Conservation Easement Deed 2004-1067885
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REC'ORDING REQUESTED BY: i l!lii,!!U 111:11111111111111111111111" II!fl illllllll: illllll,1 illl
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o '}, APN 277-220-27 , 2004A067885
\ Project No MDRA 03-92
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this 22nd day of October 2004, by MVA
Development, LLC ("Grantor''l. in favor of City of Ro~ay ("Grantee"), acting by and through its
Development Services Department, with reference to the following facts.
RECITALS
A. Grantor is the sole owner in fee simpie of certain reai property in the City of Poway,
County of San Diego, State of California, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporatedby'this,reference (the "Property"),
B. The Property possesses wildlife and habitat values (collectively, "conservation values") of
great importance to the Grantee, the people of the City of Poway, the people of the State of California,
and the people ofthe United State's,
C The Property provides high quality Coastal Sage Scrub Coastal Sage Scrub is the
habitat of the California Gnatcatcher, wiiich ,is listed as a threatened s'pecies on the Federal Endangered
Species list. Conservation ofthis property therefore will preserve habitat'of a protected species.
D The City of Poway iSiauthorized to hold conservation: easements for the preservation of
land in its natural, scenic, agricultural, 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 Califgrnia, by and through its De>partment of Fish and Game (CDFG), has
jurisdiction, pursu,,!nt to the 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
F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, proteCtion, restorati6n, enhancement and management, of fish, wildlife and native plants
and the habitats ,on which they depend under the Endangered Species Act, 16 U.S.C section 1531 et
seq. (ESA), the FishandWildlifeCoordination Act, 16 U.S.C section 661-666c and other applicable laws.
G. The Biological Resources 'Analysis prepared by P&D Environmental dated January 2000
for'subdivision TTM 98-02, "Heritage II Estates BiologicalTechnical Report", identified impacts to Coastal
Sage Scrub (CSS) habitat. Mitigation of impacted habitat was resolved' as part of the Final Environmental
Impact Report, Sch, No. 98091083, through the preservation of ' open space easements on each parcel
throughout the subdivision. Open space areas were identified on the map no. 14388, filed in the office of
the County Recorder of;,San Diego County, California on May 8, 2002, file number 2002"0391382 for
impacts to CSS. Recordati6n:ofBiological Conservation Easements'will ensure preservation of areas set
aside for coastal sage s'crub habitat.
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
04 ,~05
. . .
7218
Conservation Easement Deed
Page 2
contained herein in exchange for Grantee pemiitling Grantor'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 t6 preserve and to protect in perpetuity the conservation values of the property in accordance with
the terms of this Conservation Easement for the benefit of this generation and the generations to come.
COVENAN'T'S. 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 Section 815, et seq.,
Grantor hereby voluntarily deeds and, conveys to Grantee conservation easement in perpetuity over the
Property of the nature and character and to the extent hereinafter set forth ("Easement").
1 Purpose, The 'purpose of this Conservation Easement is to 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 th is Conservation
Easement will confine the use of the Property to such activities, including without limitation, those
involving the preservation and enhancement of native species and their habitat in a manner consistent
with the habitat conservation purposes of this Conservetion Easement.
2. Riqhts of Grantee, To accomplish the purposes of this Conservation 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 conservation values of the Property in
accordance with this easement;
(b) To enter upon the property at reasonable times in order to monitor Grantor's
compliance with, and to otherwise'enforce the terms of, this Conservation Easement, including Grantor's
obligation to manage the property consistent with Grantor's duties as set forth in section 4, and for
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 Conservation Easement and to require the resto[ation 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 protect and sustain the biological
resources onhe Property; and
(e) To enforce by means including, injunctive relief, the terms and conditions of the
Easement.
