HomeMy WebLinkAbout; ; 2010-0596904; PropertyRECORDING REQUESTED BY:
CALAVERA HILLS II LLC
WHEN RECORDED MAIL TO:
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CA 92008
ATTENTION: CITY CLERK
f
KIP
DQCtt 2010-0596904
NOV03, 2010 3:34 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 0.00
PAGES:16
Space Above for Recorder's Use Only
LICENSE AGREEMENT
(Wetlands Mitigation)
THIS LICENSE AGREEMENT (this "Agreement"), made and entered into as of
/<*-> , 2010, by and between CALAVERA HILLS II LLC, a California limited
liability company, hereinafter called "Licensor" and CITY OF CARLSBAD, a California
municipality, hereinafter called "Licensee." Licensor and Licensee are sometimes referred to in this
Agreement individually as a "Party" and collectively as the "Parties."
RECITALS
A. Licensor owns that certain parcel of real property described in Exhibit 1 attached
hereto and incorporated by this reference (the "Licensed Premises"). The Licensed Premises has an
area of approximately 5.6 acres.
B. Licensee desires to use the Licensed Premises for the following purpose: to plan,
develop, improve, restore, enhance and maintain a detailed wetlands mitigation area for the Licensed
Premises to support various governmental agency permits currently on file with such agencies, as
described in this Agreement (the "Permitted Purpose").
C. Licensee has requested from Licensor, and Licensor has agreed to grant to Licensee,
a revocable, non-exclusive license (the "License") to use the Licensed Premises solely for the
Permitted Purpose (and for no other purpose) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration (as noted below), the receipt and
sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. Grant of License.
Licensor hereby grants to Licensee the License to use the Licensed Premises solely for the
Permitted Purpose (and for no other purpose) upon the terms and conditions set forth in this
Agreement. It is the intent of the Parties that this Agreement run with the land.
2.Term of License.
The initial term of the License shall commence on the date of this Agreement and expire sixty
(60) days after the last of the governmental agencies having jurisdiction over Licensee's wetlands
mitigation improvement work and maintenance to be performed within the Licensed Premises
approves and accepts in writing such work and maintenance and that the approval and
acceptance of the work and maintenance has been verified by Licensor (the "Term"). Such
governmental agencies are herein referred to as ("Concerned Governmental Agencies").
381671.2 License Agreement (Wetlands Mitigation)
3. Consideration for the License.
The consideration to be paid by Licensee to Licensor for the License is $416,000. It shall be
paid in full upon the full execution of this Agreement by Licensor and Licensee after Licensee's
city council has approved this Agreement including the amount of consideration to be paid for
the License.
4. Revocability/Termination of License.
The License granted under this Agreement is revocable in the event of a material default by
Licensee under this Agreement, which entitles Licensor to terminate this Agreement upon the
delivery of not less than thirty (30) days' prior written notice to Licensee, which specifies the
default claimed by Licensor, if not remedied by Licensee within such thirty (30) days, provided
that if the nature of Licensee's non-compliance is such that if more than thirty (30) days are
reasonably required for its cure, then Licensee shall not be deemed to be in default if Licensee
commenced with such cure within said thirty (30) day period and thereafter diligently prosecutes
such cure to completion.
5. Non-Exclusivity of License.
a) The License granted under this Agreement is non-exclusive.
b) Licensor hereby reserves the right, during the term of the License, without
any requirement of notice to or consent of Licensee, to enter and use (and permit Licensor's
affiliates, employees, agents, representatives, tenants, invitees, licensees, permittees, contractors
and/or subcontractors (collectively, the "Licensor Parties") to enter and use), the Licensed
Premises for any purpose, including but not limited to the installation, construction, use,
maintenance, repair, alteration, improvement and removal of utility facilities, appurtenances and
equipment, provided such activities by Licensor Parties shall not (i) unreasonably interfere with
Licensee's use of the Licensed Premises or (ii) damage any mitigation improvement work
performed by Licensee.
c) Licensor hereby reserves the right, during the term of the License, without
any requirement of notice to or consent of Licensee, to grant any easement, servitude, restriction,
or license affecting all or any portion of or interest in the Licensed Premises, provided the same
shall be subordinate to this Agreement and not (i) unreasonably interfere with Licensee's use of
the Licensed Premises or (ii) damage any mitigation improvement work performed by Licensee.
d) Licensor and Licensee acknowledge that the Licensed Premises is subject
and subordinate to a Conservation Easement Deed recorded March 1, 2007, as Document No.
