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HomeMy WebLinkAboutHMP 05-05; FOX MILLER PROPERTY; Habitat Management Permit (HMP)RECORDING REQUESTED BY: Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, California 92008 AND WHEN RECORDED MAIL TO: Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, California 92008 THIS SP ACE ABOVE LINE FOR RECORDER'S USE AMENDED AND RESTATED CONSERVATION EASEMENT DEED [CT 00-20 -Fox/Miller] This AMENDED AND RESTATED CONSERVATION EASEMENT ("Restated Conservation Easement") is made this __ day of ___ , 2009 by FENTON CARLSBAD RgSEARCH CENTER, LLC, a California limited liability company ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipal corporation ("Grantee"). This Restated Conservation Easement is an amendment and restatement of, and supersedes and replaces in its entirety for all purposes, that certain Conservation Easement Deed recorded August 7, 2008 as Document No. 2008-0423713 in the Official Records of San Diego County, California. RECITALS A. Grantor is the sole owner in fee simple of real property containing 20.29 acres, located in the City of Carlsbad, County of San Diego, State of 8alifornia, designated as Lot 5 of Tract No. 00-20 (the "Property"). The Property is legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated by this reference. B. Grantee has adopted a Habitat Management Plan, for the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of certain species thereof and has authorization to issue permits to impact various species and habitats by virtue oflncidental Take Permit No. TE022606-0 from U.S. Fish and Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-01- 05. C. Consistent with the terms and conditions of this Restated Conservation Easement, the Property is and will remain in a Natural Condition in perpetuity as defined herein and is intended to be perpetually conserved, managed, and preserved in its natural, scenic, open condition to maintain its ecological, biological, historical, visual and educational values -1- ( collectively, "Conservation Values") of great importance to the Grantee and the People of the State of California. D. The Property provides a high quality linkage to habitat corridors identified in the City of Carlsbad's Habitat Management Plan and provides habitat for the coastal California gnatcatcher (Polioptila californica californica) that was listed as a federally threatened species on March 30, 1993 (59 Federal Register 16742), Diegan coastal sage scrub, valley needlegrass, southern willow scrub wetland and thread-leaved Brodiaea, among other species. E. The Property, among other things, provides mitigation for certain impacts associated with development of the Fenton Carlsbad Research Center office/commercial park ("Project"), located in the City of Carlsbad, County of San Diego, State of California, by Grantor and pursuant to the requirements of: 1. The Final Mitigated Negative Declaration and associated Mitigation Monitoring and Reporting Program for the Project, adopted by the City of Carlsbad for the Project by City Council Resolution No. 2002-316 (October 22, 2002), as supplemented by Planning Commission Resolution No. 5935 (August 3, 2005), the Planning Commission Resolution No. 5240 (September 4, 2002), approving tentative subdivision map (CT 00-20), as amended by Planning Commission Resolutions No. 5773 (November 3,. 2004), No. 58.11 (January 19, 2005) and No. 5936 (August 3, 2005), and Planning Commission Resolution No. 5939 (August 3, 2005) approving Habitat Management Plan Permit (HMPP 05-05); 2. The United States Army Corps of Engineers' ("ACOE") Section 404 Nationwide Permit No. 200301550-SMJ dated December 5, 2005, and any amendments thereto ("Section 404 Permit"); 3. The California Regional Water Quality Control Board Section 401 Water Quality Certification File No. 04C-028 and any amendments thereto; and 4. The California Department of Fish and Game ("CDFG"), Section 1603 Streambed Alteration Agreement 1600-2004-0084-RS dated June 17, 2004 ("Streambed Alteration Agreement"). All of the foregoing shall hereafter be collectively referred to as the "Agency Permits." F. Grantee is authorized to hold COJ?-Servation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code Section 815.3(b) and otherwise authorized to acquire and hold title to real property. G. The ACOE is the federal agency charged with regulatory authority over discharges of dredged and fill material in waters of the United States pursuant to Section 404 of the Clean Water Act, and is a third party beneficiary of this Restated Conservation Easement. H. Grantor hereby informs Grantee and ACOE that Grantor intends to convey the Property to the Salk Owners Association ("Association"), a California non-profit public benefit corporation. Should Grantor transfer its interest in the Property prior to the time that Compensatory Mitigation obligations ( defined below) are fulfilled, the Association will assume -2- the roles and responsibilities of Grantor, including long-term maintenance, under this Restated Conservation Easement, except that Grantor as the developer of the Project will remain responsible for the Compensatory Mitigation obligations of the Section 404 Permit until they are successfully implemented and completed per the success criteria set forth in the Mitigation Plan, defined below. Pursuant to contract, day-to-day long term conservation management of the Property consistent with this Restated Conservation Easement and the "Final Long-term Management Plan for Fox-Miller Property Open Space Carlsbad, California" prepared by RECON Environmental, Inc. dated November 23, 2005 ("Management Plan") will be undertaken by a qualified conservation entity reasonably acceptable to Grantee and ACOE. I. Grantor and its successors and assigns intend to convey to Grantee the right, but not the obligation, to preserve, protect, sustain, enhance, and/or restore the Conservation Values, defined below, of the Property in perpetuity. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of the United States and California law, including Civil Code Section 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth. This Restated Conservation Easement shall run with the land and be binding on Grantor's heirs, successors, administrators, assigns, lessees, and other occupiers or users of the Property or any portion of it. 1. Purpose. (a) The purpose of this Restated Conservation Easement is to ensure that the Property will be managed and preserved in a Natural Condition, defined below, fn perpetuity and to prevent, subject to the rights retained by the Grantor hereunder, any other use of the Property that will materially impair or interfere with the Conservation Values of the Property (the "Purpose"). (b) The term "Natural Condition," as referenced in the preceding paragraph and other portions of this Restated Conservation Easement, -shall mean the condition of the Property, as it exists at the time this Restated Conservation Easement is executed, as well as future enhancements or changes to the Property that occur directly as a result of the