATION EASEMENT DEED
[Attached]
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RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
)
)
)
)
)
WITH COPY TO: )
)
)
U.S. Fish and Wildlife Service )
[address] )
)
)
Space Above Line for Recorder’s Use Only
CONSERVATION EASEMENT DEED
(Including Third-Party Beneficiary [or Beneficiaries if another agency is included])
THIS CONSERVATION EASEMENT DEED (“Conservation Easement”) is made as of
_________________, 20____, by [insert full legal name(s) of Grantor(s)] (“Grantor”), in favor
of [insert full legal name of Grantee] (“Grantee”), hereinafter referred to individually as “Party”
and collectively as “Parties,” with reference to the following facts:
R E C I T A L S
A. Grantor is the sole owner in fee simple of certain real property containing
approximately [insert number] acres of land, located in the [insert name of City if within City
limits: City of _____________,] County of _____________, State of California, designated
Assessor’s Parcel Number(s) [insert APN(s)] (“Property”). The Property is legally described
and depicted in Exhibit A attached to this Conservation Easement and incorporated herein by this
reference.
B. [Add recital about the Hitch Ranch Specific Plan Project, the Habitat
Conservation Plan, the Habitat Conservation Plan Area and the two areas that will be
comprise the Habitat Preserve, a portion of which is owned by City.]
C. [Add recital about the designation of the Land Manager for long-term
management of the Habitat Conservation Plan and the establishment of an Endowment for
the long-term cost of carrying out the Long-Term Management Plan and the terms of the
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Agreement between Grantor, Grantee and the Land Manager, including the Land Manager’s
compliance with this Agreement.]
D. [Add recital about the duties of the Land Manager and the terms of the
Agreement between Grantor, Grantee and Land Manager that pertain to assignment of duties
and obligations in this Conservation Easement from Grantor to the Land Manager.]
E. The Property, in its current form and then as restored and enhanced by the Habitat
Conservation Plan will possess wildlife and habitat values of great importance to Grantor,
Grantee, the United States Fish and Wildlife Service (“USFWS”), [add California Department
of Fish and Wildlife (“CDFW”) if appropriate,] the people of the State of California, and the
people of the United States. The Property will provide high quality habitat for [list plant and/or
animal species] and contains [list habitats]. Individually and collectively, these wildlife and
habitat values comprise the “Conservation Values” of the Property.
F. The Property will support habitat required to be preserved and managed in
perpetuity by Federal Endangered Species Act Incidental Take Permit TE-__________
(“Permit”) [add CDFW permit if appropriate] as mitigation for certain impacts of [describe
project] located in the [insert name of City if within City limits: City of ____________,]
County of ____________, according to the [name of Habitat Conservation Plan], dated
_____________ (“HCP”) and the Implementing Agreement (“IA”) [if any], dated
____________, the terms of which are incorporated by reference in this Conservation Easement.
Grantor, Grantee, and USFWS each has a copy of the HCP, the IA, and the Permit.
G. Grantee is authorized to hold conservation easements pursuant to California Civil
Code section 815.3. Specifically, Grantee is a tax-exempt nonprofit organization qualified under
section 501(c)(3) of the Internal Revenue Code of 1986, as amended [or whatever description is
appropriate], and qualified to do business in California, which has as its primary purpose the
preservation, protection or enhancement of land in its natural, scenic, or open-space condition.
H. USFWS, an agency within the United States Department of the Interior, has
jurisdiction over the conservation, protection, restoration, and management of fish, wildlife,
native plants, and the habitat necessary for biologically sustainable populations of these species
within the United States pursuant to the Endangered Species Act, 16 U.S.C. section 1531 et seq.
(“ESA”), the Fish and Wildlife Coordination Act, 16 U.S.C. sections 661-666c, the Fish and
Wildlife Act of 1956, 16 U.S.C. section 742(f) et seq., and other provisions of federal law.
I. [Add if appropriate] The CDFW has jurisdiction, pursuant to California 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 CDFW is authorized to hold conservation easements for these purposes pursuant to
California Civil Code section 815.3, California Fish and Game Code section 1348, and other
provisions of California law.
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COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, 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.
