Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
1 RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Santa Clara Valley Habitat Agency
535 Alkire Avenue, Suite 100
Morgan Hill, CA 95037
Attention: Executive Officer
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
AND MAIL TAX STATEMENT TO:
City of San José
Office of Economic Development
Real Estate Services
200 East Santa Clara Street, 12th Floor
San José, CA 95113-1905
Attn: Administrative Officer
APN: 015-30-061 & 015-30-098
Space Above Line for Recorder's Use Only
RECORDED WITHOUT FEE UNDER SECTION 6103 GOVERNMENT CODE OF THE STATE OF
CALIFORNIA
CONSERVATION EASEMENT AGREEMENT
BY AND BETWEEN THE
CITY OF SAN JOSE, CITY OF SANTA CLARA, AND SANTA CLARA VALLEY HABITAT AGENCY
The Undersigned Declares: DOCUMENTARY TRANSFER TAX $0; CITY TRANSFER TAX $0; [ ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale,
[ ] unincorporated area;
[X] City of San José, and
[X] Signature of Declarant
By:__________________________
Print Name: ___________________
Title:_________________________
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
2 CONSERVATION EASEMENT AGREEMENT
BY AND BETWEEN THE
CITY OF SAN JOSE, CITY OF SANTA CLARA, AND SANTA CLARA VALLEY HABITAT AGENCY
THIS CONSERVATION EASEMENT AGREEMENT (the “Agreement”) dated ______________, 2022, by and between City of San José and the City of Santa Clara, municipal corporations organized under California (“Landowner”), and Santa Clara Valley Habitat Agency, a California Joint Powers Authority (“Easement Holder”). Landowner and Easement Holder are also referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. City of San José is the owner of record and joint owner as a tenant in common with the City of Santa Clara, in fee simple, of certain real property located in the County of Santa Clara, State of California, more particularly known as the San Jose-Santa Clara Regional Wastewater Facility (“RWF” or “Property”). As consideration for land-in-lieu of fees, Landowner intends to grant this Conservation Easement over approximately 200 acres of the Property (the “Easement Area”), as described in Exhibit A attached hereto and incorporated herein by this reference and depicted on the maps attached hereto as Exhibit B and incorporated herein by reference.
B. This Agreement is being executed and delivered to satisfy certain habitat conservation requirements set forth in the following documents (collectively, the “Habitat Plan Instruments”):
(i) The Santa Clara Valley Habitat Plan (“Habitat Plan”), dated August 2012, prepared by County of Santa Clara County (“County”), City of San Jose (“San Jose”), City of Gilroy (“Gilroy”), City of Morgan Hill (“Morgan Hill”), Santa Clara Valley Water District (“Water District”), and Santa Clara Valley Transportation Authority (“VTA”), and approved by the United States Fish and Wildlife Service (“USFWS”) under Section 10 of the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531 et seq., as it may be amended from time to time) (“ESA”), and by California Department of Fish and Wildlife (“CDFW”) under the California Natural Community Conservation Planning Act (California Fish and Game Code Section 2800 et seq., as it may be amended from time to time) (“NCCPA”); and (ii) Implementing Agreement for the Santa Clara Valley Habitat Plan (the “Implementing Agreement”), dated August 14, 2012, by and among USFWS and CDFW (collectively, the “Wildlife Agencies”), Santa Clara Valley Habitat Agency, a Joint Powers Authority ( “Implementing Entity” or “Easement Holder” or “Habitat Agency” or “JPA”), County, San Jose, Gilroy, Morgan Hill, Water District, and VTA (collectively, JPA, County, San Jose, Gilroy, Morgan Hill, Water District, VTA, are referred to herein as “Permittees”); and (iii) The federal incidental take permit issued by USFWS to Permittees for the Habitat Plan pursuant to Section 10 of ESA; and
(iv) The state incidental take permit issued by CDFW to Permittees for the Habitat Plan pursuant to the NCCPA; and
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
3 (v) The Regional General Permit issued by the U.S. Army Corps of Engineers (“USACE”) to the Permittees for compliance with the federal Clean Water Act.
C. CDFW has jurisdiction, pursuant to California Fish and Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species, and CDFW is authorized to hold easements for these purposes pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law.
D. USFWS, an agency within the United States Department of the Interior, has jurisdiction over the conservation, protection, restoration, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species within the United States pursuant to the ESA, the Fish and Wildlife Coordination Act, 16 U.S.C. Sections 661- 666c, the Fish and Wildlife Act of 1956, 16 U.S.C. Section 742(f) et seq., and other provisions of federal law.
E. The USACE has jurisdiction over waters of the United States pursuant to the federal Clean Water Act, 33 U.S.C. §1251, et seq. and the California Regional Water Quality Control Board (RWQCB) has jurisdiction pursuant to California Water Code Section 13200, et seq.
F. The Easement Holder is authorized to hold conservation easements pursuant to, among other provisions of law, California Civil Code Section 815.3.
G. The Easement Holder also serves as the Implementing Entity of the Habitat Plan, and as such, is responsible for overseeing implementation of the Habitat Plan Instruments, including carrying out planning and design, habitat restoration, monitoring, adaptive management programs, and periodic coordination with USFWS, CDFW, USACE and the RWQCB.
H. The Easement Area possesses wildlife, habitat values, and associated open space values that are of great importance to Easement Holder, the people of Santa Clara County and the people of the State of California and of the United States (the “Initial Conservation Values”). The Initial Conservation Values, described in Exhibit C attached hereto and incorporated herein by reference, are those Conservation Values that are identified in the Habitat Plan and present on the Easement Area/Property at the time of the execution of the Agreement.
I. Following recordation of this Agreement, the Easement Area will be incorporated into the Reserve System (as such term is defined in the Habitat Plan) (“Reserve System”) and will count toward the land acquisition requirements set forth in the Habitat Plan. When used herein, the term “Implementing Entity” refers to the JPA acting in its capacity as the Implementing Entity under the Habitat Plan and the Implementing Agreement, which confer separate rights and obligations on JPA that will survive any future transfer of the Conservation Easement by JPA. In contrast, the term “Easement Holder” is used herein to refer to JPA as the initial holder of such conservation easement interest, as well as any other qualified successor or assignee to which this conservation easement interest has been transferred in accordance with the terms and conditions set forth below.
