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2010-04-27; City Council; 20208; Conservation Easement Kelly JRM Office Building
CITY OF CARLSBAD - AGENDA BILL 10 AB# J2, MTG. 4/27/10 DEPT. CED Acceptance of Conservation Easement - Kelly/JRM Office Building-SDP 03-01 DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council ADOPT Resolution No. 2010-094 APPROVING the acceptance of a Conservation Easement for the Kelly/JRM Office Building project. ITEM EXPLANATION: The City's Habitat Management Plan (HMP) Ordinance, Chapter 21.210 of the Zoning Ordinance, requires all developments that establish a habitat preserve to protect that open space area with a Conservation Easement. The Conservation Easement restricts the allowed uses, describes the preserve management and reporting responsibilities of the Grantor (i.e. land owner or developer), and stipulates the enforcement ability of the Grantee and any Third Party Beneficiaries. Conservation Easements are regulated by State Law and they can only be granted to a state or local governmental agency or a non-profit organization whose primary purpose is land preservation. The Kelly/JRM Office Building project (SDP 03-01) located on the southeasterly corner of Palomar Airport Road and Aviara Parkway creates a 1.38 acre open space lot located on the southerly side of the property, which contains Encinas Creek and the associated wetland and riparian habitats. The Conservation Easement is required per condition number 13(d) of Planning Commission Resolution No. 6301, dated May 16, 2007. In March of 2008, the City Council adopted City Council Resolution 2008-067 directing staff to pursue the use of Restrictive Covenants as a replacement for Conservation Easements and return to Council with amendment to the HMP. This has not yet been done, however, the Kelly/JRM Office Building project was approved prior to the policy direction of the City Council and it recognized that older Conservation Easements would continue to be processed as conditioned in the project's approval. FISCAL IMPACT: There are no direct fiscal impacts to the City involved in accepting the Conservation Easement. As required by the Habitat Management Plan and project-specific conditions of approval, the Grantor of the Conservation Easement is responsible for all costs associated with management, maintenance, and monitoring of the newly created habitat preserve areas. DEPARTMENT CONTACT: Van Lynch 760-602-4613 van.lynch@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED * nn D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES nnn D Page 2 ENVIRONMENTAL IMPACT: The processing and acceptance of the Conservation Easements is one step in the implementation of conditions of approval of the Kelly/JRM Office Building project and, therefore, is within the scope of the previous environmental review for the project. No subsequent environmental documentation is required. EXHIBITS 1. City Council Resolution No. 2010-094 2. Conservation Easement Deed (Kelly/JRM project) 3. Planning Commission Resolution 6301 4. Location Map. 1 RESOLUTION NO. 2010-094 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD CALIFORNIA, APPROVING THE ACCEPTANCE OF 3 A CONSERVATION EASEMENT FOR PROPERTY LOCATED ON THE SOUTHEAST CORNER OF PALOMAR AIRPORT 4 ROAD AND AVIARA PARKWAY IN LOCAL FACILITIES MANAGEMENT ZONE 5. 5 CASE NAME: KELLY/JRM OFFICE BUILDING CASE NO.: SDP 03-01 6 The City Council of the City of Carlsbad, California, does hereby resolve as 7 follows: 8 WHEREAS, the City of Carlsbad has approved environmental documents and 9 development permits for the Kelly/JRM Office Building project, including Site Development Plan 10 SDP 03-01 by Planning Commission Resolution Number 6301; and 11 WHEREAS, Condition Number 13(d) of Planning Commission Resolution No 12 6301 requires the recordation of a Conservation Easement; and 13 WHEREAS, Kelly/JRM Palomar Airport Road I, LLC, ("Grantor"), grants the 14 Conservation Easement in favor of the CITY OF CARLSBAD, a California municipal corporation 15 ("Grantee"); and 16 WHEREAS, the City of Carlsbad ("Grantee") is authorized to hold Conservation ' Easements pursuant to California Civil Code Section 815.3. 18 NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of 1 Q Carlsbad, California, as follows: 20 1. That the above recitations are true and correct. 21 2. That the City Council hereby authorizes the Mayor to approve the 22 attached Conservation Easement for the Kelly/JRM Office Building project. 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 27th day of April, 2010, by the following vote to wit: AYES: Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Mayor Lewis CLAUDE A. i Ann J. Kulchin, Mayor Pro-Tern ATTEST: r Clerk (SEAL) Karen R. Kundtz. Assistant City Clerk - j -••«•-- -%x,*,'^ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Carlsbad City Clerk 1200 Carlsbad Village Dr Carlsbad, CA 92008 Space Above Line for Recorder's Use Only CONSERVATION EASEMENT DEED Kelly/JRM Office Building - SDP 03-01 THIS CONSERVATION EASEMENT DEED is made this -*?• day of 2010, by KELLY/JRM PALOMAR AIRPORT ROAD I, LLC, ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipaLcorporation ("Grantee"), with reference to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the City of Carlsbad, County of San Diego, State of California, more particularly described in Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by this reference, consisting of approximately 1.381 acres (the "Property"): B. The Property possesses wildlife and habitat values (collectively, "Conservation Values") of great importance to Grantee and the People of the State of California; C. The Property provides high quality habitat for Southern Willow Scrub and Fresh Water Marsh; D. Grantee is authorized to hold conservation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code Section 815.3(b) and otherwise authorized to acquire and hold title to real property. E. State of California, Department of Fish and Game ("CDFG") has jurisdiction, pursuant to Fish and Game Code Section 1 802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law. 06/07/2006 F. The U.S. Fish and Wildlife Service ("USFWS") has jurisdiction over the conservation, protection, restoration, enhancement, and management of fish, wildlife and native plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C. Section 1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and other applicable federal laws. G. The United States Army Corp of Engineers ("ACOE") is the federal agency charged with regulatory authority over discharges of dredged and fill material in waters of the United States pursuant to Section 404 of the Clean Water Act. H. Grantor is the developer of a project known as Kelly/JRM Office Building (SDP 03-01) located in the City of Carlsbad, County of San Diego, State of California, which is planned to include a 84,894 square foot three story office building and associated parking lot on 5.9 acres (the "Project"). The Project is the subject of a Site Development Plan (SDP 03-01), Coastal Development Permit (CDP 03-03), a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, General Plan Amendment (GPA 04-20), Zone Change (ZC 04-15), Local Coastal Plan Amendment (LCPA 05-02), Planned Industrial Permit (PIP 03-01), Administrative