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c No Recording Fee Per Gov't Code§ 6103

Recording Requested By:

SACRAMENTO VALLEY OPEN SPACE

CONSERVANCY

When recorded, mail to:

SACRAMENTO VALLEY OPEN SPACE

CONSERVANCY

P.O. Box 163551 Sacramento, CA 95816 llllllllll Ill 111111111111111111111111111111111111 Sacramento County Recording .

Mark Norri~ Clerk/Recorder

BOOK 20VJ 11105 PAGE 0610

Monday, NOV 0!5, 2001 10:!59:22 AM rt1 Pd $8.88 Nb•-009992s224

DLE/07/1-33

Parcel Nos.: 226-0050-009, 226-0050-010, 226-0050-012, 226-0050-014, 226-0050- 016, 226-0050-018, 226-0050-019, 226- 0050-020, 226-0050-021, 226-0050-022, 226-0050-026

GRANT DEED OF .

PERPETUAL CONSERVATION EASEMENT

THIS GRANT DEED OF PERPETUAL CONSERV ~ASEMENT ("Conservation Easement" or "Easement") is made this /l{-ti. day of. · 2001, by the City of Sacramento, a charter municipal corporation ("Grantor"), in favor of the Sacramento Valley Open Space Conservancy ("SVOSC"), a California nonprofit corporation ("Grantee") (collectively "Parties"), its· successors and assigns.

RECITALS

A. Grantor is a charter municipal corporation and is the sole owner in fee· simple of certain real property located in the County of Sacramento, State of California ("Property" or "Hansen Ranch"), which is more particularly depicted on the map attached to this Conservation Easement as Exhibit AcE and incorporated herein by this reference, and described in Exhibit BcE• which is attached hereto and incorporated herein by this reference.

B. Grantor acquired the Property under deeds requiring that it hold the Proyerty in perpetuity for the people of Sacramento for such public recreational, cultural or other public purposes as its governing body shall from time to time determine, and the grant of this Easement is in furtherance of such purposes.

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AGREEMENTNO. 2001-141

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RFP 2026-003

Exhibit D f 1- "r .• •

C. Grantee is a nonprofit 50l(c)(3) corporation qualified to do business in the State of California and is authorized to hold conservation easements for the conservation purposes identified in California Civil Code section 815 et seq.

D. Simultaneously with the execution of this Easement, the City of Sacramento is granting to the Sacramento Area Flood Control Agency ("SAFCA") a perpetual easement for flood control purposes ("Flood Control Easement") on the Property. The Flood Control Easement grants SAFCA rights and privileges including the right to construct, reconstruct, repair and maintain the Dry Creek North Levee and its appurtenances provided such activities are undertaken only in the North Levee Area depicted and described in Exhibits AFcE and BFcE to the Flood Control Easement. The Flood Control Easement also grants SAFCA the right to clear and remove natural or artificial obstructions, improvements, trees and vegetation found to be detrimental to the flood water conveyance capacity of the Property. The exercise of its rights under the Flood Control Easement shall comply fully with the mandatory procedures set forth in the Memorandum of Understanding ("MOU"); the MOU is described more fully in Paragraph M, below. The Flood Control Easement is attached to the MOU as Exhibit BMov·

E. Since 1955, a strip of land along the southern portion of the Property has been encumbered by a recorded indenture ("1955 Indenture"), which granted the Sacramento and San Joaquin Drainage District certain rights including, but not limited to, the right to construct, repair, and maintain the Robla Creek South Levee (referred to in the 1955 Indenture as the south levee of Linda Creek) and the right to clear and maintain the Robla Creek channel (referred to in the 1955 Indenture as Linda Creek). The 1955 Indenture, _which was recorded in the official records of Sacramento County at Book 2837, Page 401, is attached to the Flood Control Easement as Exhibit CFcE· The American River Flood Control District has, since 1958, exercised the rights granted by the 1955 Indenture. The rights identified in the 1955 Indenture are not affected by this Easement. The exercise of the rights identified in the 1955 Indenture must, however, conform to all applicable federal and state laws, including, but not limited to, the Endangered Species Act, 16 U.S.C. § 1531 et seq., as amended ("ESA").

F. On Aprill, 1994, the United States Army Corps of Engineers ("Corps") issued to SAFCA Permit No. 199200719 for its North Area Local Project ("NALP"), a flood control project in Sacramento, California.· On December 8, 1998, the United States

· Fish and Wildlife Service ("Service") issued a Biological Opinion and Incidental Take Statement (Reference No. l-l-98"F-0109) ("1998 Biological Opinion") describing the impacts of the construction of the NALP on the vernal pool fairy shrimp (Branchinecta /ynchi) and vernal pool tadpole shrimp (Lepidurus packardi), crustaceans that have been federally listed as threatened and endangered respectively. The 1998 Biological Opinion

.) also described the impacts ofNALP construction on the valley elderberry longhorn beetle ("VELB") (Desmocerus californicus dimophus), a federally listed threatened species, and the giant garter snake (Thamnophis gigas), a federally listed threatened species.