following activities: (1) Compensatory mitigation measures, including implementation, maintenance, and monitoring activities ( collectively, "Compensatory Mitigation"), and/or terms and conditions required by the Agency Permits and as described in the "Final Habitat Restoration and Mitigation Plan for Diegan Coastal Sage Scrub, Valley Needlegrass with Thread-leaved Brodiaea, and Southern Willow-Scrub Wetland for the Fox Property Carlsbad, California" dated November 23, 2005, prepared by RECON ("Mitigation Plan"), the cover page and Table of Contents of which are attached as Exhibit "C," -3- (2) In-perpetuity long-term maintenance and management obligations ("Long-Term Maintenance and Management"), that occur on the Property as described in Section 6(i) herein, and/or (3) Activities described in Section 4 and Section 6 herein. (c) Grantor certifies to the best of its knowledge, that the only structures or improvements existing on the Property at the time this grant is executed consist of eleven storm drains, an underground sewer line, concrete walkway and picnic table, nine v-ditches, fence, retention basin and associated access road, and landscaped manufactured slopes. Grantor further certifies to the best of its knowledge, there are no previously granted easements existing on the Property that interfere or conflict with the Purpose of this Restated Conservation Easement as evidenced by the Title Report on file with Grantee and ACOE. The present Natural Condition is evidenced in part by the depiction of the Property attached on Exhibit "D," showing all relevant and plottable property lines, easements, dedications, improvements, boundaries and major, distinct natural features such as waters of the United States. Grantor has -delivered further evidence of the present Natural Condition to Grantee and ACOE consisting of (1) a color aerial photograph showing the post-disturbance condition of the Property; (2) an overlay of the Property boundaries on such aerial photograph; (3) on-site color photographs showing all man-made improvements or structures (if any) on the Property; (4) the certified Final Mitigated Negative Declaration; (5) the Mitigation Plan; (6) Final Map for Carlsbad Tract No. 00-20, according to Map thereof No. 15253, recorded on February 17, 2006 in the office of the recorder of San Diego County, California; and (7) the Management Plan. ( d). If a controversy arises with respect to the present Natural Condition of the Property, Grantor, Grantee, and ACOE as a third party beneficiary, or their designees or agents, shall not be foreclosed from utilizing any and all other relevant documents, surveys, photographs or other evidence or information to assist in the resolution of the controversy. (e) The term "Biological Monitor" shall mean an independent third-party consultant with knowledge of aquatic resources in the San Diego County area and expertise in the field of biology or a related field. 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the Purpose of this Restated Conservation Easement and not reserved as a right of Grantor is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantee, and their respective guests, agents, assigns, employees, representatives, successors, and third parties are expressly prohibited on the Property except as otherwise provided herein or unless specifically provided for in the City's Habitat Management Plan and its implementing documents, the Agency Permits and any amendments thereto, the Mitigation Plan, the Management Plan, and any easements and reservations of rights recorded in the chain of title to the Property (as set forth on the title report) at the time of this Restated Conservation Easement is recorded: (a) Unseasonable or supplemental watering except for habitat enhancement activities described in Section 4; -4- (b) Use of herbicides, pesticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except activities necessary to control or remove invasive or exotic species; (c) Use of off-road vehicles and use of any other motorized vehicles except in the execution of management duties on existing roads; ( d) Grazing or other agricultural activity of any kind; ( e) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing; (f) Residential, comniercial, retail, institutional, transportation or industrial uses; (g) Any legal or de facto division, subdivision or portioning of the Property; (h) Construction, reconstruction or placement of any building or other improvement, billboard, or sign except those signs permitted in Section 6 herein; (i) Depositing, dumping, or accumulating soil, trash, ashes; refuse, waste, bio- solids or any other material; G) Planting, introduction or dispersal of non-native or exotic plant or animal species; (k) Filling, dumping, excavating, draining, dredging, mmmg, drilling, removing or exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or below the surface of the Property; (1) Altering the general topography of the Property, including but not limited to building of roads, trails, and flood control work except as permitted by the Agency Permits or as allowed by Section 7(h) herein; (m) Removing, destroying, or cutting of native trees, shrubs or other native vegetation, except for: (1) emergency fire breaks as required by fire safety officials as set forth in Section 4(f) and Section 7(h); (2) maintenance of existing roads deemed appropriate for conservation purposes, (3) prevention or treatment of disease, (4) control of invasive species which threaten the integrity of the habitat, (5) activities to implement the Mitigation Plan, (6) activities to implement the Management Plan, or (7) activities described in Section 4 and Section 6; (n) Manipulating, impounding or altering any natural watercourse, body of water or water circulation on the Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters, except as provided in the Agency Permits; and -5- ( o) Creating, maintaining or enhancing fuel modification zones ( defined as a strip of mowed land or the planting of vegetation possessing low combustibility for purposes of fire suppression) except as allowed in Section 4(f). 