J. The Habitat Agency and the City of San José, as the administering agency for the San Jose-Santa Clara Regional Wastewater Facility, entered into an Agreement for Burrowing Owl Habitat Management in January 2018 that applies to the Easement Area (the “Management Plan”).
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
4 The Management Plan has been developed in accordance with the applicable requirements of the Habitat Plan Instruments.
K. The Management Plan is incorporated herein by reference. Landowner and Easement Holder recognize that changes (e.g., in weather cycles, natural resource management technologies, conservation practices) may dictate an adaptation in the management of the Easement Area, consistent with the purposes of this Conservation Easement and the Habitat Plan Instruments. It may be revised from time to time with the written approval of the Landowner, Easement Holder and the Wildlife Agencies, so long as the revisions are consistent with the requirements of the Habitat Plan Instruments. A full and complete copy of the current Management Plan, including any such revisions, shall be kept on file at the offices of the Implementing Entity.
L. The State of California recognizes the public importance and validity of conservation easements by enactment of California Civil Code Section 815 et seq.
AGREEMENTS
NOW, THEREFORE, in consideration of the above and mutual covenants, terms, conditions and restrictions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and pursuant to the laws of the State of California, including California Civil Code Section 815 et seq., Landowner hereby voluntarily grants and conveys to Easement Holder, its successors and assigns, a conservation easement in gross forever in, on, over and across the Easement Area described in Exhibit A and depicted on Exhibit B (the “Conservation Easement”), subject to the terms and conditions set forth herein, restricting forever the uses which may be made of the Easement Area, and the parties agree as follows:
1. Purpose. The purpose of this Conservation Easement is to ensure that existing and future natural values and associated wildlife and habitat values of the Easement Area will be forever protected by preventing any use of the Easement Area that would impair or interfere with the Conservation Values. Landowner intends that this Conservation Easement will confine the use of the Easement Area to such activities that are consistent with the purposes set forth herein, including, without limitation, those involving the preservation, restoration, and enhancement of the Easement Area’s Covered Species and their habitats.
2. Baseline Documentation Report. The parties acknowledge that a Baseline Documentation Report (the “Report”) has been prepared for the Easement Area and approved in writing by Landowner and Easement Holder. A copy of the Report is on file with Landowner and Easement Holder at their respective addresses for notices set forth below. The parties agree that the Report contains an accurate representation of the biological and physical condition of the Easement Area at the time this Agreement is recorded in the Official Records of Santa Clara County (“Official Records”), including a full inventory of all of the Easement Area’s Covered Species and natural communities found thereon. Notwithstanding the foregoing, if a controversy arises with respect to the nature and extent of the physical or biological condition of the Easement Area or the allowed uses of the Easement Area, the parties shall not be foreclosed from utilizing any and all other relevant documents, surveys or other evidence or information to assist in the resolution of the controversy.
3. Rights of Easement Holder. To accomplish the purposes of this Conservation Easement, Landowner hereby grants and conveys the following rights to Easement Holder:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
5 (a) To preserve, protect, sustain, restore, and enhance the Conservation Values for the Easement Area described in Exhibit C or which develop on the Easement Area in accordance with the Management Plan and the terms and conditions of this Conservation Easement; (b) To enter upon the Easement Area to monitor Landowner’s compliance with, and to otherwise enforce the terms of, this Conservation Easement, and for scientific research necessary to support monitoring and in order to support adaptive management of the Conservation Values; provided, that Easement Holder shall not unreasonably interfere with Landowner's allowed uses and quiet enjoyment of the Easement Area;
(c) To enter upon the Easement Area to carry out, at Easement Holder’s sole cost and expense, those management and monitoring requirements applicable to the Easement Area that are set forth in the Management Plan and in Habitat Plan Chapters 5 and 7, including, without limitation, installation and maintenance of fencing around the perimeter of the Easement Area to the extent referenced in the Management Plan as necessary to protect the Conservation Values; provided, that Easement Holder shall use reasonable good faith efforts to conduct such management and monitoring activities in a manner that does not unreasonably interfere with Landowner's allowed uses and quiet enjoyment of the Easement Area;
(d) To prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement; (e) To require that all mineral, air and water rights held by Landowner that Easement Holder deems necessary to preserve, protect and sustain the biological resources and Conservation Values of the Easement Area shall remain a part of and be put to beneficial use upon the Easement Area, consistent with the purposes of this Conservation Easement; (f) All present and future development rights and wind power rights allocated, implied, reserved or inherent in the Easement Area; such rights are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Property. Landowner understands and agrees that nothing in this Conservation Easement relieves Landowner of any obligation or restriction in relation to the development or use of the Easement Area imposed by law, including but not limited to local land use restrictions; (g) Except where there is an imminent threat to the Easement Area or its Conservation Values, Easement Holder and its employees, contractors or agents will only enter the Easement Area at reasonable times and with at least forty-eight (48) hours advance notice to Landowner. The Landowner may waive these requirements in whole or in part by written notice to Easement Holder; and
(h) Easement Holder currently has access to the Easement Area at Nortech Gate during the term of the Agreement described in Recital I. Before access to the Easement Area at Nortech Gate can be terminated, Landowner agrees to fund and complete the construction of a curb cut to allow access to the Easement Area from Disk Drive prior to any termination of access at Nortech Gate.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
6 4. Rights of Wildlife Agencies, The Wildlife Agencies are third-party beneficiaries to this Agreement for the purpose of enforcing the terms of this Agreement.
