HomeMy WebLinkAbout; Continuing Life Communities LLC; 2013-0091074; Irrevocable Offer of Dedication IOD1%
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DOCtt 2013-009 074
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RECORDING REQUESTED BY:
Carlsbad City Clerk's Office
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
FEB 11, 2013 9:20 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 0.00
OC: NA
PAGES: 27
RE-RECORDED
SPACE ABOVE THIS LINE FOR RECORDER'S USE
City of Carisbad
CORRECTION TO RECORDED
IRREVOCABLE OFFER TO GRANT
CONSERVATION EASEMENT
RECORDED ON Januaiy 3, 2013
AS DOCUMENT NO. 2013-0003378
Document No. 2013-0003378 does not Include a certificate of
acceptance from the City of Carisbad
The corrected document does include a certificate of acceptance
from the City of Carisbad
7'
RECORDING REQUESTED BY
Chicago Title Company
AND WHEN RECORDED MAIL TO:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
DOCtt 2013-0003378
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WITH CONFORMED COPY TO:
Continuing Life Communities, LLC
1940 Levante Street
Carlsbad, CA 92009
and
Center for Natural Lands Management
27258 Via Industria, Suite B
Temecula, CA 92590
^S^^^3 3S2 6/1/
JAN 03, 2013 8:00 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernesl J. Dronenburg, Jr., COUNT RECORDER
907
0
FEES:
OC:
0.00
NA
PAGES:
Space Above Line for Recorder's Use Only
IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT
La Costa Glen Upland Preserve - Conserved 4.01 Acre Habitat
DOCUMENTARY TRANSFER TAX $
CONTINUING LIFE COMMUNITIES, LLC, a California limited liability company
(199716210004) (hereinafter designated "Grantor") represents that it is the owner of the
hereinafter described real property and hereby makes an IRREVOCABLE OFFER TO
GRANT CONSERVATION EASEMENT to the City of Carlsbad, a municipal corporation
of the State of California (hereinafter designated "Grantee"), for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, over this
real property for the following purpose: to be held in perpetuity to ensure that the real
property will be retained and managed forever in its natural, restored, or enhanced
condition and to prevent any use ofthe property that will impair or interfere with its
conservation values.
The real property referred to above is situated in the City of Carlsbad, County of
San Diego, State of California, consisting of approximately 4.01 acres (APN 255-012-
22-00) as more particularly described in Exhibits A and B to that certain Conservation
Easement Deed attached hereto as Attachment 1 and made a part hereof (hereinafter
the "Conserved 4.01 Acre Habitat")
IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT
Page 1 of 2
26
This IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT shall
be binding on the Grantor, its successor and assigns in accordance with the rights,
duties, and obligations set forth herein.
908
GRANTOR: CONTINUING LIFE COMMUNITIES, LLC
By:
Date
STATE OF CALIFORNIA
County of.
On ,2012, before me.
Han d/ lA^lfYVIi^SOY\ . a notary public in and for said State, personally
appeared E.^^USsfin Wl'l3Q/\ lU . who
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/sh^executed the same in his/hef
authorized capacity and that by his/her signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Jr»tar\/ Pl ihlin yJ Notary Public
(Seal)
ANN MARIE IN6MANS0N
Commission # 1820832
Notary Public • California
y^j^g^ San Ditgo County g »Comm. EKpira s Nov 27,20121
1
IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT
Page 2 of 2
CERTIFICATION FOR ACCEPTANCE OF CONSERVATION EASEMENT
This is to certify that the interest in real property conveyed by the
IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT dated April
20, 2012, from Continuing Life Communities, LLC to the City of Carlsbad,
California, a municipal corporation, is hereby accepted by the City Council ofthe
City of Carlsbad, California, pursuant to Ordinance No. NS-422, adopted on
September 16,1997, and the grantee consents to the recordation thereof by its
duly authorized officer.
DATED: February 4, 2013
(SEAL)
FREISINGE ior Deputy Clerk
3k^!3h
Attachment 1
909
RECORDING REQUESTED BY
Chicago Title Company
AND WHEN RECORDED MAIL TO:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
WITH CONFORMED COPY TO:
Center for Natural Lands Management
27258 Via Industria, Suite B
Temecula, CA 92590
and
Continuing Life Communities, LLC
1940 Levante Street
Carlsbad, CA 92009
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
La Costa Glen 4 Acre Propertv
THIS CONSERVATION EASEMENT DEED ("Conservation Easement") is made
as ofthe day of , 20 , by Continuing Life Communities, LLC, a
California limited liability company (199716210004) ("Grantor" or "Continuing Life
Communities"), in favor of City of Carlsbad, a municipal corporation of the State of
California ("Grantee"), with reference to the following facts:
RECITALS
A. Grantor is the sole owner in fee simple of certain real property containing
approximately 4.01 acres, located in the City of Carlsbad ("City"), County of San Diego
("County"), State of California ("State"), and designated as Assessor's Parcel Number
("APN") 255-012-22-00 ("La Costa Glen Four Acre Upland Preserve" or "Preserve").
The Preserve is legally described in Exhibit A and depicted in Exhibit B attached to this
Conservation Easement and incorporated in it by this reference. The Preserve is
located with in the coastal zone as that term is defined at California Public Resources
Code Section 30103.
B. The Preserve possesses wildlife and habitat values of great importance to
Grantor, Grantee, the people of the State of California and the people of the United
States. The Preserve will provide high quality natural, restored, and enhanced habitat
for federally-listed coastal Califomia gnatcatcher (Polioptila californica californica) and
CONSERVATION EASEMENT
Page 1 of 22
910
other listed sensitive species, collectively, these wildlife and habitat values comprise the
"Conservation Values" of the Preserve.
