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SDP 01-01B; Ascent Biltmore Carlsbad LLC; 2008-0259369; Easement
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Carlsbad City Clerk 1200 Carlsbad Village Dr Carlsbad, CA 92008 DQC# 2008-0259369 MAY 14, 2008 11:30 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES: 0.00 PAGES: /U Space Above Line for Recorder's Use Only CONSERVATION EASEMENT DEED Pacifica Palomar/Biltmore - SDP 01-01(B) 20 THIS CONSERVATION EASEMENT DEED is made this day of 2008, by Ascent Biltmore Carlsbad, LLC, ("Grantor"), in favor of THE CITY OF CARLSBAD, a California municipal corporation ("Grantee"), with reference to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the City of Carlsbad, County of San Diego, State of California, more particularly described in Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by this reference, consisting of approximately 4.782 acres (the "Property"); B. The Property possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee and the People of the State of California; C. The Property provides high quality habitat for riparian wetland habitat and mixed chaparral and restored riparian and coastal sage scrub habitats; D. Grantee is authorized to hold conservation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a governmental entity identified in Civil Code Section 815.3(b) and otherwise authorized to acquire and hold title to real property. E. State of California, Department of Fish and Game ("CDFG") 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 California law. 06/07/2006 SDP 01-01(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 F. The U.S. Fish & 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. The United State Army Corp of Engineers ("ACOE") is the federal agency charged with regulatory authority over discharges of dredged and fill material in waters of the United States pursuant to Section 404 of the Clean Water Act. H. Grantor is the developer of a project known as Biltmore 24 Hour Fitness located in the City of Carlsbad, County of San Diego, State of California, which is planned to include a 85,000 square foot Office building on 10.9 acres (the "Project"). The Project is the subject of a Site Development Plan Ol-Ol(B), Coastal Development Permit 01-02(B), Conditional Use Permit 05-04, and a Mitigated Negative Declaration. This Conservation Easement provides mitigation for certain impacts of the Project, pursuant to requirements of Condition 15 of City of Carlsbad Planning Commission Resolution, 5881 dated May 4, 2005 for the Site Development Plan for the Project. This Conservation Easement is intended and shall be deemed to satisfy such requirement as to the Property. The amount of riparian wetland habitat, mixed chaparral and coastal sage scrub to be preserved within the Property is 4.782 acres. I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein to preserve and protect in perpetuity the conservation values of the Property in accordance with the terms of this Conservation Easement. COVENANTS. TERMS, CONDITIONS AND RESTRICTIONS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to California law, including Civil Code Section 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property. 1. Purpose. The purpose of this Conservation Easement is to ensure the Property will be retained forever in a natural condition and to prevent any use of the Property that will impair or interfere with the conservation values of the Property. Grantor intends that this Conservation Easement will confine the use of the 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 Conservation Easement. 2. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited: (a) Except as permitted pursuant to Section 5 of this Conservation Easement, unseasonal watering, use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals, weed abatement activities, or incompatible fire protection activities; and 06/07/2006 SDP 01-01(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 any and all other activities and uses which may adversely affect the purposes of this Conservation Easement; (b) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways; (c) Grazing or other agricultural activity of any kind; (d) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except as may be specifically permitted under this Conservation Easement; Property; (e) Commercial or industrial uses; (f) Any legal or de facto division, subdivision or partitioning of the (g) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, except as may be specifically permitted under this Conservation Easement; (h) Depositing or accumulation of soil, trash, ashes, refuse, waste, bio- solids or any other materials; (i) Planting, introduction or dispersal of non-native or exotic plant or animal species; (j) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extraction of minerals, loam, soil, sands, gravel, rocks or other material on or below the surface of the Property, except as approved by the project conditions and as provided for in the Habitat Management Plan to maintain the bioswale east of Laurel Tree Lane; (k) Altering the surface or general topography of the Property, including building of roads, except as permitted pursuant to Section 5 of this Conservation Easement; (1) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease; and (m) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Property, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters. 06/07/2006 SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 3. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights, without obligation, to Grantee and to the USFWS, CDFG and the ACOE as a third party beneficiary(ies) of this Conservation Easement: (a) To preserve and protect the conservation values of the Property; (b) To enter upon the Property at reasonable times in order to monitor Grantor's compliance with and to otherwise enforce the terms of this Conservation Easement, and for scientific research and interpretive purposes by Grantee or its designees and USFWS, CDFG, and ACOE or their designees, provided that neither Grantee, USFWS, CDFG and ACOE shall unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property; (c) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement; (d) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Property; and (e) All present and future development rights; and (f) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Conservation Easement. 4. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement, and the rights of Grantor to comply with all the provisions of that certain Agreement for Management and Transfer of Real Property approved and executed concurrently herewith by Grantor, Ascent Biltmore Carlsbad, LLC, including the right (i) to implement the "Habitat Management Plan for the Encinas Creek Open Space, Biltmore 24-Hour Fitness and Kelly/JRM Office Building Projects, City of Carlsbad, CA, January 27, 2006" and (ii) to develop, maintain, fence, install interpretive signs along, and allow recreational pedestrian and bicycle uses of the trails for the benefit of Grantee that are required by Condition number 30 of Conditions of Approval, City of Carlsbad Planning Commission Resolution, 5881 dated May 4, 2005. 5. Grantor's Duties. To accomplish the Purpose of this Conservation Easement as described in Section 1, Grantor, its successors or assigns shall: (a) Preserve and retain the Property in its Natural Condition and conserve, manage and preserve in perpetuity its Conservation Values; and (b) Undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the Conservation Values of the Property. In 06/07/2006 SDP 01-01(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under Section 2 of this Conservation Easement, including but not limited to Grantee's water rights; and (c) Grantor shall install and maintain a fence reasonably satisfactory to Grantee, USFWS, CDFG and ACOE around the Conservation Easement area to protect the conservation values of the Property, including but not limited to wildlife corridors. (d) Comply with the terms of this Conservation Easement and cooperate with Grantee and third party beneficiaries in the protection of the Conservation Values; and (e) Install signs 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 Property; and (f) Repair and restore damage to the Conservation Easement directly caused by Grantor, Grantor's representatives, employees, agents, invitees and third parties including, but not limited to damage to Conservation Values from activities undertaken pursuant to Section 5; and (g) Obtain any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements; and (h) Perform Long-Term Maintenance and Management of the Property. Such long-term maintenance and management shall consist of the following activities: (1) Annual removal of trash or inorganic debris; (2) Repair, remediation and restoration of damage to the Natural Condition and Conservation Values of the Property, including damage from man-made causes, non-natural parasites and non-native or exotic species; (3) Annual maintenance of signage set forth in this Section 4(e); and (4) Management of the Property consistent with the Agency Permits. Grantor, its successors and assigns shall prepare a summary of monitoring and maintenance documenting activities performed under items (1), (3) and (4) of this Section 4(g), and shall make reports available to Grantee and USFWS, CDFG and ACOE upon completion. When activities are performed pursuant to subsection (2) above, Grantor, its successors and assigns, shall retain a qualified Biological Monitor to prepare a detailed Restoration Plan and to oversee/monitor restoration activities. Grantor shall have its Biological Monitor submit the draft Restoration Plan for review and approval by Grantee, USFWS, CDFG and ACOE. Upon completion of the Restoration Plan, as approved by Grantee, USFWS, CDFG and ACOE, Grantor shall have the Biological Monitor prepare detailed monitoring reports, and Grantor shall make reports available to Grantee, USFWS, CDFG and ACOE upon completion. Said monitoring and 06/07/2006 SDP 01-01(B) - PACIF1CA PALOMAR/BILTMORE APN: 212-040-25-00 maintenance report shall be signed by Grantor, its successor or assign, and the Biological Monitor, and the report shall document the Biological Monitor's name and affiliation, the dates that the Biological Monitor was present on-site, activities observed and their location, the Biological Monitor's observations regarding the adequacy of maintenance performance by Grantor or its contractor in accordance with the approved Restoration Plan, corrections recommended and implemented. (i) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from the USFWS, CDFG and ACOE confirming that Grantor has successfully completed construction, maintenance and monitoring of mitigated areas pursuant to the Mitigation Plan and Agency Permits, as amended. (j) Ensure, before conveyance of the Property to a conservation entity as approved by the City of Carlsbad as contemplated herein, that as of the date of such conveyance, the Grantor is in full compliance with all of its obligations contained in this Section 4. (k) In the event Grantor, or its successors or assigns, establishes an endowment fund in the future, such endowment fund shall be established, to be held in trust, invested and the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Property as required under this Conservation Easement. Grantee 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; (1) Include the following principles of fiduciary duty in the endowment fund agreement: (1) The endowment holder shall have a fiduciary duty to hold the endowment funds in trust 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 prudent 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 Grantor's oversight. The endowment holder shall act with prudence 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 Grantee, USFWS, CDFG and ACOE upon completion. 