Variance (AV 06-04) and Minor Subdivision (MS 06-12). This Conservation Easement provides mitigation for certain impacts of the Project, pursuant to requirements of Condition 13 of the conditions of approval of Planning Commission Resolution No. 6301, dated May 16, 2007 for the Site Development Plan for the Project. This Conservation Easement is intended and shall be deemed to satisfy such requirement as to the Property. The amount of Coastal and valley freshwater marsh, disturbed southern willow Scrub, and disturbed habitats to be preserved within the Property is approximately 1.381 acres. I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein to preserve and protect in perpetuity the conservation values of the Property in accordance with the terms of this Conservation Easement and the Long Term Management Plan for the Encinas Creek Open Space Biltmore 24-Hour Fitness and Kelly/JRM Office Building Projects (January 27, 2006), herein termed the "LTMP". COVENANTS. TERMS, CONDITIONS AND RESTRICTIONS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to California law, including Civil Code Section 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property. This Conservation Easement shall run with the land and be binding on Grantor's heirs, successors, administrators, assigns, lessees, and other occupiers or users of the Property or any portion of it. 1. Purpose. The purpose of this Conservation Easement is to ensure the Property will be retained forever in a natural condition and to prevent any use of the Property that will impair or interfere with the conservation values of the Property. Grantor intends that this Conservation Easement will confine the use of the Property to such activities, including, without limitation, those involving the preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Easement. It 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited: (a) Except as permitted pursuant to Section 5 of this Conservation Easement, unseasonal watering, use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals, weed abatement activities, or incompatible fire protection activities; and any and all other activities and uses which may adversely affect the purposes of this Conservation Easement; (b) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways; (c) Grazing or other agricultural activity of any kind; (d) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except as may be specifically permitted under this Conservation Easement; Property; (e) Commercial or industrial uses; (f) Any legal or de facto division, subdivision or partitioning of the (g) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, except as may be specifically permitted under this Conservation Easement; (h) Depositing or accumulation of soil, trash, ashes, refuse, waste, bio- solids or any other materials; (i) Planting, introduction or dispersal of non-native or exotic plant or animal species; (j) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extraction of minerals, loam, soil, sands, gravel, rocks or other material on or below the surface of the Property; (k) Altering the surface or general topography of the Property, including building of roads, except as permitted pursuant to Section 5 of this Conservation Easement; (1) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease; and 06/07/2006 / (m) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters. 3. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights, without obligation, to Grantee and to USFWS, CDFG and ACOE as a third party beneficiary(ies) of this Conservation Easement: (a) To preserve and protect the conservation values of the Property; (b) To enter upon the Property at reasonable times in order to monitor Grantor's compliance with and to otherwise enforce the terms of this Conservation Easement, and for scientific research and interpretive purposes by Grantee or its designees and USFWS, CDFG and the ACOE or their designees, provided that neither Grantee, USFWS, CDFG and ACOE shall unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property; (c) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement; (d) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Property; and (e) Except as expressly provided for future public easements pursuant to Section 4, the right to all present and future development rights allocated, implied, reserved or inherent in the Property; such rights are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Property; nor any other property adjacent or otherwise; and (f) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Conservation Easement. 4. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement, and the rights of Grantor to comply with all the provisions of that certain Agreement For Operation of Open Space Easement (Encinas Creek Open Space Easement, City of Carlsbad) approved and executed concurrently herewith by Grantor, KELLY/JRM PALOMAR AIRPORT ROAD I, LLC, including, but not necessarily limited to, the right to implement the LTMP. 5. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantor, its successors or assigns shall: (a) Preserve and retain the Property in its natural condition and conserve, manage and preserve in perpetuity its Conservation Values; and (b) Undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the Conservation Values of the Property. In addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under Section 2 of this Conservation Easement, including but not limited to Grantee's water rights; and (c) Grantor shall install and maintain a fence as indicated in the LTMP and as reasonably satisfactory to Grantee, USFWS, CDFG and ACOE around the Conservation Easement area to protect the conservation values of the Property, including but not limited to wildlife corridors. (d) Comply with the terms of this Conservation Easement and cooperate with Grantee and third party beneficiaries in the protection of the Conservation Values; and (e) Install signs and other notification features saying "Natural Area Open Space," "Protected Natural Area," or similar descriptions that inform persons of the nature and restrictions on the Property as indicated in the LTMP; and (f) Repair and restore damage to the Conservation Easement directly caused by Grantor, Grantor's representatives, employees, agents, invitees and third parties including, but not limited to damage to Conservation Values from activities undertaken pursuant to Section 5; and (g) Obtain any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements; and (h) Perform Long-Term Maintenance and Management of the Property. Such long-term maintenance and management shall consist of the following activities: (1) Annual removal of trash or inorganic debris; (2) Repair, remediation and restoration of damage to the Natural Condition and Conservation Values of the Property, including damage from man-made causes, non-natural parasites and non-native or exotic species; (3) Annual maintenance of signage set forth in this Section 4(e); and (4) Management of the Property consistent with the Agency Permits. (5) Grantor, its successors and assigns shall prepare a summary of monitoring and maintenance documenting activities performed under items (1), (3) and (4) of this Section 5(h), and shall make reports available to Grantee and USFWS, CDFG and