G. On March 5, 2001, the Service issued a revised Biological Opinion and Incidental Take Statement (Reference No. 1-1-01-F-0031) ("2001 Biological Opinion") containing mandatory terms and conditions with which SAFCA must comply in order for the NALP to be exempt from the prohibitions of section 9 of the ESA. The 2001 Biological Opinion amends the 1998 Biological Opinion as indicated. On or about May 1, 2001, the Corps amended its Permit No. 199200719 for SAFCA's NALP to incorporate the terms of the 2001 Biological Opinion.

H. SAFCA has complied with its obligation to create vernal pool and VELB habitat as described in the 2001 Biological Opinion by purchasing, at a Service-approved conservation bank (Conservation Resources, LLC), credits for the creation of 1.87 acres of vernal pool habitat and for the planting of 1, 184 elderberry cuttings or seedlings and 1, 184 associated native plant cuttings, saplings or seedlings. SAFCA will comply with its obligation to preserve existing vernal pool habitat as described in the 2001 Biological Opinion by preserving 3.74 acres of vernal pools at Hansen Ranch.

I. One of the mandatory terms and conditions of the 2001 Biological Opinion provides thiit if SAFCA preserves vernal pool habitat on the Property as. compensation for the impacts ofNALP construction, it shall acquire from the City of Sacramento a perpetual conservation easement over portions of the Property, which conservation.

easement shall be held by a third party acceptable to the Service. The 2001 Biological Opinion also mandates that SAFCA retain a Service-approved Preserve Manager, who will be responsible for the preservation, monitoring, and maintenance of vernal pool habitat on the Property, through implementation of a Service-approved Conservation, Monitoring and Management Plan ("CMMP"). This Conservation Easement complies with the 2001 Biological Opinion by limiting permissible uses on most of the Property, including all areas of the Property where SAFCA wiRpreserve vernal pool habitat (the "Conservation Area"), which area is more particularly depicted and described in Exhibits AcE and BCE attached hereto.

J. The 2001 Biological Opinion does not describe any measures to minimize the impact of the construction of the NALP on the giant garter snake because the Service found that reasonable and prudent measures specified in a Biological Opinion and Incidental Take Statement dated March 11, 1994 (Reference No.1-1-94-F-13) had been implemented, and no additional measures would be necessary, provided no additional take was to occur.· r

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K. The Property possesses and may in the future possess additional significant biotic, ecological, aesthetic, educational, scientific, and habitat values (collectively "Conservation Values") of great importance to the Grantor, Grantee, people of Sacramento and people ofC.alifomia. Conservation Values include the vernal pools to be preserved on the Property as potential habitat for vernal pool fairy shrimp and vernal pool tadpole shrimp in order to comply with the 2001 Biological Opinion. Conservation Values also may include habitat and species created, restored ancf/or preserved in the .

Conservation Area above and beyond the vernal pools preserved in order to comply with the 2001 Biological Opinion ("Supplemental Habitat").

L. The Service has agreed to undertake an evaluation of the Conservation Area's potential as a site for Supplemental Habitat. In the event that the Service determines that the Conservation Area can provide Supplemental Habitat as mitigation for future projects, the Service .and SAFCA shall work to develop a Mitigation Banking Agreement or similar Service-approved agreement for the Property.

M. _Simultaneously with the execution of this Conservation Easement, SAFCA, the City of Sacramento, the Service, and the SVOSC are entering into an MOU that identifies the responsibilities of SAFCA, the City of Sacramento, the Service, and the S V OSC, and provides a common understanding of actions that will and may be undertaken to create, preserve, restore and maintain habitat on the Property to ensure compatible use of the Property for preservation of such habitat and for flood control, recreation, and grazing. The MOU identifies the responsibilities of the Parties, SAFCA, and the Service with respect to the above-described actions.

N. SAFCA has prepared the Hansen Ranch Range Management Plan ("Rarige Management Plan") for the Property and shall secure Service approval for that plan.

SAFCA 's obligations relating to the Range Management Plan and grazing on the Property are described in detail in the MOU.

0. Gtantor will in the future prepare and secure Service approval for a Recreation Plan for the Property. Grantor's obligations relating to the Recreation Plan · and recreation on the Property are described in detail in the MOU.

P. Grantor intends for this Conservation Easement to ensure compatible use of the Property for flood control, for the creation, preservation, restoration, and maintenance of habitat, for recreation, and for grazing.

Q. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and to protect in perpetuity the Conservation Values identified herein in r . .

accordance with the tenns of this Conservation Easement, the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat.

