09-0210_U.S. ARMY CORPS OF ENGINEERS_Settlement Agreement SETTLEMEI�F'I'AGREEMENT r�E
)14
This Settlement Agreement is made and entered into as of this di
orF �:-
i`� � 2007 by the City of Sanjuan Capistrano (hereinafter the "City") and the U.S.
Army Corps of Engineers, Los Angeles District(hereinafter the "Corps'). The City and
the Corps shall collectively be referred to as the "Parties."
REQUALS
WHEREAS, the Corps has discovered an alleged discharge in violation of
sections 301(a), 309, and 404 of the Clean Water Act("CWA"), 33 U.S.C. §§1311(a), 1319,
and 1344, at a site described as Latitude 33.5258 North and Longitude-117.6687 West in
the City of San Juan Capistrano at a point just north of the intersection of Camino
Capistrano and Junipero Serra, Orange County, California(the "Discharge Site');
WHEREAS,the City is a"person" as defined in the CWA section 502(5), 33
U.S.C.§1362(5),and for purposes of this Settlement Agreement only,is the person
responsible for the alleged discharge;
WHEREAS,grouted rip-rap(the"Fill Material")has been placed into an
unnamed tributary to Trabuco Creek(hereafter "Waterway") as described in report No.
4838-02 by Dudek,dated October 10, 2006, at the Discharge Site, and such Fill Material is
hereinafter referred to as the"discharge" as defined in CWA section 502(12),33 U.S.C.
§ 1362(12);
WHEREAS, this discharge was deposited by an excavator and/or other
equipment which is a point source as defined in the CWA section 502(14), 33 U.S.C.
§ 1362(14);
WHEREAS,the alleged discharge was performed by or for the City along and
within approximately 0.01 acre of the Waterway, which is a jurisdictional"water of the
United States" within the meaning of 33 C.F.R. §328.3(a), and "navigable waters" within
the meaning of CWA section 502(7), 33 U.S.C.§ 1362(7),
WHEREAS, the City failed to obtain permit authorization from the Corps prior
to performing the alleged discharge;
WHEREAS, the Corps opened case SPL-2006-1709-FBV and issued a Notice of
Violation("Notice") to the City dated September 11, 2006;
WHEREAS, the Corps has initiated this Settlement Agreement under authority of
sections 301,309 and 404 of the CWA,33 U.S.C.§§1311,1219, and 1344, for use in
conjunction with Nationwide Permit 32;
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WHEREAS, this Settlement Agreement seeks to require the City,at its own
expense and at the direction of the Corps, to mitigate the damages caused by its alleged
unlawful activities;
WHEREAS, the Parties agree settlement of this matter is in the public interest
and that this Settlement Agreement is the most appropriate means of resolving this
matter;
NOW,THEREFORE,without admission of the allegations which charge
violations of federal law, without adjudication of any issues of fact or law,and upon
consent of the Parties hereto,it is hereby AGREED as follows:
I. APPLICABILITY AND SCOPE
1. The undersigned signatories certify they are authorized to execute this
Settlement Agreement and legally bind such parties.
2. The provisions of this Settlement Agreement shall apply to and be binding
upon City, its agents, employees,contractors,consultants, successors,or assigns. In any
action to enforce this Settlement Agreement against the City, the City shall not raise the
failure to take any actions necessary to comply with the provisions hereof by any
person, firm or corporation who acquires the Discharge Site, or who is an agent,
successor, assign,employee, contractor,or consultant of the City with responsibility for
the matters addressed in this Settlement Agreement as a defense or excuse for non-
performance.
3. The transfer of ownership or other interest in the Restoration Site (as
described in Section R below) shall not alter or relieve the City of its obligation to
comply with all of the terms of this Settlement Agreement. At least fifteen(15) days
prior to the transfer of ownership or other interest in the Restoration Site, the party
making such transfer shall provide written notice and a true copy of the Settlement
Agreement to its successors in interest and shall simultaneously notify the Corps at the
addresses specified in Paragraph 27a below that such notice has been given. As a
condition to any such transfer, the party making the transfer shall reserve all rights
necessary to comply with the terms of this Settlement Agreement.
4. This Settlement Agreement shall constitute a complete and final settlement of
all claims alleged in the Notice against the City.
5. It is the express purpose of the Parties in entering this Settlement Agreement
to further the objectives set forth in CWA section 101, 33 U.S.C. § 1251. All plans,
studies, construction, remedial maintenance, compensatory mitigation, and other
3
obligations in this Settlement Agreement or resulting from the activities required by this
Settlement Agreement shall have the objective of causing the City to achieve and
maintain full compliance with,and to further the purposes of, the CWA.
b. This Settlement Agreement is not and shall not be interpreted to be a permit
or modification of any existing permit issued pursuant to section 404 of the Clean Water
Act, 33 U.S.C. § 1344,nor does this Settlement Agreement relieve the City of any
obligation to apply for, obtain, and comply with the requirements of any new or existing
CWA section 404 permit,or with any other federal, state,or local law or regulation.
7. This Settlement Agreement in no way affects or relieves the City of its
responsibility to comply with any applicable federal,state, or local law, regulation or
permit.
8. Nothing in this Settlement Agreement shall constitute an admission of fact or
law by any party.
9. The Corps does not waive any rights or remedies available to it for any
violation or non-compliance by the City of federal or State laws, regulations,or permit
conditions except for its rights and remedies related to the allegations in the Notice.
10. The Parties agree it is the responsibility of the City to achieve and maintain
complete compliance with all applicable federal and state Iaws, regulations and permits.
Nothing herein shall be construed to limit the authority of the Corps to act under
sections 308 and 504 of the CWA, 33 U.S.C. §§ 1318 and 1364.
11. The Parties acknowledge that Nationwide Permit 32,found at 72 Fed.Reg.
11092(March 12, 2007), authorizes any fill that was placed as of March 4,2006 at the
Discharge Site, to remain in place, subject to the conditions provided in the Nationwide
Permit,the Corps' letter of verification,and this Settlement Agreement. The Parties
further acknowledge that Nationwide Permit 32 authorizes the discharge of dredged or
fill material insofar as such discharge is necessary to complete the work required to be
performed pursuant to this Settlement Agreement. Any such discharge of dredged or
fill material necessary for work required by this Settlement Agreement shall be subject to
the conditions of the Nationwide Permit,the Corps' letter of verification, and this
Settlement Agreement.
II. SPECIFIC PROVISIONS
RESTORATION
12. City shall perform restoration that consists of planting, maintaining and
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monitoring 0.034 acre of jurisdictional wetland/riparian habitat(the"Restoration")
under the terms and conditions stated below.The purpose of the Restoration is to
compensate for the temporary and permanent loss of waters of the United States in the
area disturbed by the alleged unauthorized activities. The Restoration shall be located
within Reservoir Canyon(the"Restoration Site")as stated and shown in the Reservoir
Canyon Habitat Mitigation and Monitoring Plan for the 760 Zone SC-04 Reservoir
Project- Pursuant to the Conditions Concurrence with the Special 4(D)Rule Interim
Habitat loss Mitigation Plan (IHLMP) for the Project(FW/CDFG-OR-1602.3, CDFG
1066-2004-0040-R5, ACOE No. SP1-2004-717-CLM,RWQCB File No. 04C-010" dated
June 1, 2004 as amended February 21,2007(the "Restoration Plan"),incorporated herein
by reference.
13. The Parties agree the City has satisfactorily completed the implementation
phase of the Restoration as specified in the Management Program:Sites and Habitat
Elements Section of the Restoration Plan. Accordingly, City shall submit annual
monitoring reports to the Corps beginning June 1,2009, and thereafter shall submit
reports on the same day in 2010,2011, 2012,and 2013 to ensure the success criteria
specified in the Restoration Plan relating to the revegetation set forth in Paragraph 12 are
achieved. The annual monitoring reports shall include the information specified in the
Restoration Plan. The fifth year monitoring report shall include a written completion
report indicating the work specified in Paragraph 12 above has been completed and that
the final success criteria required as part of the Restoration Plan have been achieved.
This report shall include documentation of all success criteria and color photographs of
this restoration. If the Corps determines that the work set forth in Paragraph 12 above
has not been completed in accordance with the Settlement Agreement or the Restoration
PIan, the Corps will notify City in writing of the activities that must be undertaken by
City, pursuant to the Settlement Agreement to complete the work set forth in Paragraph
12 above and the Restoration Plan. The Corps will set forth in the notice a schedule for
performance of such activities consistent with this Settlement Agreement,or require City
to submit a schedule to the Carps for approval pursuant to Paragraphs 18 and 19. City
shall perform all activities described in this notice in accordance with the specifications
and schedules established pursuant to this Paragraph.
14. To ensure the Restoration remains undisturbed, City shall no later than
February 27,2009, amend the "Declaration of Restrictive Covenants(APN 675-011-27,
City of San Juan Capistrano,County of Orange)" recorded August 28, 2007, in the
Official Records of Orange County as document 2007000532191. The Declaration of
Restrictive Covenants must be amended,at a minimum, to correct the mitigation plan
citation in Section 1(b)(1), to correct the certification in Section 1(c) that there are no
structures or improvements on the easement property when in fact some exist and
shown on Exhibit E, to address whether the City desires a reserved right to maintain,
repair and/or replace such structures and improvements, and to correct Section 22 to
address the fact that implementation of the mitigation plan by the City does not
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terminate upon transfer of the easement property. Prior to execution and recordation of
the amended Declaration of Restrictive Covenants, the Corps must approve the form
and content of the document, in accordance with Paragraphs 18 and 19.
15. Upon completion of the terms and conditions of the Restoration in
accordance with the Restoration Flan, Nationwide Permit, and the Corps'letter of
verification, the City shall not mow, cut,clear,cultivate, dredge, excavate,farm,fill,
dewater, drain or otherwise disturb in any manner the Discharge Site and/or Restoration
Site except as approved by the Corps.
III. NOTICES AND OTHER UB IONS
16. If a required task is not completed within the timeframe specified, the City
shall provide the Corps written notice, at the addresses specified in Paragraph 27a of
this Settlement Agreement, of the date when the task was anticipated, and explain the
reasons for any delay in completion beyond the scheduled time for such completion
required by the Settlement Agreement.
17. In all notices, documents or reports submitted to the Corps pursuant to this
Settlement Agreement, the City shall, by signature of a City official with authority to
bind the City, certify such notices, documents and reports as follows:
I certify under penalty of law that this document and all attachments
were prepared under my direction or supervision in accordance with a
system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of.the person
or persons who manage the system,or those persons directly responsible
for gathering such information, the information submitted is, to the best
of my knowledge and belief, true, accurate and complete. I am aware
that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing
violations.
18. After review of any plan, report or other item that is required to be
submitted to the Corps for approval pursuant to this Settlement Agreement, the
Corps shall:
a. approve,in whole or in part,the submission; or
b. disapprove, in whole or in part,the submission, specifying
the deficiencies and the reasons therefore and directing the City to modify the
submission. The Corps shall notify the City of its determination in writing.
19. Upon receipt of a written notice of disapproval pursuant to
Paragraph 20(b) above,the City shall, within forty-five(45) days or such Ionger
times as specified by the Corps in such notice, correct the deficiencies and
resubmit the plan,report or other item for approval. If upon resubmission,a
plan, report or other item is disapproved by the Corps, the City shall be deemed
to have failed to submit such plan, report or other item timely and adequately.
20. All plans, reports,and other items required to be submitted to the
Corps under this Settlement Agreement shall,upon approval by the Corps,be
enforceable under this Settlement Agreement.
IV. RETENTI N OF RECORQS AND RIGHT OF ENTRY
21. Until six years after execution of this Settlement Agreement,the City shall
preserve and retain all records and documents now in its possession or control or which
come into its possession or control that relate in any manner to the performance of the
tasks in Section II above,regardless of any corporate retention policy to the contrary.
Until six years after execution of this Settlement Agreement, the City shall also instruct
his contractors and agents to preserve all documents, records, and information of
whatever kind,nature,or description relating to the performance of the tasks in Section
II.
22. At the conclusion of the document retention period, the City shall notify the
Corps at least ninety(90) days prior to the destruction of any such records or
documents, and, upon request by the Corps, the City shall deliver any such records or
documents to the Corps. In response to a request for records or documents, the City
may assert that certain documents, records and other information are privileged under
the attorney-client privilege or any other privilege recognized by federal law. If the City
asserts such a privilege,he shall provide the Corps with the following: (1) the title of the
document, record, or information;(2) the date of the document, record,or information;
(3) the name and title of the author of the document, record, or information;(4) the name
and title of each addressee and recipient; (5) a description of the subject of the document,
record, or information;and (6) the privilege asserted by the City. However,no
document, report or other that a provision of this Settlement Agreement requires to be
created shall be withheld on the grounds that it is privileged.
23. a. Until successful completion of this Restoration Order and confirmed in
writing by the Corps, the Corps and its authorized representatives shall have authority
to enter City's Restoration Site during reasonable hours for the purposes of:
(1) monitoring the progress of activities required by this Settlement
Agreement;
(2) verifying any data or information submitted to the Corps in
accordance with the terms of the Settlement Agreement,
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(3) obtaining photographs and videotape for the purposes of
determining compliance with this Settlement Agreement by the City or its contractors
and consultants; or
(4) assessing the City's compliance with this Settlement Agreement.
b. This provision of this Settlement Agreement is in addition to, and in
no way limits or otherwise affects, the statutory authorities of the Corps to conduct
inspections, to require monitoring and to obtain information from City as authorized by
law.
V. ENFORCEMENT AND COMPLIANCE
24. In the event the City does not comply with the terms of this Settlement
Agreement, and/or the Nationwide Permit, or any modifications thereto, the Corps has
the right to enforce the Settlement Agreement, the Nationwide Permit, and any
modifications thereto, pursuant to 33 U.S.C.§ 1319(g) and 33 C.F.R. §326.6.
25. In the event of non-compliance with this Settlement Agreement and/or the
Nationwide Permit, and any modifications thereto,the Corps has the right to issue a
proposed order to assess Class 1 civil penalties pursuant to 33 U.S.C. § 1319(g)and 33
C.F.R. §326.6.The City will have thirty (30)days from the date the proposed order is
issued to respond to each allegation set forth therein. The response should deny or
accept each proposed stipulation. If the City denies any stipulation,he shall provide the
factual basis for such denial and supporting evidence. The City waives its right to a
hearing on any proposed order. Following the close of the thirty(30) day public interest
review period, the District Engineer for the Corps will issue a Final Order. This decision
will be based on the administrative record, including any comments and/or evidence
submitted by the City, California Regional Water Quality Control Board, and members
of the public. All evidence will be considered,and the decision will be based on a
preponderance of the evidence.
26. Persons or entities commenting on the public notice shall be allowed an
additional thirty days to request that the Final Order be set aside and a hearing be held
in accordance with section 309(g)(8)of the CW A. Such a hearing shall only be granted
if, in the opinion of the District Engineer, evidence to be presented is material and was
not considered in the preparation of the Final Order.
VI. ADDRESSES
27. All notices and communications required under this Settlement Agreement
shall be made to the parties through each of the following persons and addresses:
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a. TO THE CORPS:
Regulatory Division
U.S.Army Corps of Engineers
ATTN: SPL-2006-1709-FBV
P.O. Box 532711
Los Angeles,CA 90053-2325
District Counsel
U.S.Army Corps of Engineers
915 Wilshire Blvd.,Suite 1535
Los Angeles, CA 90017
b. TO THE CITY:
Utilities Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
VII. MODIF CATI N
28. Any modification of this Settlement Agreement shall be in writing, and shall
not take effect unless signed by both the Corps and the City.
VIII. SIGNATORIES
29. Each undersigned representative of a party to this Settlement Agreement
certifies that he or she i5 fully authorized to enter into the terms and conditions of this
Settlement Agreement and to execute and legally bind such party to this document.
LX. EFFECT DATE
30. This Settlement Agreement will become effective for all purposes as of the
date last signed.
[REMAINDER LEFT INTENTIONALLY BLANK]
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IN WITNESS THEREOF, the U.S. Army Corps of Engineers, acting by and
through its authorized officer, Chief of the Regulatory Division, and the City, acting by
and through its authorized officer, Mayor, have executed this Settlement Agreement on
the dates set forth below. The signatures may be executed using counterpart original
signatures.
Dated:
} 'David J. Castanon
Chief, Regulatory Division
U.S. Army Corps of Engineers
Los Angeles District
Dated: 3 By:
Mark Nielsen
Mavor
City of San Juan Capistrano
Attest:
/ d
v �
' Mar aret R. Monahan,
City Clerk,
Ci of San Juan Capistrano
Approved as to Form:
City Y
Attome ,
Citv of San Juan Capistrano
UTILITY DEPARTMENT
APR o 3 2009
DEPARTMENT OF THE ARMY
LOS ANGELES DISTRICT,CORPS OF ENGINEERS CITY OF
P.O BOX 532711 SAN JUAN CAPISTRANO
LOS ANGELES,CALIFORNIA 90053-2325
April 1,2009
REPLY TO
ATTPNMON OF:
Office of the Chief
Regulatory Division
Mr.John O'Donnell, Utilities Director
City of San Juan Capistrano
Attention: Mr.Eric Bauman, Water Engineering Manager
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Dear Messrs. O'Donnell and Bauman:
This is in reply to your letter(File No. SPL-2006-01709-FBV)dated October 10,
2006, concerning our permit authority under Section 404 of the Clean Water Act of 1972
(33 U.S.C. 1344) over the City's discharge of fill material within waters of the U.S. that
occurred as part of your 2006 emergency repairs along Camino Capistrano, and the
associated compensatory mitigation project. Specifically,the City,without the necessary
prior Section 404 authorization, discharged fill material into approximately 0.01 acre of
jurisdictional waters of the U.S. in an unnamed tributary to Trabuco Creek within the
City of San Juan Capistrano, Orange County, California.
While this activity meets the general terms and conditions for authorization under
Nationwide Permit Number 32 Completed Enforcement Actions.[Federal Register,March
12,2007,pp.11092-111981,we note that you do not have Section 401 water quality
certification from the California Regional Water Quality Control Board(RWQCB).
Therefore,your request is denied without prejudice.You will receive authorization from
the Corps when you have met the requirements outlined below.
According to 33 CFR 330.4,a state water quality certification("Section 401
certification")pursuant to Section 401 of the Clean Water Act,or waiver thereof,is required
prior to authorization of your project.You must therefore obtain Section 401 certification or
waiver, or provide the Corps with evidence that 60 days have passed since you applied to
the RWQCB for certification. Be aware that any conditions on your Section 401 certification
will become conditions on your Nationwide Permit authorization.
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When you receive your Section 401 certification or waiver(or when 60 days have
passed since you applied),you should contact the Corps Project Manager for this project,
Forrest Vanderbilt at 213.452.3289 or Forrest_B.Vanderbilt@usace.army.mil. Please
reference application SPL-2006-01709-FBV in your letter.Your authorization could then be
issued without further delay or processing.
Furthermore, you are required to comply with the following non-discretionary
Special Condition:
1. The Permittee shall comply with all terms, condition, and obligations of the
Settlement Agreement as executed on February 10, 2009 by the Corps and the City.
