HomeMy WebLinkAboutCDP 12-13; ; 2015-0289598; CovenantDOC# 2015-0289598
RECORDED REQUEST OF
First American Title
HOMEBUILDER SERVICES
Jun 05, 2015 08:00 AM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $98.00
PAGES: 28
RECORDING REQUESTED BY AND)
WHEN RECORDED MAE. TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, Califomia 92008-1989
Space above this line for Recorder's use
Assessor's Parcel Number:
Project Number and Name:
215-950-56
CDP 12-13-ZephyrCourt subdivision
DECLARATION OF RESTRICTIVE COVENANTS
This DECLARATION OF RESTRICTIVE COVENANTS ("Restrictive
Covenant") is made this e^/ day of /ff /t\.^ . 20 /S by Development Solutions C16, a
Delaware limited liability_corporation (hereinafter "Declarant").
RECITALS
A. Declarant is the developer of that certain real property in Carlsbad, County of San
Diego, State of California, commonly refened to as Zephyr Court Subdivision, CDP 12-13 (the
"Project").
B. Declarant is the sole owner in fee simple of those portions of the Project located
in [describe] and as further described in legal descriptions attached hereto as Exhibit "A" and
depicted on Exhibit "B" and attached hereto and incorporated by this reference (the "Restricted
Property"), which consists of approximately 0.0429 acres.
C. This Restrictive Covenant provides mitigation for certain impacts of the Project,
pursuant to requirements of Condition No. 25 of City of Carlsbad Planning Commission
Resolution No. 6909, dated October 3, 2012 for the Coastal Development Permit for the Project.
This Restrictive Covenant is intended and shall be deemed to satisfy such requirement as to the
Restricted Property. The amount of Southern Maritime Chaparral habitat to be preserved within
the Restricted Property is 0.0429 acres.
D. The Restricted Property possesses wildlife and habitat values of great importance
to the People of the State of California and currently is and will remain in a Natural Condition as
defined herein and is intended to be preserved in its natural, scenic, open condition to maintain
its ecological, historical, visual and educational values (collectively, "Conservation Values").
E. Declarant desires to preserve and protect the Restricted Property pursuant to the
Carlsbad 16 Project Preserve Management Plan dated March 31, 2015 "Management Plan"), an
CA 09/24/13
215-950-56
CDP 12-13 - Zephyr Court Subdivision
adaptive habitat management plan which may be revised from time to time and which is
incorporated herein by this reference.
F. The United States Fish and Wildlife Service ("USFWS") has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native
plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C.
Section 1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and
other applicable federal laws.
G. Califomia Department of Fish and Wildlife ("CDFW") has jurisdiction, pursuant
to Fish and Game Code Section 1802, over the conservation, protection, and management of fish,
wildlife, native plants and the habitat necessary for biologically sustainable populations of those
species, and the Department of Fish and Game is authorized to hold easements for these purposes
pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of
Califomia law.
H. The City of Carlsbad ("City") is a municipal corporation with a Habitat
Management Plan for Natural Communities in the City of Carlsbad ("HMP") adopted by its City
Council in November 2004, with the overall goal of contributing to regional biodiversity and the
viability of rare, unique or sensitive biological resources throughout the City and the larger
region while allowing public and private development to occur consistent with the Carlsbad
General Plan and Growth Management Plan.
COVENANTS. TERMS, CONDITIONS AND RESTRICTIONS
NOW THEREFORE, Declarant hereby declares the Restricted Property shall be held,
transferred, conveyed, leased, occupied or otherwise disposed of and used subject to the
following restrictive covenants, which shall mn with the land and be binding on Declarant's
heirs, successors in interest, administrators, assigns, lessees, or other occupiers and users of the
Restricted Property or any portion of it.
1. Purpose.
(a) The purpose of this Restrictive Covenant is to ensure the Restricted Property will
be retained in perpetuity in a Natural Condition, defined below, and to prevent any use of the
Restricted Property that will impair or interfere with the Conservation Values of the Restricted
Property (the "Purpose"). Declarant intends that this Restrictive Covenant will confine the use
of the Restricted Property to such activities, including without limitation, those involving the
preservation and enhancement of native species and their habitat in a manner consistent with the
habitat conservation purposes of this Restrictive Covenant.
(b) The term "Natural Condition," as referenced in the preceding paragraph and
other portions of this Restrictive Covenant, shall mean the condition of the Restricted Property as
it exists at the time this Restrictive Covenant is executed, as well as future enhancements or
changes to the Restricted Property that occur directly as a result of the following activities:
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
(1) Habitat creation or restoration, including implementation, maintenance
and monitoring activities, required by City of Carlsbad Planning Commission
Resolution No. 6909, dated October 3, 2012 for the Project.
(2) In-perpetuity maintenance ("Long-Term Maintenance, Management,
and Monitoring"), that occurs on the Restricted Property as described in the
Management Plan and Section 6 herein; or
(3) Activities described in Section 4 herein.
