Agenda packet — San Clemente City Council, April 16, 2024 (part 2 of 4)

G. City’s Notice of Completion regarding the portions of the Project to be dedicated to City as permanent easements, which City Council has authorized to be executed and filed for recordation, final copies of which are attached hereto as Exhibit 5.

H. Revised Restoration, Mitigation, Monitoring, and Maintenance Plan, LongTerm Habitat Management Plan, and Project Plans, as approved by CCC’s Executive Director consistent with CCC’s approval of the amended permit Application No. 5-20-0446-A1, with conditions including OC and GC’s compliance with all requirements, requests and mitigation measures from the Regional Water Quality Control Board and California Department of Fish and Wildlife, including revised final Restoration, Mitigation, Monitoring, and Maintenance Plan, a revised final Long-Term Habitat Management Plan, and revised project plans in substantial conformance with the “Restoration, Mitigation, Monitoring, and Maintenance Plan” (RMMMP) dated April 26, 2021, “Long-Term Habitat Management Plan for the Shorecliffs Wetland Conservation Area” (LTHMP) dated April 26, 2021, and the project plans dated June 19, 2018, CCC-approved copies of which are attached as Exhibit C (RMMMP) and Exhibit D (LTHMP) to the Conservation Easement for Site 1 and Conservation Easement for Sites 2 and 3, described below and attached hereto.

I. Recordation of deed restriction documents by OC and GC as required by CCC special conditions for Application 5-20-0446-A1 (as amended), along with the Certificate of Compliance recorded with the Orange County Recorder on December 14, 2021 as document no. 2021000747999, in satisfaction of CCC Special Conditions 1, 6, 7 and 8, completion of compliance with said conditions was confirmed by the May 5, 2023 email from CCC which is attached hereto as Exhibit 6.

J. OC and GC shall grant to City as grantee, the two “Conservation Easement” documents affecting portions of the Shorecliffs Golf Course property owned by OC as grantor for “Site 1” and GC as grantor for “Sites 2 and 3”, respectively, by executing, delivering, and recording the Conservation Easements in the forms attached hereto as Exhibits 7 and 8, and concurrently executing and delivering the related Endowment Agreement with Shorecliffs Conservancy in the form attached hereto as Exhibit 9.

5. Letter of Map Revision (LOMR). The parties recognize that a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency (FEMA) is required for the slope repair Project and that the application for the LOMR is pending with FEMA for review and could be pending for more than one (1) year.

A. While the Parties anticipate that the LOMR application will be approved, in the event that FEMA does not approve the LOMR application for the slope repair Project as submitted: (a) City staff will take over management of that project application; and (b) the costs for the City’s LOMR consultant BKF Engineers shall be paid by the City.

B. Regardless of whether the LOMR application is approved, OC acknowledges and agrees that the release in this Agreement includes, but is not limited to, claims that the slope repair Project and any work or map revision ordered by FEMA impacts the economic 146
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value, developmental potential, lost profits, slope stability or any other affect whatsoever on Parcel No. 691-021-02 owned by OC.

6. City and/or CJPIA Payments Related to Project and/or Construction Management Agreement Terminated. Any duty or other alleged obligation(s) of City and/or CJPIA, whether express contractual or implied, to make payments related to Project and/or the Independent Contractor Agreement for Construction Management referred to in the Action and Release (and attached to the Release as Exhibit E) are hereby terminated by mutual agreement, as of the Effective Date of this Agreement. Said termination also terminates all obligations of City and CJPIA as “Management Committee” members appointed pursuant to Release Section II.B.1. The Parties agree all payments due or claimed to be due pursuant to the Release and Independent Contractor Agreement for Construction Management have been satisfied, and no other outstanding unpaid costs are claimed by any Party.

7. Mutual Releases and Waivers. Except for the obligations created by this Agreement, each Party, on behalf of itself and its predecessors, parent companies, subsidiaries, directors, officers, members, and employees, hereby waives and releases all claims of any nature whatsoever (including but not limited to breach of contract, patent ambiguity, latent ambiguity, and negligence, whether known or unknown) against the other arising out of or related to the Action and the allegations and causes of action contained therein, the Release including but not limited to the alleged breach(es) by City of the Release obligations, all payments due or claimed to be due pursuant to the Release and Independent Contractor Agreement for Construction Management, the Project and the Disputes (collectively, the “Released Claims”). This includes, but is not limited to, OC and GC releasing City and CJPIA from any and all claims relating to the Project, loss of income, loss of revenue, financial losses and all other alleged damages and impacts to OC and GC as a result of CCC’s imposed special conditions and restrictions on the Shorecliffs Golf Course, reduced golf course yardage due to reconfiguration of course layout, reduced golf course playability and/or desirability due to reconfiguration of course layout, relocation of hole 6, permanent loss of use of former hole 6 site due to CCC special conditions requiring permanent habitat maintenance and deed restriction(s) affecting the former hole 6 site, restoration costs relating to both hole 5 and the newly configured hole 6 or any other area of the Shorecliffs Golf Course, impacts on, damages to or restrictions on development of Parcel No. 691-021-02 or any other property owned by OC or GC, and from any claims relating to the Project including the alleged delays by City in responding to Project development applications and processing Project permits and claims for inverse condemnation. Except as expressly set forth otherwise in Section 5 above, the Released Claims also includes, but is not limited to, OC and GC releasing City and CJPIA from any and all claims relating to the LOMR and any impacts of the LOMR on any property owned by OC or GC.

Civil Code § 1542 Waiver. The Parties hereby each acknowledge that there is a risk that, subsequent to the execution of this Agreement, it may incur, suffer or sustain injury, loss, damage, costs, attorney’ fees, expenses, or any of these, which are in some way caused by and/or connected with the facts, entities and/or matters referred to in the Action, or which are unknown or unanticipated at the time this Agreement is executed, or which are not presently capable of being ascertained.

Further, each Party acknowledges that there is a risk that such damages as are presently known may become more serious than they now expect or anticipate. 147
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Nevertheless, each Party expressly acknowledges that this Agreement has been negotiated and agreed upon in light of those realizations and they thereby expressly waive all rights they may have in such unsuspected claims. In so doing, the Parties acknowledge that they are releasing all unknown claims and any other claims, defenses, or causes of action related to or arising out of the Action, the Disputes, and the Released Claims, that each Party has had the benefit of counsel, and as to the Released Claims they have been advised of, understand and knowingly, voluntarily, specifically and expressly waive all rights each Party may have under California Civil Code Section 1542 which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT

THE CREDITOR OR RELEASING PARTY DOES NOT KNOW

OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME

OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY

HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS

OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.

BY EXECUTING THIS AGREEMENT, THE PARTIES HEREBY WAIVE THE PROVISIONS OF SECTION 1542 WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASE OF THE RELEASED CLAIMS. CONSISTENT WITH THE FOREGOING, BY

EXECUTING THIS AGREEMENT EACH PARTY, FOR ITSELF AND ITS AGENTS,

AFFILIATES, SUCCESSORS AND ASSIGNS, HEREBY AGREES TO ASSUME THE RISK

THEREOF, IN FULL RELIANCE UPON ITS OWN INVESTIGATIONS, AND RELEASES

AND FOREVER DISCHARGES, WAIVES AND EXONERATES EACH OTHER PARTY AND SUCH PARTY’S AFFILIATES, MEMBERS, PARTNERS, OFFICERS, DIRECTORS,

MANAGERS, TRUSTEES, SUBSIDIARIES, PRINCIPALS, OWNERS, GENERAL

PARTNERS, LIMITED PARTNERS, AS WELL AS THE SUCCESSORS AND ASSIGNS OF

EACH OF PARTY AS A RELEASEE FROM ANY AND ALL LIABILITIES, OBLIGATIONS,

RIGHTS, CLAIMS, CAUSES OF ACTION AND DEMANDS AT LAW OR IN EQUITY,

CONTROVERSIES, DAMAGE, COSTS, LOSSES AND EXPENSES WHETHER KNOWN OR

UNKNOWN AT THE TIME OF THIS AGREEMENT, WHICH ANY PARTY HAS OR MAY

HAVE IN THE FUTURE, ARISING OUT OF THE RELEASE, THE PROJECT, THE ACTION,

THE DISPUTES, THE RELEASED CLAIMS, THE PHYSICAL, ENVIRONMENTAL,

FINANCIAL ECONOMIC OR LEGAL CONDITION OF THE PROJECT AND THE

OPERATION OR RESULTS OF OPERATIONS OF THE PROJECT ON THE AFFECTED

PROPERTY(IES), INCLUDING, WITHOUT LIMITATION, ALL CLAIMS IN TORT OR

CONTRACT, ALL CLAIMS UNDER A WARRANTY OF ANY KIND (WHETHER EXPRESS,

IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,

STATUTORY) AND INCLUDING ANY AND ALL CLAIMS FOR INDEMNIFICATION OR

CONTRIBUTION ARISING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (42 U.S.C. SECTION 9601, ET SEQ.)

OR ALL SIMILAR FEDERAL, STATE OR LOCAL STATUTE, RULE OR REGULATION,

AND ANY OTHER BASIS FOR RECOVERY OR REIMBURSEMENT (INCLUDING NEGLIGENCE OR STRICT LIABILITY). UPON EXECUTION OF THIS AGREEMENT 148
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EACH PARTY SHALL BE DEEMED TO HAVE WAIVED, EXONERATED,

RELINQUISHED AND RELEASED THE OTHER PARTIES FROM ALL RELEASED

CLAIMS, AND AGAINST ANY AND ALL MATTERS AFFECTING THE RELEASE, THE

PROJECT, THE ACTION, THE DISPUTES, THE RELEASED CLAIMS AND/OR THE

PROPERTY(IES) AFFECTED BY THE PROJECT OTHER THAN RIGHTS OR REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT. ALL PARTIES ACKNOWLEDGE AND

AGREE THAT THE WAIVERS, RELEASES AND OTHER PROVISIONS CONTAINED IN

THIS PARAGRAPH WERE A MATERIAL FACTOR IN ACCEPTANCE OF THE

AGREEMENT AND ITS TERMS, AND EACH PARTY, TOGETHER WITH ITS COUNSEL,

HAS FULLY REVIEWED THE RELEASES AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. ___________ ____________ ___________ ___________
Initials:

The Parties acknowledge that the facts and law in relation to this matter and the claims released by the terms of this Agreement may turn out to be different from the facts or law as now known to each Party or its counsel. Each Party therefore expressly assumes the risk of the existence of different or presently unknown facts or law as to the Released Claims and agrees that this Agreement shall be in all respects effective and binding as to such Party, despite the possibility of new or different facts or law.

8. No Admission. The Parties understand and agree that this Agreement is not to be construed as an admission whatsoever on the part of any of them and that the releases are made solely for the purpose of avoiding the burden and expense which would be imposed upon the Parties through further litigation.

9. Benefit of Counsel. The advice of legal counsel has been obtained by the Parties in connection with all aspects of the Action and prior to entering into this Agreement. The Parties therefore voluntarily execute this Agreement on behalf of itself, each of its executors, administrators, predecessors, successors, assigns, and all persons, firms, associations and/or corporations connected with them, including their attorneys, with full knowledge of its significance and with the express intention of affecting its legal consequences. Each Party is not relying on any representations, warranties or advice as to the rights, obligations, and terms of this Agreement from any other Party or its/their attorneys.

10. Compromise. This Agreement is the result of a compromise of a disputed claim between the Parties, and it shall never at any time or for any purpose be considered an admission of liability, fault and/or responsibility by any Party, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute or be construed as an admission of any liability, fault or responsibility whatsoever by any Party. It is expressly acknowledged and understood by the Parties, and each of them, that City continues to deny any and all liability, fault and/or responsibility for the matters alleged in the Action and the Dispute, including but not limited to any claims City failed to properly perform any duty or obligation(s) imposed by or created in the Release.
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11. Amendments. This Agreement may not be modified without a signed agreement in writing executed by all Parties.

12. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties to the Action and their respective employees, trustees, predecessors, successors, assigns, subsidiaries, affiliated and related entities, present and former officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations and/or corporations connected with them, including without limitation their insurers, sureties and attorneys.

13. Construction of Release. This Agreement is the product of negotiation and preparation by and among the Parties to the Action and their respective attorneys. All Parties therefore expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another, or their attorneys, and will be construed accordingly.

14. Fully Integrated Agreement. This is a fully integrated agreement. This Agreement constitutes the entire agreement and final understanding between the Parties with respect to settlement of the Action and Disputes. It is intended by the Parties as a complete and exclusive statement of the terms of their agreement to settle and resolve all claims related to the Release, the Project, the Action, the Disputes and the Released Claims. It supersedes and replaces all prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. Any representation, promise or agreement not specifically included in this Agreement shall not be binding upon or enforceable against any of the Parties.

15. Covenant Not to Sue. Each Party covenants and agrees never to commence and/or prosecute against any other Party any legal action and/or other proceedings based in whole or in part upon the claims, demands, causes of action, obligations, damages and/or liabilities released in this Agreement or identified as part of the Action, the Project, the Release, the Released Claims, or based on alleged breach of obligations of the Release, other than action(s) or proceeding(s) to enforce this Agreement which shall be determined subject to and in accordance with the Judicial Reference provisions set forth below.

16. Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

17. Attorney's Fees and Costs. Each Party shall bear its own attorney fees, expert witness fees, and costs incurred in connection with the Disputes and Released Claims.

18. Authority. Each of the Parties and signatories below represent and warrant that the undersigned signatories are authorized to sign this Agreement and to bind the Party identified and agree to indemnify the other Parties should such representation and warranty prove false.

19. Counterparts. This Agreement may be signed in counterparts, and electronically scanned signatures sent by e-mail shall constitute originals for all purposes and shall have the same effect as if all Parties had signed the same instrument.
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20. Law and Venue; Consent and Agreement to Judicial Reference as Sole and Exclusive Remedy. This Agreement shall be construed in accordance with the laws of the State of California.

Any disputes as to the terms, enforcement or interpretation of this Agreement shall be determined by Judicial Reference. Each of the undersigned Parties hereby consents and agrees that (a) any and all disputes relating to this Agreement shall be heard by a referee in accordance with the general reference provisions of California Code of Civil Procedure Section 638, sitting without a jury in Orange County, (b) such referee shall hear and determine all of the issues in any such dispute (whether of fact or of law), including issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8, including without limitation, entering restraining orders, entering temporary restraining orders, issuing temporary and permanent injunctions and appointing receivers, and shall report a statement of decision, provided that, if during the course of any dispute any party desires to seek such a “provisional remedy” but a referee has not been appointed, or is otherwise unavailable to hear the request for such provisional remedy, then such party may apply to the Superior Court in Orange County for such provisional relief, and (c) pursuant to California Code of Civil Procedure Section 640(a), judgment may be entered upon the decision of such referee in the same manner as if the dispute had been tried directly by a court.

The Parties shall use their respective commercially reasonable and good faith efforts to agree upon and select such referee, provided that such referee must be a retired California state or federal judge, and further provided that if the Parties cannot agree upon a referee within ten (10) days of the request of any Party, the referee shall be appointed by the presiding judge of such Superior Court. Each Party hereto acknowledges that this consent and agreement is a material inducement to enter into the transactions described in this Agreement and all other agreements and instruments provided for herein or therein, and that each will continue to be bound by and to rely on this consent and agreement in their related future dealings. Each Party hereto further warrants and represents that it has reviewed this consent and agreement with legal counsel of its own choosing, and that it knowingly and voluntarily gives this consent and enters into this Agreement having had the opportunity to consult with legal counsel. This consent and agreement is irrevocable, meaning that it may not be modified either orally or in writing, and this consent and agreement shall apply to any subsequent amendments, renewals, supplements, or modifications to this Agreement or any other agreement or document entered into between the Parties in connection with this Agreement.

In the event of litigation, this Agreement may be filed as evidence of the Parties’ consent and agreement to have any and all disputes heard and determined by a referee under California Code of Civil Procedure Section 638.

21. Retention of Jurisdiction by Court. Each Party and its attorney hereby acknowledge and agree that the Superior Court of the State of California in and for Orange County shall have jurisdiction over the Action for all purposes pertaining to execution and performance of the terms and conditions set forth in this Agreement, which shall be determined subject to and in accordance with the Judicial Reference provisions set forth above. Each of the Parties waives any rights that they may have under Code of Civil Procedure section 394.

22. Severance of Invalid Provision. If any provision of this Agreement shall be held to be invalid, the same shall not affect the validity, legality or enforceability of the remainder of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have freely and voluntarily executed this Agreement as of the date set forth above:

Settlement Agreement signature page - George Zeber, OC RE-HAB 1, LLC, and GC-8 LLC v. City of San Clemente
OC Re-Hab 1, LLC:

OC Re-Hab 1, LLC
By: ______________________________________
Printed Name: George Zeber
Title: Sole Managing Member
GC-8 LLC:

GC-8 LLC
By: _______________________________________
Printed Name: Hon. James B. Copelan (Ret.)
Title: Attorney in Fact/Agent for Fah Sean Leong, Manager/CEO City of San Clemente:

City of San Clemente
By: ______________________________________
Name: Andy Hall
Title: City Manager, City of San Clemente
Attest:

By: ______________________________________
Laura Campagnolo, City Clerk
Approved as to form:

By:

Elizabeth A. Mitchell, City Attorney
California Joint Powers Insurance Authority:

California Joint Powers Insurance Authority
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By: ______________________________________
Name: Alex Smith
Title: Chief Executive Officer, California Joint Powers Insurance Authority

LIST OF EXHIBITS TO SETTLEMENT AGREEMENT
Exhibit 1: Grant of Easement – 424 Via Alegre, San Clemente, CA (APN 691-031-14) Exhibit 2: Grant of Easement – Golf Course, San Clemente, CA (APN 691-021-01) Exhibit 3: Grant of Easement – Vincent parcel, San Clemente, CA (APN 691-021-02) Exhibit 4: August 31, 2023 certified mail letters to homeowners requesting notary acknowledged signatures on “Hillside Disclosure and Maintenance Agreement” Exhibit 5: City Notice of Completion
Exhibit 6: May 5, 2023 email from California Coastal Commission (CCC) confirming coapplicants OC and GC’s satisfaction and completion of compliance with CCC Special Conditions 1, 6, 7 and 8 for CDP Application 5-20-0446-A1 (as amended) Exhibit 7: Conservation Easement, Site 1
Exhibit 8: Conservation Easement, Sites 2 and 3
Exhibit 9: Endowment Agreement with Shorecliffs Conservancy 153
Attachment 3

SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN CITY OF SAN

CLEMENTE AND CALIFORNIA JOINT POWERS INSURANCE AUTHORITY This SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN CITY OF SAN

CLEMENTE AND CALIFORNIA JOINT POWERS INSURANCE AUTHORITY (“Agreement”) is made as of April 17, 2024 (the “Effective Date”) among the City of San Clemente, a public entity (“City”), and California Joint Powers Insurance Authority (“CJPIA”).

City and CJPIA may be individually referred to herein as a “Party” and collectively referred to herein as the “Parties.”

RECITALS
A. This Agreement arises out of the litigated superior court action known as GEORGE ZEBER, OC RE-HAB 1, LLC, and GC-8 LLC, plaintiffs, v. CITY OF SAN CLEMENTE, a public entity, and DOES 1–25 inclusive, defendants, Orange County Superior Court Case No. 30-2021- 01191580-CU-EI-CXC (the “Action”). In the Action, on June 24, 2021, plaintiffs OC RE-HAB 1, LLC (“OC”), and GC-8 LLC ("GC") filed a First Amended Complaint (FAC) for Specific Performance, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Inverse Condemnation, Nuisance and Declaratory Relief. City is named defendant in the Action.

Individual George Zeber, named as a plaintiff in the original complaint, was removed as a plaintiff in the FAC and is no longer a party to the Action.

B. Plaintiffs OC and GC allege the Action arises out of the “Agreement and Release of Claims” (“Release”) entered into between 23 parties to completely resolve those litigation actions and cross-actions known as Joseph A. Arriola, et al. v. L.H.C. Investments LLC, et al., Orange County Superior Court Case No. 30-2011-00450299-CU-CD-CXC. That Release was intended to settle all potential claims relating to slope and drainage repair of a landslide affecting multiple upslope homeowners and the contiguous downslope Shorecliffs Golf Course in the City of San Clemente. The homeowners and golf course property share a common boundary located on the slope. Prior landslides had occurred in the area, also giving rise to earlier (settled) litigation among nearby homeowners, plaintiff GC, and City.

C. The Release terms provide for payment of damages both by and to homeowners, plus agreement to fund, including with City’s (and/or CJPIA’s) $2+ million contribution, and implement a private slope repair project (the “Project”) to repair the landslide and install drainage improvements, including a box culvert drainage facility within Cascadita Canyon, and related work for certain residential lot restorations, with the primary objective to stabilize the reconstructed slope.

D. Pursuant to the Release, plaintiff OC was formed to serve as the developer and contracting party for the Project, including all slope and drainage repair work, and took title from plaintiff GC to the portion of the golf course property directly affected by the landslide (i.e., Cascadita Canyon and golf course holes 5 and 6).

E. The Release also requires OC and GC to dedicate to City permanent easement rights for City to control, operate and maintain the Project’s privately constructed box culvert drainage facility, and to dedicate to City all reasonably necessary associated easements, including a 154
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permanent easement for access to the drainage facility, across, over and under portions of the Shorecliffs Golf Course.