2007-0140005, Official Records of San Diego County, CA, in favor of Center for Natural Lands
Management as grantee ("CNLM"). CNLM has issued a letter dated April 15, 2009, supporting
the work to be performed by Licensee pursuant to this Agreement, a copy of which letter is
attached as Exhibit 2. Licensee Parties (defined below) shall not (i) unreasonably interfere with
CNLM's use of its easement, which includes the Licensed Premises, or (ii) damage any
mitigation improvement work performed by CNLM.
e) The Parties acknowledge that fee ownership of the legal parcel, which
includes the Licensed Premises, will eventually be conveyed to The Foothills at Carlsbad
Homeowners Association on the terms and at the time determined at the sole discretion of
Licensor. Upon transfer of the fee ownership the new owner will become the Licensor.
381671.2 2 License Agreement (Wetlands Mitigation)
6. Condition of Licensed Premises.
a) Licensee hereby accepts the Licensed Premises "As-Is, Where-Is With
All Faults And Defects, Known And Unknown" condition. Licensee acknowledges that access
to the Licensed Premises exists from adjacent public roads pursuant to those Easements
identified on the second page and shown on the third page of Exhibit 1 as Easements Numbers 1
and 4. Licensor makes no representation, warranty or guaranty regarding those easements.
b) Licensee hereby acknowledges that Licensee has conducted its own due
diligence in respect of the Licensed Premises and has independently (and not in reliance on any
representations or warranties of Licensor, the Licensor Parties or any other party purporting to
act on their behalf) determined to acquire the License to use the Licensed Premises for the
Permitted Purpose.
c) Licensee hereby assumes any and all risks arising from the physical
condition of the Licensed Premises, including but not limited to the risk that patent or latent
defects and/or hazardous conditions may now or hereafter exist within the Licensed Premises.
Licensor hereby disclaims any and all responsibility or liability for any injury, loss, liability,
claim, cause or action, damage, cost, expense, fine or penalty, including but not limited to
attorney's fees, witness fees and consultant fees (collectively, "Claims"), that Licensee or its
affiliates, employees, agents, representatives, invitees, licensees, permittees, contractors and/or
subcontractors (collectively, the "Licensee Parties") may suffer or incur as a result of the
physical condition of the Licensed Premises, including but not limited to the existence of any
patent or latent defects and/or hazardous conditions, unless due to the gross negligence or willful
misconduct of Licensor.
7. Possible Adjustment in Boundary of Licensed Premises.
Although Licensee has obtained preliminary approval of the Licensed Premises as acceptable
qualifying land in need of wetlands mitigation, the Parties acknowledge that a portion of the
Licensed Premises may later be deemed to be "not qualifying" by the Concerned Governmental
Agencies in which latter event the boundaries of the Licensed Premises shall be adjusted to
delete such "not qualifying" land and include other contiguous land owned by Licensor to again
constitute a Licensed Premises of approximately 5.6 acres, as mutually approved by the Parties,
which approval shall not be unreasonably withheld; and the Parties shall then promptly execute a
written amendment to this Agreement to give effect to such adjustment.
8. Use of Licensed Premises.
Licensee shall use the Licensed Premises solely for the Permitted Purpose, as described in
Recital B above, and for no other purpose.