R. The Parties intend for SAFCA to be a third-party beneficiary with rights under this Conservation Easement as specified below. The rights granted to SAFCA by this Conservation Easement will enable it to carry out its obligation to preserve vernal pool habitat as set forth in the 2001 Biological Opinion and to pursue the possibility of using the Conservation Area as a site for Supplemental Habitat.

S. The City of Sacramento and SAFCA have agreed upon the payments to be made by SAFCA to the City of Sacramento for the purchase of this Easement. The details of SAFCA 's responsibilities to make payments to the City of Sacramento are described in a separate Payment Agreement between SAFCA and the City.

T. This Conservation ~asement has been approved by the Service.

U. There are two pole line easements along the eastern boundary of the Property ("Pole Line Easements"). The Pole Line Easements are recorded in the official records of Sacramento County at Book 2806, Page 374 and at Book 604, Page 133. The rights identified in the Pole Line Easements are not affected by this easement.

COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS

In consideration of the above recitals (which the Parties agree are true and correct) and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the Jaws of California, and in particular California Civil Code section 815 et seq., and any amendments or successor provisions thereto, Grantor hereby voluntarily grants and conveys to Grantee for valuable consideration, a perpetual conservation easement over the Conservation Area of the nature and character and to the extent hereinafter set forth.

1. PURPOSE

It is the Purpose of this Conservation Easement to ensure that the Conservation Area will be retained, protected, and preserved forever in a predominantly open-space condition and to prevent any use of the Conservation Area that will impair or interfere with the Conservation Values. Grantor intends that this Conservation Ea~ement will ensure that the Conservation Area will be used only for such activities as are consistent with this Purpose, which activities include maintenance of the Property's flood

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water conveyance capacity, creation, preservation, restoration, and maintenance of habitat, recreation, and grazing. ·

Grantor, Grantee, the Service and SAFCA are simultaneously with the ·execution of this Conservation Easement entering into the MOU to ensure compatible use of the Property for flood control, fot habitat creation, preservation, restoration, and maintenance, for recreation, and for grazing. As the MOU explains in detail, the Range Management Plan and/or Recreation Plan may be amended in the future, subject to the approval of the Service, in order to further restrict grazing and/or recreation on the Property to facilitate the creation, preservation, restoration, and/or maintenance of Supplemental Habitat in the Conservation Area.

This Conservation Easement shall apply only to the Conservation Area as depicted in Exhibit AcE and described in Exhibit Be£• and shall not apply to the areas expressly excluded in Exhibits AcE and BcE (the "Excluded Area"). Nothing in this Conservation Easement shall limit in any way the rights granted by the 1955 Indenture, the Flood Control Easement or the Pole Line Easements. Likewise, nothing in this Conservation Easement shall limit in any way the exercise by persons other than Grantor, its officers, employees, assigns, agents and potential future lessees of rights relating to minerals, oil, gas, and other hydrocarbon substances that may be situated in and under the Conservation Area, which rights the prior owners of the Property reserved to themselves in the deeds by which they granted to the City of Sacramento their interest in the Property ("Hansen Ranch Mineral Rights"). Any exercise of the Hansen Ranch Mineral Rights must, however, conform to all applicable federal, state and local laws, including, but not limited to, the ESA. In the event Grantor, its officers, employees, assigns, agents and/or lessees obtain any interest in the Hansen Ranch Mineral Rights, their exercise of those

. rights shall be subject to the restrictions described in paragraph 3, below.

2. RIGHTS AND OBLIGATIONS OF GRANTEE

To accomplish the Purpose of this Conservation Easement, the following rights and obligations are conveyed to Grantee by this Conservation Easement:

a. To protect Conservation Values in a manner consistent with the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat;

b. To enter upon and have access to the Conservation Area to monitor Grantor's compliance with and otherwise enforce the terms of this Conservation Easement and to fulfill any and all duties identified in the CMMP, the MOU, the 2001

Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat, provided that such entry shall not unreasonably impair or interfere with Grantor's use and quiet enjoyment of its property or unreasonably disturb natural resources on the Property; and

c. To prevenf any activity on or use of the Conservation Area that is inconsistent with the terms of this Conservation Easement, the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat, and to require the restoration of such areas or features of the Conservation Area that may be damaged by any such activity or use.

· 3. PROHIBITED USES

Any activity on or use of the Conservation Area inconsistent with the Purpose of this Conservation Easement as stated in paragraph 1, above, is prohibited.

