HomeMy WebLinkAboutCT 99-04; Villages of La Costa Oaks & Ridge; Tentative Map (CT) (9)REAL ESTATE COLLATERAL MANAGEMENT
CONSULTING SERVICES AGREEMENT
RECM/Morrow
Consultant: Helix Environmental Planning, Inc.
Contract No: 382
This Consulting Services Agreement (the "Agreement") is made and entered into
this 8th day of January, 2002, by and between REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware corporation (hereinafter called "Company")
and Helix Environmental Planning, Inc., (hereinafter called "Consultant"), in
consideration of the mutual covenants and conditions herein contained.
COMPANY'S AGENT. For all purposes of administration, supervision and
implementation of this Agreement, Company's agent, Morrow Development, Inc., a
California corporation (hereinafter called "Morrow") shall act for Company for all
purposes regarding this Agreement. Consultant hereby acknowledges and understands
that Morrow is acting herein as the agent of Company, and Consultant shall accept and
recognize the actions of Morrow as though it were the contracting party directly.
Morrow is the Development Manager for Company in connection with the real estate
master planned community(s) known as Villages of La Costa (the "Project").
The parties hereto agree as follows:
1. Scope of Work. Consultant shall perform the consulting and associated
professional services as more particularly described on the Scope of Work Exhibit "A"
hereto ("Work") for the Company in accordance with this Agreement and the provisions
contained in any exhibit supplemental hereto which shall be considered a part of this
Agreement. Consultant hereby represents and warrants it has the requisite licenses or
other governmental authorization to perform the Work at all times herein and its license
number is set forth on the signature page.
2. Authorization to Proceed. Consultant shall not commence the consulting
services prior to full execution of the Letter of Authorization attached hereto as Exhibit
"C" ("Authorization") which will outline the amount of compensation to be paid, authorize
any reimbursable charges to be incurred, designate Morrow's direct representative for
this Agreement, specify the schedule for start and completion of the services, and
provide instructions for identification and segregation of the charges.
3. Term of Agreement. This Agreement shall continue in effect until terminated by
either party giving the other not less than 10 days prior written notice. However, if
Company so terminates this Agreement and Consultant is not then in default hereunder,
Company agrees to pay Consultant for all services performed through the effective date
of the notice of termination, provided such work is in conformity with this Agreement and
any Authorization subject to the terms of this Agreement.
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4. Termination Cause. Notwithstanding the foregoing, Company or Morrow shall
have the right at any time, in its sole discretion, to terminate this Agreement if the
Consultant fails to timely perform its obligations by giving Consultant written Notice of
Termination, in which event Consultant shall immediately cease all services hereunder.
Such Notice of Termination shall be deemed termination for cause. If Morrow or
Company terminates this Agreement for cause, Company shall have any and all
remedies and rights provided at law or in equity including, without limitation, the right to
offset against any and all sums that may be due to Consultant any and all damages,
costs and expenses incurred or suffered by Company or Morrow by reason of
Consultant's breach or default.
5. Request for Payment. Subject to the provisions of Section 4 above and all other
terms and provisions of this Agreement, Consultant shall be paid for all Work and any
additional completed services authorized in writing and all reimbursable expenses
incurred, to the extent the same were authorized by Company or Morrow pursuant to
this Agreement, through the date of Notice of Termination. Consultant shall submit a
written Request for Payment statement, certification and lien waivers and releases to
Company in the form provided in Exhibits "B" and "B-1n of this Agreement or on a
substitute form as reasonably requested by Company or Morrow.
6. Expense Approval. Before incurring any proposed reimbursable expense not
specifically authorized in this Agreement, Consultant shall obtain Morrow's or
Company's prior written approval of such expense. Company shall reimburse
Consultant on a monthly basis for such pre-approved incurred expenses providing same
are supported by invoice vouchers delivered to Morrow by Consultant and such detail
information and documents as Company or Morrow may reasonably require.
7. Documents. Consultant shall submit status reports periodically as may be
requested by the Company or Morrow. Expenses and reimbursable charges shall also
be reported to the same individual. All design, drawings, specifications, technical data,
and other reports, documents or materials provided to or produced by Consultant in the
performance of its Work under this Agreement (hereinafter "Documents") shall be the
sole property of Company and Company is vested with all rights therein of whatever
kind and however created, including without limitation, all common law and statutory
copyright. Consultant hereby assigns to Company, without additional compensation, all
right, title and interest in all creations, inventions, ideas, designs, copyrightable
materials, trademarks and other technology and rights, (and any related improvements
or modifications), whether or not subject to patent or copyright protection, relating to any
activities of Consultant in performing Work or rendering services under this Agreement.
Consultant shall execute any and all instruments, including further assignments of
interest, as may be required to transfer to Company any and all of Consultant's rights in
and to the Documents and all rights incidental thereto. Consultant agrees that
Company and Morrow shall have access at all reasonable times to inspect and make
copies of all Documents. Consultant shall upon request of Company or Morrow, at their
cost and expense, provide Company or Morrow with reproducible copies of all
Documents. Without Company's prior written consent, Consultant shall not use any of
the Documents it has prepared in connection with this Agreement on any other project
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or in connection with services to be rendered to anyone other than Company. Upon
termination or expiration of this Agreement, Consultant shall immediately deliver to
Company or Morrow any original Documents prepared by Consultant in connection with
this Agreement not previously delivered to Company or Morrow. As more particularly
set forth in Section 12, Consultant shall indemnify, defend and hold harmless, Company
and Morrow, and their Affiliates, from and against any claim, damage, cost, loss, or
liability (including court costs and attorneys' fees) arising as a result of any alleged
copyright infringement action or any other objection to Company's Document ownership
or use arising out of or related to use of Documents prepared by Consultant under this
Agreement.
8. Company's Use of Documents. Company shall have the right to reuse the
Documents, in whole or in part, for any other Company project provided that in
connection with such other project, Company shall indemnify Consultant with respect to
all claims for property damage or personal injury arising out of such reuse. The
foregoing indemnity shall not, however, apply if Consultant's services are terminated
due to a breach of its obligations under this Agreement. Consultant may not use, in
whole or in part, any of the Documents nor shall Consultant disclose same or make
same available, in whole or in part, to any third party whomsoever other than as
authorized by Company in writing. Company shall retain ownership of all formal
published reports, studies, computer programs and files, maps, designs, plans,
specifications and other work product prepared by Consultant to be used by Company
in any manner it may find appropriate. Consultant acknowledges that violations
regarding the use of the Documents could result in substantial damages to Company
under this Agreement.
9. Consultant Supervision. Consultant shall supervise and direct all of Consultant's
agents, employees and subcontractors performing Work or services, be responsible for
all methods, sequences and procedures used and be responsible for coordinating all
portions of Consultant's Work. Consultant shall perform the Work using the highest
level of care and skill exercised by or expected by members of the profession currently
practicing under similar conditions for master planned or other communities similar to
the Project in Southern California. Consultant shall promptly supply to Company or
Morrow in writing such other information which is or becomes known, in the course of
performing the services, by Consultant or persons performing services, concerning facts
which may materially affect the planning, marketing, design or construction of
Company's property or Project. At all times in performing its duties hereunder,
Consultant shall coordinate and consult with Company through Morrow to the end that
major decisions as to the Project shall be made by the Company through Morrow.
10. Joint Venture. It is not the purpose or intention of this Agreement to create nor
shall it be construed as creating a joint venture, real estate partnership, commercial
partnership or other business relationship, other than Consultant being an independent
contractor. Consultant shall act as an independent contractor with respect to
performance of Work hereunder and neither it nor any of its employees, agents, or
subcontractors will be deemed for any purpose to be the employee or agent of
Company or Morrow in the performance of services hereunder. No federal, state, city or
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other local governmental income or social security taxes will be withheld from
Consultant's compensation except as required by law, and all such taxes will be
reported and paid directly by Consultant. Consultant hereby defends, indemnifies and
holds harmless Company and Morrow, and their Affiliates, for any tax liability of
Company or Morrow, or their Affiliates, directly or indirectly incurred as a result of
Consultant's failure to meet its tax and other obligations, in accordance with Section 12
below.
11. Approval of Subcontractor. No subcontractors shall be used by Consultant in
connection with the Work without Company's or Morrow's prior written approval of such
subcontractor including verification of subcontractor's license (if required), insurance
coverages as provided herein and scope of the Work to be performed by such
subcontractor. Consultant shall be solely responsible for any employee benefits,
including, without limitation, wages, worker's compensation benefits, employment and
social security taxes, and fringe benefits, to which Consultant's authorized
subcontractors, employees or agents may claim to be entitled. Consultant agrees that
only those persons approved by Company or Morrow will be involved directly and on a
regular basis in providing the Work described above and overseeing the performance of
such services, and that such individuals will devote sufficient time to the Work as will be
required to complete the Work consistent with this Agreement.
12. Indemnification. Consultant shall indemnify, defend and hold harmless Company
and Morrow, and their respective affiliates, subsidiaries, agents, members, employees,
representatives, shareholders and officers ("Affiliates"), from any loss, damage, liability,
costs and claims thereof, including without limitation, all court costs and attorneys' fees
arising directly or indirectly out of Consultant's (i) acts or omissions outside the scope of
Consultant's authority; (ii) in breach or default of its obligations under this Agreement;
and (iii) negligent performance of services under this Agreement, except to the extent
the same results from the sole gross negligence or the willful misconduct of Company,
Morrow or their Affiliates. "Affiliates" also includes any company, partnership or other
entity in which Company or its principals own, directly or indirectly, an actual or
beneficial interest greater than twenty-five percent.
13. insurance. Without in any way limiting Consultant's obligations hereunder,
Consultant shall, during the term of this Agreement, maintain the following policies of
insurance with insurers licensed in California holding a minimum rating of (i) AV or
better or (ii) B+X or better:
13.1 Worker's Compensation as required by law and Employer's Liability with
policy limits not less than $1,000,000 per occurrence and a separate Waiver of
Subrogation issued for the benefit of Company and Morrow, and their Affiliates.
13.2 Commercial General Liability (Bodily Injury and Property Damage)
insurance, the limits of which shall not be less than $1,000,000 per occurrence. Such
policy shall be on an occurrence (and not a claims made) basis, including coverages for
(a) blanket contractual liability; (b) broad form property damage; and (c) explosion,
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collapse and underground hazard; and (d) products and completed operations, to the
extent applicable to the Work.
13.3 Automobile Bodily Injury and Property Damage Liability Insurance. Such
insurance shall extend to owned, non-owned, and hired automobiles used in the
performance of this Agreement. The limits of liability of such insurance shall not be less
then $1,000,000 for Bodily Injury and Property Damage Liability combined per
occurrence.
13.4 Professional Liability Insurance, the limits of which shall not be less than
$1,000,000 per claim and in the aggregate with supplementary coverage for Contractual
Liability to cover any liability assumed under this Agreement which is otherwise
insurable under such Professional Liability Insurance.
13.5 None of the insurance coverages described herein shall be terminated,
canceled, or substantially changed without thirty (30) days' prior written notice to
Company and Morrow.
13.6 Without prior written consent by Company or Morrow, the deductible
amount under any of the insurance coverage described herein shall not exceed
twenty-five thousand dollars ($25,000.00).
13.7 Except for the insurance coverages required under Sections 13.1 and
13.4, the above insurance shall name Company and Morrow, and their Affiliates, as an
additional insured with respect to Work performed hereunder, and contain a Cross
Liability Endorsement which provides that the insurance applies separately to each
insured and will cover claims or suits by one insured against another. Such additional
insured endorsement(s) shall state that such policy is primary and that any insurance
carried by an additional insured is excess and non-contributing. The additional insured
endorsement for commercial general liability must provide coverage for completed
operations if applicable to the Work.
13.8 Before commencing the Work, Consultant shall provide Company and
Morrow an original certificate of insurance or certified copies of all policies, or other
documentary evidence of the above insurance coverages satisfactory to Company.
14. Consultant Payment.
14.1 Payment to Consultant shall be made as set forth herein following delivery
to Company of (i) a conditional lien waiver and release (for progress or final payment as
applicable) in favor of Company and Morrow in form and substance satisfactory to
release all claims with respect to such payment under applicable law, and (ii)
Consultant's written certification in the form of Exhibits "B" and "B-1", attached hereto,
executed by Consultant's authorized representative which shall contain an estimate by
the Consultant of the "percent complete" of the services performed by Consultant for the
payment period covered by the statement. Such statement shall also include, for items
of work identified to be compensated on a time and materials basis, an estimate by the
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Consultant of the "percent complete" of total hours worked by each of the Consultant's
employees and of the services performed by each such person. Such statement shall
also include an itemization of all reimbursable expenses. Consultant's statements shall
represent payment in full for the portion of the Work described therein and shall declare
that; (i) the labor, services and materials, if any, covered by the statement have actually
been furnished and performed; (ii) any liens which may arise as a result of applicable
state statutes have been released or waived to the extent of the statement; and (iii) that
all subcontractors, employees, or other persons have been paid in full for any labor,
materials or services included in the statement. In the event all subcontractors have not
been paid for releases therefrom obtained as set forth herein, Company may withhold
from the payment due to Consultant, an amount equivalent to the purported sum owing
by Consultant to such subcontractor until Consultant has paid such subcontractor in full
or if such payment is in dispute, until Consultant has provided Company with an
indemnity agreement satisfactory to Company with respect to the lien claims of such
subcontractor.
14.2 Consultant shall submit to Morrow on or prior to the 15th day of any month
a fully completed Request for Payment (Exhibit "B") for Work completed during the
preceding month together with the supporting materials described in Section 14.1
above. Payment of such requests shall be made on, or prior to the 15th day of the
subsequent month provided all certifications, supporting statements and/or lien releases
identified herein are received within five (5) days of the submittal of such request for
payment. In the event the supporting statements are not received within five (5) days
after submission of payment request, payment shall be due on or prior to the 15th day
of the first month after Morrow receives all supporting information and statements so
long as all supporting statements and/or lien releases are received by Morrow prior to
the twentieth day of the month which precedes expected payment.
15. Assignment. Consultant shall not assign its obligations hereunder without the
specific written consent of Company which may be withheld in the sole discretion of
Company. Company may, in its sole discretion, freely assign its rights and obligations
to an entity deemed by Company as reasonably capable of performing Company's
obligations hereunder and shall notify Consultant in writing of such assignment.
Consultant specifically acknowledges that Company may at any time assign its rights
under this Agreement without the necessity of consent of any third party.
16. Confidentiality. Consultant acknowledges that with respect to Company's
Project, if such plans become generally known, Company's opportunities with respect to
the Project would be prejudiced. Therefore, while performing services related to
Company's Project, Consultant, unless approved in writing by Company or Morrow,
shall refrain from disclosing the nature and purpose of its services to any third party,
including real estate agents and brokers, except public agency staffs and individuals
whom Consultant must contact in performing the Work, or its counsel or accountant.
Further, in connection with the Company's Project, Consultant shall not, by itself, in
connection with or in the name of another, or through affiliation with any entity, acquire
property or rights in conflict with Company's interest. In the event Consultant does so,
any such purchase, acquisition, option or contract will be deemed at Company's sole
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option, to have been acquired on behalf of Company, and Consultant shall forthwith
execute or cause to be executed any documents necessary to transfer such property
rights or the rights thereto Company. All information acquired by Consultant, including
materials prepared by Consultant, concerning the subject of the services to be rendered
under this Agreement or Company's intentions with respect thereto, shall be considered
strictly confidential ("Confidential Information"). Consultant shall not disclose any
Confidential Information to others without Company's or Morrow's prior written consent,
nor use the Confidential Information for any purpose other than as necessary in
connection with the Work or additional services rendered in accordance with this
Agreement. Disclosure to Consultant's employees and agents who agree to be bound
by the terms of this Section 17 is permitted when required in connection with the Work
to be rendered under this Agreement. Upon termination of this Agreement, Consultant
shall return all Confidential Information to Company. Consultant agrees that ideas or
concepts under consideration by Company or Morrow and disclosed to or developed by
Consultant are confidential and proprietary to Company and may not be utilized by
Consultant for any purpose other than in connection with the services to be rendered
hereunder, nor disclosed to any third party unless authorized in writing by Company.
Consultant agrees to commit its employees, advisors, agents, and subcontractors to
protect the confidential and proprietary nature of these ideas and concepts.