1. Purposes. The purposes of this Conservation Easement are to ensure the Property
will be retained forever in its natural, restored, or enhanced condition consistent with the habitat
protection requirements of the HCP, IA [if any], and Permit and to prevent any use of the
Property that will impair or interfere with the Conservation Values of the Property. Grantor
intends that this Conservation Easement will confine the use of the Property to activities that are
consistent with such purposes, including, without limitation, those involving the preservation,
restoration, and enhancement of native species and their habitats.
2. Grantee’s Rights. To accomplish the purposes of this Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee:
(a) To preserve and protect the Conservation Values of the Property;
(b) To enter the Property at any reasonable time in order to monitor
compliance with and otherwise enforce the terms of this Conservation Easement, and for
scientific research and interpretive purposes by Grantee or its designees, provided that Grantee
shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of the
Property;
(c) To prevent any activity on or use of the Property that is inconsistent with
the purposes 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 or activity that
is inconsistent with the purposes of this Conservation Easement;
(d) To require that all mineral, air and water rights as Grantee deems
necessary to preserve, protect, and sustain the biological resources and Conservation Values of
the Property shall remain a part of and be put to beneficial use upon the Property consistent with
the purposes of this Conservation Easement; and
(e) All present and future development rights appurtenant to, allocated,
implied, reserved or inherent in the Property; such rights are hereby terminated and extinguished,
and may not be used on or transferred to any portion of the Property, nor any other property
adjacent or otherwise.
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3. Third-Party Beneficiary. Grantor and Grantee acknowledge that USFWS [add
other agencies here and throughout the remainder of the document as appropriate] is a third-
party beneficiary of this Conservation Easement with the right of access to the Property and the
right to enforce all obligations of Grantor and all other rights and remedies of Grantee under this
Conservation Easement. These enforcement rights are in addition to, and do not limit, the rights
of enforcement under the Permit. Additionally, Grantor and Grantee acknowledge and agree that
USFWS is expressly granted certain additional rights under this Conservation Easement
including, but not limited to, prior written notice of certain specified actions and a right of
approval of certain specified actions.
4. Prohibited Uses. [Add if appropriate: Except (and only to the extent) the use or
activity is a Reserved Right under Section 6] Except as required or authorized by the Habitat
Conservation Plan, any activity on or use of the Property that is inconsistent with the purposes of
this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the
following uses and activities by Grantor, Grantor’s agents, and third parties are expressly
prohibited: [Review the following to confirm they are appropriate for the particular Property
and its Conservation Values.]
(a) Unseasonable watering; use of chemical fertilizers, pesticides, biocides,
herbicides, rodenticides, fungicides or other agents; weed abatement activities; incompatible fire
protection activities; and any and all other activities and uses which may adversely affect the
Conservation Values of the Property or otherwise interfere with the purposes of this
Conservation Easement;
(b) Use of off-road vehicles and use of any other motorized vehicles except on
existing roadways;
(c) Agricultural activity of any kind [add if appropriate: except grazing for
vegetation management if done in accordance with a grazing or management plan for the
Property approved by Grantee and USFWS];
(d) Recreational activities including, but not limited to, horseback riding,
biking, hunting or fishing [add if appropriate: except such activities as are consistent with the
purposes of this Conservation Easement and carried out in accordance with a management
plan for the Property approved by Grantee and USFWS];
(e) Commercial, industrial, institutional, or residential structures or uses;
(f) Any legal or de facto division, subdivision or partitioning of the Property,
including a request for a certificate of compliance pursuant to the Subdivision Map Act
(California Government Code section 66499.35);
(g) Construction, reconstruction, expansion, location, relocation, installation,
or placement of any building, billboard or sign, or any other structure or improvement of any
kind, except for fencing and signage required by the Habitat Conservation Plan. [add if
appropriate: except signs for access control or education that will not impair or interfere with
the Conservation Values and are consistent with the purposes of this Conservation Easement];
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(h) Deposit or accumulation of soil, trash, ashes, refuse, waste, bio-solids or
any other materials;
(i) Planting, introduction, or dispersion of non-native or exotic plant or
animal species;