a) Licensee shall obtain all permits and approvals required by all federal,
state, county, municipal or other local governmental authorities, bureaus or agencies (each, a
"Concerned Governmental Agency") in connection with any activity conducted by Licensee
and/or any Licensee Party in respect of the License or the Licensed Premises (collectively, the
"Permits and Approvals"). At all times during the term of the License, Licensee shall comply
(and shall cause the Licensee Parties to comply) with (i) the terms and conditions of all Permits
and Approvals, and (ii) all federal, state, county, municipal and other local laws, statutes, codes,
ordinances, rules, regulations, directives, policies, decisions, guidelines and orders now or
hereafter applicable to Licensee, the Licensed Premises or the Permitted Purpose (collectively, as
381671.2 3 License Agreement (Wetlands Mitigation)
the same may be amended from time to time, "Applicable Laws"). Licensee shall promptly
notify Licensor if Licensee or any of the Licensee Parties receive any notice of any violation of
the Permits and Approvals or any Applicable Law. Licensee shall cure any violation of the
Permits and Approvals or any Applicable Law within thirty (30) days after receiving notice of
such violation, provided that if such violation is not capable of being cured within thirty (30)
days, Licensee shall commence to cure such violation within ten (10) days and shall diligently
prosecute such cure to completion.
b) At all times during the term of the License, Licensee shall conduct (and
shall cause the Licensee Parties to conduct) all activities in respect of the License and the
Licensed Premises in a manner designed to (i) minimize any interference with the activities of
Licensor and/or the Licensor Parties in respect of the Licensed Premises and/or other the real
property owned by Licensor, and (ii) guard against soil erosion, explosions and fires within the
Licensed Premises and/or the real property.
c) None of Licensee or the Licensee Parties shall cause or permit (i) any
activity to occur in respect of the License or the Licensed Premises that constitutes waste or
public or private nuisance, (ii) any explosive or highly flammable substances or materials to be
stored, released, generated, placed, handled or used within the Licensed Premises and/or other
the real property owned by Licensor, or (iii) any party to live or reside within the Licensed
Premises.
d) Without the prior written consent of Licensor, which shall not be
unreasonably withheld, none of Licensee or the Licensee Parties shall cause or permit any heavy
machinery or equipment to be operated or stored within the Licensed Premises, except as
necessary in connection with and to effect the Permitted Purpose.
e) Licensee shall keep (and shall cause the Licensee Parties to keep) the
Licensed Premises free from and shall promptly discharge any liens arising from any work
performed, material furnished, obligations incurred or any other thing done or permitted by
Licensee and/or the Licensee Parties in respect of the License or the Licensed Premises; provided
that Licensee (or a Licensee Party) may dispute any such lien so long as Licensee (or such
Licensee Party) first posts a bond for such lien in the amount required under and otherwise in
accordance with all Applicable Law.
f) If Licensee and/or any Licensee Party fails to commence to cure and
thereafter diligently complete the cure, of any defaults under any obligations set forth in this
Paragraph 8 after ten (10) days from receipt of written notice of such failure to comply or
default then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole
expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or
any Licensor Party in curing such failure..
g) If Licensee and/or any Licensee Party abandons, rescinds, repudiates,
rejects or in any way terminates the License, without or without the proper authority on the part
of Licensee, prior to the completion of the Term, Licensee in order to mitigate any damages
suffered by Licensor shall take all steps necessary to place the Licensed Premises in a condition
to immediately be used by any successor party for the Permitted Purpose and/or for Licensor to
operate the Licensed Premises in the manner as originally intended. Furthermore, Licensee shall
notify in writing any Concerned Governmental Agency of Licensee's actions.
381671.2 4 License Agreement (Wetlands Mitigation)
9. Maintenance of Licensed Premises.
a) At all times during the term of the License, Licensee shall, at Licensee's
sole expense, maintain the Licensed Premises in a good and clean condition. Without limiting
the generality of the foregoing sentence, Licensee shall keep (and shall cause the Licensee
Parties to keep) the Licensed Premises clean and free from any hazardous substances, Hazardous
Materials, trash, rubbish, debris, waste, and/or explosive or highly flammable materials caused
by Licensee or the Licensee Parties.
b) During the term of the License, neither Licensor nor the Licensor Parties
shall have any obligation to (i) maintain, improve, alter or repair the Licensed Premises, or (ii)
furnish any utilities to the Licensed Premises, including but not limited to electricity, gas, water,
sewer, CATV, drainage, or telephone service. Except at the sole option of Licensor to do
otherwise, any utilities provided to the Leased Premises shall be installed, maintained and paid
for by Licensee.
c) Licensee shall cure any violation of this Paragraph 9 within ten (10) days
after receiving notice of such violation, provided that if such violation is not capable of being
cured with ten (10) days, Licensee shall commence to cure such violation within ten (10) days
and shall diligently prosecute such cure to completion.
d) If Licensee and/or any Licensee Party fails to commence to cure and
thereafter diligently complete the cure of any defaults under any obligations set forth in this
Paragraph 9 after ten (10) days from receipt of written notice of such failure to comply or
default, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole
expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or
any Licensor Party in curing such failure. Licensor shall have no obligation or duty to cure any
defaults of Licensee.