C. The California Department of Fish and Game ("CDFG") has jurisdiction
over the conservation, protection, and management of fish, wildlife, native plants and
the habitat necessary for biologically sustainable populations of these species pursuant
to California Fish and Game Code Section 1802. CDFG is authorized to hold
easements for these purposes pursuant to California Civil Code Section 815.3, Fish and
Game Code Section 1348, and other provisions of California law.
D. The United States Fish and Wildlife Sen/ice (the "USFWS"), an agency
within the United States Department of the Interior, has jurisdiction over the
conservation, protection, restoration and management offish, wildlife, native plants, and
the habitat necessary for biologically sustainable populations of these species within the
United State pursuant to the federal Endangered Species Act, 16 U.S.C. Section 1531,
ef seq., the Fish and Wildlife Coordination Act, 16 U.S.C. Sections 661-666c, the Fish
and Wildlife Act of 1956, 16 U.S.C. Section 742(f), et seq., and other provisions of
federal law.
E. The California Coastal Commission ("Commission") has jurisdiction under
the California Coastal Act of 1976 to regulate the use of land and water in the coastal
zone.
F. Grantor and Grantee acknowledge that CDFG, USFWS and CCC are
each a Third-Party Beneficiary ("Third-Party Beneficiary") ofthis Conservation
Easement with the right of access to the Preserve and the right to enforce all of the
obligations of Grantor including, but not limited to. Grantor's obligations under Section 7,
and all other rights and remedies ofthe Grantee under this Conservation Easement
G. The Center for Natural Lands Management ("Center") is a tax-exempt
nonprofit organization qualified under section 501(c) (3) ofthe Internal Revenue Code of
1986, as amended, and qualified to do business in California, which has as its primary
and principal purpose and activity the protection and preservation of natural lands or
resources in its natural, scenic, agricultural, forested, or open space condition or use.
H. Grantee is authorized to hold this conservation easement pursuant to
California Civil Code Section 815.3.
I. The Preserve is being conserved in accordance with the City's November
2004 final Habitat Management Plan ("HMP") to protect "listed species" under the
federal Endangered Species Act ("ESA") and sensitive plant and wildlife species that
are covered under the 2003 County's North County Multiple Habitat Conservation
Program ("MHCP") in concurrence with USFWS and CDFG.
J. The City has zoned the Preserve as open space.
CONSERVATION EASEMENT
Page 2 of 22
911
K. Commission issued Grantor Coastal Development Permit No. 6-96-18
("Permit") on May 7, 1996 conditioned, in part, upon Grantor recording an open space
deed restriction over certain property including the Preserve ("Open Space Deed
Restriction"). The Open Space Deed Restriction was recorded February 27, 1998 in the
County of San Diego as document number 1998-0105198.
L. Management and monitoring of the Preserve shall be conducted pursuant
to the "(Final Draft) Open Space Land Management Plan for the La Costa Glen
Uplands" ("Management Plan") dated July 18, 2008. The Management Plan is intended
to function as an adaptive habitat management plan, one which may be revised from
time revised from time to time with City approvai and which is incorporated herein by
reference.
M. Grantor hereby informs Grantee that Grantor intends to convey the fee
title to the Preserve to Center immediately following the recording ofthis Conservation
Easement and that Center will assume Grantor's duties hereunder. Continuing Life
Communities and its successors in interest will retain certain future fuel modification
obligations, if any.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and pursuant to the laws of the United States and the State of
California, including California Civil Code Section 815, etseq., Grantor hereby
voluntarily grants and conveys to Grantee a conservation easement ("Conservation
Easement") in perpetuity over the Preserve.
1. Purposes.
(a) The purposes ofthis Conservation Easement ("Purposes") are to
ensure that the Preserve will be retained and managed forever in its natural, restored,
or enhanced condition and to prevent any use ofthe Preserve that will impair or
interfere with the Conservation Values of the Preserve. Grantor intends that this
Conservation Easement will confine the use of the Preserve to activities that are
consistent with such Purposes, including, without limitation, those involving the
preservation, restoration and enhancement of native species and their habitats
implemented in accordance with the Management Plan.
(b) Grantor certifies to Grantee, and Grantee concurs, that the Open
Space Deed Restriction does not conflict with this Conservation Easement.
(c) The natural condition of the Preserve existing at the time this
Conservation Easement is executed is evidenced in part by the depiction of the
Preserve, generally showing all relevant and plottable property lines, easements,
CONSERVATION EASEMENT
Page 3 of 22
912
dedications, improvements, boundaries and major, distinct natural features. Grantor has
delivered further evidence ofthe present natural condition to Grantee and City
consisting of (1) a color aerial photograph(s) ofthe Preserve at an appropriate scale
taken as close in time as possible to the date this Conservation Easement is executed;
(2) an overiay of the boundaries of the Preserve on such aerial photograph(s); and (3)
on-site color photographs showing the major, distinct natural features of the Preserve.
