HomeMy WebLinkAboutOrdinance 2429 N.C.S. 03/19/2012 EFFECTIVE DATE ORDINANCE NO. 2429 N.C.S
OF ORDINANCE
April 18, 2012
1 Introduced by Seconded by
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4 Teresa Barrett Gabe Kearney
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8 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING DEED AND
9 AGREEMENT BETWEEN THE CITY OF PETALUMA AND THE SONOMA COUNTY AGRICULTURAL
10 PRESERVATION AND OPEN SPACE DISTRICT CONVEYING A CONSERVATION EASEMENT
11 AND ASSIGNING DEVELOPMENT RIGHTS REGARDING REAL PROPERTY COMMONLY
12 KNOWN AS 431 PAULA LANE (APN 019-080-009 AND APN 019-080-01)
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15 WHEREAS, Section 46 of the Charter of the City of Petaluma requires that actions for the
16 acquisition, sale or lease of real property be taken by ordinance; and,
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18 WHEREAS, pursuant to Resolutions No. 2006-160 N.C.S. and 2008-068 N.C.S., the City of
19 Petaluma (City) submitted applications to the Competitive Matching Grant Program (Program)
20 of the Sonoma County Agricultural Preservation and Open Space District (District) for matching
21 grant funds to be used in part for the acquisition of certain real property commonly known as
22 431 Paul Lane, County of Sonoma (APN 019-080-0009 and APN 019-080-01) (the Property); and,
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24 WHEREAS, the City subsequently resubmitted the application for grant funds for
25 acquisition of the Property to the Program for the 2009-2010 Program cycle; and,
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27 WHEREAS, the City has been notified by District that Program funding in the amount of
28 $1,000,000 has been approved by the District Board of Directors for acquisition of the Property:
29 and,
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31 WHEREAS. the City has been notified by District that the District Board of Directors has
32 requested the ability to consider awarding an additional $50,000 in Program funding for
33 acquisition of the Property; and,
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35 WHEREAS, the City has negotiated a purchase and sale agreement between the City
36 and Dale H. VesterfelT and Alice M. Vesterfelt, Trustees, and Dianna Mae Corralejo, Trustee,
37 owners of the Property, in the amount of $1,050,000 (Agreement); and,
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Ordinance No. 2429 N.C.S. Page 1
1 WHEREAS, the City Council has introduced an ordinance approving the Agreement; and,
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3 WHEREAS, a condition of District's Program funding is a requirement to convey to District
4 a Conservation Easement over the Property and to assign to District development rights over the
5 Property; and,
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7 WHEREAS, the City has negotiated the terms of a Deed and Agreement Between the City
8 of Petaluma and the Sonoma County Agricultural Preservation and Open Space District
9 Conveying a Conservation Easement and Assigning Development Rights (Conservation
10 Easement), a copy of which is attached hereto as Exhibit A and incorporated herein by
11 reference; and,
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13 WHEREAS, the Agreement requires the City to complete the purchase and sale of the
14 Property and grant of the Conservation Easement over the Property through an joint escrow
15 transaction; and,
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17 WHEREAS, the City and the Paula Lane Action Network (PLAN) are in the process of
18 developing a work plan to operate and manage the Property as an open space preserve and
19 educational nature facility; and,
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21 WHEREAS, this action is exempt from the California Environmental Quality Act (CEQA)
22 pursuant to title 14, Chapter 3 of the California Code of Regulations (CEQA Guidelines),
23 including but not limited to sections 15313 (Acquisition of Land for Wildlife Conservation
24 Purposes), 15317 (Open Space Contracts or Easements), and/or 15325 (Transfers of Ownership
25 Interest in Land to Preserve Existing Natural Conditions).
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27 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
28 FOLLOWS:
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30 Section 1. The City Council approves the execution of the Deed and Agreement
31 Between the City of Petaluma and the Sonoma County Agricultural Preservation and Open
32 Space District Conveying a Conservation Easement and Assigning Development Rights
33 (Conservation Easement), a copy of which is attached as Exhibit A and incorporated herein by
34 reference.
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36 Section 2. The city manager is authorized and directed to execute the Conservation
37 Easement and all other documents reasonably necessary to implement the escrow for transfer
38 of the Conservation Easement.
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40 Section 3. If any section, subsection, sentence, clause, phrase or word of this ordinance
41 is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of
42 competent jurisdiction or preempted by state legislation, such decision or legislation shall not
43 affect the validity of the remaining portions of this ordinance. The City Council of the City of
44 Petaluma hereby declares that it would have passed and adopted this ordinance and each
Ordinance No. 2429 N.C.S. Page 2
1 and all provisions thereof irrespective of the fact that any one or more of said provisions be
2 declared unconstitutional, unlawful or otherwise invalid.
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4 Section 4. This ordinance shall become effective thirty (30) days after the date of its
5 adoption by the Petaluma City Council.
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7 Section 5. The City Clerk is hereby directed to publish or post this ordinance or a synopsis
8 for the period and in the manner provided by the City Charter and any other applicable law.
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10 INTRODUCED and order posted/published this 5Th day of March, 2012.
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12 ADOPTED this 19th of March 2012, by the following vote:
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14 Ayes: Albertson, Barrett, Mayor Glass, Harris, Healy, Kearney, Vice Mayor Renee
15 Noes: None
16 Abstain: None
17 Absent: None
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23 arL. . ►� NA/f
24 David Glass, Mayor
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27 ATTEST: APPROVED AS TO FORM:
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29 sti_
31 Claire Cooper, City Clerk , Leslie Thomsen, Assistant City Attorney
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Ordinance No. 2429 N.C.S. Page 3
EXHIBIT A
RECORDING REQUESTED BY AND RETURN TO:
Clerk of the Board of Directors
Sonoma County Agricultural
Preservation and Open Space District
575 Administration Drive, Room 102A
Santa Rosa, CA 95403
Free Recording per Gov't Code Sec 6103
DEED AND AGREEMENT
BY AND BETWEEN
THE CITY OF PETALUMA
AND
THE SONOMA COUNTY AGRICULTURAL PRESERVATION
AND OPEN SPACE DISTRICT
CONVEYING A CONSERVATION EASEMENT
AND
ASSIGNING DEVELOPMENT RIGHTS
The City of Petaluma ("GRANTOR") and the Sonoma County Agricultural Preservation and
Open Space DISTRICT, a public agency formed,pursuant to the provisions of Public Resources
Code sections 5500 et seq. ("DISTRICT"), agree as follows:
RECITALS
A. GRANTOR is the owner in fee simple of that certain real property located in Sonoma
County and more particularly described in Exhibit A, attached hereto and incorporated herein by
this reference ("the Property").
B. In 1990 the voters of Sonoma County approved the creation of DISTRICT and the
imposition of a transactions and use tax by the Sonoma County Open Space Authority ("the
Authority"). The purpose for the creation of DISTRICT and the imposition of the tax by the
Authority was to provide for the preservation of agriculture and open space through the
acquisition of interests in appropriate properties from willing sellers. The District was created
and the tax imposed in order to further the state policy for the preservation of agricultural and
open space lands, to meet the mandatoryrequirements imposed on the County and each of its
cities by Government Code sections 65560 et seq., and to advance the implementation of the
open space elements of their respective general plans. In order to accomplish those purposes,
DISTRICT and the Authority entered into a contract whereby, in consideration of the Authority's
financing of DISTRICT's acquisitions, DISTRICT agreed to and did adopt an acquisition
program that was in conformance with the Authority's voter approved Expenditure Plan. In
2006, the voters of Sonoma County approved an extension of the transaction and use tax and an
update of the Expenditure Plan. The DISTRICT's acquisition program remains in full
compliance with that updated voter-approved Expenditure Plan.
Ordinance No.2429 N.C.S. Page 4
C. On April 10, 2012, DISTRICT's Board of Directors, pursuant to Government Code
section 65402 and Sonoma County Ordinance No. 5180, determined, by its Resolution No.
, that the acquisition of a conservation easement over the Property was consistent
with the Sonoma County General Plan (specifically the Plan's Agricultural Resources and Open
Space Elements)because; (1) habitat for multiple wildlife species will be protected; (2) a wildlife
corridor for movement and connectivity will be preserved; (3) agricultural activities will be
supported; (4) opportunities for passive recreational enjoyment and outdoor education related to
agriculture and wildlife habitat restoration and enhancement will be provided; and (5) the
Property's primarily undeveloped character is an important open space resource, contributing to
the county's rural character. By that same resolution, the DISTRICT's Board of Directors
determined that its funding of the Project is consistent with the voter-approved Expenditure Plan.
D. DISTRICT has the authority to acquire conservation easements by virtue of Public
Resources Code section 5540 and possesses the ability and intent to enforce the terms of this
Easement.