Without limiting the generality of the foregoing, Grantor, its officers, employees, assigns, agents, and potential future lessees are expressly prohibited from engaging in the following in the Conservation Area:

a. Leveling, grading, landscaping, cultivating or otherwise altering the Conservation Area's existing topography for any purpose, including the exploration for,.

or development of, mineral resources, except that the existing topography of the Conservation Area may be altered:

(i) as required for the creation, preservation, restoration, and/or maintenance of habitat consistent with the CMMP, the MOU, the 2001

. Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat,

(ii) as required for the creation and maintenance of recreational amenities, including, but not limited to interpretive trails, consistent with the Service-approved Recreation Plan,

(iii) as required for grazing consistent with the Service-approved Range Management Plan, and

(iv) as required to clear and remove natural or artificial obstructions, improvements, trees and.vegetation found to be detrimental to the flood water conveyance capacity of the Property, provided that the person or

·7 entity undertaking such activities complies with mandatory procedures set forth in the MOU;

b. Placement of new structures in the Conservation Area, including buildings and billboards, except that the following structures are permitted:

(i) structures, including but not limited to interpretive signs, directional signs, and viewing structures that are placed in the Conservation Area consistent with the Service-approved Recreation Plan, and

(ii) signs that indicate the presence of protected habitat to minimize the possibility that such habitat will be disturbed inadvertently, provided such signs are consistenfwith the terms of the CMMP and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat;

c. Discharging, dumping, burning or storing of rubbish, garbage, grass clippings, dredge material, household chemicals, or any other wastes or fill material in the Conservation Area, except that noncontaminating material may be deposited:

(i) as required for the construction and maintenance of recreational amenities, including but not limited to interpretive trails, consistent with the Service-approved Recreation Plan, and

(ii) as required for the creation, preservation, restoration, and/or maintenance of habitat consistent with the CMMP, the MOU, the 2001 Biological Opinion, and any document governing.the creation, monitoring, management and/or maintenance of Supplemental Habitat;

d. Constructing any new road except as may be necessary to reconstruct, widen or realign Ascot Avenue along the Northeastern and/or Eastern portion of the· Property;

e. Constructing any new trail, except in a manner consistent with the Service-approved Recreation Plan;

f. Operating motor vehicies except:

(i) as required for grazillg consistent with the Service-approved Range Management Plan,

(ii) as required to create, preserve, restore, monitor, and/or maintain habitat consistent with the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat,

(iii) as required to create and maintain recreational amenities, including but not limited to interpretive trails, consistent with the Service-approved Recreation Plan, and

(iv) as required to clear and remove natural or artificial obstructions, improvements, trees and vegetation found to be detrimental to the flood water conveyance capacity of the Property, provided that the person or entity undertaking such activities complies with mandatory procedures set forth in the MOU;

g. Killing, removing, altering, or replacing existing native vegetation, except:

(i) as required to create, preserve, restore, and/or maintain habitat consistent with the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat,

(ii) as required to create and maintain recreational amenities, including but not limited to interpretive trails, consistent with the Service-approved Recreation Plan,

(iii) as required for grazing consistent with the Service-approved Range Management Plan, and

(iv) as required to clear and remove natural or artificial obstructions, improvements, trees and vegetation found to be detrimental to the flood water conveyance capacity of the Property, provided that the person or entity undertaking such activities complies with mandatory procedures set forth in the MOU;

h. Engaging in activities in the Conservation Area that may alter the on site hydrology of the Property and the associated watersheds, including but not limited to excessive pumping of groundwater, manipulation or blockage of natural drainages, and inappropriate water application or placement of stormwater drains, except that activities that may alter the hydrology of the Property and the associated watersheds are permitted:

(i) as required for the creation, preservation, restoration, and/or maintenance (including irrigation) of habitat consistent with the CMMP, the MOU, the 2001 Bio1ogical Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat,

(ii) as required to clear and remove natural or artificial obstructions, improvemel)ts, trees and vegetation found to be detrimental to the flood water conveyance capacity of the Property, provided that the person or entity undertaking such activities complies with mandatory procedures set forth in the MOU, and ·

(iii) as required to respond to emergencies, provided that the person or entity undertaking such activities complies with the procedures set forth in the MOU;

i. Conducting fire protection activities, including the creation of fire · breaks, that may adversely impact Conservation Values, except as required to respond to an imminent threat to public health or safety or to property, unless the following criteria are satisfied:

(i) the location of any fire break is approved by the Service, Grantee, SAFCA, and the fire department,

(ii) the fire break does not exceed the minimum required width, and

(iii) mowing (not discing) is used for fire break creation whenever possible;

j. Grazing of livestock, except in a manner consistent with the Service-approved Range Management Plan;

k. Using pesticides, herbicides, or rodenticides except with prior Service approval and in a manner consistent with the CMMP, the MOU, and any other Se~ice-approved document; and

I. Introducing exotic species, including plant and aquatic species, except that livestock may be grazed on the Property in a manner consistent with the Service-approved Range Management Plan.

4. GRANTOR'S DUTIES

Grantor shall,-by satisfying its obligations set forth in the.MOU and in any future Service-approved Recreation Plan, prevent unauthorized entry of the Conservation Area by persons whose activities may degrade or harm Conservation Values.