2. Prohibited Uses.
Any activity on or use of the Preserve that is inconsistent with the
purposes ofthis Conservation Easement is prohibited. Without limiting the generality of
the foregoing, the following uses and activities are expressly prohibited:
(a) Supplemental or unseasonable watering except for habitat
maintenance, restoration, and enhancement activities;
(b) Use of fertilizers, pesticides, or other agricultural chemicals; weed
abatement activities; incompatible fire protection activities; and any and all other
activities and uses which may impair or interfere with the purposes of this Conservation
Easement, except for as specifically provided in the Management Plan and/or required
to maintain the native resources on the site;
(c) Agricultural activity of any kind, except grazing for vegetation
management by Grantee as specifically provided in the Management Plan;
(d) Recreational activities, including, but not limited to, hiking,
horseback riding, biking, or hunting or fishing except as specifically provided for in the
Management Plan;
(e) Commercial, industrial, residential, or institutional uses;
(f) Any legal or de facto division, subdivision or partitioning of the
Preserve;
(g) Construction, reconstruction, erecting or placement of any building,
billboard or sign, or any other structure or improvement of any kind except as
specifically provided in the Management Plan;
(h) Depositing or accumulation of soil, trash, ashes, refuse, waste, bio-
solids or any other materials;
(i) Planting, introduction or dispersal of non-native or exotic plant or
animal species;
(j) Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extracting minerals, loam, soil, sand, gravel, rock or other
CONSERVATION EASEMENT
Page 4 of 22
913
material on or below the surface of the Preserve, or granting or authorizing surface
entry for any of these purposes;
(k) Altering the surface or general topography of the Preserve,
including but not limited to any alterations to habitat, building roads or trails, paving or
otherwise covering the Preserve with concrete, asphalt or any other impervious material
except for those habitat management activities specified in the Management Plan;
(I) Removing, destroying, or cutting of trees, shrubs or other
vegetation, except as required by law or as provided in the Management Plan for (1) fire
breaks or (2) prevention or treatment of disease;
(m) Manipulating, impounding or altering any natural water course,
body of water or water circulation on the Preserve, and any activities or uses
detrimental to water quality, including but not limited to degradation or pollution of any
surface or sub-surface waters except as specifically provided in the Management Plan;
(n) Without the prior written consent of Grantee, which Grantee may
withhold, transferring, encumbering, selling, leasing, or otherwise separating the
mineral, air or water rights for the Preserve;
(o) Engaging in any use or activity that may violate, or may fail to
comply with, relevant federal, state, or local laws, regulations, or policies applicable to
Grantor, the Preserve, or the use or activity in question; and
(p) Any activity or use prohibited by the Open Space Deed Restriction.
3. Access.
This Conservation Easement does not convey a general right of access to
the public. The Conservation Easement will allow for access to the Preserve for
Grantee and its designees and third-party easement holders of record at the time this
Conservation Easement is recorded at locations designated in easements and
reservations of rights in the chain of title to the Preserve. This Conservation Easement
will allow for the Preserve to be available for approved scientific investigations.
4. Grantee's Rights.
To accomplish the purposes of this Conservation Easement, Grantor
hereby grants and conveys the following rights to Grantee and the Third-Party
Beneficiaries.
(a) To preserve and protect the Conservation Values of the Preserve.
(b) To enter the Preserve at reasonable times (which entry may be
made by Grantee or its designees) in order to (1) monitor the condition of the Preserve
CONSERVATION EASEMENT
Page 5 of 22
914
and to enforce the terms of this Conservation Easement, and (2) conduct scientific
research and for interpretive purposes provided, however, that Grantee shall not
unreasonably interfere with Grantor's exercise of the rights retained by Grantor
hereunder.
(c) To prevent any activity on or use of the Preserve that is
inconsistent with the Purposes of this Conservation Easement and to require the
restoration of such areas or features of the Preserve that may be damaged by any act,
failure to act, or any use or activity that is inconsistent with the purposes of this
Conservation Easement.
(d) All mineral, air and water rights necessary to protect and sustain
the biological resources of the Preserve, provided that any exercise or sale of such
rights by Grantee shall not result in conflict with such Conservation Values.
(e) All present and future development rights are hereby terminated
and extinguished, and may not be used on or transferred to any portion ofthe Preserve,
nor any other property adjacent or otherwise, except as to future easements not
inconsistent with the purposes of this Conservation Easement, appurtenant to,
allocated, implied, reserved or inherent in the Preserve.
(f) The right to enforce by any means, including, without limitation,
injunctive relief, the terms and conditions of this Conservation Easement.
5. Grantee's Duties.
To accomplish the Purposes of this Conservation Easement as described
In Section 1, Grantee shall:
(a) Not reduce the Conservation Values of the Preserve by performing
any activity contrary to the Purposes of this Conservation Easement; and
(b) Perform routine compliance inspections of the Preserve to the
extent it determines that staff and funding are available.
5.1. Grantee has no responsibilities or obligations relating to creation,
restoration, or enhancement within the Preserve required by any mitigation requirement.
6. Reserved Rights.
Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from Grantor's ownership ofthe Preserve,
including the following:
CONSERVATION EASEMENT
Page 6 of 22
(a) The right to engage in or permit or invite others to engage in all
uses of the Preserve that are not prohibited or limited by, and are consistent with the
Purpose ofthis Conservation Easement;
(b) The right to grant easements for a public purpose and necessary
for the public health, safety, and welfare, so long as such easements are consistent with
the Purpose ofthis Conservation Easement;
(c) The right to perform restoration and management activities which
are necessary to maintain the Preserve and protect its Conservation Values;
(d) The right to plant and maintain native trees, shrubs, and other
native landscaping elements so long as consistent with the Purpose ofthis
Conservation Easement; and
(e) The right to install and maintain fences which are necessary to
maintain the Preserve and protect its Conservation Values.
