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HomeMy WebLinkAbout2008-03-04; City Council; 19347; Acceptance of Conservation Easements and Directing Staff Regarding Future Processing of Conservation EasementsCITY OF CARLSBAD - AGENDA BILL 14 AB# 19,347 MTG. 03/04/08 DEPT. PLN Acceptance of Conservation Easements and Directing Staff Regarding Future Processing of Conservation Easements DEPT. HEAD M#^ CITYATTY. jjf CITYMGR. jfyj, If-" RECOMMENDED ACTION: That the City Council ADOPT Resolution No. 2008-068 APPROVING the acceptance of Conservation Easements for the Biltmore, Fenton Raceway, and Fox-Miller development projects and ADOPT Resolution No. 2008-067 selecting an alternative as direction for staff regarding the future processing of Conservation Easements. ITEM EXPLANATION: The City's Habitat Management Plan (HMP) Ordinance, Chapter 21.210 of the Zoning Ordinance, requires all developments that establish a habitat preserve to protect that open space area with a Conservation Easement. The Conservation Easement restricts the allowed uses, describes the preserve management and reporting responsibilities of the Grantor (i.e. land owner or developer), and stipulates the enforcement ability of the Grantee and any Third Party Beneficiaries. Conservation Easements are regulated by State Law and they can only be granted to a state or local governmental agency or a non-profit organization whose primary purpose is land preservation. Prior to adoption of the HMP Ordinance, the City required Conservation Easements for habitat preservation through conditions of approval contained in development permits. Typically, the easement is required prior to grading permit issuance. Earlier development permits required the Conservation Easement to be granted to the City, whereas later conditions did not specify what entity would assume the role of Grantee. As the HMP implementation program has developed over time, Planning and City Attorney staff has been considering the appropriate role of the City in the Conservation Easement process. Staff has prepared a briefing paper (Attachment 6) that discusses the background and potential issues related to Conservation Easements and the role of the City as Grantee. Many of the previous Conservation Easements were granted to the City and accepted by the City Clerk, similar to other easements associated with development permits such as drainage or sewer easements. After a detailed review of the Municipal Code and State Law, the City Attorney's Office has determined that staff may not have the explicit authority to accept these easements and, therefore, they require City Council approval. As discussed in the briefing paper, staff is requesting policy direction from the City Council regarding the role of the City as Grantee. In the interim, however, there are three development DEPARTMENT CONTACT: Michael Grim 760-602-4623 Mgrim@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 projects that have submitted Conservation Easements for acceptance to the City. Since these projects have been in the process for some time, and the Conservation Easement is the only remaining condition of approval needed to continue the development process, staff is recommending that the City Council accept these three easements at this time. The Conservation Easements proposed for acceptance include: • The Biltmore project (SDP 01-01(6)) creates a 4.8 acre open space lot located on the southerly side of the property, which contains Encinas Creek and the associated wetland and riparian habitats. • The Fenton Raceway project, also known as Carlsbad Raceway Business Park (CT 98-10) creates three open space lots, totaling 43.36 acres, which combine with the existing SDG&E easement to create a 400 foot wide wildlife corridor along the eastern and northern portions of the property. • The Fox-Miller project (HMPP 05-05) creates a 20.4 acre open space lot located in the northwestern portion of the property, which contains a large population of the narrow endemic species Brodeaia filifolia. Regarding the processing of future Conservation Easements, staff has prepared the attached briefing paper. After consideration of the issue, staff has developed three possible alternatives for addressing the issue regarding the role of the City as Grantee. FISCAL IMPACT: There are no direct fiscal impacts to the City involved in accepting the Conservation Easements. As required by the Habitat Management Plan and project-specific conditions of approval, the Grantor of the Conservation Easement is responsible for all costs associated with management, maintenance, and monitoring of the newly created habitat preserve areas. ENVIRONMENTAL IMPACT: The processing and acceptance of the Conservation Easements is one step in the implementation of conditions of approval of the Biltmore, Fenton Raceway, and Fox-Miller projects and, therefore, is within the scope of the previous environmental review for those projects. No subsequent environmental documentation is required. EXHIBITS: 1. City Council Resolution No 2008-067_ 2. City Council Resolution No. 2008-068 3. Conservation Easement Deed (Biltmore project) 4. Conservation Easement Deed (Fenton Raceway project) 5. Conservation Easement Deed (Fox-Miller project) 6. Location Maps 7. City Council Briefing Paper. EXHIBIT 1 1 RESOLUTION NO. 2008-067 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD CALIFORNIA, PROVIDING DIRECTION TO STAFF 3 REGARDING THE PROCESSING OF FUTURE CONSERVATION EASEMENTS 4 WHEREAS, the City of Carlsbad has been listed as Grantee for several 5 Conservation Easements, and 6 WHEREAS, the City of Carlsbad does not have a specific policy or ordinance 7 that addresses the processing of Conservation Easements, and 8 WHEREAS, staff has prepared a Conservation Easement and HMP 9 Implementation Briefing Paper, dated January 16, 2008, which contains three alternative 10 approaches to processing Conservation Easements. NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of12 Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Council hereby directs staff to pursue alternative C as contained in the Conservation Easement and HMP Implementation Briefing Paper, dated 16 January 16, 2008, regarding the processing of future Conservation Easements attached hereto as Exhibit 7. 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 4th day of March, 2008, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard. NOES: None. ABSENT: None. ATTEST: EXHIBIT 2 1 RESOLUTION NO. 2008-068 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD CALIFORNIA, APPROVING THE ACCEPTANCE OF 3 CONSERVATION EASEMENTS FOR THE BILTMORE, FENTON RACEWAY. AND FOX-MILLER PROJECTS. 4 WHEREAS, the City of Carlsbad has approved environmental documents and 5 development permits for the Biltmore project, including Site Development Plan SDP 01-01(B) by 6 Planning Commission Resolution Number 5881; and 7 WHEREAS, Condition Number 15 of Planning Commission Resolution No 5881 8 requires the recordation of a Conservation Easement; and 9 WHEREAS, Ascent Biltmore Carlsbad, LLC, ("Grantor"), grants the Conservation Easement in favor of the CITY OF CARLSBAD, a California municipal corporation ("Grantee"); and12 WHEREAS, the City of Carlsbad has approved environmental documents and development permits for the Fenton Raceway project, also known as Carlsbad Raceway14 Business Park, including Tentative Tract Map CT 98-10 by Planning Commission Resolution Number 5028; and16 WHEREAS, Condition Number 16 of Planning Commission Resolution No 5028 requires the recordation of a Conservation Easement; andlo 19 WHEREAS, Fenton Raceway, LLC, ("Grantor"), grants the Conservation 20 Easement in favor of the CITY OF CARLSBAD, a California municipal corporation ("Grantee"); 21 and 22 WHEREAS, the City of Carlsbad has approved environmental documents and 2i development permits for the Fox-Miller project, including Habitat Management Plan Permit 24 HMPP 05-05 by Planning Commission Resolution Number 5939; and 25 WHEREAS, Condition Number 6 of Planning Commission Resolution No 5939 26 requires the recordation of a Conservation Easement; and 27 28 1 WHEREAS, Salk Owners Association, ("Grantor"), grants the Conservation 2 Easement in favor of the CITY OF CARLSBAD, a California municipal corporation ("Grantee"); 3 and 4 WHEREAS, the City of Carlsbad ("Grantee") is authorized to hold Conservation 5 Easements pursuant to California Civil Code Section 815.3. 6 NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of 7 Carlsbad, California, as follows: 8 1. That the above recitations are true and correct. o 2. That the City Council hereby authorizes acceptance of the attached 10 Conservation Easements for the Biltmore, Fenton Raceway, and Fox-Miller development projects attached hereto as Exhibits 3, 4 and 5. 11 12 '" 13 '" 14 I" 15 '" 16 '" 17 "/ 18 /// 19 "/ 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 4th day of March, 2008, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard. NOES: None. ABSENT: None. LEWIS, MaybT ATTEST: OD, City Clerk 0 EXHIBIT 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Carlsbad City Clerk 1200 Carlsbad Village Dr Carlsbad, CA 92008 Space Above Line for Recorder's Use Only CONSERVATION EASEMENT DEED Pacifica Palomar/Biltmore - SDP 01-OlfB) THIS CONSERVATION EASEMENT DEED is made this day of 2008, by Ascent Biltmore Carlsbad, LLC, ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipal corporation ("Grantee"), with reference, to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the City of Carlsbad, County of San Diego, State of California, more particularly described in Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by this reference, consisting of approximately 4.782 acres (the "Property"): B. The Property possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee and the People of the State of California; C. The Property provides high quality habitat for riparian wetland habitat and mixed chaparral and restored riparian and coastal sage scrub habitats; D. Grantee is authorized to hold conservation 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. E. .State of California, Department of Fish and Game ("CDFG") has jurisdiction, pursuant to Fish and Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law. 06/07/2006 g 0 SDP 01-01(8) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 F. The U.S. Fish & Wildlife Service ("USFWS") has jurisdiction over the conservation, protection, restoration, enhancement and management of fish, wildlife and native plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C. Section 1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and other applicable federal laws. G. The United State Army Corp of Engineers ("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. H. Grantor is the developer of a project known as Biltmore 24 Hour Fitness located in the City of Carlsbad, County of San Diego, State of California, which is planned to include a 85,000 square foot Office building on 10.9 acres (the "Project"). The Project is the subject of a Site Development Plan Ol-Ol(B), Coastal Development Permit 01-02(8), Conditional Use Permit 05-04, and a Mitigated Negative Declaration. This Conservation Easement provides mitigation for certain impacts of the Project, pursuant to requirements of Condition 15 of City of Carlsbad Planning Commission Resolution, 5881 dated May 4, 2005 for the Site Development Plan for the Project. This Conservation Easement is intended and shall be deemed to satisfy such requirement as to the Property. The amount of riparian wetland habitat, mixed chaparral and coastal sage scrub to be preserved within the Property is 4.782 acres. I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein to preserve and protect in perpetuity the conservation values of the Property in accordance with the terms of this Conservation Easement. COVENANTS, TERMS. CONDITIONS AND RESTRICTIONS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to 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. 1. Purpose. The purpose of this Conservation Easement is to ensure the Property will be retained forever in a natural condition and to prevent any use of the Property that will impair or interfere with the conservation values of the Property. Grantor intends that this Conservation Easement will confine the use of the Property to such activities, including, without limitation, those involving the preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Easement. 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited: (a) Except as permitted pursuant to Section 5 of this Conservation Easement, unseasonal watering, use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals, weed abatement activities, or incompatible fire protection activities; and 06/07/2006 ~ SDP 01-01(8) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 any and all other activities and uses which may adversely affect the purposes of this Conservation Easement; (b) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways; (c) Grazing or other agricultural activity of any kind; (d) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except as may be specifically permitted under this Conservation Easement; Property; (e) Commercial or industrial uses; (f) Any legal or de facto division, subdivision or partitioning of the (g) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, except as may be specifically permitted under this Conservation Easement; (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 extraction of minerals, loam, soil, sands, gravel, rocks or other material on or below the surface of the Property, except as approved by the project conditions and as provided for in the Habitat Management Plan to maintain the bioswale east of Laurel Tree Lane; (k) Altering the surface or general topography of the Property, including building of roads, except as permitted pursuant to Section 5 of this Conservation Easement; (1) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease; and (m) Manipulating, impounding or altering any natural water course, 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. 06/07/2006 YD SDP 01-01(8) - PAC1FICA PALOMAR/BILTMORE APN: 212-040-25-00 3. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights, without obligation, to Grantee and to the USFWS, CDFG and the ACOE as a third party beneficiary(ies) of this Conservation Easement: (a) To preserve and protect the conservation values of the Property; (b) To enter upon the Property at reasonable times in order to monitor Grantor's compliance with and to otherwise enforce the terms of this Conservation Easement, and for scientific research and interpretive purposes by Grantee or its designees and USFWS, CDFG, and ACOE or their designees, provided that neither Grantee, USFWS, CDFG and ACOE shall unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property; (c) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement; (d) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Property; and (e) All present and future development rights; and (f) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Conservation Easement. 4. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement, and the rights of Grantor to comply with all the provisions of that certain Agreement for Management and Transfer of Real Property approved and executed concurrently herewith by Grantor, Ascent Biltmore Carlsbad, LLC, including the right (i) to implement the "Habitat Management Plan for the Encinas Creek Open Space, Biltmore 24-Hour Fitness and Kelly/JRM Office Building Projects, City of Carlsbad, CA, January 27, 2006" and (ii) to develop, maintain, fence, install interpretive signs along, and allow recreational pedestrian and bicycle uses of the trails for the benefit of Grantee that are required by Condition number 30 of Conditions of Approval, City of Carlsbad Planning Commission Resolution, 5881 dated May 4, 2005. 5. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantor, its successors or assigns shall: (a) Preserve and retain the Property in its Natural Condition and conserve, manage and preserve in perpetuity its Conservation Values; and (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 Property. In 06/07/2006 SDP 01-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under Section 2 of this Conservation Easement, including but not limited to Grantee's water rights; and (c) Grantor shall install and maintain a fence reasonably satisfactory to Grantee, USFWS, CDFG and ACOE around the Conservation Easement area to protect the conservation values of the Property, including but not limited to wildlife corridors. (d) Comply with the terms of this Conservation Easement and cooperate with Grantee and third party beneficiaries in the protection of the Conservation Values; and (e) 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; and (f) Repair and restore damage to the Conservation Easement directly caused by Grantor, Grantor's representatives, employees, agents, invitees and third parties including, but not limited to damage to Conservation Values from activities undertaken pursuant to Section 5; and (g) Obtain any applicable governmental permits and approvals for any activity or use permitted by this 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 (h) 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) Annual maintenance of signage set forth in this Section 4(e); and (4) 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 4(g), and shall make reports available to Grantee and USFWS, CDFG and ACOE upon completion. 