(j) Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extracting minerals, loam, soil, sand, gravel, rock or other material
on or below the surface of the Property, or granting or authorizing surface entry for any such
purpose;
(k) Altering the surface or general topography of the Property, including
building roads or trails, or paving or otherwise covering any portion of the Property;
(l) Removing, disturbing, altering, destroying, or cutting of trees, shrubs or
other vegetation, except as required by law and in conformance with a management plan
approved by Grantee and USFWS for (1) fire breaks, (2) maintenance of existing foot trails or
roads that are otherwise permitted under this Conservation Easement, or (3) prevention or
treatment of disease;
(m) Manipulating, impounding or altering any natural water course, 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;
(n) Without the prior written consent of Grantee and USFWS, which Grantee
and USFWS each may withhold for any reason, transferring, encumbering, selling, leasing, or
otherwise separating the mineral, air, or water rights for the Property; changing the place or
purpose of use of the water rights; abandoning or allowing the abandonment of, by action or
inaction, any water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights,
wells, ground water rights, or other rights in and to the use of water historically used on or
otherwise appurtenant to the Property, including but not limited to: (1) riparian water rights; (2)
appropriative water rights; (3) rights to waters which are secured under contract with any
irrigation or water district, to the extent such waters are customarily applied to the Property; and
(4) any water from wells that are in existence or may be constructed in the future on the
Property; and
(o) Any activity or use that may violate or fail to comply with relevant
federal, state, or local laws, regulations, or policies applicable to Grantor, the Property, or the
activity or use in question.
(p) [Insert additional prohibitions as appropriate for the particular Property
and its Conservation Values.]
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5. 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 Property or that are otherwise inconsistent with this Conservation Easement. In
addition, Grantor shall undertake all necessary actions to perfect the rights of Grantee under
Section 2 of this Conservation Easement, including all reasonable actions to require the Land
Manager to undertake the Long-Term Management Plan for the Habitat Conservation Plan.
6. Assignment of Grantor’s Obligations and Duties to Land Manager. The Parties
understand that Grantor’s duties and obligations pursuant to this Conservation Easement rely
upon the concerted and continuing actions of the Land Manager in carrying out the Habitat
Conservation Plan and in implementing that Plan, including the Long-Term Management Plan If
any failure of Grantor to comply with the terms of this Conservation Easement is caused by the
act or omission of the Land Manager, Grantor has a right to tender any claim or action for an act
or omission within the scope of the duties of the Land Manager to the Land Manager, which,
pursuant to separate agreement between Grantor, Grantee and Land Manager, Land Manager has
a duty to defend indemnify and hold Grantor harmless from such claim or action.
7. 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
not expressly prohibited or limited by, and are consistent with the purposes of, the Habitat
Conservation Plan and this Conservation Easement. [Add if appropriate: Grantor specifically
reserves the right to conduct the following activities and uses on the Property:
(a) . . . .]
8. [If appropriate, add something like: Adaptive Management. The HCP, IA, and
Permit require Adaptive Management of the Property, recognizing that Adaptive Management
is a key element of implementing effective conservation programs. Adaptive Management
combines data from monitoring species and natural systems with new information from
management and targeted studies to continually assess the effectiveness of the conservation
program and adjust conservation actions. Adaptive Management may include re-prioritizing
monitoring efforts as well as corrective actions where (a) resources are threatened by land
uses in and adjacent to the Property, (b) current management activities are not adequate or
effective, or (c) enforcement difficulties are identified. Actions that are part of Adaptive
Management of the Property in accordance with the Permit, IA, and HCP, including but not
limited to monitoring and corrective actions, are consistent with the purposes of, and expressly
permitted by, this Conservation Easement.]
9. Grantee’s Remedies.
(a) If Grantee or USFWS determines that a violation of the terms of this
Conservation Easement has occurred or is threatened, Grantee or USFWS shall give written
notice to Grantor of such violation and demand in writing the cure of such violation (“Notice of
Violation”). At the time of giving any such notice, Grantee shall also give a copy of the notice to
USFWS (or, if USFWS gives a Notice of Violation it shall also give a copy of the notice to
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Grantee). Notice shall be provided in accordance with Section 23 [verify this section number
refers to “Notices” section] of this Conservation Easement.