F. City and CJPIA intend to enter into a separate settlement and mutual release agreement (the “Separate Settlement Agreement”) with OC and GC to mutually and globally settle the Action, all claims and allegations by OC and GC against City relating to the Action, the Release, and/or the Project (including any alleged obligations of CJPIA to fund payments related to the Project and/or for payment to CCC for the long term maintenance of habitat areas subject to CCC’s special conditions imposed on the Project) and all claims for recovery of financial losses and other alleged impacts to OC and GC and the Shorecliffs Golf Course as a result of construction of the Project. Among the mutual releases and other terms and conditions in the Separate Settlement Agreement, City and CJPIA will be released by OC and GC from all claims in the Action and related to performance of the Release obligations.

G. CJPIA, on behalf of City, funded certain cost overruns and scope changes associated with construction of the box culvert, access road, and other public improvements built as part of the Project pursuant to the terms of the Release. CJPIA contends City owes reimbursement of certain cost overrun amounts and construction scope changes funded by CJPIA.

H. For purposes of this Agreement, the monetary amount of, and City’s reimbursement obligations to CJPIA for, the cost overruns and scope changes for construction of the box culvert, access road, and other public improvements are referred to herein as the Disputes which are being settled and released herein between City and CJPIA.

I. City and CJPIA now desire to settle and resolve all matters arising from or relating to the Disputes without further delay.

J. The purpose of this Agreement is to resolve all Disputes between City and CJPIA regarding City’s obligation for reimbursement to CJPIA the monetary amount funded by CJPIA on behalf of City for the Separate Settlement Agreement and for cost overruns and scope changes associated with construction of the box culvert, access road, and other public improvements built as part of the Project pursuant to the terms of the Release.

K. Nothing in this Agreement is intended to affect the existing terms and conditions of City’s ongoing participation as a CJPIA member or matters unrelated to the Action.

NOW, THEREFORE, in consideration of the mutual promises made herein, and for good and sufficient consideration, which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

TERMS AND CONDITIONS

1. Incorporation of Recitals. The above recitals are incorporated herein and are part of this Agreement.

2. Effective Date. This Agreement shall be effective upon execution of this Agreement by all Parties.
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3. Settlement Payments. In consideration of the terms and conditions set forth in this Agreement, (a) CJPIA shall fund all payment obligations in the Separate Settlement Agreement; and (b) City shall pay CJPIA the total sum of Seven Hundred Thousand Dollars ($700,000.00), in the form of drafts or checks payable to “California Joint Powers Insurance Authority” and delivered to:

Alex Smith
Chief Executive Officer
California Joint Powers Insurance Authority
8081 Moody Street
La Palma, CA 90623

4. Payment Due Within 30 Days. City shall pay to CJPIA the sum stated above by settlement check or draft within thirty (30) days of mutual execution of this Agreement.

5. Releases and Waivers. Except for the obligations set forth by this Agreement, each Party, on behalf of itself, hereby waives and releases all claims of any nature whatsoever against the other arising out of or related to the Disputes between City and CJPIA regarding City’s obligation for reimbursement to CJPIA the monetary amount funded by CJPIA on behalf of City for the Separate Settlement Agreement and the cost overruns and scope changes associated with construction of the box culvert, access road, and other public improvements built as part of the Project pursuant to the terms of the Release (collectively, “Released Claims”).

Further, each Party acknowledges that there is a risk that such damages as are presently known may become more serious than they now expect or anticipate.

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT

THE CREDITOR OR RELEASING PARTY DOES NOT KNOW

OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME

OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY

HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS
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OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.

Initials: _______ ________
The Parties acknowledge, except for matters expressly represented or recited herein, the facts and law in relation to this matter and the claims released by the terms of this Agreement may turn out to be different from the facts or law as now known to each Party or its counsel. Each Party therefore expressly assumes the risk of the existence of different or presently unknown facts or law as to the Released Claims and agrees that this Agreement shall be in all respects effective and binding as to such Party, despite the possibility of new or different facts or law.

6. No Admission. The Parties understand and agree that this Agreement is not to be construed as an admission whatsoever on the part of any of them and that the releases are made solely for the purpose of avoiding the burden and expense which would be imposed upon the Parties through further litigation.

7. Benefit of Counsel. The advice of legal counsel has been obtained by the Parties in connection with all aspects of the Action and prior to entering into this Agreement. The Parties therefore voluntarily execute this Agreement on behalf of itself, each of its executors, administrators, predecessors, successors, assigns, and all persons, firms, associations and/or corporations connected with them, including their attorneys, with full knowledge of its significance and with the express intention of affecting its legal consequences. Each Party is not relying on any representations, warranties or advice as to the rights, obligations, and terms of this Agreement from any other Party or its/their attorneys.

8. Compromise. This Agreement is the result of a compromise of a disputed claim between the Parties, and it shall never at any time or for any purpose be considered an admission of liability, fault and/or responsibility by any Party, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute or be construed as an admission of any liability, fault or responsibility whatsoever by any Party. It is expressly acknowledged and understood by the Parties, and each of them, that City continues to deny any and all liability, fault and/or responsibility for the matters alleged in the Action and the Dispute, including but not limited to any claims City failed to properly perform any duty or obligation(s) imposed by or created in the Release.

9. Amendments. This Agreement may not be modified without a signed agreement in writing executed by all Parties.

10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties to the Action and their respective employees, trustees, predecessors, successors, assigns, subsidiaries, affiliated and related entities, present and former officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations and/or corporations connected with them, including without limitation their insurers, sureties and attorneys.
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11. Construction of Release. This Agreement is the product of negotiation and preparation by and among the Parties to the Action and their respective attorneys. All Parties therefore expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another, or their attorneys, and will be construed accordingly.

12. Fully Integrated Agreement. This is a fully integrated agreement. This Agreement constitutes the entire agreement and final understanding between the Parties with respect to settlement of the Action and Disputes. It is intended by the parties as a complete and exclusive statement of the terms of their agreement to settle and resolve all claims related to the Action and Disputes. It supersedes and replaces all prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. Any representation, promise or agreement not specifically included in this Agreement shall not be binding upon or enforceable against any of the Parties.

13. Covenant Not to Sue. Each Party covenants and agrees never to commence and/or prosecute against any other Party any legal action and/or other proceedings based in whole or in part upon the claims, demands, causes of action, obligations, damages and/or liabilities released in this Agreement or identified as part of the Action or based on alleged breach of obligations of the Release, other than action(s) or proceeding(s) to enforce this Agreement.

14. Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

15. Attorney's Fees and Costs. Each Party shall bear its own attorney fees, expert witness fees, and costs incurred in connection with the Disputes. However, if any action or legal proceeding is instituted by any Party hereto arising out of this Agreement, the prevailing party therein shall recover reasonable attorney’s fees in connection with such action or proceeding.

16. Authority. Each of the Parties represent and warrant that the undersigned signatories are authorized to sign this Agreement and to bind the Party identified.

17. Counterparts. This Agreement may be signed in counterparts, and electronically scanned signatures sent by e-mail shall constitute originals for all purposes and shall have the same effect as if all Parties had signed the same instrument.

18. Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. Any disputes as to the terms, enforcement or interpretation of this Agreement shall be determined in Superior Court, Orange County, California.

19. Severance of Invalid Provision. If any provision of this Agreement shall be held to be invalid, the same shall not affect the validity, legality or enforceability of the remainder of this Agreement.

IN WITNESS WHEREOF, the Parties hereto have freely and voluntarily executed this Agreement as of the date set forth above:
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[Signatures begin on following page]
City of San Clemente and California Joint Powers Insurance Authority Settlement Agreement signature page – Regarding George Zeber, OC RE-HAB 1, LLC, and GC-8 LLC v. City of San Clemente
City of San Clemente:

City of San Clemente
By: _______________________________
Name: Andy Hall
Title: City Manager, City of San Clemente
Approved as to form:

By:

Elizabeth A. Mitchell, City Attorney
Attest:

By:

Laura Campagnolo, City Clerk
California Joint Powers Insurance Authority:

California Joint Powers Insurance Authority
By: ______________________________________
Name: Alex Smith
Title: Chief Executive Officer, California Joint Powers Insurance Authority 159
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

City of San Clemente
Attn: City Clerk
910 Calle Negocio
San Clemente, CA 92673
Space Above This Line Reserved For Official Use Only

CONSERVATION EASEMENT DEED

AND MAINTENANCEAGREEMENT
(Including Third-Party Beneficiaries)
Shorecliffs Golf Course Site 1
This CONSERVATION EASEMENT DEED AND MAINTENANCE AGREEMENT ("Conservation Easement") is made as of March 20, 2024, by and between OC RE-HAB 1, LLC, a California limited liability company (“Grantor”), and the City of San Clemente, a California municipal corporation ("Grantee"), (collectively, the “Primary Parties”) with reference to the following facts:

RECITALS
A. Grantor is a limited liability company duly organized and existing under the laws of the State of California, is registered to do business in the State of California and is the owner in fee simple of certain real property located in the City of San Clemente, County of Orange, State of California, which is legally described in Exhibit A attached hereto and incorporated herein by this reference (the “Golf Course Property”). The Easement Property is located within the boundaries of the Golf Course Property described in Exhibit B attached hereto and incorporated herein by this reference (“the Easement Property”).

B. Grantor is a limited liability company duly organized and existing under the laws of the State of California, is registered to do business in the State of California and consists of George Zeber as its sole member and manager.

D. Slopes bordering the Golf Course failed between 2006 and 2011, necessitating slope stabilization and repairs together with construction of a culvert on Site 1 (“Culvert”) and Attachment 4
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other drainage improvements in and after 2018. The Site 1 Culvert is a 7-foot by 7-foot box culvert and associated transition structures connecting to property owned by the California Department of Transportation (“CalTrans") at the upstream point and connecting to existing drainage improvements at Via Cascadita at the downstream point. As mitigation for impacts from these repairs and improvements, the Easement Property has been required to be reserved in perpetuity for conservation purposes pursuant to California Coastal Commission’s April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20- 0446.
1 E. The surface of the Easement Property is suitable for contouring and revegetation with native riparian and upland vegetation possessing environmental values of importance to Grantee, the Third Party Beneficiaries identified in Recitals I and J below, and the people of the State of California. Upon completion of revegetation, the Easement Property will provide high quality natural, restored and/or enhanced habitat for wetland species, an upland buffer of coastal bluff/saltbush scrub, as well as restored, created, enhanced and/or preserved jurisdictional waters of the United States. Individually and collectively, these wildlife and habitat values comprise the “Conservation Values” of the Easement Property.

F. The Primary Parties, together with GC-8, LLC, a California limited liability company and owner of portions of the Shorecliffs Golf Course, have entered into a settlement agreement (“Settlement Agreement”) governing repair of failed slopes, construction of the Culvert, and short-term revegetation and management of the Easement Property, as well as other property within the Golf Course, pursuant to a Restoration, Mitigation, Monitoring and Management Plan (“RMMMP”), a copy of which is attached hereto as Exhibit C and incorporated herein fully by this reference. Under the Settlement Agreement, Grantor states its intent to convey this Conservation Easement over the Easement Property to Grantee, and Grantor will be responsible for implementation of the RMMMP, under the supervision of and with maximum not-to-exceed funding by Grantee as stated in section 7 below, as holder of this Conservation Easement, and any additional funding to be made by Grantor to the extent that necessary costs exceed the maximum not-to-exceed amount funded by Grantee. The Primary Parties have concurrently also entered into a separate conservation easement that applies to the Shorecliffs Golf Course Sites 2 and 3, which is also deed restricted as required by the California Coastal Commission.2 The Primary Parties intend for the maximum not-to-exceed funding amount by Grantee as provided in section 7 below, to be the maximum collective contribution by Grantee for the Easement Areas described in both this Conservation Easement for Shorecliffs Golf Course Site 1 and in the separate conservation easement for Shorecliffs Golf Course Sites 2 and 3 entered into between the Primary Parties hereto and GC-8, LLC as Grantor.

G. In addition, the Settlement Agreement entered into by the Primary Parties also 1 California Coastal Commission April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20-0446 (“CDP 5-20-0446”).
2 CDP 5-20-0446.
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ensures permanent protection of the Conservation Values of the Easement Property through maintenance of the Easement Property in accordance with the Long-Term Habitat Management Plan for the Shorecliffs Wetland Conservation Area dated April 26, 2021 (the “Management Plan”), which is attached hereto as Exhibit D and incorporated herein fully by this reference.

Under the Management Plan, Grantee will provide maximum not-to-exceed funding for implementation of the Management Plan by Grantor through an endowment to be established and held in a restricted interest-bearing account by an eligible entity designated by Grantee (“Endowment Holder”) pursuant to the Management Plan. Grantee will continue to monitor implementation of the Management Plan by Grantor and ensure that Grantor cooperates with the long-term management of the Easement Property, and Grantor will provide additional funding to the extent necessary costs exceed the maximum not-to-exceed amount funded by Grantee.

H. Grantee is authorized to hold this Conservation Easement pursuant to California Civil Code section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code section 815.3 subdivision (b) and otherwise authorized to acquire and hold title to real property.

I. The California Coastal Commission (“CCC”), the California Department of Fish and Wildlife ("CDFW"), the U.S. Army Corps of Engineers ("USACE") and the Santa Ana Regional Water Quality Control Board (“RWQCB”), and each of them, have jurisdiction to enforce this Conservation Easement as a condition of environmental permits issued for construction of the Culvert.

J. The Primary Parties acknowledge that CCC, CDFW, USACE, and RWQCB (collectively, the “Third-Party Beneficiaries”) are third-party beneficiaries of this Conservation Easement with right of access to the Easement Property and rights to enforce all of the obligations of Grantor including, but not limited to, Grantor’s duties under Sections 4 and 5, and all other rights and remedies of the Grantee under this Conservation Easement.

COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to California law, including Civil Code Section 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee this conservation easement in perpetuity over the Easement Property.

1. Purposes. The purposes of this Conservation Easement are to ensure that the surface of the Easement Property will be revegetated in accordance with the RMMMP and thereafter retained forever in its natural, restored, or enhanced condition as contemplated by the Management Plan, and to prevent any use of the Easement Property that will impair or interfere with its Conservation Values. Grantor intends that this Conservation Easement will confine the use of the surface of the Easement Property to activities that are consistent with such purposes, including, without limitation, those involving the preservation, restoration and enhancement of native species and their habitats implemented in accordance with the Management Plan. To that end, Grantor agrees that upon recordation of this Conservation Easement, all present and future 162
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development rights appurtenant to, allocated, implied, reserved or inherent in the Easement Property are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Golf Course Property, the Easement Property, nor any other property adjacent or otherwise.

2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee, exercisable in the Grantee’s discretion:
(a) To preserve and protect the Conservation Values of the Easement Property.
(b) To enter the Easement Property at reasonable times, in order to monitor compliance with and otherwise enforce the terms of this Conservation Easement, the RMMMP and the Management Plan, to implement, at Grantee's sole discretion, any RMMMP or Management Plan activities that have not been implemented by Grantor, and to access, maintain, repair and replace the Culvert and associated City-owned facilities, all after reasonable notice and request by Grantee. If any trees, shrubs, or other habitat and wetland vegetation that Grantee removes or destroys in the exercise of its rights are required to be replaced, such replacement shall be in a ratio of no greater than 1:1, in accordance with the RMMMP. The City agrees to use reasonable efforts to minimize any inconvenience to Grantor or Grantor’s adjoining property and to minimize the period of time that the Easement Area will be disturbed; provided, however, the Grantee shall not be responsible under any circumstances for any loss of revenue, lost profits, consequential or other damages of any kind or nature that may occur or result from Grantee exercising its rights.
(c) To prevent any activity on or use of the Easement Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Property that may be damaged by any act, failure to act, or any use or activity that is inconsistent with the purposes of this Conservation Easement. (d) To require that all mineral, air and water rights as Grantee deems necessary to preserve and protect the biological resources and Conservation Values of the Easement Property shall remain a part of and be put to beneficial use upon the Easement Property, consistent with the purposes of this Conservation Easement, provided that the exercise of such rights does not interfere with the design, maintenance, repair, replacement or functioning of the Culvert.

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(1) Unseasonable watering; use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals; weed abatement activities; incompatible fire protection activities; and any and all other activities and uses that may impair or interfere with the purposes of this Conservation Easement, except as specifically authorized on a short-term basis by the RMMMP or by the Management Plan for operation of the Golf Course or protection of adjacent properties.
(2) Use of off-road vehicles or use of any motorized vehicles except on existing roadways, except as specifically provided in the Management Plan. (3) Agricultural activity of any kind.
(4) Recreational activities of any kind, including, but not limited to, horseback riding, biking, hunting or fishing, except for minimal intrusions related to authorized uses of the adjacent Golf Course Property that do not adversely affect the Conservation Values of the Easement Property.
(5) Commercial, industrial, residential, or institutional uses. (6) Any legal or de facto division, subdivision or partitioning of the Easement Property, except as necessary or convenient to separate ownership of the Easement Property from the Golf Course Property for the purpose of implementing the RMMMP or Management Plan.
(7) Construction, reconstruction, erection or placement of any building, billboard or sign, or any other structure or improvement of any kind except as specifically provided in the RMMMP or Management Plan, which RMMMP and Management Plan include operation and maintenance of the Culvert.
(8) Deposition or accumulation of soil, trash, ashes, refuse, waste, biosolids or any other materials. (9) Intentional planting, introduction, or dispersal of any non-native or exotic plant or animal species.
(10) Filling, dumping, excavating, dredging, mining, drilling, removing or exploring for or extracting minerals, loam, soil, sand, gravel, rock or other material on or below the surface of the Easement Property, or granting or authorizing surface entry for any of these purposes.
(11) Altering the surface or general topography of the Easement Property, including but not limited to any alterations to habitat, construction of new roads or trails, paving or otherwise covering the Easement Property with concrete, asphalt or any other 164
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impervious material except for those habitat management activities specified in the RMMMP or Management Plan.
(12) Subject to (b) below, removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (i) fire breaks, (ii) maintenance of existing foot trails or roads, (iii) removal of invasive non-native vegetation in connection with authorized management activities, or (iv) prevention or treatment of disease. (13) Manipulating, impounding, or altering any natural water course, body of water or water circulation on the surface of the Easement Property, and any activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters, except for operation and maintenance of the Culvert as specifically provided in the RMMMP and Management Plan.
(14) Without the prior written consent of Grantee, which consent Grantee may withhold in its sole discretion, transferring, encumbering, selling, leasing, or otherwise separating the mineral, air or water rights for the Easement Property; changing the place or purpose of use of the water rights, except as set forth specifically in the Management Plan; abandoning or allowing the abandonment of, by action or inaction, any water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights, wells, ground water rights, or other rights in and to the use of water historically used on or otherwise appurtenant to the Easement Property, including but not limited to: (i) riparian water rights; (ii) appropriative water rights; (iii) rights to waters which are secured under contract with any irrigation or water district, to the extent such waters are customarily applied to the Easement Property; and (iv) any water from wells that are in existence or may be constructed in the future on the Easement Property. (15) Engaging in any use or activity that may violate, or fail to comply with, California Coastal Commission’s April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20-0446, relevant federal, state, or local laws, regulations, or policies applicable to Grantor, the Easement Property, or the use or activity in question.
(b) Notwithstanding anything else in this Conservation Easement, nothing in this Conservation Easement prevents Grantee from exercising all its rights under easements that are recorded prior in time to this Conservation Easement, e.g., its rights to access, maintain, repair and replace the Culvert and City-owned facilities. If any trees, shrubs, or other vegetation that Grantee removes or destroys in the exercise of its prior-in-time rights are required to be replaced, such replacement shall be in a ratio of no greater than 1:1, in accordance with the RMMMP.

4. Grantor’s Temporary Duties and Obligations. Grantor shall undertake all necessary actions to install and temporarily manage the RMMMP for Site 1 including, but not limited to, the following:
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(a) Initial Construction and Temporary Maintenance. Implementation of the RMMMP for Site 1 in the locations shown on Exhibits A and B and described in Exhibit C, will be supervised, installed, and completed by Grantor, as contemplated in that certain Agreement and Release of Claims entered into in settlement of Joseph A. Arriola, etc., et al. v. L.H.C.

Investments LLC, etc. et al., Orange County Superior Court Case No. 30- 2011-00450299-CU-CD-CXC.
(b) Grantor will provide regular (annual) reports to Grantee on the status of RMMMP installation and satisfaction of success criteria in the RMMMP. (c) Funding: Grantor’s management of the RMMMP for Site 1 is conditional upon timely receipt of the funding described in section 7 below. Grantor shall have no obligation to fund its installation or management activities pursuant to the RMMMP, except for (1) advancing necessary costs pending timely receipt of reimbursement by Grantee and (2) necessary costs that exceed the maximum not-to-exceed amount funded by Grantee.

5. Grantor’s Long-Term Duties and Obligations: Grantor shall undertake all necessary actions to observe and carry out the obligations of Grantor for Site 1 under the RMMMP and Management Plan, including but not limited to, the following:
(a) Recordation of Easement. This Conservation Easement will be recorded in the official records of the Orange County Recorder immediately upon execution by all the Primary Parties.