6. Access. This Conservation Easement does not convey a general right of access to the public. 06/07/2006 SDP 01-01(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 7. Grantee's and Third Party Beneficiary Remedies. USFWS, CDFG and the ACOE, as third party beneficiary(ies) of this Conservation Easement, shall have the same rights as Grantee under this section to enforce the terms of this Conservation Easement. These rights are in addition to, and do not limit, the rights of enforcement under the Habitat Management Permit. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee may pursue all available remedies after giving written notice to Grantor of such violation and demand in writing the cure of such violation. At the time of giving any such notice, Grantee shall give a copy of the notice to USFWS, CDFG and ACOE, If Grantor fails to cure the violation within fifteen (15) days after receipt of written notice and demand from Grantee, or if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin the cure within the fifteen (15)-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Conservation Easement, to recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation Easement or for any injury to the conservation values of the Property, to enjoin the violation, exparte as necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relief, including, but not limited to, the restoration of the Property to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Property, Grantee may pursue its remedies under this Section 7 without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights under this section apply equally to actual or threatened violations of the terms of this Conservation Easement. Grantor agrees that Grantee's remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code Section 815, et seq., inclusive. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time. If at any time in the future Grantor or any subsequent transferee uses or threatens to use the Property for purposes inconsistent with this Conservation Easement then, notwithstanding Civil Code Section 815.7, the California Attorney General or any entity or individual with a justifiable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement. 7.1 Costs of Enforcement. Any costs incurred by Grantee, USFWS, CDFG or ACOE, where it is the prevailing party, in enforcing the terms of this Conservation Easement 06/07/2006 SDP 01 -01 (B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 against Grantor, except attorneys fees, but including and not limited to costs of suit, experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall, be borne by Grantor. 7.2 Discretion of Grantee and USFWS, CDFG and ACOE. Enforcement of the terms of this Conservation Easement by Grantee, USFWS, CDFG or ACOE shall be at its discretion, and any forbearance by any of them to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee, USFWS, CDFG or ACOE of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Grantee's rights (or any rights of USFWS, CDFG or the ACOE as a third party beneficiary(ies)) under this Conservation Easement. No delay or omission by Grantee, USFWS, CDFG or ACOE in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. 7.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee, USFWS, CDFG or ACOE to bring any action against Grantor for any injury to or change in the Property resulting from (i) any natural cause beyond Grantor's control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes; or (ii) acts by Grantee or its employees or USFWS, CDFG or ACOE or their employees. 8. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property. Grantor agrees that neither Grantee, nor USFWS, CDFG or ACOE shall have any duty or responsibility for the operation or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement Deed, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 8.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee, USFWS, CDFG and ACOE with satisfactory evidence of payment upon request. Grantor shall keep Grantee's interest in the Property free from any liens, including those arising out of any obligations incurred by Grantor or any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Property. 8.2 Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "Grantee 06/07/2006 SDP 01 -01 (B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 Indemnified Party" and, collectively, "Grantee's Indemnified Parties") and USFWS and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a " USFWS Indemnified Party" and, collectively, "USFWS Indemnified Parties") and CDFG and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "CDFG Indemnified Party" and, collectively, "CDFG Indemnified Parties") and ACOE and its directors, officers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a " ACOE Indemnified Party" and, collectively, "ACOE 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: (1) 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 (a) this indemnification shall be inapplicable to Grantee's Indemnified Parties with respect to any Claim due solely to the negligence of Grantee or any of its employees and (b) this indemnification shall be inapplicable to USFWS, CDFG and ACOE Indemnified Parties with respect to any Claim due solely to the negligence of USFWS, CDFG and ACOE or any of their employees; (2) the Grantor's obligations specified in Sections 5, 8, and 8.1; and (3) the existence or administration of this Conservation Easement. If any action or proceeding is brought against any of the USFWS, CDFG and ACOE Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from USFWS, CDFG and ACOE, defend such action or proceeding by counsel reasonably acceptable to the Grantee Indemnified Party or reimburse the party for all charges incurred for services of the Attorney General in defending the action or proceeding. 