17. No Gratuities. Neither Consultant nor its subcontractors, directors, employees or
agents of any of them, will give or receive any commission, fee, rebate, gift or
entertainment of material cost or value in connection with Consultant's services
hereunder without prior written notification and consent from Company or Morrow. It is
further understood that under no circumstances are Consultant, its directors,
employees, agent or subcontractors or their directors, employees or agents to make any
payment, or give anything of value, to any governmental official (including any officer or
employee of any government department, agency or instrumentality) to influence a
decision, or to gain any other advantage for Company or Consultant, in connection with
services performed hereunder. Consultant will promptly notify Company of any violation
of this Paragraph 17 and any consideration received as a result of such violation shall
be administered as directed by Company. Additionally, if any violation of this Section 17
occurred prior to the date of this Agreement or Authorization to proceed, Company may,
at its sole option, terminate this Agreement and, notwithstanding any other provision
thereof or of any Authorization, not pay compensation or reimbursement to Consultant
whatsoever for any work done after the date of termination.
18. Accurate Records. Consultant shall maintain true and accurate records in
connection with its services and reimbursable charges hereunder and all transactions
related thereto and shall retain such records for at least 48 months after completion of
such services. Company may audit any and all records of Consultant relevant to any
charges hereunder. Consultant shall also provide Company or Morrow a true and
correct copy of any required license annually.
19. Compliance with Laws. Consultant and its subcontractors shall comply with all
applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of
any governmental authority, including, but not limited to, Federal and state labor,
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occupational health and safety, environmental and tax laws, which are applicable to this
Agreement and Consultant's and its subcontractors performance hereunder during the
period in which the services are performed, and shall indemnify, defend and hold
harmless Company, Morrow and their Affiliates from any damage, injury, liability, claims,
fines and penalties resulting directly or indirectly from Consultant's or its subcontractors'
failure to do so in accordance with Section 12.
20. California Law. This Agreement shall be deemed to be a contract made and
performed in the State of California and will be governed by the substantive law of that
state without regard to the principles of conflict of laws.
21. Attorneys Fees. If Consultant, Company or Morrow (including Affiliates of
Company or Morrow) is a party to any action or proceeding to enforce any of the terms
of this Agreement, the prevailing party(s) in such action or proceeding (as determined
by the judge or presiding official) shall be entitled to receive from the non-prevailing
party(s), the prevailing party(s) costs and reasonable attorneys fees, incurred in
prosecuting, defending or appearing in such action or proceeding.
22. ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING HERETO
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO A CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT WILL, AT THE REQUEST OF ANY
PARTY, BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (9 U.S.C. SECTION 1 ET SEQ.) UNDER THE AUSPICES AND RULES
OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), EXCEPT AS OTHERWISE
PROVIDED BELOW OR AGREED BY THE PARTIES. IF BOTH PARTIES CANNOT AGREE
ON AN ARBITRATOR WITHIN FIFTEEN (15) DAYS AFTER DELIVERY OF A REQUEST FOR
ARBITRATION, THE ARBITRATOR SHALL BE APPOINTED BY THE PRESIDING JUDGE OF
THE SUPERIOR COURT FOR THE COUNTY OF SAN DIEGO, PROVIDED SUCH
ARBITRATOR SHALL HAVE AT LEAST TEN YEARS EXPERIENCE IN DEVELOPMENT OF
RESIDENTIAL MASTER PLANNED COMMUNITIES. THE ARBITRATION WILL BE
CONDUCTED IN SAN DIEGO COUNTY AND IN RENDERING ITS DECISION, THE
ARBITRATOR SHALL APPLY THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA,
AND WHERE APPLICABLE, THE SUBSTANTIVE LAWS OF THE UNITED STATES OF
AMERICA. ANY CONTROVERSY IN INTERPRETATION OR ENFORCEMENT OF THIS
PROVISION OR WHETHER A DISPUTE IS ARBITRABLE, WILL BE DETERMINED BY THE
ARBITRATOR IN ACCORDANCE WITH CALIFORNIA LAW. JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL
RELIEF IN PURSUIT OF AN ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE
CONTROVERSY OR CLAIM TO ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION UNDER CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR BY JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU
ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS SUCH
RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES
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PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE.
WE HAVE READ AND UNDERSTAND THE FOREGOING INITIALS AND AGREE TO
SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION
OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION.
Company's initials Consultant's initials
23. Entire Agreement. This Agreement constitutes the entire and integrated
agreement between the parties and all prior and contemporaneous negotiations,
representations and agreements, written or oral, if any, between the parties with regard
to the subject matter of this Agreement are superseded and canceled hereby and shall
not be used to interpret to construe this Agreement. No amendment or other
modification of this Agreement shall be effective or enforceable unless in writing duly
signed by Company and Consultant.
24. Notice. Wherever in this Agreement it shall be required that notice or demand be
given or served by either party on the other, such notice or demand shall be given or
served only if in writing and personally served at or forwarded by certified or registered
mail, postage prepaid, addressed to the parties specified below. Any notice or demand
given by mail as aforesaid shall be effective the second business day after mailing.
Either party may change such address by written notice given in accordance with the
terms hereof. Personal service may be by means of messenger, courier, commercial
service such as Federal Express, telegram or telecopier or similar electronic delivery
and shall be effective upon receipt.
To the Company: c/o Morrow Development, Inc.
Mailing Address: 1903 Wright Place, Suite 180,
Carlsbad, CA 92008
Delivery Address: Same as Mailing Address
To the Consultant: At the address provided on the signature page.
25. No Waiver. The failure of either Consultant or Company to insist in any one or
more instances upon the strict performance of any of the terms of this Agreement or to
notify the other party of any default hereunder shall not be construed as a waiver or a
relinquishment of the right to insist upon future performance of such terms or the right to
thereafter declare a default hereunder. If any provision of this Agreement shall be held
by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder
of this Agreement shall remain in full force and effect.
26. Morrow Agency. Company has represented to Consultant that Morrow is the
authorized agent of Company and authorized by the Company to act as the
Development Manager on behalf of the Company regarding this Agreement. Consultant
acknowledges and agrees that Morrow, its officers, directors, shareholders, and
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employees shall have no liability under this Agreement and that all rights and liabilities
under this Agreement shall be those of Company.
27. Conflict. In the event of a conflict between the terms of this Agreement (and any
authorization issued pursuant hereto), and any proposal, contract or exhibit prepared by
Consultant which may be attached to any Authorization, the terms of this Agreement
shall prevail.
[Remainder of Page Intentionally Left Blank]
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28. Survive Termination. Those provisions regarding confidentiality, indemnity and
other similar covenants shall survive the termination or other expiration of this
Agreement.
In witness whereof, the parties have signed this Agreement in duplicate or
counterpart originals effective the first date set forth above.
CONSULTANT
Helix Environmental Planning, Inc.
COMPANY
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a
Delaware corporation
8100 La Mesa Blvd., Suite 150
La Mesa, CA 91941
APPROVED:
OPMENT, INC.
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EXHIBIT "A"
SCOPE OF WORK
Consultant: Helix Environmental Planning, Inc.
Contract No.: 382
Consultant agrees to furnish all labor, personnel, materials and equipment necessary to
perform the Scope of Services (the "Work") described below and to complete
performance of the Work in accordance with the performance schedule or the
completion of dates set forth below. Consultant shall exert Consultant's best efforts,
skill and judgment and shall exercise all due diligence to complete the Work in
accordance with the terms of the Agreement to which this Exhibit is appended and in
the most expeditious, sound and economical manner.
PROJECT DESCRIPTION: Environmental Mitigation
Offsite Acquisition
SCOPE OF WORK:
Helix's will carry out the vernal pool enhancement and subsequent 5-year maintenance
and monitoring program as described in the Villages of La Costa Vernal Pool
Enhancement Plan (Helix 2001). The project goal is the enhancement of the 15 vernal
pools on site to a more viable condition. As described in the plan, the current condition
of these vernal pools is poor due to prior to impacts from adjacent development as well
as human and vehicular intrusions. The plan calls for the removal of existing debris,
intrusive weeds and damage due to vehicular intrusions within the existing vernal pools.
In addition, the plan calls for minor alterations to pool topography to remedy prior
damage and improve overall pool function. This proposal includes these tasks.
Additional activities such as fence and berm construction are not included in our scope
of services. Each project task is described below.
Task 1: Vernal Pool/Upland Enhancement.
A. Trash/Debris Removal
Helix will remove all trash and debris from site prior to initiation of
enhancement activities. All refuse will be disposed of off site in a licensed
landfill.
B. Upland Enhancement
Helix will mow all of the non-native duff. Following mowing the entire
upland area will be seeded with an appropriate native seed mix.
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C. Vernal Pool Enhancement
The specific tasks identified in Table 6 of the enhancement plan will be
carried out for each pool. These tasks include weeding, debris/trash
removal, removal of tire ruts and minor re-contouring. Special care will be
taken when working within the pools to avoid impacts to any sensitive
species.
Task 2: 5-Year Maintenance.
A. 5-Year Maintenance
Helix will conduct regular maintenance visits for a 5-year period in
accordance with the schedule presented in the enhancement plan. The
maintenance program will include removal of trash, weed control, minor
fence repair and remedial measures necessary for the success of
enhancement program. Helix will not be responsible for major repairs
made by unforeseen occurrences such as fire, flooding, or other disasters
(natural or otherwise).
Task 3: 5-Year Monitoring and Reporting.
A. Year Monitoring
A qualified Helix with vernal pool experience will conduct regular
maintenance monitoring visits for a 5-year period in accordance with the
schedule presented in the enhancement plan. During each scheduled
monitoring visit the biological monitor will note the general state of the
preserve area and inform the maintenance crew of any required remedial
measures.
B. Annual Monitoring/Reporting
The biological monitor will conduct an annual monitoring visit each spring
during the 5-year monitoring period. During the annual visits a visual
assessment of species cover and richness will be made for each vernal
pool onsite. The collective data will be compared with the success criteria
presented in the enhancement plan to determine if the project is
successful or not. At the each annual monitoring visit a letter report will be
prepare describing the condition of the preserve and noting any corrective
measures necessary to achieve success. The annual letter reports will be
submitted to the Client, maintenance personnel and the City of Carlsbad.
Assumptions
This proposal assumes 15 vernal pools will be enhanced, maintained and monitored for
a 5-year period. Initially, approximately 3.3 acres of upland will also be cleared of
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debris, weeded, raked and seeded. Any additional areas to be surveyed or maintained
are not included in this proposal and would require a contract amendment. The cost
presented here are based on an intensive initial effort with the level of effort diminishing
over the years. There is a possibility, because of the highly disturbed state of this land,
that additional effort will be necessary in years 4 or 5 to meet final success criteria. The
cost associated with this additional effort are not included in this scope of work.
This scope of work does not include cost associated with fencing, berm construction or
irrigation. Cost associated with any additional surveys, meetings, construction
monitoring, document preparation and/or other technical studies are not included in this
scope of services.
Schedule
Helix will work with Client in a timely and professional manner. Enhancement of the
vernal pools and upland area is expected to take less than two weeks to complete. The
5-year maintenance and monitoring period will begin upon successful completion of the
initial enhancement activities. The annual letter reports will be prepared and submitted
within 60 days of completion of each annual monitoring visit.
Cost Estimate and Payment Procedures
Helix is pleased to submit this lump sum not to exceed the cost estimate of $46,900.00
for Tasks 1, 2 and 3. Below is the cost breakdown for each task.
Task 1 Vernal Pool/Upland Enhancement $7,100.00
Task 2 5-Year Maintenance $24,000.00
Task 3 5-Year Monitoring and Reporting $15,800.00
Total $46,900.00
Consultant's Initial
Company's Initial
Page 14 of 17
EXHIBIT "B"
REQUEST FOR PAYMENT
CONTRACT NO. 382
JOB NUMBER/DESCRIPTION: 81-13 / Environmental Mitigation
CONSULTANT: Helix Environmental Planning, Inc.
8100 La Mesa Blvd., Suite 150
La Mesa, CA 91941
The undersigned Consultant hereby requests payment pursuant to the invoice
attached showing the personnel, time, and rate for each of the work tasks described in
the Scope of Work:
Invoice Number:
Date:
Invoice Period:
Consultant's Approval:
Initial Contract Amount:
Addendums to Date:
TOTAL Contract Amount:
Percent Complete:
(See Attached Spreadsheet)
$46.900.00
$ 0.00
$46.900.00
Please submit to:Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Page 15 of 17
HELIX 382 1/8/02
WORK DESCRIPTION
ENVIRONMENTAL MITIGATION/OFFISTE ACQUISITON 81-13/40-4010
VERNAL POOL/UPLAND ENHANCEMENT
5-YEAR MAINTENANCE
5-YEAR MONITORING AND REPORTING
TOTAL-CONTRACT
A
RMlBURSABLES 81-28/90-9140
TOTAL-REIMBURSABLES
TOTAL THIS INVOICE
CONTRACT
AMOUNT
7,100.00
24,000.00
15,800.00
46,900.00
N/A
N/A
PREVIOUS
AMOUNT
BILLED
0.00
0.00
0.00
0.00
0.00
0.00
AMOUNT
DUE THIS
PERIOD
0.00
0.00
0.00
0.00
0.00
0.00
0.00
Complete:
TOTAL
BILLED
TO DATE
0.00
0.00
0.00
0.00
0.00
0.00
0%
CONTRACT
REMAINING
7,100.00
24,000.00
15,800.00
46,900.00
N/A
N/A
Page 1 of 1
EXHIBIT "B-1"
CERTIFICATION OF THE CONSULTANT
I HEREBY CERTIFY that the work performed and the materials supplied, if any to date,
as shown on the accompanying Request for Payment dated ,
represent the actual value of the accomplishment under the terms of the Contract (and all
authorized changes thereto) between the undersigned and Company in connection with the
above referenced project.
I also certify that all payments current for, (i) all materials, equipment and labor used in,
or in connection with, the performance of the Contract, and (ii) all laborers and other personnel
employed directly by me and performing work on the project through the periods covered by
prior invoices paid by the Company. I further certify that to the best of my knowledge I have
complied with performing work on the project. I further certify that to the best of my knowledge I
have complied with federal, state and local tax laws, including social security laws and
unemployment compensation laws and worker's compensation laws insofar as applicable to the
performance of the Agreement. I further certify that the amount received under this payment
request will be applied to discharge all labor, labor trust funds material and subcontract
obligations applicable to this project and up to date thereof.
The labor, equipment or materials (or any of them) covered by this Request for Payment
have been furnished and performed as called for by the Agreement.
All material suppliers to, and laborers for the undersigned, have been paid in full for the
goods or services included within the Request for Payment or will be paid with the proceeds of
any disbursement made pursuant to this Request for Payment, which disbursement will be
received in trust for that purpose.
Undersigned shall hold harmless Company, Morrow and the Project from any cost,
expense (including attorney's fees) or liability arising out of the breach of the above Certification.
ENDORSEMENT OF LIEN RELEASE
To induce Company to make the Payment requested above, pursuant to:
Contract No.:382 Invoice No.:
the undersigned agrees and certifies as follows:
(a) Any payment issued on the basis of this Request for Payment shall constitute
payment in full to the extent set forth in the attached Request for Payment.
(b) Any and all mechanic's liens, stop notices and other rights and remedies under
the Mechanic's Lien Law of the State of California and related similar laws, are hereby released
and waived to the extent of the Request for Payment.
(c) Lien releases shall be in the form required by Civil Code § 3262.
(d) The above waivers and releases are conditional and shall be effective upon
receipt of the payment requested herein.
Executed this day of , .
Name of Consultant: Helix Environmental Planning, Inc.
By:
(Its Duly Authorized Agent)
Page 16 of 17
EXHIBIT "C"
LETTER OF AUTHORIZATION
Consultant:
Contract Number:
Helix Environmental Planning, Inc.
382
This letter constitutes Authorization under the above-referenced Contract. All services
performed under this Authorization shall be in accordance with the terms and conditions of such
Contract.
The Scope of Work to be done under this Authorization is as outlined in Exhibit "A". The
maximum authorized for the services under this Authorization is $46,900.00. This amount is not
to be exceeded without prior written consent of Company, reimbursable expenses shall be
limited to reproduction, blueprinting, overnight mail and messenger service. All permitted
reimbursable expenses shall be billed at actual cost plus a ten percent administrative charge.
Each invoice will be accompanied by applicable receipts and documentation for reimbursables.
Each invoice must include Exhibits "B" and "B-1", both completely filled out, including
Description of Work or services performed, total amount authorized hereunder, amount of time
spent, name of person/s who provided the Work and services described, and percent complete.