An original copy of the referenced, executed Settlement agreement is enclosed for
your records.
Please be advised that you can now comment on your experience with Regulatory
Division by accessing the Corps web-based customer survey form at:
bgp:/Lper2.nwp.usace,army.mil/survgy.htmi.
Sincerely,
Corice J. arrar
Senior Project Manager
South Coast Branch
Regulatory Division
Enclosure
32400 PASEO AOEL ANTO MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675 i��l, Lg
(949)493-1171 llllll SAMALLEVATO
(949)493-1053 FAX Intemint1 LAURAFREESE
[SItlLISefe •�. �4��
THOMAS W.HRIBAR
www.sanjuancapistrano.org 1776 MARK NIELSEN
Rio OR.LONDRES USO
TRANSMITTAL
February 5, 2009
TO:
US Army Corps of Engineers
915 Wilshire Blvd, 111 Floor
Los Angeles, CA 90017
Attn: David Castanon, Chief
Regulatory Division
FROM: Meg Monahan, MMC — City Clerk (949) 443-6308
RE: Settlement Agreement
Enclosed:
A minute extract from the Meeting of February 3, 2009 pertaining to this matter and
(2) Original, executed "Settlement Agreements" between the City of San Juan Capistrano
and the US Army Corps of Engineers, Los Angeles District
After execution by the US Army Corps of Engineers, please forward (1) executed original
agreement to my attention for our records.
Please contact Eric Bauman, Water Engineering Manager (949) 487-4312 with questions
regarding the agreement. I can assist you regarding the City Council's actions.
CC:
Eric Bauman, Water Engineering Manager; John O'Donnell, Utilities Director
San Juan Capistrano: Preserving the Past to Enhance the Future
�, PrNed on 100%recycled paper
32400 PASEO ADELANTO MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675 ii��
LEVATO
(949)493117, /r LAURA FREES
(949)493-1053 FAX �J I#=IPoltitTHOMAS
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[Silllltlll � 1961 THOMAS w HRIBAR
www.sanjuancapistrano.org 1776 MARK NIELSEN
• • DR.LOiNDRES USO
CITY COUNCIL MEETING
MINUTE EXTRACT
A Regular Meeting of the City Council of the City of San Juan Capistrano, California was held
on February 3, 2009 at 6:30 p.m. in the City Council Chamber, 32400 Paseo Adelanto, San
Juan Capistrano, California with Mayor Nielsen presiding.
ROLL CALL
PRESENT: COUNCIL MEMBERS: Allevato, Hribar, Freese, Uso, and Mayor Nielsen
ABSENT: COUNCIL MEMBER: None
EXTRACT OF: Consent Calendar Item F8: Consideration of Settlement Agreement and
Amendment of Restated Declaration of Covenants for the Camino Capistrano Emergency
Repairs (U. S. Army Corps of Engineers) (Camino Capistrano) (FEMA DR-1577)
(ACOE-2006-1709-FBV) (600.30)
Council Action: Moved by Moved by Mayor pro tem Uso, seconded by Council Member
Allevato, and carried unanimously to 1) approve a Settlement Agreement with the U.S. Army
Corps of Engineers for environmental mitigation for the Camino Capistrano Emergency
Repairs; 2) adopt the Amended and Restated Declaration of Restrictive Covenants (APN 675-
011-27); and direct the City Clerk to process recording of the Amended and Restated
Declaration of Restrictive Covenants.
ROLL CALL:
AYE: Council Members: Allevato, Hribar, Freese, Uso, and Mayor Nielsen
NO: Council Members: None
ABSENT: Council Members: None
I, Margaret R. Monahan, City Clerk of the City of San Juan Capistrano, California, do hereby
certify that the foregoing is a true and correct copy of the Minute Entry on record in my office.
Said Minutes have not been officially approved by the City Council of the City of San Juan
Capistrano, as of February 5, 2009.
San Juan Capistrano: Preserving the Past to Enhance the Future
Printed on 100%tecycW paper
2/3/2009
AGENDA REPORT FS
TO: City Manager
FROM: John G. O'Donnell, Utilities Director
SUBJECT: Consideration of Settlement Agreement and Amendment of Restated
Declaration of Covenants for the Camino Capistrano Emergency Repairs
(U.S. Army Corps of Engineers) (Camino Capistrano) (FEMA DR-1577)
(ACOE-2006-1709-FBV)
RECOMMENDATION:
By motion:
1) Approve a Settlement Agreement with the U.S. Army Corps of Engineers for
environmental mitigation for the Camino Capistrano Emergency Repairs;
2) Adopt the Amended and Restated Declaration of Restrictive Covenants (APN
675-011-27) and;
3) Direct the City Clerk to Process Recording of the Amended and Restated
Declaration of Restrictive Covenants.
SITUATION:
Heavy rains during late December 2004 through early January 2005 caused severe
erosion and bank failure along the west side of Camino Capistrano, north of Junipero
Serra Road. Approximately 700 feet of hillside immediately down slope of the roadway
eroded and became unstable. In addition, an existing storm drain headwall was
damaged and further compromised the stability of the slope and roadway. Emergency
repairs to the slope and headwall were started on January 11th and completed on March
4, 2005.
The repair resulted in impacts to about 439 square feet (0.011249 Acres) of existing
wetlands habitat including 249 square feet of Southern Will scrub, and 190 square feet
of open channel. The U.S. Army Corps of Engineers (USACOE) has required the City
to mitigate these impacts. Mitigation includes the restoration of the impacted habitat as
well as entering into Settlement Agreement to codify the agreement to mitigate the lost
habitat and to maintain it from further harm. The USACOE has prepared the Settlement
Agreement (Attachment 1) and the City Attorney has approved the Agreement as to
form. Entering into the Settlement Agreement will bring a satisfactory conclusion for the
USACOE to the notice of violation issued by USACOE on September 11, 2006, as case
number SPL-2006-1709-FBV.
Agenda Report February 3, 2009
Page 2
To facilitate installation, maintenance, and monitoring of the restoration area described
in the Settlement Agreement, staff proposed and USACOE agreed that the required
restoration be included with the on-going 760 S Reservoir environmental restoration
program located within the Reservoir Canyon area. The USACOE approved staffs
proposal to move the restoration off-site. The initial habitat restoration is completed and
the maintenance and monitoring of the restoration area is underway. In addition to
entering into the Settlement Agreement, USACOE requires as a condition that the
Declaration of Restrictive Convents adopted for the 760 S site, be amended and re-
adopted to specifically include mention of the restoration conducted as part of the
Settlement Agreement.
Titled "Amended and Restated Declaration of Restrictive Covenants (APN 675-011-27),
City of San Juan Capistrano, County of Orange," this restrictive covenant is the same as
entered into on August 7, 2007; save the following changes: Section 1(b) 1 has
changed to identify the inclusion of an amendment to the mitigation plan, that of
February 21, 2007. Section 1 (c) has been amended to reflect that there are existing
man-made structures on the property, and to show them on exhibit "E" of the Covenant.
Section 22 has been modified to address the fact that responsibility for the
implementation of the mitigation plan by the City does not terminate upon transfer of the
property underlying the easement area defining the Covenant area.
Staff recommends the approval of the Settlement Agreement to meet USACOE
mitigation requirements for the project.
COMM ISSIONIBOARD REVIEW AND RECOMMENDATIONS:
This issue will be presented to the Utilities Commission at its meeting of January 27,
2009.
FINANCIAL CONSIDERATIONS:
Funds for the habitat restoration are included in the budget for the at the 760 S site.
NOTIFICATION:
U.S. Army Corps of Engineers
Agenda Report February 3, 2009
Pa-ge 3
RECOMMENDATION:
By motion:
1) Approve a Settlement Agreement with the U.S. Army Corps of Engineers for
environmental mitigation for the Camino Capistrano Emergency Repairs;
2) Adopt the Amended and Restated Declaration of Restrictive Covenants (APN
675-011-27) and;
3) Direct the City Clerk to Process Recording of the Amended and Restated
Declaration of Restrictive Covenants.
Respectfully Submitted, Prepared by,
V
John G. O'Donnell, Eric P. Bauman
Utilities Director Utilities Engineer
Attachments:
1. Settlement Agreement
2. Amended Restrictive Covenant
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into as of this day of
200_by the City of San Juan Capistrano (hereinafter the "City")and the U.S.
Army Corps of Engineers, Los Angeles District(hereinafter the "Corps"). The City and
the Corps shall collectively be referred to as the "Parties."
RECITALS
WHEREAS, the Corps has discovered an alleged discharge in violation of
sections 301(a),309, and 404 of the Clean Water Act("CWA"), 33 U.S.C. §§1311(a), 1319,
and 1344, at a site described as Latitude 33.5258 North and Longitude-117.6687 West in
the City of San Juan Capistrano at a point just north of the intersection of Camino
Capistrano and Junipero Serra, Orange County, California(the "Discharge Site");
WHEREAS, the City is a"person" as defined in the CWA section 502(5), 33
U.S.C.§ 1362(5), and for purposes of this Settlement Agreement only, is the person
responsible for the alleged discharge;
WHEREAS, grouted rip-rap (the"Fill Material")has been placed into an
unnamed tributary to Trabuco Creek(hereafter "Waterway") as described in report No.
4838-02 by Dudek, dated October 10, 2006, at the Discharge Site, and such Fill Material is
hereinafter referred to as the "discharge" as defined in CWA section 502(12), 33 U.S.C.
§ 1362(12);
WHEREAS, this discharge was deposited by an excavator and/or other
equipment which is a point source as defined in the CWA section 502(14), 33 U.S.C.
§1362(14);
WHEREAS, the alleged discharge was performed by or for the City along and
within approximately 0.01 acre of the Waterway, which is a jurisdictional "water of the
United States" within the meaning of 33 C.F.R. §328.3(a), and"navigable waters" within
the meaning of CWA section 502(7), 33 U.S.C. § 1362(7),
WHEREAS, the City failed to obtain permit authorization from the Corps prior
to performing the alleged discharge;
WHEREAS, the Corps opened case SPL-2006-1709-FBV and issued a Notice of
Violation("Notice") to the City dated September 11, 2006;
WHEREAS, the Corps has initiated this Settlement Agreement under authority of
sections 301, 309 and 404 of the CWA,33 U.S.C. §§ 1311, 1219, and 1344, for use in
conjunction with Nationwide Permit 32;
ATTACHMENT 1
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WHEREAS, this Settlement Agreement seeks to require the City, at its own
expense and at the direction of the Corps, to mitigate the damages caused by its alleged
unlawful activities;
WHEREAS,the Parties agree settlement of this matter is in the public interest
and that this Settlement Agreement is the most appropriate means of resolving this
matter;
NOW, THEREFORE, without admission of the allegations which charge
violations of federal law, without adjudication of any issues-of fact or law, and upon
consent of the Parties hereto, it is hereby AGREED as follows:
I. APPLICABILITY AND SCOPE
1. The undersigned signatories certify they are authorized to execute this
Settlement Agreement and legally bind such parties.
2. The provisions of this Settlement Agreement shall apply to and be binding
upon City, its agents, employees,contractors, consultants, successors, or assigns. In any
action to enforce this Settlement Agreement against the City, the City shall not raise the
failure to take any actions necessary to comply with the provisions hereof by any
person, firm or corporation who acquires the Discharge Site, or who is an agent,
successor, assign, employee,contractor, or consultant of the City with responsibility for
the matters addressed in this Settlement Agreement as a defense or excuse for non-
performance.
3. The transfer of ownership or other interest in the Restoration Site (as
described in Section II below)shall not alter or relieve the City of its obligation to
comply with all of the terms of this Settlement Agreement. At least fifteen(15) days
prior to the transfer of ownership or other interest in the Restoration Site, the party
making such transfer shall provide written notice and a true copy of the Settlement
Agreement to its successors in interest and shall simultaneously notify the Corps at the
addresses specified in Paragraph 27a below that such notice has been given. As a
condition to any such transfer, the party making the transfer shall reserve all rights
necessary to comply with the terms of this Settlement Agreement.
4. This Settlement Agreement shall constitute a complete and final settlement of
all claims alleged in the Notice against the City.
5. It is the express purpose of the Parties in entering this Settlement Agreement
to further the objectives set forth in CWA section 101, 33 U.S.C. § 1251. All plans,
studies, construction, remedial maintenance,compensatory mitigation, and other
3 -
obligations in this Settlement Agreement or resulting from the activities required by this
Settlement Agreement shall have the objective of causing the City to achieve and
maintain full compliance with, and to further the purposes of, the CWA.
6. This Settlement Agreement is not and shall not be interpreted to be a permit
or modification of any existing permit issued pursuant to section 404 of the Clean Water
Act, 33 U.S.C. § 1344,nor does this Settlement Agreement relieve the City of any
obligation to apply for, obtain, and comply with the requirements of any new or existing
CWA section 404 permit, or with any other federal, state, or local law or regulation.
7. This Settlement Agreement in no way affects or relieves the City of its
responsibility to comply with any applicable federal, state, or local law, regulation or
permit.
8. Nothing in this Settlement Agreement shall constitute an admission of fact or
law by any party.
9. The Corps does not waive any rights or remedies available to it for any
violation or non-compliance by the City of federal or State laws, regulations, or permit
conditions except for its rights and remedies related to the allegations in the Notice.
10. The Parties agree it is the responsibility of the City to achieve and maintain
complete compliance with all applicable federal and state laws, regulations and permits.
Nothing herein shall be construed to limit the authority of the Corps to act under
sections 308 and 504 of the CWA, 33 U.S.C. §§ 1318 and 1364.
11. The Parties acknowledge that Nationwide Permit 32; found at 72 Fed. Reg.
11092 (March 12, 2007), authorizes any fill that was placed as of March 4, 2006 at the
Discharge Site, to remain in place, subject to the conditions provided in the Nationwide
Permit, the Corps' letter of verification,and this Settlement Agreement. The Parties
further acknowledge that Nationwide Permit 32 authorizes the discharge of dredged or
fill material insofar as such discharge is necessary to complete the work required to be
performed pursuant to this Settlement Agreement. Any such discharge of dredged or
fill material necessary for work required by this Settlement Agreement shall be subject to
the conditions of the Nationwide Permit, the Corps' letter of verification, and this
Settlement Agreement.
II. SPECIFIC PROVISIONS
RESTORATION
12. City shall perform restoration that consists of planting,maintaining and
4
monitoring 0.034 acre of jurisdictional wetland/riparian habitat (the "Restoration")
under the terms and conditions stated below. The purpose of the Restoration is to
compensate for the temporary and permanent loss of waters of the United States in the
area disturbed by the alleged unauthorized activities. The Restoration shall be located
within Reservoir Canyon(the"Restoration Site") as stated and shown in the Reservoir
Canyon Habitat Mitigation and Monitoring Plan for the 760 Zone SC-04 Reservoir
Project-Pursuant to the Conditions Concurrence with the Special 4(D) Rule Interim
Habitat Loss Mitigation Plan(IHLMP)for the Project(FW/CDFG-OR-1602.3,CDFG
1066-2004-0040-R5, ACOE No. SPL-2004-717-CLM, RWQCB File No. 04C-010" dated
June 1,2004 as amended February 21, 2007(the "Restoration Plan"),incorporated herein
by reference.
13. The Parties agree the City has satisfactorily completed the implementation
phase of the Restoration as specified in the Management Program: Sites and Habitat
Elements Section of the Restoration Plan. Accordingly,City shall submit annual
monitoring reports to the Corps beginning June 1, 2009, and thereafter shall submit
reports on the same day in 2010, 2011,2012, and 2013 to ensure the success criteria
specified in the Restoration Plan relating to the revegetation set forth in Paragraph 12 are
achieved. The annual monitoring reports shall include the information specified in the
Restoration Plan.The fifth year monitoring report shall include a written completion
report indicating the work specified in Paragraph 12 above has been completed and that
the final success criteria required as part of the Restoration Plan have been achieved.
This report shall include documentation of all success criteria and color photographs of
this restoration. If the Corps determines that the work set forth in Paragraph 12 above
has not been completed in accordance with the Settlement Agreement or the Restoration
Plan, the Corps will notify City in writing of the activities that must be undertaken by
City, pursuant to the Settlement Agreement to complete the work set forth in Paragraph
12 above and the Restoration Plan. The Corps will set forth in the notice a schedule for
performance of such activities consistent with this Settlement Agreement, or require City
to submit a schedule to the Corps for approval pursuant to Paragraphs 18 and 19. City
shall perform all activities described in this notice in accordance with the specifications
and schedules established pursuant to this Paragraph.
14. To ensure the Restoration remains undisturbed, City shall no later than
February 27, 2009,amend the "Declaration of Restrictive Covenants(APN 675-011-27,
City of San Juan Capistrano, County of Orange)" recorded August 28, 2007, in the
Official Records of Orange County as document 2007000532191. The Declaration of
Restrictive Covenants must be amended, at a minimum, to correct the mitigation plan
citation in Section 1(b)(1), to correct the certification in Section 1(c) that there are no
structures or improvements on the easement property when in fact some exist and
shown on Exhibit E, to address whether the City desires a reserved right to maintain,
repair and/or replace such structures and improvements, and to correct Section 22 to
address the fact that implementation of the mitigation plan by the City does not
- 5 -
terminate upon transfer of the easement property. Prior to execution and recordation of
the amended Declaration of Restrictive Covenants, the Corps must approve the form
and content of the document, in accordance with Paragraphs 18 and 19.
15. Upon completion of the terms and conditions of the Restoration in
accordance with the Restoration Plan,Nationwide Permit, and the Corps` letter of
verification, the City shall not mow, cut, clear, cultivate, dredge, excavate, farm,fill,
dewater, drain or otherwise disturb in any manner the Discharge Site and/or Restoration
Site except as approved by the Corps.
III. NOTICES AND OTHER SUBMISSIONS
16. If a required task is not completed within the timeframe specified, the City
shall provide the Corps written notice, at the addresses specified in Paragraph 27a of
this Settlement Agreement, of the date when the task was anticipated, and explain the
reasons for any delay in completion beyond the scheduled time for such completion
required by the Settlement Agreement.
17. In all notices, documents or reports submitted to the Corps pursuant to this
Settlement Agreement, the City shall, by signature of a City official with authority to
bind the City, certify such notices, documents and reports as follows:
I certify under penalty of law that this document and all attachments
were prepared under my direction or supervision in accordance with a
system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person
or persons who manage the system, or those persons directly responsible
for gathering such information, the information submitted is, to the best
of my knowledge and belief, true, accurate and complete. I am aware
that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing
violations.
18. After review of any plan, report or other item that is required to be
submitted to the Corps for approval pursuant to this Settlement Agreement, the
Corps shall:
a, approve,in whole or in part, the submission; or
b. disapprove, in whole or in part,the submission, specifying
the deficiencies and the reasons therefore and directing the City to modify the
submission. The Corps shall notify the City of its determination in writing.
6
19. Upon receipt of a written notice of disapproval pursuant to
Paragraph 20(b) above, the City shall, within forty-five (45) days or such longer
times as specified by the Corps in such notice, correct the deficiencies and
resubmit the plan, report or other item for approval. If upon resubmission, a
plan, report or other item is disapproved by the Corps, the City shall be deemed
to have failed to submit such plan, report or other item timely and adequately.
