HomeMy WebLinkAboutGPA 06-09; Muroya Subdivision; Habitat Management Permit (HMP)OPEN SPACE OWNERSHIP, MANAGEMENT AND FUNDING AGREEMENT
THIS OPEN SPACE OWNERSHIP, MANAGEMENT AND FUNDING AGREEMENT ("Agreement")
is made and entered into effective as of April 4, 2012 (the "Effective Date") by TAYLOR MORRISON OF
CALIFORNIA., LLC, a California limtted liabiltty company ("Taylor Morrison"), with reference to the following:
RECITALS:
A. As of the Effective Date, Taylor Morrison was the owner of lhe real property legally described
in ExhiM "A", located in the City of Carlsbad (lhe "Property"). This Agreement affects only Lot 4 of the
Property. Nothing in this Agreement shall be construed as affecting any other lots in or portions of the
Property.
B. Taylor Morrison has received approval from the City of Carlsbad ("City'') for lhe Property for
a residential development project known as Muroya Property, Carlsbad Tract 06-27 ("Projecf'). City
approval of the Project is contained in City Planning Commission Resolution No. 6686, adopted on Aplil 7,
2010.
C. Condition No.9 of Planning Commission Resolution No. 6690, provides as follows:
"14. Plior to issuance of a grading permit or clearing of any habitat, whichever occurs first,
the Developer shall take the following actions to the satisfaction of the Planning Director
in relation to the open space lots which are being conserved for natural habitat in
conformance with the City's Habitat Management Plan:
a. Select a conservation entity, subject to approval by the City, which possesses
qualifications to manage the open space lot(s) for conservation purposes.
b. Prepare a Property Analysis Record (PAR) or other method acceptable to lhe City
for estimating the costs of management and monitoring of the open space lot(s) in
perpetuity in accordance with the requirements of the North County Multiple
Habitats Conservation Plan and the City's Open Space Management Plan.
c. Based on the results of the PAR, provide a non-wasting endowment or other
financial mechanism acceptable to the Planning Director and conservation entity, if
any, in an amount sufficient for management and monitoring of the open space
lot(s} in perpetuity.
d. Record a Conservation Easement over the open space lots.
e. Prepare a Preserve Management Plan which will ensure adequate management
of the open space lots in perpetuity. •
D. Taylor Morrison has selected a conservation entity, the San Diego Habitat Conservancy, a
nonprofit organization ("SDHC"}, as required by Condition No. 9, paragraph (a), which is willing to take and
has taken fee title to the open space lot designated as Lot 4 on the Property. The parties wish to provide for
the future transfer of the open space lot and non-wasting endowment to SDHC, and provide for the
management of the open space lot and non-wasting endowment, pursuant to Condition No. 9, paragraph
(c). This Agreement is entered into to satisfy Condition No. 9.
E. Lot 4 of the Property will be managed, maintained, and preserved in accordance with the
Preserve Management Plan prepared by Dudek, November, 2011 (hereinafter the "PMP") incorporated
herein as if set forth in full. Taylor Morrison has paid the fees and costs necessary to create 0.87 acres of
Southern Maritime Chaparral and 0.05 Acres of Southern Mixed Chaparral on the Property and to
maintain it for a five (5) year period in accordance with the Mitigation Plan prepared by Dudek in January,
2012 (hereinafter the "Restoration Plan").
F. Taylor Morrison has caused preparation of the Property Analysis Record (PAR) for Lot 4.
The PAR, attached hereto as Exhibit "B" and incorporated herein by reference, estimates the costs of
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management and monitoring of Lot 4 of the Property in perpetuity. The PAR estimates that a non-wasting
endowment in the amount of $314,867, plus emergency and legal costs of $12,594.68, for a total of
$327,461.68, will be sufficient to provide such management and monitoring (the "Endowment Funds").
Habitat Restoration Specialists (HRS), the designated preserve manager, will perform the first three (3)
years of tasks contained in Sections 9-14 of the PAR under a contract with Taylor Morrison. SDHC has
accepted fee title to Lot 4 and taken distribution of the Endowment Funds. The City has not accepted the
irrevocable offer of dedication ("IOD") and will not perform the tasks described in the PAR, unless the
provisions of Paragraph 10(g) apply.
NOW, THEREFORE, Taylor Morrison declares as follows:
1. Declaration of Restrictive Covenants. Taylor Morrison has recorded a Declaration of
Restrictive Covenants ("Restrictive Covenant") on January 10, 2012 as Document No. 2012-0012474 in the
Official Records of San Diego County, a conformed copy of which is attached hereto as Exhibit "C", over Lot
4 of the Property as legally described in Exhibit "D" attached hereto ("Conservation Land").
2. Irrevocable Offer of Dedication. Taylor Morrison has offered an irrevocable offer of
dedicalion (IOD) of fee title to the Conservation Land to the City (in the form attached hereto as Exhibit
"E"), and the City has not accepted such IOD because SDHC has accepted fee title to the Conservation
Land.
3. Taylor Morrison's Obligations. Taylor Morrison shall have no obligation to maintain,
repair or construct improvements upon or perform any work in connection with the Conservation Land or
the PAR aner ownership and the obligation of maintenance of the Conservation Land have been transferred
to SDHC, except to the extent the following work has not been completed:
a. Preparation of the surveys and reports and performance of the maintenance
listed in Sections 9-14 of the PAR; and in accordance with the approved Preserve Management Plan
(Dudek), dated November, 2011.
b. Installation of fencing, in accordance with the approved plans and the Mitigation
Plan for the Conservation Land.
4. Management of Conservation Land. Subject to Paragraph 7 below, Taylor Morrison
(and SDHC aner Taylor Morrison's ·completion of the 3-year initial management period as set forth in
Sections 9-14 of the PAR and the 5-year period under the Restoration Plan), agrees to perform or cause to
be performed the following management and preservation activities within the Conservation Land in
accordance with the Restrictive Covenant:
(a) Remove trash and debris on an as needed basis;
(b) Post and maintain signs at the perimeter of the Conservation Land designating
the Property as "Habitat Conservation Area, No Trespassing" or similar descriptions that inform persons of
the nature of the restrictions on the Property;
(c)
Conservation Land.
Take actions reasonably necessary to prevent unauthorized trespass into the
(d) Monitor and control the encroachment of invasive and exotic weeds into, and
remove invasive and exotic weeds from the Conservation Land;
(e) All other management, maintenance surveys, reporting, and other work
described in Sections 9-14 of the PAR;
(f) Contract with HRS or another preserve manager acceptable to the parties or their
successors to perform the following technical services no less frequently than the stated intervals:
(i) Site maintenance inspection once quarterly;
(ii) Vegetation assessment once every year;
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(iii) Vegetation mapping once every five years;
(iv) Sensitive plant species mapping once every three years;
(v) Gnatcatcher survey conducted according to U.S. Fish and Wildlife Service
protocol once every three years;
(vi) Removal of non-native plant material once every year, in accordance with
the recommendations of the qualified biologist; and
(vii) Annual report preparation.
To ensure continuity of the selected preserve manager, a contract for a term not to exceed three
(3) years may be entered into by and between the selected preserve manager and Taylor Morrison and
subsequently SOHC which shall be terminable by SOHC after not longer than one (1 ) year without costs,
penalty, or other obligation on ninety (90) days written notice of termination to the selected preserve
manager. In the event that SDHC seeks to terminate a preserve manager, it must notify the City of its
desire to do so and obtain approval of a replacement preserve manager, if required by the City, prior to
initiating termination proceedings.
If, and only if, lhe City accepts the 100, the City will perform, or cause to be performed, all of the
work and tasks described in Section 9 of the PAR and will assume responsibility for the proper handling
and investment of the Endowment Funds described in Paragraph 5, below.
5. Establishment of Endowment. As of the Effective Date, Taylor Morrison has
established the Endowment Fund for management and maintenance of the Conservation Land in perpetuity.
The Endowment Fund is in the total amount of $327,461.68, which consists of emergency and legal costs of
$12.594.68 and an endowment principal of $314,867. Based on a rate of return of 4.5%, the $314,867
endowment amount would earn approximately $14,169.02 in interest per year. Taylor Morrison shall, within
thirty (30) days after the City's acknowiedgement of this Agreement, provide the City a copy of the
statement showing the Endowment Fund has been released to SDHC.
6. Management of Endowment. The Endowment Fund and interest earned thereon shall
be maintained in a separate account and shall be used only for funding the management and preservation
obligations set forth in Paragraph 4 above and for managing the Endowment.
The endowment principal of $314,867 shall be set aside, held, invested and disbursed in
trust solely for the purposes of protecting the City's rights and preserving the Conservation Values of the
Property under the Restrictive Covenant in perpetuity. The City shall have the right to review and approve
the terms of the operating agreement with SOHC, and shall be a third party beneficiary of the operating
agreement with the right to review and approve any amendments.
Taylor Morrison (and subsequently SOHC upon transfer of the Endowment Funds and any
earnings on this principal not used to pay for work authorized by the PMP or PAR) shall have the fiduciary
duty to ensure that the Endowment Funds held in trust for Lot 4 are properly managed. SDHC's investment
policy (as may be amended or modified as prudent investment strategy changes from time to time, and
which present form is attached hereto as Exhibit "G") shall, upon its acceptance of fee title to Lot 4 and the
transfer of the Endowment Funds, apply as to SDHC's investment of the Endowment Funds.
If, and only if, SDHC no longer owns fee title to Lot 4 and releases possession or control of
the Endowment Funds, the following principles of fiduciary duty shall apply to the investment of the
Endowment Funds:
(a) There shall be no commingling of the endowment funds with other funds.
(b) The owner of the Conservation Land shall have the duty of loyalty and shall not
use the Endowment Funds for their own personal benefit.
(c) The owner of the Conservation Land shall act as a prudent investor of the
Endowment Funds. Investments by the owner of the Conservation Land of each
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of the following investments are examples of what is considered a prudent
investment:
(1) United States treasury notes, bonds, bills, or certificates of indebtedness
or those for which the faith and credit of the United States are pledged for
the payment of principal and interest; and
(2) Registered state warrants or treasury notes or bonds of the State of
California, including bonds payable solely out of revenues from a
revenue-producing property owned, controlled, or operated by the state or
by a department, board, agency, or authority of this state having an "AA"
or higher rating by Moody's Investors Service, Inc., or Standard & Poor's
Corporation; and
(3) Bonds, notes, warrants, or other evidences of indebtedness of any local
agency within the State of California, including bonds payable solely out
of the revenues from a revenue-producing property owned, controlled, or
operated by the local agency or by a department, board, agency, or
authority of the local agency having an "AA" or higher rating as provided
by Moody's Investors Service, Inc., or Standard & Poor's Corporation; and
(4) Insured certificates of deposit issued by banks or credit unions; and
(5) Money market funds issued by diversified management companies
having at least five years of experience managing money market funds
with assets under management in excess of $500,000,000 registered by
the Securities and Exchange Commission under the Investment
Company Act of 1940 (15 U.S.C. sec. 80 a-1, et seq.); and
(6) Mutual funds that invest in tax exempt bonds issued by any governmental
agency having an "AA" or higher rating by either Moody's Investors
Service, Inc., or Standard & Poor's Corporation.
The owner of the Conservation Land shall not delegate the responsibility for
managing the funds to a third party, but may delegate authority to invest the Endowment Funds to an
investment advisor with the oversight of the owner of the Conservation Land. The owner of the
Conservation Land shall act with prudence when delegating authority and in the selection of investment
advisors. No portion of the remaining principal amount of the Endowment Funds in the sum of $314,867
shall be expended without prior authorization from the City. Taylor Morrison shall be responsible for all
costs of management and preservation of the Conservation Land until conveyed to SDHC. SDHC shall be
authorized to expend earnings from the remaining endowment fund of $314,867 to pay for work required by
the approved PMP or PAR. The owner of the Conservation Land shall have an annual audit of the
endowment performed by a licensed CPA, and shall submit the auditor's written report to the City upon
request.