(b) If Grantor fails to cure the violation within fifteen (15) days after receipt
of the Notice of Violation, or if the cure reasonably requires more than fifteen (15) 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, Grantee or USFWS may bring an action at law or in
equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement for
any or all of the following: to recover any damages to which Grantee may be entitled for
violation of the terms of this Conservation Easement or for any injury to the Conservation
Values of the Property; 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; to pursue any other legal or 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; or to otherwise enforce this Conservation Easement. Without limiting the liability of
Grantor, Grantee may apply any damages recovered to the cost of undertaking any corrective
action on the Property.
(c) If Grantee or USFWS, each in its sole discretion, determines that
circumstances require immediate action to prevent or mitigate injury to the Conservation Values
of the Property, Grantee or USFWS may pursue its remedies under this Conservation Easement
without prior notice to Grantor or without waiting for the period provided for cure to expire.
Grantee’s and USFWS’s rights under this Section 8 apply equally to actual or threatened
violations of the terms of this Conservation Easement.
(d) Grantor agrees that Grantee’s and USFWS’s remedies at law for any
violation of the terms of this Conservation Easement are inadequate and that Grantee or USFWS
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 or USFWS 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 and USFWS’s remedies described in this Section 8 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 California Civil Code section 815 et seq.
(e) If at any time in the future Grantor or any subsequent transferee uses or
threatens to use the Property for purposes inconsistent with this Conservation Easement then,
despite the provisions of California Civil Code section 815.7, the California Attorney General,
any person and any entity with a justiciable interest in the preservation of this Conservation
Easement each has standing as an interested party in any proceeding affecting this Conservation
Easement.
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10. Costs of Enforcement. Grantor shall bear all costs incurred by Grantee or
USFWS, where it is a prevailing party in enforcing the terms of this Conservation Easement
against Grantor. These costs may include, but are not limited to, the following: costs of suit and
attorneys’ and experts’ fees, and any costs for restoration necessitated by Grantor’s negligence or
breach of this Conservation Easement.
11. Discretion of Grantee and USFWS. Enforcement of the terms of this
Conservation Easement by Grantee or USFWS shall be at the discretion of the enforcing party,
and any forbearance by Grantee or USFWS to exercise its rights under this Conservation
Easement in the event of any breach of any term of this Conservation Easement shall not be
deemed or construed to be a waiver by Grantee or USFWS of such term or of any subsequent
breach of the same or any other term of this Conservation Easement or of any rights of Grantee
or USFWS (as a third-party beneficiary) under this Conservation Easement. No delay or
omission by Grantee or USFWS in the exercise of any right or remedy shall impair such right or
remedy or be construed as a waiver.
12. Acts Beyond Grantor’s Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantee or USFWS to bring any action against Grantor for
any injury to or change in the Property resulting from any natural cause beyond Grantor’s
control, including, without limitation, fire not caused by Grantor, flood, storm, and earth
movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate,
or mitigate significant injury to persons or the Property resulting from such causes.
13. [Optional] Fence Installation and Maintenance. Grantor shall install and maintain
a fence that is approved in writing by Grantee and USFWS around the Property to protect the
Conservation Values of the Property.
14. Access. This Conservation Easement does not convey a general right of access to
the public.
15. Costs and Liabilities. Except for those obligations of the Land Manager, which
obligations will be provided in a separate agreement between Grantor, Grantee and the Land
Manager, Grantor retains all responsibilities and shall bear all costs and liabilities of any kind
related to the ownership, operation, upkeep, and maintenance of the Property. Grantor agrees
that neither Grantee nor USFWS shall have any duty or responsibility for the operation, upkeep
or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection
of Grantor, the public or any third parties from risks relating to conditions on the Property.
Grantor and Grantee each remains solely responsible for obtaining any applicable governmental
permits and approvals required for any activity or use permitted by this Conservation Easement,
including those required from USFWS acting in its regulatory capacity, and any activity or use
shall be undertaken in accordance with all applicable federal, state, local and administrative
agency statutes, codes, ordinances, rules, regulations, orders and requirements.
16. Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments
(general and special), fees, and charges of whatever description levied on or assessed against the
Property by competent authority (collectively “Taxes”), including any Taxes imposed upon, or
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incurred as a result of, this Conservation Easement, and shall furnish Grantee and USFWS with
satisfactory evidence of payment upon request. Grantor and Grantee each shall keep the
Property free from any liens (other than a security interest that is expressly subordinate to this
Conservation Easement as provided in Sections 24(k) and (l)) [verify these section numbers
refer to “Additional Provisions” - “Warranty” and “Additional Easements” sections],
including those arising out of any obligations incurred for any labor or materials furnished or
alleged to have been furnished to or for Grantor or Grantee at or for use on the Property.
17. Hold Harmless.
(a) Grantor shall hold harmless, protect, and indemnify Grantee and its
directors, officers, employees, agents, contractors, and representatives and the heirs, personal
representatives, successors and assigns of each of them (each a “Grantee Indemnified Party” and,
collectively, “Grantee’s Indemnified Parties”) 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 matter related to or occurring on or about the Property, except that this indemnification
shall be inapplicable to Grantee’s Indemnified Parties with respect to any Claim due solely to the
negligence or willful misconduct of Grantee’s Indemnified Parties; (2) the obligations specified
in Sections 5, 15, and 16 [verify the section numbers listed here refer to “Grantor’s Duties,”
“Costs and Liabilities,” and “Taxes; No Liens” sections]; and (3) the existence or
administration of this Conservation Easement.
(b) Grantor shall hold harmless, protect, and indemnify USFWS and its
directors, officers, employees, agents, contractors and representatives, and the heirs, personal
representatives, successors and assigns of each of them (each a “USFWS Indemnified Party”
and, collectively, “USFWS’s Indemnified Parties”) from and against any and all 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 matter related to or
occurring on or about the Property; and (2) the existence or administration of this Conservation
Easement. Provided, however, that this indemnification shall be inapplicable to a USFWS
Indemnified Party with respect to any Claim due solely to the negligence or willful misconduct
of that USFWS Indemnified Party. If any action or proceeding is brought against any of
USFWS’s Indemnified Parties by reason of any Claim to which the indemnification in this
Section 16 applies, then Grantor shall, at the election of and upon written notice from the
USFWS Indemnified Party, defend such action or proceeding by counsel reasonably acceptable
to the USFWS Indemnified Party or reimburse the USFWS Indemnified Party for all charges
incurred for services of the U.S. Department of Justice in defending the action or proceeding.
(c) Grantor’s obligations under this Section may be assigned, in whole or in
part, by Grantor to the Land Manager with respect to any Claim that arises from an act or
omission of Land Manager in connection with the management of the Habitat Conservation Plan,
including the Long-Term Management Plan.
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18. Extinguishment. If circumstances arise in the future that render the purposes of
this Conservation Easement impossible to accomplish, this Conservation Easement can only be
terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent
jurisdiction. Grantor shall provide written notice to Grantee and USFWS at least forty-five
(45) days prior to taking any action to extinguish this Conservation Easement and prior to
extinguishment shall provide a conservation easement at an alternative site to Grantee, or
another entity or organization authorized to acquire and hold conservation easements under
California Civil Code section 815.3 (or any successor provision then applicable) or the laws of
the United States, that has been approved in writing by USFWS, or shall provide alternative
mitigation acceptable to USFWS and determined in writing by USFWS to be adequate to
mitigate for the impacts to the species covered under the Permit. No such extinguishment
shall affect the value of Grantee’s interest in the Property, and if the Property, or any
interest therein, is sold, exchanged, or taken after such extinguishment, Grantee shall be
entitled to receive its pro-rata share of the proceeds of such sale, exchange or taking. The
amount of the compensation to which Grantee shall be entitled from any sale, exchange, or
taking of all or any portion of the Property subsequent to such extinguishment shall be based
on the respective fair market values of the interests of Grantee and Grantor extinguished as
determined in the judicial extinguishment proceedings, and Grantee shall use any proceeds
received in a manner determined in writing by USFWS to be consistent with the purposes of
this Conservation Easement and Grantor’s mitigation obligations under the Permit.