5. Prohibited Uses. Any activity on or use of the Easement Area that adversely affects the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, Landowner, Landowner’s personal representatives, heirs, successors, assigns, employees, agents, lessees, licensees and invitees are expressly prohibited from doing or allowing any of the following uses and activities on the Easement Area, unless, and then only to the extent that, a generally prohibited activity set forth below is: (i) an allowed use or practice (e.g., agricultural, rangeland or recreational uses) set forth on Exhibit D attached hereto and incorporated herein by reference; (ii) a management practice set forth in the Management Plan, (iii) necessary in connection with the performance of any of the conservation actions described in Habitat Plan Chapter 5; or (iv) otherwise necessary to maintain or enhance the Conservation Values:
(a) Unseasonal watering;
(b) Use of fertilizers, pesticides, biocides, herbicides or other chemicals, except for non-native invasive plant species management and infrastructure and facilities management as specifically provided for in the Management Plan;
(c) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways, excepting off-road vehicle use required to conduct any allowed management practice set forth in the Management Plan;
(d) Any construction, reconstruction, relocation or placement of any road, building, billboard, fencing, or sign, or any other structure or improvement of any kind, or altering the surface or general topography of the Easement Area without written approval by the Easement Holder and Wildlife Agencies unless otherwise allowed in the Management Plan; (e) Agricultural uses, including, without limitation, vineyards, nurseries, or intensive livestock use (e.g., dairy, feedlot) except as may be provided for in the Management Plan (e.g., prescribed grazing);
(f) Any legal or de facto division, subdivision or partitioning of the Easement Area or any fee transfer of less than the entire Easement Area; (g) Depositing or accumulation of soil, trash, ashes, refuse, waste, bio-solids or any other materials;
(h) Planting, introduction, or dispersal of nonnative plant or animal species, except as approved by the California Department of Food and Agriculture’s Biological Control Program for control of invasive species as specifically provided in the Management Plan and with the approval of the Wildlife Agencies;
(i) Filling, dumping, excavating, draining, dredging, mining, drilling, removing, or exploring for or extraction of minerals, loam, soil, sands, gravel, rocks, or other material on or below the surface of the Easement Area, and granting or authorizing any surface entry for any of these purposes;
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
7 (j) Removing, destroying, or cutting of trees, shrubs, or other vegetation except as required by law for (i) fire breaks and/or fuels treatment, (ii) maintenance of existing foot trails or roads, or (iii) prevention or treatment of disease as specifically provided in the Management Plan.; (k) Manipulating, impounding, or altering any water course, body of water, or water circulation on the Easement Area, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or subsurface waters except for future creation or habitat enhancement of the Property for sensitive, threatened, or endangered species as specifically provided in the Management Plan;
(l) Recreational activities, including, but not limited to, horseback riding, biking fishing with the exception of any recreation specifically allowed in Exhibit D; (m) Commercial, industrial, residential, or institutional uses; (n) Altering the surface or general topography of the Easement Area, including but not limited to any alterations to habitat, building roads or trails, paving or otherwise covering the Easement Area with concrete, asphalt or any other impervious material except for those habitat management activities specified in the Management Plan; and (o) Without the prior written consent of Easement Holder, which Easement Holder may reasonably withhold, transferring, encumbering, selling, leasing or otherwise separating the mineral, air or water rights for the Easement Area owned by Landowner; changing the place or purpose of use of the water rights owned by Landowner; 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 Area that are owned by Landowner, 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 Area; and (iv) any water from wells that are in existence or may be constructed in the future on the Easement Area.
6. Unlawful Entry. Landowner shall undertake all reasonable actions to prevent the unlawful entry and trespass on the Easement Area by persons whose uses or activities may degrade or harm the Conservation Values or are otherwise inconsistent with the purposes of this Conservation Easement.
7. Landowner’s Reserved Rights; Allowed Uses. Landowner reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Easement Area, including without limitation, the following (collectively, the “Allowed Uses”):
(a) those specific uses and activities identified in the Management Plan(s) or detailed in Exhibit D attached hereto, and (b) all other uses of the Easement Area that are not expressly prohibited or limited by this Agreement, and are consistent with the purposes of this Conservation Easement as set forth in Section 1. Landowner shall have the right to exercise any of the Allowed Uses directly or to allow or invite others to engage in any of the Allowed Uses. While Landowner is not obligated under this Agreement to perform the management and monitoring actions set forth in the Management Plan(s), Landowner’s exercise of the Allowed Uses shall be conducted in a manner that is consistent with the Management Plan(s) and Conservation Values.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
8 8. Easement Holder's Remedies. If Easement Holder or any Third-Party Beneficiary determines there is a violation of the terms of this Agreement or that such violation is threatened, written notice of such violation and a demand for corrective action sufficient to cure the violation shall be given to Landowner, with a copy provided to Easement Holder and each other Third-Party Beneficiary. The notice of violation shall specify the measures the Landowner must take to cure the violation.
(a) Opportunity to Cure. If Landowner fails to cure the violation within thirty (30) days after receipt of written notice and demand from Easement Holder or any Third-Party Beneficiary, as applicable; or if the cure reasonably requires more than thirty (30) days to complete and Landowner fails to begin the cure within such thirty (30) day period; or Landowner fails to continue diligently to complete the cure, Easement Holder or any Third-Party Beneficiary may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Agreement, to recover any damages to which Easement Holder and the Third-Party Beneficiaries may be entitled for violation of the terms of this Agreement or for any injury to the Conservation Values, 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, or for other equitable relief, including, but not limited to, the restoration of the Easement Area to the condition in which it existed prior to any such violation or injury. Without limiting Landowner's liability therefor, any damages recovered may be applied to the cost of undertaking any corrective action on the Easement Area at the election of the party receiving such damages.
(b) Emergencies. If Easement Holder or any Third-Party Beneficiary, each in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the Conservation Values, Easement Holder and/or any Third-Party Beneficiary may pursue its remedies under this section without prior notice to Landowner or without waiting for the period provided for cure to expire. The rights of Easement Holder and the Third-Party Beneficiaries under this section apply equally to actual or threatened violations of the terms of this Agreement.
Landowner agrees that Easement Holder’s and Third-Party Beneficiaries’ remedies at law for any violation of the terms of this Agreement are inadequate and that Easement Holder and/or any Third- Party Beneficiary shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Easement Holder and the Third-Party Beneficiaries may be entitled, including specific performance of the terms of this Agreement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. 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 Easement Holder or any Third- Party Beneficiary to discover a violation or to take immediate legal action in response to such action shall not bar such party from taking legal action at a later time.
(c) Costs of Enforcement. Any reasonable costs incurred by the Easement Holder or any Third-Party Beneficiary, where it is the prevailing party, in enforcing the terms of this Conservation Easement against the Landowner, including, but not limited to, costs of suit, and attorneys’ and experts’ fees, as allowed by law and subject to appropriation of funds, and any costs of restoration necessitated by Landowner's negligence or breach of this Agreement shall be borne by Landowner. In any action where an agency of the United States is a party, the right to recover fees and costs shall be governed by federal law.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
9 (d) Enforcement Discretion. Enforcement of the terms of this Agreement against Landowner shall be at the respective discretion of Easement Holder and each of the Third- Party Beneficiaries, and any forbearance by any such party to exercise its rights under this Agreement in the event of any breach of any term of this Agreement shall not be deemed or construed to be a waiver by such party of such term or of any subsequent breach of the same or any other term of this Agreement or of any of such party’s rights under this Agreement. No delay or omission by Easement Holder or any Third-Party Beneficiary in the exercise of any right or remedy upon any breach shall impair such right or remedy or be construed as a waiver.