ACOE upon completion. When activities are performed pursuant to subsection (2) above, Grantor, its 06/07/2006 successors and assigns, shall retain a qualified Biological Monitor to prepare a detailed Restoration Plan and to oversee/monitor restoration activities. Grantor shall have its Biological Monitor submit the draft Restoration Plan for review and approval by Grantee, USFWS, CDFG and ACOE. Upon completion of the Restoration Plan, as approved by Grantee, USFWS, CDFG and ACOE, Grantor shall have the Biological Monitor prepare detailed monitoring reports, and Grantor shall make reports available to Grantee, USFWS, CDFG and ACOE upon completion. Said monitoring and maintenance report shall be signed by Grantor, its successor or assign, and the Biological Monitor, and the report shall document the Biological Monitor's name and affiliation, the dates that the Biological Monitor was present on-site, activities observed and their location, the Biological Monitor's observations regarding the adequacy of maintenance performance by Grantor or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. (i) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the USFWS, CDFG and ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended. (j) Ensure, before conveyance of the Property to a conservation entity as approved by the City of Carlsbad as contemplated herein, that as of the date of such conveyance, the Grantor is in full compliance with all of its obligations contained in this Section 4. (k) In the event Grantor, or its successors or assigns, establishes an endowment fund in the future, such endowment fund shall be established, to be held in trust, invested and the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Property as required under this Conservation Easement. Grantee has reviewed and approved the terms of the endowment agreement, and is a third party beneficiary of that agreement with the right to review and approve any amendments; (1) Include the following principles of fiduciary duty in the endowment fund agreement: (1) The endowment holder shall have a fiduciary duty to hold the endowment funds in trust for the Property. (2) The endowment holder shall not commingle the endowment funds with other funds. Funds may be pooled for investment management purposes only. (3) The endowment holder shall have a duty of loyalty and shall not use the endowment funds for its own personal benefit. (4) The endowment holder shall act as a prudent investor of the endowment funds. (5) The endowment holder shall not delegate the responsibility for managing the funds to a third party, but may delegate authority to invest the funds with Grantor's oversight. The endowment holder shall act with prudence when delegating authority and in the selection of agents. (6) The endowment holder shall have annual audit of the endowment performed by a licensed CPA, and shall submit the auditor's written report to Grantee, USFWS, CDFG and ACOE upon completion. 6. Access. This Conservation Easement does not convey a general right of access to the public. 7. Grantee's and Third Party Beneficiary Remedies. USFWS, CDFG and ACOE, as third party beneficiary(ies) of this Conservation Easement, shall have the same rights as Grantee under this section to enforce the terms of this Conservation Easement. These rights are in addition to, and do not limit, the rights of enforcement under the Site Development Plan (SDP 03-01). If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee may pursue all available remedies after giving written notice to Grantor of such violation and demand in writing the cure of such violation. At the time of giving any such notice, Grantee shall give a copy of the notice to USFWS, CDFG and ACOE. If Grantor fails to cure the violation within fifteen (15) days after receipt of written notice and demand from Grantee, or if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin the cure within the fifteen (15)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Conservation Easement, to recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation Easement or for any injury to the conservation values of the Property, to enjoin the violation, exparte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relief, including, but not limited to, the restoration of the Property to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Property, Grantee may pursue its remedies under this Section 7 without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights under this section apply equally to actual or threatened violations of the terms of this Conservation Easement. Grantor agrees that Grantee's remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code Section 815, et seq., inclusive. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time. If at any time in the future Grantor or any subsequent transferee uses or threatens to use the Property for purposes inconsistent with this Conservation Easement then, 06/07/2006 notwithstanding Civil Code Section 815.7, the California Attorney General or any entity or individual with a justifiable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement. 7.1 Costs of Enforcement. Any costs incurred by Grantee or USFWS, CDFG or ACOE, where it is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, except attorneys fees, but including and not limited to costs of suit, experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall, be borne by Grantor. 7.2 Discretion of Grantee and USFWS. CDFG and ACOE. Enforcement of the terms of this Conservation Easement by Grantee, USFWS, CDFG or ACOE shall be at its discretion, and any forbearance by any of them to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee, USFWS, CDFG or ACOE of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Grantee's rights (or any rights of USFWS, CDFG or the ACOE as a third party beneficiary(jes)) under this Conservation Easement. No delay or omission by Grantee, USFWS, CDFG or ACOE in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. 7.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee, USFWS, CDFG or ACOE to bring any action against Grantor for any injury to or change in the Property resulting from (i) any natural cause beyond Grantor's control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes; or (ii) acts by Grantee or its employees or USFWS, CDFG or ACOE or their employees. 8. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property. Grantor agrees that neither Grantee, nor USFWS, CDFG or ACOE shall have any duty or responsibility for the operation or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement Deed, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 8.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee, USFWS, CDFG and ACOE with satisfactory evidence of payment upon request. Grantor shall keep Grantee's interest in the Property free from any liens, including those arising out of any obligations incurred by Grantor or any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Property. 8.2 Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "Grantee Indemnified Party" and, collectively, "Grantee's Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or judgments (each a "Claim" and, collectively, "Claims"), arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except that (a) this indemnification shall be inapplicable to Grantee's Indemnified Parties with respect to any Claim due solely to the negligence of Grantee or any of its employees; and (b) the Grantor's obligations specified in Sections 5. 