HomeMy WebLinkAbout2008-11-18; City Council; 19631; Rancho Santa Fe Road Mitigation ProjecttlS> ) CITY OF CARLSBAD - AGENDA BILL\^^/
AB# 19i631
MTG. 11/18/08
DEPT. PW-ENG
APPROVAL OF AGREEMENT WITH CENTER FOR
NATURAL LANDS MANAGEMENT AND BROOKFIELD
UNIVERSITY COMMONS, LLC FOR TEMPORARY
ACCESS; RANCHO SANTA FE ROAD MITIGATION
PROJECT, CITY PROJECT NO. 3907
4
&
DEPT. HEAD •£-p^j'
CITY ATTY. fl<^
CITYMGR. / . _^llA-^
RECOMMENDED ACTION:
Adopt Resolution No. 2008-304 approving an agreement with the Center for Natural Lands
Management and Brookfield University Commons, LLC, for temporary access required for the
construction of the Rancho Santa Fe Road Mitigation Project, Project No. 3907.
ITEM EXPLANATION:
On May 20, 2008, the City Council adopted Resolution No. 2008-142 accepting bids and awarding a
contract for the construction of the Rancho Santa Fe Road Mitigation Project, Project No. 3907.
Work is scheduled to begin in mid-November, 2008 and require approximately one year to complete.
To facilitate the construction, temporary use of existing access roads and trails owned and maintained
by the Center for Natural Lands Management in and around the project site is required. Brookfield
University Commons, LLC is the property developer and holder of various Resource Agency permits
with continuing mitigation responsibilities adjacent the City of Carlsbad's construction project. Staff
has completed discussions with both parties resulting in the attached agreement which will enable
efficient access to the work area for the City's contractor, equipment and materials suppliers, and
inspection staff. Staff recommends approval of the attached agreement.
ENVIRONMENTAL IMPACT:
On June 2, 1992, the City Council adopted Resolution No. 92-152 certifying EIR Number 91-1 for
Phases 1 and 2 of the Rancho Santa Fe Road Project. On April 25, 2000, City Council adopted
Resolution No. 2000-128 approving Addendum No. 2 to the EIR which addressed the realignment and
widening of Rancho Santa Fe Road from La Costa Avenue to Melrose Drive. The Rancho Santa Fe
Road Mitigation Project is the product of this development and required by the California Department
of Fish and Game's 1601 permit issued to the City for the road widening project.
FISCAL IMPACT:
There is no cost to the City for the temporary access agreement.
EXHIBITS:
1. Location Map.
2. Resolution No. 2008-304 approving an agreement with Center for Natural Lands
Management and Brookfield University Commons, LLC, for temporary access required for the
Rancho Santa Fe Road Mitigation Project, Project No. 3907.
3. Access Agreement.
DEPARTMENT CONTACT: John Cahill, (760) 602-2726, icahi@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONL Y .f
COUNCIL ACTION: APPROVED Jtf
DENIED Q
CONTINUED D
WITHDRAWN D
AMENDED D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
D
D
D
D
NOT TO SCALE
LOCATION MAP
PROPOSED GRADING
AREA
SAGEWOOD
SAN El un
ACCES,
ROAD
CITY OF OCEANSIDE
HIGHWAY
PROPOSED GRADING
AREA
PACIFIC
OCEAN
VICINITY
MAP
NOT TO
SCALE
PROJECT NAME RANCHO SANTA FE ROAD
MITIGATION PROJECT
PROJECT
NUMBER
3907
EXHIBIT
1
DRAWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 8/25/08 C:\CAPITAL\CAHILL\3907.DWG
1
RESOLUTION NO. 2008-304
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH
CENTER FOR NATURAL LANDS MANAGEMENT AND BROOKFIELD
4 UNIVERSITY COMMONS, LLC, FOR TEMPORARY ACCESS FOR THE
RANCHO SANTA FE ROAD MITIGATION PROJECT, CITY PROJECT
5 NO. 3907.
6 WHEREAS, on May 20, 2008, the City Council of the City of Carlsbad, hereafter the
7 "City," awarded a contract for the construction of the Rancho Santa Fe Road Mitigation Project,
8 Project No. 3907, hereafter the "Project;" and
9 WHEREAS, temporary access on existing roads and trails belonging to and maintained
10 by Center for Natural Lands Management is required to facilitate an efficient prosecution of the
11 work under said contract; and
12 WHEREAS, Brookfield University Commons, LLC holds permits issued by the Resource
13 Agency with continuing mitigation requirements adjacent the Project; and
14 WHEREAS, an agreement has been prepared providing temporary use and access of
*" ° said roads and trails to the City for the Project.
16 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
18 1. That the above recitations are true and correct.
19 2. That an agreement entitled "Access Agreement Among The Center for Natural
on Lands Management, Brookfield University Commons, LLC, and The City of Carlsbad" is hereby
21 approved and the Mayor is authorized to execute said agreement. Following the Mayor's
22 execution of said agreement, the City Clerk is directed to forward copies of this resolution and said
23 agreement to: Center for Natural Lands Management, attention: Executive Director, 215 West Ash
24 Street, Fallbrook, California 92028-2904, Brookfield University Commons, LLC, attention: David
25 Poole, 12865 Pointe Del Mar, Suite 200, Del Mar, California 92014, the City's Public Works
26 Department, Construction Management Division, and the City's Public Works Department,
27 r- • • r,. - -Engineering Division.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 18th day of November, 2008, by the following vote to wit:
AYES: Council Members Lewis, Hall, Packard and Nygaard.
NOES: None.
ABSENT: Council Member Kulchin.
,/MSyor
ATTEST:
JRRAINE M. WQQDACity Clerk7
'(SEAL
~~>
ACCESS AGREEMENT
AMONG
THE CENTER FOR NATURAL LANDS MANAGEMENT,
BROOKFIELD UNIVERSITY COMMONS, LLC,
AND
THE CITY OF CARLSBAD
THIS ACCESS AGREEMENT, executed the - day of /)
2008 ("Execution Date"), is by and among the CENTER FOR NATURAL LANDS
MANAGEMENT, a California non-profit corporation ("Center"), BROOKFIELD
UNIVERSITY COMMONS, LLC, a Delaware limited liability company ("Brookfield"), and
the CITY OF CARLSBAD, a municipal corporation, ("City"), (collectively the "Parties").
RECITALS
1. The Center is the owner of Property ("Property") in the City of San Marcos,
California described in grant deed recorded February 28, 2002 as Document No. 2002-
0170096 of Official Records in the office of the County Recorded of San Diego County,
State of California (APNs 223-300-80, 223-030-83, 223-651-26, 223-651-1700, and
223-651-25) and attached hereto as Exhibit A attached hereto and made parts hereof.
Prior to conveying the Property to the Center, Brookfield (as owner of the Property)
granted a conservation easement ("Conservation Easement") over the Property in favor
of the California Department of Fish and Game ("CDFG").
2. Brookfield was the former owner of the Property and conveyed the
Property to Center pursuant to the above mentioned grant deed recorded February 28,
2002. Brookfield currently has certain wetlands mitigation obligations with respect to a
portion of the Property. In addition, Brookfield designed, installed and is maintaining
certain pedestrian pathways located on the Property.
3. Carlsbad has obtained federal, state and local permits and approvals to
construct Rancho Santa Fe Road widening and bridge replacement. Obtaining all of the
necessary permits and approvals is the sole obligation of the City. The permits require
certain habitat mitigation measures to be performed on portions of the Property owned
by the Center. Property mitigation areas and routes of ingress and egress are depicted
on Exhibit B, attached hereto.
4. The document entitled "Amended and Restated Management Agreement
University Commons Conservation Area," attached hereto as Exhibit C and made a part
hereof, between the Center and Brookfield, provides in pertinent part at §4.1 ("Transfer
of Onsite Property-- Brouwer Parcel 1) for reserved rights which include access rights
for wetlands mitigation, restoration, and monitoring by both Brookfield and City.
5. The Center and Brookfield desire to cooperate with City in the construction
of City's wetland mitigation, restoration, and monitoring.
335172 3
ACCESS AGREEMENT
Page 1 of 6
AGREEMENT
NOW THEREFORE, in consideration of the above recitals, the Parties do hereby
mutually and jointly agree as follows:
1. City Obligations.
a. City shall construct and install the wetland mitigation, restoration
and monitoring as shown of City of Carlsbad Drawing Numbers 368-2E and 368-2M
("Plans") on the following schedule:
(1) Construction and installation within eighteen (18) months of
the Execution Date, and
(2) Achievement of success criteria within seventy-eight (78)
months of the Execution Date. Until achievement of success criteria has been
reached, City shall be solely responsible for all maintenance responsibilities with
respect to the wetland mitigation and restoration it is undertaking pursuant to this
Agreement.
b. City shall be responsible to replace in kind and/or restore, to the
satisfaction of the Center, Brookfield, and agencies, as appropriate, any improvements,
fences, gates, trails, and habitat damaged or destroyed during the course of the
construction and maintenance of the wetland mitigation, restoration, and monitoring
work. In connection with its work of construction, maintenance and monitoring, from
and after the day the City's contractor(s) commence construction activity that impact a
portion of the pedestrian pathway, City will take over all further responsibility for
maintaining those portions of the pedestrian pathways used by the City and previously
installed by Brookfield on the Property. The City is responsible to maintain the
pedestrian pathways for the two year maintenance and establishment period, as
specified in the Maintenance Requirements for Trail Systems attached hereto as Exhibit
D and made a part hereof, or until the pathways are accepted by the City of San
Marcos, whichever happens first.
c. City shall not suffer or permit to be enforced against the Property or
any part thereof any mechanics', laborers', materialmens', contractors' or any other
liens arising from, or any claims for damages growing out of any work or other activities
by City or its representatives or invitees under this right granted herein.
d. City hereby protects, defends, indemnifies and agrees to hold
Center, its agents, officers, and employees free and harmless from all liability for any
and all liens, together with all costs and expenses, including but not limited to attorney's
fees and court costs reasonably incurred by the Center in connection with activities
associated with the wetland mitigation, restoration and monitoring by City. City's
335172 3
ACCESS AGREEMENT
Page 2 of 6
obligation hereunder to protect, indemnify and hold harmless shall not include liability
arising out of, caused by or connected with the sole negligence of the Center, its
agents, officers and employees.
e. City hereby protects, defends, indemnifies and agrees to hold
Brookfield, its agents, officers, and employees free and harmless from all liability for any
and all liens, together with all costs and expenses, including but not limited to attorney's
fees and court costs reasonably incurred by the Brookfield in connection with activities
associated with the wetland mitigation, restoration and monitoring by City. City's
obligation hereunder to protect, indemnify and hold harmless shall not include liability
arising out of, caused by or connected with the sole negligence of the Brookfield, its
agents, officers and employees.