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. Grantor shall have its Biological Monitor submit the draft Restoration Plan for review and approval by Grantee, USFWS, CDFG and ACOE. Upon completion of the Restoration Plan, as approved by Grantee, USFWS, CDFG and ACOE, Grantor shall have the Biological Monitor prepare detailed monitoring reports, and Grantor shall make reports available to Grantee, USFWS, CDFG and ACOE upon completion. Said monitoring and 06/07/2006 IZ- SDP 01-01(8) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 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, the dates that 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. (i) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the USFWS, CDFG and ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended. (j) Ensure, before conveyance of the Property to a conservation entity as approved by the City of Carlsbad as contemplated herein, that as of the date of such conveyance, the Grantor is in full compliance with all of its obligations contained in this Section 4. (k) In the event Grantor, 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 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; (1) 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 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 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 annual audit of the endowment performed by a licensed CPA, and shall submit the auditor's written report to Grantee, USFWS, CDFG and ACOE upon completion. 6. Access. This Conservation Easement does not convey a general right of access to the public. 06/07/2006 SDP 01-01(8) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 7. Grantee's and Third Party Beneficiary Remedies. USFWS, CDFG and the ACOE- as third party beneficiary(ies) of this Conservation Easement, shall have the same rights as Grantee under this section to enforce the terms of this Conservation Easement. These rights are in addition to, and do not limit, the rights of enforcement under the Habitat Management Permit. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee may pursue all available remedies after giving written notice to Grantor of such violation and demand in writing the cure of such violation. At the time of giving any such notice, Grantee shall give a copy of the notice to USFWS, CDFG and ACOEl If Grantor fails to cure the violation within fifteen (15) days after receipt of written notice and demand from Grantee, or if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin the cure within the fifteen (15)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Conservation Easement, to recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation-Easement or for any injury to the conservation values of the Property, to enjoin the violation, exparte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relief, Including, but not limited to, the restoration of the Property to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Property, Grantee may pursue its remedies under this Section 7 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 the terms of this Conservation Easement. Grantor agrees that Grantee's remedies at law 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 of the terms of this 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 Civil Code Section 815, et seq., inclusive. 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. If at any time in the future Grantor or any subsequent transferee uses or threatens to use the Property for purposes inconsistent with this Conservation Easement then, notwithstanding Civil Code Section 815.7, the California Attorney General or any entity or individual with a justifiable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement. 7.1 Costs of Enforcement. Any costs incurred by Grantee, USFWS, CDFG or ACOE, where it is the prevailing party, in enforcing the terms of this Conservation Easement 06/07/2006 SDP 01 -01 (B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 against Grantor, except attorneys fees, but including and not limited to costs of suit, experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall, be borne by Grantor. 7.2 Discretion of Grantee and USFWS, CDFG and ACOE. Enforcement of the terms of this Conservation Easement by Grantee, USFWS, CDFG or ACOE shall be at its discretion, and any forbearance by any of them to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee, USFWS, CDFG or ACOE of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Grantee's rights (or any rights of USFWS, CDFG or the ACOE as a third party beneficiary(ies)) under this Conservation Easement. No delay or omission by Grantee, USFWS, CDFG 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. 7.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee, USFWS, CDFG or ACOE to bring any action against Grantor for any injury to or change in the Property resulting from (i) any natural cause beyond Grantor's control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes; o'r (ii) acts by Grantee or its employees or USFWS, CDFG or ACOE or their employees. 8. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property. Grantor agrees that neither Grantee, nor USFWS, CDFG or ACOE shallhave 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 Conservation Easement Deed, 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. 8.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee, USFWS, CDFG and ACOE with satisfactory evidence of payment upon request. Grantor shall keep Grantee's interest in the Property free from any liens, including those arising out of any obligations incurred by Grantor or any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Property. 8.2 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 06/07/2006 SDP 01 -01 (B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 Indemnified Party" and, collectively, "Grantee's Indemnified Parties") and USFWS and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a" USFWS Indemnified Party" and, collectively, "USFWS Indemnified Parties") and CDFG and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "CDFG Indemnified Party" and, collectively, "CDFG 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" ACOE Indemnified Party" and, collectively, "ACOE 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: (1) 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 Property, regardless of cause, except that (a) 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 (b) this indemnification shall be inapplicable to USFWS, CDFG and ACOE Indemnified Parties with respect to any Claim due solely to the negligence of USFWS, CDFG and ACOE or any of their employees; (2) the Grantor's obligations specified in Sections 5, 8, and 8.1; and (3) the existence or administration of this Conservation Easement. If any action or proceeding is brought against any of the USFWS, CDFG and ACOE Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from USFWS, CDFG and ACOE, defend such action or proceeding by counsel reasonably acceptable to the Grantee Indemnified Party or reimburse the party for all charges incurred for services of the Attorney General in defending the action or proceeding. 8.3 No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any unremediated 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 9.2, Grantor agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties and the USFWS, CDFG, and ACOE Indemnified Parties (defined in Section 9.2) against any and all Claims (defined in Section 9.2) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time, 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 USFWS, CDFG and ACOE Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by USFWS, CDFG and ACOE, its employees or agents. If any action or proceeding is brought against any of the USFWS, CDFG and ACOE Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from USFWS, CDFG and ACOE, defend such action or proceeding by counsel reasonably acceptable to the USFWS, CDFG and ACOE Indemnified Party or reimburse USFWS, CDFG and ACOE for all charges incurred for services of the California Attorney General in defending the action or proceeding. (a) Despite any contrary provision of this Conservation Easement Deed, the parties do not intend this Conservation Easement to be, and this Conservation 06/07/2006 SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 Easement shall not be, construed such that it creates in or gives to Grantee or USFWS, CDFG and 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 (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantpr's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. (b) 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 etseq.); 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 Conservation Easement Deed. (c) 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, USFWS, CDFG and ACOE that Grantor's activities upon and use of the Property will comply with all Environmental Laws. 9. Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700. 10. Assignment. This Conservation Easement is transferable by Grantee, but Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3. Grantee shall require the assignee to record the assignment in the county where the Property is located. 10 06/07/2006 SDP 01-Oi(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 11. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or any portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee, USFWS, CDFG and ACOE of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. 12. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to the other parties shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows: To Grantor:Ascent Biltmore Carlsbad, LLC P. O. Box 675875 Rancho Santa Fe, CA 92067 Attn: Mr. Thomas Smith To Grantee:City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 With a copy to:Department of Fish and Game, Region 5 4949 Viewridge Avenue San Diego, CA 92123 US Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad CA 92009 FAX 760-431-5902 District Counsel U.S. Army Corps of Engineers Los Angeles District 915 Wilshire Blvd, Room 153506/07/2006 Los Angeles C A 90017-3401 or to such other address as Grantor, Grantee, USFWS, CDFG or ACOE may designate by written notice to the other parties. Notice shall be deemed effective upon delivery in the case of personal 11 06/07/2006 16 SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 13. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 14. Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Property. Each Grantor and successor shall have obligations pursuant to Section 8.2 as to any Claim only to the extent that the Claim arises during the period in which that Grantor or successor holds fee title to the Property. 15. 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 Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. IT 16. Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, or encumbrances upon the Property (other than property taxes and assessments collected with taxes) which have not been expressly subordinated to this Conservation Easement Deed, and that the Property is not subject to any other conservation easement. 17. Subordination. No breach, enforcement or attempted enforcement of any of the terms, covenants, conditions or restrictions of this Conservation Easement will defeat or render invalid the lien of any mortgage or deed of trust securing a loan made in good faith and for value with respect to the Property; provided, however, that all provisions of this Conservation Easement will be binding upon and effective against any subsequent owner of the Property whose title to the property or any portion of such is acquired by foreclosure, trust deed sale, or otherwise. Grantor hereby represents to Grantee that, as of the date of this Conservation Easement, the Property is not encumbered with any mortgage, deed of trust or other monetary encumbrance except for liens for non-delinquent real property taxes and assessments. 18. Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Property (other than a security interest that is subordinate to this Conservation Easement Deed), or grant or otherwise abandon or relinquish any water agreement relating to the Property, without first obtaining the written consent of Grantee, USFWS, CDFG and ACOE> Grantee, USFWS, CDFG or ACOE may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the conservation values of the Property. This Section 13(e) shall not prohibit transfer of a fee or leasehold interest in the Property that is subject to this Conservation Easement Deed and complies with Section 10. 19. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement and subject to the written approval of USFWS, CDFG and ACOE. Any such amendment shall be consistent with the purposes of this Conservation 12 06/07/2006 ~ SDP 01-01(8) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 Easement and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Diego County, State of California. 20. Controlling Law. The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California, disregarding the conflicts of law principles of such state. 21. Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. 22. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 18. 23. Counterparts. The parties may execute this instrument in any number of counterparts, which shall, in the aggregate, be signed by all of the parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 13 06/07/2006 ^ SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 IN WITNESS WHEREOF4 Grantor and Grantee have executed this Conservation Easement Deed as of the day and year first above written. GRANTOR: By: Bv: Name: Title: MAJUfljVld CTO GRANTEE: CITY OF CARLSBAD, a California Municipal Corporation By:. Title: Mayor APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Assistant City Attorney 14 06/07/2006 ^\ STATE OF CALIFORNIA COUNTY OF GAM DUIQO On (before me, frfllty\VlC. u • { Notary Public, personally appeared ptCK0_^ u • U^iOJ _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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. (Signature of Notary) KattwrimMoslMT Notary Public -Arizona Maricopa County My Commission Expires Jum»16,Z010 Rev. 12/17/2007 LEGAL DESCRIPTION CONSERVATION EASEMENT PARCEL 2 OF PARCEL MAP NO. Z O 2. 1 °{ IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, 07 2oo7. SCALE IN FEET EXHIBIT PAGE 1 OF 2 CM 100 0 100 SCALE 1"=30' PAflCEL >:::: PARCEL 2 AREA OF CONSERVATION EASEMENT: 4.782 ACRES Exp. 12-31-06 LINE L1 L2 L3 L4 L5 L6 BEARING N38>47'30"E N86'57'57"E N88'03'52"E N80'57'01"E N89'47'5rE N14'09'58"E DISTANCE 60.00' 125.52' 100.20' 110.19' 136.34' 14.69' LINE C1 C2 C3 C4 DELTA 18'39'42B 16*31 "20" 43'36'09° 22'56'02" RADIUS 336.00' 108.00' 229.00' 240.00' ARC 109.44' 31.14' 174.27' 96.07' RAMON J. S>EAR L.S. 6404 LIC. EXP. 12-31-06 DATE CITY OF CARLSBAD CALE 1"=100' ATE 2/25/06 RN. TCP CK. RJS SPEAR & ASSOCIATES, INC. CIVIL ENGINEERING AND LAND SURVEYING 475 PRODUCTION STREET, SAN MARCOS, CA 92078 (780) 738-2040 FAX (760) 736-4386 JOB NO. 05-177 DWG NO. 05-177-COMSERVATiON SCALE IN FEET EXHIBIT "B'PAGE 2 OF 2 100 . 0 100 SCALE 1"=30' -N- 200 300 <c Q_ UJUJCO :x:: PARCEL 2 AREA OF CONSERVATION EASEMENT: 4.782 ACRES LINE L5 L6 L7 L8 L9 L10 L11 L12 L13 L14 L15 BEARING N89'47'57"E S82-50'25°E S74'44'55"E S80°33'36"E N75-46'51"E L N67'58'59"E N47'58'59"E NO'oforw N45'58'59"E S3r31'Ol"E N12'52'20"E DISTANCE 136.34' 59.44' 64.35' 80.40' 123.57' 80.00' 60.00' 20.00' 14.03' 27.59' 16.64' LINE C1 C2 DELTA 23039'33" 4'06'29" RADIUS 275.00' 1937.00' ARC 113.56' 138.88' RAMON J. SPEAR L.S. 6404 LIC. EXP. 12-31-06 DATE CITY OF CARLSBAD SCALE DATE 'DRM. TCP 1"=100' 2/25/06 CK. RJS SPEAR & ASSOCIATES, INC. CIVIL ENGINEERING AND LAND SURVEYING 4-75 PRODUCTION STREET, SAN MARCOS, CA 92073 (760) 736-2040 FAX (760) 736-4866 JOB NO. 05-177 DWG NO. 05-177-CONSERVATION EXHIBIT 4 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 SPACE ABOVE FOR RECORDER'S USE THIS CONSERVATION EASEMENT is made this 5 day of . 2007, by FENTON RACEWAY,. LLC ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipal corporation ("Grantee"). RECITALS A. Grantor is the sole owner in fee simple of real property 'in the City of Carlsbad, County of San Diego, State of California legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated by this reference (the "Property"). B Grantee has adopted a Habitat Management Plan, for the conservation, protection, and management offish, wildlife, native plants and the habitat necessary for biologically sustainable populations of certain species thereof. C. 