(e) Acts Beyond Landowner's Control. Nothing contained in this Agreement shall be construed to, or shall entitle, Easement Holder or any Third-Party Beneficiary to bring any action against Landowner for any injury to or change in the Easement Area resulting from (i) any natural cause beyond Landowner's control, including, but not limited to, climate change, fire not caused by Landowner, flood, storm, and earth movement, or any prudent action taken by Landowner under emergency conditions to prevent, abate, or mitigate significant injury to the Easement Area resulting from such causes; (ii) acts by Easement Holder or any Third-Party Beneficiary or any of their employees, contractors or agents; or (iii) acts by persons that entered the Easement Area/Property unlawfully or by Trespass whose activities degrade or harm the Conservation Values of the Easement Area/Property or whose activities are otherwise inconsistent with this Conservation Easement where Landowner has undertaken all reasonable actions to prevent such activities.
(f) Third-Party Beneficiary Rights. The parties intend for each of Implementing Entity (during any such period, if any, that Implementing Entity does not also constitute Easement Holder), USFWS and CDFW(collectively, “Third-Party Beneficiaries”) to be a third-party beneficiary of this Agreement. All rights and remedies conveyed to Easement Holder under this Agreement shall extend to and are enforceable by each of the Third-Party Beneficiaries in accordance with the terms hereof. Landowner and Easement Holder acknowledge that, as third-party beneficiaries of this Conservation Easement, the Third-Party Beneficiaries shall have the same rights of access to the Easement Area granted to Easement Holder in Section 3 above, and with rights to enforce all of the provisions of this Agreement. If at any time in the future Landowner uses, allows the use, or threatens to use or allow use of, the Easement Area for any purpose that is inconsistent with or in violation of this Agreement then, despite the provisions of California Civil Code Section 815.7, the California Attorney General and each Third-Party Beneficiary has standing as an interested party in any proceeding affecting the Conservation Easement. These rights are in addition to, and do not limit, the rights of enforcement under the Habitat Plan Instruments. In addition, if CDFW reasonably determines that the Easement Area is not being held, monitored, or stewarded for conservation purposes in the manner specified in this Agreement, the Habitat Plan Instruments, or the Management Plan, the Conservation Easement shall revert to the State of California or another entity as described in California Government Code Section 65967, subdivisions (b) and (c), and subject to approval by CDFW.
9. Public Access. Nothing contained in this Agreement gives or grants to the public an independent right to enter upon or use the Easement Area or any portion thereof. Nor shall this Agreement extinguish any public right to enter upon or use the Easement Area.
10. Costs and Liabilities. Except for those specific obligations to be undertaken by Easement Holder under Section 3 above, Landowner shall retain all responsibilities and shall bear all costs and liabilities of any kind related to Landowner’s ownership, operation, management, and maintenance activities on and relating to the Easement Area. Landowner agrees that neither the
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
10 Easement Holder nor Third-Party Beneficiaries shall have any duty or responsibility for the operation or maintenance of the Easement Area, the monitoring of hazardous conditions thereon, or the protection of Landowner, the public or any third parties from risks relating to conditions on the Easement Area. Each of Landowner and Easement Holder shall remain responsible for obtaining any applicable governmental permits and approvals for any of such Party’s activity or use allowed on the Easement Area under this Agreement, and each of Landowner and Easement Holder shall undertake all allowed activities and uses of the Easement Area in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements.
Landowner shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Easement Area by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Agreement, and shall furnish Easement Holder with satisfactory evidence of payment upon request. Landowner and Easement Holder shall keep the Easement Area free from any liens, including those arising out of any obligations incurred by such Party for any labor or materials furnished or alleged to have been furnished to or for such Party at or for use on the Easement Area.
11. Indemnification.
(a) Indemnification by Landowner. Landowner shall hold harmless, protect and indemnify Easement Holder and the Third-Party Beneficiaries, and their respective members, directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each an “Easement Holder Indemnified Party” and, collectively, the “Easement Holder Indemnified Parties”) from and against any and all liabilities, penalties, costs, losses, damages, expenses (i.e. costs, as allowed by law and subject to the appropriation of funds), causes of action, claims, demands, orders, liens or judgments (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with:
(i) the activities of Landowner on the Easement Area;
(ii) the inaccuracy of any representation or warranty made by Landowner in this Agreement;
(iii) the breach by Landowner of any provision of this Agreement;
(iv) any injury to or the death of any person, or physical damage to any Easement Area occurring on or about the Easement Area resulting from any act, omission, condition, or other matter related to the Landowner, unless due solely to the negligent or willful misconduct of the any of the Easement Holder Indemnified Parties; and
(v) any violation of, or failure to comply with, any state, federal or local law, regulation or requirement by Landowner or Landowner Indemnified Parties (described below) in any way affecting, involving or relating to the Easement Area.
(b) Limitation on Indemnification by Landowner. Landowner’s indemnification of Easement Holder Indemnified Parties shall not extend to damages due to the fault of the Easement Holder Indemnified Parties.
If any action or proceeding is brought against Easement Holder or any of the Easement Holder Indemnified Parties because of any such Claim, Landowner shall, at the election of and upon written
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
11 notice from Easement Holder and the Third-Party Beneficiaries, defend such action or proceeding by counsel reasonably acceptable to the Easement Holder or any of the Easement Holder Indemnified Parties.
(c) Indemnification by Easement Holder. Easement Holder shall hold harmless, protect, and indemnify Landowner and the Third-Party Beneficiaries, and their respective members, directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each, a “Landowner Indemnified Party,” and collectively, the “Landowner Indemnified Parties”) from and against any and all liabilities, penalties, costs, losses, damages, expenses (costs, as allowed by law and subject to appropriation of funds), causes of action, claims, demands, orders, liens or judgments (each a “Claim” and, collectively, “Claims”), arising from or in any way connected with:
(i) the activities of Easement Holder on the Easement Area, including without limitation the Easement Holder’s performance of management and monitoring activities set forth in the Management Plan;
(ii) breach by Easement Holder of any provision of this Agreement;
(iii) any injury to or the death of any person, or physical damage to any Easement Area occurring on or about the Easement Area resulting from any act, omission, condition, or other matter related to, an activity on, or use of, the Easement Area by Easement Holder, including without limitation, those performed under the Management Plan, unless due solely to the negligent or willful misconduct of the Landowner or any of the Landowner Indemnified Parties; and
(iv) any violation of, or failure to comply with, any state, federal or local law, regulation or requirement by Easement Holder or Easement Holder Indemnified Parties in any way affecting, involving or relating to the Easement Area.
