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HomeMy WebLinkAbout2010-10-12; City Council; 20378; LICENSE AGREEMENT SITE FOR AGUA HEDIONDA DREDGING\^M) CITY OF CARLSBAD - AGENDA BILL /^Ai \|gp/ (Jl^" AB# 20,378 ^ MTG. 10/12/2ulO DEPT. PEM APPROVE LICENSE AGREEMENT FOR A MITIGATION SITE FOR THE AGUA HEDIONDA CHANNEL DREDGING PROJECT, CITY PROJECT NUMBER 3338 DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER ^Mr~ ft< Its — RECOMMENDED ACTION: ADOPT RESOLUTION NO. 2010-239 approving a license agreement for a mitigation site for the Agua Hedionda Channel Dredging Project, City Project No. 3338. ITEM EXPLANATION: The goal of the City's Agua Hedionda Channel Dredging Project is to create a permanent flood control solution for the portions of the Calavera and Agua Hedionda Creeks that traverse through the Rancho Carlsbad residential park. Construction of this project and continued future maintenance of the constructed channels will impact protected wetland habitat both within and adjacent to portions of both creeks requiring corresponding mitigation. City staff, City consultants, and representatives of the involved Federal and State Resource Agencies have met on several occasions over the last two years and have agreed upon a wetland mitigation requirement of approximately 5.57 acres for this project. The agencies have required the mitigation be located within the same watershed as the impacts. The challenge the City has faced has been identifying a mitigation site within the same watershed that is of sufficient size, hydrology, soil type, and other factors that would enable the development and long term viability of wetlands resources. Working with representatives and consultants of the property owner, Calavera Hills II, LLC (dba, Brookfield Homes), City staff has identified a potential mitigation site that would fulfill the requirements of the resource agencies and, following the issuance of regulatory permits, allow the City's flood control project to proceed. The 5.57 acre site is located northeasterly of the intersection of College Boulevard and Cannon Road in an area identified as "Basin BJB" within the Robertson Ranch Masterplan Community. The site is adjacent to a larger 7.4 acre wetland mitigation site currently under active management by the Center for Natural Lands Management. In April of 2009, City staff transmitted a report to the involved resource agencies identifying this potential site and discussing its availability and qualifications for wetlands creation and enhancement. Accompanying the report was a biological analysis of the site authored by the property owner's environmental consultants. Subsequent discussions with resource agency representatives resulted in their agreement that this site was suitable for wetlands creation and enhancement, conditioned upon development and agency approval of a detailed mitigation plan. City staff has had the property formally appraised, undertaken negotiations with the property owner, and the parties have agreed to enter into a license agreement for the City to utilize the site for the appraised value. A license agreement is recommended as the vehicle to secure the City's interest in the site since the property has already been encumbered by a conservation easement and cannot be subdivided. The conservation easement is held by the Center for Natural Lands Management which has expressed support for the site to be utilized for the development of wetlands creation and enhancement. DEPARTMENT CONTACT: John Cahill 760-602-2726; John.Cahill@carlsbadca.gov FOR C/7T CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D Dn n CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D nn Page 2 The City's use of the site will be for an estimated seven years: two years to complete the final entitlement and permit phase and then construct the flood control project, and, five years to establish, maintain, and monitor the mitigation site leading to final acceptance by the resource agencies. Following completion of the City's obligations to establish, maintain, and monitor the mitigation site, the site will become the responsibility of the future homeowners association to be created under the approved Robertson Ranch Masterplan. A maintenance endowment for this site has already been established and funded by the property owners which will take effect upon sign-off by the resource agencies of the City's project. Staff recommends approval of the license agreement. FISCAL IMPACT: The table below shows the current status of the Agua Hedionda Channel Project which is funded using a combination of General Capital Construction and Planned Local Drainage Area B funds: AGUA HEDIONDA CHANNEL - PROJECT NO. 3338 TASK DESCRIPTION Design Construction, Inspection, Materials Testing Environmental Mitigation & Monitoring Property Acquisition Studies & Reports TOTAL APPROPRIATION $754,255 $2,200,690 $1,359,080 $669,384 $60,000 $5,043,409 EXPENDITURES/ ENCUMBRANCES $651,198 $144,307 $1,050,032 $219,384 $58,124 $2,123,045 REMAINING BALANCES $103,057 $2,056,383 $309,048 $450,000 $1,876 $2,920,364 The mitigation site property was formally appraised by the City's appraisal firm of Anderson and Brabant, Incorporated for a total value of $416,000. The property owners have accepted the appraised value. The estimated total cost to develop the mitigation site includes: Site Acquisition Development of the Mitigation Plan, design, and permit issuance by the agencies Construction of the mitigation site Five-year maintenance and monitoring TOTAL ESTIMATED MITIGATION SITE PROJECT COST $416,000 $200,000 $417,750 $100,000 $1,133,750 The estimated total cost to complete the Agua Hedionda Channel Dredging project and available funding is shown in the table below: Estimated Mitigation Site Project Cost Estimated Remaining Project Costs (Dredging Related Costs, etc.) TOTAL ESTIMATED PROJECT COSTS