From and after the date of transfer of the principal of $314,867 by Taylor Morrison
to SDHC, and any remaining earnings on it after payment of fees or costs for work authorized by the PMP or
PAR to SDHC, SDHC will become solely responsible for the proper management and investment of the
Endowment Funds as provided in this Agreement.
7. Transfer of Ownership and Obligations. As of the Effective Date, Taylor Morrison has
established a common interest development project on the Property and the homeowners association
created will manage the Project and own and maintain certain portions of the Property, except the
Conservation Land. Because the City has not accepted the IOD, Taylor Morrison shall have the right without
City's consent to transfer to SDHC the following: (i) fee title to the Conservation Land; (ii) Taylor Morrison's
management and preservation obligations under Paragraphs 4 and 6 above; and (iii) the Endowment
Funds. Upon SDHC's express assumption of Taylor Morrisons' obligations under Paragraphs 4 and 6 above
and Paragraphs 8 and 11 below, Taylor Morrison shall be fully and forever released and discharged from any
and all obligations under Paragraphs 4, 6, 8 and 11 of this Agreement that arise after the assignment and
shall have no further obligations under Paragraph 4, 6, 8 or 11.
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8. Transfer of Endowment to Citv. There are two procedures where the Endowment
Funds can be transferred to the City. The procedures include the City accepting the IOD for the
Conservation Land or by action of the City Council. They are described further below:
Within thirty (30) days after receipt of notice from the City that the City has accepted the
IOD, the then-owner of the Conservation Land (i.e. Taylor Morrison or SDHC) shall cause the entire
Endowment Funds to be transferred to the City or its designee.
Within thirty (30) days after receipt of notice from the City that the City Council has
directed that the Endowment-Funds be transferred, the then-owner of the Conservation Land (i.e. Taylor
Morrison or SDHC) shall cause the entire Endowment Funds to be transferred to the City or its designee.
All costs associated with the transfer will be borne by the Transferor (i.e. Taylor Morrison or SDHC).
9. Security. Taylor Morrison deposited the Endowment Funds in the amount of
$327,461.68 into an escrow account (No. 389567) with First American Title Company, with instructions
for the release of such funds, plus earnings, upon the authorization of Taylor Morrison and SDHC.
10. Enforcement by City.
(a) Notice of Violation. If City, its successors or assigns determines that the owner
of the Conservation Land is in violation of the' terms of this Agreement or that a violation is threatened, City
may demand the cure of such violation. In such a case, City shall issue a written notice to the owner of
the Conservation Land (hereinafter "Notice of Violation") informing the owner of the Conservation Land
of the actual or threatened violations and demanding cure of such violations
(b) Time to Cure. The owner of the Conservation Land shall cure the noticed
violations within fifteen (15) days of receipt of said Notice of Violation from City. If said cure reasonably
requires more than fifteen (15) days, the owner of the Conservation Land shall, within the fifteen (15) day
period submit to City for review and approval a plan and time schedule to diligently complete a cure. The
owner of the Conservation Land shall complete such cure in accordance with the approved plan. If the
owner of the Conservation Land disputes the Notice of Violation, it shall issue a written notice of such
dispute to City within fifteen (15) days of receipt of written Notice of Violation.
(c) Failure to Cure. If the owner of the Conservation Land fails to cure the noticed
violations within the time period described in Paragraph 1 O(b) above or Paragraph 1 O(d)(ii) below, City
may bring an action at law or in equity in a court of competent jurtsdiction to enforce compliance by the
owner of the Conservation Land with the terms of this Agreement. In such action, the City may:
(i) Recover any damages to which City may be entitled for violation by lhe
owner of the Conservation Land of the terms of this Agreement, subject to the limitations in
Paragraph 1 O(g) and Paragraph 1 O(h) below. City shall first apply any damages recovered to the
cost of undertaking any corrective action on the Conservation Land.
(ii) Enjoin the violation, ex parte if necessary, by temporary or permanent
injunction without the necessity of proving either actual damages or the inadequacy of otherwise
available legal remedies.
(iii) Obtain other equitable relief, including, but not limited to, the restoration
of the Conservation Land to the condition in which it existed prior to any such violation or injury.
(d) Notice of Dispute. If the owner of the Conservation Land provides City with a
Notice of Dispute, as provided herein, City shall meet and confer with the owner of the Conservation
Land at a mutually agreeable place and time, not to exceed thirty (30) days from the date that City receives
the Notice of Dispute. City shall consider all relevant information concerning the disputed violation provided
by the owner of the Conservation Land and shall determine whether a violation has in fact occurred and, if
so, determine whether the Notice of Violation and demand for cure issued by City is appropriate in light of
the violation.
(i) City shall use the following principles in making a determination:
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(1) Management activities shall be chosen for their long-term
benefits to the Conservation Land's "Conservation Values" (as defined in the Restrictive
Covenant) rather than for short-term benefits;
(2) Management activities that benefit habitat protection shall be
chosen in favor of management activities designed to benefit individual species, except
where State or federally listed species are at issue;
(3) Habitat maintenance is of primary importance in protecting the
long-term Conservation Values of the Conservation Land;
(4)
order of preference:
Management activities shall be chosen according to the following
i) Preventative actions shall be taken to avoid additional impact;
ii) Natural restoration shall be used if appropriate, based on the
magnitude of the impact, the impacts on listed or sensitive species, and the
estimated time for recovery to occur;
iii) Active restoration shall be . required only where there are
potential severe, long-term impacts to the Conservation Land's Conservation Values,
or where highly sensitive species are impacted.
(ii) If, after reviewing the owner of the Conservation Land's Notice of Dispute,
conferring with the owner of the Conservation Land and considering all relevant information related
to the violation, City determines that a violation has occurred. City shall give the owner of the
Conservation Land notice of such determination in writing. The owner of the Conservation Land shall
cure the noticed violations within fifteen (15) days of receipt of said written notice from City. If said
cure reasonably requires more than fJfteen (15) days, the owner of the Conservation Land shall, w~hin
the fJfteen (15) day period submit to City for review and approval a plan and time schedule to diligen~y
complete a cure. The owner of the Conservation Land shall complete such cure in accordance with
the approved plan.
(e) Conflicting Notices of Violation.
(i) If the owner of the Conservation Land receives a Notice of Violation from
City that is in material conflict with one or more prior written Notices of Violation that have not yet
been cured by the owner of the Conservation Land such that the conffict makes it impossible for the
owner of the Conservation Land to carry out a cure consistent with all prior active Notices of
Violation, the owner of the Conservation Land shall give written notice to the City within fifteen (15)
days of receipt of such conflicting Notice of Violation. A valid Notice of Conftict shall describe the
conflict with specificity, including a description of how the conflict makes compliance with all active
Notices of Violation impossible. The failure of the owner of the Conservation Land to issue a valid
Notice of Conftict within 15 days of receipt of a conflicting Notice of Violation shall result in a waiver of
the owner of the Conservation Land's ability to claim a conflict.
(ii) Upon issuing a valid Notice of Conflict to the City, as described above,
the owner of the Conservation Land shall not be required to carry out the cure described in the
conflicting Notices of Violation until such time as the City issues a revised Notice of Violation
making all active Notices of Violation consistent. Upon receipt of a revised, consistent Notice of
Violation, the owner of the Conservation Land shall carry out the cure recommended in such notice
within the time periods described in Paragraph 10(b) above. Notwithstanding Paragraph 10(f), failure
to cure within said time periods shall entitle City to the remedies described in Paragraph 10(c).
(iii) This Paragraph 10(e) shall not apply to Paragraph 10(f) below.
(f) Immediate Action. If City determines that circumstances require immediate action
to prevent or mitigate significant damage to the Conservation Values of the Conservation Land, the City may
immediately pursue all available remedies, including injunctive relief, available pursuant to both this
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Agreement and state and federal law after giving the owner of the Conservation Land at least twenty-four (24)
hours written notice before pursuing such remedies. So long as such twenty four (24) hour notice is given,
City may immediately pursue all available remedies without waiting for the expiration of the time periods
provided for cure or notice of dispute as described in Paragraph 1 O(b) and Paragraph 1 O(e) above. The
rights of City under this paragraph apply equally to actual or threatened violations of the terms of this
Agreement. The parties agree that the remedies at law for the City for any violation of the terms of this
Agreement are inadequate and that the City shall be entitled to the injunctive relief described in this
paragraph, both prohibitive and mandatory, in addition to such other relief to which City may be entitled,
including specific performance of this Agreement, without the necessity of proving either actual damages
or the inadequacy of otherwise available legal remedies. The remedies described in this paragraph shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including,
but not limited to, the remedies set forth in Civil Code Section815, et seq.
(g) Violation by SDHC. If a court of competent jurisdiction determines that SDHC, as
a subsequent owner of the Conservation Land, has violated any term of this Agreement:
(i) Liability for damages shall be limited to acts or omissions covered by
SDHC'S general liability insurance policy to the coverage limits of the policy, except as described
in Paragraph 10(g)(iii) below;
(ii) Endowment Funds shall not be used to pay any damages;
(iii) If a violation arises from an intentional act by SDHC, SDHC shall be
liable for the full extent of damages resulting from the violation, even if beyond the limits of any
insurance policy;
(iv) In lieu of monetary damages, City may accept the 100 and
management responsibility of the Conservation Land,
(v) This Paragraph 1 O(g) shall only be applicable to SDHC.
(h) Acts Beyond Control of the Owner of the Conservation Land. Nothing contained in
this Agreement shall be construed to entitle City to bring any action against the owner of the Conservation
Land or make any claim on the owner of the Conservation Land's insurance policy for any injury to or
change in the Conservation Land resulting from:
(i) Any cause beyond the control of the owner of the Conservation Land
and any acts of nature, including without limitation, fire, ftood, storm, ground shaking,
earthquakes, earth movement, lightning, windstorms or any other event of nature; or
(ii) Any prudent action taken by the owner of the Conservation Land, under
emergency conditions to prevent, abate, or mitigate significant injury to persons and/or the
Conservation Land resulting from such causes;
(iii) Any activities or actions permitted or required by the PMP, the
Restoration Plan or the PAR;
(iv)
representatives;
Acts by City or its employees, directors, officers, agents, contractors, or
(v) Acts of third parties (including any governmental agencies) that are
beyond the control of the owner of the Conservation Land, so long as the owner of the
Conservation Land takes reasonable steps to prevent prohibited uses of the Conservation Land.
Notwithstanding the foregoing, the owner of the Conservation Land must obtain any applicable
governmental permits and approvals for any activity or use permitted by this Agreement, and undertake any
activity or use in accordance with all applicable federal, state, local and administrative agency statutes,
ordinances, rules, regulations, orders or requirements.
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(i) Enforcement Discretion. Enforcement of the terms of this Agreement shall be at
the discretion of City. Any forbearance by City to exercise rights under this Agreement in the event of any
breach of any term of this Agreement shall not be deemed or construed to be a waiver by City of such term
or of any subsequent breach of the same or any other term of this Agreement or of any of the rights of City
under this Agreement. No delay or omission by City in the exercise of any right or remedy upon any breach
by the owner of the Conservation Land shall impair such right or remedy or be construed as a waiver.
11. Hold Harmless. The owner of the Conservation Land shall hold harmless, protect and
indemnify City and its directors, officers, employees, agents, contractors and representatives, and the heirs,
personal representatives, successors and assigns of each of them (each, an "Indemnified Party'', and
collectively, "Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages,
expenses (including without limitation reasonable attorneys' fees and experts' fees), causes of action,
claims, demands, orders, liens or judgments (each, a "Claim", and collectively, "Claims"), arising from or in
any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting
from any act, omission, condition or other matter related to or occurring on or about the Conservation Land,
regardless of cause, except that this indemnification shall not apply to Indemnified Parties with respect to
any Claim due solely to the negligence of City or any of its employees; and (ii) the existence or
administration of this Agreement. If any action or proceeding is brought against any of the Indemnified
Parties by reason of any such Claim, the owner of the Conservation Land shall, at the election of and
upon written notice from City, defend such action or proceeding by counsel reasonably acceptable to City
or reimburse City for attorneys' fees in defending the action or proceeding.
