SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY
9:30 a.m. – 12:00 p.m. Friday, October 17, 2008 County Administrative Center 1600 Pacific Highway, Room 302/303 San Diego
Speaker slips will be available. Please fill out a slip and give it to the Chair prior to the meeting if you wish to speak to an item on the agenda. The Board may take action on any item listed on the Consent or Action agenda.
Introductions and Announcements.
Approval of the Minutes of September 19, 2008
Executive Directors Report –
a. Quarterly Work Program Update (page 3) b. Ranger Report (oral)
Public Comment This portion of the agenda provides an opportunity for members of the public to address the Board on items of interest within the jurisdiction of the Board and not appearing on today's agenda. Comments relating to items on today's agenda are to be taken at the time the item is heard. Pursuant to the Brown Act, no action shall be taken by the Board on public comment items.
CONSENT 1. Adopt Resolution Applying to State Parks for Recreational Trails Program Grant for Del Dios Gorge Trail (page 21)
2. Adopt Resolution Applying to the Resources Agency for River Parkway Grant for Del Dios Gorge Trail and Eucalyptus Removal (page 24)
3. Adopt Revised Sikes Adobe Historic Farmstead Mission Statement (page 27)
ACTION
4. Appoint Nominating Committee for JPA Board Chair and Vice-Chair (page 28)
5. Award Grading Contract for Cloverdale Creek Mitigation Site (page 30)
6. Fenton Ranch – Conservation Easement, Management and Endowment Agreement (page 33)
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7. Fenton North – Conservation Easement, Management and Endowment Agreement (NCA-Esco) (page 48) 8. Fenton North – Conservation Easement, Management and Endowment Agreement (Lowe Enterprises)
(page 82)
INFORMATION
9. Coordination Reports (oral)
a. San Dieguito River Valley Conservancy b. Friends of the San Dieguito River Valley c. Volcan Mountain Preserve Foundation d. San Dieguito Lagoon Committee
10. Status Reports (Oral)
1. Fire Recovery 2. River Park Projects a. Coastal Trail b. Lake Hodges Bicycle Pedestrian Bridge c. Other
11. Jurisdictional Status Reports
An opportunity for the Board members to report on actions taken within their jurisdictions to further the park planning process, or on problems which have arisen. 12. Communications
THE NEXT REGULAR JPA MEETING IS SCHEDULED FOR FRIDAY, NOVEMBER 21, 2008.
If you have any questions, please call Dick Bobertz at (858) 674-2270.
****Due to the high cost of printing and mailing the JPA and CAC agendas, the JPA has converted to an email distribution of both agendas. Please advise the office at 858 674-2270 if you do not have an e-mail address and want other arrangements will be made. Full packets will continue to be mailed free of charge to JPA and CAC members upon request. For others, the cost of the full agenda, with backup material, is $45 per year, and the cost of the agenda without backup material is $10 per year. The agenda and minutes are available at no cost on the San Dieguito River Park web site at www.sdrp.org
2 SAN DIEGUITO RIVER PARK JPA FY 2008/09 ADOPTED WORK PROGRAM – FIRST QUARTER UPDATE
The JPA’s first priority is the preservation and acquisition of land. All other activities, notwithstanding their importance, are secondary.
River Park Goals: 1. Preserve Habitat and Natural Open Space 2. Provide Public Access 3. Provide Education, Interpretation, Outreach for the Public 4. Preserve Cultural Resources 5. Partner with Other Entities to Accomplish Goals 6. Be Stewards of the Land 7. Build River Park Endowment Fund for Lasting Legacy
This Work Program is intended to implement these goals. The layout of the Work Program shows how each of these goals are being implemented through various tasks, the status of those tasks, and which specific tasks have been accomplished in the current year.
GOAL 1. PRESERVE HABITAT AND NATURAL OPEN SPACE
Objectives Tasks Status ACCOMPLISHED IN FY 08/09 1.1 Seek funding for priority acquisitions via Monitor funding programs and submit Negotiation ongoing for two parcels • 154-acre former TET parcel in grants, mitigation and special legislation. applications. comprising 113 acres of mitigation Del Dios Gorge acquired property.. • Received donation of 32.6 acre Also see 5.4 Maderas Westridge property. 1.2 Encourage and support local and state Monitor proposed legislation Evaluation of potential for PRC bond act legislation and other legislation 5506.3 or other local funding source for park and open space purposes. to provide open space funding ongoing 1.3 Continue specific acquisition program for Work with San Dieguito River Valley Acquisition Program approved by funds identified for the San Dieguito Conservancy to refine joint list of JPA Board 10/19/01, updated . River Corridor, working with Wildlife priority parcels for future acquisition 11/15/02. Negotiations with Conservation Board and/or other and pursue Acquisition Program, potential sellers ongoing. agencies, using previously developed list consistent with the JPA’s policy and of priority parcels for future acquisition procedures on land acquisition. from willing sellers, consistent with the JPA’s land acquisition policy and procedures. 1.4 Work with San Dieguito River Valley Seek donations of land, gifts, bequests, Coordination of potential Conservancy to facilitate private etc., working with the San Dieguito acquisitions ongoing. foundation sources for land acquisition. River Valley Conservancy.
3 ATTACHMENT 1
GOAL 2. PROVIDE PUBLIC ACCESS
2.1 Secure grants and other funding for Monitor available grant programs and • Applied for $1,215,718 from • Entered into agreement with park improvements, including design submit applications. Poseidon Resources for coastal Poseidon Resources for and construction of trails and staging habitat enhancement projects to reimbursement of planning areas, and universal access. implement wetland projects in costs for 37-acre mitigation the lagoon . project in San Dieguito Lagoon • Applied for $321,000 from the State Park & Recreation Dept. for Del Dios Gorge Trail construction (RTP grant). • $39,000 raised by the “Donate a Plank” fundraising program of Del Mar Rotary and SDRVC for trails and interpretive signs in the lagoon area.
• $20,000 worth of volunteer labor and equipment contributed by the Del Mar Rotary and 22nd DAA to extend the Boardwalk trail ½ mile to I-5.
• $50,000 awarded by Northrup Grumman to help replace the Green Valley Creek Bridge.
2.2 Complete Coast to Crest Trail, • Secure trail easements over • Preliminary study compiling all focusing on section from coast to private parcels for critical links existing easements completed. Lake Sutherland of Coast to Crest Trail
4 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• Align, design and construct • Engineering design complete; Del Dios Trail segments County permit issued. • Grant to fund construction of retaining walls necessary to complete Del Dios Trail applied for (see 2.1) • Partnering with San Diego San Diego Mountain Bike Mountain Bike Association to Association and Geogrid agreed to complete 300’ section of Del contribute labor, equipment and Dios trail. materials valued at $20,000. • Coordinate with City of San • Ongoing participation in Via de Diego on trail under and in la Valle/El Camino Real Task vicinity of replacement El Force Camino Real Bridge, now being designed, including trail cantilever proposed for bridge • Construct coastal trail • Contract awarded for I-5 (between Jimmy Durante Blvd. undercrossing and segment of and Horse Park) trail across water treatment ponds, and water treatment ponds; construction ongoing; contract 95% complete. • • Implement staging (visitor • Identifying location in coastal parking) and/or picnic areas at area near planned boardwalk appropriate locations outside of wetland jurisdiction for staging area.
• Coordinate with County and • Working with County and City staff to identify trail SDGE for trail easement in alignment in Artesian power line right-of-way. Road/San Dieguito Road area • Working with County for trail as west extension of Crosby easement as new development Estate Trail. projects are submitted. • Implement Pamo Valley Trail • Conducting field work, section with grant funds from preparing site plan, SDRVC coordinating with City of San Diego, property owner
5 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• Implement Heritage Trail link • Conducting field work, between Coast to Crest Trail preparing site plan, and Poway across Highland coordinating with City of San Valley Road Diego, property owner 2.3 Conduct and maintain trail user Identify volunteer or student intern to Volunteer patrol collection of information surveys and counts, and enter enter information into computer is ongoing information into computer database. database and produce charts depicting usage patterns 2.4 Construct Lake Hodges • Complete environmental • FHWA approved Categorical Bicycle/Pedestrian Bridge and Bike documentation Exclusion Path Connections • MND approved.
• Complete engineering designs • 100% designs complete, secured grading permit approval from City of San Diego, Encroachment permit from Caltrans and lease from City of San Diego. Second phase of construction underway. • Secure additional funding • Seeking funding source or contributions for estimated $600,000 needed to complete bridge
• Secure required state, local and Done.
federal permits
• Construct Phase One (south Done
abutment) Feb 07-May 07
• Construct Phase Two Sept 07- • FCI Constructors hired, Phase Two: North abutment and two May 09. construction underway.. piers in lake completed. Phase Two: Superstructure under construction.
2.5 Distribute trail access information • Prepare Trail Maps for new • Ongoing, in coordination with trails. SDRVC • Post trail information and/or maps on website • Ongoing 2.7 Ensure that trails are safe for park • Provide for regular Volunteer Ongoing. visitors. and Ranger Patrol
6 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• Provide for radio and GPS Ongoing access between volunteer patrol, rangers and emergency services.
GOAL 3. PROVIDE EDUCATION, INTERPRETATION, OUTREACH FOR THE PUBLIC
Objectives Tasks Status ACCOMPLISHED IN FY 08/09 3.1 Secure grants and other funding for Monitor funding programs and prepare Seeking additional funds to complete interpretive facilities and programs. applications Sikes Adobe Creamery restoration. 3.2 Restore Sikes Adobe Farmhouse for • Rebuild farmhouse destroyed in Processing permit with City of SD to use in docent-led tours for public Witch Fire construct replica of historic farmhouse. • Furnish Farmhouse with On hold until building is rebuilt appropriate furnishings • Implement period gardens On hold until building is rebuilt • Provide educational programs Conducting archaeological excavations with Palomar College students. • Restore Farmhouse exterior and • Reconstruction of historic grounds creamery outbuilding in progress.
• Secure rights to site with City of Purchase of 5.742 acre site San Diego via long-term lease, completed with $170,000 provided purchase or land-swap by SD County through Supervisor Pam Slater-Price. 3.3 Design and construct a River Park • Conduct site selection study with Pending staff time Interpretive Center in San Pasqual CAC and community planning Valley area. groups for San Dieguito River Park Visitor Center in San Pasqual Valley • Prepare master plan/site plan for Pending identification of funding San Dieguito River Park Visitor Center in San Pasqual Valley • Develop needs program including Research of other facilities in region projected size and costs for future ongoing Visitor’s Center.
7 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• Seek funding for design and Monitoring potential fund programs, construction of San Dieguito River such as Prop 84. Park Visitor Center in San Pasqual Valley
3.4 Market “The Painted Rocks” Distribute booklet to sales venues, including Ongoing. Booklet has been purchased educational booklet. school districts and teachers, and put for all 3rd Grade Classes in San Diego informational flyers about it in park kiosks Unified School District. 3.5 Enhance public awareness of • Place interpretive signage at Ongoing. Mule Hill Trail provides natural and cultural resources in the appropriate locations along the interpretation about historic features river valley. River Park trails. and agriculture.
Signage for San Pasqual Valley Trail about invasive plants, biodiversity, and history of the area completed with funds from Lepidium removal grant; being installed.
Signage for Del Dios Trail and Santa Fe Valley Trail completed, will be installed once the trails are re-opened.. • Prepare Interpretive Program/Map Ongoing. for the Coast to Crest Trail for internal use in determining where and what type of interpretive signage should be located along the trails • Provide enrichment training for Ongoing. existing Volunteer Patrol • Continue conducting work parties Ongoing. See 3.7 that incorporate interpretive education 3.6 Explore feasibility of agricultural Coordinate with County Farm Bureau. Ongoing education program. 3.7 Continue and expand River Park • Continue Volunteer Program (as • Ongoing visibility in the river valley. well as Rangers) to monitor park trails, provide information to Park visitors and give Park greater visibility to public. • Host weekly volunteer or • Ongoing recreational activities including Jr. Naturalist program Watershed 8 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
Awareness programs, photography and stargazing programs, trail maintenance and habitat restoration work parties, kayak rides, horseback rides, etc. • Consider publishing promotional • Ongoing material that would be of interest to tourists, such as “deck of cards” featuring pictures of the park or booklets about SDRP 3.8 Report regularly to Board and Provide Quarterly Work Program Status • Ongoing public on Work Program progress. Briefings for Board/Public, and Quarterly Ranger Report 3.9 Continue promotion of the River • Continue to prepare Public Service • Ongoing. See 7.2 Park. See 7.2. Announcements for Radio and TV spots and press releases for Park accomplishments, hikes and activities • Seek media exposure on County TV Network • Ongoing • Continue to participate in National and California Trails Day and Earth Day activities and other fairs • Ongoing as appropriate • Promote the River Park as a tool for outdoor education, through • Ongoing increased involvement in schools and use of the Ruth Merrill Children’s Interpretive Walk • Coordinate Speakers Bureau program with SDRVC. • Continue hosting regular hikes and • Ongoing events, adding lecture series and specially designed programs for • Ongoing children. • Prepare complete information packets to send out as requested, to include SDRP brochure, activity • Ongoing. schedules, volunteer and SDRVC membership information; trail maps, and Q&A about SDRP • Ongoing
9 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
3.10 Implement Interpretive sites and • Seek funding for design and • Grant application for concept facilities included in Park Master construction of permanent Nature design submitted to Sempra Plan for Coastal Area. Center Foundation. • Design and construct Grand • Designs complete as far as can Avenue Overlook Interpretive Site be done until SCE Wetland Restoration Project is implemented. Three interpretive panels installed by Friends/Lagoon Committee. Bridge work initiated by SCE.
• Seek funding for Interpretive • Ongoing Panels • Seek funding for Mesa Loop Trail • On hold • Work with 22nd DAA to secure route for Coast to Crest Trail • Ongoing through Horsepark.
3.12 Conduct annual River Park event. Plan and carry out a variety of public events Multiple programs - “Art in the Park” to attract park users for educational and stargazing and photography classes programs and recreational activities. are being held to respond to a variety of public interests.