Current Available Appropriations Future Appropriations Programmed in CIP TOTAL AVAILABLE FUNDING TOTAL ADDITIONAL APPROPRIATION REQUIRED $1,133,750 $2,216,614 $3,350,364 $2,920,364 $200,000 $3,120,364 $230,000 As shown above, an additional appropriation of $230,000 is necessary to complete the Agua Hedionda Channel project. The additional appropriation is necessary due to the costs associated with the 2006 emergency dredging project. Costs associated with the 2006 emergency dredging of the channels and the resulting mitigation, Resource Agency permit fees, purchase of mitigation "bank credits", State Water Resources Control board fees, and other miscellaneous costs totaled approximately $573,000. These costs were expended from the Agua Hedionda Channel project. Additional funding was not sought at PageS the time of the emergency project because the overall future project costs were unknown. While the additional costs for 2006 emergency dredging project totaled approximately $573,000, only $230,000 is being requested due to savings in other areas of the project. Sufficient funds are available in the General Capital Construction Fund and Planned Local Drainage Area B Fund for the requested appropriation. ENVIRONMENTAL IMPACT: On August 5, 2008, the City Council adopted Resolution No. 2008-229 certifying Environmental Impact Report EIR 04-02 finding the Agua Hedionda Channel Dredging Project in conformance with the requirements of the California Environmental Quality Act and the environmental policies of the City of Carlsbad. EIR 04-02 identified the project's wetland impacts and mitigation requirements. The proposed development of a mitigation site near Basin BJB is consistent with the mitigation requirements. EXHIBITS: 1. Resolution No. 2010-239 approving a license agreement for a mitigation site for the Agua Hedionda Channel Dredging Project. 2. Location Map. 3. License agreement. 1 RESOLUTION NO. 2010-239 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY 3 OF CARLSBAD, CALIFORNIA, APPROVING A LICENSE 4 AGREEMENT FOR A MITIGATION SITE FOR THE CITY'S AGUA HEDIONDA CHANNEL DREDGING PROJECT, 5 CITY PROJECT NUMBER 3338 6 WHEREAS, the City Council of the City of Carlsbad, California, hereafter the 7 "City," has previously appropriated funds for the construction of the Agua Hedionda8 9 Channel Dredging Project, hereafter the "Project;" and IQ WHEREAS, said Project requires the acquisition of an off-site mitigation site with 11 which to develop appropriate wetlands habitat resources necessary to compensate for 12 anticipated habitat impacts during construction and future continued maintenance of the 13 constructed channels of the Project; and 14 WHEREAS, City staff has identified a privately owned parcel that would fulfill the aforementioned mitigation requirements of the Project, hereafter the "Mitigation Site;" 16 and 17 WHEREAS, the Mitigation Site was appraised at $416,000 by a City funded18 appraiser; and 2Q WHEREAS, City staff and the property owner have met, negotiated in good faith, 21 and agreed upon a cost equal to the appraised value for the City to acquire a license to 22 use the Mitigation Site, hereafter the "License Agreement;" and 23 WHEREAS, the City's acquisition of said license in the Mitigation Site is necessary, desirable, and in the public interest; and 25 WHEREAS, an additional $230,000 is required to complete the Project due to the 26 2006 emergency dredging work. 27 28 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 2 Carlsbad, California, as follows: 3 1. That the above recitations are true and correct. 4 2. That the appraised value of the Mitigation Site is the approved purchase price 5 for obtaining the License Agreement allowing the City to utilize the Mitigation 6 Site. 8 3. That the License Agreement between the City of Carlsbad and Calavera Hills 9 II, LLC is hereby approved and the Mayor is authorized to execute said 10 agreement. Following the Mayor's execution of said agreement, the City 11 Clerk is directed to record said agreement with the Office of the San Diego 12 County Recorder. Copies of said recorded agreement shall be forwarded by 13 the City Clerk to the City's Property and Environmental Management 14 Department and Calavera Hills II, LLC, d.b.a., Brookfield Homes, attention Mr. 15 Adam Pevney, 12865 Pointe Del Mar, Suite 200, Del Mar, California 92014-16 1? 3859. 18 4. That the Finance Director is authorized to appropriate a total of $230,000 in 19 GCC ($116,303) and PLDA-B ($113,697) funds towards the Project. 20 /// 21 /// 22 /// 23 /// 24 /// 25 ///26 27 '" 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of October 2010, by the following vote to wit: AYES: Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Council Member Lewis. vvv"1"""/, ^BA0^£F>fci$£ LOCATION MAP MITIGATION PROJECT SITE BASIN BJB DREDGE PROJECT SITE CITY OF OCEANSIDE HIGHWAY LEGEND: VICINITY MAP NOT TO SCALE LIMITS OF PROJECT SITE. NOT JO SCALE PROJECT NAME AGUA HEDIONDA DREDGING PROJECT PROJECT NUMBER 3338 EXHIBIT DRAW BY: SCOTT EVANS, CARLSBAD U77L/77ES DEPT. 9/0/10 C:\TRAN5PORTAT10N DEPARWENT\OESIGN DIVISION\CAHILL\33X.DWG RECORDING REQUESTED BY: CALAVERA HILLS IILLC WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CA 92008 ATTENTION: CITY CLERK Space Above for Recorder's Use Only LICENSE AGREEMENT (Wetlands Mitigation) THIS LICENSE AGREEMENT (this "Agreement"), made and entered into as of /£-> . 