Insurance Policies shall name Morrow Development, Inc. and Real Estate Collateral
Management Company, and their respective Affiliates (shareholders, directors, agents,
members and employees) as Additional Insureds:
If to Morrow:
Morrow Development, Inc.
Attn: Fred Arbuckle
1903 Wright Place, Suite 180
Carlsbad, CA 92008
If to Company:
Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
If this Authorization is acceptable to you, please indicate your acceptance by signing both
copies and returning one copy to this office.
COMPANY
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY^ Delaware Corporation
CONSULTANT
Helix ETiVi/oi
APPRO
-red M. Arbuckle
President
Page 17 of 17
May 4,2003
Tom C. Dyke Drilling and Blasting Company
P.O. Box 352
Alpine, CA 91903
Dear Sir or Madam:
Subject: Blasting damages on residential property
As part of the development work for the Villages of La Costa project in Carlsbad, CA there has been a
substantial blasting operation. The blasting events have been felt in the neighborhood and the strength
of the shock waves hitting the residential area has made the houses swing and shake. Whether the
minimum requirements established in the City of Carlsbad Engineering Department Policy No. 15 have
been met or not is not known by us but the blasting has without doubt caused both inconvenience and,
in some cases, damages.
It is obvious that the blasting have had a negative impact on our own residential property with damages
as a consequence. Noticeable are cracks appearing both on the outside and inside of the house. If there
are any damages causing weaknesses in the basic structure of the house we cannot, and should not be
expected to, judge. However, our concern for hidden structural damages has been raised even further
since a close neighboring property has gotten a big crack in the patio part of the base concrete slab.
Also, we have had water pipes breaking at two occasions without any obvious reason, with costly
repairs as a consequence. These costs have been covered by the property insurance but in turn made
the insurance company to select not to renew the policy. As a less severe problem it .should be
mentioned that items have fallen down from shelves during the actual blasting.
The rate at which cracks started to occur had its peak in January-February of 2003. This is the time
when the blasting was at its closest to our property. This certainly shows the connection between
blasting and damages.
We request the properly to be re-inspected and the result to be compared with the pre-blasting
inspection done earlier, at your expense. Proper action should then be based on the damage
assessment. We also request the rights to compensation for any hidden damage(s) being found in the
future.
Sincerely,
Per Ame Lagervall Anita Lagervall
3525 Calle Gavanzo
Carlsbad, CA 92009
Work Ph: (760) 602-7217
Home Ph: (760) 632-7638
E-mail: plaqervallgjadelphia.net
CC: City of Carlsbad
/ Planning Department
1635 Faraday Avenue
Carlsbad, CA 92008
DEVELOPMENT
VIA HAND DELIVERY
January 8, 2002
<gV 1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
Mr. Don Neu
Senior Planner ,
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314 - • . .
Re: Mitigation, Monitoring and Reporting Program Section 4.9-1
Dear Don:
Enclosed please find the Villages of La Costa Travel Demand Management Plan for
Construction Traffic prepared by Linscott, Law & Greenspan. This management plan is intended
to satisfy Condition 4.9-1 of the Mitigation, Monitoring and Reporting Program.
I anticipate that you will sign off on this condition as being satisfied. If you have additional
requirements or if you have any questions or need any further information, please don't hesitate
to call me at 760/929-2701 ext. 103 or e-mail at iiackson@moiTowdevelopment.com.
Sine rely,
Jame s M. Jackson
Senior Vice President
JMJ: jmj
cc Jack Henthorn - Henthorn Associates (w/enclosures)
Tim O'Grady - Morrow Development (w/enclosures)
&
n
Enclosures 1
LINSCOTT
LAW &
GREENSPAN
ENGINEERS
VILLAGES OF LA COSTA
TRAVEL DEMAND MANAGEMENT PLAN
FOR CONSTRUCTION TRAFFIC
CARLSBAD, CALIFORNIA
INTRODUCTION
The following Travel Demand Management (TDM) plan for construction traffic has been
prepared to maximize the people-moving capability of the transportation system by
either increasing the number of persons in a vehicle, or by influencing the time of, or
need to, travel. To accomplish these types of changes, TDM programs rely on
incentives or disincentives to make these shifts in behavior attractive. An alternative to
individual choice can be achieved by employer's requirements.
GOAL
The primary goal of this plan is to reduce the number of vehicles using the roadway
system while providing a wide variety of mobility options to those who wish to travel.
The objective is to increase the vehicle occupancy rate to 1.5 people per vehicle.
TDM PLAN
A TDM plan can be implemented through one or more of the following choices:
1. Meeting off-site to vanpool on-site
2. Utilizing a rideshare match list
3. Providing on-site food services
4. Sharing a common errand person
5. Having off-peak work schedules
6. Using assigned routes
Meeting at an off-site location, such as a contractor's office, and then vanpooling to the
work site will increase the vehicle occupancy rate. This will also help is reducing the on-
site parking demand, which can also interfere with heavy machinery.
Having a rideshare match list will provide the workers with the information necessary to
carpool.
By providing on-site food services, off-site trips can be reduced or eliminated during the
lunch hour.
LINSCOTT
LAW &
GREENSPAN
ENGINEERS
Having a common person or a single contractor combining off-site errands will reduce
the overall number of trips originating from the construction site.
Typically, construction work starts and ends at different peak periods as compared to
the commuter peak periods. However, other construction traffic such as deliveries
anticipated during the commuter peak periods could be shifted when possible.
Lastly, as multiple routes are typically available to reach construction sites, requests can
be made to follow specific routes that are less congested and or to avoid community
sensitive routes.
STRATEGIES
To implement a TDM plan, incentives, disincentives or obligations are necessary.
Examples of TDM strategies include:
1. Providing financial/time incentives
2. Imposing financial/time disincentives
3. Including a contractual obligation
Financial incentives can vary widely; however, with the primary goal would be to create
enough of a monetary incentive that worker would follow a TDM plan. Time incentives
could vary from reducing the workday to shifting the start and end times of the workday.
Disincentives ar e bas ically t he o pposite o f t he inc entives I isted abo ve, which may
include penalties for not following start/end times or for not carpooling.
All construction contracts shall contain an obligation that contractors use their best
efforts to implement a TDM plan as outlined in this report.
RECOMMENDATIONS
It is recommended that this TDM plan be disseminated to all contractors to the Villages
of La Costa project.
DEVELOPMENT , -.
VIA HAND DELIVERY
Carlsbad, CA 92008
January 10, 2002 ,
phone: 760 929-2701
Mr. Don Neu
Senior Planner fax: 760 929-2705
City of Carlsbad ' ,
1635 Faraday Avenue
Carlsbad, CA 92008-7314 •
Re: MM&RP Conditions 4.4-24A, 4.4-24B, 4.4-25, 4.4-26
Dear Don:
Enclosed please find a copy of a letter regarding Oaks Village Pre-construction Raptor and
Gnatcatcher Survey Results from Helix Environmental Planning dated January 8, 2002. This
survey was performed to determine the presence of nesting raptors and gnatcatchers. The results
include the observation of one active raptor nest and no nesting gnatcatchers. The raptor nest has
been plotted on the grading plans submitted to the city along with 200' radius that indicates there
should be no disturbance to this nest by the Oaks South grading operation.
Based on providing you the results of this survey, we have completed the requirements of
MM&RP Condition 4.4-24B. We believe that by plotting the active raptor nest on the grading
plans along with the 200' radius with clear instructions that no grading activity shall take place
within the radius, we have meet the Condition 4.4-24B. By providing you the results of the
gnatcatcher survey indicating no nesting birds, we believe we have met Condition 4.4-26.
Condition 4.4-25 applies to gnatcatcher mating season, and as such, we will schedule another
gnatcatcher survey for the week before the mating season to identify any nesting birds within or
adjacent to the grading operation. Based on the results of this survey, the mitigation measures
prescribed in Condition 4.4-25 will be applied.
I anticipate that you will sign off on these conditions as being satisfied. If you have additional
requirements or if you have any questions or need any further information, please don't hesitate
to call me at 760/929-2701 ext. 103 or e-mail at i iackso.n@morrowdevelopment.com.
Sincerely,
.Jackson
Vice President
JMJ:jmj
cc Jack Henthorn - Henthorn Associates (w/enclosures)
Enclosures 1
Jan-l.O-02 O8 : O4A P. 02
/W f.fl /Wt'-va Blvd., Suite
La Mesa, Ci\ 9t94
fax (619) 462-0552
phone (61$) 462-1515
January 8, 2002 MDI-06
Mr. Jim Jackson
Morrow Development
1903 Wrighl Place
Suite 180
Carlsbad, California 92008
Subject: Oaks Village reconstruction Raptor and Gnatcatcher Survey Results
Dear Mr. Jackson:
This letter is written to report on the results and conclusions of a survey for nesting
raptors and coastal California gnatcatchers (Polioptila califomica californica) conducted
January 4, 2UU2. The survey was conducted to determine the potential for project-
related, effects on nesting raptors and gnatcatchers.
Methods
The survey was conducted in the area south of the high-power utility lines that bisect
the Oaks Property. This area corresponds with the first phase of development of the
Oaks Village, proposed to be initiated in spring of this year. The entire area was
walked and binoculars of 7X36 power were used to aid in bird identifications and
observations of behavior. Nesting activities, for the purposes of this letter, are
defined as gathering of nesting materials, nest-sittirtg, copulation, feeding on
nestlings, and occupation of a nest site. Any of these activities infer that nesting is
occurring or is imminent.
Results
Four pairs of coastal California gnatcatchers were observed using the area and two
red-tailed hawks (Bwteo jamaicensis) were observed, along with a single raptor nest.
The gnatcatchei pairs were observed in both the east and west portions of the survey
area. Two pairs were on the large hill to the east, while the other two pairs were
along the dirt road to the west. None of the gnatcatcher pairs exhibited signs of
nesting behavior, but rather all were foraging in low brush.
The two red-tailed hawks observed were in different parts of the site, with one bird
observed on top of a electrical tower and the other flying over the eastern part of the
site. These birds potentially constitute a pair, although no observations led to that
conclusion.
A single raptor nest, similar to those used by a red-tailed hawks or great-horned owls
(Bub(i virgininnus), was observed in a sycamore (Plutimus Tiicentoaii) in the oak
woodland area. No signs of current occupation of this nest were observed and the
nest is located more than 200 feet from the proposed limits of construction.
Oan-l,O-O2 O8:04A ^^ ^^ P.O3
Letter to Mr. Jim Jackson Page 2 of 2
January 8,2002
Conclusion
Based on the results of our survey, no nesting raptors of gnatcatchers are currently
occupying the site. However, the gnatcatchers will likely begin nesting sometime
after February 15, as they do in most years. The raptor nest appears unoccupied at
present, but Ihere is a possibility that 1) it was occupied and the residents were
temporarily absent during the survey or 1) it will become occupied as the season
progresses. Regardless, the location of the raptor nest is outside more than 200 feet
from grading limits and if the nest were to become occupied the noise would still not
be an issue due to that distance.
If you have any questions or comments regarding this letter, please call me.
Sincerely,
Scott Taylor
Project Biologist
DEVELOPMENT
VIA HAND DELIVERY
1903 Wright Place, Suite 180
.Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
January 8, 2002
Mr. Don Neu
Senior Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Re: Mitigation, Monitoring and Reporting Program Conditions 4.4-13, 4.4-14 & 4.4-15
Dear Don:
Enclosed please find a copy of the California Department of Fish and Game Agreement
Regarding Proposed Stream or Lake Alteration Notification No.5-349-99. This is our "1603
Permit". This is the last of the permits required under Mitigation, Monitoring and Reporting
Program Conditions 4.4-13, 4.4-14 & 4.4-15.
I anticipate that you will sign off on this condition as being satisfied. If you have additional
requirements or if you have any questions or need any further information, please don't hesitate
to call me at 760/929-2701 ext. 103 or e-mail at ijackson@.morrowrdevelopment.com.
Sinderely,
M. Jackson
Senior Vice President
JMJ: jmj
cc Jack Henthorn - Henthorn Associates (w/enclosures)
Enclosures 1
01/38/2002 13:52 858467423 DFG REGIONS PAGE 02/88
STATE OF CALIFQRNIA-THE RESOURCES AGENCY GRAY DAVIS.,
DEPARTMENT OF FISH AND GAME
South Coast Region
4949 Viewrldfla Avenue
San Diego, California 92123
(858) 467-4201
FAX (S58) 467-4235
January 08, 2002
Real Estate Collateral Management Company
Attn: Fred Arbuckle
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Pear Mr. Arbuckle:
Enclosed is Streambed Alteration Agreement 5-349-99 that authorizes work on the
Villages of La Costa project impacting Encinitas Creek in San Diego County. This action is
authorized under Section 1600 of the Fish and Game Code and has been approved by the
California Department of Fish and Game. Pursuant to the requirements of the California
Environmental Quality Act (CEQA), the Department filed a Notice of Determination (NOD) on
the project on Ol /6K/02~ Under CEQA regulations, the project has a 30-day
statute of limitations on court challenges of the Department's approval under CEQA
The Department believes that the project fully meets the requirements of the Fish and
Game Code and CEQA However, if court challenges on the NOD are received during the 30-
day period, then an additional review or even modification of the project may be required. If no
comments are received during the 30-day period, then any subsequent comments need not be
responded to. This information is provided to you so that if you choose to undertake the project
prior to the close of the 30-day period, you do so whh the knowledge that additional actions may
be required based on the results of any court challenges that are filed during that period.
Please contact Tamara Spear at (858) 467-4223 if you have any questions regarding the
Streambed Alteration Agreement.
Sincerely,
C.F, RaysBrook
Regional Manager
Enclosure
cc: Tamara Spear
01/408/2002 13:52 8584G74235 DFG REGIONS ^ . PAGE 03/08
CALIFORNIA DEPARTMENT OF FISH AND GAME
4949 Viewridge Avenue
San Diego, California 92123
Notification No.5-349-99
AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THIS AGREEMENT, entered into between the State of California, Department of Fish
and Game, hereinafter called the Department, and Fred ArbuckJe. of Real Estate
Collateral Management Company. State of California . hereinafter called the Operator, is
as follows:
WHEREAS, pursuant to Section 1603 of California Fish and Game Code, the Operator,
on the 18th day of November. 1999. notified the Department that they intend to divert or
obstruct the natural flow of, or change the bed, channel, or bank of, or use material from
the streambed(s) of, the following water(s): fifteen unnamed drainages, tributaries
Encinitas Creek and San Marcos Creek. San Diego County, California, Section
31.32.23.24.25.26 Township12_ Range 3W. 4W .
WHEREAS, the Department (represented by Tamara Spear) has determined that such
operations may substantially adversely affect those existing fish and wildlife resources
within unnamed drainages, tributaries to San Marcos Creek, specifically identified as
follows: Birds: coastal California qnatcatcher (Polioptila califomica califomica). least
Bell's vireo (Vireo belfn pusilfus). southwestern willow flycatcher (Emoidonax trailln
extimus). California homed lark (Eremophila alpestris acfia). southern California rufous-
crowned sparrow (Aimophila ruficeps canescensY Bell's saoe sparrow (Amphisptza belli
belli], burrowing pwi (Athene cunicularia). northern harrier (Circus cvaneus). yellow
warbler (Dendroica petechra brewsteri). loggerhead shrike (Lanius ludovitianus). vellow-
breasted chat (Icteria virens). Cooper's hawk (Accipiter coopern, red-shouldered hawk
(Buteo lineatus). red-tailed hawk (Btrteo iamaicensis). white-tailed kite (Banus
caeruleus): Reptiles: side-blotched lizard (Ufa stansburiana). Great Basin fence lizard
(Scetoporus occidentalis): Amphibians: Pacific tree frog (Hvla reailtaY western soadefoot
(Spea hammondih: Mammals: northwestern San Diego pocket mouse (Chaetodipus
fallax follax). San Diego black-tailed iackrabb'rt (Leouscalifomicus bennettti). San Dteao
Desert woodrat (Neotoma leoida intermedia}. California around squirrel (Spermophilus
beechevt). coyote (Canis latrans). Botta's pocket oooher (Thomomvs bottaeY southern
grasshopper mouse (Onvchomvs torridus ramonaY Plants: Del Mar manzanita
(Arctostaohyfos alandulosa ssp. crassifoFia). thread-leaved brodiaea (Bnxfiaea filifolia\
summer hollv (Comarostaphvlis diversffolia SSD. diversifoKaY Palmer's QraDPlino hook
(Hamaaonella oalmeri}. wart-stemmed ceanothus (Ceanothus verrucosus). Enaelmann
Oak (Quercus enaelmannii). ashv spike-moss (Selaainella dnerascens). Orcutfs
brodiaea (Brodiaea orcuttift. sticky-leaved liveforever (Dudleva visdda). San Dieoo
aoldenstar (Muilla clevelandii). California adder's tongue (Qphioalossum califomicum).