10. Environmental Compliance.
a) The term "Environmental Law" shall mean any Applicable Law pertaining
to worker or workplace safety, environmental conditions, environmental quality or policy, health
and/or safety issues or concerns, the regulations promulgated pursuant thereto and the conditions
of any permits, judgments, agreements or authorizations issued pursuant thereto, including but
not limited to (i) the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 ("CERCLA"), 43 U.S.C. §9601 et seq., (ii) the Resource Conservation and Recovery Act
of 1976 ("RCRA"), 42 U.S.C. §6901 et seq., (iii) the Toxic Substances Control Act of 1976
(TSCA), 15 U.S.C. §2601 et seq., (iv) the Hazardous Materials Transportation Act, 49 U.S.C.
§1801 et seq., (v) the Clean Water Act, 33 U.S.C. §1251, et seq., (vi) the Porter Cologne Water
Quality Act, California Water Code §13000 et seq., and (vii) the Safe Drinking Water and Toxic
Enforcement Act of 1986, California Health and Safety Code §25249.5 et seq., (viii) The
Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health & Safety Code,
§25300 et seq., (ix) The California Hazardous Waste Control Law (California Health & Safety
Code, §15200 et seq., (x) The Occupational Safety and Health Act (29 U.S.C. §651 et seq.), and
(xi) the California Occupational Safety and Health Act (California Labor Code §6300 et seq.).
b) The term "Hazardous Substance" shall mean any chemical, substance,
material, object, condition, waste or combination thereof that is or may be hazardous to human
health or safety or the environment due to its radioactivity, ignitabiliry, corrosivity, reactivity,
381671.2 5 License Agreement (Wetlands Mitigation)
toxicity or other properties or effects, including but not limited to oil or petroleum and petroleum
products, asbestos, radon, polychlorinated biphenyls (PCBs), urea formaldehyde insulation, lead
paints and coatings, and all of those chemicals, substances, materials, objects, conditions, wastes
or combinations thereof that are now or in the future are listed, defined or regulated in any
manner by any Environmental Law.
c) At all times during the term of the License, Licensee shall comply (and
shall cause the Licensee Parties to comply) with all Environmental Laws.
d) At any time during the term of the License, at Licensor's sole cost and
expense, but subject to Licensee's obligation to reimburse Licensor for Licensee's breach of its
obligations set forth in this Paragraph 10, Licensor may, after providing ten (10) days prior
written notice to Licensee, retain a registered environmental consultant to conduct an
investigation of the Licensed Premises (an "Environmental Assessment") for Hazardous
Substances contamination within or beneath the Licensed Premises or the underlying ground
water. Licensee shall (and shall cause the Licensee Parties to) cooperate with Licensor and its
consultant regarding any Environmental Assessment. Licensor will provide Licensee with a
copy of any such Environmental Assessment to the extent the same, to the reasonable belief of
Licensor, pertains to the Environmental Activities of Licensee or the Licensee Parties.
e) If any activity performed by Licensee or the Licensee Parties results in any
contamination of the Licensed Premises or the soil or ground water under the Licensed Premises,
Licensee shall (and shall cause the Licensee Parties to) promptly take all actions, at Licensee's
sole expense, to reimburse Licensor for costs incurred by Licensor in connection with any
Environmental Assessment(s), and to mitigate or remediate the affected portion of the Licensed
Premises and/or the soil or ground water in accordance with all Environmental Laws and/or other
Concerned Governmental Agency requirements. Licensor shall have the right (but shall not be
obligated) to approve any and all contractors hired by Licensee or the Licensee Parties to
perform such mitigation or remediation work.