(b) Long-Term (Permanent) Management: After written confirmation is received from the Third-Party Beneficiaries that success criteria set forth in the RMMMP have been met for the Initial (Temporary Management) period, Grantor will thereafter be responsible for all long-term maintenance monitoring and reporting in accordance with the Management Plan, with funding from an endowment established and held by Endowment Holder in a restricted interest-bearing account as described in the Management Plan. The activities required by the Management Plan include but are not limited to, the following:
(1) Maintenance. As further described in the Management Plan, Grantor shall implement a maintenance program for the Easement Property. Tasks include weed control and, if necessary, erosion control. In addition, trash that enters the Easement Property will be removed. A qualified restoration ecologist will regularly monitor the Conservation Property to ensure that trash is removed on a timely basis and maintenance tasks are completed. (2) Monitoring and Reporting. Periodic monitoring will be necessary after the 5-year period has ended in order to support the “good health in perpetuity” goal for the Easement Property. A qualified biologist will monitor the Easement Property once annually for 166
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10 years after the initial 5-year period during the peak of nesting season (generally April-May timeframe) to evaluate habitat conditions. Each monitoring visit will cover the entire Easement Property and will take no more than 2 days of 8 hours each, including travel time. Results will be summarized in an annual letter report to Grantee.
(3) Restoration. Replacement of vegetation and habitats described in the Management Plan destroyed or degraded by any reason provided adequate and timely funding of Grantee, except that Grantee shall not be required to fund replacement of vegetation and habitats destroyed or degraded by Grantor’s negligence. (4) Funding: Grantor’s obligation to implement and monitor the Management Plan is conditional upon timely receipt of the maximum not-to-exceed funding in the amount of $748,000 by Grantee as described in section 7 below. Grantor shall advance necessary costs on a short-term basis pending quarterly receipt of reimbursement by Grantee from the not-to-exceed funding amount paid by Grantee for installation, implementation, oversight and monitoring under the RMMMP and Management Plan. Grantor shall fund any additional costs that are necessary for implementation of the RMMMP and Management Plan to the extent that such costs exceed the maximum not-to-exceed amount funded by Grantee.

Grantor accepts the possibility that Grantee’s maximum contribution to an endowment established and held in a restricted interest-bearing account by Endowment Holder may need to be supplemented by additional contributions from Grantor to cover changes in costs and management requirements that are unknown when the endowment is established pursuant to the Management Plan, and Grantor agrees to make any necessary contributions to maintain the endowment at adequate levels to generate sufficient funds to conduct monitoring and maintenance in accordance with the Management Plan. The Principal Parties and Third-Party Beneficiaries will consult to determine if additional funds are required at conclusion of the shortterm RMMMP to ensure that the Management Plan is fully funded as necessary by Grantor.

6. Grantor’s Reserved Rights. Grantor, upon completion of its management obligations, reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from Grantor's ownership of the Easement Property, including the right to engage in or permit or invite others to engage in all uses of the Easement Property that are not prohibited or limited by, and are consistent with the purposes of, this Conservation Easement.

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implementing the RMMMP will be paid by Grantee to Grantor in accordance with the RMMMP. Subject to the maximum not-to-exceed collective endowment funding amount of $748,000 by Grantee, Grantee will remain financially responsible for implementation of the RMMMP until written confirmation is received from the Third-Party Beneficiaries that success criteria set for the RMMMP have been met for the Initial (Temporary Management) period. Endowment Holder will timely reimburse Grantor for all costs advanced or expended in accordance with the RMMMP subject to the maximum not-toexceed collective endowment funding amount of $748,000, with all costs exceeding that amount to be funded by Grantor.
b) Long-Term Permanent Management: Subject to the maximum not-to-exceed collective endowment funding amount of $748,000 by Grantee, all reasonable costs of implementing the Management Plan will be paid by Endowment Holder through quarterly disbursements by Endowment Holder to Grantor in accordance with the Management Plan. Grantee’s not-to-exceed maximum contribution to the endowment for long-term management of the Easement Property is $748,000, which amount is the maximum collective endowment funding contribution by Grantee for the Easement Areas described in both this Conservation Easement for Shorecliffs Golf Course Site 1 and in the separate conservation easement concurrently entered into between the Primary Parties hereto and GC-8, LLC for Shorecliffs Golf Course Sites 2 and 3.

8. If Grantor fails to maintain the Easement Property as provided in Sections 4 and 5 above, Grantee, its employees, contractors and agents may, at their sole option and discretion, and after providing reasonable written notice, enter onto the Property for the purpose of implementing the RMMMP and Management Plan. In such event, Grantee may be reimbursed from the Endowment Holder and may recover any costs from Grantor that exceed those reasonably required to implement the RMMMP and Management Plan, including but not limited to any additional funding Grantor is obligated to pay to the extent that necessary costs exceed the maximum collective not-to-exceed endowment amount funded by Grantee.

9. Grantee’s Remedies.
(a) If Grantee determines that a violation of this Conservation Easement has occurred or is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing the cure of such violation (“Notice of Violation”). (b) If Grantor fails to cure the violation within thirty (30) days after receipt of a Notice of Violation, or if the cure reasonably requires more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction for any or all of the following: to recover any damages to which Grantee may be entitled for violation of the terms of this Conservation Easement or for any injury to the Conservation Values of the Easement Property; to enjoin the violation, ex parte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the 168
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inadequacy of otherwise available legal remedies and with the Grantor stipulating to the same hereby and waiving the right to challenge any legal or equitable remedy on such grounds; to pursue any other legal or equitable relief, including but not limited to, the restoration of the Easement Property to the condition in which it existed prior to any violation or injury; or to otherwise enforce this Conservation Easement. Without limiting the liability of Grantor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Easement Property.
(c) If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate injury to the Conservation Values of the Easement Property, Grantee may pursue its remedies under this Conservation Easement without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee’s rights under this section apply equally to actual or threatened violations of this Conservation Easement. (d) Grantor agrees that Grantee’s remedies at law for any violation of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee’s remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to the remedies set forth in California Civil Code Section 815, et seq. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time.

10. Costs of Enforcement.
(a) Grantee: All costs incurred by Grantee, where Grantee is the prevailing party, in enforcing the terms of this Conservation Easement, the Management Plan or the RMMMP against Grantor, including, but not limited to, costs of suit and attorneys’ and experts’ fees, and any costs of restoration necessitated by Grantor’s negligence or breach of this Conservation Easement, shall be borne by Grantor.
(b) Grantor: All costs incurred by Grantor, when Grantor is the prevailing party, in enforcing the obligations of Grantee to fully and timely fund, subject to the Grantee’s not-toexceed maximum collective endowment funding amount, implementation of the Management Plan, including, but not limited to, costs of suit and attorneys’ and experts’ fees, and any additional maintenance or management costs necessitated by Grantee’s breach of its funding obligations under this Conservation Easement, shall be borne by Grantee.

11. Grantee’s Discretion. Enforcement of the terms of this Conservation Easement by Grantee shall be at the sole discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement shall not be deemed or construed to be a waiver of such term or of any 169
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subsequent breach of the same or any other term of this Conservation Easement or of any rights of Grantee under this Conservation Easement. No delay or omission by Grantee in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver.

12. Acts Beyond Grantor’s Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Easement Property resulting from (i) any natural cause beyond Grantor’s control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Easement Property resulting from such causes; or (ii) acts by Grantee or its employees.

13. Third-Party Beneficiaries’ Right of Enforcement. All rights and remedies conveyed to Grantee under this Conservation Easement, except for those contained in Section 11, shall extend to and are enforceable by the Third-Party Beneficiaries (as defined in Recital J).

These enforcement rights are in addition to, and do not limit, the rights of enforcement under the Management Plan or any applicable governmental permit governing construction or maintenance of the Culvert or implementation of the RMMMP or Management Plan. If at any time in the future Grantor uses, allows the use, or threatens to use or allow use of, the Easement Property for any purpose that is inconsistent with or in violation of this Conservation Easement then, despite the provisions of California Civil Code Section 815.7, the California Attorney General and the Third-Party Beneficiaries each has standing as an interested party in any proceeding affecting this Conservation Easement.

14. Access. This Conservation Easement does not convey a general right of access to the public.

15. Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments (general and special), fees, and charges of whatever description levied on or assessed against the Easement Property by a competent authority (collectively “Taxes”), including any Taxes imposed upon, or incurred as a result of this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep the Easement Property free from any liens (other than a security interest that is expressly subordinated to this Conservation Easement, as provided in Section 23(j)), including those arising out of any obligations incurred by Grantor for any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Easement Property.

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orders, liens or judgments (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with or related to: (1) the obligations specified herein or in the Management Plan or the RMMMP; (2) the existence or administration of this Conservation Easement or any action taken related thereto, including, without limitation, any environmental determination or permit issuance; and (3) the acts or omissions of Grantor, or Grantor’s directors, officers, managers, members, affiliates, employees, agents, contractors, volunteers or representatives on or related to the Golf Course Property or the Easement Property. If any Claim is brought against any of the Grantee's Indemnified Parties, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the Grantee's Indemnified Party or reimburse Grantee for all reasonable charges incurred for services of the California Attorney General or other counsel in defending the action or proceeding. (b) Grantor shall hold harmless, protect and indemnify Third-Party Beneficiaries (each a "Third-Party Beneficiary Indemnified Party" and collectively, "Third-Party Beneficiary Indemnified Parties") from and against any and all Claims arising from or in any way connected with or related to: (1) the Grantor’s obligations specified herein or in the Management Plan or the RMMMP; (2) the existence or administration of this Conservation Easement or any action taken related thereto, including, without limitation, any environmental determination or permit issuance; and (3) the acts or omissions of Grantor, or Grantor’s directors, officers, managers, members, affiliates, employees, agents, contractors, volunteers or representatives on or related to the Golf Course Property or the Easement Property. If any Claim is brought against any of the Third-Party Beneficiary Indemnified Parties by reason of any such Claim, then at the election of and upon written notice from the Third-Party Beneficiary Indemnified Party, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the applicable Third-Party Beneficiary Indemnified Party or reimburse the Third-Party Beneficiary Indemnified Party for all reasonable charges incurred for services of the California Attorney General or the U.S.

Department of Justice in defending the action or proceeding.

17. Extinguishment. If circumstances arise in the future that render the purposes of this Conservation Easement impossible to accomplish, this Conservation Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction.

18. Condemnation. This Conservation Easement is a "wildlife conservation easement" required by a State agency, the condemnation of which is prohibited except as provided in California Fish and Game Code Section 1348.3. If the Conservation Easement is condemned, the net proceeds from the condemnation shall be used in compliance with California Government Code Section 65966(j).

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the United States. Grantee shall require the assignee to record the assignment in the county where the Property is located. The failure of Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforcement in any way.

Grantee shall transfer all funds held in a restricted account pursuant to Section 6(c)(2) above concurrently with transfer of the Conservation Easement.

20. Transfer of Property. Grantor agrees to incorporate the terms of this Conservation Easement by reference in any deed or other legal instrument by which Grantor divests itself of any interest in all or any portion of the Easement Property, including, without limitation, a leasehold interest, and an acknowledgment and agreement by the transferee to comply with the terms hereof. Grantor further agrees to give written notice to Grantee and the Third-Party Beneficiaries of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Grantee or Third-Party Beneficiaries shall have the right to prevent any transfers in which prospective subsequent claimants or transferees refuse to accept the terms, covenants, conditions and restrictions of this Conservation Easement. Notwithstanding any attempt to do so, nothing shall release Grantor from its obligations hereunder. The failure of Grantor, Grantee, or Third-Party Beneficiaries to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way.

21. Notices. Any notice, demand, request, consent, approval, or other communication that any party desires or is required to give to the other parties shall be in writing delivered by electronic mail and, additionally, shall be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class United States mail, postage fully prepaid, addressed as follows:

To Grantor: OC RE-HAB 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Attn: George Zeber
To Grantee: The City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: City Clerk
With CC to: The City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: City Manager
172
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To CDFW: California Department of Fish and Wildlife
South Coast Region
3883 Ruffin Road
San Diego, CA 92123
Attn: Regional Manager
To USACE: U.S. Army Corps of Engineers
Los Angeles District
915 Wilshire Blvd.

Los Angeles, CA 90017
Attn: Chief, Regulatory Branch
To RWQCB: Regional Water Quality Control Board
San Diego Region
2375 Northside Drive, Suite 100
San Diego, CA 92108
Attn: Executive Officer
or to such other address as Grantor, Grantee, or Third-Party Beneficiaries shall designate by written notice to the other parties. Notice shall be deemed effective upon confirmed receipt of electronic mail or, in the event that receipt cannot be confirmed, upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, three (3) days after deposit into the United States mail.

22. Amendment. This Conservation Easement may be amended only by mutual written agreement of Grantor and Grantee and subject to the prior written consent of Third-Party Beneficiaries to comply with the requirements of any unexpired permit, which approval shall not be unreasonably withheld or delayed. Any such amendment shall be consistent with the purposes of this Conservation Easement and California law governing conservation easements and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of the County of Orange.

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(c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement, such action shall not affect the remainder of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement to a person or circumstance, such action shall not affect the application of the provision to any other persons or circumstances. (d) Entire Agreement. This instrument and all documents incorporated by reference herein, sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements of the parties relating to the Conservation Easement. No alteration or variation of this Conservation Easement shall be valid or binding unless contained in an amendment in accordance with Section

22. (e) No Forfeiture. Nothing contained in this Conservation Easement will result in a forfeiture or reversion of Grantor's title in any respect. Notwithstanding the foregoing, if CDFW reasonably determines that this Conservation Easement is not being held, monitored, or stewarded for conservation purposes in accordance with the requirements of Government Code Section 65967(e), then pursuant to Government Code Section 65967(e) the Conservation Easement shall revert to CDFW or to another public agency, governmental entity, special district, or nonprofit organization approved in advance in writing by CDFW. (f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement shall be binding upon, and inure to the benefit of, the Parties and their respective personal representatives, heirs, successors, and assigns, and shall constitute a servitude running in perpetuity with the Easement Property. (g) Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement, except under Section 16 and Section 23(i), shall terminate upon transfer of the party's interest in the Conservation Easement or Easement Property to the extent such transfer is approved in writing in advance by the other parties, and except that liability for acts, omissions or breaches of said party occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
(i) No Hazardous Materials Liability.
(1) Grantor represents and warrants that it does not have any actual knowledge or notice of any Hazardous Materials (defined below) or underground storage tanks existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or from the Easement Property, or transported to or from or affecting the Easement 174
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Property.

Without limiting the obligations of Grantor under Section 16 of this Conservation Easement, Grantor hereby releases and agrees to indemnify, protect and hold harmless the Grantee’s Indemnified Parties and Third-Party Beneficiary Indemnified Parties from and against any and all Claims (defined in Section 15) arising from, related to or connected with any Hazardous Materials or underground storage tanks present, alleged to be present, released in, onto, from or about, or otherwise associated with the Easement Property at any time, except that (A) this indemnification shall be inapplicable to the Grantee’s Indemnified Parties with respect to any Hazardous Materials placed, disposed, or released by Grantee and (B) this indemnification shall be inapplicable to Third-Party Indemnified Parties with respect to any Hazardous Materials placed, disposed, or released by any one of the Third-Party Beneficiary Indemnified Party. This release and indemnification includes, without limitation, Claims involving the violation or alleged violation of, or other failure to comply with, any Environmental Laws (defined below). If any action or proceeding is brought against any of the Grantee’s Indemnified Parties Third-Party Beneficiary Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from the applicable Grantee Indemnified Party or the Third-Party Beneficiary Indemnified Parties, defend such action or proceeding by counsel reasonably acceptable to the Grantee Indemnified Party or the Third-Party Beneficiary Indemnified Party or reimburse Third-Party Beneficiary for all charges incurred for services of the California Attorney General in defending the action or proceeding.
(2) Despite any contrary provision of this Conservation Easement, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee or any Third-Party Beneficiaries any of the following:
(A) The obligations or liability of an “owner” or “operator,” as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.; hereinafter, “CERCLA”); or (B) The obligations or liabilities of a person described in 42 U.S.C. § 9607(a)(3) or (4); or
(C) The obligations of a responsible person under any
applicable Environmental Laws; or
(D) The right to investigate and remediate any Hazardous Materials associated with the Easement Property; or
(E) Any control over Grantor’s ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Property. (3) The term "Hazardous Materials" includes, without limitation, (a) 175
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material that is flammable, explosive or radioactive; (b) petroleum products, including byproducts and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.; hereinafter, "RCRA"); the Hazardous Materials Transportation Act (49 U.S.C. Section5101, et seq.; hereinafter, "HTA"); the Hazardous Waste Control Law (California Health & Safety Code Section 25100, et seq.; hereinafter, "HCL"); the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety Code Section 25300, et seq.; hereinafter "HSA"), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable Environmental Laws now in effect or enacted after the date of this Conservation Easement.
(4) The term "Environmental Laws" includes, without limitation, CERCLA, RCRA, HTA, HCL, HSA, and any other federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials now existing or hereafter enacted, modified or amended. Grantor represents and warrants to Grantee and Third-Party Beneficiaries that activities upon and use of the Easement Property by Grantor, and Grantor’s agents, employees, invitees and contractors will comply with all Environmental Laws. (j) Warranty. Grantor represents and warrants that Grantor is the sole owner of fee simple title to the Easement Property; that there are no other conservation easements; there are no outstanding mortgages, liens, encumbrances or other interests in the Easement Property (including, without limitation, mineral interests) that may conflict or are inconsistent with this Conservation Easement and that have not been expressly subordinated to this Conservation Easement by a written, recorded Subordination Agreement approved by Grantee and Third-Party Beneficiaries.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Easement Property (other than a security interest that is expressly subordinated to this Conservation Easement), or grant, transfer, abandon or relinquish (each a “Transfer”) any mineral, air, or water right or any water associated with the Easement Property, without first obtaining the written consent of Grantee and Third-Party Beneficiaries.

Such consent may be withheld if Grantee or Third-Party Beneficiaries determine(s) that the proposed interest or Transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the Conservation Values of the Easement Property. This provision shall not limit the provisions of Section 3(d) or 4(n), nor prohibit transfer of a fee or leasehold interest in the Easement Property that is subject to this Conservation Easement and complies with Section 19. Grantor shall provide a copy of any recorded or unrecorded grant or Transfer document to the Grantee and Third-Party Beneficiaries.
(l) Recording. Grantee shall record this Conservation Easement in the Official Records of the County of Orange and may re-record it at any time as Grantee deems necessary to preserve its rights in this Conservation Easement. 176
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(m) Exhibits. The following Exhibit(s) referenced in this Conservation Easement are attached to and incorporated by reference in this Conservation Easement.

Exhibit A – Legal Description of Grantor OC Re-Hab 1, LLC Golf Course Property
Exhibit B – Legal Description of Easement Property
Exhibit C – RMMMP
Exhibit D – Long Term Habitat Management Plan
177
IN WITNESS WHEREOF, Grantor and Grantee have executed this Conservation Easement as of the day and year first above written.

GRANTEE CITY OF SAN CLEMENTE Grantor OC Re-Hab 1, LLC
By: _________________________________ By: _________________________________ Andy Hall
City Manager
George Zeber
Sole Managing Member
Date: ________________________________ Date: ________________________________ Attest:

By: _________________________________
Laura Campagnolo
City Clerk
Date: ________________________________
Approved as to form:

By: _________________________________
Elizabeth A. Mitchell
City Attorney

Date: ________________________________
178
(Notarial Acknowledgement of execution by Grantor must be attached.)

ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
)
County of )
On _________________, 2024, before me, ____________, Notary Public, personally appeared ________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)
179

EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR OC RE-HAB 1, LLC GOLF COURSE PROPERTY 180
181
182

EXHIBIT B

LEGAL DESCRIPTION OF EASEMENT PROPERTY
183

EXHIBIT C
RMMMP
184
Restoration, Mitigation, Monitoring, and Maintenance Plan Via Ballena-Shorecliffs Golf Course Landslide Repair
San Clemente, Orange County, California
April 26, 2021
Prepared For:

George Zeber
OC Re-Hab 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Prepared By:

Edith Read, PhD
E Read and Associates, Inc.

Orange, CA
(714) 366-8857
185
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TABLE OF CONTENTS
PURPOSE ................................................................................................................................................................................ 3 LOCATION.............................................................................................................................................................................. 3 PROJECT BACKGROUND...................................................................................................................................................... 3 PROJECT DESCRIPTION......................................................................................................................................................... 3 IMPACTS AND MITIGATION................................................................................................................................................. 4 RESTORATION AREA ......................................................................................................................................................................................... 4 OFF-SITE MITIGATION SITES 2 AND 3............................................................................................................................................................. 6 PLANT PALETTE NOTES ..................................................................................................................................................................................... 6 PRE-CONSTRUCTION PLAN IMPLEMENTATION ................................................................................................................. 7 NON-NATIVE SPECIES REMOVAL AND SITE CLEANUP...................................................................................................................................... 7 NATIVE SPECIES CUTTINGS, SALVAGE, & SOIL STOCKPILE ............................................................................................................................. 7 POST-CONSTRUCTION PLAN IMPLEMENTATION............................................................................................................... 7 IRRIGATION....................................................................................................................................................................................................... 7 PLANTING & SEEDING SCHEDULE .................................................................................................................................................................... 8 CONTAINER PLANTING ..................................................................................................................................................................................... 8 UPLAND HYDROSEEDING.................................................................................................................................................................................... 8 MAINTENANCE ...................................................................................................................................................................... 9 WEED CONTROL .............................................................................................................................................................................................. 9 EROSION CONTROL ......................................................................................................................................................................................... 9 MONITORING AND REPORTING....................................................................................................................................... 10 RESTORATION AREA .......................................................................................................................................................................................10 Completion Monitoring and Reporting.................................................................................................................................................10 Five-Year Monitoring and Reporting....................................................................................................................................................10 OFF-SITE MITIGATION SITES 2 AND 3...........................................................................................................................................................11 PERFORMANCE OBJECTIVES............................................................................................................................................. 11 RESTORATION AREA.........................................................................................................................................................................................11 Zones A, B, and C...................................................................................................................................................................................11 Zone D......................................................................................................................................................................................................11 OFF-SITE MITIGATION SITES 2 AND 3...........................................................................................................................................................11 ADAPTIVE MANAGEMENT ................................................................................................................................................ 12 LONG-TERM MANAGEMENT ............................................................................................................................................. 12 FINANCIAL ASSURANCES.................................................................................................................................................. 13

EXHIBITS
Exhibit A. Project and Mitigation Locations..................................................................................................................................................14

APPENDICES
A. Restoration Area Drawings
B. Off-Site Mitigation Area Drawings
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PURPOSE
The purpose of this Plan is to guide restoration, maintenance, and monitoring of habitat established and enhanced after repairs are made to a failed slope above the Shorecliffs Golf Course. The Plan includes performance standards to ensure that habitat objectives are met, and provides a process by which the restoration and enhancement sites are properly maintained over the short-term (5-year monitoring period) and in perpetuity by the Golf Club.