2. Center's Obligations. The Center shall allow City, its agents, officers and
employees access to the areas along and adjacent to San Marcos Creek that are
designated for wetland mitigation, restoration, and monitoring as shown on the Plans.
3. Brookfield's Obligations. Brookfield shall allow City, its agents, officers
and employees access to the areas along and adjacent to San Marcos Creek that are
designated for wetland mitigation, restoration, and monitoring as shown on the Plans.
4. Representations and Warranties.
a. City represents and warrants that it has obtained all necessary
federal, state and local permits and approvals relating to the proposed wetlands
mitigation, restoration, and monitoring for which access to the Property is sought.
b. Center and Brookfield make neither representations nor warranties
regarding requirements for or requirements of the City's federal, state, and local permits
and approvals.
5. Insurance. As of the Execution Date and continuing until achievement of
success criteria has been reached, City shall cause it's contractor(s), at its sole
cost and expense, procure, pay for and keep in full force and effect a policy(ies)
of Commercial General Liability Insurance in an amount of not less than the
combined single limit of One Million Dollars ($1,000,000) for bodily injury,
property damage, personal injury and death for each occurrence arising from
work and other activities of City, or its contractors, consultants, representatives or
agents on or relating to the Property. All policies of insurance required to be
carried by City's contractor(s) shall be issued by an insurance company
authorized to do business in the State of California. All policies required of City
herein shall be endorsed to read that such policies are primary policies and any
insurance carried by Center and/or Brookfield shall be noncontributing with such
policies. Center and Brookfield shall each be named as an additional insured
and/or loss payee on a primary/non-contributory basis, and such policies shall be
335172.3
ACCESS AGREEMENT
Page 3 of 6
7
for the benefit and protection of Center and Brookfield. Executed copies of
certificates of insurance shall be delivered to Center and Brookfield on or before
the Execution Date and thereafter at least thirty (30) days before the expiration of
the term of each such policy.
6. Monitor. While Center and Brookfield make neither representations nor
warranties concerning the selection or qualification of a biological monitor by City,
Center and Brookfield acknowledge that Dudek & Associates has provided quality
monitoring services to them on the Property, and will continue to provide such services
to Brookfield until it has reached achievement of success criteria applicable to
Brookfield's obligations with respect to the Property.
7. General Provisions.
a. This Agreement cannot be amended or modified in any way except
by a written instrument duly executed by Center, Brookfield, and City.
b. All exhibits referred to herein are attached hereto and by reference
incorporated herein.
c. Any notice, demand, request, consent, approval, or communication
that either party desires or is required to give to the other shall be in writing and either
served personally or sent by first class mail, postage prepaid, addressed as follows:
To Center: Center for Natural Lands Management
Attention: Executive Director
215 West Ash Street
Fallbrook, CA 92028-2904
To Brookfield Brookfield University Commons, LLC
Attn: David Poole
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014
To City: City of Carlsbad
Attention: William Plummer
Deputy City Engineer
1635 Faraday Avenue
Carlsbad, CA 92008
d. This Agreement shall be governed by the laws of the State of
California. If any part of this Agreement shall be held in conflict with applicable laws,
such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but
the remainder of the Agreement shall continue to be in full force and effect. The
captions of paragraphs used in this Agreement are for convenience only.
335172 3
ACCESS AGREEMENT
Page 4 of 6
e. This Agreement contains the entire agreement of the Parties
hereto, and supersedes any prior written or oral agreements between them concerning
the subject matter contained herein. There are no representations, agreements,
arrangements or understandings, oral or written, relating to the subject matter, which
are not fully expressed herein.
f. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Center, Brookfield, and/or City.
g. By executing this Agreement, Center, Brookfield, and City do not
intend to form a joint venture or partnership.
h. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one in the
same Agreement.
i. The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not for or against any party by
reason of such party or its legal counsel having prepared this Agreement or any of its
provisions.
IN WITNESS THEREOF, the Parties hereto have executed this Agreement to be
in effect as of the date last signed below.
SIGNATURES ON FOLLOWING PAGE
335172 3
ACCESS AGREEMENT
Page 5 of 6
Dated:
Dated:
CENTERFOR^NATURAL kANDS
MANABEMfzNT, INC., A^alifornia corporation
BROOKFIELP UNIVERSITY COMMONS,
LLC, a Delaware corporation
By:
Its:
Dated: //-
COPY
CITY OR
of the
unicipal corporation
ATTEST:
*x APPROVED AS TO£0ftM:
RONALD R.^LL, City Attorney
By:.
Deputy City Attorney
335172.3
ACCESS AGREEMENT
Page 6 of 6
Dated:CENTER FOR NATURAL LAND§,
MANAGEMENT, INC., A Caltfofnla corporation
By:
Its:
Dated:BROOKFIELD UNIVERSITY COMMONS,
LLC, a Delaware corporation
By:
Its: I/
Dated:CITY OF CARLSBAD, a
of the State of Califorow
By:
pal corporation
ity Manager or Mayor
ATTEST:
LORRAINE M. WOOD
Clerk
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Deputy City Atbrney
335172 3
ACCESS AGREEMENT
Page 6 of 6
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EXHIBIT "A"
RECOROINC REQUESTED BY
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LECAl DESCRIPTION ATTACHED HERETO AID HADE A PART HEREOF BY REFERENCE
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LEGAL DESCRIPTION EXHIBIT
PARCEL A:
THOSE PORTIONS OF LOT 3-1 AND LOT 7-1 OF CITY OF SAN MARCOS TRACT 371, IN THE CITY OF
SAM MARCOS. COUNTY OF SAN OlEUO. STATE OF CALIFORNIA. ACOM0ING TO MAP THEREOF NO.
13156, FILED IN THE OFFICE Of THE COUNTY RECORDR OF SAN DIEGO COUNTY. OCTOBER 27.
1994 LYING NORTHEASTERLY OF THE SOUTWESTERLY BOUNDARY OF LAND DESCRIBED AS PARCEL 2
IN THE DEED TO JACOB BROUNER AND JEANETTE 8ROUIER. CO-TRUSTEES OF THE JACOB AND
JEANETTE BOWER DECLARATION OF TRUST DATED HAY tt. 197? RECORDED AUGUST 2, 1996 AS
FIU NO. 1W6-0»t426. MIO PARCEL 2 BEING MORE PARTICULARLY DESCRIBED AS FOLLOW:
THAT PORTION OF SECTION 29, TOWSHIP 12 SOUTH. RANGE 3 NEST. SAN BERNARDINO MERIDIAN.
IN THE COUNTY OF SAN OlEGO. STATE OF CALIFORNIA. ACCORDING TO THE OFFICIAL PLAT
THEREOF. DESCRIBED AS FOLLOfS:
BEGINNING AT THE NORTH QUARTER CORNER OF SAID OF SAID SECTION 29; THENCE ALONG THE
NORTH LINE THEREOF: SOUTH 88*4$'25' EAST 1327.86 FEET TO THE NORTHEAST CORNER OF THE
•EST HALF OF THE NORTHEAST QUARTER OF SAID SECTION; THENCE ALONG THE EAST LINE
THEREOF. SOUTH 00'2V33' EAST (RECORD SOUTH 00*20'30' EAST). 875.00 FECT TO THE TRUE
POINT OF BEGINNING. BEING THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO
H.C. TIFFANY RECORDED NAY 4, 1956 IN BOOK 6068. PAGE 249 OF OFFICIAL RECORDS; THENCE
CONTINUING SOUTH 00'21'33' EAST AUNG THE EAST LINE TO AND ALONG THE EAST LINE OF THE
fEST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 29. A DISTANCE OF 2446.00 FEET;
THENCE NORTH 59'45'33' NEST 944.69 FEET TO A POINT "A" OF THIS DESCRIPTION: NORTH
98*45-33' NEST 990.21 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SAID TIFFANY LAND;
THENCE ALONG SAID SOUTHEASTERLY LINE NORTH 48*36'35" EAST 2184.66 FEET TO THE TRUE
POINT OF BEGINNING.
PARCEL C:
ADJUSTED LOT S-l OF CERTIFICATE OF COMPLIANCE RECORDED JUNE 26. 2001 AS FILE NO.
2001-0431951, OFFICIAL RECORDS. BEING LOT 5-1 ALL THOSE PORTIONS OF LOT 4-1, LOT 6-t
AND NELROSE DRIVE OF CITY OF SAN MARCOS TRACT 371. IN THE CITY OF SAN MARCOS. COUNTY
OF SAN DIEGO. STATE OF CALIFORNIA. ACCORDING TO «A? THEREOF NO. 13156. FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN OlEGO COUNTY. OCTOBER 27. 1994 LYING EASTERLY OF
THE FOLLCNING LINE. MORE PARTICULARLY DESCRIBED AS FOUONS:
BEGINNING AT THE HOST NESTERLY CORNER OF SAID LOT 4-1; THENCE ALONG THE WRTKKSTEBLY
LINE OF SAID LOT 4-1 AND ITS NORTHEASTERLY PROLONGATION NORTH 49*08'49" EAST 1247.71
FEET TO THE BEGINNING OF A NON-TANGCNT 605.00 FOOT RADIUS CURVE. CONCAVE NESTERLY. A
RADIAL LINE TO SAID POINT BEARS NORTH 54*28'11" EAST. SAID POINT BEING THE TRUE POINT
OF BEGINNING OF SAID LINE. THENCE SOttTHERLYALQNO THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE Of 7V1V23- AN ARC DISTANCE OF 751.71 FEET; THENCE TANGENT TO SAID
CURVE SOUTH 35*39'34" NEST 124.70 FEET TO THE BEGINNING OF A TANGENT 615.00 FOOT
RADIUS CURVE. CONCAVE EASTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 47'43'M- AN ARC DISTANCE OF 512.19 FEET TO A POINT ON THE SOUTHWESTERLY
LINE OF LAND GRANTED TO JACOB AND JEANETTE BROUNER IN DOCUMENT RECORDED AUGUST 2.
1995 AS FILE NO. 1995-0391426, OFFICIAL RECORDS; THENCE ALONG SAID SOUTHWESTERLY LINE
AND NON-TANGENT TO SAID CURVE SOUTH S9M2M2" EAST 159.74 FEET TO A POINT ON THE
SOUTHERLY LINE OF SAID LOT 6-I.