20. All plans,reports, and other items required to be submitted to the
Corps under this Settlement Agreement shall, upon approval by the Corps,be
enforceable under this Settlement Agreement.
IV. RETENTION OF RECORDS AND RIGHT OF ENTRY
21. Until six years after execution of this Settlement Agreement, the City shall
preserve and retain all records and documents now in its possession or control or which
come into its possession or control that relate in any manner to the performance of the
tasks in Section II above, regardless of any corporate retention policy to the contrary.
Until six years after execution of this Settlement Agreement,the City shall also instruct
his contractors and agents to preserve all documents, records, and information of
whatever kind, nature, or description relating to the performance of the tasks in Section
Ii.
22. At the conclusion of the document retention period, the City shall notify the
Corps at least ninety (90)days prior to the destruction of any such records or
documents, and, upon request by the Corps, the City shall deliver any such records or
documents to the Corps. In response to a request for records or documents, the City
may assert that certain documents, records and other information are privileged under
the attorney-client privilege or any other privilege recognized by federal law. If the City
asserts such a privilege,he shall provide the Corps with the following: (1) the title of the
document, record,or information; (2) the date of the document, record, or information;
(3) the name and title of the author of the document, record, or information; (4) the name
and title of each addressee and recipient; (5) a description of the subject of the document,
record, or information; and (6) the privilege asserted by the City. However,no
document, report or other that a provision of this Settlement Agreement requires to be
created shall be withheld on the grounds that it is privileged.
23. a. Until successful completion of this Restoration Order and confirmed in
writing by the Corps, the Corps and its authorized representatives shall have authority
to enter City's Restoration Site during reasonable hours for the purposes of:
(1) monitoring the progress of activities required by this Settlement
Agreement;
(2) verifying any data or information submitted to the Corps in
accordance with the terms of the Settlement Agreement;
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(3) obtaining photographs and videotape for the purposes of
determining compliance with this Settlement Agreement by the City or its contractors
and consultants;or
(4) assessing the City's compliance with this Settlement Agreement.
b. This provision of this Settlement Agreement is in addition to, and in
no way limits or otherwise affects,the statutory authorities of the Corps to conduct
inspections, to require monitoring and to obtain information from City as authorized by
law.
V. ENFORCEMENT AND COMPLIANCE
24. In the event the City does not comply with the terms of this Settlement
Agreement, and/or the Nationwide Permit, or any modifications thereto, the Corps has
the right to enforce the Settlement Agreement,the Nationwide Permit, and any
modifications thereto,pursuant to 33 U.S.C. § 1319(g) and 33 C.F.R. §326.6.
25. In the event of non-compliance with this Settlement Agreement and/or the
Nationwide Permit, and any modifications thereto, the Corps has the right to issue a
proposed order to assess Class 1 civil penalties pursuant to 33 U.S.C. § 1319(g) and 33
C.F.R. § 326.6.The City will have thirty (30) days from the date the proposed order is
issued to respond to each allegation set forth therein. The response should deny or
accept each proposed stipulation. If the City denies any stipulation, he shall provide the
factual basis for such denial and supporting evidence. The City waives its right to a
hearing on any proposed order. Following the close of the thirty (30) day public interest
review period, the District Engineer for the Corps will issue a Final Order. This decision
will be based on the administrative record,including any comments and/or evidence
submitted by the City, California Regional Water Quality Control Board, and members
of the public. All evidence will be considered, and the decision witt be based on a
preponderance of the evidence.
26. Persons or entities commenting on the public notice shall be allowed an
additional thirty days to request that the Final Order be set aside and a hearing be held
in accordance with section 309(8)(8) of the CWA. Such a hearing shall only be granted
if, in the opinion of the District Engineer, evidence to be presented is material and was
not considered in the preparation of the Final Order.
VI. ADDRESSES
27. All notices and communications required under this Settlement Agreement
shall be made to the parties through each of the following persons and addresses:
- a -
a. TO THE CORPS:
Regulatory Division
U.S. Army Corps of Engineers
ATTN: SPL-2006-1709-FBV
P.O.Box 532711
Los Angeles, CA 90053-2325
District Counsel
U.S.Army Corps of Engineers
915 Wilshire Blvd., Suite 1535
Los Angeles, CA 90017
b. TO THE CITY:
Utilities Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
VII. MODIFICATION
28. Any modification of this Settlement Agreement shall be in writing, and shall
not take effect unless signed by both the Corps and the City.
VIII. SIGNATORIES
29. Each undersigned representative of a party to this Settlement Agreement
certifies that he or she is fully authorized to enter into the terms and conditions of this
Settlement Agreement and to execute and legally bind such party to this document.
IX. EFFECTIVE DATE
30. This Settlement Agreement will become effective for all purposes as of the
date last signed.
[REMAINDER LEFT INTENTIONALLY BLANK]
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IN WITNESS THEREOF, the U.S.Army Corps of Engineers, acting by and
through its authorized officer, Chief of the Regulatory Division, and the City, acting by
and through its authorized officer,Mayor,have executed this Settlement Agreement on
the dates set forth below. The signatures may be executed using counterpart original
signatures.
Dated: By:
David J. Castanon
Chief, Regulatory Division
U.S. Army Corps of Engineers
Los Angeles District
Dated: By:
Mark Nielsen
Mayor
City of San Juan Capistrano
Attest:
Margaret R. Monahan,
City Clerk,
City of Sari Juan Capistrano
Approved as to Form:
14 An J A i)l-'Yl 0
City Attorney,
City of San Juan Capistrano
RECORDING AT REQUEST OF AND
RETURN TO:
City of San Juan Capistrano
City Clerk's Office
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
RECORDING FEES EXEMPT DUE TO
GOVERNMENT CODE 27383 & 6103
CITY OF SAN JUAN CAPISTRANO
AMENDED AND RESTATED DECLARATION OF RESTRICTIVE COVENANTS
(APN 675-011-27, CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE)
This AMENDED AND RESTATED DECLARATION OF RESTRICTIVE
COVENANTS ("Restrictive Covenant") is made this day of 2009 by the
City of San Juan Capistrano, a Municipal Corporation lawfully existing under the laws of the
State of California (hereinafter "Declarant"). This Restrictive Covenant is an amendment and
restatement of, and supersedes and replaces in its entirety for all purposes, that certain
Declaration of Restrictive Covenants entered into August 7, 2007, and recorded August 28,
2007, as Instrument No. 200700532191 in the official records of Orange County, California.
RECITALS
A. Declarant is the developer of that certain real property in the City of San Juan
Capistrano, County of Orange, State of California, commonly referred to as the Terminal
Reservoir No. 3 Project—Off-site Mitigation at Reservoir Canyon (the "Project").
B. Declarant is the sole owner in fee simple of those portions of the Project legally
described at Exhibit "A" and depicted at Exhibit "B," attached hereto and incorporated by this
reference (the"Restricted Property"), which consists of approximately 0.54 acres.
C. The Restricted Property provides, among other things, compensatory mitigation
for certain impacts of the Project by Declarant pursuant to requirements of the United States
Army Corps of Engineers' ("ACOE") Section 404 Permit No. 200401374-CJF and amendments
thereto ("Section 404 Permit") as well as compensatory mitigation described in that certain
Settlement Agreement dated [enter date] between the ACOE and Declarant
concerning ACOE case no. 2006-1709-FBV.
D. This Restrictive Covenant is designed to satisfy and is granted in satisfaction of
Special Condition 4.2.4 of the Section 404 Permit and Paragraph . 14 of the Settlement
Agreement.
E. Consistent with the terms and conditions of this Restrictive Covenant, the
Restricted Property currently is and will remain in a Natural Condition as defined herein and is
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intended to be preserved in its natural, scenic, open condition to maintain its ecological,
historical, visual and educational values (collectively, "Conservation Values"). The
Conservation Values are of importance to the people of the County of Orange and the people of
the State of California.
F. The ACOE is the federal agency charged with the primary responsibility for
regulating activities in waters of the United States, including wetlands, with regulatory authority
over discharges of dredged and fill material into such waters pursuant to Section 404 of the
Clean Water Act, and is a third party beneficiary of this Restrictive Covenant.
COVENANTS,TERMS, CONDITIONS AND RESTRICTIONS
NOW THEREFORE, in consideration of the above recitals and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the laws of the United States
and California, including Civil Code Section 815, et seq., Declarant hereby declares the
Restricted Property shall be held, transferred, conveyed, leased, occupied or otherwise disposed
of and used subject to the following restrictive covenants (and incorporating the above recitals
herein by this reference), which shall run with the land and be binding on Declarant's heirs,
successors in interest, administrators, assigns, lessees, or other occupiers and users of the
Restricted Property or any portion of it.
1. Purpose.
(a) The purpose of this Restrictive Covenant is to ensure the Restricted Property will
be retained in perpetuity in a Natural Condition, defined below, and to prevent any use of the
Restricted Property that will impair or interfere with the Conservation Values of the Restricted
Property (the "Purpose"). Declarant intends that this Restrictive Covenant will confine the use
of the Restricted Property to such activities, including without limitation, those involving the
preservation and enhancement of native species and their habitat in a manner consistent with the
habitat conservation purposes of this Restrictive Covenant.
(b) The term "Natural Condition," as referenced in the preceding paragraph and
other portions of this Restrictive Covenant, shall mean the condition of the Restricted Property as
it exists at the time this Restrictive Covenant is executed, as well as future enhancements or
changes to the Restricted Property that occur directly as a result of the following activities:
(1) Compensatory mitigation measures, including implementation,
maintenance and monitoring activities (collectively, "Compensatory Mitigation"), required by
the Section 404 Permit and Settlement Agreement, and as further described in the "Reservoir
Canyon Habitat Mitigation and Monitoring Plan for the 760 Zone SC-04 Reservoir Project —
Pursuant to the Conditions Concurrence with the Special 4(D) Rule Interim Habitat Loss
Mitigation Plan (IHLMP) for the Project (FW/CDFG-OR-1602.3, CDFG 1066-2004-0040-R5,
ACOE No. SPL-2004-717-CLM, RWQCB File No. 04C-010" dated June 1, 2004 as amended
February 21, 2007 (the"Mitigation Plan"), the cover page of which is attached as Exhibit "C";
(2) In-perpetuity maintenance ("Long-Term Maintenance"), that occurs on
the Restricted Property as described in the Management Plan and Section 13 herein; or
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10:02 AM
(3) Activities described in Section 3 and Section 5 herein.
(c) Declarant certifies to ACOS that, to Declarant's actual knowledge, the only
structures or other man-made improvements existing on the Restricted Property at the time of this
grant consist of an abandoned water pipeline and a small amount of rock rip-rap on the northeast
end of the Restricted Property. Declarant further certifies to ACOE that, to Declarant's actual
knowledge, there are no previously granted easements existing on the Restricted Property that
interfere or conflict with the Purpose of this Restrictive Covenant as evidenced by the Title
Report attached at Exhibit "D". The current Natural Condition is evidenced in part by the
depiction of the Restricted Property attached on Exhibit "E," showing all relevant and plottable
property lines, easements, dedications, improvements, boundaries and major, distinct natural
features such as waters of the United States. Declarant has delivered further evidence of the
Natural Condition to ACOE consisting of(1) a color aerial photograph of the Restricted Property
at an appropriate scale taken as close in time as possible to the date this Restrictive Covenant is
executed; (2) an overlay of the Restricted Property boundaries on that aerial photograph; and (3)
on-site color photographs showing all natural features of the Restricted Property.
(d) If a controversy arises with respect to the Natural Condition of the Restricted
Property, Declarant or ACOE shall not be foreclosed from utilizing any and all other relevant
documents, surveys, photographs or other evidence or information to assist in the resolution of
the controversy.
(e) The term "Biological Monitor" shall mean an independent third-party consultant
or an employee of the City possessing familiarity with biological resources in the Orange County
area and at least a B.A. or B.S. level of education in the field of biology or a related field.
Qualifications of the Biological Monitor must be submitted to ACOE for review and approval.
2. ACOE's rights. To accomplish the Purpose of this Restrictive Covenant, Declarant
hereby grants and conveys the following rights to ACOE (but without obligation of the ACOE):
(a) A non-exclusive easement on and over the Restricted Property to preserve and
protect the Conservation Values of the Restricted Property; and
(b) A non-exclusive easement on and over the Restricted Property to enter upon the
Restricted Property to monitor Declarant's compliance with and to otherwise enforce the terms of
this Restrictive Covenant; and
(c) A non-exclusive easement on and over the Restricted Property to prevent any
activity on or use of the Restricted Property that is inconsistent with the Purpose of this
Restrictive Covenant and to require the restoration of such areas or features of the Restricted
Property that may be damaged by any act, failure to act, or any use that is inconsistent with the
Purpose of this Restrictive Covenant; and
(d) Except as otherwise set forth in this Restrictive Covenant, all present and future
development rights allocated, implied,reserved or inherent in the Restricted 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; and
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(e) The right to enforce by any means, including, without limitation, injunctive relief,
the terms and conditions of this Restrictive Covenant.
3. Declarant's Duties. Declarant, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass by
persons whose activities would be inconsistent with the Conservation Values and would violate
the permitted uses of the Restricted Property set forth in this Restrictive Covenant; and
(b) Post and maintain signage in or adjacent to the boundary areas of the Restricted
Property as described in Section 5(d); and
(c) Cooperate with ACOE in the protection of the Conservation Values; and
(d) Repair and restore damage to the Restrictive Property directly or indirectly caused
by Declarant, Declarant's guests, representatives or agents and third parties; provided, however,
Declarant, its successors or assigns shall not engage in any repair or restoration work in the
Restricted Property without first consulting with ACOE pursuant to Section 13; and
(e) Undertake construction, maintenance and monitoring of mitigated.areas pursuant
to the Mitigation Plan until receipt of final approval of the success of the mitigation from ALOE;
and
(f) Obtain any applicable governmental permits and approvals for any activity or use
permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance
with all applicable federal, state, local and administrative agency statutes, ordinances, rules,
regulations, orders or requirements;
(g) Perform in-perpetuity Long-Term Maintenance set forth in Section 13 below; and
(h) Perform an annual compliance inspection of the Restricted Property, prepare an
inspection report and shall make reports available to ACOE upon request.
4. Prohibited Uses. Any activity on or use of the Restricted Property inconsistent with the
Purpose of this Restrictive Covenant and not reserved as set forth in Section 5 hereof is
prohibited. Without limiting the generality of the foregoing, the following uses by Declarant,
and its respective guests, agents, assigns, employees, representatives, successors and third
parties, are expressly prohibited, except as otherwise provided herein or unless specifically
provided for in the Section 404 Permit, Settlement Agreement, Mitigation Plan, and any
easements and reservations of rights recorded in the chain of title to the Restricted Property at the
time of this conveyance (as set forth in Exhibit D hereto):
(a) Supplemental watering except for habitat enhancement activities described in
Section 5(b);
(b) Use of herbicides, pesticides, rodenticides, biocides, fertilizers, or other
agricultural chemicals or weed abatement activities, except weed abatement activities necessary
to control or remove invasive, exotic plant species;
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(c) Incompatible fire protection activities, except the fire prevention activities set
forth in Section 5(f);
(d) Use of off-road vehicles and use of any other motorized vehicles except on
existing roadways and as necessary to restore native plant communities consistent with Section 5.
(e) Grazing or other agricultural activity of any kind;
(f) Recreational activities including, but not limited to, horseback riding, biking,
hunting or fishing;
(g) Residential, commercial,retail, institutional, or industrial uses;
(h) Any legal or de facto division, subdivision or portioning of the Restricted
Property;
(i) Construction, reconstruction or placement of any building or other improvement,
billboard, or signs except signs permitted in Section 3(b) and Section 5(d);
0) Depositing, dumping or accumulating soil, trash, ashes, refuse, waste, bio-solids
or any other material;
(k) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(1) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or
exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or
below the surface of the Restricted Property;
(m) Altering, the general topography of the Restricted Property, including but not
limited to building of roads, trails, and flood control work;
(n) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as
necessary for (1) emergency fire protection as required by fire safety officials as set forth in
Section 5(f), (2) controlling invasive, exotic plants which threaten the integrity of the habitat, (3)
preventing or treating disease, (4) completing the Mitigation Plan, or (5) activities described in
Section 3, Section 5 and Section 13;
(o) Manipulating, impounding or altering any natural watercourse, body of water or
water circulation on the Restricted Property, and activities or uses detrimental to water quality,
including but not limited to degradation or pollution of any surface or sub-surface waters; and
(p) Creating fuel modification zones (defined as a strip of mowed land or the planting
of vegetation possessing low combustibility for purposes of fire suppression), or other activities
that could constitute fuel modification zones.
5. Reserved Rigbts. Declarant reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Restricted Property,
including the right to engage in or to permit or invite others to engage in all uses of the
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Restricted Property that are not expressly prohibited or limited by, and are consistent with, the
Purpose of this Restrictive Covenant,including the following uses:
(a) Access. Reasonable access through the Restricted Property to adjacent-land over
existing roads, or to perform obligations or other activities permitted by this Restrictive Covenant
or that are required under the Section 404 Permit. In addition, police and other public safety
organizations and their personnel may enter the Restricted Property to address any legitimate
public health or safety matter.
(b) Habitat Enhancement Activities. Enhancement of native plant communities,
including the right to plant trees and shrubs of the same type as currently existing on the
Restricted Property, so long as such activities do not harm the habitat types identified in the
Section 404 Permit. For purposes of preventing erosion and reestablishing native vegetation, the
Declarant shall have the right to revegetate areas that may be damaged by the permitted activities
under this Section 5, naturally occurring events or by the_acts of persons wrongfully damaging
the Natural Condition of the Restricted Property. Prior to any habitat enhancement activities,
Declarant shall have its Biological Monitor submit detailed plans to ACOE for review and
approval. Habitat enhancement activities shall not be in direct or potential conflict with the
preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive
Covenant and shall be performed in compliance with all applicable laws, regulations, and
permitting requirements.
(c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of
vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of
parasitic vegetation (as it relates to the health of the host plant) and removal of non-native or
exotic plant or animal species. Vegetation, debris, and exotic plant species removal shall not be
in direct or potential conflict with the preservation of the Natural Condition of the Restricted
Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with
all applicable laws, regulations, and-permitting requirements.
(d) Erection and Maintenance of Informative Signage. Erection and maintenance of
signage and other notification features saying "Natural Area Open Space," "Protected Natural
Area," or similar descriptions that inform persons of the nature and restrictions on the Restricted
Property. Prior to erection of such signage, the Declarant shall submit detailed plans showing the
location and language of such signs to ACOE for review and approval. The erection and
maintenance of informative signage shall not be in direct or potential conflict with the
preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive
Covenant and shall be performed in compliance with all applicable laws, regulations, and
permitting requirements.
