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Conservation Easement Deed 2004-1137533 ,: ~ . DOC. " - :::'004-1137533 -na RECORDING Ri::QUESTED BY: 11111111111111111l1li1111111111111111111111111111111111111111111111111 . CITY OF POWAY ~l:e ' ' DEe 02, 2004 2:46 PM ~kWHEN RECQ~DEP MAIL TO: [IFFIClp,L FIEDJRC', &tr CITY'CLERK ':,0.1-1 ['IEI~[1 mUIIT, REC[lFI['ER,c, [IFFICE CiF:ECinR'-( ,I '::;MITH l~nUNrl RECORCIEF: V~(CIJY OFPOWAY fEES 0.00 POBOX 789 oc. N,t:. POWAY CA92074-0789 F't:.fiE:. 11 11111111111111111111111111111111111111111111111111111111111111111111111111111111 APN'277-220"09 1-1146 2004-1137533 MDRA,03"65 , C0NSERV ATIONEJ\SEMENT DEED No Documentary Transfer liP Due THIS CONSERVATION EASEMENT DEED is made this.jCf~day of NVr/fH15til2004, by Jonathan Schwartz, Trustee of the Heritage Trust, dated August 18, 2003" Property Owner ("Grantor"), in favor of City of Poway ("Grantee"), acting by and through its Development Services Department, with reference to the following facts. RECITALS A. Grantor is the sOI,e owner in fee simple of certain real property in the City of Poway, County of San Diego, State of .Calif9rnia,. more particularly described in Exhibit "A" and Exhibit "B" attached hereto and incorporated by this reference (the "Property"), B, The Property possesses wildlife and, habitat values (collectively, "conservation values") of great importance to 'th-e Grantee, the people of the City of Poway, the people of the State of California, and'the people of the United States. C The Property provides high quality Coastal Sage Scrub. Coastal Sage Scrub is the habitat.of the California Gnatcatcher, ,whic~ is listed as a threatened, species on the Federal Endangered Species list. Cons'ervation of this property,therefore will preserve, habitat ofa protected species. D The City of Poway is authorized to hold conservation easements for the preservation of land in its natural, scenic, agricultliral',;historical, forested, or open. space condition. The City of Poway has authority to hold easements for these,purposes pursuant to California' Civic Code Section 815,3(b). E. The State, of California; ,by and through its Department of Fish and Game (CDFG), has jurisdiction, pursuant ,to the Fish arid Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable popuiations,'of those species. F The United States Fi~h<3nd Wildlife Services (USFWS) has jurisdiction over the conservation, protection, restoration, enhancement and management of fish, wildlife and native' plants and the habitats on which they depend',under the Endangered S'pecies Act, 16 U.S C Secti~n 153 i et seq. (ESA), 'the Fish and Wildlife Coordination Act, 16 U,S.C, section 661-666cand other applicable laws. G The Biological Resources Analysis pr.epare_d by p&D Environmental, dated January 2000, for subdivision TTM 98-02, "Heritage II EstCltes BiolClgical Technica,1 Report", identified inwacts to Coastal. Sage S~rub (CSS) habitat. Mitigation of impacte_d habjtat 'was Te~olved as part of the Final Environmentallmpact,Heport, Sch. No. 98091083, through the p~eservation of open space easements on each parcel throughoulthe,subdiiiision. Open space areas were.identified,on the"map no. 14388, filedin the office"of the 'County Recorder of San Diego County, California, oT1"May8, 2002, file number 2002- 0391382 on Lot' 9, for impa~ts to CSS Recordation of Biological Conservation Easements witt ensure preservation of areas set aside for Coastal Sage Scrub habitat. o'h;);J d.. I Conservation .Easement oJ . 17147 Page 2 H. Grantor intends to convey to Grantee the right to preserve and protect the conservation values of the Property in perpetuity in accordance with Covenants, Terms, Conditions and Restrictions contained herein in exchange far Grantee permitting Grantar's construction of a single-family residence within Heritage II Estates. I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and to protect in perpetuity the canservation values of the property in accordance with the terms of this Conservation Easement'for the benefit .of this generation and the generations to come. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to Caiifornia law, including Civil Code Sectian 815, et seq., Grantor hereby voluntarily deeds and conveys ta Grantee conservation easement in perpetuity aver the Property of the nature and character and ta.the extent hereinafter set forth ("Easement"). 