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HomeMy WebLinkAbout2011-01-25; City Council; 20436; PURCHASE CONSERVATION CREDITS ALEMIR SETTLEMENTCITY OF CARLSBAD - AGENDA BILL AB# MTG. DEPT. 20,436 1/25/11 CA REPORTING OUT ON PURCHASE OF CONSERVATION CREDITS FOR 50.13 ACRES ATALEMIR (INCLUDING SETTLEMENT, COMPROMISE, AND MUTUAL GENERAL RELEASE AGREEMENT) DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: Adopt Resolution No. 2011-011 authorizing the Mayor to execute the Purchase Agreement and any other documents necessary to complete the acquisition of conservation credits for 50.13 acres of Alemir property (including Settlement, Compromise and Mutual General Release Agreement). ITEM EXPLANATION: The City of Carlsbad is obligated to conserve 307.6 acres of high quality coastal sage scrub in an area designated the "Gnatcatcher Core Area" as a mitigation requirement pursuant to the City's Habitat Management Plan (HMP) approved on November 9, 2004. To fulfill a portion of this requirement, the City negotiated with Morrow Development, succeeded by Real Estate Collateral Management (RECM), to purchase a conservation easement over 50.13 acres of excess mitigation land, known as the Alemir parcel, which was not needed for the La Costa Villages project. The City agreed to purchase this easement using in-lieu mitigation funds it was to collect through implementation of its Habitat Management Plan Fee Program. Subsequently, Estates Seven LLC acquired the land at Alemir from RECM to mitigate impacts associated with its contemplated Bridges Units 6 and 7 Project located in Encinitas. Because of its prior negotiations with Morrow Development, the City objected to the use of Alemir credits by Estates Seven LLC. Ultimately the Bridges Project was never completed and Estates Seven LLC has agreed to sell the conservation credits for the 50.13 acres of Alemir property that it acquired from RECM to the City for the price that the City initially negotiated with Morrow Development for the purchase. The land is now owned in fee by the Center for Natural Lands Management (CNLM) which holds an endowment for conservation of the habitat land in perpetuity. As part of the negotiations CNLM has executed an Irrevocable Offer of Dedication of a conservation easement over the property to the California Department of Fish and Game, the grantee originally designated in the Habitat Conservation Plan/Ongoing Multi-Species Plan Implementation Agreement dated June 7, 1995. The United States Fish and Wildlife Service and the California Department of Fish and Game have approved the location and acreage of DEPARTMENT CONTACT: Jane Mobaldi 760-434-2891 jane.mobaldi@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED DENIED CONTINUED WITHDRAWN AMENDED CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER-SEE MINUTES D I Page 2 the offsite mitigation in the County Core Area for impacts to Gnatcatcher and other species habitat to meet the City's conservation requirements under the City's Habitat Management Plan. With the purchase of these conservation credits, the City's remaining obligation for purchase of offsite mitigation, pursuant to the Habitat Management Plan, will be reduced to 43.02 acres. FISCAL IMPACT: The negotiated price for acquisition of the conservation credits for 50.13 acres of HCP/HMP Offsite Core Area Mitigation is $27,000 per acre, for a total purchase price of $1,353,510.00. The credit purchase price includes a provision for long term maintenance of the mitigation site so no additional cost will be required to establish a mitigation endowment fund. The bulk of the purchase price will be funded from the Habitat Mitigation Fee Fund, with a remaining balance, as of November 30, 2010 of $1,120,974.00. Since Estates Seven LLC is requiring an all cash payment for the transaction, the balance of the purchase price will be advanced from the General Fund as a no interest loan to the Habitat Mitigation Fee Fund. The loan will be repaid once the balance owed has been collected in the Habitat Mitigation Fee Fund. ENVIRONMENTAL IMPACT: The Planning Director has determined that the project is exempt from the California Environmental Quality Act pursuant to the CEQA Guidelines (California Code of Regulations Title 14, Chapter 3, section 15325(a)) which provides a categorical exemption for the acquisition, sale, or other transfer of areas to preserve the existing natural conditions, including plant or animal habitat. EXHIBITS: 1. Resolution No. 2011-011 authorizing the Mayor to execute the Purchase Agreement and any other documents necessary to complete the acquisition of conservation credits for 50.13 acres of Alemir property (including Settlement, Compromise and Mutual General Release Agreement). 2. Transfer of Real Property Conservation Credits Re: HCP/HMP Offsite Core Area (including Settlement, Compromise and Mutual General Release Agreement) 2- Exhibit 1 1 RESOLUTION NO. 2011-011 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE 3 MAYOR TO EXECUTE THE PURCHASE AGREEMENT 4 AND ANY OTHER DOCUMENTS NECESSARY TO COMPLETE THE ACQUISITION OF CONSERVATION 5 CREDITS FOR 50.13 ACRES OF ALEMIR PROPERTY (INCLUDING SETTLEMENT, COMPROMISE AND 6 MUTUAL GENERAL RELEASE AGREEMENT) 7 WHEREAS, the City is obligated to conserve high quality coastal sage scrub as a 8 mitigation requirement pursuant to its Habitat Management Plan which was approved by 9 the City Council on November 9, 2004; and 10 WHEREAS, to fulfill a portion of this requirement, the City has negotiated with 11 Estates Seven LLC to purchase conservation credits for 50.13 acres of Alemir property 12 located in the offsite core area; and 13 WHEREAS, the City Council has agreed to the purchase price of $27,000 per 15 acre, for a total purchase price of $1,353,510.00; and 16 WHEREAS, the majority of the purchase amount will funded from the Habitat 17 Mitigation Fee Fund which as of November 30, 2010 had a balance of $1,120,974.00; 18 and WHEREAS the remainder of the purchase price shall be advanced from the 20 General Fund as a no interest loan to the Habitat Mitigation Fee Fund; and 21 WHEREAS, the General Fund has sufficient funds to loan for acquisition of said 22 conservation credits, and the loan will repaid once the loan amount has accrued in the 23 Habitat Mitigation Fee Fund. 25 "I 26 /// 27 28 Exhibit 1 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 2 Carlsbad, California, as follows: 1. That the above recitations are true and correct. 4 2. That the Mayor is authorized to execute the attached Transfer of Real 5 Property Conservation Credits Re: HCP/HMP Offsite Core Area (including 6 Settlement, Compromise and Mutual General Release Agreement) and to 8 execute all documents associated with the purchase of the conservation 9 credits as necessary, as approved by the City Attorney. 10 3. That the Finance Director is authorized to appropriate funds for the purchase from the Habitat Mitigation Fee Fund No. 1725110 and the General 12 Fund when directed to do so by the City Attorney. 13 4. That the Finance Director is authorized to reimburse the General Fund the 14 amount loaned to the Habitat Mitigation Fee Fund once the loan amount has 15 accrued in Fund No. 1725110.16 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 25 26 '" 27 '" 28 1 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council 2 of the City of Carlsbad on the 25th day of January, 2011, by the following vote to wit: 3 AYES: Council Members Hall, Kulchin, Blackburn, Douglas and Packard. 4 5 NOES: None. 6 7 ABSENT: None. s" 9 10 11 MATT ^ALL, Mayor ' 12 ATTEST: 13 14 15 _ JRRAINE M. WOOD, City Clerk 16 (SEAL) / 17 18 19 20 21 22 23 24 25 26 27 28 TRANSFER OF REAL PROPERTY CONSERVATION CREDITS RE: HCP/HMP OFFSITE CORE AREA (INCLUDING SETTLEMENT, COMPROMISE AND MUTUAL GENERAL RELEASE) This Transfer of Real Property Conservation Credits Re: HCP/HMP Offsite Core Area (including Settlement, Compromise and Mutual General Release ("Agreement") is entered into on , 2010 by and between the City of Carlsbad ("City"), a municipal corporation, Estates Seven, LLC, a Delaware limited liability company ("Estates Seven"), and Real Estate Collateral Management Company ("RECM"), a Delaware Corporation, collectively referred to as "Parties" herein. RECITALS A. Under the Federal Endangered Species Act, the United States Fish and Wildlife Service ("USFWS") is responsible for approving the location and adequacy of mitigation for impacts to federally listed endangered species and species of concern. Under the California Endangered Species Act, the California Department of Fish and Game ("CDF&G") is responsible for approving the location and adequacy of mitigation for state listed endangered species and species of concern. B. The USFWS and CDF&G have approved the location and acreage of off-site mitigation in the County Core Area for impacts to gnatcatcher and other species habitat to meet the City's conservation requirements ("Mitigation Obligations") under the City's Habitat Management Plan ("HMP") adopted November 9, 2004, and the Habitat Conservation Plan/Ongoing Multi-Species Plan for Properties in the