THEREFORE, in consideration of the foregoing recitations and of the mutual covenants, terms,
conditions, and restrictions herein set forth and other valuable consideration receipt of which is
hereby acknowledged, GRANTOR and DISTRICT agree as follows:
EASEMENT
PART ONE: GRANT OF EASEMENT
1. Grant and Acceptance of Conservation Easement and Assignment of Development
Rights. Pursuant to the common and statutory law of the State of California including the
provisions of Civil Code sections 815 to 816, inclusive, GRANTOR hereby grants to DISTRICT
and DISTRICT accepts a conservation easement over the Property in perpetuity under the terms
and conditions set forth herein ("the Easement"). GRANTOR hereby irrevocably assigns to
DISTRICT all development rights associated with the Property, except those rights which are
specifically reserved by GRANTOR through this Easement.
2. Conservation Values. The Property is located in Petaluma's western hills, and is
primarily composed of annual grasslands. Critical resources on the Property (collectively "the
Conservation Values"), include natural resources, open space, recreation and education, and
agriculture. These include, but are not limited to, the following:
2.1 Natural Resources. The Property consists of annual grasslands, with several
mature oaks, and an east-west Swale with wetland characteristics that all provide upland habitat
and foraging for multiple species. The Property is part of a critical wildlife movement area
connecting the southwest Petaluma area to the north and northwest of Petaluma, in proximity to
Mann Creek. Special-status species known to use the Property at the time of the conservation
easement acquisition include American Badger (Taxidea taxus), a California Species of Special
Concern. The Property is also important for numerous other wildlife species, including resident
and migratory avian species that use the Property as a migratory wintering area. These resident
and migratory avian species include the following special-status species: Allen's and Rufous
Hummingbirds, Sharp-shinned.Hawk, White-tailed Kite, Cooper's Hawk, Nuttall's Woodpecker,
Ordinance No. 2429 N.C.S. Page 5
Oak Titmouse, Red-breasted Sapsucker, Snowy Egret, Great Egret, Great Blue Heron, Black-
crowned Night Heron and Long-billed Curlew.
2.2 Open Space Resources. Located at the urban edge, the Property's primarily
undeveloped character is an important open space resource, contributing to the county's rural
character.
2.3 Recreation and Education. The Property provides opportunity for the public's
passive recreational enjoyment of its natural features and the opportunity for outdoor education
related to agriculture, wildlife habitat restoration and enhancement, and the relationship and
interdependence of plant life, animal life and human life. The Ring Trail planned for the
Petaluma Area is expected to pass adjacent to the Property.
2.4 Agriculture. The Property is located in an historic agricultural area of Sonoma
County and Petaluma, representing the remainder of the first faun on Paula Lane, settled in the
late 1.800s. The Property provides opportunity formultiple agricultural uses, including orchards,
row crops, and gardens.
3. Conservation Purpose. It is the purpose of this Easement to preserve and protect
forever the Conservation Values of the Property, as described in Section 2. This purpose shall
hereinafter be referred to as"the Conservation Purpose of this Easement." GRANTOR and
DISTRICT intend that this Easement will confine the use of the Property to activities that are
consistent with the Conservation Purpose of this Easement and will prohibit and prevent any use
of the Property that will materially impair or interfere with the Conservation Values of the
Property. GRANTOR and DISTRICT intend that all Conservation Values of the Property will
be fully preserved and protected in perpetuity. In the event, however, that the preservation and
protection of one Conservation Value becomes irreconcilably inconsistent with the preservation
and protection of another Conservation Value, the following priorities shall be followed:
preservation and protection of natural resources shall take precedence over preservation and
protection of open space resources, which shall take precedence over recreation and educational
uses, which shall take precedence over agricultural uses.
PART TWO: RESERVED AND RESTRICTED RIGHTS
4. Affirmative Rights of DISTRICT: DISTRICT shall have the following affirmative
rights under this Easement:
4.1 Protecting Conservation Values. DISTRICT shall have the right to preserve,
protect and document in perpetuity the Conservation Values of the Property.
4.2 Property Inspections. DISTRICT shall have the right to enter upon the Property
and to inspect, observe, and study the Property for the purposes of(i) identifying the current
activities and uses thereon and the condition thereof, (ii) monitoring the activities and uses
thereon to determine whether they are consistent with the terms, conditions and Conservation
Purpose of this Easement, (iii) enforcing the terms, conditions and Conservation Purpose of this
Easement, and (iv) exercising its other rights under this Easement. Such entry shall be permitted
at least once a year at reasonable times, upon one week's prior notice to GRANTOR, and shall
be made in a manner that will not unreasonably interfere with GRANTOR's use and quiet
Ordinance No. 2429 N.C.S. Page:6
enjoyment of the Property pursuant to the terms and conditions of this Easement. Each entry
shall be for only so long a duration as is reasonably necessary to achieve the purposes of this
Section 4.2, but shall not necessarily be limited to a single physical entry during a single twenty-
four hour period. Notwithstanding the foregoing, should DISTRICT's General Manager have a
reasonable belief that GRANTOR is in breach of this Easement, DISTRICT shall have the right
at any time, upon twenty-four hours' prior notice to GRANTOR to enter upon the Property for
the purpose of determining whether such breach has occurred. The rights of entry provided by
this Section 4.2 shall extend to the officers, agents, consultants, and volunteers of DISTRICT.
Notwithstanding any reasonable belief of DISTRICT that a breach of this Easement is occurring,
prior to any entry by DISTRICT into residential dwelling units on the Property for purposes of
inspection, DISTRICT shall provide at least forty-eight (48) hours prior notice to GRANTOR
during normal business hours of GRANTOR of DISTRICT's intent to enter into such dwelling
units, absent an emergency requiring immediate action or other exception contained in California
Civil Code Section 1954 or any successor statute then in effect relating to notification of tenants
inhabiting and/or leasing residential structures ("Section 1954"). This additional tithe is to allow
GRANTOR to comply with Section 1954. DISTRICT shall limit its inspection of inhabited or
leased dwelling units on the Property to inspection during normal business hours except as
otherwise provided in Section 1954.
4.3 Enforcement. DISTRICT shall have the right to enforce the rights herein granted
and to prevent or stop, by any legal means, any activity or use on the Property that is inconsistent
with the terms, conditions or Conservation Purpose of this Easement and to require restoration of
such areas or features as may be damaged by such activities or uses.
4.4 Approval of Certain Uses. DISTRICT shall have the right to review and
approve proposed uses and activities on the Property as more specifically set forth in Section 5
and Section 6.
4.5 DISTRICT Signage. DISTRICT shall have the right to erect and maintain a sign
or other appropriate marker in a location on the Property acceptable to GRANTOR, visible from
a public road, bearing information indicating that the Property is protected by DISTRICT and
acknowledging the sources of DISTRICT funding for the acquisition of this Easement. The
wording and design of the sign and marker shall be determined by DISTRICT with consent of
GRANTOR. No such sign or marker shall exceed thirty-two (32) square feet in size. DISTRICT
shall be responsible for the cost of erecting and maintaining such sign or marker.
5. GRANTOR's Reserved and Restricted Rights. Use of the Property shall be confined
to activities and uses that are consistent with the Conservation Purpose of this Easement. Any
activity or use that is inconsistent with the Conservation Purpose of this Easement is prohibited.
Without limiting the generality of the foregoing, the following activities and uses are expressly
reserved, restricted or prohibited as set forth below. GRANTOR and DISTRICT acknowledge
that the following list does not constitute an exhaustive recital of consistent and inconsistent
activities and uses, but rather CO establishes specific allowed activities and uses, (ii) establishes
specific prohibited activities and uses, and (iii) provides guidance for determining the
consistency of similar activities and uses with this Easement, in accordance with the procedures
set forth in Section 6.
Ordinance No. 2429 N.C.S. Page 7
5.1 General Requirements for All Uses.
5.1.1 Compliance with Governmental Regulations. All activities and uses on
the Property shall be undertaken in a manner consistent with all applicable federal, state,
and local statutes, ordinances, rules, and regulations.
5.1.2 Compliance with Terms, Conditions and Conservation Purpose of this
Easement. All activities and uses on the Property shall be undertaken in a manner
consistent with the terms, conditions and Conservation Purpose of this Easement.
5.1.3 Protection of Conservation Values. All activities and uses on the Property
shall be undertaken in a manner reasonably designed to protect and preserve the
Conservation Values.
5.1.4 Protection of Soil and Water. No activity or use on the Property shall be
undertaken in a manner that results in significant soil degradation or pollution, or
significant degradation or pollution of any surface or subsurface waters.
5.1.5 Criteria for Use.
(a) Use of the Property shall ensure preservation and protection of the
natural resources of the Property in perpetuity; and
(h) Public outdoor recreational and educational uses and activities on the
Property shall be designed and undertaken in a manner compatible with natural
resource protection; and
(c) No use or improvement shall materially impair GRANTOR's ability
to provide for public outdoor recreational and educational use of the Property as
provided herein; and
(d) Structures and improvements shall not result in impervious surfaces
on, cumulatively, more than 3% of the Property; and
(e) No structure or improvement on the Property shall exceed 24 feet in
height.
(1)Use of the Property shall preserve opportunities for agricultural use in
areas designated Agricultural Area in the Baseline Documentation Report Site
Map (Baseline Site Map) as identified in Section 9.