19. Condemnation. This Conservation Easement is a “conservation easement” as
defined in California Code of Civil Procedure section 1240.055(a)(1) and constitutes “property
appropriated to public use” as defined in California Code of Civil Procedure section
1240.055(a)(3). USFWS is a public entity that imposed conditions upon issuance of the Permit
that were satisfied, in whole or in part, by the creation of this Conservation Easement, as
described in California Code of Civil Procedure section 1240.055(a)(3). A person authorized
to acquire property for public use by eminent domain shall seek to acquire the Property, if at
all, only as provided in California Code of Civil Procedure section 1240.055. The purposes of
this Conservation Easement are presumed to be the best and most necessary public use as
defined at California Code of Civil Procedure section 1240.680, notwithstanding California
Code of Civil Procedure sections 1240.690 and 1240.700. If any person seeks to acquire the
Property for public use, Grantee shall immediately provide written notice to USFWS and
comply with all obligations of the holder of a conservation easement under California Code of
Civil Procedure section 1240.055. Grantee shall use any proceeds received from
condemnation of the Property in a manner determined by USFWS in writing to be
consistent with the purposes of this Conservation Easement and Grantor’s mitigation
obligations under the P ermit. [If CDFW is a third-party beneficiary add: If the
Conservation Easement is condemned, the net proceeds from the condemnation shall also be
used in compliance with California Government Code section 65966(j).]
20. Transfer of Easement. This Conservation Easement may only be assigned or
transferred by Grantee with the prior written approval of USFWS. Grantee may assign this
Conservation Easement only to an entity or organization approved in advance in writing by
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Grantor and USFWS that is authorized to acquire and hold conservation easements pursuant to
California Civil Code section 815.3 [if CDFW is a third-party beneficiary add: and California
Government Code section 65967] (and any successor or other provisions then applicable) or the
laws of the United States. Grantee shall require the transferee to record the assignment in the
county where the Property is located. The failure of Grantee to perform any act provided in this
Section 19 shall not impair the validity of this Conservation Easement or limit its enforcement in
any way.
21. Transfer of Property. Grantor agrees to incorporate the terms of this Conservation
Easement by reference in any deed or other legal instrument by which Grantor divests itself of
any interest in all or any portion of the Property, including, without limitation, a leasehold
interest. . Grantor further agrees to give written notice to Grantee and USFWS of the intent to
transfer any interest at least sixty (60) days prior to the date of such transfer. Grantee or USFWS
shall have the right to prevent any transfer in which prospective subsequent claimants or
transferees are not given notice of the covenants, terms, conditions and restrictions of this
Conservation Easement. . The failure of Grantor, Grantee, or USFWS to perform any act
provided in this Section 20 shall not impair the validity of this Conservation Easement or limit its
enforceability in any way.
22. No Merger. The doctrine of merger is not intended to apply and shall not operate
to extinguish this Conservation Easement if the Conservation Easement and the Property become
vested in the same party. If, despite this intent, the doctrine of merger applies to extinguish the
Conservation Easement then, unless Grantor, Grantee, and USFWS otherwise agree in writing, a
replacement conservation easement or restrictive covenant containing the same protections
embodied in this Conservation Easement shall promptly be recorded against the Property by
Grantee, or its successor in interest, in favor of a third party approved in writing by USFWS to
ensure that the mitigation obligations required under the Permit identified in Recital C, which
include conservation of the Property in perpetuity through execution and recordation of a
conservation easement or equivalent legal mechanism, and the purposes of California Civil
Code section 815, are fulfilled. Until such replacement conservation easement or equivalent
legal mechanism is executed and recorded, Grantee or its successor in interest shall continue to
protect the Property in accordance with the terms of the original Conservation Easement. Any
and all terms and conditions of this Conservation Easement shall be deemed covenants and
restrictions upon the Property, which shall run with the land according to California law and
otherwise exist in perpetuity.
23. Notices. Any notice, demand, request, consent, approval, or other communication
that a Party desires or is required to give to the other Party shall be in writing, with a copy to
USFWS, and be served personally or sent by recognized overnight courier that guarantees next-
day delivery or by first class United States mail, postage fully prepaid, and addressed as follows:
To Grantor: [Name]
[Address]
[City, State Zip]
[Attn:]
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To Grantee: [Name]
[Address]
[City, State Zip]
[Attn:]
To USFWS [Name of Field Office]
[Address]
[City, State Zip]
Attn: Field Supervisor
or to such other address as Grantor or Grantee may designate by written notice to the other Party,
with a copy to USFWS, or as USFWS may designate by written notice to the 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, three (3) business days after deposit into the
United States mail.