3. Prohibited Uses, Any activity on or use of the Property inconsistent with the habitat
conservation purposes of this Conservation Easement and not specifically reserved as a right of Grantor
is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's
agents, a~d third parties, are expressly prohibited unless specifically provided for through the Poway
Subarea Habitat Conservation Plan/NCCP
(a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement
activities, incompatible fire protection activities and any and all other uses which may adversely affect the
purposes of this Conservation Easement;
(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 or surface entry for exploration or extraction of minerals;
,
, . . 7219
Conservation Easement Deed
Page 3
(d) Erection of anyl5uilding, 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 gradecof 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 the 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 deg~ade or harm the conservation values of the
Property In addition, Grantor shall undertake all necessary acti.ons to protect Grantee's rights under
Section 2 of this Conservation Easement. Grantor further covenantsthat,maintenance of the Property, to
wit: clean up of ail 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 i,nviteothE!rs\o 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, Grailtee shall give written notice to,Grantor
of such violation arid 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 reasonably requires
more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30) day period "
or fails to continue diligently to complete' the cure, GranteE') may bring an action at law or in equity in a
court of competent jurisdiction to enforce 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 ofoth'i'rwise available legal remedies,
or for other equitable relief, including, but not limited to, the restoration of,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 damag'e to the conservation v,alues 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 paragreph apply equally to actual or threatened violations
of the terms of this Conservation Easement. Grantor and Grantee'agreethat Grantee:s remedies for any
violation of the terms of this Conservation Easement is the inJunctive relief described in this section, both
prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including
specific performance of the terms of this Conservation Easement in each case, without the necessity of
proving either a,ctual damages or the inadequacy of otherwise available legal remedies, Grantee's
remedies described in this section, shall be cumulative and shall be in addition to all remedies now or
hereafter existif}g at law or in equity, including but not limited to, the remedies set forth in Civil Code
Section 815, et seq" inclusive.
If at any time in the future Grantor or'any subsequ"nt transferee uses or threatens to use
such lands for purposes inconsistent with this Conservation Easement, notwithstanding Civil Code
Section 815.7, the California Attorney General or third-party entitles organized for conservation purposes
conservati~n Easement Del . 7220
Page 4
have standing as interested parties in any proceeding affecting this Conservation Easement as against
Grantor
The California Department of Fish and Game (yDFG) 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 of restoration necessitated by Grantor's violation or negligence under the
terms of this Conservation Easementshall be borne by Grantor
6.2, Grantee's Discretion, Enforcement of the terms of this Conservation Easement
by Grantee or CDFG shall be at the discretion of Grantee and CDFG, and any forbearance by Grantee or
CDFG to exercise its rights under this 'Conservation Easement by Grantor shall not be deemed or
construed to be a waiver' by Grantee of such term or of any subsequent breach of the same or any other
term of this Conservation Easement or of any of the Grantee's rights under this Conservation Easement.
No delay or omission by Grantee or CDFG, in the exercise of any right or remedy upon any breach by
Grantor shall impair such'right 6r,-remedy or be construed as a waiver
6.3. Acts Bevond Grantor's Control. Nothing contained in this Conservation
Easement by Grantee shall be aHhe discretion of Grantee and CDFG to bring any action against Grantor
for any injury to change in the Property resulting from causes beyond Grantor's control, including, fire,
flood,storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Property resulting from such causes.
6.4 Deoartment of Fish and Game Riqht of Enforcement. All rights and remedies
conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceable by the
Department of Fish and Game orUSFWS.
7 Metal Fence Stake Installation and Maintenance. In order to identify and demarcate the
boundaries of the Conservation Easement Deed area (property) 18745 Heritage Drive, APN 277-220-27,
within ninety days, the Grantor shall install and maintein metal fence stakes (T-stakes painted white) six
(6) feet in height [2 feet below grade and .4 feet exposed above grade] as follows: A stake shall be
installed at the property line at the point of intersection with the easement boundary line and also instailed
at intervals of seventy-five (75) feet along the length of the easement boundary line. The purp.ose of this
staking is to identify to the lot owner ,the boundaries of the conservation easement area, and to protect in
perpetuity the conservation values and function of the Property The specific location of all required
stakes shall also be plotted on Exhibit "B" (easement plat) attached hereto.
8. Access. This Conservation Easement Deed does not convey a general right of access to
the public.
9. Costs and Liabiliiies. Grantor relains all responsibilities and shall, bear all costs and
liabilities of any kind'related to the ownership, operation, upkeep, and maintenance of the Property
g 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"), including any taxes imposed upon, or incurred as a result of, this Conservation
Easement, 'and shall furnish Grantee 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, employees, agents, contractors, and their heirs, and
representatives, succ'essors and assigns (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expens~s, causes of action, claims, demands, or judgments, including
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'to or occurring on or about the Property, regardless of cause; (2) the obligations
specified in Sections 4, g, and 9.1, and (3) the existence or administration of this Conservation Easement.