(c) Declarant certifies to City, CDFW, USFWS, that, to Declarant's actual
knowledge, there are no stmctures or other man-made improvements existing on the Restricted
Property. Declarant further certifies to City, CDFW, USFWS, that, to Declarant's actual
knowledge, there are no previously granted easements existing on the Restricted Property that
interfere or conflict with the Purpose of this Restrictive Covenant as evidenced by the Title
Report attached at Exhibit "C". The current Natural Condition is evidenced in part by the
depiction of the Restricted Property attached on Exhibit "D", showing all relevant and plottable
property lines, easements, dedications, improvements, boundaries and major, distinct natural
features such as waters of the United States. Declarant has delivered further evidence of the
Natural Condition to City, CDFW, USFWS, (1) a color aerial photograph of the Restricted
Property at an appropriate scale taken as close in time as possible to the date this Restrictive
Covenant is executed; (2) an overlay of the Restricted Property boundaries on that aerial
photograph; and (3) on-site color photographs showing all natural features of the Restricted
Property.
(d) If a contioversy arises with respect to the Natural Condition of the Restricted
Property, City, CDFW, and/or USFWS shall not be foreclosed from utilizing any and all other
relevant documents, surveys, photographs or other evidence or information to assist in the
resolution of the controversy.
(e) The term "Biological Monitor" shall mean an independent third-party consultant
with knowledge of upland resources in the San Diego County area and expertise in the field of
biology.
2. Declarant's Duties.
Declarant, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass by
persons whose activities would be inconsistent with the Conservation Values and would violate
the permitted uses of the Restricted Property set forth in this Restiictive Covenant; and
(b) Post and maintain signage in or adjacent to the boundary areas of the Restricted
Property as described in Section 4(d): and
(c) Comply with the terms of this Restrictive Covenant and cooperate with City,
CDFW, and USFWS in the protection of the Conservation Values; and
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
(d) Repair and restore damage to the Restrictive Property directly or indirectly caused
by Declarant, Declarant's guests, representatives or agents and third parties; provided, however.
Declarant, its successors or assigns shall not engage in any repair or restoration work in the
Restricted Property without first consulting with City, CDFW, and USFWS pursuant to Section
6; and
(e) Undertake constmction, maintenance and monitoring of mitigated areas pursuant
to the Mitigation Plan until receipt of final approval of the success of the mitigation from City,
CDFW, and USFWS (" City/CDFW/USFWS Final Approval"); and
(f) Obtain any applicable govemmental pennits and approvals for any activity or use
permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance
with all applicable federal, state, local and administrative agency statutes, ordinances, mles,
regulations, orders or requirements;
(g) Perform in-perpetuity Long-Term Maintenance, Management, and Monitoring set
forth in Section 6 below; and
(h) Perform an annual compliance inspection of the Restricted Property, prepare an
inspection report and shall make reports available to City, CDFW, and USFWS and the City
upon request.
3. Prohibited Uses.
Any activity on or use of the Restricted Property inconsistent with the Purpose of this
Restrictive Covenant and not reserved as set forth in Section 4 hereof is prohibited. Without
limiting the generality of the foregoing, the following uses by Declarant, and its respective
guests, agents, assigns, employees, representatives, successors and third parties, are expressly
prohibited, except as otherwise provided herein or unless specifically provided for in the.
Mitigation Plan, Management Plan and any easements and reservations of rights recorded in the
chain of title to the Restricted Property at the time of this conveyance (as set forth in Exhibit C
hereto):
(a) Supplemental watering except for habitat enhancement activities described in
Section 4(b):
(b) Use of herbicides, pesticides, rodenticides, biocides, fertilizers, or other
agricultural chemicals or weed abatement activities, except weed abatement activities necessary
to contiol or remove invasive, exotic plant species conducted by a herbicide applicator licensed
to work within habitat preserve areas;
(c) Incompatible fire protection activities, except the fire prevention activities set
forth in Section 4(f);
(d) Use of off-road vehicles and use of any other motorized vehicles except on
existing roadways and as necessary to restore native plant communities consistent with Section 4.
(e)
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
(f) Livestock grazing or other agricultural activity of any kind;
(g) Recreational activities including, but not limited to, horseback riding, biking,
hunting or fishing, except as allowed in the Management Plan;
(h) Residential, commercial, retail, institutional, or industrial uses;
(i) Any legal or de facto division, subdivision or portioning of the Restricted
Property, except tiansfers in accordance with Section 17 below;
(j) Constmction, reconstmction or placement of any building or other improvement,
billboard, or signs except signs permitted in Section 2(b) and Section 4(d);
(k) Depositing, dumping or accumulating soil, trash, ashes, refuse, waste, bio-solids
or any other material;
(1) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(m) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or
exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or
below the surface of the Restricted Property;
(n) Altering the general topography of the Restricted Property, including but not
limited to building of roads, trails, and flood control work;
(o) Removing, destioying, or cutting of tiees, shmbs or other vegetation, except as
necessary for (1) emergency fire protection as required by fire safety officials as set forth in
Section 4(f), (2) contioUing invasive, exotic plants which threaten the integrity of the habitat, (3)
preventing or tieating disease, (4) completing the Mitigation Plan, or (5) activities described in
Section 2, Section 4 and Section 13;
(p) Manipulating, impounding or altering any natural watercourse, body of water or
water circulation on the Restricted Property, and activities or uses detrimental to water quality,
including but not limited to degradation or pollution of any surface or sub-surface waters; and
(q) Fuel modification zones (defined as a strip of mowed land or the planting of
vegetation possessing low combustibility for purposes of fire suppression).
4. Declarant's Reserved Rights.
Declarant reserves to itself, and to its personal representatives, heirs, successors, and
assigns, all rights accming from its ownership of the Restiicted Property, including the right to
engage in or to permit or invite others to engage in all uses of the Restricted Property that are
consistent with the Purpose of this Restiictive Covenant, including the following uses:
(a) Access. Reasonable access through the Restricted Property to adjacent land over
existing roads, or to perform obligations or other activities permitted by this Restrictive
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
Covenant. In addition, police and other public safety organizations and their personnel may
enter the Restricted Property to address any legitimate public health or safety matter.
