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HomeMy WebLinkAboutCT 02-14; Bressi Ranch Residential; Tentative Map (CT) (20)HECHT SOLBERG ROBINSON GOLDBERG ; . "LIP : ,' City Of February 5,2002 , Chuck Raysbrook Terry Dean California Department of Fish & Game U.S. Army Corps of Engineers ^ 4949 Viewridge Avenue 16885 W. Bernardo Drive, Suite 300A San Diego, California 92123 San Diego, California 92127 Re: Bressi Ranch Conservation Easement Department of Fish & Game Notification No. 5-145-96 Army Corps Permit 94-20853-EW Dear Mr. Raysbrook and Mr. Dean: This firm represents Continental Residential, Inc. ("Continental"), which has been developing a residential project known as "Rancho Carrillo" in the City of Carlsbad, California. One condition of the development project was that Continental enter into a streambed alteration agreement with the Department of Fish & Game ("DFG"); Section 22 of that agreement, in turn, requires Continental to grant DFG a conservation easement. Continental was informed some time ago that the easement should grant the Corps enforcement rights. The land in question is actually owned by an adjoining developer, Bressi Ranch. Accordingly, enclosed for your review is a proposed form of the conservation easement. For your reference, I have also enclosed a copy of a Memorandum of Agreement, an exhibit to which depicts the location of the easement, and a preliminary title report for the property. Please give me a call with your comments on the easement. Once all involved parties have approved its form, I will prepare a clean original for signature. Very truly yours, Richard A. Schulman HECHT, SOLBERG, ROBINSON & GOLDBERG LLP RAS:cas Enclosures cc (w/encls.): California Department of Fish & Game; Office of General Counsel; 1416 Ninth Street, 12th Floor; Sacramento, CA 95814 Tiffany Welch, Esq.; U.S. Army Corps of Engineers; 2151 Alessandro Drive, Suite 255; Ventura, CA 93001 U.S. Fish & Wildlife Service; 2730 Loker Avenue; Carlsbad, California 92008 Holly Cordova, Esq. (attorney for Bressi Ranch) City of Carlsbad Planning Department Nancy Nemec, Continental Homes ATTORNEYS AT LAW 600 WEST BROADWAY, EIGHTH FLOOR SAN DIEGO, CALIFORNIA 92101 TELEPHONE 619.239.3444 FACSIMILE 619.232.6828 RECORDING REQUESTED BY CALIFORNIA DEPARTMENT OF FISH AND GAME PURPOSES ONLYWHEN RECORDED, PLEASE RETURN TO: * DRAFT FOR DISCUSSION (ABOVE SPACE FOR RECORDER'S USE) DEED OF CONSERVATION EASEMENT This DEED OF CONSERVATION EASEMENT (this "Deed" or "Conservation Easement") is granted by LENNAR BRESSI RANCH VENTURE, LLC, a California limited liability company ("Grantor") to the STATE OF CALIFORNIA ("Grantee"), acting by and through its Department of Fish and Game, a subdivision of the California Resources Agency, with rights of enforcement also granted to the United States of America, acting by and through the U.S. Army Corps of Engineers ("ACOE"), with reference to the following facts: RECITALS A. Grantor is the owner of 16.95 acres of real property ("Easement Area") in the City of Carlsbad ("City"), San Diego County, California, which property is legally described in Exhibit A attached hereto and incorporated herein by reference. The Easement Area is depicted on Exhibit B attached hereto and incorporated herein by this reference (the "Property"). B. The Easement Area is adjacent to a master-planned residential development project known as the "Rancho Carrillo Project," which is being developed by Continental Residential, Inc. ("Continental"). Continental entered into an Easement Agreement with Grantor's predecessor which allows Continental to implement a riparian habitat enhancement plan ("Mitigation Plan") within the Easement Area. Approximately 6.4 acres of the Easement Area ("Revegetation Area") is currently being enhanced to create wetland habitat. The Revegetation Area is depicted on Exhibit C attached hereto and incorporated herein by this reference. C. The Easement Area, particularly upon enhancement of the Revegetation Area pursuant to the Mitigation Plan, will possess wildlife and native habitat values (collectively, "conservation values") of great importance to Grantee, the people of San Diego County