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 (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). E This Conservation Easement provides mitigation for certain impacts associated with development of the Carlsbad Raceway Business Park ("Project"), located in the City of Carlsbad, County of San Diego, State of California, by Grantor and pursuant to the requirements of: 2-28-07 1. The Final Mitigated Negative Declaration and associated Mitigation Monitoring and Reporting Program for the Project, adopted by the City of Carlsbad for the Carlsbad Raceway Business Park Project Area by City Council Resolution No. 2001-351, dated December 4, 2001 and Planning Commission Resolution No. 5024, dated October 17, 2001; 2. The United States Fish and Wildlife Service ("USFWS") non-jeopardy Biological Opinion ("BO") and associated habitat mitigation requirements issued January 7, 2004 (FWS Log No. 1-6-02-F-2124); 3. The United States Army Corps of Engineers' ("ACOE") Section 404 Permit No. 982020500-RJL dated February 13, 2004 and any amendments thereto ("Section 404 Permit"); and 4. The California Department of Fish and Game ("CDFG"), Section 1603 Streambed Alteration Agreement R-5-2002-0088, dated June 10, 2004 ("Streambed Alteration Agreement"). All of the foregoing shall hereafter be collectively referred to as the "Agency Permits." F. Grantee is authorized to hold conservation 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. H. Grantor hereby informs Grantee and third party beneficiary that Grantor intends to convey the Property to the Fenton Raceway Business Park Property 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 the roles and responsibilities of Grantor, including long-term maintenance, under this 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 Conservation Easement will be undertaken by a qualified conservation entity reasonably acceptable to the City 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, 2-28-07 -2- 27 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 ("Conservation Easement"). This 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 Conservation Easement is to ensure that the Property will be managed and preserved in a Natural Condition, defined below, hi perpetuity and to prevent, subject to the rights retained by the Grantor hereunder, any use of the Property that will materially impair or interfere with the Conservation Values of the Property (the "Purpose"). Grantor intends that this Conservation Easement will confine the use of the Property to activities involving the management and preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Easement. (b) The term "Natural Condition," as referenced in the preceding paragraph and other portions of this Conservation Easement, shall mean the condition of the Property, as it exists at the time this 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 and/or terms and conditions required by the Agency Permits and as described in the Conceptual Habitat Mitigation and Monitoring Plan dated September 10, 2004, prepared by Helix Environmental Planning, Inc. ("Mitigation Plan"), the cover page and Table of Contents of which are attached as Exhibit "C," including implementation, maintenance, and monitoring activities (collectively, - "Compensatory Mitigation"), (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 herein, (c) Grantor certifies to the best of its knowledge, that the only structures or improvements existing on the Property at the tune this grant is executed consist of utilities, roads and trails. Grantor further certifies to the best of its knowledge, the only easements existing on the Property at the time this grant is executed are identified in Exhibit "D". The current Natural Condition is evidenced in part by the depiction of the Property attached on Exhibit "E", 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 Natural Condition to Grantee and ACOE consisting of (1) an aerial photograph showing the pre-disturbance condition of the Property dated December 14, 2002; (2) an overlay of the Property boundaries on such aerial photograph; (3) on-site photographs showing all man-made improvements or structures (if any), and the major, distinct natural features of the Property; (4) all biological reports and wetlands delineation studies; (5) the certified Final Mitigated Negative Declaration; (6) the Mitigation Plan; and (7) Final Map for Carlsbad Tract No. 98-10, Carlsbad Raceway, according to Map thereof No. 15013, recorded on May 3, 2005 in the office of the recorder of San Diego County, California. 2-2S-07 O- (d) If a controversy arises with respect to the 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. 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the Purpose of this 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 of Carlsbad's Habitat Management Plan and its implementing documents, the Agency Permits" and any amendments thereto, the Mitigation Plan, and any easements and reservations of rights recorded in the chain of title to the Property (as set forth on Exhibit D hereto) at the time of this Conservation Easement is recorded: (a) Supplemental watering except for habitat enhancement activities described in Section 4; (b) Use of herbicides, pesticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except activities necessary toN 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) Livestock grazing or other agricultural activity of any kind; (e) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing; (f) Residential, commercial, retail, institutional, transportation or industrial uses; (g) Any legal or de facto division, subdivision or portioning of the Property, except transfers in accordance with Section 12 below; (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; • «.!», (j) Planting, introduction or dispersal of non-native or exotic plant or animal species; 2-2S-07 -4- (k) Filling, dumping, excavating, draining, dredging, mining, 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 and flood control work except as permitted by the Agency Permits or as allowed by Section 7(p 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 foot trails or 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, or (6) 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 qft any surface.or sub-surface waters, except as provided in the Agency Permits; and (o) Fuel modification zones (defined as a strip of mowed land or the planting of vegetation possessing low combustibility for purposes of fire suppression). 3. Grantee's Rights. To accomplish the Purpose of this 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 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 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 Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this 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; 2-28-07 -5- (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 means, including, without limitation, injunctive relief, the terms and conditions of this 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 are consistent with the Purpose of this 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; (b) The right to plant and maintain native trees, shrubs and other native landscaping elements, including, without limitation, the installation and maintenance of 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 Conservation Easement; (c)" The right to install and maintain: (1) Fences on the Property to the extent such installation and 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 as shown on Exhibit E, consistent with the Agency Permits or otherwise approved by Grantee, ACOE and USFWS; (d) Reasonable access through the Property to adjacent land to perform obligations or other activities permitted by this Conservation Easement or that are required under the Agency Permits; (e) Notwithstanding anything set forth herein to the contrary, nothing in this 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 2-28-07"-6- 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 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 Conservation Easement; (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 Grantor is in compliance with all of its obligations contained in Section 6 herein. 6. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantor, its successors or 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 unlawful entry and trespass 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 Conservation Easement, including but not limited to Grantee's water rights; (c) Comply with the terms of this Conservation Easement and 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 Conservation Easement directly caused by Grantor, Grantor's representatives, employees, agents, invitees and third parties including, but not limited to damage to Conservation Values from activities undertaken pursuant to Section (f) In the event Grantor, or its successors or assigns, establishes an endowment fund in the future, such endowment fund shall be established, to be held in trust, 2-28-07 -7- invested arid the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Property as required under this 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: (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 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 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 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) 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) Annual maintenance of signage set forth in this Section 6(d); and (4) 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 2-28-07 -8- qualified Biological Monitor to prepare a detailed Restoration Plan and to oversee/monitor restoration activities. Grantor 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 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; (j) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended; (k) Association or other authorized entity, as a subsequent Grantor, shall not be subject to the indemnification provisions in Section 17(b) below, as to the condition of the land prior to the date that Fenton Raceway, LLC transfers the Property to the Association or other authorized entity. Fenton Raceway, LLC shall remain liable for any "Hazardous , Materials" (as defined in Section 17(b). below) placed, disposed of, or released on the Property prior to transfer. After Fenton Raceway, LLC transfers Property to Association or other authorized entity, Fenton Raceway, LLC and its successors shall indemnify Grantee under Section 17(b) below for claims arising from Hazardous Materials placed, disposed of or released onto the Property prior to the date of transfer; and (1) Ensure, before conveyance of the Property to Association as contemplated herein, that as of the date of such conveyance, the Grantor is in full compliance with all of its obligations contained in this Section 6. 7. Enforcement. (a) Third Party Beneficiary. ACOE, as a third party beneficiary of this 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 Conservation Easement or that a violation is threatened, 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. 2-28-07 -9- (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 of receipt 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 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 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. (2) Enjoin the violation, ex parts 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 injury. - - (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-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; 2-28-07 -10- d. Management activities shall be chosen according to the following order of preference: 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 potential severe, long-term impacts to the Property's Conservation 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 and/or ACOE shall consider the cost of management activities and the resources available to Grantor or its successors. (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 (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). 2-28-07 -11- (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 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 Conservation Easement. The rights of Grantee and/or ACOE 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 and/or ACOE for any violation of the terms of this 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 eatitled, including specific performance of the terms of this 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 Section 815, et seq., inclusive. (h) Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee and/or ACOE to bring any action against Grantor or make any claim on Grantor's insurance policy for any injury to or change in the Conservation Easement Property resulting from: (1) Any cause beyond Grantor's control, including without limitation, fire, 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 obligated to repair and restore the Property pursuant to Section 6(e) above and so long as Grantor 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 Conservation Easement, and undertake any 2-28-07 -12- 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 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 Conservation Easement or of any of the rights of Grantee and/or ACOE under this 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. (j) Costs of Enforcement. Any costs incurred by Grantee and/or ACOE, as the prevailing party, in enforcing the terms of this 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 Conservation Easement shall be borne by Grantor. 8. Insurance. Prior to the acceptance of this 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 every five years (upward only) for inflation using the Consumer Price Index (CPI-A11 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 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 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 Pa'rty" and, collectively, "Grantee's Indemnified Parties") and ACOE and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, 2-2S-07 -13- 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: (1) 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 Property, regardless of cause, except that (a) 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 (b) 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; (2) the obligations specified in Sections 6. 9. and 17fa): and (3) the existence or administration of this 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. 11. Access. This Conservation Easement does not convey a general right of access to the Property by the public. The 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 Conservation Easement is recorded at locations designated in easements and reservations of rights recorded in the chain of title to the Property. This Conservation Easement will allow for the Property to be available for approved scientific investigations. 12. Assignment and Subsequent Transfers. (a) By Grantee. This Conservation Easement is transferable by Grantee, but" Grantee may assign its rights and delegate obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3 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 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 Conservation Easement or its enforcement in any way. (b) By Grantor. (1) The covenants, conditions, and restrictions contained in this Conservation Easement Deed are intended to run with the land and bind all future owners of any 2-28-07 -14- interest in the Property. Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor agrees to give written notice to Grantee and ACOE of the intent to transfer any interest at least forty-five (45) 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 Conservation Easement, or whenever a subsequent Property transfer will result in a merger of the 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, (1) 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, (2) the Association shall assume all other duties and obligations of Grantor hereunder, and (3) 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") fat the Project that requires the Association to accomplish the following: (i) assume the obligations under this 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 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 Conservation Easement and, in particular, the Association's full compliance with the terms of this 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)(2),from and after the date of any valid transfer of all or any portion 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 to the portion transferred, as set forth in this Conservation Easement, (ii) the transferee shall be deemed to have accepted the restrictions contained herein as to the portion transferred, (iii) the transferor, as applicable, shall have no further obligations hereunder except for Indemnification under Section 17(b), and (iv) all references to Grantor in this Conservation Easement shall thereafter refer to 2-28-07 -15- such transferee. (4) 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. (c) Easements. 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 Conservation Easement), or grant or otherwise 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 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. 13. Notices. All notices, demands, requests, consents, approvals, or communipations - 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: Fenton Raceway, LLC Vice President 7588 Metropolitan Drive San Diego, CA 92108 To Grantee: City of Carlsbad Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, California 92008 FAX 760-720-6917 2-28-07 -16- Ml With a copy to: 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 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 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 Conservation Easement and otherwise evidences the status of this 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 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, 2-28-07 -17- 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 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 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 etseq.; 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 (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 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 2-2S-07 -18- Hazardous Materials. Grantor represents, warrants, and covenants to Grantee and ACOE that Grantor'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 Conservation Easement, and (2) the Property is not subject to any other encumbrances other than those of record. Upon the recording of this 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 Conservation Easement impossible to accomplish, this 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 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. A party's rights and obligations under this Conservation Easement shall terminate upon transfer of the party's interest hi the Conservation Easement or Property (respectively), except that liability for acts or omissions occurring prior to transfer shall survive transfer. (h) Successors and Assigns. The covenants, terms, conditions, and restrictions of this 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 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. (j) 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, such action shall not affect the application of the provision to other persons or circumstances. 