(b) Habitat Enhancement Activities. Enhancement of native plant communities,
including the right to plant trees and shmbs of the same type as currently existing on the
Restricted Property, so long as such activities do not harm the habitat types identified in the
Permit. For purposes of preventing erosion and reestablishing native vegetation, the Declarant
shall have the right to revegetate areas that may be damaged by the permitted activities under this
Section 4, naturally occurring events or by the acts of persons wrongfully damaging the Natural
Condition of the Restricted Property. Prior to any habitat enhancement activities. Declarant shall
have its Biological Monitor submit detailed plans to City, CDFW, and USFWS for review and
approval. Habitat enhancement activities shall not be in direct or potential conflict with the
preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive
Covenant and shall be performed in compliance with all applicable laws, regulations, permitting
requirements and Management Plan.
(c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of
vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of
parasitic vegetation (as it relates to the health of the host plant) and removal of non-native or
exotic plant or animal species. Vegetation, debris, and exotic plant species removal shall not be
in direct or potential conflict with the preservation of the Natural Condition of the Restricted
Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with
all applicable laws, regulations, permitting requirements, and Management Plan.
(d) Erection and Maintenance of Informative Signage. Erection and maintenance of
signage and other notification features saying "Natural Area Open Space," "Protected Natural
Area," or similar descriptions that inform persons of the nature and restrictions on the Restricted
Property. Prior to erection of such signage, the Declarant shall submit detailed plans showing the
location of such signs to City, CDFW, and USFWS for review and approval. The erection and
maintenance of informative signage shall not be in direct or potential conflict with the
preservation of the Natural Condition of the Restricted Property or the Purpose of this Restiictive
Covenant and shall be performed in compliance with all applicable laws, regulations, and
permitting requirements.
(e) No Interference with Development of Adjoining Property. Notwithstanding
anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor
shall be applied to in any way limit Declarant or any of Declarant's successors and assigns from
(1) constructing, placing, installing, and/or erecting any improvements upon the portions of the
Project not constituting the Restricted Property, (2) installing and/or maintaining the subsurface
infrastmcture improvements, utility lines, landscaping (including irrigation and runoff),
landscape mitigation, and/or similar non-stmctural improvements within the Restiicted Property,
and/or (3) developing adjoining property for any purposes, except as limited by any local, state
or federal permit requirements for such development and provided that for all of the above
clauses (1), (2), and (3) neither such activity nor any effect resulting from such activity amounts
to a use of the Restricted Property, or has an impact upon the Restricted Property, that is
prohibited by Section 3 above.
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
(f) Fire Protection. The right, in an emergency situation only, to maintain firebreaks
(defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove
bmsh, otherwise perform preventative measures required by the fire department to protect
stmctures and other improvements from encroaching fire. All other bmsh management activities
shall be limited to areas outside the Restricted Property.
5. Access.
This Restrictive Covenant does not convey a general right of access to the public or a
general right of access to the Restricted Property. In accordance with Section 4(d), Declarant
shall install signage at all likely points of entry informing persons of the nature and restrictions
on the Restricted Property. This Restrictive Covenant will allow for access to the Restricted
Property by City, CDFW and USFWS, City and third-party easement holders of record at the
time of this conveyance at locations designated in easements and reservations of rights recorded
in the chain of title to the Restricted Property at the time of this conveyance
6. Long-Term Maintenance, Management, and Monitoring.
In addition to the other terms contained herein. Declarant, its successor or assign shall be
responsible for the maintenance/repair of the Restricted Property in perpetuity. Such long-term
maintenance shall consist of the following activities: (a) annual removal, by hand, of trash or
man-made debris, (b) annual maintenance of signage and other notification features or similar
descriptions that inform persons of the nature and restrictions on the Restricted Property pursuant
to Section 2(b), (c) implement its responsibilities under the Management Plan and any
amendments thereto, and (d) annual restoration of the Restricted Property damaged by any
activities prohibited by Section 3 herein. Declarant, its successors and assigns shall prepare a
monitoring and maintenance report documenting activities performed under subsections (a)
through (c) above, and shall make reports available to City/CDFW/USFWS upon request. When
activities are performed pursuant to subsection (d) above. Declarant shall retain a qualified
Biological Monitor to prepare a Restoration Plan and to oversee/monitor such restoration
activities. Declarant shall have its Biological Monitor submit a draft Restoration Plan to
City/CDFW/USFWS for review and approval prior to its implementation. Upon completion of
restoration as specified in the City/CDFW/USFWS -approved Restoration Plan, Declarant shall
have its Biological Monitor prepare a detailed monitoring report, and Declarant shall make the
report available to City/CDFW/USFWS within thirty (30) days of completion of restoration
activities. Declarant, its successors or assigns and the Biological Monitor shall sign the
monitoring report, and the report shall document the Biological Monitor's name and affiliation,
dates Biological Monitor was present on-site, activities observed and their location. Biological
Monitor's observations regarding the adequacy of restoration performance by the Declarant, its
successors or assigns, or its contractor in accordance with the City/CDFW/USFWS -approved
Restoration Plan, corrections recommended and implemented.