(d) If any action or proceeding is brought against the Landowner or any of the Landowner Indemnified Parties because of any such Claim, Easement Holder shall, at the election of and upon written notice from Landowner, defend such action or proceeding by counsel reasonably acceptable to the Landowner or any Landowner Indemnified Party. Notwithstanding anything to the contrary in this Easement, if CDFW acquires the Property, CDFW, as Easement Holder, shall be liable only to the extent allowed by the California Tort Claims Act, (Govt. Code §§810 et seq), for claims of personal injuries or property damage resulting solely from the grossly negligent or wrongful act or omission of any employee of CDFW while acting within the scope of his/her employment arising out of this Easement. This covenant shall survive the termination of this Easement.
12. Extinguishment. The Conservation Easement created by this Agreement constitutes a property right. It is the Parties’ intention that the terms and conditions of this Agreement shall be carried out in perpetuity. Liberal construction is expressly required for purposes of effectuating the Conservation Easement in perpetuity, notwithstanding economic hardship or changed conditions of any kind. If circumstances arise in the future that render the purposes of this Agreement impossible to accomplish, this Agreement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction. In addition, no such extinguishment shall affect the value of Easement Holder’s interest in the Easement Area, and if the Easement Area, or any interest therein, is sold, exchanged or taken by power of eminent domain after such extinguishment, Easement Holder shall be entitled to receive the fair market value of the Conservation Easement at
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
12 the time of such extinguishment. The Initial Conservation Value described in Exhibit C, the prohibitions on use under Section 5, and allowed uses under Exhibit D may be taken into account in appraising the fair market value of the easement, as may be allowed by then existing law. If such extinguishment occurs with respect to fewer than all acres of the Easement Area, the amounts described above shall be calculated based on the actual number of acres subject to extinguishment.
13. Condemnation. Pursuant to California Code of Civil Procedure Section 1240.055, this Conservation Easement is “property appropriated to public use,” as used in Article 6 (commencing with Section 1240.510) and Article 7 (commencing with Section 1240.610) of Chapter 3 of Title 7 of the Code of Civil Procedure. A person authorized to acquire property for public use by eminent domain shall seek to acquire the Property, if at all, only as provided in Code of Civil Procedure Section 1240.055. CDFW is a public entity that imposed conditions on approval of a project that were satisfied, in whole or in part, by the creation of this Conservation Easement. If any person seeks to acquire the Property for public use, Grantee shall provide notice to CDFW and comply with all obligations of the holder of a conservation easement under Code of Civil Procedure Section 1240.055. If the Conservation Easement is condemned, the net proceeds from the condemnation shall be used in compliance with Government Code Section 65966(j) public use as defined in California Code of Civil Procedure Section 1240.680. The Initial Conservation Value described in Exhibit C, the prohibitions on use under Section 5, and allowed uses under Exhibit D may be taken into account in appraising the fair market value of the easement, to the extent that the valuation conforms with Section 1240.055 or as may be allowed by then existing law.
14. Transfer of Conservation Easement. This Agreement may be transferred by Easement Holder upon written approval of the Third-Party Beneficiaries, which approval shall not be unreasonably withheld or delayed; provided, that Easement Holder shall give the Third-Party Beneficiaries at least sixty (60) calendar days prior written notice of the proposed assignment or transfer. Easement Holder may transfer its rights under this Agreement only to an entity or organization: (a) authorized to acquire and hold conservation easements pursuant to California Civil Code Section 815.3 and California Government Code Section 65967 (and any successor or other provisions then applicable), or the laws of the United States; and (b) otherwise reasonably acceptable to the Third-Party Beneficiaries. Easement Holder shall require the transferee to record the conveyance in the Official Records of the County where the Easement Area is located. The failure of Easement Holder to perform any act provided in this section shall not impair the validity of this Agreement or limit its enforcement in any way. Any transfer under this section shall be subject to the requirements of Section 15 below.
15. Transfer of Easement Area. Landowner agrees to incorporate the terms of this Agreement by reference in any deed or other legal instrument by which Landowner divests itself of any interest in all or any portion of the Easement Area, including, without limitation, a leasehold interest. Landowner further agrees to give written notice to Easement Holder and the Third-Party Beneficiaries of the intent to transfer any interest at least thirty (60) calendar days prior to the date of such transfer. Easement Holder and the Third-Party Beneficiaries shall have the right to prevent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Agreement. The failure of Landowner to perform any act provided in this section shall not impair the validity of this Agreement or limit its enforceability in any way. Any successor in interest of Landowner, by acceptance of a deed, lease, or other document purporting to convey an interest in the Easement Area, shall be deemed to have
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
13 consented to, reaffirmed and agreed to be bound by all of the terms, covenants, restrictions, and conditions of this Agreement.
16. Assignment. Easement Holder may assign its rights and obligations under this Agreement only to an entity or organization: (a) authorized to acquire and hold conservation easements pursuant to California Civil Code Section 815.3 and California Government Code Section 65967 (and any successor or other provisions then applicable), or the laws of the United States; and (b) otherwise acceptable to the Third-Party Beneficiaries and Landowner.
17. Notices.
(a) Any notice, demand, request, consent, approval, or communication that Landowner, Easement Holder, or any Third-Party Beneficiary desires or is required to give to the others shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows:
To Landowner: City of San Jose
Environmental Services Department
Attn: Department Director
200 E. Santa Clara Street, 10th Floor
San Jose, CA 95113
City of Santa Clara
Department of Water and Sewer Utilities
Attn: Department Director
1500 Warburton Avenue
Santa Clara, CA 95050
To Easement Holder: Santa Clara Valley Habitat Agency
535 Alkire Avenue, Suite 100
Morgan Hill, CA 94037
Attn: Executive Officer
To Implementing Entity: Santa Clara Valley Habitat Agency 535 Alkire Avenue, Suite 100
Morgan Hill, CA 94037
Attn: Executive Officer
To USFWS: United States Fish and Wildlife Service
Sacramento Fish and Wildlife Office
Coast-Bay Division
2800 Cottage Way, Room W-2605
Sacramento, CA 95825
Attn: Coast-Bay Division Chief
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
14 To DFG: California Department of Fish and Wildlife Bay Delta Region
7329 Silverado Trail
Napa, CA 94558
Attn: Regional Manager
With a copy to: California Department of Fish and Wildlife Office of the General Counsel
1416 Ninth Street, 12th Floor
Sacramento, California 95814-2090
Attn: General Counsel
or to such other address as a party shall designate by written notice to the others. Notice shall be deemed effective upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) calendar days after deposit into the United States mail.