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University Commons
RANCHO SANTA FE ROAD
Mitigation / Hevegetation Areas (Green)
East of Melrose Drive)
1.69 ac SWS Cretan
.51 ac.FWM Creation
.86 ac. SWS / MFS Enhancement
{removal of exotics and revegefcation
of existing SWS IMPS)
.54 ac, FWM Enhancement
UNWERSnYCOMHOIHS
Mitigation/ Revegetation Areas
(West of Melrose Drive)
Z04 ac SWS Creation
1.76 ac. MFS Creation / Enhancement
.42 ac.FWM Creation /ACCESS FROM MELROSE DRIVE
ACCESS FROM COPPER COURT
ACCESS FROM SAN ELIJO ROAD
Rancho Santa Fe Road Mitigation Area
Created / Enhanced / Existing Wetlands:
|FWMJ Created Freshwater Marsh
[ MRM Created Mule Fat Scrub
|<j||y Created Southern Willow Scrub
| 8W8 I Impacted Southern Willow Scrub
I ! (at Melrose Drive)
Existing Southern Willow ScrubSWS(Preserved / Enhanced)
} ] Enhanced MFS/SWS Wetlands
| FWM !| Enhanced FWM for RSFE Rd. Project
| | Unaffected Existing Habitat
Rip Rap (at Melrose Drive)
ACOE/CDFG Waters:
JX^'^J Waters of the U.S.
MOTE: number Indcates width of channel
segment between marks.
BASE TOPO WiD SITE OMLOPWBfT SOURCE: ITMr CONSUITSKTS
Conceptual Wetland Mitigation and Monitoring Plan - Rancho Santa Fe Road I FIGURE
Revised Conceptual Revegetation Plan (Offsite Location at University Commons) !__6 _
MITIGATION AREAS AND ROUTES OF INGRESS AND EGRESS
EXHIBIT «C"
AMENDED AND RESTATED MANAGEMENT AGREEMENT
UNIVERSITY COMMONS CONSERVATION AREA
This AMENDED AND RESTATED MANAGEMENT AGREEMENT dated as of
September 1,2004 ("Agreement") is made and entered into by and between CENTER FOR
NATURAL LANDS MANAGEMENT, INC., a California corporation ("Center") and
BROOKFIELD UNIVERSITY COMMONS, LLC, a Delaware limited liability company
("Proponent") (as successor in interest to Brookfield University Commons, Inc.), and amends,
restates and replaces in its entirety that certain Management Agreement dated March 4, 2002
("Original Agreement") between Center and Brookfield University Commons, Inc., and all
previous amendments thereto, including the First Amendment dated April 6, 2004 (the "First
Amendment") which added New Properties, among other things.
RECITALS:
A. Proponent intends to develop a residential project on certain real property
("University Commons") located in San Marcos, in the County of San Diego, California, as
more particularly described in Section I of the notebook of Exhibits entitled "Transfer of
Mitigation Properties to Center for Natural Lands Management" ("Notebook § I").
B. University Commons is adjacent to or in the vicinity of certain real property that
is either owned by Proponent or subject to an agreement whereby Proponent will acquire such
property ("Conservation Land"). The Conservation Land consists of approximately 355.5
acres, in the County of San Diego, California, as shown on the vicinity map included in
Notebook § II and on the vicinity map attached to this Agreement as Exhibit A-l. The
Conservation Land includes "Onsite" property located within the University Commons Specific
Plan area and "Offsite" property located outside the boundaries of said Specific Plan. The
Conservation Land includes all or a portion of the following assessor's parcels: (Note, as of
July 1, 2004, with the recordation of University Commons final maps, various of the Onsite
Conservation Land referred to below has new APNs, legal descriptions, and designations as
"Planning Areas" or "PA" within University Commons. A table listing the Conservation Land
APNs and a map showing the University Commons PAs are attached to this Agreement as
Exhibits A-2 and A-3, respectively. Conservation Land may include land held or to be held in
fee title by Center, land subject to conservation easement(s) in favor of Center or land owned by
others subject to conservation easements in favor of others, but monitored and/or managed by
Center).
"Onsite Conservation Land":
Assessor's Parcel Nos. ("APNs";) 223-030-79, 80 & 83; 223-651-25 & 26
("Brouwer Parcel 1" aka "PA 15") (these new APN's include the old Brouwer
APN's 223-030-79, 80 & 82; 223-031-32, 33 & 34)
APN's 223-650-02 & 223-650-04 ("Brookfield Northern Parcel 2" aka "PA 2" and
"PA 16") (these new APN's include the old Brookfield Northern 223-030-81)
W02-SD:6RM1\51339960.7 -1-
092801 06V3-0893I3
APN's 223-651-09 & 17; 223-651-22 ("Brookfieid Southern Parcel 3" aka "PA
H" and "PA 14") (these APN's include the old Brookfieid Southern 223-031-26,
29 & 33, which may also have encompassed the PA 6a parcels listed below)
APN 223-070-15 ("Shelley Parcel 4" aka "PA 12b")
Site maps and legal descriptions for each of the Onsite Conservation Land parcels
are included in Notebook §§ VIII A & B, IX A & B, X A & B and XI A & B
respectively.
The First Amendment added New Properties:
Conservation Easements over portions of APN 223-651-11 and 23 in
configurations approved by the Agencies ("Lot 8 Areas" aka "PA 6a")
APN 223-651-20 ("'Lot 11" aka "PA 6a")
"Offsite Conservation Land":
APN 222-030-48 ("Wilem Parcel 5")
APN 223-072-01 ("Setter Parcel 6")
APN 223-081-09, 10, 11 & 12 ("Huff Parcel 7")
APN's 223-070-25, 26 & 27 ("Winston Parcel 8") (these new APN's include the
old Winston APN 223-070-24)
Site maps and legal descriptions for each of the Offsite Conservation Land parcels
are included in Notebook §§ XII A & B, XIII A & B, XIV A & B and XV A &
B respectively.
The First Amendment added New Properties:
Conservation Easement over APN 222-130-13 ("Pfau Easement")
APN 222-121-07 ("Frank's Peak")
Under the First Amendment, Lot 11 and Frank's Peak are to be transferred to
Center in fee, but will be or become subject to a Conservation Easement in favor
of California Department of Fish & Game ("CJDFG"). Proponent will grant
Center a Conservation Easement over each of the Lot 8 Areas and the Pfau
Easement. At the time of transfer, Proponent will increase the Contribution
necessary for Initial & Capital Costs and Endowment associated with the New
Properties.
C. The Conservation Lands are subject to: (i) United States Department of the
Interior's Fish and Wildlife Service's Biological Opinion on the Brookfieid Homes/University
Commons Project, San Marcos, San Diego County, California (FWS Log No. 1-6-00-F-2285),
Corps File No. 200100025-SKB, dated May 15, 2002; (ii) United States Department of the
Interior's Fish and Wildlife Service Reinitiated Biological Opinion on the Brookfieid University
Commons Project, San Marcos, San Diego County, California (FWS Log No. 1-6-00-F-2285R),
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092S04 06V.VOS93I3
Corps File No. 200100025-SKB, dated August 6, 2003; (iii) State of California's Department of
Fish and Game Streambed Alteration Agreement R5-2001-0337, signed on behalf of the
Department on May 28, 2002; (iv) State of California's Department of Fish and Game Streambed
Alteration Agreement R5-2002-0236, signed on behalf of the Department on September 9, 2003;
(v) Department of the Army, Corps of Engineers' Permit No. 2001-00025-SKB, issued on May
31, 2002 and amended December 30,2003; and (vi) California Regional Water Quality Control
Board Water Quality Certification (File No. 02C-079), dated September 16, 2003 (collectively,
the "Permits"). The Conservation Lands are also subject to certain mitigation, monitoring and
reporting requirements in connection with the approval by the City of San Marcos of the Final
Supplemental Environmental Impact Report dated May 2003 (SCH No. 1990011013), as
certified by the City Council of the City of San Marcos on August 12, 2003 ("Final
Supplemental EIR"). Grantee, by the acceptance of this Agreement, agrees that it will, at its
sole cost and expense, perform all of the fuel management work required by this Agreement in
accordance with the Permits and the requirements of the Final Supplemental EIR. The Permits
require certain habitat mitigation measures to be performed on portions of the Conservation Land
and that the Conservation Land be held and maintained as open space in perpetuity for
conservation purposes. Proponent has obtained written confirmation from the California
Department of Fish and Game ("CDFG"), the U.S. Fish and Wildlife Service ("USFWS") and
the U.S. Army Corps of Engineers ("ACOE") (collectively the "Agencies") that Proponent's plan
to dedicate and/or convey (collectively referred to as "Transfer") the Conservation Land and
perform mitigation measures thereon is acceptable to the Agencies as mitigation for the
University Commons development and satisfies Proponent's Permit requirements ("Mitigation
Approvals"). Copies of the Mitigation Approvals for each of the parcels of the Conservation
Land are included in Notebook §§ VIII H, IX H, X H, XIH, XII H, XIII H, XIV H and XV
H.
D. The Conservation Land includes coastal sage scrub, related sage scrub, riparian
habitats, jurisdictional waters of the United States and other sensitive vegetative communities
and biological resources. Portions of the Conservation Land are suitable to the California
gnatcatcher, a species listed as state and federally threatened which nests on the Conservation
Land. The Conservation Land is a significant part of the Biological Core Area of the draft
Multiple Species Habitat Conservation Program ("MHCP") and connects large areas of natural
habitat.
E. In accordance with the conditions of the Mitigation Approvals, Proponent is
entering into this Agreement to provide for the Transfer of the Conservation Land,
implementation of a mitigation and management plan in conformance with the Agencies'
requirements and establishment of an endowment fund to ensure the maintenance and protection
of biological resources on the Conservation Land in perpetuity.
F. The terms of this Agreement satisfy Proponent's mitigation plan for the University
Commons development. Proponent's plan includes the following combination of onsite
conservation and offsite purchase of habitat:
Onsite Conservation. Each parcel of the Onsite Conservation Land, excluding the
Brouwer Parcel 1, will be Transferred to the Center upon compliance with the
California Subdivision Map Act at which time legal parcels exists, or at such time
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092804 06V3-OK9313
II
as each parcel can otherwise be legally conveyed. The Onsite Conservation Land
shall be Transferred in phases at the time of recordation of each phased final map
in conjunction with the development of University Commons or at such other
time as legal parcels exist for the Onsite Conservation Land or any portion of the
Conservation Land can otherwise be legally conveyed. At the earliest time at
which the City approves each phased final map and/or legal parcels exist or can
otherwise be legally conveyed, the Center shall accept the Transfer of that parcel
of the Onsite Conservation Land included within the property being subdivided
by the final map and/or for which legal parcels exist or parcels are otherwise
legally conveyed. Conveyance of fee title to the Brouwer Parcel 1 will occur
through escrow in accordance with the terms of Proponent's agreement to acquire
the Brouwer Parcel 1 and related escrow instructions as described below. (Note,
as of July 1,2004, Proponent has transferred fee title and Contribution for
Brouwer, Huff, Wilern and Setter and has opened escrow to transfer fee title and
Contribution to Winston, Lot 11, Frank's Peak and record a conservation
easement and make a Contribution in favor of Center over Lot 8 Areas and Pfau.