2-28-07 -19- (k) Liberal Construction. Any general rule of construction to the contrary notwithstanding, 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, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. (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 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 Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 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. IN WITNESS WHEREOF, Grantor and Grantee have entered into this Conservation Easement the day and year first above written and have agreed to be bound by the terms and provisions hereof. AUTHORITY The individuals executing this Conservation Easement and the instruments referenced in it on behalf of Grantor and Grantee each represent and warrant that they have the legal power, right and actual authority to bind them to the terms and conditions of this Conservation Easement. GRANTOR FENTON RACEWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY By: H.G. FENTON COMPANY, A CALIFORNIA CORPORATION, ITS MANAGER **By: (sign here) Robert Gottlieb Chief Financial Officer I Michasl Neal, President 2-2S-07 -20- **By: (sign here) Robert Gottleib, CFO APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Jane Mobaldi Assistant City Attorney 2-23-07 -21- STATE OF CALIFORNIA COUNTY OFfgg^ o.<^ } SS. On rv^.-e>^ l*. aoo"? before me, -u Poiav:^ personally appeared personally known to me (of-proved to me on the basis of satisfactory ovidcnec) to the person(s) whose name(s) -b/are subscribed to the within instrument and acknowledged to me that •he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.r -- IX^SSS. VICXI6. WAilACE tWITNESS my hand and official seal. «JCgfo!Ba Commteion » I?O?IM | / , illiS? Notov "*»«' Cowointa \o- * \\ " * • „, " \*3&& tanD»«soCounty ? Signature U .x^> A^A, ^-. /^.-JLJU-^j*. ^B^*^_ -- - STATE OF CALIFORNIA COUNTY OF' } SS. On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature 2-28-07 -22- EXHIBIT "A" Legal Description (Attached hereto) Exhibit "A FEBRUARY 8, 2005 J.N. 981012 PAGE 1 OF 1 EXHIBIT 'A' LEGAL DESCRIPTION PARCEL 'A' LOT 26 OF CARLSBAD TRACT NO. 98-10, ACCORDING TO MAP THEREOF NO. 15013, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MAY 3, 2005 AS'FILE NO. 2005-0371022 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THE PARCEL DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 26, SAID POINT BEING ON A 1937-FOOT RADIUS CURVE, CONCAVE WESTERLY, THE RADIAL LINE TO. SAID POINT BEARS NORTH 87°19'02" EAST; THENCE, SOUTHERLY ALONG THE EAST LINE OF SAID LOT, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2°24'30" A DISTANCE" OF 81.41 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID EAST LINE, ALONG THE ARC OF SAID 1937-FOOT RADIUS' CURVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 2"11'20" A DISTANCE OF 74.00 FEET; THENCE, LEAVING SAID EAST LINE, NORTH 89°10'48" WEST 53.12 FEET; THENCE NORTH 00°49'12" EAST 74.00 FEET; THENCE SOUTH 89°10'48" EAST 53.12 FEET TO THE TRUE POINT OF BEGINNING. O:\Lagal_Descriptioti3\981012\Lot 25 Parcel A.lgl.do'c FEBRUARY 9, 2005 J.N. 981012 PAGE 1 OF 7 EXHIBIT 'A' LEGAL DESCRIPTION PARCEL XB' LOT 27 OF CARLSBAD TRACT NO. 98-10, ACCORDING TO MAP THEREOF NO. 15013, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MAY 3, 2005 AS"FILE NO.. 2005-0371022 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THE PARCELS DESCRIBED AS FOLLOWS: PARCEL 'B-l' BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 27, SAID POINT BEING ON A 2063-FOOT RADIUS CURVE, CONCAVE WESTERLY, THE RADIAL TO SAID POINT BEARS NORTH 87°29'47" EAST; THENCE SOUTH ALONG THE WEST LINE OF SAID LOT 27, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3°45'13" A DISTANCE OF 135.16 FEET TO THE: TRUE POINT OF BEGINNING; THENCE, LEAVING SAID WEST LINE, SOUTH 87°48'21" EAST 75.81 FEET; THENCE SOUTH 12°37'48" WEST 69.14 FEET; THENCE NORTH 87°48'21" WEST 63.29 FEET TO POINT 'A' , SAID POINT ON THE WEST LINE OF SAID LOT 27, SAID POINT ALSO BEING THE BEGINNING OF A NON-TANGENT 2063-FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 86°51'41" EAST; THENCE NORTHERLY ALONG SAID WEST LINE, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1°53'19" A DISTANCE OF 68.00 FEET TO THE TRUE POINT OF BEGINNING. PARCEL xB-2' BEGINNING AT POINT 'A' AS DESCRIBED IN PARCEL XB-1', SAID POINT BEING ON A 2063-FOOT RADIUS CURVE CONCAVE WESTERLY, THE RADIAL LINE TO SAID POINT BEARS SOUTH 86°51'41" EAST; THENCE, SOUTHERLY ALONG THE WEST LINE OF SAID LOT, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 6°29'20" A DISTANCE OF 233.64 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE, SOUTH 66°33'22" EAST 268.47 FEET; THENCE SOUTH 23°41'05" EAST 154.58 FEET; THENCE NORTH 24°31'53" EAST 14.87 FEET; THENCE SOUTH 65°28'07" EAST 34.00 FEET; THENCE SOUTH 24°31'53" WEST 45.25 FEBRUARY 9, 2005 J.N. 981012 PAGE 2 OF 7 FEET; THENCE SOUTH 23°41'05" EAST 108.43 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 27; THENCE ALONG SAID SOUTH LINE NORTH 60°50'59" WEST 201.63 FEET TO THE BEGINNING OF A 706-FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG SAID SOUTH LINE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 11°54'54" A DISTANCE OF 146.82 FEET; THENCE ALONG SAID SOUTH LINE NORTH 72°45'53" WEST 68.15 FEET TO THE BEGINNING OF A 25-FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE ALONG SAID LINE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 82°23'32" A DISTANCE OF 35.95 FEET TO THE BEGINNING OF A COMPOUND 2063-FOOT RADIUS --CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG SAID WEST LINE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5°11'07" A DISTANCE OF 186.70 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-3' BEGINNING AT THE NORTHWEST.CORNER OF SAID LOT ,27; THENCE, ALONG THE NORTH LINE OF SAID LOT 27, SOUTH 89°45'15":'EAST 103.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID NORTH LINE, SOUTH 89°45'15" EAST 32.34 FEET; THENCE, LEAVING SAID NORTH LINE, SOUTH 51°33'31" EAST 106.24 FEET; THENCE NORTH 81°24'09" EAST 159.09 FEET TO THE BEGINNING OF A 1010-FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8°49'20" A .DISTANCE OF 155.52 FEET; THENCE SOUTH 89°46'31" EAST 167.26 FEET; THENCE SOUTH 87°48'46" EAST 496.27 FEET; THENCE NORTH 49°32'03" EAST 70.49 FEET TO A POINT ON A NORTHERLY LINE OF SAID LOT 27; THENCE ALONG SAID LINE SOUTH 89°45'15" EAST 30.66 FEET; THENCE LEAVING SAID LINE SOUTH 49°32'03" WEST 91.93 FEET; THENCE SOUTH 44°28'02" EAST 331.80 FEET; THENCE SOUTH 63°47'16" EAST 350.75 FEET TO THE BEGINNING OF A 515-FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8°45'07" A DISTANCE OF- 78.67 FEET; THENCE, NON-TANGENT TO SAID CURVE, NORTH 36°58'31" EAST 91.02 FEET; THENCE NORTH 68°26'23" EAST 156.25 FEET; THENCE SOUTH 73°05'46" EAST 191.04 FEET TO A POINT ON THE NORTH LINE OF LOT 17 OF SAID MAP 15013; THENCE, ALONG SAID NORTH LINE, NORTH 89°54'52" WEST 32.15 FEET TO THE NORTHWEST CORNER OF SAID LOT 17; THENCE, ALONG THE WEST LINE OF SAID LOT 17, SOUTH 33°01'29" EAST 28.27 FEET; THENCE, LEAVING SAID WEST LINE, NORTH 73°05'46" WEST 121.20 FEET; THENCE SOUTH 07°55'57" WEST 26.42 FEET; THENCE SOUTH 35°57'53" WEST 102.95 FEET; THENCE NORTH 84°49'56" WEST FEBRUARY 9, 2005 J.N. 981012 PAGE 3 OF 7 87.00 FEET; THENCE NORTH 41°09'15" WEST 70.22 FEET; THENCE SOUTH 36°58'31" WEST 23.87 FEET TO THE BEGINNING OF A 22-FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 115°33'53" A DISTANCE OF 44.37 FEET TO THE BEGINNING OF A COMPOUND 518-FOOT RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 11°24'38" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2°21'07" A DISTANCE OF 21.26 FEET; THENCE NON-TANGENT TO SAID CURVE SOUTH 09°16'47" WEST 17-00 FEET TO THE BEGINNING OF A NON-TANGENT 535-FOOT RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 09°03'56" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 17°08'48" A DISTANCE OF 160.11 FEET; THENCE NORTH 63°47'16" WEST 354.15 FEET; -'THENCE NORTH 44°28'02" WEST 346.90 FEET; THENCE NORTH 87°48'46" WEST 488.57 FEET; THENCE NORTH 89°46'31" WEST 166.92 FEET TO THE BEGINNING OF A 990-FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8°49'20" A DISTANCE OF 152.44 FEET; THENCE SOUTH 81°24'09" WEST 48.44 FEET TO THE BEGINNING OF A 25-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 39.27 FEET; :THENCE SOUTH 08°35'51" EAST 20.00 FEET; THENCE SOUTH 81°24'09" WEST 20.00 FEET; THENCE NORTH 08°35'51" WEST 20.00 FEET TO THE BEGINNING OF A 25-FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF 39.27 FEET; THENCE SOUTH 81°24'09" WEST 49.35 FEET; THENCE' NORTH 51°33'31" WEST 140.36 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-4' BEGINNING AT THE NORTHEAST CORNER OF LOT 23 • OF SAID MAP 15013; THENCE, ALONG THE NORTH LINE OF SAID LOT 23, NORTH 35°30'53" WEST 67.30 FEET; THENCE NORTH 41°57'02" WEST 79.40 FEET TO THE BEGINNING OF A 60-FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF' 105°47'21" A DISTANCE OF 110.78 FEET; THENCE, LEAVING SAID LOT 23 NON-TANGENT TO SAID CURVE, NORTH 43°03'09" WEST 79.63 FEET; THENCE NORTH 07°51'55" WEST 43.27 FEET; THENCE NORTH 32°35'20" EAST 101.43 FEET; THENCE NORTH 77°41'37" EAST 76.14 FEET; THENCE SOUTH 72°18'08" EAST 65.44 FEET; THENCE SOUTH 32°10'47" EAST 81.63 FEET; THENCE SOUTH 15°59'53" WEST 52.14 FEET; THENCE SOUTH FEBRUARY 9, 2005 J.N. 981012 PAGE 4 OF 7 44°55'51" WEST 30.03 FEET; THENCE SOUTH 25°41'48" EAST 127.98 FEET; THENCE SOUTH 19°57'10" EAST 35.45 FEET TO A POINT ON THE NORTH LINE OF LOT 22 OF SAID MAP 15013; THENCE, ALONG SAID NORTH LINE, NORTH 47°53'36" WEST 1.01 FEET; THENCE SOUTH 40°30'27" WEST 12.00 FEET; THENCE NORTH 49°29'33" WEST 13.80 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-5' BEGINNING AT THE NORTHWEST CORNER OF LOT 18 OF SAID MAP 15013; THENCE, ALONG THE NORTH LINE OF SAID LOT 18, SOUTH 83°29'18" WEST 18.62 FEET; THENCE SOUTH 01°22'35" EAST 1.21 FEET; THENCE, LEAVING SAID NORTH LINE, SOUTH 80°20''34" WEST 85.93 FEET; THENCE NORTH 09°39'26" WEST 20.00 FEET; THENCE NORTH 80°20'34" EAST 100.68 FEET TO A POINT ON THE WEST LINE OF LOT 17 OF SAID MAP 15013; THENCE, ALONG SAID WEST LINE, SOUTH 33°01'29" EAST 11-. 43 FEET; THENCE SOUTH 06°30'42" EAST 9.35 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-6' BEGINNING AT THE NORTHWEST CORNER OF LOT 16 OF SAID MAP 15013; THENCE, ALONG THE NORTH LINE OF SAID LOT 16, SOUTH 89°54'52" EAST 23.59 FEET TO THE TRUE POINT OF BEGINNING; THENCE, LEAVING SAID NORTH LINE, NORTH 03°46'27" EAST 36.04 FEET; THENCE SOUTH 86°13'33" EAST 15.00 FEET; THENCE SOUTH 03°46'27" WEST 35.07 FEET TO A POINT ON SAID NORTH LINE; THENCE, ALONG SAID NORTH LINE, NORTH 89°54'52" WEST 15.03 FEET TO THE TRUE POINT OF BEGINNING. PARCEL B-7' BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 27; THENCE, ALONG THE EAST LINE OF SAID LOT 27, SOUTH 31°40'08" EAST 19.16 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID EAST LINE, SOUTH 31°40'08" EAST 118.61 FEET TO POINT *B'; .THENCE, LEAVING SAID EAST LINE, NORTH 82°54'45" WEST 144.43 FEET; THENCE NORTH 07°05'15" EAST 12.00 FEET TO THE BEGINNING OF A NON- TANGENT 35-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, SAID LINE BEING RADIAL TO SAID CURVE; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF FEBRUARY 9, 2005 J.N. 981012 PAGE 5 OF 7 54.98 FEET TO THE BEGINNING OF A REVERSE 47-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY A RADIAL LINE TO SAID POINT BEARS NORTH 82°54'45" WEST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 75°26'26" A DISTANCE OF 61.88 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-8' BEGINNING AT POINT 'Bf AS DESCRIBED IN PARCEL 'B-7'; THENCE, ALONG THE EAST LINE OF SAID LOT 27, SOUTH 31°40'08" EAST 128.39 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID EAST LINE, SOUTH 31°40'08" .EAST 116.41 FEET; THENCE, LEAVING SAID EAST LINE, SOUTH 58°19;'52" WEST 67.68 FEET; THENCE SOUTH 69°53'53" WEST 16.00 FEET; THENCE NORTH 20°06'07" WEST 22.00 FEET TO THE BEGINNING OF A 23-FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60°47'26" A DISTANCE OF 24.40 FEET; THENCE, NON-TANGENT TO SAID CURVE, SOUTH 75°02'13" WEST 85.36 FEET; THENCE SOUTH 28°21'55" EAST 90.14 FEET; THENCE SOUTH 64°33'00" WEST 161.75 FEET; THENCE NORTH 32°13'05" WEST 39.80 FEET; THENCE NORTH 04°24'09" WEST 80.48 FEET; THENCE -SOUTH 75°02'13" WEST 10.17 FEET; THENCE SOUTH 75°02'13" WEST 69:.73 FEET TO THE BEGINNING OF A 20-FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 106°42'21" A DISTANCE OF 37.25 FEET TO A POINT ON THE EAST LINE OF LOT 16 OF SAID MAP 15013; THENCE, ALONG SAID EAST LINE NON-TANGENT TO SAID CURVE, NORTH 31°40'08" WEST 46.64 FEET TO THE NORTHEAST CORNER OF SAID LOT 16; THENCE, ALONG THE NORTH LINE OF SAID LOT 16, NORTH 89°54'52" WEST 4.15 FEET; THENCE, LEAVING SAID NORTH LINE, NORTH 75°02'13" EAST 123.04 FEET; THENCE NORTH 30°44'18" WEST 27.70 FEET; THENCE NORTH 59°15'42" EAST 20.01 FEET; THENCE SOUTH 30°44'18" EAST 33.35 FEET; THENCE NORTH 75°02'13" EAST 59.63 FEET; THENCE NORTH 14°42'33" WEST 45.97 FEET; THENCE NORTH 75°17'27" EAST 32.34 FEET; THENCE SOUTH 28°21'55" EAST 47.11 FEET; THENCE NORTH 75°02'13" EAST 72.42 FEET TO THE BEGINNING OF A NON-TANGENT 23- FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 39°02'01" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 83°27'52" A DISTANCE OF 33.50 FEET; THENCE NORTH 32°29'53" WEST 22.00 FEET; THENCE NORTH 57°30'07" EAST 16.00 FEET; THENCE NORTH 58°19'52" EAST 61.93 FEET TO THE TRUE POINT OF BEGINNING. FEBRUARY 9, 2005 J.N. 981012 PAGE 6 OF 7 PARCEL 'B-9' BEGINNING AT THE SOUTHEAST CORNER OF LOT 16 OF SAID MAP 15013; THENCE, ALONG THE EAST LINE OF SAID LOT 16, NORTH 31°40'08" WEST 35.38 FEET; THENCE, LEAVING SAID EAST LINE, NORTH 66°35'57" EAST 25.60 FEET; THENCE SOUTH 23°24'03" EAST 44.07 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 27, SAID POINT BEING DESIGNATED AS POINT "C"; THENCE, ALONG SAID SOUTH LINE, NORTH 89°33'33" WEST 22.42 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 'B-10' BEGINNING AT POINT XC' AS DESCRIBED IN PARCEL xB-9'; THENCE, ALONG THE SOUTH LINE OF SAID LOT 27, SOUTH 89°33'33" EAST 123.15 FEET TO THE BEGINNING OF A 634-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE, CONTINUING ALONG SAID SOUTH LINE, ALONG THE ARC. OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2°59'00" A DISTANCE OF 33.01 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE NORTH 04°48'09" WEST 20'. 14 FEET; THENCE NORTH 55°48'07" EAST 57.39 FEET; THENCE SOUTH 04°48'09" EAST 48.30 FEET "TO POINT XD', BEING A POINT ON SAID SOUTH LINE, THE BEGINNING OF A NON-TANGENT 634-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 07°03'45" EAST; THENCE WESTERLY ALONG SAID SOUTHERLY LINE, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4°31'12" A DISTANCE OF 50.02 FEET TO THE TRUE POINT OF BEGINNING. PARCEL XB-11' BEGINNING AT POINT XD' AS DESCRIBED IN PARCEL %B-10'; THENCE, ALONG THE SOUTH LINE OF SAID LOT 27, ALONG THE ARC OF SAID 634- FOOT ' RADIUS CURVE THROUGH A CENTRAL ANGLE OF 8°07'59" A DISTANCE OF 89.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE, LEAVING SAID SOUTH LINE, NORTH 07°36'28" WEST 57.72 FEET TO THE BEGINNING OF A 32-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 120°24'55" A DISTANCE OF 67.25 FEET; THENCE SOUTH 51°58'37" WEST 27.60 FEET; THENCE NORTH 38°01'23" WEST 16.00 FEET; THENCE NORTH 51°58'37" EAST 113.37 FEET; THENCE SOUTH 38°01'23" EAST 16.00 FEET; THENCE SOUTH 51°58'37" WEST 3.98 FEET TO THE BEGINNING OF A 32-FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A FEBRUARY 9, 2005 J.N. 981012 PAGE 7 OF 7 CENTRAL ANGLE OF 76°30'09" A DISTANCE OF. 42.73 FEET; THENCE SOUTH 24°31'32" EAST 88.23 FEET TO A POINT ON SAID SOUTH LINE, THE BEGINNING OF A NON-TANGENT 634-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 18°16'"l6" EAST; THENCE WESTERLY ALONG SAID SOUTH LINE, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3°04'33" A DISTANCE OF 34.04 FEET TO THE TRUE POINT OF BEGINNING. O:\Legal_Descriptions\981012\Lot 27 Parcel B.lgl.doc FEBRUARY 9, 2005 J.N. 981012 PAGE 1 OF 2 EXHIBIT XA' LEGAL DESCRIPTION PARCEL 'C' LOT 28 OF CARLSBAD TRACT NO. 98-10, ACCORDING TO MAP THEREOF NO. 15013, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MAY 3, 2005 AS -FILE NO. 2005-0371022 OF OFFICIAL RECORDS. EXCEPTING 'THEREFROM THE PARCELS DESCRIBED AS FOLLOWS: PARCEL 'C-l' BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 28; THENCE, ALONG THE NORTH LINE OF SAID LOT, SOUTH 89°33'33" EAST 22.83 FEET TO POINT 'E'; THENCE, LEAVING SAID NORTH LINE, SOUTH 28°22'10" EAST 58.74 FEET; THENCE SOUTH 61°37'50" WEST 20.00 FEET TO A POINT ON THE WEST LINE OF SAID LOT 28; THENCE, ALONG SAID WEST LINE, -NORTH 28°22'10" WEST 69.74 FEET TO POINT OF BEGINNING. PARCEL xC-2' BEGINNING AT POINT 'E' AS DESCRIBED IN PARCEL 'C-l'; THENCE, ALONG THE NORTH LINE OF SAID LOT 28, SOUTH 89°33'33" WEST 73.07 FEET TO THE BEGINNING OF A 706-FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE, CONTINUING ALONG SAID NORTH LINE, EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 6°57'55" A DISTANCE OF 85.83 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID NORTH LINE, ALONG THE ARC OF SAID 706-FOOT RADIUS CURVE EASTERLY THROUGH A CENTRAL ANGLE OF 5°31'15" A DISTANCE OF 68.03 FEET; THENCE, LEAVING SAID NORTH LINE NON- TANGENT TO SAID CURVE, SOUTH 09°17'05" EAST 57.00 FEET; THENCE SOUTH 76°04'39" WEST 68.22 FEET; THENCE NORTH 09°17'05" WEST 62.52 FEET TO THE TRUE POINT OF BEGINNING. FEBRUARY 9, 2005 J.N. 981012 PAGE 2 OF 2 PARCEL 'C-3' BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 28; THENCE, ALONG THE SOUTH LINE OF SAID LOT 28, NORTH 89°27'44" WEST 69.