GOAL 4. PRESERVE CULTURAL RESOURCES
4.1 Secure grants and other funding for Monitor available programs and • Ongoing preservation and restoration of prepare applications cultural and historical resources 4.2 Utilize existing funding sources to Monitor available programs and • Used Community prepare a restoration plan for Sikes prepare applications Enhancement Program grant Adobe and seek additional grants to funds to secure building permit restore the structure. to restore creamery, purchase materials, and install footings. See 3.2
4.3 Secure funding for rock art replica Monitor available programs and • Ongoing (per Piedras Pintadas Cultural prepare applications Resource Management Plan) in Bernardo Bay Natural Area 10 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
GOAL 5. PARTNER WITH OTHER ENTITIES TO ACCOMPLISH GOALS
5.1 Concept Plan adoption by all Update and submit to member agencies. • Updated plan was approved by member agencies. JPA Board in 2002. Concept Plan accepted by City of San Diego, 6/25/06 . • Coast to Crest Regional Trail adopted in SD County General Plan Trails Element.
5.2 Improve signage, trails and staging Coordinate with City of San Diego, • Ongoing improvements in Cleveland National Cleveland National Forest, Ramona Trails Forest and City of San Diego areas. Association and others 5.3 Review all significant projects Monitor development proposals from Under Review: Sunrise Powerlink preferred proposed within the member member jurisdictions. El Camino Real Bridge and Road alignment modified to avoid habitat jurisdictions for consistency with Improvements impacts in FPA Park goals and objectives. Via de la Valle widening Sunrise Powerlink Polo Club grading/trail SDP
5.4 Work with property owners as they • Work with Polo Club to restore • Polo Club – new application READ required permit processing to plan projects to include land trail segment pending, due 11/08 restore public trail and habitat. dedication of easements, trails and project design compatible with the park
11 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
5.5 Implement the Park Master Plan for • Work with all interested parties Ongoing. • SCE Project grading the Coastal Area. Also see 2.2 and including Cities of Del Mar and reached 80% completion. 3.10. Solana Beach, 22nd District • Trail completed between Agricultural Association, resource Jimmy Durante and I-5. agencies, trail user groups and community representatives. • Work with SCE to provide Public information meeting was held signage and other information to 11/14/07 at Power House Community inform the public about the Center restoration project.
• Work with Poseidon Resources to Feasibility analysis negotiations ongoing. develop concepts for 37-acre tidal wetland creation outside of SCE project area.
5.6 Develop incentives for Park Coordinate with SDRVC. Ongoing Partners. 5.7 Explore feasibility of a water quality Ongoing monitoring or similar project. 5.8 Coordinate programs with SDRVC See 1.3, 1.4, 5.6, 7.1 Ongoing 5.9 Work with other agencies on • Work with CDFG and County • Ongoing. planning management responsibility Parks on management plan for for lands within the River Valley. Rutherford Ranch/San Felipe Valley
12 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• Seek to manage, when Negotiation on three parcels ongoing. Acceptance of management of appropriate, properties in the former The Environmental River Valley that are owned by Trust properties completed. other entities. See 1.1. • Work with County Parks on • Ongoing management plan for Santa Ysabel Ranches
• Work with CDFG and City of San • On Hold Diego re Boden Canyon • Letter written by JPA in October management plan 06 requesting reinstatement of Coast to Crest Trail in draft plan and inclusion of JPA in planning process. • Enter into a MOA with City of • Under review by Water Dept. San Diego Water Department that sets forth each agency’s responsibilities for trail and facility maintenance on Water Department property in the Lake Hodges/San Pasqual Valley area. Prepare signage clearly indicating joint facilities. • Work with City of San Diego on • Ongoing Resource Management Plan for San Pasqual Valley • Explore future planning and/or • Ongoing management plan for Pamo Valley with City of San Diego to identify areas that should be preserved as open space • Transfer Arkansas Canyon • Discussions ongoing. property to CDFG under Board- approved conditions.
13 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
5.10 Coordinate with other agencies on • Coordinate with City of Poway on • Ongoing. trail connections between the Coast connection between SDRP and to Crest Trail and other trail systems Blue Sky Ranch and park facilities • Coordinate with County on • Ongoing Escondido Creek connection and Ramona Grassland connection • Coordinate with Anza Borrego • Ongoing State Park and State Parks for PCT connection • Work with City of San Diego and • Coordinating with Trans-County County on adoption and Trail Joint Agency Planning implementation of regional trail Committee. plans. 5.11 Share available information with • Seek to go online to County • County Accounting System is other entities, using most Accounting system, with goal of online via Intranet, and available technologically efficient methods. streamlining claim process and to JPA more ready access to accounting information. • Improve database system to make • Ongoing information more accessible, user- friendly and useful (i.e., track event signups and volunteer hours). • Establish Geographic Information System (GIS) on office computer • Installation complete; training to facilitate parcel information and ongoing mapping, and trail mapping, sharing SANDAG, SANGIS and County resources where feasible. 5.12 Coordinate with national land Work with Trust for Public Land and The • Ongoing. . conservation organizations. Nature Conservancy on land acquisition programs. 5.13 Partner with other agencies, Establish relationships and contacts within • Ongoing. associations or organizations to agencies, associations or organizations with offer enrichment and training opps compatible goals to the River Park’s goals. for docents and volunteers.
14 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
GOAL 6: BE STEWARDS OF THE LAND
6.1 Protect and restore biological • Apply for grants and other • Ongoing. • $48,000 awarded by NRCS resources in the river valley. funding. for habitat restoration at Cloverdale Creek. • $56,250awarded by NRCS to SDRVC to restore 47 acres of non-native • Receiving annual income grassland to coastal sage from endowment funds and scrub in SP Valley SDRVC to manage Bernardo • $123,750 awarded by NRCS Mountain and other parcels. to SDRVC to restore a eucalyptus grove to sycamore and riparian vegetation. • $186,000 awarded by San Diego Foundation Fire Recovery Fund to SDRVC to restore critical habitat in burn areas. • $24,750 was awarded by NRCS to SDRVC to remove invasive plants and restore 3 ponds on River Park property in Santa Ysabel. • $142,500 was awarded by NRCS to SDRVC to remove arundo in San Pasqual Valley. • $342,000 awarded by SANDAG (Transnet EMP) for natural fire recovery, invasive species removal and access management.
15 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
• $6,500 was donated by a Trails Committee members to finish fencing on the Coast to Crest Trail segment west of I-5 and to purchase hats for trail volunteers. • $5,000 worth of volunteer labor and materials to apply preservatives to the Grand Avenue Bridge was donated by the Del Mar Rotary Club. • $4,450 was donated by REI for trail reconstruction at Lake Hodges. Grant application by SDRVC. • $15,000 donated by SDRVC to purchase and install fencing,, a solar- timed gate and grading for the Sikes staging area. • $15,000 donated by a SDRVC member as a match for other contributors to fund extension of Lagoon Trail. • Implement habitat garden at • Ongoing Highway 78/Bandy Canyon Staging Area • Work with USGS and/or • Develop biological baseline other entities to extend Santa info for new acquisitions Ysabel Ranch studies. 6.1.1 Control Invasive Species Develop comprehensive plan for invasive species eradication.
Implement existing Lepidium removal • Ongoing grant. • Joint application submitted Seek additional grants for invasive weed for multi-watershed invasive removal. control program to IRWMP • Grant received from Restore ponds at Habib property to SANDAG includes bullfrog 16 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
reduce bullfrog problems. removal
6.2 Participate in regional habitat and Co-chair San Dieguito Watershed • Ongoing watershed planning and Council with SDRVC to implement San • Resolutions of support implementation, and habitat Dieguito Watershed Management Plan. obtained from Cities of Del restoration planning, as it relates to Mar, Solana Beach, Poway the river valley. and Escondido for IRWMP grant 6.3 Create detailed Master Plans for • Park Master Plan for Coastal the landscape units in the FPA Area adopted: Other areas pending identification of funding. 6.4 Maintain River Park property and • Monitor and patrol to assess • Ongoing facilities. maintenance concerns at Solar powered automated gate staging areas, trails and open installed at Sikes Adobe site. space areas. See 3.7 • Clean and maintain park • Ongoing facilities, such as repair fences,
empty trash cans, replace signs.
• Close staging areas on weekend evenings to deter • Ongoing; investigating use dumping. of automated gates.
• Recruit and train volunteers, • Ongoing including scouts, students and NCCC, for trail construction, sign and fence building, trail rehabilitation, maintenance
17 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
clean-up, revegetation projects, graffiti removal, habitat • Ongoing restoration and other projects. • Continue to supervise volunteer and paid work crews on maintenance and trail improvements • Bookkeeper hired to create • Create “Land Management database Tracking” Database for improved recordkeeping of management properties and associated funds.
6.5 Implement mitigation for Mule • Create 0.6 acres of wetlands • Identified site (Cloverdale Right of Entry permit obtained Hill/San Pasqual Valley Trail Creek) in San Pasqual Valley from City of San Diego to initiate that meets Resource Agency project. requirements; Working on agreement with City of San Diego Water Department to provide mitigation they need as well as what SDRP needs in exchange for use of Water Dept. property. • Maintain and monitor Mule • Ongoing Hill/San Pasqual Valley Trail per MMRP 6.6 Develop needs based formula for Review available programs and other Ongoing. number of rangers, maintenance agency procedures. workers, docents and volunteer patrolmembers, based on number of miles of trail and/or acres of open space. 6.7 Fire Recovery • Restore park structures and • Awarded contract to • The San Dieguito River equipment fabricate replacement Green Valley Conservancy • Restore trails Valley Creek Bridge provided executive staff • Restore habitat • Awarded contract to repair time to coordinate with burned decking on Santa FEMA and $24,962 for half- Maria Creek cantilever ranger year. • Replaced burned fencing in • Contributions of office San Pasqual Valley. furniture, tools and cash • Working with insurance equivalent to over $50,000 18 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
agency, FEMA and other received. agencies and contributors • 1999 GMC Yukon valued at $10,000 donated to River • Architects hired to produce Park. plans for River Park • The River Park admin/ranger headquarters Administrative and Ranger and Sikes Adobe. offices were temporarily reestablished in the City of San Diego Water Reclamation facility on Highland Valley Drive. • The remaining adobe walls of the Sikes Adobe were stabilized. • The Lake Hodges North Shore Trail and western Mule Hill Trail were cleared of after-fire conditions endangering public safety and reopened to the public.
GOAL 7. BUILD RIVER PARK ENDOWMENT FOR LASTING LEGACY
7.1 Secure an $11.5 million endowment • Work with Endowment • Ongoing Internally managed fund established by 2020. Committee to develop program 2/08. to achieve endowment target Balance as of 6/30/08: $1,828,305
• Work with member agencies to • $100,000 approved as FY . continue the annual 08/09 member agency endowment contributions contribution.
• Work with San Dieguito River • Ongoing Valley Conservancy to expand their fundraising programs to include the River Park’s Endowment Fund
19 Objectives Tasks Status ACCOMPLISHED IN FY 08/09
7.2 Increase Park profile in the • See 3.9 • Ongoing • $2K grant received from community and media to reach • Application submitted for County Community potential donors and promote Park. $10K grant for development of Enhancement Program for a strategic communications development of strategic framework for the River Park. communications framework. • 78 newspaper articles published on the Boardwalk, wetland restoration project, Lake Hodges Bridge, Del Dios bridge, Rancho Guejito, River Park events, and fire recovery. • 15 TV reports on the Boardwalk, North Bank Restoration Project, lagoon opening, Lake Hodges Bridge and Fire Recovery and Wetland Restoration Project • 3 Radio reports on River Park and Lagoon • Work with SDRVC to install • Ongoing directional and monument • Coordinating with Caltrans for signage at key locations I-5 lagoon sign. 7.3 Plan for future by assessing future Prepared “Needs Assessment” operational needs and consider document that compares how other funding options in addition to similar agencies are funded, and Endowment Fund. evaluates options for additional River Park funding.
20 Agenda Item 1 October 17, 2008
TO: JPA Board
FROM: Staff
SUBJECT: Resolution Applying for Recreational Trails Program Grant Funds
RECOMENDATION:
Adopt Resolution Applying for Recreational Trails Program Grant Funds
SITUATION:
The Recreational Trails Program deadline for grant applications was October 1st. Your staff prepared an application for $321,000 that would be used to complete the last link of the Del Dios Gorge Trail. The Recreational Trails Program is a federal program that is administered by the State Department of Parks and Recreation. The JPA previously received a grant of $236,250 from this program for the Del Dios Gorge Trail. The grant program requires that the Board of Directors adopt a resolution agreeing to the provisions in the attached draft resolution.
Attachments: 1. Draft Resolution
21 Agenda Item 1 October 17, 2008
Resolution No: ______
RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER PARK JOINT POWERS AUTHORITY APPROVING THE APPLICATION FOR GRANT FUNDS FROM THE RECREATIONAL TRAILS PROGRAM
WHEREAS, the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” provides funds to the State of California for Grants to federal, state, local and non-profit organizations to acquire, develop and/or maintain motorized and non-motorized trail Projects; and
WHEREAS, the State Department of Parks and Recreation has been delegated the responsibility for the administration of the program within the State, setting up necessary procedures governing Project Application under the program; and
WHEREAS, said procedures established by the State Department of Parks and Recreation require the Applicant to certify by resolution the approval of Application(s) before submission of said Application(s) to the State; and
WHEREAS, the Applicant will enter into a Contract with the State of California to complete the Project(s);
NOW, THEREFORE, BE IT RESOLVED that the Board of Directors hereby: • Approves the filing of an Application for the Recreational Trails Program; and • Certifies that the Project is consistent with the Applicant’s general plan or the equivalent planning document; and • Certifies that said Applicant has or will have available prior to commencement of any work on the Project(s) included in this Application, sufficient funds to operate and maintain the Project(s); and • Certifies that the Applicant has reviewed, understands, and agrees to the General Provisions contained in the Contract shown in the Procedural Guide; and • Appoints the Executive Director as agent to conduct all negotiations, execute and submit all documents, including, but not limited to Applications, agreements, amendments, payment requests and so on, which may be necessary for the completion of the Project. • Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines.
Approved and Adopted the _____day of ______, 20______.