Proponent will transfer fee title to Shelley at no additional cost or expense to
Center when a final map has recorded. Proponent shall not be obligated for
additional Shelley Contribution unless the conditions of transfer (payment of
taxes and assessments, removal of liens, etc. cannot be satisfied with funds
available from the existing Contribution.)
Qffsite Purchase of Habitat. Proponent will convey fee title to the Offsite
Conservation Land (consisting of Wilern Parcel 5, Setter Parcel 6, Huff Parcel 7
and Winston Parcel 8) to the Center in accordance with the terms set forth herein.
The Center shall convey a perpetual Conservation Easement as hereinafter
defined over each parcel of the Conservation Land within sixty (60) days of
Transfer of said parcel to the Center. The Conservation Easement shall be in a
form acceptable to the Agencies, the terms of which will include the reservation
of rights described herein and ensure that the parcel conveyed is used for
permanent open space. Each Conservation Easement shall be in favor of the State
of California, acting by and through the CDFG (except for the Lot 8 Areas and the
Pfau Easement, as described below), and the ACOE shall be a third-party
beneficiary of each Conservation Easement, unless otherwise agreed by Center,
Proponent and the Agencies. The USFWS and the City shall be third-party
beneficiaries of the Conservation Easement. (Note, as of July 1, 2004, Center and
Proponent have delivered recordable Conservation Easements to CDFG.)
G. Upon Transfer of fee title to any portion of the Conservation Land and at such
time as the Center is obligated to commence management of such portion of the Conservation
Land pursuant to the terms of this Agreement, Proponent will contribute funds ("Contribution")
to the Center for the permanent management and maintenance of the open space and easement
areas within the parcel of the Conservation Land Transferred to the Center. The amount of the
Contribution for each parcel of the Conservation Land consists of the costs set forth in the
Property Analysis Record included in Notebook § VII. As set forth in the Property Analysis
Record, the Contribution is comprised of the "Initial and Capital Funds" and "Endowment
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092804 06V3-0893I3
Funds". (Note, as of July 1, 2004, Contribution for transferred parcels has been made and
Contribution for New Properties will be made at close of escrow)
H. The Center is a qualified organization within the meaning of Section 170(h) of the
Internal Revenue Code of 1986, as amended ("IRC"). The Center is also a tax exempt nonprofit
organization qualified under Section 501(c)(3) of the IRC and qualified to do business in the
State of California. The Center has as its primary purpose the management of land in an
environmentally and biologically beneficial manner consistent with state and federal
environmental laws. The Agencies have approved of the Center as being qualified to manage the
Conservation Land, and the Center wishes to commit to the management of the Conservation
Land in accordance with this Agreement.
I. The Permits for the development of University Commons require the Proponent
to install "Revegetation" on portions of Brouwer Parcel I/PA 15, Wilern Parcel 5 and Huff
Parcel 7 as set forth in the restoration plans included in Notebook §§ VIII E, XII E and XIV E
("Revegetation Areas") and "Monitor" the success of the Revegetation for a certain period of
time. Revegetation and Monitoring is also required by Proponent on Lot 11, PA's 2 and 13 and
Winston Parcel 8 pursuant to the Permits for the development of University Commons.
Revegetation and Monitoring obligations for Shelley Parcel 4/PA 12b will be outlined with the
transfer of that parcel.
J. Proponent will be responsible for installing the Revegetation within the
Revegetation Areas and Monitoring the progress of the Revegetation in accordance with the
requirements of the restoration plans referenced in Recital I and the Permits for the development
of University Commons. Upon Transfer of the each parcel which includes the Revegetation
Areas and certification as hereinafter described that the Revegetation work is complete, the
Center will maintain the Revegetation Areas in accordance with the terms of this Agreement.
The Transfer of the Conservation Land and the grant of access rights as described herein and in
the form substantially similar to Notebook § VI ("Access Rights") and Conservation Easements
will be subject to Proponent's and its successors and assigns' right to maintain and Monitor the
Revegetation. The Center's obligation to maintain the Revegetation Areas shall commence after
such time as Dudek & Associates (i) certifies in writing to Center and Proponent that the
Revegetation work is complete, and (ii) Center and the appropriate Agency or Agencies issuing
permits (City of San Marcos, Army Corps, USFWS and/or CDFG) have concurred with such
certification. Thereafter, the Center shall accept the Revegetation Areas for maintenance. If
Dudek has not previously transferred to Center the biotechnical data contained in its reports, it
shall do so at such time. Center shall use such biotechnical data to establish baselines for
management and monitoring of the Conservation Lands.
K. The Conservation Land is generally described herein. Compliance with the
California Subdivision Map Act to create legal parcels or some other means of legally conveying
parcels is required prior to Transfer of any parcel of the Onsite Conservation Land (excluding the
Brouwer Parcel 1) to the Center. The Offsite Conservation Land and Brouwer Parcel 1 will be
Transferred to the Center in accordance with and consistent with the Permits for University
Commons and the terms of this Agreement. Each parcel of the Conservation Land shall be
Transferred to the Center according to the procedures described in this Agreement.
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092804 06V3-089313
Nevertheless, the Center shall begin management of the Conservation Land at the time specified
herein for each of the parcels (hereinafter referred to as the "Management Dates").
L. The parties acknowledge and agree that all obligations of each party under the
Original Agreement have been substantially satisfied and discharged as of the date of this
Agreement, that there is no breach or default presently existing under the Original Agreement,
and that neither party has any claim against the other party arising under the Original Agreement,
all such obligations having been fulfilled, or yet-to-be completed, as set forth in this Amended
and Restated Agreement or in escrow instructions for the transfer of the New Properties.
NOW THEREFORE, the parties agree as follows:
1. Transfer of Conservation Land. Each grant deed Transferring fee title to the
Conservation Land shall be substantially similar to the form included in Notebook § IV ("Grant
Deed").
2. Conservation Easement. The Conservation Land shall be subject to a perpetual
conservation easement in favor of the Agencies for biological conservation purposes
("Conservation Easement"). The Conservation Easement shall be in a form acceptable to the
Agencies which is substantially similar to the form included in Notebook § V, or as otherwise
agreed by the parties hereto and the Agencies. Each Conservation Easement (except the Lot 8
Areas and the Pfau Easement) shall be in favor of the State of California, acting by and through
the CDFG and the ACOE shall be a third-party beneficiary of the Conservation Easement, unless
otherwise agreed by the parties hereto and the Agencies. Proponent shall grant a Conservation
Easement over the Lot 8 Areas and the Pfau Easement to the Center, naming the Agencies as
third party beneficiaries.
3. Reservation of Rights. The Grant Deed and Conservation Easement shall be
subject to and/or expressly reserve the following rights for Proponent and its successors, assigns,
agents and employees: (i) the right to dedicate right-of-way and grant easements for slopes,
drainage, temporary and permanent access, utilities, construction and maintenance of public
trails; (ii) the right of ingress and egress for construction and maintenance of sewer and drainage
facilities; (iii) the right to perform brush management activities; (iv) the right to perform
mitigation, restoration and management activities required as a condition of any local, state or
federal permit or approval, including installation, monitoring and maintenance; (v) the right to
plant, install and maintain indigenous plant materials and irrigation facilities consistent with
open space property; (vi) the right to install and maintain fences consistent with open space
property; (vii) the right to request that Center grant easements to third parties for purposes
consistent with this Agreement (Center's approval of the same not to be unreasonably withheld);
(viii) the right to engage in any other use consistent with the purpose of the Conservation Land
as open space property; and (ix) the right to create conservation or mitigation credits and to allow
the City of San Marcos and City of Carlsbad to do so as well; (collectively referred to herein as
"Reserved Rights"). In addition to the Reserved Rights, the express rights reserved for each
parcel of the Conservation Land are more particularly described below and in Notebook §§ VIII
F, IX F, X F, XI F, XII F, XIII F, XIV F and XV F
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092804 06V3-0893I3
10
3.1 Temporary License. Prior to conveyance of the Conservation Land to the
Center and/or prior to the availability of permanent access to the Conservation Land, the Center
may need temporary access to the Conservation Land and/or portions of property owned by
Proponent to perform certain activities to carry out the purposes and intents of this Agreement.
Subsequent to conveyance of the Conservation Land to the Center, Proponent may need access
to the Conservation Land to perform certain activities to develop University Commons. Said
activities of the Center and Proponent (collectively referred to as the "Work") are defined as
follows:
Definition of Work
Center: The Center's activities constituting the Work may include management
of the Conservation Land, along with monitoring, maintenance, repair, restoration
and remedial measures.
Proponent: Proponent's activities constituting the Work may include
construction and maintenance of trails and subdivision improvements, including
utilities, performance of brush management activities, mitigation, restoration and
management activities, activities associated with the Reserved Rights described
herein, and other activities associated with the development of University
Commons.
Grant of Temporary License. Subject to the terms and conditions set forth herein,
each party shall have and is hereby granted a non-exclusive temporary license to
enter the Conservation Land while such property is in the possession of the other
party for the purpose of, and to the extent required to perform the Work. The
parties shall not permit any other party, except the duly authorized representatives
of the Agencies and the parties' employees, agents, and contractors (collectively
"Representatives"), to enter or use the Conservation Land during the term of the
license agreement set forth in this §3.1 ("License Agreement") without the other
party's prior written consent.
Performance of the Work. The parties and their Representatives shall: (a)
perform the Work in a diligent, expeditious and safe manner; (b) not allow any
dangerous or hazardous condition to continue beyond the completion of the
Work; (c) comply with all applicable laws and governmental regulations; (d) keep
the Conservation Land free and clear of all mechanic's liens and lis pendens or
other Hens arising out of entry and the Work performed on the Conservation Land
by the parties or their Representatives; and (e) indemnify, defend and hold the
other party harmless from and against any and all mechanic's liens, lis pendens or
other liens arising out of entry upon and the Work performed on the Conservation
Land by the parties or their Representatives.
Costs of Performing the Work. Except as otherwise provided herein, all costs and
expenses of performing the Work, including, but not limited to, inspection fees,
professional fees for design and engineering, permit fees, environmental
clearance, including mitigation and monitoring for impacts to resources affected
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092804 06V3-089313
2,1
by performance of the Work shall be the sole responsibility of the party
performing the Work. The party performing the Work shall obtain, at its sole cost
and expense, all governmental permits and authorizations of whatever nature
required by all applicable governmental agencies for performance of the Work.