3. Grantee's Rights. To accomplish the Purpose of this Restated Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee. These rights, without obligation, are also granted to the ACOE as a third party beneficiary of this Restated Conservation Easement with regard to the scope of its Section 404 Permit. (a) To preserve and protect, sustain, enhance and/or restore the Conservation Values of the Property; (b) To enter upon the· Property at reasonable times: (i) in order to monitor Grantor's compliance with, and to otherwise enforce, the terms of this Restated Conservation Easement, (ii) to conduct scientific research and for interpretive purposes (which entry may be made by Grantee or its designees), provided, however, that Grantee's exercise of such rights shall not unreasonably interfere with the Grantor's exercise of the rights retained by Grantor hereunder; (c) To prevent any activity on or use of the Property that is inconsistent with the Purpose of this Restated Conservation Easement and to require the restoration of such ai:eas or features of the Property that may be damaged by any act, failure to act, or any use that· is inconsistent with the Purpose of this Restated Conservation Easement; (d) All mineral, air, and water rights necessary to preserve, protect and to sustain the biological resources and Conservation Values of the Property, provided that any exercise or sale of such rights by Grantee shall not result in conflict with such Conservation Values; ( e) Except as expressly provided for future easements pursuant to Section 12(c), the right to all present and future development rights allocated, implied, reserved or inherent in the Property; such rights are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Property, nor any other property adjacent or otherwise; and (f) The right to enforce by any means, including, without limitation, injunctive relief, the terms and conditions of this Restated Conservation Easement. 4. Reserved Rights. Grantor reserves to itself, its successors and assigns, all rights accruing from its ownership of the Property, including the following rights, but only to the extent that such uses that are not prohibited or limited by, and are consistent with, the Purpose of this Restated Conservation Easement and the uses authorized by the Agency Permits for the Project: (a) The right to perform restoration and management activities which are necessary to maintain the Property as open space and preserve and protect the Conservation Values thereon in accordance with the terms of the Agency Permits or Mitigation Plan or Management Plan; (b) The right to plant and maintain native trees, shrubs and other native landscaping elements, including, without limitation, the installation and maintenance of -6- underground pipe systems, sprinklers, and appurtenances necessary to maintain the native landscaping placed thereon to the extent such landscaping elements are required pursuant to the Agency Permits issued for the Project, and are consistent with the Purpose of this Restated Conservation Easement; ( c) The right to maintain: (1) Fences on the Property to the extent such maintenance of fences is consistent with the Agency Permits or otherwise approved by Grantee and ACOE; (2) Any artificial slopes to be revegetated or other structures required or necessary for the construction of the Project, including the retention basin and storm drain improvements (including the concrete headwalls, v-ditches and rock rip-rap energy dissipators), as shown on Exhibit D, consistent with the Agency Permits or otherwise approved by Grantee andACOE; (3) Sewer line, maintenance access areas and concrete walkway/picnic table as shown on Exhibit D, consistent with the Agency Permits or otherwise approved by Grantee and ACOE. (d) Reasonable access through the Property to adjacent land to perform obligations or other activities permitted by this Restated Conservation Easement or that are required under the Agency Permits; (e) Notwithstanding anything set forth herein to the contrary, nothing in this Restated Conservation Easement is intended nor shall be applied to in any way limit Grantor or any of Grantor's successors and assigns from (1) constructing, placing, installing, and/or erecting any improvements upon the adjacent Project real property not constituting the Property, (2) installing and/or maintaining native landscaping (including irrigation and runoff), native landscape mitigation, and/or similar non-structural improvements within the Property consistent with the Agency Permits and Conservation Values, and/or (3) developing adjoining property for any purposes, except as limited by any local, state or federal permit requirements for such development and provided that for all of the above clauses (1), (2) and (3) neither such activity nor any effect resulting from such activity amounts to a use of the Property, or has an impact upon the Property that is prohibited by Section-2 above; and (f) The right, in an emergency _situation only, to maintain firebreaks (defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove brush, otherwise perform preventative measures required by the fire department to protect structures and other improvements from encroaching fire. All other brush management activities shall be limited to areas outside the Property. 5. Grantee's Duties. To accomplish the Purpose of this Restated Conservation Easement as described in Section 1, Grantee shall: (a) Not reduce the Conservation Values of the Property by performing any activity contrary to the Purpose of this Restated Conservation Easement; -7- (b) Perform compliance inspections of the Property to the extent it determines that staff and funding are available and make any and all reports available to the ACOE upon request; and ( c) In its sole discretion, determine, before conveyance of the Property to Association as contemplated herein, that as of the date of such conveyance, the Granter is in compliance with all of its obligations contained in Section 6 herein. 6. Grantor's Duties. To accomplish the Purpose of this Restated Conservation Easement as described in Section 1, Grantor shall undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the ACOE and CDFG confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended. This duty is non-transferable to Association. Granter, its successors and assigns shall: (a) Preserve and retain the Property in its Natural Condition and conserve, manage and preserve in perpetuity its Conservation Values; (b) Undertake all reasonable actions to prevent the unlawfu~ entry and tresp~ss by persons whose activities may degrade or harm the Conservation Values of the Property. In addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under Section 3 of this Restated Conservation Easement, including but not limited to Grantee's water rights; ( c) Cooperate with Grantee and ACOE in the protection of the Conservation Values; ( d) Install signs and other notification features saying "Natural Area Open Space," "Protected Natural Area," or similar descriptions that inform persons of the nature and restrictions on the Property; ( e) Repair and restore damage to the Restated Conservation Easement directly caused by Granter, Grantor's representatives, employees, agents, invitees and third parties including, but not limited to damage to Conservation Values from activities undertaken pursuant to Section 4(e); (f) In the event Granter, or its successors or assigns, establishes an endowment fund in the future, such endowment fund shall be established, to be held in trust, invested and the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Property as required under this Restated Conservation Easement. Grantee shall have the right to review and approve the terms of the endowment agreement, and shall be a third party beneficiary of that agreement with the right to review and approve any amendments; (g) Include the following principles of fiduciary duty in the endowment fund agreement: -8- (1) The endowment holder shall have a fiduciary duty to hold the endowment