I, the undersigned, hereby certify that the foregoing Resolution Number_____was duly adopted by the Board of Directors following a roll call vote:
Ayes:
Noes:
22 ATTACHMENT 1 Agenda Item #1 October 17, 2008
Absent:
______Chair, David W. Roberts
ATTEST:
Jan Lines, Office Manager
23 Agenda Item 2 October 17, 2008
TO: JPA Board
FROM: Staff
SUBJECT: Resolution Applying for Proposition 84 River Parkway Grant Funds
RECOMENDATION:
Adopt Resolution Applying for Proposition 84 River Parkway Grant Funds
SITUATION:
California voters passed the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84). It added to the Public Resources Code, Section 75050, authorizing the Legislature to appropriate the following:
River Parkways: The sum of sixty-two million dollars ($62,000,000) to Agency for the acquisition, restoration, protection and development of river parkways in accordance with the California River Parkways Act of 2004.
The Resources Agency has released a notice that grant applications under the above program are due November 12th.
Your staff is working with the San Dieguito River Valley Conservancy to prepare an application for funds that would be used to complete the last link of the Del Dios Gorge Trail and also remove eucalyptus trees from the Del Dios Gorge area from the Lake Hodges Dam to Crosby Estate. The total grant request would be for $800,000. The grant program requires that the Board of Directors adopt a resolution agreeing to the provisions in the attached draft resolution.
Attachments: 1. Draft Resolution
24 Agenda Item 2 October 17, 2008
Resolution No: ______
RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER PARK JOINT POWERS AUTHORITY APPROVING THE APPLICATION FOR GRANT FUNDS FOR THE CALIFORNIA RIVER PARKWAYS GRANT PROGRAM UNDER THE SAFE DRINKING WATER, WATER QUALITY AND SUPPLY, FLOOD CONTROL, RIVER AND COASTAL PROTECTION BOND ACT OF 2006 (Proposition 84) ______
WHEREAS, the Legislature and Governor of the State of California have provided funds for the program shown above; and
WHEREAS, the Resources Agency has been delegated the responsibility for the administration of this grant program, establishing necessary procedures; and
WHEREAS, said procedures established by the State Resources Agency require a resolution certifying the approval of application(s) by the Applicants governing board before submission of said application(s) to the State; and
WHEREAS, the Applicant, if selected, will enter into an agreement with the State of California to carry out the project
NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the San Dieguito River Park Joint Powers Authority
1. Approves the filing of an application for the Del Dios Gorge Trail and Eucalyptus Removal Project.
2. Certifies that Applicant understands the assurances and certification in the application; and,
3. Certifies that Applicant or title holder will have sufficient funds to operate and maintain the project(s) consistent with the land tenure requirements; or will secure the resources to do so; and,
4. Certifies that it will comply with all provisions of Section 1771.5 of the California Labor Code; and,
5. If applicable, certifies that the project will comply with any laws and regulations including, but not limited to, the California Environmental Quality Act (CEQA), legal requirements for building codes, health and safety codes, disabled access laws, and, that prior to commencement of construction, all applicable permits will have been obtained; and,
6. Appoints the Executive Director or designee, as agent to conduct all negotiations, execute and submit all documents including, but not limited to applications, agreements, payment requests and so on, which may be necessary for the completion of the aforementioned project(s).
Approved and adopted the ______day of ______20____.
ATTACHMENT 1 25 Agenda Item #2 October 17, 2008
I, the undersigned, hereby certify that the foregoing Resolution Number ______was duly adopted by the Board of Directors of the San Dieguito River Park Joint Powers Authority.
Following Roll Call Vote:
Ayes: ______Nos: ______Abstain: ______Absent: ______
______Chair David W. Roberts
ATTEST: Jan Lines, Office Manager
26 Agenda Item 3 October 17, 2008
TO: JPA Board
FROM: Staff
SUBJECT: Sikes Adobe Historic Farmstead Revised Mission Statement
RECOMENDATION:
Adopt Revised Mission Statement
SITUATION:
In response to the decision made at your last meeting, an abbreviated Mission Statement for the Sikes Adobe Historic Farmstead follows.
Sikes Adobe Historic Farmstead Mission Statement
The revised Mission Statement, if adopted, will read as follows:
The Sikes Adobe Historic Farmstead, owned and operated by the San Dieguito River Park Joint Powers Authority, is a historic site dedicated to the preservation and interpretation of the history of the settlement of the San Dieguito River Valley as experienced by the Sikes family during the period from 1869-1899.
Respectfully Submitted,
Anne P. Cooper, Museum Manager
27 Agenda Item 4 October 17, 2008 TO: JPA
FROM: Staff
SUBJECT: Nominating Committee for next year’s Chair and Vice-Chair & Committees
RECOMMENDATION:
Appoint Nominating Committee for next year’s Chair and Vice-Chair & Committees
SITUATION:
A. Summary and Recommendation
In accordance with JPA Board Rule #1, Election of JPA Board Officers, a nominating committee is to be appointed by the Chair each calendar year. The nominating committee is to present to the Board of Directors for their consideration at their next meeting, a proposed slate which includes nominations for the two officers (Chair and Vice-Chair) and membership on the Land Use Committee, Acquisition and Financing Strategies Committee, and Budget/Administration/Policy Committee. It is customary for the Chair to appoint a committee of three JPA Board members to serve on the Nominating Committee. The Committee would confer before your next meeting to prepare a slate of officers and committee members for the Board’s review and approval. New officers will assume office in January.
B. Citizens Advisory Committee Recommendation – This item has not been reviewed by the CAC.
C. Issues – No issues have been identified.
ALTERNATE ACTIONS
1. Approve the Nominating Committee selected by the Chair. 2. Do not approve the Nominating Committee selected by the Chair and elect other members instead.
Respectfully submitted,
Dick Bobertz Executive Director
Attachments: 1) JPA Board Rule #1, Election of JPA Board Officers
28 Agenda Item 4 October 17, 2008
POLICY NO. P95 - 1 ADOPTION DATE: 3/17/95
POLICY OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY ELECTION OF JPA BOARD OFFICERS
PURPOSE
The San Dieguito River Park Joint Powers Authority (JPA) was formed to create, preserve and enhance the San Dieguito River Valley Regional Open Space Park (Park). The Joint Powers Agreement provides for the Board to select its officers from among the members. The purpose of this policy is to provide direction on the selection of officers.
POLICY
The success of the JPA in fulfilling its functions as authorized by its member agencies and in carrying out its programs to serve the people of San Diego County is in the hands of its Boardmembers and most importantly its officers. Therefore, it is the policy of this Board to select officers who are enthusiastically supportive, willing and able to promote the San Dieguito River Park and its goals and objectives, and to implement the will of the Board.
OFFICERS/TERMS
The Joint Powers Authority officers shall consist of a Chair and a Vice-Chair who will serve one year terms. In January of each year, customarily the Vice-Chair from the previous year will assume the Chair’s office. At any time during the year should the Chair resign or be unable to serve in the function of Chair, the Vice-Chair will assume the Chairmanship. An effort shall be made to rotate the Chair and Vice-Chair positions among the various jurisdictions.
NOMINATING COMMITTEE
A nominating committee will be appointed by the Chair in October of each calendar year. The nominating committee shall present tot he Board of Directors for their consideration at the next JPA meeting a proposed slate which includes nominations for the two officers and membership on the Land Use Committee, Acquisition and Financing Strategies Committee and the Budget/Administration/Policy Committee. These committees will meet as needed to accomplish the business of the JPA. The Board may accept the recommendations of the nominating committee or amend then by a majority vote.
REMOVAL FROM OFFICE
An officer of the San Dieguito River Park JPA may be removed by a majority vote of the Board of Directors.
29 ATTACHMENT 1 Agenda Item 5 October 17, 2008
TO: JPA Board
FROM: Staff
SUBJECT: Contract for Grading of Cloverdale Creek Restoration Project
RECOMMENDATION:
Award construction contract to lowest, responsible, responsive bidder.
SITUATION:
The San Dieguito River Park is required to construct a mitigation project at Cloverdale Creek for wetland impacts associated with two River Park projects, the Hodges Bridge and the Mule Hill/San Pasqual segment of the Coast to Crest Trail. The CEQA findings approved for both of these projects identified Cloverdale Creek just downstream of Rockwood Road as the approved mitigation site (Attachment 1). The JPA is in the process of finalizing a lease agreement with the City of San Diego to implement the Cloverdale Creek mitigation project. The draft lease agreement was approved by your Board in April 2006 as part of the lease for the Hodges Bridge. Around that time, City staff decided to separate the two leases to expedite the Hodges Bridge lease so construction could commence. City staff is now in the process of finalizing the Cloverdale Creek lease for approval at an upcoming City Council meeting. In the meantime, the City has issued a Right of Entry to the JPA so that construction can begin on the mitigation project.
The JPA will create and restore 1.33-acre of southern willow scrub habitat at Cloverdale Creek. As per the lease agreement, the City Water Department is sharing in the cost of the project for their share of 0.6-acre of wetlands to mitigate a Water Department project. Additional habitat will be enhanced along the creek bed by removing invasive species. A portion of this project is funded by a Wildlife Habitat Incentives Program (WHIP) grant received from the Natural Resources Conservation Service (NRCS). The Cloverdale Creek restoration project has also been on the JPA’s Work Program for several years.
A major component of the Cloverdale Creek mitigation project is to grade a section of the creek to widen and stabilize the heavily eroded and incised creek channel. This will also allow establishment of new wetland habitat. JPA staff obtained two bids to perform the surveying and grading, Colwell Equipment for $61,260 and Trinity Grading, Inc. for $53,233. Planting of native species and project maintenance will be done by JPA rangers and volunteers.
It is recommended that your Board award the grading contract to Trinity Grading as the lowest, responsible, responsive bidder.
30 Agenda Item #2 October 17, 2008
It is anticipated that the Cloverdale Creek mitigation project will be constructed between November 2008 and March 2009.
1. Citizens Advisory Committee Recommendation – This specific item has not been reviewed by the CAC. However, the Cloverdale Creek project has been discussed on several CAC agendas over the last several years. 2. Issues – No issues have been identified. 3. Fiscal Impact – None.
ALTERNATIVES
1. Award contract to lowest, responsible, responsive bidder. 2. Do not award contract and give staff other direction.
RECOMMENDATION
Award construction contract to lowest, responsible, responsive bidder.
Respectfully Submitted,
Shawna Anderson, AICP Environmental Planner
Attachments:
1. Cloverdale Creek Location Map
31 32 ATTACHMENT 1 Agenda Item 6 October 17, 2008
TO: JPA Board
FROM: Staff and Legal Counsel
SUBJECT: Approval of Conservation Easement Deed Over Approximately 86.33 Acres Within The Fenton Ranch Conservation Bank
RECOMMENDATION:
Adopt attached resolution accepting a Conservation Easement Deed over approximately 86.33 acres within the Fenton Ranch Conservation Bank and authorize the Executive Director to execute all documents necessary to complete the transaction.
Background
The Fenton Ranch Conservation Bank (“Conservation Bank”) is comprised of approximately 302 acres located in the Bandy Canyon area of San Diego County. (See Attachment 1) The Conservation Bank is owned by H.G. Fenton Environmental Lands, LLC. The Conservation Bank includes a variety of open space and habitat characteristics, including former agricultural property that is to be converted back into wetlands, Coastal Sage Scrub, mixed Chaparral, nonnative grassland and riparian/wetland habitats. The Conversation Easement Deed proposed for acceptance by the JPA includes a number of non-contiguous parcels within the Conservation Bank that are generally comprised of Coastal Sage Scrub and nonnative grassland (“Easement Area”). (See Attachment 2.) The unusual Easement Area configuration is because the habitat areas being permanently preserved are those needed to satisfy specific mitigation requirements of the Palomar Community College.
The long term plan is for the JPA to accept conservation easements over other portions of the Conservation Bank, perhaps the entire area, subject to appropriate mitigation plans and endowments. However, today’s transaction includes endowment funding sufficient to manage the Easement Area being granted, even if no further conservation easement deeds are granted.
The transaction being considered for approval today consists of the following basic elements:
1. H.G. Fenton Environmental Lands, LLC grants the JPA a Conservation Easement Deed covering approximately 86.33 acres;
2. Concurrent with acceptance of the Conservation Easement Deed, Palomar College North Education Center provides the JPA with initial funding for start-up management costs in the amount of $14,334.24, and additional funding for a long-term management endowment in the amount of $318,229.65. The JPA will deposit the long-term endowment funding into a non-wasting endowment account;
33 Agenda Item #2 October 17, 2008
3. After acceptance of the Conservation Easement Deed, the JPA would be responsible for management of the Easement Area in accordance with the Fenton Ranch Conservation Land Habitat Management Plan. Management duties would generally consist of invasive species removal and day-to-day property management, such as removal of debris and control of public access.
Citizens Advisory Committee Recommendation – This item has not been reviewed by the CAC.
Financial Impact – No financial impact is anticipated because funding for this item is provided as part of the proposed transaction.
ALTERNATE ACTIONS
1. Adopt attached resolution authorizing acceptance of the Open Space Easement Deed. 2. Do not adopt attached resolution and give staff other direction.
RECOMMENDATION:
Adopt the attached resolution authorizing acceptance of the Conservation Easement Deed covering approximately 86.33 acres within the Fenton Ranch Conservation Bank.