2010, by and between CALAVERA HILLS II LLC, a California limited liability company, hereinafter called "Licensor" and CITY OF CARLSBAD, a California municipality, hereinafter called "Licensee." Licensor and Licensee are sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties." RECITALS A. Licensor owns that certain parcel of real property described in Exhibit 1 attached hereto and incorporated by this reference (the "Licensed Premises"). The Licensed Premises has an area of approximately 5.6 acres. B. Licensee desires to use the Licensed Premises for the following purpose: to plan, develop, improve, restore, enhance and maintain a detailed wetlands mitigation area for the Licensed Premises to support various governmental agency permits currently on file with such agencies, as described in this Agreement (the "Permitted Purpose"). C. Licensee has requested from Licensor, and Licensor has agreed to grant to Licensee, a revocable, non-exclusive license (the "License") to use the Licensed Premises solely for the Permitted Purpose (and for no other purpose) on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration (as noted below), the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows: 1. Grant of License. Licensor hereby grants to Licensee the License to use the Licensed Premises solely for the Permitted Purpose (and for no other purpose) upon the terms and conditions set forth in this Agreement. It is the intent of the Parties that this Agreement run with the land. 2. Term of License. The initial term of the License shall commence on the date of this Agreement and expire sixty (60) days after the last of the governmental agencies having jurisdiction over Licensee's wetlands mitigation improvement work and maintenance to be performed within the Licensed Premises approves and accepts in writing such work and maintenance and that the approval and acceptance of the work and maintenance has been verified by Licensor (the "Term"). Such governmental agencies are herein referred to as ("Concerned Governmental Agencies"). 381671.2 1 License Agreement (Wetlands Mitigation) 3. Consideration for the License. The consideration to be paid by Licensee to Licensor for the License is $416,000. It shall be paid in full upon the full execution of this Agreement by Licensor and Licensee after Licensee's city council has approved this Agreement including the amount of consideration to be paid for the License. 4. Revocabiliry/Termination of License. The License granted under this Agreement is revocable in the event of a material default by Licensee under this Agreement, which entitles Licensor to terminate this Agreement upon the delivery of not less than thirty (30) days' prior written notice to Licensee, which specifies the default claimed by Licensor, if not remedied by Licensee within such thirty (30) days, provided that if the nature of Licensee's non-compliance is such that if more than thirty (30) days are reasonably required for its cure, then Licensee shall not be deemed to be in default if Licensee commenced with such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. 5. Non-Exclusivity of License. a) The License granted under this Agreement is non-exclusive. b) Licensor hereby reserves the right, during the term of the License, without any requirement of notice to or consent of Licensee, to enter and use (and permit Licensor's affiliates, employees, agents, representatives, tenants, invitees, licensees, permittees, contractors and/or subcontractors (collectively, the "Licensor Parties") to enter and use), the Licensed Premises for any purpose, including but not limited to the installation, construction, use, maintenance, repair, alteration, improvement and removal of utility facilities, appurtenances and equipment, provided such activities by Licensor Parties shall not (i) unreasonably interfere with Licensee's use of the Licensed Premises or (ii) damage any mitigation improvement work performed by Licensee. c) Licensor hereby reserves the right, during the term of the License, without any requirement of notice to or consent of Licensee, to grant any easement, servitude, restriction, or license affecting all or any portion of or interest in the Licensed Premises, provided the same shall be subordinate to this Agreement and not (i) unreasonably interfere with Licensee's use of the Licensed Premises or (ii) damage any mitigation improvement work performed by Licensee. d) Licensor and Licensee acknowledge that the Licensed Premises is subject and subordinate to a Conservation Easement Deed recorded March 1, 2007, as Document No. 2007-0140005, Official Records of San Diego County, CA, in favor of Center for Natural Lands Management as grantee ("CNLM"). CNLM has issued a letter dated April 15, 2009, supporting the work to be performed by Licensee pursuant to this Agreement, a copy of which letter is attached as Exhibit 2. Licensee Parties (defined below) shall not (i) unreasonably interfere with CNLM's use of its easement, which includes the Licensed Premises, or (ii) damage any mitigation improvement work performed by CNLM. e) The Parties acknowledge that fee ownership of the legal parcel, which includes the Licensed Premises, will eventually be conveyed to The Foothills at Carlsbad Homeowners Association on the terms and at the time determined at the sole discretion of Licensor. Upon transfer of the fee ownership the new owner will become the Licensor. 381671.2 2 License Agreement (Wetlands Mitigation) 6. Condition of Licensed Premises. a) Licensee hereby accepts the Licensed Premises "As-Is, Where-Is With All Faults And Defects, Known And Unknown" condition. Licensee acknowledges that access to the Licensed Premises exists from adjacent public roads pursuant to those Easements identified on the second page and shown on the third page of Exhibit 1 as Easements Numbers 1 and 4. Licensor makes no representation, warranty or guaranty regarding those easements. b) Licensee hereby acknowledges that Licensee has conducted its own due diligence in respect of the Licensed Premises and has independently (and not in reliance on any representations or warranties of Licensor, the Licensor Parties or any other party purporting to act on their behalf) determined to acquire the License to use the Licensed Premises for the Permitted Purpose. c) Licensee hereby assumes any and all risks arising from