8.3 No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any unremediated release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Property. Without limiting the obligations of Grantor under Section 9.2, Grantor agrees to indemnify, protect and hold harmless the Grantee Indemnified Parties and the USFWS, CDFG, and ACOE Indemnified Parties (defined in Section 9.2) against any and all Claims (defined in Section 9.2) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time, except that (I) this indemnification shall be inapplicable to the Grantee Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by Grantee, its employees or agents and (II) this indemnification shall be inapplicable to the USFWS, CDFG and ACOE Indemnified Parties with respect to any Hazardous Materials placed, disposed or released by USFWS, CDFG and ACOE, its employees or agents. If any action or proceeding is brought against any of the USFWS, CDFG and ACOE Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from USFWS, CDFG and ACOE, defend such action or proceeding by counsel reasonably acceptable to the USFWS, CDFG and ACOE Indemnified Party or reimburse USFWS, CDFG and ACOE for all charges incurred for services of the California Attorney General in defending the action or proceeding. (a) Despite any contrary provision of this Conservation Easement Deed, the parties do not intend this Conservation Easement to be, and this Conservation 06/07/2006 SDP 01-01(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 Easement shall not be, construed such that it creates in or gives to Grantee or USFWS, CDFG and ACOE 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 obligations or liabilities of a person described in 42 U.S.C. Section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. (b) 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 Hazardous Materials Transportation Act (49 U.S.C. Section 6901 et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.}; the Hazardous Substance Account Act (California 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, rules, regulations or orders now in effect or enacted after the date of this Conservation Easement Deed. (c) The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Grantor represents warrants and covenants to Grantee, USFWS, CDFG and ACOE that Grantor's activities upon and use of the Property will comply with all Environmental Laws. 9. Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure Section 1240.680 notwithstanding Code of Civil Procedure Sections 1240.690 and 1240.700. 10. Assignment. This Conservation Easement is transferable by Grantee, but Grantee may assign its rights and obligations under this Conservation Easement only to an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code Section 815.3. Grantee shall require the assignee to record the assignment in the county where the Property is located. 10 06/07/2006 SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 11. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or any portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee, USFWS, CDFG and ACOE of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. 12. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to the other parties shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows: To Grantor:Ascent Biltmore Carlsbad, LLC P. O. Box 675875 Rancho Santa Fe, CA 92067 Attn: Mr. Thomas Smith To Grantee:City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 With a copy to:Department of Fish and Game, Region 5 4949 Viewridge Avenue San Diego, CA 92123 US Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad CA 92009 FAX 760-431-5902 District Counsel U.S. Army Corps of Engineers Los Angeles District 915 Wilshire Blvd, Room 153506/07/2006 Los Angeles CA 90017-3401 or to such other address as Grantor, Grantee, USFWS, CDFG or ACOE may designate by written notice to the other parties. Notice shall be deemed effective upon delivery in the case of personal 11 06/07/2006 SDP Ol-Ol(B)- PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 13. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. 14. Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Property. Each Grantor and successor shall have obligations pursuant to Section 8.2 as to any Claim only to the extent that the Claim arises during the period in which that Grantor or successor holds fee title to the Property. 15. Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement terminate upon transfer of the party's interest in the Conservation Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 16. Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, or encumbrances upon the Property (other than property taxes and assessments collected with taxes) which have not been expressly subordinated to this Conservation Easement Deed, and that the Property is not subject to any other conservation easement. 