C '.. E O.d . 7221
onservatlOr:l,C1sement ee
Page 5
9,3Condemnati6n. The purposes of the Conservatjon Easement are presumed to
be.the' lJest and most necessary public use as defined at ,Code of C;ivil Procedure Section 1240680
notwithstanding Code of Civil Procedure Sections 1240:690 and 1240700
10 AssiQnment. This Conservation Easement may not be tr<:)nsferred, a~signed, or
extinguished without the prior written approval of CDFG.Grahtee may assign its rights and obligations
under this Conservation Easement only to an entity or o-rgahizati6n' authorized to acquire and hold
~" -,... . - . . ~
conservation easements pursuant to Civil Code Section 815,3. Grantee shall require the assignee to
record the assig-Il"ment in the cOLJntywherethe 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 il1 all or a
portion of the Property, including,,\Nithout limitation, a leasehold int~'rest. Grantor further agrees to give
written notice t6 Grantee or the CDFG of the intent to transfer any illterest at least forty-five (45) days
prior to the date of such transfer Gramee shail have the right to prevent subsequent'tranSfers in which
prospective subsequent claimants or transferees are not'given notice oUhe covenants, terms: conditions
and restrictions of this Conservation' Easement. The failure of Grantor or Grantee to ,perform any act
provided in this section shall'not im'pair the validity of this Conservation Easement or limit its enforceability
in any way Gra.ntor shall' not grant aaditional easements or other -interests in the property without the
prior written authorization of Grantee aridTDFG
12, Notices. All notices, demands, requests, consents, approvals, or.communications from
one party to another'shall be perscmaliy. delivered or sent.by facsimile to the persons set forth below or
shall be deemed given five (5j:daysiafterdeposit in the United StatesJnail"ceitified and postagE? prepaid,
return receipt 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' MVA Development, LLC
PO Box 9284
Rancho Santa Fe, CA92067
To Grantee: City of Poway
PO Box 789
Poway CA 92074
With a copy to: Department of Fish and Game
Natural 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 writteri ag'reement 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 amendmenl'shalLbe recorded in the offlciai records of San Diego County, State of California,
14 .Recordation. Grantor shall promptly record this, instrument in the official records of San
Diego County, California ia'rid immediateiy notify the Grantee and CDFG through the mailing of a
confirmed copy-of the recorded easement.
15. General Provisions,
(a)ControlliriQ Law' - The interpretation and performance of this Conservation
Easement shall be governed by the laws of the State of California.
Conservation Easement o! . 7222
Page 6
(b) liberal ConstruCtion. Any general rule of construction to the contrary
not",itt,standing, this Conservation Easerrllint shall be liberally,constnjed in favor of thE!. deed to effect the
purpose~)of tl1is<:;onservationEasement and'the policy and purpose'ofCivil Code Sectioni815, etseq. If
any" Pfovi~ion in this instrument is found to,be ambiguous, an interpretation consistent with the purposes
of this Conservation Easement that would render the provision valid shail be favored over any
interpretation that wouid render it invalid.
(c) Severabilitv" If a court of competent jurisdiction voids or invalidates on its face
any provision of this, Conservation Easement Deed, such action shall not, affect the remainder of this
Conservation Easement Deed. If a,courLof competent jurisdiction voids or invalidates the application of
any provision of this 'Conservation 'Easement Deed to a person or circumstance, such action shall not
affect the application of the provision:to',o'ther persons or circumstanses,
(d) Entire Aqreement. This instrument setsOforth the entire agreement of the parties
with respect to the Cbn'servati6n Easement and supersedes all prior discussions, negotiations,
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 will 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 respective perso~al 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 n'ot a part of this instrument and shall have no effect upon its
construction or interpretation.
(i) Counterparts. 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,recordedcounterpart shall be controlling,
U) Modification., This Easement is not subject to modification or amendment except
in writing and signed by Grantor, Grantee and CDFG or their permitted ,successors or'assigns,
(k) Exhibits, All Exhibits referred to in this Easement are attached and incorporated
herein by reference.
(I) Abbropriations. The duty of the City of Poway and CDFG to carry out their
respective,obligations unaerthis Easement shall be subject to the availability of appropriate funds.
(rn) EffeCtive Date. This Easement shall be effective upon recording with the San
Diego County Recorder's Office,
Conservation Easement o! . 7223
Page 7
IN WITNESS'THEREOF, Grantor and Grantee have entered irllo this Conservation Easement the
day and'yearflrst above written.