1 Purpose. The purpose of this Conservation Easement is ta ensure the Property will be preserved in a natural condition in perpetuity and to prevent any use of the Property that will materially impair or interfere with the conservation values of the Property Grantor intends that this Canservation Easement will confine the use .of the Praperty to such activities, including without limitation, those involving the preservation and enhancement of native species arid their habitat in a manner cansistent with the habitat conservationpurpases of this Conservation Easement. 2. Riqhts .of Grantee. To accompiish the purposes of'this C.onservation Easement, Grantor hereby grants and conveys the following rights to Grantee and the State of California Department of Fish and Game as a third party beneficiary of this easement by this Conservation Easement Deed: (a) To preserve and protect in perpetuity the canservatian values of the Property in accordance with this easement; (b) To enter upon the praperty at reasonable ti"Des in order ta monitor Grantor's compliance with, and to .otherwise enforce the terms .of, this Canservation Easement, including Grantor's obligation to manage the property consistent with Grantor's duties as set forth in section 4, and far scientific research and interpretive purposes by Grantee or its designees; and CDFG and its designees. (c) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Canservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, .or any use that is inconsistent with the purposes of this Conservation Easement; (d) All mineral, air and water rights necessary to pratect and sustain the biological resources of the Property; and (e) To enforce by means including, injunctive relief, the terms and conditions of the Easement. 3, Prahibited Uses. Any activity on or use of 'the Property inconsistent with the habitat canservation purpases of this Conservation Easement and not'specifically reserved as a right .of Grantor is prahibited, Withaut limiting the generality of the f.oregoing, the following uses by Grantor, Grantar's agents, and third parties, are expressly prohibited unless specifically provided far through the Paway Subarea Habitat Conservatian Plari/NCCP (a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement activities, inc.ompatibie fire protection activities and any and all other'uses which may adversely affect the purposes of this Conservation Easement; Conservation Easement o! . 17148 . Page 3 (b) Use of off-road vehicles; except vehicles used for property maintenance required by the City of Poway, and then only:over existing roads. (c) Grazing br,surface entry for exploration or extraction of minerals; (d) Erection of any building, billboard, sign; (e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other material; (f) Otherwise altering the general topography of the, Property, including building of roads or changing the grade of the Property; (g) Removing; destroying, or cutting of trees, shrubs, or other vegetation, except as required by law 'for (1) firebreaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease. (h) Planting of trees or other vegetation except by written permission from ihe City of Poway 4 Grantor's Duties. Grantor shall undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the conservation values of the Property In addition, Grantor shaif undertake all necessary, actions to protect Grantee's rights under Section 2 of this Conservation Easement. Grantor further covenants that maintenance of the Property, to wit: clean up of all trash and debris, shall be the Grantor's responsibility 5. Reserved Riqhts. 'Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement. 6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, GraTltee shall give written notice to Grantor of such violation and demand in writing corrective action sufficient to cure the violation. Grantee shall also notify the California Department of Fish and Game. If Grantor'fails to cure the violation within thirty (30) days after receipt of said written notice and demand from, Grantee, or if the cure reasonabiy requires more than thirty (30) days to compiete 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 toenfo~ce the terms of this Conservation Easement, to recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation Easement, 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 6f,the Property to the condition in - , ,. . .... . which it existed prior to,any such violation'or injury Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property If,Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conserVation values of the Property, Grantee may pursue its remedies under this:paragraph without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights under this paragraph