5.1.6 Notice and Approval Procedures. Whenever in this Section 5, prior notice
to and approval by DISTRICT is required, such notice shall be given and approval shall
be obtained in accordance with Section 6 of this Easement.
5.1.7 Management Plan. GRANTOR may develop and implement a
Management Plan for the Property. The Management Plan and future updates and
amendments will be subject to review and approval by DISTRICT in accordance with
Ordinance No.2429 N.C.S. Page 8
Section 6 of the Easement. The Management Plan shall not be implemented on the
Property until the District's approval is obtained: DISTRICT's review and approval of
the Management Plan shall be based on the Management Plan's consistency with the
terms, conditions and Conservation Purpose of this Easement.
Once the Management Plan is approved by DISTRICT, uses and improvements described
in that approved Management Plan, and all development necessary to implement those
described uses and improvements, shall he deemed to be consistent with the Conservation
Purpose of this Easement and shall be permitted on the Property without further notice to
or approval by DISTRICT required. All such uses and improvements shall be undertaken
in accordance with the terms and conditions of this Easement and in compliance with all
applicable laws and regulations.
5.2 Land Uses. Use of the Property is restricted solely to natural resource protection,
habitat restoration and enhancement, recreational and educational, agricultural and residential
uses as defined in this Section 5.2. Commercial or industrial use of or activity on the Property is
prohibited except for those commercial uses expressly reserved in Sections 5.2.4, 5.2.5 and 5.2.6.
5.2.1 Natural Resource Protection. GRANTOR may take all actions necessary
or appropriate to preserve and protect the natural resources of the Property in accordance
with sound, generally-accepted conservation practices. GRANTOR and DISTRICT
acknowledge that the Property and its natural features are protected by this Easement and
shall not be available to mitigate for the environmental impacts of projects located off
site.
5.2.2 Habitat Restoration and Enhancement. GRANTOR may undertake
conservation and habitat restoration and enhancement activities in accordance with
Section 5.5.5.
5.2.3 Recreational and Educational Use. GRANTOR shall make the Property
available to the public for passive public outdoor recreational and educational purposes
except as set forth in Section 5.6. Such uses may include, but are not limited to, wallcing,
picnicking, gardening, native habitat installation,public educational and passive
recreational activities including but not limited to nature study, placement and use of
environmental research support instruments; environmental or outdoor education, habitat
restoration training, and other such uses similar in nature and intensity.
5.2.4 Agricultural Use. GRANTOR reserves the right to engage in agricultural
uses, as defined below, within the designated Agricultural Area and Building Envelope
designated on the Baseline Site Map in accordance with sound, generally-accepted
agricultural and soil conservation practices,provided however that no agricultural use
shall be undertaken in a manner that significantly impairs the long-term agricultural
productive capacity of the Property. Agricultural uses shall be limited to the following:
a) Livestock for the Production of Food and Fiber. GRANTOR reserves
the right to breed, raise, pasture, and graze livestock of every nature and
description for the production of food and fiber.
Ordinance No. 2429 N.C.S. Page 9
b) Bees, Poultry and Fowl. GRANTOR reserves the right to breed and
raise bees, poultry, and other fowl.
c) Crops. GRANTOR reserves the right to plant, raise,harvest, and
produce agricultural and horticultural crops and products of every nature and
description.
d) Sale of Harvested Crops and Products. GRANTOR reserves the right
to store and sell, including direct retail sale to the public of crops and products
principally harvested and produced on the Property.
e) Processing of Crops and Products. GRANTOR reserves the right to
process agricultural crops and products principally harvested and produced on the
Property.
5.2.5 Residential Use. GRANTOR reserves the right to reside on the Property
and lease or rent, for residential or other permitted uses, the-residential buildings within
the Building Envelope as designated on the Baseline Site Map.
5.2.6 Commercial Use. GRANTOR reserves the right to use the Property for
commercial uses and activities identified below. Any revenue generated from
commercial activities and uses shall be used toward the cost of operating, maintaining,
restoring, and enhancing the Property, and towards educational, recreational or
agricultural programs that take place on the Property.
i) Agricultural uses as defined in Section 5.2.4.
ii) Leases or rentals for residential use as defined in Section 5.2.5.
iii) Special Events and Fundraising Activities. Subject to prior written
notice to DISTRICT, GRANTOR may use the Property for public special
events, including but not limited to educational and recreational events, art
shows, music and music programs, dance and cultural activities and other
similar special events. GRANTOR may also use the Property for fundraising
activities that educate the public and promote the preservation and restoration
of open space and natural resources in Sonoma County. Special events and
fundraising activities shall occur, in total, no more than six times per year and
shall not result in any temporary or permanent alteration of the Property nor
have any detrimental impact on the natural resources of the Property. No
noise amplification or night lighting is permitted.
iv) Concessions. Food and beverage sales and other similar concessions
may be operated on the Property in connection with permitted special events
and fundraising activities on the day or days of the event.
v) Other Ancillary Uses. Subject to prior written DISTRICT approval,
GRANTOR may use the Property for other minor ancillary commercial uses
found to be consistent with the Conservation Values of this Easement.
Ordinance No. 2429 N.C.S. Page 10
5.2.7 Emergency Activities. In the event of a natural disaster or similar
emergency condition, GRANTOR may undertake temporary activities as may become
necessary or appropriate to protect public health or safety of persons in the local area, so•
long as such activities, to the greatest extent feasible, are undertaken in a manner that
does not hinder the Conservation Purpose of this Easement.
5.3 Subdivision and Parcels. GRANTOR and DISTRICT acknowledge and agree
that the Property shall be merged and shall always remain one legal parcel under one common
ownership. GRANTOR shall not divide the Property, whether by subdivision, conveyance, lot
line adjustment, or any other means, nor shall GRANTOR gain or seek to gain recognition, by
certificate of compliance under the Subdivision Map Act or otherwise, of additional parcels
which may have previously been created on the Property by prior patent or deed conveyances,
subdivisions, or surveys, nor shall GRANTOR place or convey any portion of the Property into
ownership separate from the whole of the Property.
5.3.1 Exceptions. This prohibition against division of the Property shall be
inapplicable to:
a) Conveyance to Government or Non-Profit Entity. Subject to prior
written approval by DISTRICT, GRANTOR may voluntarily convey a portion of
the Property to a government or non-profit entity exclusively for conservation or
public access purposes.
b) Leases. GRANTOR reserves the right to lease a portion(s) of the
Property for the permitted residential, recreational and educational, and
agricultural uses described in Section 5.2.
5.3.2 Historic Parcels. GRANTOR acknowledges that one or more additional
historic parcels may exist on the Property,previously created by patent or deed
conveyances, subdivisions, lot line adjustments, surveys, recorded or unrecorded maps or
other documents. GRANTOR waives all rights to recognition of such historic parcels,
whether through certificate of compliance under the Subdivision Map Act or otherwise.
5.4 Structures and Improvements. GRANTOR may repair, replace, construct,
place and maintain structures and improvements on the Property only as provided below. At no
time shall structures and improvements on the Property result in impervious surfaces on
cumulatively, more than 3% of the Property. Furthermore, no structure or improvement shall
exceed 24 feet in height.
5.4.1 Maintenance, Repair or Replacement of Structures and Improvements.
GRANTOR may maintain, repair or replace structures and improvements existing at the
date hereof or constructed subsequently pursuant to the provisions of Section 5.4, as
follows:
(a) If the maintenance, repair or replacement does not increase the height of
the structure or improvement, increase the land surface area it occupies or change its
location or function, no notice to or approval by DISTRICT shall be required.
Ordinance No. 2429 N.C.S. Page 11
(b) Any maintenance, repair or replacement that increases the height of the
structure or improvement, increases the land surface area it occupies, or changes its
location or function shall be treated as new construction and shall be subject to the
provisions of Sections 5.4.2 through 5.4.9.
5.4.2 Primary Residences. There currently exist on the Property two primary
residences. Residential use may continue or the use of the structures may be converted to
educational, recreational or agricultural uses. No such structure-shall be greater than
2,000 square feet in size, exclusive of garage. All garages, whether attached or detached,
shall be subject to Section 5.4.3. In no case shall there be more than two primary
residences, whether used for residential or other purposes, located on the Property.
5.4.3 Structures Accessory to Residential Use. Subject to prior written notice to
DISTRICT, GRANTOR may place or construct additional accessory structures and
improvements reasonably related to permitted residential use of the Property including,
without limitation, guest house, garage, and shed. All such structures must be placed or
constructed within the Building Envelope. The total cumulative square footage of the
structures accessory to residential use shall not exceed 3,000 square feet. No single
structure accessory to the residential use shall exceed 1,000 square feet.
5.4.4 Non-residential Agricultural Structures. Subject to prior written notice to
DISTRICT, GRANTOR may place or construct within the Agricultural Area or Building
Envelope non-residential accessory structures and improvements reasonably necessary
for the permitted agricultural use of the Property, including, without limitation, barns,
sheds, greenhouses, native plant propagation shade houses and small storage facilities.