California adolohia (Adotohia califomica). San Diego marsh elder (Iva havesiana).
southwestern soinv rush (Juncus acutusY These plants and wildlife are associated with
riparian woodland, southern willow scrub, mulefat scrub, freshwater marsh, vernal pool,
eucalyptus woodland. floodplain scrub and surrounding Piegan coastal sage scrub, southern
maritime chaparral, native grassland, southern mixed chaparraj. non-native grassland, open
water, southern mixed chaparral/chamise chaparral which provide habitat for such species.
Page 1 of 6
0U88/2082 13:52 85846742K DFG REGIONS ^ PAGE 04/08
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER 5-349-99
THEREFORE, the Department hereby proposes measures to protect fish and
wildlife resources during the Operator's work. The Operator hereby agrees to accept the
following measures/conditions as part of the proposed work.
If the Operator's work changes from that stated in the notification specified above,
this Agreement is no longer valid and a new notification shall be submitted to the
Department of Fish and Game. Failure to comply with the provisions of this Agreement
and with other pertinent code sections, including but not limited to Fish and Game Code
Sections 5650, 5652, 5937, and 5948, may result in prosecution.
Nothing in this Agreement authorizes the Operator to trespass on any land or
property, nor does it relieve the Operator of responsibility for compliance with applicable
federal, state, or local laws or ordinances. A consummated Agreement does not
constitute Department of Fish and Game endorsement of the proposed operation, or
assure the Department's concurrence with permits required from other agencies.
This Agreement becomes effective the date of Department's signature and terminates
December 31. 2006 for project construction only. This Agreement shall remain in effect
for that time necessary to satisfy the terms/conditions of this Agreement.
1. The following provisions constitute the limit of activities agreed to and resolved by this
Agreement. The signing of this Agreement does not imply that the Operator is precluded
from doing other activities at the site. However, activities not specifically agreed to and
resolved by this Agreement shall be subject to separate notification pursuant to Fish and
Game Code Sections 1600 et seq.
2. The Operator proposes to alter the streambed of 15 unnamed drainages, tributaries
to Encinitas Creek and San Marcos Crook to accommodate the development of two
sites, the Greens and Oaks/Ridge, as part of the Villages of LaCosta Master Plan. The
Greens portion of the project site includes the construction of 1,038 residential homes,
7.9 acres of planned-industrial, 7.9 acres of community facility, 27.2-acre park, a 7.2-12
acre school site, with circulation roads, bicycle and pedestrian trails and approximately
238.4 acres of open space. The Oaks/Ridge portion of the project site includes the
construction of 1,352 residential homes, 9.5 acres of SDG&E utility corridor, 6.6 acres
community facility, circulation roads, bicycle and pedestrian trails, and approximately
603.6 acres of open space. The project is located within the southeast quadrant of the
City of Carlsbad, County of San Diego impacting 7.61 acres of streambed.
3. The agreed work includes activities associated with No. 2 above. The project area is
located within fifteen unnamed drainages, tributaries to Encinitas Creek and San
Marcos Creek, San Diego County. Specific work areas and mitigation measures are
described on/in the plans and documents submitted by the Operator, including a "Draft
Program EtR for the Villages of LaCosta Master Plan, prepared bv T& B Planning
Consultants. Inc.. dated January 23. 2001: a "Jurisdictional Delineation for The Greens
Property", prepared bv Helix Environmental Planning. Inc.. dated November 4.1999:
"Jurisdictional Delineation for the Oaks/Ridge Properties, prepared bv Helix
Environmental Planning. Inc.. dated Novembers. 1999: "Final Program EIRforthe
Villages of LaCosta Master Plan', prepared bv T & B Planning Consultants. Inc.. dated
July 16. 2001 and shall be implemented as proposed unless directed differently by this
agreement.
Page 2 of 6
81/.88/2002 13:52 85846742^ DFG REGIONS ^ PAGE 05/88
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER 5^349-99
4. The Operator shall not impact more than 7.61 acres of streambed comprised of 2.47
acres freshwater marsh, 3.00 acres southern willow scrub, 0.27 acres disturbed southern
willow, 0.12 acres mule fat scrub, 0.13 acres tamarisk scrub, 0.76 acres open water, and
0.86 acres unvegetated streambed. Impacts are considered permanent, and shall be
mitigated at a 3:1 ratio on-site. Mitigation for the project shall include the preservation of
36.88 of wetland habitat on-site as outlined in the Habitat Conservation Plan/Ongoing
Multi-Species Plan (HCP/OMSPO) approved June 7,1995 for the project. Preservation
includes 6.48 acres freshwater marsh, 25.65 acres southern willow scrub, 0.23 acres
mule fat scrub, 0.35 acres open water, 0.07 unvegetated streambed, 4.1 acres south •
coast live oak riparian woodland. Mitigation shall also include a 1:1 ratio of in4cind
wetland habitat restoration/creation on-site. The restoration of 7.61 acres of wetland
habitat shall occur on-site at two locations. One site is in the south central portion of La
Costa Oaks within a restored creek channel. The other site is south of the future
alignment of Poinsettia Lane.
5. The Operator shall submit a Conceptual Revegetation, Mitigation and Monitoring Plan
for the 7.61 acre restoration areas identified on-site within 30 days of signing this
Streambed Alteration Agreement. The plan shall include a description of the proposed
numbers, container sizes and planting location by species, monitoring activities
(locatjons, techniques, scheduling, etc.), maintenance operations with emphasis on
watering methods and schedules; the removal of invasive plant species, area treated, •
techniques to be used, and schedule and success criteria for controlling invasive plants;
and any/all other references to revegetation and restoration activities specified by this
agreement. Department approval of that plan is required prior to project
initiation/impacts.
All mitigation shall be installed no later than December 31.2006.
6. The Operator shall not remove vegetation within the stream from March 15 to
September 1 to avoid impacts to nesting birds. However, the Operator may remove
vegetation during this time if a qualified biologist conducts a survey for nesting birds
within 24 hours of the vegetation removal, and ensures no nesting birds shall be
impacted by the project. If nesting birds are present, the Operator shall immediately
notify the Department and no work shall occur until the young have fledged and
wfll no longer be impacted by the project
7. The Operator shall have a qualified biologist onsite daily during any impacts to
vegetation for the purpose of monitoring and enforcing conditions 6,9,14,15 and 17 of
this agreement.
8. No equipment shall be operated in ponded or flowing areas.
9. Disturbance or removal of vegetation shall not exceed the limits approved by the
Department. The disturbed portions of any stream channel shall be restored.
Restoration shall include the revegetation of stripped or exposed areas with vegetation
native to the area.
10. Installation of bridges, culverts, or other structures shall be such that water flow is
not impaired. Bottoms of temporary culverts shall be placed at stream channel grade;
bottoms of permanent culverts shall be placed at or below stream channel grade.
11. Preparation shall be made so that runoff from steep, erodible surfaces will be
Page 3 of 6
01/08/2002 13:52 85846742^ DFG REGIONS ^ PAGE 06/08
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER 5-349-99
diverted into stable areas with little erosion potential. Frequent water checks shall be
placed on dirt roads, cat tracks, or other work trails to control erosion.
12. Water containing mud, silt or other pollutants from aggregate washing or other
activities shall not be allowed to enter a lake or flowing stream or placed in locations that
may be subjected to high storm flows.
13. Structures and associated materials not designed to withstand high seasonal flows
shad be removed to areas above the high water mark before such flows occur.
14. The perimeter of the work site shall be adequately flagged to prevent damage to
adjacent riparian habitat.
15. Staging/storage areas for equipment and materials shall be located outside of the
stream.
16. The Operator shall comply with all litter and pollution laws. All contractors,
subcontractors and employees shall also obey these laws and it shall be the
responsibility of the operator to ensure compliance.
17. If a stream's low flow channel, bed or banks have been altered, these shall be
returned as nearly as possible to their original configuration and width, without creating
future erosion problems, excepting the 7.61 acres of permanent streambed impacts
associated with condition No. 2 above
18. All planting shall have a minimum of 100% survival the first year and 80% survival
thereafter and/or shall attain 75% cover after 3 years and 90% cover after 5 years for the
life of the project. If the survival and cover requirements have not been met, the
Operator is responsible for replacement planting to achieve these requirements.
Replacement plants shall be monitored with the same survival and growth requirements
for 5 years after planting.
19. An annual report shall be submitted to the Department by Jan. 1 of each year for 5
years after planting. This report shall include the survival, 80% cover, and height of both
tree and shrub species. The number by species of plants replaced, an overview of the
revegetation effort, and the method used to assess these parameters shall also be
included. Photos from designated photo stations shall be included.
20. A bond (same bond used for Army Corps of Engineers) for the amount of complete
restoration and land costs shall be submitted to the Department prior to initiation of
construction activities. This amount shall be based on a cost estimate which shall be
submitted to the Department for approval within 30 days of signing this agreement.
The bond shall be approved by the Department's legal advisors prior to its execution,
and shall allow the Department at its sole discretion to recover funds immediately if the
Department determines there has been a default.
22. A biological conservation easement shall be recorded on the preserved portions of
the project to protect existing fish and wildlife resources in perpetuity. The easement
shall be in favor of the Center for Lands Management, the Department or its designated
agent and shall be recorded within one year of signing this agreement, or as extended by
the Department The conservation easement also receive an endowment. The form and
Page 4 of 6
01/08/2002 13:52 85S4&745 DFQ REGIONS ^ PAGE 07/081225
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER 5-349-99
content of the easement and endowment shall be approved by the Department's legal
advisors prior to its execution.
23. Access to the work site shall be via existing roads and access ramps.
24. Spoil sites shall not be located within a stream, where spoil shall be washed back
into a stream/lake, or where it will cover aquatic or riparian vegetation.
25. Raw cement/concrete or washings thereof, asphalt, paint or other coating material,
oil or other petroleum products, or any other substances which could be hazardous to
aquatic life, resulting from project related activities, shall be prevented from
contaminating the soil and/or entering the waters of the state. These materials, placed
within or where they may enter a stream/lake, by Operator or any party working under
contract, or with the permission of the Operator, shall be removed immediately.
26. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or
washings thereof, oil or petroleum products or other organic or earthen material from any
construction, or associated activity of whatever nature shall be allowed to enter into or
placed where it may be washed by rainfall or runoff into, waters of the State. When
operations are completed, any excess materials or debris shall be removed from the
work area. No rubbish shall be deposited within 150 feet of the high water mark of any
stream or lake,
27. No equipment maintenance shall be done within or near any stream channel where
petroleum products or other pollutants from the equipment may enter these areas under
any flow.
28. The Operator shall provide a copy of this Agreement to all contractors,
subcontractors, and the Operator's project supervisors. Copies of the Agreement
shall be readily available at work sites at all times during periods of active work
and must be presented to any Department personnel, or personnel from another agency
upon demand.
29. The Department reserves the right to enter the project site at any time to ensure
compliance with terms/conditions of this Agreement.
30. The Operator shall notify the Department, in writing, at least five (5) days prior to
Initiation of construction (project) activities and at least five (5) days prior to
completion of construction (project) activities. Notification shall be sent to the
Department at 4949 Viewridge Avenue, San Diego, CA 92123 Attn: Tamara A. Spear
31. It is understood the Department has entered into this Streambed Alteration
Agreement for purposes of establishing protective features for fish and wildlife. The
decision to proceed with the project is the sole responsibility of the Operator, and is not
required by this agreement It is further agreed all liability and/or incurred cost
related to or arising out of the Operator's project and the fish and wildlife
protective conditions of this agreement, remain the sole responsibility of the
Operator. The Operator agrees to hold harmless the State of California and the
Department of Fish and Game against any related claim made by any party or parties for
personal injury or any other damages.
32. The Department reserves the right to suspend or cancel this Agreement for other
Page 5 of 6
DFG REGIONS PAGE 08/0801/08/2002 13:52 8584674»
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER 5-349-99
reasons, including but not limited to the following:
a. The Department determines that the information provided by the Operator in support
of the Notification/Agreement is incomplete or inaccurate;
b. The Department obtains new information that was not known to it in preparing the
terms and conditions of the Agreement;
c. The project or project activities as described in the Notification/Agreement have
changed;
d. The conditions affecting fish and wildlife resources change or the Department
determines that project activities will result in a substantial adverse effect on the
environment.
33. Before any suspension or cancellation of the Agreement, the Department will notify
the Operator in writing of the circumstances which the Department believes warrant
suspension or cancellation. The Operator will have seven (7) working days from the date
of receipt of this notification to respond in writing to the circumstances described in the
Department's notification. During the seven (7) day response period, the Operator shall
immediately cease any project activities which the Department specified in its
notification. The Operator shall not continue the specified activities until that time when
the Department notifies the Operator in writing that adequate methods and/or measures
have been identified and agreed upon to mitigate or eliminate the significant adverse
effect.
34. The Operator may request an extension of this agreement prior to its termination.
Extensions may be granted for up to 1 2 months from the date of termination of the
agreement and are subject to Departmental approval. The extension request and fees
shall be submitted to the Department's Region 5 office at the above address. If the
Operator fails to request the extension prior to the agreement's termination, then the
Operator shall submit a new notification with fees and required information to the
Department. Any activities conducted under an expired agreement are a violation of Fish
and Game Code Section 1600 et seq.
CONCURRENCE
Real Estate collateral California Dept of Fish and GameManagement Company, A
Delaware Corporation
By: Morrow Development, Inc.,
Its £
By:
Free
cant
'ArBtTckle, President
(signajdre) (date
C.F. Ravsbrook. Regional Manager
(title)
Prepared by: Tamara Spear, ES III
Page 6 of 6
DEVELOPMENT
1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
/~/O'Ca
January 3, 2002
Mr. Don Neu
Principal Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Dear Don:
After a thorough review of the 1996 Parks Agreement, I find that we are in compliance
with all provisions. We have set aside, by virtue of our irrevocable offer of dedication,
in excess of the requisite 32.9 acres of park land, which far exceeds the demand of our
future Villages of La Costa Master Plan.
i
Section 3.3 of the Agreement states that we have 6.831 acres of Existing Parkland Credits
after building Arroyo La Costa (La Costa Valley). There was a mathematical mistake in
Agreement, the actual number or Credits is 6.381. We are currently finaling the map for
PA 3.8 and 3.9, containing 161 Lots. We have not sold these lots to another entity, so we
are not transferring Parkland Credits. However, 161 lots will generate 373.198 persons
and a parks need of 1.119 acres. We will then use 1.119 acres of Existing Parkland
Credits for these two areas. This will leave 5.261 acres of Existing Parkland Credits after
they are used for the final map.
In Section 4 of the 1996 Agreement, it states that the City shall make a determination as
to how much of the Alga Norte Park it will take. I understand that the City desires all of
the park. Therefore, the City will accept all 34.4 acres designated in the Master Plan as
PA 1.4 and 1.5. Consistent with this assumption, the school site will be moved to PA 1.7
which will reduce the yield of that Planning Area by 47 lots. I have attached a sheet of
calculations regarding our park needs at build-out and reflecting the above assumptions.
Fred M. Arbuckle
President
Villages of La Costa
Park Credit Calculation
As of: January 4, 2002
Lot
Village Planning Area Size
Greens 1.3 3,500
Greens 1.16 3,500
Greens 1.17 4,500
Greens 1.7* 5,000
Greens 1.11,1.13,1.14 5,000
Greens 1.6 6,000
Greens 1.9 6,000
Greens 1 .8 7,500
Greens 1.10, 1.12 9,000
Greens 1.15- Affordable Apt.
Greens 1.1 - Industrial 7.90
Greens 1 .5 - Park 34.40
Greens 1.4 -School* NA
Greens 1.2- Daycare/POW 7.90
Greens
Oaks-N 3.7 3,500
Oaks-N 3.1 5,000
Oaks - N 3.4, 3.5 5,000
Oaks-N 3.3 6,000
Oaks-S 3.9 6,000
Oaks-S 3.10,3.11 6,000
Oaks-S 3.8 7,500
Oaks-S 3.12,3.13,3.15 7,500
Oaks-S 3.14 10,000
Oaks-N 3.6 - Affordable Apt.