(e) No Interference with Development of Adjoining ProppA . Notwithstanding
anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor
shall be applied to in any way limit Declarant or any of Declarant's successors and assigns from
(1) constructing, placing, installing, and/or erecting any improvements upon the portions of the
Project not constituting the Restricted Property, (2) installing and/or maintaining the subsurface
infrastructure improvements, utility lines, landscaping (including irrigation and runoff),
landscape mitigation, and/or similar non-structural improvements within the Restricted Property,
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and/or(3) developing adjoining property for any purposes, except as limited by any local, state or
federal permit requirements for such development and provided that for all of the above clauses
(1), (2), and (3) neither such activity nor any effect resulting from such activity amounts to a use
of the Restricted Property, or has an impact upon the Restricted Property, that is prohibited by
Section 4 above.
(fl Fire Protection. The right, in an emergency situation only, to maintain firebreaks
(defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove
brush, otherwise perform preventative measures required by the fire department to protect
structures and other improvements from encroaching fire. All other brush management activities,
activities prohibited by Section 5(p), or other fire prevention measures suggested by the fire
department, shall be limited to areas outside the Restricted Property.
(g) Maintenance Rock Rip Rap. The right to maintain and repair, in-kind, the rock rip
rap located on the Restricted Property in areas shown on Exhibit E, to ensure the structural
integrity of such structure. Declarant shall submit annual reports to the ACOE by June 1st of
each year describing and photodocumenting any and all maintenance performed pursuant this
reserved right that has been performed on the Restricted Property. In the absence of any such
maintenance during a particular year, Declarant shall not be required to submit a report for that
year.
(h) Mitigation Plan. Notwithstanding anything herein to the contrary, Declarant may
take any action required by the Mitigation Plan. Such actions may include, but are not limited to
the following: (1) Declarant shall have the right to maintain, repair and or replace from time to
time any or all of the vegetation planted as part of the Mitigation Plan and (2) Declarant may take
actions consistent with the Mitigation Plan.
6. Enforcement.
(a) Right to Enforce. Declarant, its successors and assigns, grant to ACOE, U.S.
Department of Justice, and the State Attorney General a discretionary right to enforce these
restrictive covenants in a judicial or administrative action against any person(s) or other entity
(ies) violating or attempting to violate these restrictive covenants; provided, however, that no
violation of these restrictive covenants shall result in a forfeiture or reversion of title. The U.S.
Department of Justice and the State Attorney General shall have the same rights, remedies and
limitations as ACOE under this Section 6. The rights under this Section are in addition to, and do
not limit rights conferred in Section 2 above, the rights of enforcement against Deciarant, its
successor or assigns under the Section 404 Permit, or any rights of the various documents created
thereunder or referred to therein.
(b) Notice.
(1) If ACOE determines Declarant is in violation of the terms of this
Restrictive Covenant or that a violation is threatened, ACOE may demand the cure of such
violation. In such a case, ACOE shall issue a written notice to Declarant (hereinafter "notice of
violation") informing Declarant of the violation and demanding cure of such violation.
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(2) Declarant shall cure the noticed violation within fifteen (15) days of
receipt of said written notice from ACOE. If said cure reasonably requires more than fifteen (I5)
days, Declarant shall, within the fifteen(15) day period submit to ACOE for review and approval
a plan and time schedule to diligently complete a cure. Declarant shall complete such cure in
accordance with the approved plan. If Declarant disputes the notice of violation, it shall issue a
written notice of such dispute (hereinafter "notice of dispute") to the ACOE within fifteen (15)
days of receipt of written notice of violation.
(3) If Declarant fails to cure the noticed violation(s) within the time period(s)
described in Section 6(b)(2) above, or Section 6(c) below, ACOE may bring an action at law or
in equity in a court of competent jurisdiction to enforce compliance by Declarant with the terms
of this Restrictive Covenant. In such action, the ALOE may (i) recover any damages to which
they may be entitled for violation by Declarant of the terms of this Restrictive Covenant, (ii)
enjoin the violation, ex parte if necessary, by temporary or permanent injunction without the
necessity of proving either actual damages or the inadequacy of otherwise available legal
remedies, or (iii)pursue other equitable relief, including, but not limited to, the restoration of the
Restricted Property to the condition in which it existed prior to any such violation or injury.
ACOE may apply any damages recovered to the cost of undertaking any corrective action on the
Restricted Property.
(4) if Declarant provides ACOE with a notice of dispute, as provided herein,
ACOE shall meet and confer with Declarant at a mutually agreeable place and time, not to
exceed thirty (30) days from the date that ACOE receives the notice of dispute. ALOE shall
consider all relevant information concerning the disputed violation provided by Declarant and
shall determine whether a violation has in fact occurred and, if so, whether the notice of violation
and demand for cure issued by ACOE is appropriate in light of the violation.
(5) If, after reviewing Declarant's notice of dispute, conferring with
Declarant, and considering all relevant information related to the violation, ACOE determines
that a violation has occurred; ACOE shall give Declarant notice of such determination in writing.
Upon receipt of such determination, Declarant shall have fifteen (15) days to cure the violation.
If said cure reasonably requires more than fifteen (15) days, Declarant shall, within the fifteen
(15) day period submit to ACOE for review and approval a plan and time schedule to diligently
complete a cure. Declarant shall complete such cure in accordance with the approved plan.
(c) Immediate Action. if ALOE, in its reasonable discretion, determines that
circumstances require immediate action to prevent or mitigate significant damage to the
Conservation Values of the Restricted Property, ACOE may immediately pursue all available
remedies, including injunctive relief, available pursuant to both this Restrictive Covenant and
state and federal law after giving Declarant at least twenty four(24) hours' written notice before
pursuing such remedies. So long as such twenty four (24) hours' notice is given, ALOE may
immediately pursue all available remedies without waiting for the expiration of the time periods
provided for cure or notice of dispute as described in Section 6(b)(2). The written notice
pursuant to this paragraph may be transmitted to Declarant by facsimile. The rights of ACOE
under this paragraph apply equally to actual or threatened violations of the terms of this
Restrictive Covenant. Declarant agrees that the remedies at law for ACOE for any violation of
the terms of this Restrictive Covenant are,inadequate and that ACOE shall be entitled to the
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injunctive relief described in this section, both prohibitive and mandatory, in addition to such
other relief to which ACOE may be entitled, including specific performance of the terms of this
Restrictive Covenant, without the necessity of proving either actual damages or the inadequacy
of otherwise available legal remedies. The remedies described in this Section 6(c) shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
(d) Costs of Enforcement. Any costs incurred by ACOE in enforcing the terms of
this Restrictive Covenant against Declarant including, but not limited to, costs of suit and
attorneys' fees, and any costs of restoration necessitated by Declarant's violation or negligence
under the terms of this Restrictive Covenant shall be borne by Declarant.
(e) Enforcement Discretion. Enforcement of the terms of this Restrictive Covenant
shall be at the discretion of ACOE. Any forbearance by'ACOE to exercise rights under this
Restrictive Covenant in the event of any breach of any term of this Restrictive Covenant by
Declarant shall not be deemed or construed to be a waiver by ACOE of such term or of any
subsequent breach of the same or any other term of this Restrictive Covenant or of any of the
rights of ACOE under this Restrictive Covenant. No delay or omission by ALOE in the exercise
of any right or remedy upon any breach by Declarant shall impair such right or remedy or be
construed as a waiver.
(f) Acts Beyond Declarant's Control. Nothing contained in this Restrictive Covenant
shall be construed to entitle ACOE to bring any action against Declarant for any injury to or
change in the Restricted Property resulting from:
(1) Any natural cause beyond Declarant's control, including without
limitation, fire not caused by Declarant, flood, storm, and earth movement; or
(2) Any prudent action taken by Declarant under emergency conditions to
prevent, abate, or mitigate significant injury to persons and/or the Restricted Property resulting
from such causes.
Notwithstanding the foregoing, even actions undertaken during emergency conditions
must receive prior authorization from the Department of Army (through expedited procedures, if
appropriate) if the action involves a discharge of dredged or fill material into jurisdictional
waters of the United States and before any ground-disturbing activities occur on the Restricted
Property.
7. Access. This Restrictive Covenant does not convey a general right of access to the public
or a general right of access to the Restricted Property. In accordance with Section 3(b), Declarant
shall install signage at all likely points of entry informing persons of the nature and restrictions
on the Restricted Property. This Restrictive Covenant will allow for access to the Restricted
Property by ACOE and third-party easement holders of record at the time of this conveyance at
locations designated in easements and reservations of rights recorded in the chain of title to the
Restricted Property at the time of this conveyance.
8. Costs and Liabilities.
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(a) Declarant, or its successor or assign retains all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of
the Restricted Property. Declarant agrees ACOE shall not have any duty or responsibility for the
operation, upkeep, or maintenance of the Restricted Property, the monitoring of hazardous
conditions thereon, or the protection of Declarant, the public or any third parties from risks
relating to conditions on the Restricted Property. Declarant, its successor or assign remains
solely responsible for obtaining any applicable governmental permits and approvals for any
activity or use permitted by this Restrictive Covenant, and any activity or use shall be undertaken
in accordance with all applicable federal, state, local and administrative agency statutes,
ordinances,rules, regulations, orders and requirements.
(b) Declarant shall hold harmless, protect and indemnify ACOE and its respective
directors, officers, employees, agents, contractors, and representatives and the heirs, personal
representatives, successors and assigns of each of them (each an "ALOE Indemnified Party"
and collectively, "ALOE 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"), to the extent arising from or in any way connected with:
(i) 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 Restricted
Property, regardless of cause and (ii) the existence or administration of this Restrictive Covenant
by Declarant. Provided, however, that the indemnification in this Section 8(b) shall be
inapplicable to a ACOE Indemnified Party to the extent of any Claim due solely to the
negligence of that ACOE Indemnified Party or any of its employees. If any action or proceeding
is brought against any of the ACOE Indemnified Parties by reason of any Claim to which the
indemnification in this Section 8(b) applies, then at the election of and upon written notice from
the ACOE Indemnified Party, Declarant shall defend such action or proceeding by counsel
reasonably acceptable to the applicable ACOE Indemnified Party or reimburse the ACOE
Indemnified Party for al.] charges incurred for services of the U.S. Department of Justice in
defending the action or proceeding.
9. Taxes, No Liens. Declarant, its successor or assign shall pay before delinquency all
taxes, assessments, fees, and charges of whatever description levied on or assessed against the
Restricted Property by competent authority, including any taxes imposed upon, or incurred as a
result of, this Restrictive Covenant, and agrees to furnish ACOE with satisfactory evidence of
payment upon request. Declarant shall keep the Restricted Property free from any liens,
including those arising out of any obligations incurred by Declarant or any labor or materials
furnished or alleged to have been furnished to or for Declarant at or for use on the Restricted
Property.
10, Condemnation. The Purpose of the Restricted Property is.presumed to be the best and
most necessary public use as defined at California Civil Procedure Code Section 1240.680
notwithstanding California Civil Procedure Code Sections 1240.690 and 1240.700.
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11. Assignment and Subsequent Transfers.
(a) Declarant agrees to incorporate the terms of this Restrictive Covenant in any deed
or other legal instrument by which Declarant divests itself of any interest in all or a portion of the
Restricted Property. Declarant, its successor or assign agrees to (i) incorporate by reference to
the title of and the recording information for this Restrictive Covenant in any deed or other legal
instrument by which each divests itself of auy interest in all or a portion of the Restricted
Property, including, without limitation, a leasehold interest and (ii) give actual notice to any such
transferee or lessee of the existence of this Restrictive Covenant. Declarant, its successor or
assign agrees to give written notice to ACOE of the intent to transfer any interest at least sixty
(60) days prior to the date of such transfer. Any subsequent transferee shall be deemed to have
assumed the obligations of this Restrictive Covenant and to have accepted the restrictions
contained herein. The failure of Declarant, its successor or assign to perform any act provided in
this Section shall not impair the validity of this Restrictive Covenant or limit its enforceability in
any way.
(b) From and after the date of any transfer of all or any portion of the Restricted
Property by Declarant and each transfer thereafter, (i) the transferee shall be deemed to have
assumed all of the obligations of Declarant as set forth in this Restrictive Covenant except as
provided in Section 22, (ii) the transferee shall be deemed to have accepted the restrictions
contained herein, (iii) the transferor, as applicable, shall have no further obligations hereunder
except for the obligations set forth in Section 22, and (iv) all references to Declarant in this
Restrictive Covenant shall thereafter be deemed to refer to such transferee.
12. Notices. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and be served personally or
sent by first class mail, postage prepaid, addressed as follows:
To Declarant: Public Works Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To ACOE: District Counsel
U.S. Army Corps of Engineers
915 Wilshire Blvd, Room 1535
Los Angeles, CA 90017-3401
or to such other address as either party shall designate by written notice to the other. Notice shall
be deemed effective upon delivery in the case of personal delivery or, in the case of delivery by
first class mail, five(5) days after deposit into the United States mail.
13. Long-Term Maintenance. In addition to the other terms contained herein, Declarant, its
successor or assign shall be responsible for the maintenance/repair of the Restricted Property in
perpeutity. Such long-term maintenance shall consist of the following activities: (a) annual
removal, by hand, of trash or man-made debris, (b) annual maintenance of signage and other
notification features or similar descriptions that inform persons of the nature and restrictions on
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the Restricted Property install pursuant to Section 3(b) or Section 5(d), and(c) annual restoration
of the Restricted Property damaged by any activities prohibited by Section 4 herein. Declarant,
its successors and assigns shall prepare a monitoring and maintenance report documenting
activities performed under subsections (a) and (b) above by June I` of each year, and shall make
reports available to ACOE upon request. When activities are performed pursuant to subsection
(c) above, Declarant shall have a Biological Monitor prepare a Restoration Plan and to
oversee/monitor such restoration activities. Declarant shall have its Biological Monitor submit a
draft Restoration Pian to ACOS for review and approval prior to its implementation, Upon
completion of restoration as specified in the ALOE-approved Restoration Plan, Declarant shall
have its Biological Monitor prepare a detailed monitoring report, and Declarant shall make the
report available to ALOE within thirty (30) days of completion of restoration activities.
Declarant, its successors or assigns and the Biological Monitor shall sign the monitoring report,
and the report shall document the Biological Monitor's name and affiliation, dates Biological
Monitor was present on-site, activities observed and their location, Biological Monitor's
observations regarding the adequacy of restoration performance by the Declarant, its successors
or assigns,or its contractor in accordance with the ACOS-approved Restoration Plan, corrections
recommended and implemented.
14. Amendment. Declarant may amend this Restrictive Covenant only after written
concurrence by ACOE. Any such amendment shall be consistent with the Purpose of this
Restrictive Covenant and shall not affect its perpetual duration. Declarant shall record any
amendments to this Restrictive Covenant approved by ACOE in the official records of Orange
County, California, and shall provide a copy of the recorded document to ACOE.
15. Recordation. Declarant, its successor or assign shall promptly record this instrument in
the official records of Orange County, California, and provide a copy of the recorded document
to ALOE.
16. Estoppel Certificate. Upon request, ACOE shall within fifteen (15) days execute and
deliver to Declarant, its successor or assign any document, including an estoppel certificate,
which certifies compliance with any obligation of Declarant, its successor or assign contained in
this Restrictive Covenant or otherwise evidences the status of this Restrictive Covenant as may
be requested by Declarant, its successor or assign.
17. Controlling Law. The laws of the United States and the State of California, disregarding
any conflict of law principle of such state, shall govern the interpretation and performance of this
Restrictive Covenant.
18. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Restrictive Covenant shall be liberally construed in favor of the deed to effect the purpose of
this Restrictive Covenant and the policy and purpose 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 Restrictive Covenant that would render the provision valid shall be favored over
any interpretation that would render it invalid.
19. Severability. If a court of competent jurisdiction voids or invalidates on its face any
provision of this Restrictive Covenant, such action shall not affect the remainder of this
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Restrictive Covenant. If a court of competent jurisdiction voids or invalidates the application of
any provision of this Restrictive Covenant to a person or circumstance, such action shall not
affect the application of the provision to other persons or circumstances.
20. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Declarant's title in any respect.
21. Successors and Assigns. The covenants, terms, conditions, and restrictions of this
Restrictive Covenant 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 Restricted Property.
22. Termination of Rights and Obligations. A party's rights and obligations under this
Restrictive Covenant terminate upon transfer of the party's interest in the Restrictive Covenant
or Restricted Property, except that liability for acts or omissions occurring prior to transfer and
the obligation to implement the Mitigation Plan shall survive transfer.
23. 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.
24. No Hazardous Materials Liability.
(a) Declarant represents and warrants that it has no knowledge of any release or
threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the
Restricted Property.
(b) Despite any contrary provision of this Restrictive Covenant, the parties do not
intend this Restrictive Covenant to be, and this Restrictive Covenant shall not be, construed such
that it creates in or gives ACOE any of the following:
(1) The obligations or liabilities of an "owner" or "operator," as those terms
are defined and used in Environmental Laws (defined below), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.;hereinafter, "CERCLA"); or
(2) The obligations or liabilities of a person described in 42 U.S.C. Section
9607(a)(3) or(4); or
(3) The obligations of a responsible person under any applicable
Environmental Laws; or
(4) The right to investigate and remediate any Hazardous Materials associated
with the Restricted Property; or
(5) Any control over Declarant's ability to investigate, remove, remediate or
otherwise clean up any Hazardous Materials associated with the Restricted Property.
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(c) 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 (42 U.S.C. Section
6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the
Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the
Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and
in the regulations adopted and publications promulgated pursuant to them, or any other
applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or
enacted after the date of this Restrictive Covenant.
(d) The term "Environmental Laws" includes, without limitation, any federal, state,
local or administrative agency statute, ordinance, rule, regulation, order or requirement relating
to pollution, protection of human health or safety, the environment or Hazardous Materials.
Declarant represents, warrants and covenants to ACOE that activities upon and use of the
Restricted Property by Declarant, its agents, employees, invitees and contractors will comply
with all Environmental Laws.
25, Additional Interests. Declarant shall not grant any additional easements, rights of way or
other interests in the surface or subsurface of the Restricted Property (other than a security
interest that is subordinate to this Restrictive Covenant), or grant or otherwise abandon or
relinquish any water rights relating to the Restricted Property, without first obtaining the written
consent of ACOE. ACOE may withhold such consent if it determines that the proposed interest
or transfer is inconsistent with the Purpose of this Restrictive Covenant or will impair or interfere
with the Conservation Values of the Restricted Property. This Section shall not prohibit transfer
of a fee or leasehold interest in the Restricted Property that is subject to this Restrictive Covenant
and complies with Section 11. Declarant, its successors and assigns shall record any additional
easements or other interests in the Restricted Property approved by the ACOE in the official
records of Orange County, California and provide a copy of the recorded document to the
ACOE.
26. ACOE Benefited Party. Except for Section 21, the terms of this Restrictive Covenant are
for the benefit of the ACOE only and are not for the benefit of any other party.
27. Extinguishment. If circumstances arise in the future that render the Purpose of the
Restrictive Covenant impossible to accomplish, the Restrictive Covenant can only be terminated
or extinguished, in whole or in part,by judicial proceedings in a court of competent jurisdiction.