and the people of the State of California. L:\CONTHOME\CARRILLO\DFG.e _ . , . _.02/05/02 Page 1 of 10 DRAFT FOR DISCUSSION D. The Department of Fish and Game has jurisdiction, pursuant to § 1802, over the conservation, protection and management of fish, wildlife, native plants and habitat, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to CIVIL CODE §815.3 and FISH AND GAME CODE §1348. E. Grantor intends to convey to Grantee the right to preserve and protect the conservation values of the Easement Area in perpetuity. F. Grantee agrees by accepting this Conservation Easement to honor the intentions of Grantor stated herein, and to preserve and protect in perpetuity the conservation values of the Easement Area in accordance with the terms of this Conservation Easement for the benefit of this generation and the generations to come. G. The granting of this Conservation Easement is mitigation for certain impacts of Continental's construction activities for the Rancho Carrillo Project, and is executed pursuant to the Agreement Regarding Proposed Stream or Lake Alternation by Grantor and Grantee dated November 5,1996 (Notification No. 5-145-96). H. This Conservation Easement also provides compensatory mitigation for impacts resulting from Continental's discharges of dredged or fill material into headwaters and isolated waters of the United States, including wetlands, and is granted to satisfy a special condition of Section 404 Permit No. 94-20853-EW issued by the ACOE pursuant to its authority under the Federal Clean Water Act (33 U.S.C. §1344) (the "Permit"). NOW, THEREFORE, in consideration of the above recitals and the mutual covenants contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, and pursuant to the laws of the State of California and, in particular, §815 etseq. of the CIVIL CODE, Grantor hereby grants and conveys to Grantee a perpetual, irrevocable conservation easement in gross ("Easement") consisting of the rights hereinafter enumerated over, across and within the Easement Area. 1. Purpose. It is the purpose of this Conservation Easement to protect in perpetuity the conservation values of the Easement Area. Grantor intends that the Conservation Easement will confine the use of the Easement Area to such activities as are consistent with that purpose. 2. Rights of Grantee. The following rights are conveyed to Grantee by the Conservation Easement: (a) The right to enter upon the Easement Area for the following purposes, subject to the requirements of Section 2(b): (i) To enforce the rights herein granted; (ii) To observe, study and make scientific evaluations of all parts of the Easement Area ecosystem; L:\CONTHOME\CARRILLO\DFG.e ,-, -, , . _.02/05/02 Page 2 of 10 DRAFT FOR DISCUSSION (iii) To conduct habitat enhancement and species prot$U$BQ &O&S (iv) To ensure that Grantor's use of the Easement Area is in compliance with the terms of this Deed and to otherwise preserve and protect the conservation values of the Easement Area. (b) Grantee's right of access described in Section 2(a) shall be exercised only after providing Grantor advance notice via telephone whenever feasible (contact number ( _ ) _ - _ ), except in the case of enforcement activities carried out by enforcement officers. Grantee's rights described in Section 2(a) shall not be exercised in a manner that could impair or impose additional restrictions on Grantor's development of Grantor's property adjacent to the Easement Area or Continental's development of the Rancho Carrillo Project. (c) To preserve and protect the conservation values of the Easement Area. (d) To prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement that may be damaged by any act or negligent omission that is inconsistent with the purposes of this Conservation Easement. 3 . Reserved Rights. Subject to Section 2(a), the following uses and practices are reserved by Grantor from the grant of the Conservation Easement: (a) Continued use of the Easement Area for purposes described in any easements shown on the preliminary title report attached hereto as Exhibit D, access to and maintenance of existing utilities, storm drains and flood control facilities, and completion of any required repairs or improvements to intake structures within the Easement Area. (b) Any such other uses and practices within the Easement Area that are consistent with the conservation purposes and provisions of this Deed and the Easement Agreement between Grantor and Continental Ranch dated October 2, 1996 and recorded on March 5, 1997. 