7. Grantor's Duties.
To ensure that the Purposes ofthis Conservation Easement as described
in Section 1 are being accomplished. Grantor or its successors and assigns shall:
(a) Preserve and retain the Preserve for its Conservation Values;
(b) Undertake all reasonable actions to prevent the unlawful entry and
trespass by persons whose activities may degrade or harm the Conservation Values of
the Preserve or that are othenA/ise inconsistent with this Conservation Easement;
(c) Undertake all necessary actions to perfect and defend Grantee's
rights under Section 4 ofthis Conservation Easement, and to observe and carry out the
obligations of Grantor under the Management Plan;
(d) Repair and restore damage to the Preserve directly or indirectly
caused by Grantor, Grantor's guests, representatives, employees or agents, and third
parties within Grantor's reasonable control;
(e) Establish an endowment to be held in trust solely for the purposes
of preserving the Conservation Values ofthe Preserve under this Conservation
Easement in perpetuity ("Endowment"); and include the following principles of fiduciary
duty in the endowment fund agreement:
(1) The endowment holder shall have a fiduciary duty to hold the
endowment funds in trust for the Preserve.
915
CONSERVATION EASEMENT
Page 7 of 22
(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 responsibility
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 an annual audit of the
endowment performed by a licensed CPA, and shall submit the auditor's written report
to the Grantee upon completion.
(f) Obtain any applicable governmental permits and approvals for any
activity or use permitted by this Conservation Easement conducted by Grantor, and any
such activity or use shall be undertaken in accordance with all applicable federal, state,
local and administrative agency statutes, ordinances, rules, regulations, orders, or other
requirements;
(g) Grantor reserves the right for creation, restoration and
enhancement activities within the areas identified in and pursuant to the July 18, 2008
"(Final Draft) Open Space Land Management Plan for the La Costa Glen Uplands," a
copy of which has been provided to Grantee;
(h) During the conduct of required mitigation restoration activities,
remove plant species listed as problematic, pest, and/or invasive by the California
Native Plants Society (CNPS), California Exotic Pest Plant Council, California Invasive
Plants Council, or State; and
(i) Fuel modification is the sole responsibility of Continuing Life
Communities and its successors in interest. Should fuel modification within the
Preserve become necessary. Continuing Life Communities shall maintain all fuel
modification areas. Continuing Life Communities or its successor and assigns shall
promptly undertake to implement such obligations, including obtaining necessary
permits from the City and any other governmental agencies with jurisdiction over the
proposed activities, scheduling and performing the work, and paying for the work. If
such additional modifications are ordered and/or permitted, Continuing Life
Communities shall cooperate with Center in scheduling and carrying out its work so as
not to impair the Conservation Values or unreasonably interfere with Center's
management of the Preserve.
CONSERVATION EASEMENT
Page 8 of 22
916
917
8. Enforcement
(a) Notice of Violation. If Grantee determines that Grantor is in
violation of the terms of this Conservation Easement or that a violation is threatened.
Grantee may demand the cure of such violation. In such a case, Grantee shall issue a
written notice to Grantor (hereinafter "notice of violation") informing the Grantor ofthe
actual or threatened violations and demanding cure of such violations.
(b) Time to Cure. Grantor shall cure the noticed violation within fifteen
(15) days of receipt of said written notice from Grantee. If said cure reasonably requires
more than fifteen (15) days. Grantor shall begin cure within the fifteen (15) day period
and work diligently to complete such cure. If Grantor disputes the notice of violation, it
shall issue a written notice of such dispute (hereinafter "notice of dispute") to the
appropriate agency within fifteen (15) days of receipt of written notice of violation. If
Grantor fails to cure the violation within thirty (30) days after receipt of a Notice of
Violation, or ifthe cure reasonably requires more than thirty (30) days to complete and
Grantor fails to begin the cure within the thirty (30)-day period or fails to continue
diligently to complete the cure, Grantee may bring an action at law or in equity in a court
of competent jurisdiction for any or all of the following: to recover any damages to
which Grantee may be entitled for violation of the terms of this Conservation Easement
or for any injury to the Conservation Values ofthe Preserve; 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 othenA/ise available legal remedies;
to pursue any other legal or equitable relief, including but not limited to, the restoration
of the Preserve to the condition in which it existed prior to any violation or injury; or to
OthenA/ise enforce this Conservation Easement. Without limiting the liability of Grantor,
Grantee may apply any damages recovered to the cost of undertaking any corrective
action on the Preserve.
(c) Failure to Cure. If Grantor fails to cure the noticed violation(s)
within the time period(s) described in Section 8(b) above, or Section 8(d)(2) below.
Grantee may bring an action at law or in equity in a court of competent jurisdiction to
enforce compliance by Grantor with the terms ofthis Conservation Easement. In such
action, the Grantee may:
(1) Recover any damages to which Grantee may be entitled for
violation by Grantor ofthe terms ofthis Conservation Easement subject to the
limitations in Section 8(g) and Section 8(i) below . Grantee shall first apply any such
damages to recovered to the cost of taking corrective action on the Preserve.
(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.
CONSERVATION EASEMENT
Page 9 of 22
(3) Obtain other equitable relief, including, but not limited to, the
restoration of the Preserve to the condition in which it existed prior to any such violation
or injury. If Grantee, in its sole discretion, determines that circumstances require
immediate action to prevent or mitigate injury to the Conservation Values of the
Preserve, Grantee may pursue its remedies under this Conservation Easement without
prior notice to Grantor or without waiting for the period provided for cure to expire.
Grantee's rights under this section apply equally to actual or threatened violations of this
Conservation Easement.
Grantor agrees that Grantee's remedies at law for any violation of
this Conservation Easement are inadequate and that Grantee shall be entitled to the
injunctive relief described in this section, both prohibitive and mandatory, in addition to
such other relief to which Grantee may be entitled, including specific performance ofthis
Conservation Easement, without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies. Grantee's remedies described in this
section shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity, including but not limited to the remedies set forth in
California Civil Code Section 815, et seq. The failure of Grantee to discover a violation
or to take immediate legal action shall not bar Grantee from taking such action at a later
time.