Respectfully submitted,
Susan Carter, Deputy Director
Attachment: 1. Conservation Bank Map 2. Easement Area Map 3. Resolution Authorizing Acceptance of Conservation Easement Deed
34 35 ATTACHMENT 1 36 ATTACHMENT 2 RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY AUTHORIZING ACCEPTANCE OF THE FENTON RANCH ENVIRONMENTAL LANDS CONSERVATION EASEMENT DEED
WHEREAS, The San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“JPA”) is empowered by its Joint Powers Agreement and by the State Joint Powers Law (Government Code Section 6500 et seq.) to acquire property to further its purposes; and
WHEREAS, H.G. Fenton Environmental Lands, LLC has offered to grant the JPA the attached Conservation Easement Deed covering approximately 86.33 acres of property within the Fenton Ranch Conservation Bank (“Easement Area”); and
WHEREAS, Palomar Community College has offered to provide the JPA with the sum of $14,334.24 to fund start up management costs and the additional sum of $318,229.65 to fund an endowment for ongoing management costs;
WHEREAS, the Easement Area is within the JPA Focused Planning Area and its preservation is consistent with the goals and purposes of the JPA;
NOW, THEREFORE, be it resolved that the Board of Directors of the San Dieguito River Valley Regional Open Space Park Joint Powers Authority hereby approves acceptance of the attached Conservation Easement Deed subject to the following conditions:
1. Final review and approval of all transfer documents by the Executive Director and legal counsel;
2. Receipt of $14,334.24 to fund start up management costs and an additional $318,229.65 to fund an endowment for ongoing management costs;
3. Review and approval of a title report for the Easement Area and confirmation that it is not encumbered by any acceptable easements, liens, etc.;
4. Physical inspection of the Easement Area and/or investigation by JPA that reveals no unacceptable conditions, hazardous waste or other harmful materials; and
5. Additional contingencies or assurances as the Executive Director in consultation with general counsel may deem reasonably necessary and appropriate to protect the interest of the JPA prior to acceptance of the Conservation Easement Deed.
The Board of the JPA authorizes its Executive Director, Dick Bobertz, to take any and all further actions, including execution of a Certificate of Acceptance for the attached Conservation Easement Deed, and approval of further documents which may be required to carry out the terms of this Resolution.
Passed and adopted this 17th Day of October, 2008 by the following vote:
37 ATTACHMENT 3 AYES:
NOES:
ABSENT:
ABSTAIN:
David W. Roberts, Chair
ATTEST: Jan Lines, Clerk
38
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) ) ) )
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED is made this ______day of ______, 2008, by H.G. Fenton Environmental Lands, LLC ("Grantor"), in favor of San Dieguito River Valley Regional Open Space Park Joint Powers Authority, a local government agency ("Grantee"), with reference to the following facts:
R E C I T A L S
A. Grantor is the sole owner in fee simple of certain real property in the County of San Diego, State of California, consisting of approximately 302 acres, and commonly known as the HG Fenton Environmental Lands Property, designated Assessor’s Parcel Number 276-040-08 and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); Granto desires to grant and Grantee desires to accept a conservation easement over a portion of the Property consisting of approximately 90 acres as shown in Exhibit “B”. . (the “Easement Area”).
B. The Easement Area possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee and the people of the State of California;
C. The Easement Area provides high quality habitat for native and nonnative upland and wetland, including diegan coastal sage scrub, granitic southern mixed chaparral, non-native grassland, southern coast live oak riparian forest, southern cottonwood/willow riparian forest, mule- fat scrub, southern willow scrub, slender-pod jewelflower. Sensitive wildlife species which have been documented on the mitigation site or have the potential to be found on the mitigation site include arroyo toad, Coronado skink, San Diego coast horned lizard, Belding’s orange-throated whiptail, coastal whiptail, San Diego ring-necked snake, two-striped gartersnake, Cooper’s hawk, golden eagle, merlin, coastal cactus wren, Coastal California gnatcatcher, San Diego desert woodrat.
D. Grantee is a local government agency authorized to hold conservation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a joint powers authority formed to promote an open space/natural habitat park in the San Dieguito River Valley in which the Easement Area is located.
DFG.StdConsEasm/[Applicant] Form R0106
39
E. 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 Easement Area 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 Easement Area.
1. Purpose. The purpose of this Conservation Easement is to ensure the Easement Area will be retained forever in a natural condition and to prevent any use of the Easement Area that will impair or interfere with the conservation values of the Easement Area. Grantor intends that this Conservation Easement will confine the use of the Easement Area 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. For the purposes of this Conservation Easement, the term “natural condition” refers to the Easement Area in its current condition as documented in the Fenton Ranch Conservation Bank Habitat Management Plan dated September 3, 2008 and the supplemental Palomar College Mitigation Land Habitat Management Plan dated October 6, 2008, (collectively “Habitat Management Plan”), copies of which are on file and available for review at Grantee’s office. If a controversy arises with respect to the natural condition of the Easement Area, the parties shall not be foreclosed from utilizing any and all relevant documents, surveys, photographs or other information to assist in resolution of the controversy.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee:
(a) To enhance, restore, preserve and protect the conservation values of the Easement Area;
(b) To enter upon the Easement Area and/or 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, provided that Grantee shall unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property;
(c) To prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area 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 Easement Area; and
(e) All present and future development rights.
2 DFG.StdConsEasm/[Applicant] 40 Form R0106
3. Prohibited Uses. Any activity on or use of the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. All activities by Grantee or their agents for the purpose of the creation, enhancement, monitoring and maintenance of the Easement Area is considered consistent with the purposes of this easement. Prohibited activities otherwise include, but are not limited to, the following:
(a) Unseasonal watering; use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals; weed abatement activities; incompatible fire protection activities; and 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;
(e) Commercial or industrial uses;
(f) Any legal or de facto division, subdivision or partitioning of the Easement Area;
(g) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, excluding informational signage consistent with the purposes of 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;
(k) Altering the surface or general topography of the Easement Area, including building of roads;
(l) 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 Easement Area, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters.
3 DFG.StdConsEasm/[Applicant] 41 Form R0106
4. Grantor's Duties. 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.
5. Grantee’s Duties. Grantee shall supervise the management of the Easement Area pursuant to the Habitat Management Plan, and shall maintain the Easement Area in its natural condition.
6. Grantee's Remedies. . If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall give 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 CDFG. 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 Easement Area, to enjoin the violation, ex parte 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 Easement Area to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Easement Area.
If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Easement Area, Grantee may pursue its remedies under this Section 6 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 Easement Area 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 justiciable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement.
6.1. Costs of Enforcement. Any costs incurred by Grantee, where it is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including, but
4 DFG.StdConsEasm/[Applicant] 42 Form R0106
not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall be borne by Grantor.
6.2. Discretion of Grantee. Enforcement of the terms of this Conservation Easement by Grantee shall be at its discretion, and any forbearance by Grantee 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 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 under this Conservation Easement. No delay or omission by Grantee 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.
6.3. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Easement Area 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 Easement Area resulting from such causes; or (ii) acts by Grantee or its employees.
7. Access. This Conservation Easement does not convey a general right of access to the public.
8. Costs and Liabilities. Grantor retains the responsibilities related to the ownership of the Property. However, Grantee shall be responsible for management and maintenance of the Easement Area in accordance with this conservation easement and Habitat Management Plan. Except as provided in this Conservation Easement, Grantee shall have no duty or responsibility for the operation and maintenance of the Easement Area, the monitoring of hazardous conditions thereon, and the protection of Grantor, the public or any third parties from risks relating to conditions on the Easement Area. Grantee remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement, 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 Easement Area by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep Grantee’s interest in the Easement Area 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 Easement Area.
5 DFG.StdConsEasm/[Applicant] 43 Form R0106
8.3. 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.
9. 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 Easement Area is located.
10. 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 Easement Area, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor, Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way.
11. 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: HG Fenton Environmental Lands LLC ______
To Grantee: San Dieguito River Park Joint Powers Authority 18372 Sycamore Creek Rd Escondido, CA 92025 Att: Executive Director
or to such other address as Grantor, Grantee may designate by written notice to the other parties. Notice shall be deemed effective upon delivery in the case of personal 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.
12. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement. Any such amendment shall be consistent with the purposes of this Conservation 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.
6 DFG.StdConsEasm/[Applicant] 44 Form R0106
13. General Provisions.
(a) 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.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed to effect the purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
(c) Severability. 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.
(d) 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 13.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect.
(f) 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 Easement Area.
(g) 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 Easement Area, except that liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
7 DFG.StdConsEasm/[Applicant] Form R0106
45
(i) No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Easement Area.
Despite any contrary provision of this Conservation Easement Deed, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee 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 Easement Area; or
(5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Area.
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.
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 that Grantor’s activities upon and use of the Easement Area will comply with all Environmental Laws.
(j) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, encumbrances or other interests in the Easement Area which have not been
8 DFG.StdConsEasm/[Applicant] Form R0106
46
expressly subordinated to this Conservation Easement Deed, and that the Easement Area is not subject to any other conservation easement.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Easement Area (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 Easement Area, without first obtaining the written consent of Grantee. Grantee 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 Easement Area. This Section 14(k) shall not prohibit transfer of a fee or leasehold interest in the Easement Area that is subject to this Conservation Easement Deed and complies with Section 11.
(l) 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.
IN WITNESS WHEREOF Grantor and Grantee have executed this Conservation Easement Deed as of the day and year first above written.
GRANTOR: GRANTEE:
BY: BY:
NAME: NAME:
TITLE: TITLE:
DATE: ______DATE: ______
9 DFG.StdConsEasm/[Applicant] Form R0106
47 Agenda Item #7 October 17, 2008
TO: JPA Board
FROM: Staff and Legal Counsel
SUBJECT: Approval of the NCA ESCO Conservation Easement Deed and Mitigation and Property Management Agreement for approximately 3-acres of habitat property in the San Pasqual Valley
RECOMMENDATION:
Approve the attached Conservation Easement Deed and Mitigation and Property Management Agreement and direct the Executive Director to take all actions necessary to complete the transaction.
Background
This action involves a 23 acre parcel of land owned by the Fenton Family Trust (“Fenton Parcel”) See Attachment 1. The Fenton Parcel is located at the confluence of Guejito Creek and Santa Isabel Creek in San Pasqual Valley, south of Route 78. The Conservation Easement to be accepted by this action is in the southeast corner of the Fenton Parcel and is labeled on Attachment 1 as the “NCA ESCO Conservation Easement”. The transaction involves NCA ESCO’s purchase of the Conservation Easement from the Fenton Family Trust, and a separate Mitigation and Property Management Agreement between the JPA and NCA ESCO.
The basic terms and conditions established by these Agreements are as follows:
1. The Fenton Trust grants a Conservation Easement Deed to the River Valley JPA;
2. Concurrent with JPA’s acceptance of the Conservation Easement Deed, NCA ESCO pays the JPA the sum of $53,628 to be used to fund an endowment for long term management and maintenance of the Easement Area;
3. NCA ESCO provides the JPA with additional funding to cover the cost of installing a water well in an amount ranging from $6,000 to $22,000, depending upon actual cost and participation of other parties;
4. Within 90 days of the Conservation Easement Deed’s acceptance, the JPA installs a well on the Fenton Property that will be used to serve the NCA ESCO Conservation Easement area and other areas within the Fenton Parcel;
5. NCA ESCO will be responsible for restoration of the Easement Area in accordance with an approved restoration plan and maintenance of the Easement Area for a minimum of five years. The five year NCA ESCO maintenance period may be extended if restoration criteria have not been satisfied. During this initial five year maintenance period, the JPA
48 Agenda Item #7 October 17, 2008
will allow the endowment funds to accrue income to better fund its long-term maintenance obligation.
6. After completion of the five year initial maintenance period and satisfaction of mitigation criteria, ongoing maintenance of the Easement Area shall transfer to the JPA in perpetuity.
Related Transactions
The Fenton Trust has negotiated the sale of a second Conservation Easement in the northeast corner of the Fenton Parcel, which is labeled on Attachment 1 as the “West Bernardo Drive Conservation Easement.” That conservation easement is also before the Board today as a separate agenda item. In addition, the Fenton Trust is negotiating the potential transfer of the entire 23 acre Fenton Parcel to the San Dieguito River Valley Conservancy. This may provide additional opportunities for mitigation sales. However, acceptance of the NCA ESCO Conservation Easement is a stand-alone transaction with adequate funding, regardless of whether the other anticipated transactions occur.
This action is not related to the Fenton Ranch Mitigation Bank property, which is the subject of a separate agenda item.
Prior Action
This matter came before the Board previously in 2006. At that time, the Board authorized acceptance of the NCA ESCO Conservation Easement Deed subject to different terms and conditions. This transaction reflects a renegotiation of JPA obligations and endowment amount based on the changed circumstances.
Citizens Advisory Committee Recommendation – This item has not been reviewed by the CAC.
Fiscal Impact – The fiscal impact is anticipated because the transaction includes adequate funding for JPA obligations.
ALTERNATE ACTIONS
1. Adopt attached resolution authorizing acceptance of the Open Space Easement Restriction and approving Mitigation and Property Management Agreement.
2. Do not attached resolution and give staff other direction.
RECOMMENDATION:
Adopt the attached resolution authorizing acceptance of Open Space Easement Deed and
49 Agenda Item #7 October 17, 2008 approving Mitigation and Property Management Agreement.
Respectfully submitted,
______Susan Carter, Deputy Director
Attachments: 1. Site Map 2. Draft Resolution with proposed Conservation Easement Deed and Mitigation and Property Management Agreement
50 ATTACHMENT 1
51 Agenda Item #7 October 17, 2008
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY AUTHORIZING ACCEPTANCE OF THE NCA ESCO CONSERVATION EASEMENT AND APPROVING MITIGATION AND PROPERTY MANAGEMENT AGREEMENT
WHEREAS, The San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“JPA”) is empowered by its Joint Powers Agreement and by the State Joint Powers Law (Government Code Section 6500 et seq.) to acquire property to further its purposes; and
WHEREAS, the Justine B. Fenton Family Trust (“Trust”) owns approximately 23.6 acres of undeveloped, natural open space and includes important wildlife and habitat resources within the San Pasqual Valley (“Fenton Property”);
WHEREAS, NCA ESCO, Escondido LLC has agreed to purchase, and the Trust has agreed to sell, a Conservation Easement Deed (“Conservation Easement”) over approximately 3 acres of the Fenton Property which will be restored and maintained as natural open space in perpetuity (“Easement Area”);
WHEREAS, the JPA has agreed to accept the Conservation Easement Deed pursuant to terms and conditions that provide for NCA ESCO to be responsible for restoration and maintenance of the Easement Area for a period of five years and thereafter for the Easement Area to be maintained in perpetuity by the JPA;
WHEREAS, JPA’s acceptance of the Conservation Easement is conditioned upon compliance with the terms and conditions of the Mitigation and Property Management Agreement attached hereto as Exhibit B, including payment of the cost of installing a new water well on the Fenton Property and endowment funding for long-term maintenance and management obligations;
WHEREAS, the Easement Area is within the JPA’s Focused Planning Area, and acceptance of the Conservation Easement would be consistent with the JPA’s purposes of preserving and enhancing open space within the San Dieguito River Valley;
WHEREAS, the JPA Board finds and determines that acceptance of the Conservation Easement and approval of the Mitigation and Property Management Agreement are appropriate and in the public interest.