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID SOUTH LINE, NORTH 89°21'44" WEST 47.58 FEET; THENCE, LEAVING SAID SOUTH LINE, NORTH 00°37'18" WEST 47.76 FEET TO THE BEGINNING OF A 30- FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27°44'37" A DISTANCE OF 14.53 FEET; THENCE NORTH 28°21'55" WEST 213.07 FEET; THENCE NORTH 61°38'05" EAST 16.00 FEET; THENCE SOUTH 28°21'55" EAST 36.21 FEET TO THE BEGINNING OF A 30-FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE' OF 47.12 FEET; THENCE NORTH 61°38'05" EAST 30.77 -FEET TO A POINT ON THE EAST LINE OF SAID LOT 28; THENCE, ALONG SAID EAST LINE, SOUTH 28°21'55" EAST 24.00 FEET; THENCE, LEAVING SAID EAST LINE, SOUTH 61° 38'05" WEST 30-. 47 FEET TO THE BEGINNING OF A 30-FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 89°53'27" A DISTANCE OF 47.07 FEET; THENCE SOUTH 28°15'22" EAST 172.15 FEET TO THE TRUE POINT OF BEGINNING. O:\Legal_Description3\931012\Lot 23 Parcel C.lgl.doc EXHIBIT "B" Depiction of Property (Attached hereto) Exhibit "B" CJ >-aao CS© BASIS OF BEARINGS THE BASIS OF BEARINGS FOR THIS MAP IS THE SOUTHERLY LINE OF MAP No. 15250, I.E. N 89'45'58" W. LEGAL DESCRIPTION PORTIONS OF LOT 26, 27, AND 28 OF MAP No. 15013. cnr OF oc&uanc SITE CONSULT A^N T S 2710 lok«r Avenua Wast Ci^fl Engineering Suit* 100 Planning Carlabad. Callfornio 92010 Procasslng 780-931-7700 Surveying • Fox: 760-931-3830 www.odayconsuftants.coni APPLICANT: FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 EXHIBIT °B' TIMOTHY 0. L.S. 7700 CARROLL EXP. 12/31/06 SHT. / OF .6 SHT. A.P.N. 221-011-03,04,05 221-010-22 l:\9710J5\Exhibits\OpenSpace\OSConser/e_Plal..dwg Sep 30, 2005 1l:J3am Xrsf* 9733VIC; 9735AMA? (pO EASEMENT TABLE No. GO 111LH GO H 9on 'OH **|TT 15 *03 DHmi 19 22 H PURPOSE AERIAL & UNDERGROUND PUBLIC UTILITIES INGRESS, EGRESS, AND UTILITY AERIAL & UNDERGROUND PUBUC UTILITIES AERIAL & UNDERGROUND PUBLIC UTILITIES AERIAL & UNDERGROUND PUBUC UTILITIES AERIAL & UNDERGROUND PUBUC UTIUTIES ROAD & PUBUC UTIUTY TOGETHER WITH RIGHT TO EXTEND DRAINAGE STRUCTURES AND SLOPES BEYOND RIGHT-OF-WAY SEWER UFT STATION AND SEWER PtPEUNES SEWER PIPEUNES STORM DRAIN PIPES AND LINES AERIAL & UNDERGROUND PUBUC UTIUTIES SLOPE AND CONSTRUCTION SEWER PIPEUNES & ACCESS ROADS PUBUC WATERUNE SEWER ACCESS DRAINAGE EASEMENT * ^/E- EXACT LOCATION OF EASEMENT INDETERMINA) *** NOTE: EASEMENT TO BE ABANDONED BY SEPARATL EASEMENTS PER PRELIMINARY TITLE BY FIRST AMERICAN TITLE INSURANCE X^^>X^cra^ oto+7 1ST ^f 1 \ MO T7OOCONSULT A>N T. S V , \ m' 7°° 2710 Loker Avwus Weal Clvl EnqinMring. \ _\ / Suits 100 Planning \ 0>\. ,/.Carlsbad. California 92010' Procwsing \ <jr>-N^^ ^X^X< 780-931-7700 5un»^n, N/COC O»l \£U*"Fox 750-9 31 -3830 V^MF CAUV^X www.odoyconsultants.com ^*"~ -^ OWNER S.D.G.&E. IDA DAWSON S.D.G.AE. S.D.G.&E. S.D.G.&E. S.D.G.&E. JANICE LEE COLUNS, ETAL CITY OF VISTA CITY PF VISTA CITY OF VISTA S.D.G.&E. CITY OF CARLSBAD CITY OF VISTA C.M.W.D. CITY OF VISTA CITY OF CARLSBAD Tf: DC REf COi 1 /*$y APPLICANT: EXHIBIT flSTVTZW RACEWAY LLC 7588 METROPOLITAN DRIVE S4/V DIEGO, CA 92108 TIMOTHY 0. CARROLL PH. (619) 400-0134 Ls. 7700 EXP. 12/31/06 REFERENCE BOOK 1085, PAGE 71 BOOK 7586, PAGE 133 FILE/PAGE No. 156597 FILE/PAGE No. 156617 FILE/PAGE No. 39752 FILE/PAGE No. 39756 FILE/PAGE No. 78-076054 FILE/PAGE No. 86-441910 FILE/PAGE No. 86-441919 FILE/PAGE No. 87-609285 FILE/PAGE No. 89-409482 FILE/PAGE No. 1992-0211311 .FILE/PAGE No. 2004-1160412 FILE/PAGE No. 2004-1160413 FILE/PAGE No. 2004-0785746 DOC. 2004-01160413 MAP No.15013 ER SAID INSTRUMENT. APPROXIMATE LOCATION SHOWN. 1CUMENT AFTER SEWER MAIN RELOCATION COMPLETE. W DATED OCTOBER 7, 2004 UPANY, ORDER NO. DW-985095. \ / "B"SHT. 2 OF 6 SHT. A.P.N. 221-011-03,04,05 221-010-22 l:\971033\£xhibit3\OpenSpacs\OSCons3f«_PI(it.d'«3 Sea JO. 2QG5 11:J3am X-sfs: 9735VIC; 9735AMA? PARCB. A PM 15493 'CITY OF VISTA PUBLIC TRAIL /, EASEMENT I/ " PER MAP 15013 SCALE: 1" = 200' ar, 99-os CONSULT A^N_T S CIvH Etig Planning 2710 Lokar Avgnua Wnt Suit! 100 Codibud, Cdifomiu 92010 750-931-7700 Fax: 760-931-3630 SHT. J OF 6 SHT.APPLICANT:EXHIBIT "B FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-01J4 A.P.N.22 f-011-03,04,05 221-010-22 TIMOTHY 0. CARROLL LS. 7700 EXP. 12/31/06 l:\9710j5\txhibits\Op3nSpacs\CSConserve Ploi.dwg Sap JO, 2005 11:33am Xrefs: 9735V1C; 9735AMAP PARC£L A OP PM 16493 OPEN SPACS CITY OF VJSTA PRIVATE . STORM DRAIN EASEMENT STORM DRAIN 1 I EASEMENT , -I , PER MAP I PRIVATE STORM DRAIN EASEMENT DRAINAGE EASEMENT 0 200' SCALE: 1" = 200' CONSULT A^N T S 2710 Inker Avmui Wtit Suits 100California 92010 760-931-7700 Fax 750-931-3630 «*«*w.odaycon 9ultants.com SHT. 4 OF 6 SHTEXHIBIT "B"APPLICANT: FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 A.P.N. 221-011-03,04,05 221-010-22 TIMOTHY 0. CARROLL LS. 7700 EXP.12/31/06 l:\9710J5\Exhibits\QpanSpaca\OSCansarva_Plot.dwg Sep 30, 2005 11:33am Xrafs: 9735V1C; 9735AMAP PARCSL O PM 16493CJTY OF VISTA PRIVATE-^ STORM DRAIN EASEMENT STORM-DRAIN EASEMENT L &iff--OS 0 200' SCALE: 1" = 200' CONSULT A^N T S CJ vH En gin eefing Planning Pracsssing Survsying Avanu« Wast Suits TOO Carlsbad. California 92010 730-931-7700 Fas 780-931-3630 •<•ww.odayeonsultants.com SHT. 5 OF 6 SHTAPPLICANT: FENTON RACEV/AY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 4-00-0134 A.P.N. 221-011-03,04,05 221-010-22 TIMOTHY 0. CARROLL LS. 7700 EXP. 12/31/06 l:\97t035\£xhibits\OpenSpoc3\OSConssrv9_P!at.dwg Sap 30, 2005 11:i3om Xrsis: 9735VIC; 9735AMA? CO C » C.o O4 © \•EL C 15250 PAHCSL 8 I PARCEL APM 15250 &$& PM -J525Q Q*Q^ CONSULT X^N T S Civil Enginooring PlanningProcessing Surv«ying 2710 Loksr Avenut Wait Suits 100Carlsbad. California 92010 750-331-7700 Fox: 760-931-3830 www.odaycansultants.com 200'3 SCALE: 1" = 200' APPLICANT:EXHIBIT "B" RACEWAY LIC 7588 METROPOLITAN DRIVE SAN- DIEGO, CA 92108 PH. (619) 400-0134 TIMOTHY 0. CARROLL SHT. 6 OF 6 SHT. A.P.N. 221-011-03,04,05 221-010-22 I: \971Q35\Exhibits\OB3nSpacs\OSConserveJMotdwg 5qs 30. 2005 11:33am Xrsfe 9735V1C; 9735A.VMP EXHIBIT "C" Mitigation Plan (Attached hereto) Exhibit "C FINAL RIPARIAN MITIGATION PLAN September 10, 2004 Prepared for: H.G. FENTON COMPANY 7588 Metropolitan Drive San Diego, California 921084401 Pnparsd by : HELIX ENVIRONMENTS PLANNING, LNC. 8100 La- Mesa Boulevard, Suits 150 La Mesa, California 91941-6476 TABLE OF CONTENTS (coat.) LIST OF FIGURES Number Tide 1 Regional Location Map 2 Project Vicinity 3 Final Wetland Restoration Plan. Follows Page ..2 ,.2 .6 Number 1 2 3 4 5 6 7 8 9 10 11 tie LIST OF TABLES Potential Impacts to ACOE Jurisdictional Areas Potential Impacts to ACOE Jurisdictional Habitats. Potential Impacts to CDFG Jurisdictional Areas Potential Impacts to CDFG Jurisdictional Habicats. Impacts/Mitigation Southern Willow Scrub Plant Palette Mule Fat-Scrub Plant Palecte Freshwater Marsh Seed Mix Maintenance Schedule Success Criteria Milestones Maintenance Monitoring Schedule ...2 ...2 ...2 ...2 ...4 .10 .10 .11 .15 .15 .17 Carlsbad Raceway Riparian Mitigation Plan TABLE OF CONTENTS Section Tide Page SUMMARY 1 i. PROJECT DESCRIPTION 1 A. Project: Location 1 B. Project Summary :.. „ 1 C Responsible Party 1 D. Jurisdictkmal Areas to be Filled by Habitat Type 1 E. Function and Value of Direcdy Impacted Jurisdictioaal Areas 3 1. Type of Jurisdictioaal Areas 3 2. Function and Value of Riparian and Wetland Habitats 3 II. GOAL OF MITIGATION : .'... 4 A. Type(s) of Created Habicat 4 B. Function and Value of Created Habitat...; ',.'. 4 C. Time Lapse 5 ~D. Estimated Costs ,...: , 5 III. FINAL SUCCESS CRITERIA : 5 A. Target Function and Value 5 B. Target Hydrological Regime 5 C. Target Created Jurisdictional Acreage 6 IV. PROPOSED MITIGATION SITS 6 A. Location and Size of Mitigation Area » 6 B. Ownership Status 6 C. Existing Function and Value of Mitigation Area .....6 D. Present and Proposed Uses of Mitigation Area .' 6 E. Jurisdictional Delineation , 6 F. Present and Proposed Uses of All Adjacent Areas ; 7 V. IMPLEMENTATION PLAN .... 7 A. Rationale for Expecting Implementation Success -. 7 B. Responsible'Parties 7 1. Project Proponent 7 2. Landscape Architect : 7 3- Restoration Specialist 7 4. Contractors) ; 8 C. Schedule I : 8 TABLE OF CONTENTS (COQC.) Section Title ' Page V. IMPLEMENTATION PLAN (COQC.) D. Sice Preparation . 8 1. Grading , 8 2. Fencing 9 E. Planting Plan ...: ; ........9 F. Irrigation Plan 11 G. As-built Conditions .• •. 12 1. As-builc Submitcal 12 2. Posc-inscaliacion Report... 12 VI. MAINTENANCE DURING MONITORING PERIOD :.. 13 A. Maintenance Activities 13 1. General Maintenance! 13 2. Fencing 13 3- Weed Control 13 4. Other Pests .-.'. 14 5. Fertilization •. 14 6. Pruning 14 B. Responsible Parties 14 C. Schedule.... 14 VII. MONITORING PLAN - 15 A. Success Criteria and Technical Monitoring Methods 16 1. Technical Monitoring •. 16 . 2. Annual Reports 17 B. Maintenance Monitoring ..' '. 18 VIII. COMPLETION OF MITIGATION 18 A. Notification of Completion , 18 B. ACOE and CDFG Confirmation 18 IX. CONTINGENCY MEASURES 18 A. Initiating Procedures 18 B. Alternative Locations for Contingency Mitigation 19 C. Funding Mechanism 19 D. Responsible Parties , 19 X. REFERENCES CITED 20 CONCEPTUAL COASTAL SAGE SCRUB MITIGATION PLAN October 1, 2002 Prepared for: RACEWAY PROPERTIES, LLC 12672 Caminito Radiente San Diego, California 92130 Prepared by: HELIX ENVIRONMENTAL PLANNING, INC. 8100 La Mesa Bo.uievard, Suite 150 La Mesa, California 91941-6476 7 Carlsbad Raceway Conceptual Coastal Sage Scrub Mitigation Plan TABLE OF CONTENTS Section Title Page SUMMARY '. i;l I. PURPOSE AND GOALS OF THE MITIGATION PLAN..... 1 II. PROJECT SUMMARY 1 A. Project Location and Description < 1 B. Environmental Setting , 1 C. Mitigation Needs 2 D. Project Impacts ."..' 2 IH. ESSENTIAL PARTICIPANTS 2 A. Project Proponent ;...V2 B. Restoration Specialist 2 C. Landscape Architect , 3 D. Landscape Contractor 3 IV. MITIGATION DESIGN CONCEPTS 3 V. MITIGATION PLAN IMPLEMENTATION GUIDELINES 3 A. Timing 3 B. Protection of Habitat Outside the Restoration Areas During Project Construction 4 C. Protection of Restored Areas 4 VI. MITIGATION PLAN DETAILS 4 A. Site Preparation 4 B. Planting Plan : 5 1. Seed Specifications : 5 2. Container Specifications 6 C. Substitutions •. 7 D. Irrigation ;. 7 VII. MAINTENANCE DURING MONITORING PERIOD 7 A. Maintenance Activities 7 1. General Maintenance 8 2. Weed Control 8 3. Other Pests 8 TABLE OF CONTENTS (coat.) Section Tide VII. MAINTENANCE DURING MONITORING PERIOD (coac.) A. Maintenance Activities (cone.) . t 4. Irrigation 8 5. Fencing 9 6. Fertilization ..: 9 7. Pruning.... , 9 B. Responsible Parties 9 C. Schedule 9 VIII. AS-BUILT SUBMITTAL... 9 IX. MONITORING PLAN ; 9 A. Maintenance Monitoring «>., 10 B. Success Criteria and Technical Monitoring Methods 10 1. Technical Monitoring 10 2. Annual Reports ...12 X. COMPLETION OF MITIGATION 12 A. Notification of Completion :.. 12 B. Service Confirmation 12 XI. CONTINGENCY MEASURES ...12 A. Initiating Procedures 12 B. Responsible Parties 12 XII. REFERENCE CITED 12 LIST OF FIGURES Follows Number Title . Page .1 Regional Location Map 2 2 Project Vicinity 2 3 Conceptual Diegan Coastal Sage Scrub Restoration Plan 4 TABLE OF CONTENTS (cone.) LIST OF TABLES Number Title Page 1 Coastal Sage Scrub Seed Mix 6 2 Coastal Sage Scrub Container Scock 7 3 Maintenance Monitoring Schedule 10 4 Success Criteria Milestones 11 EXHIBIT "D" Preliminary Title Report (Attached hereto) Exhibit "D" 15 CHICAGO TITLE COMPANY PRELIMINARY REPORT SECOND AMENDED Dated as of: September 16,2005 at 7:30 AM Reference: CARLSBAD RACEWAY, LOTS 26,27,28 Order No.: 53010069 - U13 CHICAGO TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception in Schedule 3 or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage of said. Policy or Policies are set forth in the attached list. Copies of the Policy forms are available upon request Please read the exceptions shown or referred to in Schedule B and the exceptions and exclusions set forth in the attached list of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects and encumbrances affecting title to the land. THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED The form of policy of title insurance contemplated by this report is: CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY Visit Us On The Web: westemdivfsion.ctt.com Title Department: CHICAGO TITLE COMPANY 2365 NORTHSIDE DRIVE #500 SAN DIEGO, CA 92108 (619)521-3542 fax: (619)521-3605 Michael Brady TITLE OFFICER Pf=? -OS/05/99b« "Tip SCHEDULE A Order No: 53010069 U13 YourRef: CARLSBAD RACEWAY, LOTS 25,27,28 1. The estate or interest in the land hereinafter described or referred to covered by this report is: A FEE 2. Title to said estate or interest at the date hereof is vested in: FENTON RACEWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 3. The land referred to in this report is situated in the State of California, County of SAN DIEGO and is described as follows: LOTS 25, 27 AND 28 OF CARLSBAD TRACT NO. 93-10 CARLSBAD RACEWAY, ACCORDING TO MAP THEREOF NO. 15013, IN THE CITY OF CARLSBAD, COtJNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED IN THE OFFICE OF THE COTJNTY RECORDER OF SAN DIEGO COUNTY ON MAY 3, 2005. PREA -10/31/9TOI SCHEDULE B Page 1 Order No: 53010069 U13 YourRef: CARLSBAD RACEWAY, LOTS 26,27,28 At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in the policy form designated on the face page of this Report would be as follows: A 1. PROPERTY TAXES, INCLUDING ANY ASSESSMENTS COLLECTED WITH TAXES, TO BE LEVIED FOR THE FISCAL YEAR 2005-200S THAT ARE A LIEN NOT YET DUE. s 2. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA. 3L 3. INTENTIONALLY OMITTED. 4. INTENTIONALLY OMITTED. 5. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: PURPOSE: RECORDED: AFFECTS: SAN DIEGO GAS & ELECTRIC COMPANY PUBLIC UTILITIES, INGRESS AND EGRESS OCTOBER 11, 1940 IN BOOK 1085, PAGE 71, OFFICIAL RECORDS LOTS 27 AND 28 6. INTENTIONALLY OMITTED. 7. INTENTIONALLY OMITTED-. 8. INTENTIONALLY OMITTED. 9. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO A3 SET FORTH IN A DOCUMENT GRANTED TO: PURPOSE: RECORDED: SAN DIEGO GAS & ELECTRIC. COMPANY PUBLIC UTILITIES, INGRESS AND EGRESS AUGUST 27, 19S4 AS FILE NO. 15SS20, OFFICIAL RECORDS or AFFECTS LOT 28 30 10. INTENTIONALLY OMITTED. a? 11. INTENTIONALLY OMITTED. PHE3 -10/3t/3Tbk SCHEDULE BPa&e 2 (coatinued) Order No: 53010069 U13 YourRef: CARLSBAD RACEWAY, LOTS 26,27,28 12. INTENTIONALLY OMITTED. 13. INTENTIONALLY OMITTED. 14. AN AGREEMENT, AND THE TERMS AND CONDITIONS AS CONTAINED THEREIN DATED: ' JANUARY IS, 1974 BY AND BETWEEN: RUBEL INVESTMENT COMPANY, SANDRU INVESTMENT COMPANY, BELSAN INVESTMENT COMPANY AND THE CITY OF CARLSBAD RECORDED: OCTOBER 25, 1974 AS FILE NO. 74-234934 OF OFFICIAL RECORDS REGARDING: FUTURE IMPROVEMENT REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. 15 . AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: SAN DIEGO GAS & ELECTRIC COMPANY PURPOSE: PUBLIC UTILITIES, INGRESS AND EGRESS RECORDED: AUGUST 16, 1977 AS FILE NO. 77-333570, OFFICIAL RECORDS THE EXACT LOCATION AND EXTENT OF SAID EASEMENT IS NOT DISCLOSED OF RECORD. 15. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: JANICE LEE COLLINS, FORMERLY JANICE L. THIBODO PURPOSE: ROAD AND PUBLIC UTILITY PURPOSES AND INCIDENTAL PURPOSES RECORDED: FEBRUARY 27, 1978 AS FILE NO. 78-076054 AND AS FILE NO. 78-075055, OFFICIAL RECORDS SAID INSTRUMENT ADDITIONALLY CONTAINS THE PRIVILEGE AND RIGHT TO EXTEND DRAINAGE STRUCTURES AND EXCAVATION AND EMBANKMENT SLOPES BEYOND THE LIMITS OF THE ABOVE DESCRIBED RIGHT OF WAY WHERE REQUIRED FOR THE CONSTRUCTION AND MAINTENANCE THEREOF. AFFECTS LOT 26 17. THE TERMS, CONDITIONS AND EASEMENTS, IF ANY, SET FORTH IN A ROAD MAINTENANCE AGREEMENT, RECORDED FEBRUARY 27, 1978 AS FILE NO. 78-076056 OF OFFICIAL RECORDS. 18. AN AGREEMENT, AND THE TERMS AND CONDITIONS AS CONTAINED THEREIN DATED: . FEBRUARY 2, 1982 SCHEDULE BPa&e 3 (continued) OrderNo: 53010069 U13 YourRef: CARLSBAD RACEWAY, LOTS 2S,2T,23 BY AND BETWEEN: SANDRU, RU3EL AND BELSAN INVESTMENT CORPORATIONS, THREE CORPORATIONS AND THE CITY OF CARLSBAD RECORDED: FEBRUARY IS, 1982 AS FILE NO. 82-041594 OF OFFICIAL RECORDS REGARDING: PAYMENT OF A PUBLIC FACILITIES FEE REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. AC 19. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: THE CITY OF VISTA PURPOSE: SEWER LIFT-STATION AND SEWER PIPS LINES, MAINS, MANHOLES, SEWER LATERAL PIPES AND PIPE LINES AND INCIDENTAL PURPOSES RECORDED: OCTOBER 2, 198S AS FILE NO. 85-441910, OFFICIAL RECORDS AFFECTS LOT 27 20. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: THE CITY OF VISTA PURPOSE;" PIPES AND SEWER PIPE LINES, MAINS, MANHOLES, SEWER LATERAL. PIPES AND PIPE LINES AND INCIDENTAL PURPOSES RECORDED: OCTOBER 2, 193S AS FILE NO. 85-441919, OFFICIAL RECORDS AF AFFECTS LOT 27 AC 21. INTENTIONALLY OMITTED. 