funds in trust for the Property. (2) The endowment holder shall not commingle the endowment funds with other funds. Funds may be pooled for investment management purposes only. (3) The endowment holder shall have a duty of loyalty and shall not use the endowment funds for its own personal benefit. (4) The endowment holder shall act as a prudent investor of the endowment funds. (5) The endowment holder shall not delegate the respon~ibility for managing the funds to a third party, but may delegate authority to invest the funds with Grantor's oversight. The endowment holder shall act with prudence when delegating authority and in the selection of agents. (6) The endowment holder shall have annual audit of the endowment performed by a licensed CPA, and shall submit the auditor's written report to Grantee and ACOE upon completion. (h) Obtain any applicable governmental permits and approvals for any activity or use permitted by this Restated Conservation Easement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements; and (i) Perform Long-Term Maintenance and Management of the Property. Such long-term maintenance and management shall consist of the following activities: (1) Annual removal of trash or inorganic debris; (2) Repair, remediation and restoration of damage to the Natural Condition and Conservation Values of the Property, including damage from man-made causes, non-natural parasites and non-native or exotic species; (3) (4) and Management Plan. Annual maintenance of signage set forth in this Section 6(d); and Management of the Property consistent with the Agency Permits Grantor, its successors and assigns shall prepare a summary of monitoring and maintenance documenting activities performed under items (1), (3) and (4) of this Section 6(i), and shall make reports available to Grantee and ACOE upon request or as required. When activities are performed pursuant to subsection (2) above, Grantor, its successors and assigns, shall retain a qualified Biological Monitor to prepare a detailed Restoration Plan and to oversee/monitor restoration activities. Granter shall have its Biological Monitor submit the draft Restoration Plan for review and approval by Grantee and ACOE. Upon completion of the Restoration Plan, as approved by Grantee and ACOE, Grantor shall have the Biological Monitor prepare detailed -9- monitoring reports, and Grantor shall make reports available to Grantee and ACOE upon completion. Said monitoring and maintenance report shall be signed by Grantor, its successor or assign, and the Biological Monitor, and the report shall document the Biological Monitor's name and affiliation, dates the Biological Monitor was present on-site, activities observed and their location, the Biological Monitor's observations regarding the adequacy of maintenance performance by Grantor or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. 7. Enforcement. (a) Third Party Beneficiary. ACOE, as a third party -beneficiary of this Restated Conservation Easement, shall have the same rights, remedies and limitations as Grantee under this Section 7. The third party beneficiary rights under this Section are in addition to, and do not limit rights conferred to ACOE under any other laws or regulations. Grantor, Grantee and ACOE, when implementing any remedies under this easement, shall provide timely written notice to each other of any actions taken under this section, including, but not limited to: copies of all notices of violation and related correspondence. (b) Notice of Violation. If Grantee and/or ACOE determine that Grantor is in violation of the terms of this Restated Conservation Easement or that a violation is threaten~d, Grantee and/or ACOE may demand the cure of such violation. In such a case, Grantee and/or ACOE shall issue a written notice to Grantor (hereinafter "notice of violation") informing the Grantor, of the actual or threatened violations and demanding cure of such violations. Grantee and ACOE shall make a good faith effort to notify each other prior to issuing a notice of violation. ( c) Time to Cure. Grantor shall cure the noticed violations within fifteen (15) days of receipt of said written notice from Grantee or third party beneficiary. If said cure reasonably requires more than fifteen (15) days, Grantor shall, within the fifteen (15) day period submit to Grantee and/or ACOE for review and approval a plan and time schedule to diligently complete a cure. Grantor shall complete such cure in accordance with the approved plan. If Grantor disputes the notice of violation, it shall issue a written notice of such dispute to Grantee and/or third party beneficiary within fifteen (15) days ofreceipt of written notice of violation. ( d) Failure to Cure. If Grantor fails to cure the noticed violations within the time period described in Section 7(c), above, or Section 7(e)(2), below, Grantee and/or ACOE may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Restated Conservation Easement. In such action, the Grantee and/or ACOE may: (1) Recover any damages to which Grantee and/or ACOE may be entitled for violation by Grantor, of the terms of this Restated Conservation Easement, subject to the limitations in Section 7(h) below. Grantee and/or ACOE shall first apply any damages recovered to the cost of undertaking any corrective action on the Property. -10- (2) Enjoin the violation, ex parte if necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. (3) Obtain 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 llljury. (e) Notice of Dispute. If Grantor provides Grantee and/or ACOE with a notice of dispute, as provided herein, Grantee and/or ACOE shall meet and confer with Grantor at a mutually agreeable place and time, not to exceed thirty (30) days from the date that Grantee and/or ACOE receive the notice of dispute. Grantee and/or ACOE shall consider all relevant information concerning the disputed violation provided by Grantor and shall determine whether a violation has in fact occurred and, if so, determine whether the notice of violation and demand for cure issued by Grantee and/or ACOE is appropriate in light of the violation. (1) Grantee and/or ACOE shall use the following principles in making a determination: (a) Management activities shall be chosen for their long-t{?rm benefits to the Property's Conservation Values rather than for short-term benefits; • (b) Management activities that benefit habitat protection shall be chosen in favor of management activities designed to benefit individual species, except where State or federally listed species are at issue; ( c) Habitat maintenance is of primary importance in protecting the long-term Conservation Values of the Property; (d) Management activities shall be chosen according to the following order of preference: (i) Preventative actions shall be taken to avoid additional impact; (ii) based on the magnitude of the impact, estimated time for recovery to occur; Natural restoration shall be used if appropriate, the impacts on listed or sensitive species, and the (iii) Active restoration shall be required only where there are potential