8. and 8,1; and (3) the existence or administration of this Conservation Easement. If any action or proceeding is brought against any of Grantee's Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from any of the Grantee Indemnified Parties defend such action or proceeding with counsel reasonably acceptable to the Grantee Indemnified Party, or reimburse the party for all charges incurred for services, including attorneys' fees, in defending the action or proceeding. 8.3 No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any unremediated release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Property. Without limiting the obligations of Grantor under Section 9.2, Grantor agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties and the USFWS, CDFG, and ACOE Indemnified Parties (defined in Section 9.2) against any and all Claims (defined in Section 9.2) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time, except that (I) this indemnification shall be inapplicable to the Grantee Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents and (II) this indemnification shall be inapplicable to the USFWS, CDFG, and ACOE Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by USFWS, CDFG, and ACOE, its employees or agents. If any action or proceeding is brought against any of the USFWS, CDFG, and ACOE Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from USFWS, CDFG, and ACOE defend such action or proceeding by counsel reasonably acceptable to the USFWS, CDFG, and ACOE Indemnified Party or reimburse USFWS, CDFG, and ACOE for all charges incurred for services of the California Attorney General in defending the action or proceeding. (a) Despite any contrary provision of this Conservation Easement Deed, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee or USFWS, CDFG, and ACOE any of the following: 06/07/2006 (1) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 etseq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. (b) The term "Hazardous Materials" includes, without limitation, material that is flammable, explosive or radioactive; (b) petroleum products, including by- products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. Section 6901 et seq.}; the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.}; the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Conservation Easement Deed. (c) The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Grantor represents warrants and covenants to Grantee and USFWS, CDFG, and ACOE that Grantor's activities upon and use of the Property will comply with all Environmental Laws. 9. Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700. 10. Assignment. This Conservation Easement is transferable by Grantee, but Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3. Grantee shall require the assignee to record the assignment in the county where the Property is located. 11. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or any portion of the Property, including, without limitation, a leasehold 10 interest. Grantor farther agrees to give written notice to Grantee, USFWS, CDFG, and ACOE of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. 12. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to the other parties shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows: To Grantor: To Grantee: With a copy to: Kelly/JRM Palomar Airport Road LLC c/o JRMC Real Estate, Inc. 330 Encinitas Blvd., Ste. 201 Encinitas, CA 92024 City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Department of Fish and Game, Region 5 4949 Viewridge Avenue San Diego, CA 92123 US Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad CA 92009 FAX 760-431-5902 District Counsel U.S. Army Corps of Engineers Los Angeles District 915 Wilshire Blvd, Room 1535 Los Angeles C A 90017-3401 or to such other address as Grantor, Grantee or USFWS, CDFG, or ACOE may designate by written notice to the other parties. Notice shall be deemed effective upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 13. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 11 06/07/2006 14. Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Property. Each Grantor and successor shall have obligations pursuant to Section 8.2 as to any Claim only to the extent that the Claim arises during the period in which that Grantor or successor holds fee title to the Property. 15. Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement terminate upon transfer of the party's interest in the Conservation Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 16. Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, or encumbrances upon the Property (other than property taxes and assessments collected with taxes) which have not been expressly subordinated to this Conservation Easement Deed, and that the Property is not subject to any other conservation easement. 17. Subordination. No breach, enforcement and attempted enforcement of any the terms, covenants, conditions or restrictions of this Conservation Easement will defeat or render invalid the lien of any mortgage or deed of trust securing a loan made in good faith and for value with respect to the Property; provided, however, that all provisions of this Conservation Easement will be binding upon and effective against any subsequent owner of the Property whose title to the property or any portion of such is acquired by foreclosure, trust deed sale, or otherwise. Grantor hereby represents to Grantee that, as of the date of this Conservation Easement, the Property is not encumbered with any mortgage, deed of trust or other monetary encumbrance except for liens for non-delinquent real property taxes and assessments. 18. Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Property (other than a security interest that is subordinate to this Conservation Easement Deed), or grant or otherwise abandon or relinquish any water agreement relating to the Property, without first obtaining the written consent of Grantee and USFWS, CDFG, and ACOE. Grantee or USFWS, CDFG, or ACOE may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the conservation values of the Property. This Section 13(e) shall not prohibit transfer of a fee or leasehold interest in the Property that is subject to this Conservation Easement Deed and complies with Section 10. 19. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement and subject to the written approval of USFWS, CDFG, and ACOE. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of the Office of the County Recorder, San Diego County, State of California. 12 20. Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. 21. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 18. 