Reciprocal General Indemnification. Each party shall, and hereby agree to,
defend (with legal counsel acceptable to the other party), indemnify, protect and
hold harmless the other party and their partners, shareholders, directors, officers,
successors, affiliates, assigns, employees, agents, contractors, subcontractors and
representatives (collectively "Indemnitees") from and against any and all claims,
damages, demands, actions, causes of action, losses, liabilities and obligations
(including, without limitation, attorneys' fees and defense costs), of any kind or
nature whatsoever, arising out of, or in any way related to, directly or indirectly,
this Agreement, each party's entry upon the Conservation Land and/or the Work
performed, including, but not limited to: (i) any act or omission of the Parties or
their Representatives, or any other persons performing all or any portion of the
Work; (ii) personal injury and/or property damage arising out of or in any way
connected with the performance of all or any portion of the Work; and (iii)
mechanic's liens, provided, however, that the parties' duty to indemnify and hold
harmless shall not apply to those incidents or claims arising from the sole
negligence or willful misconduct of the other party or its Indemnitees.
Notice of Commencement of Work. At least two (2) business days prior to
commencing the Work on the Conservation Land, the party performing the Work
shall give written notice to the other party in possession of the Conservation Land
of the date on or about which all or any portion of the Work will commence. The
party in possession of the Conservation Land shall have the right to post and
record notices of non-responsibility in the manner provided by law and to have a
representative present when the Work is performed.
Insurance. Each party shall secure and maintain, or shall cause their
Representatives performing the Work to secure and maintain, at its or their sole
cost and expense, the following policies of insurance which are to include
coverage for any of the parties' activities or the activities of their Representatives
on the Conservation Land in connection with performance of the Work:
Comprehensive commercial general liability insurance, including coverage for
personal injury and property damage, with limits of One Million Dollars
($1,000,000) for each occurrence; and Two Million Dollars ($2,000,000) policy
limit for general aggregate operations on an occurrence basis; Comprehensive
automobile liability insurance; and Worker's compensation and employer's
liability insurance in accordance with the provisions of California law.
The policies of insurance described above shall each name the other party in
possession of the Conservation Land as an additional insured. Certificates of
Insurance ("Certificate") evidencing the insurance policies described herein shall
be delivered by the party performing the Work or its Representatives to the other
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092804 06V3-089313
2,2,
party in possession of the Conservation Land prior to commencement of any of
the Work on the Conservation Land by the party or its Representatives. If the
policy is canceled before the Work is completed or the permission granted herein
is terminated for any reason whatsoever, the party's rights with regard to entry on
the Conservation Land by the party or its Representatives shall automatically
terminate.
Any of the foregoing insurance may be provided under blanket or wrap insurance
policies maintained by the parties or by the parties furnishing the other party in
possession of the Conservation Land with a letter evidencing that the parties
maintain a comprehensive program of risk retention and insurance. Such letter
shall be provided prior to the commencement of any of the Work on the
Conservation Land by the parties or their Representatives and shall also state that
the protection provided under such comprehensive program of risk retention and
insurance is equivalent to the insurance specified herein.
Survival of Conditions. The covenants and indemnities contained in this License
Agreement shall survive any termination or expiration of this License Agreement,
completion of the Work, or the permission granted herein.
Termination. This License Agreement shall automatically be terminated and of
no further effect as to each parcel of the Conservation Land when the Work
located thereon has been completed or permanent access is provided, whichever
occurs first.
4. Transfer of Qnsite Conservation Land. Transfer of the parcels of Onsite
Conservation Land shall occur as follows:
4.0 With respect to the New Properties, and the Parcels listed below, Center
shall cooperate with Proponent as Proponent fulfills its obligations as set forth in the
Conservation Easements, and will cooperate with Proponent by reviewing, approving, in its
reasonable discretion, and recording or consenting to the recordation of instruments that
encumber the Conservation Land as set forth in the table of "Easements and Quitclaims
Needed" prepared by O'Day Consultants (Meg Carroll) on 6/21/2004 (easements 3302004).
Furthermore, Center will cooperate with Proponent by reviewing, approving, in its reasonable
discretion, and consenting to recordation of additional instruments encumbering the
Conservation Land after the Transfer date, as reasonably necessary for access and similar
purposes in connection with the development of the University Commons projects; provided that
such additional instruments do not impair the conservation purposes of the Conservation Land, in
Center's reasonable judgment. Such cooperation shall not increase any burden agreed to by
Center or increase Center's costs without offsetting reimbursement or increase in Contribution
from Proponent.
4.1 Brouwer Parcel I/PA 15. Proponent shall cause fee title to Brouwer
Parcel I/PA 15 to be Transferred through escrow to the Center or to a grantee mutually
acceptable to the Agencies and Proponent in accordance with Section 8.12 of Proponent's
Purchase Agreement and Escrow Instructions whereby Proponent is acquiring Brouwer Parcel
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092804 06V3-089313
I/PA 15. Transfer of Brouwer Parcel I/PA 15 shall occur in accordance with and consistent with
the Permits for University Commons, provided that the following express rights are reserved for
Proponent and its successors, assigns, agents and employees:
Proponent's Reserved Rights and Proponent's Obligations:
Slope, drainage and utility rights along Melrose Drive, including rights for design
and construction of Melrose Drive
Right-of-way and easements for construction and maintenance of trails
Access rights to SDG&E utility easement
Access rights for wetlands mitigation, restoration and monitoring by Proponent
and the City of Carlsbad
Access rights for rock quarry cleanup and maintenance
Easement for the right to discharge water upon the land resulting from the
extension of Melrose Drive across San Marcos Creek
Access rights and obligations for restoration, monitoring, and mitigation, as well
as rights to create conservation or mitigation credits (In addition to Proponent,
City of San Marcos and/or City of Carlsbad may undertake restoration/creation
and be beneficiaries of such credits)
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easements in favor of the Agencies
Access Rights:
Temporary access to Brouwer Parcel 1 via the License Agreement described in
Section 3.1 above over Proponent's property at a mutually acceptable location
which license will automatically terminate when Melrose Drive has been
constructed and is open for public use.
Permanent access rights to Brouwer Parcel 1 via Melrose Drive
The Center's Management Date for the Revegetation Areas within Brouwer Parcel 1 shall
commence at such time as Dudek & Associates certifies in writing that the Revegetation work is
complete (subject to Center and Agency concurrence) at which time the Center shall accept the
Revegetation Areas for maintenance. The Center's Management Date for all remaining areas of
Brouwer Parcel 1 other than the Revegetation Areas shall commence immediately upon Transfer
of Brouwer Parcel 1 to the Center.
4.2 Brookfield Northern Parcel 2/PA's 2 and 16. Proponent shall Transfer
Brookfield Northern Parcel 2/PA 2 & 16 to the Center upon compliance with the California
Subdivision Map Act and the creation of legal parcels or at such time as the property can
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092804 06 V3-089313
otherwise be legally conveyed. At such time, Proponent shall Transfer fee title to said parcel to
the Center. The following rights shall be reserved for Proponent and its successors, assigns,
agents and employees over Brookfield Northern Parcel 2/PA's 2 & 16.
Proponent's Reserved Rights and Obligations:
Right to grant slope, fuel management and drainage easements, including rights
and obligations for grading, construction and maintenance of manufactured slopes
within Brookfield Northern Parcel 2A/PA2
Right to grant right-of-way and easements for construction and/or maintenance of
trails
Access rights across SDG&E utility corridor for Brookfield Northern Parcel
2B/PA 16—which rights shall be shared with, assigned to or obtained for Center
by Proponent
Consent Agreement with Sempra Energy/SDG&E
Reserved Rights described in Section 3 above
Center shall not be responsible for manufactured slopes that have ornamental
landscaping and/or any slopes that terminate at rear yards of homeowners that are
intended to be maintained by the Homeowners' Association.
Agencies Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Access rights to Brookfield Northern Parcel 2A/PA 2, which have already been
granted.
The Center's Management Date for Brookfield Northern Parcel 2/PA's 2 & 16 shall
commence at such time as compliance with the California Subdivision Map Act occurs and legal
lots are created within said parcel 2/PA's 2 & 16 or at such earlier time as said property can
otherwise be legally conveyed.
4.3 Brookfield Southern Parcel 3/PA's 13. 14 & 6a. Proponent shall Transfer
Brookfield Southern Parcel 3/PA's 13, 14 & 6a to the Center upon compliance with the
California Subdivision Map Act and the creation of legal parcels or at such time as the property
can otherwise be legally, conveyed or Conservation Easements recorded. At such time,
Proponent shall Transfer fee title to PA's 13 & 14 and Lot 11 and a Conservation Easement(s)
over Lot 8 areas to the Center. New Properties included in Brookfield Southern include Lot 8
Areas and Lot 11 for which Proponent has revegetation and wetlands mitigation obligations as
set forth in its permits and the Conservation Easements. Within PA 13 (part of Brookfield
Southern), Proponent has slope restoration/maintenance obligations as set forth in its permits and
the Conservation Easements.
The following rights shall be reserved for Proponent and its successors, assigns,
agents and employees over of Brookfield Southern Parcel 3/PA's 13, 14 & 6a.
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092804 06V3-0893I3
Proponent's Reserved Rights and Obligations:
Slope and drainage rights and obligations for grading and restoring slopes and
wetland areas within Brookfield Southern Parcel 3
Street vacation of existing San Elijo Road for Brookfield Southern Parcel 3
Access rights across SDG&E utility corridor and along existing dirt road Right-
of-way and easements for construction and/or maintenance of trails
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Temporary access rights to Brookfield Southern Parcel 3 are not required after the
SDG&E Consent Agreement is transferred to the Center.
Permanent access rights to Brookfield Southern Parcel 3 from San Elijo Road for
the western portion of the property and a Consent Agreement for access through
the SDG&E parcel for the eastern portion of Brookfield Southern Parcel 3.
Proponent to allow Center to access PA 14 over this SDG&E parcel, or otherwise
arrange for Center to have access to PA 14 via this SDG&E parcel.
The Center's Management Date for Brookfield Southern Parcel 3 shall commence at such
time as compliance with the California Subdivision Map Act occurs and legal lots are created
within said Parcel 3 or at such earlier time as said property can otherwise be legally conveyed,
and accepted by Center and the Agencies, except for those areas of Lot 11 and the Lot 8 Areas
where Proponent retains revegetation/restoration obligations. When those obligations are
complete, Center will assume management of those areas.