severe, long-term impacts to the Property's Conservation Values, or where highly sensitive species are impacted. (2) If, after reviewing Grantor's notice of dispute, conferring with Grantor and considering all relevant information related to the violation, Grantee and/or ACOE determine that a violation has occurred, Grantee and/or ACOE shall give Grantor notice of such determination in writing. Grantor shall cure the noticed violations within fifteen (15) days of receipt of said written notice from Grantee. If said cure reasonably requires more than fifteen -11- (15) days, Grantor shall, within the fifteen (15) day period submit to Grantee and/or ACOE for review and approval a plan and time schedule to diligently complete a cure. Grantor shall complete such cure in accordance with the approved plan. (f) Conflicting Notices of Violation (1) If Grantor receives a notice of violation from Grantee and/or third party beneficiary that is in material conflict with one or more prior written notices of violation that have not yet been cured by Grantor such that the conflict makes it impossible for Grantor to carry out a cure consistent with all prior active notices of violation, Grantor shall give written notice to all agencies issuing conflicting notices of violation within fifteen (15) days of the receipt of each such conflicting notice of violation. A valid notice of conflict shall describe the conflict with specificity, including a description of how the conflict makes compliance with all active notices of violation impossible. The failure of Grantor to issue a valid notice of conflict within 15 days of receipt of a conflicting notice of violation shall result in a waiver of Grantor's ability to claim a conflict. (2) Upon issuing a valid notice of conflict to the appropriate entity, as described above, Grantor shall not be required to carry out the cure described in the conflicting notices of violation until such time as Grantee, third party beneficiary, or agency responsible _for said conflicting notices of violation issue a revised notice of violation making all active notices of violation consistent. Upon receipt of a revised, consistent notice of violation, Grantor shall carry out the cure recommended in such notice within the time periods described in Section 7(c), above. Notwithstanding Section 7(g), failure to cure within said time periods shall entitle Grantee and/or ACOE to the remedies described in this Section 7(d). (3) This Section 7(f) shall not apply to Section 7(g), below. (g) Immediate Action. If Grantee and/or ACOE determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Property, Grantee and/or ACOE may immediately pursue all available remedies, including injunctive relief, available pursuant to both this Restated Conservation Easement and state and federal law after giving Grantor at least twenty-four (24) hours' written notice before pursuing such remedies. So long as such twenty four (24) hours' notice,is given, Grantee and/or ACOE may immediately pursue all available remedies without waiting for the expiration of the time periods provided for cure or notice of dispute as described in Section 7(c) and Section 7(f), above. The written notice pursuant to this paragraph may be transmitted to Grantor by facsimile and shall be copied to all other parties listed in Section 12 of this Restated Conservation Easement. The rights of Grantee and/or ACOE under this paragraph apply equally to actual or threatened violations of the terms of this Restated Conservation Easement. Grantor agrees that the remedies at law for Grantee and/or ACOE for any violation of the terms of this Restated Conservation Easement are inadequate and that Grantee and/or ACOE shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee and/or ACOE may be entitled, including specific performance of the terms of this Restated Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. The remedies described in this section shall be -12- 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. (h) Acts Beyond Grantor's Control. Nothing contained in this Restated Conservation Easement shall be construed to entitle Grantee and/or ACOE to bring any action against Granter or make any claim on Grantor's insurance policy for any injury to or change in the Restated Conservation Easement Property resulting from: (1) Any cause beyond Grantor's control, including without limitation, fire not caused by Grantor, flood, storm, and earth movement; or (2) Any prudent action taken by Grantor, under emergency conditions to prevent, abate, or mitigate significant injury to persons and/or the Property resulting from such causes; (3) Acts by Grantee, ACOE, or their employees, directors, officers, agents, contractors, or representatives; or (4) Acts of third parties (including any governmental agencies) that are beyond Grantor's, its successors or assign's control, except to the extent Grantor is obl}g8:ted to repair and restore the Property pursuant to Section 6(e) above and so lon·g as Granter takes reasonable steps to prevent prohibited uses of the Property. Notwithstanding the foregoing, Grantor must obtain any applicable governmental permits and approvals for any activity or use permitted by this Restated Conservation Easement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements. (i) Enforcement Discretion. Enforcement of the terms of this Restated Conservation Easement shall be at the discretion of Grantee and/or ACOE. Any forbearance by Grantee and/or ACOE to exercise rights under this easement in the event of any breach of any term of this easement by Grantor shall not be deemed or construed to be a waiver by Grantee and/or ACOE of such term or of any subsequent breach of the same or any other term of this Restated Conservation Easement or of any of the rights of Grantee and/or ACOE under this Restated Conservation Easement. No delay or·-omission by Grantee and/or ACOE 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. G) Costs of Enforcement. Any costs incurred by Grantee and/or ACOE, as the prevailing party, in enforcing the terms of this· Restated Conservation Easement against Grantor including, but not limited to, costs of suit and any costs of restoration necessitated by Grantor's violation or negligence under the terms of this Restated Conservation Easement shall be borne by Grantor. 8. Insurance. Prior to the acceptance of this Restated Conservation Easement by Grantee, Grantor shall establish, and maintain in a form reasonably approved by Grantee an owner's general liability insurance policy, with a minimum coverage of Two Million Dollars ($2,000,000.00) per incident, which coverage shall be adjusted no more frequently than once -13- every five years (upward only) for inflation using the Consumer Price Index (CPI-All Urban Consumers, 1982-1984 = 100) for West Region published by the Bureau of Labor Statistics of the U.S. Department of Labor. The insurance shall be for legal liability arising out of bodily injury and tangible property damage on the Property. The policy shall include an endorsement naming Grantee as an additional insured, which policy shall provide primary coverage for Grantee in the event of any claims against the Grantor, its successors and assigns, and/or the management entity under this Restated Conservation Easement paid after judgment or settlement, covered by the policy. 