22. Counterparts. The parties may execute this instrument in any number of counterparts, which shall, in the aggregate, be signed by all of the parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. IN WITNESS WHEREOF, Grantor and Grantee have executed this Conservation Easement Deed as of the day and year first above written. GRANTOR: Luc, By: GRANTEE: CITY OF CARLSBAD, a California Municipal Corporation Title 7"-v _Title: Mayor Pro Tem APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Assistant City Attorney 13 06/07/2006 EXHIBIT 'A' LEGAL DESCRIPTION CONSERVATION EASEMENT DEDICATION PR 09-40 BEING A PORTION OF PARCEL 2 OF CERTIFICATE OF COMPLIANCE ADJUSTMENT NO. 99-14 RECORDED JUNE 30, 1999 AS FILE NO. 1999-0457965 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER, CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NO. 13 OF SAID LOT G OF SAID RANCHO AGUA HEDIONDA: THENCE NORTH 0°31'16" WEST, ALONG THE WESTERLY BOUNDARY OF SAID LOT G, 2272.53 FEET TO A POINT OF INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF PALOMAR AIRPORT ROAD (100.00 FEET IN WIDTH), AS PER PARCEL MAP 2993, ON FILE IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER; THENCE, ALONG THE SAID SOUTHERLY RIGHT-OF-WAY LINE, NORTH 70°12'37" EAST, 1290.19 FEET TO THE BEGINNING OF A TANGENT 1450.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY IN SAID LINE; THENCE EASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 30°53'14", AN ARC DISTANCE OF 781.67 FEET; THENCE, CONTINUING ALONG SAID LINE TANGENT TO SAID CURVE, SOUTH 78°54'09" EAST 573.30 FEET, THENCE, LEAVING SAID LINE SOUTH 13°36'43" WEST, ALONG THE CENTER LINE OF KELLEY DRIVE (A PRIVATE STREET) 531.16 FEET; THENCE LEAVING SAID LINE NORTH 81°37'46" WEST 42.14 FEET TO THE TRUE POINT OF BEGINNING. 1. NORTH 81°37'46" WEST 435.89 FEET TO POINT ON THE WESTERLY BOUNDARY PER FINAL ORDER OF CONDEMNATION DOC. NO. N 73929-1 RECORDED DECEMBER 9, 1998 AS. DOC. NO. 1998-0798577, BEING ALSO THE BEGINNING OF A 1349.00' RADIUS NON- TANGENT CURVE CONCAVE EASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 85°13'16" WEST; THENCE ALONG THE ARC OF SAID CURVE AND BOUNDARY LINE 2. NORTHERLY 148.36 FEET THROUGH A CENTRAL ANGLE OF 06°18'04"; THENCE ALONG SAID BOUNDARY 3. NORTH 11 °04'48" EAST 38.21 FEET; THENCE LEAVING SAID BOUNDARY 319 CONSERVATION-ESMT.doc Page 1 of 1 4. SOUTH 78°55'12" EAST 8.88 FEET TO THE BEGINNING OF A 94.00' RADIUS NON-TANGENT CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 57°17'16" EAST; THENCE ALONG THE ARC OF SAID CURVE 5. NORTHERLY 67.41 FEET THROUGH A CENTRAL ANGLE OF 41°05'18"; THENCE 6. SOUTH 73 °58'50" EAST 376.31 FEET; THENCE 7. SOUTH 05 °10'07" WEST 55.53 FEET TO THE BEGINNING OF A 108.00' RADIUS TANGENT CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 84°49'53" WEST; THENCE ALONG THE ARC OF SAID CURVE 8. SOUTHERLY 31.14 FEET THROUGH A CENTRAL ANGLE OF 16°31 '20" TO THE BEGINNING OF A 264.00' RADIUS COMPOUND CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 68°18'33" WEST; THENCE ALONG THE ARC OF SAID CURVE 9. SOUTHERLY 18.91 FEET THROUGH A CENTRAL ANGLE OF 04°06'15" TO THE TRUE POINT OF BEGINNING. CONTAINS 1.381 ACRES MORE OR LESS RUDY P. PACHECO LS5717 EXP. 09-30-11 319 CONSERVATION-ESMT.doc Page 2 of2 UBIT 'B' VICINITY MAP NOT TO SCALE LEGEND: = EXISTING PROPERTY LINE = PARCEL 'A' INDICATES CONSERVATION EASEMENT AREA=60,167.94 SF (1.381 AC) = POINT OF BEGINNING = TRUE POINT OF BEGINNING = INDICATES RADIAL BEARING BASIS OF BEARINGS: THE BASIS OF BEARINGS FOR THIS PLAT IS THE EASTERL Y LINE PER PARCEL MAP NO. 2993 FILED AS DOC. NO. 74-230326 RECORDED AUGUST 23, 1974. I.E. N13'36'43"E LEGAL DESCRIPTION: PORTION OF PARCEL 2 OF CERTIFICATE OF COMPLIANCE ADJUSTMENT NO. 99-14 RECORDED JUNE 30, 1999 AS FILE NO. 1999-0457965 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER, CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO. MORE PARTICULARL Y DESCRIBED IN EXHIBIT 'A'. OWNER/DEVELOPER KELLY/JRM PALOMAR AIRPORT ROAD I, LLC 1040 S. ANDREASEN DRIVE, SUITE 200 ESCONDIDO, CA 92029 PROJECT LOCATION THIS PROJECT IS LOCATED WITHIN APN: 212-040-64 EASEMENT NOTES (2) OPEN SPACE EASEMENT PER DOCUMENT#89-362401 REC. JULY 10, 1989 © UTILITIES, INGRESS AND EGRESS EASEMENT PER BOOK 6706, PAGE 514, REC. AUG. 14, 1957 © SDG&E EASEMENT PER DOC. j 2007-0532131, REC. AUG 9, 2007 (g) STORM DRAIN EASEMENT PER DOC. / 2007-0536758, REC. AUG. 10, 2007 (?) PUBLIC DRAINAGE EASEMENT PER DOC. / 2007-0158004, REC. MAR. 7, 2007 ©PIPELINE, INGRESS AND EGRESS EASEMENT PER DOC. / 223207, REC. DEC. 28, 1961 ©PRIVATE ROAD AND UTILITY EASEMENT PER PARCEL MAP 2993, REC. AUG. 23, 1974 ©PUBLIC ROAD AND UTILITY EASEMENT PER DOC. / 2007-0158005 REC. MARCH 7, 2007 ENGINEERING CONSULTANTS 9517 GROSSMONT SUMMIT DRIVE LA MESA, CALIFORNIA 91941 PH:(619) 741-9456 FAX:(619) 664-4291 RUDY P. PACHECO, LS. NO. 5717 MY REGISTRATION EXPIRES 09/30/11 CITY OF CARLSBAD DATE:1-25-10 SCALE: 1" = 100' A.P.N. 212-040-64 CONSERVATION EASEMENT PORTION PARCEL 2 OF C.O.C. ADJ. 99-14, RLE NO. 1999-0457965 DRAWN BY: OMEGA ENG. CONSULTANTS PROJ.* PR 09-40 SHEET:i or EXHIBI LINE DATA LINE U BEARING N8T37'46"W LENGTH 42.14' -P.O.B. (CORNER NO. 13)GRAPHICAL SCALE: 1" - 400' 200 400 800 HB CONSULTANTS 9517 GROSSMONT SUMMITDRIVE LA MESA, CALIFORNIA 91941 PH:(619) 741-9456 FAX:(619) 664-4291 CITY OF CARLSBAD DATE:1-25-10 SCALE: 1" = 400' A.P.N. 212-040-64 CONSERVATION EASEMENT PORTION PARCEL 2 OF C.O.C. ADJ. 99-14, RLE NO. 1999-0457965 DRAWN BY: OMEGA ENG. CONSULTANTS PROJ. # RB 09-40 SHEET:2 OF 3 EXHIBIT 'B' CURVE DATA C1 C2 CJ DELTA 16'31'20" 04V6'15" 41V5'18" RADIUS 108.00' 264.00' 94.00' LENGTH 31.14' 18.91' 67.41' LINE DATA LINE L1 L2 L3 BEARING N81'37'46"W N83V7'40"W S78'55'12"E LENGTH 42.14' 46.97' 8.88' PARCEL D A PORTION PARCEL C MAP 2993, FILE NO. 72-230326, A PORTION OF PARCEL 2 OF C.O.C. DOC NO. 1990-085876 APN: 212-040-56 PORTION OF LOT '<?' RANCHO AGUA HEDIONDA PER MAP NO. 823 GRAPHICAL SCALE: 1" = 100'ENGINEERING CONSULTANTS 9517 GROSSMONT SUMMIT DRIVE LA MESA, CALIFORNIA 91941 PH:(619) 741-9456 FAX:(619) 664-4291 50 100 200 CITY OF CARLSBAD DATE:1-25-W SCALE: /" = 100' A.P.N. 212-040-64 CONSERVATION EASEMENT PORTION PARCEL 2 OF C.O.C. ADJ. 99-14, RLE NO. 1999-0457965 DRAWN BY: OMEGA ENG. CONSULTANTS PBOJ. # PR 09-40 SHEET:3 OF 3 3190PEN-ESMT.dwg 1-25-10 10:09". 57 am EST CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California San DiegoCounty of On Date I£\o2/)fp before me, Linda L. Kodak, a Notary Public personally appearecK^ Here Insert Name and Title of the Officer Name(s) of Signer(s) LINDA L.HODAK ^ COMM. # 1835525 ? NOTARY PUBLIC - CALIFORNIA b' SAN DIEGO COUNTY CCOMM. EXPIRES MARCH 7,2013;; who proved to me on the basis of satisfactory evidence to be the person^) whose name^) is/afe- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hor/thcir authorized capacity(ies)-, and that by his/hef#hetr signature^) on the instrument the person(s/ or the entity upon behalf of which the person^s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the Stale of California that the foregoing paragraph is true and correct. Place Notary Seal Above CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California / County of \UCLrt J /: On iulAju&cX % ct&it) before me, 'Date / personally appeared X*-/MC- v 4 . /^A^LS i >L (t-T,7\ Here Insert Ngne and Title of the Office Name(s) of Signer(s) SHEIWA.FREISINCER Commission # 1727064 Notary Public - CalMOmKi | San Dt«go County Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(sf whose namej£) is/arer'subscribed to the within instrument and acknowledged to me that h^fshe/thiey executed the same in hys/her/tbfeir authorized capacity(ies), and that by h/s/her/thetr signature^ on the instrument the person(9), or the entity upon behalf of