Oaks - N 3.2 - Community Facilities 6.4
Oaks
Ridge 2.6 3,500
Ridge 2.5 6,000
Ridge 2.1,2.2 7,500
Ridge 2.3, 2.4 10,000
Ridge
All Villages
Population Generation Rate per Residence X
Projected Population
Acres required per 1 ,000 residents
Park Acres required
Credit remaining from La Costa Valley
Remaining obligation for VLC
Park Acreage
Dedication to fulfill VLC requirement
Acres that City will Purchase
Purchase Price per Acre
#Lots
44
96
107
80
125
96
74
87
102
180
991
45
76
91
138
88
89
74
194
66
171
1,032
58
66
93
103
320
2,343
2.318
5,431
3.0
16.293
(6.381)
9.912
34.400
(9.91)
24.49
175,000
Total City Purchase Price $4,285,361
* Assumes that School Site is moved to PA 1.7 and
47 lots are lost
DEVELOPMENT
January 3,2002
Mr. Don Neu
Principal Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Dear Don:
I have forwarded to you, under separate cover, copies of correspondence from USFWS,
CDFG and your City Manager regarding the acceptability of the offsite mitigation
parcels. We refer to these parcels by their seller's names, Almeir and Chomas. The
Almeir parcel is located just east of our La Costa Oaks property. It is Assessor Parcel
Numbers APN 223-070-04, APN 223-070-13, and APN 223-072-02. The Chomas parcel
is located much further east, between Elfin Forest and the Bridges project. It is Assessor
Parcel Numbers APN 264-041-19-00 and 264-11 l-fitt-GO. I have attached a photographic
representation of the "approximate" location and configuration of these parcels. They are
the same parcels that have been approved by the various agencies and acquired by RECM
for future mitigation. It is our understanding that the $150,000 that was to be paid by
RECM, to the City of Carlsbad for the HMP, was permitted to be used for the acquisition
of these properties. v
3 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
-fax: 760 929-2705
Sincere!
uckle
President
1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
D EVE L 0 P M E N 1
VIA HAND DELIVERY
January 17,2002
Mr. John Martin
Turf Biologist
U.S. Fish & Wildlife Service
2730 Loker Avenue West
Carlsbad, CA 92008-6603
Re: Villages of La Costa HCP/OMSP
Dear John:
Enclosed please find a copy of a letter to Center for Natural Lands Management, signed by them,
acknowledging receipt of the initial capital contribution and endowment for the La Costa Oaks
and Ridge portion of the La Costa Preserve on January 16,2002.1 am forwarding this letter to
you for your files.
If you have any questions or need any additional information, please don't hesitate to call me at
760/929-2701 ext. 103 ore-mail atiiackson(o),morrowdevelopment.com.
Sincerely,
Jame& M. Ja'cks
Senior Vi6e President
JMJ:jmj
bcc: Sherry Teresa — Center for Natural Lands Management
David Lawhead - California Department of Fish and Game
Don Neu - City of Carlsbad
Don Rideout - City of Carlsbad
Enclosures 1
M
VIA HAND DELIVERY
January 16,2002
1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
Ms. Sherry Teresa
Director
Center for Natural Lands Management
425 East Alvarado Street, Suite H
Fallbrook, CA 92028
Re: La Costa Preserve
Dear Sherry:
Enclosed please a check in the amount of $891,962.00 payable to the Center for Natural Lands
Management representing the contribution by Real Estate Collateral Management Company of
the Initial and Capital Contribution and Endowment for Phase 1 (La Costa Oaks and Ridge) of
the La Costa Preserve as defined in the PAR prepared by you dated July 3,2001.
Please have someone in your office execute the acknowledgement of receipt for our use to verify
this contribution has been made pursuant to the requirements of the HCP/OMSP. As always, it
has been a pleasure doing business with you and I look forward to working with you and your
staff in the future. If you have any questions, please don't hesitate to call me at 760/929-2701
ext. 103 ore-mailatjjackson@jnonx3wdevelopment.com.
Sincerely,
[James M. Jackson
\Seni6r Vice President
JMJ:jmj
cc: none
Enclosures: 1
£—*=.
DEVELOPMENT
VIA FAX AND FIRST CLASS
January 14, 2002
ffl 1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
fax: 760 929-2705
Mr. Don Neu
Senior Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Re: MM&RP, Conditions #4.4-A
Dear Don:
Enclosed please find a letter from the National Fish and Wildlife Foundation confirming, our
payment of $50,000 to them to be used for gnatcatcher research. This letter should satisfy
Conditions 4.4-A of the MM&RP. If you require any further information, please contact me as
soon as possible.
If you have additional requirements or if you have any questions or need any further information,
please don't hesitate to call me at 760/929-2701 ext. 103 or e-mail at
iiackson@morrowdevelopment.com.
SiAcerely,
"Jackson
ior Vice President
J:jmj
cc Jack Henthorn - Henthorn Associates (w/ enclosures)
Sherry Teresa - Center for Natural Lands Management (w/ enclosures)
Enclosures 1
Thomas E. Smith. Land Consultant
National Fish and Wildlife Foundation
11915 El Dorado Place NE, • j n
Albuquerque, New Mexico 87111
Telephone (505) 292-2143
Fax (505)275-9310
RECEIVED
Sent By Priority Mail
MORn-' DEVELOPMENT
Fred M. Arbuckle
Morrow Development
1903 Wright Place, Suite 180
Carlsbad, California 92008
RE: Contribution To California Gnatcatcher Fund.
Dear Mr. Arbuckle:
This is to acknowledge receipt of your check No. 2497, dated January 10,2002 in the
amount of $50,000.00 payable to the National Fish and Wildlife Foundation
(Foundation).
Our Foundation has placed your $50,000.00 contribution in the California Gnatcatcher
Conservation Fund Project Account #97-166, to be designated by the Foundation as the
segregated Morrow Development Subaccount. This Fund was established by our
Foundation in 1997 pursuant to an Agreement with the U.S. Fish and Wildlife Service
(Service) for the specific purpose of creating a Fund for the management and
conservation of California Gnatcatcher, a federally listed endangered species in
California. The Foundation manages this special segregated Fund for use at the direction
of the Service for these purposes.
We understand from John Martin, Field Biologist at the Carlsbad office, per terms of
your agreement with the Service, this money is to be used for Gnatcatcher Research.
Your donation and contribution to the California Gnatcatcher Fund project is greatly
appreciated.
Sincerely
.^^L^^
Thomas E. Smitn
Land Consultant (NFWF)
CC: John Martin, (Service) Carlsbad Office
Whitney Tilt, (NFWF) Director of Conservation Programs
Constance Singleton, (NFWF) Director of Finance & Administration
"01/14/2002 MON 17:00 FAX 7609292705 MORROW DEVELOPMENT ->•+-> CITY - PLANNING DEPT il 001/003
FAXTRANSMITTAL
DEVELOPMENT
TO: City of Carlsbad PHONE: 760-602-4600
ATTN: DonNeu FAX: 760-602-8559
FROM: Jim Jackson DATE: January 14,2002
RE: MM&RP, Conditions #4.4-A NO OF PAGES: 3 (including cover)
0 URGENT 0 FOR REVIEW AND COMMENTS O PHOTOCOPY
0 PLEASE REPLY X FOR YOUR INFORMATION 0 AS REQUESTED
NOTES: ^ -,
cc: Jack Henthorn - Jack Henthorn & Associates
Sherry Teresa - Center for Natural Lands Management
1903 Wright Place, Suite 180, Carlsbad, CA 92008 Phone: 760 929-2701 Fax: 760 929-2705
-01/14/2002 MON 17:00 FAX 7609292705 MORROW DEVELOPMENT -»-»-> CITY - PLANNING DEPT 0002/003
DEVELOPMENT
. VIA FAX AND FIRST CLASS 1903
Carlsbad, CA 9260?
January 14,2002 phone: 760 929-2/01
fax: 760.929-2705
Mr. Don Neu
Senior Planner
City of Carlsbad
1635-Faraday Avenue
Carlsbad, CA 92008-7314 . .
Re: MM&RP, Conditions #4.4-A
Dear Don:
Enclosed please find a letter from the National Fish and Wildlife Foundation confirming, our
payment of $50,000 to them to be used for gnatcatcher research, This letter $hould satisfy
Conditions 4.4-A of the MM&RP. If you require any further information, please contact me as
soon as possible.
If you have additional requirements or if you have any questions or need any further information,
please don't hesitate to call me at 760/929-2701 ext. 103 or e-mail at
i iackson(S),morro wdevelooment. com.
SiAcerely,
ackson
ior Vice President
cc Jack Henthom - Henthorn Associates (w/ enclosures)
Sherry Teresa - Center for Natural Lands Management (w/ enclosures)
Enclosures 1
"01/14/2002 MON 17:00 FAX 7609292705 MORROW DEVELOPMENT •+->•» CITY - PLANNING DEPT 0003/003
Thomas E. Smith. Land Consultant
National Fish and Wildlife Foundation
11915 El Dorado Place NE, January 11,2002
Albuquerque, New Mexico 87111
Telephone (505) 292-2143
F»x (505)275-9310
RECEIVED
t|\MSent By Priority Mail Jm
rw«* DEVELOPMENT
Fred M. Arbuckle
Morrow Development
1903 Wright Place, Suite 180
Carlsbad, California 92008
RE: Contribution To California Gnatcatcher Fund.
Dear Mr. Arbuckle:
This is to acknowledge receipt of your check No. 2497, dated January 10,2002 in the
amount of $50,000.00 payable to the National Fish and Wildlife Foundation
(Foundation),
Our Foundation has placed your $50,000.00 contribution in the California Gnatcatcher
Conservation Fund Project Account #97-166, to be designated by the Foundation as the
segregated Morrow Development Subaccount. This Fund was established by our
Foundation in 1997 pursuant to an Agreement with the U.S. Fish and Wildlife Service
(Service) for the specific purpose of creating a Fund for the management and
conservation of California Gnatcatcher, a federally listed endangered species in
California. The Foundation manages this special segregated Fund for use at the direction
of the Service for these purposes.
We understand from John Martin, Field Biologist at the Carlsbad office, per terms of
your agreement with the Service, this money is to be used for Gnatcatcher Research.
Your donation and contribution to the California Gnalcatchcr Fund project is greatly
appreciated.
Sincerely
Thomas E. Smif
Land Consultant (NFWF)
CC: John Martin, (Service) Carlsbad Office
Whitney Tilt, (NFWF) Director of Conservation Programs
Constance Singleton, (NFWF) Director of Finance & Administration
01/10/2002 THU 15:29 FAX 7609292705 MORROW DEVELOPMENT ilOOl/004
FAX TRANSMITTAL
D
TO:
FROM:
RE:
E V £ L 0 P M E N T
Ron Rouse, Luce Forward FAX:
Don Neu, City of Carlsbad
John Martin, USFWS
Don Rideout, City of Carlsbad
David Lawhead, CA Dept Fish
StGame
Fred Arbuckle DATE:
National Fish & Wildlife NO OF PAGES:
Foundation Check and FedEx
receipt
858-523-4307
760-602-8559
760-431-9624
760-602-8559
858-467-4235
January 10, 2002
4 (including cover)
0 URGENT
0 PLEASE REPLY
0 FOR REVIEW AND COMMENTS
XX FOR YOUR INFORMATION
0 PHOTOCOPY
0 AS REQUESTED
NOTES:
Enclosed is a copy of Check no. 2497 for $50,000 to the National Rsh & Game Foundation and
the accompanying cover letter, as well as the FedEx receipt.
1903 Wright Place. Suite 180. Carlsbad. CA 92008 Phone: 760 929-2701 Fax: 760 929-2705
-.01/10/2002 THU 15:29 FAI 7609292705 MORROW DEVELOPMENT H002/004
DEVELOPMENT
1903 Wright Place, Suite 180
Carlsbad, CA 92008
phone: 760 929-2701
Delivered via Federal Express '
fax'. 760 929-27O5
January 10,2002
National Fish and Wildlife Foundation
Attnc Tom Smith
11915 El Dorado Place Northeast
Albuquerque, New Mexico 8711-1
Dear Mr. Smith, •
In conjunction with the Fieldstone/La Costa Habitat Conservation Plan/OMSP,
dated June 1995,1 am forwarding herewith a check in the amount of Fifty Thousand
Dollars,($50,000). Per the terms of this agreement the above amount is to be used for
Gnatcatcher Research. I was directed by Mr. John Martin of the U.S. Fish and Wildlife
Service, Carlsbad Field Office, to forward these funds to you for deposit in the .
"California Gnatcatcher Fund"; NFWF Project #97-166. It is my understanding that you
. ' will notify Mr. Martin (760) 431-9440, immediately upon receipt.
Thank you for your assistance in this matter. If you have any questions please
contact me immediately.
Sine
FredM. Arbuckle
Morrow Development
Attachment: Check Number 2497, for 550,000
CC: Mr. Ron Rouse, Luce-Forward
Mr. Don Neu, City of Carlsbad
Mr. Mm Martin, USFWS
Mr. Don Rideout, City of Carlsbad
Mr. David Lawhead, Calif. Dept. Fish and Game
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DEVELOPMENT
VIA HAND DELIVERY !903 Wright Place, Suite 180
Carlsbad, CA 92008
January 11,2002 phone: 760 929-2701
fax: 760 929-2705
Mr. Don Neu
Senior Planner
City of Carlsbad •
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Re: MM&RP, Conditions #4.4-25 and 4.4-26
Dear Don:
Enclosed please find the Biological Noise Mitigation Monitoring Plan prepared by Investigative
Science and Engineering, Inc. dated January 10, 2002. This information combined with the other
information forwarded to you previously should satisfy all the conditions of the above referenced
conditions. If you require any further information, please contact me as soon as possible.
If you have additional requirements or if you have any questions or need any further information,
please don't hesitate to call me at 760/929-2701 ext. 103 or e-mail at
ijackson@morrowdevelopment.com.
Sincerely,
Jam
er
s M. Jackson
)r Vice President
JMJ:jmj
cc Jack Henthorn - Henthorn Associates (w/o enclosures)
Barry Jones - Helix Environmental Planning (w/enclosures)
Enclosures 1
3545 Cam/no Del Rio South, Suite E
San Diego, CA 92108-4003
Phone/Fax: 619-640-9379 / 619-640-0763
www.iseinc.ws
January 10, 2002
Mr. Don Neu
City of Carlsbad Planning Department
1635 Faraday Road
Carlsbad, CA 92008-7314
RE: VILLAGES OF LA COSTA MASTER PLAN - CARLSBAD CA
BIOLOGICAL NOISE MITIGATION MONITORING PLAN
Dear Don:
At the request of Morrow Development, Investigative Science and Engineering
(ISE) has been retained as the technical consultant to address biological noise mitigation
issues associated with the proposed construction of the Villages of La Costa
Development area. Per our discussion, the requisite mitigation monitoring protocol is
provided within this letter.
BACKGROUND
Pursuant to the adopted Mitigation Monitoring and Reporting Program for the
Villages of La Costa Master Plan (MP 98-01), Mitigation Measures 4.4-25 and 4.4-26
define the applicable standards pertaining to noise exceedances during the breeding
season for the California Gnatcatcher (Polioptila California). Construction noise
generated by this project is regulated by the United States Fish and Wildlife Service
(USFWS) and the California Department of Fish and Game for its effect on the federally
endangered California gnatcatcher. Resource agencies have theorized that elevated
noise levels can potentially mask songs of these birds, which are used to attract mates
and defend territories.
The San Diego Association of Governments (SANDAG) in a 1990 study entitled
"Comprehensive Species Management Plan for the least Bell's vireo" theoretically
estimated that {traffic} noise levels above 60 dBA Leq in vireo breeding areas may
sufficiently mask the vireo's song and potentially reduce the reproductive success of this
species during their breeding season that occurs from March 1 to September 1. The
SANDAG report conclusions were unclear as to the specific time interval of the
measurement, but it is typically taken as one hour (i.e., Leq-h). Leq is the energy-mean
A-wejghted sound level during a measured time interval. It is the 'equivalent' constant
sound level that would have to be produced by a given source to equal the fluctuating
level measured. For most biological monitoring projects, the monitoring interval is taken
as one-hour (denoted as Leq-h).
Scientific and Forensic Engineering Consultants
Don Neii
Villages of La Costa Biological Noise Mitigation Monitoring Plan
January 10, 2002
Page 2 of 3
Although research is on going regarding similar noise impacts to the California
gnatcatcher, in the absence of species-specific data, these same study results are
applied by the Service to this bird species as well.