9. Costs and Liabilities. Grantor and its successors and assigns retain all responsibilities and shall bear all costs and liabilities of any kind relating to the ownership, operation, upkeep, and maintenance of the Property, including transfer costs, costs of title and documentation review, and maintenance of adequate liability insurance coverage. Grantor agrees that neither Grantee nor ACOE shall have any duty or responsibility for the operation or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Restated Conservation Easement, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 10. Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them ( each a "Grantee Indemnified Party" and, collectively, "Grantee's Indemnified Parties") and ACOE and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them ( each a "Third Party Beneficiary Indemnified Party" and, collectively, "Third Party Beneficiary Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or judgments ( each a "Claim" and, collectively, "Claims"), arising from or in any way connected with events occurring during each owner's respective period of ownership of the Property: (a) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occur:r:_ing on or about "t&e Property, regardless of cause, except that (1) this indemnification shall be inapplicable to Grantee's Indemnified Parties with respect to any Claim due solely to the negligence of Grantee or any of its employees and (2) this indemnification shall be inapplicable to Third Party Beneficiary Indemnified Parties with respect to any Claim due solely to the negligence of third party beneficiaries or any of their employees; (b) the obligations specified in Sections 6, 9, and 17(a): or (c) the existence or administration of this Restated Conservation Easement. If any action or proceeding is brought against any of the Grantee Indemnified Parties and/or Third Party Beneficiary Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee or third party beneficiary or beneficiaries, defend such action or proceeding by counsel reasonably acceptable to Grantee and/or the applicable Third Party Beneficiary Indemnified Party or Parties or reimburse the Grantee for attorneys fees and/or applicable third party beneficiary or beneficiaries for all charges incurred for services of the Attorney General in defending the action or proceeding. -14- 11. Access. This Restated Conservation Easement does not convey a general right of access to the Property by the public. The Restated Conservation Easement will allow for access to the Property for Grantee and its designees, ACOE and third-party easement holders of record at the time of this Restated Conservation Easement is recorded at locations designated in easements and reservations of rights recorded in the chain of title to the Property. This Restated Conservation Easement will allow for the Property to be available for approved scientific investigations. 12. Assignment and Subsequent Transfers. ( a) By Grantee. This Restated Conservation Easement is transferable by Grantee, but Grantee may assign its rights and delegate obligations under this Restated Conservation Easement only to an entity or organization authorized to acquire and hold Restated Conservation Easements pursuant to Civil Code Section 815.3 and/or Government Code Section 65965 (or any successor or other provision(s) then applicable) and only with the prior written approval of the ACOE, which approval shall not be unreasonably withheld. Approval of any assignment or transfer may be withheld if it will result in a merger of the Restated Conservation Easement and the Property in a single property owner if no mechanism to preserve, protect and sustain the Property in perpetuity has been established. Grantee shall record the assignment in the county where the Property is located. The failure of the Grantee to perform any act required by this paragraph shall not impair the validity of the Restated Conservation Easement or its enforcement in any way. (b) By Grantor. (1) The covenants, conditions, and restrictions contained in this Restated Conservation Easement Deed are intended to run with the land and bind all future owners of any interest in the Property. Grantor agrees to incorporate by reference the terms of this Restated 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 agrees to give written notice to Grantee and ACOE of the intent to transfer any interest at least sixty (60) days prior to the date of such transfer. Grantee and ACOE shall have the right to prevent subsequent transfers in which the prospective subsequent claimants or transferees are not given notice of the covenants; terms, conditions and restrictions of the Restated Conservation Easement, or whenever a subsequent Property transfer will result in a merger of the Restated Conservation Easement and the Property in a single property owner if . no method or mechanism deemed adequate to preserve, protect, and sustain the Property in perpetuity is established. (2) If all or a portion of the Property is conveyed to the Association before completion of the obligations pertaining to restoration of the Property, Grantor shall remain responsible for fulfilling the obligations contained herein and in the Mitigation Plan pertaining to the Property until Grantee and ACOE have confirmed in writing that the success criteria pertaining to the Property have been satisfied. Upon conveyance of the Property to the Association, (i) Association shall be responsible for the obligations pertaining to restoration of the Property set forth in the Mitigation Plan in the event Grantor does not satisfactorily complete them, (ii) the Association shall assume all other duties and obligations of Grantor hereunder, and -15- (iii) Grantor shall be relieved of any and all ongoing obligations or liability hereunder except for the obligations set forth above in this paragraph and pursuant to Section 17(b). Prior to the transfer to Association, Grantor agrees to amend the language in the Declaration of Covenants, Conditions, Restrictions, Reservations and Easements ("CC&Rs") for the Project that requires the Association to accomplish the following: (i) assume the obligations under this Restated Conservation Easement upon conveyance· of the Property to the Association; (ii) establish a separate reserve fund to ensure the Association's full compliance with the terms of this Restated Conservation Easement and to cover all anticipated maintenance or repair costs as well as extraordinary repair or maintenance; (iii) reevaluate the appropriate amount of the separate reserve fund described in item (ii) above every two years and maintain a minimum balance of $5,000 in the separate reserve fund at all times, such fund to initially be funded by Grantor, and subject to an automatic increase of 2% (two percent) at each two-year