5.4.5 Structures and Improvements for Recreational and Educational Uses.
GRANTOR may construct or place improvements associated with permitted outdoor
recreational and educational uses, including, but not limited to:
(a) Within the Agricultural Area or Building Envelope, GRANTOR may
construct or place trails, pathways, benches, gazebo, bird blinds, interpretive kiosks,
drinking fountains, refuse and recycling containers, bicycle racks, public art, and other
similar minor improvements without any notice to or approval from DISTRICT.
(b) Within the Building Envelope, GRANTOR may construct or place
educational or interpretive facilities, restrooms, lighting, and other similar significant
improvements only with prior written notice to DISTRICT.
(c) Outside of the Agricultural Area and Building Envelope, GRANTOR may
construct or place benches, bird blinds, interpretive kiosks and other similar minor
improvementslocated only with prior written approval of DISTRICT. Such
improvements shall be located primarily on the perimeter of the Property.
5.4.6 Public Parking and Access Roads. Subject to prior written approval of
DISTRICT, GRANTOR may construct, improve and maintain a public parking area
Ordinance No. 2429 N.C.S. Page 12
within the Building Envelope and access roads as minimally necessary for the permitted
uses of the Property.
5.4.7 Fences and Gates. GRANTOR may construct, place and erect fencing and
gates only as necessary for permitted uses of the Property. Fencing must be the minimum
necessary for such use and may include hedge rows and other living fences comprised of
native plants. All fencing and gates must i) preserve the scenic values of the Property;
and ii) not impede wildlife movement except in cases where necessary to protect the
allowed recreational, educational and agricultural uses described in this Easement, and
except where such impediment is necessary for management, restoration or enhancement
of natural resources, such as to protect new native plantings. In the event of destruction
or deterioration of any fences and gates, whether existing at the date hereof or
constructed subsequently pursuant to the provisions of this Easement, GRANTOR may
maintain and/or replace such fencing and gates only in accordance with the provisions of
this Section 5.4.7. In the event any fence or gate, or portion thereof, becomes obsolete or
unnecessary for the uses described in this Section 5.4.7, GRANTOR shall remove such
fencing or gate from the Property, provided, however, that fencing existing as of the date
of this Easement may remain.
5.4.8 Utilities and Energy Resources. GRANTOR may place or construct
utilities on the Property only as follows:
(a) Subject to prior written approval of DISTRICT, GRANTOR may expand
existing or develop or construct new utilities, including but not limited to electric power,
septic or sewer, communication lines, and water collection, storage and delivery systems
provided that such utilities are directly required for permitted uses on the Property and
are reasonably scaled to serve only those uses.
(b) Notwithstanding the limitations of subparagraph (a), subject to prior
written notice to DISTRICT, GRANTOR may install above-ground water collection,
storage or delivery system within the Agricultural Area or Building Envelope provided
that such system is directly required for permitted uses on the Property and is reasonably
scaled to serve only those uses.
(c) In addition, subject to prior written approval of DISTRICT, GRANTOR
may place or construct improvements for the development and utilization of renewable
energy resources, including but not limited to solar, wind and geothermal, provided that
such area impacted by such improvements cover no more than 2% of the Property,
provided that such use does not hinder GRANTOR's ability to comply with Section
5.1.5. Such improvements remain subject to the impervious surface limitations of
Section 5.4. Notwithstanding the foregoing, GRANTOR may, without notice to or
approval of DISTRICT, place or construct solar panels on the roofs of existing structures
or any future additional structures placed on the Property pursuant to Sections 5.4.2
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through 5.4.7, provided that such solar panels do not cause the structure or improvement
to exceed the height limitations set forth in those sections.
Ordinance No. 2429 N.C.S. Page 13
5.4:9 Signs. GRANTOR reserves the right to construct signs as set forth in this
Section 5.4.9 in connection with the allowed uses herein. No sign shall be artificially
illuminated.
a) Without prior written notice or approval of DISTRICT, GRANTOR
reserves the right to construct or place two signs not to exceed 32 square feet in
size in connection with allowed uses.
b) Without prior written notice or approval of DISTRICT, GRANTOR
reserves the right to construct or place signs less than 6 square feet in size to (i)
mark the boundary of the Property; (ii) provide directional, interpretive and
educational information; and (iii) set forth rules or regulations applicable to use of
the Property, provided that the size and number of such signs shall be limited to
that which is reasonably necessary to accomplish the permitted uses herein, and
further provided that such signs are sited and constructed in a manner that does
not create a significant visual impact.
c) Subject to prior written approval of DISTRICT, GRANTOR may
construct or place additional signs necessary or appropriate for allowed uses,
provided that such additional signs are sited and constructed in a manner that does
not create a significant visual impact.
5.5 Land and Resource Management. All land and resource management activities
shall be desigmed and implemented in accordance with sound, generally-accepted conservation
practices.
5.5.1 Surface Alteration. Alteration of the contour of the Property in any
manner whatsoever is prohibited, including, but not limited to, excavation, removal or
importation of soil, sand, gravel, rock, peat or sod, except as reasonably necessary in
connection with the uses allowed under Section 5 of this Easement. In connection with
allowed uses, movement of over 50 cubic yards of material in any calendar year is subject
to prior DISTRICT approval.
5.51 Water Resources. Draining, filling, dredging, diking, damming or other
alteration, development or manipulation of watercourses, subsurface water, springs,
ponds and wetlands is prohibited except as reasonably necessary in connection with (i)
the maintenance, replacement, development and expansion of water storage and delivery
systems allowed under Section 5.4.8, and (ii) the restoration and enhancement of natural
resources allowed under Section 5.5.5. Subject to the limitations of this Section 5.5.2,
GRANTOR reserves all rights and entitlements to use of surface and subsurface water as
may exist under state or federal law.
5.5.3 Mineral Exploration. Exploration for, or development and extraction of,
minerals and hydrocarbons by any surface or sub-surface mining or any other method is
prohibited.
5.5.4 Fire Management. GRANTOR reserves the right to undertake vegetation
management activities for the purpose of fire control provided the techniques used
Ordinance No. 2429 N.C.S. Page 14
minimize harm to native wildlife and plants and are in accordance with all applicable
laws. Fire management methods are limited to:
(a) limited brush removal, limited mowing and limited grazing of the Property, or
other methods of similar nature and intensity, without need for notice to or approval from
DISTRICT, and
(b) prescriptive burning undertaken in a manner consistent with the standards and
requirements of the local fire protection agency having jurisdiction, subject to prior
written notice to DISTRICT.
The requirement for notice under this Section 5.5.4 may be satisfied by the submission of
an annual fire management plan.
5.5.5 Preservation, Restoration and Enhancement. GRANTOR reserves the
right to undertake conservation and restoration activities, including, but not limited to,
bank and soil stabilization, practices to reduce erosion, enhancement of water quality,
plant and wildlife habitat, and activities which promote biodiversity.
5.5.6 Native Tree Removal. Harvesting, cutting, removal or destruction of any
native trees is prohibited, except as reasonably necessary (i) to control insects and
disease, (ii) to prevent personal injury and property damage, (iii) for the purpose of fire
management, in accordance with Section 5.5.4; and (iv) for natural resource
management, including native seed collection and plant propagation for use on the
Property as set forth in Section 5.5.5 of this Easement.
5.5.7 Native Vegetation Removal. Removal or destruction of any native
vegetation is prohibited, except as reasonably necessary (i) within footprint of permitted
recreational and educational structures and improvements, (ii) to control insects and
disease, (iii) to prevent personal injury and property damage, (iv) for the purpose of fire
management, in accordance with Section 5.5.4; and (v) for natural resource management,
including native seed collection and plant propagation for use on the Property as set forth
in Section 5.5.5 of this Easement.
5.5.8 Native Animal Removal. Killing, hunting, trapping, injuring or removing
native animals is prohibited except (i) under imminent threat to human life or safety; and
(ii) as reasonably necessary to promote or sustain biodiversity in accordance with
restoration and enhancement activities in connection with Section 5.5.5, using selective
control techniques consistent with the policies of the Sonoma County Agricultural
Commissioner and other governmental entities having jurisdiction.
5.5.9 Non-Native Plant and Animal Removal. GRANTOR reserves the right to
remove or control invasive, non-native plant and animal species (i) to further the
Conservation Purpose of this Easement; (ii)to foster the growth of native species and
promote biodiversity; (iii) to control insects and disease; (iv)to prevent personal injury
and property damage; (v) for the purpose of fire management, in accordance with Section
5.5.4; and (vi) for natural resource management as set forth in Section 5.5.5. Techniques
Ordinance No. 2429 N.C.S. Page 15
used shall minimize harm to native wildlife and plants and shall be in accordance with all
applicable laws.
5.5.10 Off-road Motorized Vehicle Use. Use of motorized vehicles off roadways
is prohibited, except when necessary for permitted agricultural, construction,
maintenance, emergency access and property management activities.
5.5.11 Dumping. Dumping, releasing, burning or other disposal of wastes,
refuse, debris, non-operative motorized vehicles or hazardous substances is prohibited,
except that agricultural products and by-products generated on the Property may be
disposed on site, consistent with sound generally accepted agricultural practices.