28. Warranty. Declarant represents and warrants that there are no outstanding mortgages,
liens, encumbrances or other interests in the Restricted Property (including, without limitation,
mineral interests) which have not been expressly subordinated to this Restrictive Covenant, and
that the Restricted Property is not subject to any other Conservation Easement.
[REMAINDER LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF Declarant has executed this Restrictive Covenant the day and
year first above written.
Cityof San Juan Capistrano
By:
Mark Nielsen, Mayor
Attest:
By:
Margaret R.Monahan
City Clerk
Approved as to Form:
City Attorney
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EXHIBIT A
Legal Description.
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EYJIMIT"A"
LEGAL DESCRIPTION
CITY OF SAN JUAN CAPISTRANO
OPEN SPACE EASEMENT
THOSE CERTAIN PARCELS OF LAND SITUATED IN THE CITY OF SAN JUAN
CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA,BEING A
PORTION OF LOT 7 AS SHOWN ON A MAP FILED IN BOOK 4 PAGE 15 OF
RECORDS OF SURVEY IN THE OFFICE OF THE ORANGE COUNTY RECORDER
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 1• -
COMMENCING AT THE CENTERLINE INTERSECTION OF CALLE DELGADO
AND CALLE MIRAMAR AS SHOWN ON TRACT NO. 8087 FILED IN BOOK 331
PAGES 27 THROUGH 32,INCLUSIVE,OF MISCELLANEOUS MAPS IN THE
OFFICE OF SAID ORANGE COUNTY RECORDER;THENCE.EASTERLY ALONG
THE CENTERLINE OF CALLE DELGADO NORTH 890 10'11"EAST 158.50 FEET
TO THE EASTERLY BOUNDARY OF TRACT NO. 8087; THENCE NORTH
75013'52 EAST 64.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE
NORTH 100 12'48"EAST 34.07 FEET; THENCE NORTH 55011'05"EAST 17.86
FEET; THENCE NORTH 73°03'23"34.98 FEET; THENCE NORTH.75002'02" EAST
118.42 FEET; THENCE NORTH 74°50'51"EAST 146.52 FEET;THENCE NORTH
70°40'45"EAST 107.76 FEET; THENCE NORTH 65001'46" EAST 50.84 FEET;
THENCE NORTH 72043'12"EAST 32.83 FEET;THENCE NORTH 71°34'16" EAST
85,15 FEET;THENCE NORTH 69037'19"EAST 78.18 FEET; THENCE NORTH
67°16'58" EAST 66.23 FEET; THENCE NORTH 58°36'01" EAST 30.33 FEET TO A
POINT HEREINAFTER REFERRED TO AS POINT"A"; THENCE SOUTH
24°23'00" EAST 14.01 FEET;THENCE SOUTH 68°01'43" WEST 176.34 FEET;
THENCE SOUTH 72041'33" WEST 85.60 FEET; THENCE SOUTH 57c45'1 I" WEST
44.03 FEET; THENCE SOUTH 51039'31"WEST 45.46 FEET; SOUTH 72°58'38"
WEST 66.80 FEET; THENCE SOUTH 79°11'47" WEST 41.76 FEET;THENCE
SOUTH 61013'56"WEST 44.27 FEET;THENCE SOUTH 67°07'43"WEST 53.66
FEET; THENCE SOUTH 81*34'11" WEST 63.18 FEET; THENCE SOUTH 44°07'52"
WEST 40.49 FEET; THENCE SOUTH 62022'29" WEST 41.70 FEET; THENCE
NORTH 63042'20"WEST 38.15 FEET; THENCE SOUTH 6157'29" WEST 30.21
FEET; THENCE SOUTH 6402'27"WEST 31.04 FEET; THENCE NORTH 7.5°12'06"
WEST 24.02 FEET; THENCE NORTH 45°00'36"WEST 7.66 FEET; THENCE
NORTH 11022'14" WEST 13.29 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING: 0.481 ACRES MORE OR LESS
PARCEL2:
COMMENCING AT POINT "A" AS PREVIOUSLY DESCRIBED; WHENCE NORTH
7835'11" EAST 24.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE
NORTH 6654'03"EAST 67.92 FEET; THENCE NORTH 65°40'33"EAST 17.51
FEET; THENCE NORTH 6533'37"EAST 61.09 FEET;THENCE NORTH 54142'34"
EAST-46.80 FEET; THENCE NORTH 52'25'16"'EAST 42.35 FEET; THENCE
NORTH 47041'57" EAST 35.42 FEET; THENCE NORTH 38°36'00"EAST 13.07
FEET; THENCE SOUTH 80°29'09"EAST 4.38 FEET; THENCE SOUTH 68°58'10"
EAST 2.83 FEET; THENCE SOUTH 300'34"WEST 12.83 FEET;THENCE SOUTH
54017'13" WEST 50.91 FEET; THENCE SOUTH 52°14'40" WEST 66.34 FEET;
THENCE SOUTH 63018'07" WEST 71.81 FEET;THENCE SOUTH65021'48"WEST
96.34 FEET; THENCE NORTH 4°49'46"WEST 11.30 FEET TO THE TRUE POINT
OF BEGINNING.
CONTAINING : 0.059 ACRES MORE OR LESS
EXHIBIT"B"ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
SUBJECT TO: COVENANTS, CONDITIONS,RESTRICTIONS, RIGHT OF WAY
AND EASEMENTS OF RECORD.
PREPARED UNDER THE.SUPERVlSION OF:
ANN- LAND
Lam✓ r (:.i �p� rQ ,r
GkEGYRY S. BORCHARD,LS 7705
MY IMSTRATION EXPIRES: 12/31/08 L S NO.77p5
EXP. 12-31-Ce
EXHIBIT B
Easement Map
268664 16
6/2W20D7
10:02 AM
! I
I I
! P 0o�tac� 1
+1 l
L07- J SHEET 4 1 7
1 I
! 1
! I
! SCALE.- I'=200'
f I
! !
! SHEE'T 3 lI
I I
1 PARCEL t j
R.v,-R, f 0.481 AC-*
4 15
! � f
I SHEET 2 !
I !
! !
L OT J 59 r
! 70 fd
r
71 F7
75 775 72 5
q TRA r. 73 -8087 X456.
740
331 e7—32 1 9 50
EXHIBI T "B"
SKETCH M ACCOMPANY M A l N 0.I C
A LEGAL OESCRlP710N FOR B15 CALLE PUENTE
OPEN SPACE EASEMENT SAN CLEMENTE. CA 92672
PARCELS Z & 2 PW)t4F- (949)439-4682
CONTAININQ 0.540 AC. SHEET 1 OF 4 SHEETS
MARC! 26, 2007 MEW07002
SEE SHEE 3
N74'50'51,
146.52'
N8134'11"E
6318'
N44i77'52"E
LOT 4o.4s'
7.
=W
^d N62 22 29"L
PARCEL 1 41.70'
0.481 AC.#
N63'4,2'20"W
SCALE. 1" = 60' 38.15
N73 03'23"E NOS 5729 E
34.98' 30.21'
N64 972'27"E
N557110,50F 31.04'
1 Z 86' T.P.O.B.
" PARCEL 1 N7572'06"W
N10'12 48 E 24.02'
34.07'
0.
M4 CT No, 45 1 037
0
•
70
QO I
F�
�Q' s�
MM. 3311 Q�v �o 27-32 �7
7 P.O.C.
cq� FJ
'fr f
E '" ''B' I B'B BOFU:4`{qRp 611RVEYiN4
SKMN TO ACCOMPANY 8 M ^p P I N d, I N C
A LEGAL DESCWT10N FOR 615 CALLE PUENTE
OPEN SPACE EASEMENT SAN CLEMENM CA 92872
PARCELS 1 & 2 PHONE- (949)439-4662
CONTAINING: 0.540 AC. SHEET 2 4F 4 SHEET
MARCH 26. 2007 MBE07002
SEE SHEET
i I
M69'37'19"E N68771'43 E
78.18' 176.34'
d
a
m
LOT N
N72'43'120E
32.83' N57'45'11'E
44.03'
N65 01'46 E N513931"E
50.84' 45.46'
SCAM. 1" = 60'
n
a
N7258'38 E
W 66.80'
N PARCEL 1
a481 AC.-*
N7971'47'E
41.76'
N6173'56 dE
44.27'
N67'07'43"E
53.66'
AW
1A^
J
2 N61;34'11 E
r i
63.18'
SEE SHEET 2
EXHIBIT "B" Bortc*JAM SURVEYING
SKETC14 TO ACCOMPANY a M %P P I N a. I N C
A LEGAL DESCFUPYM FOR 815 CAVE PUENTE
OPEN SPACE EASEMENT SAN QZMENM CA 92572
PARCELS i & 2 PHS` (949)439-4e82
CONTAINING. 0.540 AC. + SHEET 3 OF 4 SHEET
az
MARCH 26, 2007 ma o�a
N68'58'1 D"W
2.83' ND377D'34 E
N8Q79 09"W 12.83,
4.38'
N3836'00"E
1107' N54'17'13 E
50.91
N47'41'5 7"E
35.42'
N527516'E N5274'40"E
42.35' 66.34'
N54 42'34"E
46.80'
N6378'07£
N65 33 37"E 71.81'
61.09'-,, PARCEL 2
D.D59 A.C.t
N65*40'33"E
17.51' v.
o,
SCALE.' 1 = 60' N6654'Q3'E :W
67 92'
T.P.O.B
h
PARCEL 2
N04'49'46"W
11.30' N2473'00"W
N78:35'11"E 14.01'
24.99'
r r
.a a PCL 2
N5836 01 E
34.33'
N6776 58"E
66.23" PARCEL 1
W 0.481 A.E f
b
N69 37'19"E Z
78.18'
SEE SHEET 3
" "
EXHIBI T B
SKETCH TO ACCOMPANY I. M A P P I N 6, 1 N c
A LEGAL DESCRIPnoN FOR 815 CAKE PUENIE
OPEN SPACE EASEMENT SAN CL"ENTE, CA 92572
PARCELS 1 & 2 PHONL- (949)439-4682
CONTAINING: 0.540 AC: # SHEET 4 OF 4 SHEET
MARCH 26, 2007 MOF07002
EXHIBIT C
Mitigation Plan
288664 17
6!28!2007
10:02 AM
Reservoir Canyon
Habitat Mitigation and Monitoring Plan
for the 760 Zone SC-04 Reservoir Project
Pursuant to the Condition Concurrence with the Special
4(D) Rule interim Habitat Loss Mitigation Plan (IHLMP)
for the Project (FWSICDFG-OR-1602.3, CDFG 1066-2004-
0040-85, ACOE No. 200400717-CLM, RWQCB File No.
04C-010)
Proposed Amendment of
CSS and Wetland Elements
Prepared for
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Peter Salgado
Prepared by
Jeffrey B. Froke, Ph.D.
California Wildlife Ecology
jbfroke@mac.com
February 21 , 2007
EXHIBIT D
Title Report
288664 18
6/28/2007
10:02 AM
_ ORANGE COAST TITLE COMPANY
BUILDER SERVICES/COMMERCIAL DIVISION
�i 3536 CONCOURS DRIVE#124
ONTARIO, CA 91764
UPDATE PRELIMINARY REPORT
SAN JUAN CAPISTRANO
32400 SAN JUAN CAPISTRANO
SAN JUAN CAPISTRANO,CA
YOUR NO.: SAN JUAN CAPISTRANO
ATTENTION: KATHLEEN ORDER NO: 140-331945-66
DATED: JANUARY 7,2009
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, ORANGE COAST TITLE
BUILDER SERVICES HEREBY REPORTS THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DATE
HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE DESCRIBING THE LAND AND THE ESTATE OR INTEREST THEREIN
HEREINAFTER SET FORTH,INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR
ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT EXCLUDED FROM COVERAGE
PURSUANT TO THE PRINTED SCHEDULES,CONDITIONS AND STIPULATIONS OF SAID POLICY FORMS.
THE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF SAID POLICY OR POLICIES ARE SET FORTH IN
EXHIBIT A ATTACHED. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY ARE AVAILABLE FROM THE OFFICE,
WHICH ISSUED THIS REPORT.
PLEASE READ THE EXCEPTIONS SHOWN OR REFERRED TO BELOW AND THE EXCEPTIONS AND EXCLUSIONS SET
FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS AND EXCLUSIONS ARE MEANT TO PROVIDE
YOU WITH NOTICE OF MATTERS, WHICH ARE NOT COVERED UNDER THE TERMS OF THE TITLE INSURANCE
POLICY AND SHOULD BE CAREFULLY CONSIDERED,
IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN REPRESENTATION AS TO THE
CONDITION OF TITLE AND MAY NOT LIST ALL LIENS,DEFECTS,AND ENCUMBRANCES AFFECTING TITLE TO THE
LAND.
TT-IIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF
FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS
DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR
COMMITMENT SHOULD BE REQUESTED,
THE POLICY OR POLICIES OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT WILL BE ISSUED BY FIRST AMERICAN
TITLE INSURANCE COMPANY.
DATED AS OF DECEMBER 31,2008 AT 7:30 A.M.
HELEN JOHNSON
TITLE OFFICER
HELENJ a OCTITLE.COM
PHONE(909)987-5433
FAX(909)297-2547
THE FORM OF POLICY OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS:
PRELIMINARY REPORT
-I-
SCHEDULE "A"
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT
IS:
A FEE
TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
CITY OF SAN JUAN CAPISTRANO
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF ORANGE,STATE OF CALIFORNIA,AND
IS DESCRIBED AS FOLLOWS:
THAT CERTAIN PARCEL OF LAND BEING DESIGNATED AS ORANGE COUNTY TAX ASSESSOR'S PARCEL NO.
675-011-27,BEING A PORTION OF THE LAND DESCRIBED AS FOLLOWS:
SECTION 18,TOWNSHIP 8 SOUTH,RANGE 7 WEST,AND SECTION 13,TOWNSHIP 8 SOUTH,RANGE 8 WEST, SAN
BERNARDINO BASE AND MERIDIAN,COUNTY OF ORANGE, STATE OF CALIFORNIA.
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF INTEREST IN ALL OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES IN,UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING THEREFROM, AS
RESERVED BY HOWARD L.KRUM AND FAY WILSON KRUK HUSBAND AND WIFE,BY DEED RECORDED JUNE
8, 1956 IN BOOK 3538 PAGE 550 OF OFFICIAL RECORDS AND RE-RECORDED JULY 20, 1956 IN BOOK 3584,PAGE
339 OF OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND ALL
UNDERGROUND WATER, IN OR UNDER OR WHICH MAY BE PRODUCED FROM THE PROPERTY, WITH ALL
RIGHTS OF SURFACE ENTRY, TOGETHER WITH A PERPETUAL RIGHT TO DRILL, MINE, EXPLORE AND
OPERATE THEREFOR AND REMOVE THE SAME FROM THE PROPERTY, OR ANY OTHER LAND, INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM THE PROPERTY OIL AND GAS WELLS,
TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE PROPERTY AND TO BOTTOM SUCH WHIPSTOCK OR
DIRECTIONALLY-DRILLED WELLS, TUNNELS AND SHAFTS UNDER, BENEATH OR BEYOND THE EXTERIOR
LIMITS OF THE PROPERTY AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE
ANY SUCH WELLS OR MINES,AS RESERVED IN THE DEED RECORDED OCTOBER 25, 1993 AS INSTRUMENT NO.
93-072590 OF OFFICIAL RECORDS.
NOTE: THE ABOVE LEGAL DESCRIPTION IF FOR THE SOLE PURPOSE OF THIS REPORT AND MAY NOT BE
CONSIDERED FOR USE IN ANY POLICY OF TITLE INSURANCE TO BE ISSUED BY THIS COMPANY AND IS
SUBJECT TO CHANGE AT ANY TIME.
-2-
SCHEDULE`B"
AT THE DATE HEREOF EXCEPTION TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSION
CONTAINED IN SAID POLICY FORM WOULD BE AS FOLLOWS:
A. ACCORDING TO THE LATEST AVAILABLE EQUALIZED ASSESSMENT ROLL IN THE OFFICE OF THE
COUNTY TAX ASSESSOR'S PARCEL NUMBER(S) FOR THE HEREIN MENTIONED LEGAL DESCRIPTION
LEGAL DESCRIPTION IS 675-011-27. IT IS A WHOLLY OWNED AND FULLY EXEMPTED GOVERNMENTAL
PROPERTY.
B. THE LIEN OF SUPPLEMENTAL TAXES,IF ANY,ASSESSED PURSUANT TO THE PROVISIONS OF SECTION 75,
ET SEQ,OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA..
ASSESSMENTS, IF ANY, FOR COMMUNITY FACILITIES DISTRICTS AFFECTING SAID LAND, WHICH MAY
EXIST BY VIRTUE OF ASSESSMENT MAPS OR NOTICES FILED BY SAID DISTRICTS.
ANY UNPAID AND/OR DELINQUENT BOND OR ASSESSMENT AMOUNTS WHICH MAY HAVE BEEN
REMOVED FROM THE ROLLS OF THE COUNTY TAX ASSESSOR AND WHICH MAY HAVE BEEN REMOVED
FROM THE TAX BILLS AND TAX DEFAULT REDEMPTION AMOUNTS.
1) A RIGHT OF WAY 6 FEET WIDE OVER THE MOST SOUTHWESTERLY PORTION OF THE LAND FOR PIPES
AND INCIDENTAL PURPOSES FOR THE FOWLER PIPE LINE,TO CONDUCT WATER FROM SAN JUAN CREEK
PUMPING PLANT SERVING SAID LAND AND ITS RESERVOIRS,AS RESERVED IN THE DEED FROM BANK OF
ITALY NATIONAL TRUST AND SAVINGS ASSOCIATION, RECORDED NOVEMBER I4, I928 IN BOOK 2I2
PAGE 425 OF OFFICIAL RECORDS AND AS DESCRIBED IN OTHER INSTRUMENTS OF RECORDS.
2) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
ENT
RECORDED: NOVEMBER 5, 1930 IN BOOK 431 PAGE 270,OFFICIAL RECORDS
FOR: EITHER OR BOTH POLE LINES,CONDUITS AND INCIDENTAL PURPOSES
IN FAVOR OF: SAN DIEGO CONSOLIDATED GAS&ELECTRIC COMPANY
AFFECTS: A 20-FOOT STRIP ACROSS PORTIONS OF SAID LAND.
3) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: DECEMBER 2. 1931 IN BOOK 523 PAGE 161,OFFICIAL RECORDS
FOR: EITHER OR BOTH POLE LINES,CONDUITS AND INCIDENTAL PURPOSES
IN FAVOR OF: SAN DIEGO CONSOLIDATED GAS&ELECTRIC COMPANY
AFFECTS: A PORTION OF SAID LAND.
4) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: DECEMBER 2, 1931 IN BOOK 521 PAGE 206,OFFICIAL RECORDS
FOR: EITHER OR BOTH POLE LINES,CONDUITS AND INCIDENTAL PURPOSES
IN FAVOR OF: SAN DIEGO CONSOLIDATED GAS&ELECTRIC COMPANY
AFFECTS: A PORTION OF SAID LAND.
5) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT"
RECORDED: FEBRUARY 6, 1954 IN BOOK 6914 PAGE 546,OFFICIAL RECORDS
FOR: INGRESS,EGRESS,PIPE LINE,POLE LINES AND INCIDENTAL PURPOSES
IN FAVOR OF: COUNTY OF ORANGE, FOR AND IN BEHALF OF ORANGE COUNTY WATER
WORKS DISTRICT NO.4
AFFECTS: PORTIONS OF SAID LAND.
6) TIE EFFECT OF A MAP PURPORTING TO SHOW THE HEREIN DESCRIBED AND OTHER LAND RECOP-DEDIN
BOOK 91,PAGE 29 OF RECORD OF SURVEYS.
-3-
7) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: AUGUST 24, 1973 IN BOOK 10869 PAGE 61,OFFICIAL RECORDS
FOR: ACCESS,INGRESS AND EGRESS AND INCIDENTAL PURPOSES
IN FAVOR OF: LEADERSHIP HOUSING SYSTEMS,INC.
AFFECTS: A PORTION OF SAID LAND.
8) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: AUGUST 30, 1974 IN BOOK 11232 PAGE 1968,OFFICIAL RECORDS
FOR: WATER PIPELINES AND INCIDENTAL PURPOSES
IN FAVOR OF: ORANGE COUNTY WATERWORKS DISTRICT NO. 4
AFFECTS: A PORTION OF SAID LAND.
9) THE EFFECT OF A MAP PURPORTING TO SHOWN THE HEREIN DESCRIBED AND OTHER LAND RECORDED
IN BOOK 95 PAGE 11 OF RECORD OF SURVEYS.
10) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: SEPTEMBER 13, 1976 IN BOOK 11884 PAGE 135,OFFICIAL RECORDS
FOR: EITHER OR BOTH UNDERGROUND LINES, CONDUITS AND INCIDENTAL
PURPOSES,INCLUDING ABOVE GROUND APPURTENANT FIXTURES
IN FAVOR OF: PACIFIC TELEPHONE AND TELEGRAPH COMPANY
AFFECTS: A PORTION OF SAID LAND.
11) AN UNRECORDED DRILLSITE AGREEMENT AND AN UNRECORDED AGREEMENT, BOTH DATED JUNE 7,
1978, EXECUTED BY AND BETWEEN GLENDALE FEDERAL SAVINGS AND LOAN ASSOCIATION, A
FEDERALLY CHARTERED SAVINGS AND LOAN ASSOCIATION AND CROCKER NATIONAL BANK, A
NATIONAL BANKING ASSOCIATION, IN ITS RESPECTIVE CAPACITIES AS TRUSTEE UNDER THE WILL OF
HOWARD L.KRUK DECEASED, AND AS TRUSTEE UNDER THE WILL OF FAY WILSON,DECEASED, UPON
THE TERMS, PROVISIONS, CONDITIONS AND EASEMENTS THEREIN CONTAINED, AS DISCLOSED BY
MEMORANDUM THEREOF, RECORDED JULY 31, 1978 IN BOOK 12779 PAGE 1633 OF OFFICIAL RECORDS,
AFFECTING A PORTION OF THE LAND.
I2) THE EFFECT OF AN UNRECORDED OIL AND GAS LEASE, EXECUTED BY CLARENCE C. REED, M.D. AND
CLARENCE C.REED MEMORIAL.TRUST FUND, AS LESSOR AND BY GEORGE L.GUTHRIE, AS LESSEE,AS
DISCLOSED BY A SHORT FORM OF THE LEASE RECORDED APRIL I4, I983 AS INSTRUMENT NO. 83-I57136
OF OFFICIAL RECORDS,PURPORTING TO COVER A PORTION OF THE HEREIN DESCRIBED LAND.
NOTE: AT THE TIME OF EXECUTION OF SAID LEASE,THE LESSORS HAD NO RECORD RIGHT,TITLE OR
INTEREST IN THE LAND,NOR HAVE THEY SINCE ACQUIRED ANY.
13) THE EFFECT OF ARTICLE XIV,ENTITLED"OBLIGATIONS-OF DECLARANT PRIOR TO INITIATION DATE"OF
THAT CERTAIN "DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS RE RECREATIONAL
VEHICLE PARKING SITE" RECORDED NOVEMBER 4, I983 AS INSTRUMENT NO. 83-488373 OF OFFICIAL
RECORDS, WHEREIN THE HEREIN DESCRIBED AND OTHER LAND ARE SET FORTH AS ANNEXABLE
PROPERTY. AT THE DATE HEREOF,THE HEREIN DESCRIBED LAND HAS NOT BEEN ANNEXED.
I4) AN ACTION COMMENCED (NO DATE SET OUT IN RECORDED INSTRUMENT) AND NOW PENDING IN THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA,FOR THE COUNTY OF ORANGE,CASE NO.398090
PLAINTIFF:: CLARENCE C. REED, M.D., A MARRIED MAN AS HIS SEPARATE PROPERTY,
CLARENCE C.REED,M.D.,AS TRUSTEE OF THE CLARENCE C.REED MEMORIAL
TRUST FUND
DEFENDANT: JAMES W. DIFFLEY, AS TRUSTEE UNDER TRUST DATED FEBRUARY 12, 1972
FOR THE BENEFIT OF JAMES W. DIFFLEY, D.D.S., INC. PENSION AND PROFIT
SHARING PROGRAM,ET AL.
CROSS-COMPLAINANT CROCKER NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AS
TRUSTEE UNDER THE WILL OF HOWARD L.KRUM,DECEASED,ET AL
CROSS-DEFENDANT: JAMES W. DIFFLEY, AS TRUSTEE UNDER TRUST DATED FEBRUARY 12, 1972,
FOR THE BENEFIT OF JAMES W. DIFFLEY, D.D.S., INC. PENSION AND PROFIT
SHARING PROGRAM,ET AL
TONOR: TO QUIET TITLE AND FOR DECLARATORY RELIEF
ITEM NO 14 CONTINUED--
-4-
ITEM NO 14 CONTINUED--
NOTICE OF PENDENCY OF SAID ACTION WAS RECORDED MARCH 10, 1983 AS INSTRUMENT NO.
83-104721 OF OFFICIAL RECORDS AND DECEMBER 27, 1983 AS INSTRUMENT NO. 83-584869 OF
OFFICIAL RECORDS.
15) A 'CERTIFICATE OF COMPLIANCE", AFFECTING THE HEREIN DESCRIBED AND OTHER LAND, RECORDED
JANUARY 9, 1985 AS INSTRUMENT NO. 85-007171 OF OFFICIAL RECORDS, CERTIFYING THAT THE LAND
DESCRIBED THEREIN CONSTITUTES A LAWFULLY CREATED PARCEL IN FULL COMPLIANCE WITH THE
STATE SUBDIVISION MAP ACT AND LOCAL ORDINANCES ENACTED PURSUANT THERETO.
16) THE TERMS, PROVISIONS AND CONDITIONS CONTAINED IN DOCUMENT ENTIT'L.ED "MEMORANDUM OF
SETTLEMENT AGREEMENT', EXECUTED BY AND BETWEEN NORTHERN TRUST BANK OF CALIFORNIA,
N.A.,EXECUTOR OF THE ESTATE OF CLARENCE C.REED,M.D.,DECEASED AND AS SUCCESSOR TO TRUST
SERVICES OF AMERICA, INC. AND TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION AS TRUSTEE UNDER DECLARATION OF TRUST 02-60942, DATED JANUARY 22, 1964 AND
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,A CALIFORNIA CORPORATION,GLENDALE FEDERAL
BANK,FEDERAL SAVINGS BANK,A UNITED STATES CORPORATION,COUNTY OF ORANGE, A MUNICIPAL
CORPORATION, WILLIAM E.HOLMES AND MARGARET FERN HOLMES, AS HUSBAND AND WIFE, WELLS
FARGO BANK,A NATIONAL ASSOCIATION, SUCCESSORS-IN-INTEREST TO CROCKER NATIONAL BANK, A
NATIONAL BANKING ASSOCIATION, IN ITS CAPACITY AS TRUSTEE UNDER THE WILL OF HOWARD L.
KRUM AND GEORGE L. GUTHRIE , RECORDED OCTOBER 15, 1993 AS INSTRUMENT NO. 93-0704485 OF
OFFICIAL RECORDS.
17) NON-EXCLUSIVE EASEMENTS FOR THE OPERATION, FLOW, PASSAGE, USE, MAINTENANCE,
CONNECTION, SERVICE, REPAIR AND REPLACEMENT OF WATER AND GAS MAINS, STORM AND
SANITARY SEWERS, ELECTRICAL SERVICE, TELEPHONE SERVICE, CABLE TELEVISION SYSTEMS AND
OTHER CABLE SERVICE SYSTEMS AND OTHER UTILITY AND DRAINAGE LINES AND FACILITIES SERVING
GRANTOR'S PROPERTY IN, OVER, UNDER AND ACROSS AND THROUGH ALL OF THE PROPERTY,
TOGETHER WITH THE RIGHT TO GRANT SAME AND THE RIGHT OF ENTRY IN CONNECTION WITH
INSTALLATION AND MAINTENANCE THEREOF;AS RESERVED IN THE DEED RECORDED OCTOBER 25, 1993
AS INSTRUMENT NO.93-0725490 OF OFFICIAL RECORDS.
18) EXCLUSIVE EASEMENTS ON, ACROSS AND OVER THE PROPER'T'Y, FOR THE PURPOSE OF LOCATING,
IMPROVING, MAINTAINING AND TRAVERSING ALL ROADWAYS REQUIRED BY ANY GOVERNMENTAL
AGENCY TO SERVICE GRANTOR'S PROPERTY;AS RESERVED IN THE DEED RECORDED OCTOBER 25, 1.993
AS INSTRUMENT NO.93-0725490 OF OFFICIAL RECORDS,
19) NON-EXCLUSIVE EASEMENTS ON, ACROSS, OVER AND UNDER THE PROPERTY FOR THE PURPOSE OF
CONDUCTING SURVEYS AND SOILS TESTS. GRANTOR SHALL RESTORE AS NEAR AS POSSIBLE THE LAND
AFFECTED TO THE CONDITION IMMEDIATELY PRECEDING SUCH TESTS, AS RESERVED IN THE DEED
RECORDED OCTOBER 25, 1993 AS INSTRUMENT NO.93-0725490 OF OFFICIAL RECORDS.
20) THE CONDITION,CHARACTER AND DEFINITION IMPOSED IN THE DEED RECORDED OCTOBER 25, 1993 AS
INSTRUMENT NO. 93-0725490 OF OFFICIAL RECORDS,RECITES IN PART ALL SOUTH PUBLIC LAND TO BE
CONVEYED BY THE GRANTOR TO THE GRANTEE PURSUANT TO THE TERMS OF AGREEMENT FOR
CONVEYANCE OF LAND ENTERED INTO IN 1979 SHALL BE SO CONVEYED UPON THE EXPRESS
CONDITION THAT THE LAND BE USED SOLELY FOR"PUBLIC USE"AS USED HEREIN SHALL MEAN USE OF
THE LAND FOR PUBLIC FACILITIES AND SERVICES UNDER THE DIRECT CONTROL OF THE CITY OR A
PUBLIC AGENCY BUT SHALL NOT INCLUDE USE FOR RESIDENTIAL OR COMMERCIAL PURPOSES,EXCEPT
AS PROVIDED IN ARTICLE 3.5, SECTION 3.3.I2 OF THE PLANNED COMMUNITY COMPREHENSIVE
DEVELOPMENT PLAN,
2I) AN EASEMENT FOR PURPOSES HEREIN STATED,AND RIGHTS INCIDENTAL THERETO AS PROVIDED IN AN
INSTRUMENT
RECORDED: AUGUST 28, 1992 AS INSTRUMENT NO.92-580725,OFFICIAL RECORDS
FOR; OVERHEAD AND/OR UNDERGROUND FACILITIES FOR DISTRIBUTION OF
ELECTRICITY AND COMMUNICATION FACILITIES AND INCIDENTAL PURPOSES
IN FAVOR OF: SAN DIEGO GAS AND ELECTRIC COMPANY
AFFECTS: A PORTION OF SAID LAND.
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22) NOTE: INFORMATION IN POSSESSION OF THIS COMPANY INDICATES THAT A DIVISION OF LAND IS
CONTEMPLATED IN THE CURRENT TRANSACTION INVOLVING LAND DESCRIBED IN THIS REPORT. SUCH
CONTEMPLATED DIVISION OF LAND WOULD APPEAR TO FALL WITHIN THE PURVIEW OF THE
SUBDIVISION MAP ACT (G.C. 66410 ET SEQ.) AS A PREREQUISITE TO THE ISSUANCE OF FINAL TITLE
EVIDENCE, AT LEAST ONE OF THE FOLLOWING REQUIREMENTS MUST BE ACCOMPLISHED TO THIS
COMPANY'S SATISFACTION;
(1) A SUBDIVISION MAP MUST BE RECORDED IN COMPLIANCE WITH THE SUBDIVISION MAP ACT OR
RELATED LOCAL ORDINANCES;
(2) A PARCEL MAP MUST BE RECORDED IN COMPLIANCE WITH THE SUBDIVISION MAP ACT OR RELATED
LOCAL ORDINANCES;
(3) A CERTIFICATE OF COMPLIANCE AS PROVIDED FOR IN THE SUBDIVISION MAP ACT (G.C. 66499.35)
MUST BE RECORDED;
(4) A WAIVER AS PROVIDED FOR IN THE SUBDIVISION MAP ACT(G.C.66428)MUST BE OBTAINED;OR
(5) OTHER SATISFACTORY EVIDENCE INDICATING COMPLIANCE OR NON-VIOLATION MUST BE
FURNISHED.
END OF SCHEDULE B
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POLICY RATE: FATICICONTRACT RATE
ENCLOSURES: PLATS
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AMON 1965 RECORD SUR VEY 04-15 NOTE -- ASSESSOR'S BLOCK s ASSESSOR'S MAP
PARCEL NUMBERS BOOK 675 PACE 01
SHOWN IN CIRCLES COUNTY OF ORANGE
"NOTES AND REOUIREMENTS SECTION"
NOTE NO.1
"CALIFORNIA STATE SENATE BILL NUMBER 2319, EFFECTIVE JANUARY 1, 1991, REQUIRES THAT THE BUYER IN ALL
SALES OF CALIFORNIA REAL ESTATE, WHEREIN THE SELLER SHOWS AN OUT OF STATE ADDRESS,WITHHOLD 3 1/3%OF
THE TOTAL SALES PRICE AS CALIFORNIA STATE INCOME TAX, SUBJECT TO THE VARIOUS PROVISIONS OF THE LAW AS
THEREIN CONTAINED."
NOTE NO.2
PAYOFF INFORMATION:
NOTE: THIS COMPANY DOES REQUIRE CURRENT BENEFICIARY DEMANDS PRIOR TO CLOSING.
IF THE DEMAND IS EXPIRED AND A CORRECT DEMAND CANNOT BE OBTAINED, OUR REQUIREMENTS WILL BE AS
FOLLOWS:
A. IF THIS COMPANY ACCEPTS A VERBAL UPDATE ON THE DEMAND, WE MAY HOLD AN AMOUNT EQUAL TO ONE
MONTHLY MORTGAGE PAYMENT. THE AMOUNT OF THIS HOLD WILL BE OVER AND ABOVE THE VERBAL HOLD
THE LENDER MAY HAVE STIPULATED.
B. IF THIS COMPANY CANNOT OBTAIN A VERBAL UPDATE ON THE DEMAND, WILL EITHER PAY OFF THE EXPIRED
DEMAND OR WAIT FOR THE AMENDED DEMAND,AT THE.DISCRETION OF THE ESCROW.
C. IN THE EVENT THAT A PAYOFF IS BEING MADE TO A SERVICING AGENT FOR THE BENEFICIARY,THIS COMPANY
WILL REQUIRE A COMPLETE COPY OF THE SERVICING AGREEMENT PRIOR TO CLOSE.
NOTE NO.3
IF THIS COMPANY IS REQUESTED TO DISBURSE FUNDS IN CONNECTION WITH THIS TRANSACTION, CHAPTER 598,
STATUTES OF 1989 MANDATES HOLD PERIODS FOR CHECKS DEPOSITED TO ESCROW OR SUB-ESCROW ACCOUNTS, THE
MANDATORY HOLD 1S ONE BUSINESS DAY AFTER THE DAY DEPOSITED. OTHER CHECKS REQUIRE A HOLD PERIOD FROM
THREE TO SEVEN BUSINESS DAYS AFTER THE DAY DEPOSITED.
IF FUNDS ARE TO BE DEPOSITED WITH ORANGE COAST TITLE BUILDER SERVICES BY WIRE TRANSFER,THEY SHOULD
BE WIRED TO THE FOLLOWING BAMS/ACCOUNT:
BANK OF AMERICA
100 WEST 33rd STREET
NEW YORK,NY 10001
ABA 026009593
ACCOUNT NO. 1235563445
CREDIT TO THE ACCOUNT OF ORANGE COAST TITLE BUILDER SERVICES
PLEASE REFERENCE ORDER NO. 140-331945-66 AND HELEN JOHNSON,TITLE OFFICER
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EXHIBIT "A"
THAT CERTAIN PARCEL OF LAND BEING DESIGNATED AS ORANGE COUNTY TAX ASSESSOR'S PARCEL NO.
675-011-27,BEING A PORTION OF THE LAND DESCRIBED AS FOLLOWS:
SECTION 18,TOWNSHIP 8 SOUTH,RANGE 7 WEST,AND SECTION 13,TOWNSHIP 8 SOUTH,RANGE 8 WEST, SAN
BERNARDINO BASE AND MERIDIAN,COUNTY OF ORANGE,STATE OF CALIFORNIA.
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF INTEREST IN ALL OIL,GAS AND OTHER HYDROCARBON
SUBSTANCES IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING THEREFROM, AS
RESERVED BY HOWARD L.KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE,BY DEED RECORDED JUNE
8, 1956 IN BOOK 3538 PAGE 550 OF OFFICIAL RECORDS AND RE-RECORDED JULY 20, 1956 IN BOOK 3584, PAGE
339 OF OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND ALL
UNDERGROUND WATER, IN OR UNDER OR WHICH MAY BE PRODUCED FROM THE PROPERTY, WITH ALL
RIGHTS OF SURFACE ENTRY, TOGETHER WITH A PERPETUAL RIGHT TO DRILL, MINE, EXPLORE AND
OPERATE THEREFOR AND REMOVE THE SAME FROM THE PROPERTY,OR ANY OTHER LAND,INCLUDING THE
RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM THE PROPERTY OIL AND GAS WELLS,
TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE PROPERTY AND TO BOTTOM SUCH WHIPSTOCK OR
DIRECTIONALLY-DRILLED WELLS, TUNNELS AND SHAFTS UNDER, BENEATH OR BEYOND THE EXTERIOR
LIMITS OF THE PROPERTY AND TO REDRILL, RETUNNEL,EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE
ANY SUCH WELLS OR MINES,AS RESERVED IN THE DEED RECORDED OCTOBER 25, 1993 AS INSTRUMENT NO.