NOW, THEREFORE, be it resolved as follows:
1. The foregoing recitals are true and correct.
2. The Board of Directors of the San Dieguito River Park JPA hereby approves acceptance of the Conservation Easement attached as Exhibit A and approves the Mitigation and Property Management Agreement attached as Exhibit B, subject to the following contingencies:
A. Review and approval of a title report for the Easement Area and confirmation that it is not encumbered by any unacceptable easements, liens, etc;
B. Physical inspection and approval of the Easement Area;
52 ATTACHMENT 2 Agenda Item #7 October 17, 2008
C. Receipt of funding for well installation costs and long-term endowment funding in accordance with the terms and conditions of the Mitigation and Property Management Agreement
3. The Board of the JPA authorizes its Executive Director, Dick Bobertz, to take any and all further actions necessary to carry out the terms and conditions of this Resolution, including the execution of a certificate of acceptance for the Conservation Easement Deed, execution of the Mitigation and Property Management Agreement, and further actions needed to complete the approved transactions.
Passed and adopted this 17th Day of October, 2008 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
David W. Roberts, Chair
ATTEST: Jan Lines, Clerk
20 53
MITIGATION AND PROPERTY MANAGEMENT AGREEMENT
This Mitigation and Property Management Agreement (“Agreement”) is entered into as of ______, 2008 (the “Effective Date”), by and among NCA ESCO Escondido LLC (“Company”), and the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Authority”). Company and Authority are sometimes referred to in this Agreement singularly as a “Party” and together as “Parties”.
RECITALS
A. Company has entered, or will enter, into escrow to purchase a conservation easement (“Conservation Easement”) over approximately 3-acres of real property located in the County of San Diego (the “County”), State of California (the “State”), which is part of property generally known as the “Fenton Property,” which is more particularly described on Exhibit A attached hereto. A copy of the Conservation Easement to be purchased is attached as Exhibit B. The portion of the Fenton Property over which the Conservation Easement will be granted is referred to hereafter as the “Mitigation Property,” and it will be described with more particularity on an exhibit to be made part of the Conservation Easement. The Mitigation Property will be used for Company’s environmental mitigation requirements.
B. Authority has agreed to accept the Conservation Easement, subject to the terms of this Agreement.
C. Company is the owner and developer of certain real property located in the County and the State, which property in the City of Escondido that is generally known as the “Shopkeeper Cottages” and is more particularly described on Exhibit C attached hereto (the “Project”).
D. Permits for the Project have been issued, or will be issued, by the City of Escondido, U.S. Army Corps of Engineers (“ACOE”) and California Department of Fish & Game (collectively referred to as “the Permits”).
E. As required by the Permits, Company has caused a mitigation plan (the “Mitigation Plan”) to be created to satisfy the mitigation requirements of the Permits. A copy of the Mitigation Plan is attached hereto as Exhibit D. The Mitigation Plan has received all appropriate approvals from the ACOE and the United States Fish and Wildlife Service.
F. The Mitigation Plan provides for, among other things, certain compensatory mitigation and long-term monitoring to be undertaken on the Mitigation Property (collectively, the “Mitigation”).
G. This Agreement is related to a separate agreement between Authority and L17087, LLC, which provides for Authority’s acceptance of an additional Conservation Easement over another portion of the Fenton Property (“Second Conservation Easement.”
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1 41230277.6 54
1. Acceptance of Conservation Easement; Funding For Endowment and Well. Concurrent with the close of escrow for the purchase of the Conservation Easement:
1.1. The Conservation Easement shall be accepted by the Authority and recorded by the escrow officer;
1.2. The escrow officer shall provide Authority with a CLTA Policy of Title Insurance covering the Conservation Easement in an amount equal to the purchase price for the Conservation Easement, free of easements and encumbrances, except those approved by Authority.
1.3. Company shall pay Authority the sum of $53,628 to be used as an endowment to fund, in perpetuity, Authority’s management and maintenance of the Mitigation Property, and an additional $6,000 to partially cover the cost of a new water well.
2. Authority’s Installation of Water Well and Company’s Cost Contributions..
2.1 Installation of Well by Authority: Within 90 days of the recordation of the Conservation Easement, Authority shall cause a water well to be drilled within the Fenton Property for the benefit of the Mitigation Property and all other portions of the Fenton Property. The well shall include electrical service, a pump, and a water storage tank. Company shall be responsible for installing pipes from the well site to the Mitigation Property.
2.2 Company’s Cost Overrun Contribution: Should the cost of installing the well exceed $12,000, Company agrees to reimburse Authority one-half of the additional cost, up to an additional amount not to exceed $5,000. However, Should Authority fail to install the well within 90 days of the recordation of the Conservation Easement, Authority shall still be obligated to install the well as required by this Agreement, but Company shall no longer be obligated to contribute to any costs exceeding $12,000. Company’s initial $6,000 contribution and any additional cost overrun contribution are referred to collectively as “Company Contributions”.
2.3 Additional Contributions: Authority’s agreement to install the water well is dependent on receipt of Company Contributions and additional contributions from the Second Conservation Easement purchaser. The Second Conservation Easement purchaser is required to make the same contributions toward the cost of the water well as Company, i.e. an initial $6,000 contribution and one-half of the additional cost for a total contribution not exceeding $12,000 (“Additional Contributions”). The Company Contributions and Additional Contributions provide Authority with up to $22,000 in funding to cover the cost of the water well. Should escrow for the Conservation Easement covered by this Agreement close before the escrow for the Second Conservation Easement, Company shall, in addition to the Company Contributions, pay Authority the Additional Contributions, subject to the following right of reimbursement: Authority shall collect the Additional Contributions from the Second Conservation Easement purchaser when escrow for that transaction closes and use those funds reimburse Company.
2 41230277.6 55
3. Company’s Implementation of Mitigation Plan and Initial Management Obligations.
3.1. After the recordation of the Conservation Easement, Company shall be responsible for implementation of all terms and conditions of the Mitigation Plan and shall be responsible for maintenance of the Mitigation Property for a minimum period of five years from the recordation of the Conservation Easement and until such time as the resource agencies have determined that the Mitigation Property meets all success criteria of the Mitigation Plan and authorize termination of all monitoring efforts in accordance with Chapter 9 of the Mitigation Plan (“Mitigation Plan Completion”). Authority shall not be required to perform any management tasks or expend any of the endowment funding prior to Mitigation Plan Completion.
4. Management Responsibilities After Mitigation Plan Completion.
4.1. After Mitigation Plan Completion, Company’s obligations with respect to the Mitigation Property shall terminate, and Authority shall be fully responsible for maintenance and management of the Mitigation Property in accordance with the terms of the Conservation Easement. Company shall not be required to make any further payments to Authority or to perform any further maintenance or management tasks with respect to the Mitigation Property.
5. License. Authority hereby grants to Company and its agents a non-exclusive license to access the Mitigation Property for the purpose of implementing the Mitigation Plan and exercising all rights and obligations it has with respect to the Mitigation Property (“License”), subject to and in accordance with the terms of the Conservation Easement. The License will automatically terminate at Mitigation Plan Completion.
6. Failure to Act. In the event a party fails to perform any of its obligations under this Agreement in the manner required thereby and fails to correct any such violation within thirty (30) days (or such shorter period of time in the case of an emergency) after written notice from the other Party to do so (provided that, if such violation cannot reasonably be corrected within such thirty (30) day period, then such period shall be extended so long as the Party has commenced such correction during such thirty (30) day period and thereafter diligently pursues such correction to completion), then, in addition to available remedies at law or in equity, the Party providing such notice shall have the right, but not the obligation, to enter into the impacted portion of the Mitigation Property to correct such violation on behalf of the other Party and to recover from the other Party all reasonable costs and expenses incurred by such Party in connection therewith, plus an administrative fee equal to five percent (5%) of such costs and expenses, within five (5) days of such Party’s demand therefor (which demand shall include a detailed invoice describing and evidencing payment of such costs and expenses).
7. Indemnification. Each Party shall indemnify, defend, and hold harmless the other from and against any liability, loss, damage, injury or claim of any kind or character to any person or property caused by or relating to, or arising from (a) the exercise of their respective rights under this Agreement, (b) a Party’s own negligence or willful misconduct or the negligence or willful misconduct of its agents, contractors or representatives, (b) or a Party’s breach of any of its obligations under this Agreement. A Party’s indemnification obligation shall not extend to claims or damages caused by the sole negligence or willful misconduct of an indemnified party.
3 41230277.6 56
8. Expiration of Agreement. This Agreement shall automatically expire upon Mitigation Plan Completion (the “Expiration Date”).
9. Assignment. Each Party shall have the right, without the consent of the other Party, to assign its rights and delegate its obligations under this Agreement to any other party, provided the Assignee first executes, and delivers to the other Party, a written assignment in which the Assignee agrees to fully comply with the terms of this Agreement.
10. Miscellaneous Provisions.
10.1. Modification. This Agreement may not be altered in whole or in part except by a written modification executed by each of the Parties.
10.2. No Joint Venture. Nothing in this Agreement is intended to create a joint venture, partnership, or common enterprise relationship of any kind between the Parties. The obligations of each of the Parties are the sole and several obligations of such Party.
10.3. Attorneys’ Fees. In the event any action or proceeding is initiated to challenge, invalidate, enforce, or interpret any of the terms of this Agreement, the prevailing Party shall be entitled to all reasonable attorneys’ fees and litigation fees, costs, and expenses in addition to any other relief granted by law. This provision shall apply to this entire Agreement.
10.4. Exhibits. The exhibits attached hereto and referenced or described herein shall be deemed fully incorporated herein and a part hereof.
10.5. Entire Agreement. This Agreement, together with all exhibits attached hereto, contains all representations and the entire understanding between the Parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, or agreements, whether or not such correspondence, memoranda, or agreements are in conflict with this Agreement, are intended to be replaced in total by this Agreement and its exhibits. Each Party warrants and represents that no representative of such Party has made any oral representations or oral agreements not contained in this Agreement. Each Party further warrants and represents that it has not relied upon any oral statements or promises made by any representative of any Party in executing this Agreement.
10.6. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective purchasers, successors, heirs, and assigns.
10.7. Covenant Running with the Land. The obligations under this Agreement shall impose covenants and agreements which shall run with, and create a burden on, the Mitigation Property.
10.8. Memorandum of Agreement. Promptly upon the request of either Party and at its expense, the Parties shall prepare, enter into and record a suitable short form memorandum of this Agreement. A model Memorandum of Agreement is attached as Exhibit E.
10.9. Unenforceable Provisions. The terms, conditions, and covenants of this Agreement shall be construed whenever possible as consistent with all applicable laws and
4 41230277.6 57
regulations. To the extent that any provision of this Agreement, as so interpreted, is held to violate any applicable law or regulation, the remaining provisions shall nevertheless be carried into full force and effect and remain enforceable.
10.10. Opportunity to be Represented by Independent Counsel. Each of the Parties warrants and represents that it has been advised to consult independent legal counsel of its own choosing and has had a reasonable opportunity to do so prior to executing this Agreement.
10.11. No Waiver. The failure of any Party to enforce any term, covenant, or condition of this Agreement on the date it is to be performed shall not be construed as a waiver of that Party’s right to enforce this, or any other, term, covenant, or condition of this Agreement at any later date or as a waiver of any term, covenant, or condition of this Agreement.
10.12. Notices. All letters, statements, or notices required pursuant to this Agreement shall be deemed effective upon receipt when personally served, transmitted by facsimile machine, or sent certified mail, return receipt requested, to the following addresses:
To Company: NCA ESCO Escondido, LLC 1400 Quail Street, Suite 280 Newport Beach, CA 92660 Attn: Dave Zak Phone: 949.474-0122 Fax: 949.474-0125
With a Copy to:
To Authority: San Dieguito River Park JPA 18372 Sycamore Creek Road Escondido, CA 92025 Attn: Susan Carter, Deputy Director Phone: 858.674.2275 Fax: 858.674.2280
With a Copy to: D. Wayne Brechtel Worden Williams, APC. 462 Stevens Avenue, Ste. 102 Solana Beach, CA 92075 Phone: 858.755.6604 Fax: 858.755.5198
5 41230277.6 58
10.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
10.14. Good Faith and Cooperation. In interpreting and applying the provisions of this Agreement, the Parties agree to act in good faith and cooperate with each other, including without limitation, to execute and deliver such documents as may be necessary to effectuate the intent of this Agreement and to provide reasonable assistance to each other in obtaining any necessary approvals and/or authorizations for the implementation of the Mitigation Plan.
6 41230277.6 59
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
“Company”
NCA ESCO Escondido, LLC
By: Dave Zak, Principal
Name:
“Authority” San Dieguito River Valley Regional Open Space Park Joint Powers Authority
By: Dick Bobertz, Its Executive Director
7 41230277.6 60
EXHIBIT A
Fenton Property
(attached)
EXHIBIT A (i) 41230277.6 61
EXHIBIT B
Conservation Easement
(attached)
EXHIBIT A (i) 41230277.6 62
EXHIBIT C
Shopkeeper Cottages Property
(attached)
EXHIBIT C (i) 41230277.6 63
EXHIBIT D
Mitigation Plan
(attached)
EXHIBIT D (i) 41230277.6 64
EXHIBIT E
Memorandum of Agreement
RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) ) ) L17087, LLC ) Attn: Michael W. McNerney ) 2020 Main Street, Suite 1150 ) Irvine, California 92614 )
MEMORANDUM OF MITIGATION AND PROPERTY MANAGEMENT AGREEMENT (Vista)
THIS MEMORANDUM OF MITIGATION AND PROPERTY MANAGEMENT AGREEMENT (this “Memorandum”) is made as of , 2008 by and between NCA ESCO Escondido, LLC (“Company”), and the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Authority”).