This document updates previous plans to reflect the current project description and mitigation measures, including comments and requests from staff of the California Coastal Commission.

LOCATION
The Shorecliffs Golf Course is located in the City of San Clemente, Orange County, California within the area covered by the U.S. Geological Survey’s 7.5-minute Dana Point Quadrangle. The proposed project is located at the 5th Hole. Exhibit A depicts the location of the project site (referred to in the plans as the Restoration Area) and areas where off-site mitigation is planned (Off-Site Mitigation Areas 1 and 2).

PROJECT BACKGROUND
Landslides occurred east and above the golf course in 2006 and in 2011, burying parts of a concrete channel that conveyed storm water run-off and nuisance waters within the unnamed creek. The landslides rendered four homes uninhabitable and are “red tagged” and another 7 homes were significantly affected. There is an unnamed creek located within the site. The landslides impounded water about 15 to 20 feet above the level of the concrete channel and compromised the drainage system. The impounded water saturated soils at the toe of the landslide area and on other parts of the slope that supports the numerous single-family residences located along Via Ballena and had potential to cause future landslides. It also saturated the toe of the slope that supports Interstate 5. In November 2015, the homeowners, the Shorecliffs Golf Club, and the City of San Clemente established a fund to implement necessary repairs. Following acquisition of emergency permits, repairs were initiated in 2018 to prevent further deterioration of the slope and property loss.

PROJECT DESCRIPTION
Appendices A and B provide copies of detailed drawings pertaining specifically to the Restoration Area and Off-Site Mitigation Areas 1 and 2. The complete set of drawings, including specifications for the box culvert and engineered slope, is provided to permitting agencies under separate cover. The primary components of the proposed slope restoration and stabilization project include: 1) installation of a 7 foot by 7 foot box culvert, from the I-5 Freeway to the Via Cascadita storm drain, to direct nuisance water and storm flows away from the bluff slope; 2) removal of a portion of the landslide debris and re- construction of the hillside with approximately 150,000 Cubic Yards of imported soil in a series of benches that will create a 2:1 slope with a gravity buttress that will anchor the toe of the slope; 3) installation of a series of back drains, terrace drains, down drains, and other surface and subsurface drainage improvements on the re-constructed slope; 4) restoration of the golf 187
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course playing surface; 5) restoration of wetland and other native vegetation in a manner that continues to provide wildlife habitat while maintaining slope stability.

IMPACTS AND MITIGATION
Prior to the repairs initiated in 2018, there were approximately 1.11 acres of State jurisdictional wetlands within the area encompassed by the Shorecliffs Golf Course’s 5th and 6th Holes. The 1.11 acres included the unnamed creek, contiguous riparian canopy, and adjacent wetlands. Federal jurisdiction included 0.59 acres of wetlands and 0.52 acres of nonwetland waters.

Mitigation for impacts consists of: a) establishment of new on-site wetland and riparian habitat in the southern section of the golf course’s 6th hole, totaling no less than 2.53 acres (1.18 acres creek/riparian, 1.35 acres wetland) and referred to in the drawings as the Restoration Area; b) on-site establishment of 1.22 acres of upland slope habitat upstream of the Restoration Area to provide a buffer and wildlife foraging area; c) on-site establishment of 1.07 acres of upland habitat within the fuel modification zone on the restored, stabilized slope below the residences; d) off-site restoration and enhancement of 7.27 acres of existing riparian habitat and wetland that runs through Shorecliffs golf course Holes 1, 7, 10, 11, and 12 (hereafter referred to as Off-Site Mitigation Sites 1 and 2). This enhancement will consist of channel modification to create an additional 2500 feet of channel with more natural-looking meander (see Appendix B), removal of invasive non-native vegetation and replacement of this vegetation with native species.

In summary for mitigation of wetland impacts from the landslide repair, the combination of onsite replacement and off-site restoration/enhancement described above totals 12.09 acres, resulting in a mitigation ratio of about 10.9 to 1 for impacts to State and Federal jurisdictional wetlands/waters. The plant species listed in the tables in this section are based on plant lists compiled as part of the pre-restoration biological surveys and jurisdictional delineation.

Restoration Area
Objectives for the Restoration Area are: a) at least 75 percent cover of native species by the end of the 5-year monitoring period; b) absence of moderately to highly invasive nonnative species; c) survival in the absence of irrigation. A total of 2.53 acres of wetland/riparian habitat and 2.29 acres of upland habitat will be established. Native plant material will consist of cuttings, container stock, and seed. There will be four planting zones: Zone A, Zone B, Zone C, and Zone D (see drawing in Appendix A for details). 188
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Zone A includes 1.18 acres of channel and will consist of riparian species.

Table 1 – Plant List, Zone A
Common Name Scientific Name Life Form Size* Quantity
California Bulrush Schoenoplectus californicus Herb Salvage 10 Arroyo Willow Salix lasiolepis Tree Salvage 12
Arroyo Willow Salix lasiolepis Tree Cuttings 12
California Sycamore Platanus racemosa Tree 15 g 10
Fremont Cottonwood Populus fremontii Tree 15 g 10
Total 54
Zone B includes 1.35 acres adjacent to the replaced channel in the lower canyon and shall consist primarily of wetland species.

Table 2 – Plant List, Zone B
Common Name Scientific Name Life Form Size Quantity
Fringed Willow Herb Epilobium ciliatum Herb Salvage 10
Alkali Heath Frankenia salina Herb Salvage 25
Yerba Mansa Anemopsis californica Herb 1 - 5 g 25
San Diego Sedge Carex spissa Herb 1 - 5 g 25
Wild Rhubarb Rumex hymenosepalus Herb Salvage 25
Pickleweed Salicornia pacifica Herb Salvage 30
Salt marsh fleabane Pluchea odorata Herb Salvage 10
California Sealavender Limonium californicum Herb Salvage 25 Saltbush Atriplex lentiformia Shrub Salvage/1 g 15
Total 205
Zone C consists of 1.22 acres of upland buffer/transitional habitat on a slope in the northwest side of the Restoration Area (labeled as Upland Buffer B in Exhibit A).

Table 3 – Plant List, Zone C
Common Name Scientific Name Life Form Quantity
California Poppy Eschscholzia californica Annual Herb 2.5 lb Arroyo Lupine Lupine succulentus Annual Herb 2.5 lb
Deerweed Acmispon glaber Perennial Herb 2.5 lb
Foothill Needlegrass Stipa lepida Perennial Grass 2.5 lb Purple Needlegrass Stipa pulchra Perennial Grass 2.5 lb Bush Sunflower Encelia californica Shrub 2.5 lb
Golden Yarrow Eriophyllum confertiflorum Shrub 2.5 lb
Goldenbush Isocoma menziesii Shrub 2.5 lb
California Buckwheat Eriogonum fasciculatum var. fasciculatum Shrub 15 lb Total 35 lb
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Zone D consists of 1.07 acres located within the fuel modification zones of adjacent singlefamily residences and therefore subject to thinning (labeled as Upland Buffer A in Exhibit A. So-called “ladder” fuels that worsen potential for fire, such as subshrubs and grasses, must be avoided. Therefore, only the evergreen species in Table 4 will be planted in this zone.

Table 4 – Plant List, Zone D
Common Name Scientific Name Life Form Size Quantity
Saltbush Atriplex lentiformia Shrub 5 - 15 g 20
Toyon Heteromeles arbutifolia Shrub 5 - 15 g 20
Total 40
Off-Site Mitigation Sites 1 and 2
Before beginning the slope repairs at the Restoration Area or in conjunction with them, the applicant’s contractor shall remove all invasive non-native trees, shrubs, and herbaceous species from Off-Site Mitigation Sites 1 and 2. The applicant’s contractor shall then modify the channel to create a more natural-appearing meander and plant the exposed soil with native trees, shrubs, and herbaceous species to replace the invasive exotics. The project restoration ecologist will advise as to placement of riparian, wetland, and upland species depending on localized conditions (e.g. in-channel vs. banks).

Table 5 – Plant List, Off-Site Mitigation Sites 1 and 2 Common Name Scientific Name Habitat/Life Form Size Quantity Arroyo Willow Salix lasiolepis Riparian Tree Cuttings 40 Cattail Typha domingensis Wetland Herb Transplant 200
Mulefat Baccharis salicifolia Transition Zone Shrub Cuttings 20 Fremont Cottonwood Populus fremontii Riparian Tree 5 - 15 g 10 Total 270
Plant Palette Notes
Cultivars or varieties shall not be used. Species shall not be substituted without consultation and approval by the project’s restoration ecologist. Quantities may be adjusted depending on availability at the time of planting. The container stock and seed shall be inspected to ensure that it is free of non-native ants and other pests immediately before being transported to the site. The project’s restoration ecologist shall inspect the stock again immediately upon arrival at the site. If non-native ants are found, delivery of the stock and/or seed in which they occur shall be refused and taken back to the nursery. 190
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PRE-CONSTRUCTION PLAN IMPLEMENTATION
Non-Native Species Removal and Site Cleanup
The California Invasive Plant Council (Cal-IPC) considers numerous non-native plant species as moderately to highly invasive. Examples include arundo, castor bean, fennel, thistle, tree tobacco, pampas grass, and ice plant. Under the supervision of the project’s restoration ecologist, the applicant’s contractor shall remove all moderately to highly invasive species. Removal shall be conducted before beginning, or in conjunction with, the proposed landslide repair activities.

The contractor shall also remove all debris left from golf course operations such as pieces of concrete, asphalt, and fencing.

Native Species Cuttings, Salvage, & Soil Stockpile
The following measures shall be implemented under the supervision of the project’s restoration ecologist:

1. The applicant’s contractor shall take cuttings of arroyo willow (Salix lasiolepis) from the individuals that occur within the unnamed creek at the Restoration Area so that they can be used for restoration. The cuttings shall be 2-inch diameter and at least 2 feet long and shall be treated with rooting compound, planted in 15-gallon containers filled with saturated soils taken from within the creek, and shall be grown and maintained on-site by the applicant’s contractor or by a local nursery.

2. The applicant’s contractor shall use heavy machinery to salvage the remainder of the arroyo willow after taking the cuttings and shall plant it immediately adjacent to the parts of the creek that are not to be disturbed or shall be stockpiled in a low depression capable of holding water. If stockpiled, it shall be watered and maintained on-site by the applicant’s contractor as necessary until it can be planted.

3. The applicant’s contractor shall also stockpile soil from the creek and use it to line the channel and parts of the restoration site.

POST-CONSTRUCTION PLAN IMPLEMENTATION
Irrigation
The water conveyance and capture system that will be installed as part of the proposed project will capture nuisance flows and convey them to the Restoration Area via gravity flow. The amount of water available is adequate to support wetland habitat but the upland container stock and seed must be temporarily irrigated in order to grow and establish it. Temporary irrigation may also be needed at Off-Site Mitigation Sites 1 and 2 in order to establish and grow plants.

1. After the landslide repairs have been completed a temporary above ground irrigation system shall be installed that has the ability to soak all areas within the 191
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upland areas of Zone C and shall install a permanent system in Zone D (for any necessary fire suppression).

2. The irrigation system shall consist of PVC pipe staked on grade at approximately ten feet on-center and at all corners, providing 100 percent coverage of the upland areas using spray and/or rotor heads as appropriate.

3. Irrigation heads may need to be raised up on staked risers to reach above developing plants to avoid blockage.

4. The irrigation system will only be used in the early fall and late spring seasons for the first three growing seasons to help establish the plants such that they can survive on their own from seasonal rainfall in Years 4 and 5.

5. Irrigation shall be phased out in Zones A, B, and C near the end of Year 3 prior to the rainy season per the direction the project’s restoration ecologist.

6. The permanent irrigation system in Zone D shall remain in place for any necessary fire suppression.

7. It is anticipated that the amount of water that is currently conveyed to the drainage at Off-Site Mitigation Sites 1 and 2 is sufficient to enhance and create additional habitat but temporary irrigation may initially be required in order to grow and establish plants. Installation of temporary irrigation at these sites shall be at the discretion of the projects restoration ecologist and if installed shall be phased out per the conditions for the Restoration Area.

Planting & Seeding Schedule
The applicant’s contractor shall prepare, plant, and seed the Restoration Area immediately after the repairs have been completed or in conjunction with them if possible and shall prepare and plant Off-Site Mitigation Sites 1 and 2 before or in conjunction with the repairs.

Container Planting
With the exception of Zone D in the Restoration Area (see below), plants shall be installed in a natural-appearing pattern, i.e. not in rows. Holes for container stock should be dug at least twice as wide as the root ball, with the crown of the plant left about 0.25 inch above grade for proper drainage. If the soil is dry it shall be irrigated and allowed to drain before the plant is installed. Plants shall be irrigated after installation to ensure good soilto-root contact.

In Zone D, plants shall be installed in a natural-appearing pattern but spaced at least 15 feet apart (as measured on center) per fire department specifications for fuel modification zones adjacent to residences.

Upland Hydroseeding
The hydroseed slurry shall include a mix of the upland species listed for Zone C in Table 3, clean wood fiber or cellulose mulch, and binder (tackifier) as recommended by the project’s restoration ecologist.
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MAINTENANCE
Weed Control

1. Weeds shall be removed during late winter through early summer, as necessary, before they set seed and/or before they reach approximately 12 inches in height under the direction and on-site supervision by the project’s restoration ecologist.

2. At least two weeding events should occur Year 1 - 5 during season of normal rainfall, with more or less as dictated by actual amount and rainfall intervals.

3. Weed control shall mainly employ hand pulling, mechanical methods. Spot spraying of herbicides will be employed only as a last resort, if deemed necessary by the project’s restoration ecologist. Per recommendations of the water quality staff of the California Coastal Commission, spray of landscaping chemicals in or within 25 feet of any drainage swale be avoided, and use of landscaping chemicals within the project area should be minimized to the extent feasible.

4. All weed control activities shall be conducted with on-site supervision provided by the project’s restoration ecologist. Per recommendations of water quality staff of the California Coastal Commission, an Integrated Pest Management (IPM) approach shall be employed to the extent feasible, to minimize the use of landscaping chemicals and to prevent the degradation of coastal water quality.

Erosion Control
Erosion control measures specified in the drawings submitted to permitting agencies shall be used. However, if the project’s restoration ecologist determines that installation of additional erosion control measures and BMP’s are necessary, they shall be installed per their direction. Erosion control measures may include use of sandbags, fiber rolls, silt fencing, and/or matting. If fiber rolls are used, they shall be certified weed free. In addition, the following specification shall be included per request of water quality staff of the California Coastal Commission:
“The use of temporary erosion and sediment control products (such as fiber rolls, erosion control blankets, mulch control netting, and silt fences) that incorporate plastic netting shall be prohibited, to minimize wildlife entanglement and plastic debris pollution. Only 100% biodegradable (not photodegradable) natural fiber netting shall be allowed.”
If any erosion control measures and BMP’s are installed, they shall remain in place and be maintained until the project’s restoration ecologist determines that the plants have become established and that seed has germinated and growing, and that ground cover is adequate.

Additional maintenance activities may include, but are not limited to, pest control, disease control, the installation of erosion control measures and BMP’s, additional planting and seeding, and irrigation repair and/or adjustments as necessary. 193
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MONITORING AND REPORTING
Restoration Area

COMPLETION MONITORING AND REPORTING
The project’s restoration ecologist will visit the restoration site twice per month (or as necessary) during the first 120-days, after planting and seeding, to monitor site conditions.

They will determine if the salvaged species, cuttings, and the container stock are becoming adequately established, verify that seed application and germination has been successful, check that irrigation is adequate, and identify any problems or potential problems with regards to plan implementation. During this period, the restoration ecologist will provide recommendations in writing to the applicant’s contractor regarding any necessary remedial actions. The applicant’s contractor shall be responsible for ensuring that all remedial actions are taken and completed in a timely manner.

The project’s restoration ecologist will provide a Completion Report to the applicant for submittal to permitting agencies within 30 days of completion of the 120-day postrestoration monitoring period. The report will include details and maps as necessary with regards to site preparation, irrigation, the number and names of plants salvaged and replanted, the species names and amount of container stock used, the species names and amount of seed applied, and any deviations from the plant palettes.

FIVE-YEAR MONITORING AND REPORTING
The project’s restoration ecologist will visit the restoration site once during May and once during September for a period of 5 years or until they determine that the performance standards are met (see below).

The restoration ecologist will establish photo points at a minimum of 4 locations within the restoration site for comparative analysis between years.

The restoration ecologist will determine percentage survival of salvaged species and container stock used in the restoration, relative cover of native species and non-native species, and will identify and mark non-native species so that they can be removed by the maintenance crew.

The data will be compared to performance standards are being met and shall be included in annual reports (see below). The focus of all efforts shall be the eradication of species identified by Cal-IPC as being moderately to highly invasive.

An annual monitoring report shall be provided to the applicant for submittal to permitting agencies no later than December 31 of each monitoring year. Each report will include the following:

1. Comparisons to performance criteria;

2. Photographs from established reference points;
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3. Description of maintenance activities including the use of any replacement container stock and seed and methods used for control of non-native species;

4. Recommendations for remedial actions necessary to ensure success of the restoration. The property owner shall be responsible for ensuring that all remedial actions are taken and completed in a timely manner.

Off-Site Mitigation Sites 1 and 2
All monitoring and reporting activities described above for the Restoration Area shall also be required for Off-Site Mitigation Sites 1 and 2, including but not limited to: site visits twice a year, establishment of locations for comparative photograph analysis, evaluation using specific performance objectives, and preparation of an annual monitoring report to be submitted no later than December 31 of each monitoring year.

PERFORMANCE OBJECTIVES
Restoration Area

ZONES A, B, AND C

1. Target values for relative cover in Year 1 is 20 percent, Year 2, 30 percent, and Year 3, 40 percent;

2. Survival of the container stock shall be 75 percent in Years 1, 2, and 3;

3. Cover of native species is at least 75 percent by the end of the 5-year reporting period;

4. Absence of moderately to highly invasive non-native species;

5. Vegetation must survive at least 2 years without irrigation (i.e. phase out irrigation at the end of Year 3).

ZONE D
Due to the fact that this zone will be maintained according to the fire department’s fuel modification requirements, the only objective for this zone is to ensure that it is free of moderately to highly invasive plant species that could eventually invade native communities in the other zones. The irrigation system will remain in place for fire prevention and suppression purposes.

Off-Site Mitigation Sites 1 and 2
All performance objectives listed above for Zones A, B, and C of the Restoration Area shall be adopted for Off-Site Mitigation Sites 1 and 2, including but not limited to: at least 75 percent native cover by the end of the initial five-year monitoring period, absence of moderately to highly invasive species, and survival in the absence of irrigation.

It should be noted that the golf course has no control over what adjacent residential land owners plant, therefore it is possible that removal of invasive exotics will need to continue periodically for an indefinite period of time.
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ADAPTIVE MANAGEMENT
While the intent of this RMMMP is to create, establish, and enhance wetland and upland habitats there is always a risk that the mitigation fails or partially fails due to unforeseen circumstances. The project’s restoration ecologist will visit the Restoration Area and OffSite Mitigation Sites 1 and 2 twice per year to monitor and compare to performance objectives. If the performance objectives are not met, the restoration ecologist will identify the problems during the scheduled site visits, determine the cause(s) of the problems, and provide the property owner or their representative recommendations that will correct them. The property owner shall be responsible for ensuring that all remedial action is taken and completed in a timely manner so that the performance standards can be met.

The project’s consultant shall continue the monitoring and reporting measures summarized in this five-year RMMMP until all performance objectives are met. Any proposed changes to this RMMMP will be submitted to permitting agencies for approval prior to implementation.