17. Subordination. No breach, enforcement or attempted enforcement of any of the terms, covenants, conditions or restrictions of this Conservation Easement will defeat or render invalid the lien of any mortgage or deed of trust securing a loan made in good faith and for value with respect to the Property; provided, however, that all provisions of this Conservation Easement will be binding upon and effective against any subsequent owner of the Property whose title to the property or any portion of such is acquired by foreclosure, trust deed sale, or otherwise. Grantor hereby represents to Grantee that, as of the date of this Conservation Easement, the Property is not encumbered with any mortgage, deed of trust or other monetary encumbrance except for liens for non-delinquent real property taxes and assessments. 18. Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Property (other than a security interest that is subordinate to this Conservation Easement Deed), or grant or otherwise abandon or relinquish any water agreement relating to the Property, without first obtaining the written consent of Grantee, USFWS, CDFG and ACOE. Grantee, USFWS, CDFG or ACOE may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the conservation values of the Property. This Section 13(e) shall not prohibit transfer of a fee or leasehold interest in the Property that is subject to this Conservation Easement Deed and complies with Section 10. 19. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement and subject to the written approval of USFWS, CDFG and ACOE. Any such amendment shall be consistent with the purposes of this Conservation 12 06/07/2006 SDP Ol-Ol(B) - PACIFIC A PALOMAR/BILTMORE APN: 212-040-25-00 Easement and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of San Diego County, State of California. 20. Controlling Law. The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California, disregarding the conflicts of law principles of such state. 21. Severabilitv. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. 22. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 18. 23. Counterparts. The parties may execute this instrument in any number of counterparts, which shall, in the aggregate, be signed by all of the parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 13 06/07/2006 SDP Ol-Ol(B) - PACIFICA PALOMAR/BILTMORE APN: 212-040-25-00 IN WITNESS WHEREOF., Grantor and Grantee have executed this Conservation Easement Deed as of the day and year first above written. GRANTOR: By: <x Bv: Name:J. Title: M&KAfl|VUl U' O GRANTEE: CITY OF CARLSBAD, a CaliforniaAlunicipal Corporat APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assista^City Attorney 14 06/07/2006 STATE OF CALIFORNIA COUNTY OF QAM PICOO On (i flKLI before me, u- Notary Public, personally appeared ffiLKflJ^ u- llkq _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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 of Notary) -Arizona Martcopa County MyCommiMionExpIra* June 16,2010 Rev. 12/17/2007 EXHIBIT "A" LEGAL DESCRIPTION CONSERVATION EASEMENT PARCEL 2 OF PARCEL MAP NO. .Z O 2. 1 °( IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, 07 200/.Z SCALE IN FEET EXHIBIT "B'PAGE 1 OF 2 100 . 0 100 SCALE 1"=30' -N- 200 300 55^?ri516.15'-*-'\CN (of . AREA OF CONSERVATION EASEMENT: 4.782 ACRES LINE L1 L2 L3 L4 15 L6 BEARING N38'47'30"E N86'57'57"E N88'03'52"E N80'57'01"E N89'47'57"E N14'09'58"E DISTANCE 60.00' 125.52' 100.20' 110.19' 136.34' 14.69' LINE C1 C2 C3 C4 DELTA 18t39'42" 16'31'20" 43'36'09" 22'56'02" RADIUS 336.00' 108.00' 229.00' 240.00' ARC 109.44' 31.14' 174.27' 96.07' RAMON J. SPEAR LS. 6404 LIC. EXP. 12-31-06 DATE CITY OF CARLSBAD CONSERVATION EASEMENT CALJE r=ioo' ATE 2/25/06 RN. TCP CK. RJS SPEAR & ASSOCIATES. INC. CIVIL ENGINEERING AND LAND SURVEYING 475 PRODUCTION STREET, SAN MARCOS, CA 92078 (760) 736-2040 FAX (760) 736-4866 JOB NO. 05-177 DWG NO.05-177-CONSERVATION SCALE IN FEET EXHIBIT "B'PAGE 2 OF 2 100 . 0 100 SCALE 1"=30' -N- 200 300 O< Q_ UJGO <CQ_ LoJUJCD PAflCEL J C1 £ UJ •:•: PARCEL 2:::::::::: AREA OF CONSERVATION EASEMENT: 4.782 ACRES LINE L5 L6 L7 L8 L9 L10 L11 L12 L13 L14 L15 BEARING N89*47'57"E S82'50'25"E S74'44'55"E S80'33'36"E N75'46'5rE N67'58'59"E N47'58'59"E NO*01'01"W N45'58'59"E S31-31'OrE N12'52'20"E DISTANCE 136.34' 59.44' 64.35' 80.40' 123.57' 80.00' 60.00' 20.00' 14.03' 27.59' 16.64' LINE C1 C2 DELTA 23<39'33>I 4<06'29" RADIUS 275.00' 1937.00' ARC 113.56' 138.88' RAMON J. LS. 6404 LIC. EXP. 12-31-06 DATE CITY OF CARLSBAD CONSERVATION EASEMENT GALE ATE 1"=100' 2/25/06 RN. TCP CK. RJS SPEAR & ASSOCIATES, INC. CIVIL ENGINEERING AND LAND SURVEYING 475 PRODUCTION STREET, SAN MARCOS. CA 92078 (760) 736-2040 FAX (760) 736-4866 JOB NO. 05-177 DWG NO. 05-177-CONSERVATION CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of. On V/ktc/o?. 2OOSC before me, personally appeared V) ™ 4 &WU!tZ> Name(s) of Signer(s) ISHERRY A. FREISINGW Commission* 1727064 Notary Public - California | San Diego County who proved to me on the basis of satisfactory evidence to be the person^ whose name(s^ is/a/£ subscribed to the within instrument and acknowledged to me that he/s^/th^y executed the same in his/fcier/tr^ir authorized capacity^), and that by his/rje'r/thjrir signature^ on the instrument the person(^j, 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 ha/d and,official Place Notary Seal Above Signature OPTIONAL - Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real property conveyed by the GRANT DEED OF EASEMENT dated May 2. 2008. from Ascent Biltmore Carlsbad. LLC. to the City of Carlsbad, California, a municipal corporation, is hereby accepted by the City Council of the City of Carlsbad, California, pursuant to Ordinance No. NS-422, adopted on September 16,1997, and the grantee consents to the recordation thereof by its duly authorized officer. DATED: May 8. 2008 SHERRY RREISINGEJ^Deputy Clerk (SEAL)