(b) Coordinating Communication. Communication related to advance notice and approval for property access by Easement Holder for the purpose of carrying out actions as outlined in the Management Plan may be provided and responded to electronically. Easement Holder’s request to access the property shall be provided with enough advanced notice for Landowner to reasonably review the request.
18. Amendment. This Agreement may not be amended, modified or otherwise changed in any manner, except by a written amendment executed by the parties hereto, or their successors in interest, it being understood that no easement holder or landowner will ever be obligated to negotiate or enter into any such amendment; and no discretionary approval that this Agreement may allow to be made from time to time by a party will operate to amend or modify any of the terms of this Agreement to any extent or in any manner, except when the amendment or modification is to the Management Plan and consistent with Conservation Values determined by Wildlife Agencies in Exhibit C. Any such amendment shall be subject to the prior written consent of the Third-Party Beneficiaries; any amendment made without such consent is void and without effect. Any such amendment shall be consistent with the purposes of the Conservation Easement and shall not affect the perpetual duration of the Conservation Easement. Any such amendment must refer to this Agreement by reference to its recordation data, and must be recorded in the Official Records of the County where the Easement Area is located.
19. Merger. The doctrine of merger shall not operate to extinguish the Conservation Easement if the Conservation Easement and the Easement Area become vested in the same party. If, despite this intent, the doctrine of merger applies to extinguish the Conservation Easement then, a replacement conservation easement, with a new Easement Holder identified by the Implementing Entity and approved by the Third-Party Beneficiaries, containing the same protections embodied in this Agreement shall be recorded against the Easement Area.
20. No Hazardous Materials Liability. Landowner represents and warrants that, after reasonable review of Landowner’s records as of the date of this Agreement, Landowner has no knowledge or notice of any Hazardous Materials (as defined below) or underground storage tanks existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or from the Easement Area, or transported to or from or affecting the Easement Area except as
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
15 disclosed in the Phase 1 Environmental Site Assessment for the 200-Acre Regional Wastewater Facility Bufferland, San Jose, California. The parties further represent and warrant that each party shall comply with all Environmental Laws (as defined below) in using the Easement Area and that all parties shall keep the Easement Area free of any material environmental defect, including, without limitation, contamination from Hazardous Materials (as defined below). Without limiting the obligations of Landowner under this Agreement, Landowner hereby releases and agrees to indemnify, protect and hold harmless the Easement Holder Indemnified Parties (as defined in Section 11(a)) from and against any and all Claims (as defined in Section 11(a)) arising from or connected with any Hazardous Materials or underground storage tanks present, alleged to be present, or otherwise associated with the Easement Area at any time, except any Hazardous Materials placed, disposed or released by Easement Holder Indemnified Parties, or their employees or agents.
Easement Holder Indemnified Parties, or their employees or agents, shall be responsible for any such placement, disposition, or release of any Hazardous Materials and Landowner may seek all remedies available under law to address, abate, mitigate or otherwise sure any damage caused by the responsible party(ies), This release and indemnification includes, without limitation, Claims for (a) injury to or death of any person or physical damage to any Easement Area; and (b) the violation or alleged violation of, or other failure to comply with, any Environmental Laws (as defined below).
If any action or proceeding is brought against any of the Easement Holder Indemnified Parties because of any such Claim, Landowner shall, at the election of and upon written notice, defend such action or proceeding by counsel reasonably acceptable to the Easement Holder Indemnified Party.
Parties do not intend this Agreement to be, and this Agreement shall not be, construed such that it creates in or gives to Easement Holder or the Third-Party Beneficiaries the following; except subsections (a), (b), and (c) shall apply if the Hazardous Materials are placed, disposed or released by Easement Holder or Easement Holder Indemnified Parties:
(a) The obligations or liability of an "Landowner" or "operator," as those terms are defined and used in Environmental Laws (as defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA"); or
(b) The obligations or liabilities of a person described in 42 U.S.C.
Section 9607(a)(3) or (4); or
(c) The obligations of a responsible person under any applicable Environmental Laws; or
(d) The right to investigate and remediate any Hazardous Materials associated with the Easement Area; or
(e) Any control over Landowner's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Area.
The term “Hazardous Materials” includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
Section 6901 et seq.; hereinafter “RCRA”); the Hazardous Materials Transportation Act (49 U.S.C.
Section 6901 et seq.; hereinafter “HTA”); the Hazardous Waste Control Law (California Health &
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
16 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 “HAS”), 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 Agreement.
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.
21. Representations and Warranties. Landowner hereby makes the following representations and warranties for the benefit of Easement Holder and the Third-Party Beneficiaries:
(a) Authority. Landowner has good and sufficient title to the Easement Area (including all appurtenances thereto, including, without limitation, [all minerals and mineral rights and all water and water rights], and Landowner has full right and authority to enter into this Agreement and convey the Conservation Easement to Easement Holder. There are no monetary liens and encumbrances recorded against the Easement Area except as expressly identified in Exhibit E.
All deeds of trust and mortgages, if any, recorded against the Easement Area/Property, or any portion thereof, are and shall continue to be subordinated to this Conservation Easement, excepting any encumbrances or covenants related to public financing in support of the operation or capital improvement of the RWF; documentation of such subordinations is contained in Exhibit E.
(b) Compliance with Laws. Landowner has not received notice of, and has no knowledge of, any material violation of any federal, state, county or other governmental or quasi- governmental statute, ordinance, regulation, law or administrative or judicial order with respect to the Easement Area except as disclosed in the Report.
(c) No Litigation. There is no undisclosed action, suit or proceeding which is pending or threatened against the Easement Area or any portion thereof relating to or arising out of the Landownership or use of the Easement Area, or any portion thereof, in any court or in any federal, state, county, or municipal department, commission, board, bureau, agency or other governmental instrumentality.
