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Home My WebLink AboutRancho Costera LLC; 2014-08-14;AGREEMENT AN AGREEMENT BETWEEN THE CIry OF CARLSBAD AND RANCHO COSTERA, LLC, REGARDING THE PROVISION OF A NON-WASTING ENDOWMENT FOR MANAGEMENT AND MONITORING OF OPEN SPACE IN PERPETUITY AS REQUIRED FOR ROBERTSON RANCH WEST VILLAGE HABITAT MANAGEMENT PERMIT NO. 11.03 This Agreement is made tnis /4thdav or 4ugus-F , 20 14 by and between the CITY OF CARLSBAD, California, a municipal corporation (hereinafter called "City") and RANCHO COSTERA, LLC, (hereinafter called "Subdivider"). RECITALS A. Subdivider, as a condition of Planning Commission Resolution No. 6914 of the City of Carlsbad, approving a Habitat Management Plan Permit for Robertson Ranch West Village, Case No. HMP 11-03 ("HMP 11-03'), is required to provide a non-wasting endowment as required by Condition No. 9, as follows; Prior to issuance of a grading permit or clearing of any habitat, whichever occurs first, the Developer shall take the following actions to the satisfaction of the City Planner in relation to the open space lot(s) which are being conserved for natural habitat in conformance with the City's Habitat Management Plan: tl (c) Based on the results of the PAR [Property Analysis Record], provide a non-wasting endowment or other financial mechanism acceptable to the City Planner and conservation entity, if any, in an amount sufficient for management and monitoring of the open space lot(s) in perpetuity. B. Subdivider is working with San Diego Habitat Conservancy ("Conservancy") to manage the open space habitat to be preserved pursuant to HMP 11-03 ("Preserve"), and the Conservancy has prepared a Robertson Ranch Property Analysis Record dated June 20,2014 ('PAR') concluding that a total endowment of $652,204.68 is required to manage and monitor the Preserve ("Endowment"). C. As the Conservancy and Subdivider are still preparing other documentation relative to the Preserve, the Conservancy is not yet able to accept the Endowment from SMRH:427062390.2 -1- Subdivider. ln consideration of the fact that Subdivider has made good faith efforts towards satisfying its obligations relative to Condition No. 9 above by diligently working with Conservancy, obtaining a PAR , and delivering a cash deposit to the City in the amount of $652,204.68, City will allow grading to proceed prior to fulfillment of Condition No. 9 and final map approval . Said amount shall be released to Conservancy or Subdivider's designee upon execution of an agreement between Subdivider and Conservancy or another conservation entity acceptable to the City Planner governing perpetual management and operation of the Preserve ("Operating Agreement"). The City is authorized to hold non-wasting endowments under Section 21.210.050 (B) of the Carlsbad Municipal Code. Should San Diego Habitat Conservancy or the designated conservation entity conclude that the deposited endowment is insufficient to manage the open space in perpetuity prior to final map approval, additional endowment funds may be required by the City Planner prior to approval of a final map for Robertson Ranch West Village. NOW, THEREFORE, in consideration of the mutual covenants contained herein and of the recitals, it is mutually agreed by and between the parties as follows: 1. The Recitals above are incorporated herein by reference. 2. Concurrently with execution of this Agreement, Subdivider shall deposit with City cash in the amount of $652,204.68 ("Endowment Funds"), representing the Endowment to be delivered to the Conservancy or Subdivider's designee pursuant to the PAR. 3. The Endowment funds shall be held by the City in a segregated deposit account and shall not be commingled with other funds, including, without limitation, the General Fund. 4. City shall release the Endowment Funds to Conservancy or Subdivider's designee within ten (10) business days following receipt of an Operating Agreement from Subdivider executed by Subdivider and Conservancy or Subdivider's designee. 