24. Amendment. This Conservation Easement may be amended by Grantor and
Grantee only by mutual written agreement and subject to the prior written consent of USFWS.
Any such amendment shall be consistent with the purposes of this Conservation Easement, the
Permit requirements, and California law governing conservation easements and shall not affect
its perpetual duration. Any such amendment shall be recorded in the Official Records of the
county in which the Property is located, and Grantee shall promptly provide a conformed copy of
the recorded amendment to Grantor and USFWS.
25. Additional Provisions.
(a) Controlling Law. The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California, disregarding the conflicts of
law principles of such state, and applicable federal law.
(b) Liberal Construction. Despite any general rule of construction to the
contrary, this Conservation Easement shall be liberally construed to accomplish the purposes of
this Conservation Easement and the policy and purpose of 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, such action shall not affect the remainder
of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the
application of any provision of this Conservation Easement to a person or circumstance, such
action shall not affect the application of the provision to any other persons or circumstances.
(d) Entire Agreement. This instrument, including the documents incorporated
by reference in it, along with the Agreement with the Land Manager referred to in the recitals,
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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 24 [verify this section number
refers to “Amendment” section].
(e) No Forfeiture. Nothing contained in this Conservation Easement will
result in a forfeiture of Grantor’s title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement shall be binding upon, and inure to the benefit of, the Parties and their
respective personal representatives, heirs, successors, and assigns and shall constitute a servitude
running in perpetuity with the Property.
(g) Covenant Running with the Land. This Conservation Easement and
covenants contained herein (1) are imposed upon the Property; (2) shall run with and against the
same and shall be a charge and burden thereon for the benefit of Grantee, or any successor in
interest, and USFWS; and (3) are perpetual and irrevocable.
(h) Termination of Rights and Obligations. A Party’s rights and obligations
under this Conservation Easement terminate upon transfer of the Party’s interest in the
Conservation Easement or Property, except that liability for acts, omissions, or breaches
occurring prior to transfer shall survive transfer.
(i) 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.
(j) No Hazardous Materials Liability.
(1) Except as disclosed in any Phase 1 report provided to Grantee prior
to the recordation of this Conservation Easement, Grantor represents and warrants to Grantee and
USFWS that it has no knowledge or notice of any Hazardous Materials (defined below) or
underground storage tanks existing, generated, treated, stored, used, released, disposed of,
deposited or abandoned in, on, under, or from the Property, or transported to or from or affecting
the Property.
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(2) Without limiting the obligations of Grantor under Section 17
[verify that section number refers to “Hold Harmless” section] of this Conservation Easement,
Grantor hereby releases and agrees to indemnify, protect and hold harmless Grantee’s
Indemnified Parties and USFWS’s Indemnified Parties (each as defined in Section 17 [same
instruction as above]) from and against any and all Claims (as defined in Section 17 [same
instruction as above]) arising from or connected with any Hazardous Materials or underground
storage tanks present, alleged to be present, released in, from, or about, or otherwise associated
with the Property at any time, except that this release and indemnification shall be inapplicable to
the Grantee’s Indemnified Parties or USFWS’s Indemnified Parties with respect to any
Hazardous Materials placed, disposed, or released by Grantee’s Indemnified Parties or USFWS’s
Indemnified Parties. This release and indemnification includes, without limitation, Claims for
(a) injury to or death of any person or physical damage to any property; and (b) the violation or
alleged violation of, or other failure to comply with, any Environmental Laws (defined below).
If any action or proceeding is brought against any of USFWS’s Indemnified Parties by reason of
any such Claim, Grantor shall, at the election of and upon written notice from the USFWS
Indemnified Party, defend such action or proceeding by counsel reasonably acceptable to the
USFWS Indemnified Party or reimburse the USFWS Indemnified Party for all charges incurred
for services of the U.S. Department of Justice in defending the action or proceeding.