22. General Provisions.
(a) Controlling Law; Jurisdiction; Venue. The interpretation and performance of this Agreement shall be governed by the laws of the State of California, disregarding the conflicts of law principles of such state, and by applicable federal law. Any suit, mediation, arbitration, litigation, hearing or proceeding relating to this Agreement shall be brought only in Santa Clara County, California.
(b) Liberal Construction. It is the intent of this Agreement to preserve the condition of the Easement Area and each of the Conservation Values protected herein, notwithstanding economic or other hardship or changes in circumstances or conditions. The provisions of this Agreement shall be liberally construed to effectuate the purposes of the Conservation Easement and to allow Landowner’s use and enjoyment of the Easement Area to the extent consistent with such purposes. Liberal construction is expressly required for purposes of effectuating this Agreement in perpetuity, notwithstanding changed conditions of any kind. The
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
17 Conservation Easement created by this Agreement is the intended best and most productive use of the Easement Area. No remedy or election given by any provision in this Agreement shall be deemed exclusive unless so indicated, but it shall, wherever possible, be cumulative with all other remedies at law or in equity. The parties acknowledge that each party and its counsel have had the opportunity to review and revise this Agreement and that no rule of construction that ambiguities are to be resolved against the drafting party shall be employed in the interpretation of this Agreement. In the event of any conflict between the provisions of this Agreement and the provisions of any use and zoning restrictions of the State of California, the County of Santa Clara, or any other governmental entity with jurisdiction, the more restrictive provisions shall apply. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid.
(c) Meet and Confer. In the event either party determines there is a need to meet and confer to resolve any discrepancy of findings related to, or to validate or determine compliance with, this Conservation Easement, then authorized representatives from all affected parties will act in good faith to meet and confer in order to resolve the discrepancy or issue in a timely manner, before any additional adverse action, finding or litigation is pursued.
(d) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Agreement, such action shall not affect the remainder of this Agreement.
If a court of competent jurisdiction voids or invalidates the application of any provision of this Agreement to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances.
(e) Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to this Agreement and supersedes all prior discussions, negotiations, understandings, or agreements relating to this Agreement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section
18. (f) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Landowner's title, rights or interest in or to the Easement Area in whole or in part, in any respect.
(g) Successors. The covenants, terms, conditions, and restrictions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Easement Area.
(h) Termination of Rights and Obligations. A party's rights and obligations under this Agreement terminate upon transfer of the party's interest in the Agreement, except that liability for acts or omissions occurring prior to transfer shall survive transfer.
(i) Captions and Headings. The captions and headings used in this Agreement have been inserted solely for convenience of reference and are not a part of this Agreement and shall have no effect upon its construction or interpretation.
(j) Additional Easements. Landowner shall not grant any additional easements, rights of way or other interests in the Property other than a security interest to finance the Plant
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
18 Master Plan capital improvement program, or grant or otherwise abandon or relinquish any water right or agreement relating to the Easement Area, notwithstanding the specific uses and/or easement described in Exhibit D, without first obtaining the written consent of Easement Holder and the Third- Party Beneficiaries. Easement Holder and the Third-Party Beneficiaries may not unreasonably withhold such consent unless it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the Conservation Values.
This section shall not prohibit transfer of a fee or leasehold interest in the Easement Area that is subject to this Agreement and complies with Section 14.
(k) Recording. Easement Holder shall record this Agreement in the Official Records of the county where the Easement Area/Property is located, and may re-record it at any time as Easement Holder deems necessary to preserve its rights hereunder.
(l) Counterparts. The parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
19 IN WITNESS WHEREOF Landowner and Easement Holder have executed this Agreement the day and year first above written.
LANDOWNER:
CITY OF SAN JOSE, a California municipal corporation
By:______________________________________
TONI J. TABER, CMC
City Clerk
CITY OF SANTA CLARA, a California municipal
corporation
By:______________________________________
Name: ___________________________________
Title: ____________________________________
EASEMENT HOLDER:
SANTA CLARA VALLEY HABITAT AGENCY, a
California Joint Powers Authority
By:______________________________________
Name: ___________________________________
Title: ____________________________________
EXHIBITS:
Exhibit A -- Legal Description of the Easement Area
Exhibit B -- Map of the Easement Area
Exhibit C -- Initial Conservation Values
Exhibit D -- Allowed Uses and Reservation of Easements Exhibit E -- Monetary Liens and Encumbrances
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
A-1
Exhibit A
Legal Description of the Easement Area
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
A-2
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
A-3
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
B-1
Exhibit B
Map of the Easement Area
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
B-2
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
C-1
Exhibit C
Initial Conservation Values
In accordance with Habitat Plan Section 8.6.3, this Exhibit C will set forth those land-cover types and covered species habitat described in Habitat Plan Chapter 3 that are present on the Easement Area. Section 8.6.3 also requires the Conservation Easement to either include or incorporate by reference the initial pre-acquisition assessment of covered species and natural communities present.
An initial pre-acquisition survey was prepared and is summarized in this Exhibit.
The San José-Santa Clara Regional Wastewater Facility (RWF) Buffer lands Preserve (Easement Area) is part of the San José-Santa Clara Regional Wastewater Facility. The RWF occupies a 2,600-acre site located at the southern edge of San Francisco Bay in North San José, and the buffer lands provide a buffer for the adjacent land uses from potential odors and safety hazards due to the Facility operations. The Easement Area includes 200 acres within the buffer lands area identified as “Owl Habitat” in The Plant Master Plan (adopted by the City of San José in 2013) and the Cisco Mitigation Site. It is comprised of mainly grasslands east and west of Zanker Road and south of the facility itself.
The Easement Area is targeted for Reserve System enrollment because it provides a unique conservation value—one of five occupied western burrowing owl breeding sites in the permit area. It is the first breeding burrowing owl site to be enrolled in the Reserve System and represents 33% (200 of 600 acres) of the occupied nesting habitat requirement. It is located within Conservation Analysis Zone Guadalupe-3 and North San José/Bay lands Burrowing Owl Conservation Region. It is one of 5 breeding burrowing owl sites in this region, where all the remaining colonies are located south of San Francisco Bay.
Enrollment of this site contributes to Habitat Plan conservation action LAND-G6 “Acquire, obtain easements, or retain management agreements on burrowing owl nesting habitat within 2 miles the San José Water Pollution Control Plant Buffer lands, north of Highway 237”.