the physical condition of the Licensed Premises, including but not limited to the risk that patent or latent defects and/or hazardous conditions may now or hereafter exist within the Licensed Premises. Licensor hereby disclaims any and all responsibility or liability for any injury, loss, liability, claim, cause or action, damage, cost, expense, fine or penalty, including but not limited to attorney's fees, witness fees and consultant fees (collectively, "Claims"), that Licensee or its affiliates, employees, agents, representatives, invitees, licensees, permittees, contractors and/or subcontractors (collectively, the "Licensee Parties") may suffer or incur as a result of the physical condition of the Licensed Premises, including but not limited to the existence of any patent or latent defects and/or hazardous conditions, unless due to the gross negligence or willful misconduct of Licensor. 7. Possible Adjustment in Boundary of Licensed Premises. Although Licensee has obtained preliminary approval of the Licensed Premises as acceptable qualifying land in need of wetlands mitigation, the Parties acknowledge that a portion of the Licensed Premises may later be deemed to be "not qualifying" by the Concerned Governmental Agencies in which latter event the boundaries of the Licensed Premises shall be adjusted to delete such "not qualifying" land and include other contiguous land owned by Licensor to again constitute a Licensed Premises of approximately 5.6 acres, as mutually approved by the Parties, which approval shall not be unreasonably withheld; and the Parties shall then promptly execute a written amendment to this Agreement to give effect to such adjustment. 8. Use of Licensed Premises. Licensee shall use the Licensed Premises solely for the Permitted Purpose, as described in Recital B above, and for no other purpose. a) Licensee shall obtain all permits and approvals required by all federal, state, county, municipal or other local governmental authorities, bureaus or agencies (each, a "Concerned Governmental Agency") in connection with any activity conducted by Licensee and/or any Licensee Party in respect of the License or the Licensed Premises (collectively, the "Permits and Approvals"). At all times during the term of the License, Licensee shall comply (and shall cause the Licensee Parties to comply) with (i) the terms and conditions of all Permits and Approvals, and (ii) all federal, state, county, municipal and other local laws, statutes, codes, ordinances, rules, regulations, directives, policies, decisions, guidelines and orders now or hereafter applicable to Licensee, the Licensed Premises or the Permitted Purpose (collectively, as 381671.2 3 License Agreement (Wetlands Mitigation) the same may be amended from time to time, "Applicable Laws"). Licensee shall promptly notify Licensor if Licensee or any of the Licensee Parties receive any notice of any violation of the Permits and Approvals or any Applicable Law. Licensee shall cure any violation of the Permits and Approvals or any Applicable Law within thirty (30) days after receiving notice of such violation, provided that if such violation is not capable of being cured within thirty (30) days, Licensee shall commence to cure such violation within ten (10) days and shall diligently prosecute such cure to completion. b) At all times during the term of the License, Licensee shall conduct (and shall cause the Licensee Parties to conduct) all activities in respect of the License and the Licensed Premises in a manner designed to (i) minimize any interference with the activities of Licensor and/or the Licensor Parties in respect of the Licensed Premises and/or other the real property owned by Licensor, and (ii) guard against soil erosion, explosions and fires within the Licensed Premises and/or the real property. c) None of Licensee or the Licensee Parties shall cause or permit (i) any activity to occur in respect of the License or the Licensed Premises that constitutes waste or public or private nuisance, (ii) any explosive or highly flammable substances or materials to be stored, released, generated, placed, handled or used within the Licensed Premises and/or other the real property owned by Licensor, or (iii) any party to live or reside within the Licensed Premises. d) Without the prior written consent of Licensor, which shall not be unreasonably withheld, none of Licensee or the Licensee Parties shall cause or permit any heavy machinery or equipment to be operated or stored within the Licensed Premises, except as necessary in connection with and to effect the Permitted Purpose. e) Licensee shall keep (and shall cause the Licensee Parties to keep) the Licensed Premises free from and shall promptly discharge any liens arising from any work performed, material furnished, obligations incurred or any other thing done or permitted by Licensee and/or the Licensee Parties in respect of the License or the Licensed Premises; provided that Licensee (or a Licensee Party) may dispute any such lien so long as Licensee (or such Licensee Party) first posts a bond for such lien in the amount required under and otherwise in accordance with all Applicable Law. f) If Licensee and/or any Licensee Party fails to commence to cure and thereafter diligently complete the cure, of any defaults under any obligations set forth in this Paragraph 8 after ten (10) days from receipt of written notice of such failure to comply or default then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure.. g) If Licensee and/or any Licensee Party abandons, rescinds, repudiates, rejects or in any way terminates the License, without or without the proper authority on the part of Licensee, prior to the completion of the Term, Licensee in order to mitigate any damages suffered by Licensor shall take all steps necessary to place the Licensed Premises in a condition to immediately be used by any successor party for the Permitted Purpose and/or for Licensor to operate the Licensed Premises in the manner as originally intended. Furthermore, Licensee shall notify in writing any Concerned Governmental Agency of Licensee's actions. 