12. Notices. Unless otherwise specifically provided herein, all notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon
personal delivery or as of the second business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Taylor Morrison, to:
If to City, to:
TAYLOR MORRISON OF CALIFORNIA, LLC
81051rvine Center Drive, Suite 1450
Irvine, CA 92618
Attention: April Tornillo
Carlsbad City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Fax: (760) 720-6917
or to such other address or to such other person as any party will designate to the others for such purpose
in the manner hereinabove set forth.
13. Termination. Upon acceptance of the IOD by the City and transfer of the Endowment
to the City pursuant to Paragraph 8 above, this Agreement shall terminate, and neither party shall have any
further rights, duties or obligations under this Agreement.
14. Memorandum. At the request of City, the parties shall execute and acknowledge a
memorandum of this Agreement in the form attached hereto as Exhibit "F", which City may, at its option,
have recorded in the Official Records of San Diego County, California.
15. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire Agreement between the
parties with respect to the matters set forth herein, and supersedes all prior discussions, negotiations,
understandings or contemporaneous agreements (whether oral or written) between the parties with respect
to the matters set forth herein.
(b) Amendment. This Agreement may be modified only in a writing signed by both
parties.
(c) Successors and Assigns. This Agreement shall be binding upon and inure to
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the benefit to the parties and their respective heirs, personal representatives, successors and assigns,
(d) Severability. The invalidity or unenforceability of any provision of this
Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or
enforceability of any other provision hereof, unless a party's material consideration thereby fails.
(e) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California.
(f) Counterparts. The parties may execute this Agreement in two or more
counterparts, each of which shall be deemed an ·original, but all of which, taken together, shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be effective as of the
date first above written.
Taylor Morrison: TAYLOR MORRISON OF CALIFORNIA, LLC
BY:
'2013
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EXHIBIT "A"
Legal Description of Property
LOTS I, 3, 4 AND 5 OF CARLSBAD TRACT NO. 06-27, MUROYA PROPERTY, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 15846, FILED IN THE OFFICE OF THE SAN
DIEGO COUNTY RECORDER, NOVEMBER 2, 2011, DOCUMENT NO. 2011-0583227 OF
OFFICIAL RECORDS.
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EXIDBIT "B"
Property Analysis Record (PAR) (attached)
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EXHIBIT "C"
Declaration of Restrictive Covenant (attached)
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EXHIBIT "D"
Legal Description of Conservation Land
LOT 4 OF CARLSBAD TRACT NO. 06-27, MUROY A PROPERTY, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 15846, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER, NOVEMBER 2, 2011, DOCUMENT NO. 2011-0583227 OF OFFICIAL
RECORDS.
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EXIDBIT "E"
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Carlsbad City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
Documentary transfer tax is$ -0-[6.C §6103]
[X] Computed on full value of property conveyed, or
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
[ ] Computed on full value less value of liens and encumbrances remaining at time of sale or transfer.
[ ] Unincorporated area or [X] City of Carlsbad.
IRREVOCABLE OFFER TO DEDICATE REAL PROPERTY
Re: IOD for City of Carlsbad Planning
Commission Resolution No. 6686 (CT 06-27)
APN Lot 4 of Carlsbad Tract No. 06-27 as shown
on Map No. 15864 filed in the ot1ice of
the San Diego County Recorder on November 2,
2011.
TAYLOR MORRISON OF CALIFORNIA, LLC, a California limited liability company
(hereinafter designated "Grantor"), the owner of Lot 4 of the real property as more particularly
described on Exhibit "A" attached hereto and incorporated herein by reference (the "Property"),
hereby grants this IRREVOCABLE OFFER TO DEDICATE the Property (Lot 4) to the CITY
OF CARLSBAD, a California municipal corporation (hereinafter collectively designated
"Grantee"), its successors and assigns, for fee title to the Property for open space and habitat
conservation purposes pursuant to the Grantee's Planning Commission Resolution No. 6686 (CT
06-27).
IN WITNESS WHEREOF, the Grantor has caused this Irrevocable Offer to Dedicate Real
Property to be executed this day of _____________ _
TAYLOR MORRISON OF CALIFORNIA, LLC
BY: Taylor Morrison Services, Inc.
By:------------
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On before me, notary public, personally
appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatnre(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Signature ofNotary
-15-
EXHIBIT "A"
Legal Description of Conservation Land
LOT 4 OF CARLSBAD TRACT NO. 06-27, MUROY A PROPERTY, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 15846, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER, NOVEMBER 2, 2011, DOCUMENT NO. 2011-0583227 OF OFFICIAL
RECORDS.
-16-
EXHffiiT "F"
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Carlsbad City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
SPACE ABOVE TillS LINE FOR RECORDER'S USE ONLY
MEMORANDUM OF
OPEN SPACE OWNERSHIP, MANAGEMENT AND FUNDING AGREEMENT
This Memorandum of Open Space Ownership, Management and Funding Agreement
("Memorandum") is made and entered into as of March 29, 2012 by and between TAYLOR
MORRISON OF CALIFORNIA, LLC, a California limited liability company ("Taylor
Morrison") and the City of Carlsbad, a municipal corporation (hereinafter the "City").
R-E-C-1-T-A-L-S
A. Taylor Morrison is the owner in fee simple of approximately 19.35 acres of land
located in the City of Carlsbad, County of San Diego, State of California legally described in
Exhibit "A", attached hereto and incorporated herein by reference (the "Property").
B. Taylor Morrison has obtained approval from the City of a final subdivision map
for the Property that permits the development of 37 residences and 5 lots on the Property. The
second of these open space lots, designated as Lot 4 on the final map has been set aside and
preserved as open space for the long term conservation and preservation of habitat and species.
C. On April4, 2012 Taylor Morrison executed that certain written agreement entitled
"OPEN SPACE OWNERSHIP, MANAGEMENT AND FUNDING AGREEMENT" which
specified the rights and obligations of Taylor Morrison as it relates to the conservation and
preservation of Lot 4 only (hereinafter the "Agreement").
D. The purpose of this Memorandum is to summarize some of the basic terms
contained in the Agreement and to reflect these terms of record with the understanding that this
Memorandum does not contain all of the terms of the Agreement. A full and complete copy of
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the Agreement is on file with the City Clerk of the City and available for review through the City
Clerk's office. The entire Agreement must be reviewed to understand all terms of the
Agreement.
C-0-V-E-N-A-N-T-S
1. Effect of Agreement on Title. The Agreement affects only Lot 4 of the Property.
The Agreement does not affect title to Lots 1-3 and 5 as shown on the Final Map for the
Property.
2. Snmmary of Agreement Terms. Lot 4 of the Property will be managed,
maintained, and preserved in accordance with the Preserve Management Plan prepared by Dudek
in November, 2011 (hereinafter the "PMP") incorporated herein as if set forth in full. Taylor
Morrison has agreed to pay fees and costs necessary to create 0.87 acres of Southern Maritime
Chaparral and 0.05 Acres of Southern Mixed Chaparral on the Property and to maintain it for a
five (5) year period in accordance with the Restoration Plan prepared by Dudek in May 2011 (the
"Restoration Plan"). The Property Analysis Record ("PAR") has been prepared for Lot 4 that
estimates the cost of management and monitoring of Lot 4 of the Property in perpetuity. Taylor
Morrison has agreed to pay a non-wasting endowment in the amount specified in this approved
PAR.
Taylor Morrison granted the City a Restrictive Covenant over Lot 4 of the Property as
legally described in Exhibit "B" attached hereto. ("Conservation Land"). Taylor Morrison has
also agreed to grant to the City an irrevocable offer of dedication ("'OD") of fee title to the
Conservation Land in the fonn attached to the Agreement. Under the terms of the Agreement,
the Conservation Land will be transferred to the San Diego Habitat Conservancy, a nonprofit
organization, who will be responsible for perfonning management and preservation activities as
specified in the Agreement unless the City accepts the IOD. The City has the right to require
transfer of the endowment to tl1e City on thirty (30) days written notice to the then owner of the
Conservation Land as provided in paragraph 8 of the Agreement. The City has the separate right
to enforce the Agreement as set forth in paragraph 10 of the Agreement. All tenns of the
Agreement are incorporated herein by reference as if set forth in full. A full copy of the
Agreement and its terms may be obtained from the City Clerk of the City.
3. Primacv of Agreement. Nothing contained in this Memorandum shall be
construed as amending or altering any of the terms of the Agreement. This Memorandum is
merely intended to provide notice in the public record of the existence of the Agreement. The
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latest executed version of the Agreement must be reviewed to properly determine all tenns and
provisions contained in the Agreement.
4. Recordation of Memorandum. The City shall have the right to record this
Memorandum at any time and upon such recording this Memorandum shall be reflected as a
matter of title record for Lot 4 of the Property.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of August 13,
2013.
TAYLOR MORRISON OF CALIFORNIA, LLC
BY: Taylor Morrison Services, Inc.
BY:
City of Carlsbad, a municipal corporation
BY:
Sandra Holder, Community Development Director
APPROVED AS TO FORM:
Ronald R. Ball, City Attorney
BY:
Assistant City Attorney
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On before me, notary public, personally
appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me tbat he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his!her/tbeir signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Signature ofNotary
-20-
EXHffiiT "A"
Legal Description of Property
LOTS I, 3, 4 AND 5 OF CARLSBAD TRACT NO. 06-27, MUROY A PROPERTY, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. I5846, FILED IN THE OFFICE OF THE SAN
DIEGO COUNTY RECORDER, NOVEMBER 2, 20I I, DOCUMENT NO. 20I I-0583227 OF
OFFICIAL RECORDS.
-21-
EXHIBIT "B"
Legal Description of Conservation Land
LOT 4 OF CARLSBAD TRACT NO. 06-27, MUROYA PROPERTY, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 15846, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER, NOVEMBER 2, 2011, DOCUMENT NO. 2011-0583227 OF OFFICIAL
RECORDS.
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EXHIBIT "G"
San Diego Habitat Conservancy Investment Policy
-23-
Taylor Morrison
First American Title
Attn: Karen Hagen, Sr. Escrow Officer
3131 Camino Del Rio, No. 190
San Diego, CA 92108 ·
November 9, 2011
TAYLOR MORRISON OF CA.LLC
8105 Irvine Center Drive
Surte 1450
Irvine, CA
92618
Re: Muroya (Carlsbad) Pro!eet-Deposit of Endowment Funds for Natural Habitat
Escrow No.: 3889567 ("Escrow")
Dear Ms. Hagen:
This letter constitutes the joint escrow instructions of Taylor Morrison of California, LLC
("TMC") and San Diego Habitat Conservancy ("SDHC'') to First American Title ("Escrow Holder")
with respect to the above-identified Escrow. TMC and SDHC have opened the Escrow for the purpose of
facilitating the transfer of certain funds to be used for the management and monitoring of certain real
property identified as Lot 4 of Carlsbad Tract No. 06-27, Muroya Property, in the City of Carlsbad,
County of San Diego, State ofCalifomia, according to Map thereofNo. 15846, filed in the Office ofthe
San Diego County Recorder, November 2, 2011, Document No. 2011-0583227 of Official Records (the
"Protected Site"), which was set aside, as required by the City of Carlsbad ("City"), for protection.
As part of the approvals tor a residential project adjacent to the Protected Site, the City required
TMC to create an endowment for the perpetual maintenance and monitoring of the Protected Site. Upon
satisfaction of various requirements of SDHC, SDHC will agree to accept fee title to the Protected Site
and provide the management and monitoring of the Protected Site, and accept the endowment funded by
TMC. It is the intent of the parties that the terms and conditions governing the transfer of fee title to the
Protected Site will be addressed in separate instructions. TMC and SDHC have agreed to open this
escrow for the deposit and transfer of the endowment funds to SDHC upon the satisfaction of certain
conditions, as described in more detail below.