(d) Notice of Dispute. If Grantor provides Grantee, with a notice of
dispute, as provided herein. Grantee shall meet and confer with Grantor at a mutually
agreeable place and time, not to exceed thirty (30) days from the date that Grantee
receives the notice of dispute. Grantee 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, whether the notice of violation and demand for
cure issued by Grantee are appropriate in light ofthe violation.
(1) Grantee agrees to consider the following principles in
making a determination:
a. Management activities shall be chosen for their long-
term 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:
918
CONSERVATION EASEMENT
Page 10 of 22
9^9
i. Preventative actions shall be taken to avoid
additional impact;
ii. Natural restoration shall be used if appropriate,
based on the magnitude of the impact, the impacts on listed or sensitive species, and
the estimated time for recovery to occur;
iii. Active restoration shall be required only where
there are severe, long-term impacts to the Property's Consen/ation Values, or where
highly sensitive species are impacted;
e. If, and for so long as. Grantor is a non-profit entity
organized for conservation purposes, Grantee shall consider the cost of management
activities and the resources available to Grantor or its successor.
(2) If, after reviewing Grantor's notice of dispute, conferring with
Grantor, and considering all relevant information related to the violation, Grantee
determines that a violation has occurred. Grantee shall give Grantor notice of such
determination in writing. Upon receipt of such determination. Grantor shall have fifteen
(15) days to cure the violation. If said cure reasonably requires more than fifteen (15)
days. Grantor shall begin cure within the fifteen (15) day period and work diligently to
complete such cure.
(e) Immediate Action. If Grantee determines that circumstances
require immediate action to prevent or mitigate significant damage to the Conservation
Values of the Preserve, Grantee may immediately pursue all available remedies,
including injunctive relief, available pursuant to both this 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) hour notice is given.
Grantee may immediately pursue all available remedies without waiting for the
expiration of the time periods provided for cure or notice of dispute as described 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 15 of this Conservation
Easement. The rights of Grantee under this paragraph apply equally to actual or
threatened violations of the terms of this Conservation Easement. Grantor agrees that
the remedies at law for Grantee for any violation of the terms of this Conservation
Easement are inadequate and that Grantee shall be entitled to the injunctive relief
described in this section, both prohibitive and mandatory, in addition to such other relief
to which Grantee may be entitled, including specific performance ofthe terms ofthis
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 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 §815, et seq., inclusive.
CONSERVATION EASEMENT
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(f) Center Violation. Following the valid transfer of the underiying fee
title interest in the Preserve from Grantor to Center (as described in Recital M, above), if
a court of competent jurisdiction determines that Center, as subsequent Grantor, has
violated any terms of this Conservation Easement:
(1) Liability for damages shall be limited to acts or omissions
covered by the Insurance Policy Described in Section 9 below to the coverage limits of
the policy, except as described in Section 8(f)(3) below;
(2) Endowment funds set aside for the management of the
Preserve shall not be used to pay any damages;
(3) If a violation arises from an intentional act of Center, it shall
be liable for the full extent of damages resulting from the violation; even if beyond the
limits of an insurance policy;
(4) In lieu of monetary damages. Grantee may agree to accept
fee title to and management responsibility of the Preserve, or direct fee title and
management responsibility to a willing third party, which shall be a public agency or
non-profit concerned with conservation and othenA/ise eligible to hold Conservation
Easements under Civil Code Section 815.3.
(5) This Section shall only be applicable to Center and shall not
be interpreted to apply to any of the Center's successors or assigns.
(g) Costs of Enforcement.
All costs incurred by Grantee, where Grantee is the prevailing party, in
enforcing the terms ofthis Conservation Easement against Grantor, including, but not
limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration
necessitated by negligence or breach of this Conservation Easement, shall be borne by
Grantor.
(h) Grantee's Enforcement Discretion.
Enforcement of the terms of this Conservation Easement by
Grantee shall be at the discretion of Grantee. Any forbearance by Grantee to exercise
its rights under this Conservation Easement in the event of any breach of any term of
this Conservation Easement shall not be deemed or construed to be a waiver of such
term or of any subsequent breach of the same or any other term of this Conservation
Easement or of any rights of Grantee under this Conservation Easement. No delay or
omission by Grantee in the exercise of any right or remedy shall impair such right or
remedy or be construed as a waiver.
9ao
CONSERVATION EASEMENT
Page 12 of 22
921
(i) Acts Beyond Grantor's Control.
Nothing contained in this Conservation Easement shall be
construed to entitle Grantee to bring any action against Grantor or make any claim on
Grantor's insurance policy for any injury to or change in the Preserve resulting from (i)
any natural cause beyond Grantor's control, including, without limitation, fire not caused
by Grantor, flood, storm, and earth movement; or (ii) any prudent action taken by
Grantor under emergency conditions to prevent, abate, or mitigate significant injury to
persons and/or the Preserve resulting from such causes; or (iii) acts by Grantee or its
employees, directors, officers, agents, contractors, or representatives; or (iv) acts of
third parties (including any governmental agencies) that are beyond Grantor's, its
successors' or assigns' control, except to the extent Grantor is obligated to repair and
restore the Preserve and so long as Grantor takes reasonable steps to prevent
prohibited uses of the Preserve.
(j) Enforcement: Standing.
All rights and remedies conveyed to Grantee under this
Conservation Easement shall extend to and are enforceable by the Third-Party
Beneficiaries (as defined in Recital F). These enforcement rights are in addition to and
do not limit the rights of enforcement under the Management Plan. If at any time in the
future Grantor uses, allows the use, or threatens to use or allow use of, the Preserve for
any purpose that is inconsistent with or in violation ofthis Conservation Easement, then
despite the provisions of California Civil Code Section 815.7, the California Attorney
General and the Third-Party Beneficiaries each has standing as an interested party in
any proceeding affecting this Conservation Easement.