LONG-TERM MANAGEMENT
A detailed long-term management plan is provided under separate cover. In summary, the Shorecliffs Golf Club and the City of San Clemente completed an identical project in 1995 in a different location at the Shorecliffs Golf Course and entered into a long-term management agreement. The arrangement that was agreed upon by the parties provided for a recorded Conservation and Management Easement, whereby the City of San Clemente would maintain the storm pipe and Shorecliffs Golf Club would maintain the wetlands and non-wetland waters. There is a mechanism provided for in the agreement that allows the City of San Clemente to have oversight over its long-term management maintenance of the other project and it provides for a tax lien to be implemented in the event that Shorecliffs Golf Club fails to adequately maintain the wetlands and nonwetlands so that the City of San Clemente can take over the maintenance. It is the intention of the applicant to enter into a similar agreement with the City of San Clemente. A copy of the agreement is provided separately.

Zone D in the Restoration Area is located within the fuel modification zones of the singlefamily residences along Via Ballena. As such, the vegetation planted in Zone D may be subject to fuel modification as it starts reaching maturity. If the home owners are mandated by the Fire Department to fuel-modify/weed-abate Zone D, they shall do so by removing and reducing the amount of cover of non-native species, by removing all species that are moderately and highly invasive, and if necessary shall trim the native woody vegetation per fire department requirements. Native herbaceous species shall be mowed to no less than 6 inches in height but only after it has set seed. The best time to fuel- modify/weed-abate is within the 2 weeks before the date that the activity must be completed as mandated by the Fire Department.
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FINANCIAL ASSURANCES
The applicant anticipates that it will cost approximately $592,000 to implement this RMMMP and monitor the restoration sites for 5-years and includes an additional $118,400 as a contingency. The cost breakdown is as follows:

Engineering $8,500
Permits $3,500
Installation of low flow pipe $25,000
Grading (includes Geo and Rip Rap) $15,000
Dredge 2500 linear feet of channel $25,000
Planting (includes nursery stock) $235,000
Maintenance (5 years includes re-planting) $240,000
Monitoring (5 years) $40,000
Contingency (20% of costs) $118,400
TOTAL $710,400
The applicant will provide a Financial Assurance Instrument as a contingency for failed mitigation, naming the agencies as beneficiary in the Format and Amount as requested by each individual Agency.

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Exhibit A. Project and Mitigation Locations
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APPENDIX A

RESTORATION AREA PLANS
Note: these pertain to habitat areas only. Engineering details of the culvert, slope repair, and other specifications are provided in the full set of drawings under separate cover.
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APPENDIX B

OFF-SITE MITIGATION AREA PLANS
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203

EXHIBIT D

LONG TERM HABITAT MANAGEMENT PLAN
204
Long Term Habitat Management Plan
for the Shorecliffs Wetland Conservation Area
April 26, 2021
Prepared For:

George Zeber
OC Re-Hab 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Prepared By:

Edith Read, PhD
E Read and Associates, Inc.

Orange, CA
(714) 366-8857
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TABLE OF CONTENTS
PROJECT BACKGROUND AND PROPOSED MITIGATION................................................................................. 3 RESPONSIBLE PARTIES....................................................................................................................................... 4 FINANCIAL SUMMARY ...................................................................................................................................... 4 INITIAL CONSTRUCTION, MAINTENANCE, AND MONITORING COSTS........................................................................................... 4 LONG-TERM ONGOING COSTS (AFTER 5 YEARS) ....................................................................................................................... 5 RESTORATION AND ENHANCEMENT METHODS .............................................................................................. 6 RESTORATION AREA.................................................................................................................................................................... 6 OFF-SITE MITIGATION SITES 2 AND 3 ........................................................................................................................................ 6 RESTORATION GOALS, OBJECTIVES, AND SUCCESS CRITERIA ....................................................................... 6 MONITORING AND REPORTING PROGRAM.................................................................................................... 7 MAINTENANCE PROGRAM............................................................................................................................... 7 CONTINGENCY MEASURES AND ADAPTIVE MANAGEMENT .......................................................................... 7 REFERENCES ....................................................................................................................................................... 7 Exhibits
Exhibit A. Site Locations within the Conservation Area………………………………………9 206
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PROJECT BACKGROUND AND PROPOSED MITIGATION
In 2006 and 2011, slope sections above the Shorecliffs Golf Course in San Clemente, California failed, resulting in loss of residences, damaging others, and threatening additional residences. Engineering studies indicated that the primary cause of slope failure was perennial water flow that undermined the toe of the slope. The volume of this water increased over many years as runoff from off-site developments and roads was directed into a single drainage. Analyses indicate that this drainage probably had only seasonal flow historically but it became perennial over time, eventually resulting in establishment of riparian and freshwater wetland vegetation along its length (FBC 2016a,b). This vegetation consisted of willows and emergent vegetation such as cattails and bulrushes. Prior to the repairs initiated in 2018, there were approximately 1.11 acres of State jurisdictional wetlands within the area encompassed by the Shorecliffs Golf Course’s 5th and 6th Holes. The 1.11 acres included the unnamed creek, contiguous riparian canopy, and adjacent wetlands. Federal jurisdiction included 0.59 acres of wetlands and 0.52 acres of non-wetland waters.

In order to mitigate impacts from slope repair and stabilization, the project applicant proposed wetland restoration and enhancement at the three locations shown in Exhibit A and described as follows: a) a new on-site wetland in the southern section of the golf course’s 6th hole, totaling 2.53 acres and referred to as the Restoration Area; b) on-site establishment of 1.22 acres of upland slope habitat upstream of the Restoration Area to provide a buffer and wildlife foraging area; c) on-site establishment of 1.07 acres of upland habitat within the fuel modification zone on the restored, stabilized slope below the residences; d) off-site restoration and enhancement of existing 7.27 acres of riparian habitat and wetland that runs through Shorecliffs golf course Holes 1, 7,10, 11, and 12, referred to as Off-Site Mitigation Sites 1 and

2. Collectively, these areas will be protected and maintained in perpetuity as the Shorecliffs Wetland Conservation Area (SWCA). An Endowment will fund long-term maintenance of the SWCA.

Details of restoration and maintenance during the first five years after slope repairs are completed are described in a Restoration, Mitigation, Monitoring, and Maintenance Plan (RMMMP) provided under separate cover and summarized here. The rest of this Plan updates the July 27, 2020 version to comply with requirements of the California Coastal Commission and addresses long-term management and maintenance beyond the first five years.
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RESPONSIBLE PARTIES
OC Re-Hab 1, LLC will be responsible for all long-term maintenance of the Restoration Area. The Golf Course will be responsible for Off-Site Mitigation Sites 1 and 2 upon acceptance of the initial Improvements by the Agencies at year 5 or longer. The costs associated with the maintenance will be paid out of an endowment. The Golf Course, OC Re-Hab 1, LLC and the City of San Clemente have entered into an agreement which is incorporated into the Conservation Easement whereby the City will maintain oversight authority over the maintenance operations in perpetuity. The City will not be responsible for conducting maintenance activities, but will enforce compliance with the LTHMP through the implementation of a Tax Lien to ensure payment of services to outside vendors or contractors in the event the Golf Course fails to meet the requirements contained within the LTHMP.

The following parties will take the lead on the indicated tasks and hire contractors as needed to provide specialized expertise, such as biological monitoring.

Initial installation, maintenance, and monitoring of all sites for the first five years:

OC Rehab 1, LLC. Contact: George Zeber, President, Western Pacific Construction Services, 13101 Barrett Hill Circle, North Tustin, CA 92705. Telephone: 714-734-8224. Email:

[email protected].

Long-term maintenance and monitoring of the Restoration Area after five years:

OC Rehab 1, LLC. Contact: George Zeber, President, Western Pacific Construction Services, 13101 Barrett Hill Circle, North Tustin, CA 92705. Telephone: 714-734-8224. Email:

[email protected].

Long-term maintenance and monitoring of Off-Site Mitigation Sites 2 and 3 after five years:

Shorecliffs Golf Course. Contact: Jim Vaughn, 501 Avenida Vaquero, San Clemente, CA.

Telephone: 949-492-1178. Email: [email protected].

FINANCIAL SUMMARY
Initial Construction, Maintenance, and Monitoring Costs Table 1 summarizes initial costs listed in the RMMMP. These costs cover construction plus five years of compliance with permit conditions, including maintenance and monitoring after construction and restoration tasks are completed. OC Rehab will be responsible for ensuring that the 5-year success criteria are met. If, in the view of the permitting agencies, the success criteria are not met, OC Rehab will continue to be responsible for maintenance and monitoring until the success criteria are met. 208
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Table 1. Estimated Initial Costs
Component Cost
Engineering $8,500
Permits $3,500
Installation of Low Flow Pipe $25,000
Grading (includes Geo and Rip Rap) $15,000
Dredge 2500 lf of channel $25,000
Planting (includes nursery stock) $235,000
Maintenance (5 years includes re-planting) $240,000
Monitoring (5 years) $40,000
Contingency (20% of costs) $118,400
Total $710,400
The applicant will provide a Financial Assurance Instrument as a contingency for failed mitigation, naming the agencies as beneficiary in the Format and Amount as requested by each individual Agency.

Long-Term Ongoing Costs (after 5 years)
After the 5-year success criteria are met, the long-term maintenance and monitoring period will begin.

The long-term financial analysis prepared for this Plan is based on the following assumptions over a period of 10 years:
• Long-term maintenance will be performed by a half-time (0.5 FTE) position at a rate of $20/hr, including benefits and other overhead;
• Monitoring for long-term health and to identify maintenance issues (if any) will be conducted by a biologist once annually (see Section 6), and will include a report identifying issues (if any) and recommendations.

It is expected that the applicant and agencies will review the estimated costs periodically and update the 10-year estimate as needed depending on site conditions.

Long-term costs will be funded through interest on principal from an Endowment dedicated to the Conservation Area. For example, based on a capitalization rate of 4.5 percent and an estimated yearly maintenance and monitoring cost of $40,000 for a period of 10 years, a principal of $888,900 would be required to support maintenance and monitoring. This is only an example. The principal and capitalization rate could change depending on future site maintenance needs and market conditions, respectively.
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RESTORATION AND ENHANCEMENT METHODS
The RMMMP provides details of how the habitat areas will be restored and enhanced, as well as plant palettes and planting zones for each site. Methods are summarized in the following sections.

Restoration Area
The wetland and riparian habitats consist of planting Zones A and B as described in the RMMMP. As slope repairs are completed or in conjunction with them, flows will be from the north (below Interstate 5) to the Restoration Area through a 7 ft. x 7 ft. box culvert via gravity flow.

The upland habitat consists of Zones C and D as described in the RMMMP, and is located on slopes at the north end of the Restoration Area. Non-native species will be removed and replaced with native seed and container stock. Zone D is in a fuel modification zone below residences, therefore the plant palette is necessarily restricted to species approved by the Fire Department and it is expected that some fuel modification (thinning, trimming) may be required as vegetation matures.

Off-Site Mitigation Sites 1 and 2
Restoration and enhancement activities at Sites 1 and 2 will consist primarily of removing invasive species, establishing a meandering channel braided with the existing channel, and planting native riparian vegetation. Existing non-native trees with a trunk diameter of more than 8 inches will be removed if, in the judgment of the project’s restoration biologist, the tree is invasive or otherwise poses a threat to the native ecosystem.

RESTORATION GOALS, OBJECTIVES, AND SUCCESS CRITERIA
Long-term maintenance of the Conservation Area has three goals: 1) long-term health of the ecosystem; 2) self-sustainability, as much as possible in an urbanized watershed; 3) co-existence with surrounding communities in terms of preventing conditions that could lead to health or safety problems. Attaining these goals all three sites in the Conservation Area will involve a maintenance approach that balances habitat values with human health and safety issues. For example, it is expected that emergent vegetation will require periodic thinning for mosquito abatement and flood control, but this will need to be done in consultation with a qualified biologist and outside of the bird nesting season to avoid violation of Federal and State laws that protect nesting birds.

Specific long-term objectives are as follows:

1. Regarding non-native invasive species, same objectives as the five-year criteria:
a. Average cover by non-native species with an invasive threat status of “Low” (as listed in California Invasive Plants Council’s most recent database) is 10 percent or less of the area of each site.
b. Absence of high or moderately invasive species as listed in the Cal-IPC database.

Examples include fennel and pampas grass.

2. With regard to native wetland vegetation, and riparian vegetation where surface water is present, cover will be maintained in the range of 70 to 80 percent; 100 percent cover and high density of marsh vegetation, especially bulrushes and cattails, is to be avoided in order to prevent clogging of drain inlets/outlets, facilitate mosquito abatement, and avoid potential for flooding.

3. Native cover in the upland buffer area in the Restoration Area, outside of fuel modification zones below the residences, will be at least 75 percent.
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MONITORING AND REPORTING PROGRAM
Periodic monitoring will be necessary after the 5-year period has ended in order to support the “good health in perpetuity” goal for the ecosystem. However, the frequency and intensity of such monitoring will depend on conditions at the end of the 5-year period. While annual monitoring indefinitely cannot be required of the project applicant, it is possible that special status plant and/or wildlife species may colonize the restored habitat areas, and the presence of such species could affect maintenance methods and schedules. Birds may establish nests, further affecting when and how maintenance is conducted.

Ideally, because of these variables, a long-term monitoring and reporting program would be prepared by a qualified biologist as part of their report submitted at the end of the fifth monitoring year.

However, estimation of long-term costs requires that some assumptions be made. For the purpose of this Plan we have assumed a maximum of once-annual monitoring for 10 years after the initial 5-year period by a qualified biologist during the peak of nesting season (generally April-May timeframe) to evaluate habitat conditions. Each monitoring visit to cover the entire Conservation Area would take no more than 2 days of 8 hrs each, including travel time. Results will be summarized in an annual letter report. Copies of all reports will be submitted to the City of San Clemente.

MAINTENANCE PROGRAM
The RMMMP provides details of a maintenance program for the Conservation Area for the first five years. Tasks include (but are not necessarily limited to) weed control, erosion control, trash removal, and inspection and cleaning of inlets and culverts. A qualified restoration ecologist will monitor the Conservation Area to ensure that maintenance tasks are completed as needed for health of the system.

CONTINGENCY MEASURES AND ADAPTIVE MANAGEMENT
The RMMMP specifies that if survivorship of container stock falls below 75 percent during the interim monitoring period, the plants will be replaced. However, recommendations for remedial planting will be based on data and observations of the monitoring biologist. For example, it is possible that factors outside of the control of the permittee, such as excessive damage by rodents or trampling from human intrusion, will contribute to plant mortality. If so, remedial planting would not be a viable solution and the monitoring biologist will be tasked with recommending alternative solutions.

Additional factors outside of the control of the permittee, such as vandalism, a spill of oil or other hazardous material, or fire could substantially affect habitat conservation goals and ability to achieve success criteria within a specified timeframe. For the purpose of this plan, “substantial effect” is defined as a factor or event that reduces average cover or survivorship of planted native vegetation by more than 20 percent of the success criterion in a given year OR reduces the probability of reaching the 5- year success criteria.

If any of the above occurs, the permittee will consult with a qualified biologist on developing measures to address the problems in a manner that will still achieve the overall goals for the Conservation Area: longterm health, self-sustainability as much as possible in an urban watershed, and co-existence with surrounding communities such that public health and safety are not compromised.

REFERENCES
Forde Biological Consultants (FBC), 2016a. Jurisdictional Delineation, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

Forde Biological Consultants, 2016b. Biological Assessment, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.
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Forde Biological Consultants, 2016c. Restoration, Mitigation, Monitoring, & Maintenance Plan, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

Forde Biological Consultants, 2016d. California Gnatcatcher (Polioptila californica) Survey. Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

City of San Clemente
Attn: City Clerk
910 Calle Negocio
San Clemente, CA 92673
Space Above This Line Reserved For Official Use Only

CONSERVATION EASEMENT DEED

AND MAINTENANCEAGREEMENT
(Including Third-Party Beneficiaries)
Shorecliffs Golf Course Sites 2 and 3
This CONSERVATION EASEMENT DEED AND MAINTENANCE AGREEMENT ("Conservation Easement") is made as of March 20, 2024, by and between GC-8, LLC, a California limited liability company (“Grantor”), OC RE-HAB 1, LLC, a California limited liability company (“Manager”) and the City of San Clemente, a California municipal corporation ("Grantee"), (collectively, the “Primary Parties”) with reference to the following facts:

B. Manager is a limited liability company duly organized and existing under the laws of the State of California, is registered to do business in the State of California and consists of George Zeber as its sole member and manager. For the purpose of the work described below, Manager is an agent of Grantor.

C. Grantee is a municipal corporation in the State of California with jurisdiction over the Golf Course Property and the Easement Property, and responsibility for local permitting and approval of construction within the Golf Course Property and the Easement Property. Grantee holds existing easements for a box culvert in, under, and around Sites 2 & 3 that was built in Attachment 5
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1994-1995 known as MO1 (the “MO1 Culvert”).

D. Slopes bordering the Golf Course failed between 2006 and 2011, necessitating slope stabilization and repairs together with construction of a different culvert on Site 1 (“Culvert”) and other drainage improvements in and after 2018. The Site 1 Culvert is a 7-foot by 7-foot box culvert and associated transition structures connecting to property owned by the California Department of Transportation (“CalTrans") at the upstream point and connecting to existing drainage improvements at Via Cascadita at the downstream point. As mitigation for impacts from these repairs and improvements, the Easement Property has been required to be reserved in perpetuity for conservation purposes pursuant to California Coastal Commission’s April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20-0446.
1 E. The surface of the Easement Property is suitable for contouring and revegetation with native riparian and upland vegetation possessing environmental values of importance to Grantee, the Third Party Beneficiaries identified in Recitals I and J below, and the people of the State of California. Upon completion of revegetation, the Easement Property will provide high quality natural, restored and/or enhanced habitat for wetland species, an upland buffer of coastal bluff/saltbush scrub, as well as restored, created, enhanced and/or preserved jurisdictional waters of the United States. Individually and collectively, these wildlife and habitat values comprise the “Conservation Values” of the Easement Property.

F. The Primary Parties have entered into a settlement agreement (“Settlement Agreement”) governing repair of failed slopes, construction of the Culvert, and short-term revegetation and management of the Easement Property, as well as other property within the Golf Course, pursuant to a Restoration, Mitigation, Monitoring and Management Plan (“RMMMP”), a copy of which is attached hereto as Exhibit C and incorporated herein fully by this reference. Under the Settlement Agreement, Grantor states its intent to convey this Conservation Easement over the Easement Property to Grantee, and Manager will be responsible for implementation of the RMMMP, under the supervision of and with maximum not-to-exceed funding by Grantee as stated in section 7 below, as holder of this Conservation Easement, and any additional funding to be made by Grantor to the extent that necessary costs exceed the maximum not-to-exceed amount funded by Grantee. The Primary Parties have concurrently also entered into a separate conservation easement that applies to the Shorecliffs Golf Course Site 1, which is also deed restricted as required by the California Coastal Commission.2 The Primary Parties intend for the maximum not-to-exceed funding amount by Grantee as provided in section 7 below, to be the maximum collective contribution by Grantee for the Easement Areas described in both this Conservation Easement for Shorecliffs Golf Course Sites 2 and 3 and in the separate conservation easement entered into between City of San Clemente as Grantee and OC RE-HAB 1, LLC as Grantor for Shorecliffs Golf Course Site 1. 1 California Coastal Commission April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20-0446 (“CDP 5-20-0446”).
2 CDP 5-20-0446.
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G. In addition, the Settlement Agreement entered into by the Primary Parties also ensures permanent protection of the Conservation Values of the Easement Property through maintenance of the Easement Property in accordance with the Long-Term Habitat Management Plan for the Shorecliffs Wetland Conservation Area dated April 26, 2021 (the “Management Plan”), which is attached hereto as Exhibit D and incorporated herein fully by this reference.

J. The Primary Parties acknowledge that CCC, CDFW, USACE, and RWQCB (collectively, the “Third-Party Beneficiaries”) are third-party beneficiaries of this Conservation Easement with right of access to the Easement Property and rights to enforce all of the obligations of Manager and Grantor including, but not limited to, Grantor’s and Manager’s duties under Sections 4 and 5, and all other rights and remedies of the Grantee under this Conservation Easement.

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native species and their habitats implemented in accordance with the Management Plan. To that end, Grantor agrees that upon recordation of this Conservation Easement, all present and future development rights appurtenant to, allocated, implied, reserved or inherent in the Easement Property are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Golf Course Property, the Easement Property, nor any other property adjacent or otherwise.