381671.2 4 License Agreement (Wetlands Mitigation) 9. Maintenance of Licensed Premises. a) At all times during the term of the License, Licensee shall, at Licensee's sole expense, maintain the Licensed Premises in a good and clean condition. Without limiting the generality of the foregoing sentence, Licensee shall keep (and shall cause the Licensee Parties to keep) the Licensed Premises clean and free from any hazardous substances, Hazardous Materials, trash, rubbish, debris, waste, and/or explosive or highly flammable materials caused by Licensee or the Licensee Parties. b) During the term of the License, neither Licensor nor the Licensor Parties shall have any obligation to (i) maintain, improve, alter or repair the Licensed Premises, or (ii) furnish any utilities to the Licensed Premises, including but not limited to electricity, gas, water, sewer, CATV, drainage, or telephone service. Except at the sole option of Licensor to do otherwise, any utilities provided to the Leased Premises shall be installed, maintained and paid for by Licensee. c) Licensee shall cure any violation of this Paragraph 9 within ten (10) days after receiving notice of such violation, provided that if such violation is not capable of being cured with ten (10) days, Licensee shall commence to cure such violation within ten (10) days and shall diligently prosecute such cure to completion. d) If Licensee and/or any Licensee Party fails to commence to cure and thereafter diligently complete the cure of any defaults under any obligations set forth in this Paragraph 9 after ten (10) days from receipt of written notice of such failure to comply or default, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure. Licensor shall have no obligation or duty to cure any defaults of Licensee. 10. Environmental Compliance. a) The term "Environmental Law" shall mean any Applicable Law pertaining to worker or workplace safety, environmental conditions, environmental quality or policy, health and/or safety issues or concerns, the regulations promulgated pursuant thereto and the conditions of any permits, judgments, agreements or authorizations issued pursuant thereto, including but not limited to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 43 U.S.C. §9601 et seq., (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §6901 et seq., (iii) the Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. §2601 et seq., (iv) the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq., (v) the Clean Water Act, 33 U.S.C. §1251, et seq., (vi) the Porter Cologne Water Quality Act, California Water Code §13000 et seq., and (vii) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code §25249.5 et seq., (viii) The Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety Code, §25300 et seq., (ix) The California Hazardous Waste Control Law (California Health & Safety Code, §15200 et seq., (x) The Occupational Safety and Health Act (29 U.S.C. §651 et seq.), and (xi) the California Occupational Safety and Health Act (California Labor Code §6300 et seq.). b) The term "Hazardous Substance" shall mean any chemical, substance, material, object, condition, waste or combination thereof that is or may be hazardous to human health or safety or the environment due to its radioactivity, ignitability, corrosivity, reactivity, 381671.2 5 License Agreement (Wetlands Mitigation) toxicity or other properties or effects, including but not limited to oil or petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls (PCBs), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, objects, conditions, wastes or combinations thereof that are now or in the future are listed, defined or regulated in any manner by any Environmental Law. c) At all times during the term of the License, Licensee shall comply (and shall cause the Licensee Parties to comply) with all Environmental Laws. d) At any time during the term of the License, at Licensor's sole cost and expense, but subject to Licensee's obligation to reimburse Licensor for Licensee's breach of its obligations set forth in this Paragraph 10, Licensor may, after providing ten (10) days prior written notice to Licensee, retain a registered environmental consultant to conduct an investigation of the Licensed Premises (an "Environmental Assessment") for Hazardous Substances contamination within or beneath the Licensed Premises or the underlying ground water. Licensee shall (and shall cause the Licensee Parties to) cooperate with Licensor and its consultant regarding any Environmental Assessment. Licensor will provide Licensee with a copy of any such Environmental Assessment to the extent the same, to the reasonable belief of Licensor, pertains to the Environmental Activities of Licensee or the Licensee Parties. e) If any activity performed by Licensee or the Licensee Parties results in any contamination of the Licensed Premises or the soil or ground water under the Licensed Premises, Licensee shall (and shall cause the Licensee Parties to) promptly take all actions, at Licensee's sole expense, to reimburse Licensor for costs incurred by Licensor in connection with any Environmental Assessment(s), and to mitigate or remediate the affected portion of the Licensed Premises and/or the soil or ground water in accordance with all Environmental Laws and/or other Concerned Governmental Agency requirements. Licensor shall have the right (but shall not be obligated) to approve any and all contractors hired by Licensee or the Licensee Parties to perform such mitigation or remediation work. f) Licensee shall cure any violation of this Paragraph 10 within ten (10) days after receiving notice of such violation, provided that if such violation is not capable of being cured with ten (10) days, Licensee shall commence to cure such violation within ten (10) days and shall diligently prosecute such cure to completion. g) If Licensee and/or any Licensee Party fails to commence to cure and thereafter diligently complete the cure of any defaults under any obligations set forth in this Paragraph 9 after ten (10) days from receipt of written notice of such failure to comply or default, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or any Licensor Party in curing such failure. Licensor shall have no obligation or duty to cure any defaults of Licensee. h) The obligations set forth in this Paragraph 10 are independent of any other obligations contained in this Agreement and shall survive the expiration or earlier termination of the License. 