R E C I T A L S
A. Company and Authority are parties to that certain Mitigation and Property Management Agreement dated as of , 2008 (the “Agreement”). Initially capitalized terms used but not otherwise defined in this Memorandum shall have the meanings given to them in the Agreement.
B. Pursuant to that Agreement, Authority has accepted a Conservation Easement over certain real property described on Exhibit A attached hereto (the “Mitigation Property”), and the parties have allocated responsibility for restoration, initial management and long-term management of the Mitigation Property.
C. The parties are entering into this Memorandum to disclose and provide notice of the Agreement.
A G R E E M E N T
NOW THEREFORE, in consideration of the foregoing Recitals, which by this reference are incorporated herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Mitigation Agreement. As more particularly described in the Agreement, Authority has agreed to permit, among other things, certain Mitigation activities on
EXHIBIT Fn 41230277.6 65
the Mitigation Property, subject to the satisfaction of such conditions as are contained in the Agreement.
2. Recordation. This Memorandum shall be filed and recorded in the Official Records of San Diego County, California.
3. Release of Memorandum. Upon the termination of the Agreement for any reason, any party to this Memorandum may file and cause to be recorded a release; provided, however, that any party filing any such release shall deliver copies thereof at the time of filing to the other party at the notice addresses specified in the Agreement, or as such addresses may have been changed from time to time pursuant to the Agreement.
4. Purpose of Memorandum. The purpose of this Memorandum is to provide notice of the Agreement. In the event of any inconsistency or conflict between the terms and provisions of this Memorandum and the terms and provisions of the Agreement, the terms and provisions of the Agreement shall prevail and control.
5. Counterparts. This Memorandum may be executed in several counterparts and all such executed counterparts shall constitute one agreement, binding on the parties, notwithstanding that all of the parties are not signatories to the original or to the same counterpart.
6. Incorporation of Recitals. All of the Recitals to this Memorandum are incorporated herein and made a part of this Memorandum.
[Remainder of page intentionally blank; signatures begin on next page.]
EXHIBIT F (ii) 41230277.6 66
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to enter into this Memorandum as of the date first above written.
“Company”
NCA ESCO Escondido, LLC
By: Dave Zak, Prinicpal Name:
“Authority”
By:______
Title: ______
EXHIBIT F (iii) 41230277.6 67
STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
EXHIBIT F (iv) 41230277.6 68
STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
EXHIBIT F (v) 41230277.6 69
EXHIBIT A
Legal Description of Mitigation Property
EXHIBIT F (vi) 41230277.6 70 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) ) San Dieguito River Park JPA ) c/o D. Wayne Brechtel ) Worden Williams, APC ) 462 Stevens Avenue, Suite 102 ) Solana Beach, California 92075 ) )
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED (“Conservation Easement”) is made this ______day of 2008, by the Justine B. Fenton Family Trust dated October 16, 1984 ("Grantor"), in favor of San Dieguito River Valley Regional Open Space Park Joint Powers Authority, a local government agency ("Grantee"), with reference to the following facts:
R E C I T A L S
A. Grantor is the sole owner in fee simple of certain real property in the County of San Diego, State of California, consisting of approximately 23.6 acres, and commonly known as Parcel 3 of the Fenton Property, designated Assessor’s Parcel Number 242-110-12and parcel 3 of Parcel Map 19095 and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); Grantor desires to grant, and Grantee desires to accept, a conservation easement over a portion of the Property consisting of approximately 3 acres described and shown on Exhibit “B,” attached hereto and incorporated herein by reference (the “Easement Area”).
B. The Easement Area possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee and the people of the State of California;
C. This Conservation Easement provides mitigation for certain impacts associated with the Esco Mixed Use Development (also known as Shopkeeper Cottages) in the City of Escondido, County of San Diego, (“Project”), pursuant to requirements of U.S. Army Corps of Engineers Section 404 Permit No. ______and California Department of Fish & Game Section 1602 Streambed Alteration Agreement No. ______.
D. Grantee is a local government agency authorized to hold conservation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a joint powers authority formed to promote an open space/natural habitat park in the San Dieguito River Valley in which the Easement Area is located.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
1 71
In consideration of the above Recitals and 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 Easement Area.
1. Purpose. The purpose of this Conservation Easement is to ensure the Easement Area will be retained forever in a natural condition and to prevent any use of the Easement Area that would impair or interfere with the conservation values of the Easement Area. Grantor intends that this Conservation Easement will confine the use of the Easement Area to activities consistent with its conservation purposes, including, without limitation, those involving the preservation and enhancement of native species and their habitat. For the purposes of this easement, the term “natural condition” refers to the Easement Area in its current condition as documented in the Esco Mixed Use Development (Shopkeeper Cottages) Wetland Mitigation Plan, dated June 2005, (“Mitigation Plan”), a copy of which is on file and available at Grantee’s office, and as may be restored and improved pursuant to the Mitigation Plan. If a controversy arises with respect to the natural condition of the Easement Area, the parties shall not be foreclosed from utilizing any and all relevant documents, surveys, photographs or other information to assist in resolution of the controversy.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee:
(a) To access the Easement Area by way of existing easements or rights-of- way or other reasonable and practical means designated by Grantor;
(b) To enhance, restore, preserve, manage, maintain and protect the conservation values of the Easement Area;
(c) To grant the developer of the Project described above in Recital C, or its successors and assigns, the right to implement all terms and conditions of the Mitigation Plan;
(d) To enter upon the Easement Area and/or 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, provided that Grantee shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property;
(e) To prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement;
(f) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Easement Area;
(g) All present and future development rights; and 2 72
(h) The right to drill a water well at a location within the Property approved by Grantor, which approval shall not be unreasonably withheld, and the right to access and use water from the well as needed to implement the Mitigation Plan and, thereafter, maintain the Easement Area. Grantee’s right to access and use the water well is non-exclusive, and Grantor retains the right to use and/or grant others the right to use the well for the benefit of the Property.
3. Prohibited Uses. Any activity on or use of the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. All activities by Grantee, its agents or licensees, for the purpose of the creation, enhancement, monitoring and maintenance of the Easement Area’s conservation values are considered consistent with the purposes of this Conservation Easement. Prohibited activities include, but are not limited to, the following:
(a) Use of off-road vehicles and use of any other motorized vehicles, except vehicles associated with management and maintenance of the Easement Area;
(b) Grazing or other agricultural activity of any kind;
(c) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing;
(d) Commercial or industrial uses;
(e) Any legal or de facto division, subdivision or partitioning of the Easement Area;
(f) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, excluding informational signage consistent with the purposes of this Conservation Easement;
(g) Depositing or accumulation of trash, ashes, refuse, waste, bio-solids or any other materials;
(h) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(i) 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 Easement Area;
(j) Altering the surface or general topography of the Easement Area, including building of roads, except as may be necessary to implement the Mitigation Plan;
(k) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by the Mitigation Plan, or required by law for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease; and
3 73 (l) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Easement Area, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters.
4. Grantor's Duties. 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.
5. Grantee’s Duties. Grantee shall monitor compliance and enforce the terms and conditions of this Conservation Easement. Grantee shall assume, and thereafter retain in perpetuity, responsibility for maintenance of the Easement Area after the later of: (i) the passage of five years from recordation of the Conservation Easement or (ii) resource agency confirmation, pursuant to Chapter 9 of the Mitigation Plan, that the Easement Area meets all success criteria.
6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing the cure of such violation. 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 Easement Area, to enjoin the violation, ex parte 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 Easement Area to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Easement Area.
If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Easement Area, Grantee may pursue its remedies under this Section 6 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
4 74 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 Easement Area 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 justiciable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement.
6.1. Costs of Enforcement. Any costs incurred by Grantee, where it is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including, but not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall be borne by Grantor.
6.2. Discretion of Grantee. Enforcement of the terms of this Conservation Easement by Grantee shall be at its discretion, and any forbearance by Grantee 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 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 under this Conservation Easement. No delay or omission by Grantee 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.
6.3. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Easement Area 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 Easement Area resulting from such causes; or (ii) acts by Grantee or its employees.
7. Access. This Conservation Easement does not convey a general right of access to the public.
8. Costs and Liabilities. Grantee shall be responsible for the cost of its maintenance obligations. Grantee shall also be responsible for obtaining any applicable governmental permits and approvals for any activity it undertakes within the Easement Area, 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. Grantor shall be responsible for all other costs and duties related to ownership of the Easement Area. Except as provided in this Conservation Easement, Grantee shall have no responsibility for maintenance of the Easement Area, or the protection of Grantor, the public, or any other third party, from risks relating to conditions on the Easement Area.
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 5 75 Easement Area by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep Grantee’s interest in the Easement Area 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 Easement Area.
8.3. 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.
9. 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 Easement Area is located.
10. 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 Easement Area, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor, Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way.
11. 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: Don Metzler On Behalf of the Fenton Family Trust 7906 Raytheon Road San Diego, CA 92111 858-279-1354
6 76 To Grantee: San Dieguito River Park Joint Powers Authority 18372 Sycamore Creek Rd Escondido, CA 92025 Att: Executive Director
or to such other address as a party may designate by written notice to the other party. Notice shall be deemed effective upon delivery in the case of personal 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.
12. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement. Any such amendment shall be consistent with the purposes of this Conservation 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.
13. General Provisions.
(a) 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.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed to effect the purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement, such action shall not affect the remainder of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances.
(d) 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 13.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement shall be binding upon, and inure to the benefit of, the parties hereto and 7 77 their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Easement Area.
(g) 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 Easement Area, except that liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
(i) No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Easement Area.
Despite any contrary provision of this Conservation Easement, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee 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 Easement Area; or
(5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Area.
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 5101 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.
8 78 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 that Grantor’s activities upon and use of the Easement Area will comply with all Environmental Laws.
(j) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, encumbrances or other interests in the Easement Area which have not been expressly subordinated to this Conservation Easement, and that the Easement Area is not subject to any other conservation easement.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Easement Area (other than a security interest that is subordinate to this Conservation Easement), or grant or otherwise abandon or relinquish any water agreement relating to the Easement Area, without first obtaining the written consent of Grantee. Grantee 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 Easement Area. This Section 14(k) shall not prohibit transfer of a fee or leasehold interest in the Easement Area that is subject to this Conservation Easement and complies with Section 10.
(l) 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.
9 79 IN WITNESS WHEREOF Grantor and Grantee have executed this Conservation Easement as of the day and year first above written.
GRANTOR:
BY:
NAME:
TITLE:
DATE: ______
STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
CERTIFICATE OF ACCEPTANCE 10 80
This is to certify that the interest in real property conveyed by this Conservation Easement Deed by the Justine B. Fenton Family Trust dated October 16, 1984 to the San Dieguito River Valley Regional Open Space Park Joint Powers Authority is hereby accepted on the terms and conditions set forth in this Conservation Easement by the undersigned officer on behalf of the San Dieguito River Valley Regional Open Space Park Joint Powers Authority.
GRANTEE:
SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY
By: ______Name:______Title: ______Date: ______
STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO )
On ______2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
11 81 Agenda Item #8 October 17, 2008
TO: JPA Board
FROM: Staff and Legal Counsel
SUBJECT: Approval of the Lowe Enterprises Conservation Easement Deed and Mitigation and Property Management Agreement for approximately 3-acres of habitat property in the San Pasqual Valley
RECOMMENDATION:
Approve the attached Conservation Easement Deed and Mitigation and Property Management Agreement and direct the Executive Director to take all actions necessary to complete the transaction.
Background
This action involves a 23 acre parcel of land owned by the Fenton Family Trust (“Fenton Parcel”) See Attachment 1. The Fenton Parcel is located at the confluence of Guejito Creek and Santa Isabel Creek in San Pasqual Valley, south of Route 78. The Conservation Easement to be accepted by this action is in the southeast corner of the Fenton Parcel and is labeled on Attachment 1 as the “Lowes Conservation Easement”. The transaction involves Lowe Enterprise’s purchase of the Conservation Easement from the Fenton Family Trust, and a separate Mitigation and Property Management Agreement between the JPA and Lowe Enterprises.
The basic terms and conditions established by these Agreements are as follows:
1. The Fenton Trust grants a Conservation Easement Deed to the River Valley JPA;
2. Concurrent with JPA’s acceptance of the Conservation Easement Deed, Lowe Enterprises pays the JPA the sum of $53,628 to be used to fund an endowment for long term management and maintenance of the Easement Area;
3. Lowe Enterprises provides the JPA with additional funding to cover the cost of installing a water well in an amount ranging from $6,000 to $22,000, depending upon actual cost and participation of other parties;
4. Within 90 days of the Conservation Easement Deed’s acceptance, the JPA installs a well on the Fenton Property that will be used to serve the Lowes Conservation Easement area and other areas within the Fenton Parcel;
5. Lowe Enterprises will be responsible for restoration of the Easement Area in accordance with an approved restoration plan and maintenance of the Easement Area for a minimum of five years. The five year Lowe Enterprises maintenance period may be extended if restoration criteria have not been satisfied. During this initial five year maintenance
82 Agenda Item #8 October 17, 2008
period, the JPA will allow the endowment funds to accrue income to better fund its long- term maintenance obligation. 6. After completion of the five year initial maintenance period and satisfaction of mitigation criteria, ongoing maintenance of the Easement Area shall transfer to the JPA in perpetuity.
Related Transactions
The Fenton Trust has negotiated the sale of a second Conservation Easement in the northeast corner of the Fenton Parcel, which is labeled on Attachment 1 as the “NCA-ESCO Conservation Easement.” That conservation easement is also before the Board today as a separate agenda item. In addition, the Fenton Trust is negotiating the potential transfer of the entire 23 acre Fenton Parcel to the San Dieguito River Valley Conservancy. This may provide additional opportunities for mitigation sales. However, acceptance of the Lowes Conservation Easement is a stand-alone transaction with adequate funding, regardless of whether the other anticipated transactions occur.
This action is not related to the Fenton Ranch Mitigation Bank property, which is the subject of a separate agenda item.
Citizens Advisory Committee Recommendation – This item has not been reviewed by the CAC.
Fiscal Impact – The fiscal impact is anticipated because the transaction includes adequate funding for JPA obligations.