2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee, exercisable in the Grantee’s discretion:
(a) To preserve and protect the Conservation Values of the Easement Property.
(b) To enter the Easement Property at reasonable times, in order to monitor compliance with and otherwise enforce the terms of this Conservation Easement, the RMMMP and the Management Plan, to implement, at Grantee's sole discretion, any RMMMP or Management Plan activities that have not been implemented by Manager or Grantor, and to access, maintain, repair and replace the existing MO1 Culvert and associated City-owned facilities, all after reasonable notice and request by Grantee. In the event that the City finds it necessary to enter on and disturb the surface area of the Easement Area in order to maintain, repair, reconstruct, or enlarge the existing MO1 Culvert, the City shall be responsible only to restore any section of the flood control facility affected to the same load specifications as originally constructed and to backfill with compacted earth to grade off the surrounding property following completion of such flood control facility-related activities. The City shall not be responsible for replacing or restoring any landscaping, golf course improvements, golf cart paths, parking lots, or anything else removed or damaged during such work. The City agrees to use reasonable efforts to minimize any inconvenience to Grantor or Grantor’s adjoining property and to minimize the period of time that Easement Area will be disturbed; provided, however, the Grantee shall not be responsible under any circumstances for any loss of revenue, lost profits, consequential or other damages of any kind or nature that may occur or result from Grantee exercising its rights.
(c) To prevent any activity on or use of the Easement Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Property that may be damaged by any act, failure to act, or any use or activity that is inconsistent with the purposes of this Conservation Easement. (d) To require that all mineral, air and water rights as Grantee deems necessary to preserve and protect the biological resources and Conservation Values of the Easement Property shall remain a part of and be put to beneficial use upon the Easement Property, consistent with the purposes of this Conservation Easement, provided that the exercise of such rights does not interfere with the design, maintenance, repair, replacement or functioning of the MO1 Culvert.
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3. Prohibited Uses.
(a) Any activity on or use of the Easement Property that is inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following uses and activities by Grantor, Grantor’s agents, and third parties are expressly prohibited:
(1) Unseasonable watering; use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals; weed abatement activities; incompatible fire protection activities; and any and all other activities and uses that may impair or interfere with the purposes of this Conservation Easement, except as specifically authorized on a short-term basis by the RMMMP or by the Management Plan for operation of the Golf Course or protection of adjacent properties.
(2) Use of off-road vehicles or use of any motorized vehicles except on existing roadways, except as specifically provided in the Management Plan. (3) Agricultural activity of any kind.
(4) Recreational activities of any kind, including, but not limited to, horseback riding, biking, hunting or fishing, except for minimal intrusions related to authorized uses of the adjacent Golf Course Property that do not adversely affect the Conservation Values of the Easement Property.
(5) Commercial, industrial, residential, or institutional uses. (6) Any legal or de facto division, subdivision or partitioning of the Easement Property, except as necessary or convenient to separate ownership of the Easement Property from the Golf Course Property for the purpose of implementing the RMMMP or Management Plan.
(7) Construction, reconstruction, erection or placement of any building, billboard or sign, or any other structure or improvement of any kind except as specifically provided in the RMMMP or Management Plan, which RMMMP and Management Plan include operation and maintenance of the Culvert.
(8) Deposition or accumulation of soil, trash, ashes, refuse, waste, biosolids or any other materials. (9) Intentional planting, introduction, or dispersal of any non-native or exotic plant or animal species.
(10) Filling, dumping, excavating, dredging, mining, drilling, removing or exploring for or extracting minerals, loam, soil, sand, gravel, rock or other material on or 218
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below the surface of the Easement Property, or granting or authorizing surface entry for any of these purposes.
(11) Altering the surface or general topography of the Easement Property, including but not limited to any alterations to habitat, construction of new roads or trails, paving or otherwise covering the Easement Property with concrete, asphalt or any other impervious material except for those habitat management activities specified in the RMMMP or Management Plan.
(12) Subject to (b) below, removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (i) fire breaks, (ii) maintenance of existing foot trails or roads, (iii) removal of invasive non-native vegetation in connection with authorized management activities, or (iv) prevention or treatment of disease. (13) Manipulating, impounding, or altering any natural water course, body of water or water circulation on the surface of the Easement Property, and any activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters, except for operation and maintenance of the Culvert as specifically provided in the RMMMP and Management Plan.
(14) Without the prior written consent of Grantee, which consent Grantee may withhold in its sole discretion, transferring, encumbering, selling, leasing, or otherwise separating the mineral, air or water rights for the Easement Property; changing the place or purpose of use of the water rights, except as set forth specifically in the Management Plan; abandoning or allowing the abandonment of, by action or inaction, any water or water rights, ditch or ditch rights, spring rights, reservoir or storage rights, wells, ground water rights, or other rights in and to the use of water historically used on or otherwise appurtenant to the Easement Property, including but not limited to: (i) riparian water rights; (ii) appropriative water rights; (iii) rights to waters which are secured under contract with any irrigation or water district, to the extent such waters are customarily applied to the Easement Property; and (iv) any water from wells that are in existence or may be constructed in the future on the Easement Property. (15) Engaging in any use or activity that may violate, or fail to comply with, California Coastal Commission’s April 16, 2021 approval with conditions of Grantor’s Coastal Development Permit application no. 5-20-0446, relevant federal, state, or local laws, regulations, or policies applicable to Grantor, the Easement Property, or the use or activity in question.
(b) Notwithstanding anything else in this Conservation Easement, nothing in this Conservation Easement prevents Grantee from exercising all its rights under easements that are recorded prior in time to this Conservation Easement, e.g., its rights to access, maintain, repair and replace the MO1 Culvert. Any trees, shrubs, or other vegetation that Grantee removes or destroys in the exercise of its prior-in-time rights are not required to be replaced. In the event 219
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that a third party governmental entity or applicable law requires any replacement, such replacement shall be the responsibility of the Grantor. Restoration of golf course improvements damaged during the Grantee’s exercising of its existing rights shall remain the responsibility of the Grantor. The Grantee shall not be responsible under any circumstances for any loss of revenue, lost profits, consequential or other damages of any kind or nature that may occur or result from Grantee exercising its rights

4. Grantor’s and Manager’s Temporary Duties and Obligations. Grantor and Manager, as agent of Grantor, shall undertake all necessary actions to install and temporarily manage the RMMMP for Sites 2 and 3 including, but not limited to, the following:
(a) Initial Construction and Temporary Maintenance. Implementation of the RMMMP for Sites 2 and 3 in the locations shown on Exhibits A and B and described in Exhibit C, will be supervised, installed, and completed by Grantor and Manager, as contemplated in that certain Agreement and Release of Claims entered into in settlement of Joseph A. Arriola, etc., et al. v. L.H.C.

Investments LLC, etc. et al., Orange County Superior Court Case No. 30- 2011-00450299-CU-CD-CXC.
(b) Grantor, through its Manager, will provide regular (annual) reports to Grantee on the status of RMMMP installation and satisfaction of success criteria in the RMMMP.
(c) Funding: Grantor and Manager’s management of the RMMMP for Sites 2 and 3 is conditional upon timely receipt of the funding described in section 7 below. Grantor and Manager shall have no obligation to fund its installation or management activities pursuant to the RMMMP, except for (1) advancing necessary costs pending timely receipt of reimbursement by Grantee and (2) necessary costs that exceed the maximum not-to-exceed amount funded by Grantee.

5. Grantor’s Long-Term Duties and Obligations. Grantor shall undertake all necessary actions to observe and carry out the obligations of Grantor under the RMMMP and Management Plan, including but not limited to, the following:
(a) Recordation of Easement. This Conservation Easement will be recorded in the official records of the Orange County Recorder immediately upon execution by all the Primary Parties.

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restricted interest-bearing account as described in the Management Plan. The activities required by the Management Plan include but are not limited to, the following:
(1) Maintenance. As further described in the Management Plan, Grantor shall implement a maintenance program for the Easement Property. Tasks include weed control and, if necessary, erosion control. In addition, trash that enters the Easement Property will be removed. A qualified restoration ecologist will regularly monitor the Conservation Property to ensure that trash is removed on a timely basis and maintenance tasks are completed. (2) Monitoring and Reporting. Periodic monitoring will be necessary after the 5-year period has ended in order to support the “good health in perpetuity” goal for the Easement Property. A qualified biologist will monitor the Easement Property once annually for 10 years after the initial 5-year period during the peak of nesting season (generally April-May timeframe) to evaluate habitat conditions. Each monitoring visit will cover the entire Easement Property and will take no more than 2 days of 8 hours each, including travel time. Results will be summarized in an annual letter report to Grantee. Grantor shall provide the monitoring reports to the Grantee per the time schedules in the RMMMP and the Management Plan. (3) Restoration. Replacement of vegetation and habitats described in the Management Plan destroyed or degraded by any reason provided adequate and timely funding of Grantee, except that Grantee shall not be required to fund replacement of vegetation and habitats destroyed or degraded by Grantor’s negligence. (4) Funding: Grantor’s obligation to implement and monitor the Management Plan is conditional upon timely receipt of the maximum not-to-exceed funding in the amount of $748,000 by Grantee as described in section 7 below. Grantor shall advance necessary costs on a short-term basis pending quarterly receipt of reimbursement by Grantee from the not-to-exceed funding amount paid by Grantee for installation, implementation, oversight and monitoring under the RMMMP and Management Plan. Grantor shall fund any additional costs that are necessary for implementation of the RMMMP and Management Plan to the extent that such costs exceed the maximum not-to-exceed amount funded by Grantee.

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engage in or permit or invite others to engage in all uses of the Easement Property that are not prohibited or limited by, and are consistent with the purposes of, this Conservation Easement.

7. Grantee’s Duties. Grantee will be responsible for the maximum not-to-exceed contribution of $748,000 for endowment funding of Grantor’s obligations for installation, implementation, oversight and monitoring under the RMMMP and Management Plan and as provided therein and hereunder, which amount is the maximum collective contribution by Grantee for the Easement Areas described in both this Conservation Easement for Shorecliffs Golf Course Sites 2 and 3 and in the separate conservation easement concurrently entered into between City of San Clemente as Grantee and OC RE-HAB 1, LLC as Grantor for Shorecliffs Golf Course Site 1.
a) Initial (Temporary) Management: Subject to the maximum not-to-exceed collective endowment funding amount of $748,000 by Grantee, all reasonable costs of implementing the RMMMP will be paid by Grantee to Grantor in accordance with the RMMMP. Subject to the maximum not-to-exceed collective endowment funding amount of $748,000 by Grantee, Grantee will remain financially responsible for implementation of the RMMMP until written confirmation is received from the Third-Party Beneficiaries that success criteria set for the RMMMP have been met for the Initial (Temporary Management) period. Endowment Holder will timely reimburse Grantor and Manager for all costs advanced or expended in accordance with the RMMMP subject to the maximum not-to-exceed collective endowment funding amount of $748,000, with all costs exceeding that amount to be funded by Grantor.
b) Long-Term Permanent Management: Subject to the maximum not-to-exceed collective endowment funding amount of $748,000 by Grantee, all reasonable costs of implementing the Management Plan will be paid by Endowment Holder through quarterly disbursements by Endowment Holder to Grantor in accordance with the Management Plan. Grantee’s not-to-exceed maximum contribution to the endowment for long-term management of the Easement Property is $748,000, which amount is the maximum collective endowment funding contribution by Grantee for the Easement Areas described in both this Conservation Easement for Shorecliffs Golf Course Sites 2 and 3 and in the separate conservation easement concurrently entered into between City of San Clemente as Grantee and OC RE-HAB 1, LLC as Grantor for Shorecliffs Golf Course Site 1.

8. If Grantor and/or Manager fails to maintain the Easement Property as provided in Sections 4 and 5 above, Grantee, its employees, contractors and agents may, at their sole option and discretion, and after providing reasonable written notice, enter onto the Property for the purpose of implementing the RMMMP and Management Plan. In such event, Grantee may be reimbursed from the Endowment Holder and may recover any costs from Grantor that exceed those reasonably required to implement the RMMMP and Management Plan, including but not limited to any additional funding Grantor is obligated to pay to the extent that necessary costs exceed the maximum collective not-to-exceed endowment amount funded by Grantee. 222
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9. Grantee's Remedies.
(a) If Grantee determines that a violation of this Conservation Easement has occurred or is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing the cure of such violation (“Notice of Violation”). (b) If Grantor fails to cure or require Manager, as its agent, to cure the violation within thirty (30) days after receipt of a Notice of Violation, or if the cure reasonably requires more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction for any or all of the following: to recover any damages to which Grantee may be entitled for violation of the terms of this Conservation Easement or for any injury to the Conservation Values of the Easement Property; to enjoin the violation, ex parte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies and with the Grantor stipulating to the same hereby and waiving the right to challenge any legal or equitable remedy on such grounds; to pursue any other legal or equitable relief, including but not limited to, the restoration of the Easement Property to the condition in which it existed prior to any violation or injury; or to otherwise enforce this Conservation Easement.

Without limiting the liability of Grantor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Easement Property. (c) If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate injury to the Conservation Values of the Easement Property, Grantee may pursue its remedies under this Conservation Easement without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee’s rights under this section apply equally to actual or threatened violations of this Conservation Easement. (d) Grantor agrees that Grantee’s remedies at law for any violation of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee’s remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to the remedies set forth in California Civil Code Section 815, et seq. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time.

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against Grantor, including, but not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by Grantor’s negligence or breach of this Conservation Easement, shall be borne by Grantor.
(b) Grantor: All costs incurred by Grantor or Manager, as its agent, when Grantor or Manager is the prevailing party, in enforcing the obligations of Grantee to fully and timely fund, subject to the Grantee’s not-to-exceed maximum collective endowment funding amount, implementation of the Management Plan, including, but not limited to, costs of suit and attorneys’ and experts’ fees, and any additional maintenance or management costs necessitated by Grantee’s breach of its funding obligations under this Conservation Easement, shall be borne by Grantee.

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

12. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Easement Property resulting from (i) any natural cause beyond Grantor's control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Easement Property resulting from such causes; or (ii) acts by Grantee or its employees.

These enforcement rights are in addition to, and do not limit, the rights of enforcement under the Management Plan or any active governmental permit governing construction or maintenance of the Culvert or implementation of the RMMMP or Management Plan. If at any time in the future Grantor uses, allows the use, or threatens to use or allow use of, the Easement Property for any purpose that is inconsistent with or in violation of this Conservation Easement then, despite the provisions of California Civil Code Section 815.7, the California Attorney General and the Third-Party Beneficiaries each has standing as an interested party in any proceeding affecting this Conservation Easement.

14. Access. This Conservation Easement does not convey a general right of access to the public.

15. Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments 224
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(general and special), fees, and charges of whatever description levied on or assessed against the Easement Property by a competent authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep the Easement Property free from any liens (other than a security interest that is expressly subordinated to this Conservation Easement, as provided in Section 23(j)), including those arising out of any obligations incurred by Grantor for any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Easement Property.

16. Hold Harmless.
(a) Grantor shall hold harmless, protect and indemnify Grantee and its officials, officers, employees, agents, contractors, volunteers and representatives (each a “Grantee Indemnified Party” and collectively, “Grantee’s Indemnified Parties”) from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation reasonable attorneys’ fees and experts’ fees), causes of action, claims, demands, proceedings, orders, liens or judgments (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with or related to: (1) the obligations specified herein or in the Management Plan or the RMMMP; (2) the existence or administration of this Conservation Easement or any action taken related thereto, including, without limitation, any environmental determination or permit issuance; and (3) the acts or omissions of Grantor or Manager, or their respective directors, officers, managers, members, affiliates, employees, agents, contractors, volunteers or representatives on or related to the Golf Course Property or the Easement Property. If any Claim is brought against any of the Grantee's Indemnified Parties, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the Grantee's Indemnified Party or reimburse Grantee for all reasonable charges incurred for services of the California Attorney General or other counsel in defending the action or proceeding.
(b) Grantor shall hold harmless, protect and indemnify Third-Party Beneficiaries (each a "Third-Party Beneficiary Indemnified Party" and collectively, "Third-Party Beneficiary Indemnified Parties") from and against any and all Claims arising from or in any way connected with or related to: (1) the Grantor’s obligations specified herein or in the Management Plan or the RMMMP; (2) the existence or administration of this Conservation Easement or any action taken related thereto, including, without limitation, any environmental determination or permit issuance; and (3) the acts or omissions of Grantor or Manager, or their respective directors, officers, managers, members, affiliates, employees, agents, contractors, volunteers or representatives on or related to the Golf Course Property or the Easement Property.

If any Claim is brought against any of the Third-Party Beneficiary Indemnified Parties by reason of any such Claim, then at the election of and upon written notice from the Third-Party Beneficiary Indemnified Party, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the applicable Third-Party Beneficiary Indemnified Party or reimburse the Third-Party Beneficiary Indemnified Party for all reasonable charges incurred for services of the California Attorney General or the 225
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U.S. Department of Justice in defending the action or proceeding.

19. Transfer of Easement. This Conservation Easement may be assigned or transferred by Grantee only to Third-Party Beneficiaries or another organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3 and Government Code Section 65967 (and any successor under other provision(s) then applicable), or the laws of the United States. Grantee shall require the assignee to record the assignment in the county where the Property is located. The failure of Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforcement in any way.

Grantee shall transfer all funds held in a restricted account pursuant to Section 6(c)(2) above concurrently with transfer of the Conservation Easement.

To Grantor: GC-8, LLC
C/O Law Office of Hon. James B. Copelan (Ret.)
226
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840 East Green Street, Suite 120
Pasadena, CA 91101
To Grantee: The City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: City Clerk
With CC to: The City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: City Manager
To Manager: OC RE-HAB 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Attn: George Zeber
To CDFW: California Department of Fish and Wildlife
South Coast Region
3883 Ruffin Road
San Diego, CA 92123
Attn: Regional Manager
To USACE: U.S. Army Corps of Engineers
Los Angeles District
915 Wilshire Blvd.

Los Angeles, CA 90017
Attn: Chief, Regulatory Branch
To RWQCB: Regional Water Quality Control Board
San Diego Region
2375 Northside Drive, Suite 100
San Diego, CA 92108
Attn: Executive Officer
or to such other address as Grantor, Grantee, Manager or Third-Party Beneficiaries shall designate by written notice to the other parties. Notice shall be deemed effective upon confirmed receipt of electronic mail or, in the event that receipt cannot be confirmed, upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, three (3) days after deposit into the United States mail.

22. Amendment. This Conservation Easement may be amended only by mutual 227
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written agreement of Grantor, Manager and Grantee and subject to the prior written consent of Third-Party Beneficiaries to comply with the requirements of any unexpired permit, which approval shall not be unreasonably withheld or delayed. Any such amendment shall be consistent with the purposes of this Conservation Easement and California law governing conservation easements and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of the County of Orange.

23. Additional Provisions.
(a) Controlling Law. The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California, disregarding the conflicts of law principles of such state.
(b) Liberal Construction. Despite any general rule of construction to the contrary, this Conservation Easement shall be liberally construed to effectuate the purposes of this Conservation Easement and the policy and purpose of California Civil Code Section 815, et. seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. (c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement, such action shall not affect the remainder of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement to a person or circumstance, such action shall not affect the application of the provision to any other persons or circumstances. (d) Entire Agreement. This instrument and all documents incorporated by reference herein, sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements of the parties relating to the Conservation Easement. No alteration or variation of this Conservation Easement shall be valid or binding unless contained in an amendment in accordance with Section

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servitude running in perpetuity with the Easement Property. (g) Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement, except under Section 16 and Section 23(i), shall terminate upon transfer of the party's interest in the Conservation Easement or Easement Property to the extent such transfer is approved in writing in advance by the other parties, and except that liability for acts, omissions or breaches of said party occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
(i) No Hazardous Materials Liability.
(1) Grantor and Manager, as its agent, represent and warrant that neither of them has any actual knowledge or notice of any Hazardous Materials (defined below) or underground storage tanks existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or from the Easement Property, or transported to or from or affecting the Easement Property.

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the following:
(A) The obligations or liability of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.; hereinafter, "CERCLA"); or (B) The obligations or liabilities of a person described in 42 U.S.C. § 9607(a)(3) or (4); or
(C) The obligations of a responsible person under any
applicable Environmental Laws; or
(D) The right to investigate and remediate any Hazardous Materials associated with the Easement Property; or
(E) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Property. (3) The term "Hazardous Materials" includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including byproducts and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.; hereinafter, "RCRA"); the Hazardous Materials Transportation Act (49 U.S.C. Section5101, et seq.; hereinafter, "HTA"); the Hazardous Waste Control Law (California Health & Safety Code Section 25100, et seq.; hereinafter, "HCL"); the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety Code Section 25300, et seq.; hereinafter "HSA"), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable Environmental Laws now in effect or enacted after the date of this Conservation Easement.
(4) The term "Environmental Laws" includes, without limitation, CERCLA, RCRA, HTA, HCL, HSA, and any other federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials now existing or hereafter enacted, modified or amended. Grantor represents and warrants to Grantee and Third-Party Beneficiaries that activities upon and use of the Easement Property by Grantor, Manager and their respective agents, employees, invitees and contractors will comply with all Environmental Laws.
(j) Warranty. Grantor represents and warrants that Grantor is the sole owner of fee simple title to the Easement Property; that there are no other conservation easements; there are no outstanding mortgages, liens, encumbrances or other interests in the Easement Property (including, without limitation, mineral interests) that may conflict or are inconsistent with this Conservation Easement and that have not been expressly subordinated to this Conservation 230
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Easement by a written, recorded Subordination Agreement approved by Grantee and Third-Party Beneficiaries.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Easement Property (other than a security interest that is expressly subordinated to this Conservation Easement), or grant, transfer, abandon or relinquish (each a “Transfer”) any mineral, air, or water right or any water associated with the Easement Property, without first obtaining the written consent of Grantee and Third-Party Beneficiaries.

Exhibit A – Legal Description of Grantor GC-8, LLC Golf Course Property
Exhibit B – Legal Description of Easement Property
Exhibit C – RMMMP
Exhibit D – Long Term Habitat Management Plan
231
IN WITNESS WHEREOF, Grantor, Manager and Grantee have executed this Conservation Easement as of the day and year first above written.