apply equally to actual or threatened violations of the terms oithis'ConservatioTl Easement. Grantor:and Grantee"agree that Grantee's remedies for any violation of the terms of this Conservation Easement is the injunctjve 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 the terms of this Conservation Easement in each case, without the necessity of proving either a,ctual 'Qamagesor 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 Civil Code Section 815, et seq., inclusive. c' " . Ee . onservatlon asement Deed 17149 Page 4 . If at al')Y time inthe,future!Grantor or any subsequenl'transferee uses or threatens to use such lan,dsforpurposes inconsistent: with' this Conservation Easement, I')otwithstanding Civil Code :Section ,g'157" the California Attorney General;,orthird-party entitles,organized;f,or conservation purposes haye standing as interested' parties:in'any proceeding affecting this Conservation Easement as against Grantor The California Depa-rtnient ofFish and Game,(CDFG) as a third party beneficiary of this , ' , easement shall have the same rights as Grantee under this 'section to enforce the terms of the easement. 6.1 Costs, of Enforcement. Any costs.,incurred by Grantee or CDFG in enforcing the terms 'of this Conservation Easement against Grantor, including; but .not limited to, costs of suit and attorneys' fees, and any costs oUestoration necessitated by,Granto(s violati'on or negligence under the terms of this Conservation Easement shall be borne by Grantor 6.2. Grantee's Discretion. Enforcement of the terms of this Conservation Easement by Grantee or CDFG'shallbe'atithe discretion of Grantee,and CDFC:;, and any forbearance by Grantee or CDFG to exElrcise its rights under this Conservation Easement by Grantor shall not be deemed or construed:tobe a waiver by Grantee ofsucMerm or of any'subs'equentbreach of the same or any other term ohhis Conservation Easementor'of any of the Grantee's rignts under tI{ls Conservation Easement. No deiay or omission by Grantee or 'CDFG in the exercise of any right or remedy upon any breach by Grantor shall impair such right or'remedy or be construed as a waiver E):3. Acts BevondGrantor's Control. Nothing ,contained in this Cpn~ervation Easement by Granteeshaii be,anhe giscretion of Grantee and CDFG to bring'any action against Gral}tor for any injury to change in the Property resulting from causes beyonQ Grantor's control, including, fire, flood, storin, and eart[rmovem€mt; or i'lnyprudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant.injury to the Property resulting from such causes. 6 4 Department of Fish and Game Riqht of Enforcement. All right~ and re,rned,ies conveyed to Grantee under thisCoQserv,ation Easement Deed shaii extend to and are enforceable:by t/:le Department'of Fish and Game or USFVYS 7 Metal Fence Stake Installation and Maintenance, In"order to identify"and dem<jrcate the boundaries of the Conservation Easel]1er't Deed area on Lot9, 1857:0 Old Coach Way, APN 277-220-0,9, within ninety days,the Grantor shall inStall and maintein metal fence ,staKes (T-stakes painted white) six (6) feet in height [2 feet below grad,eand 4 feet exposed aboVe grade] as follows: A stake sh~lI. be installed at the property lineatm6 pOi,l}t'ofintersection with the easemeht boundary iine and also'instaiie,d at intervals ofseventy4ive(75)feet\a)ong the length of the easemehfboundaryline. The purpose of this staking is to,identify to the lot owner t~e,boundaries of the conservation easement area, and to prote~t in perpetuity the conservation ,values, a':',d function of the Property' The speCific location of all required stakes shall also be plottedon' ExhibifB (easement plat) attached hereto. 8. Access. This 'Conservation Easement Deed does not convey a general right of access' to the public. g Costs and Liabilities, Grantor retains all responsipilities and shall bear all costs and liabilities of any kind relcitedtbtne ownership, operation, upkeep, and maintenance of the Property 9 1 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"Y, including any taxes imposed upon, or incurred asa result of, this Conservation Easement, and shall furnish Granlee,and CDFG with satisfactory evidence of payment upon request. 9:2. Hold Harmless, Grantor shall hold harmless, indemnify, and defend Grantee and CDFG and its members, directors, officers, empI6yees;?gents, contractors, and their heirs, and representatives, successors'and assigns (collectively "Indemnified Parties") from and against all liabilities, penalties, costs; losses, damages,;expenses, causes of action,claims, demands, or judgments, including Conservation Easement o! . 