5. RIGHTS RESERVED BY GRANTOR

Grantor reserves to itself, and to its officers, employees, successors, assigns, agents and present and potential future lessees all rights accruing from its ownership of the Property including, but not limited to the right to engage in or permit or invite others to engage in all uses of the Conservation Area that are not inconsistent with this Easement, the CMMP, the MOU, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat.

Grantor agrees to notify and. obtain the written approval of Grantee, the Preserve Manager, SAFCA, and the Service prior to undertaking any activity which may have a materially adverse impact on Conservation Values. The purpose of this notice is to afford Grantee, the Preserve Manager, SAFCA, and the Service an adequate opportunity to monitor the activities in question to ensure that they are designed and carried out in a manner that is consistent with this Easement, the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, management and/or maintenance of Supplemental Habitat.

6. REMEDIES

If one of the Parties hereto concludes that the other Party is in violation of the terms of this Easement or that a violation is threatened, such Party shall give written notice to the other Party, the Preserve Manager, SAFCA, and the Service of such claimed violation and demand corrective action sufficient to cure such violation and, where the violation involves.injury to Conservation Values resulting from any use or activity inconsistent with the terms of this Easement, to restore the portion of the Conservation Area so injured. The Service and SAFCA may also provide such notice in which case the noti~e shall be given to both Parties, the Preserve Manager and, as appropriate, either the Service or SAFCA. In furtherance of the mutual commitments made in the MOU, the Service and/or SAFCA shalJ have the right to enforce the terms of this Easement as provided herein.

. If a Party fails to cure a claimed violation, whether because the Party disputes the claimed violation or for any other reason, within sixty (60) days after receipt of notice thereof from the other Party, the Service, or SAFCA (or, under circumstances · where the violation cannot reasonably be cured within a sixty (60) day period, fails to continue diligently to cure such violation until finally cured), the aggrieved Party, the Service, and/or SAFCA, may bring ·an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin any violation, ex parte as necessary, by temporary or permanent injunction, to recover any damages to which it may be entitled for violation of the terms of this Easement or injury to any Conservation Values protected by this Easement, including damages for the loss ofbiotic, ecological, aesthetic, educational, scientific or habitat values, and to require restoration of the Conservation Area to the condition that existed prior to any such injury. If circumstances require immediate action to prevent or mitigate significant damage to Conservation Values, Grantor, Grantee, the Service and/or SAFCA may pursue its remedies under this section without prior notice or without waiting for the period provided for the cure to expire.

Each Party's rights, and those of the Service and SAFCA, under this section apply equally in the event of either actual or threatened violations of the terms of this Easement, and each Party agrees that the other Party's remedies, and those of the Service and SAFCA, at bw for any violation of the terms of this Easement are inadequate and that such Party, the Service, and/or SAFCA shall be entitled to the injunctive relief described in this paragraph, both prohibitive and mandatory, in addition to such other relief to which such Party, the Service, and/or SAFCA may be entitled, including specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Each Party's remedies, and those of the Service and SAFCA, described in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter existing at Jaw or in equity.

Furthermore, the provisions of California Civil Code section 815 et seq., are incorporated herein by this reference and this Easement is made subject to all of the rights and remedies set forth therein. If at any time in the future Grantor or Grantee or any subsequent transferee or assignee uses or threatens to use such lands for purposes not in conformance with the provisions of this Easement, or releases or abandons this Easement in whole or in part, notwithstanding California Civil Code section 815 et seq., the Service and SAFCA shall have standing as interested Parties, and as third party beneficiaries in any proceeding affecting this Easement.

a. Costs of Enforcement Reasonable enforcement costs incurred as a result of a breach of the terms of this Easement, including without limitation, costs of suit and attorneys fees, and any costs of restoration necessitated by such breach shall be borne by the breaching Party. In the event of a successful action to enforce the terms of this Easement, costs of suit including, without limitation, attorneys fees, shall be borne by the unsuccessful Party; provided, however, that costs and attorneys' fees recoverable against the United States shall be governed by applicable federal law.

b. Grantee's Discretion. Enforcement of the terms of this Easement by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Easement shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Easement or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver.

c. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee, the Service or SAFCA to bring any action against Grantor for any injury to or change in the Conservation Area resulting from causes beyond Grantor's reasonable control, including, without limitation; fire, drought, flood, storm, and earth movement.

d. Waiver of Certain Defenses. Each Party hereby waives any defense against enforcement of this Easement based on !aches, estoppel, or prescription in view of the Party's limited and infrequent presence on the Property. ·

7. ACCESS TO PROPERTY

a. The Service and the Corps shall have the right to enter the Property twenty-four (24) hours after providing notice to Grantee and Grantor of their intent to enter and ifthe Service and/or the Corps determine that it is necessary to enter either the Dry Creek North Levee Area or the Rob la Creek South Levee Area, notice shall also be provided to the respective designee(s), such as the American River Flood Control District, of Grantor and Grantee.

b. Grantor may permit public access to the Conservation Area consistent with the Service-approved Recreation Plan.