11. Insurance. At all times during the term of the License, Licensee shall maintain in effect the following insurance coverages in amounts not less than the following minimum limits: (i) workers' 381671.2 6 License Agreement (Wetlands Mitigation) compensation insurance and employer's liability insurance in accordance with statutory requirements and limits, (ii) commercial general liability insurance, including but not limited to products-completed operations and contractual liability coverage, with limits of not less than $1,000,000.00 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage, and (iii) automobile liability insurance, with limits of not less than $1,000,000.00 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage. a) At any time during the Term of the License, upon Licensor's request, Licensee shall provide insurance policies or certificates evidencing the insurance coverages required to be maintained by Licensee under Paragraph 11 (a) above, and such policies or certificates shall (i) name Licensor as an additional insured, (ii) contain a severability of interest or cross liability clause, (iii) state that such insurance coverage is primary with respect to the Licensor, and The obligation to maintain the insurance coverages set forth in this Paragraph 11 shall not in any way limit or diminish any of Licensee's other obligations, responsibilities or liabilities under this Agreement. 12. Indemnification. 12.1 Indemnification of Licensor. a) Licensee hereby agrees to indemnify, defend and hold harmless Licensor, the Licensor Parties, and their respective officers, directors, employees, shareholders, partners and affiliates (collectively, the "Licensor Indemnitees") from and against any and all Claims to the extent arising or resulting from (i) Licensee's or any Licensee Party's use, maintenance, presence on or occupation of the real property and/or the Licensed Premises pursuant to this Agreement, (ii) the presence of Licensee's or any Licensee Party's automobiles within the real property and/or the Licensed Premises pursuant to this Agreement, (iii) the exercise of the rights granted to Licensee and/or the Licensee Parties under this Agreement, including but not limited to the performance of the Permitted Purpose, (iv) any violation by Licensee and/or any Licensee Party of the terms and conditions of this Agreement, (v) any prescriptive rights in the real property and/or the Licensed Premises asserted by any party by virtue of the License and/or any holding over on or failure to vacate or surrender the Licensed Premises after the expiration or earlier termination of the License if Licensee has not then acquired fee title ownership of the Licensed Premises, and/or (vi) any other act or omission of Licensee and/or any Licensee Party. b) Upon demand by any Licensor Indemnitee, Licensee shall defend, at Licensee's sole expense by counsel reasonably satisfactory to the Licensor, any Claims brought against such Licensor Indemnitee with respect to which Licensee is obligated to defend the Licensee Indemnitee under Paragraph 12.1 (a) above. Licensor shall cooperate with Licensee in such defense. c) The obligations of Licensee under this Paragraph 12.1 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Licensee under any worker's compensation acts, disability benefit acts or other employee benefit acts. d) Nothing contained herein shall operate as a limitation on the right of Licensor to bring an action for damages against any third party, including indirect, 381671.2 7 License Agreement (Wetlands Mitigation) special, or consequential damages, based on any acts or omissions of such third party. Licensee shall assign such rights of claims, execute such documents, and do whatever else may be reasonably necessary to enable Licensor to pursue any such action against such third party. e) The obligations of Licensee under this Paragraph 12.1 shall survive the expiration or earlier termination of the License. 12.2 Indemnification of Licensee. a) Licensor hereby agrees to indemnify, defend and hold harmless Licensee, the Licensee Parties, and their respective managers, members, officers, directors, employees, shareholders, partners and affiliates (collectively, the "Licensee Indemnitees") from and against any and all Claims to the extent arising or resulting from (i) Licensor's or any Licensor Party's negligence or willful misconduct in the use, maintenance, presence on or occupation of the Licensed Premises (ii) any violation by Licensor and/or any Licensor Party of the terms and conditions of this Agreement, and/or (iii) any other act or omission of Licensor and/or any Licensor Party. b) The obligations of Licensor under this Paragraph 12.2 shall survive the expiration or earlier termination of the License. 13. Surrender of Licensed Premises. Upon the expiration or earlier termination of the License if Licensee has not then acquired fee title ownership of the Licensed Premises, Licensee shall promptly vacate and surrender the Licensed Premises to Licensor and shall deliver the Licensed Premises to Licensor clean and free from any trash, rubbish, debris, waste, explosive or highly flammable materials and/or Hazardous Materials caused by Licensee or the Licensee Parties. 