I. TMC will deposit into Escrow the following documents and funds:
(a)
TMC and SDHC;
One ( I ) copy of the fully executed Memorandum of Understanding between
(b) Cash, in the amount of Three Hundred Twenty Seven Thousand, Four Hundred
Sixty One Dollars and Sixty Eight Cents ($327,461.68) (the "Endowment Funds"), plus the additional
amount necessary to cover all of the costs of the Escrow and recording fees (collectively, "TMC
Funds"), with said funds to be deposited ip an interest bearing account; and
(c) Copies of any and all authority documents required by Escrow Holder verifying
that TMC is duly organized and validly existing and that all closing documents have been duly
authorized, executed and delivered by TMC ("TMC Authority Documents").
2. SDHC will deposit into the Escrow the following original documents:
-.
First American Title
Escrow No. 3889567
November 9, 201 I
Page2
(a) Copies of any and all authority documents required by Escrow Holder verifying
that SDHC is duly organized and validly existing and that all closing documents have been duly
authorized, executed and delivered by SDHC ("SDHC Authority Documents").
3. Conditions Precedent to Closing. The following are Conditions Precedent to Closing:
(a) Escrow Holder has received all of the above-referenced documents and funds and
any other documents or instruments required by Escrow Holder.
(b) Escrow Holder has signed and returned a scanned copy of this instruction letter
c-mailed to TMC, in care of April Tornillo (atomillo@taylormorrison.com), and to SDHC in care of Don
Scoles ( dons@sdhabitat.org).
(c) The City has reviewed and approved Property Analysis Record, Preserve
Management Plan, and Declaration of Restrictive Covenants that all apply to the Protected Site, and the
Declaration of Restrictive Covenants is recorded in the Official Records of the County of San Diego.
(d) TMC and SDHC have executed the operating agreement governing the
relationship of said parties as it pertains to the Protected Site.
(e) Escrow Holder has received oral or wriuen confirmation from TMC that all other
conditions to closing that are to be satisfied outside of Escrow have been fulfilled to each party's
satisfaction and that the Escrow is ready to close.
(f) Escrow I-I older is in a position to do each and all of the tasks described in this
letter.
4. Close of Escrow: Upon receipt of the TMC funds and direction from TMC, as set forth
above, you are then authorized and directed to proceed as follows:
(a) date all undated documents as of the Close of Escrow, verify that all documents
have all exhibits attached and compile originals of any documents delivered to you in counterparts; and
(b) release to SDHC of the full amount of the Endowment Funds and disburse the
remainder of the TMC Funds to Escrow Holder;
5. Non-Liability of SDHC. The parties to this Escrow acknowledge and agree that if the
Endowment Funds are released to any other person or entity other than SDHC, that SDHC shall not be
responsible or liable for said Endowment Funds, or any other obligations related to the Protected Site.
6. Conflicting Information. If there is any conflict or inconsistt.-ncy between these
instructions and any other the instructions received from TMC or SDHC or from any other person or
entity in connection with the Close of Escrow, do not proceed until you have contacted April Tornillo on
behalfofTMC and Don Scoles on bchalfofSDHC and the conflict has been resolved by a written
document signed by TMC and SDHC.
First American Title
Escrow No. 3889567
November 9, 20 II
Page 3
7. Closing Confirmation and further Instructions. Please e-mail April Tornillo on behalf of
TMC and Don Scoles on behalf of SDHC when Escrow closes or if you have any questions concerning
any of the foregoing. Also, please contact the same persons immediately if anything further is required
from eitherTMC or SDHC in order to close Escrow. If Escrow has not closed on or before 2:00p.m.,
Pacific Time, on June 1 ", 2012, you arc to call the above-identified individuals for further instructions,
which may include the requirement that you return to the parties any and all documents. If you cannot
comply with all of the foregoing, you are not authorized to close Escrow and you are to contact the above-
identified persons immediately.
8. Acceptance of Instructions. Please evidence your receipt of the documents referenced in
this letter, your agreement to proceed in accordance with the terms of this letter, and your agreement to
serve as the Escrow Holder for the funds and-documents in accordance with the terms of these Escrow
instructions, by signing in the space provided below and returning a copy of this letter to April Tornillo
for TMC and to Don Scoles for SDHC. In any event, the disbursement of any ofTMC Funds will
evidence your unconditional agreement to the tenns and conditions of this letter.
If you have any questions, please call April Tornillo at 858-864-6206, and Don Scoles at 619-
668-7474. Thank you.
Sincerely,
TAYLOR MORRISON OF CALIFORNIA, LLC
Name: ____ ~~~~~~~~·~~~~---.~====== Title:
SAN DIEGO HABITAT CONSERVANCY
7 ' J/~~
Name: Don Scoles
Title: Executive Director
THE FOREGOING TERMS AND CONDITIONS ARE ACCEPTED AND AGREED TO ON
NOVEMBER 10_, 2011.
FIRST AMERICAN TITLE
First American Title Company
3131 Camino Del Rio North Suite 190 San Diego, CA 92108
PR:06243 Ofc: 3710 DATE: 11110/2011
RECEIPT NO.: 1275123967
RECEIPT FOR DEPOSIT FILENO.: DIV-3889567
FUNDS IN THE AMOUNT OF: $327,461.68
WERE RECEIVED FROM: Taylor Morrison of California, LLC
CREDITED TO THE ACCOUNT OF: Buyer
TYPE OF DEPOSIT: Personal Check REPRESENTING: Initial Deposit
Comments:
Property Location: Open-Space Lot 4 at Muroya, Sao Dieg0, CA
BY: Marta K. Hyde, 11/10/2011
ESCROW OmCER: Karen Hagen
"The vaUdity of this receipt, for the deposit referenced,
is subject to clearance by the depository financial institution and credit to our account."
Received by First American Title Company
Pay
To
The
Order
Of
I I • l.
:13r~n~~~dred Twenty Seven Thousand Four Hundred Sixty One Dollars •
FIRST -"!MER/CAN TITLE coMPANY
5 First ,American Wsy S!Ji!ta Ali11, CA . 92707
;;. ·--
.. ;;..:-.. · ~,.:>> . ~.
Check Number
30000-00018747
Amount
$327,461.68
PAYABLE IN U.S. DOLLARS
Escrow General Provisions-REVISED JUNE 20, 2011
Receipt of these provisions deems acceptance of the terms. Please read for general information about the escrow
process.
1. SPECIAL DISCLOSURES:
A. DEPOSIT OF FUNDS & DISBURSEMENTS
Unless directed in writing to establish a separate, interest-bearing account together with all necessary taxpayer
reporting information, all funds shall be deposited in general escrow accounts in a federally insured financial institution
including those affiliated with Escrow Holder (''depositories''). All disbursements shall be made by Escrow Holder's
check or by wire transfer unless otherwise instructed in writing. The Good Funds Law (california Insurance Code
12413.1) mandates that Escrow Holder may not disburse funds until the funds are, in fact, available in Escrow Holder's
account. Wire transfers are immediately disbursable upon confirmation of receipt. Funds deposited by a cashier's or
certified check are generally available on the next banking day following deposit. Funds deposited by a personal check
and other types of instruments may not be available until confirmation from Escrow Holder's bank which can vary from
2 to 10 days.
B. DISCLOSURE OF POSSIBLE BENEFITS TO ESCROW HOLDER
As a result of Escrow Holder maintaining its general escrow accounts with the depositories, Escrow Holder may receive
certain financial benefits such as an array of bank services, accommodations, loans or other business transactions from
the depositories (''collateral benefits''). All collateral benefits shall accrue to the sole benefit of Escrow Holder and
Escrow Holder shall have no obligation to account to the parties to this escrow for the value of any such collateral
benefits.
C .. MISCELLANEOUS FEES
Escrow Holder may incur certain additional costs on behalf of the parties for services performed, or fees charged, by
third parties. The fees charged by Escrow Holder for services including, but not limited to, wire transfers, overnight
delivery/courier services, etc. may include a mark up over the direct cost of such services to reflect the averaging of
direct, administrative and overhead charges of Escrow Holder for such services which shall, in no event, exceed $10 for
each markup.
D. METHOD TO DELIVER PAYOFF TO LENDERS/LIENHOLDERS
To minimize the amount of interest due· on any existing loan or lien, Escrow Holder will deliver the payoff funds to the
lender/lienholder as soon as Escrow Holder is able after confirmation of recordation/close of escrow and as demanded
by the tender/lienholder using (a) personal delivery, (b) wire transfer, or (c) overnight delivery service, unless
otherwise directed in writing by the affected party. Certain payments such as home equity line of credit payoffs
("HELOCS'') may require additional time to process.
2. PRORATIONS & ADJUSTMENTS
The term "close of escrow" means the date on which documents are recorded. All prorations and/or adjustments shall
be made to the close of escrow based on the number of actual days, unless otherwise instructed in writing.
3. CONTINGENCY PERIODS
Escrow Holder shall not be responsible for monitoring contingency time periods between the parties. The parties shall
execute such documents as may be requested by Escrow Holder to confirm the status of any such periods.
4. REPORTS
a. Preliminary Report -Escrow Holder has neither responsibility nor liability for any title search that may be performed
in connection with the issuance of a preliminary report.
b. Other Reports-As an accommodation, Escrow Holder may agree to transmit orders for inspection, termite,
disclosure and other reports if requested, in writing or orally, by the parties or their agents. Escrow Holder shall deliver
copies of any such reports as directed. Escrow Holder is not responsible for reviewing such reports or advising the
parties of the content of same.
5. INFORMATION FROM AFFILIATED COMPANIES
Escrow Holder may provide the parties' information to and from its affiliates in connection with the offering of products
and services from these affiliates.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT· OF INSURANCE.
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6. RECORDATION OF DOCUMENTS
Escrow Holder is authorized to record documents delivered through escrow which are necessary or proper for the
issuance of the requested title insurance policy(ies). Buyer will provide a completed Preliminary Change of Ownership
Report form (''PCOR''). If Buyer fails to provide the PCOR, Escrow Holder shall close escrow and charge Buyer any
additional fee incurred for recording the documents without the PCOR. Escrow Holder is released from any liability in
connection with same.
7. PERSONAL PROPERTY TAXES
No examination, UCC search, insurance as to personal property and/or the payment of personal property taxes is
required unless otherwise instructed in writing.
8. REAL PROPERTY TAXES
Real property taxes are prorated based on the most current available tax statement from the tax collector's office.
Supplemental taxes may be assessed as a result of a change in ownership or completion of construction. Adjustments
due either party based on the actual new tax bill issued after close of escrow or·a supplemental tax bill will be made by
the parties outside of escrow and Escrow Holder is released of any liability in connection with such adjustments~ The
first installment of california real property taxes is due November 1st (delinquent December lOth) and the second
installment is due February 1st (delinquent April lOth). If a tax bill is not received from the County at least 30 days
prior to the due date, buyer should contact the County Tax Collector's office and request one. Escrow Holder is not
responsible for same.
9. CANCELLATION OF ESCROW
a. Any party desiring to cancel this escrow shall deliver written notice of cancellation to Escrow Holder. Within a
reasonable time after receipt of such notice, Escrow Holder shall send by regular mail to the address on the escrow
instructions, one copy of said notice to the other party(ies). Unless written objection to cancellation is delivered to
Escrow Holder by a party within 10 days after date of mailing, Escrow Holder is authorized, at its option, to comply with
the notice and terminate the escrow. If a written objection is received by Escrow Holder, Escrow Holder is authorized,
at its option, to hold all funds and documents in escrow (subject to the funds held fee) and to take no other action until
otherwise directed by either the parties' mutual written instructions or a final order of a court of competent jurisdiction.