(3) Despite any contrary provision of this Conservation Easement, the
Parties do not intend this Conservation Easement to be, and this Conservation Easement shall not
be, construed such that it creates in or gives to Grantee or USFWS any of the following:
(A) The obligations or liability 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
(B) The obligations or liabilities of a person described in 42
U.S.C. section 9607(a)(3) or (4); or
(C) The obligations of a responsible person under any
applicable Environmental Laws; or
(D) The right or duty to investigate and remediate any
Hazardous Materials associated with the Property; or
(E) Any control over Grantor’s ability to investigate, remove,
remediate or otherwise clean up any Hazardous Materials associated with the Property.
(4) 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, the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. section 6901 et seq.; hereinafter “RCRA”); the Hazardous
Materials Transportation Act (49 U.S.C. section 5101 et seq.; hereinafter “HTA”); the Hazardous
Waste Control Law (California Health & Safety Code section 25100 et seq.; hereinafter “HCL”);
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the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety
Code section 25300 et seq.; hereinafter “HSA”), and in the regulations adopted and publications
promulgated pursuant to them, or any other applicable Environmental Laws now in effect or
enacted after the date of this Conservation Easement.
(5) The term “Environmental Laws” includes, without limitation,
CERCLA, RCRA, HTA, HCL, HSA, and any other federal, state, local or administrative agency
statute, code, ordinance, rule, regulation, order or requirement relating to pollution, protection of
human health or safety, the environment or Hazardous Materials. Grantor represents, warrants
and covenants to Grantee and USFWS that activities upon and use of the Property by Grantor, its
agents, employees, invitees and contractors will comply with all Environmental Laws. Grantee
represents, warrants and covenants to Grantor and USFWS that activities upon and use of the
Property by Grantee, its agents, employees, invitees and contractors will comply with all
Environmental Laws.
(k) Warranty. Grantor represents and warrants that Grantor is the sole owner
of fee simple title to the Property; that the Property is not subject to any other conservation
easement; and that there are no outstanding mortgages, liens, encumbrances or other interests in
the Property (including, without limitation, water and mineral interests) that may conflict or are
otherwise inconsistent with this Conservation Easement and which have not been expressly
subordinated to this Conservation Easement by a written, recorded Subordination Agreement
approved by Grantee and USFWS.
(l) Additional Easements. Grantor shall not grant any additional easements,
rights of way, or other interests in the Property (other than a security interest that is expressly
subordinated to this Conservation Easement), or grant, transfer, abandon, or relinquish (each a
“Transfer”) any mineral, air, or water right, or any water associated with the Property, without
first obtaining the written consent of Grantee and USFWS. Grantee or USFWS may withhold
such consent if it determines that the proposed interest or Transfer is inconsistent with the Permit
or the purposes of this Conservation Easement or may impair or interfere with the Conservation
Values of the Property. This Section 24(l) shall not limit the provisions of Sections 2(d) or 4(n)
[verify that these section numbers refer to mineral, air and water rights], nor prohibit transfer
of a fee or leasehold interest in the Property that is subject to this Conservation Easement and
complies with Section 20 [verify that section number refers to “Transfer of Property” section].
Grantor shall provide a certified copy of any recorded or unrecorded grant or Transfer document
to Grantee and USFWS.
(m) Recording. Grantee shall record this Conservation Easement in the
Official Records of the county in which the Property is located, and may re-record it at any time
as Grantee deems necessary to preserve its rights in this Conservation Easement.
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IN WITNESS WHEREOF, the Parties have executed this Conservation Easement as of
the day and year first set forth above.
GRANTOR: GRANTEE:
[Insert full legal name of Grantor] [Insert full legal name of Grantee]
BY: BY:
NAME: NAME:
TITLE: TITLE:
DATE: DATE:
[NOTE: ATTACH FORM OF NOTARY ACKNOWLEDGMENT]
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[EXAMPLE]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On _______________________, 20___, before me,_________________________, a Notary
Public in and for the State of California, personally appeared
________________________________________, 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/she executed the same in his/her authorized capacity,
and that by his/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.
________________________________________
Notary Public in and for the State of California
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On _______________________, 20___, before me, ________________________, a Notary
Public in and for the State of California, personally appeared
________________________________________, 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/she executed the same in his/her authorized capacity,
and that by his/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.
________________________________________
Notary Public in and for the State of California
(SEAL)
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[NOTE: ATTACH EXHIBIT]
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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