GRANTEE CITY OF SAN CLEMENTE Manager OC Re-Hab 1, LLC
By: _________________________________ By: _________________________________ Andy Hall
City Manager
George Zeber
Sole Managing Member
Date: ________________________________ Date: ________________________________ Attest:

By: _________________________________
Laura Campagnolo
City Clerk
Date: ________________________________
Approved as to form: Grantor GC-8, LLC
By: _________________________________ By: __________________________________ Elizabeth A. Mitchell
City Attorney
Fah Sean Leong
By: Hon. James B. Copelan (Ret.)
Attorney in Fact
Date: ________________________________ Date: ________________________________ Approved as to form:

By: ___________________________________
Hon. James B. Copelan (Ret.), Attorney in Fact
232
(Notarial Acknowledgement of execution by Grantor must be attached.)

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)
233

EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR GC-8, LLC GOLF COURSE PROPERTY 234
235
236
237

EXHIBIT B

LEGAL DESCRIPTION OF EASEMENT PROPERTY
238

EXHIBIT C
RMMMP
239
Restoration, Mitigation, Monitoring, and Maintenance Plan Via Ballena-Shorecliffs Golf Course Landslide Repair
San Clemente, Orange County, California
April 26, 2021
Prepared For:

George Zeber
OC Re-Hab 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Prepared By:

Edith Read, PhD
E Read and Associates, Inc.

Orange, CA
(714) 366-8857
240
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APPENDICES
A. Restoration Area Drawings
B. Off-Site Mitigation Area Drawings
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This document updates previous plans to reflect the current project description and mitigation measures, including comments and requests from staff of the California Coastal Commission.

PROJECT DESCRIPTION
Appendices A and B provide copies of detailed drawings pertaining specifically to the Restoration Area and Off-Site Mitigation Areas 1 and 2. The complete set of drawings, including specifications for the box culvert and engineered slope, is provided to permitting agencies under separate cover. The primary components of the proposed slope restoration and stabilization project include: 1) installation of a 7 foot by 7 foot box culvert, from the I-5 Freeway to the Via Cascadita storm drain, to direct nuisance water and storm flows away from the bluff slope; 2) removal of a portion of the landslide debris and re- construction of the hillside with approximately 150,000 Cubic Yards of imported soil in a series of benches that will create a 2:1 slope with a gravity buttress that will anchor the toe of the slope; 3) installation of a series of back drains, terrace drains, down drains, and other surface and subsurface drainage improvements on the re-constructed slope; 4) restoration of the golf 242
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course playing surface; 5) restoration of wetland and other native vegetation in a manner that continues to provide wildlife habitat while maintaining slope stability.

Restoration Area
Objectives for the Restoration Area are: a) at least 75 percent cover of native species by the end of the 5-year monitoring period; b) absence of moderately to highly invasive nonnative species; c) survival in the absence of irrigation. A total of 2.53 acres of wetland/riparian habitat and 2.29 acres of upland habitat will be established. Native plant material will consist of cuttings, container stock, and seed. There will be four planting zones: Zone A, Zone B, Zone C, and Zone D (see drawing in Appendix A for details). 243
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Zone A includes 1.18 acres of channel and will consist of riparian species.

Table 3 – Plant List, Zone C
Common Name Scientific Name Life Form Quantity
California Poppy Eschscholzia californica Annual Herb 2.5 lb Arroyo Lupine Lupine succulentus Annual Herb 2.5 lb
Deerweed Acmispon glaber Perennial Herb 2.5 lb
Foothill Needlegrass Stipa lepida Perennial Grass 2.5 lb Purple Needlegrass Stipa pulchra Perennial Grass 2.5 lb Bush Sunflower Encelia californica Shrub 2.5 lb
Golden Yarrow Eriophyllum confertiflorum Shrub 2.5 lb
Goldenbush Isocoma menziesii Shrub 2.5 lb
California Buckwheat Eriogonum fasciculatum var. fasciculatum Shrub 15 lb Total 35 lb
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Table 5 – Plant List, Off-Site Mitigation Sites 1 and 2 Common Name Scientific Name Habitat/Life Form Size Quantity Arroyo Willow Salix lasiolepis Riparian Tree Cuttings 40 Cattail Typha domingensis Wetland Herb Transplant 200
Mulefat Baccharis salicifolia Transition Zone Shrub Cuttings 20 Fremont Cottonwood Populus fremontii Riparian Tree 5 - 15 g 10 Total 270
Plant Palette Notes
Cultivars or varieties shall not be used. Species shall not be substituted without consultation and approval by the project’s restoration ecologist. Quantities may be adjusted depending on availability at the time of planting. The container stock and seed shall be inspected to ensure that it is free of non-native ants and other pests immediately before being transported to the site. The project’s restoration ecologist shall inspect the stock again immediately upon arrival at the site. If non-native ants are found, delivery of the stock and/or seed in which they occur shall be refused and taken back to the nursery. 245
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The contractor shall also remove all debris left from golf course operations such as pieces of concrete, asphalt, and fencing.

Native Species Cuttings, Salvage, & Soil Stockpile
The following measures shall be implemented under the supervision of the project’s restoration ecologist:

3. The applicant’s contractor shall also stockpile soil from the creek and use it to line the channel and parts of the restoration site.

1. After the landslide repairs have been completed a temporary above ground irrigation system shall be installed that has the ability to soak all areas within the 246
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upland areas of Zone C and shall install a permanent system in Zone D (for any necessary fire suppression).

3. Irrigation heads may need to be raised up on staked risers to reach above developing plants to avoid blockage.

5. Irrigation shall be phased out in Zones A, B, and C near the end of Year 3 prior to the rainy season per the direction the project’s restoration ecologist.

6. The permanent irrigation system in Zone D shall remain in place for any necessary fire suppression.

Upland Hydroseeding
The hydroseed slurry shall include a mix of the upland species listed for Zone C in Table 3, clean wood fiber or cellulose mulch, and binder (tackifier) as recommended by the project’s restoration ecologist.
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MAINTENANCE
Weed Control

2. At least two weeding events should occur Year 1 - 5 during season of normal rainfall, with more or less as dictated by actual amount and rainfall intervals.

Additional maintenance activities may include, but are not limited to, pest control, disease control, the installation of erosion control measures and BMP’s, additional planting and seeding, and irrigation repair and/or adjustments as necessary. 248
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MONITORING AND REPORTING
Restoration Area

The restoration ecologist will establish photo points at a minimum of 4 locations within the restoration site for comparative analysis between years.

An annual monitoring report shall be provided to the applicant for submittal to permitting agencies no later than December 31 of each monitoring year. Each report will include the following:

1. Comparisons to performance criteria;

2. Photographs from established reference points;
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3. Description of maintenance activities including the use of any replacement container stock and seed and methods used for control of non-native species;

PERFORMANCE OBJECTIVES
Restoration Area

ZONES A, B, AND C

1. Target values for relative cover in Year 1 is 20 percent, Year 2, 30 percent, and Year 3, 40 percent;

2. Survival of the container stock shall be 75 percent in Years 1, 2, and 3;

3. Cover of native species is at least 75 percent by the end of the 5-year reporting period;

4. Absence of moderately to highly invasive non-native species;

5. Vegetation must survive at least 2 years without irrigation (i.e. phase out irrigation at the end of Year 3).

It should be noted that the golf course has no control over what adjacent residential land owners plant, therefore it is possible that removal of invasive exotics will need to continue periodically for an indefinite period of time.
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Zone D in the Restoration Area is located within the fuel modification zones of the singlefamily residences along Via Ballena. As such, the vegetation planted in Zone D may be subject to fuel modification as it starts reaching maturity. If the home owners are mandated by the Fire Department to fuel-modify/weed-abate Zone D, they shall do so by removing and reducing the amount of cover of non-native species, by removing all species that are moderately and highly invasive, and if necessary shall trim the native woody vegetation per fire department requirements. Native herbaceous species shall be mowed to no less than 6 inches in height but only after it has set seed. The best time to fuel- modify/weed-abate is within the 2 weeks before the date that the activity must be completed as mandated by the Fire Department.
251
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252
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Exhibit A. Project and Mitigation Locations
253
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APPENDIX A

RESTORATION AREA PLANS
Note: these pertain to habitat areas only. Engineering details of the culvert, slope repair, and other specifications are provided in the full set of drawings under separate cover.
254
255
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APPENDIX B

OFF-SITE MITIGATION AREA PLANS
257
258

EXHIBIT D

LONG TERM HABITAT MANAGEMENT PLAN
259
Long Term Habitat Management Plan
for the Shorecliffs Wetland Conservation Area
April 26, 2021
Prepared For:

George Zeber
OC Re-Hab 1, LLC
13101 Barrett Hill Circle
North Tustin, CA 92705
Prepared By:

Edith Read, PhD
E Read and Associates, Inc.

Orange, CA
(714) 366-8857
260

2. Collectively, these areas will be protected and maintained in perpetuity as the Shorecliffs Wetland Conservation Area (SWCA). An Endowment will fund long-term maintenance of the SWCA.

The following parties will take the lead on the indicated tasks and hire contractors as needed to provide specialized expertise, such as biological monitoring.

Initial installation, maintenance, and monitoring of all sites for the first five years:

OC Rehab 1, LLC. Contact: George Zeber, President, Western Pacific Construction Services, 13101 Barrett Hill Circle, North Tustin, CA 92705. Telephone: 714-734-8224. Email:

[email protected].

Long-term maintenance and monitoring of the Restoration Area after five years:

OC Rehab 1, LLC. Contact: George Zeber, President, Western Pacific Construction Services, 13101 Barrett Hill Circle, North Tustin, CA 92705. Telephone: 714-734-8224. Email:

[email protected].

Long-term maintenance and monitoring of Off-Site Mitigation Sites 2 and 3 after five years:

Shorecliffs Golf Course. Contact: Jim Vaughn, 501 Avenida Vaquero, San Clemente, CA.

Telephone: 949-492-1178. Email: [email protected].

FINANCIAL SUMMARY
Initial Construction, Maintenance, and Monitoring Costs Table 1 summarizes initial costs listed in the RMMMP. These costs cover construction plus five years of compliance with permit conditions, including maintenance and monitoring after construction and restoration tasks are completed. OC Rehab will be responsible for ensuring that the 5-year success criteria are met. If, in the view of the permitting agencies, the success criteria are not met, OC Rehab will continue to be responsible for maintenance and monitoring until the success criteria are met. 263
LTHMP - Shorecliffs
revised 04/26/2021 5
Table 1. Estimated Initial Costs
Component Cost
Engineering $8,500
Permits $3,500
Installation of Low Flow Pipe $25,000
Grading (includes Geo and Rip Rap) $15,000
Dredge 2500 lf of channel $25,000
Planting (includes nursery stock) $235,000
Maintenance (5 years includes re-planting) $240,000
Monitoring (5 years) $40,000
Contingency (20% of costs) $118,400
Total $710,400
The applicant will provide a Financial Assurance Instrument as a contingency for failed mitigation, naming the agencies as beneficiary in the Format and Amount as requested by each individual Agency.

Long-Term Ongoing Costs (after 5 years)
After the 5-year success criteria are met, the long-term maintenance and monitoring period will begin.

It is expected that the applicant and agencies will review the estimated costs periodically and update the 10-year estimate as needed depending on site conditions.

Specific long-term objectives are as follows:

Examples include fennel and pampas grass.

3. Native cover in the upland buffer area in the Restoration Area, outside of fuel modification zones below the residences, will be at least 75 percent.
265
LTHMP - Shorecliffs
revised 04/26/2021 7

Ideally, because of these variables, a long-term monitoring and reporting program would be prepared by a qualified biologist as part of their report submitted at the end of the fifth monitoring year.

REFERENCES
Forde Biological Consultants (FBC), 2016a. Jurisdictional Delineation, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

Forde Biological Consultants, 2016b. Biological Assessment, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.
266
LTHMP - Shorecliffs
revised 04/26/2021 8
Forde Biological Consultants, 2016c. Restoration, Mitigation, Monitoring, & Maintenance Plan, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

Forde Biological Consultants, 2016d. California Gnatcatcher (Polioptila californica) Survey. Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA.

Forde Biological Consultants, 2016e. Least Bell’s Vireo (Vireo bellii pusillus) Survey, Via Ballena Shorecliffs Golf Course Landslide Repair. Prepared for OC Re-Hab 1, North Tustin, CA. 267
LTHMP - Shorecliffs
revised 04/26/2021 9
Exhibit A. Site Locations within the Conservation Area
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483
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: April 16, 2024 Agenda Item: 9B.

Submitted By: Beaches, Parks and Recreation
Prepared By: Samantha Wylie, Beaches, Parks & Recreation Director Subject:
..titl e
CONSIDERATION OF ..body FUTURE OPERATIONS OF THE CITY’S BEACH CLUB FACILITY Fiscal Impact:

The fiscal impact of renewing the lease agreement for the Ole Hanson Beach Club operations versus transitioning to in-house management will depend on various factors, including operational costs, revenue projections, and staffing requirements.

It is imperative that staff begin working on the transition of operations as the City is endeavoring on a two-year budget cycle that may impact the fiscal planning and budgeting process for the Beach Club.

Summary:

The purpose of this report is to request direction from the City Council regarding the renewal of the lease/license agreement with 24 Carrots Catering and Events for the operations of the Beach Club, which is set to expire on September 30, 2026. Additionally, this report seeks authorization for staff to forgo the RFP process and make preparations to assume in-house responsibility for the management and operations of the facility prior to the end of the lease.

Considering the historical significance of the Beach Club and the potential benefits of in-house management, it is recommended that the City Council direct staff to proceed with preparations to assume in-house responsibility for the management and operations of the facility. This option would align with the City's long-term goals of enhancing recreational opportunities and improving service delivery to residents.

Background:

At its September 7, 2021 meeting, the City Council approved a 5-year extension to the Lease Agreement with 24 Carrots to continue the operation of the Beach Club. At this meeting, the City Council also directed staff to prepare and issue a Request for Proposals for alternate operators and return to the City Council with recommendations at least 18 months in advance of the lease end term.

Staff is requesting approval to forgo the RFP process and make preparations to assume in-house responsibility for the management and operations of the facility through the Beaches, Parks & Recreation Department. Bringing the management in-house would provide the City with greater control over programming, scheduling, and revenue generation opportunities. Staff would be tasked with developing a transition plan and preparing the necessary resources for a smooth transition to in-house management.
484
Meeting Date: April 16, 2024 Agenda Item: 9B.

CITY OF SAN CLEMENTE 2
Below is a high-level overview of shifting Beach Club operations to the City for exclusive management of all venue assets, including events, rentals, and programs.

COMMUNITY ENGAGEMENT
 Recreation programs (classes, camps, workshops, etc.) could be offered on the grounds and in all rooms, depending on scheduled events.
 Expansion of communitywide events that open the facility to public access and enjoyment.  Facility availability for community group rentals.

FACILITY MANAGEMENT
 To reduce fee waiver requests on rentals, the facility could have its own established Operating Resolution – designating a certain threshold of fee waivers and the specific facility uses (like the Golf Operating Resolution).
 Opportunity for local caterers and rental companies.
 Recreation classes would help provide expanded access to the facility and utilize the facility as early as 8 am.

BENEFITS
 Expanded community availability.
 Improve patronage of pool and aquatic operations.
 Complement the revival of the North Beach area.
 Local business enhancement/opportunity, sourcing opportunities for “premier” Beach Club vendors.
 Resident satisfaction – giving access to facility year around with fewer restrictions.  Alleviate scheduling impacts at other recreation facilities that are scheduled at capacity.

FEES/REVENUE SOURCES
 The Beach Club is a premier facility and previous fees dating back 10+ years ago are no longer relevant.
 Prior to facility renovation, annual event revenue averaged $230,000. After further analysis, staff will come back to the City Council with updated fee recommendations.  Exclusive vendors could be contractually obligated to give a percentage of sales to the City. Previously, the City never received any split from vendors.  Discounts could be available for residents and non-profit organizations making the facility affordable and accessible.

Council Options:
 Adopt Resolution No. 24-63, which will effectively notify 24 Carrots that its lease will not be renewed at the end of the current lease term, and direct staff to initiate the necessary steps to assume programming and facility operations of the Ole Hanson Beach Club upon the conclusion of the lease term, under the direction and management of the Beaches, Parks & Recreation Department.
 Modify and adopt Resolution No. 24-63.
 Continue the item with further direction given to staff. 485
Meeting Date: April 16, 2024 Agenda Item: 9B.

CITY OF SAN CLEMENTE 3
 Deny the Resolution.

Environmental Review/Analysis:

CEQA Guidelines § 15378(a) defines a "project" as an activity undertaken by a public agency that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment, including an activity involving the issuance to a person of a lease. However, CEQA Guidelines § 15378(b)(5) specifies that organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment are not a project.

The non-renewal of the lease agreement for the Beach Club does not involve physical alterations to the environment. It is a decision solely related to the contractual relationship between the City and the lessee, with no direct or indirect physical changes to the environment.

Since the decision not to renew the lease does not involve a change in land use or physical alterations to the environment, it does not qualify as a project under CEQA. Therefore, it is exempt from further environmental review pursuant to CEQA Guidelines § 15378(b)(5).

Recommended Actions:

Staff Recommendation ..recommendation
Staff recommends the City Council adopt Resolution No. 24-63, which will:

1. Direct staff to notify 24 Carrots Catering and Events that its lease will not be renewed at the end of its current term, ending on September 30, 2026; and

2. Direct staff to initiate the necessary steps to assume programming and facility operations of the Ole Hanson Beach Club upon the conclusion of the lease term, under the direction and management of the Beaches, Parks & Recreation Department. ..end
Attachment:

Resolution No. 24-63
Notification:
24 Carrots Catering and Events
486
Attachment 1
RESOLUTION NO. 24-63

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, TO NOT RENEW THE
LEASE AGREEMENT WITH 24 CARROTS CATERING, LLC

AT THE OLE HANSON BEACH CLUB AND DIRECTING

STAFF TO INITIATE TRANSITIONING PROGRAMMING AND

FACILITY OPERATIONS TO THE BEACHES, PARKS &

RECREATION DEPARTMENT AT THE END OF THE LEASE
TERM
WHEREAS, the City Council of San Clemente is responsible for the management and oversight of municipal assets, including recreational facilities; and WHEREAS, the Beach Club, located at 105 W. Avenida Pico, has been operated by 24 Carrots Catering under a lease agreement that is set to expire on September 30, 2026; and
WHEREAS, the City Council has thoroughly reviewed the current lease agreement and assessed the potential benefits of transitioning the facility operations; and WHEREAS, it is in the best interest of the community to transition the programming and operations of the Beach Club to the Beaches, Parks & Recreation Department to better serve the needs and interests of residents and visitors.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby resolve as follows:

Section 1. The lease agreement (“Agreement”) between the City of San Clemente and 24 Carrots Catering for the operation of the Beach Club shall not be renewed upon its expiration on September 30, 2026.

Section 2. The Beaches, Parks & Recreation Department (“Department”) is directed to initiate the necessary steps to assume programming and facility operations of the Beach Club upon the conclusion of the lease term. The Department should further consider taking action ahead of the future adoption budget cycle of FY 2026-27 and is directed to return to the City Council to further consider any additional means necessary to effectuate the use and operation of the facility.

Section 3. The City Manager or their designee is authorized to take all actions necessary to effectuate the terms of this resolution, including but not limited to providing notice to 24 Carrots Catering regarding the non-renewal of the lease agreement and coordinating the transition of operations to the Beaches, Parks & Recreation Department.

Section 4. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.
487
Resolution No. 24-63 Page 2
PASSED AND ADOPTED this _____ day of ____________________, _______.

ATTEST:
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California
488
Resolution No. 24-63 Page 3

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 24-63 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of _______________________, _________, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
___________________________
Elizabeth A. Mitchell, City Attorney
489
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: April 16, 2024 Agenda Item: 9C.
490
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: April 16, 2024 Agenda Item: 9D.

Submitted By: City Clerk
Prepared By: Laura Campagnolo, City Clerk
Subject:
..titl e
CONSIDERATION OF AMENDMENT TO POLICY 1201-11 TO ALLOW A MAJORITY OF CITY

COUNCILMEMBERS TO VETO AN ITEM THAT WAS AGENDIZED BY A MINORITY OF CITY COUNCILMEMBERS ..body
Fiscal Impact:

None.

Summary:

Section 4.5.4 of City Council Meeting and Operating Procedures Policy 1201- 11 addresses the way in which City Councilmembers agendize items for future City Council meetings.

The policy states that two members of the City Council may propose that an item be agendized for a future City Council meeting, and that item shall appear under New Business on the agenda.

The policy further states that if three City Councilmembers agendize an item, Staff must prepare a report for the agendized item.

At the March 19, 2024 City Council meeting, the City Council agendized a discussion of whether or not a majority of the City Councilmembers shall be allowed to veto items from being agendized by a minority of City Councilmembers.

Should City Council wish to allow the veto of items being agendized by a minority of City Councilmembers, Section 4.5.4 of City Council Policy and Procedure 1201-11 (City Council Meeting and Operating Procedures) would need to be amended to reflect such a change.

Attachment 1 of the Administrative Report reflects the proposed language to Section 4.5.4 in bold, italicized and underlined text for City Council consideration.

Council Options:
 Adopt amended Policy 1201-11 with the added language to Section 4.5.4.  Direct Staff to return with additional information.
 Take no action.

Environmental Review/Analysis:

This is not a “project” under the California Environmental Quality Act. 491
Meeting Date: April 16, 2024 Agenda Item: 9D.