GRANTOR:
By' :;;;'"' cec 'ro~~ O~"
Its '1>""5 Ir\ L'^^,
Approved as to Form:
Office of the City Attorney
Tamara Smith, City Attorney
BY~~
Tamara Smith, City Attorney
M:\planning\peggy\mdra2003\MDRA 03w92 Conservation Easement Deed.doc
. . 7224
CALIFORNIA, ALL.PURPOSE ACKNOWLEDGMENT
I
I
I State of California. J }
County of Y;/1/ I-;CZ 0 ss.
: On rfc::r2 Z, zoa! before me, !?Yi US ~A/// ;/J1?!7fy A~I
Date I Name and Title of Officer (e,g.. "Jane Doe, Notary Pubhc")
: personally appeared /J I::... a-
Name(s) of Signer~s)
I
D personally known to me
~oved to me on the basis of satisfactory
[ evidence
I,
to be the personM whose name(M is/arK
subscribed to the within instrument and
J~, - - ..-., -- - -- -", -, - - - ~ acknowledged to me that h~/sllf!lth)ly. executed
~,:_.,.. PHYlUS SlfINN the same in hIS/ti:ailth~ authorized
~' .....' Ncommlssion # 14~ capacity(i~ and that by his/h'ir/th~
J' " ot:, PubIJc . c~, ,~ signature('si on thei,nstrument the person($l, or ,I
MyccimmDlego CoUnty, i the entity upon benal! of which the person(~
_ _ _ _ :.... _ :..~~9..:..~ acted, executed the. instrument.
I
:J
Signature of NotaryPubhc 1
OPTIONAL
Though the information below is not'required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent remo.val and reattachment of this form to another docjiment.
Description of Attached Document I
Title or Type of Document: I
[
I Document Date: Number at Pages: 'I
[ I
[ Signer(s) Other Than Named Above:
[
Capacity(ies) Claimed by Signer
I,
Signer's Name: I
I .
r D Individual Top of thumb her..
D Corporate Officer - Tllle(s):
I D Partner - D Limited D General
I, D Attorney-In-Fact
D Trustee I
[ D Guardian or Conservator
D Other'
Signer Is Representing:
- ~
@1999NatlonaINotaryAssociation.9350De Soto A~e" P.O. BN 2402. ChaISWOI1h. CA 91313-2402' \\'ww.nationalnotary.org Prod. No. 5907 Reorder: Call TOil-Free 1-eoo-876-6827
. . 7225
.'
EXHIBIT A
BIOLOGICAL CONSERV ATIONEASEMENT
THAT CERTAIN AREA SHOWN AS OPEN SPACE EASEMENT ON
LOT 27 OF CITY OF POW A Y 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.
. . . 7226
EXHIBIT B '\
Lot27
Individual Lot Declapation
The Hentage Estates
\l!f;:.;------7---W----T~ .. J...... _ _ ____ ':" 6' ParkWay-
l' ~-Side::YarQ HCEA'
~ \ : ~etbac~' 50 Maintained
Access Easement I 27 .FfOI1'Ya
/--J_ ~="'" ." i:':'o" S.~back r Landscaoe
~'~, I Easement 'w HCEA
I .';O:f,' ,'! Maintained
I Acres:;, ..~: i\
1"745:,"",,1
'Easement Zone I Setback - I I,>"i iSldey\.rd
"< \ ~"'.""..I' I: y;;Sett>ack
\:...."-_- 0 __..-
, I U -_-'t-
--
\ --'~
--
_----10'\'
"- .-
--
--
Legend top>
PropertY Line ----- Skpe L;cation
~en Sp"" --- toe
aumen! Une Drainage Swak/ Culvert
Storm Drain "=---~ ' = =
Sewer Line -. - I- I
Water Line -..-- Building Envekp' North
Sewer Lite, Connection @ Common Area ~ ~
Water rine Connectjaf1 @ Mmnienance
Easement HCEA
Unliry Connedion: @ Mdintained
TekphoncJ,Ga.r, 0 tOO 200
Electric, 1V Cables Street Light .k
Fire Hydrant ~ Scak in feet
L;t Number --------------..
L;t~~ 27
------';,5.04
Finished Pad Am>
Elevation ~745
. .
. 7227
Conservation Easement Deed
Page 8
CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by the Conservation Easement by
MVA Development, LLC, dated October 22, 2004 to the City of Poway, Grantee, and to the
California 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 behalf 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'
Title Jeanne Bunch, ,Citv Clerk
Authorized Representative
Date: October 27, 2004