14. Notices. a) All notices to be given under this Agreement shall be in writing, addressed to the recipient Party at the address listed in Paragraph 14(b) below, and: (i) Sent by certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States mail; (ii) sent by a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with such overnight courier; or (iii) sent by telecopy or similar means, provided that a copy of the notice is also sent by certified mail, in which case notice shall be deemed delivered on transmittal by telecopier or other similar means provided that a transmission report is generated reflecting the accurate transmission of the notices. b) Each Party's address for notices under this Agreement is set forth below: If to L icensor: C ALAVERA HILLS IILLC 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Telephone: (858)481-8500 Facsimile: (858) 259-6975 Attention: Stephen P. Doyle David R. Poole 381671.2 8 License Agreement (Wetlands Mitigation) If to Licensee: CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE Carlsbad, CA 92008 Telephone: (760)434-2821 Facsimile: (760) 720-9461 Attention: City Manager 15. Assignment. a) Licensor may assign this Agreement at any time to any party without any requirement of notice to or consent of Licensee or any Licensee Party. It is expressly understood that this License runs with the land and the assignee will become the new Licensor. b) Licensee may not assign this Agreement at any time to any party without the prior written consent of Licensor, which may be withheld in the sole discretion of Licensor. 16. Time of the Essence. Time is of the essence of each and all of the terms and provisions of this Agreement. 17. Governing Law and Venue. a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of law principles. b) The Parties hereby agree that any legal action or proceeding arising out of this Agreement shall be brought in a state court of competent jurisdiction in San Diego County, California. By execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits to the jurisdiction of such courts, generally and unconditionally, in connection with any such legal action or proceeding. 18. Severability. If any part, paragraph or provision of this Agreement should be invalid, then all the remaining parts, paragraphs and provisions of this Agreement shall continue in full force and effect. 19. Rules of Construction. a) Headings contained in this Agreement are solely for the convenience of the Parties and are not a part of and shall not be used to interpret this Agreement. The singular form of any word shall include the plural form and vice versa. b) This Agreement has been prepared, examined, negotiated and revised by each Party and its counsel, and no implication shall be drawn and no provision shall be construed against any Party hereto by virtue of the purported identity of the drafter of this Agreement. 20. No Prescriptive Rights. In no event shall any party acquire any interest in the real property or the Licensed Premises, including but not limited to any prescriptive rights, by virtue of the License, this Agreement or any holding over on or failure to vacate or surrender the Licensed Premises after the expiration or earlier termination of the License. 381671.2 9 License Agreement (Wetlands Mitigation) 21. Entire Agreement: Amendment. This Agreement contains the entire agreement of the Parties with respect to the License and the other matters set forth in this Agreement and supersedes all prior agreements, oral or written, between the Parties with respect to the License and/or any other matters set forth in this Agreement. This Agreement may not be amended except by a written instrument signed by all Parties. 381671.2 10 License Agreement (Wetlands Mitigation) IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as of the Effective Date. LICENSOR: CALAVERA HILLS II LLC, a California limited liability company LICENSEE: CITY OF CARLSBAD, a California municipalii By:BROOKFIELD TAMARACK LLC, a Delaware limited liability company its Sole Member By: STATE OF CALIFORNIA COUNTY OF .<ATO DlfrGO On appeared -^ a Notary Public, personally , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)-is/are subscribed to the within instrument, and acknowledged to me that-4ie/she/they executed the same in-Ms/hef/their authorized capacity(ies), and that by --his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public ROBIN RUTHERFORD CommlukMi * 1897421 Notary Public - CtMorrrii Sin Oiogo County Mv Comm, Expires Nov 4, 2013 381671.2 11 License Agreement (Wetlands Mitigation) STATE OF CALIFORNIA COUNTY OF ss before me, •SVvfcl A. L£jUJ|g> I flMaA , a Notary Public, personally appeared CA&oAl f(. L-gJld I ^> . who proved to me on the basis of satisfactory evidence to be the persoa(s) whose namej^(©are-subscribed to the within instrument, and acknowledged to me that (figfoho/thoy executed the same in (fijlyber/their authorized capacity(ies)? and that by(hi«W/thett* signature(^5n the instrument the person^ or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. No SHEILA RENAE COBIAN Commission * 1848471 Notary Public • California San Dtogo County My Comm. Expires May 10.2013 STATE OF CALIFORNIA COUNTY OF ) ss before me,_ , a Notary Public, personally , who proved to me on the basis of satisfactory evidence On appeared to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 381671.2 12 License Agreement (Wetlands Mitigation) STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 381671.2 13 License Agreement (Wetlands Mitigation) i r Exhibit 1 Licensed Premises September 14, 2010 J.N.: 081245-3 PAGE 1 OF 1 EXHIBIT "A" LEGAL DESCRIPTION RESTORATION AREA THAT PORTION OF LOT 9 OF LOT MAP NO. 15608, RECORDED SEPTEMBER 7, 2007 AS FILE NO. 2007-0612802, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 9; SAID POINT ALSO. BEING A POINT ON THE NORTH LINE OF COLLEGE BLVD ON A 1349.