9. Insurance.
Upon the valid transfer ofthe underlying fee interest in the Preserve from
Grantor to the Center (as described in Recital M, above), the Center shall establish and
maintain a policy of Commercial General Liability Insurance, in a form reasonably
approve by Grantee , with a minimum coverage of Two Million ($2,000,000.00) per
incident. The insurance shall be for the legal liability arising out of bodily injury and
tangible property damage, including tangible property damage to the Conservation
Easement. This 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 naming Grantee that is covered by the policy. The policy shall be the source of
payment for any liability claims against the Center under this Conservation Easement
paid after judgment or settlement, covered by the policy.
10. Costs and Liabilities.
Grantor or its successors and assigns retain all responsibilities and shall
bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance of the Preserve. Grantor agrees that Grantee shall not have any duty or
CONSERVATION EASEMENT
Page 13 of 22
922
responsibility for the operation, upkeep or maintenance ofthe Preserve, the monitoring
of hazardous conditions on it, or the protection of Grantor, the public or any third parties
from risks relating to conditions on the Preserve. Grantor remains solely responsible for
obtaining any applicable governmental permits and approvals required for any activity or
use permitted by this Conservation Easement, and any activity or use shall be
undertaken in accordance with all applicable agency statutes, ordinances, rules,
regulations, orders, and requirements.
(a) Taxes; No Liens. Grantor or subsequent transferees shall pay
before delinquency all taxes, assessments (general and special), fees, and charges of
whatever description levied on or assessed against the Preserve by competent authority
(collectively "Taxes"), including any taxes imposed upon, or incurred as a result of, this
Conservation Easement, and shall furnish Grantee with satisfactory evidence of
payment upon request. Grantor shall keep the Grantee's interest in the Presen/e free
from any liens.
(b) Hold Harmless. Grantor shall hold harmless, protect and indemnify
Grantee and its officers and employees (each a "Grantee Indemnified Party" and
collectively, "Grantee's Indemnified Parties") from and against any and all liabilities,
penalties, costs, losses, damages, expenses (including, without limitation reasonable
attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or
judgments (each a "Claim" and, collectively, "Claims"), arising from or in anyway
connected with: (i) 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
occurring on or about the Preserve, regardless of cause, except that this indemnification
shall be inapplicable to any Claim due solely to the negligence of Grantee or any of its
employees; (ii) the obligations specified in Sections 7 and 10(a); and (iii) the existence
or administration of this Conservation Easement. If any action or proceeding is brought
against any ofthe Grantee's Indemnified Parties by reason of any such Claim, Grantor
shall, at the election of and upon written notice from Grantee, defend such action or
proceeding by counsel reasonably acceptable to the Grantee's Indemnified Party.
11. Warranty.
Grantor represents and warrants that (1) there are no monetary liens or
conservation easements, except the Open Space Deed Restriction, senior in priority to
this Conservation Easement, and (2) the Preserve is not subject to any encumbrances
other than those of record. Upon recording of this Conservation Easement, Grantor will
obtain title insurance policies on the Preserve in an amount equal to the fair market
value of the Preserve for Grantee. Grantor represents and warrants that is the sole
owner of the Preserve. Grantor also represents and warrants that there are no
outstanding mortgages, liens, encumbrances or other interests in the Preserve
(including, without limitation, mineral interests) which may conflict or are inconsistent
with this Conservation Easement.
CONSERVATION EASEMENT
Page 14 of 22
923
12. Additional Interests.
Grantor shall not grant any additional easements, rights of way or other
interests in the Preserve (other than a security interest that is expressly subordinated to
this Conservation Easement), nor shall Grantor grant, transfer, abandon or relinquish
(each a "Transfer") any mineral, air, or water right or any water associated with the
Preserve, without first obtaining the written consent of Grantee. Such consent may be
withheld if Grantee determines that the proposed interest or Transfer is inconsistent with
the purposes of this Conservation Easement or will impair or interfere with the
Conservation Values ofthe Preserve. This Section 12 shall not limit the provisions of
Section 4(d) or Section 2(n), nor prohibit transfer of a fee or leasehold interest in the
Preserve that is subject to this Conservation Easement and complies with Section 14.
Grantor shall provide a copy of any recorded or unrecorded grant or Transfer document
to the Grantee and Signatory Agencies.
13. No Hazardous Materials Liability.
(c) Grantor represents and warrants that it has no knowledge or notice
of any Hazardous Materials (defined below) or underground storage tanks existing,
generated, treated, stored, used, released, disposed of, deposited or abandoned in, on,
under, or from the Preserve, or transported to or from or affecting the Preserve.
(d) Without limiting the obligations of Grantor under Section 10(b),
Grantor hereby releases and agrees to indemnify, protect and hold harmless the
Grantee's Indemnified Parties (defined in Section 10(b)) from and against any and all
Claims (defined in Section 10(1))) arising from or connected with any Hazardous
Materials or underground storage tanks present, alleged to be present, released in, from
or about, or othenA/ise associated with the Preserve at any time, except any Hazardous
Materials placed, disposed or released by Grantee or any of its employees. This
release and indemnification includes, without limitation. Claims for (A) injury to or death
of any person or physical damage to any property; and (B) the violation or alleged
violation of, or other failure to comply with, any Environmental Laws (defined below). If
any action or proceeding is brought against any ofthe Grantee's Indemnified Parties by
reason of any such Claim, Grantor shall, at the election of and upon written notice from
the applicable Grantee Indemnified Party, defend such action or proceeding by counsel
reasonably acceptable to the Grantee Indemnified Party.