CITY OF SAN CLEMENTE 2
Recommended Actions:

Staff Recommendation ..recommendation
If the City Council wants to allow a majority (three) City Councilmembers to veto items agendized by a minority (two) City Councilmembers, direct the City Clerk to update City Policy and Procedure 1201-11 (City Council Meeting and Operating Procedures) to reflect the changes. ..end
Attachment:

1. Policy and Procedure 1201-11
Notification:

None.
492

Page 1 ends

ATTACHMENT 1

POLICY AND PROCEDURE
Subject: City Council Meeting
and Operating
Procedures
(Parliamentary Procedures,
Due Process, Mayor/Mayor
Pro Tempore, Council
Correspondence, Meetings,
Agendas, and Minutes)
Index: City Council
Number: 1201-11
Effective
Date:

April 16, 2024 (supersedes
January 16, 2024)
Prepared City Clerk
By:

Supersedes: Policy and Procedures 1201-
1 (Mayor and Mayor Pro
Tempore); 1201-2 (Meetings
of the City Council); 1201-3
(Order of Business and
Preparation of Minutes);
1201-4 (Council
Approved
By:

City Council
Correspondence and
Agenda); 1201-5 (Rules of
Debate, Decorum, Voting
Requirements & Procedures);
1202-2 Management/
Streamlining of City Council
Meetings); and 1201-11 (City
Council Meeting and
Operating Procedures)

1.0 PURPOSE:

To establish policies for City Council meetings and operations, including parliamentary procedures, due process, election/roles of Mayor and Mayor Pro Tern, agendas, and the preparation of minutes.

2.0 ORGANIZAT/ONS AFFECTED:

City Council
City Commissions and Committees*
*Note: Except as otherwise noted throughout this Policy, this Policy shall a/so apply to the City's Commissions and Committees. In applying this Policy to City Commissions and Committees, the term "Council" shall be interpreted to mean the name of the City Commission or Committee, the term "Mayor" shall be interpreted to mean "Chairperson", the term "Mayor Pro Tempore shall be interpreted to mean "Vice Chair': the term "Manager" shall be interpreted to mean "Director", and the 493

Page 2 ends

term "City Clerk" shall be interpreted to mean the staff member responsible for providing support to the Commission/Committee.

3.0 REFERENCES:

The Ralph M. Brown Act, GC Section 54950, et seq.

4.0 POLICY:

4.1 Parliamentary Procedures and Due Process

4.1.1 The proceedings of the City Council shall be guided under the latest revised edition of "Rosenberg's Rules of Order," on all matters pertaining to parliamentary procedure, but no ordinance, resolution, proceeding or other action of the City Council shall be invalidated or the legality thereof otherwise affected by the failure or omission to observe or follow such rules. In the event of a discrepancy between Rosenberg's Rules of Order and this Policy and Procedure, this Policy and Procedure shall prevail.

4.1.2 The Mayor, with assistance from the City Attorney, is designated as the parliamentarian for City Council meetings. The City Clerk shall assist in the City Attorney's absence. Any member of the City Council or the public (pursuant to process below) may raise a point of order and/or seek the City Attorney's input on parliamentary issues, which shall then be considered by the Mayor. The City Council may override any parliamentary decision of the Mayor with a majority vote. The Mayor may interpret and apply but not amend these policies.

Points of order may be raised at any time by City Councilmembers.

Points of order may be raised by members of the public in connection with their opportunity to speak on agenda items pursuant to Section

4.4.6. The Mayor (or chair) shall rule on the point of order and/or request clarification of the law from the City Attorney and then decide and rule. If the point of order is denied by the Mayor or chair, the person making the point of order may seek a vote of the entire Council or body, which decision shall be final.

Members of the public wishing to raise points of order after their opportunity to speak may submit those points of order in writing prior to the adjournment of the meeting. Items so submitted shall be presented for consideration by the City Council in connection with its approval of the minutes of that meeting pursuant to Section

4.6 hereof. At that time the Mayor and City Council will review and decide the point of order raised and determine whether it warrants scheduling and noticing of that item for reconsideration. 494

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4.1.3 It shall be understood that a member of the City Council or prospective member of the City Council may, in the course of seeking elective office, be asked to state positions on general issues that may eventually come before the Council at a later date. This policy shall in no way impair that Councilmember's right to consider the issue and vote as he/she determines is appropriate.

4.1.4 Ex parte communications are communications received outside of Council meetings or hearings. When the Council acts in a legislative role (for example, to adopt general plan or zoning amendments or to adopt ordinances), Councilmembers are permitted to draw upon nearly all observations and considerations they receive inside and outside the Council meeting. On the other hand, when acting in a quasi-adjudicatory role (hearing permits, revocations, and similar non-legislative decisions), the Council, as fact-finder, should limit its consideration of facts to those presented at the hearing, where all sides have the opportunity to hear and rebut testimony given by all participants. To this end, Councilmembers should avoid receiving or gathering information that might otherwise influence its consideration of the written record and any other testimony it hears through the formal hearing process, or at least disclose their receipt of that information.

4.2 Election of Mayor and Mayor Pro Tempore and Roles of Those Offices

4.2.1 At the first Regular City Council meeting in December of each year, the Council shall elect from its members a Mayor and Mayor Pro Tempore. The new Mayor and Mayor Pro Tempore shall assume office immediately. (Note: Commissions and Committees shall elect from its members a Chairperson and Vice Chair at its first regular meeting occurring after Council completes its annual appointment process for Commission and Committee members and those members assume office.) The process for electing Mayor and Mayor Pro Tempore and for electing Commission and Committee Chairs and Vice-Chairs shall be as follows:

4.2.1.1 The nomination/election of the Mayor or Chair is conducted by the City Clerk or staff. Once the new Mayor or Chair is elected, that member of the Council or body immediately presides and conducts the vote on Mayor Pro Tempore or Vice-Chair.

4.2.1.2 The method of nomination in this respect is an "open nomination" solely by and from within the membership of the presently-seated City Council or City body. Nomination cannot be accepted from members of the public.

4.2.1.3 No "second" is required for nomination, although sometimes one or more members will "second" a nomination to indicate endorsement. 495

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4.2.1.4 In no event may any one member nominate more persons than there are offices to fill in the respective selection.

4.2.1.5 When it appears that no one else wishes to make a nomination, the chair of the meeting asks one (1) final time if there are additional nominations. If there is a no response, the chair then declares..."the nomination for Mayor or Mayor Pro Tempore, Chair or Vice-Chair as applicable is closed."

4.2.1.6 It is unnecessary to have a motion to officially close the nomination; yet, if such a motion is made, that motion then requires an affirmative 213rd vote of the members present [4 or 5]. After nominations are closed, a majority vote is required to re-open it.

4.2.1.7 Nominees are voted on in the order in which they are nominated.

As soon as one of the nominees receives a majority vote of those members present in the voting, the Mayor or Chair then declares that person elected to that respective office, and no vote is taken on the remaining nominee(s).

4.2.1.8 Rounds of voting shall continue in succession until one nominee is elected.

4.2.2 The Mayor and Mayor Pro Tempore shall serve a one-year term at the pleasure of the Council majority.

4.2.3 The Mayor shall act as the primary spokesperson and official representative of the City Council, unless such responsibility is delegated by the Mayor, or otherwise assigned by a majority of the City Council.

4.2.4 The Mayor shall preside at all regular, adjourned regular, special and emergency meetings of the City Council, including joint meetings with commissions and committees and closed sessions.

4.2.5 The Mayor shall execute all official City documents, warrants and correspondence approved by the City Council.

4.2.6 The Mayor is authorized to issue proclamations, commendations and certificates of recognition, which may be presented at Council meetings under Special Presentations. The total time allotted to Special Presentations should, if possible, be limited to 15 minutes per meeting. (This section does not apply to Commissions or Committees.)
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4.2.7 Nothing in this section is intended to suggest that the office of Mayor possesses formal powers or authority in excess of other members of the City Council; rather, the person serving as Mayor is to be recognized as the chairperson of the Council.

4.2.8 The Mayor Pro Tempore shall serve and perform the functions of the Mayor in the absence of the Mayor. If both the Mayor and Mayor Pro Tempore are absent from a City Council meeting, the Council members present shall select a Councilmember from those members present to perform the functions of Mayor at that particular meeting.

4.3 City Council Correspondence

4.3.1 The City Manager, or his/her designee, is authorized to open and examine all mail or other written communications addressed to the City Council as a body, but shall not open correspondence addressed to an individual Councilmember without their express authorization.

4.3.2 The City Manager may take action, or direct that action be taken, on issues or requests that do not require Council action. The City Manager shall inform Council when actions are taken on matters of significance or that are likely to be of interest to the City Council.

4.4 City Council Meetings

4.4.1 The date, time and location of Regular Meetings of the City Council shall be established by resolution. At 11:00 p.m. at each meeting, the City Council, by majority vote, will determine whether to continue the meeting or adjourn.

4.4.2 At all meetings of the City Council, a majority of the Council members shall constitute a quorum for the transaction of business. In the event less than a quorum of the City Council is present, the City Clerk shall adjourn the meeting (which may include adjourning to an Adjourned Regular Meeting), post a Notice of Adjournment, and prepare minutes that reflect that the meeting was adjourned due to lack of a quorum.

4.4.3 The City Clerk, or Mayor, shall announce an agenda item before discussion on that item commences.

4.4.4 Each person desiring to address the Council is requested to submit to the City Clerk a speaker form. After being called upon by the Mayor, the speaker may proceed to the podium. The speaker may 497

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state for the record his/her name and city of residence, but shall not be required to do so.

Members of the public may speak for three (3) minutes and project applicants and appellants (including members of an applicant's or appellant's project presentation team, when applicable) may speak for a combined total of ten (10) minutes on agenda items. At Council's request where Council is acting in a fact-finding or hearing capacity, the Mayor may grant additional time (unless overruled by a majority of Councilmembers present) to speakers on agenda items.

Speakers will be called to the podium once Staff concludes its presentation of an item and before Council begins its deliberations.

Speaker cards will not be accepted once deliberations have commenced.

Speakers on non-agenda items may speak for three (3) minutes during the oral communications - public forum portion of the meeting.

At the beginning of the Consent Calendar, the City Clerk will notify the Mayor or meeting Chair of any public comments related to the Consent Calendar. Speakers will be allotted 3 minutes to speak on the Consent Calendar in its entirety. After public comments, if any, are heard, the City Council will vote on the Consent Calendar as one agenda item.

The time that a speaker devotes to responding to Council inquiries shall not be deducted from their allotted speaker time.

4.4.5 Members of the public may not assign their speaker time to another person.

4.4.6 The purpose of addressing the City Council is to communicate formally with the City Council regarding matters that relate to City Council business or citizen concerns within the subject matter jurisdiction of the City Council. Persons addressing the City Council on an agenda item shall confine their remarks to the matter under consideration by the City Council. Speakers may be asked to clarify how their comments relate to the matter at hand. Speakers may address the entire Council or individual Councilmembers, and, if allowed by the Mayor or chair, City staff.

4.4.7 Once recognized, members of the public shall not be interrupted when speaking unless to be called to order by the Mayor to: (i) curtail extraordinary repetition, (ii) curtail speech that is irrelevant to the City Council's subject matter jurisdiction, (iii) explain how his or her speech relates to the City's subject matter jurisdiction, or (iv) address some other point of order. If a speaker is interrupted to be called to order, the speaker shall cease speaking until the question of order is determined, and if in order, he or she shall be permitted to proceed, 498

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with additional time allotted for the time taken to determine the question of order.

4.4.8 In order to avoid repetitious presentations, whenever any group of persons wishes to address the Council with the same message, it shall be proper for the Mayor to request that a spokesperson be chosen by the group to represent the group's position. Speakers shall not, however, be required to abide by such a request.

4.4.9 To expedite Council meetings, Councilmembers are encouraged to contact Staff prior to Council meetings to obtain answers to questions and to obtain clarifications as needed.

4.4.10Staff shall compose Administrative Reports in a clear and concise manner. Staff shall strive to write reports in a manner that can be easily understood by persons that do not have training in the report's subject matter.

4.4.11Staff presentations at Council meetings are to be condensed to the briefest extent possible, while still providing a basic overview of the issue under consideration. Staff is encouraged to refrain from reiterating issues previously addressed in the Administrative Report.

However, Staff engaged in such communications shall not use these opportunities to communicate with the members of the City Council the comments or position of any other member of the City Council on City Council business.

4.4.12 Members of the public shall not engage in conduct that disrupts, disturbs, or otherwise impedes the orderly conduct of the City Council meeting. Any person who so disrupts the meeting is subject to removal from the meeting.

Prior to removing anyone from a City meeting, the Mayor (or other designated chair) shall: (i) notify the person that he/she is in violation of this Section 4.4.12, (ii) specify the specific behavior giving rise to that conclusion; (iii) explain all grounds for the belief that the person's conduct is in violation of law/policy and why such conduct subjects the person to expulsion; and (iv) notify the person that if the conduct continues he/she will be removed. The person receiving such notification shall be asked if he/she understands the conclusion but shall not be required to accept it.

Members of the public receiving notice of disruption pursuant to this section shall have the right, prior to being removed from the meeting, to ask the Mayor to consult with the City Attorney on the grounds for expulsion, and to submit a point of order on the grounds for expulsion. The City Council may override this decision pursuant to Section 4.1.2. The City Attorney shall have a duty to inform the Mayor (or other designated chair) and the public if the City Attorney believes that the Mayor's action is in violation of applicable law. 499

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4.4.13 Motions must be seconded in order to proceed to a vote.

4.5 City Council Agendas

4.5.1 With the exception of items added to a City Council agenda pursuant to Section 4.5.4 of this Policy, the City Manager and Mayor in conference shall be responsible for determining items to appear on City Council meeting agendas.

4.5.2 The standard template for City Council agendas shall be established by Council by majority vote. The City Manager shall have the authority to reorganize the template on a case-by-case basis if he/she believes that a variation in the normal order of business is appropriate.

4.5.3 Councilmembers may agendize items to enable them to "report out" on matters relating to their own activities, including activities pertinent to their Council-appointed positions on regional commissions, committees and boards, provided the report is informational only. If Council action is being sought, the process defined in Section 4.5.4 of this Policy shall be followed.

4.5.4 Two members of the City Council may propose at a Council meeting that an item be agendized for future Council discussion, consideration, and/or action. Subject to notice and hearing requirements, the item shall be agendized for a future meeting and noticed as required by law. Items agendized pursuant to this section shall appear on an agenda under the New Business portion of the agenda and the names of the Councilmembers who agendized the item shall be included with the item description. Staff Reports will only be prepared if a minimum of three members of the City Council vote affirmatively at a Council meeting to direct Staff to prepare a report.

If a majority of City Council votes to veto an item from being agendized by a minority of City Councilmembers, the vetoed item shall not appear on a future agenda for full Council consideration.

4.5.5 Notwithstanding Sections 4.5.1 and 4.5.4 of this Policy, the process to review, appeal, or otherwise "call up" decisions by the Planning Commission or other subordinate City bodies shall be subject to the requirements of the San Clemente Municipal Code.

4.5.6 Notwithstanding Section 4.5.4, a proposal to reconsider any action taken by the City Council may be raised only at the same meeting or the next regularly scheduled meeting of the City Council after the action is taken and may be raised only by one of the
Councilmembers who voted with the prevailing side. Additionally, the motion to reconsider may only be made by one of the
Councilmembers who voted with the prevailing side.
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4.5.7 The City Clerk shall be responsible for the preparation of Council meeting agendas and shall cause copies to be posted on the City Hall bulletin board(s) and City website. Regular and Adjourned Regular Meeting agendas shall be posted within the posting time requirements as set forth in State law. In the case of special meetings, agendas shall be posted as soon as practical, but in no event less than the posting time requirements as set forth in State law.

4.5.8 Consent Calendar items shall be comprised of items that are expected to be noncontroversial. Unless an item is removed from the Consent Calendar by a member of the Council or staff, for separate discussion and action, the Consent Calendar may be acted upon by one motion as one item.

4.5.9 The City Council may waive the reading in full of all Resolutions and Ordinances. The reading of Resolution titles shall be optional. The reading of Ordinance titles shall not be waived.

4.5.10 Members of the public may address Council concerning matters within the jurisdiction of the City of San Clemente, but not separately listed on the agenda, during the Oral Communications portion of the agenda. Speakers may address Council once during either Oral Communications Part 1 or Part 2. Speakers shall be allotted 3 minutes in which to give his or her presentation.

4.6 City Council Minutes

4.6.1 The City Clerk shall have exclusive responsibility for the preparation of the minutes.

4.6.2 The minutes of City Council meetings shall be submitted to Council for approval/modification at a City Council meeting. Any direction for modifications to the City Council minutes shall only be made upon a majority vote of the City Council.

4.6.3 Minutes shall be prepared in brief concise form, in what are commonly referred to as "action minutes". Action minutes memorialize what was done at a meeting, as opposed to what was said at a meeting. An exception to this guideline is that a brief summarization of comments provided to Council by the public are to be included in the minutes. Additionally, the identity of Councilmembers who make motions, second motions, and cast votes on motions are to be included in the minutes.

4.6.4 Unless the reading of the minutes of a City Council meeting is ordered by a majority of the Council, such minutes may be 501

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approved without reading if the City Clerk has previously furnished each Councilmember with a copy thereof.

4.6.5 The approved minutes shall be executed by the Mayor and City Clerk upon approval by the City Council and shall constitute the official record of the City Council meeting.

4.6.6 The City Clerk shall enter the original executed minutes into the official records of the City as a permanent document.

4.7 Closed Sessions

4.7.1 The City Council may hold closed sessions during duly-noticed Council meetings on issues authorized by State law.

4.7.2 A City Commission or Committee may hold closed sessions during duly-noticed meetings of its body on issues authorized by State law, the City Council, and the City Attorney.

4.7.3 No member of the City Council, employee of the City, or any person present during a closed session shall disclose to any other person the content or substance of discussion or action which took place during the session, unless a majority vote of the Council authorizes such disclosure.

4.7.4 Closed sessions shall be limited to members of the City Council, City Manager, City Attorney and/or City legal counsel, as well as staff members and experts designated by the City Manager or City Attorney to attend portions of Closed Sessions relating to specific issues, as permitted by law.

4.7.5 To the extent possible, the public will be notified prior to the time that the City Council recesses to closed session as to whether or not a public announcement of action is anticipated following the Closed Session.

4.7.6 Where potential plaintiffs and defendants have manifested or communicated their awareness of facts and circumstances and a legal theory connecting those facts and circumstances to potential litigation involving the City, those facts and circumstances, together with (i) the identity of potential parties or (ii) related documentation, shall be disclosed prior to a closed session to discuss anticipated litigation, in accordance with GC 54956.9.
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4.8 Assignment of a City Councilmember as a Liaison to Each City Commission and Committee

4.8.1 The City Council Liaison shall meet with the Chair and support staff of the assigned Commission or Committee to review the proposed agenda to determine consistency with the adopted work plan and provide guidance.

4.8.2 The City Council Liaison will accept requests for City Council or staff support to accomplish tasks included in the adopted work plan.

4.8.3 The City Council Liaison will provide an oral report of their Commission or Committee activities to the City Council during the appropriate agenda item on a regular agenda of the City Council.

4.8.4 The City Councilmember liaison is not expected to attend the meetings of the Commission or Committee, but rather act as a resource and conduit for improved communication.
503
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING
CITY OF SAN CLEMENTE 1
Meeting Date: April 16, 2024 Agenda Item: (1)
504
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Council Chambers

CITY OF SAN CLEMENTE
Tuesday, March 19, 2024 5:00 PM
City Council
Special and Regular Meeting Minutes
4:00 p.m. - Long Term Financial Plan
5:00 p.m. - Closed Session
6:00 p.m. - Business Meeting
Mayor Cabral
Mayor Pro Tem Enmeier
Councilmember Duncan
Councilmember Knoblock
Councilmember Loeffler
These minutes reflect the order in which items appeared on the meeting agenda and do not necessarily reflect the order in which items were actually considered.

A Special and Regular Meeting of the San Clemente City Council was called to order by Mayor Cabral on March 19, 2024 at 4:00 p.m. in the San Clemente City Council Chambers, located at 910 Calle Negocio, 2nd Floor, San Clemente.

PRESENT: Duncan, Enmeier, Knoblock, Loeffler and Mayor Cabral STAFF PRESENT: Andy Hall, City Manager; Elizabeth Mitchell, City Attorney; Laura Campagnolo, City Clerk; Megan Jimenez, Deputy City Clerk

LONG TERM FINANCIAL PLAN
A. LONG TERM FINANCIAL PLAN PRESENTATION
Administrative Services Director Brower and Financial Services Officer Rahn narrated a PowerPoint presentation entitled "San Clemente Long Term Financial Plan" and responded to Council inquiries. A hard copy of the presentation is on file with the City Clerk.

Diane Harkey, Dana Point, suggested rezoning southwest San Clemente east of I-5 for potential development of hotels to increase revenue for the City.

Christopher Butler, San Clemente, commented on development in San Clemente; urged the City to work towards attracting new businesses to San Clemente.

Motion by Councilmember Knoblock, second by Mayor Pro Tem Enmeier, CARRIED 5-0, to:

1. Direct staff to explore revenue sources to replace lost revenues from the dissolution of the Redevelopment Agency and the expiration of the Clean Ocean fee to maintain existing service levels and to fund new programs and capital projects.

2. Transfer an amount of $400,000 from the General Fund to the Facilities Maintenance Reserve in FY 2024-25 and FY 2025-26.

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San Clemente City CouncilApril 16, 2024

San Clemente City Council
April 16, 2024