5.5.12 Outdoor Storage.
(a) Materials Required For Permitted Uses. GRANTOR may store
materials and supplies required for permitted uses within the Agricultural Area or
Building Envelope, provided such storage shall be located so as to minimize
visual impacts.
(b) Storage of Construction Materials. GRANTOR may store construction
and other work materials needed during construction of permitted structures and
improvements on the Property while work is in progress and for a period not to
exceed thirty (30) days after completion or abandonment of construction.
Construction shall be deemed abandoned if work ceases for a period of 180 days.
5.6 Public Access Limitations. GRANTOR and DISTRICT understand and agree
that the Property will be developed for and will continue to be a public preserve in perpetuity.
GRANTOR, however, reserves the right to exclude the public from the Property on a temporary
basis to the extent necessary for public health or safety or for preservation of the Conservation
Values of the Property. Nothing in this Easement shall be construed to preclude GRANTOR's
right to grant access to third parties to the Property consistent with the terms, conditions and
Conservation Purpose of this Easement.
5.7 Easements. GRANTOR may continue the use of existing easements of record
granted prior to this Easement. The granting of new temporary or permanent easements, and the
modification or amendment of existing easements is prohibited without the prior written
approval of the DISTRICT. It is the duty of GRANTOR to prevent the use of the Property by
third parties that may result in the creation of prescriptive rights.
PART THREE: PROCEDURES AND REMEDIES
6. Notice and Approval Procedures. Some activities and uses permitted by this Easement
require that prior written notice be given by GRANTOR to DISTRICT, while other activities and
uses permitted by this Easement require the prior written approval of DISTRICT. Unless and
until such notice is given or approval is obtained in accordance with this Section 6, any such
activity or use shall be deemed to be prohibited on the Property. GRANTOR shall use the
following procedures to provide notice to DISTRICT or to obtain DISTRICT's approval. All
Ordinance No. 2429 N.C.S. Page 16
notices and requests for approval shall include all information necessary to permit DISTRICT to
make an informed judgment as to the consistency of the GRANTOR's request with the terms,
conditions and Conservation Purpose of this Easement. Forms for notices and requests for
approval shall be available at DISTRICT's offices.
6.1 Approval, Amendments,Revisions and Updates of Management Plan.
GRANTOR may prepare a Management Plan for the Property to define and guide future use and
development of the Property and to streamline DISTRICT approvals under this Easement. For
purposes of this.Easement, it is agreed that the Management Plan and any amendments, revisions
or updates (collectively "Revisions") will be deemed sufficient for its purpose provided the plan
identifies (a)all major components of property use (including resource management,
recreational, educational, agricultural, and residential), (b) the nature of each proposed use and
its intended location, (c) all proposed structures, and (d) all actions to be taken to protect natural
resources. Pursuant to Section 5.1.7 of this Easement, such Management Plan and Revisions
require DISTRICT's approval prior to their implementation. DISTRICT's approval shall be
based upon its reasonable determination as to whether the Management Plan or Revisions are
consistent with the terms, conditions and Conservation Purpose of this Easement. DISTRICT
acknowledges that, in light of the public processes required for development of the Property for
recreation and educational use and natural resource preservation, time is of the essence and
DISTRICT's approval shall not be unreasonably withheld or delayed. GRANTOR shall use the
following procedure to obtain DISTRICT's approval for the Management Plan and Revisions:
6.1.1 GRANTOR may, at its discretion, at any time, submit a draft Management
Plan or Revisions ("Draft Plan")to DISTRICT for its review and tentative approval.
DISTRICT shall have forty-five(45) days from the receipt of the Draft Plan, plus
fourteen (14) days from any subsequent or follow up submittal,to review the Draft Plan
and either tentatively approve the Draft Plan or notify GRANTOR of any objection
thereto. Disapproval or objection, if any, shall be based on DISTRICT's determination
that the proposed activity or use is inconsistent with the terms, conditions or
Conservation Purpose of this Easement or that GRANTOR's request is incomplete or
contains material inaccuracies. DISTRICT's response, whether tentative approval or
objection, shall be in writing and delivered to GRANTOR in accordance with Section 19.
If DISTRICT has any objections to the Draft Plan, it shall state such objections in
sufficient detail to enable GRANTOR to modify the Draft Plan so as to bring it into
compliance with the terms, conditions and Conservation Purpose of this Easement.
6.1.2 In connection with any environmental review of the Management Plan or
Revisions under the California Environmental Quality Act ("CEQA") or any successor
statute then in effect, GRANTOR shall provide DISTRICT with notification of and
opportunity to comment on any draft environmental document made public under the
statute, prior to adoption or certification of that environmental document.
6.1.3 Prior to adoption of a fmal Management Plan or Revisions ("Final
Management Plan"), GRANTOR shall submit the Final Management Plan to DISTRICT-
for its review and approval. If a Draft Plan was tentatively approved by DISTRICT and
the Final Management Plan is in substantial conformity with the approved Draft Plan,
with no material revisions, DISTRICT shall grant approval to the Final Management
Plan. if no Draft Plan was tentatively approved by DISTRICT or if material revision(s)
Ordinance No. 2429 N.C.S. Page 17
have been made, DISTRICT's approval of the Final Management Plan shall be based
solely upon the Final Management Plan's consistency with the terms, conditions and
Conservation Purpose of this Easement. In all cases, DISTRICT shall have forty-five
(45) days from the receipt of the Final Management Plan, plus fourteen (14) days from
any subsequent or follow-up submittal, to review and either approve the Final
Management Plan or notify GRANTOR of any objection thereto. Disapproval or
objection, if any, shall be based on DISTRICT's determination that the proposed activity
or use is inconsistent with the terms, conditions or Conservation Purpose of this
Easement or that GRANTOR's request is incomplete or contains material inaccuracies.
DISTRICT'S response, whether approval or objection, shall be in writing and delivered to
GRANTOR in accordance with Section 19. If DISTRICT has any objections to the Final
Management Plan, it shall state such objections in sufficient detail to enable GRANTOR
to modify the Final Management Plan so as to bring it, if possible,into compliance with
the terms, conditions and Conservation Purpose of this Easement.
6.1.4 Upon DISTRICT's approval and GRANTOR's adoption of a Final
Management Plan, all uses and improvements described therein and all development
reasonably necessary to implement those described uses and improvements, shall be
deemed to be consistent with the terms, conditions and Conservation Purpose of this
Easement and shall.be permitted on the Property with no further notice to or approval by
DISTRICT required. All such uses, development, improvements and activities shall at all
times remain subject to the substantive limitations of Section 5. Any update or
amendment to the Final Management Plan shall be subject to District approval.
6.2 Uses/Activities Requiring Notice or Approval to DISTRICT. In the absence of a
Final Management Plan approved by DISTRICT, or for uses and activities not described in a
Final Management Plan approved by DISTRICT, the following procedures shall be followed for
giving notice or obtaining DISTRICT approval where such notice or approval is required by this
Easement. Unless and until such notice is given or approval is obtained in accordance with this
Section 62, any such activity or use shall be deemed to be prohibited on the Property. In any
instance in which DISTRICT approval is required, DISTRICT's approval shall be based solely
upon its reasonable determination as to whether the activity or use is consistent with the terms,
conditions and Conservation Purpose of this Easement. DISTRICT acknowledges that time is of
the essence and DISTRICT's approval shall not be unreasonably withheld or delayed.
6.2.1 Uses/Activities Requiring Notice to DISTRICT. For any activity or use
that requires prior written notice to DISTRICT, GRANTOR shall deliver such notice to
DISTRICT at least forty-five (45) days prior to the commencement of such activity or
use. That forty-five (45) day time period provides DISTRICT an opportunity to evaluate
whether the proposed activity or use is consistent with the terns, conditions and
Conservation Purpose of this Easement before the activity or use is begun.
6.2.2 Uses/Activities Requiring Prior Approval from DISTRICT. For any
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activity or use that requires prior written approval from DISTRICT, GRANTOR shall file
a request for such approval ("GRANTOR's request") at least forty-five (45) days prior to
the intended commencement of such activity or use. DISTRICT shall have forty-five
(45) days from the receipt of a complete request for approval to review the request and to
approve, conditionally approve, disapprove or notify GRANTOR of any objection
Ordinance No. 2429 N.C.S. Page 18
thereto. Disapproval or objection, if any, shall be based on DISTRICT's determination
that the proposed activity or use is inconsistent with the terms, conditions or
Conservation Purpose of this Easement or that GRANTOR's request is incomplete or
contains material inaccuracies. If, in DISTRICT's judgment, the proposed activity or use
would not be consistent with the terms, conditions or Conservation Purpose of this
Easement or the request is incomplete or contains material inaccuracies, DISTRICT's
notice to GRANTOR shall inform GRANTOR of the reasons for DISTRICT's
disapproval or objection. Only upon DISTRICT's express written approval, given by
DISTRICT's General Manager, may the proposed activity or use be commenced, and
then only in accordance with the terms and conditions of DISTRICT's approval.