• c. Grantee, SAFCA, and their designees shall have the right to enter upon and have access to the Conservation Area to monitor Grantor's compliance with and otheiwise enforce the terms of this Easement, provided that such entry shall not unreasonably impair or interfere \¥ith Grantor's use and quiet enjoyment of its property or umeasonably disturb natural resources on the Conservation Area .

d. SAFCA and its designees shall have the right to enter upon and have access to the Property in order to implement and/or comply with the CMMP, the MOU, the 2001 Biological Opinion, and any document governing the creation, monitoring, managemen(and/or maintenance of Supplemental Habitat. ·

e. SAFCA and its designees shall have the right to enter upon and have access to the Property to undertake any activity permitted by the Flood Control Easement, provided that such activity complies with the mandatory procedures set forth in the MOU.

f. Any person who has the legal right to exercise the H.ansen Ranch Mineral Rights shall have the right to enter the Property from time to time as necessary to exercise such Hansen Ranch Mineral Rights, so long as the exercise of the Hansen Ranch Mineral Rights fully complies with ESA.

g. Any person who has the legal right to exercise rights granted by the 1955 Indenture or the Pole Line Easements shall have the right to enter the area covered by the 1955 Indenture or the Pole Line Easements as necessary to exercise such rights, so long as the exercise of these rights fully complies with ESA .

8. COSTS AND LIABILITIES

Except as set forth in this Easement, the CMMP, the MOU, the Flood Control Easement, or as otherwise agreed to in writing between the Parties hereto, Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property. Unless otherwise specified in this Easement, the CMMP, the MOU, the Flood Control Easement, or as otherwise agreed to in writing between the Parties hereto, any Party proposing to undertake any construction or other activity or use not prohibited by this Easement shall be responsible for obtaining any applicable governmental permits and approvals for such activity. All such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Granter shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Granter.

a. Taxes: Grantor shall pay before delinquency all taxes, assessments, fees, and'charges of whatever description (collectively "taxes") properly levied on.or assessed against the Property by competent authority, including any taxes imposed upon, or incurred as a result of, this Easement, and shall furnish Grantee with satisfactory evidence l

(i) No-substance defined, listed, or otherwise classified pursuant to any federal, state,. or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Property;

(ii) There are not now any underground storage tanks located on the Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed

· from the Property in a manner not in compliance with applicable federal, state, and local laws, regulations, and requirements;

(iii) Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use;

(iv) There is no pending or threatened litigation in any way affecting; involving, or relating to the Property; and

(v) No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its use, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceedings, investigations, notices, claims, demands, or orders.

The foregoing representations and warranties are based on and limited to Grantor's present knowledge, and are not intended, and shall not be interpreted, to suggest or otherwise indicate that Grantor has conducted any investigation into such matters, nor shall any provision of this Easement be interpreted to impose any duty upon Grantor to investigate such matters beyond its present knowledge.

15.

c, Remediation: If, at any time, Grantor, its board or council members, officers, employees, agents, lessees, contractors or any other person or entity employed by or acting on its behalf causes or has caused a release in, on, or about the Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment ("Hazardous Substances"), Grantor agrees to take all steps required by law to assure its containment and remediation, including any-cleanup that may be required. Any person or entity grazing livestock on the Property after the date of the MOU shall be a lessee of SAFCA and therefore shall not be considered a lessee of Grantor for purposes of this subsection c. Ifthe release was caused by Grantee, its board members, officers, employees, agents, lessees, contractors or any other person or entity employed by or acting on its behalf, Grantee shall take all steps required by law to assure its containment and remediation, including any cleanup that may be required.

d. Control: Nothing in this Easement shall be construed as giving rise in the absence of a judicial decree. to any right or ability in Grantee to exercise physical or managerial control over the day-to-day operations of the Property, or any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.A. section 9601, etseq., and in the Carpenter-Presley-Tanner Hazardous Substance Account Act, Cal. Health and Safety Code section 25300, et seq. ·