If no action is taken on this escrow within 6 months after the closing date specified in the escrow instructions, Escrow
Holder's obligations shall, at its option, terminate. Upon termination of this escrow, the parties shall pay all fees,
charges and reimbursements due to Escrow Holder and all documents and remaining funds held in escrow shall be
returned to the parties depositing same.
b. Notwithstanding the foregoing, upon receipt of notice of cancellation by a seller in a transaction subject to the
Home Equity Sales Contract law (CC §1695 et seq.), Escrow Holder shall have the right to unilaterally cancel the escrow
and may return all documents and funds without consent by or notice to the buyer.
10. CONFLICTING INSTRUCTIONS & DISPUTES
If Escrow Holder becomes aware of any conflicting demands or claims concerning this escrow, Escrow Holder shall
have the right to discontinue all further acts on Escrow Holder's part until the conflict is resolved to Escrow Holder's
satisfaction. Escrow Holder has the right at its option to file an action in interpleader requiring the parties to litigate
their claims/rights. If such an action is filed, the parties jointly and severally agree (a) to pay Escrow Holder's
cancellation charges, costs (including the funds held fees) and reasonable attorneys' fees, and (b) that Escrow Holder
is fully released and discharged from all further obligations under the escrow. If an action is brought involving this
escrow and/or Escrow Holder, the party(ies) involved in the action agree to indemnify and hold the Escrow Holder
harmless against liabilities, damages and costs incurred by Escrow Holder (including reasonable attorneys' fees and
costs) except to the extent that such liabilities, damages and costs were caused by the negligence or willful misconduct
of Escrow Holder.
ll.USURY
Escrow Holder is not to be concerned with usury as to any loans or encumbrances in this escrow and is hereby
released of any responsibility and/or liability therefore.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
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12. AMENDMENTS TO ESCROW INSTRUCTIONS
Any amendment to the escrow instructions must be in writing, executed by all parties and accepted by Escrow Holder.
Escrow Holder may, at its sole option, elect to accept and act upon oral instructions from the parties. If requested by
.Escrow Holder the parties agree to confirm said instructions in writing as soon as practicable. The escrow instructions
as amended shall constitute the entire escrow agreement between the Escrow Holder and the parties hereto with
respect to the subject matter of the escrow.
13. FIRE, HAZARD OR LIABILITY INSURANCE POLICIES
In all matters relating to fire, hazard or liability insurance, Escrow Holder may assume that each policy is in force and
that the necessary premium has been paid. Escrow Holder is not responsible for obtaining fire, hazard or liability
insurance, unless Escrow Holder has received specific written instructions to obtain such insurance prior to close of
escrow from the parties or their respective lenders.
14. COPIES OF DOCUMENTS; AUTHORIZATION TO RELEASE
Escrow Holder is authorized to rely upon copies of documents, which include facsimile, electronic, NCR, or photocopies
as if they were an originally executed document. If requested by Escrow Holder, the originals of such documents shall
be delivered to Escrow Holder. Escrow Holder may withhold documents and/or funds due to the party until such
originals are delivered. Documents to be recorded MUST contain original signatures. Escrow Holder may furnish copies
of any and all documents to the lender(s), real estate broker(s), attorney(s) and/or accountant(s) involved in this
transaction upon their request. Delivery of documents by escrow to a real estate broker or agent who is so designated
in the purchase agreement shall be deemed delivery to the principal.
15. EXECUTION IN COUNTERPART
The escrow instructions and any amendments may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute the same instruction.
16. TAX REPORTING, WITHHOLDING & DISCLOSURE
The parties are advised to seek independent advice concerning the tax consequences of this transaction, including but
·not limited to, their withholding, reporting and disclosure obligations. Escrow Holder does not provide tax or legal
advice and the parties agree to hold Escrow Holder harmless from any loss or damage that the parties may incur as a
result of their failure to comply with federal and/or state tax laws. WITHHOLDING OBLIGATIONS ARE THE EXCLUSIVE
OBLIGATIONS OF THE PARTIES. ESCROW HOLDER IS NOT RESPONSIBLE TO PERFORM THESE OBLIGATIONS UNLESS
ESCROW HOLDER AGREES IN WRmNG.
A. TAXPAYER IDENTIFICATION NUMBER REPORTING
Federal law requires Escrow Holder to report seller's social security number or tax identification number (both numbers
are hereafter referred to as the "TIN''), forwarding address, and the gross sales price to the Internal Revenue Service
("IRS''). To comply with the USA PATRIOT Act, certain taxpayer identification information (including, but not limited to,
the TIN) may be required by Escrow Holder from certain persons or entities involved (directly or indirectly) in the
transaction prior to closing.
Escrow cannot be closed nor any documents recorded until. the information is provided and certified as to its accuracy
to Escrow Holder. The parties agree to promptly obtain and provide such information as requested by Escrow Holder.
B. STATE WITHHOLDING & REPORTING
In accordance with Section 18662 of the Revenue and Taxation Code (R& TC), a buyer may be required to withhold an
amount equal to 3 1/3% (.0333) of the sale price, or an optional gain on sale withholding amount certified by the seller
in the case of a disposition of california real property interest by either:
1. A seller who is an individual, trust, estate, or when the disbursement instructions authorize the proceeds to be sent
to a financial intermediary of the sellers.
2. A corporate seller that has no permanent place of business in california immediately after the transfer of title to the
California property.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
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The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the
amount required to be withheld or five hundred dollars ($500).
However,-notwithstanding any other provision included in the California statutes referenced above, no buyer will be
required to withhold any amount or be subject to penalty for failure to withhold if any of the following applies:
1. The sale price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000).
2. The seller executes a written certificate under the penalty of perjury certifying that the seller is a corporation with a
permanent place of business in California.
3. The seller, who is an individual, trust, estate, or a corporation without a permanent place of business in California,
executes a written certificate under the penalty of perjury of any of the following:
a. The California real property being conveyed is the seller's or decedent's principal residence (within the meaning of
Section 121 of the Internal Revenue Code (IRC)).
b. The last use of the property being conveyed was by the transferor as the transferor's principal residence (within
the meaning of IRC Section 121).
c. The California real property being conveyed is, or will be; exchanged for property of like kind (within the meaning
of IRC Section 1031), but only to the extent of the amount of gain not required to be recognized for California income
tax purposes under IRC Section 1031.
d. The California real property has been compulsorily or involuntarily converted (within the meaning of IRC Section
1033) and the seller intends to acquire property similar or related in service or use so as to be eligible for
nonrecognition of gain for California income tax purposes under IRC Section 1033.
e. The California real property transaction will result in a loss or net gain not required to be recognized for California
income tax purposes.
The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding
requirement.
Contact FTB: For additional information regarding California withholding or for the Alternative Withholding, contact the
Franchise Tax Board at (toll free) 888-792-4900), by e-mail WSCS.GEN@ftb.ca.gov; or visit their website at
www.ftb.e:a.gov.
C. FEDERAL WITHHOLDING &. REPORTING
Certain federal reporting and withholding requirements exist for real estate transactions where the seller (transferor) is
a non-resident alien, a non-domestic corporation, partnership, or limited liability company; or a domestic corporation,
partnership or limited liability company controlled by non-residents; or non-resident corporations, partnerships or
limited liability companies.
D. TAXPAYER IDENTIFICATION DISCLOSURE
Federal and state laws require that certain forms include a party's TIN and that such forms or copies of the forms be
provided to the other party and to the applicable governmental authorities. Parties to a real estate transaction
involving seller-provided financing are required to furnish, disclose, and include the other party's TIN in their tax
returns. Escrow Holder is authorized to release a party's TINs and copies of statutory forms to the other party and to
the applicable governmental authorities in the foregoing circumstances. The parties agree to hold Escrow Holder
harmless against any fees, costs, or judgments incurred and/or awarded because of the release of their TIN as
authorized herein.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
Copyright Info Page 4 of 4
U.S. Fish and Wildlife Service
Carlsbad Fish and Wildlife Office
6010 HiddenValley Road, Suite 101
Carlsbad, California 920 11
760-431-9440
FAX 760-431-9618
In Reply Refer To:
FWS/CDFG-SDG-1 OBO 190-12T A0089
Mr. Daniel Halverson, Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad, California 92008-7314
California Department of Fish and Game
South Coast Region
3883 Ruffin Road
San Diego, California 92123
858-467-4201
FAX 858-467-4299
DEC 2,7 2011
Subject: Habitat Management Plan Consistency Findings for the Muroya Property, City of
Carlsbad, San Diego County, California (CT 06-27))
Dear Mr. Halverson:
The California Department ofFish and Game (Department) and the U.S. Fish and Wildlife
Service (Service), hereafter collectively referred to as the Wildlife Agencies, have reviewed the
letter from the City of Carlsbad (City), dated November 16, 2011, requesting our concurrence on
the Habitat Management Plan (HMP) Consistency Findings for the Muroya Property.
The primary concern and mandate of the Service is the protection of public fish and wildlife
resources and their habitats. The Service has legal responsibility for the welfare of migratory
birds, anadromous fish, and endangered animals and plants occurring in the United States. The
Service is also responsible for administering the Endangered Species Act of 1973 (Act), as
amended (16 U.S.C. 1531 et seq.) including habitat conservation plans (HCPs) developed under
section lO(a) (1) ofthe Act, such as the City's Habitat Management Plan (HMP, 2004). The
Department is a Trustee Agency and a Responsible Agency pursuant to the California
Environmental Quality Act (CEQA), Sections 15386 and 15381, respectively. The Department
is responsible for the conservation, protection, and management of the State's biological
resources, including rare, threatened, and endangered plant and animal species, pursuant to the
California Endangered Species Act (CESA), the Natural Community Conservation Planning
Program (NCCP), and other sections of the California Fish and Game Code. The City is
currently participating in the NCCP and the Service's HCP programs by implementing its HMP.
Project Site
The approximately 20-acre (ac) Muroya property is located along the west side of Black Rail
Road, a secondary street off A viara Parkway within the City. The property is situated centrally
within the U.S. Geological Survey (USGS) 7.5-minute Encinitas quadrangle, T12S, R4W;
Section 28 (Figure 1 ).
Mr. Daniel Halverson (FWS/CDFG-SDG-10B0190-12TA0089) 2
Approximately 8 ac of the property are currently being used as a palm tree nursery, including
shade houses, outbuildings, and associated access roads. A single-family residence is located in
the southeastern portion of the property. The remaining area is undeveloped and dominated by
native vegetation. Surrounding land use is developed as single-family residential homes.
The topography of the site consists of a flat bench where the nursery and single family home are
located. From the bench, the topography slopes down into a network of incised ravines that are
oriented from east to west/southwest.
The project site is located within the Local Facilities Management Zone 20 Standards Area and
the Coastal Zone and is subject to zone-specific stands (beginning on page D-79 of the HMP)
and the site-specific Coastal Zone conservation standards (beginning on D-114 of the HMP).
Project Description
The proposed project is the subdivision of the 20-ac parcel into five separate lots. Lot 1 is
approximately 6.3 ac in size and would contain 3 7 detached condominium units clustered in the
northern and eastern portions of the lot. Lot 2 is 0.9 ac in size and is the site of the existing
residence that would remain. Lots 3 and 4 are 1.6 ac and 9.8 ac, respectively, and would be open
space lots (Lot 3 as a buffer zone and Lot 4 as open space habitat). Lot 5 is a 0.7 ac lot which
would be developed as a private road for common access to the condominium units.
Sensitive Flora and Fauna Observed
No narrow endemic species, riparian habitats, or wetlands are located on the property. There is
0.02 ac of waters of the U.S.; however, this is located within the upland plant community and
does not contain any wetland or riparian habitat.
The federally listed threatened coastal California gnatcatcher (Polioptila californica californica,
"gnatcatcher") is the only sensitive species detected on the property. Two gnatcatcher pairs were
observed: one pair each in the southern and central portions of the site.