22. AN EASEMENT FOR THE. PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: SAN DIEGO GAS & ELECTRIC COMPANY PURPOSE: POLES, WIRES, CABLES AND APPURTENANCES FOR THE TRANSMISSION AND DISTRIBUTION OF ELECTRICITY RECORDED: AUGUST 2, 1989 AS FILE NO. 89-409482, OFFICIAL RECORDS AFFECTS: LOT 26 AI 23. INTENTIONALLY OMITTED. P9=UM8C.3/23/93bi< SCHEDULE B?**e 4 (continued) OrderNo: 530100S9 U13 YourRef: CARLSBAD RACEWAY, LOTS 25,21,23 AJ 24. A PENDING ASSESSMENT FOR THE DISTRICT SHOWN BELOW. WHEN NOTICE OF THE ASSESSMENT IS RECORDED WITH THE COUNTY RECORDER THE ASSESSMENT SHALL BECOME A LIEN ON SAID LAND. DISTRICT: ASSESSMENT DISTRICT NO. 8S-1 RACEWAY BASIN DISCLOSED BY: ASSESSMENT DISTRICT DIAGRAM AMENDED RECORDED: DECEMBER 9, 1994 AS FILE NO. 1994-0705321 OF OFFICIAL RECORDS AX 25. A PENDING ASSESSMENT FOR .THE DISTRICT SHOWN BELOW. WHEN NOTICE OF THE ASSESSMENT IS RECORDED WITH THE COUNTY RECORDER THE ASSESSMENT SHALL BECOME A LIEN ON SAID LAND. DISTRICT: BOUNDARY MAP ANNEXATION NO. 02/03-03 COMMUNITY FACILITIES DISTRICT NO. 1 CITY OF CARLSBAD, COUNTY OF SAN DIEGO DISCLOSED BY: ASSESSMENT DISTRICT BOUNDARY RECORDED: MARCH 14, 2003 AS FILE NO. 2003-028932S OF OFFICIAL RECORDS ju. AMENDMENT TO THE NOTICE OF SPECIAL TAX LIEN (NOTICE OF ANNEXATION) WAS RECORDED MARCH 14, 2003 AS FILE NO. 2003-0239329 OF OFFICIAL RECORDS. m 25. A DOCUMENT ENTITLED "RECIPROCAL EASEMENT AGREEMENT", DATED JUNE S, 2003, EXECUTED BY LSOF CARLSBAD LAND L.P., A TEXAS LIMITED PARTNERSHIP AND J.E. ADAMS, INC., A CALIFORNIA CORPORATION, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED JUNE 13, 2003 AS FILE NO. 2003-0701717 OF OFFICIAL RECORDS. AS 27. A DOCUMENT ENTITLED "RECIPROCAL EASEMENT AGREEMENT", DATED JULY 23, 2003, EXECUTED BY LSOF CARLSBAD LAND L.P., A TEXAS LIMITED PARTNERSHIP AND PALOMAR FORUM ASSOCIATES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED JULY 24, 2003 AS FILE NO. 2003-0834893 OF OFFICIAL RECORDS. AO 23. NOTICE OF RESTRICTION ON REAL PROPERTY WAS RECORDED FEBRUARY 11, 2004 AS FILE NO. 2004-0109894 OF OFFICIAL RECORDS. AP REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. AQ 29. A DOCUMENT ENTITLED "NOTICE AND WAIVER CONCERNING PROXIMITY OF THE PLANNED OR EXISTING PALOMAR AIRPORT ROAD AND MELROSE DRIVE TRANSPORTATION CORRIDOR(S) COASE NO: CT 98-10", EXECUTED BY LSOF CARLSBAD LAND, L.P., A TEXAS LIMITED PARTNERSHIP AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED FEBRUARY 11, 2004 AS FILE NO. 2004-0109393 OF OFFICIAL RECORDS. PBSUMBC.3/23/93bk SCHEDULE Bp^c 5 (continued) OrderNo: 530100S9 U13 YourRef: CARLSBAD RACEWAY, LOTS 2S,27,28 AS 30. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", EXECUTED BY LSOF CARLSBAD LAND LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED MAY 27, 2004 AS FILE NO. 2004-0494021 OF OFFICIAL RECORDS . AS 31. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT GEOLOGICAL FAILURE", EXECUTED BY LSOF CARLSBAD LAND L.P., A TEXAS LIMITED PARTNERSHIP AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED MAY 27, 2004 AS FILE NO. 2004-0494124 OF OFFICIAL RECORDS . AT 32. INTENTIONALLY OMITTED. Aff 33. INTENTIONALLY OMITTED. aj 34. INTENTIONALLY OMITTED. AW 35. INTENTIONALLY OMITTED. 35. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: CITY OF VISTA PURPOSE: SEWER LINES AND INCIDENTAL PURPOSES RECORDED: DECEMBER 9, 2004 AS FILE NO. 2004-11S0412 OF OFFICIAL, RECORDS AFFECTS: LOT 27 AV 37. INTENTIONALLY OMITTED. AZ 33. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", DATED OCTOBER 19, 2004, EXECUTED BY CITY OF CARLSBAD AND FSNTON RACEWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED JANUARY 21, 2005, AS DOCUMENT NO. 2005-0054704, OFFICIAL RECORDS. aA 39. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT GEOLOGICAL FAILURE", DATED OCTOBER 19, 2004, EXECUTED BY CITY OF CARLSBAD AND FENTON RACEWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, SUBJECT TO ALL THE TERMS, PROVISIONS PP.EUM3C-3/Z3/93b* SCHEDULE BPa§e 6 (continued) Order No: 530100S9 U13 YourRef: CARLSBAD RACEWAY, LOTS 25,27,28 AND CONDITIONS THEREIN CONTAINED, RECORDED JANUARY 21, 2005, AS DOCUMENT NO. 2005-0054705, OFFICIAL RECORDS. aa 40. RIGHTS OF PARTIES IN POSSESSION OF SAID LAND. MATTERS AFFECTING THE RIGHTS OF SAID PARTIES ARE NOT SHOWN HEREIN. ac 41. MATTERS WHICH MAY BE DISCLOSED BY AN INSPECTION OR SURVEY OF SAID LAND OR BY INQUIRY OF THE PARTIES IN POSSESSION THEREOF. BK 42. A MEMORANDUM OF PURCHASE RIGHTS MADE APRIL 1, 2005, BETWEEN FENTON RACEWAY LLC, A CALIFORNIA LIMITED LIABILITY COMPANY ("SELLER") AND OPUS WEST CORPORATION, A MINNESOTA CORPORATION ("BUYER"), SUBJECT TO THE TERMS AS CONTAINED THEREIN RECORDED APRIL-4, 2005 AS FILE NO. 2005-02S9515. as 43. A DOCUMENT ENTITLED "WAIVER .AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF CT 93-10", DATED DECEMBER 2, 2004 EXECUTED BY AND'BETWEEN THE CITY OF CARLSBAD AND FENTON RACEWAY LLC, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS .THEREIN CONTAINED, RECORDED MAY 3, 2005 AS FILE NO. 2005-0371021, OFFICIAL RECORDS. ar 44. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF ACCESS TO OR FROM THE STREET OR HIGHWAY ABUTTING SAID LAND, ,'SUCH RIGHTS HAVING BEEN RELINQUISHED BY THE MAP OF SAID TRACT. AFFECTS: LOT 25, ADJACENT TO MELRO3E DRIVE/ LOT 27, ADJACENT TO MELROSE DRIVE AND LIONSHEAD AVENUE AND LOR 28, ADJACENT TO LIONSHEAD AVENUE so 45. EASEMENTS FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SHOWN OR A3 OFFERED FOR DEDICATION ON THE RECORDED MAP SHOWN BELOW. MAP NO: 15013 EASEMENT PURPOSE: OPEN SPACE AFFECTS: LOTS 2S, 27 AND 28 EASEMENT PURPOSE: PRIVATE STORM DRAIN AFFECTS: LOT 25 EASEMENT PURPOSE: STORM DRAIN AFFECTS: LOT 27 EASEMENT SCHEDULE BPa§e 7 (continued) OrderNo: 530100S9 U13 YourRef: CARLSBAD RACEWAY, LOTS 25,27,28 PURPOSE: PRIVATE DRAINAGE AFFECTS: LOT 27 EASEMENT PURPOSE: SIGHT DISTANCE CORRIDOR AFFECTS: LOT 27 av 46 . AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: SAN DIEGO GAS AND ELECTRIC COMPANY PURPOSE: PUBLIC UTILITIES, INGRESS AND EGRESS RECORDED: AUGUST 29, 2005 AS FILE NO. 2005-074119S, OFFICIAL RECORDS AFFECTS: LOT 27 aw 47. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO,AS SET FORTH IN A DOCUMENT GRANTED TO: SAN DIEGO GAS AND ELECTRIC COMPANY PURPOSE: PUBLIC UTILITIES, INGRESS AND EGRESS RECORDED: SEPTEMBER 7, 2005 AS FILE NO. 2005-0774505, OFFICIAL RECORDS AFFECTS: LOT 27 so END OF SCHEDULE B 33 NOTE NO. 1: YOUR OPEN ORDER REQUEST INDICATES THAT A LIMITED LIABILITY COMPANY WILL BE ACQUIRING, ENCUMBERING OR CONVEYING REAL PROPERTY IN YOUR TRANSACTION. UNDER THE PROVISIONS OF "THE CALIFORNIA LIMITED LIABILITY- ACT, EFFECTIVE SEPTEMBER 30, 1994" THE FOLLOWING WILL BE REQUIRED: 1. A COPY OF THE ARTICLES OF ORGANIZATION (AND ALL AMENDMENTS, IF ANY) THAT HAS BEEN FILED WITH THE SECRETARY OF STATE. 2. THE REQUIREMENT THAT THIS COMPANY BE PROVIDED WITH A COPY OF THE OPERATING AGREEMENT. THE COPY PROVIDED MUST BE CERTIFIED BY THE APPROPRIATE MANAGER OR MEMBER THAT IT IS A COPY OF THE CURRENT OPERATING AGREEMENT. 3. IF THE LIMITED LIABILITY COMPANY IS MEMBER-MANAGED THEN THIS COMPANY MUST BE PROVIDED WITH A CURRENT LIST OF THE MEMBER NAMES. FBNTON RACEWAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Sff AS EXHIBIT "E" Natural Condition Depiction (Attached hereto) Exhibit "E sws MFS LEGEND PROPERTY UHE NON-WETLANDS WATERS OF THE U.S. — WETLAND TYPES SOUTHERN WILLOW SCRUB [ FRESHWATER MARSH. [ MULEFATSCRUB. [ BASIS OF BEARINGS THE BASIS OF BEARINGS FOR THIS MAP IS THE SOUTHERL Y LINE OF PARCEL MAP No. 15250, I.E. N 89'45'58" W. LEGAL DESCRIPTION PORTIONS OF LOT 26, 27, AND 28 OF MAP No. 15013. CtlY OF OCEAMSOe :SITE CONSULT /y N T 5 Cl«9 Enqlnsoring Planning2710 Lak«r Av»nu« WratSuits 100 Cjcl30ad. California 92010 780-331-7700 Fix: 790-931-3880 www.adayconiultonts.cofn Surv«>ing PACHC OCEAN CITY OF ENCWITA3 VICINITY MAP NO SCALE APPLICANT:EXHIBIT "E' FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 TIMOTHY 0. LS. 7700 l:\97ia35\Exhibit5\Watar3US\Watnr3US_Platdwq Ssp 30, 2005 ll:J7om Xrsfa: 9735VIC; 9735AMAP; HEQ5020+; 9735AGRO CARROLL EXP. 12/31/06 SHT. / OF 6 SHT. A.P.N. 221-011-03,04,05 221-010-22 EASEMENT TABLE No. J_ T GO r<~ E H [To] * ** * 13 H 15 16 17 HH 19 22 A AWHSF xf£/P/xfZ * UNDERGROUND PUBLIC UTILITIES INGRESS, EGRESS, AND UTILITY AERIAL & UNDERGROUND PUBLIC UTILITIES AERIAL & UNDERGROUND PUBLIC UTILITIES AERIAL & UNDERGROUND PUBLIC UTILITIES AERIAL & UNDERGROUND PUBLIC UTILITIES ROAD & PUBLIC UTILITY TOGETHER WITH RIGHT TO EXTEND DRAINAGE STRUCTURES AND SLOPES BEYOND RIGHT-OF-WAY SEWER LIFT STATION AND SEWER PIPELINES SEWER PIPELINES STORM DRAIN PIPES AND LINES AERIAL & UNDERGROUND PUBLIC UTILITIES SLOPE AND CONSTRUCTION SEWER PIPELINES & ACCESS ROADS PUBLIC WATERUNE SEWER ACCESS DRAINAGE EASEMENT OWNER S.D.G.&E. IDA DAWSON S.D.G.&E. S.D.G.&E. S.D.G.&E. S.D.G.&E. JANICE LEE COLLINS, ET AL CITY OF VISTA CITY OF VISTA CITY OF VISTA S.D.G.&E. CITY OF CARLSBAD CITY OF VISTA CMW.D. CITY OF VISTA CITY OF CARLSBAD REFERENCE BOOK 1085, PAGE 71 BOOK 7586, PAGE 133 FILE/PAGE No. 156597 FILE/PAGE No. 1566 J 7 FILE/PAGE No. 39752 FILE/PAGE No. 39756 FILE/PAGE No. 78-076054 FILE/PAGE No. 86-4419 W FILE/PAGE No. 86-441919 FILE/PAGE No. 87-609285 FILE/PAGE No. 89-409482 FILE/PAGE No. 1992-0211311 FILE/PAGE No. 2004-1160412 FILE/PAGE No. 2004-1160413 FILE/PAGE No. 2004-0785746 DOC. 2004-01160413 MAP No. 15013 * NOTE: *** NOTE: EXACT LOCATION OF EASEMENT INDETERMINATE PER SAID INSTRUMENT. APPROXIMATE LOCATION SHOWN. EASEMENT TO BE ABANDONED BY SEPARATE DOCUMENT AFTER SEWER MAIN RELOCATION COMPLETE. EASEMENTS PER PRELIMINARY TITLE REPORT DATED OCTOBER 7, 2004 BY FIRST AMERICAN TITLE INSURANCE COMPANY, ORDER NO. DIV-985095. CONSULT PS N T S 2710 loksr Annul V»«t CM Englnmrlng Suit* 100 Planning Carlsbad. California 92010 Procsssing 750-931-7700 Survsying Fox: 750-931-3530 www.odayconsultants.com APPLICANT:EXHIBIT "E FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 TIMOTHY 0. LS. 7700 CARROLL EXP. 12/31/06 SHT. 2 OF 6 SHT. A.P.N. 221-011-03,04,05 221-010-22 l:\971035\Enhibiti\Watsr3US\WatsrsU3_Plat.dwq Sap 30. 2005 11:37om Xrsrs 9735VIC; 9735AMAP; HE050204; 9735AGRD PARCEL A PM 1493 OP£N SPACE EASEMENT PER MAP 2710 Loksr Avmui Wut Suits 100 Ciifomia 92010 780-931-7700 Fax; 790-9JI-3930 WMrw.odayconsultants.59m SHT. J OF 6 SHT.EXHIBIT ' EAPPLICANT: 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. 619 400-0134 A.P.N. 22J-OJ1-03,04,05 221-010-22 TIMOTHY 0. LS. 7700 CARROLL EXP. 12/31/06 l:\971035\txhibit!\Wat«r3US\Wi)tsrsUS_Plot.d*q Sap 30, 2005 11:37am Xrafs: 9735V1C; 9735AMAP; HE050204; 9735AGRD •PARCEL A OF PM 1649Bcirv or VISTA OP£N SPAO. PRIVATE STORM DRAIN - EASEMENT STORM DRAffTl EASEMENT , PER MAP IV ,, , , / STORM DRAIN **' II EASEMENT ^-PRIVATE DRAINAGE EASEMENT NO. 7700 EXP. 12/31/08 N S U L T A'N T S 2710 Uokv Annul West Suits 100 Carlsbad. California 92010 750-9^1-7700 Fax: 780-931-3630 wvfw.9dayconsultants.com SHT. 4 OF 6 SHT.APPLICANT: FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 A.P.N. 221-011-03,04,05 221-010-22 TIMOTHY 0. CARROLL LS. 7700 EXP. 12/31/06 l:\971035\Exhibits\WatwsUS\WatwsUS_Plat.dvm Sap'JO, 2005 Tl:J7um Xrafs: 9735VIC; 9735AMAP; HEQ50204; 973SACRD GJTY OF VISTA PAncSL C PM 15493 \ & JOPENSPAC& PRIVATE STORM EASEMENT Cfo&j CONSULT VN T S" 2710 Loksr Avanua Wait ClvH Enginewing Suits 100 PlanningCarlsbad. California 92010 Pracsssing 760-931-7700 Survaying Fax: 750-331-3930 w*w. odayconsultants.com APPLICANT: FENTON RACEWAY LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 TIMOTHY 0. CARROLL LS. 7700 EXP. 12/31/06 A.P.N. 221-011-03,04,05 221-010-22 l:\971035\E«hibits\Vfat«rsUS\WalarsUS_Platdwq"S» 30, 2005 11:37am Xrsfs: 9735V1C; 9735AMAP; HE05Q204.; 9735AGRD PARCSL Q PM 13182 , PARCEL H PM,43182 \ - -„_-,-,_ _____ C.T. 90-0S 2710 Lotar Av»nu» Wnt Suit: 100Carlsbad, Coiifamia 32010 750-931-7700 Fax: 730-931-3630 www.odayconsultants.com Civil Enginsering PlanningProc«S3ing Surveying SHT. 6 OF 6 SHAPPLICANT: FENTON RAcemr LLC 7588 METROPOLITAN DRIVE SAN DIEGO, CA 92108 PH. (619) 400-0134 A.P.N.221-011-03,04,05 221-010-22 TIMOTHY 0. CARROLL LS. 7700 EXP 12/31/06 l:\37ia35\txhibit3\WotarsUS\WatersUS_?lot<iwqXrafs: 9735V1C; 9735AMAP; HE05Q204; 9735AGRO 30, 2005 ll:37am EXHIBIT 5 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 SPACE ABOVE LINE FOR RECORDER'S USE CONSERVATION EASEMENT DEED THIS CONSERVATION EASEMENT is made this day of _, 2007, by SALK OWNERS ASSOCIATION, a California non-profit mutual benefit corporation ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipal corporation ("Grantee"). RECITALS A. - Grantor is the sole owner in fee simple of real property in the City of Carlsbad, County of San Diego, State of California legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated by this reference (the "Property"). 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 of Incidental Take Permit No. TE022606-0 from U.S. Fish and Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-01- 05. C. 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 (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 californicd) 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. -1- 4-55)7 3802101.2 E. This Conservation Easement 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 (Novembers, 2004), No. 5811 (January 19, 2005) and No. 5936 (Augusts, 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"); iy 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 conservation 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. H. Grantor is the property owners association ("Association") holding fee title and responsible for the management and maintenance of the Property. Pursuant to contract, day-to- day long term conservation management of the Property consistent with this Conservation Easement will be undertaken by a qualified conservation entity reasonably acceptable to the City 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. -2- 4-3-07 3802101.2 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 ("Conservation Easement"). This 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 Conservation Easement is to ensure that the Property will be managed and preserved in .a Natural Condition, defined below, in perpetuity and to prevent, subject to the rights retained by the Grantor hereunder, any use of the Property that will materially impair or interfere with the Conservation Values of the Property (the "Purpose"). Grantor intends that this Conservation Easement will confine the use of the Property to activities involving the management and preservation and enhancement of native species and their habitat in a manner consistent .with the habitat conservation purposes of this Conservation Easement. (b) The term "Natural Condition," as referenced in the preceding paragraph and other portions of this Conservation Easement, shall mean the condition of the Property, as it exists at the time this 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 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" dated November 23, 2005, prepared by RECON ("Mitigation Plan"), the cover page and Table of Contents of .which are attached as Exhibit "C," including implementation, maintenance, and monitoring activities (collectively, "Compensatory Mitigation"), (2) In-perpetuity long-term maintenance and management obligations ("Long-Term Maintenance and Management"), that occur on the Property as described in Section 6(T) herein, and/or (3) Activities described in Section 4 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 utilities, roads and trails. Grantor further certifies to the best of its knowledge, the only easements existing on the Property at the time this grant is executed are identified in Exhibit "D". The current Natural Condition is evidenced in part by the aerial photograph of the Property attached on Exhibit "E", 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 Natural Condition to Grantee and ACOE consisting of (1) an aerial photograph showing the pre-disturbance condition of the Property; (2) an overlay of the _ ^ 4-3-07 3802101.2 Property boundaries on such aerial photograph; (3) on-site photographs showing all man-made improvements or structures (if any), and the major, distinct natural features of the Property; (4) all biological reports and wetlands delineation studies; (5) the certified Final Mitigated Negative Declaration; (6) the Mitigation Plan; and (7) 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. (d) If a controversy arises with respect to the 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. 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the Purpose of this 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 of Carlsbad's Habitat Management Plan and its implementing documents, the Agency Permits and any amendments thereto, the Mitigation Plan, and any easements and reservations of rights recorded in the chain of title to the Property (as set forth on Exhibit D hereto) at the tune of this Conservation Easement is recorded: (a) Supplemental watering except for habitat enhancement activities described in Section 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) Livestock grazing or other agricultural activity of any kind; (e) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing; (fj Residential, commercial, retail, institutional, transportation or industrial uses; (g) Any legal or de facto division, subdivision or portioning of the Property, except transfers in accordance with Section 12 below; -4- 4-3-07 3802101.2 (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; (j) Planting, introduction or dispersal of non-native or exotic plant or animal species; (k) Filling, dumping, excavating, draining, dredging, mining, 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 and flood control work- except as permitted by the Agency Permits or as allowed by Section 7(i) 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 7fh); (2) maintenance of existing foot trails or 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, or (6) 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 (o) Fuel modification zones (defined as a strip of mowed land or the planting of vegetation possessing low combustibility for purposes of fire suppression). 