4 . Prohibited Uses. Any activity or use of the Easement Area inconsistent with the purposes of this Deed is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's agents and third parties are expressly prohibited: (a) Development within the Easement Area for residential, commercial retail or industrial purposes. (b) Use of motor vehicles. (c) Depositing of ashes, trash, agricultural waste, garbage or other unsightly, offensive or toxic material. L:\CONTHOME\CARRILLO\DFG.e ... o , ^ .-.02/05/02 Page 3 of 10 DRAFT FOR DISCUSSION PURPOSES ONLY (d) Within the Revegetation Area in particular, removal of siltation or vegetation for flood control purposes. (e) Within the Revegetation Area in particular, establishment of any other easements. 5. Amending Easement. The Easement and the permitted and proscribed uses thereunder shall not be changed or amended except by an instrument executed by Grantor and Grantee and recorded in the Official Records of San Diego County, California. 6. Grantee's Remedies. In addition to any and all other remedies available: (a) If Grantee determines that Grantor is in violation of this Deed or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and request corrective action sufficient to cure the violation and, where the violation involves injury to the area resulting from any use or activity inconsistent with the provisions of this Deed, to restore the portion of the area so injured. If Grantor fails to cure the violation within thirty (30) days after receipt of notice thereof from Grantee, or fails to begin curing the violation within the thirty (30) day period under circumstances where the violation cannot reasonably be cured within said period, or fails to continue diligently to cure such violation until finally cured, Grantee may bring an action in law as described below. (b) If Grantor undertakes any activity that is inconsistent with the provisions of this Deed, Grantee shall have the right to require Grantor to restore that portion of the Easement Area affected by such activity to the condition that existed prior to the undertaking of such unauthorized activity. In such case, the costs of such restoration, together with all reasonable costs of enforcement incurred by Grantee, including reasonable attorneys' fees, shall be borne by Grantor. (c) Grantee, after providing not less than one hundred twenty (120) days prior written notice to Grantor, and provided Grantor has failed to restore all damage to the Easement Area within such cure period, shall have the unilateral right to enter the Easement Area and restore that portion of the Easement Area affected by such activity and bring it to the condition that existed prior to the undertaking of such activity. Such unilateral action by Grantee shall not prejudice any subsequent judicial proceeding nor shall such improvement preclude Grantee from obtaining reimbursement from Grantor for all restoration costs and any costs of enforcement, including reasonable attorneys' fees. (d) Notwithstanding anything to the contrary set forth herein, if Grantee in its good faith and reasonable discretion determines that emergency circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the Easement Area, Grantee may pursue its remedies under this section without prior notice to Grantor, and without waiting for the period provided for the cure to expire. (e) If at any time in the future Grantor or any subsequent transferee of Grantor uses or threatens to use the Easement Area for purposes not in conformance with the purposes of this Conservation Easement, notwithstanding CIVIL CODE §815 er seq., the California Attorney General shall have standing in any proceeding affecting this Deed. L:\CONTHOME\CARRILLO\DFG.e _ . , 4 _.02/05/02 Page 4 of 10 DRAFT FOR DISCUSSION PURPOSES ONLY (f) Grantee acknowledges that Grantor has no affirmative obligations with respect to implementing the Mitigation Plan or to otherwise ensure that the Easement Area be of any certain habitat quality. Rather, Grantor's obligations are limited to refraining from actions inconsistent with the Conservation Easement, and Grantee's remedies herein are to be applied only if Grantor engages in or allows acts inconsistent with the Easement. 