Southeast Quadrant of the City of Carlsbad and Addenda and the related Implementation Agreement among Fieldstone/LaCosta Associates Limited Partnership, the City of Carlsbad, CDF&G and the USFWS dated June 7,1995 ("Fieldstone HCP"). RECM is the successor in interest to Fieldstone/La Costa Associates. C. Under the Fieldstone HCP, RECM purchased the Choumus Pappas and Alemir Properties for use in satisfying the Fieldstone HCP and City HMP offsite core area mitigation requirements ("HCP/HMP Offsite Core Area"). D. CDF&G is obligated to accept Conservation Easements for perpetual wildlife conservation for the HCP/HMP Offsite Core Area under the terms of the Fieldstone HCP. E. Pursuant to the Fieldstone HCP, fee title is now held by the Center for Natural Lands Management, a non-profit conservation entity, for the perpetual management and preservation with the use of endowment funds provided by RECM all as pursuant to the Fieldstone HCP. F. RECM and Estates Seven entered into an agreement under which RECM optioned to Estates Seven those portions of the HCP/HMP Offsite Core Area with unallocated conservation credits with the understanding by RECM and Estates Seven that USFWS and CDF&G would credit the acreage to the City even though Estates Seven would use all or portions as mitigation for its Bridges Project, including the 50.13 acres of Alemir Property conservation credit the City intended to use in satisfying the City's Mitigation Obligations. W02-WEST:.1DMR l\403135388.1 -1 - G. The 50.13 acres of Alemir Property which is the subject of this Agreement is referred to hereinafter as the "Conserved Habitat Lands" as described in Exhibit A and depicted in Exhibit B attached hereto. H. USFWS and CDF&G have now provided written confirmation in letters dated February 28, 2007 and April 29, 2010, attached hereto as Exhibits D and E, respectively, that the Alemir 50.13 acres of conservations credit will count toward satisfying the City's Mitigation Obligations pursuant to the Fieldstone HCP and the City's HMP, and that mitigation for Estates Seven's Bridges Project may not be satisfied with such acreage, but instead can be satisfied with other properties. City acknowledges that Estates Seven has no control over City's satisfaction of its Mitigation Obligations. I. City desires to purchase the Alemir 50.13 acres conservation credits and the right to use the those credits to mitigate impacts to wildlife and habitat at a lump sum price of $27,000 per acre, and Estates Seven desires to make said 50.13 acres of conservation credit available exclusively to City to satisfy its Mitigation Obligations, at that price. THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. Purchase Price. The City wishes to buy and Estates Seven is willing to sell the 50.13 acres of conservation credit as HCP/HMP Offsite Core Area mitigation, for the sum of $27,000 per acre for a total of $1,353,510 (one million, three hundred fifty-three thousand, five hundred and ten dollars) (the "Purchase Price)." RECM is not a party to nor shall have any responsibility or obligation regarding the sale or transfer of the conservation credits or its associated escrow. 2. Escrow. A. Opening of Escrow. Sale of the conservation credits over the Conserved Habitat Lands shall take place through an escrow ("Escrow") to be established within three (3) business days after execution of this Agreement. City and Estates Seven shall each pay fifty percent (50%) of Escrow Holder's escrow fee associated with this Agreement. B. Deposit of Purchase Price. Within ten (10) days of the Opening of Escrow, the City will deposit the full Purchase Price into Escrow along with the City's share of the Escrow costs. The Purchase Price shall be placed by the Escrow holder into an interest-bearing account. All interest earned on the Purchase Price shall be paid to the City upon close of Escrow. The City will notify Estates Seven within ten (10) business days after depositing the Purchase Price into Escrow ("Deposit Notice"). C. Release of Purchase Price and Close of Escrow. The Purchase Price will be released to Estates Seven by the Escrow Holder within five (5) business days after the Escrow Holder receives written notice that the Irrevocable Offer to Grant Conservation Easement and draft Conservation Easement have been recorded by City in the San Diego County Recorder's Office in accordance with Section 3 below. The Escrow will close upon release of the Purchase Price. W02-WEST:3DMR1U03135388.1 -2- 3. Delivery of Conservation Credit and Recording. A. Delivery of Conservation Credit. Within five (5) business days after receipt of the Deposit Notice, Estates Seven will deliver to City an Irrevocable Offer to Grant Conservation Easement over the Conserved Habitat Lands to CDF&G and draft Conservation Easement, in the form of Exhibit C, attached hereto. The Irrevocable Offer and draft Conservation Easement will be executed by the Center for Natural Lands Management, as the current fee owner of the Alemir Property, but will not have been executed by the Grantee, CDF&G. B. Recordation. Upon execution, the City will record the attached Irrevocable Offer to Grant Conservation Easement over the Conserved Habitat Lands and draft Conservation Easement in the San Diego County Recorder's Office within ten (10) business days of receipt. In the event the City is unable to record the Irrevocable Offer and draft Conservation Easement within ten (10) business days, the City will promptly notify Estates Seven of the reason for and estimated time period of the delay. 4. Upon recordation and payment of the Purchase Price, Estates Seven shall notify USFWS and CDF&G that the Purchase Price has been paid and the transfer of conservation credits for the Conserved Habitat Lands to the City has been made, regardless of whether acceptance of an Irrevocable Offer to Grant Conservation Easement for the Conserved Habitat Lands is ever executed or recorded. 5. Certified copies of the recorded document shall be obtained and mailed by City to: General Counsel Department of Fish and Game Legal Affairs Division 1416 Ninth Street, 12th Floor Sacramento, California 95814-2090 Field Supervisor United States Fish and Wildlife Service 2730 Loker Avenue Carlsbad, California 92008 Center for Natural Lands Management c/o Mr. David Brunner, Executive Director 3074 Heavenly Ridge Street Thousand Oaks, California 91362 Real Estate Collateral Management Company c/o Mr. Fred Arbuckle, President Morrow Development, Inc. 2131 Palomar Airport Road, Suite 200 Carlsbad, California 92011 W02-WEST:3DMRI\403135388.1 -3- Estates Seven, LLC c/o Lennar Homes of California, Inc. Attn: Mr. Phil Wagner 25 Enterprise Aliso Viejo, CA 92656 6. Upon recordation and release of the Purchase Price to Estates Seven, City shall be exclusively entitled to the use and benefit of the Conserved Habitat Lands for mitigation of impacts to wildlife and habitat as contemplated in the Fieldstone HCP and City's HMP and confirmed in the letters by USFWS from Therese O'Rourke, Assistant Field Supervisor, dated February 28,2007, and by CDF&G from Stephen M. Juarez, Environmental Program Manager, dated April 29, 201O, attached as Exhibits D and E, respectively 7. Further, the Parties each desire to resolve, compromise and settle any and all claims any one of them may have against the other in connection with (i) City's acquisition and conservation of the HCP/HMP Offsite Core Area lands, (ii) payment or reimbursement for same or any of the conservation easements, conservation credits, endowment funds for all purposes (excluding therefrom, any final option payment due from Estates Seven to RECM pursuant to the agreement referred to in Recital F above), or (iii) any other matter relating to the City's Mitigation Obligations in the HCP/HMP Offsite Core Area. 8. Upon payment of the funds set forth in Section 1 above, the Parties hereto, on behalf of and for the benefit of themselves and their respective officers, shareholders, homeowners, members, employees, agents (including but not limited to Morrow Development, Inc.), and consultants intend this Agreement as a full and complete mutual general release of all claims regarding the matters described in Section 7 above and hereby mutually release each other from any and all further claims regarding such matters, whether known or unknown. The parties hereto expressly waive the provisions of California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Initials Initials Initials City Estates Seven RECM 9. Whenever requested to do so by another party, each party shall execute, acknowledge, and deliver any further instruments or documents that are reasonably necessary to complete the closing of the transaction contemplated by this Agreement. In addition, each party shall do any other reasonably necessary acts and execute, acknowledge and deliver any reasonably requested documents that are reasonably necessary to carry out the transaction contemplated by this Agreement. Provided, however, that RECM shall have no responsibilities or obligations of any kind regarding the Irrevocable Offer and Conservation Easement. W02-WEST:3DMRl\4031.15388.1 -4- 10. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same document. 11. This Agreement shall be governed by and construed in accordance with the laws of the State of California, San Diego County venue, without regard to principles of conflicts of laws. This Agreement shall be construed as if both parties prepared it. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized representatives as of the date set forth above. CITY OF CARLSBAD By:. Dated: Dated: Name: Matt Hall Title: Mayor Dated: ESTATES SEVEN, LLC, a Delaware limited liability company By: HCC Investors, LLC, a Delaware limited liability company Its: Sole Member By: Lennar Homes of California, Inc., a California Corporation Its: Manager By: REAL ESTATE COLLATERAL MANAGEMENT COMPANY By:_ Name:_ Title: " W02-WEST:3DMR!\403135388.I EXHIBIT A EXHIBIT "A" Legal Description of 50.13 acres of Alemir Property Conserved Habitat Lands \V02-WEST:3DMR IV403135388.1 EXHIBIT "A" LEGAL DESCRIPTION ALEMIR "C" A PORTION OF PARCEL B-1 AS DESCRIBED IN GRANT DEED TO REAL ESTATE COLLATERAL MANAGEMENT COMPANY FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MARCH 30, 1999 AS DOCUMENT NUMBER 1999-0208165 OF OFFICIAL RECORDS OF SAID COUNTY, SAID PARCEL B-1 BEING A PORTION OF SECTION 32, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, SAID PORTION OF PARCEL B-1 BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF THE RANCHO LAS ENCINITAS. ACCORDING TO MAP THEREOF NO. 848, FILED IN SAID OFFICE OF THE COUNTY RECORDER, SAID CORNER BEING AN ANGLE POINT IN THE BOUNDARY OF SAID PARCEL B-1, THENCE ALONG SAID BOUNDARY NORTH 29°20'24" EAST (RECORD NORTH 28°46W EAST PER SAID DEED), 386.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID BOUNDARY SOUTH 89°25'05" EAST, 649.52 FEET TO A POINT ON THE BOUNDARY OF SAID PARCEL B-1; THENCE ALONG SAID BOUNDARY THE FOLLOWING 17 COURSES: 1. NORTH 32°54'39" EAST (RECORD NORTH 32°24'14" EAST PER SAID DEED), 902.31 FEET; 2. THENCE SOUTH 73°08'24" EAST (RECORD SOUTH 73°42'30" EAST PER SAID DEED), 230.00 FEET TO THE BEGINNING OF A 300.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; 3. THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19°40'30", 103.02 FEET; 4. THENCE SOUTH 02°48'54" EAST (RECORD SOUTH 03'23'00" EAST PER SAID DEED), 174.33 FEET TO THE BEGINNING OF A 300.00 FOOT RADIUS CURVE CONCAVE WESTERLY; PAGE 1 OF 3 a M:\2352\62X\Legal Descriplions\A03 ALEMIR PARCEL A3 doc WO 2352-62X 1/11/05 5. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26°17>40", 137.68 FEET; 6. THENCE SOUTH 66°31'14" EAST (RECORD SOUTH 67"05'20" EAST PER SAID DEED), 30.00 FEET; 7. THENCE SOUTH 66°29'15" EAST, 277.98 FEET (RECORD SOUTH 67°20'00" EAST 276.55 FEET PER SAID DEED) TO THE MOST NORTHERLY CORNER OF ENCINITAS COPPER MINE NO. 3; 8. THENCE ALONG THE NORTHEASTERLY LINE OF SAID MINE SOUTH 52°25'13" EAST, 692.26 FEET (RECORD SOUTH 52°59'05" EAST 613.52 FEET PER SAID DEED) TO THE EAST LINE OF SAID SECTION 32; 9. THENCE ALONG SAID EAST LINE NORTH 00°37'00" EAST, 1150.69 FEET (RECORD NORTH 00°03'38" EAST, 1149.60 FEET PER SAID DEED) TO THE EAST QUARTER CORNER OF SAID SECTION; 10. THENCE CONTINUING ALONG SAID EAST LINE NORTH 00°35'26" EAST (RECORD NORTH 00-01'00" EAST PER SAID DEED). 760.00 FEET; 11. THENCE LEAVING SAID EAST LINE SOUTH 59°55'36" WEST, 550.01 FEET (RECORD SOUTH 59°21'30" WEST, 550.26 FEET PER SAID DEED) TO THE BEGINNING OF A NON-TANGENT 1000.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL LINE OF SAID CURVE BEARS NORTH 59°54'38" EAST (RECORD NORTH 59°2r30* EAST PER SAID DEED) TO SAID POINT; 12. THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22"08'32", 386.45 FEET (RECORD 22°09'30*. 386.74 FEET PER SAID DEED); 13. THENCE NORTH 52°13'54" WEST, 425.83 FEET (RECORD NORTH 52°48W WEST, 425.53 FEET PER SAID DEED); 14. THENCE SOUTH 37°46'06" WEST (RECORD SOUTH 37°12'00' WEST PER SAID DEED), 30.00 FEET; 15. THENCE SOUTH 06'28'46- WEST (RECORD SOUTH 05°54'40" WEST PER SAID DEED). 1216.96 FEET; 16. THENCE NORTH 73°08'24" WEST (RECORD NORTH 73"42'30" WEST PER SAID DEED). 574.00 FEET; 17. THENCE SOUTH 29°20'24" WEST (RECORD SOUTH 28°46'50" WEST PER SAID DEED). 1074.59 FEET TO THE TRUE POINT OF BEGINNING. PAGE 2 OF 3 :d M \2352\62X\Legal Descriplions\A03 ALEMIR PARCEL A3.doc WO2352-62X W11/05 CONTAINS 50.13 ACRES, MORE OR LESS. THIS DESCRIPTION WAS PREPARED FROM RECORD DATA. DAVID P. VIERA LS. 6708 EXP. 6/30/06 HUNSAKER & ASSOCIATES SAN DIEGO. INC. PAGE 3 OF 3 .d M:\2352\62XMegal Ocscfiplions\A03 ALEMIR PARCEL A3 doc WO2352-62X 1/11/05 EXHIBIT B EXHIBIT "B" Drawing of Conserved Habitat Lands W02-WEST:3DMR1\403135388.1 EXHIBIT "B1 600 1200 SCALE 1"=600' 180O ALEMIR "C 50.13 AC. NOTES: PARCELS SHOWN ARE PER GRANT DEED RECORDED 3-30-1999 AS DOC j 1999-0208165 AND ARE BASED ON RECORD DATA FROM L.S. MAP 433, ROS 4874, ROS 9517 AND PM 11725 ALEMIR "C1 R:\021O\JtUcp\U1 UHIBIJ Uimir Cj*g[ I5SI}J<in-tt-200S.ll.04 - H.O. 2353-MT EXHIBIT C EXHIBIT "C" Irrevocable Offer to Grant Conservation Easement and Draft Conservation Easement ("Conservation Easement") Over 50.13 Acres of Alemir Property W02-WEST:3DMR1\403135388.1 RECORDING REQUESTED BY City of Carlsbad City Clerk 1200 Carlsbad Village Drive Carlsbad CA 92008 MAIL TAX STATEMENTS TO: [Not Applicable] THIS SPACE ABOVE FOR RECORDER'S USE Documentary transfer tax is $-0- APN 223-072-02 [X] Computed on full value of property conveyed, or [ ] Computed on full value less value of liens and encumbrances remaining at time of sale or transfer: [X] Unincorporated area County of San Diego. IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT (CITY OF CARLSBAD OFF-SITE) Re: City of Carlsbad Habitat Management Plan and Implementation Agreement Regarding The City of Carlsbad/Fieldstone/La Costa Associates Habitat Conservation Plan/On-Going Multi-Species Plan CENTER FOR NATURAL LANDS MANAGEMENT, a California corporation (hereinafter designated "Grantor"), represents that it is the owner of the hereinafter described real property and hereby makes an IRREVOCABLE OFFER TO GRANT CONSERVATION EASEMENT to the State of California by and through the Department of Fish and Game, a subdivision of the California Resources Agency (hereinafter collectively designated "Grantee"), its successors and assigns, of an easement over the hereinafter described real property for the following purpose: TO BE HELD AND USED IN PERPETUITY FOR WILDLIFE CONSERVATION PURPOSES. The real property referred to above is situated in the County of San Diego, State of California consisting of 50.13 acres as more particularly described in Exhibits "A" and "B" to that certain Conservation Easement Deed, attached hereto as Attachment "1" and made a part hereof W02-WEST:3DMR1\402729839.2 -I- (hereinafter the "Conserved Habitat Lands") together with all flora and fauna now growing or located on, or to be grown or located on, the Conserved Habitat Lands. This Irrevocable Offer shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns in accordance with its rights, duties and obligations set forth in the Implementation Agreement. IN WITNESS WHEREOF, the Grantor has caused this Irrevocable Offer of Dedication to be executed , 2010. CENTER FOR NATURAL LANDS MANAGEMENT, a California corporation By: Name: Title: STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) 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. WITNESS my hand and official seal. Signature W02-WEST:3DMR1\402729839.2 -2- ATTACHMENT 1 Draft Conservation Easement Deed W02-WI-:ST:30MRI'402729839 2 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: State of California Wildlife Conservation Board 1807 13th Street, Suite 103 Sacramento, CA 95814 With a conformed copy to: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 SPACE ABOVE LINE FOR RECORDER'S USE ONLY CONSERVATION EASEMENT (City of Carlsbad Off-Site) THIS CONSERVATION EASEMENT is made this . day of .,2010 by the Center for Natural Lands Management ("Grantor") in favor of the State of California ("Grantee"), acting by and through the California Department of Fish and Game, a subdivision of the California Resources Agency, with reference to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the County of San Diego, State of California, legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by reference (the "Property"), and consisting of approximately 50.13 acres. B. The Property contains restored, created, and preserved upland habitats. C. The Department of Fish and Game ("CDFG") has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species pursuant to Fish and Game Code §1802. D. The United States Fish and Wildlife Service (the "USFWS"), an agency within the United States Department of the ulterior, has jurisdiction over the conservation, protection, restoration and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species within the United States pursuant to the Endangered Species Act, 16 U.S.C. § 1531, et seq., the Fish and Wildlife Coordination Act, 16 W02-\VEST:3DMR IV402731349.2 -1- U.S.C. §§ 661-666C, the Fish and Wildlife Act of 1956, 16 U.S.C. § 742(f), ct scq., and other provisions of federal law. E. The City of Carlsbad, California, is a municipal