6.2.3 DISTRICT's Failure to Respond. Should DISTRICT fail to respond to
GRANTOR's request for approval within forty-five (45) days of the receipt of
GRANTOR's request, GRANTOR may, after giving DISTRICT ten (10) days written
notice by registered or certified mail, commence an action in a court of competent
jurisdiction to compel DISTRICT to.respond to GRANTOR's request. In the event that
such legal action becomes necessary to compel DISTRICT to respond and GRANTOR
prevails in that action, DISTRICT shall reimburse GRANTOR for all reasonable attorney
fees incurred in that action. In the alternative, GRANTOR may commence a proceeding
in arbitration under Section 12.
6.2.4 Uses Not Expressly Addressed: DISTRICT's Approval. In the event
GRANTOR desires to commence an activity or use on the Property that is neither
expressly reserved nor expressly prohibited in Section 5, GRANTOR shall seek
DISTRICT's prior written approval of such activity or use in accordance with the
procedure set forth in this Section 6.2. The exercise of any activity or use not expressly
reserved in Section 5 may constitute a breach of this Easement and may be subject to the
provisions of Section 10.
7. Costs and Liabilities Related to the Property.
7.1 Operations and Maintenance of the Property. GRANTOR agrees to bear all
costs and liabilities of any kind related to the operation, upkeep, and maintenance of the Property
and does hereby indemnify and hold DISTRICT harmless therefrom. Without limiting the
foregoing, GRANTOR agrees to pay any and all real property taxes, fees, exactions, and
assessments levied or imposed by local, state or federal authorities on the Property. GRANTOR
further agrees to maintain general liability insurance or adequate self-insurance covering acts on
the Property. Except as specifically set forth in Section 8.2 below, DISTRICT shall have no
responsibility whatever for the operation of the Property, the monitoring of hazardous conditions
thereon, or the protection of GRANTOR, the public, or any third parties from risks relating to
conditions on the Property. Except as otherwise provided in Section 8.1, GRANTOR hereby
agrees to indemnify and hold DISTRICT harmless from and against any damage, liability, claim,
or expense, including attorneys' fees, relating to such matters.
Ordinance No. 2429 N.C.S. Page 19
7.2 Hazardous Materials.
7.2.1 No DISTRICT Obligation or Liability. Notwithstanding any other
provision of this Easement to the contrary, the parties do not intend and this Easement
shall not be construed such that it creates in DISTRICT:
a) The obligations or liabilities of an "owner" or "operator" as those
words are defined and used in environmental laws, as defined below, including,
but not limited to, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 United States Code, sections 9601 et
seq.) ("CERCLA");
b) The obligations or liabilities of a person described in 42 United States
Code section 9607(a)(3) or any successor statute then in effect;
e) The right to investigate and remediate any hazardous materials, as
defined below, on or associated with the Property; or
d) Any control over GRANTOR's ability to investigate and remediate any
hazardous materials, as defined below, on or associated with the Property.
7.2.2 Warranty of Compliance. GRANTOR represents, warrants, and covenants
to DISTRICT that GRANTOR's use of the Property shall comply with all environmental
laws, as defined below.
7.2.3 Definitions. For the purposes of this Easement:
a) The term "hazardous materials" includes, but is not limited to, any
flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials defined in CERCLA,
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the Hazardous Materials Transportation Act, as amended (49 United States Code
sections 1801 et seq.), the Resource Conservation and Recovery Act of 1976, as
amended (42 United States Code sections 6901 et seq.), sections 25117 and 25316
of the California Health & Safety Code, and in the regulations adopted and
publications promulgated pursuant to them, or any other federal, state, or local
environmental laws, ordinances, rules, or regulations concerning the environment,
industrial hygiene or public health or safety now in effect or enacted after the date
of this Easement.
b) The term "environmental laws" includes, but is not limited to, any
federal, state, local or administrative agency statute, regulation, rule, ordinance,
order or requirement relating to environmental conditions or hazardous materials.
8. Indemnification.
8.1 GRANTOR's Indemnity. GRANTOR shall hold harmless, indemnify, and
defend DISTRICT, its agents, employees, volunteers, successors and assigns, from and against
all damages, liabilities, claims and expenses, including reasonable attorneys' fees, arising from or
Ordinance No. 2429 N.C.S. Page 20
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 Property, except to the extent that such damage, liability, claim or expense is the result
of the negligence, gross negligence, or intentional misconduct of DISTRICT (it being the intent
of this provision to limit GRANTOR's indemnity to the proportionate part of DISTRICT's
damage, liability, claim or expense for which GRANTOR is responsible); and (ii)the obligations
specified in Section 7; and (iii) any approvals given under Section 6. In the event of any claim,
demand, or legal complaint against DISTRICT, the right to the indemnification provided by this
Section 8.1 shall not apply to any cost, expense, penalty, settlement payment, or judgment,
including attorneys' fees, incurred prior to DISTRICT's written notice of such claim, demand,or
legal complaint to GRANTOR, unless GRANTOR has acquired knowledge of the matter by
other means, nor to any costs, expenses,or settlement payment, including attorneys' fees,
incurred subsequent to that notice unless such cost, expense, or settlement payment shall be
approved in writing by GRANTOR, which approval shall not be unreasonably withheld.
8.2 DISTRICT'S Indemnity. DISTRICT shall hold harmless, indemnify, and defend
GRANTOR, its heirs, devisees, successors and assigns, from and against all damages, liabilities,
claims and expenses, including reasonable attorneys' fees, arising from or in any way connected
with injury to or the death of any person, or physical damage to any property, resulting from any
act, omission, condition, or other matter related to or occurring on or about the Property and
attributable to DISTRICT, except to the extent that such damage, liability, claim or expense is
the result of the negligence, gross negligence, or intentional misconduct of GRANTOR (it being
the intent of this provision to limit DISTRICT's indemnity to the proportionate part of
GRANTOR's damage, liability, claim or expense for which DISTRICT is responsible). In the
event of any claim, demand, or legal complaint against GRANTOR, the right to the
indemnification provided by this Section 8.2 shall not apply to any cost, expense, penalty,
settlement payment, or judgment, including attorneys' fees, incurred prior to GRANTOR's
written notice of such claim, demand, or legal complaint to DISTRICT, nor to any costs,
expenses, or settlement payment, including attorneys' fees, incurred subsequent to that notice
unless such cost, expense, or settlement payment shall be approved in writing by DISTRICT,
which approval shall not be unreasonably withheld. DISTRICT hereby also agrees to hold
harmless, indemnify and defend GRANTOR from and against all damages, liabilities, claims and
expenses, including attorneys' fees, asserted against GRANTOR by any officer, agent, employee,
or volunteer of DISTRICT, for personal injury andlor property damage arising out of any
inspection or visit to the Property by any such officer, agent, employee or volunteer on behalf of
DISTRICT, except to the extent that such injury is attributable to the negligence, intentional act
or willful misconduct of GRANTOR.
9. Baseline Documentation for Enforcement. In order to establish the present condition
of the Property, DISTRICT has prepared a Baseline Documentation Report which will be
maintained on file with DISTRICT and which is intended to serve as an objective information
baseline for monitoring compliance with the terms ofthis Easement. A copy of the Baseline
Documentation Report has been reviewed and approved by GRANTOR. The parties agree that
the Baseline Documentation Report provides an accurate representation of the Property at the
time of the execution of this Easement. The Baseline Report will be supplemented through
periodic monitoring reports as the DISTRICT performs its regular monitoring of the Property.
Ordinance No. 2429 N.C.S. Page 21
10. Remedies for Breach.
10.1 DISTRICT's Remedies. In the event of a violation or threatened violation by
GRANTOR of any term, condition or restriction contained in this Easement, DISTRICT may,
following notice to GRANTOR, institute a suit to enjoin and/or recover damages for such
violation and/or to require the restoration of the Property to the condition that existed prior to
such violation. The DISTRICT's notice to GRANTOR shall contain a general description of the
condition claimed by DISTRICT to be a violation and shall contain a reasonable and specific
cure period by which the violation is to cease and the Property is to be restored to the condition
that existed prior to the violation. The notice shall be provided in accordance with Section 19. If
DISTRICT reasonably detennines that circumstances require immediate action to prevent or
mitigate significant damage to the Conservation Values protected by this Easement, DISTRICT
(a) may pursue any and all remedies available under law without waiting for the cure period to
expire, and (b) shall have the right, upon the giving of 24 hours' notice, to enter the Property for
the purpose of assessing damage or threat to the Conservation Values protected by this Easement
and determining the nature of curative or mitigation actions that should be taken.