which the person^f acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my h,$id and official sek/'7 (Jo 7c_y Signature: OPTIONAL Signature of Notaiiry Public \ Though the information below /s not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of fh/s form to another document. Description of Attached Document Title or Type of Document: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: G Individual D Corporate Officer — Title(s): G Partner — G Limited G General G Attorney in Fact D Trustee G Guardian or Conservator G Other: RIGHTTHUMBPHINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: Q Individual G Corporate Officer — Title(s): G Partner — G Limited G General G Attorney in Fact G Trustee G Guardian or Conservator G Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402• www.NationalNotary.org item #5907 Reorder: Call Toll-Free 1 -800-876-6827 1 PLANNING COMMISSION RESOLUTION NO. 6301 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING SITE DEVELOPMENT PLAN SDP 03-01 TO DEVELOP A 5.9-ACRE 4 PARCEL WITH AN 84,894 SQUARE FOOT OFFICE 5 BUILDINGS LOCATED ON THE SOUTHEAST CORNER OF PALOMAR AIRPORT ROAD AND AVIARA PARKWAY IN 6 THE MELLO II SEGMENT OF THE LOCAL COASTAL PROGRAM AND IN LOCAL FACILITIES MANAGEMENT 7 ZONE 5. CASE NAME: KELLY/JRM OFFICE BUILDING 8 CASE NO.: SDP 03-01 9 WHEREAS, Kelly/JRMC Palomar Airport Road I, LLC, "Developer/Owner" 10 has filed a verified application with the City of Carlsbad regarding property described as j 2 A portion of Parcel MC" and all of Parcel "D" of Parcel Map No. 2993, in the City of Carlsbad, County of San Diego, State 13 of California, according to map thereof no. PM 2993, filed in the Office of the County Recorder of San Diego, August 23, 14 1974 as file number 74-230326 15 ("the Property"); and 16 WHEREAS, said verified application constitutes a request for a Site Development 17 Plan as shown on Exhibits "A" - "H" dated May 16, 2007, on file in the Planning Department, 18 19 KELLY/JRM OFFICE BUILDING - SDP 03-01 as provided by Chapter 21.06/Section 20 21.53.120 of the Carlsbad Municipal Code; and 21 WHEREAS, the Planning Commission did, on the 16th day of May, 2007, hold a 22 duly noticed public hearing as prescribed by law to consider said request; and 23 WHEREAS, at said public hearing, upon hearing and considering all testimony 24 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors £j 26 relating to the Site Development Plan. 27 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 28 Commission of the City of Carlsbad as follows: A) That the foregoing recitations are true and correct. B) That based on the evidence presented at the public hearing, the Planning 2 Commission APPROVES KELLY/JRM OFFICE BUILDING - SDP 03-01 based on the following findings and subject to the following conditions: Findings;4 1. That the requested use is properly related to the site, surroundings and environmental settings, is consistent with the various elements and objectives of the General Plan, will not be detrimental to existing uses or to uses specifically permitted in the area in which the proposed use is to be located, and will not adversely impact the site, surroundings or 7 traffic circulation, in that the project design complies with the development standards of the Planned Industrial zone except as modified by Administrative Variance AV 06-04 and all required public facilities and services will be provided. All required building setbacks are provided, lot coverage is well below the maximum permitted and the proposed landscaping exceeds the minimum required. The project also 10 complies with the provisions of the General Plan as it: provides street improvements and dedications to provide public street access, provides mitigation measures to comply with the noise standards and includes a buffer area from sensitive . 2 environmental areas as required by the Open Space and Conservation Element. 2. That the site for the intended use is adequate in size and shape to accommodate the use, in that all applicable code requirements have been met including parking and building 14 coverage standards except as modified by Administrative Variance AV 06-04. The project provides the minimum required parking spaces and building coverage is 15 10.9% where 50% is permitted. The building height increase from 35 feet to 45 feet . , is permitted since the building does not contain more than three levels and the building conforms to Section 18.04.170 for building construction and safety criteria. 17 The proposed architectural protrusions are permitted from 45 feet to 51'6" as the architectural features do not function to provide usable floor area; do not accommodate and/or screen mechanical equipment; do not adversely impact adjacent properties; and are necessary to ensure the buildings design excellence. 3. That all yards, setbacks, walls, fences, landscaping, and other features necessary to adjust the requested use to existing or permitted future uses in the neighborhood will be 21 . provided and maintained, in that setback areas have been landscaped to screen the parking areas. Adequate on-site vehicular circulation has been provided to 22 accommodate passenger and truck traffic. Access to the site will be provided by the dedication of Laurel Tree Road as a public street. 4. That the street systems serving the proposed use is adequate to properly handle all traffic generated by the proposed use, in that the proposed Laurel Tree Road will be adequate 25 to handle the 1,700 ADT generated by the proposed office building and that the signalized intersection of Laurel Tree Road and Aviara Parkway is existing and 26 adequate in capacity. 27 5. The project is consistent with the Citywide Facilities and Improvements Plan, the Local Facilities Management Plan for Zone 5 and all City public facility policies and ordinances. The project includes elements or has been conditioned to construct or PCRESONO.6301 -2- provide funding to ensure that all facilities and improvements regarding sewer collection 2 and treatment; water; drainage; circulation; fire; schools; parks and other recreational facilities; libraries; government administrative facilities; and open space, related to the 3 project will be installed to serve new development prior to or concurrent with need. Specifically, a. The project has been conditioned to provide proof from the Carlsbad Unified School District that the project has satisfied its obligation for school facilities. b. The Public Facility fee is required to be paid by Council Policy No. 17 and will be collected prior to the issuance of building permit. g c. The Local Facilities Management fee for Zone 5 is required by Carlsbad 9 Municipal Code Section 21.90.050 and will be collected prior to issuance of building permit. 10 6. A growth management park fee of 40 cents per square foot of non-residential development will be collected at the time of building permit issuance. This fee will be used to construct recreational facilities to offset demand created by employees within Local Facilities Management Zone 5. 7. That the project is consistent with the City's Landscape Manual (Carlsbad Municipal 14 Code Section 14.28.020 and Landscape Manual Section I B). 