f) Licensee shall cure any violation of this Paragraph 10 within ten (10) days
after receiving notice of such violation, provided that if such violation is not capable of being
cured with ten (10) days, Licensee shall commence to cure such violation within ten (10) days
and shall diligently prosecute such cure to completion.
g) If Licensee and/or any Licensee Party fails to commence to cure and
thereafter diligently complete the cure of any defaults under any obligations set forth in this
Paragraph 9 after ten (10) days from receipt of written notice of such failure to comply or
default, then Licensor may (but shall not be obligated to) cure such failure at Licensee's sole
expense, and Licensee shall, upon demand, pay to Licensor all costs incurred by Licensor and/or
any Licensor Party in curing such failure. Licensor shall have no obligation or duty to cure any
defaults of Licensee.
h) The obligations set forth in this Paragraph 10 are independent of any other
obligations contained in this Agreement and shall survive the expiration or earlier termination of
the License.
11. Insurance.
At all times during the term of the License, Licensee shall maintain in effect the following
insurance coverages in amounts not less than the following minimum limits: (i) workers'
381671.2 6 License Agreement (Wetlands Mitigation)
compensation insurance and employer's liability insurance in accordance with statutory
requirements and limits, (ii) commercial general liability insurance, including but not limited to
products-completed operations and contractual liability coverage, with limits of not less than
$1,000,000.00 per occurrence and $2,000,000 in the aggregate for bodily injury and property
damage, and (iii) automobile liability insurance, with limits of not less than $1,000,000.00 per
occurrence and $2,000,000 in the aggregate for bodily injury and property damage.
a) At any time during the Term of the License, upon Licensor's request,
Licensee shall provide insurance policies or certificates evidencing the insurance coverages
required to be maintained by Licensee under Paragraph 11 (a) above, and such policies or
certificates shall (i) name Licensor as an additional insured, (ii) contain a severability of interest
or cross liability clause, (iii) state that such insurance coverage is primary with respect to the
Licensor, and The obligation to maintain the insurance coverages set forth in this Paragraph 11
shall not in any way limit or diminish any of Licensee's other obligations, responsibilities or
liabilities under this Agreement.
12. Indemnification.
12.1 Indemnification of Licensor.
a) Licensee hereby agrees to indemnify, defend and hold harmless
Licensor, the Licensor Parties, and their respective officers, directors, employees,
shareholders, partners and affiliates (collectively, the "Licensor Indemnitees") from and
against any and all Claims to the extent arising or resulting from (i) Licensee's or any
Licensee Party's use, maintenance, presence on or occupation of the real property and/or
the Licensed Premises pursuant to this Agreement, (ii) the presence of Licensee's or any
Licensee Party's automobiles within the real property and/or the Licensed Premises
pursuant to this Agreement, (iii) the exercise of the rights granted to Licensee and/or the
Licensee Parties under this Agreement, including but not limited to the performance of
the Permitted Purpose, (iv) any violation by Licensee and/or any Licensee Party of the
terms and conditions of this Agreement, (v) any prescriptive rights in the real property
and/or the Licensed Premises asserted by any party by virtue of the License and/or any
holding over on or failure to vacate or surrender the Licensed Premises after the
expiration or earlier termination of the License if Licensee has not then acquired fee title
ownership of the Licensed Premises, and/or (vi) any other act or omission of Licensee
and/or any Licensee Party.
b) Upon demand by any Licensor Indemnitee, Licensee shall defend,
at Licensee's sole expense by counsel reasonably satisfactory to the Licensor, any Claims
brought against such Licensor Indemnitee with respect to which Licensee is obligated to
defend the Licensee Indemnitee under Paragraph 12.1 (a) above. Licensor shall cooperate
with Licensee in such defense.
c) The obligations of Licensee under this Paragraph 12.1 shall not be
limited in any way by any limitation on the amount or type of damages, compensation or
benefits payable by or for the Licensee under any worker's compensation acts, disability
benefit acts or other employee benefit acts.
d) Nothing contained herein shall operate as a limitation on the right
of Licensor to bring an action for damages against any third party, including indirect,
381671.2 7 License Agreement (Wetlands Mitigation)
special, or consequential damages, based on any acts or omissions of such third party.