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 56°01'23" WEST; THENCE ALONG SAID NORTH LINE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16°14'11" AN ARC DISTANCE OF 382.28 FEET; THENCE CONTINUING ALONG SAID NORTH LINE, NORTH 50°12'48" WEST 96.65 FEET; THENCE LEAVING SAID NORTH LINE, NORTH 39°47'12" EAST 147.08 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 10°28'15" EAST 634.68 FEET; THENCE NORTH 05°33'23" WEST 205.00 FEET; THENCE SOUTH 52°28'37" EAST 91.28 FEET; THENCE SOUTH 37°17'11" EAST 111.33 FEET; THENCE SOUTH 00°36'37" WEST 80.55 FEET; THENCE SOUTH 24°48'23" EAST 165.34 FEET; THENCE SOUTH 35°51'08" EAST 46.66 FEET; THENCE SOUTH 87°24'22" EAST 127.55 FEET; THENCE SOUTH 14°08'46" EAST 37.98 FEET; THENCE SOUTH 05°57'27" WEST 61.50 FEET; THENCE SOUTH 02°54'50" EAST 44.53 FEET; THENCE SOUTH 11°04'45" WEST 90.11 FEET; THENCE SOUTH 01°18'36" WEST 120.07 FEET; THENCE SOUTH 55°34'01" WEST 368.10 FEET; THENCE NORTH 43°10'21" WEST 204.75 FEET TO THE TRUE POINT OF BEGINNING. AREA = 251,303 S.F. OR 5.77 ACRES MORE OR LESS 0:\Legal_Descriptions\011014\PA23-Restoration Area.doc Exhibit 1 Pagel Ji 4 6 i LEGAL DESCRIPTION: PORTION OF LOT 9 OF C.T. 02-16, MAP 15608, BASIS OF BEARINGS: EASTERLY LINE OF R.O.S. 17111 /.£ 5 047J'22' W EASEMENTS PEDESTRIAN TRAIL EASEMENT TOGETHER WITH ACCESS EASEMENT FOR MAINTENANCE, PER MAP 15608 INUNDATION EASEMENT PER MAP 15608 OPEN SPACE EASEMENT TO OTY OF CARLSBAD PER MAP 15608 PUBLIC ACCESS EASEMENT PER MAP 15608 CITY OF PACIFI OCEAN VICINITY MAP NO SCALE: SHT. 1 OF 2 SHTS. 2710 LOKER AVL W. 760-931-7700 SUITE 100 FAX: CARLSBAD. CA 760-931-8680 92010 RESTORATION AREA Exhibit 1 Page 2 G:\011014\0114PB04.dwg Sep 14. 2010 9:53am LEGEND: RESTORATION AREA GROSS AREA = 251,303 SF, OR 5.77 AC NET AREA = GROSS AREA - 7,317 SF (PEDESTRIAN EASEMENT) = 243,986 SF, OR 5.60 AC. EXIST. PROPERTY UNE 100 SCALE: 1" = 200' S14V8'46"E 37.98' 61.50' 502-54'50'E 44.53' S11V4'45"W 90.11' S0118'36"W 120.07' S55'34'01"W 368.10' LOT 5 MAP 15608 SHT. 2 OF 2 SHTS. CONSULT TS' 2710 LOKER AVE. W. 760-931-7700 SUITE 100 FAX: CARLSBAD, CA 760-931-8 92010 RESTORATION AREA Exhibit 1 Page3 G:\0110H\0114PB04.dwg Sep 14. 2010 9:53am Exhibit 2 CNLM Approval Letter Center for Natural Lands Management A non-profit organisation for ihc protection and management of natural resources 2iC> West Ash Street I-iilihrook. CA 92028-290'* Phone: 760.731.7790 Fax: 70O.73t.7791 www.cnlm.orgApril 15,2009 Paul Klukas PLANNING SYSTEMS 1530 Faraday Ave. Suite 100 Carlsbad, CA 92008 RE: WETLANDS CRF.AT1ON AND ENHANCEMENT - ROBERTSON RANCH EAST VILLAGE Dear Mr. Klukas: You have indicated that Calavera Hills II, LLC and the City of"Carlsbad are investigating the wetlands restoration and enhancement opportunities on the approximately 5.6 acres located south of the existing wetland mitigation sites and north of Detention Basin BJB. within the panhandle of the East Village of Robertson Ranch. This area could benefit from a program of creation, restoration and enhancement by increasing cover of native wetland plant species and reducing cover of normative plant species. At this time native cover is low and the plant assemblage does not represent typical riparian habitat in San Diego. Please be advised that CNLM believes improving the wetland in this area would be beneficial to the ecology of the area. We also note that per our conservation and management agreements for the project, McMillin/Brookfield reserved the right to conduct creation and enhancement in this area. As a result, we support the effort of the landowner and the City to conduct wetlands creation/restoration and enhancement in this area. Sincerely 4$4* ^^1^' Markus Spiegeloerg ^ San Diego Area Manager Center lor Natural Lands Management Rise early, stay late and tafce care o/ the land. Exhibit 2 Pagel Agua Hedionda Channel Dredging Project David Hauser October 12, 2010 Tonight’s Action Approval of a License Agreement for purchase of a mitigation site; and, Appropriation of additional funds for the completion of the Agua Hedionda Channel Dredging Project Agua Hedionda Channel Dredging Project Project Description Dredging and Improvement Agua Hedionda and Calavera Creek 100 year flood protection Rancho Carlsbad Estates Community Agua Hedionda Channel Dredging Project Project Status Plans completed Environmental review completed Resource Agency permits submitted Must receive approval mitigation site and mitigation plans Located a potential mitigation site Negotiated for purchase of property rights Agua Hedionda Channel Dredging Project Mitigation Site Located within Basin BJB N/E corner College Blvd and Cannon Road 5.57 acres Contains adequate type and acreage of mitigation Appraised Value $416,000 Agua Hedionda Channel Dredging Project Mitigation Site Potential Risk No guarantee Resource Agencies will issue permits for mitigation on this site Risk Mitigation Written acknowledgement from Resource Agencies •Supportive of site for use as mitigation for project Received letter of support from Preserve Calavera Agua Hedionda Channel Dredging Project Agua Hedionda Channel Dredging Project Project Funding •Estimated project cost (including mitigation) $ 3,350,000 •Current and future appropriations $ 3,120,000 •Additional appropriation required $ 230,000 Agua Hedionda Channel Dredging Project NEXT STEPS •Retain environmental consultant •Prepare mitigation plan •Secure Resource Agency permits •Finalize project design based upon the permits •Bid, award, and construct the project Agua Hedionda Channel Dredging Project Tonight’s Action Adopt Resolution No. 2010-239 approving a license agreement for a mitigation site for the Agua Hedionda Channel Dredging Project, City Project No. 3338