7. Endowment
Declarant shall establish an endowment fund to be held in tmst, invested and the interest
disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and
monitoring of the Property as required under this Restrictive Covenant. City, CDFW and
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
USFWS, shall have the right to review and approve the terms of the endowment agreement, and
shall be a third party beneficiary of that agreement with the right to review and approve any
amendments.
(a)
agreement:
Include the following principles of fiduciary duty in the endowment fund
(1) The endowment holder shall have a fiduciary duty to hold the endowment
funds in tmst for the Property.
(2) The endowment holder shall not commingle the endowment funds with
other funds. Funds may be pooled for investment management purposes only.
(3) The endowment holder shall have a duty of loyalty and shall not use the
endowment funds for its own personal benefit.
(4) The endowment holder shall act as a pmdent investor of the endowment
funds.
(5) The endowment holder shall not delegate the responsibility for managing
the funds to a third party, but may delegate authority to invest the funds with
Declarant's oversight. The endowment holder shall act with pmdence when
delegating authority and in the selection of agents.
(6) The endowment holder shall have annual audit of the endowment
performed by a licensed CPA, and shall submit the auditor's written report to
City, CDFW, and USFWS upon completion.
(7) Endowment funds set aside for the management of the Property shall not
be used to pay any damages for liability due to acts or omissions of the
endowment holder or any other party.
8. Citv. CDFW. and USFWS Rights.
To accomplish the Purpose of this Restrictive Covenant, Declarant hereby grants and
conveys the following rights to City, CDFW, and USFWS (but without obligation of the City,
CDFW, and USFWS):
(a) A non-exclusive easement on and over the Restricted Property to preserve and
protect the Conservation Values of the Restricted Property; and
(b) A non-exclusive easement on and over the Restricted Property to enter upon the
Restricted Property to monitor Declarant's compliance with and to otherwise enforce the terms
of this Restrictive Covenant; and
(c) A non-exclusive easement on and over the Restricted Property to prevent any
activity on or use of the Restricted Property that is inconsistent with the Purpose of this
Restrictive Covenant and to require the restoration of such areas or features of the Restricted
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
Property that may be damaged by any act, failure to act, or any use that is inconsistent with the
Purpose of this Restrictive Covenant; and
(d) All present and future development rights allocated, implied, reserved or inherent
in the Property; such rights are hereby terminated and extinguished, and may not be used on or
transferred to any portion of the Property, nor any other property adjacent or otherwise; and
(e) The right to enforce by means, including, without limitation, injunctive relief, the
terms and conditions of this Restrictive Covenant.
9. Enforcement.
(a) Right to Enforce. Declarant, its successors and assigns, grant to City, CDFW,
USFWS, Department of Justice, and the State Attomey General, as well as the City, a
discretionary right to enforce these restrictive covenants in a judicial or administrative action
against any person(s) or other entity(ies) violating or attempting to violate these restrictive
covenants; provided, however, that no violation of these restrictive covenants shall result in a
forfeiture or reversion of titie. The U.S. Department of Justice, CDFW, State Attomey General
and City shall have the same rights, remedies and limitations as ACOE under this Section 9. The
rights under this Section are in addition to, and do not limit rights conferred in Section 8 above,
the rights of enforcement against Declarant, its successor or assigns under the Section 404
Permit, or any rights of the various documents created thereunder or referred to therein.
(b) Notice.
(1) If City, CDFW and/or USFWS determines Declarant is in violation of the
terms of this Restrictive Covenant or that a violation is threatened,
City/CDFW/USFWS may demand the cure of such violation. In such a case,
City/CDFW/USFWS shall issue a written notice to Declarant (hereinafter "Notice
of Violation") informing Declarant of the violation and demanding cure of such
violation.
(2) Declarant shall cure the noticed violation within fifteen (15) days of
receipt of said written notice from City, CDFW and/or USFWS. If said cure
reasonably requires more than fifteen (15) days, Declarant shall, within the fifteen
(15) day period submit to City/CDFW/USFWS for review and approval a plan
and time schedule to diligently complete a cure. Declarant shall complete such
cure in accordance with the approved plan. If Declarant disputes the Notice of
Violation, it shall issue a written notice of such dispute (hereinafter "Notice of
Dispute") to the City/CDFW/USFWS within fifteen (15) days of receipt of
written notice of violation.
(3) If Declarant fails to cure the noticed violation(s) within the time period(s)
described in Section 9(b)(2) above, or Section 9(c) below, City/CDFW/USFWS
may bring an action at law or in equity in a court of competent jurisdiction to
enforce compliance by Declarant with the terms of this Restrictive Covenant. In
such action, the City/CDFW/USFWS may (i) recover any damages to which tiiey
may be entitled for violation by Declarant of the terms of this Restrictive
CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
Covenant, (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, or (iii) pursue other
equitable relief, including, but not limited to, the restoration of the Restricted
Property to the condition in which it existed prior to any such violation or injury.
City/CDFW/USFWS may apply any damages recovered to the cost of
undertaking any corrective action on the Restiicted Property.
(4) If Declarant provides City/CDFW/USFWS with a notice of dispute, as
provided herein, City/CDFW/USFWS shall meet and confer with Declarant at a
mutually agreeable place and time, not to exceed thirty (30) days from the date
that City/CDFW/USFWS receives the notice of dispute. City/CDFW/USFWS
shall consider all relevant information conceming the disputed violation provided
by Declarant and shall determine whether a violation has in fact occurred and, if
so, whether the notice of violation and demand for cure issued by
City/CDFW/USFWS is appropriate in light of the violation.