5. Subdivider acknowledges that the City will not record the Final Map until Subdivider reaches a final agreement with the Conservancy or Subdivider's designee. Should Subdivider ultimately fail to reach an agreement with the Conservancy the City will continue to hold the Endowment until such time as Subdivider finds another entity to manage and monitor the SMRH:427062390.2 -2- Preserve and fulfills Condition No. 9 of Resolution 6914. Subdivider agrees that the indemnity obligations of Condition 4 of Resolution 6914 specifically apply to this agreement in that: "Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney's fees incurred by City arising, directly or indirectly, from (a) City's approval and issuance of this Habitat Management Plan Permit, (b) City's approval or issuance of any permit or action, whether discretionary or non-discretionary, in connection with the use contemplated herein, and (c) DeveloperiOperator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the City's approval is not validated." 7 The City shall not charge for staff time associated with temporarily holding the endowment funds. I The Subdivider and City agree to cooperate in commencing these activities in an expeditious manner for the purpose of completing this deposit of Endowment Funds and subsequent release and delivery to Conservancy or Subdivider's designee as soon as reasonably possible, and prior to approval of the Final Map for CT '13-03, in accordance with applicable laws and procedures. ilt ilt ilt CITY OF CARLSBAD, a municipal corporation of the State of California STEVE SARKOZY City Manager DON NEU City Planner Executed by Subdivider this /sFh dav ot 4y.*-,2014. SUBDIVIDER: RANCHO COSTERA, LLC, a Delaware limited liability company (name of Subdivider) r) , lr4"il" r\-/ (print flame here) ,),u'nJl"n* By: (sign here) (print name here) (title and organization of signatory) (Proper notarial acknowledgment of execution by SUBDIVIDER must be attached) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: CELIA BREWER City Attorney /-// Mobaldi nt City Attorney -4-SMRH:427062390.2 GALIFOBIIIA ALt*pURIrOgE ACKTaOULEDGHEITIT Stet€ ol Califomfti esrnry ot ktore ri€,& fsrsffiafly ryearad l &t Pkff.*ryGed fb# psegd ts ge m fie M dta&ctoryar&ffi b & & Ws@el:w& ns{qs} klare ex,Seffied !0 &e WSa' ftr#ulsrt @ aO@d b rc€ thal hsffirey e€cflM &re sre h f,ds8,sffi a{furird*@re€,, ard $€t by Hafrerfiffir ssre@$ oa Ss Mfurmrt tte W,mn{s}, sr fi€ erffiy Ws b*att ot rt{ €*l thE parw{e} ef*d, eeer.*ed SraMfls$. t eerffiy urds F€fi*ALTY Of PEBfl.ffiY rirN# $* hilve d Arc &tc d Ca$bn*a srst tre brruokg paragraph b lnre irfld @nact IYtTIESS ety halrd ar*d ffial #. S@a*re qn*s€ dtfogyf'rrt6c wfiaflAL ?fe4fr dw bla*$i* &e*xr & no{,ry&@ @ tuu, * nq prw ratu& $o por.aor rE8&Xg an fta &eu**MN @N g€fert *atd.$ad M and reafiaffi of tr# fayn tp s*a&s&*raerd. Oeashfon ef AtBoftq! Ilocument ?l8e sT:pe sf &qsnsnl: DoqrmemtO.ate:M;r&rstkge9: Smer{s} O&6rThan Hamd l&sre; C@ttr{te8} Cltlm€d by SNgnsr{e} €{gr#e Nar-e: tl lftdvi*€l $igr*fs NarB€: n &rtlrar-tr ilr{ed tr GatEral u Attwrey h Farf DTrus*e€ D Gt#an or CcilB€r€t€r tl Corpsate Offier -Tidets): D k{€lvffi{ra, ncryrate ffiw-Ti{e(a}:tr tutirq-tl Llraitsd tr GsreralI *ts!?€ykr&rt U t{llat('€ : E Guatsan or Carservator n O&sn trGtur: gigrer*s f*rsertting:Slgfls b fu9r*aafing: Om7l{a'ondl@tAs€od*on.S69.8doAn*F.O.Ao(24{f.ClBE{rs*\CA3€r*e@.ixu,${el$hefe{E brE*8CF A6e&f,{Hf*a.fuei{X}€rrc48er SMRH:427062390.2 -)- ACKNOWLEDGMENT State of California County of Orange On August 13,2014 before me, Janice M. Lombardi, Notary Public (insert name and title of the officer) personally appeared Seth Ring who proved to me on the basis of satisfactory evidence to be the person(s,)tlhose name{s} islqcr subscribed to the within instrument and acknowledged to me that he/sherftgfexecuted the same in hisllyxfth9n authorized capacity(iefiand that by hisllp#ttrgirsignature(s.fon the instrument the person(gf 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. WTNESS my hand and official seal. Signature (Seal)