corporation which on November 9, 2004, adopted a Habitat Management Plan ("HMP"), for the conservation, protection, and management offish, wildlife, native plants and the habitat necessary for biologically sustainable populations of certain species thereof and has authorization to issue permits to impact various species and habitats by virtue of Incidental Take Permit No. TE022606-0 from U.S. Fish and Wildlife Service and Natural Community Conservation Planning Permit No. 2835-2004-01-05. F. Grantee is authorized to hold this conservation easement pursuant to California Civil Code Section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code Section 815.3(b) and otherwise authorized to acquire and hold title to real property. G. The Property is and will remain in a Natural Condition as defined herein and is intended to be perpetually conserved, managed and preserved in its natural, scenic, open conditions to maintain its ecological and biological values (collectively, "Conservation Values") of great importance to Grantee, the people of the State of California, and the people of the United States. H. This Conservation Easement is granted pursuant to the City of Carlsbad, Habitat Management Plan ("HMP"), and the Habitat Conservation Plan/Ongoing Multi-Species Plan for Properties in the Southwest Quadrant of the City of Carlsbad and Addenda and the related Implementation Agreement among Fieldstone/La Costa Associates Limited Partnership, the City of Carlsbad, CDFG and the USFWS dated June 7, 1995 ("HCP"). As signatory agencies to the HMP and the HCP (collectively, "HCP/HMP"), CDFG and USFWS are together referred to in this Conservation Easement as the "Signatory Agencies." I. This Conservation Easement provides in-perpetuity protection for the Property which provides mitigation required from the City for certain impacts described in the HCP/HMP. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to California law, including Civil Code Section 815, et sec/., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth ("Conservation Easement"). This Conservation Easement shall run with the land and be binding on Grantor's heirs, successors, administrators, assigns, lessees, and other occupiers or users of the Property or any portion of it. 1. Purpose. (a) The Purpose of this Conservation Easement is to ensure the Property will be preserved and managed in a Natural Condition, defined below, in perpetuity and to prevent any use of the Property that will impair or interfere with the Conservation Values of the Property (the "Purpose"). Grantor intends that this Conservation Easement will confine the use of the VV02-WFST:3DMRI\-4027? 1349.2 -2- Property to such activities that are consistent with the Purpose, including without limitation, those involving the preservation, creation, restoration, and enhancement of native habitats and the species they support implemented in accordance with the HCP/HMP. (b) The term "Natural Condition," as referenced in the preceding paragraph and other portions of this Conservation Easement, shall mean the condition of the Property as it exists at the time this Conservation Easement is executed and upon future changes to the Property that occur directly as a result of the following activities: (1) Creation, restoration, enhancement, and management activities, including implementation, maintenance, and monitoring; (2) Long-term maintenance and management on the Property; and/or (3) Other activities approved by CDFG and USFWS. (c) Grantor certifies to the Grantee and the Signatory Agencies that, to the Grantor's actual knowledge, there are no previously granted easements existing on the Property that interfere or conflict with the Purpose of this Conservation Easement as evidenced by the Title Report attached at Exhibit "C." The current Natural Condition is evidenced in part by the depiction of the Property attached on Exhibit "D," showing all relevant and plottable property lines, easements, dedications, structures and improvements (both existing and future), and major, distinct natural features such as waters of the United States. Grantor has delivered further evidence of the Natural Condition to Grantee and the Signatory Agencies, consisting of (1) an aerial photograph of the Property at an appropriate scale taken as close in time as possible to the date this Conservation Easement is executed; (2) an overlay of the Property boundaries on such aerial photograph; and (3) on-site photographs showing all major, distinct natural features on the Property. (d) If a controversy arises with respect to the Natural Condition of the Property, Grantor and Grantee, or their designees or agents, shall not be foreclosed from utilizing any and all other relevant documents, surveys, photographs, or other evidence or information to assist in the resolution of the controversy. (e) The term "Biological Monitor" shall mean an independent third-party consultant possessing familiarity with biological resources in the San Diego County area and at least a master's level education in the field of biology or at least three years of experience with biological resource management in San Diego County. The Grantor shall submit the qualifications of the Biological Monitor to the Grantee and the Signatory Agencies for review and approval. 2. Grantee's Rights. To accomplish the Purpose of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee: (a) To preserve and protect the Conservation Values of the Property; and (b) To enter upon the Property at reasonable times in order to monitor compliance with and to otherwise enforce the terms of this Conservation Easement, provided that W02-\VEST:3DMRr402731349.2 -3- Grantee shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property; and (c) To prevent any activity on or use of the Property that is inconsistent with the Purpose of this Conservation Easement, and to require the remediation of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this Conservation Easement; and (d) All mineral, air, and water rights necessary to protect and to sustain the Conservation Values of the Property, provided that any exercise of such rights by Grantee shall not result in conflict with the Conservation Values; and (e) 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. 3. Prohibited Uses. Any activity on or use of the Property inconsistent with the Purpose of this Conservation Easement and not reserved as a right of Grantor is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantee, and their respective guests, agents, assigns, employees, representatives, successors, and third parties are expressly prohibited on the Property except as otherwise provided herein or unless specifically provided for in: (a) the HCP/HMP, and any amendments thereto, provided those plans and amendments have been duly approved; and (b) any easements and reservations of rights recorded in the chain of title to the Property at the time of this conveyance (as set forth on Exhibit "C"): (a) Supplemental watering except for habitat restoration and enhancement activities described in Section 5(b): (b) Use of herbicides, pesticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except weed abatement activities necessary to control or remove invasive, exotic plant or animal species; (c) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways during the execution of management duties; (d) Livestock grazing or other agricultural activity of any kind; (e) Recreational activities including but not limited to horseback riding, biking, hunting, or fishing; (f) Residential, commercial, retail, institutional, or industrial uses; (g) Any legal or de facto division, subdivision, or partitioning of the Property; W02-WEST:3DMR1V402?31349.2 -4- (h) Construction, reconstruction, or placement of any building or other improvement, billboard, or sign, or any other structure or improvement of any kind except those signs and the gate specifically required under Section 4(f) and Section 4(g): (i) Depositing, dumping, or accumulating soil, trash, ashes, refuse, waste, bio-solids or any other material; (j) Planting, introduction, or dispersal of non-native or exotic plant or animal species; (k) Filling, dumping, excavating, draining, dredging, mining, drilling, removing, or exploring for or extraction of minerals, loam, gravel, soil, rock, sand, or other material on or below the surface of the Property or granting or authorizing surface entry for any of these purposes; (1) Altering the surface or general topography of the Property, including but not limited to building of roads, retaining walls, trails, flood control structures or features, or paving or otherwise covering the Property with any impervious material, except as permitted in Section 5; (m) Removing, destroying, or cutting of trees, shrubs, or other vegetation, except for (1) emergency fire breaks as required by fire safety officials, (2) prevention or treatment of floral diseases, (3) control of invasive species which threaten the integrity of the habitat, (4) activities necessary to implement the Restoration and Management Plans and/or activities identified in Section 4. Section 5. and Section 18; (n) Manipulating, impounding, or altering any natural watercourse, body of water, or water circulation on the Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters; (o) Engaging in any use or activity that may violate or fail to comply with relevant federal, state, or local laws, regulations, or policies applicable to Grantor, the Property, or the use or activity in question; and (p) fuel modification zones. 4. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1. Grantor, its successors and assigns shall: (a) 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. (b) Undertake all necessary actions to perfect and defend Grantee's rights under Section 2 of this Conservation Easement, including but not limited to Grantee's water rights; and (c) Comply with the terms of this Conservation Easement and cooperate with Grantee in the protection of the Conservation Values; and W02-WEST:3DMRI\402731349.2 -5- (d) Repair and restore damage to the Property directly caused by Grantor, Grantor's guests, representatives, employees or agents, and third parties provided, however, Grantor, its successors or assigns shall not engage in any repair or restoration work in the Property without first consulting with the Signatory Agencies; and (e) Undertake construction, maintenance and monitoring of restoration areas until issuance of final approval from the Signatory Agencies confirming that Grantor has successfully completed construction, maintenance and monitoring of restoration areas; and (f) Install signs as set forth in Section 5 below; and (g) Obtain any applicable governmental permits and approvals necessary for any activity or use permitted by this Conservation Easement, and undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements; and (h) Perform maintenance and management of the Property as set forth in the Management Plan and Section 18; and (i) As set forth in Section 18 herein, prepare an annual monitoring and maintenance report documenting management and maintenance activities performed and provide the annual reports to the Signatory Agencies; and (j) As set forth in Section 18 herein, prepare and implement a Remediation Plan for the reparation and remediation of damage to the Property from any activities prohibited by Section 3 herein. 5. 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 not expressly prohibited by or limited by and are consistent with the Purpose of, this Conservation Easement, including the following uses. (a) Access. Reasonable access through the Property to adjacent land over existing roads, or to perform obligations or other activities permitted by this Conservation Easement. All existing easement holders shall retain existing access rights to its easements (as shown on Exhibit "D"). (b) Habitat Enhancement Activities. Restoration of native plant communities, including the right to plant trees and shrubs of the same type as currently existing on the Property, so long as such activities do not harm the habitat types identified in the BEI and Restoration Plan. Prior to any habitat enhancement activities, the Grantor shall have its Biological Monitor submit detailed plans to the Signatory Agencies for review and written approval. Habitat enhancement activities shall not be in direct or potential conflict with the preservation of the Natural Condition of the Property or the Purpose of this Conservation Easement and shall be performed in compliance with all applicable laws, regulations, and permitting requirements. W02-WEST:3DMR I \402731349.2 -6- (c) Vegetation. Debris, and Exotic Plant Species Removal. Removal or trimming of vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of parasitic vegetation (as it relates to the health of the host plant) and non-native or exotic plant species. Vegetation, debris, and exotic plant species removal shall not be in direct or potential conflict with the preservation of the Natural Condition of the Property or the Purpose of this Conservation Easement. 6. Grantee's Remedies. If Grantee determines that a violation of this Conservation Easement has occurred or is threatened, Grantee shall give written notice ("Notice of Violation") to Grantor of such violation and demand in writing the cure of such violation. If Grantor fails to cure the violation within thirty (30) days after receipt of a Notice of Violation, or if the cure reasonably requires more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction for any or all of the following: to recover any damages to which Grantee may be entitled for violation of the terms of this Conservation Easement or for any injury to the Conservation Values 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; to pursue any other legal or equitable relief, including but not limited to, the restoration of the Property to the condition in which it existed prior to any violation or injury; or to otherwise enforce this Conservation Easement. Without limiting the liability of Grantor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate injury to the Conservation Values of the Property, Grantee may pursue its remedies under this Conservation Easement without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights under this Section apply equally to actual or threatened violations of this Conservation Easement. Grantor agrees that Grantee's remedies at law for any violation of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance 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 California Civil Code Section 815, et seq. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time. (a) Costs of Enforcement. All costs incurred by Grantee, where Grantee is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including, but not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by negligence or breach of this Conservation Easement, shall be borne by Grantor. W02-WEST:3DMR1U0273I349.2 (b) Grantee's Discretion. Enforcement of the terms of this Conservation Easement by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement shall not be deemed or construed to be a waiver of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any rights of Grantee under this Conservation Easement. No delay or omission by Grantee in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. (c) Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee 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, 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. (d) Enforcement; Standing. To the extent specified in Section 20(m). all rights and remedies conveyed to Grantee under this Conservation Easement shall extend to and are enforceable by CDFG and the Third-Party Beneficiaries (as defined in Section 20(m)). These enforcement rights are in addition to, and do not limit, the rights of enforcement under the HCP/HMP. If at any time in the future Grantor uses, allows the use, or threatens to use or allow use of, the Property for any purpose that is inconsistent with or in violation of this Conservation Easement then, despite the provisions of California Civil Code Section 815.7, the California Attorney General and the Third-Party Beneficiaries each has standing as an interested party in any proceeding affecting this Conservation Easement. (e) Notice of Conflict. If Grantor receives a Notice of Violation from Grantee or a Third-Party Beneficiary with which it is impossible for Grantor to comply consistent with any prior uncured Notice(s) of Violation, Grantor shall give written notice of the conflict (hereinafter "Notice of Conflict") to the Grantee and Third-Party Beneficiaries. A valid Notice of Conflict shall be given within fifteen (15) days of the date Grantor receives a conflicting Notice of Violation, shall include copies of the conflicting Notices of Violation, and shall describe the conflict with specificity, including how the conflict makes compliance with the uncured Notice(s) of Violation impossible. Upon issuing a valid Notice of Conflict, Grantor shall not be required to comply with the conflicting Notices of Violation until such time as the entity or entities issuing said conflicting Notices of Violation issue(s) revised Notice(s) of Violation that resolve the conflict. Upon receipt of a revised Notice of Violation, Grantor shall comply with such notice within the time period(s) described above. The failure of Grantor to issue a valid Notice of Conflict within fifteen (15) days of receipt of a conflicting Notice of Violation shall constitute a waiver of Grantor's ability to claim a conflict. 7. Access. This Conservation Easement does not convey a general right of access to the public. 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 Third-Party Beneficiaries shall have any duty or responsibility for the operation, upkeep, or maintenance of the Property, the monitoring of W02-WEST:3DMR1\402731349.2 -8- 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, including permits and approvals required by Grantee acting in its regulatory capacity, 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. 9. 