APPLICABLE SIGNIFICANCE CRITERIA
As indicated previously, specific to the Villages of La Costa Master Plan, the
following grading requirements were adopted:
4.4-25: If clearing or grading occurs during the gnatcatcher breeding season
(February 15 to July 31), and noise levels exceed 60 dBA Leq-h at the edge of the
HCP/OMSP, measures consisting of temporary six-foot high noise berms or other
appropriate noise reduction methods will be required to minimize noise impacts.
4.4-26: Active gnatcatcher nesting site noise levels will be monitored to ensure
that noise levels are maintained at or below 60 dBA Leq-h.
These requirements indicate the need for mitigation monitoring under the
following two conditions, notably, a) periodic monitoring within sensitive habitat areas
identified by the project biologist between February 15 to July 31 of each year for which
construction is planned, and b) implementation of temporary noise mitigation barriers (or
similar applicable methods) to limit exposure in sensitive areas to 60 dBA Leq-h.
RECOMMENDED MITIGATION MONITORING PLAN
Given the above requirements, ISE recommends a mitigation-monitoring plan
consisting of the following:
1. During the time period between February 15 to July 31 of each year for
which construction is planned, periodic random daytime monitoring
occurring twice weekly at nesting areas previously identified by the
project biologist, and, residing within approximately 500-feet of
construction areas, will be performed.
This condition has been found to be adequate by ISE in the past since 500 feet is
the minimum distance required to attenuate a stationary or semi-stationary aggregate
construction noise source of 80 dBA Leq-h to a level of 60 dBA Leq-h. Construction
activities outside this 500-foot zone during the aforementioned breeding season have
been demonstrated in the past to have de minimis impacts for most common
construction activities. Questionable construction operations (such as operation of large
pneumatic devices) could be verified for compliance at the City's request.
2. ISE would prepare a weekly monitoring letter, addressed to the City,
Client, and applicable regulatory agencies (if desired) summarizing the
findings and any applicable mitigation recommendations.
Don Neu
Villages of La Costa Biological Noise Mitigation Monitoring Plan
January 10, 2002
Page 3 of 3
Historically, this condition has been well received by USFWS and CDFG as it
maintains a chronology of events and demonstrates the applicants proactive treatment
of biological noise issues. Finally,
3. Where the projected noise level at a sensitive biological receptor area is
anticipated to exceed 60 dBA Leq-h, ISE will consult with the project
biologist to implement corrective measures to reduce noise levels to
acceptable levels.
This method of projecting the future hourly noise level based upon real time data
sampling (also known as measuring the acoustic dose) worked extremely well for the
Cannon and Faraday Road improvement projected in that it allowed the City to
anticipate the impact before it occurred. This was a great aid in false work removal and
sandblasting phase of the Macario Canyon bridge construction since it allowed ISE to
refine the mitigation based upon a proposed action without generating an impact within
the habitat.
It is anticipated that utilization of the above plan would result in complete
mitigation of sensitive habitat areas with negligible effect on the proposed construction
operations.
Should you have any questions regarding the above conclusions, please do not
hesitate to contact me at (619) 640-9379.
Sincerely,
Rick Tavares, Ph.D.
Project Principal
Investigative Science and Engineering, Inc.
Cc: Fred Arbuckle, Morrow Development
Reed Thornberry, ISE
DEVELOPMENT
VIA HAND DELIVERY - 1 903 Wnght Place, Suite 1 80
Carlsbad, CA 92008
January 11,2002
phone: 760 929-2701
Mr. Don Neu
Senior Planner fax: 760 929-2705
City of Carlsbad
1635 Faraday Avenue
Carlsbad, C A 92008-73 14
Re: MM&RP, Condition #4.4-22C . /[
&&Jd2Q =*31 ^
Dear Don:
Enclosed please find a fully executed copy of a contract between Real Estate Collateral
Management Company and Helix Environmental for construction monitoring. Helix is our
"qualified biologist" that will monitor the project during construction.
With delivery of this document, we believe. that we have met the requirements of Planning
. Condition Resolution 5020, Condition^S^MM&RP, Condition #4.4-22C. If you have further
requirements, please contact me as soon as possible. If you have additional requirements or if
you have any questions or need any further information, please don't hesitate to call me at
760/929-2701 ext. 103 ore-mail at jjackson@morrowdevelopment.com.
Sincerely,
VL Jackson
SeJttion Vice President
JMJ:jmj
cc Jack Henthorn - Henthorn Associates (w/o enclosures)
Enclosures 1
REAL ESTATE COLLATERAL MANAGEMENT
CONSULTING SERVICES AGREEMENT
RECM/Morrow
Consultant: Helix Environmental Planning, Inc.
Contract No: 383
This Consulting Services Agreement (the "Agreement") is made and entered into
this 8th day of January, 2002, by and between REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware corporation (hereinafter called "Company")
and Helix Environmental Planning, Inc., (hereinafter called "Consultant"), in
consideration of the mutual covenants and conditions herein contained.
COMPANY'S AGENT. For all purposes of administration, supervision and
implementation of this Agreement, Company's agent, Morrow Development, Inc., a
California corporation (hereinafter called "Morrow") shall act for Company for all
purposes regarding this Agreement. Consultant hereby acknowledges and understands
that Morrow is acting herein as the agent of Company, and Consultant shall accept and
recognize the actions of Morrow as though it were the contracting party directly.
Morrow is the Development Manager for Company in connection with the real estate
master planned community(s) known as Villages of La Costa (the "Project").
The parties hereto agree as follows:
1. Scope of Work. Consultant shall perform the consulting and associated
professional services as more particularly described on the Scope of Work Exhibit "A"
hereto ("Work") for the Company in accordance with this Agreement and the provisions
contained in any exhibit supplemental hereto which shall be considered a part of this
Agreement. Consultant hereby represents and warrants it has the requisite licenses or
other governmental authorization to perform the Work at all times herein and its license
number is set forth on the signature page.
2. Authorization to Proceed. Consultant shall not commence the consulting
services prior to full execution of the Letter of Authorization attached hereto as Exhibit
"C" ("Authorization") which will outline the amount of compensation to be paid, authorize
any reimbursable charges to be incurred, designate Morrow's direct representative for
this Agreement, specify the schedule for start and completion of the services, and
provide instructions for identification and segregation of the charges.
3. Term of Agreement. This Agreement shall continue in effect until terminated by
either party giving the other not less than 10 days prior written notice. However, if
Company so terminates this Agreement and Consultant is not then in default hereunder,
Company agrees to pay Consultant for all services performed through the effective date
of the notice of termination, provided such work is in conformity with this Agreement and
any Authorization subject to the terms of this Agreement.
Page 1 of 16
4. Termination Cause. Notwithstanding the foregoing, Company or Morrow shall
have the right at any time, in its sole discretion, to terminate this Agreement if the
Consultant fails to timely perform its obligations by giving Consultant written Notice of
Termination, in which event Consultant shall immediately cease all services hereunder.
Such Notice of Termination shall be deemed termination for cause. If Morrow or
Company terminates this Agreement for cause, Company shall have any and all
remedies and rights provided at law or in equity including, without limitation, the right to
offset against any and all sums that may be due to Consultant any and all damages,
costs and expenses incurred or suffered by Company or Morrow by reason of
Consultant's breach or default.
5. Request for Payment. Subject to the provisions of Section 4 above and all other
terms and provisions of this Agreement, Consultant shall be paid for all Work and any
additional completed services authorized in writing and all reimbursable expenses
incurred, to the extent the same were authorized by Company or Morrow pursuant to
this Agreement, through the date of Notice of Termination. Consultant shall submit a
written Request for Payment statement, certification and lien waivers and releases to
Company in the form provided in Exhibits "B" and "B-1" of this Agreement or on a
substitute form as reasonably requested by Company or Morrow.
6. Expense Approval. Before incurring any proposed reimbursable expense not
specifically authorized in this Agreement, Consultant shall obtain Morrow's or
Company's prior written approval of such expense. Company shall reimburse
Consultant on a monthly basis for such pre-approved incurred expenses providing same
are supported by invoice vouchers delivered to Morrow by Consultant and such detail
information and documents as Company or Morrow may reasonably require.
7. Documents. Consultant shall submit status reports periodically as may be
requested by the Company or Morrow. Expenses and reimbursable charges shall also
be reported to the same individual. All design, drawings, specifications, technical data,
and other reports, documents or materials provided to or produced by Consultant in the
performance of its Work under this Agreement (hereinafter "Documents") shall be the
sole property of Company and Company is vested with all rights therein of whatever
kind and however created, including without limitation, all common law and statutory
copyright. Consultant hereby assigns to Company, without additional compensation, all
right, title and interest in all creations, inventions, ideas, designs, copyrightable
materials, trademarks and other technology and rights, (and any related improvements
or modifications), whether or not subject to patent or copyright protection, relating to any
activities of Consultant in performing Work or rendering services under this Agreement.
Consultant shall execute any and all instruments, including further assignments of
interest, as may be required to transfer to Company any and all of Consultant's rights in
and to the Documents and all rights incidental thereto. Consultant agrees that
Company and Morrow shall have access at all reasonable times to inspect and make
copies of all Documents. Consultant shall upon request of Company or Morrow, at their
cost and expense, provide Company or Morrow with reproducible copies of all
Documents. Without Company's prior written consent, Consultant shall not use any of
the Documents it has prepared in connection with this Agreement on any other project
Page 2 of 16
or in connection with services to be rendered to anyone other than Company. Upon
termination or expiration of this Agreement, Consultant shall immediately deliver to
Company or Morrow any original Documents prepared by Consultant in connection with
this Agreement not previously delivered to Company or Morrow. As more particularly
set forth in Section 12, Consultant shall indemnify, defend and hold harmless, Company
and Morrow, and their Affiliates, from and against any claim, damage, cost, loss, or
liability (including court costs and attorneys' fees) arising as a result of any alleged
copyright infringement action or any other objection to Company's Document ownership
or use arising out of or related to use of Documents prepared by Consultant under this
Agreement.
8. Company's Use of Documents. Company shall have the right to reuse the
Documents, in whole or in part, for any other Company project provided that in
connection with such other project, Company shall indemnify Consultant with respect to
all claims for property damage or personal injury arising out of such reuse. The
foregoing indemnity shall not, however, apply if Consultant's services are terminated
due to a breach of its obligations under this Agreement. Consultant may not use, in
whole or in part, any of the Documents nor shall Consultant disclose same or make
same available, in whole or in part, to any third party whomsoever other than as
authorized by Company in writing. Company shall retain ownership of all formal
published reports, studies, computer programs and files, maps, designs, plans,
specifications and other work product prepared by Consultant to be used by Company
in any manner it may find appropriate. Consultant acknowledges that violations
regarding the use of the Documents could result in substantial damages to Company
under this Agreement.
9. Consultant Supervision. Consultant shall supervise and direct all of Consultant's
agents, employees and subcontractors performing Work or services, be responsible for
all methods, sequences and procedures used and be responsible for coordinating all
portions of Consultant's Work. Consultant shall perform the Work using the highest
level of care and skill exercised by or expected by members of the profession currently
practicing under similar conditions for master planned or other communities similar to
the Project in Southern California. Consultant shall promptly supply to Company or
Morrow in writing such other information which is or becomes known, in the course of
performing the services, by Consultant or persons performing services, concerning facts
which may materially affect the planning, marketing, design or construction of
Company's property or Project. At all times in performing its duties hereunder,
Consultant shall coordinate and consult with Company through Morrow to the end that
major decisions as to the Project shall be made by the Company through Morrow.
10. Joint Venture. It is not the purpose or intention of this Agreement to create nor
shall it be construed as creating a joint venture, real estate partnership, commercial
partnership or other business relationship, other than Consultant being an independent
contractor. Consultant shall act as an independent contractor with respect to
performance of Work hereunder and neither it nor any of its employees, agents, or
subcontractors will be deemed for any purpose to be the employee or agent of
Company or Morrow in the performance of services hereunder. No federal, state, city or
Page 3 of 16
other local governmental income or social security taxes will be withheld from
Consultant's compensation except as required by law, and all such taxes will be
reported and paid directly by Consultant. Consultant hereby defends, indemnifies and
holds harmless Company and Morrow, and their Affiliates, for any tax liability of
Company or Morrow, or their Affiliates, directly or indirectly incurred as a result of
Consultant's failure to meet its tax and other obligations, in accordance with Section 12
below.
11. Approval of Subcontractor. No subcontractors shall be used by Consultant in
connection with the Work without Company's or Morrow's prior written approval of such
subcontractor including verification of subcontractor's license (if required), insurance
coverages as provided herein and scope of the Work to be performed by such
subcontractor. Consultant shall be solely responsible for any employee benefits,
including, without limitation, wages, worker's compensation benefits, employment and
social security taxes, and fringe benefits, to which Consultant's authorized
subcontractors, employees or agents may claim to be entitled. Consultant agrees that
only those persons approved by Company or Morrow will be involved directly and on a
regular basis in providing the Work described above and overseeing the performance of
such services, and that such individuals will devote sufficient time to the Work as will be
required to complete the Work consistent with this Agreement.
12. Indemnification. Consultant shall indemnify, defend and hold harmless Company
and Morrow, and their respective affiliates, subsidiaries, agents, members, employees,
representatives, shareholders and officers ("Affiliates"), from any loss, damage, liability,
costs and claims thereof, including without limitation, all court costs and attorneys' fees
arising directly or indirectly out of Consultant's (i) acts or omissions outside the scope of
Consultant's authority; (ii) in breach or default of its obligations under this Agreement;
and (Hi) negligent performance of services under this Agreement, except to the extent
the same results from the sole gross negligence or the willful misconduct of Company,
Morrow or their Affiliates. "Affiliates" also includes any company, partnership or other
entity in which Company or its principals own, directly or indirectly, an actual or
beneficial interest greater than twenty-five percent.
13. Insurance. Without in anyway limiting Consultant's obligations hereunder,
Consultant shall, during the term of this Agreement, maintain the following policies of
insurance with insurers licensed in California holding a minimum rating of (i) AV or
better or (ii) B+X or better:
13.1 Worker's Compensation as required by law and Employer's Liability with
policy limits not less than $1,000,000 per occurrence and a separate Waiver of
Subrogation issued for the benefit of Company and Morrow, and their Affiliates.
13.2 Commercial General Liability (Bodily Injury and Property Damage)
insurance, the limits of which shall not be less than $1,000,000 per occurrence. Such
policy shall be on an occurrence (and not a claims made) basis, including coverages for
(a) blanket contractual liability; (b) broad form property damage; and (c) explosion,
Page 4 of 16
collapse and underground hazard; and (d) products and completed operations, to the
extent applicable to the Work.
13.3 Automobile Bodily Injury and Property Damage Liability Insurance. Such
insurance shall extend to owned, non-owned, and hired automobiles used in the
performance of this Agreement. The limits of liability of such insurance shall not be less
then $1,000,000 for Bodily Injury and Property Damage Liability combined per
occurrence.
13.4 Professional Liability Insurance, the limits of which shall not be less than
$1,000,000 per claim and in the aggregate with supplementary coverage for Contractual
Liability to cover any liability assumed under this Agreement which is otherwise
insurable under such Professional Liability Insurance.
13.5 None of the insurance coverages described herein shall be terminated,
canceled, or substantially changed without thirty (30) days' prior written notice to
Company and Morrow.
13.6 Without prior written consent by Company or Morrow, the deductible
amount under any of the insurance coverage described herein shall not exceed
twenty-five thousand dollars ($25,000.00).
13.7 Except for the insurance coverages required under Sections 13.1 and
13.4, the above insurance shall name Company and Morrow, and their Affiliates, as an
additional insured with respect to Work performed hereunder, and contain a Cross
Liability Endorsement which provides that the insurance applies separately to each
insured and will cover claims or suits by one insured against another. Such additional
insured endorsement(s) shall state that such policy is primary and that any insurance
carried by an additional insured is excess and non-contributing. The additional insured
endorsement for commercial general liability must provide coverage for completed
operations if applicable to the Work.
13.8 Before commencing the Work, Consultant shall provide Company and
Morrow an original certificate of insurance or certified copies of all policies, or other
documentary evidence of the above insurance coverages satisfactory to Company.