17150 Page 5 without limitation, reasonable attorneys"fees, arising from or in any way connected with: (1) injury to or the'death of any person, or physical damages'to any property resulting from any act, omission, condition, or other matter related too! occurring o~ or about the Property, regardless of cause; (2) the obligations specified in 'SectionsA, .9, and 9.1, and (3)'theexistence or administration of this Conservation Easement. 9.3. Condemnation. The p~urposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure Section 1240,680 notwithstanding Code'ofCivil Procedure Sections 1240.690 and 1240.700. 10. Assiqnment. This Conserv!ltion Easement may not be transferred, assigned, or extinguished without the prior written approvai' of CDFG. Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3. Grantee shall require the assignee to record the assignment in the county where the Property is located. 11 Subsequent Transfers, Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee or the CDFG of the intent to tra~sfer any interest at least forty-five (45) days prior to the date of such transfer Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given no~ce of the covenants, terms, conditions and restrictions ofthis Conservation Easement. The failure of Grantor or Grantee to perform any act provided in this section shall not impair the validity of this Conseryation Easement or limit its enforceability in any way Grantor shall not grant. additional easements or other interests in the property without the prior written authorization of Grantee a'nd CDFG. 12. Notices. All notices, demands, requests, consents, approvals, or communications from one party to another shall be personally delivered or sent by facsimile to the persons set forth below or shall be deemed,given five.(5) days after deposit in the United States mail, certified and postage prepaid, return receip,t requested and addressed as follows, or at such other' address as any party may from' time to time specify to the other parties in writing: To Grantor' Jonathan Schwartz, Trustee of the Heritage Trust 18570 Old Coach Way Poway, CA 92064 To Grantee: City of Poway POBox 789 Poway CA 92074 With a copy to: Department of Fish and Game Na!ural Community Conservation Planning 4949 Viewridge Avenue San Diego, CA 92123 The parties agree to accept facsimile signed documents and agree to rely upon such documents as if they" bore original signatures. Each party agrees to provide to the other parties, within seventy-two (72) hours after transmission of a facsimile, documents that bear the original signatures, 13. Amendment. This Conservation Easement may be 'amended by Grantor and Grantee only by mutual written agreement approved in writing by CDFG. Any such amendment shall be consistent with the purposes of this Conservation Easement and, shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Diego County, State of California. Conservation Easementol . 1715i Page 6 14 Recordation. Grantor shall promptly record this instrument in the official records of San Diego County, California arid immediately - notify the Grantee and CDFG through the mailing of a confirmed copy of the recorded easement. 15. General Provisions. (a) Controllinq Law The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed in favor of the deed to effect the purposes of this Conservation Easement and the policy and pu.rpose of 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) Severabilitv If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservatiori Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shali not affect the application of the provision to other persons or circumstances. (d) Entire.Aqreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation EaselTIent and supersedes ail prior discussions, neg~tiations, understandings, or agreements relating to the Conservation Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 13. (e) No Forfeiture. Nothing contained herein wili result in a forfeiture or reversion of Grantor's title in any respect. (f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and their re~pective personal representatives, heirs, successors, and assigns and shall continue as a servitude 'running in perpetuity with the Property These covenants hereunder benefiting Grantee shall also benefit CDFG. (g) Termination of Riqhts and Obliqations. A party's rights and obligations under this Conservation Easement shall terminate only upon transfer of the party's interest in the Conservation Easement or Property, except that