(5) If, after reviewing Declarant's notice of dispute, conferring with
Declarant, and considering all relevant information related to the violation,
City/CDFW/USFWS/and/or determines that a violation has occurred;
City/CDFW/USFWS shall give Declarant notice of such determination in writing.
Upon receipt of such determination. Declarant shall have fifteen (15) days to cure
the violation. If said cure reasonably requires more than fifteen (15) days.
Declarant shall, within the fifteen (15) day period submit to City/CDFW/USFWS
for review and approval a plan and time schedule to diligently complete a cure.
Declarant shall complete such cure in accordance with the approved plan.
(c) Immediate Action. If City/CDFW/USFWS, in its reasonable discretion,
determines that circumstances require immediate action to prevent or mitigate significant
damage to tiie Conservation Values of the Restricted Property, City/CDFW/USFWS may
immediately pursue all available remedies, including injunctive relief, available pursuant to both
this Restrictive Covenant and state and federal law after giving Declarant at least twenty four
(24) hours' written notice before pursuing such remedies. So long as such twenty four (24)
hours' notice is given, City/CDFW/USFWS 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 Section 9(b)(2). The written notice pursuant to this paragraph may be tiansmitted to
Declarant by facsimile. The rights of City/CDFW/USFWS under this paragraph apply equally to
actual or threatened violations of the terms of this Restrictive Covenant. Declarant agrees that the
remedies at law for City/CDFW/USFWS for any violation of the terms of this Restrictive
Covenant are inadequate and that City/CDFW/USFWS shall be entitied to the injunctive relief
described in tiiis section, both prohibitive and mandatory, in addition to such other relief to
which City/CDFW/USFWS may be entitled, including specific performance of the terms of this
Restrictive Covenant, without the necessity of proving either actual damages or the inadequacy
of otherwise available legal remedies. The remedies described in this Section 9(c) shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
10 CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
(d) Costs of Enforcement. Any costs incurred by City/CDFW/USFWS in enforcing
the terms of this Restrictive Covenant against Declarant including, but not limited to, costs of
suit and, any costs of restoration necessitated by Declarant's violation or negligence under the
terms of this Restrictive Covenant shall be bome by Declarant, subject to Califomia Civil Code
section 815.
(e) Enforcement Discretion. Enforcement of the terms of this Restrictive Covenant
shall be at the discretion of City/CDFW/USFWS. Any forbearance by City/CDFW/USFWS to
exercise rights under this Restrictive Covenant in the event of any breach of any term of this
Restrictive Covenant by Declarant shall not be deemed or constmed to be a waiver by
City/CDFW/USFWS of such term or of any subsequent breach of the same or any other term of
this Restrictive Covenant or of any of the rights of City/CDFW/USFWS under this Restrictive
Covenant. No delay or omission by City/CDFW/USFWS in the exercise of any right or remedy
upon any breach by Declarant shall impair such right or remedy or be constmed as a waiver.
(f) Acts Beyond Declarant's Contiol. Nothing contained in this Restrictive Covenant
shall be constmed to entitle City/CDFW/USFWS to bring any action against Declarant for any
injury to or change in the Restricted Property resulting from:
(1) Any natural cause beyond Declarant's control, including without
limitation, fire, flood, storm, and earth movement; or
(2) Any pmdent action taken by Declarant under emergency conditions to
prevent, abate, or mitigate significant injury to persons and/or the Restricted
Property resulting from such causes.
(g) Notwithstanding the foregoing, even actions undertaken during emergency
conditions must receive prior authorization from the City.
10. Costs and Liabilities.
Declarant, or its successor or assign retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the
Restricted Property. Declarant agrees City, CDFW and USFWS shall not have any duty or
responsibility for the operation, upkeep, or maintenance of the Restricted Property, the
monitoring of hazardous conditions thereon, or the protection of Declarant, the public or any
third parties from risks relating to conditions on the Restricted Property. Declarant, its successor
or assign remains solely responsible for obtaining any applicable govemmental permits and
approvals for any activity or use permitted by this Restrictive Covenant, and any activity or use
shall be undertaken in accordance with all applicable federal, state, local and administrative
agency statutes, ordinances, mles, regulations, orders and requirements.
11. Taxes.
Declarant, its successors or assigns shall pay before delinquency all taxes, assessments,
fees, and charges of whatever description levied on or assessed against the Restricted Property
by competent authority, including any taxes imposed upon, or incurred as a result of, this
11 CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
Restrictive Covenant, and agrees to fumish City, CDFW and USFWS with satisfactory evidence
of payment upon request.
12. No Hazardous Materials Liabilitv.
(a) Declarant represents and warrants tiiat it has no knowledge of any release or
threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the
Restricted Property.
(b) Despite any contrary provision of this Restrictive Covenant, the parties do not
intend this Restiictive Covenant to be, and this Restrictive Covenant shall not be, constmed such
that it creates in or gives City, CDFW and USFWS any of the following:
(1) The obligations or liabilities of an "owner" or "operator," as those terms
are defined and used in Environmental Laws (defined below), including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter,
"CERCLA"); or
(2) The obUgations or liabilities of a person described in 42 U.S.C. Section
9607(a)(3) or (4); or
(3) The obligations of a responsible person under any applicable
Environmental Laws; or
(4) The right to investigate and remediate any Hazardous Materials associated
with the Restricted Property; or
(5) Any control over Declarant's ability to investigate, remove, remediate or
otherwise clean up any Hazardous Materials associated with the Restricted
Property.