The Easement Area supports seasonal wetland (approx.. 4.9 acres), freshwater marsh (approx. 5.4 acres) and annual grassland (approx. 190.6 acres) land cover types. The vast majority of the site is open grasslands vegetated with non-native grasses and plants such as the thistle (Carduus spp.). The Congdon’s Tarplant (Centromadia parryi ssp. Congdonii), a plant listed as rare by the California Native Plant Society, is also present at the site.
The entire Easement Area is considered occupied burrowing owl breeding habitat and provides modeled habitat for California red-legged frog (51 acres), tricolored blackbird (57 acres), and western pond turtle.
The Easement Area and adjacent buffer lands have had documented breeding burrowing owls on site since data collection began in 1996. The number of adult owls historically fluctuating between 2 and 20 adults observed during the breeding season. In 2016 the number of breeding season adults was the highest recorded, with 25 adults (up from 20 in 2015) observed and 12 successful nesting pairs which fledged 58 chicks. A total of 18 active burrows were found to contain evidence of owl activity: 13 burrows were designated as nest locations and five satellite burrows were identified as burrows for escape from disturbance or used during chick dispersal. Six nesting attempts occurred in artificial burrows and seven nesting attempts occurred in natural burrows. The vegetation management activities allowed under the Management Plan, and the abundance of adjacent foraging habitat has improved conditions for owls over the last few years. In 2018, nine breeding pairs were present with 7 successful pairs that fledged 22 chicks. In 2019, 12 adults were observed, 5 breeding pairs were present with 4 successful pairs that fledged 21 chicks. In 2020, 12 adults were observed, as well as 9 chicks.
Management onsite will focus on those actions that benefit the burrowing owl. Long term habitat
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
C-2
management will be required to maintain proper vegetation height, exclude predators, coordinate trapping efforts, and perform wildlife surveys. Mowing and wire trimming around active burrows will keep vegetation low within a 30-foot radius. Invasive plants may be managed under the Management Plan to benefit the owls and maintain prey base. Perimeter fencing, low perches, and natural and artificial burrows will be installed, repaired, or maintained. Prey refugia (e.g., rock piles, brush piles, and vegetated mounds) will be installed and maintained as necessary. As necessary, predators will be managed on site.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
D-1
Exhibit D
Allowed Uses and Reservation of Easements
Landowner shall have the right to maintain, repair, reasonably enlarge, and reasonably replace the improvements that exist on the Easement Area and which are acknowledged in this Conservation Easement, in the same or different locations, provided that Landowner shall first obtain Easement Holder’s and Wildlife Agencies prior written approval for any enlargement, relocation or replacement. Said approval shall not be unreasonably withheld, conditioned, or delayed but in no event shall that approval be granted if said enlargement or replacement would impair or diminish the Conservation Values of the Easement Area. Notwithstanding the foregoing, (i) maintenance, repair, enlargement and replacement of improvements authorized in the Management Plan may be undertaken without additional Easement Holder or Wildlife Agency approval, and (ii) existing fences may be repaired and replaced for purposes of reasonable and customary management of the property and wildlife, without further permission of Easement Holder or Wildlife Agencies; provided, all repair, and replacements shall be, designed and installed to protect, and not impair, the Conservation Values of the Easement Area/Property, including, but not limited to, wildlife corridors.
Water Resources:
Landowner may maintain such surface water resources on the Easement Area as are noted in the terms and conditions of this Conservation Easement and the Management Plan. Landowner may only develop new or enhance existing surface water resources with the prior written approval of Easement Holder and Wildlife Agencies which approval shall not be unreasonably withheld, conditioned, or unreasonably delayed, and then only if said development is necessary to enhance, restore, create, preserve, or protect the Conservation Values of this Conservation Easement, and the development does not impair the Conservation Values of this Conservation Easement and that such development is consistent with State Water Law.
Operational Resources:
Landowner shall have the right to reasonably enlarge, reasonably replace or remove equipment, facilities, installations and general RWF and collection systems infrastructure that exist on the Easement Area, in the same or different locations, with prior written approval of Easement Holder, which approval shall not be unreasonably withheld, conditioned, or unreasonably delayed, and then only if said enlargement, replacement or removal is necessary to maintain the operation of the RWF and collection systems. Landowner will notify Easement Holder and Wildlife Agencies for any enlargement, relocation or replacement. In addition, the following activities shall be considered Allowed Uses and may occur without additional Easement holder approval:
• driving and walking on approved roads and paths,
• access to maintain and repair underground pipelines, including but not limited to three active utility lines, one recycled-water line and three raw sewage lines, • staging and access for construction activities related to repair and maintenance of existing infrastructure,
• access to repair fencing,
• PG&E tower repair and maintenance,
• Santa Clara County Vector Control (Vector Control) for mosquito abatement,
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
D-2
• rail spur maintenance and repair, and
• wildlife rescue and transportation.
Storm Drain Easement:
Landowner shall reserve from the Easement Area a storm water drain easement, as generally described below, for the use and benefit of the RWF and other properties in the immediate vicinity. Note that this storm water drain easement is specifically excluded from the Easement Area and the no credits shall be given for the acreage reserved from the Easement Area. The Parties agree, without future consideration, to execute and deliver other such documents and take such other action as may be reasonably requested by the other Party to consummate the recording of the storm drain easement as described herein. For the avoidance of doubt, no obligations contained herein commit any Party to commit any actions related to their regulatory functions.
The location of the reserved storm drainage easement is depicted in the map attached below. The total area of the reserved storm drain easement shall be no greater than 33,900 square feet, the width of the easement shall be no greater than thirty-five (35) feet, and the storm drain itself shall approximately thirty-six (36) inches and shall be buried underground at a depth of approximately ten (10) feet. However, the exact size and corresponding legal description of the storm drainage easement itself is not presently fixed and the Parties agree to enter into an easement agreement for the purposes of a storm drain in conformance with the location and maximum area described in this Exhibit.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
D-3
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-1
Exhibit E
Monetary Liens and Encumbrances
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-2
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-3
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-4
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-5
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-6
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-7
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-8
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-9
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-10
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-11
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-12
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-13
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-14
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-15
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-16
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-17
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Santa Clara Valley Habitat Plan – Conservation Easement with RWF Date: October 2022
E-18
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.