4.4 Shelley Parcel 4/PA 12b. Proponent shall Transfer that portion of the
Shelley Parcel 4 (PA 12b) proposed for dedication as open space to the Center upon compliance
with the California Subdivision Map Act and the creation of legal parcels or at such time as the
property can otherwise be legally conveyed. At such time, Proponent shall Transfer fee title to
said portion of Shelley Parcel 4 (PA 12b) to the Center. The following rights shall be reserved
for Proponent and its successors, assigns, agents and employees over such portions of Shelley
Parcel 4/P A 12b:
Proponent's Reserved Rights and Obligations:
Access rights for performing brush management activities
Slope and drainage rights and obligations for grading slopes within Shelley Parcel
4 and any Revegetation and Monitoring that may be required pursuant to
Proponent's Permits for the University Commons project.
Slope, drainage and utility easements
Right-of-way and easements for construction and/or maintenance of trails
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092804 06V3-089313
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Temporary access via the License Agreement described in Section 3.1 above over
Proponent's property at a mutually acceptable location which license will
automatically terminate when other permanent access is available.
Permanent access to the open space portion of Shelley Parcel 4 through Streets
"A" and "H", a connective access easement from Streets "A" and "II" to Parcels
"A" and "D" of Shelley Parcel 4 respectively, and an existing private road
easement to Parcels "B" and "C" of Shelley Parcel 4, and any other points shown
on the Shelley Final Map. Prior to accepting a Grant Deed to Shelley, Center will
need to be assured of practical and legal access to every point on the Shelley
parcel(s).
The Center's Management Date for the Shelley Parcel shall commence at such time as
compliance with the California Subdivision Map Act occurs and legal lots are created for that
portion of the Shelley Parcel designated as open space or at such earlier time as that portion of
said property can otherwise be legally conveyed.
5. Transfer of Offsite Conservation Land. Transfer of the parcels of Offsite
Conservation Land shall occur as follows:
5.1 Wilern Parcel 5. Proponent shall Transfer fee title to Wilern Parcel 5 to
the Center in accordance with and consistent with the Permits for University Commons, provided
that the following rights are reserved for Proponent and its successors, assigns, agents and
employees:
Proponent's Reserved Rights and Obligations:
Access rights to perform trash removal, restoration and monitoring obligations
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Temporary access to Wilern Parcel 5 is not required after the SDG&E Consent
Agreement is transferred to the Center.
Permanent access via access easements over the Duckworth and the Stalford
parcels to the north from Via Del Corvo which will be appurtenant to Wilern
Parcel 5 and to the Environmental Trust parcel to the south together with a
Consent Agreement with SDG&E for access through the SDG&E easements now
existing on Wilern Parcel 5 and the Environmental Trust parcel.
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The Center's Management Date for the Revegetation Areas within Wilern Parcel 5 shall
commence at such time as Dudek & Associates certifies in writing that the Revegetation work is
complete (with Center and Agency concurrence) at which time the Center shall accept the
Revegetation Areas for maintenance. The Center's Management Date for all remaining areas of
Wilern Parcel 5 other than the Revegetation Areas shall commence immediately upon Transfer
of Wiiern Parcel 5 to the Center.
5.2 Setter Parcel 6. Proponent shall Transfer fee title to Setter Parcel 6 to the
Center in accordance with and consistent with the Permits for University Commons, provided
that the following rights are reserved for Proponent and its successors, assigns, agents and
employees:
Proponent's Reserved Rights:
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Access rights through existing private road easement
The Center's Management Date for Setter Parcel 6 shall commence upon Transfer of fee
title to Setter Parcel 6 to the Center.
5.3 Huff Parcel 7. Proponent shall Transfer fee title to Huff Parcel 7 to the
Center in accordance with and consistent with the Permits for University Commons, provided
that the following rights are reserved for Proponent and its successors, assigns, agents and
employees:
Proponent's Reserved Rights and Obligations:
Access rights to perform restoration and monitoring obligations
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Access rights through Hidden Canyon Road off San Elijo Road
The Center's Management Date for the Revegetation Areas within Huff Parcel 7 shall
commence at such time as Dudek & Associates certifies in writing that the Revegetation work is
complete (with Center and Agency concurrence) at which time the Center shall accept the
Revegetation Areas for maintenance. The Center's Management Date for all remaining areas of
Huff Parcel 7 other than the Revegetation Areas shall commence immediately upon Transfer of
Huff Parcel 7 to the Center. Once Proponent has removed the "mulch", Center will accept
responsibility for upland revegetation at Huff. In exchange Proponent will increase Huff I&C
Contribution by $100,000. Center has obtained Agency approval to operate or cause to be
operated by third parties, a native plant nursery at Huff. Center will complete the revegetation at
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such time as the nursery operations cease. Center will work with Proponent and Dudek, if it so
elects, to obtain municipal water service to APN's 223-081-09, 10 within Huff Parcel 7, and
Center and Proponent will share in the cost of such water service (in proportion to their
respective water usage) so long as Proponent is responsible for Revegetation and Monitoring.
5.4 Winston Parcel 8. Proponent shall Transfer fee title to Winston Parcel 8 to
the Center in accordance with and consistent with the Permits for University Commons, provided
that the following rights are reserved for Proponent and its successors, assigns, agents and
employees:
Proponent's Reserved Rights and Obligations:
Easement to perform brush management activities
Right-of-way and easements for construction and/or maintenance of trails
Slope and drainage rights for grading, construction and slope maintenance
obligations
Reserved Rights described in Section 3 above
Agencies1 Reserved Rights:
Conservation Easement in favor of the Agencies
Access Rights:
Permanent access rights via private road easement to San Elijo Road
The Center's Management Date for Winston Parcel 8 shall commence upon Transfer of
fee title to Winston Parcel 8 to the Center.
5.5 Pfau Easement. Proponent shall Transfer an easement interest in the Pfau
Easement to the Center in accordance with and consistent with the Permits for University
Commons, provided that the following rights shall be reserved for Proponent and its successors,
assigns, agents and employees:
Proponent's Reserved Rights:
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
The Center's management date for the Pfau Easement shall immediately commence upon
Transfer of the same to the Center.
5.6 Frank's Peak. Proponent shall Transfer a fee simple interest in Frank's
Peak to the Center in accordance with and consistent with the Permits for University Commons,
provided that the following rights shall be reserved for Proponent and its successors, assigns,
agents and employees:
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Proponent's Reserved Rights:
Reserved Rights described in Section 3 above
Agencies' Reserved Rights:
Conservation Easement in favor of the Agencies
The Center's management date for Frank's Peak shall commence immediately upon
Transfer of the same to the Center.
6. Obligations Prior to Conveyance. The Center and Proponent agree to satisfy the
following obligations prior to Transfer of any parcel of the Conservation Land.
6.1 Walk Through. Within fourteen (14) days prior to the date of Transfer of
any parcel of the Conservation Land, the Center shall conduct a physical examination ("Walk
Through") of the Conservation Land. Within three (3) days after the Walk Through, the Center
shall provide a written list to Proponent of property conditions needing correction by Proponent,
including, but not limited to, dumping or dangerous conditions. Once the Center is satisfied with
the condition of the Conservation Land, the Center shall provide a written "Notice of Approval
of Physical Condition" to Proponent.
6.2 Title Review. Within thirty (30) days prior to the Transfer of any parcel
of the Conservation Land, Proponent shall provide Center with a title report or title policy
covering all the Conservation Land. Within fourteen (14) days after receipt of such title report or
title policy, the Center shall provide a written notice to Proponent setting forth any objections
thereto, including, but not limited to, objections to any liens, leases, mineral and water rights, or
other restrictions that have not been approved by the Center, or the inclusion of the property in a
special district with taxing authority that has not been approved by the Center. If the Center has
no such objections, or Proponent has removed all exceptions to which the Center objected, the
Center shall provide a written "Notice of Approval of Title" to Proponent. The special districts
(special district taxes are not included on title reports), taxing entities and exceptions to title for
each parcel that the Center must review and approve or provide a written notice of objections
prior to Transfer of such parcel are included in Notebook §§ VIII C, IX C, X C, XI C, XII C,
XIII C, XIV C and XV C. (As of July 1, 2004, additional special district obligations have
attached to various Conservation Land parcels or have proved impossible to prepay or remove—
particularly CSA 107, Elfin Forest Fire Protection with respect to Huff. Proponent will increase
the Contribution in an amount sufficient, in Center's reasonable determination, to allow Center to
pay such assessments as they become due; provided, however, that if Center is able to obtain a
permanent exemption from any such assessment, it will refund to Proponent any unused
Contribution associated with such assessment. Proponent has identified various other special
districts with liens or which have filed notices of potential lien over Conservation Land. In each
case, Proponent believes such liens exempt open space or vacant land from paying tax.
Proponent agrees to indemnify and hold harmless Center from any cost or expense associated
with such special district taxes and assessments. For example, while CFD's 2001-1 and 2002-1
exempt vacant land from the ongoing special tax, such lands are not exempt from the "One time
Special Tax" which can be levied when Proponent's subdivision maps are recorded. Should there
be such levy, Proponent will promptly reimburse Center upon Center's delivery of evidence that
it has been assessed, and has paid, such tax.)
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6.3 Title Insurance. Title insurance for any parcel of the Conservation Land
will be procured by Proponent in an amount and in a form acceptable to Center prior to the
Transfer of any of the Conservation Land to the Center. To the extent encumbrances which were
agreed by Proponent to be removed from parcels transferred prior to July 1, 2004 were not
removed from Schedule B of title insurance policies delivered to Center by Proponent, Proponent
will assist Center, at no cost to Center, in obtaining title insurer's corrected schedules and/or
policy endorsements.
6.4 Phase 1 Environmental Site Assessments ("ESA's".). Proponent shall
provide Center with ESA's that are less than 6 months old for the New Properties and properties
to be transferred and Center shall review such ESA's, giving Proponent written approval or
disapproval, with a list of conditions to be cured by Proponent prior to close of escrow, within 30
days of the intended close of escrow ("Notice of Approval of ESA's").
6.5 Deliveries. Within seven (7) days after Proponent's receipt of the Center's
Notice of Approval of Physical Conditions, Notice of Approval of ESA's and Notice of Approval
of Title, Proponent shall deposit into escrow with Chicago Title Company or some other
mutually acceptable title company ("Escrow Holder"): (a) the Conservation Easement(s), Grant
Deed or Grant Deed(s) conveying the Conservation Land to the Center; (b) a grant of the Access
Rights and other rights reserved herein, if any; (c) sufficient funds to cover escrow, title and
recording costs; (d) the Contribution for the parcel of the Conservation Land to be Transferred,
and (e) other funds agreed to among the parties, such as the Huff upland restoration funds, funds
to pay delinquent taxes, funds to pay assessments, and funds to reimburse Center for its due
diligence expenses. The Escrow Holder shall thereafter cause to be recorded: (a) the
Conservation Easement(s), Grant Deed or Grant Deed(s) Transferring the Conservation Land to
the Center. Upon recordation of (a) the Conservation Easement(s)Grant Deed or Grant Deed(s)
Transferring a parcel of the Conservation Land to the Center, Escrow Holder shall deliver the
Contribution for the parcel Transferred to the Center and the other funds. The date on which
Proponent makes these deliveries shall be referred to herein as the "Conveyance Date."