Licensee shall assign such rights of claims, execute such documents, and do whatever
else may be reasonably necessary to enable Licensor to pursue any such action against
such third party.
e) The obligations of Licensee under this Paragraph 12.1 shall survive
the expiration or earlier termination of the License.
12.2 Indemnification of Licensee.
a) Licensor hereby agrees to indemnify, defend and hold harmless
Licensee, the Licensee Parties, and their respective managers, members, officers,
directors, employees, shareholders, partners and affiliates (collectively, the "Licensee
Indemnitees") from and against any and all Claims to the extent arising or resulting from
(i) Licensor's or any Licensor Party's negligence or willful misconduct in the use,
maintenance, presence on or occupation of the Licensed Premises (ii) any violation by
Licensor and/or any Licensor Party of the terms and conditions of this Agreement, and/or
(iii) any other act or omission of Licensor and/or any Licensor Party.
b) The obligations of Licensor under this Paragraph 12.2 shall survive
the expiration or earlier termination of the License.
13. Surrender of Licensed Premises.
Upon the expiration or earlier termination of the License if Licensee has not then acquired fee
title ownership of the Licensed Premises, Licensee shall promptly vacate and surrender the
Licensed Premises to Licensor and shall deliver the Licensed Premises to Licensor clean and free
from any trash, rubbish, debris, waste, explosive or highly flammable materials and/or
Hazardous Materials caused by Licensee or the Licensee Parties.
14. Notices.
a) All notices to be given under this Agreement shall be in writing, addressed
to the recipient Party at the address listed in Paragraph 14(b) below, and: (i) Sent by certified
mail, return receipt requested, in which case notice shall be deemed delivered three (3) business
days after deposit, postage prepaid in the United States mail; (ii) sent by a nationally recognized
overnight courier, in which case notice shall be deemed delivered one (1) business day after
deposit with such overnight courier; or (iii) sent by telecopy or similar means, provided that a
copy of the notice is also sent by certified mail, in which case notice shall be deemed delivered
on transmittal by telecopier or other similar means provided that a transmission report is
generated reflecting the accurate transmission of the notices.
b) Each Party's address for notices under this Agreement is set forth below:
If to Licensor: CALAVERA HlLLS IILLC
12865 Pointe Del Mar, Suite 200
Del Mar, CA 92014
Telephone: (858)481-8500
Facsimile: (858) 259-6975
Attention: Stephen P. Doyle
David R. Poole
381671.2 8 License Agreement (Wetlands Mitigation)
If to Licensee: CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
Carlsbad, CA 92008
Telephone: (760)434-2821
Facsimile: (760) 720-9461
Attention: City Manager
15. Assignment.
a) Licensor may assign this Agreement at any time to any party without any
requirement of notice to or consent of Licensee or any Licensee Party. It is expressly understood
that this License runs with the land and the assignee will become the new Licensor.
b) Licensee may not assign this Agreement at any time to any party without
the prior written consent of Licensor, which may be withheld in the sole discretion of Licensor.
16. Time of the Essence.
Time is of the essence of each and all of the terms and provisions of this Agreement.
17. Governing Law and Venue.
a) This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to its conflicts of law principles.
b) The Parties hereby agree that any legal action or proceeding arising out of
this Agreement shall be brought in a state court of competent jurisdiction in San Diego County,
California. By execution and delivery of this Agreement, each of the Parties hereby irrevocably
accepts and submits to the jurisdiction of such courts, generally and unconditionally, in
connection with any such legal action or proceeding.
18. Severability.
If any part, paragraph or provision of this Agreement should be invalid, then all the remaining
parts, paragraphs and provisions of this Agreement shall continue in full force and effect.
19. Rules of Construction.
a) Headings contained in this Agreement are solely for the convenience of
the Parties and are not a part of and shall not be used to interpret this Agreement. The singular
form of any word shall include the plural form and vice versa.
b) This Agreement has been prepared, examined, negotiated and revised by
each Party and its counsel, and no implication shall be drawn and no provision shall be construed
against any Party hereto by virtue of the purported identity of the drafter of this Agreement.