(c) The term "Hazardous Materials" includes, without limitation, (a) material that is
flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions
thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials defined in CERCLA, the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the
Hazardous Waste Control Law (Califomia Health & Safety Code Section 25100 et seq.); the
Hazardous Substance Account Act (Califomia Health & Safety Code Section 25300 et seq.), and
in the regulations adopted and publications promulgated pursuant to them, or any other
applicable federal, state or local laws, ordinances, mles, regulations or orders now in effect or
enacted after the date of this Restrictive Covenant.
(d) The term "Environmental Laws" includes, without limitation, any federal, state,
local or administrative agency statute, ordinance, mle, regulation, order or requirement relating
to pollution, protection of human health or safety, the environment or Hazardous Materials.
Declarant represents, warrants and covenants to City, CDFW and USFWS that activities upon
12 CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
and use of the Restricted Property by Declarant, its agents, employees, invitees and contractors
will comply with all Environmental Laws.
13. Additional Easements.
Declarant shall not grant any additional easements, rights of way or other interests in the
surface or subsurface of the Restricted Property (other than a security interest that is subordinate
to this Restrictive Covenant), or grant or otherwise abandon or relinquish any water rights
relating to the Restricted Property, without first obtaining the written consent of City, CDFW,
and USFWS. City, CDFW and USFWS may withhold such consent if it determines that the
proposed interest or transfer is inconsistent with the Purpose of this Restrictive Covenant or will
impair or interfere with the Conservation Values of the Restricted Property. This Section shall
not prohibit tiansfer of a fee or leasehold interest in the Restricted Property that is subject to this
Restiictive Covenant and complies with Section 17 below. Declarant, its successors and assigns
shall record any additional easements or other interests in the Restricted Property approved by
the City, CDFW and USFWS in the official records of San Diego County, Califomia and provide
a copy of the recorded document to the City, CDFW and USFWS.
14. Hold Harmless.
Declarant shall hold harmless, protect and indemnify City and its, officials, directors,
employees, agents, contiactors, and representatives and the heirs, personal representatives,
successors and assigns of each of them (each a "City Indemnified Party" and, collectively,
"City's Indemnified Parties") from and against any and all liabilities, penalties, costs, losses,
damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees),
causes of action, claims, demands, orders, liens or judgments (each a "Claim" and, collectively,
"Claims"), arising from or in any way connected with: injury to or the death of any person, or
physical damage to any property, resulting from any act, omission, condition, or other matter
related to or occurring on or about the Property, regardless of cause, except that this
indemnification shall be inapplicable to Declarant's Indemnified Parties with respect to any
Claim due solely to the negligence of Declarant or any of its employees. If any action or
proceeding is brought against any of Declarant's Indemnified Parties by reason of any such
Claim, Declarant shall, at the election of and upon written notice from any of the Declarant
Indemnified Parties defend such action or proceeding with counsel reasonably acceptable to the
Declarant Indemnified Party, or reimburse the party for all charges incurred for services,
including attorneys' fees, in defending the action or proceeding.
15. Amendment.
Declarant may amend this Restiictive Covenant only after written concurrence by City,
CDFW and USFWS. Any such amendment shall be consistent with the Purpose of this
Restrictive Covenant and shall not affect its perpetual duration. Declarant shall record any
amendments to this Restrictive Covenant approved by City, CDFW and USFWS in the official
records of San Diego County, Califomia, and shall provide a copy of the recorded document to
City, CDFW and USFWS.
13 CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
16. Recordation.
Declarant, its successor or assign shall promptly record this instmment in the official
records of San Diego County, Califomia, and provide a copy of the recorded document to City,
CDFW and USFWS.
17. Assignment and Subsequent Transfers.
(a) Declarant agrees to incorporate the terms of this Restrictive Covenant in any deed
or other legal instmment by which Declarant divests itself of any interest in all or a portion of the
Restricted Property. Declarant, its successor or assign agrees to (i) incorporate by reference to
the title of and the recording information for this Restrictive Covenant in any deed or other legal
instmment by which each divests itself of any interest in all or a portion of the Restiicted
Property, including, without limitation, a leasehold interest and (ii) give actual notice to any such
transferee or lessee of the existence of this Restrictive Covenant. Declarant, its successor or
assign agrees to give written notice to City, CDFW and USFWS, of the intent to tiansfer any
interest at least thirty (30) days prior to the date of such transfer. Any subsequent tiansferee shall
be deemed to have assumed the obligations of this Restrictive Covenant and to have accepted the
restrictions contained herein. The failure of Declarant, its successor or assign to perform any act
provided in this Section shall not impair the validity of this Restrictive Covenant or limit its
enforceability in any way.
(b) From and after the date of any transfer of all or any portion of the Restricted
Property by Declarant and each transfer thereafter, (i) the tiansferee shall be deemed to have
assumed all of the obligations of Declarant as to the portion transferred, as set forth in this
Restrictive Covenant, (ii) the transferee shall be deemed to have accepted the restrictions
contained herein as to the portion transfened, (iii) the transferor, as applicable, shall have no
further obligations hereunder except for the obligations set forth above in this paragraph and
pursuant to Section 24, and (iv) all references to Declarant in this Restrictive Covenant shall
thereafter be deemed to refer to such transferee.