e. Hold Harmless: Grantor, or its successor or assign, shall hold harmless, indemnify, and defend Grantee and its board members, directors, officers, employees, agents, lessees, and contractors as well as their heirs, personal representatives,. successors, and assigns (collectively "Indemnified Party"), with counsel approved by the Indemnified Party, which approval shall not be withheld unreasonably, from and against any and all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments, or administrative actions, including, without limitation, reasonable attorney's fees (collectively "Liabilities"), resulting from any act, omission, condition or other matter related to or occurring on or about the Property and caused by Grantor, its board or council members, officers, employees, agents, lessees, contractors, or any other person or entity employed by or acting on its behalf. The actions, omissions, . conditions, or other matters referenced above shall include, without limitation, the use, stor,!lge, treatment, transportation, release, or disposal ofHaiardous Substances on or about the Property, even.ifsuch release of Hazardous Substances occurred prior to the date of this Easement but after the date on which the Grantor acquired the portion(s) of the Property affected by the release. The Liabilities referenced above shall include, 4> without limitation, reasonable attorney's fees arising from or in any way connected with the injury to or death of any person, or physical damage to any property. The term Hazardous Substances used above shall refer to any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment. The above provisions shall survive the recording of any deeds hereunder. Any person or entity grazing livestock on the Property after the date of the MOU shall be a lessee of SAFCA and therefore shall not be considered a lessee of Grantor for purposes of this subsection e.

9. AMENDMENT

This Easement may be amended only with the express written consent of Grantor, Grantee; the Service and SAFCA. Any amendment must be consistent with the Purpose of this Easement, as described in Paragraph 1, above, and shall not affect its perpetual duration. Any amendment to this Easement shall be recorded in the official records of the County of Sacramento, State of California.

IO. ASSIGNMENT AND TRANSFER

This Easement is transferable, but Grantee shall give Grantor, SAFCA, and the Service at least thirty (30) days prior written notice of the transfer .. Grantee may assign its rights and obligations under this Easement only to an organization or entity that is: (I) approved in writing by the Service and SAFCA; (2) a public agency or a qualified organization at the time of transfer under section l 70(h) of the Internal Revenue Code of 1954, as amended (or any successor provision then applicable), and the applicable regulations·promulgated thereunder; and (3) authorized to acquire and hold conservation easements under California Civil Code section 815 et seq. (or any successor provision then applicable) or the laws of the United States. As a condition of such assignment or transfer, the Assignee or Transferee shall agree in writing to assume all of Grantee's obligations hereunder. Grantee shall not release, modify, relinquish or abandon its rights and obligations under this Easement without the prior written consent of the Service and

SAFCA.

11. EXECUTORY LIMITATION

If Grantee shall cease to exist or be authorized to hold this Easement, and a prior assignment is not made in accordance with the directly preceding paragraph, Grantee's rights shall vest in an organization or entity agreed to in writing by the Grantor, _Service a11d SAFCA or, ifthe Grantor, Service and SAFCA do not reach such an

I ~ ..

agreement within 30 days, Grantee's rights shall vest in such organization or entity as a court of competent jurisdiction shall direct pursuant to applicable California law and with due regard to the requirements for an assignment described in the directly preceding paragraph.

12. SUBSEQUENT TRANSFERS

Grantor agrees to incorporate the terms of this Easement by reference in any future deed or other future legal instrument by which Grantor divests itself of any interest in all or a portion of the Property subsequent to the date of this Easement, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee, SAFCA, and the Service at least thirty (30) days prior to the date of any property transfer. The failure of Grantor to peFform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way.

13. ESTOPPEL CERTIFICATES

Upon request by Grantor, Grantee shall within thirty (30) days execute and deliver to Grantor any document, including an estoppel certificate, which certifies, to the

·best of Grantee's knowledge, Grantor's compliance with any obligation ofGrantor contained in this Easement and otherwise evidences the status of this Easement. Such certification shall be limited to the condition of the Conservation Area as of Grantee's most recent inspection. If Grantor requests more current documentation, Grantee shall conduct an inspection, at Grantor's expense, within thirty (30) days of Grantor's written request therefor.

14. NOTICES

Any notice, demand, request, consent, approval, or communication given pursuant to this Easement shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows:

To Grantor: Parks Manager City of Sacramento Park Administration Department of Parks and Recreation · I 023 J Street, Room 200 Sacramento, CA 95814

To Grantee:

To the Service:

To SAFCA:

Executive Director Sacramento Valley Open Space Conservancy P. 0. Box 163351 Sacramento, CA 95816

- Field Supervisor, Sacramento Field Office U.S. Fish and Wildlife Service 2800 Cottage Way, W-2605 Sacramento, CA 95825.

Executive Director & Agency Counsel Sacramento Area Flood Control Agency 1007 7th Street, 5th Floor Sacramento, CA 95814

To the Preserve Manager:

Charlotte Kimball Kimball Neely Associates LLC 4618 Campos Lane Winters, CA 95694 or to such other address or the attention of such other officer as from time to time a listed entity may designate by.written notice to the others.

15. RECORDATION

Grantee shall promptly record this Easement in the official records of the County of Sacramento, State of California, and may re-record it at any time as may be required to preserve its rights in this Easement. The Service shall receive a true copy of the recorded Easement within thirty (30) days of its recordation.