Notwithstanding the foregoing, should DISTRICT's General Manager have a reasonable belief
that GRANTOR is in breach of this Easement, DISTRICT shall have the right at any time, upon
twenty-four hours' prior notice to GRANTOR to enter upon the Property for the purpose of
determining whether such breach has occurred. The rights of entry provided by this Section 4.2
shall extend to the officers, agents, consultants, and volunteers of DISTRICT. Notwithstanding
any reasonable belief of DISTRICT that a breach of this.Easement is occurring, prior to any
entry by DISTRICT into residential dwelling units on the Property for purposes of inspection,
DISTRICT shall provide at least forty-eight (48)hours prior notice to GRANTOR during normal
business hours of GRANTOR of DISTRICT's intent to enter into such dwelling units, absent an
emergency requiring immediate action or other exception contained in California Civil Code
Section 1954 or any successor statute then in effect relating to notification of tenants inhabiting
and/or leasing residential structures ("Section 1954"). This additional time is to allow
GRANTOR to comply with Section 1954. DISTRICT shall limit its inspection of inhabited or
leased dwelling units on the Property to inspection during normal business hours except as
otherwise provided in Section 1954. DISTRICT's rights under this Section 10 shall apply
equally in the event of either actual or threatened violations of the terms of this Easement.
GRANTOR agrees that DISTRICT's remedies at law for any violation of the terms of this
Easement are inadequate and that DISTRICT shall be entitled to injunctive relief; both
prohibitive and mandatory and including specific performance,without the necessity of proving
either actual damages or the inadequacy of otherwise available legal remedies. Nothing in this
Section 10 shall preclude DISTRICT from seeking such other relief, including damages, to
which DISTRICT may be entitled.
10.2 DISTRICT's Discretion. Enforcement of the teens of this Easement shall be at
the sole discretion of DISTRICT, and any forbearance by DISTRICT to exercise its rights under
this Easement in the event of any violation or threatened violation of any term of this.Easement
shall not be deemed or construed to be a waiver by DISTRICT of such term or of any subsequent
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violation or threatened violation of the same or any other term of this Easement. Any failure by
DISTRICT to act shall not be deemed a waiver or forfeiture of DISTRICT's right to enforce any
terms or conditions of this Easement in the future.
Ordinance No. 2429 N.C.S. Page 22
10.3 Liquidated Damages. Inasmuch as the actual damages that would result from
the loss or deprivation of the Conservation Values of the Property caused by a violation by
GRANTOR of the terms of this Easement are uncertain and would be impractical or extremely
difficult to measure, GRANTOR and DISTRICT agree that the damages allowed by Civil Code
section 8153(c) shall be measured as follows:
a) For an improvement prohibited by this Easement, an amount equal to the
product of(i) the market value of the improvement, (ii) the length of time that the
improvement exists on the Property (in terms of years or portion thereof) after notice of
violation has been given, and (iii) the then current annual interest rate for post judgment
interest; and
b) For an activity or change in use prohibited by this Easement, whether or not it
involves an improvement, an amount equal to any economic gain realized by GRANTOR
because of the activity or change in use; and
c) For an activity or change in use prohibited by this Easement, whether or not it
involves an improvement and where there is no measurable economic gain realized by
GRANTOR, the product of(i) the cost of restoration, as set forth in a written estimate by
a qualified person selected by DISTRICT, (ii) the length of time that the prohibited
activity or use continues (in terms of years or portion thereof) after notice of the violation
has been given, and (iii) the then current annual interest rate for post judgment interest.
10.4 GRANTOR's Compliance. If DISTRICT, in the notice to GRANTOR, demands
that GRANTOR remove an improvement, discontinue a use or both and claims the damages
allowed by Civil Code section 815.7(c), then GRANTOR may mitigate damages by fully
complying with DISTRICT's notice within the cure period provided therein. If GRANTOR so
complies,then in the event of litigation arising out of the notice, brought either by GRANTOR or
by DISTRICT, if GRANTOR prevails, then GRANTOR shall be entitled to economic damages,
if any, resulting from its compliance with DISTRICT's notice. Neither DISTRICT nor
GRANTOR shall be entitled to damages where DISTRICT has not claimed damages in its
notice.
10.5 Remedies Nonexclusive. The remedies set forth in this Section 10.5 are in
addition to, and are not intended to displace, any other remedy available to either party as
provided by this Easement, Civil Code sections 815 et seq. or any other applicable local, state or
federal law.
11. Acts Beyond GRANTOR's Control. Nothing contained in this Easement shall be
construed to entitle DISTRICT to bring any action against GRANTOR for any injury to or
change in the Property resulting from causes beyond GRANTOR's control, including, but not
limited to, fire, flood, storm, and earth movement, or a tortious or criminal act of a third party
which GRANTOR could not reasonably have prevented, or from any prudent action taken by
GRANTOR under emergency conditions to prevent, abate, or mitigate significant injury to the
Property resulting from such causes so long as such action,to the extent that GRANTOR has
control, is designed and carried out in such a way as to further the Conservvation Purpose of this
Easement.
Ordinance No. 2429 N.C.S. Page 23
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12. Arbitration. If a dispute arises between the parties concerning the consistency of any
activity or use, or any proposed activity or use, with the terms, conditions or Conservation
Purpose of this Easement, or any other matter arising under or in connection with this Easement
or its interpretation, either party, with the written consent of the other, may refer the dispute to
arbitration by a request made in writing upon the other. Provided that GRANTOR agrees not to
proceed with any activity or use that is the subject of the dispute pending resolution of the
dispute, the parties shall select a single arbitrator to hear the matter. If the parties are unable to
agree on the selection of a single arbitrator, then each party shall name one arbitrator and the two
arbitrators thus selected shall select a third arbitrator who shall be a retired United States District
Court or California Superior Court judge; provided, however, if either party fails to select an
arbitrator within fourteen (14) days of delivery of the request for arbitration, or if the two
arbitrators fail to select a third arbitrator within fourteen (14) days after the appointment of the
second arbitrator, then in each such instance, a proper court, on petition of any party, shall
appoint the second or third arbitrator or both, as the case may be, in accordance with California
Code of Civil Procedure sections 1280 et seq., or any successor statutes then in effect. The
arbitration shall he conducted in accordance with said statute, including, without limitation, the
provisions of Section 1283.05 of the Code of Civil Procedure which are incorporated into, made
a part of, and made applicableto any arbitration pursuant to this Section. The Conservation
Purpose of this Easement, the terms and conditions of this Easement, and the applicable laws of
the State of California shall be the bases for determination and resolution, and a judgment of the
arbitration award may be entered in any court having jurisdiction thereof. The prevailing party
shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and
for all its costs and expenses related to such arbitration, including, but not limited to, the fees and
expenses of the arbitrators, but excluding attorneys' fees, which sum shall be determined by the
arbitrators and any court of competent jurisdiction that may be called upon to enforce.or review
the award.
13. Condemnation.
13.1 Condemnation. If all or any part of the Property is taken by exercise of the
power of eminent domain or acquired by purchase in lieu of condemnation; whether by public,
corporate, or other authority, so as to terminate this Easement in whole or in part, either
GRANTOR or DISTRICT(or both, on such conditions as they may agree)may commence
appropriate actions to recover the full value of the Property (or portion thereof) subject to the
condemnation or in-lieu purchase and all direct or incidental damages resulting therefrom. Any
expense incurred by GRANTOR or DISTRICT in any such action shall first be reimbursed out
of the recovered proceeds; the remainder of such proceeds shall be divided between GRANTOR
and DISTRICT in proportion to their interests in the Property, as established by Section 13.2.
13.2 Property Interest and Fair Market Value. This Easement constitutes a real
property interest immediately vested in DISTRICT. For the purpose of this Section 13, the
parties stipulate that, in the event of condemnation of the Property or any portion thereof, the fair
market value of the Property for purposes of just compensation shall be determined as though
this Easement did not exist. GRANTOR and DISTRICT shall share the compensation in
proportion to their interests in the condemned Property as agreed upon by them in writing or, in
the absence of such an agreement, as ordered by the court in the action recovering the proceeds.
In the apportionment of the proceeds from any eminent domain proceeding, an adjustment shall
be made in GRANTOR's favor for any increase in value attributable to improvements made on
Ordinance No. 2429 N.C.S. Page 24
the Property after the date of this Easement, provided that such improvements were not made or
funded by DISTRICT and further provided that such improvements do not constitute a breach of
this Easement.
PART FOUR: MISCELLANEOUS
14. Approvals. Whenever in this Easement the consent or approval of one party is required
for an act of the other party, such consent or approval shall not be unreasonably withheld,
conditioned or delayed.
15. Interpretation and Construction. To the extent that this Easement may be uncertain or
ambiguous such that it requires interpretation or construction, then it shall be interpreted and
construed in such a way that best promotes the Conservation Purpose of this Easement.
16. Easement to Bind Successors. The Easement herein granted shall be a burden upon and
shall continue as a restrictive covenant and equitable servitude running in perpetuity with the
Property and shall bind GRANTOR, GRANTOR's heirs, personal representatives, lessees,
executors, successors, including but not limited to purchasers at tax sales, assigns, and all
persons claiming under them forever. The parties intend that this Easement shall benefit and
burden, as the case may be, their respective successors, assigns, heirs, executors, administrators,
agents, officers, employees, and all other persons claiming by or through them pursuant to the
common and statutory law of the State of California. Further, the parties agree and intend that
this Easement creates an easement encompassed within the meaning of the phrase "easements
constituting servitudes upon or burdens to the property," as that phrase is used in California
Revenue & Taxation Code section 3712(d), or any successor statute then in effect, such that a
purchaser at a tax sale will take title to the Property subject to this Easement.