6.6 Open Space Designation, Proponent will secure open space, nature
preserve, or the similar designation acceptable to the Agencies for each of the parcels in the On
Site Conservation Land prior to Transfer. Proponent agrees that Center may apply for similar
designation over any Off Site Conservation Land parcels.
6.7 Amount of Contribution on the Conveyance Date. The amount of the
Contribution is contingent on the Conservation Land being exempt from property taxes. If the
Center determines that certain taxes reflected on the property tax statement will be levied on the
Conservation Land, an increase in the Contribution for the parcel subject to such taxes will be
required. In addition, on the Conveyance Date, the amount of the Contribution for each parcel
will be increased based on an adjustment for inflation using the Consumer Price Index (CPI All
Urban Consumers, 1982 1984 = 100) for Los Angeles Anaheim Riverside as published by the
Bureau of Labor Statistics of the U.S. Department of Labor. If the Center chooses to so adjust
the amount of the Contribution for any parcel of the Conservation Land, the additional amount
will be determined by multiplying the Contribution for that parcel by a fraction, the numerator of
which is the CPI for the month that is two months prior to the Conveyance Date, and the
denominator of which is the current CPI at the time of execution of this Agreement.
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6.8 Center may deliver to CDFG and any other agencies the Title Reports and
Phase 1 Environmental Site Assessments provided by Proponent if required to do so in
connection with its obligations under the Conservation Easements. Proponent has cooperated
with Center in this undertaking by providing such documents to Center, and shall provide
reasonable assistance in this regard in the future by providing and distributing additional copies
of documents and related information as reasonably requested by Center.
7. Proponents Obligations
7.1 Survey Markers. If the Center deems necessary, Proponent shall survey
and mark the legal boundaries for any parcel of the Conservation Land with permanent markers
by the Management Date established for such parcel in this Agreement.
7.2 Access. Subject to the terms and conditions set forth in Section 3.1 herein,
by this Agreement, Proponent gives all rights of access, as those rights are described herein, to
the Conservation Land to the Center, Center's employees, contractors and representatives as of
the Management Date, reserving for Proponent the rights specified herein. The Proponent shall
not suffer or permit to be enforced against the Conservation Land or any part hereof any
mechanics', laborers', materialmen's, contractors' or any other liens arising from, or any claims
for damages growing out of any work or other activities by the Proponent or its representatives
or invitees under this rights reserved herein (collectively, "Liens"). The Proponent hereby
protects, defends, indemnifies and agrees to hold the Center, its agents, officers, and employees
free and harmless from all liability for any and all such Liens, together with all costs and
expenses, including but not limited to attorneys' fees and court costs reasonably incurred by the
Center in connection therewith. Proponent's obligation hereunder to protect, defend, indemnify
and hold harmless shall not include liability arising out of, caused by or connected with the sole
negligence of the Center.
7.3 Obligations to Manage Subsequent to Management Date. Proponent shall
have no obligation to bear the cost of, or maintain, manage, repair or construct improvements
upon the Conservation Land after the Management Date, except to the extent the following
obligations remain unsatisfied.
(a) Proponent shall be responsible for the Revegetation of the
Revegetation Areas and shall contract separately for the Monitoring of the Revegetation until
such Revegetation area are certified in writing by Dudek & Associates (or equivalent firm) as
being complete and the Center and Agencies have concurred. Upon completion of the
Revegetation by Proponent, the Center shall maintain the Revegetation Areas and Proponent
shall have no further responsibility for Revegetation or Monitoring of such areas.
(b) Proponent shall be responsible for ensuring that the Covenants,
Conditions and Restrictions (CC&Rs) for Proponent's projects shall contain a description of the
Conservation Land, the Permits, and the reasons for its protection. Following the date of this
Agreement, Center may deliver a letter to each Homeowners' Association for University
Commons (with a copy of the same to Proponent) describing Center's purpose and mission of
managing the Conservation Lands. Center and Proponent agree that each homeowner or
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32.
Homeowners' Association or Community Facilities District 98-02 shall maintain the fence
between the property and the Conservation Land.
(c) Proponent has arranged for managing and funding all fuel
modification zones over the Conservation Lands within the University Commons Specific Plan
boundaries that are required by the existing Specific Plan and all other governmental
requirements existing as of the date of this Agreement for Proponent's projects, and has
documented or will document the same as a requirement of the Homeowners Associations for
Proponent's projects in the appropriate CC&R's. Easements over such fuel modification zones
have been granted or will be granted to adjacent property owners (for subsequent transfer to such
Homeowners Associations) in the form of the Fuel Modification, Landscape Installation, Slope
Maintenance and Access Agreement attached as Exhibit B ("Easement Form"), which form
provides for expansion of such fuel modification areas in the future as set forth in Sections 2.3
and 2.4 thereof. The Easement Form shall be used in all cases where any fuel modification,
landscape installation, slope maintenance, drainage facility maintenance or similar right of entry
or access occurs on Conservation Land as permitted under this Agreement. The areas currently
granted are as shown in the map entitled "CNLM Land Management Areas in University
Commons with Homeowners Association Fuel Modification Easements Highlighted", which is
attached hereto as Exhibit D. Neither Center nor Proponent is currently obligated to conduct
any additional fuel modification on any of the Conservation Lands.
(d) Proponent or its designee or assignee pursuant to an agreement in
the form of Exhibit B shall be responsible for all manufactured slopes and revegetated areas until
its Monitoring period terminates and Center accepts responsibility for those areas.
(e) The Center shall not be responsible for manufactured slopes in
PA 2 or PA 12b (if any), or for any manufactured slopes that have ornamental landscaping
and/or for any slopes that terminate at rear yards of homeowners that are intended to be
maintained by the Homeowners' Association.
8. Center's Obligations. The Center shall maintain the Transferred parcels of the
Conservation Land in compliance with the Agencies' requirements and pursuant to the terms
herein and the Property Analysis Record ("PAR") attached as Exhibit "C" hereto. The Center's
obligations include, but are not limited to, the following:
8.1 Center shall monitor and manage all Conservation Lands except the Lot 8
Areas and the Pfau Easement, where Center's only duty shall be to monitor Grantor's
performance under the Conservation Easement and report to the Agencies.
8.2 Reveeetation and Wetland Restoration Areas. The Center shall be
responsible for maintaining the Revegetation Areas and wetland restoration areas after the
Revegetation and wetland restoration is complete. The Center shall have no obligation to install
Revegetation or restore wetlands or Monitor the Revegetation or wetlands work. Center shall
manage Revegetation Areas and restored wetland areas after Dudek & Associates notifies
Center, certifies in writing that the Revegetation and wetlands work has been completed by the
Proponent, and the Center and Agencies have concurred. Before such time as Center accepts
management responsibility, Dudek & Associates shall turn over the biotechnical data in their
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reports to Center for use as "baseline" information in Center's monitoring and management of the
Conservation Lands.
8.3 Boundary Signs and Fences. Gates. The Center shall be responsible for all
maintenance, repair and replacement of the boundary signs and fences and gates designating the
Conservation Land. Proponent is responsible for their initial installation, at the request of
Center, and for repair and maintenance of such signs, fences and gates in wetlands restoration
areas until the Center and Agencies concur that restoration work has been completed.
8.4 Monitoring. The Center shall systematically monitor the biological
resources on the Conservation Land per the standardized guidelines. An annual biological
assessment shall be conducted to consistently monitor changes in the habitat over time, establish
presence and absence of sensitive species, and photo document these changes into a permanent
record. The Center shall develop a management plan in the first year and update such plan every
five (5) years. Biologists, working on behalf of the Center, conducting the surveys shall have the
necessary federal permits.
8.5 Patrolling. The Center shall patrol the Conservation Land with the
intention of preventing unwarranted trespass or illegal use of the land. Off road vehicle use shall
not be permitted on the Conservation Land. Center will cooperate with the City of San Marcos
in making trails on Conservation Lands accessible to the public. This assumes Proponent or City
will construct the trails, gates and fences shown on Proponents approved plans; that the City will
maintain and patrol the trails; and that the City will indemnify and hold harmless the Center from
any cause of action, damage or loss associated with its or the public's use of the trails. From time
to time, should public access or use of trails temporarily threaten the conservation values of the
Conservation Lands, Center may close one or more trails. Should trail use permanently threaten
the conservation values, Center may request City relocate or close one or more trails.
8.6 Non-native Species. The Center shall institute programs to monitor and
remove non native plant and animal species within the Conservation Land, except that the Center
shall not be responsible for cowbird trapping on the Conservation Lands. In doing so, Center
may use best practices and operate under its own policies with respect to the use of rodenticides,
herbicides and other chemical or mechanical control or removal methods, including prescribed
burning or grazing, even though such methods may be prohibited under a Conservation
Easement, but are allowable pursuant to applicable Agency rules and regulations, and local, state
and federal law.
8.7 General Maintenance. All general maintenance activities shall be
performed on a regularly scheduled basis. The Center shall be responsible to report dumping on
the Conservation Land to the relevant law enforcement authority. The Center shall be
responsible for all aspects of the maintenance and administrative obligations set forth in this
Agreement, including government and community relations, and the hiring of any contractors.
Upon Transfer of any parcel of the Conservation Land, the Center shall retain all responsibility
and bear all costs and liabilities of any kind concerning the ownership, operation and
maintenance of any such parcel of the Conservation Land, including maintaining comprehensive
liability insurance, except as otherwise set forth in this Agreement or the Conservation
Easement. At such time, the Center shall pay before delinquency all taxes, assessments, fees, and
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3'M
charges of whatever description levied on or assessed against such parcel by competent
authority—-although Center may have recourse to the Proponent for reimbursement of certain
assessments as outlined in Section 6 of this Agreement. The Center shall keep the Transferred
parcel free of any liens arising out of any work performed for, materials furnished to, or
obligations incurred by the Center.
8.8 Conservation Easement. Within 60 days of Transfer of fee title to any
parcel of the Conservation Land, the Center shall convey a perpetual Conservation Easement as
defined herein over each such parcel of the Conservation Land that is Transferred to the Center.
The Conservation Easement shall be in a form acceptable to the Agencies, the terms of which
will include the reservation of rights described herein and ensure that the parcel conveyed is used
for permanent open space. The Conservation Easement shall be in favor of CDFG. The USFWS
and/or the ACOE shall be third-party beneficiaries of the Conservation Easement as
circumstances associated with each parcel shall dictate.