liability for acts or omissions 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 shail have no effect upon its construction or interpretation. (i) Counteroarts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by Grantor and Grantee; 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. OJ Modification. This Easement is not subject to modification or amendment except in writing and signed by Grantor, Grantee and CDFG or theirpermitted successors or assigns. (k) Exhibits. All Exhibits referred to in this Easement are attached and incorporated herein by reference. Conservation EasementD! . Page 7 17152 (I) Appropriations: Th!, duty of the City of Pow.ay and CDFG to carry out their respective obiigations under this EasemeiiU,hall be subject to the avail~bility of appropriate funds (m) Effective Date. This Easement shall be effective upon recording with the San Diego County. Recorder's Office. IN WITNESS THEREOF, Grantor and Grantee have entered into this Conservation Easement the day and year first above written, GRANTOR: Jonathan Schwartz, Trustee of the Heritage Trust"datedAugust 13, 2003, Property Owner By' ~ Date: 1\- \'1-<>'\ J nathan Schwartz Approved as to Form. Office of the City Attorney A FELIX GALLARDO Tamara Smith, City Attorney mission # 1404263 BY~ Public - Calitomlo ~ '1ngeles County ~I fxpfres Mar 8; 'XXJ7 Ta ara Smith, City ttorney M:\planning\peggy\mdra 2003\mdra 03-65\mdra 03:65 Cons Easement.doc . 7. . 17153 ACKNOWLEDGEMENT STATE OF: Califontia COUNTY OF: Los Angeles On ;J D II fj.I J3E/2 19 ;JOOt./(date), beJi'lre me, Aurora Gallardo, personally appeared If ON A 77-1 AN ~ 5Cl-luJAR.7?: pl!1.wmaHy kll8WII ffl me/proved 011 the basis of sati~factory evidellce to be the persoll/pe/!i<J/U whose lIallleJ#Mllles islHl'e- subscribed to the within instrument and acknowledged to me that he/~,~c/lII<Y executed the same in hislhel'.'1hcir authorized capacityk"l'm'iti~s, and that by hisl!ICP/1heir sigllaturelsigllMi'/e5 on the instrument the persolllpeJ:g8Ils, or the entity upon behalf of which the persolllpe,-sB:lS acted, executed the instrument. WITNESS my hand and official seal. n ~WW'0 (SEAL) My commission expires: March 8, 2007 J.~A"'~~I ." . Commission # 1404263 ~010ly PUbuc,. Calfomlo f , L()S Angeles County :t MyComm.ExpiII'lsMa8.:m7 ~.- ~ ~A~ . Coo No,IOI1 .. Los :' My Coo Conservation Easement 01 . 17154 Page 8 CERTIFICATE OF ACCEPTANCE This is to Certify that the, interest: in real property conveyed by the Conservation Easement by Jonathan Schwartz, Trustee of the Heritage Trust, dated November 19, 2004, to the City of Poway, Grantee, and:to,theCalifornia Department of Fish and Game, as a third party beneficiary, a governmental agency (under, Government Code Section 27281), is hereby accepted by the undersigned officer on behaif of the City of Poway, pursuant to authority conferred by Resolution No. 34 of the City of Poway on January 20,1981 GRANTEE. City of Poway By.J;uJAU ~ Title: Sherrie Worrell, DeDutv Citv Clerk Authorized Representative Date: Lf1fP() , :30, ~t.f . . . 17155 EXHIBIT A BIOLOGICAL CONSERVATioN EASEMENT THAT CERTAIN AREA SHOWN AS QPEN SPACE EASEMENT ON LOT 9 OF CITY OF POWAY TRACT NO~ 98-02 HERiTAGE RANCH ESTATES, ACCORDING TO MAP NO. 14388, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON MAY 28, 2002, FILE NUMBER 2002-0391382 OF OFFICIAL RECORDS. !11" - . . . . " EXHIBITB 17156 Lot 9 Individual Lot Deckzration The Hentage Estates City of Poway .' .. Open Space Lot Dimension Fuel Modification Zone I Setback. Fuei Modification Owner Maintained Zone I Setback- ./"5 ,__ Owner Maintained f /; /r ,. \ ~ ,." <)'\} ,./ , Surface Front Yard , Drainage Outlet Setback ,./ ~~ ,. ~<< *' ,l/~/ 0(' '// .;p \ ~ ' ,,/ ~~ , , , /' ~(j 'Open'Space Y// <:9 \ / Easement ~ ~/ S> Water Fuel Modification ,,\'Y // (j Station Zone I Setback - , ,- , \l, Owner Maintained J/--- 6' Parkway _ HCEA , / / Maintained \{;> /,<(/ Heritage. \~ ~ /'--..- T I.;,andscape Perl< Site , / // Easemenl- HCEA , fi ' Malnlelned L.egend \ y#:/' Property Une;: - - - " , '/p Building Envelope _ ~nS"ace ---- ~'// C A N,"h " , ~ ammon' rea !2: ~ ~ asementUne, '/ M. ',.' / ~ ' , atflf"8f1aNte SkJrm Drain Inlet I,~ ' , ~ Easement RCEA S D' ~\ i'''/// Maintained 0 so too form ram -=::::~. Z/ S U ,r4 ;' s,,""'~ ewerne -8--\ r" , , WaterUne - w - \ ~' Sewer Une Connection @"/,> .'/7 " W akr Une Connection @ Utility Connection: @ Drainage Swale ~ Telephone, Gas, / Culvert Eledri~ TV Cables S /reet Ught ;<> Lit Number __________ Fire Hydrant "'" LitSize __ ~ ----.5.29 SlrlptUct/tion top>- Finished Pad Acres / Ekvation · 788 toe