93-072590 OF OFFICIAL RECORDS.
NOTE: THE ABOVE LEGAL DESCRIPTION IF FOR THE SOLE PURPOSE OF THIS REPORT AND MAY NOT
BE CONSIDERED FOR USE IN ANY POLICY OF TITLE INSURANCE TO BE ISSUED BY THIS COMPANY AND IS
SUBJECT TO CHANGE AT ANY TIME.
I 'ICE REGARDING YOUR DEPOSIT OF VDS
CALIFORNIA INSURANCE CODE SECTIONS 12413 ET.SEQ. REGULATES THE DISBURSEMENT OF ESCROW AND
SUB-ESCROW FUNDS BY TITLE COMPANIES.THE LAW REQUIRES THAT FUNDS BE DEPOSITED IN THE TITLE
COMPANY ESCROW AND SUB-ESCROW ACCOUNTS AND BE AVAILABLE FOR WITHDRAWAL PRIOR TO
DISBURSEMENT.FUNDS DEPOSITED WITH THE COMPANY BY WIRE TRANSFER MAY BE DISBURSED UPON
RECEIPT,FUNDS DEPOSITED WITH THE COMPANY VIA CASHIER'S CHECKS DRAWN ON A CALIFORNIA BASED
BANK MAY BE DISBURSED THE NEXT BUSINESS DAY AFTER THE DAY OF DEPOSIT.IF FUNDS ARE DEPOSITED
WITH BY OTHER METHODS,RECORDING OR DISBURSEMENT MAY BE DELAYED.ALL ESCROW AND SUB-
ESCROW FUNDS RECEIVED BY THE COMPANY WILL BE DEPOSITED WITH OTHER FUNDS IN ONE OR MORE
NON-INTEREST BEARING ESCROW ACCOUNTS OF THE COMPANY IN A FINANCIAL INSTITUTION SELECTED
BY THE COMPANY.THE COMPANY AND/OR ITS PARENT COMPANY MAY RECEIVE CERTAIN DIRECT OR
INDIRECT BENEFITS FROM THE FINANCIAL INSTITUTION BY REASON OF THE DEPOSIT OF SUCH FUNDS OR
THE MAINTENANCE OF SUCH ACCOUNTS WITH TIS FINANCIAL INSTITUTION,AND THE COMPANY SHALL
HAVE NO OBLIGATION TO ACCOUNT TO THE DEPOSITING PARTY IN ANY MANNER FOR THE VALUE OF,OR
TO PAY SUCH PARTY,ANY BENEFIT RECEIVED BY THE COMPANY AND/OR ITS PARENT COMPANY,THOSE
BENEFITS MAY INCLUDE, WITHOUT LIMITATION,CREDITS ALLOWED BY SUCH FINANCIAL INSTITUTION ON
LOANS TO THE COMPANY AND/OR ITS PARENT COMPANY AND EARNINGS ON INVESTMENTS MADE ON THE
PROCEEDS OF SUCH LOANS,ACCOUNTING,REPORTING AND OTHER SERVICES AND PRODUCTS OF SUCH
FINANCIAL INSTITUTION. SUCH BENEFITS SHALL BE DEEMED ADDITIONAL COMPENSATION OF THE
COMPANY FOR ITS SERVICES IN CONNECTION WITH THE ESCROW OR SUB-ESCROW.
ORANC COAST TITLE BUILDEI J'ERVICES
PRIVACY POLICY
WE ARE COMMITTED TO SAFEGUARDING CUSTOMER INFORMATION
IN ORDER TO BETTER SERVE YOUR NEEDS NOW AND IN THE FUTURE,WE MAY ASK YOU TO PROVIDE US WITH CERTAIN INFORMATION.
WE UNDERSTAND THAT YOU MAY BE CONCERNED ABOUT WHAT WE WILL DO WITH SUCH INFORMATION -PARTICULARLY ANY
PERSONAL OR FINANCIAL INFORMATION. WE AGREE THAT YOU HAVE A RIGHT TO KNOW HOW WE WILL UTILIZE THE PERSONAL
INFORMATION THAT YOU PROVIDE TO US, THEREFORE, WE HAVE ADOPTED THIS PRIVACY POLICY TO GOVERN THE USE AND
HANDLING OF YOUR PERSONAL INFORMATION.
APPLICABILITY
THIS PRIVACY POLICY GOVERNS OUR USE OF THE INFORMATION YOU PROVIDE TO US.IT DOES NOT GOVERN THE MANNER IN WHICH
WE MAY USE INFORMATION WE HAVE OBTAINED FROM ANY OTHER SOURCE, SUCH AS INFORMATION OBTAINED FROM A PUBLIC
RECORD OR FROM ANOTHER PERSON OR ENTITY.
TYPES OF INFORMATION
DEPENDING UPON WHICH OF OUR SERVICES YOU ARE UTILIZING,THE TYPES OF NONPUBLIC PERSONAL INFORMATION THAT WE MAY
COLLECT INCLUDE:
• INFORMATION WE RECEIVE FROM YOU ON APPLICATIONS, FORMS AND IN OTHER COMMUNICATIONS TO US, WHETHER IN
WRITING,IN PERSON,BY TELEPHONE OR ANY OTHER MEANS.
• INFORMATION ABOUT YOUR TRANSACTIONS WITH US,OUR AFFILIATED COMPANIES,OR OTHERS;AND
• INFORMATION WE RECEIVE FROM A CONSUMER-REPORTING AGENCY.
USE OF INFORMATION
WE REQUEST INFORMATION FROM YOU FOR OUR OWN LEGITIMATE BUSINESS PURPOSES AND NOT FOR BENEFIT OF ANY
NONAFFILIATED PARTY. THEREFORE, WE WILL NOT RELEASE YOUR INFORMATION TO NONAFFILIATED PARTIES EXCEPT: (1) AS
NECESSARY FOR US TO PROVIDE THE PRODUCT OR SERVICE YOU HAVE REQUESTED OF US;OR(2)AS PERMITTED BY LAW. WE MAY,
HOWEVER,STORE SUCH INFORMATION INDEFINITELY, INCLUDING THE PERIOD AFTER WHICH ANY CUSTOMER RELATIONSHIP HAS
CEASED. SUCH INFORMATION MAY BE USED FOR ANY INTERNAL PURPOSE, SUCH AS QUALITY CONTROL EFFORTS OR CUSTOMER
ANALYSIS.
FORMER CUSTOMERS
EVEN IF YOU ARE NO LONGER OUR CUSTOMER,OUR PRIVACY POLICY WILL CONTINUE TO APPLY TO YOU.
CONFIDENTIALITY AND SECURITY
WE WILL USE OUR BEST EFFORTS TO ENSURE THAT NO UNAUTHORIZED PARTIES HAVE ACCESS TO ANY OF YOUR INFORMATION.WE
RESTRICT ACCESS TO NONPUBLIC PERSONAL INFORMATION ABOUT YOU TO THOSE INDIVIDUALS AND ENTITIES THAT NEED TO KNOW
THAT INFORMATION TO PROVIDE PRODUCTS OR SERVICES TO YOU. WE WILL USE OUR BEST EFFORTS TO TRAIN AND OVERSEE OUR
EMPLOYEES AND AGENTS TO ENSURE THAT YOUR INFORMATION WILL BE HANDLED RESPONSIBLY AND IN ACCORDANCE WITH THIS
PRIVACY POLICY.WE CURRENTLY MAINTAIN PHYSICAL,ELECTRONIC,AND PROCEDURAL SAFEGUARDS THAT COMPLY WITH FEDERAL
REGULATIONS TO GUARD YOUR NONPUBLIC PERSONAL INFORMATION.
Exhibit B (Revised 11-17-06)
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-199u EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage,coats,attorneys'fees or expenses which arise by reason of.
1.(a)Any law ordinance or governmental regulation fincluding but not limited to building or toning laws,ordinances,or regulations)restricting,regulating,prohibiting or relating(i]the occupancy,use,or enjoyment
Of the land;(iii the character,dimensions or location o any improvement now or hereafter erected on the land;(ii)a separation in ownership or a change in the dimensions or area o the land or any parcel of w'ch the
land is or wu a part;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations, t to the extent that a not cite of the enforcement arty
a notice of a
defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of olicy.(h)Any governmental police power not excluded by(a)above,
except to tint extent that It notice of tete exercise thereof or notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the pubiic records at Date of
Policy.
2.Righis of ami nentdomais unless notice of the exercise thereof has been recordad in the pubfia records at Date ofPolicy,but not excluding from coverage any taking which has occurred prior to Data ofPolicy which
would be binding on the rights ofa purchaser for value without knowledge.
3.Defects,liens,encumbrances,adverse claims or other matters:(a)whether or not recorded in the public records at Date ofPolicy,but created suffered assumed or agreed to by the insured claimant;(b)not known
to the Company,not recorded in the public records at Date of Policy,but known to the insured claimant and not disclosed in writing to the Glompany 6y the insured Claimant prior to the date the insured claimant
became an insured under this policy(c}resulting in no Ions or damage to the insured claimant;(d)attaching or created subsequent to Data ofPolicy;or(a)resulting in loss or damage which would not have been
sustained if the insured claimant had paid value kr the insured mortgage or for the estate or interest insured b this policy.
4.Unenforceability of the lien of the insured mortgage because of the inability or failure ofthe insured at Date of Policy,or the inability or failure of any subsequent owner ofilia indebtedness,to comply with the
applicable doing business laws ofthe state in which the land is situated.
S.Invalidity or unenromeabifity of the lien ofthe insured mortgage,or claim thereof,which arises out ofthe transaction evidenced by the insured mortgage and is based upon usury or arty consumer credit protection or
truth in lendittg law.
5.Any claim,which arises out ofthe transaction vesting in the insured the estate oFfnterrst insured by this policy or the transaction creating the interest of the insured lender,by reason of the operation of federal
bankruptcy,state insolvency or similar creditors'rights laws.
EXCEPTIONS FROM COVERAGE-SCHEDULE B,PART I
Phis policy does not insure ainst loss or damage(end the Company will not pay costs,attomays'fees or expenses)which arise by reason of:
1.Taxes or assessments whiff are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on rest property or by the public records. Proceedings by a public agency which
may result in taxes or asseaaments o notices of such proceedings,whether or not shown
y "'
records of such agency ar by the public records,
2.Any frets,rights,interests,or elalms which ere not altown by aha pu4lic records but which could be ascertained by an inspersion OFthe land or which may be asserted by persons in possnrion thereof.
3.Easemenla,llIene or encumbrances,tlr claims thereof which ere test shown by the public records.
4,Discrepancies.conflict in boundary lines,shottsge m gree,eneroachmtntt,or any other.6cts which a correct survey would disclose,and which are not shown by the public records.
(a)Unpatented mining claims;(b)reservations m exceptions in patents one Acts authorizing the issuance thereof(c)water right claims or title to voter,whether or not(he matters excepted under( (b)or(c)are
shown by the public records.
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE(10/22/03)ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE EXCLUSIONS
In addition to the Exceptions in Schedule H,You are not insured against loss,costs attorneys'fees,and expenses resulting from:
I,Governmental police power,and the existence or violation of any law or government regulation. This includes ordinances,laws and regatatians Corx:ezning,abuilding,b.zoning,c.Lehd um d,improvements on the
Land,'.Land division,f.environmental grotecdan.'A.is limclusion does not apply to violations or The enforcement of these matters if notice ofthe violation or enforcement appears in the Public Records at the Policy
Dave This Exclusion does not limit the coverage deacribad in Covered Risk 14,15,16.17 or 24.
2.The failure of Your existing structures,or any part Oftbem,to be Constructed in accordance with applicable.building codes. This Exclusion does not apply to violations of building codes if notice critic violation
appears in the Public Records at the Policy Date.
3.The right to take the Land by condemning it,unless:a a notice of exercising the right appears in the Public Records at the Polley Date;or b.the taking happened before the Policy Date and Is binding on You if You
bought the Land without Knowing ofthe taking.
4.Risks:a,that are created,allowed,or agreed to by You,whether Of not they appear in the Public Records;b.tbat are Known to You at the Policy Date,but not to Us,unless they appear in the Public Records et the
Policy Data;c,that result in no loss to You;or d.that first occur after the Policy Date-this does not limit the coverage described in Covered Risk 7,BA,22,23,24 or 25.
5.Failure to pay value For Your Tile.
6.Lack oft fight:a,to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A;and b.in streets,alleys,or waterways that touch the].and.nim Exclusion does not limit the
coverage described in Covered"Risk]I or 18.
LIMITATIONS ON COVERED RISKS
aurtwusavu lorthtlollowing SKS IS limited ontheOwner's Coverage 2itabuncritas ows:
For Covered Risk 14,15,16 and 18,Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A.
The deductible amounts and maximum dollar limits shown on Schedule A are as follows:
Your Deductible Amount Our Maximum Dollar Limit of Liahflity
Covered Risk 14: _%of policy Amount or 3 --
fa less} S
Covered Risk IS: _%ofPolicy Amount or S ((whiehever is less)) S
Covered Risk 16: _%of policy Amount er5 whichever is lest S
Covered Risk I3: _%of Polity Amount or S (whichever is less) S
AMERICAN LAND TITLE ASSOCIATIONRESIDENTIAL TITLE INSURANCE POLICY(6-1-87)EXCLUSIONS
in addition to the P-xceptions in Schedule 9,you are not insured against loss,costs,attorneys'fees,and expenses resulting ftom:
1.Governmental police power,and the existence or violation of any law or government regulation.This includes budding and zoning ordinances and also laws and regulations concerning: *land use *improvements
on the land *land division envtronmenIII protection. This exclusion does not apply to violations orthe enforcement of these matters which appear in the public records at Policy Date This exclusion does not limit
the zoning coverage described in Items Man 13 of Covered Title Risks.
2.The.right to take the lend by condemning it,unless:*a notice of exercising the right appears in the public records 4on the Policy Date -the taking happened prior to the Policy Dale and is binding on you if you
bought the land without kno.,%of the taking
3.Title Risks:*that are created,allowed,or agreed to by you -that are known to you,but not to us,on the Policy Date-unless they appeared in the public retards*that result in no loss to you *that first affect your
title after the Policy Date-this does not limit the labor and material lien coverage in Stem 8 of Covered Title Risks
4 Failure to pay value for your title.
5.Lark ofa right:*w any land outside the arra specifically described and referred to in Item3 of Schedule A OR in strtets,alleys,or waterways that touch your land. This exclusion does not limit the access
coverage in]tem S of Covered Title Risks.
ALTA LOAN POLICY(10-17-92)WITH ALTA ENDORSEMENT-FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE
The following matters aro expressly excluded from the coverage of dds.policy and the Company will not pay loss or damage,cons,attorneys'fees or expenses which arise by reason of:
1.(a)Any law,ordinance or governments]regulation(including but not limited to building and zoning laws,ordinances,or regislUians)restricting,regulating,prohibiting or relating to(i)the occupancy,use,or
enjoyment ofthe land;(fi)the character,dimensions or location of any improvement now or hereafter erected on the land;(iii)a separation in ownership or a change in the dimensions or area ofthe tend or any parcel
of which the Iand is or was a part;or(v)environmennd protection,or the affect of any violation of these laws,Ordinances or governmental regulations,except to the extent that a notice ofthe enforcement thereof or e
notice ofa defect,lien or encumbrance reaping from a violation or alleged violation affecting the land has been recorded in the public records at Dau ofpolicy.(b)Any govemmenui police power not excluded by
(a)above,empt to the extent that a notice crib*exercise thereof of a notice ofa defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recnrded in the public records at
Date ofPolicy,
2.Righu ofaminent domain unless nota of the exercise thereofhas been recorded in the public records at Date of Policy,but not excluding from coverage any taking which has occurred prior to Date ofPolicy which
would be binding on the rights ofa purchaser for value without knowledge.
3.Defects,liens,encumbrances,adverse claims or other notten:(a)crested,suffered,assumed or agreed to by the insured claimant;(b)not known to the Company,not recorded in the public records at Date of Policy,
but known to the insured claimant and tint disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;(c)resulting in no loss or damage to
the insured claimant;(d)attaching or created subsequent to Date of Policy(except to the indent that this policy insures the priority ofthe lien of the insured mortgage over any statutory Ilea for serviow,labor or
material or to the extent insurance is afforded herein as to assessments for street improvements under conatruci ion or completed at Date of Policy);or(e)resulting in loss or damage which would nor have been sustained
ifthe insured claimant had paid value For the insured mortgage.
4.Unenforceability of the lien of the insured mortgage because of the inability or failure ofthe insured at Date of Policy,or the inability or failure oFany subsequent owner of the indebtedness,to comply with
applicable doing business laws ofthe state in which the land is situated.
5.Invalidity or unenforcability of the lien of the insured mortgage,or claim thereof;which arises out of the transaction evidenced by the insured moi tpge and is hued upon usury or any consumer credit proLerden or
truth in Sending law,
6.Any statutory lien for scrvieee,labor or materials(or the claim of priority of any statutory lien for services,labor or materials over the lien ofthe insured mortgage)arising from an improvement or wok related to
the lard which is contracted fbr and commenced subsequent to Date of Policy and is not financed in whole or in par by proceeds of Sha indebtedness Secured by the insured mortgage which at Date of Policy the
insured has advanced or is ob ligated to advance.
7.Any claim,which Arima out of the transaction creating the interest ofthe mortgagee insured by this policy,by reason ofthe operation of federal bankruptcy,stale insolvency,or similar creditors'rights lawn,that is
based on:(i)the transaction creating the interest of the insured mortgagee being deemed a fraudulent cwtvcyance or fraudulent transfer,ot(ii)the subordination ofthe interest of the insured mortgagee as a result of the
application of the doctrine or equitable subordination;or(iii)the transaction creating the interest ofthe insured mortgagee being deemed a preferential transfer except where the preferentfat transfer results from the
failure:(a)to timely record the instrument of transfer;or(b) of suchrecordadon to impar notice to a purchaser for value or•judgement or lien creditor.The above policy form may be issued to afford either Standard
Coverage or Extended Coverage.In addition to the sbuve Exclusions from Coveragq the Exceptions from Coverage in a Standard Coverage policy wil I also include the Fallowing Exceptions from Coverage
EXCEPTIONS FROM COVERAGE
This policy does not insure against bas or damage(and the Company will not pay conA,atbrneys'fees or expenses)which ante by reason of:
I.Taxes or Assessments which are not shown as ehriFling liens by the records of any taxing authority that levies taxes or esseasments on teal property or by the pablit records.
Proceedings by a public agency which may result in taxes or asatumems,or notices of such proceeding;whether or not shown by the records of ouch agertcy or by the public records.
2-Any facts,rights,interests or claims which are not shown by the public records but which could be sacmained by an f ospeotion of the land nr which may be asserted by persons in possession thereof
3.13asements,liens or entvrn brute's,or claims thereof,not shown by the public records.
4.Diserapancin,conflicts in boundary Ifnes,shortage in area,encroachments,or any other facts which a correct survey would disclose,and which are not shown by the public records.
5.(a)Unpatented mining clai ms;(b)reservations or exceptions in patents or in Acts authorizing the issuance thereof,(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b)or(e)are
shown by the public records.