3. Grantee's Rights. To accomplish the Purpose of this 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 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 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 Conservation Easement and to require the restoration of such areas or features -5- 4-3-07 3802101.2 of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this 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 means, including, without limitation, injunctive relief, the terms and conditions of this 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 are consistent with the Purpose of this 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; (b) The right to plant and maintain native trees, shrubs and other native landscaping elements, including, without limitation, the installation and maintenance of 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 Conservation Easement; (c) The right to install and maintain: (1) Fences on the Property to the extent such installation and 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 detention basin and storm drain improvements, as shown on Exhibit E, 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 Conservation Easement or that are required under the Agency Permits; -6- 4-3-07 3802101.2 (e) Notwithstanding anything set forth herein to the contrary, nothing in this 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 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 Conservation Easement; (b.) Perform compliance inspections of the Property to the extent it determines N/ tharstaff and funding are available and make any and all reports available to the AUUt 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 Grantor is in compliance with all of its obligations contained in Section 6 herein. 6. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantor, its successors or 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 unlawful entry and trespass 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 Conservation Easement, including but not limited to Grantee's water rights; (c) Comply with the terms of this Conservation Easement and cooperate with Grantee and ACOE in the protection of the Conservation Values; -7- 4-3-07 3302101.2 (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 Conservation Easement directly caused by Grantor, 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(o); (f) In the event Grantor, 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 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 principled 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 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 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 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 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) Perform Long-Term Maintenance and Management of the Property. Such long-term maintenance and management shall consist of the following activities: -8- 4-3-07 3802101.2 (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) Annual maintenance of signage set forth in this Section 6(d); and (4) 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. Grantor 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 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; and (j) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended. 7. Enforcement. (a) Third Party Beneficiary. ACOE, as a third party beneficiary of this 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 Conservation Easement or that a violation is threatened, 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. -9- 4-3-07 3302101.2 (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 of receipt 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(o)(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 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 Conservation Easement, subject to the limitations in Section 7fh) below. Grantee and/or ACOE shall first apply any damages recovered to the cost of undertaking any corrective action on the Property. (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. %v -• (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 injury. (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-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; -10- 4-3-07 3802101.2 100 (d) Management activities shall be chosen according to the following order of preference: (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 potential severe, long-term impacts to the Property's Conservation 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 and/or ACOE shall consider the cost of management activities and the resources available to Grantor or its successors. (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 (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 7fg). failure to cure within said time periods shall entitle Grantee and/or ACOE to the remedies described in this Section 7fd). -11- 4-3-07 3802101.2 \o\ (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 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 7fc) and Section 7(fK 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 Conservation Easement. The rights of Grantee and/or ACOE 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 and/or ACOE for any violation of the terms of this 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 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 Section 815, et seq., inclusive. (h) Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee and/or ACOE to bring any action against Grantor or make any claim on Grantor's insurance policy for any injury to or change in the Conservation Easement Property resulting from: (1) Any cause beyond Grantor's control, including without limitation, fire, 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 obligated to repair and restore the Property pursuant to Section 6(0) above and so long as Grantor 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 Conservation Easement, and undertake any -12- 4-3-07 3802101.2 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 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 Conservation Easement or of any of the rights of Grantee and/or ACOE under this 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. (j) Costs of Enforcement. Any costs incurred by Grantee and/or ACOE, as the prevailing party, in enforcing the terms of this 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 Conservation Easement shall be borne by Grantor. 8. Insurance. Prior to the acceptance of this 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 every five years (upward only) for inflation using the Consumer Price Index (CPI-A11 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 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 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, -13- 4-3-07 3802101.2 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: (1) 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 Property, regardless of cause, except that (a) 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 (b.) 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; (2) the obligations specified in Sections 6, 9. and 17(a): and (3) the existence or administration of this 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. 11. Access. This Conservation Easement does not convey a general right of access to the Property by the public. The 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 Conservation Easement is recorded at locations designated in easements and reservations of rights recorded in the chain of title to the Property. This Conservation Easement will allow for the Property to be available for approved scientific investigations. 12. Assignment and Subsequent Transfers. (a) By Grantee. This Conservation Easement is transferable by Grantee, but Grantee may assign its rights and delegate obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3 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 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 Conservation Easement or its enforcement in any way. (b) Bv Grantor. (1) The covenants, conditions, and restrictions contained in this Conservation Easement Deed are intended to run with the land and bind all future owners of any -14- 4-3-07 3802101.2 \cA interest in the Property. Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor agrees to give written notice to Grantee and ACOE of the intent to transfer any interest at least forty-five (45) 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 Conservation Easement, or whenever a subsequent Property transfer will result in a merger of the 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) Except as provided in Section 12(W2),from and after the date of any valid transfer of all or any portion 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 to the portion . transferred, as set forth in this Conservation Easement, (ii) the transferee shall be deemed to have accepted the restrictions contained herein as to the portion transferred, (iii) the transferor, as applicable, shall have no further obligations hereunder except for Indemnification under Section 17(b), and (iv) all references to Grantor in this Conservation Easement shall thereafter refer to such transferee. (3) 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. (c) Easements. 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 Conservation Easement), or grant or otherwise 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 Ifb) of this 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. 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: -15- 4-3-07 3302101.2 To Grantor: SALK OWNERS ASSOCIATION c/o H.G. Fenton 7577 Mission Valley Road Suite 200 San Diego,"CA 92108 To Grantee: City of Carlsbad Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, California 92008 FAX 760-720-6917 With a copy to: District Counsel U.S. Array 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 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 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 Conservation Easement and otherwise evidences the status of this 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 -16- 4-3-07 3802101.2 incurred as a result of, this 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 ID) 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 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 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 etseq.; 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 (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 -17- 4-3-07 3802101.2 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 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 Grantor'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 Conservation Easement, and (2) the Property is not subject to any other encumbrances other than those of record. Upon the recording of this 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 o'r reversion of Grantor's title in any respect. (e) Extinguishment. If circumstances arise in the future that render the Purpose of this Conservation Easement impossible to accomplish, this 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 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. A party's rights and obligations under this Conservation Easement shall terminate upon transfer of the party's interest in the Conservation Easement or Property (respectively), except that liability for acts or omissions occurring prior to transfer shall survive transfer. (h) Successors and Assigns. The covenants, terms, conditions, and restrictions of this 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 State of California and the laws of the . United States shall govern the interpretation and performance of this Conservation Easement. -18- 4-3-07 3802101.2 06 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. (j) 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, 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 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, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. (1) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of mis''instrument and shall have no effect upon construction or interpretation. (m) Exhibits. All Exhibits referred to in this 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 Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating.to the Conservation Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -19- 4-3-07 3802101.2 IN WITNESS WHEREOF, Grantor and Grantee have entered into this Conservation Easement the day and year first above written and have agreed to be bound by the terms and provisions hereof. AUTHORITY The individuals executing this Conservation Easement and the instruments referenced in it on behalf of Grantor and Grantee each represent and warrant that they have the legal power, right and actual authority to bind them to the terms and conditions of this Conservation Easement. GRANTOR SALK OWNERS ASSOCIATION, a California non-profit mutual benefit corporation **Bv: (sign here) Name and Title (sign here) Name and Title APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Jane Mobaldi Assistant City Attorney -20- 4-3-07 3802101.2 no EXHIBIT 6 SITE BILTMORE SDP 01-01(B)/CDP 01-02(B)/CUP 04-05 SITE CARLSBAD RACEWAY BUSINESS PARK GPA 98-05/ZC 01-07/LFMP 87-18(B)/ CT 98-10/HDP 98-09/PIP 01-01 SITE FOX MILLER PROPERTY GPA 00-05/ZC 00-07/CT 00-20/ PIP 00-02/HDP 00-11/SUP 00-10 EXHIBIT 7 CONSERVATION EASEMENTS AND HMP IMPLEMENTATION BRIEFING PAPER JANUARY 16, 2008 Purpose of Paper The following paper explores the processing of Conservation Easements. The paper also discusses the current status of a standardized Conservation Easement template and the issue of third party beneficiaries. Planning Department staff is seeking direction from City Council on the issue related to Conservation Easements. Background and Statutory Requirements In order to implement the Multiple Habitat Conservation Plan (MHCP) and Habitat Management Plan (HMP), areas to be contained within the preserve must be protected from future development, have restrictions on allowed uses, and managed and monitored in accordance with MHCP standards. The instrument required to ensure these provisions is a Conservation Easement. California Civil Code allows the creation of Conservation Easements to restrict the uses on a property and require management of the onsite habitat. Civil Code Section 815.3 stipulates that the grantee of the easement must be a state or local governmental entity or a non-profit organization which has land preservation as its primary purpose. In accordance with practices of the Wildlife Agencies, the City's HMP Ordinance requires that a Conservation Easement be placed over all preserve lands created through HMP implementation. The Conservation Easement, at a minimum, must include the following: Identification of the grantee, underlying land ownership, and third party beneficiaries including the City and Wildlife Agencies; Definition of permitted and prohibited uses; Description of grantor's duties and responsibilities contained in the preserve management plan; and Declaration of enforcement provisions. CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 2 There are typically two scenarios for land ownership and preserve management. The first involves the developer, Homeowner's Association (HOA), or other party owning the land and granting an easement to the preserve manager (a non-profit organization) for management and monitoring. In this case, the developer is the grantor and the preserve manager is the grantee. The second entails the preserve manager taking fee title ownership of the preserve. In this case, the preserve manager is grantor and another state or local governmental entity must be grantee. As discussed below, these two scenarios create different issues with regard to who will assume the role of grantee of the easement. To provide management and monitoring for smaller habitat properties, a third scenario was developed. In these cases, the HOA would own the property, grant an easement to the City, and contract with a qualified third party to manage and monitor the habitat. To date, one developer has opted for this scenario and several other property owners are currently pursuing the approach. History of Conservation Easements The Wildlife Agencies have required Conservation Easements as part of habitat impact mitigation for some time and each agency has developed their preferred template(s). Also, the preserve managers, such as Center for Natural Lands Management and Helix Community Conservancy, have developed templates and/or have requirements for certain language within the easement. When the City began to implement the HMP and require the easements, it became apparent that the agency templates were not consistent and, at times, were contradictory. There were also issues of City concern that were not addressed in these templates (such as the Grantor's