ALTERNATE ACTIONS
1. Adopt attached resolution authorizing acceptance of the Open Space Easement Restriction and approving Mitigation and Property Management Agreement. 2. Do not attached resolution and give staff other direction.
RECOMMENDATION:
Adopt the attached resolution authorizing acceptance of Open Space Easement Deed and approving Mitigation and Property Management Agreement.
Respectfully submitted,
Susan Carter, Deputy Director Attachments: 1. Site Map 2. Draft Resolution with proposed Conservation Easement Deed and Mitigation and Property Management Agreement
83 ATTACHMENT 1
84 Agenda Item #8 October 17, 2008
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY AUTHORIZING ACCEPTANCE OF THE LOWE ENTERPRISE CONSERVATION EASEMENT AND APPROVING MITIGATION AND PROPERTY MANAGEMENT AGREEMENT
WHEREAS, The San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“JPA”) is empowered by its Joint Powers Agreement and by the State Joint Powers Law (Government Code Section 6500 et seq.) to acquire property to further its purposes; and
WHEREAS, the Justine B. Fenton Family Trust (“Trust”) owns approximately 23.6 acres of undeveloped, natural open space and includes important wildlife and habitat resources within the San Pasqual Valley (“Fenton Property”);
WHEREAS, Lowe Enterprises has agreed to purchase, and the Trust has agreed to sell, a Conservation Easement Deed (“Conservation Easement”) over approximately 3 acres of the Fenton Property which will be restored and maintained as natural open space in perpetuity (“Easement Area”);
WHEREAS, the JPA has agreed to accept the Conservation Easement Deed pursuant to terms and conditions that provide for Lowe Enterprises to be responsible for restoration and maintenance of the Easement Area for a period of five years and thereafter for the Easement Area to be maintained in perpetuity by the JPA;
WHEREAS, JPA’s acceptance of the Conservation Easement is conditioned upon compliance with the terms and conditions of the Mitigation and Property Management Agreement attached hereto as Exhibit B, including payment of the cost of installing a new water well on the Fenton Property and endowment funding for long-term maintenance and management obligations;
WHEREAS, the Easement Area is within the JPA’s Focused Planning Area, and acceptance of the Conservation Easement would be consistent with the JPA’s purposes of preserving and enhancing open space within the San Dieguito River Valley;
WHEREAS, the JPA Board finds and determines that acceptance of the Conservation Easement and approval of the Mitigation and Property Management Agreement are appropriate and in the public interest.
NOW, THEREFORE, be it resolved as follows:
1. The foregoing recitals are true and correct.
2. The Board of Directors of the San Dieguito River Park JPA hereby approves acceptance of the Conservation Easement attached as Exhibit A and approves the Mitigation and Property Management Agreement attached as Exhibit B, subject to the following contingencies:
A. Review and approval of a title report for the Easement Area and confirmation that
85 ATTACHMENT 2 Agenda Item #8 October 17, 2008
it is not encumbered by any unacceptable easements, liens, etc;
B. Physical inspection and approval of the Easement Area;
C. Receipt of funding for well installation costs and long-term endowment funding in accordance with the terms and conditions of the Mitigation and Property Management Agreement
3. The Board of the JPA authorizes its Executive Director, Dick Bobertz, to take any and all further actions necessary to carry out the terms and conditions of this Resolution, including the execution of a certificate of acceptance for the Conservation Easement Deed, execution of the Mitigation and Property Management Agreement, and further actions needed to complete the approved transactions.
Passed and adopted this 17th Day of October, 2008 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
David W. Roberts, Chair
ATTEST: Jan Lines, Clerk
86 MITIGATION AND PROPERTY MANAGEMENT AGREEMENT
This Mitigation and Property Management Agreement (“Agreement”) is entered into as of ______, 2008 (the “Effective Date”), by and among L17087, a Delaware limited liability company (“Company”), and the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Authority”). Company and Authority are sometimes referred to in this Agreement singularly as a “Party” and together as “Parties”.
RECITALS
A. Company has entered, or will enter, into escrow to purchase a conservation easement (“Conservation Easement”) over approximately 1.75-acres of real property located in the County of San Diego (the “County”), State of California (the “State”), which is part of property generally known as the “Fenton Property”, which is more particularly described on Exhibit A attached hereto). A copy of the Conservation Easement to be purchased is attached as Exhibit B. The portion of the Fenton Property over which the Conservation Easement will be granted is referred to hereafter as the “Mitigation Property,” and it will be described with more particularity on an exhibit to be made part of the Conservation Easement. The Mitigation Property will be used for Company’s environmental mitigation requirements.
B. Authority has agreed to accept the Conservation Easement, subject to the terms of this Agreement.
C. Company is the owner and developer of certain real property located in the County and the State, which property is generally known as the “Vista at Rancho Bernardo” and is more particularly described on Exhibit C attached hereto (the “Vista”).
D. In compliance with Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (“ACOE”) has issued to Company Nationwide Permit Number 14 and 27 File No. 200700783-TCD for the Vista (collectively, the “Vista 404 Permits”).
E. As required by the Permits, Company has caused a mitigation plan (the “Mitigation Plan”) to be created to satisfy the mitigation requirements of the Permits. A copy of the Mitigation Plan is attached hereto as Exhibit D. The Mitigation Plan has received all appropriate approvals from the ACOE and the United States Fish and Wildlife Service.
F. The Mitigation Plan provides for, among other things, certain compensatory mitigation and long-term monitoring to be undertaken on the Mitigation Property (collectively, the “Mitigation”).
G. This Agreement is related to a separate agreement between Authority and NCA ESCO LLC, which provides for Authority’s acceptance of an additional Conservation Easement over another portion of the Fenton Property (“Second Conservation Easement.”
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1 41230277.6 87 1. Acceptance of Conservation Easement; Funding For Endowment and Well. Concurrent with the close of escrow for the purchase of the Conservation Easement:
1.1. The Conservation Easement shall be accepted by the Authority and recorded by the escrow officer;
1.2. The escrow officer shall provide Authority with a CLTA Policy of Title Insurance covering the Conservation Easement in an amount equal to the purchase price for the Conservation Easement, free of easements and encumbrances, except those approved by Authority.
1.3. Company shall pay Authority the sum of $53,628 to be used as an endowment to fund, in perpetuity, Authority’s management and maintenance of the Mitigation Property, and an additional $6,000 to partially cover the cost of a new water well.
2. Authority’s Installation of Water Well and Company’s Cost Contributions.
2.1 Installation of Well by Authority: Within 90 days of the recordation of the Conservation Easement, Authority shall cause a water well to be drilled within the Fenton Property for the benefit of the Mitigation Property and all other portions of the Fenton Property. The well shall include electrical service, a pump, and a water storage tank. Company shall be responsible for installing pipes from the well site to the Mitigation Property.
2.2 Company’s Cost Overrun Contribution: Should the cost of installing the well exceed $12,000, Company agrees to reimburse Authority one-half of the additional cost, up to an additional amount not to exceed $5,000. However, Should Authority fail to install the well within 90 days of the recordation of the Conservation Easement, Authority shall still be obligated to install the well as required by this Agreement, but Company shall no longer be obligated to contribute to any costs exceeding $12,000. Company’s initial $6,000 contribution and any additional cost overrun contribution are referred to collectively as “Company Contributions”.
2.3 Additional Contributions: Authority’s agreement to install the water well is dependent on receipt of Company Contributions and additional contributions from the Second Conservation Easement purchaser. The Second Conservation Easement purchaser is required to make the same contributions toward the cost of the water well as Company, i.e. an initial $6,000 contribution and one-half of the additional cost for a total contribution not exceeding $12,000 (“Additional Contributions”). The Company Contributions and Additional Contributions provide Authority with up to $22,000 in funding to cover the cost of the water well. Should escrow for the Conservation Easement covered by this Agreement close before the escrow for the Second Conservation Easement, Company shall, in addition to the Company Contributions, pay Authority the Additional Contributions, subject to the following right of reimbursement: Authority shall collect the Additional Contributions from the Second Conservation Easement purchaser when escrow for that transaction closes and promptly use those funds to reimburse Company.
2 41230277.6 88 3. Company’s Implementation of Mitigation Plan and Initial Management Obligations.
3.1. After recordation of the Conservation Easement, Company shall be responsible for implementation of all terms and conditions of the Mitigation Plan and shall be responsible for maintenance of the Mitigation Property for a minimum period of five years from recordation of the Conservation Easement and until such time as the resource agencies have determined that the Mitigation Property meets all success criteria of the Mitigation Plan and authorize termination of all monitoring efforts in accordance with Section X(C) (2) of the Mitigation Plan (“Mitigation Plan Completion”). Authority shall not be required to perform any management tasks or expend any of the endowment funding prior to Mitigation Plan Completion.
4. Management Responsibilities After Mitigation Plan Completion.
4.1. After Mitigation Plan Completion, Company’s obligations with respect to the Mitigation Property shall terminate, and Authority shall be fully responsible for maintenance and management of the Mitigation Property in accordance with the terms of the Conservation Easement. Company shall not be required to make any further payments to Authority or to perform any further maintenance or management tasks with respect to the Mitigation Property.
5. License. Company intends to engage a qualified environmental contracting firm (“ECF”) to implement the Mitigation Plan. Authority hereby grants to Company and ECF (or such other environmental consultant hired by Company to perform the Mitigation and management as required herein) a non-exclusive license to access the Mitigation Property for the purpose of implementing the Mitigation Plan and exercising all rights and obligations it has with respect to the Mitigation Property(“License”), subject to and in accordance with the terms of the Conservation Easement. The License will automatically terminate at Mitigation Plan Completion.
6. Failure to Act. In the event a party fails to perform any of its obligations under this Agreement in the manner required thereby and fails to correct any such violation within thirty (30) days (or such shorter period of time in the case of an emergency) after written notice from the other Party to do so (provided that, if such violation cannot reasonably be corrected within such thirty (30) day period, then such period shall be extended so long as the Party has commenced such correction during such thirty (30) day period and thereafter diligently pursues such correction to completion), then, in addition to available remedies at law or in equity, the Party providing such notice shall have the right, but not the obligation, to enter into the impacted portion of the Mitigation Property to correct such violation on behalf of the other Party and to recover from the other Party all reasonable costs and expenses incurred by such Party in connection therewith, plus an administrative fee equal to five percent (5%) of such costs and expenses, within five (5) days of such Party’s demand therefor (which demand shall include a detailed invoice describing and evidencing payment of such costs and expenses).
7. Indemnification. Each Party shall indemnify, defend, and hold harmless the other from and against any liability, loss, damage, injury or claim of any kind or character to any person or property caused by or relating to, or arising from (a) the exercise of their respective rights under this Agreement, (b) a Party’s own negligence or willful misconduct or the
3 41230277.6 89 negligence or willful misconduct of its agents, contractors or representatives, (b) or a Party’s breach of any of its obligations under this Agreement. A Party’s indemnification obligation shall not extend to claims or damages caused by the sole negligence or willful misconduct of an indemnified party.
8. Expiration of Agreement. This Agreement shall automatically expire upon Mitigation Plan Completion (the “Expiration Date”).
9. Assignment. Each Party shall have the right, without the consent of the other Party, to assign its rights and delegate its obligations under this Agreement to any other party, provided the Assignee first executes, and delivers to the other Party, a written assignment in which the Assignee agrees to fully comply with the terms of this Agreement.
10. Miscellaneous Provisions.
10.1. Modification. This Agreement may not be altered in whole or in part except by a written modification executed by each of the Parties.
10.2. No Joint Venture. Nothing in this Agreement is intended to create a joint venture, partnership, or common enterprise relationship of any kind between the Parties. The obligations of each of the Parties are the sole and several obligations of such Party.
10.3. Attorneys’ Fees. In the event any action or proceeding is initiated to challenge, invalidate, enforce, or interpret any of the terms of this Agreement, the prevailing Party shall be entitled to all reasonable attorneys’ fees and litigation fees, costs, and expenses in addition to any other relief granted by law. This provision shall apply to this entire Agreement.
10.4. Exhibits. The exhibits attached hereto and referenced or described herein shall be deemed fully incorporated herein and a part hereof.
10.5. Entire Agreement. This Agreement, together with all exhibits attached hereto, contains all representations and the entire understanding between the Parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, or agreements, whether or not such correspondence, memoranda, or agreements are in conflict with this Agreement, are intended to be replaced in total by this Agreement and its exhibits. Each Party warrants and represents that no representative of such Party has made any oral representations or oral agreements not contained in this Agreement. Each Party further warrants and represents that it has not relied upon any oral statements or promises made by any representative of any Party in executing this Agreement.
10.6. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective purchasers, successors, heirs, and assigns.
10.7. Covenant Running with the Land. The obligations under this Agreement shall impose covenants and agreements which shall run with, and create a burden on, the Mitigation Property.
4 41230277.6 90 10.8. Memorandum of Agreement. Promptly upon the request of either Party and at its expense, the Parties shall prepare, enter into and record a suitable short form memorandum of this Agreement. A model Memorandum of Agreement is attached as Exhibit E.
10.9. Unenforceable Provisions. The terms, conditions, and covenants of this Agreement shall be construed whenever possible as consistent with all applicable laws and regulations. To the extent that any provision of this Agreement, as so interpreted, is held to violate any applicable law or regulation, the remaining provisions shall nevertheless be carried into full force and effect and remain enforceable.
10.10. Opportunity to be Represented by Independent Counsel. Each of the Parties warrants and represents that it has been advised to consult independent legal counsel of its own choosing and has had a reasonable opportunity to do so prior to executing this Agreement.
10.11. No Waiver. The failure of any Party to enforce any term, covenant, or condition of this Agreement on the date it is to be performed shall not be construed as a waiver of that Party’s right to enforce this, or any other, term, covenant, or condition of this Agreement at any later date or as a waiver of any term, covenant, or condition of this Agreement.