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 with satisfactory evidence of payment upon request. Grantor shall keep the Property free from any liens, including those arising out of any obligations incurred by Grantor for any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Property. 10. Hold Harmless. (a) 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: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except that this indemnification shall be inapplicable to any Claim due solely to the negligence of Grantee or any of its employees; (ii) the obligations specified in Sections 4. 5. 9.10. and 18: and (iii) the existence or administration of this Conservation Easement. If any action or proceeding is brought against any of the Grantee's Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the Grantee's Indemnified Party or reimburse Grantee for all charges incurred for services of the California Attorney General in defending the action or proceeding. (b) Grantor shall hold harmless, protect and indemnify Third-Party Beneficiaries and their respective directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "Third-Party Beneficiary Indemnified Party" and collectively, "Third-Party Beneficiary Indemnified Parties") from and against any and all Claims arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause and (ii) the existence or administration of this Conservation Easement. Provided, however, that the indemnification in this Section 10(b) shall be inapplicable to a Third-Party Beneficiary Indemnified Party with respect to any Claim due solely to the negligence of that Third-Party Beneficiary Indemnified Party or any of its employees. If W02-WEST:3DMRI\40273I349.2 -9- any action or proceeding is brought against any of the Third-Party Beneficiary Indemnified Parties by reason of any Claim to which the indemnification in this Section 10(b) applies, then at the election of and upon written notice from the Third-Party Beneficiary Indemnified Party, Grantor shall defend such action or proceeding by counsel reasonably acceptable to the applicable Third-Party Beneficiary Indemnified Party or reimburse the Third-Party Beneficiary Indemnified Party for all charges incurred for services of the U.S. Department of Justice in defending the action or proceeding. 11. Extinguishment. If circumstances arise in the future that render the Purpose of this Conservation Easement impossible to accomplish, this Conservation Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction. 12. Condemnation. This Conservation Easement is a "wildlife conservation easement" acquired by a State agency, the condemnation of which is prohibited except as provided in California Fish and Game Code Section 1348.3. 13. Transfer of Easement by Grantee. This Conservation Easement is assignable or transferable by Grantee upon written approval of the Signatory Agencies, which approval shall not be unreasonably withheld or delayed, but Grantee shall give Grantor and the Signatory Agencies at least sixty (60) days prior written notice of the proposed assignment or transfer. Grantee may assign or transfer its rights and delegate its 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 (or any successor provision then applicable) or the laws of the United States, and reasonably acceptable to the Signatory Agencies. Grantee shall require the assignee to record the assignment in the county where the Property is located. The failure of Grantee to perform any act provided in this Section 13 shall not impair the validity of this Conservation Easement or limit its enforcement in any way. Any transfer under this Section is subject to the requirements of Section 15. 14. Subsequent Transfers by Grantor. (a) The covenants, conditions, and restrictions contained in this Conservation Easement are intended to and shall run with the land and bind all future owners of any interest in the Property. Grantor, its successor, or assign agrees to (i) incorporate the terms of this Conservation Easement by reference to the title of and the recording information for this Conservation Easement in any deed or other legal instrument by which each divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest and (ii) ensure that the deed or other legal instrument also incorporates by reference the HCP/HMP, and any amendments to those documents. Grantor further agrees to give written notice to Grantee and the Signatory Agencies of the intent to transfer any interest at least forty-five (45) days prior to the date of such transfer. The interest is transferable by Grantor upon written concurrence by the Grantee and the Signatory Agencies, which concurrence shall be subject to the determination that the successor or assign has been given notice of the covenants, terms, conditions, and restrictions of this Conservation Easement (including the exhibits and documents incorporated by reference in it), and has the ability to, and agrees to, assume, Grantor's obligations pursuant to this Conservation Easement (including the exhibits and documents W02-WEST:3DMRi\402731349.2 -10- incorporated by reference in it). If transfer is made without the prior written concurrence of the Signatory Agencies, Grantee and the Signatory Agencies may hold Grantor (transferor) liable for any costs incurred by the Signatory Agencies in enforcing the terms of the Conservation Easement against the replacement Grantor (transferee). The failure of Grantor to perform any act provided in this Section 14 shall not impair the validity of this Conservation Easement or limit its enforceability in any way. (b) From and after the date of any transfer of the Property by Grantor and each transfer thereafter, (i) the transferee shall assume all of the obligations of Grantor as set forth in this Conservation Easement, (ii) the transferee shall accept the Property subject to the restrictions contained herein, (iii) the transferor, as applicable, shall have no further obligations hereunder except pursuant to Section 20(g). and (iv) all references to Grantor in this Conservation Easement shall thereafter be deemed to refer to such transferee. (c) Any transfer under this Section 14 is subject to the requirements of Section 15. 15. Merger. The doctrine of merger shall not operate to extinguish this Conservation Easement if the Conservation Easement and the Property become vested in the same party. If despite this intent, the doctrine of merger applies to extinguish the Conservation Easement, then, unless Grantor, Grantee, and the Signatory Agencies otherwise agree in writing, a replacement conservation easement or restrictive covenant containing the same protections embodied in this Conservation Easement shall be recorded against the property. 16. Notices. All notices, demands, requests, consents, approvals, or communications that Grantor or Grantee is required or desires to give to the other shall be in writing, with a copy to each of the Signatory Agencies and shall be personally delivered or sent by facsimile to the persons set forth below or shall be deemed delivered five (5) days after deposit in the United States mail, certified and postage prepaid, return receipt requested, and addressed as follows. To Grantor: Center for Natural Lands Management Attn: FAX: To Grantee: Regional Manager Department of Fish and Game Region 5 4949 Viewridge Avenue San Diego, California 92123 FAX: 858-467-4299 W02-WEST:3DMR1\402731.549.2 -11- With a copy to: Department of Fish and Game Office of the General Counsel 1416 Ninth Street, 12th Floor Sacramento, California 95814-2090 Attn: General Counsel FAX: 916-654-3805 To USFWS: Attn: FAX: To City: City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: City Attorney FAX: 760-434-8367 The parties agree to accept facsimile signed documents and agree to rely upon such documents as if they bore original signatures. Each party agrees to provide to the other parties, within seventy-two (72) hours after transmission of such a facsimile, the original documents that bear the original signatures. 17. Amendment. Grantor and Grantee may amend this Conservation Easement only by mutual written agreement and subject to the written approval of the Signatory Agencies, which approval shall not be unreasonably withheld or delayed. Any such amendment shall be consistent with the Purpose of this Conservation Easement and shall not affect its perpetual duration. Any such amendments to this Conservation Easement shall be recorded in the official records of San Diego County, California and Grantee shall provide a copy of the recorded document to the Grantor and the Signatory Agencies. 