7. 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 by Grantor shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Grantee's rights under this Conservation Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. 8. Adjacent Property Not Affected. This Deed shall not prevent Grantor from pursuing development of adjacent property not subject to this Deed in accordance with any approvals obtained by the City and/or other agencies having jurisdiction over such development. Grantor shall cooperate with Grantee to minimize, where feasible, any indirect impacts to the Easement Area that would result from the development of adjacent properties. 9. Distribution of Notices. Any notice called for in this Deed (except that required in Section 2(b)) shall be sent by hand delivery, overnight courier service or by registered or certified mail as follows: To Grantor at:Lennar Bressi Ranch Venture, LLC With a copy to: With copies to: Attention: _ Telephone:. Telecopier: Holly Traube Cordova, Esq. Craig K. Beam, Esq. Luce, Forward, Hamilton & Scripps 600 West Broadway, 26th Floor San Diego, California 92101 Continental Residential, Inc. 2237 Faraday Avenue, Suite 100 Carlsbad, CA 92008 Attention: David Lother Telephone: (619) 298-8070 Telecopier: (619) 298-3514 L:\CONTHOME\CARRII_LO\DFG.e 02/05/02 Page 5 of 10 DRAFT FOR DISCUSSION IMPOSES ONLY To Grantee at: With copies to: Hecht, Solberg, Robinson & Goldberg 600 West Broadway, 8th Floor San Diego, CA 92101 Attention: Richard A. Schulman, Esq. Telephone: (619) 239-3444 Telecopier: (619) 232-6828 California Department of Fish and Game 4949 Viewridge Avenue San Diego, CA 92123 Attention: Chuck Raysbrook Telephone: (858) 467-4210 Telecopier: (858) 467-4239/467-4235 California Department of Fish and Game Office of General Counsel 1416 Ninth Street, 12th Floor Sacramento, CA 95814 Attention: Juliet Virtue Telephone: (916) 654-3821 Telecopier: (916) 445-9675 U.S. Army Corps of Engineers 16885 W. Bernardo Drive, Suite 300A San Diego, CA 92127 Attention: Terry Dean Telephone: (858) 674-5386 Telecopier: (858) 674-5388 U.S. Army Corps of Engineers 2151 Alessandro Drive, Suite 255 Ventura, CA 93001 Attention: Tiffany Welch Telephone: (805) 858-2144 Telecopier: (805) 452-4204 or such other address as a party may inform the others of from time to time. Any such notice sent by registered or certified mail, return receipt requested, shall be deemed to have been duly given and received seventy-two (72) hours after the same is so addressed and mailed with postage prepaid. Notices delivered by overnight service shall be deemed to have been given twenty-four (24) hours after deliver of the same, charges prepaid to the U.S. Postal Service or private courier. Any notice or other documents sent by any other manner shall be effective only upon actual receipt thereof. 10. Taxes. Grantor agrees to pay any and all real property taxes and assessments levied by competent authority on the Easement Area, except that Grantor understands that it is the intention L:\CONTHOME\CARRILLO\DFG.e 02/05/02 Page 6 of 10 DRAFT FOR DISCUSSION PURPOSES ONLY of the parties that Grantor shall have no obligation to pay any taxes or assessments which may be levied against the Easement itself as opposed to the underlying fee, and that Grantor be exempt from any taxes and assessments imposed by the County for species, habitat or open space preservation purposes. The foregoing notwithstanding, Grantee is authorized but not obligated to pay, upon three (3) days prior written notice to Grantor, any taxes and assessments owing to prevent delinquency and foreclosure. 11. Assignment. This Conservation Easement is transferable, but Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to CIVIL CODE §815.2. Grantee shall require the assignee to record the assignment in the county where the Property is located. 