14 CA 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
18. Notices.
Any notice, demand, request, consent, approval, or communication that either party
desires or is required to give to the other shall be in writing and be served personally or sent by
first class mail, postage prepaid, addressed as follows:
To Declarant: Development Solutions C16
C/O Davidson Communities
1302 Camino Del Mar
Del Mar, CA 92014
To: City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Califomia Dept. of Fish and Wildlife, Region 5
3883 Ruffin Road
San Diego, CA 92123
US Fish and Wildlife Service
2177 Salk Avenue, Suite 250
Carlsbad, CA 92008
FAX 760-431-5902
or to such other address as either party shall designate by written notice to the other. Notice shall
be deemed effective upon delivery in the case of personal delivery or, in the case of delivery by
first class mail, five (5) days after deposit into the United States mail.
19. Controlling Law.
The laws of the United States and the State of Califomia shall govem the interpretation
and performance of this Restrictive Covenant.
20. Liberal Construction.
Any general rule of constmction to the contrary notwithstanding, this Restrictive
Covenant shall be liberally constmed in favor of the deed to effect the purpose of this Restrictive
Covenant and the policy and purpose Califomia Civil Code Section 815, seq. If any provision
in this instmment is found to be ambiguous, an interpretation consistent with the purposes of this
Restiictive Covenant that would render the provision valid shall be favored over any
interpretation that would render it invalid.
15 C A 09/24/2013
215-950-56
CDP 12-13 - Zephyr Court Subdivision
21. Severability.
If a court of competent jurisdiction voids or invalidates on its face any provision of this
Restrictive Covenant, such action shall not affect the remainder of this Restiictive Covenant. If a
court of competent jurisdiction voids or invalidates the application of any provision of this
Restrictive Covenant to a person or circumstance, such action shall not affect the application of
the provision to other persons or circumstances.
22. No Forfeiture.
Nothing contained herein will result in a forfeiture or reversion of Declarant's title in any
respect.
23. Successors.
The covenants, terms, conditions, and restiictions of this Restrictive Covenant shall be
binding upon, and inure to the benefit of the parties hereto and their respective personal
representatives, heirs, successors, and assigns and shall continue as a servitude mnning in
perpetuity with the Restricted Property.
24. Termination of Rights and Obligations.
A party's rights and obligations under this Restrictive Covenant terminate upon transfer
of the party's interest in the Restrictive Covenant or Restiicted Property, except that liability for
acts or omissions occuning prior to transfer shall survive tiansfer.
25. Captions.
The captions in this instmment have been inserted solely for convenience of reference
and are not a part of this instmment and shall have no effect upon constiuction or interpretation.
26. Citv. CDFW. and USFWS Benefited Parties
Except for Section 23, the terms of this Restrictive Covenant are for the benefit of the
City, CDFW, and USFWS only and are not for the benefit of any other parties.
16 C A 09/24/2013
215-950-56
CDP 12-13 -Zephyr Court Subdivision
IN WITNESS WHEREOF Declarant has executed this Restrictive Covenant the day and
year first above written.
By: Development Solutions C16, LLC
a Delaware limited company
^ame: Judd GllatR
Vice President
Titie:
Date:
By:.
Name:_
Title:_
Date:
CITY OF CARLSBAD
APPROVED AS TO FORM:
CELIA A. BREWER, City Attomey
Bv: , J^njuM^' -/-/r Assv^tant City Attorney
17 CA 09/24/2013
A notary public or other officer completing this certificate verifies only the identity ofthe
individual who signed the document to which this is attached, and not the tmthfulness, accuracy,
or validity of that document.
STATE OF MINNESOTA
COUNTY OF HENNEPIN
This instrument was acknowledged before me May 21, 2015 by Judd Gilats as Vice President of
Development Solutions C16, LLC.
Notary Public
Printed Name:
My Commission Expires:
1131 hlOc^
JESSAELIZABEIHRpGINSKI
NolatyPul)lc-Notarial Sea'
My Commission Expires
January 31.232)
215-950-56
CDP 12-13 - Zephyr Court Subdivision
EXHIBIT A - LEGAL DESCRIPTION
LEGAL DESCRIPTION
Real property in the City of Carlsbad, County of San Diego, State of California, described as
follows:
LOT 18 OF CARLSBAD TRACT NO. 03-06, ACCORDING TO MAP NO. 15521, FILED IN THE
OFFICE OF THE COUNTY RECORDER, ON MARCH 1, 2007 IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 215-950-56-00
lg C A 02/04/13
215-950-56
CDP 12-13 - Zephyr Court Subdivision
EXHIBIT B - PLAT MAP
19 CA 02/04/13
EXHIBIT 'B'
PLAT
•LOT 18
OPEN SPACE
BLACK RAL ROAD
0 50' 100'
GRAPHIC SCALE
200'
FUSCOE ENGINEERING INC.
6390 GREENWICH DR. STE. 170
SAN DIEGO. CA 92122
215-950-56
CDP 12-13 - Zephyr Court Subdivision
EXHIBIT C - TITLE REPORT
20 CA 02/04/13
Order Number: NHSC-4604885 (06)
Page Number: 4
Dated as of January 23, 2015 at 7:30 A.M.
The form of Policy of title insurance contemplated by this report is:
TO BE DETERIMINED
A specific request should be made if another form or additional coverage is desired.