Project Biological Impacts, Mitigation, and HMP Consistency
Loss of Habitat and Associated Mitigation
Table 1 shows the impacts and proposed mitigation ratios for permanent impacts and the
acreages needed to meet these requirements.
Mr. Daniel Halverson (FWS/CDFG-SDG-1 OBO 190-12T A0089) 3
T bl 1 E . . V a e XlStmg egetat10n c .ommumtles, I mpacts, an dP ropose dM'. 1tlgat10n
Vegetation Community Existing Impacted Mitigation Onsite Onsite
Acreage Acreage Ratio Restoration Preserve
Native grassland 0.19 0.00 3:1 --0.19
Southern maritime chaparral 5.39 0.29 3:1 0.871 4.64
Waters of the U.S. 0.02 0.00 No net loss --602 linear re
Coastal sage scrub 2.03 0.00 2:1 --2.03
Southern mixed chaparral 0.77 0.05 I: 1 0.051 0.72
Agriculture 7.90 7.90 Mello II LCP Ag. In-lieu fee --Mitigation Fcc
Disturbed Land 1.83 1.56 In-lieu fee In-lieu fee --
Developed I. II I. II ------
Ornamental Plantings 1.05 0.78 ------
TOTAL 20.29 11.69 0.92 7.58 .. 1 Agnculturallands w1thm the ons1te preserve would be restored to southern manumc chaparral and southern m1xed chaparral.
Waters of the U.S. are located within upland habitats and not included separately in the total acreage.
Permanent impacts to 0.29 ac of southern maritime chaparral and 0.05 ac of southern mixed
chaparral would be mitigated through the restoration of0.87 ac and 0.05 ac, respectively, of areas
within the onsite preserve (Open Space Lot 4) mapped as agriculture (Dudek 2011). No impacts
would occur within native grassland or coastal sage scrub.
All vegetation clearing would be done from September 1 to February 14 to avoid the gnatcatcher
breeding season.
A total of approximately 8.51 ac (including the 0.92 ac of restoration) would be preserved within
the onsite preserve area outside of the San Diego Gas & Electric (SDG&E) easement. Open
Space Lot 3 is located within the SDG&E casement and would serve as a buffer between the
naturally vegetated Open Space Lot 4 and residential Lots 21-27, 29 and 35-37. All ofthe buffer
zone and Zone 3 Brush Management Zone (BMZ) would be planted with a coastal sage scrub
seed mix (Dudek 201 0). Open Space Lot 4 would be preserved through the recordation of a
biological conservation easement and would be managed in perpetuity by a habitat manager
approved by the City and Wildlife Agencies. The long-term management of the easement would
be funded through a non-wasting endowment. This action would convert the parcel to a Hardline
Conservation Area for the City's HMP. An additional 1.31 ac of habitat located within the
SDG&E easement would not be impacted. This habitat will be preserved in its existing state
through the implementation of the 1995 SDG&E Subregional Natural Community Conservation
Plan (Dudek 2011).
Mitigation for permanent impacts to agriculture and disturbed habitat would be accomplished
through the payment of mitigation fees as required by the City's HMP.
Mr. Daniel Halverson (FWS/CDFG-SDG-1 OBO 190-12TA0089) 4
Wildlife Agencies' Concurrence with the HMP Consistency Findings
The Wildlife Agencies concur with the City's determination that the proposed Muroya project is
consistent with the HMP based on the factors outlined in the MND and HMP Consistency
Findings (Carlsbad 2010, 2011).
The Wildlife Agencies appreciate the opportunity to review the HMP Consistency Findings for
the Project. If you have any questions regarding this letter, please contact Janet Stuckrath
(Service) at (760) 431-9440 extension 270 or Libby Lucas (Department) at (858) 637-4230.
(ud_.
Karen A. Goebel
Assistant Field Supervisor
U.S. Fish and Wildlife Service
Literature Cited
Sincerely,
Environmental Program Manager
California Department of Fish and Game
Carlsbad, City of. 2010. Mitigated Negative Declaration for the Muroya property. February.
Carlsbad, City of. 2011. Letter requesting consistency determination on CT 06-27-Muroya
property within Zone 20 Standards Area. November.
Dudek. 2011. Final conceptual upland mitigation plan for the Muroya property, City of
Carlsbad, California. December.
Dudek. 2010. Biological resources technical report atld impact analysis for the Muroya
property, City of Carlsbad, California. February.
Jack Henthorn & Associates
P.O. Box 237
Carlsbad, California 92018-0237
(760) 438-4090
Fax (760) 438-0981
May 20, 2011
City of Carlsbad, Planning Department
Attention: Dan Halverson
1635 Faraday Avenue
Carlsbad, CA 92008
Subject: Consistency Determination Application for the Muroya Property
Dear Planning Staff,
The Preserve Management Plan is being included for submittal and has been prepared for the
preserved open space area within the Muroya project site. The Muroya development mitigation is
identified in the Mitigated Negative Declaration (State Clearinghouse 2010021061; City of
Carlsbad, CA 2009).
As part of the Habitat Management Plan permit HMP 07-02 and conditions of approval Resolution
6690, Line Item number 9, this submittal is in conformance with the City's Habitat Management
Plan. Please find the Preserve Management Plan (PMP}, which will ensure adequate
management of the open space lots in perpetuity. Included in the Preserve Management Plan
submittal is the Property Analysis Record (PAR) that estimates the cost of management and
monitoring of the open space in perpetuity in accordance with the requirements of the North
County Multiple Habitats Conservation Plan and the City's Open Space Management Plan. A
preserve manager has not been selected at this time. Once the PMP and PAR analysis is
acceptable to the City, the conservation easement or restrictive covenant (as appropriate)
including a draft funding and management agreement will be submitted for review.
Please feel free to contact April Tornillo or Jack Henthorn should you have any questions or
require any additional information. Thank you for your time and we sincerely appreciate your
review of this submittal and look forward to hearing from you soon.
Encl.
cc: April Tornillo, Taylor Morrison Homes
Anita Hayworth, Dudek Associates
Mike Grim, City of Carlsbad
1902 Wright Place, Ste 200, Carlsbad, CA 92008
RECEIVED
MAY 2 ~ 2011
CITY OF CARLSBAD
PLANNING DEPT
Proposed Project:
Date Submitted:
Submitted by:
HMP/MHCP Compliance Review
Preserve Management Plan for the Muroya Property
6/30/11
Rosanne Humphrey, HMP Preserve Steward
Page 1, second paragraph: I think this paragraph should be refined a bit to better describe the HMP program (you
can find introductory information in the HMP. Be sure to mention that the HMP is a subarea plan under the MHCP.
Page 2, after TBD, add "Preserve Manager must have appropriate qualifications consistent with CDFG guidelines
and be approved by the City.
Page 9, 2C. Explain that the preserve is within a stepping stone corridor for the movement of the California
gnatcatcher.
Page 9, page D. Add this to the end "The qualifications of the Preserve Manager must be consistent with CDFG
guidelines and approved by the City."
Page 10.
• Has the conservation easement been recorded? If so please provide a date.
• Summarize the list of permitted and prohibited uses (a couple of sentences will do).
• Revise this paragraph. It describes biological monitoring, but should describe conservation easement
compliance monitoring (basically making sure that the stipulations in the conservation easement are
being followed.
Page 11, Table 1. Define the habitat groups (e.g., what does Group B mean?)
Page 15 first paragraph. Change "This vegetation classification occurs ... " to "This vegetation community type
occurs ... "
Page 16.
• Change subheading from "Waters of the U.S." to "B. Jurisdictional Resources.
• Revise the rest of the subheading numbering (e.g., C. Plant Species, D. Wildlife Species, etc.)
• Change last sentence to "One reptile species, western fence lizard (Sce/oporus occidentalis), was observed
on site.
Page 17.
• First paragraph: Revise first sentence as follows " ... observed or detected (by scat and other sign) during
the mammal surveys ... "
• Sensitive species section (subheading E.)-Spell out CNPS (I didn't see it previously)
• Add a sensitive species table showing species names and status (federal, state, CNPS, Covered or Not
Covered); be sure to define CNPS lists in a footnote
Page 19.
• Last sentence of second paragraph should read " ... until the restoration has met success criteria."
• Third paragraph: Pampus is spelled Pampas.
• Last sentence of third paragraph -list the "other weed species" in a table here or delete this sentence.
• Fourth paragraph: Last sentence: change " ... are not part of this PMP ... " to "are not the responsibility of the
Preserve Manager ... Once the success criteria have been met, the restoration site will become part of the
preserve and will be managed according to this PMP"
HMP/MHCP Compliance Review
1
Page 20-25
• Change "A. Biological Goals" to "A. Biological Monitoring and Management"
• Change "A. Public Use Goals" to "B. Public Use" and change "B. Fire Management Goals" to "C. Fire
Management"
• Change number of gnatcatcher surveys from every 5 years to every 3 years.
• Gnatcatcher surveys should be conducted Feb -August rather than Jan-June
• Add overspray onto native plants as an additional potential impact
• Page 22, last paragraph-change "A botanist or habitat restoration specialist" to "The Preserve Manager"
[Global change]
• Be careful of how this section is worded. This is a management plan for the preserve and not the
restoration area.
• Page 24, (a) Fix spacing on first paragraph. (b) paragraph 2 -add this to the last sentence " ... seeding the
area with native seed mix appropriate to this site, and locally collected, should be considered to ... " (c) last
paragraph, last sentence change "specified" to "supervised"
• Table 3-add Habitat Monitoring to table; globally change "Habitat Manager staff' to "Preserve Manager
or qualified staff' There's a big difference in qualifications between maintenance staff and a biologist.
• Add fixed photo point method for habitat monitoring in text.
5.0 Adaptive Management Section-this section is written for a restoration site, so I'm a little confused. If you
mean this to be management of preserve open space, you can delete most of it and incorporate the rest into the
Biological Monitoring and Management Section. If this is meant to apply only to habitat restoration due to fire or
other catastrophic event, then change the title of this section to reflect that. "Adaptive Management" is a general
term for habitat management in general (it just means you adapt to management/monitoring problems by using
different techniques as needed ;active adaptive management is doing hypothesis testing to assess new
management techniques).
6.0 Admin and Reporting last paragraph, second sentence, change to: "This would include establishing a non-
wasting endowment to fund the PMP."
Figure 3. This is a very busy figure. I would like to see this split up as follows
• Figure 3. HMP Planning Area and Proposed Preserve-This should have an aerial background. Include
Proposed Development, HMP Core, linkages, Proposed Standards Areas, and Existing Hardline, Proposed
Hardline.
• Figure 4. Biological Resources. I prefer aerial background, but not absolutely necessary. Show vegetation
communities, species and, HMP Preserve (outlines of existing, proposed and standards area as one color
-no need to differentiate on this map)
Figure 4. Revise as follows
• Figure 5. Muroya Project Preserve. Use aerial background (more useful for a preserve manager).
• Include all of the information currently shown PLUS the location of restoration
Comments on PAR
• In general, looks good.
• The rates look low
• Change CAGN surveys to every 3 years; every 5 years for sensitive plants is OK here because the species
on this site are slow growing shrubs.
• 4.5% interest rate is too high. Realistically, it's more like 3% to 3.5%
HMP/MHCP Compliance Review
2
'
MUROY A PROPERTY
RESTRICTIVE COVENANT
PROPERTY A~ AL YSIS REPORT
Prepared for:
Tay lor ~1orri on of CA
Contact: April Tornillo
(949) 341-1 289
Prepared by:
San Di go Habitat Con ervancy
Contact: D n Scole ·
(619) 668~7474
November 7, 2011
'
PROPERTY ANALYSIS RECORD
l\.1UROYA PROPERTY OPEN SPACE, CARLSBAD
November 7, 2011
A Property Analysis Record (PA.R) has been prepared for the Muroya Property Open Space
Restrictive Covenant (Operated Property), in accordance with the provisions in the October 14,
2011 Cost Proposal Agreement bctweer. San Diego Habitat Conservancy (SDIJC) and Tay:or
Morrison of CA, LLC (Project Proponent). The purpose of the PAR is to identifY the tasks and
costs associated w:th the long-term management and maintenance of the 8.53~acrc Operated
Prop<.'rty located within the City of Carlsbad.