8.9 Default/Transfer, The Center and Proponent agree that all rights and
obligations of the Center pursuant to the terms of this Agreement shall be transferred to a public
agency, non-profit entity or other grantee acceptable to the Proponent and the Agencies for the
purpose of managing and maintaining the Conservation Land pursuant to the terms of this
Agreement in the event any of the following occur: (i) the Center defaults in its obligations
hereunder; (ii) the Center assigns all or part of its obligations and rights hereunder to a party or
organization that is not acceptable to the Proponent and the Agencies; (iii) a general assignment
by the Center for the benefit of creditors, the filing of any voluntary petition in bankruptcy by the
Center or the filing of any involuntary petition in bankruptcy by the Center's creditors; (iv) the
employment or appointment of a receiver to take possession of substantially all of the Center's
assets; (v) the attachment, execution or other judicial seizure of all the Center's assets; or (vi) the
admission by the Center in writing of its inability to pay its debts as they become due, the filing
by the Center of a petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute, law or regulation, or
the filing by the Center of an answer admitting or failing timely to contest a material allegation
of a petition filed against the Center in any such proceeding. In the event that the Agencies
determine that all or any portion of the Conservation Land must be transferred to a grantee other
than the Center and the Agencies continue to approve of the Center as an acceptable organization
to perform the management plan described herein, the Proponent and the Center agree to modify
the terms of this Agreement to provide an appropriate alternative means of accomplishing the
intents and purposes of this Agreement.
9. Mitigation Credits
In the event that Proponent, for whatever reason, does not proceed with development of
all the University Commons project, the parties agree to the following. The parcels of
Conservation Land that would have been associated with development that will no longer occur
may be placed in a mitigation bank ("Mitigation Bank") maintained by the Center for the sale of
conservation credits to parties for biological impacts caused by development. The parties hereby
agree that Proponent would retain sole control and discretion of the creation, documentation,
approval process, permitting use, purchase and sale of credits, The sale proceeds of any credit
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sales would include a sum sufficient to fund the Center's management and Monitoring in
perpetuity of the particular portion of Conservation Land dedicated as a Mitigation Bank.
Notwithstanding the above, Proponent reserves the right to restore, or cause to be
restored by City of San Marcos or City of Carlsbad, wetland areas within Lot 11, Lot 8, Huff
Parcel 7 and Brouwer parcels, Proponent or such Cities shall be entitled to wetland mitigation
credits for such restoration which credits may be used, transferred or sold at Proponent's or such
Cities' sole discretion.
9.1 Election to Transfer. In the event that Proponent is unable to timely obtain
all federal, state and local permits and approvals necessary to develop University Commons, the
Proponent may elect to have all or some of the Conservation Land transferred to Proponent or its
designee or nominee. Proponent may elect this option by delivering written notice to the Center
and on such election the Center shall immediately transfer fee title to the Conservation Land to
Proponent or its designee or nominee and refund to Proponent the balance of the Contribution for
management and maintenance of the Conservation Land being transferred. Proponent shall bear
all costs and expenses for such transfer, and agrees to accept the transferred parcels in their "as
is" condition, subject to all encumbrances, including, but not limited to the Conservation
Easements delivered to CDFG, recorded or unrecorded. Proponent acknowledges that those
Conservation Easements severely limit development and use of the parcels so encumbered
10. Closure
The parties recognize that upon Transfer of a parcel of the Conservation Land and the
Contribution from the Proponent to the Center, that the Proponent shall have no further
obligations to manage any parcel of the Conservation Land Transferred to the Center except as
otherwise described above. Further, Center shall have no right to seek additional Contributions
from Proponent so long as the Conservation Land conforms generally to its condition at the time
of Transfer (including the imposition of taxes and assessments permitted under this Agreement)
in that it is useful for the intended purposes hereunder and the Permits referred to in Recital C are
unchanged in a manner that would materially affect the Center's obligations hereunder.
Notwithstanding anything to the contrary in the Conservation Easements, Proponent shall
fulfill its obligations under this Agreement, and shall have access to the Conservation Lands in
order to do so, if required, even after its Revegetation and wetlands restoration obligations are
complete.
11. Indemnity
11.1 Center shall defend at its expense, including attorneys' fees, indemnify and
hold harmless Proponent from any claims, actions, or proceeding against the Proponent, their
agents, officers and employees and any liabilities, losses or damages arising from or relating to
the negligence or intentional misconduct of the Center or the Center's breach of any obligation
under this Agreement.
11.2 The Proponent shall defend, at its expense, including attorneys' fees,
indemnify and hold harmless the Center from any claims, actions, or proceeding against the
Center, its agents, officers and employees and any liabilities, losses or damages arising from or
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relating to the willful or intentional misconduct of the Preserve Landowners or the Preserve
Landowners' breach of any obligation under this Agreement.
12. General Provisions
12.1 This Agreement cannot be amended or modified in any way except by a
written instrument duly executed by Proponent and the Center.
12.2 All Exhibits referred to herein are attached hereto and by this reference
incorporated herein.
12.3 This Agreement may be terminated prior to the Conveyance Date if a
catastrophic event beyond the control of the Center and Proponent occurs, damaging the
Conservation Land beyond the capabilities of the Center and Proponent to restore them, and any
required governmental approvals are obtained.
12.4 Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Proponent: Brookfield University Commons, LLC
Attn: David Poole
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014
With a copy to: Sheppard, Mullin, Richter & Hampton
Attn: John E. Ponder, Esq.
501 West Broadway, 19th Floor
San Diego, CA 92101
To the Center: Center for Natural Lands Management
Attention: Sherry Teresa
425 E. Alvarado Street, Suite H
Fallbrook, CA 92028
Attention University Commons S022
12.5 This Agreement shall be governed by the laws of the State of California.
If any part of this Agreement, shall be held in conflict with applicable laws, such part shall be
inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of the
Agreement shall continue to be in full force and effect. The captions of paragraphs used in this
Agreement are for convenience only.
12.6 Actual or threatened breach of this Agreement may be prohibited or
restrained by a court of competent jurisdiction. In the event either Proponent or the Center
brings any legal or equitable proceeding (including any court action or arbitration proceeding)
for enforcement of any of the terms or conditions of this Agreement, or any alleged disputes,
breaches, defaults or misrepresentations in connection with any provision of this Agreement, the
prevailing party in such proceeding, or the nondismissing party where the dismissal occurs other
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3-7
than by reason of a settlement, shall be entitled to recover its reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and costs incurred in good faith. The
"prevailing party," for purposes of this Agreement, shall be deemed to be that party who obtains
substantially the result sought, whether by settlement, dismissal or judgment.
12.7 This Agreement contains the entire agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject matter
contained herein. There are no representations, agreements, arrangements or understandings,
oral or written, relating to the subject matter, which are not fully expressed herein.
12.8 This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of Proponent and the Center.
12.9 By executing this Agreement, the Center and Proponent do not intend to
form a joint venture or partnership.
12.10 Upon the dissolution of the Center or upon the Center's request to transfer
this Agreement, all rights and responsibilities of the Center contained herein shall be transferred
at the direction of the Agencies and Proponent to a public agency or non profit entity organized
for and capable of managing and maintaining land for conservation puiposes pursuant to Section
8.8 above.
12.11 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one in the same Agreement.
W02-SD:6RM!\51339%0.7 -23A-
092804 06V3-0893I3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be in
effect as of the date first stated above.
Dated: 5&pf-. 1 >CENTER FOR NATURAL LANDS
MANAGEMENT, INC., a California
corjpioratk«r
BROOKFIELD UNIVERSITY COMMONS,
LLC, a Delaware limited liability company
By:.
Its:
By:
W02-SD:6RM1\51339960.5 -24-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of San Diego
ss.
On September 1, 2004 _, before me, Gladys M. Eddy-Lee, Notary Public,
personally appeared Sherry Teresa, Stephen P. Doyle and David R. Poole,
COPY
GLADYS M EDDY-LEE
Commission* 1359863
Notary Public - California
San Dtego County
Pv Cft-.m Expires Jul 4,2008[
personally known to me to be the persons
whose names are subscribed to the within
instrument and acknowledged to me that
they executed the same in their authorized
capacities, and that by their signatures on
the instrument the persons, or the entity
upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattschment of this form to another document.
Description of Attached Document
Title or Type of Document:,
Document Date:Number of Pages:.
Signer(s) Other Than Named Above:_
Capacities Claimed by Signers
Signers' Names:
D Individual
0 Corporate Officers - Titles
[] Partner — D Limited D General
D Attorney in Fact
1 I Trustee
[j Guardian or Conservator
U Other:
Signers are representing.
Right Thumbprirrt
of Signer
Top of thumb here
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EXHIBIT "D"
1 Civic Center Drive VpBSfc El • BlMp^V/ Telephone
San Marcos, CA 92069-2918 V^JLB Jl Hi H^M.^/ 760.744.1050
FAX: 760.591.4135
Maintenance Requirements for Trail Systems
1. Trail system shall be inspected daily and kept free of trash, animal waste, and
miscellaneous debris. In addition, any unsafe condition observed during the
inspection shall be corrected immediately.
2. Trail system shall be inspected and repaired prior to and immediately following
each rain event. Inspections shall include review and completion of all necessary
repairs to d.g. surfacing, including resurfacing or filling of ruts and low spots, any
eroded areas, including both stabilized and non-stabilized areas. Repair of
stabilized areas shall be per surfacing manufacturer's specifications.
3. Trail surface shall be kept free of all vegetation on a weekly basis.
4. A buffer area along the trail (12" to 18" out from the trail header) shall remain weed
free on a weekly basis.
5. Contractor shall ensure that adjacent irrigation is maintained and adjusted properly
to keep water off of the trail.
6. Lodgepole fence shall be inspected for loose rails, damaged posts, and other
hazardous or unsightly conditions. All deficiencies shall be corrected in a timely
manner.
7. Bollards, gates, and signage shall be inspected for damage and repaired as
necessary.
8. The redwood header shall be inspected and repaired as necessary. Occasionally,
the header may warp and protrude above grade causing a hazard. Remedial work
shall take place immediately.
9. Chevrons (water diverters) shall be inspected on a regular basis, particularly prior
to any forecasted rains. Contractor shall maintain the 1" lip between the trial
surfacing and railroad tie in order to direct water off of trail and into ditch.
10. Drainage structures along the trail system shall be inspected and maintained in
proper working order. Any erosion within in or around such devices shall be
corrected immediately.
11. All costs incurred during the Two-Year Maintenance & Establishment period shall
be the responsibility of the developer.
Ralph Billings
Landscape District Supervisor
(760) 744-1050 ext. 3246
CITY COUNCIL:
Jim Desmond, Mayor Hal Martin, Vice-Mayor Mike Preston Chris Orlando RebeccaJones
O Printed on 30% post-consumer recycled paper