18. Long-Term Maintenance and Management. Grantor, its successors and assigns shall be responsible for in-perpetuity, ongoing, long-term maintenance and management of the Property in accordance with the Management Plan. Such long-term maintenance and management shall consist of the following activities: (a) removal of trash or man-made debris; (b) control and/or removal of non-native or exotic plant or animal species; (c) maintenance of the gate and signage and other notification features pursuant to Section 5(d); (d) management of the Property consistent with the HCP/HMP and any amendments thereto; and (e) reparation and remediation of damage to the Property from any activities prohibited by Section 3 herein. Grantor or its successors and assigns shall prepare an annual monitoring and maintenance report W02-WEST:3DMR1\402731349.2 -12- documenting the previous year's activities performed under subsection (a) through (d) above and shall make the annual reports available to the Signatory Agencies as required. When activities are performed pursuant to item (e) above, Grantor or its successors and assigns shall retain a qualified Biological Monitor to prepare a Remediation Plan and to oversee/monitor such remediation activities. Grantor shall have its Biological Monitor submit a draft Remediation Plan to Grantee and the Third Party Beneficiaries for review and written approval prior to its implementation. Upon completion of the remediation as specified in the approved Remediation Plan, Grantor shall have its Biological Monitor prepare a detailed remediation report, and Grantor shall make the report available to the Grantee and the Third Party Beneficiaries within thirty (30) days of completion of remediation activities. Grantor or its successors or assigns and the Biological Monitor shall sign the remediation report, which shall document: the Biological Monitor's name and affiliation; dates the Biological Monitor was on site; activities the Biological Monitor observed and their location; the Biological Monitor's observations regarding the adequacy of remediation by the Grantor, its successors or assigns, or its contractor in accordance with the approved Remediation Plan; and recommendations for corrective actions to be implemented. Where there are conflicts, if any, between the requirements in this Section and the Management Plan, the requirements in the latter shall prevail. 19. Recordation. Grantee shall record this Conservation Easement in the Official Records of the County in which the Property is located, and may re-record it at any time as Grantee deems necessary to preserve its rights in this Conservation Easement. 20. General Provisions. (a) Controlling Law. The laws of the United States and the State of California shall govern the interpretation and performance of this Conservation Easement. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed in favor of and to effect the Purpose of this Conservation Easement and the policy and purpose set forth in California Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. (c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement, such action shall not affect the remainder of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. (d) Entire Agreement. This instrument, including its exhibits and the HMP and HCP, including addenda and implementing agreement, incorporated by reference, set 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 17. W02-WEST:3DMRI\40273I349.2 -13- (e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. (f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Property. (g) Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement shall terminate upon transfer of the party's interest in the Conservation Easement or Property (respectively), except that liability for acts or omissions occurring prior to transfer shall survive transfer and except as otherwise provided in Section 14(b)-(c) of this Conservation Easement for transfer of the Property by Grantor. (h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation. (i) Exhibits. All Exhibits referred to in this Easement are attached and incorporated herein by reference. (j) No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) or underground storage tanks existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or from the Property, or transported to or from or affecting the Property. Without limiting the obligations of Grantor under Section 10. Grantor hereby releases and agrees to indemnify, protect and hold harmless the Grantee's Indemnified Parties and the Third Party Beneficiary Indemnified Parties (defined in Section 10) against any and all Claims (defined in Section 10) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time, except that (i) this release and indemnification shall be inapplicable to the Grantee's Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents and (ii) this release and indemnification shall be inapplicable to the Third Party Beneficiary Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by third party beneficiaries, their employees or agents. This release and indemnification includes, without limitation, Claims for (i) injury to or death of any person or physical damage to any property; and (ii) the violation or alleged violation of or other failure to comply with, any Environmental Laws (defined below). If any action or proceeding is brought against any Grantee's Indemnified Parties and/or any of the Third Party Beneficiary Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee and/or the applicable third party beneficiary or beneficiaries, defend such action or proceeding by counsel reasonably acceptable to the Grantee and/or applicable Third Party Beneficiary Indemnified Party or Parties or reimburse the Grantee for attorneys fees and/or applicable third party beneficiary or beneficiaries for all charges incurred for the services of the United States or California Attorneys General in defending the action or proceeding. W02-WEST.-3DMR I \402731349.2 -14- Despite any contrary provision of this Conservation Easement, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee or the Third Party Beneficiaries any of the following: (1) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 etseq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. The term "Hazardous Materials" includes without limitation (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.; hereinafter "RCRA"); the Hazardous Materials Transportation Act (49 U.S.C. Section 6901 et seq.; hereinafter "HTA"); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.; hereinafter "HCL"); the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.; hereinafter "HSA"), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable Environmental Laws now in effect or enacted after the date of this Conservation Easement. The term "Environmental Laws" includes without limitation CERCLA, RCRA, HTA, HCL, HSA, and any other federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Grantor represents, warrants and covenants to Grantee and Third Party Beneficiaries that activities upon and use of the Property by Grantor, its agents, employees, invitees and contractors will comply with all Environmental Laws. (k) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, encumbrances or other interests in the Property (including, without limitation, mineral interests) that have not been expressly subordinated to this Conservation Easement, and that the Property is not subject to any other conservation easement. (1) Additional Interests. Other than the existing recorded instruments and easements on the Property and the supplemental declarations, tract declarations and other instruments permitted thereunder, Grantor shall not grant additional easements, rights of way, or W02-WEST:3DMR1 \402731349.2 -15- other interests in the surface or subsurface of the Property (other than a security interest that is expressly subordinate to this Conservation Easement) without the prior written authorization of Grantee and the Signatory Agencies. Such consent may be withheld if Grantee or the Signatory Agencies determines that the proposed grant of additional easements or other interests in the Property will directly or potentially conflict with the Purpose of this Conservation Easement. Grantor or its successors and assigns shall record any additional easements or other interests in the Property approved by the Grantee and Signatory Agencies in the official records of San Diego County, California and shall provide a copy of the recorded document to the Grantee and Signatory Agencies. (m) Third-Party Beneficiary. Grantor and Grantee acknowledge that USFWS and the City of Carlsbad (the "Third-Party Beneficiaries") are third-party beneficiaries of this Conservation Easement with (i) the right of access to the Property, (ii) the right to enforce all of the obligations of Grantor including, but not limited to, Grantor's obligations under Section 4, Section 13 and Section 18. and (iii) all other rights and remedies of the Grantee under this Conservation Easement. (n) Funding. Endowment funding for the monitoring of the Conservation Easement and for perpetual management, maintenance, and monitoring of the Property is specified in and governed by the HCP/HMP. [Signatures Appear on Next Page] \V02-\VTST:.1DMRr.