This PAR ir:cludes Initial & Capital Tasks and Costs, as well as Long-Tcnn A1mual Task<> and
Costs associated with managmg the Operated Property and the sensitive habitat and reSQurccs
\Vithin the Operated Property. Refer to Attachment A for a map of the Operated Property· ::tabitat
and boundaries. The Cente1· for Natural Lands Management PAR2 software was used in
p:·cparing this estimate. Refer Lo Attachment B for the PAR worksheets.
SDHC staff conducted a site visit of the Operated Property on October 20, 2011. Mr. Jim Rocks
is proposed as the Preserve Manager (PM) and Mr. Rocks meets the Preserve Management Plan
{PMP) requirement for PM. The primary source used to revise lhis PAR is ~:he PMI> tor the
Muroya Property, Carlsbad, California prepared. by Dudek in September 2011. Other
documentation reviewed in preparation of this PAR includes:
• Mit1gated ~cgative Declaration, Environmental Impact Assessment, and Mitigation
Monitor1ng and Reporting Program, City of Carlsbad february 10, 2010 (GPA 06-Cl9/ZC
06-08/SP A 203D!LCPA 06·09/CT. 06a27/CP 06-19/CDP 06-32/HDP 06-l 0! HMPP 07-
02),
• Draft Conceptual Upland Mitigation Plan for the Murcya Property, City of Carlsbad,
California by Dudek October 2011
• Muroya Site Plan, by Pangaea June B, 2011
The PAR has been organized into the following categories:
• Open Space Rc::.1rictivc Cov<.'IUlnt Description
• Initial & Capital Tasks
• Annual Tasks and Costs
• Cost Estimate Sumn1ary
• Additional Assumptions
• Attachments
OP.EN SPACE OPERATED PROPERTY DESCRIPTION
The 8.5-acre Operated Propt.-rty consists of mitigation lands associated with the Muroya I'rnpcrty,
located in the City of Carlsbad. The prop~;."rty is sltuated wi~hin the U.S. Geological Survey
(USGS) i.5 minute Encinitas qt:adrangtc, TJ2S, R4W; Section 28. Refer to the map in
Attachment A for the boundaries of the Operated Property (shown as Lot 4).
Th\: Operated Prnperty contains both agricultural land, ornamental planting. and disturbed land
whic:t will require restoration and creation of habitat as a result of mitigation requirements for
project impacts. A five~year restoration program is proposed for approximately 0.92 acre within
the total 8.53 acres. As a cost saving measure for Taylor Morrision, this PAR assumes that the
restoration contractor will perfonn the management duties outline in thjs PAR and in the P:MP
during the ftrst three years of restoration, starting in 2012. l11c endowment amount and
emergency and legal fund shown in this PAR '"ill funded in 2012. SDHC w:ll assume active
management of the majority of the Operated Property in 2015 and once restoration is completed
(estimated to be 2017), SDHC will i.nclude management the 0.92~acre restoration sJe a::; ;Jart of
the Operated Property.
A summary of the various habitat types i~ provided below, along \Vith a breakdown oftbe acreage
proposed for conservation, restoration, and creation. The habitat types summarized below tflrc
projected after completion of the restoration program.
---·--·· ... J!abitat _______ _;.Ac.::c=rca&~ .... _
Native Grassland 0.19
Southern Maritime Chaparral 5.41
Waters ofthe U.S. 0.02
Coastal Sage Scrub 2.03
Southern Mixed Chaparral 0.88
---~TO=. TAL ACREA.~~--····· ~~---=8.53
Four special status st."llsitivc plant species are present within the Operated Property: Cali fomia
Adolphia, wart-stemmed ceanothus, Nuttal's scrub oak, and Engelmann oak. ]be one MHCP~
covered wildlife species within the Opemted Property is the coastal Calitomia gnatcatcher.
INITIAL & CAPITAL TASKS
1. Property lnsnec.tkm. Prior to accepting responsibility for long-lcrm managenent, SDHC
will conduct a property irtspcction to review lhe condition of the properly and compare it
to the conditions stipulated in the PMP. The focus of \he inspection will he on the
condition ofthe uplands and sensitive plant species, the rcsutts of the creation, restoration
and enhancement etTorts associated with the PMP, and the condition of the site in general
with regard to exotic species, weeds and tr4Sh. The SDHC PM shall inspect the property.
Assmnes mspection of the Operated Property (excluding the 0.92 acre to l'Jc restored)
occurs in 2012 when the site will be turned over to SDIIC fo1 long-term management.
2. Baseline Doq).lmc;ntation. SDHC will conduct baseline surveys of habitat and sensitive
species and will document the statc.s of exotic species (plant::; and animals) observed
during surveys. Baseline mapping will be completed in GIS, utilizing u digitized
topographic base map, digitized vegetation and sensitive ,;;pecies maps, and aerial
photographs provided by Taylor Morrison of CA, LLC/Dudek. The baseline
documentation will also include a focused survey for Coastal Califomia gnatcatt~her
(three-visit protocol survey) and a11 TvfHCP-covered species.
Fin;;! Pi\H \'ovember 7, 20)1 2
3. Coordination . .wit!: Operatc;:~t .. Pr.;m!'!:rty Biologists. The PM u-111 coordinate and consult
with the Restoration Biologists responsible for creation, restoration and enhancement
efforts.
4. PataC!~se Managcm£Dt. File set up in SDHC file management system, including hard file.
electronic files and GIS mapping.
5. The cndo\vment will be funded in 2012 and long-term management of the Preserve will
start in 2015. Initial costs will be t1mded by growth in tile endowment during that p~'nod.
AN~UAL TASKS A~D COSTS (Shown on Attachment B, Section 9) $14,169.60
6. Cgmmunity Outreach. The PM will t.-ducate the residents of the Muroya property
development by providing a bi-annual newsletter that describes the sensitive habitat and
rcsow·ces, the need for community support to preserve the resources, and to explain how
to avoid indirect ir:rq1~cts to the resources from domestic pets and exotic plant and pest
spcctes associated with adjacent landscaped areas. lne newsletter will be provided to the
HOA every t\l('O years. The PM will attend a meeting of the HOA in the year when n
newsletter is not released to provide to the HOA (every other year). The meeting
presentation will include a status update of preserve management and cd:.~cate the
homeowners about the preserve and their role as preserve stewards. The PM \vill report
persistent and chronic problems related to human or exotic specnes encroachment to the
City of Carlsbad.
7. General Coordination. The PM will coordinate with the City of Carlsbad planning
departmt..11t, Preserve Steward, po:ice andior fire <>f!icials as needed regarding
encroachment issues, transients or illegal activities within the Operated Property.
Coordination and c<msultation with these officials is expected to be accomplished
primarily by phone calls, email and fax, and oc"asional field meetings. A portion of this
time will be for SDHC to attend quarterly prcser~;e steward meetings hosted by the City.
8. Baseline DocumeJlt.i!t!.QD, The PM will update the baseline vegetation mapping and
revise the PlVlP every ~ years. \.tapping will continue to be accomplished in digital
format {GIS) and habitat types will be documented in tables. Mapping will include
locations of sensitive habitat, plant and animal species obsenn:d within the Operated
Property during quarterly site visits and as documented during focused surveys.
Observed species within each habitat type will be documented by producing a list of all
species observed directly or indirectly a11d mapping of :vU·ICP-covcred species. The
PMP update wi1l revise the text to include general trends of data collected during
quarterly site visits and annual sensitive specks surveys. Adaptive :nanugement of the
species Qf habitats, if necessary, will also be included in the PMP revisions. Assuming
that restoration are-a will be completed in 2017. inspection of the restoration urea will be
included as part of the first baseline update in 2017. Baseline sL.rvey ofthe restoration
area will utilize all data and maps supplied at the end of the 5-year mitigation and
monitoring effort and baseline surveys will 11eld verify the status of the most current
mapping and confirm success criteria have been met in accordance w·ith :he pedurmance
standards described in the Restoration P1an.
Final PAR November"!, 2llll 3
9. Sensitiy~ Species $_yr~. Coastal California gnatcatchcr protocol surveys will be
pcrfom1ed every three years and the 45-day rt'POrt submitted. To save cost. one of the
three required survey visits will be perfom1ed cont:-urrcntly with the spring qum1erJy
monitoring visit ~uttal 's scrub oak, an MITCP-covered plant species will also be
surveyed annually. Annual survey results for covered Sflecies wjJl be included :n the
annual report. Other sensitive. species will be documented by presence-absence surveys
every live years as part of the vegetatiM mapping updates.
10. Quarterly Ins~ctions. and Assessments .. "T'he PYI will conduct quarterly site assessments
to observe natural cond[tions and identify potential C(lnilicts to the Operated Property
preserve goals. Quarterly visits will focus on illegal/unauthorized activities. dumping,
mis-use of, or creation of new/illegal trails, significant increase in invasive species and
general habitat conditions. Aerial photographs wlll be purchased annually to aid m the
on-going patrolhng/moniroring efforts and tor purposes of documenting changes or
problem areas. Trash pick-up and removal will also occur during these quarterly visits.
The PM will inspect Operated Property sigr.s and replace as necessary. lt is assumed that
most s1gns will need to be replaced every five years. Illegal squatting. hunting. or
poach:ing/col!ccting within the Operated Property will be reported to the Clty Police
Department. The PM will rttaintain a log of at1 incidences of illegal activities withm the
preserve and discontinued activities will be reported to the Police Department, the City's
!>reserve Steward, CDFG and USFWS. The PM w111 dete1mine the need ibr temporary
fencing, erosion control, or.hydrosecding during the quarterly visits. Quarterly visits will
be documented by keeping a monitoring log of site conditions. The quarterly log reports
shall be appended to the annual report.
11. Annual Site Vu~it and Surv~. One of the quarterly ~itc visits will con5ist of an annual
visual i:lspecti<Jn of the habitat. Vegetation maps will be updated if significant habitat
changes occur: updates wiil be disclosed in the annual report.
12. lnvasive and Exoti:::.S.p.~c;:i~~LR~noval and Ero~ion Conm)!. SDHC \Vill be rcspor:sible
for removing invasive and exotic species from the Operated Property, focusing on those
species identified in the Cal-IPC pest plant Jist. Exotics remov-al procedures will comply
with the requirements of the PMP and will consist primarity of hand or mcc.hanical
remov'al, or use of low persistence herbicides. Herbicides will be used only if necessary
and at the discretion of the PM. Areas where exotics ren10val will be focused will be
identified as part of the baseline (tirst year) vegetation mapping, which wll! document
where the removal efforts should be prioritized. The P:\1 will supervise the exotics
removaJiweedmg efforts. Tw(l weed:ng efforts arc required by the PMP. It is envi:>ioncd
that the PM will perfonn some weeding during quarterly monitoring visits and one larger
weeding effort will be performed by a work crev.··. Some erosion repa.ir is expected and
the work crew will assist with erosion control and maintenance tasks when on-site.
13. AQnl:!::tiR~.l2!1· The PM will prepare an a:1nual report to be submitted to the City :n
October of each year. The City compiles annual reports from all managed preserves rn
their jurisdictions and distnbutcs the City-wide report to the resource agencies Ln
December of each year. The annual report shall include field notes, mapping, photo
documentatinn and recommendations for future maintenance and possible remedial
measures (adaptive management) if deemed necessary to ensure the perpetual
conservation of the sensitive habitat and resources on site. The annual report will compile
the mformation from the quarterly site assessments, Held logs and smTey results and wil:
n:ake recommendations for subsequent annual effotts.