15 8. That the City has adopted a Citywide Trails Program and a segment of the trail network is associated with this project. The applicant shall prepare and submit a trail plan for , approval by the Park and Recreation Director prior to construction. Construction shall be inspected to ensure conformity with the Standards for Design and Construction of Public Works Improvements in the City of Carlsbad ("Standards"); Trail Construction 18 Standards; and the approved plans. 19 9. The Planning Commission has reviewed each of the exactions imposed on the Developer contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the degree of the exaction is in rough proportionality to the impact caused by the project. 22 Conditions; 23 Note: Unless otherwise specified herein, all conditions shall be satisfied prior to the issuance of a grading permit or building permit, whichever occurs first. 1. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so 26 implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all 27 future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said PCRESONO.6301 -3- conditions or seek damages for their violation. No vested rights are gained by Developer 2 or a successor in interest by the City's approval of this Site Development Plan. 3 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Site Development Plan documents, as necessary to make them internally consistent and in conformity with the final action on the project. Development shall occur substantially as shown on the approved Exhibits. Any proposed development, different from this approval, shall require an amendment to this approval. 3. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of building permit issuance. 4. If any condition for construction of any public improvements or facilities, or the payment 9 of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section 10 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 12 5. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold 13 harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 14 and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Site Development Plan, (b) City's approval or issuance of any permit or action, whether discretionary or 16 nondiscretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, 17 including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation 18 survives until all legal proceedings have been concluded and continues even if the City's approval is not validated. 20 6. Developer shall submit to the Planning Director a reproducible 24" x 36" mylar copy of the Site Plan reflecting the conditions approved by the final decision-making body. 21 7. Prior to the issuance of a building permit, the Developer shall provide proof to the Director from the Carlsbad Unified School District that this project has satisfied its 23 obligation to provide school facilities. 24 g. This project shall comply with all conditions and mitigation measures which are required as part of the Zone 5 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits, including, but not limited to the following: 26 a. A growth management park fee of 40 cents per square foot of non-residential 27 development will be collected at the time of building permit issuance. This fee will be used to construct recreational facilities to offset demand created 28 by employees within Local Facilities Management Zone 5. PCRESONO.6301 -4- 9. This approval shall become null and void if not exercised within 36 months from the date 2 of project approval (approval of LCPA 06-05 by the California Coastal Commission). 3 10. This approval is granted subject to the approval of GPA 04-20, ZC 04-15, LCPA 06-05, CDP 03-03, PIP 03-01, AV 06-04, MS 06-12 and City Council's Consistency Determination for the McClellan Palomar Airport Comprehensive Land Use Plan - and is subject to all conditions contained in Planning Commission Resolutions No. 6296, 6297, 6298 6299, 6300 and Planning Director Letters of approval for PIP 03-01 and 6 AV 06-04 and City Engineer letter of approval for MS 06-12 for those other approvals incorporated herein by reference. 7 11. Approval is granted for SDP 03-01 as shown on Exhibits "A" - "H", dated May 16, ° 2007, on file in the Planning Department and incorporated herein by reference. Development shall occur substantially as shown unless otherwise noted in these conditions. 10 12. As a condition of this approval, applicant must comply with the requirements of all 11 regulatory agencies having jurisdiction over the project and any mitigation requirements of the environmental documents for the project. Pursuant to Government Code section 12 65871 and Carlsbad Municipal Code Title 20, Chapter 20.04, section 20.04.140, applicant , -, shall grant a conservation easement for the conservation, protection, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable 14 populations of certain species thereof, in accordance with the City's adopted Habitat Management Plan. 15 13. Prior to Certificate of Occupancy, the Developer shall take the following actions to the satisfaction of the Planning Director in relation to the open space lot(s) which are being , - conserved for natural habitat in conformance with the City's Habitat Management Plan: a. Select a conservation entity, subject to approval by the City, that possesses qualifications to manage the, open space'lot(s) for conservation purposes. b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City for estimating the costs of management and monitoring of the open space lot(s) in 20 perpetuity. c. Based on the results of the PAR, provide a non-wasting endowment or other financial mechanism acceptable to the Planning Director and conservation entity, 22 if any, in an amount sufficient for management and monitoring of the open space lot(s) in perpetuity. The Conservation Easement shall provide that the 23 non-wasting endowment shall transfer to the City if the City accepts the Irrevocable Offer to Dedicate fee title to the open space lot(s).24 d. Record a Conservation Easement over the open space lot(s) which includes an 25 Irrevocable Offer to Dedicate fee title to the open space lot(s) in favor of the City. 26 14. Prepare an Interim Management Plan which will ensure adequate management of the 27 open space Iot(s) until such time as a permanent preserve management plan is prepared and approved by the City. 28 PCRESONO.6301 -5- 15. Building permits will not be issued for this project unless the local agency providing 2 water and sewer services to the project provides written certification to the City that adequate water service and sewer facilities, respectively, are available to the project at the 3 time of the application for the building permit, and that water and sewer capacity and facilities will continue to be available until the time of occupancy. 16. Developer shall submit and obtain Planning Director approval of a Final Landscape and Irrigation Plan showing conformance with the approved Preliminary Landscape Plan and 6 . the City's Landscape Manual. Developer shall construct and install all landscaping as shown on the approved Final Plans, and maintain all landscaping in a healthy and thriving 7 condition, free from weeds, trash, and debris. 8 17. The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the landscape plancheck process on file in the Planning Department and accompanied by the project's building, improvement, and grading plans. 