17. Subsequent Deeds and Leases. GRANTOR agrees that a clear reference to this
Easement will be made in any subsequent deed, or other legal instrument, by means of which any
interest in the Property (including, but not limited to, a leasehold interest) is conveyed and that
GRANTOR will attach a copy of this Easement to any such instrument. GRANTOR further
agrees to give written notice to DISTRICT of the conveyance of any interest in the Property at
least ten (10) days prior to any such conveyance. These obligations of GRANTOR shall not be
construed as a waiver or relinquishment by DISTRICT of rights created in favor of DISTRICT
by Section 16 of this Easement, and the failure of GRANTOR to perform any act required by this
Section 17 shall not impair the validity of this Easement or limit its enforceability in any way.
18. Warranty of Ownership. GRANTOR warrants that it is the owner in fee simple of the
Property, and that on the date it executed this Easement the Property is not subject to any liens or
deeds of trust.
19. Notices.
19.1 Method of Delivery. Except as otherwise expressly provided herein, all notices,
(including requests, demands, approvals or communications) under this Easement shall be in
writing and either served personally or sent by first class mail, postage prepaid, private courier or
delivery service or telecopy addressed as follows:
Ordinance No. 2429 N.C.S. Page 25
•
To GRANTOR: City of Petaluma
Attn: City Manager
11 English Street
Petaluma, CA 94952
To DISTRICT: General Manager
Sonoma County Agricultural Preservation and Open Space District
747 Mendocino Avenue, Suite 100
Santa Rosa, CA 95401
Or to such other address as such party from time to time may designate by written notice
pursuant to this Section 19.
19.2 Effective Date of Notice. Notice shall be deemed given for all purposes as
follows:
a) When personally delivered to the recipient, notice is effective on delivery.
b) When mailed first class postage prepaid to the last address designated by the
recipient pursuant to Section 19.1, notice is effective one business day following the date
shown on the postmark of the envelope in which such notice is mailed or, in the event the
postmark is not shown or available, then one business day following the date of mailing.
A written declaration of mailing executed under penalty of perjury by the GRANTOR or
DISTRICT or an officer or employee thereof shall be sufficient to constitute proof of
mailing.
c) When mailed by certified mail with return receipt requested, notice is effective
on receipt as confirmed by the return receipt.
d) When delivered by overnight delivery with charges prepaid or charged to the
sender's account, notice is effective on delivery as confirmed by the delivery service.
e) When sent by telex or fax to the last telex or fax number of the recipient
known to the party giving notice, notice is effective on receipt as long as (i) a duplicate
copy of the notice is promptly given by first-class or certified mail or by overnight
delivery or(ii) the receiving party delivers a written confirmation of receipt. Subject to
the foregoing requirements, any notice given by telex or fax shall be considered to have
been received on the next business day if it is received after 5 p.m. (recipient's time) or
on a non-business day.
19.3 Refused or Undeliverable Notices. Any correctly addressed notice that is
refused or undeliverable because of an act or omission of the party to be notified shall be
considered to be effective as of the first date that the notice was refused or considered
undeliverable by the postal authorities, messenger, or overnight delivery service.
20. Amendment. If circumstances arise under which an amendment or modification of this
Easement would be appropriate, GRANTOR and DISTRICT shall be free to jointly amend this
•
Ordinance No. 2429 N.C.S. Page 26
Easement,provided that any amendment shall be consistent with the Conservation Purpose of
this Easement, shall ensure protection of the Conservation Values of the Property, shall not affect
the Easement's perpetual duration and shall be consistent with Public Resources Code section
5540 and any successor statute then in effect. Any such amendment shall be in writing, executed
by GRANTOR and DISTRICT, and recorded in the Office of the Sonoma County Recorder.
21. No Forfeiture. Nothing contained in this Easement shall result in a forfeiture or
reversion of GRANTOR's.title in any respect.
22. Termination of Rights and Obligations. A party's rights and obligations under this
Easement shall terminate upon transfer of the party's interest in the Property, except that liability
for acts or omissions occurring prior to transfer shall survive transfer.
23. Enforceable Restriction. This Easement and each and every term contained herein is
intended for the benefit of the public and constitutes an enforceable restriction pursuant to the
provisions of Article XII1, section 8 of the California Constitution, California Public Resources
Code section 5540, and California Revenue and Taxation Code section 421 et seq., or any
successor constitutional provisions or statutes then in effect.
24. Applicable Law and Forum. This Easement shall be construed and interpreted
according to the substantive law of California, excluding the law of conflicts. Any action to
enforce the provisions of this Easement or for the breach thereof shall be brought and tried in the
County of Sonoma.
25. Pronoun Number and Gender. Whenever used herein, unless the provision or context
otherwise requires, the singular number shall include the plural and the plural the singular, and
the masculine gender shall include the feminine and neuter.
26. GRANTOR and DISTRICT. Wherever used herein, the terms GRANTOR and
DISTRICT, and any pronouns used in place thereof, shall mean and include the above-named
GRANTOR and its heirs, successors, and assigns, including any persons claiming under them,
and the above-named DISTRICT and its successors and assigns, respectively.
27. DISTRICT's General Manager. Wherever used herein, the term DISTRICT's General
Manager, and any pronoun used in place thereof, shall mean and include the General Manager of
DISTRICT and his duly authorized representatives.
28. Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to this Easement and supersedes all prior discussions, negotiations, understandings, or
agreements relating to this Easement, all of which are merged herein. No alteration or variation
of this instrument shall be valid or binding unless contained in a written amendment prepared,
executed and recorded in accordance with Section 20.
•
29. Severability. In the event any provision of this Easement is determined by the
appropriate court to be void and unenforceable, all remaining terms and conditions shall remain
valid and binding. If the application of any provision of this Easement is found to be invalid or
unenforceable as to any particular person or circumstance, the application of such provisions to
Ordinance No. 2429 N.C.S. Page 27
persons or circumstances, other than those as to which it is found to be invalid, shall not be
affected thereby.
30. Estoppel Certificates. DISTRICT shall, at any time during the existence of this
Easement, upon not less than thirty (30) days' prior written notice from GRANTOR, execute and
deliver to GRANTOR a statement in writing certifying that this Easement is unmodified and in
full force and effect (or, if modified, stating the date of execution and date of recording of the
respective amendment) and acknowledging that there is not, to DISTRICT's knowledge, any
default by GRANTOR hereunder, or, if DISTRICT alleges a default by GRANTOR, specifying
such default. DISTRICT's obligation to deliver the statement of certification is conditioned on
GRANTOR's reimbursing DISTRICT for all costs and expenses reasonably and necessarily
incurred in its preparation as determined by DISTRICT's General Manager.
31. No Liens, Encumbrances, or Conveyances. GRANTOR warrants that after it has
executed this Easement, it will not record any lien, encumbrance, or otherwise convey any right,
title, or interest in and to the Property until such time as this Easement.has been accepted and
recorded by DISTRICT.
•
32. Effective Date. This Easement shall be effective as of the date of its acceptance by
DISTRICT pursuant to California Public Resources Code sections 5500 et seq.
IN WITNESS WHEREOF, GRANTOR and DISTRICT have executed this Easement this
day of , 2012.
GRANTOR:
CITY�_ETAL
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
( ;
City Attoi ey
Finance Director
Ordinance No. 2429 N.C.S. Page 28
Department Directgr
Risk Manager `
DISTRICT:
SONOMA COUNTY AGRICULTURAL
PRESERVATION AND OPEN SPACE
DISTRICT
By:
President of the Board of Directors
AT PEST:
Clerk of the Board of Directors
NOTE: ATTACH ACKNOWLEDGMENTS
Ordinance No. 2429 N.C.S. Page 29
ORDER NO. : 0812007365-JJ
EXHIBIT A
The land referred to is situated in the unincorporated area of the County of Sonoma, State of
California, and is described as follows:
Beginning at the Southeasterly corner of the Paula Tract, said point of beginning being in the
middle of the Paula Lane so-called; thence along the middle of said lane, the Easterly boundary
of said Tract, North 13 3/4 degrees East, 8.93 chains to the middle of a lane thence leaving the
first, and along the middle of the last mentioned lane, North 75° 08' West, 12.58 chains; thence
leaving said land, South 15° 20' West, 8.75 chains to the Southerly boundary of the aforesaid
Paula Tract; and thence along said boundary, South 74° 13' East, 12.82 chains to the place of
beginning.
Saving and EXCEPTING THEREFROM: that certain Forty Foot Strip or land described in the Deed
from John Pauli and Mary Pauli, his wife, to Ellen Louise Fergusson, dated October 19, 1895,
and recorded October 26, 1895 in Liber 162 of Deeds, Page 352, Sonoma County Records.
ALSO EXCEPTING THEREFROM all that portion lying Southerly of the Northerly line of the Map
of Fulton Tract filed March 11, 1893 in Book 10 of Maps, Page 1, in the Sonoma County
Recorders Office.
APN: 019-080-009 and 019-080-010
Ordinance No. 2429 N.C.S. Page 30