interval; unless a smaller increase is approved by the Grantee and ACOE, at each two-year interval; and (iv) perform an internal review each year of the status of the land governed by this Restated Conservation Easement and, in particular, the Association's full compliance with the terms of this Restated Conservation Easement. Prior to recordation, the amended CC&Rs shall be· submitted to the Grantee and ACOE for approval. If the Grantee and/or ACOE do not approve or disapprove any such amended CC&Rs in writing (specifying any reasons for its disapproval in writing) within forty-five (45) days of submission to that entity, the amended CC&Rs shall be deemed approved. (3) Except as provided in Section 12(b)(3), from and after the date of any valid transfer of the Property by Grantor and each transfer thereafter, (i) the transferee shall be deemed to have assumed all of the obligations of Grantor, as set forth in this Restated Conservation Easement, (ii) the transferee shall be deemed to have accepted the restrictions contained herein; (iii) the transferor, as applicable, shall have no further obligations hereunder except for completing the Compensatory Mitigation, the Indemnification under Section 17(b), and those obligations pursuant to Section 17(g); and (iv) all references to Grantor in this Restated Conservation Easement shall thereafter refer to such transferee. ( 4) The failure of Grantor to perform any act provided in this section shall not impair the validity of this Restated Conservation Easement or limit its enforceability in anyway. (c) Additional Interests. Other than the CC&Rs for the Project, and other instruments permitted thereunder, Grantor, its· successors and assigns shall not grant additional easements relating to the Property, or other interests in the surface or subsurface of the Property ( other than a security interest that is subordinate to this Restated Conservation Easement), or grant or otp.erwise abandon or relinquish any water rights as provided for in Section 3(d) relating to the Property, without the prior written authorization of Grantee and ACOE which consent shall not be unreasonably withheld. It shall be reasonable for Grantee and ACOE to withhold consent for the grant of additional easements or other interests in the Property that are in material direct or potential conflict with the Agency Permits and the preservation of the Natural Condition of the Property as defined in Section l(b) of this Restated Conservation Easement, or will impair or interfere with the Conservation Values of the Property. Grantor, its successors and assigns shall promptly record any additional easements or other interests in the Property in the official records of San Diego County, California and immediately notify the Grantee and ACOE through the mailing of a conformed copy of the recorded document. -16- 13. 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 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: To Grantee: With a copy to: Fenton Carlsbad Research Center, LLC c/o H.G. Fenton Company 7577 Mission Valley Road Suite 200 San Diego, CA 92108 FAX: 619-400-0111 City of Carlsbad Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, California 92008 FAX: 7 60-720-6917 District Counsel U.S. Army Corps of Engineers Los Angeles District 915 Wilshire Boulevard, Room 1535 Los Angeles, CA 90017-3401 FAX:213-452-4217 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 such a facsimile, the original documents that bear the original signatures. 14. Amendment. Grantor and Grantee may amend this Restated Conservation Easement only by mutual written agreement and with the written consent of ACOE. Any such amendment shall be consistent with the Purpose of this Restated Conservation Easement and shall not affect its perpetual duration. Any such amendment shall be recorded by Grantor in the official records of San Diego County, State of California. Grantor, its successors or assigns, shall promptly notify the Grantee and ACOE through the mailing of a conformed copy of the recorded amendment( s ). 15. Recordation. Grantee shall promptly record this instrument in the official records of San Diego County, California and promptly notify the Grantor and ACOE through the mailing of a conformed copy of the recorded easement. 16. Estoppel Certificates. Upon request, Grantee shall within fifteen (15) days execute and deliver to Grantor, its successors or assigns any document, including an estoppel certificate, which certifies, to Grantee's best knowledge, Grantor's, its successors or assign's compliance with any obligation of Grantor, its successor or assign contained in this Restated -17- • Conservation Easement and otherwise evidences the status of this Restated Conservation Easement, to the extent known by Grantee, as may be requested by Grantor, its successor or assigns. 17. General Provisions. (a) Taxes; No Liens. Grantor or subsequent transferees shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority, including any taxes imposed upon, or incurred as a result of, this Restated Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep Grantee's interest in the Property free from any liens. (b) Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials ( defined below) in, on, under, about or affecting the Property. Without limiting the obligations of Grantor under Section 10, Grantor agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties and the Third Party Beneficiary Indemnified Parties ( defined in Section 10) against any and all Claims ( defined in Section 10) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time prior to _the date of transfer to a new owner, except that (i) this indemnification shall be inapplicable to the Grantee Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents and (ii) this indemnification shall be inapplicable to the Third Party Beneficiary Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by third party beneficiaries, their employees or agents. If any action or proceeding is brought against the Grantee and/or any of the Third Party Beneficiary Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee and/or the applicable third party beneficiary or beneficiaries, defend such action or proceeding by counsel reasonably acceptable to the Grantee and/or applicable Third Party Beneficiary Indemnified Party or Parties or reimburse the Grantee for attorneys fees and/or applicable third party beneficiary or beneficiaries for all charges incurred in defending the action or proceeding. Despite any contrary provision of this Restated Conservation Easement, the parties do not intend this Restated Conservation Easement to be, and this Restated Conservation Easement shall not be, construed such that it creates in or gives to Grantee or ACOE any of the following: (1) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws ( defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or -18- (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. 