Title to said estate or interest at the date hereof is vested in:
DEVELOPMENT SOLUTIONS C16, LLC, A DELAWARE LIMFFED LIABILITY COMPANY
The estate or interest in the land hereinafter described or referred to covered by this Report is:
A fee.
The Land referred to herein is described as follows:
(See attached Legal Description)
At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said
policy form would be as follows:
1. General and special taxes and assessments for the fiscal year 2015-2016, a lien not yet due or
payable.
2. General and spedal taxes and assessments for the fiscal year 2014-2015.
First Installment: $0.00, NO TAX DUE
Penalty: $0.00
Second Installment: $0.00, NO TAX DUE
Penalty: $0.00
Tax Rate Area: 09165
A. P. No.: 215-950-56-00
The County Tax Collector could not verify the amounts shown above at this time. Please verify
the amounts with the County Tax Collector prior to the close of the contemplated transaction.
3. The lien of spedal tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the
California Government Code for Community Facilities District No. 1, as disdosed by Notice of
Special Tax Lien recorded May 20, 1991 as Instrument No. 1991-0236959 of Official Records.
Document(s) declaring modifications thereof recorded December 13, 2005 as Instrument No.
2005-1068290 of Official Records.
First American Title
Order Number: NHSC-4604885 (06)
Page Number: 5
4. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commendng with
Section 75 of the California Revenue and Taxation Code.
5. The terms and provisions contained in the document entitied Joint Use Agreement
recorded January 29, 1999 as Instrument No. 1999-0052661 of Offidal Records.
6. The terms and provisions contained in the document entitled Affordable Housing Agreement
recorded September 30, 2005 as Instrument No. 2005-0850706 of Official Records.
7. The terms and provisions contained in the document entitled Notice of Restriction on Real
Property recorded September 21, 2006 as Instrument No. 2006-0671963 of Offidal Records.
8. The terms and provisions contained in the document entitled Hold Harmless Agreement Drainage
recorded December 1, 2006 as Instrument No. 2006-0854468 of Official Records.
9. An easement shown or dedicated on the Map as referred to in the legal description
For: Proposed private drainage and incidental purposes.
10. An easement shown or dedicated on the Map as referred to in the legal description
For: Open space and inddental purposes.
11. Non-mapping notes as set forth on Tract No. 03-06 recorded as Map No. 15521, records of said
county.
Reference is made to said map for further and other particulars.
12. The terms and provisions contained in the document entitled Notice of Restriction on Real
Property recorded November 13, 2007 as Instrument No. 2007-0715370 of Offidal Records.
13. The terms and provisions contained in the document entitled "Notice of Restriction on Real
Property" recorded January 16, 2013 as Instrument No. 2013-0033100 of Offidal Records.
14. The terms and provisions contained in the document entitied "Notice and Waiver Concerning
Multi-Impacts" recorded January 16, 2013 as Instrument No. 2013-0033103 of Offidal Records.
15. Intentionally Deleted
16. Intentionally Deleted
17. The terms and provisions contained in the document entitled "Permanent Stormwater Quality
Best Management Practice Maintenance Agreement" recorded May 15, 2014 as Instrument No.
2014-0200619 of Official Records.
18. Rights of parties in possession.
19. Water rights, daims or title to water, whether or not shown by the public records.
Prior to the issuance of any policy of title insurance, the Company will require:
First American Title
Order Number: NHSC-4604885 (06)
Page Number: 6
20. With respect to Development Solutions C16, LLC, a Delaware limited liability company:
a. A copy of its operating agreement and any amendments thereto;
b. If it is a California limited liability company, that a certified copy of its artides of organization
(LLC-1) and any certificate of correction (LLC-11), certificate of amendment (LLC-2), or
restatement of artides of organization (LLC-10) be recorded in the public records;
c. If it is a foreign limited liability company, that a certified copy of its application for registration
(LLC-5) be recorded in the public records;
d. With respect to any deed, deed of trust, lease, subordination agreement or other document or
instrument executed by such limited liability company and presented for recordation by the
Company or upon which the Company is asl<ed to rely, that such document or instrument be
executed in accordance with one of the following, as appropriate:
(i) If the limited liability company properly operates through officers appointed or elected
pursuant to the terms of a written operating agreement, such document must be executed by at
least two duly elected or appointed officers, as follows: the chairman of the board, the president
or any vice president, and any secretary, assistant secretary, the chief finandal officer or any
assistant treasurer;
(ii) If the limited liability company properly operates through a manager or managers identified in
the artides of organization and/or duly elected pursuant to the terms of a writi:en operating
agreement, such document must be executed by at least two such managers or by one manager
if the limited liability company properly operates with the existence of only one manager.
e. Other requirements which the Company may impose following its review of the material
required herein and other information which the Company may require
First American Title
215-950-56
CDP 12-13 - Zephyr Court Subdivision
EXHIBIT D - EASEMENT PLOT EXHIBIT
Not Applicable
21 CA 02/04/13
215-950-56
CDP 12-13 - Zephyr Court Subdivision
EXHIBIT E -MLTIGATION PLAN
22 CA 02/04/13
Carlsbad 16 Project
Preserve Management Plan
Prepared for:
Development Solutions C16
Contact: Tim O Grady
1302 Camino Del Mar
Del Mar, California 92014
March 31, 2015
By
Urban Corps of San Diego County
3127Jefferson Street San Diego Ca 92110
619 235.6884
URBAK CORPS
SAN DIEGO COUNH
Conservation Corps & Charter School
11 P a g e