<10273 13-49.2 -16- IN WITNESS WHEREOF Grantor has executed this Conservation Easement and has agreed to be bound by the terms and provisions hereof as of the date set forth above. GRANTOR: CENTER FOR NATURAL LANDS MANAGEMENT BY: Name, Title DATE: APPROVED AS TO FORM: General Counsel State of California Department of Fish and Game BY: Stephen Adams Deputy General Counsel W02-WEST:3DMRIW02731349.2 CERTIFICATE OF ACCEFFANCE This is to certify that the interest in real property conveyed by the Conservation Easement Deed by Center For Natural Lands Management, dated 20 , to the State of California, grantee, acting by and through its Department of Fish and Game ("CDFG"), a governmental agency (under Government Code Section 27281), is hereby accepted by the undersigned officer on behalf of CDFG. GRANTEE: STATE OF CALIFORNIA, by and through its DEPARTMENT OF FISH AND GAME By: Title: Authorized Representative Date: W02-WEST:3DMRI\402731349.2 STATE OF CALIFORNIA COUNTY OF } SS. On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. S ignature STATE OF CALIFORNIA COUNTY OF } SS. On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. S ignature W02-WEST:3DMR1\402731349.2 STATE OF CALIFORNIA COUNTY OF } SS. On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. S ignature VV02-WEST.-3DMR I \402731349.2 Exhibit A Legal Description of Property of 50.13 acres of Alemir Property Conserved Habitat Lands W02-WEST:3DMR1 \402731349.2 A-l EXHIBIT "A" LEGAL DESCRIPTION ALEMIR "C" A PORTION OF PARCEL B-1 AS DESCRIBED IN GRANT DEED TO REAL ESTATE COLLATERAL MANAGEMENT COMPANY FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MARCH 30, 1999 AS DOCUMENT NUMBER 1999-0208165 OF OFFICIAL RECORDS OF SAID COUNTY, SAID PARCEL B-1 BEING A PORTION OF SECTION 32, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, SAID PORTION OF PARCEL B-1 BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CORNER OF THE RANCHO LAS ENCINITAS, ACCORDING TO MAP THEREOF NO. 848, FILED IN SAID OFFICE OF THE COUNTY RECORDER, SAID CORNER BEING AN ANGLE POINT IN THE BOUNDARY OF SAID PARCEL B-1, THENCE ALONG SAID BOUNDARY NORTH 29°20>24" EAST {RECORD NORTH 28°46'50" EAST PER SAID DEED). 386.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID BOUNDARY SOUTH 89°25'05" EAST. 649.52 FEET TO A POINT ON THE BOUNDARY OF SAID PARCEL B-1; THENCE ALONG SAID BOUNDARY THE FOLLOWING 17 COURSES: 1. NORTH 32°54'39" EAST (RECORD NORTH 32'24'14" EAST PER SAID DEED), 902.31 FEET; 2. THENCE SOUTH 73°08'24" EAST (RECORD SOUTH 73°42'30" EAST PER SAID DEED). 230.00 FEET TO THE BEGINNING OF A 300.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; 3. THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19°40'30-, 103.02 FEET; 4. THENCE SOUTH 02°48'54" EAST (RECORD SOUTH 03"23'00" EAST PER SAID DEED), 174.33 FEET TO THE BEGINNING OF A 300.00 FOOT RADIUS CURVE CONCAVE WESTERLY; PAGE 1 OF 3 a M:\2352\62X\l_egal Descriplioos\A03 ALEMIR PARCEL A3 doc WO2352-62X 1/1V05 5. THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26°17'40", 137.68 FEET; 6. THENCE SOUTH 66°31 '14" EAST (RECORD SOUTH 67°05'20" EAST PER SAID DEED), 30.00 FEET; 7. THENCE SOUTH 66°29'15" EAST, 277 98 FEET (RECORD SOUTH 67°20'00" EAST 276.55 FEET PER SAID DEED) TO THE MOST NORTHERLY CORNER OF ENCINITAS COPPER MINE NO. 3; 8. THENCE ALONG THE NORTHEASTERLY LINE OF SAID MINE SOUTH 52°25'13" EAST, 692.26 FEET (RECORD SOUTH 52°59105" EAST 613.52 FEET PER SAID DEED) TO THE EAST LINE OF SAID SECTION 32; 9. THENCE ALONG SAID EAST LINE NORTH OO'37'OO" EAST, 1150.69 FEET (RECORD NORTH 00"03'38" EAST, 1149.60 FEET PER SAID DEED) TO THE EAST QUARTER CORNER OF SAID SECTION; 10. THENCE CONTINUING ALONG SAID EAST LINE NORTH 00"35'26" EAST (RECORD NORTH 00°OrOO" EAST PER SAID DEED), 760.00 FEET; 11. THENCE LEAVING SAID EAST LINE SOUTH 59°55'36" WEST, 550.01 FEET (RECORD SOUTH 59021'30' WEST, 550.26 FEET PER SAID DEED) TO THE BEGINNING OF A NON-TANGENT 1000.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL LINE OF SAID CURVE BEARS NORTH 59°54'38" EAST (RECORD NORTH 59°21 '30" EAST PER SAID DEED) TO SAID POINT; 12. THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22"08'32", 386.45 FEET (RECORD 22°09'30*, 386.74 FEET PER SAID DEED); 13. THENCE NORTH 52°13'54" WEST, 425.83 FEET (RECORD NORTH 52"48'00" WEST, 425.53 FEET PER SAID DEED); 14. THENCE SOUTH 37°46'06" WEST (RECORD SOUTH 37"12'00' WEST PER SAID DEED), 30.00 FEET; 15. THENCE SOUTH 06"28'46" WEST (RECORD SOUTH 05"54140" WEST PER SAID DEED), 1216.96 FEET; 16. THENCE NORTH 73°08'24" WEST (RECORD NORTH 73"42'30" WEST PER SAID DEED), 574.00 FEET; 17. THENCE SOUTH 29°20'24" WEST (RECORD SOUTH 28°46'50" WEST PER SAID DEED), 1074.59 FEET TO THE TRUE POINT OF BEGINNING. PAGE 2 OF 3 :d MA2352\62XM_egal Descriplions\A03 ALEMlR PARCEL A3.doc W02352-62X IM1/05 CONTAINS 50.13 ACRES, MORE OR LESS. THIS DESCRIPTION WAS PREPARED FROM RECORD DATA. DAVID P. VIERA L.S. 6708 EXP. 6/30/06 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 3 OF 3 d M:\2352\S2XMegal Oeschplions\A03 ALEMIR PARCEL A3.doc WO2352-62X 1/11/05 Exhibit B Drawing of Conserved Habitat Lands W02-WEST:3DMRI\40273I349.2 B-1 EXHIBIT "B1 600 1200 18OO SCALE r-600* 5} I J-1 ALEMIR "C 50.13 AC. NOTES: PARCELS SHOWN ARE PER GRANT DEED RECORDED 3-30-1999 AS DOC # 1999-0208165 AND ARE BASED ON RECORD DATA FROM L.S. WAP 433, ROS 4874, ROS 9517 AND PM 11725. ALEMIR "C1 DtHl&I - W.O. 21S1-60T Exhibit C Title Report W02-WEST:3DMR1\402731.149.2 C-l Exhibit D Map of the major, distinct natural features on the Property W02-WEST:3DMRI\40273I349.2 D-l EXHIBIT D EXHIBIT "D" U.S. Fish & Wildlife Letter dated 2-28-2007 W02-WEST:3DMR1V403135388.1 - HAR-OF--20Q7 };!5 AH,0{l .f Carlsbad A, P.FAX 02 8560 P. 02/02 United States Department of the Interior FISH AND WILDLIFE SERVICE Ecological Services Carlsbad Fish and Wildlife Office 6010 Hidden Valley Road Carlsbad, California 920 In Reply Refer To: CFWO-SDG 8 2007Sandra Holder City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, California 92008-7314 Dear Sandra: The Fieldstone-La Costa Habitat Conservation Plan required the City of Carlsbad to acquire certain mitigation lands. As approved by the Service, the Carlsbad Habitat Management Plan contemplated the City's acquisition of 50.13 acres of mitigation land at the Alerair property to complete its obligations under the HCP. Meanwhile, pursuant to a Biological Opinion issued by the Service, Estates Seven LLC acquired land at AJemir to mitigate impacts from the proposed development of Bridges Units 6 & 7. The City objected in writing to use of any land at Alemir to mitigate for development of Bridges Units 6 & 7, because of the obligation to purchase it under the HMP. Lennar has found alternative mitigation that will be substituted in their biological opinion making the Alemir parcel available for the City of Carlsbad. The Fish and Wildlife Service will consider the issue with the City of Carlsbad to be closed regarding the mitigation requirements as soon we receive written verification from both the City and Lennar that the City has control of Alemir. Sincerely, Therese O'Rourke Assistant Field Supervisor TAKE EXHIBIT E EXHIBIT "E" CA Department of Fish and Game Letter dated 4-29-2010 W02- WEST:3DMR 1 \403135388.1 State of California - The Resou • *'S Agency ARNOLP "CHWARZENECCER. Governor DEPARTMENT OF FISH M^D GAME http://www.dfo.ca.ooy South Coast Region 4949 Viewridge Avenue San Diego, CA 92123 (858) 467-4201 CFTY OF CARLSBAD MAY 0 3 Zfllfl April 29, 2010 Community & Economic Development Department Ms. Sandra Holder Community Development Director City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, California 92008-7314 Re: Acknowledgment of Credit for 50.13 Acres of Mitigation Land at Alemir Dear Ms. Holder: The City of Carlsbad (City) is obligated to conserve 307.6 acres of high quality coastal sage scrub in an area designated the 'Gnatcatcher Core Area' as a mitigation requirement pursuant to the City's approved Habitat Management Plan (HMP). The City negotiated with Morrow Development, succeeded by Real Estate Collateral Management (RECM), to purchase a conservation easement over 50.13 acres of excess mitigation land, known as the Alemir parcei' which was not needed for the La Costa Villages project. The City had agreed to purchase this easement using in-lieu mitigation funds it has collected through implementation of their HMP. Meanwhile, pursuant to a Biological Opinion issued by the U.S. Fish and Wildlife Service (Service), Estates Seven LLC acquired land at Alemir to mitigate impacts associated with the Bridges Units 6 & 7 Project. Because of its prior negotiations with Morrow Development, the City has objected in writing to the use of Alemir credits by Estates Seven LLC. According to a letter issued by the Service on February 28, 2008, Estates Seven LLC has found alternative mitigation that will satisfy the requirements of their Biological Opinion, making the Alemir parcel available to the City. The Department has also received written verification, dated June 17, 2008 that the City intends to make a lump sum payment to Estates Seven LLC to purchase an Irrevocable Offer to Grant Conservation Easement, Conservation Easement Deed and the right to use the credits for the 50.13 acres of Alemir Property. The Department will consider the issue with the City closed regarding the Alemir mitigation requirement once we have received proof of the lump sum payment mentioned above. Sincerely, Stephen M. Juarez Environmental Program Manager California Department of Fish and Game Conserving California's VJitdlife Since 1870