right to grant future easements if needed for public health, safety, and welfare). This lack of commonly accepted easement language and structure has caused significant delays in project processing for many local development projects. Exacerbating this challenge is the uniqueness of each project and, therefore, the customized language needed to address project-specific issues regardless of the template used. In the past, it was common for the Agency permits to specifically require Agency approval of the Conservation Easement language. Since early 2005, City staff have unsuccessfully attempted on numerous occasions to bring the agencies together to develop a mutually CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 3 acceptable easement template. In order to allow development processing of projects with HMP requirements to continue, the City Attorney developed Conservation Easement templates for the two land ownership scenarios discussed above. These easements take the following structure: For projects where the developer or HOA would own the land, it would be the grantor and the grantee would be the preserve manager; For projects where the preserve manager would own the land in fee title, the grantor would be the preserve manager and the grantee would be the City (since the land owner cannot also hold the easement). As mentioned above, there are certain responsibilities for the grantor and grantee established by the Conservation Easement. After reviewing these responsibilities in detail, and discussing the issue with other jurisdictions and organizations, City staff is now asking for City Council direction regarding the easement language currently in use and the City's role as grantee. Easement Grantee Responsibilities As described above, when the preserve manager owns the property, they need to grant the easement to another party since the easement merges with the fee if both are held by the same party. Historically, when the Department of Fish and Game issued the habitat take permits, they agreed to accept the role as Grantee. Now that the City is responsible for issuing the habitat take permit and because the Wildlife Agencies protest that they have insufficient money and resources, the Agencies believe the City is now responsible for accepting Grantee status. There are, however, concerns associated with being the Conservation Easement grantee. The concerns relate to the jurisdictions' responsibility if the conservation efforts are lacking. While not explicitly stated in the easements, there is a common concern that Grantee status would be used by the Wildlife Agencies and/or environmental advocates to compel the Grantee to make up any financial shortfalls in perpetual management and monitoring. Also the Grantee would be expected to monitor and enforce violations of the terms of the easement. CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 4 Much of the discussion about the City assuming a grantee role is similar to the issue of the City's role in implementing the HMP. Once a developer follows the requirements by acquiring a preserve manager, recording a Conservation Easement, and creating an endowment to fund management of the habitat, the developer has fulfilled their condition of approval and the City is presumed to have fulfilled its HMP obligations. If at some later date the preserve manager ceases management (as was the case with The Environmental Trust bankruptcy), the question arises of which agency, if any, is responsible to ensure habitat management in perpetuity. While the HMP and Implementing Agreement do not speak directly to this issue, Section 10.3 of the Agreement stipulates that the City shall not be required to provide additional land or financial compensation in the event of "Unforeseen Circumstances". The Wildlife Agencies have contended that the City, as permittee of the state and federal permits, is ultimately responsible for the HMP and, therefore, would need to find a solution to the issue described above. The City has stated that the Implementing Agreement clearly defines the City's duties and responsibilities and states that no further financial burden should fall on the City for HMP implementation other than that stated in the Agreement. While the Environmental Trust bankruptcy showed that the Agencies were willing to take title to several of the abandoned properties without requiring any City contributions, there is no guarantee that this scenario would be duplicated in the future should the issue arise again. Third Party Beneficiaries Another important component of the Conservation Easements is the listing of third party beneficiaries. Third parties are not subject to the responsibilities of the easement (such as property management and use control) however they have the ability to enforce the easement if the grantor or grantee fails to perform. Third parties have the "rights" but not the "obligations." When the Wildlife Agencies or US Army Corps of Engineers (ACOE) issue a permit that requires a Conservation Easement, they typically require third party beneficiary status. Since the City is now issuing most of the permits allowing impacts to habitats, the City has required that it be named as a third party beneficiary in Conservation Easements as well. Typically, the City requires that all signatories of the HMP Implementing Agreement CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 5 (namely US Fish and Wildlife, California Department of Fish and Game, and the City) be included as third party beneficiaries. Wildlife Agency staff has stated that they should review and approve the easement language if they are listed as a third party beneficiary. This request has led to the same cyclical comments experienced during the easement template discussions with similar, inconclusive results. Since third party beneficiaries are not legally responsible to enforce the easement, and the level of habitat management is already established by the MHCP and HMP, the City has been processing the Conservation Easements without further agency review. Nonetheless, the issue of the third party beneficiary remains. Issues Discussion Given the current status of Conservation Easements, several significant issues arise. These are: 1. No standardized Conservation Easement templates exist that are accepted by all Wildlife Agencies, local jurisdictions, and preserve management entities. The City will continue to work with the Wildlife Agencies and preserve management entities to devise standardized easement templates. Until templates are available, the City will continue to use its own template whenever possible, and customize the language as appropriate for specific projects. 2. As detailed above, it is possible that the responsibilities of the grantee may create additional liability for enforcement and management expenses. The City could avoid this potential liability by having the role of Grantee for Conservation Easements be held by an agency or organization whose primary purpose is the conservation of natural open space lands. In the cases where the preserve manager will own the land in fee title, the City could urge the California Department of Fish and Game (DFG) to accept the role as easement Grantee. It should be noted that, in order to comply with the requirements of the City's HMP Ordinance and standard project conditions of CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 6 approval, a Conservation Easement must be recorded prior to issuance of a grading permit. If DFG assumes the role of easement Grantee, the recordation of the easement is out of the City's or developer's control and grading permit issuance would be delayed until DFG executes and records the easement. In the past, DFG has failed to record easements for which it is the Grantee; for example, the Conservation Easement covering the City's off-site habitat acquisition for the golf course has yet to be recorded. Unrecorded, the easement fails to give notice that the easement exists and thus does not function to protect the preserve. The impacts of non-recorded Conservation Easements and lack of DFG processing on local development could be significant. Without a recorded easement, a developer would not be able to secure grading or building permits even if they have recorded their subdivision map. As seen with the City's golf course mitigation easement, it could take DFG a number of years to record an easement (if ever) which would result in a commensurate delay in development. 3. The need for third party beneficiary approval of Conservation Easement language has not been resolved. According to the City Attorney, there is no legal requirement for third party beneficiaries to sign an easement. Therefore it is recommended that approval of easement language not be sought from those Agencies with only third party beneficiary status. Given the City Attorney determination, the City will continue to list the appropriate agencies as third party beneficiaries without requiring their signature or approval of the easement document. 4. There are several Conservation Easements currently in process with older, pre-HMP conditions of approval that are proposing to name the City as Grantee. There are also several more projects getting ready to prepare Conservation Easements requiring direction on how to proceed. Af the inception of the HMP, the City was anticipating the potential of taking fee title ownership of the HMP preserve areas created through private development. Therefore, the conditions of approval for developments during this time make reference to the City taking ownership and maintenance responsibility of the CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 7 preserve areas. The developer's representatives state that their projects should not be delayed while the City decides on its role as Grantee status and the easements should be approved as written. 5. There is no standard process for accepting and executing Conservation Easements. To dafe, fhere have been eight (8) Conservation Easements processed with the City as Grantee. All of these easements followed the same process as other easements, that being acceptance of the grant deed easement by the City Clerk. Section 11.04.050 of the Carlsbad Municipal Code delegates authority from the City Council to the City Manager for acceptance of easements, deeds, or grants conveying other interests in real property. The ordinance references the California Streets and Highways Code for this delegation of authority. The City Attorney's office has opined that this delegation was intended to apply only to easements and improvements associated with a subdivision of land (e.g. street easements, storm drain easements) and not for Conservation Easements. Therefore, if the City is Grantee for a Conservation Easement, the acceptance of that role must be approved by the City Council unless another process is created through a Municipal Code Amendment to extend Section 11.04.050 (or some other section) to apply to Conservation Easements. 6. There are no alternative encumbrances acceptable to the Wildlife Agencies that could protect the preserve area in a similar fashion as the Conservation Easement. City Attorney and U.S. Army Corps of Engineer legal staff have discussed the potential use of a Restrictive Covenant instead of a Conservation Easement. The Restrictive Covenant would be recorded on the title of the land and provide a permanent restriction on the allowable uses however it would be executed and recorded by the property owner, without need for a Grantee. Provisions could be added to the Covenant regarding management and monitoring of the land in accordance with the HMP and MHCP. The City and Wildlife Agencies could also be named as third party beneficiaries to enable enforcement of the restricted uses and management/monitoring. CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16,2008 Page 8 In preliminary discussions with US Fish and Wildlife and California Fish and Game, Wildlife Agency biologists have expressed concern about the use of a Restrictive Covenant, however the City has yet to explore the alternative with Wildlife Agency legal staff. Recommendations Based upon the issue discussion and analysis above, 1. Due to the possibility of increased exposure to the City, Planning Department staff recommends that the City Council provide direction as to the appropriate entity to assume the Grantee role for subsequent Conservation Easements required for HMP Implementation. Planning Department staff believes it is necessary for the City Council to provide policy direction regarding the dilemma of the potential for increased City exposure versus the strong potential for substantial delays in development project implementation which would also include City projects. Staff is proposing for consideration three alternatives to the Conservation Easement Grantee issue: a. The City continues to serve as Grantee on Conservation Easements whenever needed. If this alternative is chosen, staff is recommending that Council direct staff to process a Municipal Code Amendment that would allow Conservation Easements to be accepted by staff, similar to the allowance for other easements. Staff is also recommending that clear language be added to all Conservation Easements that the Grantee is not responsible to make up any shortfalls in management or monitoring and has no financial responsibilities for the property. b. The City does not serve as Grantee on Conservation Easements. The City could request that DFG serve as Grantee or mandate that the role be filled by a non-profit land management entity. If this alternative is chosen, there may 8 CONSERVATION EASEMENTS AND HMP IMPLEMENTATION January 16, 2008 Page 9 still be special cases when the City must accept Grantee status for the development project to continue. In these cases, the Council could direct staff to process a Municipal Code Amendment that would allow Conservation Easements to be accepted by staff or continue to require City Council approval prior to City acceptance of the easement. c. Direct staff to explore the use of Restrictive Covenants as a replacement for Conservation Easements. If this alternative is chosen, amendments to the HMP Ordinance would be necessary to allow the Restrictive Covenants and list minimum requirements for the document. 2. Regardless of the approach for future Conservation Easements, staff is recommending that the easements currently in process be allowed to continue with the City as Grantee. As discussed above, this would necessitate City Council approval. Conservation EasementsConservation EasementsProcessing and AcceptanceProcessing and Acceptance Conservation EasementsConservation Easements•Two components to agenda item:– Accept three Conservation Easements for the Biltmore, Fenton Raceway, and Fox-Miller developments;– Direct staff on the future processing of Conservation Easements. BackgroundBackground•Mechanism to protect land from development and other activities and ensure ongoing management and monitoring.•Required by City’s Habitat Management Plan Ordinance (Chapter 21.210).•No habitat impacts are authorized until the Conservation Easement is recorded. California Civil CodeCalifornia Civil Code•Defines the scope and form of Conservation Easements – can be easement, covenant, or restriction.•Restricts the parties that can be Grantee –only state and local governments and non-profit open space management organizations. Easement GranteeEasement Grantee•Responsibilities of Grantee in each Conservation Easement vary widely.•Can be asserted that Grantee is responsible in perpetuity to monitor property and ensure ongoing management if Grantor and/or preserve manager fails to perform. Habitat Management Plan Habitat Management Plan OversightOversight•City oversees performance of all preserve managers, including use of endowments and management priorities.•City has authority to enforce requirements of HMP Ordinance and project conditions of approval.•City has authority to enforce requirements of Conservation Easements as third party beneficiary. Current Conservation EasementsCurrent Conservation Easements•Earlier HMP-related projects conditioned to grant Conservation Easement to the City.•Completion of the development is contingent upon easement recordation.•Staff added language in easement limiting responsibility and liability of Grantee. Staff RecommendationStaff Recommendation•That the City Council adopt Resolution No. 2008-068, approving the acceptance of the Conservation Easements for the Biltmore, Fenton Raceway, and Fox-Miller development projects. Future Conservation EasementsFuture Conservation Easements•Staff seeking direction in defining the role of the City for future processing.•Potential additional long-term exposure with Grantee status in perpetuity.•City has preserve oversight authority through HMP; Grantee status not needed to enforce land management requirements. Future Conservation EasementsFuture Conservation Easements•State Law allows Conservation Easements to take different forms.•Restrictive Covenant does not require Grantee or another party to record.•Provisions can be added that preclude removal or amendment of the recorded document without prior City approval. Alternatives for Future ProcessingAlternatives for Future Processing•A. City continues serving as Grantee whenever needed.•B. City does not serve as Grantee except in special situations on a case-by-case basis.•C. City staff explore the use of Restrictive Covenants Conservation EasementsConservation EasementsProcessing and AcceptanceProcessing and Acceptance