20. No Prescriptive Rights.
In no event shall any party acquire any interest in the real property or the Licensed Premises,
including but not limited to any prescriptive rights, by virtue of the License, this Agreement or
any holding over on or failure to vacate or surrender the Licensed Premises after the expiration
or earlier termination of the License.
381671.2 9 License Agreement (Wetlands Mitigation)
21. Entire Agreement: Amendment.
This Agreement contains the entire agreement of the Parties with respect to the License and the
other matters set forth in this Agreement and supersedes all prior agreements, oral or written,
between the Parties with respect to the License and/or any other matters set forth in this
Agreement. This Agreement may not be amended except by a written instrument signed by all
Parties.
3 81671.2 10 License Agreement (Wetlands Mitigation)
IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as of the
Effective Date.
LICENSOR:
CALAVERA HILLS II LLC,
a California limited liability company
By: BROOKFIELD TAMARACK LLC,
a Delaware limited liability company
its Sole Memfcer
By:
LICENSEE:
CITY OF CARLSBAD,
a Califor
By:
STATE OF CALIFORNIA
COUNTY OF
On
appeared
, a Notary Public, personally
, 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/hor/their authorized capacity(ies), and that by4»s/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.
ROW* RUTHERFORD
CommiMiofl * 1807421
Notify PubHc * CtWoffrti
San Otogo County
Notary Public /
381671.2 11 License Agreement (Wetlands Mitigation)
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
appeared
before me,
A. Ujulr
, a Notary Public, personally
, who proved to me on the basis of satisfactory evidence
to be the perso»(s) whose namej^cjlziare- subscribed to the within instrument, and acknowledged to me
that (figfcho/thoy executed the same in (tusker/their authorized capacity(jes)? and that byChisTW&heii*
signature(s)^5n the instrument the person(*fr 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.
SHEILA RENAE COBIAN f
Commission * 1848471 K
Notary Public • California I
San Diego County |
My Comm. Expires May 10.20131
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
_, before me,_, a Notary Public, personallyOn
appeared , who provedrfo me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to/die within instrument, and acknowledged to me
that he/she/they executed the same in his/her/theji^uthorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), pr'the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJLJI
paragraph is true and correct.
WITNESS my hand and offici^seal.
under the laws of the State of California that the foregoing
Notary Publk
381671.2 12 License Agreement (Wetlands Mitigation)
Exhibit 1
Licensed Premises
September 14, 2010
J.N.: 081245-3
PAGE 1 OF 1
EXHIBIT "A"
LEGAL DESCRIPTION
RESTORATION AREA
THAT PORTION OF LOT 9 OF LOT MAP NO. 15608, RECORDED SEPTEMBER
7, 2007 AS FILE NO. 2007-0612802, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 9; SAID POINT
ALSO BEING A POINT ON THE NORTH LINE OF COLLEGE BLVD ON A
1349.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL TO
SAID POINT BEARS SOUTH 56°01'23" WEST; THENCE ALONG SAID NORTH
LINE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
16°14'11" AN ARC DISTANCE OF 382.28 FEET; THENCE CONTINUING
ALONG SAID NORTH LINE, NORTH 50°12'48" WEST 96.65 FEET; THENCE
LEAVING SAID NORTH LINE, NORTH 39°47'12" EAST 147.08 FEET TO THE
TRUE POINT OF BEGINNING; THENCE NORTH 10°28'15" EAST 634.68
FEET; THENCE NORTH 05°33'23" WEST 205.00 FEET; THENCE SOUTH
52°28'37" EAST 91.28 FEET; THENCE SOUTH 37°17'11" EAST 111.33
FEET; THENCE SOUTH 00°36'37" WEST 80.55 FEET; THENCE SOUTH
24°48'23" EAST 165.34 FEET; THENCE SOUTH 35°51'08" EAST 46.66
FEET; THENCE SOUTH 87°24'22" EAST 127.55 FEET; THENCE SOUTH
14°08'46" EAST 37.98 FEET; THENCE SOUTH 05°57'27" WEST 61.50
FEET; THENCE SOUTH 02°54'50" EAST 44.53 FEET; THENCE SOUTH
11°04'45" WEST 90.11 FEET; THENCE SOUTH 01°18'36" WEST 120.07
FEET; THENCE SOUTH 55°34'01" WEST 368.10 FEET; THENCE NORTH
43°10'21" WEST 204.75 FEET TO THE TRUE POINT OF BEGINNING.