10.12. Notices. All letters, statements, or notices required pursuant to this Agreement shall be deemed effective upon receipt when personally served, transmitted by facsimile machine, or sent certified mail, return receipt requested, to the following addresses:
To Company: L17087, LLC c/o Lowe Enterprises Real Estate Group – West, Inc. 2020 Main Street, Suite 1150 Irvine, CA 92614 Attn: Michael W. McNerney Phone: 949.724.1515 Fax: 949.724.1444
With a Copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064 Attn: Timi Anyon Hallem Phone: 310.312.4217 Fax: 310.914.5844
To Authority: San Dieguito River Park JPA 18372 Sycamore Creek Road Escondido, CA 92025 Attn: Susan Carter, Deputy Director Phone: 858.674.2275 Fax: 858.674.2280
5 41230277.6 91
With a Copy to: D. Wayne Brechtel Worden Williams, APC. 462 Stevens Avenue, Ste. 102 Solana Beach, CA 92075 Phone: 858.755.6604 Fax: 858.755.5198
10.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
10.14. Good Faith and Cooperation. In interpreting and applying the provisions of this Agreement, the Parties agree to act in good faith and cooperate with each other, including without limitation, to execute and deliver such documents as may be necessary to effectuate the intent of this Agreement and to provide reasonable assistance to each other in obtaining any necessary approvals and/or authorizations for the implementation of the Mitigation Plan.
6 41230277.6 92 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
“Company”
L17087, LLC, a Delaware limited liability company
By: Lowe Commercial Corporation, a California corporation, its Managing Member
Name:
Title:
“Authority” San Dieguito River Valley Regional Open Space Park Joint Powers Authority
By: Dick Bobertz, Its Executive Director
7 41230277.6 93 EXHIBIT A
Fenton Property
(attached)
EXHIBIT A (i) 41230277.6 94
EXHIBIT B
Conservation Easement
(attached)
EXHIBIT A (i) 41230277.6 95 EXHIBIT C
Vista
(attached)
EXHIBIT C (i) 41230277.6 96 EXHIBIT D
Mitigation Plan
(attached)
EXHIBIT D (i) 41230277.6 97 EXHIBIT F
Memorandum of Agreement
RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) ) ) L17087, LLC ) Attn: Michael W. McNerney ) 2020 Main Street, Suite 1150 ) Irvine, California 92614 )
MEMORANDUM OF MITIGATION AND PROPERTY MANAGEMENT AGREEMENT (Vista)
THIS MEMORANDUM OF MITIGATION AND PROPERTY MANAGEMENT AGREEMENT (this “Memorandum”) is made as of , 2008 by and between L17087, a Delaware limited liability company (“Company”), and the San Dieguito River Valley Regional Open Space Park Joint Powers Authority (“Authority”).
R E C I T A L S
A. Company and Authority are parties to that certain Mitigation and Property Management Agreement dated as of , 2008 (the “Agreement”). Initially capitalized terms used but not otherwise defined in this Memorandum shall have the meanings given to them in the Agreement.
B. Pursuant to that Agreement, Authority has accepted a Conservation Easement over certain real property described on Exhibit A attached hereto (the “Mitigation Property”), and the parties have allocated responsibility for restoration, initial management and long-term management of the Mitigation Property.
C. The parties are entering into this Memorandum to disclose and provide notice of the Agreement.
A G R E E M E N T
NOW THEREFORE, in consideration of the foregoing Recitals, which by this reference are incorporated herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Mitigation Agreement. As more particularly described in the Agreement, Authority has agreed to permit, among other things, certain Mitigation activities on
EXHIBIT Fn 41230277.6 98 the Mitigation Property, subject to the satisfaction of such conditions as are contained in the Agreement.
2. Recordation. This Memorandum shall be filed and recorded in the Official Records of San Diego County, California.
3. Release of Memorandum. Upon the termination of the Agreement for any reason, any party to this Memorandum may file and cause to be recorded a release; provided, however, that any party filing any such release shall deliver copies thereof at the time of filing to the other party at the notice addresses specified in the Agreement, or as such addresses may have been changed from time to time pursuant to the Agreement.
4. Purpose of Memorandum. The purpose of this Memorandum is to provide notice of the Agreement. In the event of any inconsistency or conflict between the terms and provisions of this Memorandum and the terms and provisions of the Agreement, the terms and provisions of the Agreement shall prevail and control.
5. Counterparts. This Memorandum may be executed in several counterparts and all such executed counterparts shall constitute one agreement, binding on the parties, notwithstanding that all of the parties are not signatories to the original or to the same counterpart.
6. Incorporation of Recitals. All of the Recitals to this Memorandum are incorporated herein and made a part of this Memorandum.
[Remainder of page intentionally blank; signatures begin on next page.]
EXHIBIT F (ii) 41230277.6 99
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to enter into this Memorandum as of the date first above written.
“Company”
L17087, LLC
By: Lowe Commercial Corporation, its Managing Member
Name:
Title:
“Authority”
By:______
EXHIBIT F (iii) 41230277.6 100 STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
EXHIBIT F (iv) 41230277.6 101 STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
EXHIBIT F (v) 41230277.6 102 EXHIBIT A
Legal Description of Mitigation Property
EXHIBIT F (vi) 41230277.6 103 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) ) San Dieguito River Park JPA ) c/o D. Wayne Brechtel ) Worden Williams, APC ) 462 Stevens Avenue, Suite 102 ) Solana Beach, California 92075 ) )
Space Above Line for Recorder's Use Only
CONSERVATION EASEMENT DEED
THIS CONSERVATION EASEMENT DEED (“Conservation Easement”) is made this ______day of 2008, by the Justine B. Fenton Family Trust dated October 16, 1984 ("Grantor"), in favor of San Dieguito River Valley Regional Open Space Park Joint Powers Authority, a local government agency ("Grantee"), with reference to the following facts:
R E C I T A L S
A. Grantor is the sole owner in fee simple of certain real property in the County of San Diego, State of California, consisting of approximately 23.6 acres, and commonly known as Parcel 3 of the Fenton Property, designated Assessor’s Parcel Number 242-110-12and parcel 3 of Parcel Map 19095 and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); Grantor desires to grant, and Grantee desires to accept, a conservation easement over a portion of the Property consisting of approximately 1.75 acres described and shown on Exhibit “B,” attached hereto and incorporated herein by reference (the “Easement Area”).
B. The Easement Area possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee and the people of the State of California;
C. This Conservation Easement provides mitigation for certain impacts associated with the West Bernardo Drive Widening Project (“Project”), pursuant to requirements of Army Corp of Engineers Section 404 Permit SPL-200700783-TCD and California Department of Fish & Game Section 1602 Streambed Alteration Agreement No. 1600-2007-0265-R5.
D. Grantee is a local government agency authorized to hold conservation easements pursuant to Civil Code Section 815.3. Specifically, Grantee is a joint powers authority formed to promote an open space/natural habitat park in the San Dieguito River Valley in which the Easement Area is located.
1 104 COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
In consideration of the above Recitals and 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 Easement Area.
1. Purpose. The purpose of this Conservation Easement is to ensure the Easement Area will be retained forever in a natural condition and to prevent any use of the Easement Area that would impair or interfere with the conservation values of the Easement Area. Grantor intends that this Conservation Easement will confine the use of the Easement Area to activities consistent with its conservation purposes, including, without limitation, those involving the preservation and enhancement of native species and their habitat. For the purposes of this easement, the term “natural condition” refers to the Easement Area in its current condition as documented in the West Bernardo Drive Widening Project, San Diego, California Wetland Mitigation Plan, Project No. 106137, dated July 24, 2008 (“Mitigation Plan”), a copy of which is on file and available at Grantee’s office, and as may be restored and improved pursuant to the Mitigation Plan. If a controversy arises with respect to the natural condition of the Easement Area, the parties shall not be foreclosed from utilizing any and all relevant documents, surveys, photographs or other information to assist in resolution of the controversy.
2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee:
(a) To access the Easement Area by way of existing easements or rights-of- way or other reasonable and practical means designated by Grantor;
(b) To enhance, restore, preserve, manage, maintain and protect the conservation values of the Easement Area;
(c) To grant the developer of the Project described above in Recital C, or its successors and assigns, the right to implement all terms and conditions of the Mitigation Plan;
(d) To enter upon the Easement Area and/or 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, provided that Grantee shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property;
(e) To prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement;
(f) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Easement Area;
2 105 (g) All present and future development rights; and
(h) The right to drill a water well at a location within the Property approved by Grantor, which approval shall not be unreasonably withheld, and the right to access and use water from the well as needed to implement the Mitigation Plan and, thereafter, maintain the Easement Area. Grantee’s right to access and use the water well is non-exclusive, and Grantor retains the right to use and/or grant others the right to use the well for the benefit of the Property.
3. Prohibited Uses. Any activity on or use of the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. All activities by Grantee, its agents or licensees, for the purpose of the creation, enhancement, monitoring and maintenance of the Easement Area’s conservation values are considered consistent with the purposes of this Conservation Easement. Prohibited activities include, but are not limited to, the following:
(a) Use of off-road vehicles and use of any other motorized vehicles, except vehicles associated with management and maintenance of the Easement Area;
(b) Grazing or other agricultural activity of any kind;
(c) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing;
(d) Commercial or industrial uses;
(e) Any legal or de facto division, subdivision or partitioning of the Easement Area;
(f) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind, excluding informational signage consistent with the purposes of this Conservation Easement;
(g) Depositing or accumulation of trash, ashes, refuse, waste, bio-solids or any other materials;
(h) Planting, introduction or dispersal of non-native or exotic plant or animal species;
(i) 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 Easement Area;
(j) Altering the surface or general topography of the Easement Area, including building of roads, except as may be necessary to implement the Mitigation Plan;
(k) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by the Mitigation Plan, or required by law for (1) fire breaks, (2) maintenance of existing foot trails or roads, or (3) prevention or treatment of disease; and 3 106
(l) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Easement Area, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters.
4. Grantor's Duties. 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.
5. Grantee’s Duties. Grantee shall monitor compliance and enforce the terms and conditions of this Conservation Easement. Grantee shall assume, and thereafter retain in perpetuity, responsibility for maintenance of the Easement Area after the later of: (i) the passage of five years from recordation of the Conservation Easement or (ii) resource agency confirmation, pursuant to Section X(C)(2) of the Mitigation Plan, that the Easement Area meets all success criteria.
6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing the cure of such violation. 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 Easement Area, to enjoin the violation, ex parte 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 Easement Area to the condition in which it existed prior to any such violation or injury. Without limiting Grantor's liability therefor, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Easement Area.
If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Easement Area, Grantee may pursue its remedies under this Section 6 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 4 107 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 Easement Area 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 justiciable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement.
6.1. Costs of Enforcement. Any costs incurred by Grantee, where it is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including, but not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall be borne by Grantor.
6.2. Discretion of Grantee. Enforcement of the terms of this Conservation Easement by Grantee shall be at its discretion, and any forbearance by Grantee 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 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 under this Conservation Easement. No delay or omission by Grantee 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.
6.3. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Easement Area 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 Easement Area resulting from such causes; or (ii) acts by Grantee or its employees.
7. Access. This Conservation Easement does not convey a general right of access to the public.
8. Costs and Liabilities. Grantee shall be responsible for the cost of its maintenance obligations. Grantee shall also be responsible for obtaining any applicable governmental permits and approvals for any activity it undertakes within the Easement Area, 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. Grantor shall be responsible for all other costs and duties related to ownership of the Easement Area. Except as provided in this Conservation Easement, Grantee shall have no responsibility for maintenance of the Easement Area, or the protection of Grantor, the public, or any other third party, from risks relating to conditions on the Easement Area.
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 5 108 Easement Area by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep Grantee’s interest in the Easement Area 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 Easement Area.
8.3. 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.
9. 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 Easement Area is located.
10. 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 Easement Area, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor, Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way.
11. 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: Don Metzler On Behalf of the Fenton Family Trust 7906 Raytheon Road San Diego, CA 92111 858-279-1354
6 109 To Grantee: San Dieguito River Park Joint Powers Authority 18372 Sycamore Creek Rd Escondido, CA 92025 Att: Executive Director
or to such other address as a party may designate by written notice to the other party. Notice shall be deemed effective upon delivery in the case of personal 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.
12. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement. Any such amendment shall be consistent with the purposes of this Conservation 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.
13. General Provisions.
(a) 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.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed to effect the purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement, such action shall not affect the remainder of this Conservation Easement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances.
(d) 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 13.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement shall be binding upon, and inure to the benefit of, the parties hereto and 7 110 their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Easement Area.
(g) 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 Easement Area, except that liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
(i) No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Easement Area.
Despite any contrary provision of this Conservation Easement, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee 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 Easement Area; or
(5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Easement Area.
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 5101 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.
8 111 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 that Grantor’s activities upon and use of the Easement Area will comply with all Environmental Laws.
(j) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, encumbrances or other interests in the Easement Area which have not been expressly subordinated to this Conservation Easement, and that the Easement Area is not subject to any other conservation easement.
(k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Easement Area (other than a security interest that is subordinate to this Conservation Easement), or grant or otherwise abandon or relinquish any water agreement relating to the Easement Area, without first obtaining the written consent of Grantee. Grantee 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 Easement Area. This Section 14(k) shall not prohibit transfer of a fee or leasehold interest in the Easement Area that is subject to this Conservation Easement and complies with Section 10.
(l) 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.
9 112 IN WITNESS WHEREOF Grantor and Grantee have executed this Conservation Easement as of the day and year first above written.
GRANTOR:
BY:
NAME:
TITLE:
DATE: ______
STATE OF CALIFORNIA ) ) COUNTY OF______)
On ______, 2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
CERTIFICATE OF ACCEPTANCE 10 113
This is to certify that the interest in real property conveyed by this Conservation Easement Deed by the Justine B. Fenton Family Trust dated October 16, 1984 to the San Dieguito River Valley Regional Open Space Park Joint Powers Authority is hereby accepted on the terms and conditions set forth in this Conservation Easement by the undersigned officer on behalf of the San Dieguito River Valley Regional Open Space Park Joint Powers Authority.
GRANTEE:
SAN DIEGUITO RIVER VALLEY REGIONAL OPEN SPACE PARK JOINT POWERS AUTHORITY
By: ______Name:______Title: ______Date: ______
STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO )
On ______2008, before me, ______, a Notary Public, personally appeared ______who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person 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 ______(Seal)
11 114