4
14. Signs. Taylor Mo1Tison of California, LLC will insttttl up to 15 permanent preserve si~:,'Tls
around the Operated Property displaying pertinent restrictive information, such as
"Habitat Conservztion Area'', "No Trespassing" and "No brush management act:vities
beyond this sign". Locations of the signs will be at potential public access points. The
PM wi1l be responsible for sign replaccmen: after the initial instaJ:ation. Signs are
assumed to be replaced every 5 years as necessary.
15. SDHC will update site conditions, hard file~. electronic f11es, and GIS datu annually and
kept at SDIIC's oftlces.
16. Annual on~going costs indude an Administrative cost of 24% and Contingency cost of
12%. Contingency costs include adaptive lmlnagement and research and development.
Contingency costs may pay for initial and capital tasks in the first year of management
Fl~ANCIAJ., SlJMMARY
Annual Ongoing Finan:::ial Requirements-$14,169.60
Endowment to Provide Income of$t4,Hi9.601
Emergency and Legal Defense Fund (4%)
Total Contribution
Assumes a 4.5<;t(; capitalization rate.
ADDJTIO~AL ASSU"IPTJONS
$ 314.867.00
$ 12,594,68
$ 327,461.68
• Assumes SDHC will be the preserve manager of the Operated Property in pe:·p::tuity.
The property owner will maintain fee title to the iJpen space and will transfer
ownersl':ip to an HOA or other similarly fanned entity.
• SDHC will not be responsible for the integrity of manufactured slopes {a.<;sociatcd
with site devclop1nent, removal of historic ti1l, or road improvements), brush
management zo0nes, drainage improvements, or permanent fencing and gates between
the devclopmc:tt and the Operated Property. AU brush management zones are
outside the limits of the Operated Property.
• Project Proponent shall guarantee and maintain legal and physical access to the
Operated Property so SDHC can perform their (lbJigations. Pencmg and gates/locks
shall be maintained by the Project Proponent \Yith lock combinations or keys
supplied to SDHC.
• If revegetation is necessary within the Operated Property, SDHC will coordinate with
the City and wildlife agenc:cs and make recommendations for u planting plan
(seeding from onsite seed collection, hydrosced mlx or container stock). Fonnal
restoration plans are not included in this PAR Restoration is limited to contingency
and adaptive management funds, No long-term irrigation is assumed, nor is at:
increased level of monitoring beyond the on-going annual monitoring proposed in tt:c
PAR.
5
• Project Proponent will make available to SDHC all biological resource vegetation
maps, sensitwe plant maps and digital files associated with biolog:cal resource
surveys within the Operated Property and the PMP restoration efforts. at the time the
SDHC take~ responsibility for hab1tat management. In addition, the Project
Proponent shall provide a .digital base map with topography and Operated Property
boundaries. Bowxlary survey data points shall also be provided to SDHC.
• Estimate docs not include the costs associated with SDHC and SDHC General
Counsel review of legal cocuments, including but not limited to: Restrictive
Covenant, Title Reports, Management Agreements, Access Agreements, or Deeds.
Review and comment on applicable documentc; will be performed under a separate
contract prior to SDHC taking responsibility for long-term habi:at management. A
minimum of four week.~ is rl!q'.lired between when these documents arc final to
document execution to provide time for SDHC Board ofDirc<:tor review and vote.
• The Project Proponent shall provide a current aerial. at a scale of 1"=400' and as
cunenl as possible to the date of the initial properly inspections, prior to the date <Jf
inspection. The aerial will be used during the site inspection to document the
condition of the site upon transfer of duties.
• SDHC is not responsible fhr hydrology or flood control within the Operated Property.
Substantial erosion 1mpacts from major flood events are outside the scope of the PAR
and wit: be the responsibility of the property owner if deemed necessary by the City
or wildlife agencies. SDHC will, huwcvtT, implement erosion control mcusurcs as
needed for mi:lor erosion within the limit<> of the contingency fund.
• This estimate does not include ongomg fence and gate n:aintenancc. It is assumed
that all fence and gate maintenance will be the responsibility of the HOA. Fence
maintenance nt.>eds \\'ill be a~sesscd during quarterly site patrols and repairs
coordinated with the HOA, if necessary. SDHC will coordinate with the City and
wildlife agencies to determine the most e:'tcctive use of funds.
• SDHC efforts :shall begin in 20 t 2 and thts estimate is good for a period of six
month.•;.
Hna: PAR Novcrn'oor i, 2011 6
ATTACHJ\tENT A
OPEN SPACE EASEMENT 1\'IAP
7
\
\.
C!T'/ OF CARLSBAD 7'FrACT PIJ-10 YA!t4Mo:to PROPI1RTY ,
, MAP lfu 146m
MUROYA
SITE PLAN
JUNE 13. 2011
LOT4
OPb"'SPACE
!,jg,ll.t;
~
SCALE: 1 ''=140'
Fi11~l PAl{. November 7. 2Gl1
ATTACHI\IIENT B
PAR WORKSHEETS
8
Section 9-Ongoing Tasks and Costs
Property Title: Muroya Property Dataset: CA004 PAR ID: P101 '1 10/21/2011
Budget: PAR
Number Cost/
Task list Specificaton Unit of Units Unit
BIOTIC SURVEYS
Project Management Coordinate w!City, olllers PM L. Hours 6.00 83.00
Project Mana;;ernent Quarterly Morutoring PM L Hours 16.00 83{)0
Other Baseline Mapping-Veg PM L. Ho;.~rs 400 83.00
Other Baseline Mapping-Veg GIS L. Hours 200 110.00
Other CAGN Protocul Survey L. Hours 12.00 83.()()
Sub-Total
HABITAT MAINTENANCE
Erosion Control
Exot.c Plant Control
Exotic Plani Control
Exotic Plant C0.'11rol
Exotic Plant Control
Other
Sub-Total
PUBUC SERVICES
Sign, Aluminum
Sign, Aluminurn
Community Outreach
Sub TGinl
REPORTING
Monitori1Q Reports
Monitonng Reports
Monllcring Reports
Mc:mitoring Reports
Monilo!in;J Reports
iv'lonltoring Reports
Monit:>ring Reports
Monitoring Reports
Report Produc·jon
O:her
Sub-Total
BMP materials Item 1.00 2!:0 .. 00
Hand Remo.,al, Labor l. Hcurs 2C·.OO 35.00
PM Mgt and Dlrecti01 L. Hours 2.00 83.00
Field Supervisor L. Hours 6.00 60.00
Herbicide. concentrate Gal. 1.00 22500
Oebria removal. dump fee Item 1.00 150.00
A!umin1.1m 12" X 26" Item 15.00 37.00
Aluminum 12" X 26" lnstallo L. HOJ-~ B. DO 35.00
Brochure 0<1' Mooting PM l. HO>Jf'S 4.00 83.00
Quarterly Reports PM L. Hours 8.00 83.00
Annual Report PV L Hours 12 00 83.00
Annual Report GIS L Hours 2.00 110.00
CAGN Report PM L. Hours 6.00 83.00
CAGN Report GIS L. Hours 1.00 110.00
PMP updat-e PM L. Hours 12.00 83.00
PMP update GIS L Hours 2.00 110.00
Report Reviav. and etii! ED 1... HO\IfS 2.00 103.00
Labor LH¢U!'S 4.00 40.00
Aenai Photo Photo 1.00 50.00
Proper:y Analys's Record 2.0 (C) 1999, 2000 .. 2001 Centar tor Natural Lar-ds
425 E Alvarado SL. Suite H. Falibrock. CA 92026·2960
····-·------
Annual Divide Total
Cost Years Cost
400.0C 49€.00
1.32/J.OC 1,328.00
332.GO 3 56.40
220.CO 5 4ii.QU
996.00 3 332.00
2,268.40
250.00 250.00
700.00 roo.oo
16MO 166.00
350.00 360.00
225.00 225 00
150.0:1 150(::<:)
1 ,851.C()
555.00 5 '11 00
280.00 s 56.00
332.00 332.00
499.00
664.00 004,()]
995.00 996.:10
220.00 220]0
40000 3 166.00
110.00 3 3S.67
996.00 5 19-9 20
2.20.00 5 44.1)0
206.00 206.00
160.00 ~€0.00
5:1.00 50.00
2.74187
Sect.9 Page 1
'~---~--""~'~"~~----'·"'Y"""~'----"'"' --~""--="'"
Task list
OFFICE MAINTENANCE
Office SuppUes, Year
FIELD EQUIPMENT
GPS. R::lver & Base Lnif
Vehicle
Sub· Total
OPERATIONS
Audt
ContractS
ifiSaranoo
Project Acooun1ing
Sub. Total
Specificaton Unit
Reproduction and supplies Year
GPSICame·a/La;:~topiPho!le Item
Armual Mgt. Dulles Mile
CPAAu::lil Per site
Budgeting ED L HeMs
Liability/Fee Acres
Setup and maintain l. Hours
CONTINGENCY & ADMINISTRATION
Contingency
Administration
Total
Number
of Units
1.00
1.00
120.00
100
llOO
8.50
8.00
->'='mc--m'••••'
Cost I
Urit
225.00
8500
0.55
500.00
103.00
25.00
75.0()
Prope"y Analysis Reccrd .:LO (C) 1999, 2000,2001 Certer fer Natura! lands
425 E Alvarado St, Sude i-<, Faf!broo~, CA 92028·2960
wuu '"-----~'"""""'
Arnual
Cost
225.00
85.00
39600
500.0C
824.C·C
212.5(J
600.00
Divide
Years
Sect.9 Page 2
Total
Cost
2:25.00
225.00
85.00
396.00
50C.OO
824.00
212.50
600.00
2.136.50
1,224.33
2.742.50
1L,169 60
Section 1 0 -Financial Summary
Property Title: Muroya Property
-~'······'-···------------
PAR(9 ac.)
INITIAL FINANCIAL REQUIREMENTS
I & C Revenue
I & C Management Costs
I & C Contingency Expense
Total I & C Management Costs
Dataset CA004
1 & C Administrative Costs of Total I & C Managernenl Costs
Total I & C Costs
Net I & C Management and Administrative Costs
ANNUAL ONGOING FINANCIAL REQUIREMENTS
Ongoing Costs
Ongoing Contingency Expense
Total Ongoing Management Costs
Ongoing Administrative Costs ofT otal Ongoing Management costs
Total Ongoing Costs
ENDOWMENT REQUIREMENTS FOR ONGOING STEWARDSHIP
Endowment to Provide Income of$ 14,169
Endowment per Acre is $ 34,985.
PAR 10: P~011
Rate
%
12.00
24.00
12.00
24.00
Ongoing Management Costs Based on 4.50% of Endowment per Year.
1 0/21!2011
Total s
0
12,865
1,546
14,431
3,464
H,895
17,895
10.202
1,224
11,427
2,742
14,169
314.867
Ongoing Management Funding is $14;169 per Year Resulting in $1.574 per Acre per Year.
TOTAL CONTRIBUTION
Prop~rt\' ArM!IySi$ Reoord 2.0 (C) 1999, 2000, 2C1l1 Center for Natural Lands
425 E. Alvarado SL. Suite H. Fallbrock. CA 92028-2960
332,7€2
Sect.1 0 Page 1
Jack Henthorn & Associates
P.O. Box 237
Carlsbad, California 92018-0237
TRANSMITTAL
DATE: November 7, 2011
TO: Dan Halverson f7fJf---
FROM: Jack Henthorn ~
RE: Muroya Property PAR copies
(760) 438-4090
Fax (760) 438-0981
RECEIVED
NOV 0 8 2011
CITY OF CARLSBAD
PLANNING DIVISION
Attached please find 3 hard copies of the PAR document as prepared by San Diego Habitat Conservancy.
If you have any questions or need additional information, please contact me at your convenience.
rt 1902 Wright Place, Ste 200, Carlsbad, CA 92008