2006 ALTA LOAN POLICY(06-17-06)EXCLUSIONS FROM COVERAGE
The following mmtem are expressly excluded from the coverage oftbis policy,and the Company will not pay loss or damage,costs,attorneys'fees,or expenses that arise by reason of.
1.(a)Any law,ordinance,permit,or governmental regulation(including those relating to building and zoning)restricting,regulating,prohibiting,or relating to:(i)the occupancy,use,or enjoyment ofthe land;(H)
the character,dimensions.or location of any improvement erected on the Land;(iii)the subdivision ofland;or(IV)environmental protetxiomor the of cr:of any violation of there iawa,ordination,or governmental
regulations-This Exclusion I(a)does not truidify or limit the coverage provided under Covered Risk S.(b)Any governmentsf poi'hce power.This Exclusion 1(h)does of modify or limit the coverage provided undar
Covered Risk 6. Page 1 of 2 pages
2.Rights of eminent domain.This Exclusion does not modiF it the coverage provided under Covered Risk 7 or 8.
3.Def lou,liens,encumbrances,ndverae Claims,or other matter..ta)created,suffered,assumed,or agreed to by the Injured Claimant;(b)not Known to the Company,not recorded in the Public Records at Date of
Policy,but Known to the injured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the data the Insured Clai moot became an Insured under this policy;(c)resulting In no loss or
damage to the Insured Claimant;(d)attaching or crested subsequent to Date of Policy(however,this does not modify or limit the coverage provided under Covered Risk 11,13,or 14);or(e)resulting in tots err
damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4.Unenfaretabilky of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws of the state whcre the Land is situated.
5.Invalidity ur unmforeeabflity in whale or input of the lien of the Insured Mortgage thu erises out of rhe transaction evidenced by the Insured Mongage and is based upon usury or any consumer credit prptwion or
truth-in-lending law.
5.Any claim,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'flights laws,that the transaction Creating the lien of the Insured Mortgage,is:(a)a fraudulent eanvtyanee Of
fraudulent transfer,or(b)a preferential transfer fbr any reason not stated in Covered Risk t3(b)of this policy.
7.Any lien on the Title for red estate taxes of assessments imposed by governmental authority and created or ett"rkg between Date of Policy and the date of recording of the Insured Mortgage in the Public Records.
This Exclusion does not modify or limit the coverage provided under Covered Risk I I(b).The above policy form may be issued to afford either Standard Coverage or Extended Coverage. in addition tothe above
Exclusion&from Coverage,the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage(and the Company will not pay costs,uwmeyi fees or expenses)that arise by reason OP.
1. (a)Texas or assessments.that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the%biticRecords,(b)proceedings by.pubrte agency
that may result in taxes or assessments,or notices of such praoeedings,whether or not shown by the records of etch agency or by the Public Records.
2.Any facts,right;interests,or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
3.Easemcnt;liens or encumbrances,or claims thereof,not shown by the Public Records.
4.Any encroachment,encumbrance,violation,variation,or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the land and not shown by the Public Records.
5.(a)Unpatented mining claims;(b)reservations or exeeptiom in patents or in Acts avthorWrig the issuance thereof,(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b),or(c)
are Shawn by the Public Records.
ALTA OWNER'S POLICY(I0-17-92)EXCLUSIONS FROM COVERAGE
The following matters are expressly eaeluded from the coverage of this policy and the Company will not pay loss or damage,costs,ettomeys'fees or expenses which arise by reason oP.
1.(a)Any law,ordinance or governmental regulation(including but not limited to building and toning laws,ordinances,or reguletiont)remitting,regidating,pxohibitmg or relating to 01 the occupancy,use,or
enjoyment of the Isnd;(it)the chzmeLss,dirnansions or location of any improvement now or hereafter erected on the land;(ill)a separation in ownership or a change in the dimensions or arae of the land or any parcel
of which the land is or was a pan;or(Iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,wept to the exterut that a notice of the enforcement thereof err e
notice of a defect,lien or emmmbrance resulting from a violation or alleged violation alfieeling the land has been recorded in the public records at Date of Policy.(b)Any governmental police power not excluded by
(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or encumbrance resulting From a violation or alleged violation effecting the land has been recorded in the public retards it
Date of Policy.
2.Rights ofeminenl domain unless notice of the exercise lheteof has been recorded in the public records at Date of Policy,but not excluding From coverage any taking which has occurred prior to Date of Policy which
would be binding on the r(ghto of a pumhaacr for value without knowledge.
3.Defects,liens,encumbrances.adverse claims or other matters;(a)created,suffered,assumed or agreed to by the insured claiment;(b)not known to the Company,not recorded in the public records et Date of Policy,
but known to the insured claimant and not disclosed in writing to the Company by the insured Claimant prior to the date the insured claimant bacnme as injured under Ibis poliCy,(c)resulting in no loss or demage to the
insured claimant,(d)attaching of created subsespsern w Date of Pollcy;or(e)resulting in lass or damage which would nor have been sustained if the insured claimant had paid value for the owe err interest insured by
this policy.
4.Any claim,which arises out of the transaction vesting in Iha insured the estate or interest insured by this policy,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that
is based an;O the transaction Cresting the catate or interest insured by this policy bong deemed a fraudulent conveyance or fraudulent tansfer,or Q)the transaction creating the Missile or interest insured by this policy
being deemed a preferential transfer except where the preferential transfer results from the failure:(a)to timely record the inirrument of transfer,or(b)of such recordation to impart notice to a purchaser
for value or&judgement or lien creditor.The above policy form maybe issued to efFbrd either Standard Coverage or Extandcd Coverage. In addition to the above Exdusiam from Coverage,the Exceptions From
Coverage in a Standard Coverage Policy will aim include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against toss or damage(and the Company will not pay costs,attorneys fes Or espensee.)which trite by seeaon of:
1.Traces or asseumemswhich are not shown as cxialing liens by the records of any taxing authority that levies taxes or asscumenls on real property or by the public records.Proceedings by a public agency which
may result in taxer or assessments,or notices ofsuch proceedings,whether or not shown by the records ofauch agency at by dee public records.
2.Any facts,rights,intervals or clams which are not shown by the public records but which could be ascartained by an inspection of the land or which may be averted by potions in possession thereof.
3, EasemeaLt,liens or encumbrances,or claims thereof,which are not shown by the public records.
4.Discrepancies,Conflicts fn boundary linos,shortage in arca,encroachments,or any other Picts which a correct survey would diaClqu,and which are not shown by the public retards.
S.(a)Unpatented mining claims;(b)reservations or exceptions in patents or in Acta authorizing the lseuance thereof, (c)water rights,Claims or title to water,whether or not the matters excepted under(a),(b)or(c)
are shown by the public records.
2006 ALTA OWNER'S POLICY(06-17-06)EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy,and the Campany will=pay Loss or dmrag%costs,altom s'Fees,or expenses that arise by reason of
1.(a)Any law,Ordinance,permit,or governmental uluinn It
those relating to building and zoning)restricting,regulating,prehi itimg,or relating to
(i)the occupancy me(or enjoyment of the Land; (ice the character,dimensions,or location of any improvement erected on the Land;(us)the subdivision of land; or(iv)environmental porter aion;or the effect of
any violation of t(iese aws,ordinenees,or governmental regulations.This Exclusion 1(a)doe3 not modify or limit the coverage provided under Covered Risk 5. (b)Any governmental police power.This Psclusion l(b)
does oat modify or limit the covertin provided under Covered Risk 6,
2.Rights of emmant domain.This
in
does not modify or limit the coverage provided under Covered Risk 7 or B.
3.Defects,liens,encumbrances.adverse Claims,or other matters(a)anted suffered.assumed,or agreed to by the Insured Claimant'(b)not Known to the Company,not recorded in the Public Records at Date of
Policy,but Known w the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Ensured Claimant became an naurcd under this policy,(c)resulting in no loss or
damage to the Insured Claimant;(d)attaching or created subsequent to Date of Popery(howeve,this does not modify or limit the coverage provided under Covered Risk 9 and 10);or(e)resulting in loss or damage
that wrutd not have been sustained if the Insured Claimant had paid value forthe Title.
4.Any claim,by reason of the operation of federal bankruptcy,state insolvency,orw
similar creditors'rights las,that the transaction vesting the Title as shown in Schedule A,is(a)a fraudulmt Conveyance or
fraudulerit transfer,or(b)a preferential transfer for any reason not stated in Covered Risk 9 of this policy.
5.Any lien on the Title flat real estate taxes or antaattsetds imposed by governmental authority and crested or attaching between Date ofPoliey and the dare of recording of the deed or other instrument of transfer in
the Public Records that vests Title as shown in Schedule A The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,the
Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage.-
EXCEPTIONS
overage:EXCEPTIONS FROM COVERAGE
This policy does riot insure against loss or damage(end the Company will not pay costs,attorney&'fees or expenses)that arise by reason of:
1. (a)Taxes or aaitniatnta that aro not shown as elating liens by the records of any taxing authority that levies taxes or assessments on real Property or by the Public Records;(b)proceedings by a public agency
that may result in taxes or assessments,or notices of such proceedings,whether or not shown by the recorda of such agency or by the Public Records.
2, Any facts,rights,inuresta,or claims that are not shown in the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
3. Easements.liens or encumbrances,or alai me thereoS not shown by the Public Records.
4, Any encroachment,encumbrance,violation,variation,or advent Circumstance atfecting theT•ttla that would be disclosed by an accursie and complete land survey of the Land and that are not shown by the
Public Records.
5. (a)Unpatented mining claims;(b)reservations or exceptions in patents or in Acte authorizing the issuance thereof,(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b),or
(c)are shown by the Public Retards,
ALTA EXPANDED COVERAGE RESIDENTLIL LOAN POLICY(I0/13/01)EXCLUSIONS FROM COVERAGE
The fbllowing matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage,costs,anCeneys tics or expenses which arise by reason of
1.(a)Any law,ordinariee or govemmental regulation(including but not limited to building and zoning law%ordinances,at regulations)restricting,regulating,prohibiting or relating to(i)the occupancy,use,or
enyeyment of the Land;(t)the character,dimensions or location of any improve icnt now or hereafter erected on the land;(iii)a separation in ownership or a change in the dimensions or arras of the Land or any
parcel of which the Land is or was a pan;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or govantluntat mgsttaticum,except to the extent that a notice of the enfarcament
thereof or a notice of a deka,lien or CrtvmbrerCir resulting from a violation or alleged violation effecting the Lend fin been recorded in the Public Records at Duo of Policy This exclusion does not limit the
coverage provided under Covered Risks 12,13,14,and 16 of this policy.(b)Any govemmental police power not excluded by(a)above,except to the extent that a notice of the exercise thtreaf or a notice Ufa dafeU,
lien or rneumbrance resulting From a violalian or alleged violation afflicting the Land has been recorded in the Public Records at Date of Policy.This exclusion does not limit the coverage providers under Covered
Risks 12,13,14,and 16 ofthis policy.
2.Rights of eminent domain unless notice of the exercise thereof hal been recorded in the Public Records at Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Policy
which would be binding an the rights arm purchaser for value without Knowledge.
3.Ddiects,liens,encumbrances,adverse claims or other matters:(a)created,suffered,assumed or agreed to by the Enured Claimant;(b)not Known to the Company,not recorded in the Public Records at Date of
Policy,but Known to the Inured Claimant and not disclosed in writing to rhe Company by the Insured Clamant prior to the date the Insured Clement became an Insured under this policy;(c)resulting In no loss or
damage to the Insured Cleimant;(d)attaching or treated subsequent to Dale of Policy(this paragraph does not limit the Coverage provided under Covered Risks 6,t6,1%,19,19,11,22,23,24,25 and 26);
or(e)resulting in lose or damage which wonid nothsve been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4.Unenforceability of the lien of the insured Mortgage because of the inability or failure of the Insured atDate of Policy,or the inability or felure of any subsequent owner of the indebnedness,to comply with
applicable doing business laws of the state in which the land is fituated.
S.Invalidity or unenforceability ofthe lien of the Insured Mortgage,or claim thereof,which arises outafthe transaction evidenced by the Insured Mortgage and is based upon usury,except as provided in Covered
Risk 27,or any consumer credit protection or truth in lending law.
6,Real property taxes or assessments of any governmental authority which become a lien on the Land subsequent to Date of Policy.This exclusion does not limit the coverage provided under Covered Risks 7,8(c)
and 26,
7. Any claim of invalidity,unenforceability or lack of priority of the lien of the Insured Mortgage as to advances or modification&made after the Insured has Knowledge that the veslee shown in Schedule A is no
longer the owner of the estste or interest Covered by thin policy.This exclusion dots not limit the coverage provided in Covered Risk B.
11,Leck of priority of the lien of the Injured Mortgage as m each and every advance made after Date ofPoliey,and all interest charged thereon,ever liens,encumbrances and other matters affecting the title,the
existence ofwhich are Known to the insured nc(a)The time or the advance;or(b)The time a modification is made to the terms of the Insured Mortgage which changes the rate of interest charged,if the rate of Interest
is greater as a result ofthe modification then it would have been before the modification.This exclusion does not limit the coverage:provided in Covered Risk 8.
9.The failure of the residential structure,or any portion thereof to have been constructed before,on or after Data of Policy in accordance with applicable building codes. This exclusion does not apply to violations of
building codes if notice of the violation appears in the Public Records at Due of Policy. Page 2 eft pages
EXHIBIT E
Map of Natural Condition of the Restricted Property
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32400 PASEO ADELANTO MEMBERS OF THE CITY COUNCIL
%J
SAN JUAN CAPISTRANO,CA 92675 �%
(949)493.1171 A�. LAURA LEVATO
FREES
(949)493-1053 FAX f y IA(OAPOAAfIA LAURA FRE ESE
lSlfuuAu THOMAS W.HRIBAR
www.san juan capistran o.Org 177b MARK NIELSEN
• •
DR.LONORES USD
Flo
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, February 3,
2009 in the City Council Chamber in City Hall, to consider: "Consideration of
Settlement Agreement and Amendment of Restated Declaration of Covenants for
the Camino Capistrano Emergency Repairs (U.S. Army Corps of
Engineers)(Camino Capistrano)(FEMA DR-1577)(ACOE-2006-1709-FBV)" — Item
No. F8.
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the City Council
through correspondence addressed to the Council and/or by attending the meeting and
speaking to the Council during the public meeting.
Correspondence related to this item must be received at the City Clerk's office by 5:00
p.m. on Monday, February 2, 2009 to allow time for the Council to consider its content.
If you would like to speak at the meeting, please complete a yellow "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the
staff table, just in front of the Council dais. You will be called to speak by the Mayor
when the item is considered.
You have received this notice at the request of the City staff member Eric P. Bauman,
Utilities Engineer. You may contact that staff member at (949) 487-4312 with any
questions.
The agenda, including agenda reports, is available to you on our web site:
www.sanivancapistrano.orq. If you would like to subscribe to receive a notice when
agendas are posted to the web site, please make that request by sending an e-mail to:
cityclerkCD,sanivancapistrano.org.
Meg Monahan, MMC
City Clerk
cc: David Castanon, Chief, Regulatory Division, U.S. Army Corp of Engineers; John
O'Donnell, Utilities Director; Eric P. Bauman, Utilities Engineer
San Juan Capistrano: Preserving the Past to Enhance the Future
A
" Printed on 100%recycled paper
�MIO/j
32400 PASEO ADELANTO i i MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675
(949)4931171 SAM ALLEVATO
FREES
(949)4931053 Fall }y in[eeranfTFLAURA FREES
ESiffll3fif 1461 THOMAS W.HRIBAR
www.sanj uancap[slrano.oT 1776
MARK NIELSEN
• •
DR.LONDRES USO
February 9, 2009 '
NOTIFICATION OF ACTION BY THE
CITY COUNCIL OF SAN JUAN CAPISTRANO
On February 3, 2009, the City Council of San Juan Capistrano met regarding:
"CONSIDERATION OF SETTLEMENT AGREEMENT AND AMENDMENT OF
RESTATED DECLARATION OF COVENANTS FOR THE CAMINO CAPISTRANO
EMERGENCY REPAIRS (U.S. ARMY CORPS OF ENGINEERS)(CAMINO
CAPISTRANO)(FEMA DR-1577)(ACOE-2006-1709-FBV)" ITEM NO. F8.
The following action was taken at the meeting: SETTLEMENT AGREEMENT WITH
THE UNITED STATES ARMY CORPS OF ENGINEERS FOR ENVIRONMENTAL
MITIGATION FOR CAMINO CAPISTRANO EMERGENCY REPAIRS APPROVED;
AND AN AMENDED AND RESTATED DECLARATION OF COVENANTS (APN 675-
011-27) APPROVED WITH THE CITY CLERK DIRECTED TO PROCESS
RECORDING OF THE DOCUMENT (U. S. ARMY CORPS OF ENGINEERS) (FEMA
DR-1577) (ACOE-2006-1709-FBV)
If you have any questions regarding this action, please contact Eric P. Bauman, Utilities
ineer t (949) 487-4312 for more detailed information.
Tha y ,
rt han,
City erk
Cc: David Castanon, Chief, Regulatory Division, U.S. Army Corp of Engineers; John
O'Donnell, Utilities Director; Eric P. Bauman, Utilities Engineer
San Juan Capistrano: Preserving the Past to Enhance the Future
�, Primed on 100%recyried paper
Page 1 of 2
Christy Jakl
From: Meg Monahan
Sent: Thursday, February 05, 2009 5:23 PM
To: Maria Morris
Cc: Christy Jakl
Subject: FW: US Army Corps of Engineers - Consent F8 213109
Attachments: 09-0203 Amended &Restated.pdf
Hi,
Here is some backup on item F* for the 2/3/09 agenda. Thanks,
Meg Monahan, MMC
City Clerk
32400 Paseo Adelanto
San Juan Capistrano,CA 92675
(949)443-6308
(949)493-1053 -fax
The City Clerk's office is dedicated to providing outstanding customer service; encouraging participation in local
government; and supporting our democratic processes with integrity, impartiality, andprofessionalism.
From: Meg Monahan
Sent: Thursday, February 05, 2009 5:22 PM
To: Eric Bauman
Subject: U5 Army Corps of Engineers - Consent FS 2/3/09
Eric,
Per your request, I've attached an executed copy of the Amended and Restated Declaration of
Restrictive Covenants...pertaining to this agenda item. I will hold this and process the
recording after I receive an executed Settlement Agreement from the US Army Corps of
Engineers. (I need to put the date of the Settlement Agreement in Section C of the Amended
and Restated Declaration in order to record it.)
Earlier today, I forwarded (2) original, executed Settlement Agreements to them along with an
original Minute Extract that officially documents the Council's action on February 3, 2009. (You
were copied on these documents).
Thank you,
Meg Monahan, MMC
City Clerk
32400 Paseo Adelanto
San Juan Capistrano,CA 92675
(949)443-6308
(949)493-1053 -fax
The City Clerk's office is dedicated to providing outstanding customer service;encouraging participation in local
2/9/2009
Page 2 of 2
government; and supporting our democratic processes with integrity, impartiality, and professionalism.
2/9/2009