14. Consultant Payment.
14.1 Payment to Consultant shall be made as set forth herein following delivery
to Company of (i) a conditional lien waiver and release (for progress or final payment as
applicable) in favor of Company and Morrow in form and substance satisfactory to
release all claims with respect to such payment under applicable law, and (ii)
Consultant's written certification in the form of Exhibits "B" and "B-1", attached hereto,
executed by Consultant's authorized representative which shall contain an estimate by
the Consultant of the "percent complete" of the services performed by Consultant for the
payment period covered by the statement. Such statement shall also include, for items
of work identified to be compensated on a time and materials basis, an estimate by the
Page 5 of 16
Consultant of the "percent complete" of total hours worked by each of the Consultant's
employees and of the services performed by each such person. Such statement shall
also include an itemization of all reimbursable expenses. Consultant's statements shall
represent payment in full for the portion of the Work described therein and shall declare
that; (i) the labor, services and materials, if any, covered by the statement have actually
been furnished and performed; (ii) any liens which may arise as a result of applicable
state statutes have been released or waived to the extent of the statement; and (iii) that
all subcontractors, employees, or other persons have been paid in full for any labor,
materials or services included in the statement. In the event all subcontractors have not
been paid for releases therefrom obtained as set forth herein, Company may withhold
from the payment due to Consultant, an amount equivalent to the purported sum owing
by Consultant to such subcontractor until Consultant has paid such subcontractor in full
or if such payment is in dispute, until Consultant has provided Company with an
indemnity agreement satisfactory to Company with respect to the lien claims of such
subcontractor.
14.2 Consultant shall submit to Morrow on or prior to the 15th day of any month
a fully completed Request for Payment (Exhibit "B") for Work completed during the
preceding month together with the supporting materials described in Section 14.1
above. Payment of such requests shall be made on, or prior to the 15th day of the
subsequent month provided all certifications, supporting statements and/or lien releases
identified herein are received within five (5) days of the submittal of such request for
payment. In the event the supporting statements are not received within five (5) days
after submission of payment request, payment shall be due on or prior to the 15th day
of the first month after Morrow receives all supporting information and statements so
long as all supporting statements and/or lien releases are received by Morrow prior to
the twentieth day of the month which precedes expected payment.
15. Assignment. Consultant shall not assign its obligations hereunder without the
specific written consent of Company which may be withheld in the sole discretion of
Company. Company may, in its sole discretion, freely assign its rights and obligations
to an entity deemed by Company as reasonably capable of performing Company's
obligations hereunder and shall notify Consultant in writing of such assignment.
Consultant specifically acknowledges that Company may at any time assign its rights
under this Agreement without the necessity of consent of any third party.
16. Confidentiality. Consultant acknowledges that with respect to Company's
Project, if such plans become generally known, Company's opportunities with respect to
the Project would be prejudiced. Therefore, while performing services related to
Company's Project, Consultant, unless approved in writing by Company or Morrow,
shall refrain from disclosing the nature and purpose of its services to any third party,
including real estate agents and brokers, except public agency staffs and individuals
whom Consultant must contact in performing the Work, or its counsel or accountant.
Further, in connection with the Company's Project, Consultant shall not, by itself, in
connection with or in the name of another, or through affiliation with any entity, acquire
property or rights in conflict with Company's interest. In the event Consultant does so,
any such purchase, acquisition, option or contract will be deemed at Company's sole
Page 6 of 16
option, to have been acquired on behalf of Company, and Consultant shall forthwith
execute or cause to be executed any documents necessary to transfer such property
rights or the rights thereto Company. All information acquired by Consultant, including
materials prepared by Consultant, concerning the subject of the services to be rendered
under this Agreement or Company's intentions with respect thereto, shall be considered
strictly confidential ("Confidential Information"). Consultant shall not disclose any
Confidential Information to others without Company's or Morrow's prior written consent,
nor use the Confidential Information for any purpose other than as necessary in
connection with the Work or additional services rendered in accordance with this
Agreement. Disclosure to Consultant's employees and agents who agree to be bound
by the terms of this Section 17 is permitted when required in connection with the Work
to be rendered under this Agreement. Upon termination of this Agreement, Consultant
shall return all Confidential Information to Company. Consultant agrees that ideas or
concepts under consideration by Company or Morrow and disclosed to or developed by
Consultant are confidential and proprietary to Company and may not be utilized by
Consultant for any purpose other than in connection with the services to be rendered
hereunder, nor disclosed to any third party unless authorized in writing by Company.
Consultant agrees to commit its employees, advisors, agents, and subcontractors to
protect the confidential and proprietary nature of these ideas and concepts.
17. No Gratuities. Neither Consultant nor its subcontractors, directors, employees or
agents of any of them, will give or receive any commission, fee, rebate, gift or
entertainment of material cost or value in connection with Consultant's services
hereunder without prior written notification and consent from Company or Morrow. It is
further understood that under no circumstances are Consultant, its directors,
employees, agent or subcontractors or their directors, employees or agents to make any
payment, or give anything of value, to any governmental official (including any officer or
employee of any government department, agency or instrumentality) to influence a
decision, or to gain any other advantage for Company or Consultant, in connection with
services performed hereunder. Consultant will promptly notify Company of any violation
of this Paragraph 17 and any consideration received as a result of such violation shall
be administered as directed by Company. Additionally, if any violation of this Section 17
occurred prior to the date of this Agreement or Authorization to proceed, Company may,
at its sole option, terminate this Agreement and, notwithstanding any other provision
thereof or of any Authorization, not pay compensation or reimbursement to Consultant
whatsoever for any work done after the date of termination.
18. Accurate Records. Consultant shall maintain true and accurate records in
connection with its services and reimbursable charges hereunder and all transactions
related thereto and shall retain such records for at least 48 months after completion of
such services. Company may audit any and all records of Consultant relevant to any
charges hereunder. Consultant shall also provide Company or Morrow a true and
correct copy of any required license annually.
19. Compliance with Laws. Consultant and its subcontractors shall comply with all
applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of
any governmental authority, including, but not limited to, Federal and state labor,
Page 7 of 16
occupational health and safety, environmental and tax laws, which are applicable to this
Agreement and Consultant's and its subcontractors performance hereunder during the
period in which the services are performed, and shall indemnify, defend and hold
harmless Company, Morrow and their Affiliates from any damage, injury, liability, claims,
fines and penalties resulting directly or indirectly from Consultant's or its subcontractors'
failure to do so in accordance with Section 12.
20. California Law. This Agreement shall be deemed to be a contract made and
performed in the State of California and will be governed by the substantive law of that
state without regard to the principles of conflict of laws.
21. Attorneys Fees. If Consultant, Company or Morrow (including Affiliates of
Company or Morrow) is a party to any action or proceeding to enforce any of the terms
of this Agreement, the prevailing party(s) in such action or proceeding (as determined
by the judge or presiding official) shall be entitled to receive from the non-prevailing
party(s), the prevailing party(s) costs and reasonable attorneys fees, incurred in
prosecuting, defending or appearing in such action or proceeding.
22. ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING HERETO
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO A CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT WILL, AT THE REQUEST OF ANY
PARTY, BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (9 U.S.C. SECTION 1 ET SEQ.) UNDER THE AUSPICES AND RULES
OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), EXCEPT AS OTHERWISE
PROVIDED BELOW OR AGREED BY THE PARTIES. IF BOTH PARTIES CANNOT AGREE
ON AN ARBITRATOR WITHIN FIFTEEN (15) DAYS AFTER DELIVERY OF A REQUEST FOR
ARBITRATION, THE ARBITRATOR SHALL BE APPOINTED BY THE PRESIDING JUDGE OF
THE SUPERIOR COURT FOR THE COUNTY OF SAN DIEGO, PROVIDED SUCH
ARBITRATOR SHALL HAVE AT LEAST TEN YEARS EXPERIENCE IN DEVELOPMENT OF
RESIDENTIAL MASTER PLANNED COMMUNITIES. THE ARBITRATION WILL BE
CONDUCTED IN SAN DIEGO COUNTY AND IN RENDERING ITS DECISION, THE
ARBITRATOR SHALL APPLY THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA,
AND WHERE APPLICABLE, THE SUBSTANTIVE LAWS OF THE UNITED STATES OF
AMERICA. ANY CONTROVERSY IN INTERPRETATION OR ENFORCEMENT OF THIS
PROVISION OR WHETHER A DISPUTE IS ARBITRABLE, WILL BE DETERMINED BY THE
ARBITRATOR IN ACCORDANCE WITH CALIFORNIA LAW. JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL
RELIEF IN PURSUIT OF AN ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE
CONTROVERSY OR CLAIM TO ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION UNDER CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR BY JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU
ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS SUCH
RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES
Page 8 of 16
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE.
WE HAVE READ AND UNDERSTAND THE FOREGOING INITIALS AND AGREE TO
SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION
OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION.
Company's initials Consultant's initials
23. Entire Agreement. This Agreement constitutes the entire and integrated
agreement between the parties and all prior and contemporaneous negotiations,
representations and agreements, written or oral, if any, between the parties with regard
to the subject matter of this Agreement are superseded and canceled hereby and shall
not be used to interpret to construe this Agreement. No amendment or other
modification of this Agreement shall be effective or enforceable unless in writing duly
signed by Company and Consultant.
24. Notice. Wherever in this Agreement it shall be required that notice or demand be
given or served by either party on the other, such notice or demand shall be given or
served only if in writing and personally served at or forwarded by certified or registered
mail, postage prepaid, addressed to the parties specified below. Any notice or demand
given by mail as aforesaid shall be effective the second business day after mailing.
Either party may change such address by written notice given in accordance with the
terms hereof. Personal service may be by means of messenger, courier, commercial
service such as Federal Express, telegram or telecopier or similar electronic delivery
and shall be effective upon receipt.
To the Company: c/o Morrow Development, Inc.
Mailing Address: 1903 Wright Place, Suite 180,
Carlsbad, CA 92008
Delivery Address: Same as Mailing Address
To the Consultant: At the address provided on the signature page.
25. No Waiver. The failure of either Consultant or Company to insist in any one or
more instances upon the strict performance of any of the terms of this Agreement or to
notify the other party of any default hereunder shall not be construed as a waiver or a
relinquishment of the right to insist upon future performance of such terms or the right to
thereafter declare a default hereunder. If any provision of this Agreement shall be held
by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder
of this Agreement shall remain in full force and effect.
26. Morrow Agency. Company has represented to Consultant that Morrow is the
authorized agent of Company and authorized by the Company to act as the
Development Manager on behalf of the Company regarding this Agreement. Consultant
acknowledges and agrees that Morrow, its officers, directors, shareholders, and
Page 9 of 16
employees shall have no liability under this Agreement and that all rights and liabilities
under this Agreement shall be those of Company.
27. Conflict. In the event of a conflict between the terms of this Agreement (and any
authorization issued pursuant hereto), and any proposal, contract or exhibit prepared by
Consultant which may be attached to any Authorization, the terms of this Agreement
shall prevail.
[Remainder of Page Intentionally Left Blank]
Page 10 of 16
28. Survive Termination. Those provisions regarding confidentiality, indemnity and
other similar covenants shall survive the termination or other expiration of this
Agreement.
In witness whereof, the parties have signed this Agreement in duplicate or
counterpart originals effective the first date set forth above.
CONSULTANT
Helix Environmental Planning, Inc.
COMPANY
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a
Delaware corporation
8100 La Mesa Blvd., Suite 150
La Mesa, CA 91941
APPROVED:
MORRW
By:
Its:
PMENT, INC.
F red^M.^rbuckle
F resident
Page 11 of 16
EXHIBIT "A"
SCOPE OF WORK
Consultant: Helix Environmental Planning, Inc.
Contract No.:383
Consultant agrees to furnish all labor, personnel, materials and equipment necessary to
perform the Scope of Services (the "Work") described below and to complete
performance of the Work in accordance with the performance schedule or the
completion of dates set forth below. Consultant shall exert Consultant's best efforts,
skill and judgment and shall exercise all due diligence to complete the Work in
accordance with the terms of the Agreement to which this Exhibit is appended and in
the most expeditious, sound and economical manner.
PROJECT DESCRIPTION: Oaks South Grading
Biologist
SCOPE OF WORK:
Task 1 Pre-lnstallation/Contractor Education Meeting. Prior to initiating clearing, HELIX
will attend an on-site meeting with the contractor to educate them regarding
which sensitive biological resources to avoid.
Task 2 Flagging and Monitoring Construction Activities including Snake Relocation.
Prior to clearing, HELIX will work with the project surveyor to flag the limits of
clearing in areas supporting sensitive vegetation. A silt fence is to be
constructed by the contractor along the limits of proposed clearing. HELIX will
confirm that the silt fence has been properly installed. A HELIX biologist will
monitor clearing activities including relocating any snakes found in areas
adjacent to existing homes, and periodic monitoring of adjacent habitat to
determine if accumulated dust is affecting native vegetation. HELIX has
assumed up to 20 monitoring events. For this contract, HELIX assumes
clearing of the vegetation will occur prior to March 15, 2002.
Note: If grading occurs during the coastal California gnatcatcher-breeding
season (February 15 through August 31), noise monitoring will be required.
Noise monitoring is not included in the cost estimate.
ASSUMPTIONS
• Erosion control monitoring or erosion control is not a part of this contract.
• Costs for surveyors, signs, and fencing materials are not included in the cost
estimate.
Page 12 of 16
SCHEDULE
HELIX will work with the client in a timely and professional manner.
COST ESTIMATE AND PAYMENT PROCEDURES
HELIX is pleased to submit this time and materials not to exceed cost estimate of
$13,000.
Consultant's Initial
Company's Initia
Page 13 of 16
Sheetl
Construciton Monitoring for
Oaks and Greens
Principal
Group Manager
Senior Project Manager
Senior Biologist
Project Manager
Biologist m
Biologist n
Biologist I
Technical Coordinator
Graphics
Production Manager
Associate Biologist (planimc
CIS Analyst
Assistant Biologist
Word Processing
Biological Tech
Clerical
SUBTOTAL
*„ t j^tf <-• ~&
ODC'S
Mileage
Reproduction (includes plon
"i!m
Subcontractor
GenVAdmin 10%
SUBTOTAL
TOTAL
TASK HOURS
!
5
0
0
0
0
5
0
0
1
0
0
0
0
0
0
0
0
V
80
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
->• J
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
^ >»
0
0
0
0
0
$725
so
$0
$0so
$400
$0so
$75
$0
So
$0
$0
$0
$0
$0
$0
$1,200
$32
$0
SO
$0
SO
$32
$1,232 Vfonitoring during habitat clearing-Sdays8
0
0
0
0
0
0
0
1
0
0
64
0
0
0
0
0
640
0
0
0
0
1a
4
0
0
0
0
0
0
0
1
0
0
100
0
0
0
0
0
1600
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
*
0
0
0
0
0
i
$1,740
so
$0
$0soso
so
so
$150
$0
$0
$9,020
$0
$0
so
soso
$10,910
« » ^ ^
$896
$0
$0
SO
SO
$896
$11,806
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
M»f-
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Wv-
0
0
0
0
0 TOTALSOso
$0
so
so
$0
$0
$0
so
so
so
so
sososo
so
$0so
s*"v58i/
$0
so
so
so
so
SO
$0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
n»»f>
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
'; i'
0
0
0
0
0 TOTAL$0
$0
SO
$0
$0
$0
$0
$0
SO
$0
$0
SO
so
so
$0
so
so
$0
tJfttgUA
so
$0
$0
so
so
so
so
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
xta*
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
SPSS
0
0
0
0
0 TOTALso
$0
$0
$0
so
$0
$0
$0
SO
$0
soso
so
$0
$0
so
so
$0
ifcS#»t'
so
so
so
so
$0
$0
$0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
"ft">4
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
*T*fr
0
0
0
0
0
s!
$0
$0
$0
so
so
SOsososo
$0
so
so
soso
$0
so
so
so
- ,*<*•)•
so
$0so
so
so
so
$0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
•'
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
V,
0
0
0
0
0
$0
$0
so
so
$0
$0
$0
so
so
so
so
so
so
$0
$0
so
so
$0
3"** ,**£
so
so
$0
so
$0
so
so
1
8
't.
Sf
if
j:;
•;:•
if
1
S145
$125
$110
$110
$85
$80
$75
$65
S75
$75
$70
$55
S55
$45
$45
S35
$35
<- iss
0.40
$1
$1
$1
0 TOTAL COST ESTIMATE$2,465
SO
SO
$0
SO
$400
SO
SO
$225
SO
$0
$9,020
$0
SO
SO
$0
SO
si2.no
*jS»SSH3& »"!
S928
SO
SO
SOso
S928
$13,038
Pagel
EXHIBIT "B"
REQUEST FOR PAYMENT
CONTRACT NO. 383
JOB NUMBER/DESCRIPTION: 81-21 / Oaks South Grading
CONSULTANT: Helix Environmental Planning, Inc.