(e) Despite any contrary provision of this Conservation Easement, the
parties do not intend this Conservation Easement to be, and this Conservation
Easement shall not be, construed such that it creates in or gives to Grantee of the
following:
(1) The obligations or liability of an "owner" or "operator," as
those terms are defined and used in Environmental Laws (defined below), including,
without limitation, the Comprehensive Environmental Response, Compensation and
CONSERVATION EASEMENT
Page 15 of 22
Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.; hereinafter, "CERCLA");
or
(2) The obligations or liabilities of a person described in 42
U.S.C. § 9607(a)(3) or (4); or
(3) The obligations of a responsible person under any applicable
Environmental Laws; or
(4) The right to investigate and remediate any Hazardous
Materials associated with the Preserve; or
(5) Any control over Grantor's ability to investigate, remove,
remediate or othenA/ise clean up any Hazardous Materials associated with the Preserve.
(f) The term "Hazardous Materials" includes, without limitation, (a)
material that is flammable, explosive or radioactive; (b) petroleum products, including
by-products and fractions thereof; and (c) hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials defined in CERCLA, the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. § 6901, ef seq.; hereinafter,
"RCRA"); the Hazardous Materials Transportation Act (49 U.S.C. §5101, ef seq.;
hereinafter, "HTA"); the Hazardous Waste Control Law (California Health & Safety Code
§ 25100, etseq.; hereinafter, "HCL"); the Carpenter-Presley-Tanner Hazardous
Substance Account Act (California Health & Safety Code § 25300, ef seq.; hereinafter
"HSA"), and in the regulations adopted and publications promulgated pursuant to them,
or any other applicable Environmental Laws now in effect or enacted after the date of
this Conservation Easement.
(g) The term "Environmental Laws" includes, without limitation,
CERCLA, RCRA, HTA, HCL, HSA, and any other federal, state, local or administrative
agency statute, ordinance, rule, regulation, order or requirement relating to pollution,
protection of human health or safety, the environment or Hazardous Materials. Grantor
represents, warrants and covenants to Grantee and Third-Party Beneficiaries that
activities upon and use of the Preserve by Grantor, its agents, employees, invitees and
contractors will comply with all Environmental Laws.
14. Transfer of Conservation Easement or Preserve.
(a) Conservation Easement.
This Conservation Easement may be assigned or transferred by
Grantee upon written approval of the Grantor, which approval shall not be unreasonably
withheld or delayed, but Grantee shall give Grantor and the Third-Party Beneficiaries at
least sixty (60) days prior written notice of the proposed assignment or transfer.
Grantee may assign or transfer its rights under this Conservation Easement only to an
entity or organization: (i) authorized to acquire and hold conservation easements
pursuant to California Civil Code Section 815.3 (and any successor or other provision(s)
CONSERVATION EASEMENT
Page 16 of 22
924
then applicable), or the laws of the United States; and (ii) otherwise reasonably
acceptable to the Grantor. Grantee shall require the assignee to record the assignment
in the county where the Preserve is located. The failure of Grantee to perform any act
provided in this section shall not impair the validity ofthis Conservation Easement or
limit its enforcement in any way. Any transfer under this section is subject to the
requirements of Section 14.
(b) Preserve.
Grantor and Grantee acknowledge that it is the intention of Grantor
to transfer fee title to the Preserve to Center immediately following the execution and
recording of this Conservation Easement.
Grantor agrees to incorporate the terms ofthis Conservation
Easement by reference in any deed or other legal instrument by which Grantor divests
itself of any interest in all or any portion ofthe Preserve, including, without limitation, a
leasehold interest. Grantor agrees that the deed or other legal instrument shall also
incorporate by reference the Management Plan, and any amendment(s). With regard to
transfers of any interest in the Preserve subsequent to fee title transfer to Center,
Grantor further agrees to give written notice to Grantee of the intent to transfer any
interest at least sixty (60) days prior to the date of such transfer. Grantee shall have the
right to prevent any transfers in which prospective subsequent claimants or transferees
are not given notice of the terms, covenants, conditions and restrictions of this
Conservation Easement (including the exhibits and documents incorporated by
reference in it). The failure of Grantor to perform any act provided in this section shall
not impair the validity of this Conservation Easement or limit its enforceability in any
way. Any transfer under this section is subject to the requirements of Section 14.
15. Notices.
Any notice, demand, request, consent, approval, or other communication
that Grantor or Grantee desires or is required to give to the other shall be in writing, with
a copy to each of the Signatory Agencies, and served personally or sent by recognized
overnight courier that guarantees next-day delivery or by first class United States mail,
postage fully prepaid, addressed as follows:
To Grantor: Continuing Life Communities, LLC
1940 Levante Street
Carisbad, CA 92009
To Grantee: City Clerk's Office
City of Carisbad
1200 Carisbad Village Drive
Carisbad, CA 92008
925
CONSERVATION EASEMENT
Page 17 of 22
926
To Center: Center for Natural Lands Management
27258 Via Industria, Suite B
Temecula, CA 92590
To CDFG: California Department of Fish and Game
1416 9*^ Street
Sacramento, CA 95814
To USFWS: U.S. Department ofthe Interior
U.S. Fish and Wildlife Service
Carisbad Fish and Wildlife Office
6010 Hidden Valley Road
Carlsbad, CA 92011
To CCC: California Coastal Commission
San Diego Coast District Office
7575 Metropolitan Drive Ste. 103
San Diego, CA 92108-4402
or to such other address a party or a Signatory Agency shall designate by written notice
to Grantor, Grantee and the Signatory Agencies. Notice shall be deemed effective upon
delivery in the case of personal delivery or delivery by overnight courier or, in the case
of delivery by first class mail, three (3) days after deposit into the United States mail.