AREA = 251,303 S.F. OR 5.77 ACRES MORE OR LESS
O:\Legal_Descriptions\011014\PA23-Restoration Area.doc
Exhibit 1
Pagel
LEGAL DESCRIPTION:
PORTION OF LOT 9 OF
C. T. 02-16, MAP 15608,
BASIS OF BEARINGS:
EASTERLY UNE OF R.O.S. 17111
/.£. S 0413'22" W
EASEMENTS
PEDESTRIAN TRAIL EASEMENT
TOGETHER WITH ACCESS
EASEMENT FOR MAINTENANCE,
PER MAP 15608
INUNDATION EASEMENT
PER MAP 15608
OPEN SPACE EASEMENT TO
CITY OF CARLSBAD
PER MAP 15608
PUBLIC ACCESS EASEMENT
PER MAP 15608
SITE
CITY OF
VISTA
PACIFI
OCEAN
VICINITY MAP
NO SCALE
SHT. 1 OF 2 SHTS.
CONSULT T S
2710 LOKER AVE. W. 760-931-7700
SUITE 100 FAX:
CARLSBAD, CA 760-931-8680
92010
RESTORATION AREA
Exhibit 1
Page 2
G:\011014\0114PB04.dwg Sep 14, 2010 9:53am
RESTORATION AREA
GROSS AREA = 251,303 SF, OR 5.77 AC.
NET AREA = GROSS AREA - 7,317 SF (PEDESTRIAN EASEMENT)
= 243,986 SF, OR 5.60 AC.
EXIST. PROPERTY LINE
EASEMENT
0' 50' 200*
100'
SCALE: 1" = 200'
S3717'H"E
111.33'
SOO'36'37"W
80.55'
S35-51'08"E
46.66'S14V8'46"E 37.98'
S87?4'22"E
S0557'27"W 61.50'
S02"54'50"E 44.53'
S11V4'45"W 90.11'
S0118'36"W 120.07'
S55'3401 W 368.10
SHT. 2 OF 2 SHTS.
CONSULT RESTORATION AREA
Exhibit 1
2710 LOKER AVE. W. 760-931-7700
SUITE 100 FAX:
CARLSBAD, CA 760-931-8680
92010
G:\011014\0114PB04.dwg Sep 14. 2010 9:53am
Exhibit 2
CNLM Approval Letter
Center for Natural Lands Management
A non-profit organization lor the protection and management of natural resources
215 West Ash Street
KaiSbruok, CA 93(3)29-2904
Phone: 71ft.73l.rt9t>April 15,2009 Fax: 760.731.7791
www.cnlm.org
Paul Klukas
PLANNING SYSTEMS
1530 Faraday Ave.
Suite 100
Carlsbad, CA 92008
RE: WETLANDS CREATION AND ENHANCEMENT - ROBERTSON RANCH
EAST VILLAGE
Dear Mr. Klukas:
You have indicated that Calavera Hills H, LLC and the City of Carlsbad are investigating
the wetlands restoration and enhancement opportunities on the approximately 5.6 acres
located south of the existing wetland mitigation sites and north of Detention Basin BJB.
within the panhandle of the East Village of Robertson Ranch. This area could benefit
from a program of creation, restoration and enhancement by increasing cover of native
wetland plant species and reducing cover of nonnative plant species. At mis time native
cover is low and the plant assemblage does not represent typical riparian habitat in San
Diego.
Please be advised that CNLM believes improving the wetland in this area would be
beneficial to the ecology of the area. We also note that per our conservation and
management agreements for the project. McMillin/Brookfield reserved the right to
conduct creation and enhancement in this area.
As a result, we support the effort of the landowner and the City to conduct wetlands
creation/restoration and enhancement in this area.
Markus Spiegefberg
San Diego Area Manager
Center for Natural Lands Management
Ris* «arl!/, .stay late and take care of the (and.
Exhibit 2
Pagel