8100 La Mesa Blvd., Suite 150
La Mesa, CA 91941
The undersigned Consultant hereby requests payment pursuant to the invoice
attached showing the personnel, time, and rate for each of the work tasks described in
the Scope of Work:
Invoice Number:
Date:
Invoice Period:
Consultant's Approval:
Initial Contract Amount:
Addendums to Date:
TOTAL Contract Amount:
Percent Complete:
$13.000.00
$ 0.00
$13.000.00
(See attached spreadsheet)
Please submit to:Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Page 14 of 16
HELIX 383 1/8/02
WORK DESCRIPTION
OAKS SOUTH GRADING/BIOLOGIST 81-21/20-2190
PRE-INSTALLATION/MONITORING CONSTRUCTION ACTIVITIES
TOTAL-CONTRACT
RRMBURSABLES 81-28/90-9140
^P TOTAL-REIMBURSABLES
TOTAL THIS INVOICE
CONTRACT
AMOUNT
13,000.00
13,000.00
N/A
N/A
PREVIOUS
AMOUNT
BILLED
0.00
0.00
0.00
0.00
AMOUNT
DUE THIS
PERIOD
0.00
0.00
0.00
0.00
0.00
Complete:
TOTAL
BILLED
TO DATE
0.00
0.00
0.00
0.00
0%
CONTRACT
REMAINING
13,000.00
13,000.00
N/A
N/A
Page 1 of 1
EXHIBIT "B-1"
CERTIFICATION OF THE CONSULTANT
I HEREBY CERTIFY that the work performed and the materials supplied, if any to date,
as shown on the accompanying Request for Payment dated ,
represent the actual value of the accomplishment under the terms of the Contract (and all
authorized changes thereto) between the undersigned and Company in connection with the
above referenced project.
I also certify that all payments current for, (i) all materials, equipment and labor used in,
or in connection with, the performance of the Contract, and (ii) all laborers and other personnel
employed directly by me and performing work on the project through the periods covered by
prior invoices paid by the Company. I further certify that to the best of my knowledge I have
complied with performing work on the project. I further certify that to the best of my knowledge I
have complied with federal, state and local tax laws, including social security laws and
unemployment compensation laws and worker's compensation laws insofar as applicable to the
performance of the Agreement. I further certify that the amount received under this payment
request will be applied to discharge all labor, labor trust funds material and subcontract
obligations applicable to this project and up to date thereof.
The labor, equipment or materials (or any of them) covered by this Request for Payment
have been furnished and performed as called for by the Agreement.
All material suppliers to, and laborers for the undersigned, have been paid in full for the
goods or services included within the Request for Payment or will be paid with the proceeds of
any disbursement made pursuant to this Request for Payment, which disbursement will be
received in trust for that purpose.
Undersigned shall hold harmless Company, Morrow and the Project from any cost,
expense (including attorney's fees) or liability arising out of the breach of the above Certification.
ENDORSEMENT OF LIEN RELEASE
To induce Company to make the Payment requested above, pursuant to:
Contract No.:383 Invoice No.:
the undersigned agrees and certifies as follows:
(a) Any payment issued on the basis of this Request for Payment shall constitute
payment in full to the extent set forth in the attached Request for Payment.
(b) Any and all mechanic's liens, stop notices and other rights and remedies under
the Mechanic's Lien Law of the State of California and related similar laws, are hereby released
and waived to the extent of the Request for Payment.
(c) Lien releases shall be in the form required by Civil Code § 3262.
(d) The above waivers and releases are conditional and shall be effective upon
receipt of the payment requested herein.
Executed this day of , .
Name of Consultant: Helix Environmental Planning, Inc.
By:
(Its Duly Authorized Agent)
Page 15 of 16
EXHIBIT "C"
LETTER OF AUTHORIZATION
Consultant:
Contract Number:
Helix Environmental Planning, Inc.
383
This letter constitutes Authorization under the above-referenced Contract. All services
performed under this Authorization shall be in accordance with the terms and conditions of such
Contract.
The Scope of Work to be done under this Authorization is as outlined in Exhibit "A". The
maximum authorized for the services under this Authorization is $13,000.00. This amount is not
to be exceeded without prior written consent of Company, reimbursable expenses shall be
limited to reproduction, blueprinting, overnight mail and messenger service. All permitted
reimbursable expenses shall be billed at actual cost plus a ten percent administrative charge.
Each invoice will be accompanied by applicable receipts and documentation for reimbursables.
Each invoice must include Exhibits "B" and "B-1", both completely filled out, including
Description of Work or services performed, total amount authorized hereunder, amount of time
spent, name of person/s who provided the Work and services described, and percent complete.
Insurance Policies shall name Morrow Development, Inc. and Real Estate Collateral
Management Company, and their respective Affiliates (shareholders, directors, agents,
members and employees) as Additional Insureds:
If to Morrow:
Morrow Development, Inc.
Attn: Fred Arbuckle
1903 Wright Place, Suite 180
Carlsbad, CA 92008
If to Company:
Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
If this Authorization is acceptable to you, please indicate your acceptance by signing both
copies and returning one copy to this office.
COMPANY
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY^ Delaware Corporation
CONSULTANT
Helix ing, Inc.
M
By:
Its:
ELOPMENT, INC.
Fred M. Arbuckle
President
Page 16 of 16
DEVELOPMENT
VIA HAND DELIVERY . ' 1903 Wright Place, Suite 180
Carlsbad, CA 92008
January 11,2002
phone: 760 929-2701
Mr. Don Neu
Senior Planner . . . . fax:760929-2705
City of Carlsbad .
1635 Faraday Avenue • .
Carlsbad, CA 92008-7314
Re: MM&RP Conditions 4.4-12
Dear Don:
Enclosed please find a copy of a fully executed License Agreement between Real Estate
Collateral Management Company (RECMC) and Bent Avenue Associates allowing RECMC's
entry on to the Bent Avenue Vernal Pool site to preserve, create and enhance these vernal pools
pursuant to Vernal Pool Enhancement Plan (Plan) dated December 11, 2001 previously
forwarded to you. Additionally enclosed, please find a fully executed contract between RECMC
and Helix Environmental Planning for completion of the scope of work in the Plan.
We contend that these three pieces of information should satisfy this Condition 4.4-12 of the
MM&RP and I anticipate that you will sign off on these conditions. If you have additional
requirements or if you have any questions or need any further information, please don't hesitate
to call me at 760/929-2701 ext. 103 or e-mail at iiackson@.morrowdevelopment.com.
.Sine
(Jam
Vnj
^rely,
X
:s M. Jackson
or Vice President
JMJ:jmj
cc Jack Henthorn - Henthorn Associates (w/o enclosures)
Enclosures 2
LICENSE AGREEMENT
(Environmental Restoration)
THIS LICENSE AGREEMENT ("Agreement") is entered into as of January // , 2002,
by and between BENT AVENUE ASSOCIATES, a California general partnership ("Licensor")
and REAL ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware corporation
("Licensee").
RECITALS:
A. Licensor is the owner of certain real property located in the City of San Marcos,
County of San Diego, State of California, known as the Bent Avenue Vernal Pool Site ("Licensor
Property") described as follows:
PARCEL 1 OF PARCEL MAP NO. 18636, IN THE CITY OF SAN MARCOS,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY FEBRUARY 12,2001 AS FILE NO. 2001-0079579, OF
OFFICIAL RECORDS.
B. Licensee desires to restore and revegetate portions of Licensor Property (the
"Restoration Work") to mitigate certain vernal pool impacts on Licensee's Villages of La Costa
project.
C. Licensee desires a license from Licensor to enter upon the Licensor Property to
perform the habitat enhancement and to perform any maintenance and monitoring, including
additional enhancement that may be required to meet the Licensee's approved criteria for the
habitat enhancement. Licensor desires to grant a temporary license to Licensee over that certain
portion of the Licensor Property depicted on Exhibit "A" attached hereto ("License Area") for
such purpose, subject to the terms and conditions set forth below.
NOW, THEREFORE, the parties hereto covenant and agree as follows:
1. License Fee. Licensee shall pay a one-time license fee of Twenty Thousand
Dollars ($20,000.00) to Licensor. Such fee shall be paid in good funds by Licensee to Licensor
concurrent with execution of this Agreement.
2. Grant of License. Licensor hereby grants to Licensee and its employees, agents
and contractors, a nonexclusive license over and across the License Area for purposes of
restoring and revegetating License Area hi connection with the Restoration Work (the
"License"). All of the Restoration Work shall occur on Licensor Property. Licensee shall have
the right to cross Licensor Property to gain access to the License Area. Except as expressly
otherwise provided in this Agreement, Licensee agrees that the grant of License hereunder is
made on an "AS IS" condition and basis without any representations or warranties (express or
implied) with respect to the condition or status of the Licensor Property, including, without
limitation, the availability and/or viability of the Licensor Property for Licensee's proposed use
in connection with the Restoration Work.
3. Government Regulations and Other Obligations of Licensee. As a condition
precedent to the License granted by Licensor to Licensee, Licensee shall obtain at its sole cost
License Agreement
27817/5-1702514.4 1 01/09/02
and expense all governmental permits and authorizations of whatever nature required by any and
all applicable governmental agencies for Licensee's use of the Licensor Property. Licensee shall
furnish Licensor evidence of such permission prior to its entry on the Licensor Property. While
on the Licensor Property, Licensee shall comply and will cause all of its employees, agents and
contractors to comply with all applicable governmental laws and regulations, reasonable rules
and regulations promulgated by Licensor, and the terms and conditions of any permit, resolution,
condition of approval, or agreement applicable to the Licensor Property, including, but not
limited to, any and all permits issued by the U.S. Army Corps of Engineers, California Regional
Water Quality Control Board, and California Department of Fish and Game in connection with
the Licensor Property. All persons who enter upon the Licensor property pursuant to this
Agreement do so at their own risk, and shall comply with any and all instructions and directions
of Licensor. Licensee shall be responsible for any damage done to the Licensor Property by
Licensee or its employees, agents and contractors.
4. Term. This License shall commence on the date first written above and expire on
January 15, 2007, subject to Licensee's right to extend for up to five (5) additional one-year
extensions if needed to obtain acceptance of the Restoration Work by Government Agencies.
Licensee shall give written notice to Licensor of Licensee's need of each one-year extension and
concurrent delivery to Licensor of cash in the amount of $4,000 for each one-year extension no
later than 30 days prior to the then scheduled expiration of the License. Upon expiration of the
License, all of Licensee's rights hereunder shall automatically cease and terminate without
further notice. Licensee acknowledges that this License is intended only as an interim agreement
to enter the License Property and not as a grant of lease or easement or any other permanent
interest in real property to Licensee.
5. Cure of Default. If either party fails to perform its obligations hereunder within
ten (10) days of receipt of written notice of default identifying the alleged default, then the non-
defaulting party may thereafter pursue its legal remedies to terminate or otherwise enforce the
Agreement. Upon request by Licensor, Licensee shall execute a quitclaim deed of Licensee's
rights granted by this License.
6. Indemnification of Licensor and Right to Cure Liens. As part of the consideration
for this Agreement, Licensee hereby agrees to indemnify, defend, and hold harmless Licensor, its
employees, officers, shareholders and partners (collectively, "Indemnitees") from and against all
loss, liability, expenses, damages, costs (including attorneys' fees and costs) that Indemnitees
may incur by reason of (i) any liens, claims, demands, actions or suits arising from any work
performed or materials supplied to or for Licensee; (ii) any claims of any person for bodily
injuries or any claims for property damage by reason of the work or activities conducted on the
License Area or Licensor Property by Licensee, its agents, contractors, or employees; (iii) any
costs, fees, expenses related to repair, restoration, or rehabilitation of any kind to the License
Area or Licensor Property as might be required by any governmental agency as a result of
Licensee's Restoration Work; or (iv) any violation or alleged violation of any law, ordinance,
regulation, permit, resolution, condition of approval, or agreement by reason of the work, use, or
activities conducted on the License Area or Licensor Property by Licensee or its agents,
contractors, or employees. If Licensee fails within ten (10) business days of receipt, by Licensee
of a written request from Licensor to pay or otherwise discharge any lien or claim of lien arising
out of the use of the License Area or Licensor Property by Licensee, Licensor may, at is option,
pay any such lien or claim of lien, and the amount paid by the Licensor to discharge such lien or
claim or lien shall be paid to Licensor by Licensee upon written demand, together with interest
License Agreement
27817/5-1702514.4 2 01/09/02
thereon at the maximum rate permitted by law, from the date until repaid, and any default either
in such initial failure to pay or subsequent repayment to Licensor shall constitute a breach under
this Agreement. This indemnity shall survive the expiration or earlier termination of this
Agreement.
7. Insurance. Licensee shall cause any contractor employed by Licensee conducting
work within the License Area to maintain, in full force during the term of this Agreement, a
policy of commercial general liability insurance for death, bodily injury and property damage,
insuring against liability for injury to or death of any person, arising in connection with the use
of the License, or any other activities conducted by Licensee or its agents or contractors on the
License Area or Licensee Property. Licensor, or any successor in interest to Licensor, shall be
named as an additional insured under any such insurance. Such insurance at all times shall be in
an amount of not less than a combined single limit of Two Million Dollars'($2,000,000.00).
Licensee shall provide to Licensor a certificate evidencing that such insurance is in effect and
that such insurance shall not be cancelled without thirty (30) days' prior written notice to
Licensor (upon transfer of the Property to a successor in interest, Licensee shall cause the
successor in interest to be named as the additional insured). Anyone performing any work on the
License Area shall, at all times during the performance of any work, and at its own cost and
expense, procure and continue in force workers' compensation coverage as required by law
together with employee's liability coverage.
8. Recordation. If Licensee elects to do so, Licensor will cooperate in the execution
of a customary memorandum of this Agreement reasonably acceptable to Licensor to be
recorded in the San Diego County Recorder's Office. In the event Licensee requests recordation
of such memorandum, Licensee shall be solely responsible for all costs, expenses and/or real
estate taxes levied or assessed by the San Diego County Tax Assessor or Collector. Upon
expiration or earlier termination, Licensee shall execute and record a quitclaim deed or other
instrument reasonably necessary to clear title. Licensor shall notify any tenant, lender or
successor in interest of Licensor's Property of this Agreement.
9. Assignment. This Agreement shall not be assigned by Licensee without the prior
written consent of Licensor, which consent may not be unreasonably withheld. Notwithstanding
the foregoing, Licensor will consent to the assignment of this License to any purchaser of one or
more parcels in the Licensee's project. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. Any successor in interest shall assume, in writing, the
obligations of this Agreement. Upon such an assignment and assumption, Licensee shall not be
released of any obligations under this Agreement. During the term of this Agreement, Licensor
shall provide a copy of this Agreement to any potential buyer of Licensor's Property prior to any
conveyance.
10. Attorneys' Fees. If any legal action or proceeding arising out of or relating to this
Agreement is brought by either party to this Agreement, the prevailing party shall be entitled to
receive from the other party, in addition to any other relief that may be granted, the reasonable
attorneys' fees, costs, and expenses incurred in the action or proceeding by the prevailing party.
11. Entire Agreement. This Agreement constitutes the entire agreement between
Licensor and Licensee relating to the License.
License Agreement
27817/5 -1702514.4 3 01/09/02
12. Interpretation. This Agreement shall be construed according to its fair meaning
and as if prepared by both parties hereto.
13. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, but when taken together shall constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Licensor's Address:
P.O. Box 1053
Solana Beach, CA 92075
Licensor's Address:
Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
BENT AVENUE ASSOCIATES, a California
general partnership
By: SOUTH COAST DEVELOPMENT, a
California corporation, its partner
By:.
Keith W. Gregory, Presi
"Licensor"
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
•*>s~.^ j*"By:
David A. Watts
Its: Vice President
"Licensee"
License Agreement
27817/5-1702514.4 01/09/02
13 219-33
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•*-•-.
HWO La Mesa Blvd., Suite
La Mesa, <:A V1M1-
fax (619) 462-OW
phone (619) 462-January 22,2002
City of Carlsbad
Attn: Don Neu
2075 Las Palmas Drive
Carlsbad, California 92009-1576
Pax (760) 602-8558
Subject: The Villages of La Costa project in the City of Carlsbad
Dear Mr. Neu,
This letter has been written to inform you that the perimeter slaking and fencing for
the Oaks portion of the Villages uf La Costa project has been completed. Work was
completed on January 18, 2000, and was monitored by HELIX biologist Ted
Grantham. Please call if you have any questions.
Sincerel
Justin Fischbeck
Biologist
100/TOO'a •AN3 xnan 619