16. Amendment.
This Conservation Easement may be amended only by mutual written
agreement of Grantor and Grantee. Any such amendment shall be consistent with the
purposes of this Conservation Easement and California law governing conservation
easements, and shall not affect its perpetual duration. Any such amendment shall be
recorded in the official records ofthe County of San Diego, and Grantee shall promptly
provide a conformed copy ofthe recorded amendment to the Grantor and the Third-
Party Beneficiaries.
17. Recording.
Grantee shall record this Conservation Easement in the Official Records
of the County in which the Preserve is located, and may re-record it at any time as
Grantee deems necessary to preserve its rights in this Conservation Easement.
18. Successors.
The covenants, terms, conditions, and restrictions of this Conservation
Easement shall be binding upon, and inure to the benefit of, the parties and their
respective personal representatives, heirs, successors, and assigns, and shall
CONSERVATION EASEMENT
Page 18 of 22
927
constitute a servitude running in perpetuity with the Preserve. The covenants
hereunder benefiting Grantee shall also benefit the Third-Party Beneficiaries.
19. No Forfeiture.
Nothing contained in this Conservation Easement will result in a forfeiture
or reversion of Grantor's title in any respect.
20. Termination of Rights and Obligations.
A party's rights and obligations under this Conservation Easement
terminate upon transfer of the party's interest in the Conservation Easement or Preserve
(respectively), except that liability for acts, omissions or breaches occurring prior to
transfer shall survive transfer.
21. Controlling Law.
The laws of the State of California and the laws of the United States shall
govern the interpretation and performance of this Conservation Easement. Any
subsequent amendment or repeal of state law or order that authorizes this Conservation
Easement shall not affect the rights conveyed to the Grantee or its successors or
assigns.
22. Liberal Construction.
Any general rule of construction to the contrary, this Conservation
Easement shall be liberally construed in favor of the grant to effect the purposes of this
Conservation Easement and the policy and purpose of California Civil Code Section
815, ef 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.
23. Interpretation in Favor of This Conservation Easement.
In the event a conflict in interpretation may arise between the Open Area
Deed Restriction and this Conservation Easement, this Conservation Easement shall be
controlling.
24. Severability.
If a court of competent jurisdiction voids or invalidates on its face any
provision of this Conservation Easement, such action shall not affect the remainder of
this Conservation Easement. If a court of competent jurisdiction voids or invalidates the
application of any provision of this Conservation Easement to a person or circumstance,
CONSERVATION EASEMENT
Page 19 of 22
such action shall not affect the application of the provision to any other persons or 928
circumstances.
25. Captions.
The captions in this instrument have been inserted solely for convenience
of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
26. Counterparts.
The parties may execute this instrument in two 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 signed it. In the event of any disparity
between the counterparts produced, the recorded counterpart shall be controlling.
27. Entire Agreement.
This document (including its Exhibits and the Management Plan
incorporated by reference in this document) sets forth the entire agreement of the
parties with respect to the Conservation Easement and supersedes all prior
discussions, negotiations, understandings, or agreements of the parties relating to the
Conservation Easement. No alteration or variation of this Conservation Easement shall
be valid or binding unless contained in an amendment in accordance with Section 16.
IN WITNESS WHEREOF Grantor has executed this Conservation Easement
Deed the day and year first above written.
SIGNATURES ON FOLLOWING PAGES
CONSERVATION EASEMENT
Page 20 of 22
GRANTOR: CONTINUING LIFE COMMUNITIES, LLC 929
By:
Date
E. Justin Wilson III
Principal
STATE OF CALIFORNIA
County of
On _, 20 , before me.
., a notary public in and for said State, personally
appeared , who
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity and that by his/her signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
(Seal)
CONSERVATION EASEMENT
Page 21 of 22
September 8, 2009
JN 021039-03
Page 1 of 1 931
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL 2 OF P.M. 2 0705
M.S. 09-02
PARCEL 2 OF CITY OF CARLSBAD MINOR SUBDIVISION NO. 09-02,
LA COSTA GLEN LOT 10 OF MAP 13997, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
PARCEL MAP THEREOF NO. 20705, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 4, 2009 AS
FILE NO. 2009-0498702.
AREA = 174,244 S.F. OR 4.00 ACRES MORE OR LESS
O:\Legal_Descriptions\021039\lot 10-ParceI2.lgl.doc
9
AREA OF DEDICATION:
^//^ 174,244 SO. FT. (4.00 ACRES)
EXHIBIT "B^
0' 150*^ 600'
300^ 1200'
SCALE: 1" = 600'
PAfiCBL B
7. 04-03
W4-12012W
: 21, 2004
'ADJ NO. 04-03
DOC. NO. 2004-1201215
REC. DEC 21, 2004
BASIS OF BEARINGS:
THE BASIS OF BEARINGS IS JHE
NORTHERLY UNE OF PARCEL 1
OF PARCEL MAP 20705
LE N srjs'js" W
LEGAL DESCRIPTION:
PARCEL 2 OFM.S 09-02, LA COSTA
GLEN LOT W OF MAP 13997,
PER PARCEL MAP NO 20705
RECORDED SEPT 4, 2009 AS
DOC NO 2009-0498702
SITEl^^ CITY OF ENCINITAS
VICINITY MAP
CITY OF CARLSBAD
GEORG^'DAY
RCE 32014 T.I2/31/10
NO SCALE
SHT 1 OF 1 SHTS
CONSULT A^T S
2710 Loker Ave. W. 760-931-7700
Suite 100 Fax:
Carlsbad, CA 760-931-8680
92010
:\021039\0239PLOS02.dwg Sep 08. 2009 9:56am Xrefs: 0239gnnap