18. All roof appurtenances, including air conditioners, shall be architecturally integrated and 11 concealed from view and the sound buffered from adjacent properties and streets, in substance as provided in Building Department Policy No. 80-6, to the satisfaction of the 12 Directors of Community Development and Planning. 19. Developer shall submit to the City a Notice of Restriction executed by the owner of the real property to be developed. Said notice is to be filed in the office of the County Recorder, subject to the satisfaction of the Planning Director, notifying all interested 15 parties and successors in interest that the City of Carlsbad has issued a Coastal Development Permit, Site Development Permit, Planned Industrial Permit and 16 Administrative Variance by Resolutions No. 6300 and 6301 on the property. Said Notice of Restriction shall note the property description, location of the file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The Planning Director has the authority to execute and record an amendment to the notice which modifies or 19 terminates said notice upon a showing of good cause by the Developer or successor in interest. .20 20. The developer shall comply with the FAA's Part 77 requirements and provide proof of approval/compliance from the FAA. 22 21. The property owner shall notify all tenants, and include in their lease, the 23 environmental impacts associated with Palomar Airport and Palomar Airport Road. 24 22. Prior to the recordation of the first final parcel map or the issuance of building permits, whichever occurs first, the Developer shall prepare and record a Notice that this property may be subject to noise impacts from the proposed or existing Transportation Corridor, in a form meeting the approval of the Planning Director and the City Attorney (see Noise Form #1 on file in the Planning Department). 27 23. Prior to the recordation of the first final parcel map or the issuance of building permits, 28 whichever occurs first, the Developer shall prepare and record a Notice that this property is subject to overflight, sight and sound of aircraft operating from McClellan-Palomar PC RESO NO. 6301 -6- Airport, in a form meeting the approval of the Planning Director and the City Attorney 2 (see Noise Form #2 on file in the Planning Department). 3 24. Prior to issuance of building permits, the Developer shall record an Avigation Easement for the property to the County of San Diego and file a copy of the recorded document 4 with the Planning Director. 25. Developer shall construct trash receptacle and recycling areas enclosed by a six-foot-high masonry wall with gates pursuant to City Engineering Standards and Carlsbad Municipal Code Chapter 21.105. Location of said receptacles shall be approved by the Planning 7 Director. Enclosure shall be of similar colors and/or materials to the project to the satisfaction of the Planning Director. 8 26. Developer shall submit and obtain Planning Director approval of an exterior lighting plan * including parking areas. All lighting shall be designed to reflect downward and avoid any impacts on adjacent homes, property, or environmentally sensitive habitat areas. The maximum height of all fixtures shall not exceed 30 feet. 27. No roof equipment shall be allowed except for vents and make-up air units 12 necessary to comply with the requirements of the building, plumbing, electrical and fire codes. Skylights are permitted. Necessary roof vents, make-up air and any other required fixtures shall be painted to match the color of the roof. The roof -.. shall be gray in color and shall remain gray for the life of the building. 15 28. Developer shall construct, install, and stripe not less than 340 parking spaces, as shown on Exhibits "A" - "H", dated May 16,2007. 16 29. Developer shall dedicate, on the final map, an open space easement over lot Two which are riparian habitat and associated buffer area plus all other lands set aside as part of the Citywide Open Space System to prohibit any encroachment or development, including but not limited to fences, walls, decks, storage buildings, pools, spas, stairways, 19 and landscaping, as shown on Exhibit "A" - MH" dated May 16,2007. 20 30. Prior to approval of the final map, the Developer shall provide an irrevocable offer of dedication to the City of Carlsbad for a trail easement for trail(s) shown on the (i.e., tentative map) within Lot(s) ONE. Prior to the issuance of any building permits, the trail shall be constructed as a public trail for public use and accepted by the City of Carlsbad upon adoption of a Citywide Trails Program that includes provisions for 23 maintenance and liability. Otherwise, prior to issuance of any building permits, the obligation for acceptance, construction, maintenance, and liability shall be the 24 responsibility of another agency designated by the City or the responsibility of the property owner. 31. Prior to the approval of a parcel map the Developer shall pay to the City a Trail Plan Check fee and inspection fee in accordance with the current city fee schedule. 27 28 PCRESONO.6301 -7- J/ Code Reminders 2 3 32. Developer shall pay park-in-lieu fees to the City, prior to the approval of the final map as required by Chapter 20.44 of the Carlsbad Municipal Code. 4 33. Developer shall pay a landscape plancheck and inspection fee as required by Section 5 20.08.050 of the Carlsbad Municipal Code. 6 34. Approval of this request shall not excuse,compliance with all applicable sections of the 7 Zoning Ordinance and all other applicable City ordinances in effect at time of building permit issuance, except as otherwise specifically provided herein. o Q 35. The project shall comply with the latest nonresidential disabled access requirements pursuant to Title 24 of the State Building Code. 10 36. Premise identification (addresses) shall be provided consistent with Carlsbad Municipal 11 Code Section 18.04.320. 12 37, Any signs proposed for this development shall at a minimum be designed in conformance 13 with the City's Sign Ordinance and shall require review and approval of the Planning Director prior to installation of such signs. 14 15 NOTICE 16 Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, 17 reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions."18 i Q You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 20 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely 21 follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or -- annul their imposition. 23 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, 24 zoning, grading, or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a ^ NOTICE similar to this, or as to which the statute of limitations has previously otherwise 2*: expired. 27 28 PCRESONO.6301 -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED, AND ADOPTED at a regular meeting of the planning Commission of the City of Carlsbad, California, held on the 16th day of May 2007, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Chairperson Baker, Commissioners Boddy, Cardosa, Dominguez, Douglas, Montgomery, Whitton JULIE B CARLSB ATTEST: 'hairperson .NNING COMMISSION DONNEU Planning Director PCRESONO.6301 -9- L. NOT TO SCALE SITE MAP KELLY/JRM OFFICE BUILDING GPA 04-20/ZC 04-15/LCPA 06-05/ CDP 03-03/SDP 03-01/PIP 03-01