16. GENERAL PROVISIONS

a. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of California, the ESA, and other applicable Federal laws.

b. Construction. Any general rule of construction to the contrary notvirithstanding, this Easement shall be construed in favor of the grant to effect the

·Purpose of this Easement ancj the policy and purpose of California Civil Code section 815 et seq. If any provision in this instrument is found to be ambiguous, an interpretation · consistent with the Purpose of this Easement, the CMMP, and the MOU that would render the provision valid shall be favored over any interpretation that would render it invalid.

c. Severability. If any provision of this Easement, or the application thereof to any person or circumstances, is found to be i_nvalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid,.as the case may be, shall not be affected .

thereby.

d. Entire Agreement. This instrument, and the MOU, set forth the entire agreement of the Parties with respect to the Easement and they supersede all prior discussions, negotiations, understandings, or agreements relating to the Easement. In the event of any direct contradiction between the terms of this Easement and the MOU, the terms of this Easement shall control. In all other cases, the terms of this Easement and the terms of the MOU shall be interpreted to be supplementary to each other. In the event of a direct contradiction between the terms of this Easement and the 1998 Biological Opinion, the 2001 Biological Opinion, and Corps Permit No. 1992007 ! 9 for SAFCA 's NALP, the terms of the Biological Opinions and/or the Permit shall control.

e. No Forfeiture. Nothing contained.herein will result in a forfeiture or reversion of Grantor's title in any respect.

f. Successors. The covenants, terms, conditions, and restrictions of this ·Easement 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 Property. The terms "Granter" and "Grantee," wherever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantor and its personal representatives, heirs, successors, and assigns, and the above-named Grantee and its personal representatives, heirs, successors, and assigns.

g. Termination of Rights and Obligations. A Party's rights and obligations under this Easement terminate upon transfer of the Party's interest in the Easement or Property, except that liability for acts or omissions occurring prior t.o transfer shall sur¥ive transfer .

· h. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation.

i. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both Parties and the Service; .

each counterpart shall be deemed an original instrument as against any Party who has signed it.

j. Third-Partv Beneficiaries. The Service and SAFCA are Third-Party Beneficiaries of this grant of Easement and shall have the same rights as the Parties, including all of the Grantee rights enumerated in Paragraph 2, to access the Conservation Area and to enforce the terms of this Easement.

IN WITNESS WHEREOF, Grantor and Grantee have entered into this Easement the day and year first above written.

GRANTOR:

City of Sacramento, a charter municipal corpo~{I

,,1

By: uc;>R'':-0

. ---Robert P. Thomas City Manager

APPROVED AS TO FORM:

By:

ATTEST: i

By:

GRANTEE:

Sacramento Valley Open Space Conservancy, a California nonprofit corporation

By:

APPROVED AS TO FORM:

By:

~'{~ N. vJAD~ Timothy 1'i Washburn Agency Counsel Sacramento Area Flood Control Agency

CITY

PO

G') - :0 ::!

m m s:: m z -I z p 0.

1--

·~.G 0 1=EMENT NO. 2001 -141

• • • 1 ••

Exhibit ACE Map of Property, Conservation Area and Excluded Area

Exhibit BcE Legal Description of Property, Conservation Area and Excluded Area

P:ISAFCAIHCPIOLA081V5.WPD

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• CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT

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y. ~ocf·:::~.¢<'.¢<'.c('«@«««.¢<'@«¢<1<'.c<',QC'&C}~~=-«=11 ..

~ Sacramento ;~ g ~ ~.~ On Oct. 9, 2001 , before me, Toni Ione Malik ~ C: Date Name and Title of Officer (e.g., ~Jane Doe. Notary Public") ~

~ personally appeared Richard Ramirez for Robert P. Thomas ~.

~~ Name(sl of Signer(s} !'.'}

~ :.:_ personally known to me ~ ~ ;x proved to me on the basis of satisfactory g i; ~de~ K d ~ ~·. to be the person(s) whose name(s) is/are ~x ~ subscribed to the within instrument and ~ p TONI IONE MALIKt acknowledged to me that he/she/they executed g p CllMM. # 12a7113 :. the same in his/her/their authorized ~.

).I. • NOTARY PIJBUC<Al.JFORNIAG> capacity(ies), and that by his/her/their X )l SAOlAMENTO CllUtffi' 0 signature(s) on the instrument the person(s), or X c\ COMM. EXP, JAN. :'.9 2005.. ;{ ~· the entity upon behalf of which the person(s) ·~

~ acted. executed the instrument. ~ ~ a " WJTN ESS my hand and official seal. g

~ ~&/}IL_~ ~

~ Place Notary Seal Above Signature of Notary Public ~

~ OPTIONAL a

p. Though the information below is not required by law. it may piove valuable to persons relying on the document g

n. and could prevent fraudulent removal and reattachment of this form to another document. ti

~ Description of Attached Document I…