12. Extinguishment. This Conservation Easement may be extinguished by Grantor and Grantee by mutual written agreement upon the request of either party only after the requesting party acquires and records a perpetual conservation easement in the name of the State of California at an alternative location, which provides conservation values that satisfy the specific mitigation purposes of this Conservation Easement. 13. Amendment. This Conservation Easement may be amended by Grantor and Grantee by mutual written agreement. Any such amendment shall be consistent with the purposes of this Conservation Easement and, except as provided in Section 13, shall not affect its perpetual duration. Any such amendment shall be recorded in the Official Records of San Diego County, State of California. 14. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to its ownership of the Property and its use, if any, of the Easement Area. 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 hold harmless, indemnify and defend Grantee and its directors, officers, employees, agents, contractors and representatives (collectively, "Indemnified Parties") from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands or judgments, including without limitation, reasonable attorneys' fees, arising from or in any way connected with: (a) inj ury to or the death of any person, or physical damages to any property, resulting from any negligent or willful act or omission of Grantor, its agents and employees, occurring on or about the Property; and (b) any claim or lawsuit related to the existence or administration of this Conservation Easement. 15. Access. No right to access by the general public to any portion of the Easement Area is conveyed by this Deed. 16. Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined in CIVIL PROCEDURE CODE § 1240.680, notwithstanding CIVIL PROCEDURE CODE §§ 1240.690 and 1240.700. L:\CONTHOME\CARRILLO\DFG.e ,_, _, , . -.02/05/02 Page 7 of 10 DRAFT FOR DISCUSSION PURPOSES ONLY 17. Successors. The term "Grantor" wherever used herein, and any pronouns used in place thereof, shall mean and include the above-named Grantor, its heirs, successors, assigns, affiliates and designees. The term "Grantee" whenever used herein, and any pronouns used in place thereof, shall mean and include the above-named Grantee and any successors and assigns, and any third party beneficiary identified in this Deed. The covenants, terms, conditions and restrictions of this Deed shall be binding upon and inure to the benefit of Grantor and Grantee and shall continue as a servitude running in perpetuity with the Easement Area and with the Property as necessary for access to the Easement Area. 18. Severability. If any provision of this Conservation Easement or the application thereof to any person or circumstances is found to be invalid, the remainder of the provisions of this Deed and the application of such provisions to persons or circumstances other than those to which it is found to be invalid shall not be affected thereby. In addition, if any provision of this Deed is found to be ambiguous, an interpretation consistent with the conservation purposes of this Deed that will render the provision valid shall be favored over any interpretation that would render it invalid. 19. Controlling Law. The interpretation and performance of this Deed shall be governed by the laws of the State of California. 20. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the intent to transfer any interest at least fifteen (15) days prior to the date of such transfer. Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor or Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way. TO HAVE AND TO HOLD unto Grantee, their successors and assigns, forever. L:\CONTHOME\CARRILLO\DFG.e ,-. n , A n02/05/02 Page 8 of 10 DRAFT FOR DISCUSSION IN WITNESS WHEREOF, Grantor has hereunto set its hand this day ofPURPOSES ONLYday or 20 . GRANTOR: LENNAR BRESSI RANCH VENTURE, LLC, a California limited liability company By: By:. GRANTEE: STATE OF CALIFORNIA, by and through DEPARTMENT OF FISH AND GAME By: Title: Aumbri^LRepresentative APPROVED AS TO By: w^. _ Gertcral Counsel California Department of Fish and Game L:\CONTHOME\CARRlLLO\DFG.e ^ _ , . _.02/05/02 Page 9 of 10 DRAFT FOR DISCUSSION CERTIFICATE OF ACCEPTANCE PURPOSES This is to certify that the interest in real property conveyed by the Deed of Conservation Easement by , dated , 20 , to the State of California, grantee, acting by and through its Department of Fish and Game ("Department"), a governmental agency (under GOVERNMENT CODE §27281), is hereby accepted by the undersigned officer on behalf of the Department, pursuant to authority conferred by resolution of the California Fish and Game Commission on . GRANTEE: STATE OF CALIFORNIA, by and through DEPARTMENT OF FISH AND GAME DRAFT FOR DISCIBBIOUBv: Title: Authorized Representative Date: L:\CONTHOME\CARRILLO\DFG.e .-, *n t *n02/05/02 Page 10 of 10 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: | (Space Above Line For Recorder's Use) MEMORANDUM OF AGREEMENTi' This Memorandum of Agreement ("Memorandum") is being executed as of ]T 1996, and pertains to certain commitments in a Streambed Alteration (No.5-145-96) dated November 5, 1996 between a representative of theAgreement California Department of Fish and Game ("CDFG") and a representative of Continental Ranch, Inc., a Delaware corporation ("[Property Owner'1) with respect to that certain real property in the City of Carlsbad, County of San Diego, State of California more fully J *1 .. J _ T7I T_ *1 "j « ±1. V_ _ 4 4 j _.••-._ 4 .51 - * L S.1 ^ It If* - A . It Vdescribed on Exhibit I attached hereto and incorporated hereia (the "Property"). IThe Streambed Alteration Agreement contains a condition wherein Property Owner is obligated to grant to CDFG or its designee a conservation easement (the "Conservation Easement") over approximately 41 acres (the "Easement Area"). The general location of the Easement Area which will encumber the Property is depicted on Exhibit 2 attached hereto and incorporated herein1 by this reference. However, the exact configuration of the Easement Area cannot be determined, and the Conservation Easement cannot be granted until a final map(s) is/are recorded over the portion of the property where the easement is to be located. The purpose of this Memorandum is to put interested parties on notice of the Property Owner's obligation and and intention to grant CDFG or its designee the Conservation Easement in accordance with the Streambed iteration Agreement. This Memorandum is made as of the date first above written. Continental RanchJ Inc., a Delaware corporation By: 1Z-05-94 Name:. Title COUNTY OF SOM STATE OF CALIFORNIA ss. k-OLrr*Aj^_ JO ;<?<?£ _ before me, _, a notary public in and for said State, personally appeared ——-- , personally known to me faf-f roved _to me of satiafactorj' evidcnco) to be the person^? whoie name^@/w« subscribed to toe wiflun instrument and acknowledged to me marglr§bf/^ executed the same in fr authorized capacity^, and that by ©Jrf/0eif signature^ on the instrument-—• f r — -""* —f-^vv**^/* «"*•• w«»i. u/ (juj/yci/L^icii; siguaiurq^^ ou me l the person^, or the entity upon behalf of which the person^ acted, executed theinstnrmenr I Signature WITNESS my hand and official seal. (LJ My Conm BC«w Ate 0.2BD 13-05-96 S:\DOC\196\96-2031,ASR 01/29/02 14:25 FAI EXHIBIT 1 LEGAL DESCRIPTION OF THE PROPERTY Parcel 2 in the City of Carlsbad, County of San Diego, State of California, according to the Certificate of Compliance thereof, recorded August 17, 19941 as Document No. 1994-0497667 of Official Records, together with Parcel 3 in the City of-Carlsbad, County of San Diego, State of California, according to the Certificate of Compliance thereof; recorded August 17 1994 as Document No. 1994-0497669 of Official Records. ' 12-05-56 S:\QOC\196\96l20ai.AGR 01/29/02 14:25 FAI @005 VENERAL DEPICTION OF FUTURE CO^ERVATIONEASEMENT AREA WITHIN PROPERTY (22I-OIZ-I2 ,-.i pii-wit-" r •2STDV1'IKT^ IfV.B. PARCEL 3- PARCEL 3 \ COURSE DATA tid5t50t40'ti ray SFH c 98.05 N5'tO'i3'N 176.66 ew.54' 'L'59I.Sf <Z48' ® W!W£ <&.40 4B3.0" m NtfWWE (R) BJCKENGINEERING COMPANY ssao Fi-i»t PR 3. 4. 163 SCALE: I'- zoq'l OATC i-ao-aa