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 Hazardous Materials Transportation Act ( 49 U.S.C. Section 6901 et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Restated Conservation Easement. The term "Environmental Laws" includes, without limitation, any 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. Grantor represents, warrants, and covenants to Grantee and ACOE that Grant9r' s activities upon and use of the Property will comply with all Environmental Laws. (c) Warranty. Grantor represents and warrants that (1) there are no outstanding monetary liens or conservation easements senior in priority to this Restated Conservation Eas~ment, and (2) the Property is not subject to any other encumbrances other than those of record. Upon the recording of this Restated Conservation Easement, Grantor will obtain title insurance policies on the Property in an amount equal to the fair market value of the Property for each of Grantee and Association. (d) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. ( e) Extinguishment. If circumstances arise in the future that render the Purpose of this Restated Conservation Easement impossible to accomplish, this Restated Conservation Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction. (f) Condemnation. The Purpose of this Restated Conservation Easement is presumed to be the best and most necessary public use as defined in Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700. Nevertheless, if the Property is taken, in whole or in part, by exercise of the power of eminent domain, Grantor and Grantee shall be entitled to compensation in accordance with applicable law. (g) Termination of Rights and Obligations. Except as otherwise expressly set forth in this Restated Conservation Easement, a party's rights and obligations under this Restated Conservation Easement shall terminate upon transfer of the party's interest in the Restated Conservation Easement or Property (respectively), except that liability for acts or omissions occurring prior to transfer shall survive transfer. -19- (h) Successors and Assigns. The covenants, terms, conditions, and restrictions of this Restated Conservation Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. The covenants hereunder benefiting Grantee shall also benefit ACOE. (i) Controlling Law. The laws of the United . States and the State of California, disregarding any conflicts of law principles of such state, shall govern the interpretation and performance of this Restated Conservation Easement. Any subsequent amendment or repeal of state law or order that authorizes this Restated Conservation Easement shall not affect the rights conveyed to the Grantee or its successors or assigns: G) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Restated Conservation Easement, such action shall not affect the remainder of this Restated Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Restated Conservation Easement to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. (k) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Restated Conservation Easement shall be liberally construed in favor of the grant to effect the purposes of this Restated Conservation Easement and the policy and purpose of California Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Restated Conservation Easement that would render. the provision valid shall be favored over any interpretation that would render it invalid. (1) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. (m) Exhibits. All Exhibits referred to in this Restated Conservation Easement are attached and incorporated herein by reference. (n) Entire Agreement. This instrument sets forth the entire. agreement of the parties with respect to the Restated Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Restated 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 14. ( o) 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 recorded counterpart shall be controlling. (p) Miscellaneous. In the event of any conflict between the terms of this Restated Conservation Easement and the terms of the CC&Rs and any amendments thereto -20- recorded prior to date this Restated Conservation Easement is executed, the terms of this Restated Conservation Easement shall control. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -21- 8171 EXHIBIT 'A' / LEGAL DESCRIPTION February 5, 2008 JOB NO. : 041093 PROPERTY BENEFITED BY COVENANT FOR EASEMENT LOT 5 OF CARLSBAD TRACT NO. 00-20, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 15253, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 30, 2006. CONTAINING 896,903 SF 20.29 ACRES MORE OR LESS lofl G:\Accts\041093\ExhihitCONSER VA T!ON-COV .DOC EXHIBIT C - 8174 1927 Fifth Avenue 8175 FINAL HABITAT RESTORATION AND MITIGATION PLAN FOR DIEGAN COASTAL SAGE SCRUB, VALLEY NEEDLEGRASS, WITH THREAD-LEAVED BRODIAEA, AND SOUTHERN WILLOW SCRUB WETLAND FOR THE FOX PROPERTY CARLSBAD, CALIFORNIA Prepared for H.G. FENTON COMPANY CONTACT:ALLENJONES 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108--4401 Prepared by ROBERT MacALLER SENIOR BIOLOGIST RECON NUMBER 3028B-2 NOVEMBER 23, 2005 San Diego, CA 92101-2358 619 / 308-9333 fax 308-9334 0 This document printed on recycled paper TABLE OF CONTENTS Introduction Topography and Soils Impacts and Mitigation Acreages A. Diegan Coastal Sage Scrub B. Valley Needlegrass Grassland C. Thread-Leaved Brodiaea D. Jurisdictional Wetlands E. Non-Wetland Jurisdictional Waters F. Southern Willow Scrub Responsibilities A. Owner/Project Proponent B. Habitat Restoration Specialist C. Grading Contractor D. Plant Supplier E. Seed Supplier Revegetation A. Coastal Sage Scrub B. Valley Needle Grassland and Thread-Leaved Brodiaea Habitat Creation and Enhancement C. Wetland Creation and Restoration D. Site Protection Maintenance and Monitoring A. Implementation Monitoring B. General Maintenance Procedures 8176 1 7 7 7 8 8 8 9 9 9 10 10 11 11 11 12 12 15 19 24 25 27 27 TABLE OF CONTENTS (cont.) C. Qualitative Monitoring D. Quantitative Monitoring E. Monitoring Reports F. Performance Standards G. Notification of Completion H. Estimated Habitat Mitigation Costs References Cited FIGURES 1: Regional Location 2: Project Location on USGS Map 3: Existing Biological Resources and Project Impacts 4: Proposed Mitigation 5: Wetland Creation Area 6: Permanent Fencing Plan TABLES 8177 28 30 31 31 33 34 35 2 3 4 6 20 26 I: Project Impacts and Proposed Mitigation 5 2: Recommended Seed Composition and Application Rates for Diegan Coastal Sage Scrub 13 3: Target Coastal Sage Scrub Species to be Salvaged 14 4: Coastal Sage Scrub Planting Densities 16 5: Thread-Leaved Brodiaea/Valley Needlegrss Salvage and_ Container Planting Densities 18 6: Riparian Scrub Planting Densities 23 7: Seeding Location and Application Rates 23 8: Maintenance and Monitoring Schedule 27 9: Anticipated Exotic Species 29 10: Five-Year Performance Standards, as a Relative Percentage of Reference Area Values for Coastal Sage Scrub Revegetation 32 11: Five-Year Performance Standards, as a Relative Percentage of Reference Area Values for Riparian Revegetation 32 12: Five-Year Performance Standards, as a Relative Percentage of Reference Area Values for Native Grassland 32 13: Habitat Restoration Cost Estimate 34